text:
    Harry W. Kinney, Appellant, v. The Rochester German Insurance Company, Appellee.
    Gen. No. 13,895.
    1. Insueance—when notice of cancellation insufficient. A notice by the company of a desire to cancel a fire insurance policy is insufficient to effect the object if not given to the insured or to some one authorized by the insured to receive such notice. An insurance broker authorized by the insured to obtain the insurance is not an agent for the purpose of receiving such notice.

      2. Insurance—extent of authority of agent to procure. An agent to procure insurance has no authority to surrender or cancel the policy obtained or to receive the return of the premium upon cancellation.
    3. Insurance—what essential to effectuate cancellation hy company. In order to effectuate a cancellation by the company, it must tender to the insured the unearned premium.
    4. Insurance—what not misrepresentation which will avoid fire policy. Held, that the evidence in this case did not show a misrepresentation or concealment as to the nature of the risk which rendered the policy void.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and judgment here.
    Opinion filed June 11, 1908.
    Morris St. P. Thomas, for appellant.
    Bates, Harding & Atkins, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

In the Municipal Court this action was by Harry W. Kinney as plaintiff against The Rochester German Insurance Company as defendant. It was submitted to the court without a jury, and the court found the issues for the defendant and gave judgment for costs. From this judgment the plaintiff appealed to this court,—the cause being of the first class under the Municipal Court Act. The questions in it arise under the affirmative defenses made by the defendant. There is no dispute about the prima facie case made by the plaintiff. The suit was brought in assumpsit on a policy of fire insurance for $1,500 issued to the plaintiff on a two-story brick building, with brick and frame additions, situated at numbers 933 to 959, inclusive, One Hundred and Twentieth street, being on the southeast corner of South Peoria street, West Pullman, Chicago, Illinois. The policy ran from June 29,1906, to June 29, 1907.

There was a fire loss on the premises to the amount of $32.50 on July 1, 1906, and the defendant paid to the plaintiff its pro rata share of said loss, being $3.75. The defendant’s liability under the policy was thus reduced to $1,496.25. October 26,1906, the property covered by the policy was again damaged by fire to the extent of $20,370.66. The value of it was then $24,-233.78. Proper proofs of loss were made and delivered to the company, but the company refused to pay any part of the loss.

These matters were set out in the declaration. A stipulation embodying them was also made at the trial and read in evidence. The stipulation also contained statements that the defendant issued and delivered the policy in question through George Hermann & Co., its managers at Chicago; that from the time of the issuance of the policy to the time of the trial George Hermann & Co. had been defendant’s managers and general agents at Chicago; that during the same time the plaintiff had been a resident of Cincinnati, Ohio, and that defendant had been a non-resident corporation without a principal office in Chicago, but with an agent within the First Municipal Court District of said city.

The stipulation also fixed the liability of the defendant to the plaintiff, if it were liable in any amount, at the sum of $1,496.25, with interest thereon at the rate of 5 per cent, per annum from February 18, 1907.

The defendant company, under the general issue pleaded, claimed that these two defenses were established by the evidence: First, that the policy had been canceled by written notice to the assured, and expired by virtue of such cancellation on October 24, 1906, the day before the fire occurred; and second, that the policy was void from the beginning, because there were misrepresentations and concealments made by the assured’s agent at the time of the application.

The policy contained the provision: “This policy shall be void if the insured has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning this insurance or the subject thereof.” And under this clause it is claimed that the policy was void when issued, inasmuch as some person representing the assured represented to the agent of the defendant from whom the policy was procured, at the time it was procured, that the property was occupied as a scale factory only, and concealed from him the fact that it had in it also a candy factory.

The trial judge, hy holding certain propositions of law submitted by the plaintiff and refusing to hold certain propositions offered by the defendant, signified his disagreement with the first of these propositions, on the twofold ground (a) that the service of notice of the attempted cancellation was not made on the plaintiff, or on any authorized agent of his for that purpose, but only on insurance brokers who had obtained the policy for the plaintiff; and (b) that the return or offer to return the unearned premium for the unexpired term was a condition precedent to cancellation; and that no such return or offer to return said unearned premium or anything tantamount thereto occurred.

Plaintiff, citing Vose v. Strong, 144 Ill. 108, 113, as authority, contends in his reply brief that in the absence of the assignment of cross-errors by the defendant on these holdings by the trial judge, the defendant must be held to have acquiesced in that finding, and that there is no contention, therefore, before us that the policy was cancelled. This is, at the very least, a doubtful proposition. In Borden v. Croak, 131 Ill. 68-77, the same judge who delivered the opinion in Yose v. Strong declared that it was an obviously unsound one. The question being, the court said, whether the trial judge, upon the facts presented and the rules of law applicable thereto, reached a correct judgment, the mode of reasoning upon which he proceeded was immaterial. He might have given the wrong reason for a right conclusion, and yet the judgment would have to be affirmed.

But the question involved is an academic one in this case, except as it justifies us in briefly noting our reasons for agreeing with the position taken by the trial judge on this point.

The evidence shows that H. D. Cummings & Company are insurance brokers in Chicago, and that on or about June 29, 1906, they applied by an employe to George Hermann & Company, fire insurance agents in Chicago, for a policy of insurance on the property here involved. There was a habit of transactions between Cummings & Co. and Hermann & Co., evidently, which had made a running account between them that was settled every month. George Hermann & Co. were the agents for Chicago and Cook county of the Rochester German Insurance Co., for which they issued policies. They issued one in this case running to the plaintiff, in whose name it was applied for. As originally issued it contained this clause: “It is understood that Joseph N. Kinney holds a life interest in the property.”

On October 15,1906, a settlement between Cummings & Co. and George Hermann & Co. resulted in the payment of the premium of $32.51 by the former to the latter. This premium was at the rate, therefore, of $21.67 a thousand.

A written or printed application for the insurance was handed to George Hermann & Co. by Cummings & Go. when the policy was issued, together with the written and printed form describing the property to be insured, which was to be attached to the regular form of the defendant’s policies. This attached form is headed: “The Chicago Board of Underwriters of Chicago. Commercial Building Form with occupancy and contribution clause adopted Jan. 11, 1906.”

The description of the property before quoted contains no statement of the use to which it was put. A clause following the description reads: “Permission granted for the use of the premises as at present and for other purposes not any more hazardous and to keep and use all articles and materials usual to the business conducted therein, but. the use, handling or storing of benzine, benzole, gasoline, naphtha, calcium carbide or fireworks is prohibited unless a special permit is attached hereto.”

H. D. Cummings & Co. were employed as insurance brokers to procure insurance for the property in question by one William L. McCague, who was a real estate agent in Chicago, and who had had charge and management of the property for the non-resident owner for over three years. Mr. Kinney testified that this agent looked after the insurance, and that he personally never saw any member of the firm of Cummings & Co. until after this suit was begun.

Mr. McCague, on receiving policies of insurance on the property, would forward a memorandum of them to Mr. Kinney, but keep the policies himself. This was the course adopted with the policy sued on here.

Although the policy is dated July 2, 1906, it was to cover the period between June 29, 1906, and June 29, 1907, and on July 1,1906, as before stated, there was a small fire loss on the property, of which the defendant’s pro rata share was $3.75. A proof of loss was duly made by Mr. Kinney and signed by him, and the amount was on payment receipted for by him personally. It was paid in connection with the pro rata contribution to the loss of two other companies represented also by George Herrmann & Co., by a check of George Herrmann & Co. to the order of Harry W. Kinney, dated August 24, 1906. The check was indorsed by Mr. Kinney and by the Merchants National Bank of Cincinnati, and paid through the Chicago Clearing House on October 19,1906. At some time not appearing in the record there was indorsed on the policy, as evidencing this payment, “Loss, $3.75. Date July 1, 1906. Paid Aug. 23, 1906.”

September 27, 1906, Mr. McCague sent the policy in question, which had been in his possession from a few days after its issuance, to Cummings & Co. ’s office, together with others. Although he was not allowed by the court to testify for what purpose he so sent them, the indorsement by Herrmann & Go. on that date on the policy sned on, of the understanding that the life interest of Joseph 1ST. Kinney had ceased, would seem to indicate that the said purpose was to secure this' indorsement through Cummings & Co.’s agency. Cummings & Co. did not return the policy to McCague after securing this indorsement, but held it, as indicated by subsequent transactions, either to secure a reduction of rate and a rebate on account of the removal of gasoline from the premises, or for some other reason. Before Cummings & Co. had carried the policy to Herrmann & Go. for this purpose, however, Herrmann & Co., having occasion to send an inspector to the vicinity of the property in question to investigate another risk, told the inspector that they “were interested in another building in the same block” (meaning the plaintiff’s property), and asked him to look that up also. “I called his attention to this Kinney building,” says Mr. Sweetland of the firm of Herrmann & Co., “and told him we had no inspection of that risk or the occupancy—what it was—and while he was there, he had better take that in too.” The inspector reported to Mr. Sweetland that there was a candy factory in the building—a fact which Mr. Sweetland says he never had known before. On hearing this, and because a candy factory is, as he says, very hazardous, he ordered the policy cancelled.

