text:
    People, for use of Meyer Abrahams, v. Henry Peck et al.
    Gen. No. 13,565.

      Constable—when not liable upon official bond. A constable who releases a levy, receiving money to cover the amount of the execution, and. who makes an agreement that such money is held subject to the disposition of the “matter” according to law, is not liable to return such money to the defendant in the execution, after an appeal has been taken which is not prosecuted with effect.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed January 13, 1908.
    B. M. Shaffner, for appellant.
    Blum & Blum, for appellees.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of nil capiat and for costs against the plaintiff by the Circuit Court in an action originally brought by the appellant against the appellees before a justice of the peace, from whom it was removed by appeal to the Circuit Court and submitted to the court without a jury, resulting in the judgment above noted.

The facts are these: One Bernstein and one Wolf, doing business as A. Bernstein & Co., on March 7, 1904, recovered judgment against one D. Izen for $146 and some costs, before Justice Sabath, and on the same day an execution was issued on that judgment by the justice and placed for service in the hands of Henry Peck, a constable in and for Cook county. The judgment was in an action of replevin where the goods were not found, and on being demanded were not turned over to the officer.

The execution given to Peek was immediately taken by him to the store of Mr. Izen, who was a dealer in second-hand furniture.

The testimony of Peck and Jacob Bernstein as most favorable to the defendant, for whom the Circuit Court rendered the judgment which is attacked, must be taken as controlling by us if there be any conflict between it and the testimony of the witnesses for the plaintiff as to what took place there. Peck’s testimony is that he found at the store Mrs. Izen and two children; that a young lady appeared from above, and claimed that the goods in the store belonged to her father, Meyer Abrahams; that shortly afterward Mr. Izen came in; that the constable Peck then made a levy, taking an inventory of certain chattels that he selected to levy on, and indorsing it on the execution, of which he gave a copy to Izen. The property so specified was a quantity of furniture. Then the constable, who had taken a man along to act as custodian, prepared some written authority for the custodian to act under. At this point Meyer Abrahams came in and asserted his ownership, saying, “You can’t take anything in this place. Everything is mine. This is my house and I am the owner of the store. ' Mr. Izen is only running it.” Peck refused to take any notice of this claim. Abrahams suggested that Izen was going to appeal the case, but Peck answered, “I don’t know what he is going to do. I am here to make a levy—either take the goods out or leave the custodian all night.” Then Abrahams suggested that he would furnish the money. Peck said, “That is all I want.” Abrahams said, “How much is it?” Peck replied, “In the neighborhood of $160 with costs.”

Abrahams asked Peck if he would return the money if the case was appealed. Peck replied, “I don’t know anything about that. I cannot release the levy as a constable, but I shall go over to the plaintiff and state the mattér to him.”

Then, according to Peck, he did go to Bernstein, senior, leaving his custodian in the store. Receiving authority to release the levy on the payment of money, he went to the place of business of Meyer Abrahams’ son, near by, where Meyer Abrahams was waiting for him, he having left Izen’s store with Peck. To Meyer Abrahams, Peck said: “The only thing I can do is, if you pay the money I will give you a receipt. If Mr. Izen will settle up the judgment or anybody else, you will probably get your money back. But'this thing has got to be settled according to law.” Mr. Abrahams gave Peck $160, and received from Peck this receipt:

1 ‘ Chicago, March 7, 1904.
Received from Meyer Abrahams one hundred and sixty dollars, to be as security in the execution of A. Bernstein & Company v. D. Izen, same amount to be returned to the above if said Izen or his agents settle the within mentioned execution or otherwise dispose of the matter according to law.
Witness, E. Abrahams.
Henry Peck.”

The next day Constable Peck turned the execution, with the following return on it, into Justice Sabath, with the $160, and has since not seen the money or any part of it.

“By virtue of the within, I have this day levied on the following personal property of the within named defendant: 6 Springs; 5 Couches; 2 Ice. Boxes; 15 Beds;'2 Cupboards; Couch; 5 Stoves; 14 Beds; 2 Sideboards; 28 Chairs; 5 Parlor Suits; lot of Oil Cloth; 4 dozen Tables; 1 Couch. By direction of plaintiff I have taken from Meyer Abrahams $160.00 to be as security and released said levy and I have paid said money .in Court this 8th day of March, 1904.

Henry Peck, Constable.”

On the twenty-eighth day of March,' 1904, Izen appealed, the case in which the execution had been issued, to the Circuit Court, and an appeal bond was filed in the Circuit Court by him, with one Levi Lerman as surety. The appeal was dismissed by the Circuit Court. December 21, 1904, the appellant’s counsel says because “the bondsman had sold his property;” the appellee’s counsel says because “of a failure by appellant to comply with a rule to file a good bond.” We may accept the latter statement as accurate in any event, as that is the only way in which the result could have followed the fact asserted in .the former one. Otherwise than by the constable’s receiving the $160 above set forth, the plaintiff in the execution has never received anything on the judgment.

After the appeal was taken Meyer Abrahams demanded his money back from Peck and Justice Sabath. He did not get it, and brought the present suit in the name of the The People (for his use) against Peck and the sureties on his official bond, who were Barbara Sabath and Max Skudera. Skudera was never served and never appeared either before the justice or in the Circuit Court.

The justice before whom the suit was originally brought entered judgment against Henry Peck and Barbara Sabath for $160 and costs. After the appeal to the Circuit Court the appeal was once dismissed for want of prosecution (December 5, 1904). This judgment of dismissal against the appellant was reversed on error by the Branch Appellate Court February 20, 1906, and the cause was redocketed in the Circuit Court, where it was tried with the result first above indicated.

From that judgment this appeal has been taken to this court and'various assignments of error made.

We think the foregoing statement shows clearly that there is no foundation for any action on the constable’s bond. The constable has done nothing to render his sureties liable. The receipt given shows what the agreement was. The money was to remain as security for the execution debt. If the execution were paid, or if “.the matter”—that is, evidently, the alleged indebtedness—should be otherwise “disposed of according to law,” the money was to be returned; otherwise. not. The constable took the money and made this agreement at the instance of Abrahams himself. He turned the money into court. Here was no shadow of a violation of his official duty rendering his bondsmen liable. But we cannot see that he is even personally liable. The money was security for the settlement of the execution or the disposition “of the matter” according to law. If, as we think, “the matter” was the alleged indebtedness for which execution had issued, it was no “disposition” of it “according to law,” to merely take an appeal and file a bond which proved insufficient and allow the appeal to be dismissed for failure to file a sufficient one.

The judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Chicago & Eastern Illinois Railroad Company v. Henry Ades Fowler, Adminstrator.
    Gen. No. 13,581.
    1. Verdict—when in action 8y death caused 8y alleged wrongful act cannot he held excessive. There is no criterion, except the limit of -recovery authorized by the statute, by which the courts can judge of the excessiveness of a verdict for the death of a boy, mentally and physically healthy, with his life before him.
    2. Peremptory instruction—what does not justify giving of. A peremptory instruction should not be given even if the greater weight of the evidence does not sustain the allegations of the plaintiff’s declaration.
    3. Instruction—upon measure of damages in action for death caused hy alleged wrongful act, approved. An instruction upon this subject as follows is approved:
    “If you find a verdict in favor of the plaintiff, you are not confined in assessing the damages to the pecuniary value, if any, of the services of the deceased child to his next of kin until he would have arrived at the age of twenty-one, but the jury may consider the pecuniary benefit, if any, which the next of kin might have derived from said deceased at any age of his life, had he not been killed.”
    4. Instruction—when upon preponderance of evidence not erroneous. An instruction upon this subject is not erroneous which tells the jury that if they believe the evidence bearing upon the plaintiff’s case preponderated in his favor although but slightly, it would be sufficient to warrant a verdict in his favor.
    5. Instruction—when upon contributory negligence, not erroneous. An instruction upon the subject of contributory negligence given in an action brought for death of a minor caused by alleged wrongful act is not erroneous which omits the word “experience.”
    Action in case for death caused by alleged wrongful act. Appeal from the City Court of Chicago Heights; the Hon. Homer Abbott, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed January 13, 1908.
    Statement by the Court. This is an appeal from a judgment of the City Court of Chicago Heights against the appellant, defendant there, and in favor of the appellee, plaintiff there, for $4,500 for causing the death of the plaintiff’s intestate. The judgment was given on the verdict of a jury after a motion for a new trial and a motion in arrest of judgment had been overruled.
    The assignments of error in this court which are argued attack the refusal of the trial court to take the case from the jury byperemptory instruction, and its refusal to grant a new trial because of the excessiveness of the verdict, and alleged that incorrect instructions were given and correct ones were refused. Six instructions given at the request of the plaintiff are by the assignments of error alleged to be erroneous, and the refusal of each of five tendered by the defendant is said to be also erroneous. But the argument is confined to four of those given and two of those refused. They will he discussed in the opinion following.
    The pleadings in the case consist of a declaration in four counts, and the plea of the general issue thereto. The first count of the declaration alleges that on February 1, 1906, at the city of Chicago Heights, in Cook county, the defendant was operating a steam railway, and by its servants driving a locomotive engine and cars along said railway and a certain public highway known as Twenty-sixth street, and while the plaintiff’s intestate was in the exercise of ordinary care for his own safety, and was rightfully on said highway, the defendant,- through the carelessness and negligence of its servants, “so carelessly, recklessly and unskillfully' managed the said locomotive engine and cars thereto attached that the same ran and struck with great -force and violence upon and against the said Cordie L. Wall,- whereby he was then and there killed. ’ ’
    The proper averments of kinship of the beneficiaries of the action and the official character of the plaintiff follow.
    The second count alleges the negligence of the defendant to have been that it operated a railroad and drove a locomotive engine across Twenty-sixth street in the city of Chicago Heights, and that, “in so doing no steam whistle placed on said locomotive was sounded at a distance of at least eighty rods and continuously sounded until said crossing was reached, nor was any bell of at least thirty pounds’ weight rung continuously from such distance until the crossing was passed, but therein the defendant wholly failed and made default, contrary to the form of the statute in such case made and provided. ’ ’
    The third count alleges that the negligence of the defendant caused the view of ‘the approaching train to be obstructed by allowing and permitting a large number of freight cars to stand along and upon the south side of the Twenty-sixth street crossing close to the railroad track upon which the locomotive was approaching’ from the south, whereby the said Cordie L. Wall was hindered and prevented from seeing, hearing or knowing of the approach of said train.
    The fourth count alleges that while Wall, in the exercise of ordinary care for his own safety, was rightfully on the highway, the defendant company negligently caused and permitted a large number of freight cars to stand close to and upon the south side of Twenty sixth street, which obstructed the view and prevented Wall from seeing or knowing of the approach of a train which the defendant was driving northward at the crossing, and yet, knowing that the crossing was obstructed, the defendant negligently drove said train “along in a northerly direction along and upon the south-bound track close to the said cars which obstructed the view of the approaching train, and that by reason and in consequence of said negligence, the locomotive ran down Wall and killed him.”
    Calhoun, Lyford & Sheean, for appellant; E. H. Seneff, of counsel.
    B. J. Wellman, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

It is urged with some insistence under the. first point of appellant’s brief that this case should have been taken from the jury because, “the greater weight of the evidence did not sustain the allegations of negligence contained in the plaintiff’s declaration, but on the contrary showed negligence on the part of plaintiff’s intestate, causing his death.”

If the premise were correct, and if the greater weight of the evidence had been in effect as appellant states it, the conclusion would not follow. This would not have justified the court in taking the case from the jury by a peremptory instruction. It has been held repeatedly that the true rule concerning such peremptory instructions is, that to justify them there must be an entire want of evidence tending to support a verdict for the plaintiff.

Woodman v. Illinois Trust & Savings Bank, 211 Ill. 578, contains a full discussion of this matter, with quotations from previous cases in point.

It can hardly be seriously claimed in this case that there is no evidence tending to support' a verdict for the plaintiff. We have, however, in this court in such cases the duty to weigh the evidence and if it clearly and manifestly preponderates for the defendant, so that we can say that the verdict is against the evidence, it may become our duty to reverse a judgment rendered on a verdict, not because the jury should have been peremptorily instructed, but because the trial court should have set aside the verdict and granted a new trial.

This is not, however, a case in which this seems to us to be our duty. In our opinion, both the question of the alleged negligence of the defendant and of the alleged contributory negligence of the plaintiff were proper ones for the jury on the evidence, under proper instructions, and its decision on them was not, in consideration of the evidence, unreasonable or strange.

The facts briefly stated were these: Gordie L. Wall was a boy twelve years old at the time of his death. He was a boy of good habits and character and mental ability. He lived with his parents in the' first house east of the tracks on Twenty-sixth street, in the city of Chicago Heights. The tracks in question were the tracks of the defendant, the Chicago & Eastern Illinois Railroad Company. There were six of them crossing Twenty-sixth street and running north and south. Twenty-sixth street runs east and west.

On February 1, 1906, between eight and nine o’clock in the morning, Wall was walking east on Twenty-sixth street, and had crossed the first, second and third tracks, counting from the west, when he was struck by a.train of three box freight cars and an engine' backing down the fourth track, and killed.

The engine was headed south and was south of the cars, but the whole train was running or backing northward, and the boy was struck first by the last or northerly car, and knocked down, and the cars and engine passed over his body two car lengths to the north.

The first, second and third tracks were switch and storage tracks; the fourth track, on which the boy was killed, was the main south-bound track of the defendant, although this cut of cars and engines was then running north on it. The next or fifth track was the main north-bound track of the defendant. The sixth or most easterly track was a switch track. There was a sidewalk on the south side of Twenty-sixth street, west of the tracks, hut it did not cross the tracks. A sixteen foot plank roadway was laid in the middle of the street. The street was sixty feet wide. The boy was struck at or near the north line of the planking. There were ears standing on the north of Twenty-sixth street on the three west tracks, even with the north line of the street. On the south half of the street there were cars standing on all three of these tracks, and a line of cars extended south from them for a considerable distance, at least four or five hundred feet. On the westernmost track it would appear the cars stood even with the south line of the plank crossing; on the next or second track, the line of cars extended for some little distance onto the planks; and on the third track, the one next to the main southbound track on which the boy was killed, they extended to the very middle of the plank roadway; the most northerly car on that track, and indeed all of the cars standing on the street, were box cars. The six tracks were all on a hundred foot right of way of the defendant, and the distance between the east rail of one track and the west rail of another was between eight and ten feet. The tracks were standard gauge, four feet eight and one-half inches. Box cars extend over the rails on which they stand for some distance on each side.

