text:
    Dominick F. Curley, Trustee, Defendant in Error, v. Ella R. Ford et al., Defendants in Error, and John Kause et al., Plaintiffs in Error.
    Gen. No. 15,673.

      Pleadings — when contracts inadmissible. Where contracts are sought to he made the basis of relief prayed they must he rendered relevant by suitable allegations contained in the bill of complaint.
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed March 14, 1912.
    Statement by the Court. This is a companion case to No. 15672 between the same parties, in which an opinion is rendered at this term of court. Ante, p. 525. The facts in the two cases are very nearly the same. In this case the trust deed made by Ella Ford and husband to Dominick F. Curley, trustee, is dated April 19, 1907, and was given, to secure a note of same date, made by the same parties, for $1,224, due on or before two months after date.
    John W. Burdette, for plaintiffs in error.
    E. A. Aborn, for defendants in error.
   Mr. Justice McSurely

delivered the opinion of the court.

This decree must he reversed for the same reasons that are given in a similar suit between the same parties, No. 15672, decided at the same time with this. There is only one difference in this case requiring any comment in addition to what we said in our opinion in the other case. In the case at bar some attempt is made to show the terms of the trust by which Ella Ford'held title to the premises. The bill alleges “that said Ella E. Ford held the title to the premises aforesaid described in trust for herself and one John Kause, as will more fully appear from an agreement between said John Kause and Charles C. Ford, agent for said Ella E. Ford, ready to be produced in court on the hearing hereof.” Also, “that said John Kause and Ella E. Ford have agreed upon a division of the premises aforesaid, and that said Ella E. Ford shall have and hold Lots 23, 24 and 27 aforesaid, and that John Kause shall have and hold Lots 25 and 26 aforesaid, as will more fully appear from an agreement between said John Kause and Charles C. Ford, agent for said Ella E. Ford, ready to be produced in court.”

Under these allegations there were introduced in evidence two written agreements, both between Charles C. Ford and John Kause. By the first agreement, dated December 6, 1906, Charles C. Ford and John Kause agreed to co-operate in buying and moving five houses on Canal and other streets to Emerald avenue, between 31st and 32nd streets, Charles Ford to furnish the money and then to make first mortgage on said property. Said lots were to be used to reimburse said Ford for all money and expenses in buying and moving said houses and buying lots; the equities in the houses to be divided by agreement, Ford to have three-fifths and Kause two-fifths. It was also agreed if loans could not be placed on said houses for enough to reimburse Ford for all money expended by Mm in buying said houses and lots and moving said houses, and all expenses, each would pay their proportionate share of any deficiency thereof.

The second agreement, dated April 10,1908, between the same parties refers to the prior agreement of December 6, 1906, as an agreement to improve the lots in question, and therein it is stipulated that said premises should be divided, — the share of said Charles C. Ford to be three-fifths and the share of the said John Kause to be two-fifths. It was” further agreed that Charles C. Ford should receive lots 23, 24 and 27, and John Kause should receive lots 25 and 26; also “that the said lots shall bear their proportionate share of the costs of said premises, including all improvements thereon as may be determined in the suit heretofore filed in the Circuit Court of Cook county, Illinois, General No. 281614, Charles C. Ford and Ella E. Ford, complainants, and John Kause and Anna F. Kause, defendants.”

There is nothing in either of these agreements concerning Ella Ford’s connection with this property, nor anything disclosing what were her duties and powers under the trust agreement, by which she held title. There is no testimony offered nor any evidence on this point. "This last agreement refers to a suit apparently then pending in the Circuit Court, which was to determine the proportionate share of the costs of said premises; but no evidence of such suit is offered, nor have we any knowledge from the record of what', if anything, was done in that suit. We fail to see how these agreements were relevant to any allegation contained in the bill. They may disclose some basis for a proceeding seeking an accounting between Charles C. Ford and John Kause, but certainly nothing touching the allegations of Curley, as trustee, the complainant in this foreclosure proceeding. The general prayer for an accounting in a bill to foreclose a trust deed, with no cross-bill seeking relief, does not entitle one defendant to a judgment against a co-defendant, where the bill alleges no facts creating any obligation of one to the other.

Holding, as we do, that these agreements are irrelevant and inadmissible under any of the allegations of the bill, the suit is controlled by the same reasoning and authority as is the companion suit to this. Here, as there, it appears that Ella Ford, the maker of the note, took it from the holder and owner, Curley, for its face value, with interest. This, in our opinion, extinguishes the debt and the lien of the trust deed upon the premises in question. For a statement of our reasons and authorities, we refer to our opinion in the other ease between the same parties, No. 15,672.

The decree is reversed and the cause remanded, with instructions to dismiss the bill for want of equity.

jReversed and remanded.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    William Simon, Defendant in Error, v. Griffin Wheel Company, Plaintiff in Error.
    Gen. No. 16,156.
    1. Instructions — when refusal as to effect of failure to introduce evidence reversible error. Held, that it was error for the court to refuse to instruct the jury “that from the mere fact alone that the defendant offered no evidence the jury is not warranted in drawing any inference against the defendant.”
    2. Negligence — what essential to recover. In order to recover for personal injuries charged to have resulted from the negligence of the defendant, it must appear not by speculation or hy guess hut hy competent legal evidence that the defendant was guilty of some negligent conduct which resulted in the injury sued for.
    Action in case for personal injuries. Error to the Municipal Court of Chicago: the Hon. William N. Cottrell, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed with finding of fact.
    Opinion filed March 14, 1912.

      Frank M. Cox and B. J. Fellingham, for plaintiff in error.
    Balph F. Stern, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an action on the case to recover for personal injuries received by the plaintiff, William Simon, while working for the defendant, the Griffin Wheel Company.

On August 1, 1907, the Griffin Wheel Company was engaged in manufacturing car wheels. Simon was employed by the defendant for nine months at a period prior to the period of employment during which the accident occurred. He had been working for the defendant for three months immediately prior to the accident. During this latter employment his work was rolling car wheels which weighed between 600 and 700 pounds from cars into the yard. On the date of the accident he was ordered to roll the wheels from a car into a building called a “drop” or “drop-house.” This was a building of a single room, into which old car wheels were rolled and then broken up into scrap iron by a heavy drop or weight falling on them with great force. The floor of the drop-house was about ten or twelve feet square and was constructed of hardwood planks, resting on cross-pieces. Between the cross-pieces cinders were tamped in, so that the planks rested on the cinders as well as on the cross-pieces. There were some holes knocked in the floor, presumably by flying pieces of iron. There were several entrances into the drop-house, the one in question being at the southwest corner. Two or three feet from this opening or dooiway was a barrier of heavy planks, to prevent pieces of iron flying out while wheels were being broken. This barrier prevented a direct entrance into the doorway; it was necessary to pass be-Mud it and then turn into the doorway. The car from which plaintiff was unloading the wheels stood on a track four or five feet south of the drop-house, and plaintiff testifies that never before the time of the accident had he rolled wheels into the drop-house, but had rolled them from the cars on this track along- the platform in front of the drop-house into the yard. He had, however, passed through the drop-house twice before. Upon the day in question plaintiff rolled a wheel on a plank from the car, then across the wooden platform, and thence into the drop-house. When he reached a point about a foot and a half or two feet inside the drop-house, another wheel which had been standing straight against the inside wall near the door, fell and struck him on the leg, “pressing him onto a pile of scrap.” Plaintiff testified that the injury to his leg prevented him working for about five months.

The case had been tried twice, the first time resulting in a verdict for the plaintiff, and the damages were assessed at $500. A motion for a new trial was made and granted, and upon the second trial the jury found the defendant guilty and assessed the damages at $200. Judgment was entered on tMs verdict. No evidence was offered on behalf of the defendant, and at the conclusion of the plaintiff’s case the defendant requested the court to give an instruction finding the defendant not guilty, which motion was denied and the written instruction tendered was marked “refused.”

The court instructed the jury orally, and at the conclusion of the oral charge defendant’s counsel requested the court to instruct the jury “that from the mere fact alone that the defendant offered no evidence the jury is not warranted in drawing any inference against the defendant.” Thereupon the court stated: “The court refuses that instruction; they are permitted to draw inferences.” Defendant’s counsel then asked: “From the mere fact alone that the defendant offered no evidence?” And the court replied, “Yes.” These proceedings were in the presence and hearing of the jury. We are of the opinion that the refusal to give the instruction requested, and making the statement above mentioned, by the court in the hearing of the jury, was prejudicial error. Gibbons v. Chapin & Gore, 147 Ill. App. 575.

In the original statement of claim the negligence alleged is that defendant provided plaintiff with a dangerous and unsafe place to work, in that plaintiff was compelled to work near and about certain large and heavy wheels which were likely to and would fall, which fact defendant knew or ought to have known, and plaintiff did not know, and that one of said wheels rolled and fell upon plaintiff. It is at once obvious that there can be no recovery on this claim. The fact that these wheels were heavy and liable to roll and fall was an ordinary hazard incident to his employment, and as well known to plaintiff as to anyone.

