text:
    William P. Miller, Administrator, Appellee, v. Henley Eversole, Appellant.
    1. Automobiles and gadages, § 3

      —when instruction as to degree of care in driving automobile erroneous. An instruction stating that the driver of an automobile is required to exercise a higher degree of care at a place in a street where school children are congregated at certain hours in the day than at a point where pedestrians are fewer and the travel limited, held erroneous and misleading as requiring defendant to exercise more than ordinary care.
    2. Evidence, § 78

      —res gestae. In an action for injuries sustained by a boy being struck by an automobile while running after a wagon which was drawn by another automobile, testimony of the driver of the latter automobile that the boy with others was running by the side of his machine and trying to get on the running board and that he forbid them to get on his machine, held admissible as being immediately prior to the accident and so connected with it that it was a part of the occurrence.
    3. Evidence, § 436

      —when form of questions ashed of expert witness objectionable. In an action for injuries caused by being struck by defendant’s automobile, a question was asked of witnesses who were operators of automobiles as to the distance in which an automobile similar to that of defendant’s could be stopped. Held, that an objection was properly sustained to the question for the reason that the question should have described the machine so that the jury would know on what facts the answer was based.

      4. Instructions, § 81

      —when instruction misleading as emphasizing portions of the evidence. An instruction directing a verdict, which calls attention to certain portions of the evidence and thereby emphasizing the same, held misleading.
    5. Appeal and error, § 1560

      —when refusal of reguested instruction not error. In an action by an administrator to recover damages for the death of his intestate, where objection was sustained to defendant testifying to anything that occurred before the death of deceased by reason of his incompetency on account of the suit being prosecuted by an administrator, refusal to give defendant’s requested instruction telling the jury that defendant was incompetent to testify to the facts out of which the case arose, held not error where part of the instruction was given in another instruction, and the instruction omitted the words “alone” or “of itself.”
    6. Municipal corporations, § 824

      —when ordinance void as unreasonable. An ordinance making it a misdemeanor for a person to climb, cling or in anyway attach himself to a wagon or other vehicle either stationery or in motion, without the consent of the owner, held void for unreasonableness.
    Appeal from the Circuit Court of Douglas county; the Hon. Solon Philbrick, Judge, presiding.
    Heard 'in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed October 16, 1913.
    Rehearing denied December 3, 1913.
    Frank T. O’Hair, W. W. Reeves and James W. and Edward C. Craig, for appellant.
    Guy R. Jones, P. M. Moore and H. I. Green, for appellee.

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in case brought by William P. Miller, administrator of the estate of Leon Hance, deceased, against Henley Eversole to recover damages for the death of plaintiff’s intestate, averred to have been caused by the negligence of the defendant in running an automobile on King street in the village of Newman. A jury returned a verdict for two thousand five hundred dollars against the defendant upon which judgment was rendered. The defendant prosecutes this appeal.

The declaration contains five counts. The first three are common law counts. The fourth count avers the negligent running of the automobile at a rate of speed contrary to the statute and that the deceased was in the exercise of ordinary care; the fifth count avers a failure of appellant to give the reasonable warning required by the statute but fails to aver due care on the part of the deceased.

Leon Hance was a boy nearly fourteen years of age attending the Newman township high school. Gillogly street runs east and west through Newman. It is intersected by King street, which runs north and south. The township high school is located at the northwest corner of the intersection of these streets. King street is paved with brick twenty feet wide. On May 18, 1911, the date of the accident by which Hance received the injuries causing his death, appellant about 4 o’clock in the afternoon, just as school was dismissed, was driving an automobile south on the east side of King street through the village of Newman, a short distance behind one J. W. Roller, who was driving an automobile to which was attached an empty gravel wagon. This wagon had iron wheels with a box, the bed of which was made of loose two by fours and the sideboards were loose, the ends being set between cleats. There is evidence that the automobile of appellant was going at a rate of from ten to fifteen miles an hour and also evidence that it was only going at from four to five miles an hour. As the automobile driven by Roller passed the sehoolhouse, or crossed Gillogly street, Hance with other boys ran out into the street towards the automobile and wagon. Three of them got on the wagon. Hance appears not to have been able to get on the wagon although he got hold of the end of the box, ran after it a short distance, and then let go of the box. The evidence is conflicting as to whether, after letting go of the wagon, he went to the east curb of the street and then started back southwesterly across the street, either towards the wagon trying to catch it, or towards the opposite side of the street or simply followed the wagon. The automobile driven by appellant struck Hance, knocked him down, and was stopped with the right front wheel of the machine against the boy’s head, which was badly bruised. The boy’s feet were a short distance in front of the left front wheel. The boy was taken to a hospital and the bruise on the head cleansed and treated but he died a few days thereafter from lockjaw.

Appellant offered in evidence an ordinance of the village of Newman providing that: “Any person or minor who shall climb, jump, step, stand upon, cling to, or in any way attach himself to any automobile, carriage, wagon, cart, buggy, sleigh, sled or other vehicle either stationery or in motion without the consent of the owner or person in charge thereof, shall be fined not less than one or more than ten Dollars.” Appellant insists that the deceased violated this ordinance and was thereby guilty of contributory negligence. The court sustained an objection to this ordinance on the ground that it was void for unreasonableness. The authority for the passage of this ordinance, if there is any, is in the police powers conferred upon municipal authorities of a city or village to enact reasonable police regulations. The violation of the ordinance, by its terms, is not made to depend upon the degree of safety with which persons might attach themselves to any conveyance but to depend upon securing the consent of the owner or person in charge thereof. A person placing his hand upon a wagon standing in the street without any motive power attached would be guilty of a misdemeanor under this ordinance, if he had not first obtained the owner’s consent. “The question of reasonableness or of necessity is not made an element, impliedly or otherwise, in this ordinance, and the citizen, in the exercise of his lawful rights, is subjected to fine and imprisonment for an act innocent in itself, but which was not done, and because it was not done, with the express permission of another individual.” Wice v. Chicago & N. W. Ry. Co., 193 Ill. 351. The court properly sustained the objection to the ordinance.

It is also insisted that the court erred in sustaining an objection to questions put to witnesses who were operators of automobiles as to the distance in which an automobile similar to that of appellant could be stopped. The objection was made that that was not a question for expert testimony. The Court sustained the objection and said to counsel “it isn’t a question of his machine. ’ ’ The question should have described the machine so that the jury would know on what facts the answer was based. The objection was properly sustained because of the form of the question.

The owner of the automobile testified that when the other boys with the deceased were running by the side of his automobile and trying to get on the running board he forbid them to get on his machine. If the deceased was one of the boys who tried to get on the automobile drawing the wagon and then tried to get on the wagon, we do not see why this evidence was not proper. It was immediately prior to the accident and so connected with it that it was a part of the occurrence.

The third instruction given at the request of appellee is as follows: “The Court further instructs the jury, that the driver of an automobile, in and upon a public street, is bound, at all times, to exercise ordinary care and caution for the safety of any and all persons who may be upon said street and the degree of such care and caution required to be exercised by such driver depends upon the circumstances surrounding said driver at any given point in such street, and if the jury believe from the preponderance of the evidence, that the point at which the injury complained of, alleged in plaintiff’s declaration and every count thereof as occurring to plaintiff’s intestate, was in front of a public high school building in the city-of Newman, Douglas county, Illinois, where the pupils and children were liable and wont to be, and that the defendant had knowledge of the location of said building and the fact that the children congregated there at certain hours of the day, then said defendant would be required to use a higher and greater degree of care at such point, than at a point in the public street where the pedestrians were fewer and the travel limited, in order to prevent inflicting any injury to any such persons, that might be in such street at said point.”

This instruction is erroneous and misleading in telling the jury that the appellant was required to use a higher degree of care at one place than another. Appellant was not required to use a higher degree of care at one place than another, but he was only required to use ordinary care wherever he might be. While it is a correct proposition that what might be ordinary care where there were no children or persons crossing a street would riot be ordinary care and might be negligence where there were children and a crowded street, yet ordinary care is all he was required to use, and ordinary care is such care as an ordinary reasonable and prudent person would use under all the circumstances and conditions existing at the time and place and which are or ought to be known to the party.

The sixth instruction given for appellant is misleading and directs a verdict. It calls attention to portions of the evidence thereby emphasizing the same, and then tells the jury that, if they believe that the deceased was then and there in the exercise of ordinary care for his own safety and was suddenly placed in a perilous position and was struck by said automobile as set forth in the declaration, and if the jury further believe from the evidence that by the' exercise of ordinary care appellant might have discovered the position of peril the deceased was in, and could thereafter have prevented injuring the deceased by exercising due care in driving his automobile, then they should find the defendant guilty. If the appellant by the exercise of due care would have discovered the peril of the deceased and would in the exercise of due care have avoided it, then appellant would be liable if the deceased had been in the exercise of due care, but if there was only a bare possibility of appellant in the exercise of due care having discovered the peril of the deceased and avoiding injuring him, still he would not be liable if in the exercise of due care he failed to discover the-peril of the deceased and to avoid injuring him.

The appellant was offered as a witness in his own behalf. An objection to his testifying to anything that occurred before the death of Hance was sustained on the ground of his incompetence because of the suit being prosecuted by an administrator. An. instruction was requested telling the jury that defendant was not competent to testify to the facts out of which the case arose and that the jury had no right to indulge in any presumption against him on account of his not testifying to the transaction or on account of the deceased having been struck by an automobile of appellant. The instruction was refused. The first proposition of law in the instruction is a correct one and would have been given if asked alone, but the last part of the instruction was given in another instruction and it was not necessary to duplicate it, and as requested in this instruction it was technically erroneous in omitting the words “alone” or “of itself.”