The policy contained this usual cancellation clause:

“This policy shall be cancelled at any time at the request of the insured; or by the company by giving-five days notice of such cancellation. If this policy shall be cancelled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining- the customary short rate; except that when this policy is cancelled by this company by giving notice, it shall retain only the pro rata premium.”

In supposed exercise, evidently, of the option given by this clause, the following letter was on October 19, 1906, delivered by Herrmann & Co. to Cpmmings & Co.:

“Chicago, October 19th, 1906.

H. D. Cummings & Co.,

Chicago, Ill.

We desire to cancel the following policies issued to Harry W. Kinney and insuring property at 933-959 120th Street, viz:

Bochester German, Policy No. 126291, Amt. $1,500.

Buffalo German, Policy No. 63052, Amt. 1,000.

Caledonian, Policy No. 1685202, Amt. 1,000.

You will be allowed until October 24th at noon to replace the same, after which time all liability under said policies will cease and determine. We credit your account with the unearned premium for the' unexpired time, and request you to return same to this office on or before this date mentioned.

Geo. Herrmann & Co.,

Agents.”

October 22,1906, a messenger from H. D. Cummings & Co. brought in the policy in question and others to George Herrmann & Co., and received a receipt for them from George Herrmann & Co. worded as follows:

“October 22, Í906.

Beceived below listed policies on bldg, of Harry W. Kinney for rebate to 172 plus 10% from Aug. 31, 1906, for gasoline removed and return to office of H. D. Cummings & Co.”

Then follows a list of ten insurance policies of different companies, among them the one in suit.

On October 23, 1906, Herrmann & Co. placed this indorsement on the policy:

“Bate reduced to 1.892 from 8/31/’06 for improvements and $3.39 rebate refunded assured. Chicago, 10/23/’06.

Geo. Herrmann & Co., Managers.”

This amount of $3.39, however, was not paid over to anybody by Herrmann & Co., but was credited to H. D. Cummings & Co. in the books of Herrmann & Co., on the running account between Herrmann & Co. and H. D. Cummings & Co.

Early in the morning of October 25,1906, the fire on which the loss is claimed in this suit occurred. Before it was known, however, to George Herrmann & Co. or H. D. Cummings & Co., a clerk from the latter office called at Herrmann & Co.’s office, just after the opening hour, and was told by Mr. Sweetland that Herrmann & Co. had figured the return premium on account of the cancellation. Cummings & Co.’s clerk then figured it over with Herrmann & Co.’s clerk, and put down figures on a card of Herrmann & Co.’s, which he seems to have taken away with him, leaving the policies with Herrmann & Co. The figures were as follows:'

“Bebate. Bet. Premium.
2.26 12.96
3.39 19.44
2.26 12.96
1685202 Cal. 15.22
126291 B.G. 22.83
63052 B.G. 15.22.”

The same day, having placed a notation on the policy as follows: ‘ ‘ Cancelled October 24,1906; returned premium pro rata $19.44 by company, credit Cummings & Co.,” Herrmann & Co. sent the policy to the head office of the company at Bochester, where it was received October 27, 1906. The plaintiff demanded it from Herrmann & Co. on October 27th, but they refused to comply with said demand, but produced it on the trial of the cause. Mr. Kinney testified: “I never received any notice from the Bochester German Insurance Company or its agents of any intention on their part to cancel this policy. Neither the defendant nor George Herrmann & Co. ever paid or offered to pay me any portion of the return premium.”

This statement of the evidence is sufficient to show, we think, that no proper notice under the cancellation clause in the policy was given to the plaintiff nor the requisite repayment of premiums to him made. H. D. Cummings & Co. were simply the insurance brokers for the plaintiff. It does not appear that they had or assumed to have any authority to receive either notice of cancellation or premium rebate for him. It is very probable that if this fire loss had not unfortunately occurred when it did, a few days later the cancellation would have been properly accomplished by the assent of the assured. Cummings & Co. would very probably have notified the plaintiff or his agent, McCague, who would have passed the notification on. At the same time they might have paid over the rebate and requested Kinney’s personal receipt to the defendant for it. The plaintiff, recognizing the right of the company to secure the cancellation at its option, might, for convenience, and probably would, have recognized 'the notice coming this way and have accepted and receipted for the money and procured other insurance. No question would then have arisen. This is very possibly what Herrmann & Co. expected would be the course of things, although when they had $3.75 to pay as a fire loss on this policy they did not rely on crediting Cummings & Co. with the money and having Cummings & Co. advance it to the insured, but paid it with their own check. But in any event their action in dealing with Cummings & Co. was at their own risk, and was, as we conceive, very possibly at the time so understood by them. The chances were heavily'against a loss until the arrangement could be consummated, and for convenience they took them. But the relations of H. D. Cummings & Co. to the assured were not altered thereby. If the business had been finally transacted through them,—as their action in receipting for the notice and checking up the proportionate repayment to be made, without demanding the policy which had evidently been left with them, and by them with Herrmann & Co., not for surrender but for indorsement, indicated that they expected it would be,—they would have been, until the said business was consummated, the agents of the insurer, not of the insured, in it.

Their employment by Mr. Kinney through his agent to procure the insurance gave them no authority to surrender or cancel the policy, or to receive the return premium on cancellation. Newark Fire Ins. Co. v. Sammons, 110 Ill. 166; Grace v. American Central Ins. Co., 109 U. S. 278; White v. Connecticut Fire Ins. Co., 120 Mass. 330; Indiana Ins. Co. v: Hartwell, 100 Ind. 566; Hartford Fire Ins. Co. v. McKenzie, 70 Ill. App. 615; Hartford Fire Ins. Co. v. Tewes, 132 Ill. App. 321.

We think, moreover, that the opinions of the learned judge of the Appellate Court in the Second District, in the last two cases cited, are entirely sound in stating the rule in Illinois to be as it is in New York (Tisdell v. N. H. Fire Ins. Co., 155 N. Y. 163), under the cancellation clause in New York Standard Policies, such as the one involved here, that “the insured does not have to tender his policy in order to entitle bim to receive back the unearned premium, but it is for the company desiring cancellation to seek the assured and tender the money to him, and until it does so, the cancellation has not been effected.”

No such tender was shown here. The “crediting” Cummings & Co. “with the unearned premium for the unexpired term” was not such a return or tender. The court below was right in holding that the policy was not cancelled by the actions of Herrmann & Co. on and subsequent to October 19, 1906.

But we do not agree with the trial court in holding the second ground of defense better established.

The defendant argues, and we presume that the trial judge must have proceeded upon the theory, that there was, first, a concealment, and, second, a misrepresentation, of the character of the risk when the policy was procured, which rendered it void from the beginning.

The concealment alleged is that when the policy was applied for, the insurer was not told that there was a candy factory (an extra hazardous risk) in the building, and the misrepresentation is imputed to an alleged statement of Alexander M. Boss, or some other employe of Cummings & Co., to Mr. Sweetland, as the agent of the insurer, at the same time, that the building was occupied as a scale factory, while as a matter of fact there were both a scale factory and a candy factory there. The testimony of Mr. Sweetland as to this is as follows:

“Q. What did he” (i. e., Boss) “say to you and what did you say to him ? A. He handed me the application.

Q. Have you the application now? A. I have not, it must have been destroyed.

* * * Q. What did you say to him and what did he say to you? A. Well, he asked me to turn up the map and our map showed— * * * it was occupied, by Gibson & Co., photo enlarging * * * I asked him if the map showed the occupancy correctly and he said no, it did not; that those people had moved out and that a scale factory had moved in there and that it had not been pasted on the map yet. * * * He said the present occupancy of the building was that of a scale factory and that the map was incorrect.”

Mr. Boss denied that he applied for the policy, and denied that he had ever had any conversation with Sweetland with reference to the building in question or with reference to placing insurance thereon, and there the direct testimony stops.

Counsel for defendant say that “nobody denies what was said at that time,” and assumes that if what was said was not said by Boss it was said by somebody else who represented the assured. But Mr. Sweetland’s testimony was positive that it was Boss and not somebody else who talked with him.

Leaving out of the account, however, the obvious proposition that the defendant is here undertaking to establish a position on which it has the burden of proof by the testimony of one witness who is flatly contradicted by another, and assuming the plaintiff’s hypothesis that Mr. Boss is mistaken, or that some other employe of Cummings & Go. had the conversation with Mr. Sweetland testified to by the latter, we think the evidence falls short of bringing this case within the scope of those universally recognized authorities which counsel cite, that fraudulent concealment or material misrepresentation or even false statements ignorantly made, in answer to questions concerning occupancy precisely put, where the respondent should have known the facts, will vitiate the policy, if relied on by the insurer when issuing it. On the contrary, we think that if, in this case, assuming the testimony concerning this conversation to be literally true, the policy should be held void ah initio, the doctrine would be very dangerous to any assured party procuring a policy through a broker or agent. Undoubtedly the agent, to secure the insurance, must be held to represent the insured, but his conversation with a similar agent or broker must be construed somewhat with reference to the business of both.