On the second trial, after all the evidence had been heard and the cause argued to the jury, plaintiff was permitted to file his amended statement of claim over the objection of defendant. In this amended statement of claim the negligence of defendant is alleged to be the furnishing to the plaintiff of an unsafe and dangerous place to work, in that, the floor of the place in which plaintiff was working was unsafe and dangerous. Most of the evidence and the argument concerns the condition of the floor in the drop-house, with special reference to whether or not the wheel fell on plaintiff because of the shaking of the plank on which it stood. We have read the record of all the evidence heard on the trial. There is nothing therein which informs this court as to what caused the wheel to fall. There is nothing said by anyone as to who placed the wheel in its position next to the wall, apparently standing straight against the wall. Only one witness attempts to give any explanation. His opinion is that the plank shook. He says he did not see the plank on which this wheel was standing shake, but he argnes that “it had to shake,” presumably from the fact that rolling these heavy wheels across the floor would cause the planks to shake more or less. The only statements touching the shaking of the plank are of so inferential and argumentative a nature as to furnish no basis for believing that this was the cause of the wheel falling. There is also good ground for believing that the barrier across the doorway of the drop-house prevented anyone seeing the cause of the accident. However, assuming that there was some evidence tending to show that the floor shook when car wheels weighing over 600 pounds were rolled over it, was not this one of the ordinary hazards incident to the employment of plaintiff? We think it was. It is equally apparent that this fact would be as well known to the plaintiff as to the defendant. He must have observed during his three months of handling heavy car wheels that the planking over which they rolled would shake more or less. The fact that this shaking at the time of the accident may have occurred in the planking of the drop-house makes no material difference.

The evidence wholly fails to show that the accident resulted from any negligence of the defendant. The floor of the drop-house was constructed of hardwood planks laid on cross-pieces, between which were cinders tamped even with the top of the cross pieces, so that the planks lay on the cinders and the cross-pieces, apparently a solid foundation. The only evidence as to a defect in the floor is summed up in the statement that “the floor was old; the boards of the floor were old and there were holes knocked into them.” While this evidence may be relevant under the allegations of the statement of claim that the floor was unsafe, there appears no connection whatever between the age of the boards or the holes in them, and the falling of the wheel. As to the shaking of the floor, defendant could hardly have been expected or required to build a floor which would be entirely free from vibration or shaking while heavy car wheels were being rolled across it. The absence of any negligent conduct by the defendant which resulted in the accident complained of makes this judgment against it erroneous. Sack v. Dolese, 137 Ill. 129; Diamond Glue Co. v. Wietzychowski, 227 Ill. 338.

Attorney for plaintiff urges the general proposition that a verdict may well be founded on circumstances of which the jury is the best judge, but in the case at bar to allow this judgment to rest upon the evidence presented would be to permit a judgment based upon mere speculation as to the facts. The jury should not guess as to the fact of negligence. In our opinion the trial court committed reversible error in refusing to give to the jury, at defendant’s request, an instruction requiring the jury to bring in a verdict of not guilty.

We find that the defendant was not guilty of negligence as charged.

For the reasons above stated this judgment is reversed.

Reversed with finding of fact.


text:
    Jacob Manz, Defendant in Error, v. Francis V. Walcott, Plaintiff in Error.
    Gen. No. 16,200.

      Verdicts — how excessiveness may be cured. If the verdict does not appear to Rave resulted from prejudice or other improper motive its excessiveness may he rectified hy the entry of a remittitur.

    Action in case. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed on remittitur.

    Opinion filed March 14, 1912.

      Remittitur filed March 19, 1912.
    Charles A. Churan, for plaintiff in error.
    Sol Levisohn, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an action on the case to recover for personal injuries sustained by Jacob Manz, hereafter called the plaintiff, caused by being struck by an automobile driven by Francis Y. Walcott, hereafter called defendant.

In May, 1909, the plaintiff, Manz, was a passenger on a south-bound street car, which stopped near a cross street to permit him to alight. He alighted from the front platform, and says he glanced north and south and saw nothing. He then proceeded to walk towards the sidewalk. When about half way from the car to the curb he was struck by an automobile driven by the defendant, which was going in a southerly direction along side the street car. No warning by a horn or otherwise was given by the defendant as he approached the place in question. He was not going very fast, and says that just as soon as he saw the plaintiff get off the street car he “turned on the brakes,” and in the endeavor to avoid hitting the plaintiff directed the automobile towards the curb, hitting the curb, which turned the automobile “in like, towards the Lincoln avenue car.” “Just as we made that turn we struck him. ’ ’ He further says the street was slippery with recent sprinkling, and that the automobile did not go six feet after it struck plaintiff. He at once jumped out of the automobile, picked the plaintiff up and took him to his home.

There is much more evidence concerning the details of the accident, but from a consideration of the entire record we are not able to say that the trial court erred in finding that the accident was caused by the negligence of the defendant, as charged, while the plaintiff was in the exercise of due care for his own safety.

It is claimed by the defendant that the damages awarded, $500, are excessive. The plaintiff was not run over by the automobile. He fell flat on his back and was helped up, but says he did not feel very much hurt at that time; was bruised on the legs and arms and in the small of his back. He was treated for these injuries about sixteen times by an osteopathic doctor, with massage and electric treatments, which cost him $32. He also paid $3 for a brace. There was no evidence of the reasonableness of the charges of the osteopath for his services. The plaintiff was 73 years old at the time of the accident. There is no evidence of any loss on account of inability, if any, to attend to his business. The osteopath says there was a slight “luxation of the last dorsal vertebra,” which condition is much improved. There is no competent evidence as to whether this condition will be permanent.

We are of the opinion that an award of $500 for such injuries is clearly excessive. A fair and reasonable allowance would have been $200; to award more was error.

If, therefore, defendant in error shall remit the sum of $300 from the judgment within ten days, the judgment will be affirmed; otherwise, for the error indicated, the judgment will be reversed and the cause remanded.

Affirmed on remittitur.

Remittitur filed and judgment affirmed March 19, 1912.


text:
    Thomas L. Reeve, Defendant in Error, v. Leibrandt Plumbing Company, Plaintiff in Error.
    Gen. No. 16,222.

      Evidence — effect of hearsay. Hearsay evidence does not tend to establish, a fact sought to be proven.
    Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 14, 1912.
    Harry A. Biossat, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

This is a suit by Reeve, hereafter called the plaintiff, against the Leibrandt Plumbing Company, a corporation, hereafter called the defendant, to recover for an alleged breach of contract. Upon the trial by the court below, the issues were found for the plaintiff, the damages assessed at $50, and judgment entered thereon, which judgment we are asked by the defendant to reverse.

It is not disputed that the parties entered into a written agreement for Reeve, the plaintiff, to do certain gas-fitting work at 3443 Wabash avenue for the defendant, for the sum of $50. Neither is it disputed that the plaintiff proceeded to do the work, and while progressing with it and nearing completion he was stopped and prevented by the defendant from doing further work, although the plaintiff was willing and able to complete the job. The explanation of this conduct of the defendant is that before the plaintiff was given the contract he was asked by Fred Leibrandt, the president of the defendant company, “if he was a union man, and he said no, but that he had a permit from the union to do work, so I told him that under the circumstances I would give him the contract.” It is claimed that the representation by the plaintiff that he had “a'permit from the union to do work” was untrue, and therefore a misrepresentation which rendered the contract void.

We ag’ree fully with the attorney for plaintiff in error in his statements of the law, but the trouble with his case is that there is no competent evidence that the statement made by the plaintiff was untrue when made. The only thing in the record touching this question is the testimony of Leibrandt, who says, “I was notified by the union that the plaintiff had no permit.” Manifestly this is only hearsay, and no evidence whatever as to the fact of whether or not Eeeve had a permit.

The defendant therefore having failed to justify its interference with plaintiff’s work, the plaintiff was entitled to recover the full amount provided for in the contract. The judgment therefore is affirmed.

Affirmed.


author: Mr. Presiding Justice Freeman

text:
    Mary E. Lyons et al., Administrators, Defendants in Error, v. Marshall E. Sampsell, Receiver, Plaintiff in Error.
    Gen. No. 16,180.
    1. Judgments — when against receiver erroneous. It is error to render judgment against a receiver in his individual capacity and to award execution against him. A proper form of judgment should provide for payment in due course of administration.
    2. Statute oe Limitations — when new cause of action not set up. Held, in this case, that the amended counts which differed from the original counts in that they charged conduct tending to show that the defendant as receiver was responsible while the original counts did not so state, a new cause of action is not set up where it appears that tbe original declaration began by complaining against tbe defendant as receiver.
    Action in case for personal injuries. Appeal from tbe Circuit Court of Cook county; tbe Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed with directions.
    Opinion filed March 28, 1912.
    Rehearing denied April 11, 1912.
    John A. Bose and Frank L. Kriete, for plaintiff in error; "W. W. Gurley, of counsel.
    Stedman, Soelke & Shutan, for defendants in error.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is an appeal by the defendant, plaintiff in error here, from a judgment rendered in favor of the plaintiffs, defendants in error here, for $1,000 in a suit to recover for personal injuries.