To review the thirty-five errors assigned by counsel would unnecessarily and uselessly prolong this opinion. We have disposed of the important questions raised. Since the case must be reversed and remanded for a new trial for the errors indicated, we express no opinion on the merits of the case. The judgment is reversed and the cause remanded.

Reversed and remanded.

Mr. Justice Philbrick took no part in the consideration of this case.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    Joseph J. Minks, Appellee, v. The Baltimore and Ohio Southwestern Railroad Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Carriers, § 218

      —when railroad guilty of discrimination in freight charges. In an action against a railroad company to recover a penalty under R. S. c. 114, 125, et seq., J. & A. ¶¶ 8910 et seq., for discrimination by the company in freight rate charges on three cars of corn shipped by plaintiff from Millersville to Chicago, the rate charged being eleven and three-tenths cents per hundred-weight, a finding in favor of plaintiff held sustained by the evidence, there being evidence that plaintiff before and after the shipment involved shipped corn at the rate of eight cents per hundred, that a person a year before shipped wheat from a station three miles farther from Chicago at the same rate, that the company charged the same rate for wheat and corn, and that the rates had not been changed for five years.

      Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Action by Joseph J. Minks against The Baltimore and Ohio Southwestern Railroad Company to recover a penalty for discrimination by the defendant in freight rate charged for three cars of corn shipped by plaintiff from Millersville to Chicago, and to recover for the expense of furnishing six inside car doors. From a judgment in favor of plaintiff for $194.40, defendant appeals.
    Graham & Graham and Hogan & Wallace, for appellant; Edward Barton, of counsel.
    W. B. McBride and Taylor & Taylor, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

2. Judgment, § 296 —jurisdiction to vacate judgment after appeal bond filed and approved. Where a judgment had been rendered for plaintiff in an action against a railroad company for a penalty for discrimination in freight rates, held that the trial court after an appeal bond had been filed and approved had jurisdiction during the term to vacate the judgment and order for the appeal for the purpose of granting plaintiff’s leave to make proof of the value of attorney’s fees, where such matter was overlooked when the judgment was rendered.

3. Judgments, § 296 —effect of order vacating judgment after appeal bond has been filed and approved. An order of court during the term vacating a judgment and order for an appeal after an appeal bond has been filed and approved for the purpose of permitting plaintiff to make proof of the value of attorney’s fees so as to be taxed as costs, terminates the appeal unless a new appeal bond is filed within the time limited by the court.


text:
    Village of Kilbourne, Appellee, v. Edwin Blakely and William Stroh, Appellants.
    1. Municipal corporations, § 41

      —limitation of powers. Municipal corporations are creatures of statute and can exercise only such powers as are expressly conferred or such as arise by implication from general powers granted.
    2. Municipal corporations, § 87

      —when ordinance is unreasonable and void because discriminatory. An ordinance which discriminates between persons of the same class and imposes a penalty for an act done by one person and exempts another who does a like act is unreasonable and void.
    3. Municipal corporations, § 1782

      —when village ordinance exempting from poll tax persons other than those authorized by statute is void for illegal discrimination. A village ordinance requiring every able-bodied male inhabitant of the village above the age of twenty-one years and under the age of fifty years to labor on the streets and alleys is invalid because of its impartiality and illegal discrimination where it exempts officers and attorneys of the village in addition to those inhabitants authorized by statute to be exempted.

      Appeal from the County "Court of Macon county; the Hon. James A. McComas, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed.
    Opinion filed October 16, 1913.
    Nortrup & Nortrup and Thomas P. Reep, for appellants.
    Edmund P. Nischwitz, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

This is an action brought by the Village of Kilbourne against Edwin Blakely, William Stroh and C. E. Daniel before a justice of the peace to recover from each of them a penalty, provided by an ordinance of the Village, for failure to work a poll tax on the streets or commute the same by the payment of money. An appeal was taken from the judgment before the justice to the County Court, where on a trial, a jury returned a verdict finding the defendants guilty and fixing their fine at ten dollars each. Judgment was rendered on the verdict against the defendants and Blakely and Stroh appeal.

The ordinance under which this suit is brought is entitled “Poll tax” and is as follows:

Section 1. That every able-bodied male inhabitant of the Village of Kilbourne, above the age of twenty-one (21) years, and under the age of fifty (50) years, excepting paupers, idiots, lunatics and such other as are exempt by law, shall labor on the streets, alleys, or other public places of said Village as directed by the Street Commissioner, two days in each year as hereinafter provided. Provided, .That any person required to labor as aforesaid, may commute such labor by paying to the Village Clerk on or before the last day of July, in each and every year, the sum of seventy-five cents for each day he may be so required to labor.
Section 2. At the regular meting to be held on the first Tuesday in June of each year, the President and Board of Trustees of said Village shall make out a list of the able-bodied male inhabitants of said Village between the ages of twenty-one and fifty years, and within five days thereafter deliver the same to the Village Clerk. Provided, That paupers, idiots and lunatics, ministers of the Cospel in actual charge of church or congregation, trustees of schools, school directors, members of the Board of Education and other school officers performing like duties, and the officers and attorneys of said Village, shall not be required to work as aforesaid. The Village Clerk shall, within ten days after such list is delivered to him, cause a written or printed or partly written and partly printed notice to be posted or put upon the door of the room or place that the Board of Trustees'used at their last meeting, and in three other of the most public places in said Village, notifying all persons subject to labor as aforesaid, to report to the Street Commissioner of said Village for the purpose of performing such labor on or before the last day in the month of July, of each and every year. Any persons required to labor as aforesaid who shall fail, neglect or refuse to perform such labor or commute the same at seventy-five cents per day before the last day in the month of July in each and every year as hereinbefore provided, shall be subject to a penalty of not to exceed twenty dollars, and not less than three dollars.

The appellants contend among other things that the ordinance is void because of unlawful discrimination.

Paragraph 289 of chapter 24 of the 'Statute (J. & A. ¶ 1782) provides: “That the city counsel in all cities and the president and board of trustees in all villages in this State, may have power, by ordinance, to require every able-bodied male inhabitant of any such city or village, above the age of twenty-one years, and under the age of fifty years (excepting paupers, idiots, lunatics, and such others as are exempt by law), to labor on the streets and alleys of any such city or village, not more than two (2) days in each year; but such or-¿finance shall provide for commutation of such labor at seventy-five cents per day.”

The only other exemptions from poll tax in the Statute, in addition to those in the section quoted, are found in paragraph 186 of chapter 121, title “Roads and Bridges” (J. & A. ¶ 9819), and in section 266 of chapter 122, title “Schools” (J. & A. ¶ 10304.) Paragraph 186 of chapter 121 provides that “ministers of the Gospel in actual charge of a church or parish, trustees of schools, school directors and other school officers performing like duties shall not be compelled to pay a poll tax.” The exemption in the school law does not add anything to the foregoing.

The ordinance in question exempts “the officers and attorneys of said village” in addition to those authorized by statute to be exempted from the payment of a poll tax. The penalty sued for is provided for by the second section of the ordinance and that is the section that contains the exemption of the village officers and attorneys. Municipal corporations are creatures of the statute and can exercise only such powers as are expressly conferred or such as arise by implication from general powers conferred. City of Champaign v. Harmon, 98 Ill. 494; Zanone v. Mound City, 103 Ill. 552. Acts of a city council not fairly within the power conferred are void. Agnew v. Brall, 124 Ill. 316; Wahl v. City of Nauvoo, 64 Ill. App. 17. All by laws should be general in their operation and should bear equally upon all the inhabitants of the municipality. City of Chicago v. Rumpff, 45 Ill. 97; Zanone v. Mound City, supra. An ordinance which discriminates between persons of the same class and imposes a penalty for an act done by one person and exempts another who does a like act is unreasonable and void. City of Carrollton v. Bazzette, 159 Ill. 284; Tugman v. City of Chicago, 78 Ill. 405; City of Peoria v. Gugenheim, 61 Ill. App. 374. The powers vested in municipal corporations should, as far as practicable, be exercised by ordinances general in their nature and impartial in their operation. Dillon on Mun. Corp. 322. If different sections of a statute are independent of each other, that which is unconstitutional may be disregarded and valid sections may stand and be enforced. But if an obnoxious section is of such import that the other sections without it would cause results not contemplated or desired by the Legislature, then the entire statute must be held inoperative. Mathews v. People, 202 Ill. 389; City of Chicago v. Burke, 226 Ill. 203.

The attempt by, the members of the village board which had power to pass an ordinance requiring a poll tax from all able-bodied male inhabitants between twenty-one and fifty years of age, except such as are exempt by statute, to include themselves with the other officers and attorneys of the village in the exemption with the other exempted classes, renders the second section of the ordinance invalid because of its partiality and illegal discrimination. They might as well have exempted all residents of some particular ward or persons living on one side of some particular street. The second section of the ordinance is void and the penalty assessed under it cannot be sustained.

It is unnecessary to discuss the other questions argued. The judgment is reversed because of the invalidity of the second section of the ordinance.