In this case it appears that the broker’s employe brings to the insurer and leaves with him a written application, which is the best evidence of the representations made. That application the insurer cannot produce and acknowledges was destroyed. The form describing the property, to be attached to the insurance policy, contains no statement of the use or occupancy of the building. The applicant on the application calls attention himself to the insurance map and says that it is incorrect. Why he should do so, if he intended concealment, or misrepresentation, does not appear. The “precise” question asked him was whether the map showed the occupancy correctly. His answer to that is conceded to have been truthful. But he is said by Mr. Sweetland to have said besides that the present occupancy was that of a scale factory. There was a scale factory there and also a candy factory, it seems.

Mr. Sweetland says: “Every quarter or thereabouts the map company furnishes us with new diagrams of buildings, and as buildings are altered or changed they send around and paste over the occupancy of the building.”

When the book was produced at the trial it had a paster showing both the scale factory and the candy factory. When it was placed there, except that it.was after June 29, 1906, when the policy was applied for, does not appear.

But it certainly does appear that the insurers did not rely on any silence or misrepresentation of the clerk or messenger who talked with Mr. Sweetland, for according to Mr. Sweetland’s own testimony they charged as premium more than the Board of Underwriters ’ rate for the risk of a scale factory, and exactly the rate for a candy factory. Moreover, for three months and a half, within which, according to Sweet-land’s testimony, this paster must have appeared in the book, they make no investigation, but at the end of that time, when the occasion is convenient, say to an inspector that “they had no inspection of that risk or the occupancy there—what it was—and he had better take it in.” Then when they have concluded they do not want the risk, they do not ask when the occupancy first became that of a candy factory, or make any claim that the policy is void, but fix a date five days farther on at which, according to their claim, it was to terminate, and calculate the earned premium upon a risk carried for the three months and more.

We do not think there was any ground in the record as it stands for the court’s holding that there was concealment or misrepresentation in this case vitiating the policy; and acting on that opinion we shall, as authorized to do, enter that judgment which the Municipal Court, sitting without a jury, should, in our opinion, have entered.

This renders it unnecessary for us to discuss the questions raised on the necessity of tendering a return of the premium in defending on the policy, or of the efficacy of the tender through the registry of the Municipal Court.

It renders also unnecessary a discussion of the.error of the trial court—for such we deem it—in excluding the rate slips offered in evidence by the plaintiff, Nos. 563 and 611. They contained information that the premises in question were in part occupied by a candy factory as far back as May 24, 1906. They were sufficiently proven to have been in Herrmann & Co.’s possession at or near their dates. As a matter of fact it was a fair and legitimate inference that rate slip 563 furnished the data on which the premium charged was calculated.

If we did not feel compelled to render judgment here for the appellant for the amount due him, we could in no event have overlooked this error, and must have reversed the judgment and remanded the cause for a trial with this material evidence admitted.

The judgment of the Municipal Court is reversed and judgment will be entered here in favor of appellant and against appellee for $1,496.25, with interest thereon at 5 per cent, per annum from February 18, 1907, to the date of said entry.

Reversed and judgment here.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    The People, Defendant in Error, v. E. W. Dada, Plaintiff in Error.
    Gen. No. 13,904.
    1. Municipal Court—when without jurisdiction of criminal cases. The Municipal Court of Chicago has no jurisdiction of an offense the punishment for which must he fine and imprisonment.
    2. Municipal Court—how act creating, construed. The Municipal Court Act is penal in so far as it provides a new method and a new tribunal for prosecuting and trying criminal cases, and therefore, to such extent, it must he strictly construed.
    Proceeding by information. Error to the Municipal Court of Chicago; the Hon. Judson F. Gome, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed June 11, 1908.
    Rehearing denied June 24, 1908.
    Ernest Langtry and Gr. H. Sugrue, for plaintiff in error.
    John J. Healy and Boger Sherman, for defendants in error.
   Mr. Justice Brown

delivered the opinion of the court.

The plaintiff in error was found guilty by a jury in the Municipal Court of Chicago on May 20, 1907, of obtaining goods by false pretenses. The prosecution was originally begun in the Municipal Court and was by information. On May 25, 1907, a judge of the Municipal Court sentenced him “to confinement at labor * * # in the House of Correction in the city of Chicago * * * for the said crime of obtaining goods by false pretenses, whereof he stands convicted, for the term of one year; * * * also to pay * * * a fine of two hundred dollars and also the costs * * * taxed at twenty dollars * * * ” And the Superintendent of said House of Correction was required and commanded to take the body of the defendant and confine him in the said House of Correction at labor for the term of one year and thereafter until said fine and costs should have been worked out at the rate of one dollar and fifty cents per day, or until said fine and costs should have been otherwise paid, etc.

The defendant sued out a writ of error from this court, which was made a supersedeas, and he was enlarged on bail pending this hearing.

He must be discharged, and the judgment, which is void, reversed. The Municipal Court has no jurisdiction of the offense for which the defendant was tried. That offense is conceded to be the one which is described and for which the punishment is provided in section 96, division one of the Criminal Code of lilinois. That punishment is declared to he a fine in any sum not exceeding $2,000 and imprisonment not exceeding one year. No discretion is given the court —it must sentence to fine and imprisonment a person found guilty under the statute.

The Municipal Court of Chicago is a court established and given jurisdiction by the legislature of Illinois. It came into existence after the Act establishing it had been accepted by the legal voters of Chicago at an election on the first Monday of November, 1905.

Its original criminal jurisdiction is fixed in the Act as it stood when the defendant was prosecuted to be only over those “criminal cases in which the punishment is by fine or imprisonment otherwise than in the penitentiary.”

It seems to us as clear that it does not include a criminal case in which the punishment must be by both fine and imprisonment, as it does that it does not include capital cases or cases of penitentiary offenses. To argue that the distinction between cases punishable by fine or imprisonment and cases punishable by fine and imprisonment, so that the imprisonment is not in the penitentiary, is a causeless or unwise one, is to impugn the wisdom of the legislature, but it cannot enlarge the jurisdiction of the court.

It is unnecessary for us to inquire whether the amendment of June 3, 1907, which adds to the cases of which the Municipal Court has original jurisdiction, “all other criminal cases which the laws in force from time to time may permit to be prosecuted otherwise than on an indictment by a grand jury,” has changed the jurisdiction of the Municipal Court as to this offense, nor whether section 8 of article II of the Constitution of Illinois forbids the prosecution of this offense in any court except on indictment; nor whether contemporaneous legislative or judicial construction throws light on the scope of the constitutional provision ; nor whether an offense punishable by fine or inn prisonment or both, falls within the jurisdiction of the Municipal Court.

We decide only the case before us, which is one in which an offense absolutely punishable without any discretion by the court by fine and imprisonment, was prosecuted in a court newly eréoted, to which jurisdiction only of cases punishable by fine or imprisonment had been given. The court inflicted both fine and imprisonment as punishment.

It is said we should give a liberal construction to the statute as remedial. It is certainly penal in so far as it provides a new method and a new tribunal for prosecuting and trying criminal cases. We must construe such portions of it as do this strictly.

The judgment is reversed and the defendant discharged.

Reversed.


author: Mr. Presiding Justice Baker

text:
    Adolph Bennett, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,043.
    1. Common carriers—duty of, in running cars across public streets. A traction company in running its cars across a public street is bound to the use of reasonable care to avoid injuring any one that may be passing along such public street. This rule applies in favor of a servant of such company who is employed in another of the cars of such company running along a street to be crossed.
    2. Master and servant—when declaration must negative existence of relation of fellow-servants. A declaration which states that the plaintiff was a servant of the defendant and then alleges only that the defendant by its servants did a negligent act, whereby the plaintiff was injured, and fails to allege that the plaintiff and such negligent servant were not fellow-servants, does not state a cause of action and the omission of such an averment is not cured by verdict.
    3. Master and servant—who not fellow-servants as matter of law. 'Held, under the evidence, that a conductor of a cable line and a motorman of an electric intersecting line of the defendant company, were not fellow-servants, as a matter of law.
    4. Masteb and sebvant—what not assumed rislc, as a matter of law. A conductor of a cable train does not assume, as a matter of law, the risk of injury arising from his car being struck by an intersecting electric car of the defendant company where the accident results from the negligence of a fellow-servant.
    5. Negligence—when motorman guilty of. Held, under the evidence, that the motorman in charge of an electric car seeking to cross a public street upon which other cars were running, was guilty of negligence which resulted in a collision, and this notwithstanding the slippery condition of the tracks at the time of the accident.
    6. Contbibutory negligence—what not, as matter of law. Held, that a conductor who was injured by being struck by an intersecting car of his master, was not guilty of contributory negligence by reason of not being upon the rear platform of his car at the time of the accident as required by the rules of his master.
    7. Pleading—how averment that plaintiff and defendant’s servants were not fellow-servants may he made. In an action for personal injuries by a servant against his master, the declaration may allege either that the plaintiff and the defendant’s servant charged with the negligence in question were not fellow-servants, or such declaration may set up the facts from which such conclusion necessarily follows.
    Smith, J., dissenting.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed June 16, 1908.
    Statement by the Court. This is an appeal by the defendant from a judgment for $10,000, recovered by the plaintiff in an action on the case for personal injuries alleged to have been sustained by him through the negligence of the defendant.
    Defendant operated in Cottage Grove avenue, a north and south street, a double track cable street railway, and also operated in Sixty-third street, an east and west street which crosses Cottage Grove avenue, a double track electric street railway. Plaintiff was a conductor on the Cottage Grove avenue line, and at the time he was injured was on duty on the rear car of a south-bound train made up of the grip car and two trailers. As his car was crossing the eastbound track of defendant’s Sixty-third street line, a trolley car of defendant going east on that track, ran into his car, and in and by such collision he sustained the injuries complained of.
    W. J. Hynes, S. S. Page and C. LeBoy Brown, for appellant.
    James E. McGrath, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

The case went to the jury on the first and third counts of the declaration, and appellant contends that neither of said counts states a cause of action.