The hoy, when struck by this train moving northward, was on a “dog trot,” and his head was turned northward or northeast, which was the way he would naturally look for a train approaching on the main south-hound track.

There was positive testimony of a disinterested witness, employed by another railroad, who saw the accident, that there was no whistle sounded and no bell ringing on the train that ran the boy down, before the accident, and there was testimony of other witnesses strongly tending to confirm this. This was denied by still other witnesses, who swore a bell was ringing, but the question was for the jury.

So too was the speed at which the train was moving. Two witnesses at least fixed it at ten miles an hour. Others said it was not running more than three to five miles an hour. It is extretiiely difficult to gauge the speed of a running train at a transient glance. It was for the jury to say who did it most successfully and testified most accurately, if they deemed the speed of the train an essential factor in the determination of the cause.

In any event it was also for them to say whether the position in which the defendant had placed the cars on the three westerly tracks and especially on the track next west of the south-bound track, coupled with the backing of a train up across the crossing, without a stop, on a traqk usually devoted to south-bound trains, was not negligence.

So too, was the question of contributory negligence on the part of the deceased for the jury.

Counsel for defendant, in their elaborate argument, correctly state the law when they say “It is the duty of the court, where the facts proven are such that all reasonable minds must agree, that plaintiff or his intestate has been guilty of negligence contributing to his injury," to instruct the jury to find for the defendant.” It is only necessary for fis, however, to say that we do not consider this by any means such a case.

.Nor if a verdict was to be returned for the plaintiff, can we say that the one rendered was excessive.

There is no criterion except the limit of recovery authorized by the statute by which we can judge the excessiveness of a verdict for the death of a boy mentally and physically healthy, with his life before him. To this doctrine we are committed. Cicero & Proviso St. Ry. Co. v. Boyd, 95 Ill. App. 514; United States Brewing Co. v. Stoltenberg, 113 Ill. App. 435; Chicago City Ry. v. Strong, 129 Ill. App. 511. ,

If, therefore, the instructions under which this case was tried fairly and properly stated the law, we see no reason for disturbing the judgment. Careful consideration of those which are objected to by appellant has failed to show us wherein they were erroneous.

The instruction on the measure of damages as follows: “If you find a verdict in favor of the plaintiff, you are not confined in assessing the damages to the pecuniary value, if any, of the services of the deceased child to his next of kin until he would have arrived at the age of twenty-one, but the jury may consider the pecuniary benefit, if any, which the next of kin might have derived from said deceased at any age of his life, had he not been killed”—was expressly approved in United States Brewing Company v. Stoltenberg, 211 Ill. 531, and we do 'not think that in a case of this character for the death of a minor before his wage-earning capacity was known, there has been anything ever said by the Supreme Court in any different sense. Moreover, at the request of the defendant, the jury were instructed that in considering the damages, if they found the defendant guilty, they should dismiss from their minds all consideration of grief, sorrow and mental affliction of the relatives" of the deceased, and all feelings of personal sympathy and consider only the pecuniary injury. Sorrow or grief for the deceased, they were told, or any pain caused to the next of kin by the manner of his death, was not to be considered by the jury, nor could any recovery be had for the bereavement of the next of ldn, or for the pain and suffering caused deceased or his surviving kindred, but that under the law, the pecuniary value of the life of the deceased to the next of kin left sur- " viving was all for which damages could be assessed.

We think the jury were fully and correctly instructed as to the measure of damages.

An instruction on the preponderance of evidence, which told the jury that if they believed the evidence bearing on the plaintiff’s case preponderated in his favor, although but slightly, it would be sufficient to warrant a verdict in his favor, is objected to, and counsel quote from the opinion of this court in O’Donnell v. Armour Curled Hair Works, 111 Ill. App. 516, in which, speaking by Mr. Justice Adams, the court said the instruction was “obnoxious to criticism,” and that its refusal was not error.

We have, however, never reversed a case because it was given, and since the statement by this court in the O’Donnell case, have often declined to do so. The Supreme Court has several times declared it.not erroneous, and in Chicago City Ry. Co. v. Fennimore, 199 Ill. 9, declared it to be subject to no valid objection. See Libby, McNeill & Libby v. Kearney, 124 Ill. App. 339, and Hanchett v. Haas, 219 Ill. 548, and cases therein cited.

We find no error in the instructions given at the plaintiff’s request, and complained of by the defendant because they do not explicitly mention the “experience” of the deceased boy as affecting the question of contributory negligence. It is sufficient for us to say that the reference to “like circumstances and like surroundings,” supplies the defect, if there would otherwise be such a one in the instructions as counsel argue. In connection with the other instructions given they correctly and fully stated the law.

Nor do we think there was error in refusing either of the instructions, the refusal of which is complained of in argument. Applied to the circumstances of this, case, it seems to us they would have been misleading. We think the trial judge was right in rejecting them. Those instructions that he did give at the defendant’s instance fully and fairly presented the question of the care of the deceased for his own safety to the jury.

We see no error in the proceedings or the judgment' in this cause, and the judgment of the City Court of Chicago Heights is affirmed.

Affirmed.


author: Mr. Presiding Justice Baker

text:
    Daniel P. Seibert v. Thomas Grace.
    Gen. No. 13,327.
    1. Delivery—when acceptance of, will be presumed. Held, under the facts of this case, that acceptance of delivery of a lease will be inferred.
    2. Landlord and tenant—what instrument constitutes lease. The words “agree to let” mean exactly the same as the word “let,” and unless there is something in the instrument in which they are employed to show that a present demise is not in contemplation, such instrument will be construed as a lease.
    3. Landlord and tenant—power of executor with respect to lease. The executor of a lessee has no authority to surrender a term and take another lease in his own name; where after the death of the lessee the executor takes possession of the demised premises and pays the rent, he is deemed to have held such possession under the lease as executor de son tort. Payments of rent made by him imply no new letting.
    Freeman, J., dissenting.
    Forcible entry and detainer. 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, 1906.
    Reversed.
    Opinion filed January 14, 1908.
    Statement by the Court. This is an appeal by the defendant from a judgment in forcible detainer for the possession of the store room 1259 Garfield boulevard, Chicago. The suit was begun before a justice of the peace, taken to the Circuit Court by appeal and there tried by the court without a jury.
    In March, 1904, Walter G. Seibert purchased of one Krauthoff a drug store then in said store room, and took possession thereof. A short time afterwards plaintiff executed the following written instrument, designated in the bill of exceptions as “Defendant’s Exhibit A.”
    “I, Thomas Grace, agree to rent to Walter G. Seibert, my store room, No. 1259 W. Garfield boulevard, for five years from the 1st day of May, 1904, the first year at $55.00 per month, the next four years at $60.00 per month, with the privilege of three years more at not over $70.00 per month.
    I also agree, to pay all water taxes and plate glass insurance, except for-faucet for fountain, and to heat building with steam.
    Thomas Grace. ’ ’
    The evidence shows that this instrument was written by defendant, the brother of Walter G. Seibert, in the presence of plaintiff and Walter G. Seibert; that it was then signed by plaintiff at the request of Walter G. Seibert and handed to defendant. Walter G. Seibert carried on said drug store in said store room until •April 7, 1904, when he was killed. Defendant continued to keep said- drug store after his brother’s death and sell the goods left therein by Walter • G. Seibert at his death. He paid to plaintiff from May 1, 1904, to May 1, 1905, rent at $55 per month, and the plaintiff accepted the same. May 15, 1905, he handed plaintiff a check for $55 for the May rent and plaintiff said that was not right, that according to the lease the rent was $60 per month for the second year. Defendant then gave plaintiff $5 in currency and also paid plaintiff $3 for the water tax for the faucet at the soda fountain, and said to plaintiff: ‘ ‘ Then I guess you have decided that the old lease is all right,” and plaintiff said, “Why, of course, it is.” From that time until March 1, 1906, defendant paid plaintiff rent at $60 per month. March 1, 1906, plaintiff gave defendant a notice in writing that his tenancy of said store room would terminate March 31, 1906. It was conceded that all rent due by the term of said written instrument up to the time of the giving of said notice was paid, and that installments thereafter falling due were tendered.
    Wickett, Meier & Booth, for appellant; D. S. Wegg, of counsel.
    Alexander Sullivan and Frank L. Kriete, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