Reversed.


text:
    Frank S. Nash, Appellee, v. William J. Eddy et al., Appellants.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Insurance, § 663

      —when evidence insufficient to prove plaintiff made material misrepresentations as to health of horse or that he failed to properly care for it. In an action to recover insurance on a horse dying from lockjaw, defendants’ evidence held insufficient to prove either that plaintiff made material misrepresentations as to the health of the horse or that plaintiff failed to properly care for the horse after symptoms of the disease appeared, it appearing that the agent of the insurer wrote the answers in the application after being informed by the plaintiff that the horse had been treated for summer sores and paraphomosis, that about two weeks before its death its hind foot had been injured and that plaintiff called a veterinarian within an hour after knowledge that horse would not eat.

      Appeal from the Circuit Court of Shelby county; the Hon. Jambs C. McBride, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Rehearing denied November 6, 1913.
    Statement of the Case.
    Action by Frank S. Nash against William J. Eddy and others to recover insurance on an imported Belgium stallion. The policy was issued to plaintiff by one Frank B. Stairwalt, sole owner of an unincorporated insurance business which was run under the name of the Kaskaskia Live Stock Insurance, and subsequent to the issuance of the policy Stairwalt sold his insurance business to the defendants under a contract whereby defendants insured and agreed to pay all legal claims against said insurance business. From a judgment in favor of plaintiffs for one thousand dollars defendants appeal.
    Chafes & Chew, for appellants.
    W. C. and T. M. Header, for appellee.

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

2. Insurance, § 208 —warranties and representations distinguished. In insurance contracts a representation is a statement relating to a material matter and is only required to he substantially true, while a warranty must be literally true. Warranties enter into and are a part of the contract, while representations are mere inducements to it.

3. Insurance, § 209 —when statements in an application for insurance will he construed representations rather than warranties. Statements in an application for insurance will be construed as warranties only when the language is so clearly and unequivocally expressed as to leave the court no other alternative. If the language is ambiguous and doubtful, or if there is another reasonable construction that may be placed upon it, and thus avoid the consequence of a warranty, courts are inclined to adopt the latter'construction.

4. Insurance, § 209 —when answers in application construed as representations. Answers to questions in an application will be construed representations instead of warranties where the application states, “I have read the foregoing application and fully understand the same, and have answered all the foregoing questions and warrant the truth of such answers, and it is fully understood that should this application he accepted and policy issued, that it is done solely upon representations herein named.”

5. Set-off and recoupment, § 29 —necessity of plea of set-off. In an action to recover insurance on a horse, insurer held not entitled to set-off plaintiff’s indebtedness on a promissory note given to it for an unpaid premium, where no plea of set-off was filed.


text:
    George Bacon, Plaintiff in Error, v. Edmund A. Walsh, Defendant in Error.
    1. Physicians and surgeons, § 21

      —admissibility of evidence, In an action against a physician and surgeon to recover damages for malpractice, on account of failure of. defendant to properly reduce a dislocated hip for plaintiff, refusal of trial court to permit plaintiff to show that an X-ray photograph was taken of the joint and that he made unsuccessful efforts to get the X-ray plates, held not error, it appearing defendant had nothing to do with the taking of the photographs and never had possession of them.
    2. Physicians and surgeons, § 23

      —when instructions for defendant in action for malpractice erroneous and misleading. In an action to recover damages for malpractice, an instruction given for defendant defining ordinary care and skill required of physicians and surgeons as being “that care and skill exercised by physicians and surgeons in this locality and of the school of which defendant belongs,” held erroneous and misleading because of the insertion of the words “and of the school of which defendant belongs” and also erroneous because there was no evidence as to what school the defendant belongs, except that he was a graduate of a certain school.
    3. Physicians and surgeons, § 1162

      —degree of professional shill and care required. The law requires that a physician and surgeon use that degree of professional knowledge, skill and care which the average physician and surgeon in good practice would ordinarily bring to a similar case under like circumstances in that locality.
    4. Physicians and surgeons, § 23

      —when instruction erroneous. An instruction in an action for malpractice, particularly directing the attention of the jury to the testimony introduced and then proceeding with an argument, held erroneous.
    5. Instructions, § 80

      —when repetition of same proposition in different instructions prejudicial. Repeating the same propositions in different instructions and emphasizing points by repetition tends to' prejudice the rights of litigants and has frequently been condemned.
    6. Appeal and error, § 1514

      —when remarh of counsel in his closing argument improper. In an action against a physician to recover damages for malpractice, a remark of counsel for defendant in his closing argument asking plaintiff why he did not sue another physician who assisted defendant in treating the plaintiff, held improper, and that court properly sustained objection thereto.

      Error to the Circuit Court of Sangamon county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed October 16, 1913.
    Roy M. Seeley and W. St. J. Wines, for plaintiff in error.
    Smith & Friedmeyer, for defendant in error.

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

   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in case brought by George Bacon against Edmund A. Yfalsh, a physician and surgeon, to recover damages for alleged malpractice. A jury returned a verdict in favor of defendant. A motion for a new trial was overruled and judgment entered on the verdict. The plaintiff has sued out a writ of error to review the judgment.

Plaintiff in error, a coal miner twenty-three years of age, while working at Sherman, for the Midland Coal Company, suffered a dislocation of his left hip. Immediately after plaintiff received the injury the coal company called O. F. Shipman, a physician and surgeon residing at Sherman, and the defendant, a physician and surgeon residing at Springfield, to attend plaintiff. Both these surgeons were in the regular employ of the coal company. Dr. SMpman is a young surgeon who had only had four years of practice. Dr. Walsh had been practicing- his profession fifteen years. The evidence tends to show that Dr. Shipman simply acted as assistant to the more experienced surgeon and administered the anaesthetic, while Dr. Walsh either reduced or attempted to reduce the dislocation. It is a disputed question whether the dislocation was or was not properly reduced, and there is some evidence tending to show, that plaintiff about a month later fell and reinjured his hip. The plaintiff in error still suffers from a dislocation of his hip joint although defendant claims it was properly set at the time, and several months after the dislocation was received plaintiff submitted to an operation in a hospital in an endeavor to get the joint in proper position.

It is contended on behalf of plaintiff in error that the judgment is against the manifest preponderance of the evidence. We do not deem it proper to discuss the evidence at this time for the reason the case must be reversed for error in instructions given at the request of defendant.

Several months after the treatment of the limb by defendant an X-ray photograph was taken of the joint. Plaintiff insists that the court erred in not permitting him to show to the jury the unsuccessful efforts that ho made to get the X-ray plates. The defendant had nothing to do. with taking the photographs and never had possession of them. There was no error in the ruling of the court.

Twenty-six instructions were given at the request of defendant in error. The eighth instruction is: “The court instructs you that by the words ‘ ordinary care and skill’ as used in these instructions is meant that care and skill that is exercised by physicians and surgeons in this locality and of the school of which defendant belongs.”

Physicians and surgeons are licensed in Illinois by the State to practice medicine and surgery, and there is no distinction made between the different schools of medicine. The record does not show to what school of medicine the defendant belongs, but whatever school that may be, the law requires that he use that degree of professional knowledge, skill and care which the average physician and surgeon in good practice would ordinarily bring to a similar case under like circumstances in that locality. Quinn v. Donovan, 85 Ill. 194; Holtzman v. Hoy, 118 Ill. 534; Hallam & Barnes v. Means, 82 Ill. 379; Kruger v. McCaughey, 149 Ill. App. 440. The insertion of the words “and of the school of which defendant belongs” is erroneous and misleading. It limits the care and skill which he must use, not to the average ordinary care and skill of the physicians and surgeons in good practice in the vicinity of Sherman and Springfield but to the care and skill of some particular sect of physicians and surgeons in that locality. If the law was as stated in the instruction, the instruction was erroneous for the reason there was no evidence to what school the defendant in error belongs, except that he is a graduate of the medical department of the University of Illinois College of Physicians and Surgeons in the city of Chicago.

Instruction number three tells the jury that the question of whether the defendant “used that degree of care and skill ordinarily used by physicians and surgeons in the same line of practice in the same or similar localities is a question of fact to be determined from all the evidence in the case, including that of the expert testimony of the physicians and surgeons who have testified in the case to be considered with all the other evidence bearing on the question. You are therefore instructed,” etc. This instruction was erroneous in particularly directing the attention of the jury to the expert testimony that had been introduced, and then following that erroneous feature with an argument.

Twelve instructions asked by the defendant in error, and given, told the jury in slightly different ways that the law puts upon the plaintiff the burden of showing by a preponderance of the evidence that defendant was guilty of the negligence alleged. There are several other repetitions of legal propositions in the instructions given at the request of defendant in error.

The practice of repeating the same propositions in different -instructions and of emphasizing points by repetition tends to prejudice the rights of litigants and has frequently been condemned. Gould v. Magnolia Metal Co., 207 Ill. 172; Bartz v. Chicago City Ry. Co., 116 Ill. App. 554.

It is also insisted that counsel for defendant in the closing argument for the defendant made prejudicial and improper remarks in asking plaintiff why he did not sue Dr. Shipman. The court properly sustained an objection to this line of argument. Counsel, however, had the right to comment on the evidence and draw any inference therefrom that it justified. The judgment is reversed because of the errors indicated and the cause remanded.