The declaration as originally filed complained of “Marshall E. Sampsell as receiver of the Chicago Union Traction Company, a corporation, and the City of Chicago, a corporation, defendants, of a plea of trespass on the case.” It is urged that in the five counts of- the declaration there was no specific charge against said receiver of any duty, violation of duty or injury due to any act of his, either of omission or commission. The counts all charged “the Chicago Union Traction Company, a corporation,” with the possession, control and operation of the railroad and with responsibility for the accident which caused the injury resulting in the death of the decedent, Sept. 14, 1907. At the trial in the court below, the court gave the plaintiffs leave to amend the declaration, by inserting the words “Marshall E. Sampsell, receiver of the,” before the words “Chicago Union Traction Company” in appropriate places in the counts of the declaration. To the declaration as thus amended the defendant interposed a plea of the Statute of Limitations. Plaintiffs demurred to this plea. The court sustained the demurrer and defendant elected to stand by the plea. Subsequently plaintiffs elected to take a non-suit as to the defendant City of Chicago.

It appears that the judgment as entered in this case is in any event erroneous, in that it provides that the plaintiffs “recover of and from the defendant their said damages of one thousand dollars in form as aforesaid by jury assessed, together with their costs and charges in this behalf expended, and have execution therefor.” In McNulta v. Ensch, 134 Ill. 46-56, it is said that no judgment could be rendered against the receiver “individually, and no award of execution could be. made. It must be entered against him as receiver, and be made payable out of the funds held by him in that capacity, in the due course of the administration of his receivership. Beach on Receivers, 715, and authorities cited. ’ ’ See also Malott v. Mapes, 111 Ill. App. 340-342. This error will necessitate the reversal of the judgment of the Circuit Court, but if the only error in the record it might be corrected here by our reversing the judgment as it stands and entering the correct judgment in this court. In the case McNulta v. Ensch, supra, it is said: “We regard it as the better practice to remand the cause wit'h instructions” to the Circuit Court to enter the proper order.

We come now to the serious question presented by this record. We are not disposed to reverse the judgment unless compelled to do so or otherwise disregard clear rules of law. Unless this judgment can stand upon the declaration on file or amended, the administrators will not be able to recover at all, since the statute of limitations has run against any declaration or amendments setting up any new cause of action.' There is no question raised as to the right of the plaintiffs to recover on the merits and the amount of the judgment is not excessive. To reverse .this judgment on m'ere technical grounds and so dispose of the suit finally would be unjust and would leave defendants in error without remedy. There are reversible errors which it is not within the power of this court to correct. Is it true, as counsel for defendant urge, that in this record such error exists ?

It is urged by defendant’s counsel that the Circuit Court erred in allowing the plaintiffs’ declaration to be amended after the statute of limitations had run against the action, in sustaining a demurrer to defendant’s plea setting up that statute, and in overruling a demurrer by defendant to the amended declaration. It is true apparently, as urged by defendant’s counsel, that the original declaration in the case, while it began by complaining “of Marshall E. Sampsell, as receiver of the Chicago Union Traction Company, a corporation, ’ ’ as defendant, contained five counts, in each and all of which the plaintiffs charge no act of omission or commission, no duty nor neglect of duty on the part of the said receiver. In each of these counts it is the “Chicago Union Traction Company, a corporation,” that is charged with possession of the railway and car and with responsibility for the alleged wrong’ful act resulting in the fatal injury to the decedent. These counts charged the receiver with no conduct tending to show that he as receiver was in any way responsible for the fatal injury in question. If, as might appear from the counts in question, the intention was to charge the corporation of which the defendant Sampsell is complained of as receiver with being itself responsible for the alleged tort by which the deceased lost his life, no such action could be maintained. It was said by Judge Brown in Eckels v. Farley, 131 Ill. App. 557-559-60, the receiver of a railroad comes into possession of the company’s property and business as the appointee of a court which takes the property for the time being for the benefit of the creditors and others interested. “That the corporation whose property has thus been taken away from it, and which has nothing to do with the management or operation of it, cannot be held liable for personal injuries resulting from such operation, is a proposition hardly seeming to need citations of authority” (citing McNulta v. Lockridge, 137 Ill. 270, and many cases). In Eckels v. Henning, 139 Ill. App. 660-668, it is said: “It follows that the corporation from which the property has been taken away and which has nothing to do with its management, is not liable for personal injuries resulting from such operation.”

The question remains, does the original declaration state a duty to the deceased on the part of defendant as receiver and its violation? It is not questioned that the original declaration stated “facts from which the law would raise a duty on the part of the Chicago Union Traction Company, a corporation,” but it is not the Chicago Union Traction Company that is made a defendant. The question is whether the original declaration states facts from which the law raises a duty, and its violation by plaintiff in error as receiver. We think it does. The original declaration as above stated, “complains of Marshall E. Sampsell, as receiver of the Chicago Union Traction Company, a corporation,” and makes him a defendant. The receiver, plaintiff in error here, does not claim that he was not rightly sued in this case. In McNulta v. Ensch, 134 Ill. 46-55, it is said: “The fact therefore that the receiver made no objection to the suit against him in his representative capacity, before or at the trial, ought to preclude him from urging that he was not rightly sued,” and that “if McNulta was the receiver of the road at the time of the injury, it must be presumed, in the absence of any plea or denial, that he was in discharge of the duty imposed upon him by that relation to the railroad. ’ ’ In the case at bar the same presumption exists, and in the absence of such plea or denial, the presumption of law is that Sampsell as receiver of the Chicago Union Traction Company was “in the discharge of the duty imposed upon him by that relation to the railroad,” at the time when the injury in question occurred. The relation of receiver to that railroad corporation as stated in the declaration implies that he was in charge of its property and operation and this presumption or implication of law arises from the averment of the declaration that he was receiver of that particular Chicago Union Traction Company and responsible for the acts which the declaration in some of its counts charges. The plea of the general issue was filed to this declaration in words in part as follows:

“And now comes the defendant Marshall E. Sampsell as Receiver of Chicago Union Traction Company, by J. L. Baily, his attorney, and defends the wrong and injury when, etc., and says that he is not guilty of the said several supposed grievances above laid to his charge, or any or either of them in manner and form as the plaintiff has above thereof complained against him. ’ ’

In McNulta v. Ensch, 134 Ill. supra, pages 46-54, it was claimed that there was no evidence that the receiver was operating the railroad at the time of the injury, or that the persons in charge of the train were his servants, or that he was a common carrier. The court however says that “railway companies are by law common carriers of passengers and freight,” and that the proofs showed that the railway was being operated and carrying passengers before and at the time of the injury. “No plea” it is said “was filed putting in issue the representative character in which defendant was sued. In a suit against an administrator, unless he denies the representative capacity in which he is sued, it will be admitted,” and that “it must be presumed in the absence of any plea or denial that he was in discharge of the duty imposed upon him by that relation to the railroad. ’ ’ In McNulta v. Lockridge, 137 Ill. 270-284, the court says: “It is claimed however that in the case at bar the general issue admitted that McNulta was receiver at the time he was sued, and that only. We think this is placing too restricted a signification upon the implied concessions made by the pleadings;” that (p. 286) “the admission upon the pleadings is of the character and capacity in which the defendant is sned. That character and capacity includes not only the bare fact that at the time that suit was instituted plaintiff in error was receiver, hut the further facts alleged in the declaration, that at the time when, etc., Cooley was receiver * * * by appointment of court * * * and was in possession of and operating the line of railway mentioned therein, as such receiver, and that the employes operating the trains on said road were the servants of Cooley as such receiver,” etc. In the case at bar the declaration makes Marshall E. Sampsell as Receiver of the Chicago Union Traction Company a defendant and the said plea of general issue in legal effect admits that he was such receiver; that as such receiver he was in possession of and operating the line of railway of said Company, and that the employes operating the trains on the road of said Traction Company were his servants as such receiver at the time when the declaration charges the wrong and injury complained of were committed. Under these circumstances we are unable to agree with defendant’s counsel that the amendments in question stated a new cause of action. They merely state more specifically what the law implies from the original declaration and plea, that said receiver operated and controlled the said corporation, and that it was his duty as receiver to keep the part of the street specified in good and safe repair. In Bartlett v. Cicero Light Co., 177 Ill. 68-74, it was said: “The receiver is legally the agent of the company, although under the direction of the court; and the title to the property is not divested by his appointment,” The original declaration alleged that the car by which the deceased was injured “Was then and there in the control of the Union Traction Company by its servants in that behalf,” in other words by its agents, and if the receiver is legally the agent of the company, no new cause of action is stated if by amendment he is specifically named.

We find no reversible error in the record except in the matter of the form of judgment, above referred to. As this error necessitates a reversal of the judgment, it will be so ordered with directions to the Circuit Court to enter the proper order as above indicated.

Reversed with directions.


author: Mr. Justice Gridley

text:
    Sherman House Hotel Company, Defendant in Error, v. Butler Street Foundry & Iron Company, Plaintiff in Error.
    Gen. No. 16,213.
    1. Res judicata — when judgment not. In “an action over” by a defendant who has paid a judgment rendered in an action for personal injuries, such judgment is not res judicata as to the liability of the defendant .in the “action over,” notwithstanding it may have been a party in the original cause, it appearing that in the original cause the question of liability as between the defendants was not determined.
    2. Statute op Limitations — when two year period inapplicable. An action of the kind indicated in the preceding paragraph of syllabus need not be brought within two years. The five year period applies.
    Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 28, 1912.
    Rehearing denied April 11, 1912.
    Castle, Williams, Long & Castle, for plaintiff in error.