From the fact that the written instrument, “Ex. A,” was executed by plaintiff at the request of Walter G-. Seibert and delivered to defendant by plaintiff in the presence of Walter Gr. Seibert, the acceptance of the instrument by Walter Gr. Seibert may be inferred. 1 Taylor Land, and Ten. sec. 167.

In Rigdon v. Conley, 141 Ill. 565, it was held that where an instrument in writing purporting to be a contract between two parties is executed by one party and delivered to the other and accepted by him as the contract between the two contracting parties, it is binding on both, though not executed by the party to whom it is delivered and by whom it is so accepted.

We think that under the evidence in this ease said instrument must be regarded as binding upon Walter G-. Seibert and giving the same effect as would be given to it if he had accepted it in writing. The question whether said instrument is a lease or only an agreement for a lease depends upon the intention of the parties to be collected from the whole instrument. The form of expression, “I agree to let or rent or lease,” is far from decisive upon this question. The words, “agree to let” have been held to mean exactly the same thing as the word “let” unless there is something in the instrument to show that a present demise could not have been in the contemplation of the parties. Doe v. Benjamin, 9 Ad. & Ell., 644. The test seems to be that if the instrument leaves nothing incomplete and there is nothing in it to show that another or more formal document was contemplated it operates as a present demise. 1 Taylor Land. & Ten., secs. 37, 38, 39; Kabbley v. Worcester Gas Co., 102 Mass. 329.

The majority of the court are of the opinion that the instrument in question is a lease and not an agreement for a lease. It creates a term beginning May 1, 1904, for a definite term at a definite rental. It provides for the payment of the water taxes and for the heating of the building. It leaves nothing incomplete, nor is there anything in the instrument to show that another or more formal instrument was contemplated.

It is no objection that the term was to commence in futuro. “It is a familiar rule that a lease may create a term to commence in futuro.” Weed v. Crocker, 13 Gray 219.

The contention of appellee in substance is, that from the payment of rent monthly by defendant to plaintiff a letting for month to month is implied, and that such tenancy was terminated by the thirty days’ notice given to defendant by plaintiff. The original letting in this case was, as we have held, by lease in writing for a term of five years from March 1, 1904, at a rental of $55 per month for the first year and $60 per month the next four years. From the payment of rent monthly a letting from month to month will not be implied where the letting was for a longer term upon monthly payments. McKinney v. Peck, 28 Ill. 174. A letting from month to month cannot therefore be implied from the payment of rent monthly in this case, unless in some manner the written lease had been canceled or the term thereby created determined.

The defendant carried on the business in which Walter G. Seibert was engaged at the time of his death, and thereby became his executor de son tort. 11 En. & Am. Encyc. of Law, 1346; Keith v. Perks, 4 New Bruns. 552. He was liable to the plaintiff as such executor de son tort as the executor de jure of Walter G. Seibert would have been liable for the rent reserved in the lease to the extent of the assets that came into his hands. He became liable to the plaintiff personally for such rent by taking possession of the demised premises, as an executor de jure of Walter G. Seibert would have become liable personally by such taking possession. He as such executor de son tort was subject to all the liabilities and disabilities of an executor. No act of Ms could lawfully change the right of Walter Gr. Seibert’s estate to the lease granted him by plaintiff. By the death of Walter Gr. Seibert the leasehold interest thereby created became part of his personal estate. An executor cannot surrender a term and take another lease in Ms own name. Keating v. Condon, 68 Pa. S. 75.

In tMs case there was no surrender by the defendant nor new lease taken by Mm. He took possession of the demised premises, but the lease thereof to Walter GL Seibert was in full force and he must be held to have taken possession under the lease as executor de son tort. He paid rent from month to month for twenty-two months, but he paid the precise amount of rent reserved by the lease. He was liable as executor de son tort to the plaintiff for the rent so paid, and such payments must, under the evidence, be held payments by him as executor de son tort of the rent reserved in the lease.- From such payments no new letting by the plaintiff to him from month to month can be implied.

The conclusion reached by the majority of the court from the evidence in this record is that said lease from plaintiff to Walter Gh Seibert was in force when tMs suit was brought, and the term thereby created outstanding and undetermined, and that the plaintiff was not then entitled to the possession of the premises in said lease and in the complaint herein described.

The judgment of the Circuit Court will therefore be reversed with a finding of facts, but the cause will not be remanded.

Reversed with finding of facts.

Mr. Justice Freeman, dissenting.


text:
    Mary A. Delaney v. Daniel O’Connor, Executor.
    Gen. No. 13,558.
    1. Accounting—when properly awarded. Held, under the allegations of the hill in this case, that it was appropriate to award an accounting as between the original complainant and the estate of her deceased husband.
    2. Appeal—when decree final for purposes of. Held, that the decree entered in this cause, awarding an accounting, was final and not interlocutory.
    Bill in equity. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed January 14, 1908.
    Rehearing denied January 28, 1908.
    George V. McIntyre, for appellant.
    Burton & Kannally, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal from an order dismissing a petition filed by appellant in a certain cause in equity in which she was one of the defendants. An order was made in said cause October 2, 1906, giving leave to file a petition instanter and ordering “the complainant, Daniel O’Connor, executor of the estate of Anne Clowry, deceased, to answer the same in ten days.” October 3d the petition yas filed. October 12th the motion of complainant to strike the petition from the files was set for hearing and the time to answer extended ten days. October 18th the order that the petition be stricken from the files was entered.

The transcript of record filed in this court is certified to be a complete transcript of the record from and including October 2, 1906, in a “certain cause lately pending in said court in chancery between Daniel O’Connor, executor, etc., complainant, and Ellen L. Clowry et al., defendants.” The clerk copied into said transcript the petition which had been stricken from the files. It is also set forth in full in the certificate of evidence taken on the hearing of said motion. The certificate of evidence states that on the hearing of said motion, complainant’s solicitor “read from the records in this cansó as follows,” and then follow extracts from papers filed and orders made in said cause from 1886 to 1897. No one of said papers or orders was offered in evidence. No one of them is set forth in full in the certificate of evidence.