Reversed and remanded.


text:
    American Insurance Company of Newark, New Jersey, Appellant, v. A. F. McClelland, Appellee.
    1. Corporations, § 51

      —proof of corporate existence under plea of nul tiel corporation. In an action on a promissory note where the declaration alleges that plaintiff, is a corporation and issue is joined bn a plea of nul tiel corporation, plaintiff is required to prove its corporate existence at least de facto, and where no attempt is made to prove its corporate existence by the introduction in evidence of its character or the general law under which it claims to be incorporated, oral testimony of witnesses that it was in fact a corporation, held properly excluded as not the best evidence.
    2. Corporations, § 55

      —when certificates issued by insurance department. of this State not admissible to prove corporate existence. Certificates issued by the Insurance department of this State authorizing an insurance company to conduct its business in this State do not tend to prove its existence as a corporation, since the act of the Legislature authorizing their issuance applies equally to partnerships, associations or corporations.
    3. Corporations, § 53

      —evidence sufficient to prove corporate existence de facto. A corporation may make proof of its corporate existence de facto by introducing in evidence its charter or the act through which its existence is made possible together with proof of the exercise under it of the franchise and powers thereby granted.
    4. Corporations, § 59

      —-when person executing note to corporation not estopped to deny its corporate existence. Where a person executed a promissory note to a corporation and suit is brought thereon by the corporation, the maker is not estopped to deny its corporate existence where the instrument sued on in no way describes or refers to the plaintiff as a corporation either directly or indirectly and neither the word “corporation” nor “incorporated” appears thereon, and this though the plaintiff is mentioned as a company, since the word “company” is equally applicable to a partnership.
    5. Corporations, § 50

      —when introduction in evidence of instrument executed to coi-poration not prima facie evidence of its de facto existence in suit thereon. The rule that where a corporation sues on an instrument executed to it as a corporation the introduction of such instrument is sufficient prima facie evidence of its de facto existence, does not apply where plaintiff alleges it is a corporation and issue is joined on a plea nul tiel corporation.

    Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Schaefer & Dolan and Green & Palmer, for appellant ; Oris Barth, of counsel.
    Dobbins & Dobbins, for appellee.

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

      See Illinois Notes Digest, Vols. XI to XV, same topic anti section number.

   Mr. Justice Thompson

delivered the opinion of the court.

This suit was brought by the American Insurance Company of Newark, New Jersey, in the Circuit Court to recover upon a promissory note signed by A. F. McClelland; the declaration avers that plaintiff is a corporation.

The defendant, among other pleas, filed pleas of nul tiel corporation and the general issue to which the plaintiff replied. Issue was joined upon the replication to the plea of nul tiel corporation as well as upon the general replication to other special pleas; the cause was tried before a jury.

Plaintiff offered in evidence the note sued on and attempted to prove by the oral testimony of a witness that it was in fact a corporation, that it had a corporate seal and transacted business under such seal, but upon objection the oral testimony was excluded as not the best evidence. Plaintiff also offered the certificate issued by the insurance superintendent for the year 1913, from the Insurance Department of the State of Illinois, dated January 8, 1913, reciting that plaintiff had complied with all the requirements of the law of the State of Illinois and authorizing it to “transact its appropriate business of Fire Insurance in this State in accordance with the laws thereof, until the first day of February, A. D. 1913.”

Upon objection by defendant this certificate was excluded as was also a certificate issued February 1, 1912, over the signature and under the seal of the insurance' superintendent of the State of Illinois showing that plaintiff had filed with the Insurance Department a sworn statement showing its condition on Dec. 31, 1911. “In accordance with the provisions of * * * ‘An Act to incorporate and govern Fire, Marine and Inland Navigation Insurance Companies doing business in the State of Illinois.’ ”

Plaintiff thereupon rested its case and upon motion of defendant a verdict was directed for defendant and judgment entered against plaintiff in bar of action and for costs, from which judgment plaintiff appealed to this court.

Under the issues framed upon the plea of nul tiel corporation, appellant was bound to prove its corporate existence at least de facto. To prove such existence it is sufficient to'introduce its charter or the act through which its existence is made possible together with proof of the exercise under it of the franchise and powers thereby granted. American Sales Book Co. v. Wemple, 168 Ill. App. 639; Dean & Son v. W. B. Conkey Co., 180 Ill. App. 162.

No attempt was made to make proof of the corporate existence of appellant by the introduction of its charter or the general law under which it claims to be incorporated, and the oral testimony offered as to user was properly excluded as not the best evidence.

The certificates issued by the Insurance Department of the State of Illinois authorizing appellant to conduct its business in this State do not tend to prove its existence as a corporation, inasmuch as the act of the Legislature under the authority of which they were issued applies equally to partnerships, associations or corporations. Hurd’s Statute c. 73, 31, 32. (J. & A. ¶¶ 6329, 6330.)

Appellant relies for a reversal in this suit upon the proposition that appellee had contracted with it as a corporation and had executed the instrument sued on to it as such, and therefore appellee is estopped to deny the corporate existence.

'The instrument relied upon reads as follows:

“Agent fill out this end of note:
Sec. 16, Town....., Lot....., Block....., Brown; P. O..... Foosland; Co..... Champaign,.....Illinois. Agent’s Name—L. W. Cole.
$264.50. No. 756025.

On the first day of Feb., 1912, for value received, 1 promise to pay to The American Insurance Company, of Newark, N. J., or order, Two Hundred and Sixty-four 50-100 Dollars, in payment of premium for Policy No......... of said Company, payable at Foosland bank, at Foosland or (if not otherwise specified) at its office in the city of Bockford, Illinois.

If this note is paid within three months from date no interest will be charged. And it is hereby agreed that if this note is not paid at maturity, the whole amount of premium of said Policy shall be considered as earned and payable, and the policy shall be suspended, and the company shall not be liable for any loss or damage that may occur to the property insured while this note shall be past due and unpaid. In case of loss, this note shall become due and payable and shall be deducted from the amount of said loss. And it is further agreed that if suit is brought for the collection of this note I promise to pay expenses of collection and attorney’s fees and without relief from valuation or appraisement laws. The company is authorized to insert in this note the Number of Policy. It is understood and agreed that this Note is not negotiable.

Dated at her house this 8th day of Nov., 1911. Witness to signature—(Signed) A. F. McClelland.

Party owns 750 acres worth $200 per acre.”

There is nothing in the note referring to or intimating that appellant is a corporation. It was held by this court in American Sales Book Co. v. Wemple, supra, upon facts practically identical with the ease at bar, the instrument in question “in no way describes or refers to the plaintiff as a corporation, either directly or indirectly. Neither the word ‘corporation’ nor ‘incorporated’ appears thereupon.” The word company “is equally applicable to a partnership.”

We have examined the case of Hudson v. Green Hill Seminary Corp., 113 Ill. 618, cited by appellant, and the cases there cited, where the court seems to hold that the execution of the instrument upon which the suit was brought was sufficient prima facie evidence of the existence of the corporation, under a plea of mil tiel corporation, but this holding was not necessary for the decision of the case inasmuch as there was other proof of its existence as a corporation de facto, and in that case the trial court found for the plaintiff and the judgment of the lower court was affirmed.

All the authorities, including the many cited in 113 Ill. 618, hold that where the instrument sued on is executed to the corporation as such that the introduction of such instrument is sufficient prima facie evidence of its de facto existence.

The reason for the rule, where the instrument itself does not disclose a corporate existence, is that the burden of proving corporate existence when there is a plea of mil tiel corporation is on the plaintiff, since the plea denies the averment of the declaration. Bailey v. Valley National Bank, 127 Ill. 332, and cases cited; 5 Encyc. Pl. & Pr. 82.

Appellant having alleged that it was a corporation, it was necessary that there be some proof either in the instrument. itself, or otherwise, of its corporate existence.

There being no competent evidence of the corporate capacity of appellant, the trial court properly directed a verdict for the appellee and the judgment will be affirmed.

Affirmed.

Mr. Justice Philbrick took no part in the consideration of this case.


text:
    S. Homer Tolly, Appellant, v. The Millikin National Bank, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Statement, of the Case.
    Action by S. Homer Tolly against The Millikin National Bank to recover a sum claimed to be due as commissions for services of plaintiff as real estate agent in selling defendant’s real estate. From a judgment in favor of defendant, plaintiff appeals.
    Jack & Whitfield, for appellant.
    Hugh Crea and Hugh W. Housum, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Abstract of the Decision.

1. Broker, § 90*—when evidence insufficient to entitle a real estate agent to a commission. In an action to recover a commission for the sale of defendant’s real estate, a verdict in favor of defendant held sustained hy the evidence, it appearing that plaintiff had no exclusive agency to sell the land, that defendant sold to another party after plaintiff had failed to fulfil his promise to call upon defendant to close the deal with his prospective purchaser and plaintiff’s evidence showing that he concealed from defendant the correct amount offered hy his prospective purchaser.