      Felsenthal, Foreman & Beckwith, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.

This suit is a so-called “action over,” brought by the Sherman House Hotel Company, a corporation, hereinafter referred to as the hotel company, against the Butler Street Foundry & Iron Company, a corporation, hereinafter referred to as the iron company, to enforce, as it is claimed, the ultimate liability of the iron company for its negligence while in the employ of the hotel company, which negligence caused an injury to Charles P. Gallagher, who recovered a judgment for $750 against the hotel company in the Superior Court of Cook county, and which judgment, after an affirmance thereof on appeal, the hotel company paid. In this present suit the hotel company recovered a judgment, October 27, 1909, against the iron company, in the Municipal Court of Chicago, for $927.60, to reverse which this writ of error is prosecuted.

On June 11, 1903, the hotel company was in possession of and operating the Sherman House, located on the northwest corner of Randolph and Clark streets, Chicago, and had employed the iron company to remove an iron balcony, which was old, rusty and full of holes, and which extended about twenty feet on Randolph street and about the same distance on Clark street, and was about twenty feet above the sidewalk. About noon of said day, and while the employes of the iron company were at work at the balcony on the Randolph street side of the hotel, and while the said Gallagher was walking south on the west side of Clark street just north of Randolph street, he was hit on the head by a triangular piece of iron, which fell from the balcony, and was injured. In August, 1903, Gallagher brought suit in said Superior Court against both the hotel company and the iron company charging them with negligently permitting the work to be carried on without providing any reasonable covering to prevent portions of said balcony from falling. Each defendant in said suit by separate counsel, filed a plea of not guilty. In May, 1905, the case was tried, and at the conclusion of all the evidence the court directed the jury to find the iron company not guilty, which it did, and the jury also returned a verdict against the hotel company for $750, and judgment was entered on the verdict. On appeal said judgment was in December, 1906, affirmed by this court (Sherman House Hotel Co. v. Gallagher, 129 Ill. App. 557). In its opinion, this court said, in substance, that it appeared from the evidence that the iron company was not an independent contractor, that the relation of the hotel company to the iron company was merely that of employer and employe, that there was no special agreement as to price, but the hotel company was to pay a reasonable price for the work done, that the hotel company did not surrender control of the premises, or any part thereof, to the iron company, and that it had the power to direct the iron company to erect barriers upon the sidewalk or to place a protecting cover over the sidewalk underneath the balcony, or was at liberty to do this itself; that the removal of heavy material from the front of a building standing close up to the sidewalk of a crowded city street, without any barrier to prevent persons from passing under the work, or any protection against material always likely to fall when such work is being done, was inherently dangerous, no matter how skillfully done, and that the hotel company, authorizing the iron company to make such removal, was to be justly regarded as the author of the injury to Gallagher, and liable to Gallagher therefor, whether the iron company was an independent contractor or merely an employe of the hotel company.

In the case now before us, counsel for the hotel company contends that, inasmuch as the relation of the hotel company to the iron company is admittedly that of employer and employe, or master and servant, the judgment of the Municipal Court should he affirmed, because, where the negligent act or omission of a servant in and about his master’s business has caused the master to respond in damages to a third person, the servant is liable to the master for whatever the master has been obliged to pay. To this statement of the law counsel for the iron company does not object, but argues that the judgment of the Superior Court, affirmed by this court, in. the above mentioned Gallagher ■case, in which the parties to this present suit were co-defendants, is res adjudicata, and that the iron company, the employe, was therein acquitted of negligence towards Gallagher, and cannot now be held guilty of negligence in the same work in an action by the hotel company, the employer.

Counsel for the hotel company further contends that the proximate cause of the injury was the failure of the iron company, the employe, to provide a sufficient scaffolding, hood or other protective device to prevent materials from falling down upon persons passing on the sidewalk, which protective device it was the duty of the iron company, as shown by the evidence, to provide.

After a careful review of the evidence we are of the opinion that the lack of such a protective device caused the injury, which it was the duty of the iron company, under its arrangement with the hotel company, to have erected, and that the fact that the hotel company was chargeable with this duty -as to Gallagher, and could not escape liability to Gallagher by employing another to do the work, does not affect the ultimate liability of the iron company for the injury to the hotel company.

Counsel for the iron company, to support his res adjudicata contention cites the case of Kansas City v. Mitchener, 85 Mo. App. 36. In this case, it appeared that a Mrs. Eyan had sustained a personal injury by falling upon a defective sidewalk in Kansas City. She sued the city and Mitchener, the abutting property owner, jointly, and recovered a judgment against the city, but the finding and judgment were in favor of Mitchener. The city paid the judgment, and sued Mitchener to recover what it had paid, on the ground that Mitchener was primarily liable for the injury resulting from the defective sidewalk. The court held that the judgment in favor of Mitchener in the former suit was res adjudicata, and that the city could not recover. It appears from the opinion of the court that, when the former suit against Mitchener and the city, jointly, was on trial, “the city by course of conduct at the trial endeavored to show that Mitchener was liable and he endeavored to show that he was not, while Mrs. Eyan endeavored to show that both of them were”. In other words, in the former trial in the Mitchener case, the court, presumably because of the state of the pleadings and the code practice obtaining in Missouri, allowed the question as to which of the defendants — the city or Mitchener — as between themselves, were liable to Mrs. Eyan, or whether both were liable, to be litigated, and it found that the city alone was liable. In the former trial of this Gallagher case no such questions were in issue under the pleadings. The declaration in that case charged that both the hotel company and the iron company were liable to Gallagher, and it appears that on the trial of that case the iron company, at the conclusion of plaintiff’s evidence, moved the trial court to take the case from the jury as to it, but that the court reserved its ruling thereon until the hotel company had put in its defense, and that when this had been done, and the hotel company had rested its case, the court sustained said motion of the iron company — the iron company having-introduced no evidence, — and directed the jury to find the iron company not guilty. It, therefore, clearly appears that the question as to which one of the two defendants — the iron company or the hotel company — • was liable for the injury, as between themselves, was not determined. The determination solely was that the hotel company was liable to Gallagher. “A judgment for or against two or more joint parties ordinarily determines nothing as to their respective rights and liabilities, as against each other, in their own subsequent controversy.” (2 Black on Judgments, Sec. 599) “The estoppel is raised only between those who were adverse parties in the former suit, so that the judgment therein settles nothing as to the relative rights or liabilities of the co-defendants, inter sese.” (23 Cyc., 1279.)

Counsel for the iron company also urges that, inasmuch as the present suit was commenced more than two years after the happening of the injury to Gallagher, it is barred by the statute of limitations, which provides that “actions for damages for an injury to the person * * * shall be commenced within two years next after the cause of action accrued.” This is not an action brought by a person to recover damages for an injury sustained by him, and we do not think the statute applies. Waller v. City of Chicago, 11 Ill. App. 209; Hazell v. Shelby, 11 Ill. 9.

For the reasons indicated the judgment of the Municipal Court is affirmed. This conclusion renders it unnecessary for us to pass upon the written motion of defendant in error, filed May 31,1911, to affirm the judgment for reasons therein mentioned.

Judgment affirmed.


text:
    Peter Hand Brewing Company, Plaintiff in Error, v. Peter Feller, Defendant in Error.
    Gen. No. 16,249.

      Verdicts — when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 28, 1912.
    Mayer, Meyer, Austrian & Platt, for plaintiff in error.
    J. Marion Miller, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.

This is a writ of error prosecuted by the Peter Hand Brewery Company, a corporation, plaintiff below, and hereinafter designated as the company, to reverse a judgment of the Municipal Court of Chicago in favor of Peter Feller, defendant below. The company brought suit to recover the sum of $500.25, and interest thereon, which sum it claims to have loaned and advanced to Feller, about May 1, 1908, for a saloon license at No. 2 Winnemac avenue, Chicago, for the six months’ period from May 1, 1908, to October 31, 1908. Feller demanded a jury trial, which was had, resulting in a verdict in his favor, upon which judgment was entered.

That such license was issued to Feller and that the company paid for the same out of its funds is not controverted. The question is, did Feller verbally agree to repay said sum absolutely, or did he only agree to do so indirectly, and conditioned upon Ms paying for such beer as he should order of the company at a higher price per barrel than the usual market price? Counsel for the company claims that Feller absolutely agreed to repay the money advanced for the license, and that the verdict of the jury in favor of Feller is manifestly against the weight of the evidence.