The first count sets out the facts above stated as to the operation by the defendant of said two lines of street railways; avers that said two streets are public streets in the city of Chicago; that while a train of cars was going south in Cottage Grove avenue across Sixty-third street, the defendant, by its servants, etc., so negligently, etc., ran a car in Sixty-third street that by reason thereof said car ran into said Cottage Grove avenue train, and thereby the plaintiff, who was on one of the cars of said train, exercising due care, etc., was struck and injured, etc.

The law made it the duty of the defendant in running its car across a public street, to use reasonable care to avoid injuring any one who might be passing along such public street. The count avers that defendant negligently ran its car across said street, and by reason thereof its car struck and injured plaintiff, who was passing along said street. The fact that plaintiff was passing along said public street in another street car of defendant did not affect the duty of defendant to use reasonable care in running its car across said street to avoid injuring him. The count states facts on which the law raises the duty on the part of the defendant to exercise reasonable care to avoid injuring the plaintiff; a breach of that duty by the defendant, and an injury to the plaintiff resulting from such breach of duty, and therefore states a cause of action. Bahr v. Nat. Safe Deposit Co., 234 Ill. 101; McAndrews v. C., L. S. & E. Ry. Co., 222 id. 232.

The third count avers the facts above set forth as to the operation by the defendant of its said two lines of street cars upon the streets above mentioned; avers that plaintiff was a conductor of a car on Cottage Grove avenue; that the trolley car on Sixty-third street was operated by a motorman who was a servant of the defendant; that said motorman in running his trolley car across Cottage Grove avenue, negligently, etc., ran said car, by means whereof said trolley car ran into and struck against the rear car of the train on Cottage Grove avenue, and plaintiff, who was upon said rear car, exercising due care, etc., was by the negligent manner in which said trolley car was operated, struck by said trolley car and injured, etc. There is in the count no express averment that the plaintiff and the motorman were not fellow-servants.

A count which states that plaintiff was a servant of the defendant, and then alleges only that the defendant by his servants did a negligent act, whereby the plaintiff was injured, and fails to allege that plaintiff and such negligent servant were not fellow-servants, does not state a cause of action, and the omission of such averment is not cured by verdict. Joliet Co. v.. Shields, 134 Ill. 209; Schillinger Bros. v. Smith, 225 id. 74. But the third count of this declaration does not alone allege that the plaintiff was injured through the negligent act of a servant of the defendant. It alleges the line of employment of plaintiff and of the motorman whose act is averred to be negligent, and their relation to each other.

In the original first count of the declaration in Leach v. The Chicago City Ry. Co., there was no averment that plaintiff Leach and Golden, by whose negligent act he alleged that he was injured, were not fellow-servants, but in the count the facts were alleged that Leach, a servant of the defendant, was the conductor of the rear car of one of defendant’s trains; that Golden was a gripman in the service of defendant in control of the grip car in the train following plaintiff’s train on the same line, and that Golden negligently started his car and thereby plaintiff was injured. After the Statute of Limitations had run, Leach filed an additional first count in which, for the first time, he in terms alleged that he arid Golden were not fellow-servants. To the amended first count the defendant pleaded the statute; the plaintiff demurred to the plea, and it was held that the demurrer to the plea was properly sustained. In the opinion in the case it was said:

“In the first count of the original declaration the relationship of the parties is fully stated, and under the rule laid down in Chicago and Alton Railroad Co. v. Swan, 176 Ill. 424, and Louisville, Evansville and St. Louis Railroad Co. v. Hawthorn, 147 id. 226, it was not necessary to aver specifically that appellee and Golden were not fellow-servants. It was sufficient that the facts set up established that relation. The first additional count was therefore a mere restatement, in somewhat different form, of the cause of action set up in the first count of the original declaration, and the demurrer to the plea of the statute of limitations to that count was properly sustained.” Chicago City Ry. Co. v. Leach, 182 Ill. 359, 364. On the second appeal it was held that the evidence showed that Leach and Golden were fellow-servants. Chicago City Ry. Co. v. Leach, 208 Ill. 198.

It follows, we think, that as a matter of pleading, it is not necessary to set out facts from which the conclusion follows, as a matter of law, that plaintiff and the negligent servant of the same master were not fellow-servant's, but it is sufficient to make averments in respect to the line of employment of the plaintiff and the negligent servant, from which and a plea of not guilty, an issue is presented to the jury whether the plaintiff and such negligent servant were or were not fellow-servants. We think that the third count states a cause of action.

Appellant further contends that the only conclusion that can reasonably be drawn from the evidence is, that plaintiff and Knowles, the motorman, were 'fellow-servants, and that therefore the trial court should have directed a verdict of not guilty, and this court should reverse the judgment with a finding of facts.

It is not contended that plaintiff and Knowles were fellow-servants, under the first branch of the rule announced in C. & N. W. Ry. Co. v. Moranda, 93 Ill. 302, but the contention is that they were fellow-servants under the second branch of that rule; that servants of the same master who are by their usual duties brought into habitual association so that they can exercise an influence upon each other promotive of proper caution, are fellow-servants. The question then is, whether the usual duties of the conductors of the defendant on the Cottage Grove Avenue cable ears were of a nature to bring them into habitual association with the motormen of the defendant on the Sixty-third street trolley cars. The two lines of cars ran out of different barns. The only association between the crews of cars on the two lines was when a ear on one line passed in front of a car of the other line at Sixty-third street. The evidence shows that a particular car on one line might run for months without meeting a particular car on the other line; that such meeting at said crossing between any two particular cars was a mere chance.

The distinction between the facts of this case and the facts in the case of C. C. Ry. Co. v. Leach, supra, is obvious. In that case Golden’s grip car ran immediately behind Leach’s car, and it was the duty of Golden to run his grip car in such manner as not to run into the car in front of him. The duties of Golden and Leach were snch as to bring them into habitual association while and so long as Leach’s train ran immediately in front of Golden’s train. They were fellow-servants from the moment that they entered upon the duties in which they were engaged at the time of the collision, because the duties of their respective positions were such as to bring them into habitual association with each other. Under the second breach of the rule, it is habitual or usual association between servants of the same master that makes them fellow-servants.

In the Moranda case, supra, it was said, p. 317: “It is believed no case can be found in our own reports where the common master has been held exempt from liability for injury to one servant by the neglect of another, where it does not appear that the servants were either strictly co-operating in the particular work they were about, or were usually consociated in their ordinary duties.”

In the opinion of the majority of the court, the evidence does not conclusively show that plaintiff and Knowles were usually associated in their ordinary duties, and appellant has not, on the evidence in this record, just cause to complain either that the question whether they were fellow-servants was submitted to the jury, or that the jury found that they were not fellow-servants.

Appellant further contends that if plaintiff and Knowles were not fellow-servants, still plaintiff assumed the risk of injury from the negligence of Knowles as one of the dangers of the service, under the decision in Clark v. C., B. & Q. R. R. Co., 92 Ill. 43. In that case it was held that the plaintiff, an employe of the defendant, assumed the risk of injury from the negligence of a servant of a railroad company which was a lessee of the defendant company and ran its train over the tracks of the defendant. The rule stated in that case cannot be held to apply to injuries from the negligence of a servant of the same master who is not a fellow-servant under the repeated decisions of our Supreme Court. Ill. Third Vein Coal Co. v. Cioni, 215 Ill. 583; C. & E. I. R. R. Co. v. White, 209 id. 124; C. C. Ry. Co. v. Leach, 208 id. 198; Hartley v. C. & A. R. R. Co., 197 id. 440.

We think that the question whether Knowles was guilty of negligence in the operation of the trolley car was, on the evidence in the case, a question of fact for the jury, on which their verdict must be held conclusive. The cable ears had the right of way. It was the duty of Knowles to bring his car to a stop before he reached the west line of Cottage Grove avenue. If the track was wet or greasy, its condition was obvious, and it was the duty of Knowles to do what was necessary, in view of the condition of the track, to stop his car before it reached the west line of Cottage Grove avenue. We think the jury were warranted in finding from the evidence that the cause of Knowles’ failure to stop his car at the proper place, was that he did not begin to reduce its speed where the rules required him to reduce it, nor to apply the brakes until after he had passed the point where it was his duty to apply them.