2. Evidence, § 366*—when question ashed of prospective purchaser in suit by real estate agent‘for a commission calls for a conclusion. In an action to recover a commission for the sale of real estate, sustaining an objection to a question put to plaintiff’s prospective purchaser whether he was ready and willing to complete the purchase on the terms he and the plaintiff talked over, held not error for the reason that the question called for a conclusion. The witness should have been asked for the facts and thereafter permitted to tell his financial condition and all attending circumstances.


text:
    Thomas T. Boyle, Appellee, v. Chicago and Eastern Illinois Railroad Company, Appellant.
    1. Damages, § 115

      —when verdict for five thousand dollars for personal injuries is excessive. A verdict for five thousand dollars for injuries sustained by a switchman held excessive, the injury having been caused by a fall through the roof of a car, and the evidence showing that no bones were broken or joints dislocated and no cuts, bruises or visible marks of any injury except a scratch on the leg, and there being evidence that numerous doctors were unable to find anything the matter with him.
    2. Instructions, § 81

      —when properly refused for giving undue prominence to the evidence. Requested instructions directing the attention of the jury to particular portions of the evidence, thereby giving it undue prominence, held properly refused.
    3. Appeal and error, § 1562

      —when refusal of requested instruction as to the manner of determining damages not reversible error. In an action to recover damages for personal injuries, refusal of a requested instruction telling the jury that in case they found for plaintiff they should not fix the amount of the damages by adding together the sums the individual jurors thought plaintiff should recover and dividing the total by the number of jurors, held not reversible error, though it would not have been error to give the instruction.
    Appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholfield, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed October 16, 1913.
    H. M. Steely and II. M. Steely, Jr., for appellant.
    Clark & Hutton, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

This is an action on the case brought by Thomas T. Boyle in May, 1912, against the Chicago and Eastern Illinois Railroad Company to recover damages for personal injuries claimed to have been sustained by him while in its employ as a switchman on the night of September 5, 1911, in the Brewer yards near Dan-ville. A jury returned a verdict for plaintiff for five thousand dollars, on which judgment was rendered. The defendant appeals.

The appellant has assigned error on the rulings of the court, on the admission of evidence and on the giving of certain instructions and the refusing to give others. While several of the instructions given for appellee are abstract in form they could not mislead the jury. • Some of the refused instructions were given in substance and others were properly refused because they directed the attention of the jury to particular portions of the evidence giving to it undue prominence. The eighteenth instruction requested by the appellant, and refused, told the jury that in case they found for appellee they should not fix the amount of the damages by adding together the sums the individual jurors thought appellee should recover and dividing the total by the number of jurors. While it would not have been error to give the instruction it was not reversible error to refuse it. We do not find any reversible error in the questions of law contended for by appellant.

It is also insisted that the evidence does not sustain the judgment and that it is excessive.

The evidence shows that appellee was a switchman, forty-eight years of age and weighing two hundred and sixty pounds. He had worked on a railroad about half the time since 1882, and began working for appellant in November, 1908. He testified that on the night he was injured he climbed on a cut of cars that were being switched in the Brewer yards, and after the cars stopped he was going over them to set brakes ; that in walking over a stock car that had a patent ceiling twelve inches below the roof which extended to hay racks at the side of the car, and while about the middle of the car he stepped on what proved to be a rotten board, that his right foot went through the board and his leg went into the car sidewise between the ceiling and the roof of the car up to the crotch; that he fell forward with his left leg extended in front of him; that he fell heavily, so that his stomach struck against his lmee, and that he wrenched and sprained his back; that he got up, started to set the brake on another car and continued at his work about two hours thereafter, when he had to quit work because of his injury. There were no marks or bruises about his person except a scratch on his leg. Since that time he has been in various hospitals and under the care of several physicians and claims to suffer pain in his head and back. He also claims to have trouble with his kidneys and with his urine, and that he is unable to work.

After the accident he was attended by Dr. Barton at St. Elizabeth’s hospital in Danville about four weeks, where Dr. Bohart saw him three days after the accident. He then went to the Englewood hospital, where he was examined by Dr. Bohart, and while staying at that hospital, he went to the city daily to he treated by Dr. Englebrechtson, from October 9 to .December 6, 1911. On April 9, 1912, he was examined by Dr. Moyer of Chicago, and in February he was examined by Dr. Bice in Terre Haute, Indiana. The evidence shows that none of these doctors were able to find anything the matter with him notwithstanding the most thorough tests. They testify that they never saw any objective symptoms and that all the symptoms were subjective, and that had he been injured in the way be claims, the injury would have been to his hip.

Doctor Taylor, a brother-in-law of appellee, who saw him in the hospital three or four days after the injury was received, testified that he had some temperature, complained of pain in his back and head and afterwards of trouble with his kidneys, but outside of the temperature he saw no objective symptoms. Doctor Webb, an osteopath, who treated appellee after July, 1912, testified that he found pain and tenderness in the small of the back and an anterior curve of the spine.

Appellee testified to having, when in the employ of the Wabash, fallen from the top of a box car from which accident he was laid up a few days, and of having an arm broken on the Big Four some years before the present injury was received, and that prior to this injury he was healthy and well and had never laid off or quit work, while working for appellant, except one night when he had cramps. The evidence of the members of the switching crew, with which he was working, is that two or three nights of each week he would work a while and then claim he was “all in” and then go and sit or lie down and that this occurred to such an extent that it was reported to the Company, and that he complained of rheumatism or pain in his back and legs.

The evidence shows that there were no bones broken or joints dislocated, and no cuts, bruises or visible marks of any injury at the time he claims he was injured. The doctors, except Taylor and Webb, were not able to find any symptoms showing any injury and testify that in their judgment the appellee is not suffering as he claims. Upon a careful review of all the evidence, we are of the opinion that this judgment is clearly excessive and cannot be sustained.

In the final argument of counsel for appellee to the jury improper remarks were made that were of a nature calculated to arouse prejudice, and not to promote justice. These remarks, which we do not deem necessary to set out in detail, may account for the amount of the verdict. Counsel attempt to excuse the nature of the argument by saying it was provoked by, was in reply to and was like the argument for appellant. The record does not contain the argument of appellant, but whatever it may have been, it was no excuse for and does not remedy the error of appellee’s counsel.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Herman Rendtorff, Appellee, v. Edward W. Lowman, Appellant (Charles A. Kimmel, Intervening Petitioner.)
    1. Attorney and client, § 138

      —when, attorney not entitled to a statutory lien on judgment recovered in favor of his client. Under paragraph. 55 of the Lien Act (Hurd’s St. 1911, p. 1489, J. & A. ¶ 611) an attorney is not entitled to a lien for his fees on a judgment recovered by his client, where the judgment was paid to his client several hours before he notified the debtor of his claim for a lien on the judgment.
    2. Attobney and client, § 138

      —when attorney not entitled to an equitable lien on judgment for his fees. An attorney is not entitled to an equitable lien on a judgment recovered in favor of his client where the judgment was paid to his client or to some person authorized to collect the same before he notified the judgment debtor of claim for lien in accordance with paragraph 55 of the Lien Act (Hurd’s St. 1911, p. 1489, J. & A. ¶ 611.)

      Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed.
    Opinion filed October 16, 1913.
    Rehearing denied November 12, 1913.
    Cameron & Cameron, for appellant.
    Charles A. Kimmel, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

On June 17, 1912, Charles A. Kimmel, an attorney at law, filed a petition in the Circuit Court of 'Tazewell county to enforce a lien for $232.32 on a judgment against Edward W. Lowman in favor of Herman Bendtorif, for $303.08 in the Circuit Court of Peoria county, of date December 3, 1893, which had been revived. Lowman answered the petition, setting up that the judgment had been paid and satisfied before any notice of lien was served on him. On a hearing, the court found that the petitioner had a lien for $247.56, and that a release of the judgment of date June 1,1912, was void to the extent of said lien. The court entered an order setting aside said release and directing the sheriff of Tazewell county to proceed to collect the-sum of $247.56 by selling certain real estate in Tazewell county, theretofore levied upon under an execution on said judgment, issued to him on May 21, 1912, from the office of the Circuit clerk of Peoria county. Lowman appeals from that order.

The record shows that in 1893, Herman Bendtorif, who resided near Chicago, had a claim against Edward W. Lowman of Peoria. Bendtorif placed the claim in the charge of Snow, Church & Co., a Chicago collection agency, and they sent the claim to H. C. Fuller, an attorney in Peoria, to collect. In December, 1893, Fuller obtained a judgment on this claim for $303.08 against Lowman in favor of Bendtorif, in the Circuit Court of Peoria county. Soon after the judgment was obtained $50 was paid on it, and in February, 1898, Fuller collected the further sum of $10. Fuller had the judgment revived by scire facias on June 13, 1904. In the early part of 1912, Lowman fell heir to some real estate in Tazewell county by the death of a relative. On April 6, 1912, Charles A. Kimmel, an attorney of Peoria, who had learned that Lowman was indebted to Bendtorff and had advised Lowman to go through bankruptcy and solicited the work of procuring a discharge in bankruptcy for him, wrote to Bendtorff asking if the judgment had ever been paid, and if it had not, then soliciting the collection of it and offering to collect it for fifty per cent, of the amount due. Bendtorff, on April 9th, replied to the letter of April 6th, stating that he would allow a commission of forty per cent, for the collection' of the judgment. Early in May, Kimmel in an effort to supplant Fuller wrote a letter to Bendtorff' inclosing a postal card addressed to Fuller, on which was written a discharge of Fuller as attorney in this matter and instructing Fuller not to make any settlement with Lowman. The letter requested Bendtorff to sign the postal and mail it to Fuller. Bendtorff neither signed nor sent the card to Fuller, nor gave Fuller any notice that the matter was taken out of his charge. On May 18, 1912, Kimmel had the judgment again revived by scire facias, and on May 20, 1912, caused an execution to be issued to the sheriff of Peoria county, who returned it unsatisfied on May 21. On May 21, Kimmel caused an execution to be issued to the sheriff of Tazewell county. On June 1, 1912, at about 10:30 in the forenoon, Lowman, who had been negotiating with Fuller since early in January for a settlement of the claim, paid the judgment with interest and costs to Fuller, the attorney who first placed the claim in judgment. About 5:30 in the afternoon of June 1, 1912, Kimmel served a notice on Lowman, notifying him that he had an attorney’s lien amounting to $232.32 on the Bendtorff judgment.