It appears that for several years prior to May 1, 1908, Feller had been in the saloon business, and for at least two years had been running a saloon at No. 49 Willow street, and purchasing his beer from the company. Shortly prior to May 1,, 1908, he began negotiations for a lease of premises at No. 2 Winnemac avenue, where he contemplated opening a saloon. The company, hearing of these negotiations, sent an agent to see him, who persuaded him to call at the office of the company, which he did during the latter part of April. He was there interviewed by several of the representatives of the company, including the president thereof, aud he was urged to buy his beer for the new saloon from the company. Before he left the office he signed three documents: (1) application for a saloon license at No. 2 Winnemac avenue for a six months’ period, (2) the usual bond (on which the president of the company and an employe thereof signed as sureties), and (3) an assignment of the right of renewal of said license to said president of the company. Considerable talk preceded the signing of the papers, and what that talk was has an important bearing upon the issue in the case. Feller, in his own behalf, testified, in substance, that he. first saw the president of the company; that he was called into the latter’s private office; that the president said to him, “I hear you have a place out there; we will do the same as we used to do; you have to pay $6 for your beer, the same as you used to do, and we furnish the license and fixtures and everything in there”; that he then talked with the office manager of the company; that the latter told him the same thing, in substance, as the president had, and further said, without reading the papers to him, “Just sign them papers ”, which he did. The evidence tends to show that Feller was unable to read and did not have full knowledge of the contents of said documents. The president of the company did not take the stand, and, therefore, Feller is the only witness as to his conversation with the president. The testimony of the office manager as to his conversation with Feller is, in substance, that after the papers were signed “I asked Feller how are you going to pay for this license, and he says, You know how we always do, I will pay you for that license as we always do it. I said, that will be entirely satisfactory”; that Feller had been doing business with the company for four or five years; that he paid his license in irregular amounts, sometimes $100, and sometimes he would give the driver $10 or $15 in addition to the beer charges, and sometimes he used to come and pay down something at the office; that he had always paid enough when the term of the license expired to be clean on the books, and that the company furnished to all its customers a so-called “beer book,” in which was written by the driver the number of barrels delivered at a particular time, and in which the amounts charged for the beer and all credits for payments made either to the driver or at the office were also written. The “beer book” of Feller, covering the period from May 7, 1906, to May 9, 1908 (when it was balanced and closed), for beer delivered to him at his Willow street saloon, was introduced in evidence, and it clearly disclosed what the parties hereto “used to do”, and how the license fee, advanced by the company, for each six months’ period was paid. Feller was charged at the beginning of such period with the amount of the license fee, and was thereafter charged for all beer delivered to him at the rate of $6 per barrel; he was credited with all cash payments, made either to the driver or at the office, and at the end of each month, if he made sufficient payments at said rate of $6 per barrel to also repay to the company the month’s proportion of said license fee, so advanced, he was allowed a rebate of $1.50 per barrel. Of course, if he was slow in his payments and had not paid at the end of any month a sufficient amount to give the company $4.50 for each barrel delivered, and also repay a proportionate amount of the license fee advanced, it was within the power of the company, under this arrangement, not to allow him any rebate. This “beer book” shows, during the first six months at least of the period covered therein, that Feller was a good customer, and made such payments that, on Nov. 1, 1906, when the next license fee became due, after all rebates had been made, he had about $335 to his credit, which was used by the company to pay said new license fee, and he started in on the next six months’ period owing the company only about $165, with the license fee paid.

On May 1,1908, although Feller had received a written lease, the owner of the premises on Winnemac avenue was unable to deliver possession to Feller, owing to the fact that the former tenant refused to yield possession. Pending negotiations for such possession, a temporary building was erected at the rear of said premises, and Feller there started in business. Subsequently Feller, not being able to secure possession of the premises he had leased, closed the temporary saloon, opened a saloon in another location and purchased his beer for that saloon from another brewery. In November, representatives of the company called upon him and demanded payment for the license fee advanced in May, and upon Feller’s refusal to make payment, either in cash or by notes, threatened to sue him. Later in November, Feller visited the office of the company, had an interview with the office manager, and, according to the latter’s testimony (in which he is corroborated by other representatives of the company who were specially directed by said manager to listen to the conversation), admitted that he owed the company for said license fee. Feller denies making any such admission.

After carefully considering all of the evidence in the record, and particularly in1 view of the facts disclosed from said “beer book,” and that at the time Feller signed the application for said license he also executed to the president of the company an assignment of the right of renewal of said license, we cannot say that the verdict of the jury is manifestly against the weight of the evidence, and, therefore, we are not disposed to reverse the judgment.

Other errors assigned are that the trial court erred in refusing to admit in evidence certain books of account of the company, and in making certain remarks in the hearing of the jury which, it is claimed, were prejudicial to the company, and that certain remarks made by counsel for Feller in Ms address to the jury were also prejudicial to the rights of the company. Without discussing these different points,, suffice it to say that, in our opinion, the errors complained of, if any, are not sufficient, in view of all the evidence, to warrant a reversal. The judgment is affirmed.

iJudgment affirmed..


text:
    Lee J. Spear, Defendant in Error, v. J. C. Haggarty, Plaintiff in Error.
    Gen. No. 16,275.
    Landlord and tenant — what does not bar action for rent. If the lease gives to the landlord the right to re-enter and re-rent for the account of the tenant in the event of abandonment by him the fact of re-entering and re-renting will not bar the landlord’s right to recover the difference between rent stipulated for in the lease and the amount collected by him as the result of re-renting.

      Error to the Municipal Court of Chicago; the Hon. Haeby Olson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 28, 1912.
    T. M. Poynton, for plaintiff in error.
    Dellenback, Riese & Cody, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.

Lee J. Spear sued J. C. Haggarty in the Municipal Court of Chicago, to recover the sum of $145 for rent due on a lease. In April, 1908, Haggarty signed a lease of an apartment in the building known as No. 6416 Drexel avenue, Chicago, for the period from May 1,1908, to April 30, 1909, and he moved into the premises. The lease contained the clause, “flat to be thoroughly renovated”, and the evidence shows that it was so renovated by the lessor, Spear. The lease, also, contained the provision, “in case the demised premises shall be abandoned, deserted, or vacated, and remain unoccupied five days consecutively, the lessee hereby authorizes and requests the lessor, as lessee’s agent, to re-enter the demised premises, * * * and proceed to re-rent the premises, at the lessor’s option and discretion, and apply all money so received * * * toward the rent accruing under this indenture”. In August, 1908, Haggarty moved out of, and abandoned, the premises, surrendering the keys. He made no effort to secure another tenant for the balance of the term. Later in the year, Spear leased the abandoned premises to a third party, who paid some money for rent to Spear, and who moved out in February, 1909. Spear did not procure another tenant prior to April 30, 1909, — the time of the expiration of the Haggarty lease. The sum of $145 is the balance due for rent from Haggarty for the entire term, less the sums received by Spear from said third party.

On the trial, at the conclusion of all the evidence, the court directed the jury to return a verdict in favor of Spear, in the sum of $145, which was done, and judgment was entered upon the verdict.

We are of the opinion that the court did not err in directing said verdict. (Humiston, Keeling & Co. v. Wheeler, 175 Ill. 514; West Side, etc. Co. v. Connecticut, etc. Co., 186 Ill. 156.)

The judgment is affirmed.

Judgment affirmed.


text:
    Andrew Olson, Defendant in Error, v. Carolus Carlson, Plaintiff in Error.
    Gen. No. 16,290.

      Verdicts — when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. Freeman K. .Blake, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 28, 1912.
    Nels J. Johnson, for plaintiff in error.
    John E. Erickson, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.

Andrew Olson, plaintiff below, sued Carolus Carlson, defendant below, to recover the sum of $300, together with interest thereon, which said sum he says he loaned Carlson in June, 1904, at the latter’s request. Olson demanded a jury trial, which was had, and a verdict for $390 was returned in his favor, upon which judgment was entered.

Counsel for Carlson here contends that the verdict and judgment are manifestly against the weight of the evidence. To this we cannot agree. Olson testified very positively as to the making of the loan, and Carlson with equal positiveness denied that he ever borrowed or received any money from Olson. The evidence in the ease, as counsel for Carlson says in his brief,, was “conflicting and irreconcilable”. We believe that, under all the evidence, the jury was justified in returning the verdict, and we are not disposed to interfere with the judgment. And, in our opinion, the trial court did not err in refusing to admit certain evidence offered by the defendant, which refusal is complained of; nor do we think that certain remarks made by the trial court, and assigned as error, were prejudicial to the rights of the defendant. The judgment is affirmed.

Judgment affirmed.


text:
    Rose Zoeller, Defendant in Error, v. Court of Honor, Plaintiff in Error.
    Gen. No. 16,330.

      Instructions — effect of emphasizing particular issue. If the court so emphasize a particular issue as that the jury may either regard it as paramount or as the only issue to be determined, error is committed and a reversal will be ordered.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed March 28, 1912.
    Francis J. Sullivan, for plaintiff in error; Wm. B. Risse, of counsel.
    Henry E. Murpht, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.

This is an action, commenced in the Municipal Court of Chicago, by Rose Zoeller (hereinafter designated as plaintiff), as beneficiary under a certificate of insurance issued to Jozefa Koranda, mother of plaintiff, by the Court of Honor, an Illinois fraternal benefit society (hereinafter designated as the society), to recover the sum of $975, claimed to be due plaintiff under the terms of said certificate. A jury trial was had, resulting in a verdict and judgment in favor of plaintiff for $975, to reverse which judgment this writ of error is prosecuted.

On October 5, 1907, the application for insurance was signed by Jozefa Koranda; on October 14th, the certificate was issued by the society, and on October 17th, the same was delivered to the insured, and she signed an acceptance thereof, and an agreement to all of its conditions; on November 5, 1907, Jozefa Koranda died; on November 20th, written proofs of death were filed with the society, showing that the cause of death was strangulated umbilical hernia, and subsequently the society refused to pay the claim on the ground that false statements were made in the application.