We do not think that the plaintiff was guilty of contributory negligence because he was not on the rear platform, where the rules required him to be when the car was crossing a street, but was some distance forward, standing on the running board giving out transfers to passengers. His position on the car was but the occasion, not the cause of his injury.

In view of the nature and results of plaintiff’s injuries, we cannot say that the damages awarded him by the jury are excessive.

We find no reversible error in the rulings of the court on questions of evidence, or in giving or refusing to give instructions. In the opinion of the majority of the court, the record is free from reversible error, and the judgment will therefore be affirmed.

Affirmed.

Mr. Justice Smith dissenting.


text:
    Marie M. Price et al., Appellees, v. Elizabeth Goodrich, Appellant.
    Gen. No. 14,058.
    1. Amendments and jeofails—when allowance after verdict not atuse of discretion. Held, that after verdict it was not an abuse of discretion to permit an amendment which consisted in the adding of an additional plaintiff.
    2. Statute of Limitations—when amendment does not introduce new cause of action. The addition of a-co-plaintiff does not change the cause of action.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed June 16, 1908.
    Statement by the Court. This suit was brought, March 24, 1902, by appellee Price against appellant to recover $354.65 alleged by plaintiff to be due to her from defendant for services rendered by her to defendant as a typewriter and stenographer from August 6 to December 20, 1901. The cause was tried by a jury. On the trial plaintiff testified that at the time the services were rendered she and appellee Carpenter were partners in said business.
    At the close of the case defendant moved that the suit be dismissed on the ground of variance, and the court denied the motion. She then asked the court to instruct the jury that if they believed from the evidence that plaintiff and Carpenter were partners, and that the work sued for was done by the partnership, they should find the issues for the defendant, and the court refused to give, the instruction. Carpenter testified on the trial as a witness for plaintiff. The jury found a verdict for the plaintiff for $354.65, and defendant moved for a new trial. While this motion was pending, the court, on motion of plaintiff, ordered, “that all papers and proceedings in the cause be and are hereby amended,” by adding the name of A. S. Carpenter, “wherever the name of the said Marie M. Price occurs.” Leave was by said order given defendant to file a plea of the Statute of Limitations, and defendant filed a plea averring that the cause of action did not accrue to the plaintiffs within five years next before the commencement of the suit by the plaintiffs. The oral demurrer of the plaintiffs to said plea was sustained; the motion for a new trial denied and judgment entered for $354.65 and costs against defendant, to reverse which judgment she prosecutes this appeal.
    Burees & McKinley, for appellant; Wm. J. Staple-ton, of counsel.
    Coburn & Case, for appellees.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

We think that section 24 of our Practice Act gave to the Circuit Court power to permit the pleadings and proceedings to be amended after verdict and pending the motion for a new trial, by adding the name of Carpenter as plaintiff; and that the court on the evidence in this case properly exercised such power by making such amendment. Cogshall v. Beesley, 76 Ill. 445; Tomlinson v. Earnshaw, 112 id. 311; Fenton v. Lord, 128 Mass. 466. Such amendment did not introduce a new cause of action, and the demurrer to the plea of the Statute of Limitations was therefore properly sustained. McCall v. Lee, 120 Ill. 261. The distinction between adding a plaintiff and adding a defendant is obvious. As to the new defendant, the suit is begun when he is made defendant. The cases cited for appellant are all cases in which a new defendant was added after the statute had run.

If the defendant had any claim or demand against the plaintiffs which could form the basis of a recoupment or set-off against both plaintiffs, but not against plaintiff Price alone, she should have shown such facts by affidavit in support of her motion for a new trial, and in the absence of such showing we cannot presume that she had any such claim or demand.

We think the record is free from reversible error,; and the judgment of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    Harty Bros. and Harty Co., Appellee, v. Samuel Polakow, Appellant.
    Gen. No. 14,074.
    Municipal court—when without jurisdiction. The Municipal Court of Chicago has no jurisdiction of an action instituted by a sub-contractor against the owner of a building and the general contractor therefor, jointly, under the mechanic’s lien act—no contract relation existing between such sub-contractor and owner.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed.
    Opinion filed June 16, 1908.
    Max M. Grossman, for appellant; H. J. Rosenberg, of counsel.
    Bulkley, Gray & More, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

Harty Bros, and Harty Co., a corporation, brought in the Municipal Court of Chicago an action of assumpsit against Polakow and Bass and Bornstein. The trial resulted in a judgment against all of the defendants for $1,998.79, from which Polakow prayed, was allowed and perfected a separate appeal to this court. 'Polakow in 1906 built a building on a lot of which he was the owner. His co-defendants, Bass and Bornstein, contracted with him to do the carpenter work and furnish the materials for said building for a certain sum, which Polakow agreed to pay them therefor, Bass and Bornstein contracted with the plaintiff to furnish the mill work for said building at the price of $7,300. The recovery was for mill work furnished by plaintiff to Bass and Bornstein under said contract, and by them used in said building under their contract with Polakow. The liability of Polakow to plaintiff for the materials furnished by plaintiffs to Bass and Bornstein depends on the Mechanics Lien Act of 1903. That act provides that in certain cases, upon giving certain notice, etc., the material man may bring his action at law against the contractor and owner jointly, and recover against both.

We shall consider only the question whether the Municipal Court of Chicago had jurisdiction of the subject-matter of the suit. If it had such jurisdiction, it was conferred by the clause of section 2 of the act creating the court, which gives that court jurisdiction of, “all actions on contracts, express or implied, when the amount claimed by the plaintiff, exclusive of costs, exceeds one thousand dollars.” There was no contract relation between Polakow and plaintiff, but there was one contract between plaintiff and Bass and Born-stein, and another contract between Bass and Born-stein and Polakow. Plaintiff’s right to recover in an action at law against Polakow jointly with Bass and Bornstein grew out of no contract, express or implied, between plaintiff and Polakow, but out of the existence of a lien in favor of the plaintiff upon the land of Polakow on which Bass and Bornstein built a building for Polakow under their contract with him, and for which plaintiff furnished Bass and Bornstein mill work. This lien for materials furnished Bass and Bornstein and by them used in said building, was given to plaintiff by section 21 of the Lien Act of 1903. That section provides that a material man shall be known under the act as a sub-contractor. Section 28 of the act prescribes the remedies of the subcontractor to enforce the lien given to him by section 21, which may be either by petition to enforce the lien against the land or by an action at law against the contractor and the owner jointly. That such action at law is a remedy given to the subcontractor to enforce his lien, and that his right of action depends upon the existence of the lien cannot be questioned. The section provides, “that such action at law shall be maintain (maintained) against the owner only in case the plaintiff establishes his right to the lien.” The action cannot, in our opinion, be considered an action on a contract, either express or implied, and therefore the Municipal Court had no jurisdiction over the cause. Cooper v. Skinner, 124 Mass. 183; Smith v. Silsbe, 53 N. Y. App. Div. 462.

It follows from what has been said that in our opinion there can never be a recovery against the defendant Polakow in this case in the Municipal Court, and the judgment of that court against him will therefore be reversed but the cause will not be remanded.

Reversed.


author: Mr. Justice Freemar

text:
    Chicago Railway Equipment Company, Appellee, v. National Hollow Brake Beam Company et al., Appellants.
    Gen. No. 13,918.
    1. Appeals and errors—effect of declaration of forfeiture pending appeal. If the relief sought by the bill is a perpetual injunction restraining the declaration .of a forfeiture, upon which a temporary injunction is obtained, a declaration of forfeiture made pending an appeal dissolving such injunction and denying the relief sought, is made subject to be rendered nugatory upon the entry of a judgment of reversal.

      2. Appeals and errobs—power of trial court in carrying into effect mandate of Supreme Court. Where the purpose of a bill is to obtain a perpetual injunction restraining a forfeiture, upon which a temporary injunction has been granted and erroneously dissolved, the trial court in carrying into effect the mandate of the Supreme Court recognizing the right to the relief sought, may conform its decree as well to the object of the Supreme Court as to the changed conditions resulting pendente lite, and thus give full effect to the judgment of the Supreme Court.
    Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. George A. Dtrptrr, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed June 16, 1908.
    Statement by the Court. This is an appeal from a decree of the Superior Court entered in pursuance of a remanding order of the Supreme Court, which order is as follows:
    “It is considered by the court that the judgment of the Appellate Court be reversed and the cause remanded to the Superior Court with directions to enter a decree finding there is due to the Brake Beam Company from the Equipment Company the sum of $19,624.50, together with interest on that amount at 5% per annum from the date of the former decree rendered in that court and decreeing the payment thereof within thirty days, and that in default the injunction be dissolved; and for such other and further proceedings as to law and justice shall appertain. It is further ordered that the appellants recover costs and have execution therefor.”
    This order follows substantially the opinion of the Supreme Court in the case. (226 Ill. 28-40).
    The opinion of this court on the former appeal is reported in 123 Ill. App. 533, where the material facts are sufficiently stated. The same statement of facts precedes the opinion of the Supreme Court supra.