From the petition it appears that appellant is one of the four daughters of Jeremiah Clowry, deceased, and that said children are the only surviving beneficiaries of a trust created by his will, the nature of which does not appear; that December 18, 1879, there was an accounting between the trustees under said will and Anne Clowry, the mother of complainant, by which it was found that' $3,045.76 was due from the trust estate to her.

The suit in which the petition, was filed was begun by a bill filed by Anne Clowry against appellant and her sisters June 28, 1885. It appears from the petition that the complainant in the bill had collected rents for the trust estate and had claims against said estate •for services and disbursements for the maintenance and education of the children of said Jeremiah Clowry. The petition avers that petitioner and her sister Ellen entered their appearance in said cause, and, failing to plead or answer, “a decree pro confesso was entered against them February 9, 1886, and there was a reference to a master in chancery for an accounting; that pursuant to the terms and provisions of said decree an accounting was had and stated before said master, and that by his report said master found due to said Anne Clowry, complainant herein, on the first day of June, A. D. 1887, the sum of $7,682.22 for disbursements and services to said estate previous to February 9,1886, and interest thereon to June 1, 1887, and that said report was on the 5th day of October, 1889, duly approved and affirmed by this court, and that in and by an interloctutory decree of said last mentioned date the court found and decreed said sum to. be due to said Anne Clowry from said estate, with interest thereon at the rate of six per cent, per annum from June 1, 1887.”

Anne Clowry was appointed trustee of the estate of Jeremiah Clowry by said decree.

The petition further avers that May 7, 1890, petitioner and the other defendants filed in said cause a petition for the removal of Anne Clowry as trustee; that Anne Clowry answered the petition and was ordered to file a report “of her acts and doings since said last accounting,” which report was also referred to a master, who made a report that there was due to her from said estate on some day not stated in the petition the sum of $8,987.55; that January 14, 1892, the court confirmed the report and decreed that said sum was due from said estate to said Anne Clowry, decreed her removal.as trustee, “and ordered her to further account to the date of her removal; that on said last accounting the court found that she was indebted to the estate of Jeremiah Clowry in the sum of $1,177.05, and a further decretal order was entered reducing the decree of January 14, 1892, to the sum of $7,810.50; that thereafter, on September 15, 1897, a further interlocutory decree was entered in this cause, finding that a certain sum of $2,000, which had been included in each of the previous decrees heretofore mentioned, had not been applied by said Anne Clowry as was intended, and said sum was deducted from the amount previously found due, and it was decreed that there was due her on September 15, 1897, the sum of $5,810.50 with interest.”

The petition further avers that the trustees, in the settlement made with Anne Clowry December 18,1879, made to her improper allowances; that the master in his report of the amount due her from said estate February 9, 1886, began with the amount found due on said settlement of 1879, and also made to her improper allowances and failed to make against her proper charges, and that the decree entered October 5,1889, finding that the sum of $7,682.22 was due Anne Clowry from said estate February 9, 1886, was therefore erroneous; that the master, in taking the account in 1892, improperly credited Anne Clowry with said sum of $7,682.22 and interest thereon from February 9, 1886, and the decree of January 14, 1892, which found that there was due her from said estate $8,987.55, and ordered her to further account to the date of her removal, was therefore erroneous, and that the decree entered upon such further accounting reducing the decree of January 14, 1892, to $7,810.55, was for the same reason erroneous; “that every decree and order entered in this cause respecting the money alleged to be due to said Anne Clowry, and the payment of same, is based upon the decree of October 5, 1889, and said decrees and orders would not have been entered by this court if the true facts regarding said original hearing before the master had been known to this honorable court, and each and every decree and order entered by this court under said circumstances is erroneous and unjust to your petitioner and the other defendants mentioned.”

The petition further avers that Anne Clowry died October 18, 1901, and by her will gave to each of her daughters only the sum of one dollar; that petitioner and her sister filed a bill to contest said will November 17, 1903, more than one year after the probate of the will, and for that reason their bill was dismissed.

All of the improper allowances alleged in the petition to have been made to Anne Clowry, and all of the failures to make against her proper charges, were, the petition alleges, so made in the account taken by the master July 1, 1887, of the amount due Anne Clowry from said estate February 9, 1886, which report of the master on such accounting was approved by a decree entered in the cause October 5, 1889.

The bill discloses a proper case for an accounting between Anne Clowry and the estate of her deceased husband. There were mutual accounts between her and the trust estate; in her favor for moneys expended for the care and education of the children of Jeremiah Clowry; in favor of the estate for rents and profits of property of the estate in her possession. The relations of the parties also made such an accounting under the direction of a court of equity proper.

The decree of October 5, 1889, decreed that there was due to her from said estate upon such accounting February 6,1886, $7,682.22. That decree was a decree in a bill for an accounting with the trust estate to which all the beneficiaries were made defendants, and clearly was a final decree.

The fact that the bill was also a bill for the appointment of a new trustee of the estate of Jeremiah Clowry does not affect the nature or effect of the decree upon such accounting.

We are also of the opinion that the decree entered upon the accounting between Anne Clowry and the estate after her removal as trustee was also not interlocutory, but final. The question upon such accounting was as to the state of the account between her and the estate. The account thus settled and adjudicated was a final, not a current, account. Petitioner and the other beneficiaries were parties to the suit; they had a right to contest the claim of their mother before the master and before the court and the right to appeal.

The question of the amount due from the trust estate to Anne Clowry personally and as trustee was, by the decree, finally adjudicated. This is apparent, unless it be held that the settlement by the decree of a court of chancery of the final account of a trustee after removal is a mere idle ceremony not binding on the parties thereto.

It does not appear what proceedings were had when the order of September. 15, 1897, was entered modifying the decree of January 14, 1892. It may have been a consent order, and, if not, the making of that order cannot affect the right of the court further to modify the decree. It is immaterial that the petition avers that each decree in the cause was interlocutory. The right to relief dépends upon the facts stated in the petition, not upon the statement of mere conclusions of the pleader.

Seventeen years after the decree was entered upon the accounting between Anne Clowry personally and the estate of her deceased husband; fourteen years after her removal as trustee and the entering of a decree approving her accounts as trustee up to the date of her removal and decreeing that a certain sum was then due her from the trust estate, the petition in this case was filed.

We think that the Circuit Court had then no authority to vacate or modify, upon petition, any of the orders or decrees thereby sought to be vacated or modified, and the order dismissing the petition will be affirmed.

Order affirmed.


text:
    John Chwala v. Margaret Herbert.
    Gen. No. 13,598.
    1. Tbial—power of trial court to postpone. The conduct oí trials, as to permitting delay, is left to the sound discretion of the trial court, and unless an abuse of discretion appears, the action of the trial court in refusing to postpone the examination of a witness will not constitute ground for reversal.
    2. Tbial—when action of court in refusing to postpone, not subject to review. The action of the trial court in denying leave to postpone the examination of a witness is not subject to review where it does not appear what the party seeking to call such witness expected to prove by him.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Geobge A. Dupuy, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed January 14, 1908.

      Frederick K. Warne, for appellant; Josiah Burnham, of counsel.
    Lee, Lee & Schuchardt, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

In an action on the case to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of the driver of a delivery wagon of the defendant, plaintiff had a judgment for $350, and the defendant appealed.

Plaintiff, then nine years of age, started to cross Garfield avenue from a point a few feet west of the northwest corner of Clark street and Garfield avenue. The delivery wagon of the defendant, coming from the north on the west side of Clark street, turned west into Garfield avenue and struck plaintiff, inflicting the injuries complained of.