The sole question presented is whether the petitioner is entitled to a lien for his fee of forty per cent, of the judgment. The act under which this proceeding is brought in paragraph 55 of the Lien Act (Hurd’s Stat. 1911, p. 1489, J. & A. 611.) This act provides that attorneys at law shall have a lien on all claims, demands and causes of action which may be placed in their hands by their clients for suit or collection for the amount of the fee agreed upon, or in the absence of an agreement for a reasonable fee, provided however such attorneys shall serve notice in writing upon the party against whom their clients have such claims or suit, claiming such lien, and stating their interest therein, and such lien shall attach to any judgment, or to any money or property, which may be recovered from and after the time of service of the aforesaid notice. The appellee contends that although the judgment was paid before he served his notice that he is entitled to an equitable lien. The contention of appellee might be true as against third parties under certain circumstances, hut cannot be maintained in favor of an attorney as against a judgment debtor who pays the judgment to the client or to some person authorized to collect the claim before the service of such notice of lien. The statute provides a way by which an attorney may preserve his lien as against the debt- or, but until the notice had been served on the debtor he has the right to pay the claim to an attorney, who had it for collection, and from whose hands it had not been taken by the creditor. It is only by serving the notice that the attorney becomes a joint claimant with the client. Baker v. Baker, 258 Ill. 418. The order cannot be sustained on the evidence. It is therefore reversed with costs against the intervenor.

Reversed.


text:
    Ellen Lisenbury, Appellee, v. St. Louis and Springfield Railway Company, Appellant.
    1. Damages, § 114

      —when two thousand five hundred dollars for personal injuries to woman excessive. In an action against an interurban railroad company to recover damages for personal injuries sustained by plaintiff by reason of a collision while plaintiff was a passenger, a verdict for two thousand five hundred dollars held excessive, it appearing that plaintiff was a married woman thirty-two years of age, that the only visible signs of injuries was a scratch on her face, bruises on her shins and knees and a red mark on her back, and that she suffered from a prior existing womb trouble aggravated by the accident.
    2. Damages, § 45

      —measure of damages where the injury resulted in aggravating a prior existing disease. Where plaintiff prior to injury had diseases which were aggravated by the injury, damages may be allowed for such part of the diseased condition as the negligence caused.
    3. Damages, § 35—proof of future damages. To justify a recovery for future damages the law requires proof of a reasonable certainty that they will be endured in the future. A mere possibility or even a reasonable probability that future pain and suffering may be caused by an injury is not sufficient to warrant an assessment of damages.
    4. Trial, § 130

      —when remarles of counsel improper. In an action against a railroad company to recover damages for personal injuries sustained by plaintiff in a collision, counsel for plaintiff in concluding his argument to the jury made the statement: “This company could not have inflicted this injury more wilfully if the president of the company had struck her in the face with a ball bat.” Held, the court properly sustained an objection to the statement and instructed the jury to disregard it.
    5. Appeal and error, § 1632

      —when ruling of court will not cover inflammatory remarle of counsel. Where counsel in his argument to the jury seeks to inflame the passions of the jury or to excite their sympathy, a ruling of court cannot remove the effect of the inflammatory remark.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed October 16, 1913.

      Graham & Graham and H. C. Dillon, for appellant; George W. Burton, of counsel.
    W. St. J. Wines, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

This is a suit to recover for personal injuries sustained by Ellen Lisenbury while a passenger on an interurban car of the St. Louis and Springfield Railway Company. No claim is made in this suit for damages for loss of time or medicine or other expenses. There was a verdict and judgment for twenty-five hundred dollars in favor of plaintiff, and the defendant appeals.

Appellee, a married woman thirty-two years of age, resided on a farm six miles south of Springfield. On August 17, 1912, she purchased a round trip ticket from Woodside to Springfield, went to Springfield to market some chickens and eggs, and after concluding her business there boarded a car for her home, and took a seat near the middle of the car. Two miles from Woodside the car was backed on a siding to permit the northbound car to pass at that place. It was the duty of the conductor of the car on the siding to close the switch. This he neglected to do with the result that the northbound car ran into and collided with the car on which appellee was a passenger. Appellee was injured; the visible signs of her injuries were a scratch on her face, bruises on her shins and knees and a red mark on her back. The only contention of appellant is that the judgment is excessive.

The appellee testified that before the accident she weighed one hundred and ninety pounds, was strong, active and free from nervousness or suffering, that after the accident she was stunned so that she did not know how she got off the car; that she was hurt from her waist down; she began to flow and that this continued for two weeks, and that at the time of the trial she weighed one hundred and sixty pounds. After the accident she, with other passengers, was taken on a relief car to Springfield, then she took a car to Woodside and was conveyed to her home. Dr. Primm was called to attend her at her home that aftérnoon. He testified that she did not make any complaint of bleeding and that he did not find her suffering to any great extent, that she told him she had taken morphine in the morning and he left some morphine to quiet her nerves. Dr. Fletcher was then called and attended her two weeks at her home. He testified that she was always a nervous woman; that he had made two examinations of appellee before the accident, the last about a year before it; that he then found a fixed and enlarged womb with possibly some retroflexion with a discharge from the womb at that time; that he examined her three days after the accident; that she complained of soreness but had no flowing at that time; that he treated her until September 17, when he thought she could walk, and insisted on her walking, but she complained of inability to walk and that she then had a discharge, which was not menstrual. When Dr. Fletcher insisted that she walk he was discharged and Dr. Van Wormer was called to attend her. She was taken to St. John’s Hospital in Springfield, where she was put under an anaesthetic and examined by Dr. Van Wormer, Dr. Mantz and Dr. Morrison; they found the womb fixed and displaced, a mass in the right side of the pelvis and a thickening of the left side. They agreed that an operation should be performed later, but that they should wait to see what would develop. On October 3rd, she left the hospital and returned home where she remained in bed five weeks. She was then again taken to the hospital where an operation was performed by these three doctors, who found her trouble partly chronic and partly acute. The diseased condition then found was of long standing; the womb, intestines and all the structures of the pelvic region were involved in an adherent mass; the fallopian tubes were diseased so that one had to be removed, and cysts containing clear fluid were found in the ligaments supporting the womb. They say her condition was due to a previous specific germ disease of much longer standing than the previous August. While appellee testified she had previously suffered no pain, yet on cross-examination she admitted that she had previous to her injury at different times consulted Doctors Bradley, Fletcher, Southwick, Law and Theis concerning womb difficulties, and she refused to answer some questions even after being advised by the court that she should answer. W. A. Crane testified that in the latter part of July, 1912, she told him as a reason why she was selling some very young turkeys that she was sick and expected to go a hospital any day; the part of this conversation with reference to her going to a hospital, however, was denied by appellee. The testimony of Doctors Bradley, Fletcher, Van Wormer, Mantz and Morrison is that her condition was chronic before the accident, although some of them say it is possible the collison might have intensified the adhesions and long existing inflammation and they also say it was probable that an operation was necessary because of appellee’s chronic condition.

In a case against a city for personal injuries caused by a defective sidewalk it was said: “If, prior to the injury, plaintiff had diseases which were aggravated by the fail she might recover from the defendant, but its liability would be measured by the damages which were the natural and proximate result of its negligence. The evidence tended to show something more than a mere latent tendency to particular diseases,, and if there was an aggravation of the existing diseases the city would only be liable for what resulted from the faff.” City of Rock Island v. Starkey, 189 Ill. 515. “The defendant must respond in damages for such part of the diseased condition as its negligence caused.” Chicago City Ry. Co., v. Saxby, 213 Ill. 274.

“A mere possibility, or even a reasonable probability, that future pain or suffering may be caused by an injury, or that some disability may result therefrom, is not sufficient to warrant an assessment of damages. It would be plainly unjust to require a defendant to pay damages for results that may or may not ensue and that are merely problematical. To justify a recovery for future damages the law requires proof of a reasonable certainty that they will be endured in the future.” Amann v. Chicago Consol. Traction Co., 243 Ill. 263; Lauth v. Chicago Union Traction Co., 244 Ill. 245. The weight of the evidence tends to show that the accident was not the proximate cause of appellee’s condition and suffering although it may have been intensified by the accident. She is only entitled to recover for that part of her suffering and condition which probably resulted from the injury.

In the concluding argument of counsel to the jury he made the statement: “This company could not have inflicted this injury more wilfully if the president of the company had struck her in the face with a ball bat.” The court properly sustained an objection to the statement and instructed the jury to disregard it. Where counsel seek to inflame the passions of the jury or to excite their sympathy, a ruling of the court cannot remove the effect of such an inflammatory remark.

We are of the opinion that the damages allowed are clearly excessive in view of the previous condition of appellee as shown by the great preponderance of the evidence. If appellee will remit to twelve hundred and fifty dollars within ten days, the judgment will be affirmed for twelve hundred and fifty dollars, otherwise the judgment will be reversed and the cause remanded for a new trial for the reason the judgment is excessive.