    The decree of the Superior Court from which the present appeal is prosecuted provides inter alia: “That the decree of this court entered July 29, 1904, be and is modified in accordance with the directions of the Supreme Court as follows: That there is due from the complainant the Equipment Company to the Brake Beam Company the sum of $22,322.87 and that unless the complainant pay to the clerk of this court for the benefit of the Brake Beam Company said sum within thirty days from the entry of this decree, the injunctions issued shall be dissolved; and except in the matter of the amount to be paid and the time and conditions of payment, the decree entered on July 29, 1904, stand and remain of record in full force and effect at all times hereafter as the decree of this court. And it appearing to the court that the complainant has paid to the clerk said sum of $22,322.87, as provided in this decree, it is ordered, adjudged and decreed that the Brake Beam Company, its officers, agents and servants, be and are perpetually enjoined and restrained as prayed in complainant’s bill of complaint and supplemental bills of complaint, and that they do absolutely desist and refrain from proceeding to enforce a forfeiture of the agreement dated December 8, 1892, set out in said bill of complaint and from re-entering the demised premises described therein, from removing complainant therefrom and taking possession thereof or of any of the personal property of the complainant as prayed in the bill and supplemental bills of complaint.” It appears that a notice had been served on the Equipment Company in the name of the Brake Beam Company “that a forfeiture had been declared of the lease given it by the Brake Beam Company, for non-payment of rent,” etc. This notice was served November 9, 1904.
    James E. Murros, Deerees, Brace & Bitter, and Emil C. Wetter, for appellants.
    H. H. C. Miller and W. S. Opperheim, for appellee.
   Mr. Justice Freemar

delivered the opinion of the court.

Appellants have filed an elaborate argument in support of the contention that the decree of the Superior Court entered pursuant to the mandate of the Supreme Court is erroneous in view of what, as is claimed, were the changed conditions since the original decree of the Superior Court was entered, from which decree the former appeals to this and the Supreme Court were taken. That decree, after finding $19,624.50 with interest due from the Equipment Company to the Brake Beam Company, directed “that unless the complainant shall in ten days from date of decree pay in court for the benefit of the Brake Beam Company such sum with interest and costs of suit, the defendants are given leave to proceed with the forfeiture of the lease and to fully enforce such forfeitures in accordance with the terms of the lease, and the injunction heretofore issued shall be and stand dissolved.” It was further provided that upon payment into court by the Equipment Company of the sum stated within ten days, “the defendants are forever enjoined from further proceedings under either of the notices of forfeiture aforesaid.” It is said that at the time the original decree of the Superior Court was entered “there was only a threatened forfeiture,” the declaration of which was enjoined; and that at the time the last decree was entered the forfeiture had been declared and had become a consummated and established fact. It is argued that the Superior Court “should have pursued either one of two courses;” either “literally followed the remanding order and gone no further—stopped there and said nothing more —or else should have recognized and acted fully upon the change in conditions; ’ ’ that it should have done no more than fix the amount due from the Equipment Company to the Brake Beam Company and decree its payment and should have left all other matters open for further adjudication.”

The ground upon which this contention of the Brake Beam Company is based is that on November 9, 1904, when a forfeiture of the lease to the Equipment Company was declared pending the former appeal, more than ten days had elapsed after the entry of the decree of the Superior Court from which that appeal was taken and that the Equipment Company not having then paid the $19,624.50 within the ten days from its date fixed by that decree, and having prayed an appeal from that decree without obtaining an order continuing the injunction in force, (R. S. chap. 69, section 21) said injunction “had ceased to be in force and effect” and the Brake Beam Company was therefore entitled to declare and to enforce a forfeiture as it undertook to do; that the appeal did not have the effect of continuing the injunction in force beyond the ten days. It is claimed that the part of the decree which dissolved the injunction unless the Equipment Company paid the money into court within the ten days was self-executing. It appears that the Equipment Company prayed and was allowed an appeal to this court from that decree and filed its appeal bond of $30,000 within the ten days from entry of the decree. This court reversed the decree of the Superior Court and entered a decree here granting an injunction against the Brake Beam Company. The judgment of this court reversing the decree of the Superior Court was reversed by the Supreme Court, but in the remanding order that court recognized there was an injunction existing and still in full force and effect. That remanding order finds the sum fixed in the original decree appealed from to be due the Brake Beam Company from the Equipment Company, directs a decree for its payment within thirty days from the entry of such decree, “and that in default the injunction be dissolved.” If there was no injunction then in force restraining the enforcement of a forfeiture there would have been no occasion so to provide for its dissolution in case of such default.

The original hill of the Equipment Company prayed an injunction restraining the defendants from proceeding to declare a forfeiture, and from re-entering the demised premises. The relief sought was a perpetual injunction. The temporary injunction granted was, as said in Lambert v. Alcorn, 144 Ill. 313-330, “a mere ancillary writ which the complainant was at liberty to apply for or not as he saw fit. Its only object was to preserve the status quo until a final hearing could be had.” It is therefore unimportant to consider the precise effect of the appeal from the original decree of the Superior Court upon that temporary injunction. The purpose of the bill was to obtain a permanent injunction. Pending the final determination of that question whatever action the' appellant company took pending the appeal was, as further said in Lambert v. Alcorn supra, “at the risk of having his acts pendente lite declared illegal and of being compelled to restore everything to the condition in which it was at the commencement of the suit.” See also New Haven Clock Co. v. Kochersperger, 175 Ill. 383-395. If in the case at bar appellee was entitled to have upon its bill, as originally filed, a perpetual injunction restraining a forfeiture of the lease, it is entitled to such injunction without reference to whether the original temporary injunction granted by the Superior Court was or was not dissolved by the decree of that court pending the appeal therefrom to this and finally to the Supreme Court. The material thing is that the Supreme Court found appellee entitled to an injunction upon payment of the amount found due from it to the appellant Brake Beam Company, that it found such an injunction in force and directed in effect that upon making such payment it should continue in force. That the perpetual injunction entered by this court was in force pending the appeal to the Supreme Court can scarcely be questioned. That injunction, so far as appears, has been in no way dissolved. It appears to be recognized as in full force and effect by the mandate of the Supreme Court. It restrains appellants from proceeding to enforce a forfeiture, “from re-entering the demised premises,” and from “taking possession thereof or any of the personal property” of the Equipment Company. The decree of the Superior Court now appealed from is in conformity to that injunction and is pursuant to the mandate of the Supreme Court. We find in it no error.

The conclusion stated makes it unnecessary to consider at length appellants’ contentions that the alleged forfeiture of November 9, 1904, was legal and valid. Finding no error the decree of the Superior Court will be affirmed.

24 jfirmed.


author: Mr. Justice Freeman

text:
    Teander G. Peterson, Appellee, v. Charles M. Pusey, Appellant.
    Gen. No. 13,950.
    1. Amendments and jeofails—when action of court in permitting completion of issue not ground for reversal. Where injustice does not appear to have resulted, it is no abuse of discretion for the trial court immediately before the hearing of a cause to permit a similiter to be filed to the general issue and a reply to be made to a plea of set-off.
    2. Pleading—when recovery may be had under common counts. Where a contract has been performed by the plaintiff and nothing remains to be done thereunder but the payment of money by the defendant, recovery may be had under the common counts.
    3. Conteacts—what will not defeat recovery upon building contract. A failure literally to comply will not defeat a recovery upon a building contract; substantial compliance is sufficient.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed June 16, 1908.
    Statement by the Court. Appellee recovered judgment for labor and material furnished under a verbal contract by which said plaintiff was to dig trenches, furnish material, do the mason work and lay cut stone for a building erected by appellant in Chicago. The judgment includes also amounts claimed by plaintiff for certain extras not included in the original agreement. The contract price as agreed upon appears to have been $4,775. Of this amount the defendant paid $3,101.85. The plaintiff claims a balance of $1,673.15. The claim for extras amount to $87, making the total amount claimed to be due the plaintiff $1,760.15. This sum, with $78.18 interest, the total amounting to $1,833.33, was awarded by the verdict of the jury. . From the judgment in accordance with the verdict the defendant appeals.
    Charles A. Phelps, for appellant.
    Leonard Fiske and Gallagher & Messner, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

The defense made to the plaintiff’s claim is that the latter failed to comply with certain specifications and do certain work called for by plans and specifications in accordance with which the defendant claims the plaintiff agreed to do the work, and that the work was done in an unskilful manner, making the building permanently defective.

It appears that when the agreement was made the plaintiff handed defendant a card upon which he had written his understanding of the work he was to do and the price for which it was to be done. That memorandum is as follows: “March 1, 1906. Dr. C. M. Pusey. Mason wourk and trenson, digin, witout cut st. for som of $4,665. T. G. Peterson.” The plaintiff states that after the card was handed defendant the latter wanted extra piers, and that this work raised the contract price to $4,775. About the eighth of March the defendant told plaintiff he had decided to give him the mason work. The extra items are $16 for the additional cost of a better kind of brick substituted by agreement for those upon which plaintiff’s original figures were based, $11 for setting certain cut stone furnished by the defendant not embraced in plaintiff’s original figures, and $60 for adding six inches to the heighth as originally contemplated of the first story wall of the building. Some of this extra work was done, it is claimed, under orders from one Stevens who had a contract for carpenter work on the building. Plaintiff testifies that the defendant told him he was to get his instructions from Stevens who “was going to superintend the building.” This is denied by the defendant.