During the trial it was agreed by counsel that the plaintiff might call a doctor the next morning. Defendant examined all his witnesses who were present and so stated to the court, and asked to be permitted to call another witness next morning. The court announced that each party might examine a doctor the next morning. Defendant’s counsel, at the conclusion of the examination of a witness, announced that he had no other witness present, and asked to be permitted to examine a witness, not then present, the next morning. The court ruled that each party might the next morning examine one doctor, and that no further testimony, other than that of said doctors, would be heard, to which ruling the defendant excepted, and neither party then offering any further evidence, the court adjourned for the day.

The conduct of trials as to permitting delay must necessarily be left to the sound discretion of trial courts. Brewer v. N. U. Bldg. Ass’n, 166 Ill. 221. We cannot say there was an abuse of that discretion in ruling that defendant should not be permitted to examine the next morning a witness who should have been present, and if present might then have been examined.

There was no statement as to what the defendant expected to prove by the witness whom he wished to examine the next morning, and this was necessary to save for review the ruling of the court refusing leave to then call such witness. Winslow v. Newlan, 45 Ill. 145; Brewer v. N. U. Bldg. Ass ’n, supra.

We find no error in the refusal of the court to give the instructions asked by the defendant.

We think that, on the evidence in the record, the questions whether the defendant was guilty of the negligence alleged in the declaration, whether the plaintiff was injured thereby, and whether plaintiff was in the exercise of reasonable care for her own safety, were all questions on which the verdict of the jury must be held conclusive.

The judgment will be affirmed.

Affirmed.


text:
    John Hochreiter v. Anna Hochreiter.
    Gen. No. 13,606.

      Divorce—when right to temporary alimony sufficiently appears. In. an action for divorce, where the marriage is denied, temporary alimony should be awarded where the proof shows probable cause or .a fair probability that the allegation of marriage will be sustained.
    Divorce. Appeal from the Superior Court of Cook county; the Hon. Wiixabd M. McBwen, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed January 14, 1908.
    John J. Swenie and T. F. Monahan, for appellant.
    Novak & Pollack, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

To a sworn bill for divorce filed by appellee against appellant, alleging that the parties were married in December, 1893, and setting up grounds for divorce, defendant filed the following sworn negative plea, omitting the formal parts. The defendant for plea, etc., denies “that he ever was or is married to the complainant, and he denies that he is the husband of the complainant.” With her bill complainant filed her sworn petition for temporary alimony and solicitors’ fees. Upon the hearing of this petition complainant and defendant testified in open court, and their testimony was the only evidence heard. The court entered an order that defendant pay $12 per week alimony and $100 solicitors’ fees, and from this order defendant prayed, was allowed and perfected an appeal. Subsequently, at the same term, the court entered an order that said former order be amended nunc pro tunc as of the day it was entered, by fixing the alimony to be paid at $8 per week.

The present appeal brings before us for review only the order that the defendant pay temporary alimony and solicitors’ fees. The other interlocutory orders made in the cause can only be reviewed upon appeal from a final decree.

The facts testified to by the complainant are sufficient to establish a common law marriage between the parties late in 1892 or early in 1893, followed by cohabitation as husband and wife until December, 1906.

Defendant testified that he became acquainted with complainant late in 1893; that she was then a prostitute, and so told him; that he had intercourse with her and paid her money; that soon afterwards he went to live with her and continued to live with her until December, 1906, when they quarreled and he left her. He was asked on cross-examination whether he had not written complainant a large number of letters addressed to her as “My dear wife,” and signed “Your loving husband Joe,” and answered “I might have.” He was asked whether he did not introduce her to his relatives and friends as his wife, and answered, “I cannot say whether I introduced her as my wife, neither will I say that I did not.”

In Bowman v. Bowman, 24 Ill. App. 165, it was said, p. 176: “While in an application for alimony the fact of marriage, if denied, must be proved, yet where it is practically the only fact in issue on said motion, as it is in this case, the proof should not be required to go beyond establishing probable cause or a fair probability that the petitioner will maintain her allegations.” In that case the court cited and quoted from Brinkley v. Brinkley, 47 N. Y. (5 Sickels) 184, in which it was held that if the putative wife make out a reasonably plain case of the existence of the marital relation, she should be furnished with the means of temporary support and of conducting the suit until the truth or falsity of her allegations can be ascertained by the proofs taken in the case. In both of the cases above cited the marriage alleged was a common law marriage.

We cannot say that upon the evidence in this record the chancellor was not authorized to enter the order appealed from, and the order will therefore be affirmed.

Affirmed.


text:
    Consuelo Fould DeGrasse, Appellee, v. The H. W. Gossard Company, Appellant.
    Gen. No. 14,113.

      Appeal—when decree not final for purposes of. A decree rendered upon a bill for accounting which establishes the right to the accounting, is interloctutory and not final.
    Bill for accounting, etc. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Wikdes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Appeal dismissed.
    Opinion filed January 14, 1908.
    Rehearing denied January 24, 1908.

      Hoffmann & Carr, for appellant; Leon S. Alschuler, of counsel.
    Shope, Zane, Busby & Weber, for appellee; Hayes McKinney, of counsel.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is a motion by appellee, complainant in the Circuit Court, to dismiss the appeal on the ground that the decree appealed from is interlocutory only, and not final.

The bill, as amended, avers that complainant was the owner of United States letters patent No. 703,191, covering a certain device in busks for corsets; that she entered into a contract in writing with defendant, which is set forth in the bill; that by mistake the number of said letters patent stated in said contract was 803,191, in place of 703,191. The contract set forth in the bill bears date August 1, 1903; it provides that the defendant shall have the exclusive right to manufacture and sell in the United States corsets embodying said improvement during the life of the patent; that it shall pay complainant, as a royalty or license fee, four francs on each corset manufactured, and shall manufacture at least 2,160 corsets each year; that it shall make to complainant quarterly reports of the number of such corsets manufactured and sold; that in case of failure to make such reports, complainant may, by giving the notice therein specified, terminate such license; that if at the end of any year the sums paid as license fees shall not have amounted to at least $1,728 for each year, complainant may, by giving like notice, terminate the license; that such termination of the license shall not discharge the defendant from liability to the complainant for license fees due at the time of such termination.

The bill then avers that defendant has manufactured a large number of corsets embodying said improvement; that it has failed to keep proper books, failed to make any reports to complainant or to pay any license fees to complainant; that October 14, 1905, because of such failure, complainant, by" notice pursuant to the terms thereof, terminated said contract and demanded of defendant the return of said original letter's patent and an accounting under said contract, but defendant has refused to return said letters or to account to complainant for the sums due her under said contract; that other persons and corporations have manufactured and sold large numbers of said corsets for the defendant and by and under its direction and authority; that the number of corsets embodying said invention sold by the defendant and by others for it and under its direction has been in each year largely in excess of said minimum number of 2,160; that the number of corsets so manufactured and sold is not known to complainant and cannot be ascertained except upon an accounting; that the accounts, records and information in relation to the manufacture and sale of said corsets are exclusively under the control and within the knowledge of the defendant, its officers and agents, and that complainant is, by reason of the premises, entitled to an examination and inspection of defendant’s books and records.