Affirmed on remittitur; otherwise reversed and remanded.


text:
    City of Springfield, Appellant, v. Central Union Telephone Company, Appellee.
    1. Telegraphs and telephones, § 4

      —when ordinance granting privilege is subject to ordinance in force requiring remuneration for poles in street. An ordinance granted to certain persons, to be known as a certain company, the right to construct and operate a telephone and telegraph system in consideration that the company would furnish the city officials and the police and five departments with free telephone service, and allow it the use of its poles for a police and fire alarm system. This ordinance provided that the rights granted should be subject to all general ordinances then in force, and there was a general ordinance in force requiring owners of poles in streets and alleys of city to pay an annual license of one dollar per pole as a remuneration to the city for the use of the streets and alleys. Held, in an action by the city against the assignee of the grantee company to recover the license fee for its poles that the assignee was liable therefor, that the court erred in overruling a demurrer to defendant’s pleas setting up that the ordinance granting the privilege to its assignor did not require the payment of the license, and that the court erred in sustaining a demurrer to a replication pleading estoppel to other pleas which set up that the defendant had rendered to the city telephone service equal to the value of the use of the street for its poles, and that the ordinance requiring the, license was unreasonable.
    2. Telegbaphs and telephones, § 7

      —conclusiveness of acceptance 'of ordinance granting privilege. Where a privilege is granted to a company by ordinance to construct and operate a telephone and telegraph system, the ordinance to be null and void if not accepted in writing and the construction of such system begun within a certain time, the reasonableness of the grant is for the parties to decide, and if the company accepts the ordinance neither it nor its assignee may be permitted to repudiate any of its terms and conditions that are not contrary to public policy or prohibited by statute.
    Appeal from the Circuit Court of Sangamon county; the Hon. Robebt B. Shibley, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed and remanded with directions.
    Opinion filed October 16, 1913.
    Statement by the Court. This is an action in debt brought in the Circuit Court of Sangamon county to the November term, 1911, by the City of Springfield against the Central Union Telephone Company to recover remuneration claimed to be due for the use of portions of the streets and alleys of the city occupied by the telephone poles of the defendant.
    The declaration avers that the plaintiff, a municipal corporation organized under the laws of the State of Illinois, on the third day of January 1898, passed a certain ordinance providing that any person, firm or corporation owning, controlling or occupying any post or pole over eight feet high, which may occupy any portion of any street, alley or sidewalk within the City of Springfield, said pole or post being used to support electric or other wires of whatsoever nature, shall pay annually into the city treasury the sum of one dollar for each such pole or post so owned, controlled or occupied by said person, firm or corporation as a remuneration to the city for the use of the portions of the street, alley or sidewalk which said pole or post may occupy; that the license hereinbefore provided shall be due on the first day of September of each year; that said ordinance was approved by the mayor and duly published and was in full force in the year 1907. It is also averred that the defendant, in the year 1907, occupied portions of the streets and alleys of said city by, to wit, three thousand poles over eight feet high supporting wires, without paying into the city treasury on the first day of September, 1907, one dollar for each such pole as remuneration for so occupying portions of said streets and alleys, by reason whereof and by virtue of said ordinance an action has accrued to the plaintiff, etc. Counts were also filed similar to the foregoing to recover remuneration for the years 1908 to 1911 inclusive.
    The defendant filed five pleas. The first avers that the defendant is a corporation organized under the laws of Illinois; that it began doing business in Ohio, Illinois and Indiana in 1883, and began to construct, purchase, lease, own and operate telephone lines and do a telephone "business within and without, and partly within and partly without Illinois and has continued to do so since June 28, 1883; that on December 3, 1883, the City of Springfield passed an ordinance granting the defendant, its successors and assigns the right of way through, in and upon its streets, sidewalks and alleys for the purpose of erecting thereon necessary poles and wires to operate a telephone exchange, subject to all general ordinances of the city then in force or thereafter to be passed, which said ordinance should continue in force twenty years; that said ordinance provides that in consideration of the rights and privileges granted by it, the city shall have as many telephones with exchange service as the city may require at one-half the regular rates, and said Company shall maintain, care for and operate a fire alarm bell to be located as the city shall direct without cost to the city; that defendant began immediately and from that time up to the fifth day of August, 1901, continuously placed, constructed and maintained posts, wires and fixtures composing a telephone system at an expense of $100,000, in compliance with the terms of said ordinance, and from June 3,1889, to May 10,1900, said city has used defendant’s poles for carrying its police and fire alarm wires without any consideration to the defendant except the consideration granted under the ordinance of Dec. 3, 1883; that said ordinance constituted a contract between the defendant and said city; that defendant installed and operated under the terms of said ordinance as many telephones as the city required and as the city council designated and called for, and operated a fire alarm bell from thence hitherto and the plaintiff has enjoyed and utilized such concessions up to May 10, 1910.
    The plea further avers that on June 19, 1899, the plaintiff passed an ordinance granting unto Thomas W. Wilson and S. M. Rogers and, such other persons as might thereafter be associated with them, to be known as the “Springfield Mutual Telephone and Telegraph Company” or other appropriate name, and to their successors and assigns the right to construct and maintain a telephone and telegraph system in the City of Springfield in the following words and figures.

      “ * * * Sec. 3. In consideration of the rights and privileges granted to the said parties and others succeeding them, they hereby agree to furnish the city officials in the City Hall, also to the Police and Fire Departments, free telephone service.
    Sec. 4. The City shall have the right, so far as the same shall not interfere with the other uses of said poles, to use the same to support the wires used by it in connection with the police and Fire Alarm system, and all the rights herein granted shall be subject to all general ordinances of said City now in force. * * *
    See. 6. This ordinance shall become null and void if it shall not be accepted in writing, and the construction of said telephone and telegraph system be begun within one year from the date of its passage;” that on June 19, 1899, Wilson and Rogers accepted said ordinance in writing; that on May 10, 1900, said Wilson and others “and the Springfield Mutual Telephone Company a corporation” for a valuable consideration sold and transferred to defendant all right, title, privilege, franchise and property accruing to them under said ordinance; that the defendant on May 10, 1900, notified plaintiff of said assignment and that the defendant was ready to install and furnish the service required under the terms of said ordinance of June 19, 1899, and the plaintiff through its officials by a letter on May 12, 1900, informed the defendant of the offices and buildings in which the plaintiff desired telephones' installed; that the defendant promptly installed and has since furnished and supplied defendant with said telephone service free of charge; that the mayor of plaintiff City on May 31, 1900, communicated to the city council of the City of Springfield said assignment, its ratification and acceptance by plaintiff, and that the plaintiff had demanded from the defendant that it should furnish certain telephone service, and the city council accepted and ratified the acts of the city officials; that with the approval of plaintiff since May 10, 1900, in compliance with the ordinance of Jan. 19,1899, the defendant has operated and maintained a telephone system and has expended in repairing, rebuilding and extending its system $50,-000, and has in compliance with an ordinance passed in 1905, applicable to all telephone companies, placed its wires in the business district of plaintiff under ground at a cost of $10,000, paid its taxes and, in consideration of the rights and privileges granted by said ordinance, furnished telephone service to the city officials and to the police and fire departments of plaintiff, to the value at customary rates during the periods enumerated as follows: May 10, 1900 to Jan. 1, 1901, $1,600; Jan. 1, 1901 to Jan. 1, 1905, $8,000; Jan. 1, 1905 to Jan. 1, 1908, $6,600; Jan. 1, 1908 to Jan. 1, 1910, $4,800; that by said ordinance of June 19, 1899, the only remuneration the defendant was obligated to pay for occupying the streets and alleys of plaintiff with its poles and wires was the telephone service to be furnished to the police and fire departments and the city officials as stipulated in section 3 of said ordinance, and the defendant has fully discharged and performed all the conditions of said ordinance and the defendant is not indebted to the plaintiff in any sum on account of the matters alleged and this it is ready to verify wherefore, it prays judgment if it ought to be charged with the said debt by virtue of said ordinance set forth in the declaration.
    The second plea is the general issue. The third plea is similar to the first with the additional averments of the use of defendant’s poles for carrying its fire and police alarm wires free of charge, save the consideration conferred upon defendant by the ordinance of 1883, and an averment that there was a general ordinance requiring a monthly inspection by the police department of the city of all poles erected in the city and requiring the owners of telegraph and telephone poles to pay an annual inspection fee of seventy-five cents per pole, and reserving the right to the city to allow other companies to use poles on payment of a reasonable compensation, with an averment that the American Telephone Company, under a contract ordinance passed in 1896, was occupying the streets and alleys of the city with its poles for the consideration of fifty cents per pole and free use by the city of one ten pin cross-arm for'the police and fire alarm systems of the city and that the Illinois District Telegraph Company was in 1899 given the same rights for the consideration of the payment to the city of five per cent, of its gross earnings.
    The fourth plea avers that the ordinance fixing the compensation for the use of poles at one dollar per annum is unreasonable and void and exceeds the fair value of the use of the streets.
    The fifth plea is similar to the fourth with the additional averment that a fair remuneration for the use of the streets for poles during’ the entire time does not exceed $5,000, and defendant has furnished telephone service to plaintiff aggregating $15,000, solely as re-remuneration for the use of the streets, for which nothing has been paid by plaintiff.
    Plaintiff filed a demurrer to the first and third pleas and replications of estoppel to the fourth and fifth pleas. The replications to the fourth and fifth pleas aver in substance that the general ordinance requiring the payment of one dollar per pole was in force when the ordinance of June 19, 1899, was passed and accepted by Wilson and his associates, and that the defendant, as assignee of the grantees who accepted the ordinance of June 19, 1899, is hound thereby and by the terms of the general ordinance requiring the payment of one dollar per pole and prays judgment if defendant ought to be admitted or received to plead the matters alleged in said pleas. The defendant demurred to the replications to the fourth and fifth pleas.