Defendant’s attorney has filed an elaborate brief. As to the questions of fact concerning which the evidence is conflicting we find no sufficient ground for disturbing the verdict. It was the province of the jury to settle these disputed questions and an examination of the record shows their finding in this respect to be justified by evidence. We cannot undertake to review here the testimony at length and no good purpose would be served by so doing.

It is contended in defendant’s behalf that the court erred in denying a motion for judgment by reason of plaintiff’s alleged default in not having joined “in the issue tendered by the pleas of non-assumpsit in bar of appellee’s action,” and to the “pleas of set-off,” before the cause was called for trial. Leave was given plaintiff to file a similiter to defendant’s plea of general issue and a reply to the plea of set-off. It is not contended that the ruling of the Municipal Court in this respect worked any injustice to defendant, and even if deemed erroneous it would scarcely justify interference unless necessary to prevent a failure of justice. We find no error in the discretion exercised by the trial court.

The contract having been performed and the plaintiff suing for the alleged contract price, he was entitled to sue and recover under the common counts. Concord Apartment House Co. v. O’Brien, 228 Ill 360-367.

Complaint is made of all the instructions, eight in number, given in behalf of the plaintiff, of the refusal to give three of the instructions requested in behalf of the defendant and of the modification of two other instructions asked for by defendant and given as modified. The criticism of the first instruction given in behalf of plaintiff is that it told the jury that if they believed any witness had “knowingly testified falsely to any material issue,” such testimony might be disregarded. It is said that the instruction is erroneous in that it omits the word “wilfully.” It is true that the words “knowingly and wilfully” are generally joined in such an instruction. See Godair v. Ham Nat. Bank, 225 Ill. 572-577. It is difficult, however, in this case to see that the instruction would have gained anything by the addition of the word “wilfully,” except emphasis. Where one knowingly testifies falsely he generally, if not necessarily, does so wilfully. To hold the omission of the word “wilfully” to be reversible error would be to indulge in a refinement of criticism of an instruction of which perhaps it is to be regretted instances may be found in the reports. Such verbal criticism our system of written instructions sometimes enables ingenious counsel to employ in an effort to find technical error where no substantial error exists. It is not infrequently thus sought to give to language, the obvious purport of which could not well be misunderstood by the jury, a meaning which only those trained in verbal dialectics would otherwise be likely to discover.

Complaint is made of the second instruction given at plaintiff’s request to the effect that “substantial compliance with the terms of his agreement is all that the law requires of the plaintiff in this case.” We think under the evidence this instruction was not misleading. In any event we are of opinion “it clearly appears that the error complained of worked no injury to appellant.” Keeler v. Herr, 157 Ill. 57-59. It is true that if the terms of the contract were not fully complied with the defendant would be entitled to such reasonable allowance as would enable him to complete the building in the manner agreed upon. The jury were so instructed in substance in behalf of the defendant and at his request, and were further told that before they could find the plaintiff had substantially performed his contract, they must find there had been no wilful departure from the contract or omission in essential parts and that he had honestly and faithfully performed the contract in all its material and substantial particulars. The jury appear to have concluded, as they might under the evidence, that the plaintiff had fully complied with the agreement.

We deem it unnecessary to follow at length the defendant’s criticisms of the other instructions. There was evidence tending to show that Stevens was defendant’s authorized superintendent, that defendant so informed plaintiff, and that he told the latter he should get his instructions from Stevens. If the jury so found from the evidence, then no reason appears why plaintiff was not entitled to be paid for the extra work done under Stevens’ orders. While some of the instructions as given are, we think, objectionable in some respects, yet upon a careful consideration of them, we are of opinion the jury were not misled nor the defendant harmed by such errors.

While it appears from the evidence that there are defects in the work done by plaintiff under the contract, there is evidence tending to show that these defects were caused by the acts of others over whom plaintiff had no control and for whose acts he was not responsible.

We are of opinion the record does not show reversible error, and the judgment of the Municipal Court will therefore be affirmed.

Affirmed.


text:
    John F. Devine, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 13,957.
    1. Practice—effect of proceeding to trial without disposing of demurrer. A party whose demurrer is on file and undisposed of, waives the same if he proceeds to trial without objection.
    2. Passenger and carrier—liability of latter for assault. When a passenger refuses to pay fare and to leave the train upon which he is riding and compels the conductor to resort to force, recovery cannot ordinarily be had for an injury which he voluntarily brings upon himself and which “is the result of his own forcible resistance;” but where, acting within the scope of his employment, a servant improperly exercises his authority and uses more force than the circumstances of the case require, the master is liable for the wrongful assault.
    3. Instructions—when jury not permitted to consider rejected count. If a jury has been specifically instructed to disregard a particular count, they are not inferentially authorized to consider such rejected count by a phrase in another instruction given which tells them that the plaintiff may recover if he “has proved the other averments of his declaration.”
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed June 16, 1908.
    Statement by the Court. This is an action under the statute to recover damages for the death of Thomas Keating, for the benefit of his next of kin. The death is alleged to have resulted from injuries inflicted by an employe of appellant on one of its street cars in Chicago.
    There is testimony tending to show that the deceased was found by a night watchman, about two o’clock in the morning of April 29, 1905, lying apparently unconscious on the sidewalk on Sixty-third street. He was injured, having a cut on the right side of his head some five inches in length. He was taken to a hospital by policemen and died there about two o ’clock in the afternoon of that day. It appears from the evidence that the deceased had been drinking to some extent the afternoon of April 28th, the day before his death. About half after six o’clock in the evening of that day, in company with one of the plaintiff’s witnesses, the deceased entered a saloon near Thirty-ninth street and Cottage Grove avenue. They remained there, according to the testimony of that witness, until after half after eleven o’clock that night, when the two men went to Thirty-ninth street and State street or near there, and finally at a point near Thirty-seventh street boarded a street car and stood on the rear platform. The conductor of the car asked for their fares. The witness was an employe of the street car company and showed a badge. The deceased told the conductor he had a badge also, but showed none. The conductor told him he must pay the fare or get off the car. This he apparently refused to do and the witness says he saw the conductor push the deceased off. The latter got back on the running board of the car and the witness states that the conductor struck the deceased on the head “with something about a foot long;” that the deceased sank on his knees, still holding on to the car, and that the conductor hit him a second time, and that then the deceased “fell in the street in a heap.” The witness states the conductor then pushed and kicked him—the witness—off the car, and the witness found the deceased “just getting up” and “bleeding from the right side of his head.” The two subsequently boarded another car at the corner of Thirty-ninth and State streets and rode as far as Sixty-second street, where the witness went to the car barn to make an inquiry, he says, and when he came back to the place where he had left the deceased sitting on the sidewalk on State street near Sixty-third street, the latter was gone, and the next time the witness saw him was at the undertaker’s. A witness for the defendant testifies that the conductor hit the man, “that he was hit and he was drunk.” The motorman of the ear on which the deceased was when struck states that the conductor used a “billy” in striking the deceased, “made of leather and filled with sand” and “about six or eight inches long.”
    The issues were submitted to a jury and a verdict was returned finding appellant guilty and assessing the plaintiff’s damages at $1,500. From the judgment entered accordingly this appeal is prosecuted.
    William J. Hyres, Johr E. Kehoe and Watsor J. Ferry, for appellant.
    O’Dorrell, Dillor &¡ Tooleh, for appellee.
   Mr. Justice Freemar

delivered the opinion of the court.

It is claimed in behalf of appellant that the cause was tried while there was still pending and undetermined a demurrer to the declaration. This question, however, was not raised in the trial court until after the verdict. There was no joinder in demurrer. As said in Hopkins v. Woodward, 75 Ill. 62-64, while it may have been a technical error to proceed to trial with a demurrer undisposed of, no issue of law was raised as the pleadings stood. That case recognizes some apparent- inconsistencies in the decided cases, some of which apparently hold that it was error to proceed to trial under such circumstances and “others that it was no error to proceed to trial where no issue of fact was made up.” While it may have been the duty of plaintiff’s attorneys to call up the demurrer and have it disposed of, it was, we think, a substantial waiver in effect on the part of defendant’s counsel to fail to call the court’s attention to the demurrer before proceeding to trial if they desired and intended to rely upon it. When counsel keep silence where it is a duty to speak, thereby keeping the court in ignorance, and so induce it to commit a technical error, we are not disposed to encourage such practice by giving undue and unnecessary importance .to an inadvertent technical error thus induced, not harmful in its effect. As said in Pinkerton v. Snydor, 87 Ill. App. 76-81, after a trial upon the merits in which counsel for defendant participated, he cannot now be heard to complain that there was no issue of fact to be tried. In that case it was held upon authority of cases there cited that the question not having been raised in the court below until after verdict the irregularity was cured by the verdict.