It appeared from the evidence that the deceased was a member of the society at the time of her death, and that she had paid her dues; that, at the time she made application, a medical examiner of the society, Hr. Wanicek, asked her all the questions mentioned in the blank form of application and he wrote down on said blank the answers which he says she gave, after which she affixed her signature; that he made a partial examination of the person of the applicant, but did not extend that examination below the chest; that plaintiff, the beneficiary, was either in the same or an adjoining room when the questions in the application blank were asked of the applicant and answered by her; that plaintiff testified that she heard the medical examiner ask her mother if she was ruptured, that she replied that she was, that she was then asked if she wore a support, and that upon her replying in the affirmative, the examiner said, “You are O. K. then; if you wear a support, we pass you”.

The certificate, or policy, which was issued to the deceased, set forth that the application had been accepted upon the faith of the warranties therein contained and the medical examination therewith, and that said application and medical examination, the constitution, laws and rules of the society, and the certificate should “constitute the complete and only contract between the benefit member and the society”. The material parts of the application, which was signed by the deceased in the manner aforesaid, are that she declares and warrants, (1) that she is now of “sound body and mind, in good health, and free from disease or injury”, (2) that this application, including therein the succeeding pages, and the law of the society “shall form the sole basis of my admission into, and continued membership in”, the society, and of the benefit certificate to be issued, and (3) that “any untrue or fraudulent statement or answer made' to the district medical examiner, or any concealment of facts, intentional or otherwise, in this application, or in the succeeding pages, * * * shall forfeit the right of myself and that of my beneficiaries to any and all benefits”. In the “succeeding pages” (at the end of which the deceased also affixed her signature), appear the following answers:

“10. Have any facts regarding your past health been omitted? Ans. No.

17. Have you had any serious illness, local disease, or personal injury? Ans. Yes. If so, what? Quinsy.

22. Are you ruptured? Ans. No.

30. Is there anything to your knowledge, in your physical condition, family or personal history, or habits tending to shorten yonr life, which is not distinctly set forth above ? Ans. No.

33. Is your life insured? Ans. Yes. If so, in what societies and companies and amount in each? Ans. Bohemiam Society”.

It further appeared from the evidence that the deceased, at the time of signing said application (and for many years prior thereto), had a serious rupture or hernia, and wore a support, and that her death, thirty-one days later, was caused by. said rupture, and that she was in fact insured in two other societies, instead of one, as stated in said application.

In delivering the instructions to the jury, the trial court, having been requested by the defendant society to submit a question of fact for special finding by the jury, said:

“In addition to your general verdict, gentlemen, you will answer this question; ‘Bid Jozepha Koranda tell the medical examiner at the time she was examined for her policy of insurance in this case that she was not ruptured?’ If you come to the conclusion that she told the medical examiner that she was ruptured you will answer this question ‘Yes’. If you come to the conclusion that she told the medical examiner that she was not ruptured then you will answer it ‘No’. It is simply a question of what she told the medical examiner. That is what you are to find in this ease and you will answer the question, and in addition to that you will find the general verdict”.

The jury by its special verdict answered the question, “No”, and further specially found that she “told the examining physician she was ruptured”. Counsel for the society contends that the language used by the trial court in the above instruction, tended to confuse the jury, and, further, that the language of the court, “it is simply a question of what she told the medical examiner; that is what you are to find in this case,” also tended ‘to influence the jury in its general verdict, in that it suggested that what the deceased said to the medical examiner, was the only issue in the case.

After a careful examination of the record we are of the opinion that the instruction complained of was prejudicial to the rights of the society, and erroneous. The judgment is, therefore, reversed, and the cause remanded.

jReversed and remanded.


text:
    John Kuntz, Plaintiff in Error, v. Chicago Consolidated Traction Company, Defendant in Error.
    Gen. No. 16,247.
    1. Contributory negligence — when not question of law. Unless the court can say that all reasonable minds would agree that the conduct of plaintiff under the circumstances in evidence was a failure on his part to exercise due care for his own safety then the question of contributory negligence is one of fact to be left to the determination of the jury.
    2. Negligence — operation of traction car. Held, under the evidence, that it was for the jury to determine whether or not the conduct of those operating the street car in approaching the street crossing in question on a dark evening without ringing any bell or sounding any warning, was negligence which proximately caused the accident in question.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and 'remanded.
    Opinion filed March 28, 1912.
    G. P. Sayers, for plaintiff in error; F. Wm. Kraft, of counsel.
    John A. Kose and Frank L. Kriete, for defendant in error; W. W. Gurley, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an action on the case brought by John Kuntz, hereafter called the plaintiff, against the Chicago Consolidated Traction Company, hereafter called the defendant, claiming damages for injuries said to have been sustained through one of the cars belonging to defendant striking plaintiff.

The accident occurred between five and six o’clock on the evening of January 2, 1904, at the intersection of Chicago and Euclid avenues, in the village of Oak Park, Cook county. Plaintiff was 54 years old, and for three years before this time had been working as a private coachman for a Mr. Eogers, whose barn is on Euclid avenue 300 or 400 feet north of Chicago avenue, and plaintiff had been accustomed during this time to cross the street car tracks on Chicago avenue at that point about once or twice a day. At this point on Chicago avenue are two street car tracks. On the north track the cars come from the east, while on the south track the cars come from the west. On the evening in question plaintiff drove his horse and bob-sled south on Euclid towards Chicago avenue, and he says: “I drove up and looked for the cars.” He says that when about 100 or 200 feet from the tracks “I looked for thé car and one passed from the east to the west, and then I know the car crosses there usually, so I looked for the car from the west and then none come and I didn’t hear no bell or nothing, so I went on.” When plaintiff was on the tracks, very nearly across the north track, a car coming from the east, with headlight lighted but with no bell ringing, struck the side of the sled, thereby injuring plaintiff.

At the conclusion of plaintiff’s case, counsel for defendant moved the court to instruct the jury to find the defendant not guilty, which motion was allowed and the jury so instructed and judgment entered on the verdict.

One circumstance at least distinguishes this case from the circumstances found in the cases cited by counsel for defendant. Here there is evidence tending to show that the plaintiff, before he drove upon the track, looked for a car coming from the east and, seeing one pass, and from his observation of the usual intervals between cars in that suburb, was thereby led to believe that no other car from the east would approach before he could cross the tracks; then looking for any car which might be approaching from the west, and seeing none and hearing no bell or gong from any direction, he evidently concluded that he was entirely safe in attempting to cross the tracks.

We do not believe it can be said that all reasonable minds would agree that such conduct by the plaintiff was a failure on his part to exercise due care for his own safety, or constituted negligence which contributed to the accident. •

We also think that it was for the jury to determine whether or not the conduct of those operating the street car in approaching the street crossing in question, on a dark evening,, without ringing any bell or sounding any warning, was negligence which proximately caused the accident in question.

We think the case should have been submitted to the jury, and that the court below erred in instructing the jury as was done. The judgment will therefore be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice McSurely,

text:
    James Adams, Plaintiff in Error, v. James T. Hall, Defendant in Error.
    Gen. No. 16,273.
    1. Municipal Court — when finding and judgment at close of plaintiff’s case proper. Where a case is tried by the court and the court is of opinion that upon the evidence produced on behalf of the plaintiff no recovery can be had, it is proper to find against the plaintiff and to enter judgment against him.
    2. Brokers and factors — what essential to recovery of real estate commissions. The rule requiring the purchaser produced by the broker to be “ready, willing and able to purchase”, means that such purchaser must possess these qualifications before the broker is entitled to demand that the owner do anything in the matter.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 28, 1912.
    Harry J. Lurie, for plaintiff in error.
    Henry W. Wolseley, for defendant in error.
   Mr. Justice McSurely,

delivered the opinion of the court.

James Adams, plaintiff in error, brought suit against James T. Hall, defendant in error, in the Municipal Court to recover $500, claimed as commissions earned' by Adams as a real estate broker, for procuring a purchaser of premises owned by Hall, ready, willing and able to purchase said premises upon the terms and conditions named by Hall. The proposed sale was not consummated.

The case was tried below by the court, and at the close of plaintiff’s case upon motion of defendant’s attorney the court found for the defendant and entered judgment against the plaintiff for costs, which action by the court is now before us.

While it is true that the motion was in the nature of a demurrer to the plaintiff’s evidence, and the general rule is that where there is any evidence tending to support plaintiff’s claim demurrer will not lie, yet where the ease is tried by the court and the court is of the opinion that upon the evidence produced on behalf of the plaintiff no recovery can be had, we see no objection to the court so finding and entering judgment on the finding.

There is no disagreement between the respective parties on any points of law; neither is there any serious controversy as to the facts. The only question is as to the probative effect of the evidence introduced on behalf of plaintiff.