The bill prays for a discovery of the number of corsets manufactured or sold, etc.; that the contract may, as to the mistaken description of said letters patent, be reformed; that said contract may be enforced; that the defendant" may be directed to produce its books, etc., for the inspection of complainant; that an accounting may be had as to the amount due complainant from defendant under said contract; that defendant be decreed to pay the amount so found due, and for general relief.

The defendant demurred to the bill, its demurrer was overruled, and the defendant elected to stand by said demurrer and “waived plea or answer to said amended bill of complaint.” The decree appealed from was then entered. It must be regarded as a decree on a bill taken as confessed, although there is in the record no order that the bill be taken as confessed by the defendant. “The demurrer by a defendant and the decision against him by the court are fully equivalent to taking the bill as confessed by him.” Savage v. Berry, 2 Scam. 545, 548.

We do not deem it necessary to consider the findings of fact contained in‘the decree, but only the adjudications and orders therein contained. It declares that said contract should be corrected in respect to the numbers of the letters patent, and orders that such correction be made; it orders that defendant account to complainant for all corsets embodying said improvement manufactured and sold by it, or by others for it, or on its behalf, from August 1, 1903 to December 14, 1905; it refers the cause to a master to take and state the account between the parties; orders the defendant to produce before the master its book and papers; orders that the master charge the defendant with $1,728 per year for the period from August 1, 1903, to October 14, 1905, amounting to $3,792, and further charge the defendant with four francs for each corset embodying such busk improvement, which the master shall, from the proofs, find was manufactured and sold by defendant, or others for the defendant, from August 1, 1903, to December 14, 1905, in excess of the minimum of 2,160 in said contract provided. It then sets out in much detail the matters and things which, at the hearing before the master, the defendant shall “discover, disclose and answer,” all of which matters appear to relate to the number of such corsets manufactured and sold by defendants or by others for it. The decree concludes as follows: “8. That the court retain jurisdiction hereof for the purpose of entering such further order and decree herein as the case may require. ’ ’

If the purpose and scope of the bill was only to reform the contract and enforce it by a decree that the defendant pay to complainant $1,728 per year for the period from August 1, 1903, to October 14, 1905, there would be much force in the contention that the decree is final. But the scope of the bill is much wider. It alleges that the defendant manufactured and sold or caused to be manufactured and sold many more corsets than 2,160 each year, the minimum number upon which the right to a decree for $1,728 for each year is based. Complainant, by the bill, seeks to compel the defendant to account to her for all the corsets embodying her invention manufactured and sold by it, or by others for it, up to the time the license was terminated, and to charge the defendant not only with $1,728 per year, but, in addition thereto, with four francs for each corset so manufactured and sold in excess of 2,160 in any year, and the decree orders that the defendant so •account and be so. charged.

In the notes to 2 Daniels ’ Chan. Prac. 986, it is said that “The.courts have not laid down any satisfactory definition of what is an interlocutory decree. * * * Generally, where anything is to be done to complete the decree which is the subject of exception or appeal, it is not final, but interlocutory. ’ ’

In Cooke v. Gilpin, 1 Rob. Va. 20, Mr. Justice Baldwin said, p. 27: .“Where the further action of the court in the cause is necessary to give completely the relief contemplated by the court, there the decree upon which the question arises is to be regarded not as final, but interlocutory. I say the further action of the court in the cause, to distinguish it from that action of the court which is common to both final and interlocutory decrees, to wit, those measures which are necessary for the execution of a decree that has been pronounced, and which are properly to be regarded as adopted, not in, but beyond, the cause, and as founded on the decree itself or mandate of the court, without respect to the relief to which the party was previously entitled upon the merits of his case.”

It would seem from the last clause in the decree that the court only intended such decree to be interlocutory, and not final as to any of the grounds of relief set up in the bill. But however that may be, at least one material ground of relief set up in the bill, the right to an accounting and a decree of four francs for each corset manufactured and sold in any one year in excess of 2,160, remains undisposed of, and a party cannot bring a case up for review piecemeal. “A cause must be finally disposed of in the court below before either party can appeal.” Sholty v. Sholty, 140 Ill. 81-89.

The decree that the defendant account to complainant, and in such account be charged four francs for each corset manufactured in any year in excess of 2,160, is clearly not final. It is the common interlocutory order or decree entered when the complainant is entitled to an account. Before the master, either party may except to his draft report as to the number of corsets in excess of 2,160 manufactured and sold by or for the defendant in any one year, and on the coming in of his report may except thereto before the court and appeal from the decree then entered.

The decree in the case before us being interlocutory only, the appeal must be dismissed.

Appeal dismissed.


author: Mr. Justice Smith

text:
    The Sargent Company v. Naaman Shukair.
    Gen. No. 13,602.
    1. Fellow-servants—how question of existence of relation of, determined. Whether the plaintiff at the time of his injury was so co-operating or consociating with other servants of the defendant, his master, is a question of fact and not of law.
    2. Fellow-servants—when relation of, does not exist. Held, under the evidence of this case, that the jury were warranted in finding that the plaintiff while engaged in preparing cores, moulds, etc., was not a fellow-servant of other employes of the defendant.

      Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Lockwood-Honoré, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed January 14, 1908.
    Statement by the Court. This appeal is from a judgment in favor of the plaintiff Shukair for $1,800 against the defendant, The Sargent Company, rendered by the Circuit Court January 26, 1907.
    The plaintiff was a servant of the defendant, working in its foundry in the city of Chicago. "While so employed he received an injury which resulted in the loss of the sight of one eye.
    It was plaintiff’s work to follow immediately behind the gang of men who were filling moulds with molten iron, in the process of making certain castings, and look into the mould to see whether enough molten iron had been poured into it, and if so, to throw a small shovelful of sand on it. If enough molten iron had not been poured into the moulds, it was plaintiff’s duty to call the attention of the foreman to the fact that the mould was not full enough, and thereupon the men would return to the mould and pour more of the molten iron into it. The plaintiff was injured while he was about to look into the mould for the purpose indicated. Before he had ascertained whether the mould was full enough, the molten iron “popped” or exploded and some of the hot metal was thrown up through the hole where it had been poured into the mould and struck plaintiff in the eye, destroying the sight.
    F. J. Canty and J. C. M. Clow, for appellant.
    William R. Moss, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

No question is presented in argument arising upon the pleadings, or instructions, or rulings upon evidence. Appellant’s sole contention is that the trial court should have instructed a verdict for the defendant, because the evidence shows that if appellee’s injury was the result of any negligent act, such act was the negligence of one of appellee’s fellow-workmen, and appellant is not liable.

Whether appellee was so co-operating or consociating with appellant’s other servants as to exempt appellant from liability for injury received, was a question of fact for the jury, and not of law for the court. C. & N. W. Ry. Co. v. Moranda, Admx., 108 Ill. 576, 581.

In the case just cited it was held: “In order to constitute servants of the same master, fellow-servants, within the rule respondeat superior, it is not enough they are engaged in doing parts of some work, or in the promotion of some enterprise carried on by the master, not requiring co-operation nor bringing the servants together or into such personal relations that they can exercise an influence upon each other pro-motive of proper caution in respect of their mutual safety, but it is essential that they shall be, at the time of the injury, directly co-operating with each other in the particular business in hand, or that their usual duties shall bring them into habitual consociation, so that they may exercise an influence upon each other promotive of proper caution. ’ ’

The testimony shows that the foundry floor where the accident happened is a large floor with its greatest dimension extending north and south. The furnace where the iron is melted is at the north end. Flasks made of iron and consisting of two parts or halves were used. Each half was filled with sand, which is tamped hard around the forms of the castings to be made, so that when the top flask is put over the bottom half a hole or space is left which is the exact form and size of the casting to be made.