      The court overruled the demurrer of plaintiff to the first and third pleas and sustained the demurrer of defendant to the replications to the fourth and fifth pleas. The plaintiff then withdrew its second, third, fourth and fifth counts, and stood by its demurrer to the first and third pleas and its replications to the fourth and fifth pleas. The court entered judgment in favor of the defendant and against the plaintiff in bar of the .action and for costs against the plaintiff. The plaintiff appeals.
    Frank L. Hatch and Albert D. Stevens, for appellant; Timothy McGrath, of counsel.
    W. B. Mann, D. K. Tone and Conkling & Irwin, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

It appears from the averments of the first and third pleas that the defendant is occupying the streets and alleys of plaintiff with a telephone system constructed originally under an ordinance that by its terms expired in December, 1903. The only claim of right to,occupy the streets and alleys of plaintiff made by the defendant is that it occupies as assignee of the rights granted to Thomas W. Wilson and S. M. Rogers under the ordinance of June 19, 1899. Under that ordinance Wilson and his associates and their assigns agree to furnish the city officials and the police and fire departments free telephone service, and that the plaintiff shall have the right to use the poles of Wilson and his associates and their assigns to support the wires used by plaintiff, “in connection with the police and fire alarm systems and all the rights herein granted shall be subject to all general ordinances of the city now in force.”

The substance of these pleas is that defendant occupies the streets of plaintiff as assignee of the ordinance passed June 19, 1899, which it insists is an ordinance granting the rights therein given to Wilson and others for a consideration to be received by the plaintiff from Wilson or his assigns, and that defendant has rendered all the services it has rendered to the plaintiff because they are required by that ordinance, and that the rental of one dollar for each pole is not required by the Wilson ordinance.

The ordinance of January 3, 1898, was enacted before the ordinance granting the right to Wilson and others was passed and was in force when they accepted the rights granted under the ordinance passed in 1899. The ordinance of 1898 provides that any person, firm or corporation owning, etc., shall pay annually the sum of one dollar for each pole over eight feet high which may occupy any portion of any street, alley or sidewalk. The ordinance requiring the payment of remuneration for the use of the streets of plaintiff by poles supporting electric wires is a general ordinance. Neither plea avers that it is not a general ordinance, nor are facts averred which show that Wilson and others and their assigns are not subject to the provisions of that ordinance. The acceptance by Wilson and others of the rights granted them by the ordinance of June, 1899, was an acceptance of the rights granted thereby subject to all the terms and conditions of the grant. The assignee of Wilson and others can have no greater rights in the street under the ordinance of 1899 than the grantees therein.

Neither the first nor third plea avers that the defendant as assignee of Wilson and others have furnished or given to the plaintiff anything since it became the assignee of Wilson and others, that Wilson and others and their assignees were not required to furnish and give to plaintiff as a consideration therefor, unless it be the operation of the fire alarm bell and that was required by the ordinance of 1883, and no charge is made therefor. By the acceptance of the ordinance of 1899, Wilson and others accepted such grant of privileges knowing that the general ordinances required the payment of an annual compensation to plaintiff of one dollar per pole. The ordinance is clear and free from ambiguity, the words must be taken in their ordinary sense and there is no room for construction. The court erred in overruling the demurrer to these pleas."

The ordinance of June, 1899, grants to Wilson and others, to be known as the Springfield Mutual Telephone and Telegraph Company, and to their assigns the right “to construct and operate a telephone and telegraph system” pursuant to the grant in that ordinance. From the averments of the pleas the Springfield Mutual Telephone and Telegraph Company did become incorporated. The defendant may in violation of public policy (Union Trust & Savings Bank of East St. Louis v. Kinloch Long Distance Tel. Co. of Missouri, 258 Ill. 202; People v. Union Gas & Electric Co., 254 Ill. 395) have become the assignee of the grant under the ordinance of June 3,1899, for the purpose of preventing competition, as contended by plaintiff, but there is no pleading raising that question.

The replication to the fourth and fifth pleas are that the defendant is estopped to plea that the ordinance fixing a remuneration of one dollar annually for each pole is unreasonable, and that defendant has rendered to plaintiff telephone services equal to or beyond the value of the use of the streets by the poles of defendant because said services were rendered pursuant to ordinances pleaded.

The ordinance granting to Wilson and others the right to construct and operate a telephone and telegraph system in the City of Springfield contains a section providing that the ordinance shall be null and void, if it shall not be accepted in writing and the construction of said system be begun within one year from the date of its passage. The question of the reasonableness of the grant was for the parties to decide. If the grantees in the ordinance were not satisfied with its terms they should have refused to accept it. Postal Telegraph Cable Co. v. City of Newport, 25 Ky. Law Rep. 635. Wilson and his associates had the right to accept or reject the terms of the ordinance. Having chosen to accept the ordinance with all its terms, they are hound by it and may not be heard to say that they accept the benefits and that they refuse the burdens imposed by it. The city had the right to give or withhold the privilege of constructing and operating a telephone system on its streets. One of the conditions under which the plaintiff granted to the assignors of defendant the right to occupy the streets with telephone poles was the compliance with the general ordinances of the plaintiff, one of which required the annual payment of one dollar as remuneration for each pole occupying the streets additional to the other conditions of telephone service specified in the ordinance. The ordinance having been accepted, neither the grantees nor their assignee may be permitted to repudiate any of its terms and conditions that are not contrary to public policy or prohibited by statute. Having been accepted it became a valid contract in its entirety. Chicago General Ry. Co. v. City of Chicago, 176 Ill. 253; Commonwealth Electric Co. v. Rose, 214 Ill. 545. The court erred in sustaining the demurrer to the replications to the fourth and fifth pleas. The judgment is reversed and the cause remanded with instructions to sustain the demurrer to the first and third pleas and to overrule the demurrer to the replications to the fourth and fifth pleas.

Reversed and remanded with directions.


text:
    Nancy V. Hoxsey by John Hoxsey, Appellee v. St. Louis and Springfield Railway Company, Appellant.
    1. Damages, § 115

      —when verdict for two thousand dollars for personal injuries sustained by a girl is excessive. A verdict for two thousand dollars for personal injuries sustained by a girl thirteen years of age by reason of coming in contact with a telephone wire which had fallen across a trolley wire, held excessive, the evidence showing that she suffered a burn on her right arm which healed in about six weeks and a burn over her right eye which ’ healed in about two weeks, and that though her eyes were weak after the accident she had complained of sore eyes prior to the injury.
    2. Appeal and error, § 1725

      —conclusiveness of decision on former appeal. The decision of an Appellate Court and the propositions of law announced in reversing a case on prior appeal are binding on the court and will not he departed from on a subsequent appeal in the same case.
    Appeal from the Circuit Court of Macoupin county; the Hon. James A. Cbeighton, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed October 16, 1913.
    Renaker & Renaker and George W. Black, for appellant; George W. Burton and H. C. Dillon, of counsel.
    Edward C. Knotts, for appellee; Peebles & Peebles, of counsel.

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

   Mr. Justice Thompson

delivered the opinion of the court.

Nancy V. Hoxsey by her next friend brought suit against the St. Louis & Springfield Railway Company to recover for personal injuries averred to have been received by coming in contact with a telephone wire, which it is averred by and through the negligence of the defendant fell across its trolley wire, which was charged with a dangerous current of electricity, in the city of Girard, Hlinois. The case has been tried twice in the Circuit Court. On the first trial the plaintiff recovered a verdict for one thousand eight hundred and fifty dollars upon which judgment was rendered; upon an appeal to this court that judgment was reversed and the cause remanded. Hoxsey v. St. Louis & S. Ry. Co., 171 Ill. App. 76. A statement of the pleadings will be found in the former opinion and need not be repeated. On the second trial the plaintiff recovered a verdict for two thousand dollars, upon which judgment was rendered and the defendant appeals.

All the legal questions that are raised on this appeal were passed upon in the former opinion of this court adversely to the contentions of the appellant. The decision of an Appellate Court and the propositions of law announced in reversing a case are binding on that court and will not be departed from on a subsequent appeal in the same case. Mariner v. Ingraham, 230 Ill. 130; Beggs v. Postal Tel. Cable Co., 176 Ill. App. 406.

The only remaining contention is that the damages allowed are excessive. The evidence shows that the physical injuries suffered by appellee, then a girl of the age of thirteen years, were not serious. She suffered a burn on her right arm five or six inches in length that healed in about six weeks, and there was a burn over her right eye about the size of a quarter that did not heal for about two weeks. The injuries were so slight that but little attention was paid to them at the time. Her father, a veterinary surgeon, applied some salve to the wounds and she was only absent from school four days.

Appellee testified that, from the time she was injured her eyes pained her when she read and that they still pain her. She also testified that she had sore eyes for a week or two a year before the injuries complained of were received and that she had fully recovered before the time the injuries complained of were received. A physician was not called to attend to her at the time she was injured. After the beginning of this suit, and about eighteen months after she was injured, her eyes were examined by Dr. West, who found her vision somewhat defective, but he was unable to determine the cause of the trouble. Appellee attended school the full term after the accident except the four days immediately after it was received and exhibited no signs of trouble or weakness of her eyes and was an average pupil both before and after the accident. Upon a consideration of all the evidence in the case the damages allowed appear to be clearly excessive. If the appellee will remit eight hundred dollars within ten days after this opinion is filed, the judgment will be affirmed for one thousand two hundred dollars; otherwise the judgment will be reversed and the cause remanded.

Affirmed on remittitur; otherwise reversed and remanded.