It is urged that the verdict is not justified by the evidence. No good purpose would be served by here reviewing the testimony at length. There is evidence as shown in the preceding statement tending to show that the conductor of the car struck the deceased a violent blow with what the witness calls a “billy,” and that the deceased was knocked or at least then fell off the car and was found unconscious and soon after died. He and his companion may have been and apparently were under the influence of liquor. It is claimed that when thus “ejecting” the deceased from the car the conductor was threatened w-ith danger and used no more force than was necessary. It was for the jury to determine the question of fact, whether the use of such violence by the conductor was justified by the conditions and whether if unnecessary violence was used it was the cause of the death which so soon followed. We are of opinion there is evidence which justifies the finding and that no sufficient reason appears why it should be disturbed. We cannot concur in the contention that the verdict is -against the manifest weight of the evidence, nor do we regard the ruling objected to upon certain questions propounded, it is said, for the purpose of testing the memory of one of the witnesses, as of material importance, nor as erroneous.

It is undoubtedly true, as held in Kiley v. Chicago City Ry. Co., 189 Ill. 384, that when a passenger refuses to pay fare and refuses to leave the train and compels the conductor to resort to force, recovery cannot ordinarily be had for an injury which he voluntarily brings upon himself and which “is the result of his own forceable resistance,” as said in Peoria & Pekin T. Ry. Co. v. Hoerr, 120 Ill. App. 65. But where acting in the scope of his employment a servant improperly exercises his authority and uses more force than the circumstances of the case require, the master is liable for the wrongful assault. Whether in this case the conductor exceeded the lawful limits of his authority was a question for the jury, and the evidence warrants, we think, their conclusion.

Objection is made to an instruction given at the instance of appellee’s counsel, which concluded to the effect that if the jury further believed from the evidence the plaintiff “has proved the other averments of his declaration,” they should find defendant guilty. It is objected that whereas the court at defendant’s instance instructed the jury the plaintiff could not recover under the first count of the declaration and the second count charged only that the acts of the conductor were wanton and wilful, this instruction authorized a verdict of guilty upon the averments of the rejected first count. We do not think, taking the instructions together, the objection is well taken. Having told the jury in express terms to disregard the first count, the effect of the language complained of was to require them to believe from the evidence that the plaintiff had proved the averments of the second count. That count charged wilful and wanton use of more force and violence than was reasonably necessary, which is what appellant’s counsel say it was necessary for the jury to find from the evidence to entitle appellee to recover. Such is the reasonable construction of the language of the instruction complained of. While the phrase of the instruction in question did not, we think, improve the instruction, it is not, we think, injuriously erroneous. We find no error in the court’s refusal to give the instruction requested hy appellant’s counsel relating to self-defense,, in view of the evidence.

The judgment of the Superior Court must be affirmed.

Affirmed.


text:
    Mary Smith, Appellee, v. City of Chicago Heights, Appellant.
    Gen. No. 13,963.
    1. Notices—statute requiring notice to city of personal injury construed.. This statute is mandatory and the giving of the notice required is a condition precedent to the right to the maintenance of the action.
    2. Pleading-—when declaration against city in action for personal injuries fatally defective. A declaration in an action for personal injuries against an incorporated city, village or town is fatally defective if it does not allege the giving of the notice to such city as required by statute; such a declaration is not cured by verdict.
    3. Pbactice—what may he reached hy motion in arrest. Where one totally omits to allege matter expressly or impliedly essential to his action or defense, such omission is not cured by verdict but may be taken advantage of by motion in arrest.
    Action in case for personal injuries. Appeal from the City Court of Chicago Heights; the Hon. Homes Abbott, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed.
    Opinion filed June 16, 1908.
    Craig A. Hood, for appellant.
    George A. Brinkman, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an action for personal injuries in which appellee recovered judgment. The declaration charges in substance that appellee stepped upon a loose plank on a sidewalk wMch the appellant negligently suffered to be and remain in a bad and unsafe condition, that the plank flew up and the plaintiff, while in the exercise of ordinary care, .unavoidably tripped, stumbled and stepped into the opening in the sidewalk and thereby received injuries complained of. The issues were submitted to a jury who returned a verdict in plaintiff’s favor for $1,500. The plaintiff remitted $900 and judgment was entered against the defendant for $600.

There was a motion in arrest of judgment upon the ground “that none of the counts of plaintiff’s declaration • * * * state a cause of action sufficient to support a judgment.” The motion was denied, and this action of the lower court is assigned as error. The statute provides (E. S. chap. 70, sections 7 and 8) that any person who is about to bring any action or suit at law against an incorporated city, village or town for damages on account of any personal injury, shall within six months from the date of injury or when the cause of action accrued file in the office of the city attorney a statement in writing, signed by such person, his agent or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place where it occurred, and the name and address of the attending physician, if any. It is provided that if such notice is not given any such suit against such city shall be dismissed and the party suffering such dismissal be .forever barred from suing on account of such injury. There is in the plaintiff’s declaration in this case no averment of compliance with such requirement of the statute. At the trial the plaintiff’s, attorney undertook to introduce alleged duplicates of such a notice as the statute requires. They were admitted over defendant’s objection, but were subsequently stricken from the record of the court’s own motion. In Erford v. City of Peoria, 229 Ill. 546-553, it is said in reference to the statute in question, “Statutes of this character are mandatory and the giving of the notice is a condition precedent to the right to bring such suit, and the giving of the notice must be averred and proved by the plaintiff to avoid a dismissal of his suit.” This is conclusive in the case at bar.

The declaration was defective on general demurrer and the failure to aver the giving of the required statutory notice was reached by the motion in arrest of judgment. “The error relied upon on motion in arrest must be one which would have been fatal upon general demurrer, as where the declaration is so defective that no judgment can be rendered thereon.” Encyc. of Pl. & Pr., 2nd Vol., p. 796. Where one totally omits to allege matter expressly or impliedly essential to his action or defense, such omission is not cured by verdict.

The judgment of the City Court of Chicago Heights must be reversed. The cause will not be remanded.

jReversed.


author: Mr. Justice Smith

text:
    Charles H. Aldrich, Appellee, v. Lee D. Mathias, Appellant.
    Gen. No. 14,006.

      Practice—when entry of judgment non obstante veredicto improper. A judgment non obstante veredicto can only be entered where it is justified by the state of the pleadings; it is error to refer to the evidence and to predicate such a judgment thereon.
    Action commenced before justice of the peace. Appeal from the County Court of Cook county; the Hon. William N. Hinebaugh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907,
    Reversed and remanded.
    Opinion filed June 16, 1908.
    Goodrich, Vincent & Bradley, for appellant.
    Henry S. McAuley, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This action was originally brought before a justice of the peace, and from the judgment in that court it was taken by appeal to the County Court, and from the judgment entered there, this appeal is prosecuted.

The action is assumpsit to recover upon six promissory notes, all dated February 28, 1904, and due respectively on the fifteenth day of July, August, September, October, November and December, 1904. The notes are signed by Lee D. Mathias, appellant, and are payable to appellee, Charles H. Aldrich.

There were no written pleadings. The issues were tried before the court and a jury, and the jury returned a verdict’ in favor of the defendant below, appellant here. The plaintiff thereupon moved the court for a judgment in favor of the plaintiff, non obstante veredicto, for reasons set out in the written motion in the record, based on the facts claimed to be shown by the evidence. The County Court granted the motion and gave judgment against the defendant, appellant, for $205.62 and costs. Error is assigned upon this action of the court.

“At common law a judgment non obstante veredicto could be entered only when the plea confessed the cause of action and set up matters in avoidance which were insufficient, although found true, to constitute either a defense or a bar to the action. In such a case the plaintiff was entitled to a judgment in his favor, notwithstanding a verdict for the defendant.” 11 Ency. of Pleading & Practice, p. 912, and authorities there cited; 2 Tidds Practice, 920.

In Walker v. Scott, 106 N. Car., 56, 62, it is held: “The granting judgment non obstante veredictot is very restricted and is confined to cases where the plea confesses a cause of action and the matter relied on in avoidance is insufficient, and where the plea may be treated as a sham plea.”

The motion can only be made on the face of the pleadings. Lewis v. Foard, 112 N. C. 403. “Such a judgment can be rendered only when the pleadings entitle the party against whom the verdict is rendered to a judgment.” 11 Ency. of P. & P., 914.

Formal written pleadings are not required in proceedings before a justice of the peace. The general issue is presumed to have been pleaded. “Where there is a good plea or answer filed, the plaintiff is not entitled to a judgment non obstante veredicto.” 11 Ency. P. & P., 915; Ambler v. Whipple, 139 Ill. 311, 322. “Since a judgment non .obstante veredicto must be granted, if at all, upon the record, it follows that the evidence cannot be looked to in determining a motion for such judgment.” 11 Ency P. & P., p. 917. And in reviewing a ruling of the trial court on a motion for a judgment non obstante veredicto, this court cannot look to the evidence in the record to determine whether or not it sustains the judgment entered on such motion. The pleadings are the only parts of the record which are relevant to that question. Stevens v. City of Logansport, 76 Ind. 498, 500; P. C. & St. L. R. Co. v. Martin, 82 Ind. 476, 480.

The trial court erred in entering the judgment, and for that error subsequent to verdict the judgment is reversed and the cause is remanded for such proceedings subsequent to verdict as the court may deem proper.

Reversed and remanded.