We shall allude only to that feature of the evidence wherein, in our opinion, plaintiff failed to prove a necessary condition to his right to recover. We do ■not find that Adams produced a purchaser “ready, willing and able” to purchase the property in question. After much bargaining, the final proposition made by Hall in writing, through his agent, Gleason, was to sell to Adams’ client for “$23,000 net”— $10,000 cash and $13,000 secured by first mortgage, with interest at 5%%. It is not disputed that the client produced by Adams had only $6,000 with which to make the cash payment on the purchase price. His proposal was to raise the $4,000 required to make up the $10,000 cash payment by borrowing it from some' third party upon a second mortgage on the property. There is no evidence that such a second mortgage could be negotiated. The result of any attempt to make it was wholly problematical. The questions asked of the witness Adams on that point simply called for his conclusions, and objections thereto were properly sustained. The rule in cases of this sort, requiring the purchaser to be “ready, willing and able to purchase,” means that he must possess these qualifications before he is entitled to demand that the owner do anything in the matter. The proposed purchaser here at no time possessed these qualifications, and the owner was not hound to act upon the more or less remote contingency that the purchaser might become qualified in the future.

Other points are suggested in argument in support of the judgment, some of which are equally conclusive, but it would serve no useful purpose to comment upon them.

The finding of the trial court was right, and the judgment is affirmed.

Affirmed.


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    Frank Kerting, Defendant in Error, v. Henry R. Planz et al., Plaintiffs in Error.
    Gen. No. 16,308.

      Variance — how objection must be raised. A general objection is not sufficient; tbe variance must be pointed out upon tbe trial with such specificness as to enable the plaintiff to amend.
    Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 28, 1912.
    J. Scott Matthews, for plaintiffs in error.
    Abnott Stubblefield, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendant in error, hereinafter called the plaintiff, filed his statement of claim in the Municipal Court, alleging that plaintiffs in error, Henry E. Planz and George Green, co-partners as Planz & Green, hereinafter called defendants, were indebted to him for a balance due on an open account in the sum of $426.24 with interest. The jury found for the plaintiff and judgment was entered on the verdict.

The disputed items in the account are many, and the testimony is, as described by the attorney for the defendants, “in irreconcilable conflict.” Both counsel agree that the verdict of the jury was based on what was claimed to be an account stated between the parties. The account is said to have been agreed upon at a meeting between the plaintiff, his counsel, and the two defendants, held for the purpose, if possible, of arriving at an agreement on the items of the account in dispute and as to the.balance due plaintiff. The testimony concerning what was said and done at this meeting is hopelessly conflicting. There is some evidence tending to corroborate the plaintiff’s story on this point, in that the next day following the date of this meeting, notes for the amount which plaintiff claims was agreed upon were drawn up and mailed to the defendants with a letter requesting defendants to sign the same in settlement of all open accounts. The jury evidently gave greater credence to the testimony of the plaintiff, and gave its verdict for the amount which the two witnesses for the plaintiff testified had been agreed upon at the conference between the parties.

It is urged that the proof of the agreement on the account is at variance with the statement of claim, and that the testimony touching this agreement was inadmissible; and this seems to be true. But defendants did not properly raise that point at the trial. A mere general objection is not sufficient. The defendants should have pointed out the variance at the time, so as to enable plaintiff to amend his statement of claim. “To present the question of variance as one of law, the evidence should have been objected to at the time it was offered on that ground, or when the variance became apparent, counsel should have moved to exclude the evidence, or in some other appropriate way, the question should have been so raised that the trial judge could have passed upon it, and to properly raise the question in any of these inodes, the variance should have been distinctly pointed out, so as to enable the trial judge to pass upon it understandingly and to enable the plaintiff, if such course should become necessary, to obviate the objection by an amendment to the declaration. In none of these ways was the objection raised. * * * Having failed so to do, he must be deemed to have waived the objection.” Libby, McNeill & Libby v. Scherman, 146 Ill. 540 (549).

We find no substantial error in the rulings of the court or in the giving or refusing of instructions, and there is no reason to believe that the verdict of the jury was contrary to the weight of the evidence. The judgment is therefore affirmed.

Affirmed.


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    Olive Allott, Defendant in Error, v. William H. Bowers, Plaintiff in Error.
    Gen. No. 16,327.
    Landlord and tenant — what constitutes eviction. If tiLe landlord create, a nuisance either upon or near the demised premises it amounts to an eviction.
    Error to the Municipal Court of Chicago; the Hon. Michael F. Girten, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.

    Reversed and remanded with directions.
    Opinion filed March 28, 1912.
    Edward J. Kelley, for plaintiff in error.
    William: A. Kogan, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

In this case we are asked to reverse the action of the court below in denying a motion to vacate a judgment entered by confession on a lease, and to permit the defendant to plead to the merits.

The plaintiff in error, William H. Bowers, hereinafter called the tenant, was a tenant of a certain apartment in Chicago, under a written lease from the defendant in error, hereinafter called the landlord.. The apartment immediately above the one leased to said tenant was occupied by the landlord. It is claimed by the tenant that the landlord so used his apartment as to create a nuisance, and thereby prevented the quiet enjoyment of the premises occupied by the tenant. This, it is claimed, was done by the landlord and his guests making loud noises during the night, and by permitting the apartment to be used and frequented by drunken persons and to be used as a house of ill-fame.

After notifying the landlord in writing of his intention so to do, the tenant vacated the premises. The rent was paid for the time the tenant occupied the apartment, and the judgment entered by confession is for a period subsequent to this removal.

In support of his motion to vacate said judgment and for leave to plead, affidavits were filed tending to support the claims of the tenant. If the statements therein made were shown to be true, there would have been sufficient grounds for vacating the premises, without incurring any liability for rent for the period subsequent to the removal. This is upon the principle that if the landlord creates a nuisance either upon or near the premises, it will amount to an eviction. Wood, Landlord and Tenant, page 803.

In our opinion the motion of the tenant should have been allowed, the judgment vacated, and the tenant permitted to plead to the merits. The judgment will therefore be reversed and the cause remanded with directions to proceed in accordance with the opinion herein expressed.

Reversed and remanded with directions.


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    A. Tucker, Defendant in Error, v. William Henning Company, Plaintiff in Error.
    Gen. No. 16,349.
    Brokers and factors — when revocation of authority may he made. A principal who has authorized a broker to take orders on his behalf, the principal agreeing to accept all orders taken pursuant to the authority so given, may, at his pleasure, revoke the authority so conferred to obtain orders.
    Error to the Municipal Court of Chicago; the Hon. Stephen A. Poster, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 28, 1912.
    Campe, Koebel & Mechling, for plaintiff in error.
    Hoyne, O’Connor, Hoyne & Irwin, for defendant in error; "William E. Wiley, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

A. Tucker, hereinafter called the plaintiff, recovered a judgment upon a trial by the court without a jury, against William Henning Co., hereinafter called the defendant, for the value of five cars of barrels sold and ^delivered, which judgment we are asked to reverse.

The particular sale for which plaintiff sued defendant and obtained a judgment is not in issue. The defendant claims a set-off, and the controversy is over that. The defendant claims that the plaintiff was obligated to furnish at the same price — 95 cents a barrel — five more cars of barrels, and, upon the plaintiff refusing to deliver this second lot, it should he allowed for the difference between the price at which plaintiff should have delivered the barrels and the reasonable market price. The defendant’s second order for barrels is for convenience called by both parties order No. 1475, and the plaintiff claims he was not hound by it.

The parties dealt through brokers, Grant, Beall & Co., and there was much correspondence between them. The sale on which suit was brought was made through, a letter, dated December 13, 1906, from the plaintiff in reply to one from the brokers, in which he said that he was getting 95 cents for barrels, and if possible to get orders on that basis and he would accept all their orders. Five cars were shipped to the defendant under this order. On February 26, 1907, the brokers wrote to plaintiff, enclosing an order for five cars of barrels at 90 cents, to which plaintiff replied on February 28th: “I am in receipt of your order for 5 cars of vinegar and am sorry to state that I am in no position to accept the same at present. ” It is quite manifest that plaintiff referred to vinegar barrels, and could mean nothing else. On March 18th the brokers sent plaintiff the order in question, No. 1475, stating that it was to take the place of the order of February 26th. In order No. 1475 the price of barrels was named as 95 cents. It was not filled by plaintiff, who claims that by his letter of February 28th he not only refused the defendant’s order, but repudiated any authority to the brokers which might be inferred from his letter of December 13th. 0

There are several other letters, none of which throws sufficient light upon the question to warrant any recital of its contents.

It is undoubtedly true that the plaintiff could revoke at his mere pleasure, at any time, any authority to the brokers to obtain orders, given in his letter of December 13, 1906. Walker v. Denison, 86 Ill. 142. It is also true that the defendant upon the trial was bound to prove the facts entitling it to a set-off by a preponderance of the evidence; that is, it was bound to prove that the letter of December 13th was a continuing authority, and that it was not revoked by any subsequent act of the plaintiff before he received order No. 1475. Russell, Burdsall & Ward v. Excelsior Stove & Mfg. Co., 120 Ill. App. 23 (31); Ellis v. Cothran, 117 Ill. 458.

The trial judge, whatever other conclusion he may have reached, could hardly have found that the defendant had proven its right to a set-off by a clear preponderance of the evidence, and upon this basis alone would have been justified in disallowing the claim. The question is not free from doubt, but the very fact of this uncertainty makes it impossible for this court to say that the finding of the trial judge was against the weight of the evidence. Our conclusion is that the finding should not be disturbed, and therefore the judgment is affirmed.

Affirmed.


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    John F. Devine, Administrator, Defendant in Error, v. Edward J. Ryan, Administrator, Plaintiff in Error.
    Gen. No. 16,383.