All or nearly all of the castings made during the period of appellee’s employment by appellant were of the same kind and character. They had a hole through them about an inch and a half in diameter, and as long as the casting was thick. In order to make this hole they used what was called a core. This core was made of a mixture of sand and other materials. Before the top half of the flask was set over the bottom half this core was set in the bottom half, so that it would bring the hole in the proper place in the casting. The top half of the flask was then put on, thus entirely closing this core in the flask or mould. A hole about an inch and a half or two inches in diameter was left in the top half of the flask, through which the molten iron was poured to make the casting. Immediately over this hole was placed a runner cup which served merely as a funnel. This runner cup was made of a mixture of sand and other materials and was about five inches in diameter, and about six inches long. A funnel-shaped hole ran through it, and as the cup sat on the mould the wide end or mouth of the funnel was up and the small end down, and connecting with the hole in the top part of the flask.

In order to provide for the free escape of certain gases generated by the heating of the core when the molten iron was poured in, a hole was made nearly through it lengthwise, about the size of an ordinary rye straw. After the core had been placed in a mould and the top part of the flask put in place, a hole of the same size was punched through the sand of the top part of the flask to connect with the hole in the core. This formed a vent for the mould, and enabled any gases generated in the mould to escape freely. , When the moulds or flasks were thus prepared, they were picked up by a traveling crane and placed in three rows of about seventy flasks in each row.

Appellee had nothing to do with any of the above work, except to make the runner cup, which he did in a room by himself while the above described work was being done by the moulders in the large foundry room. Evans, a boy, made the cores while appellee worked in the foundry. Other servants made the top and bottom parts of the flasks; another workman placed the cores in the bottom half of the flasks; others placed the top halves of the flasks on the bottoms; other workmen, by means of the traveling crane, picked up the flasks and placed them in position; another workman placed the runner cups on the tops of the moulds.

The testimony shows that the runner cup is not a part of the mould; that the cores are a part of the mould; that when a flask was set in position ready to be filled it was impossible to tell whether it was properly made in all respects or not, and the core could not be seen. When everything was made ready for “pouring the heat,” appellee was notified and then joined the pouring gang. His duties with the gang are described in the statement preceding this opinion. The pouring was done twice in the day, once in the fore-' noon and once in the afternoon. This required about an hour on each occasion.

It appears from the evidence that while the pouring was being done, the flasks would explode, or “pop,” as it is called by the witnesses. By this is meant that, as the result of various causes, the molten iron in the flask would be forced out of the flask suddenly, through the hole in the top or through the running cup, and particles of it would be thrown into the'air two or three feet. These poppings are divided by the witnesses into two classes or kinds. One class of pop-pings is caused by the presence in the sand of the mould of some foreign substance, such as a piece .of iron or nail or wood. If the molten iron comes in contact with any such foreign particle, the molten iron is made to “pop.” When the popping is caused in this way, it occurs immediately when the mould is filled and before the ladle can be moved on to the next flask. The other class of poppings is caused by some defect in the vent already spoken of; and when a flask is caused to pop by a defective vent, or by some obstruction in the vent, it will not occur immediately on the filling of the flask, as in the case of the other class of poppings, bnt it will occur after the lapse of a few seconds and during the time in which the ladle was passed on to the first or second flask beyond.

When appellee was injured, the men were filling the third flask ahead of him, and the flask into which he was looking, as it was his duty to do, to see whether it was filled properly, popped, throwing the hot iron into his eye. The inference is obvious, therefore, that it was caused by defective venting of the flask. The testimony of the witnesses familiar with such matters tends to show that the popping in this instance was caused by a defective or obstructed vent, and to eliminate every other cause.

It appears from the evidence that a defective vent might be made in several different ways. If the person who makes the core fails to put a hole in it, or if he fails to make the hole deep enough, it would cause such a popping as occurred on this occasion. If the person who places the core in the bottom half of the flask before the top half is placed upon it should put the wrong end of the core up, it would cause the mould to pop. If the person who makes the vent hole through the top half of the flask after it has been placed on the bottom half fails to make the hole connect with the hole in the core, or fails to make any hole, it will cause the flask to pop. If while the flask is being moved by the crane to its position in the row of flasks it is bumped or jarred so as to disturb the connection of the hole in the top part of the flask with the hole in the core, this will make an obstruction in the vent which will cause the flask to' pop. Or, if in moving the flask it should be jarred so that particles of sand. should fall and partly fill up the vent hole, it would cause the flask to pop.

The evidence shows that in this foundry the cores were made in a room apart from the room in which appellee made runner cups, and apart from the room where the moulders were at work.

In onr opinion, the jury were warranted in finding from the evidence that appellee was not consociated with any of the workmen while engaged in preparing the cores and moulds and placing them in position ready for “pouring the heats,” in any such manner that he could exercise an influence upon them or they upon him in their work, promotive of proper caution in respect to their mutual safety; and that they were brought together only in the act of pouring, and that therefore they were not fellow-servants. Upon a careful review of the evidence, we think it supports the finding of the jury. Appellee, in the discharge of his duties and the performance of his work, had no opportunity for such association with the core makers, moulders and handlers of the flasks as would bring him within the fellow-servant rule. The evidence shows that when a mould is properly made and remains in good condition the molten metal when poured into it will lie in the mould as quietly as water when poured into a bucket. The inference from the evidence is not only reasonable, but clear, that the explosion or popping in question was occasioned by a defect in the core or vent, and that such defect was occasioned by the negligent act of one or more of appellant’s servants in preparing or handling the mould prior to the time the pouring began, for which appellant must be held liable.

Appellant requested, and the court gave, instructions, numbered in the abstract one, four, six, eight, twelve and fourteen, on the question of the assumption of risk on the part of appellee. We find no evidence, in the record tending, to show that appellee was noti.fied of the defect in the mould in question, or that such defect was patent, or that he knew of the danger. On the question of assumption of risk we think the verdict is right, on the evidence, and must be sustained.

The evidence points to the fact that appellant, through its servants, was negligent. It shows that- any one of several causes might have brought about the injury, but does not show clearly which cause produced it. The appellant, however, in our opinion, is responsible for all the defects in the vent above enumerated. We cannot perceive, therefore, the application of the doctrine announced in Moore Lime Co. v. Johnson (Va.), 48 S. E. Rep. 557; Taylor v. City of Yonkers (N. Y.), 11 N. E. Rep. 642; and Patton v. Tex. & Pac. Ry. Co., 21 Sup. Ct. Rep. 275, cited by appellant, to the case at bar, for the reason that those cases hold that when the testimony leaves the cause of the injury uncertain, and shows that any one of a number of causes may have caused the injury, for some of which the employer is responsible, and for some of which he is not, it is not for the jury to guess between the real causes when there is no satisfactory foundation in the evidence on which to base a conclusion.

The record is apparently free from error and the judgment is therefore affirmed.

Affirmed.