      Verdicts — when not disturbed as against the evidence. Especially where two verdicts have been found the same way, will the Appellate Court he slow to set aside a verdict as against the weight of the evidence.
    Assumpsit. Error to the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 28, 1912.
    Frank L. Cheney, for plaintiff in error.
    A. D. Gash, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an action of assumpsit, brought by the administrator of the estate of Bridget Lynch, deceased, against Bridget Mnrphy, now also deceased, to recover a certain sum of money which had belonged to Bridget Lynch and which after her death was in the possession of Bridget Mnrphy, who claimed that it was a gift to her from the deceased. The case was tried by a jury, which brought in a verdict for the administrator of the Lynch estate, and judgment was entered on the verdict.

The only errors relied upon by the plaintiff in error are (a) that said verdict is against the manifest weight of the evidence, and (b) that the verdict was the result of prejudice. There is nothing in the record to support the claim that the verdict was the result of prejudice, except as prejudice might be inferred from the fact — if such is the fact — that the verdict was against the weight of the evidence. The only question for our consideration therefore is whether or not the verdict was against the manifest weight of the evidence.

This case has been tried twice, and in both trials the jury found in favor of the defendant in error.

Bridget Lynch was the widow of Patrick Lynch, who by will made her his sole residuary legatee. She was very old at the time of her death, had no children, but left eighteen or twenty heirs, mostly nieces and nephews. Towards the latter part of her life she went to live with Bridget Murphy, the defendant, one of her nieces. Shortly thereafter Mrs. Lynch converted all of her real estate and mortgages into cash, amounting to $42,000. For a time she kept this cash in a safety deposit vault, then removed it to the home of Bridget Murphy and kept it in an old trunk in her room.

Bridget Murphy’s story is that a few months before she died, Mrs. Lynch gave her $8,010, to be divided among certain heirs whose names she g’ave her; that shortly thereafter she gave her (Bridget Mnrphy) $14,500 as a gift, no other persons being in the room at the time of this transaction save the parties thereto.

It does not appear what became of the remainder of the $42,000. This suit is to recover the amount of this alleged gift to Bridget Mnrphy.

Mrs. Ryan, an annt of Bridget Mnrphy, testifies that she was in an adjoining room and heard what Mrs. Lynch said to Bridget Mnrphy at the time she made her the gift in question; that Mrs. Lynch called Bridget Murphy into her room and-asked her to count some mohey; that the latter counted the money and said, “there is $14,500 in it;” that after counting it again Mrs. Lynch said, “You take that; you keep it for yourself as a gift;” that at the same time she charged Bridget Murphy not to tell anyone, but upon request was given permission to tell the witness, Mrs. Ryan; that some days afterwards Mrs. Lynch in conversation with the witness referred to her gift to Bridget Murphy.

There being no evidence directly contradicting this testimony, the claim of the defendant in error was that at the time of the alleged gift Mrs. Lynch did not have sufficient mental capacity to understand and comprehend the nature of the gift. Nearly all of the testimony concerns this issue. Many witnesses testified, and the record is long. Many testified that in their opinion at and about the time of the transaction in question, Mrs. Lynch was mentally incapable of understanding the nature of a gift of such an amount of money. This, however, is contradicated by the opinion of witnesses called on behalf of Bridget Murphy. Very many things appear, touching many more or less important details and occurrences in Mrs. Lynch’s life. It would unduly extend this opinion to refer to more than a small part of the testimony.

Patrick McHugh, an attorney at law, who was at one time employed by Mrs. Lynch, among other things, for the purpose of drawing her will, testified in substance that although he repeatedly informed her that she could by her will dispose of her entire estate, which she knew to be over $40,000, yet she was never able to comprehend that she could devise more than $9,000; that she was possessed with the idea that what devise she made by her will took effect at once, and therefore she did not desire to devise beyond $9,000. The witness tried repeatedly to have her understand the effeet of her will, with particular reference to the point that she would not thereby part with her property before her death. His efforts were not successful, and becoming convinced that she was not mentally capable of making a will, he abandoned the attempt to draw one for her.

We might refer to many other items of testimony tending to support the contention of the defendant in error. We have read with care the abstract of record and have given it ample consideration. As a result of this study, and bearing in mind the better opportunity of the jurors and the trial court to pass upon the credibility of the witnesses, we are not able to say that the verdict was against the weight of the evidence.

We are therefore of the opinion that the verdict should not be disturbed, and the judgment will be affirmed.

Affirmed.


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    Sargent Lumber Company, Defendant in Error, v. J. W. Wells Lumber Company, Plaintiff in Error.
    Gen. No. 16,401.
    Accord and satisfaction — what .essential to establish. A check accompanying a purported statement will not be deemed as tendered in full settlement of the claims of the creditor, unless a condition is made to the effect that if the check be accepted, it' must be in payment of all demands.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 28, 1912.
    Harry A. Biossat, for plaintiff in error.
    Dent & Jackson, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

The Sargent Lumber Company brought suit to recover $150 advanced and $19 expenses on a car of lumber ordered from the J. W. Wells Lumber Company. The.lumber having been rejected, the Wells Company voluntarily took charge of it. The Sargent Company requested the return of the $169 advanced, and after eleven months the Wells Company remitted its check for $36.87 with a letter. This suit is for the balance of $132.13, for which judgment was rendered.

If is claimed by the Wells Company, plaintiff in error, that the check for $36.87 was tendered as payment in full and was accepted by the Sargent Company upon that condition, and therefore, under the authority of Ostrander v. Scott, 161 Ill. 339, and other similar cases, this constituted full settlement of the account.

The check was in the usual form, and the letter merely said, “We herewith enclose you check for $36.87 balance of your credit on car No. 28055 which we have finally succeeded in getting a settlement on from Maxwell Bros Co. Tours truly, J. W. Wells Lumber Co.” With the check was also enclosed what purported to be a statement; but in none of these things is there any condition to the effect that if the check be accepted it must be as payment in full of all demands.

This being true, the plaintiff was entitled to retain the check and to recover for the balance due it.

The judgment is affirmed.

Affirmed.


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    Tillie Shapiro, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,421.
    1. Instructions — when must he accurate. If it is doubtful as to what the evidence proves, it is necessary that the instructions of the court shall be accurate.
    2. Instructions — confined to allegations. An instruction is bad if it does not limit the negligence upon which a recovery may be predicated to that charged in the declaration.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed March 28, 1912.
    Edward C. Higgins and Watson J. Ferry, for appellant.
    Leon Hornstein and Harry M. Fisher, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Tillie Shapiro, hereinafter called the plaintiff, obtained a judgment upon a verdict of a jury against the Chicago City Railway Company, hereinafter called the defendant, which judgment we are asked to reverse. The verdict was for injuries sustained by plaintiff as a result of being struck by a car belonging to defendant.

Plaintiff was a passenger on a north-bound car running on Cottage Grove avenue, Chicago, which street at the point in question runs in a northwesterly and southeasterly direction. On this street the defendant operates cars on two lines of tracks. The east track is used for north-bound cars, and the west track for south-bound cars. The car upon which plaintiff was riding stopped slightly north of the north cross-walk of Cottage Grove avenue and Twenty-sixth street, at which point she desired to alight. Twenty-sixth street runs east and west. The evidence tends to show that after alighting from the easterly side of the rear platform she turned towards the west, going around the rear of the north-bound car, intending to cross over to the west side of Cottage Grove avenue. As she approached the easterly rail of the westerly street car track she was struck, either by the front or side of a south-bound car, and received the injuries for which this suit was brought.

It is claimed in the declaration that the motorman of the south-bound car was negligent in running the car at that time and place at a high rate of speed and without ringing any bell or gong, and in its general management and operation. There is sharp conflict in the testimony on these charges. Many more witnesses testified that the car was running very slowly and that the bell was ringing, than testified to the contrary.

The evidence also raises some question as to whether the plaintiff was in the exercise of ordinary care for her own safety. There is evidence tending to show that she did not use proper caution under the circumstances.

In this doubtful situation as to what the evidence proved, it was necessary that the instructions of the court should have been accurate. The court at the request of plaintiff gave the following instruction:

“The court instructs the jury as a matter of law that in determining the question of negligence in this case, if any there was, you should take into consideration the situation and conduct of both the plaintiff and the servants of the defendant at the time of the injury, as disclosed by the evidence; and if you believe from a preponderance of the evidence that the injuries complained of, if any were sustained by the plaintiff, were caused by the negligence of the defendant’s servants, while the plaintiff was in the exercise of due care, then the plaintiff is entitled to recover.”

It is at once - apparent that this instruction is bad, in that it did not limit the negligence of the defendant to that charged in the declaration. Ratner v. C. C. Ry. Co., 233 Ill. 169, 172; Hackett v. Same, 235 id. 116, 131; Lyons v. Ryerson & Son, 242 id. 409; Presley v. Kinlock-Bloomington Tel. Co., 158 Ill. App. 220, 226.

We do not wish to be understood as holding that the giving of this instruction would be reversible error in all cases, but only that in this case in consideration of the entire record and the doubtful probative effect of the evidence, it was calculated to mislead the jury, and hence reversible error.

As this case must be tried again, we do not discuss the weight of the evidence.

For the reason given the judgment is reversed and the cause remanded.

Reversed and remanded.