text:
    People of the State of Illinois, for use of State Board of Health, Appellant, v. Mrs. K. Hettiger, Appellee.
    Gen. No. 5,173.
    1. Verdicts—when not disturbed. Where two juries have found the same way, the. Appellate Court is slow to set aside the last verdict as against the weight of the evidence.
    2. Medicine and surgery—who not required to be licensed. There is no law which requires a masseur to take out a license to practice that occupation.
    3. Medicine and surgery—what not practicing medicine. The mere giving of massage treatments professionally falls within the profession of a trained nurse and one who gives such treatments is not required to be licensed. People v. Gordon, 194 111. 571, followed.
    4. Licenses—when nurse not required to be licensed. A person who nurses the sick for hire and does not profess or pretend to be a registered nurse, is not required to be licensed.
    5. Costs—when judgment for, should not be rendered. It is erroneous to render a judgment for costs against the people where the prosecution is for the use of the State Board of Health.
    Action of debt. Appeal from the Circuit Court of Ogle county; the Hon. Richard S. Farband, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed in part and reversed in part.
    Opinion filed October 19, 1909.
    Baxter & Wirick, for appellant.
    Franc Bacon, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action of debt by the People for the use of the State Board of Health against Mrs. K. Hettiger, to recover a penalty for practicing medicine without a license, in violation of chapter 91 of the Revised Statutes of Illinois, entitled “Medicine and Surgery.” The suit was originally begun before a justice of the peace in Ogle county and there tried before a jury, where there was a judgment for defendant. The case was appealed to the Circuit Court of that county, where on a trial before a jury a verdict was again returned for the defendant. A motion for a new trial was overruled and judgment rendered on the verdict for the defendant and against the plaintiff for costs. The plaintiff appeals to this court.

No question is presented by counsel for appellant concerning the admission or rejection of evidence, but it is contended: first, that the judgment is against the weight of the evidence; second,- that the court erred in rendering judgment against the defendant for costs; third, that there was error in the giving of two instructions given on behalf of defendant and in the refusal of two instructions requested on behalf of the People.

The question that appears to be relied upon mainly is that the verdict is against the weight of the evidence. Appellant offered in evidence two alleged advertisements appearing in local newspapers which, if authorized by appellee, tended to show that she was treating her customers for diseases. The publishers of these newspapers testified that these articles were neither written nor dictated by appellee, and appellee testified that she had no notice or knowledge that any advertisements of the kind offered were published until after the trial in the justice court, and that she never authorized either publication. It also appears from the testimony of the publishers that what was said at a conversation between thein and appellee would not warrant the use of the language used in such advertisements. The publisher of one of the articles testified that after talking with appellee he wrote the article and mailed it to her and that it was brought back by her husband and then published. There was much in each of the publications that was commendatory of the giving of massage in which business appellee professed to be engaged. It is shown that parties who had rheumatism and other like troubles went to appellee and obtained massage. A boy named Reese was under the. medical treatment of Dr. Bemis and he appears to have sent the boy to appellee for massage. A Mrs. Myers was under the treatment of Dr. McCosh for some disease; he told her that massage would be good for her and requested her to go and take massage.

Appellee does not appear to have treated any of the parties for disease, or to have diagnosed the difficulties of any of the parties to whom she gave treatment as being any disease, but only to have given them ordinary massage. It appears that for several years before the opening of her massage parlors in Oregon, appellee had been a professional nurse, but she does not claim to have been a registered nurse nor did she flex the limbs or manipulate any of the bones of her customers, but only gave them ordinary massage without reference to any disease, pain or trouble which they professed to have. 'She testified that she used an electric lamp, but says that it was only to warm the body and take the chill off the room. The evidence on behalf of appellee tended very strongly to show that all she did was simply to give massage treatment. Except for the two articles published in the newspapers there was no testimony upon which a verdict against appellee could have been sustained, and she denied that she had any notice of the publication of either of the two articles. It is a disputed question of fact to be settled by a verdict of the jury whether she was guilty of doing any act in violation of the statutes. Two juries have found in her favor, and the finding of the Circuit Court having been approved by the trial judge, we cannot say that the judgment is not sustained by the evidence.

The first instruction given on behalf of appellee of which complaint is made, states that the law of this state makes no provision for the granting of a license to practitioners of massage. Counsel do not cite the court to any law requiring a masseur to have a license, and we know of none, hence there was no error in the giving of the instruction. The second instruction given of which complaint is made states that the law of this state does not require a person to obtain a license before she can act as a nurse. While there is a statute making it unlawful for any person to practice as a registered nurse without obtaining any license, the following section of the same statute declares that this act does not apply to any person nursing the sick for hire who does not profess or pretend to be a registered nurse. While there was evidence in the case that appellee was a nurse and had been for twenty years yet she made no pretense that she was a registered nurse. The instruction was unnecessary, because the appellee was not being prosecuted for violating the registered nurse act, yet we are of the opinion that the giving of it was not reversible error, as there was not sufficient proof to sustain a conviction under the Medicine and Surgery Act.

The first instruction asked by appellant which was refused told the jury that as a matter of law all rubbing of affected parts is practicing medicine, but our Supreme Court has said in the case of People v. Cordon, 194 Ill. 560, that the mere giving of massage treatment professionally falls within the profession of a trained nurse and is very different from osteopathic treatment. The other refused instruction of which complaint is made told the jury that if the defendant treated her patients by rubbing and manipulating the affected parts without a license so to do, that they should find her guilty. This instruction was entirely too broad. The evidence does not show that she pretended to treat patients for disease. Under that instruction a barber giving a shampoo could be found guilty of practicing medicine without a license. The jury were fully instructed upon the legal propositions in the case, and we find no reason why the Circuit Court should have granted a new trial.

Judgment for costs was rendered against the appellant. This was a suit in the name of the People for the use of the State Board of Health. It was a prosecution by the People instituted by one of the governmental agencies of the State. In that character of a case a judgment for costs should not have been rendered against either the People or the State Board of Health. So much of the judgment as was rendered for costs against the People was erroneous. City of Monmouth v. Popel, 183 Ill. 634. That part of the judgment which is for costs is reversed; the remainder of the judgment is affirmed.

Affirmed in part and reversed in part.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    The Sheffield-King Milling Company, Appellant, v. Edward S. Emerson, Appellee.
    Gen. No. 5,182.
    Judgments, decbees and executions—when property not subject to levy and sale. Held, under the evidence, that there was no such delivery of merchandise to the defendant in the execution as would authorize a levy upon and a sale of such merchandise.
    Assumpsit. Appeal from the County Court of Grundy county; the Hon. Geobge W. Huston, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed October 19, 1909.
    Cornelius Reardon and Einer Hoidale, for appellant.
    John G. Petteys, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

The principal question which arises upon the record in this case is whether there was such a delivery of sixty sacks of flour of the agreed value of $87.75 by the Sheffield-King Milling Company, appellant, to George T. Coulahan as would subject it to a levy and sale by Edward S. Emerson, appellee, a constable, under an execution in favor of Sweet-Orr & Co. against George T: Coulahan. The facts shown by the record are that for several years prior to 1908, George T. Coulahan had been in the grocery business at Minooka, Illinois, and in the early part of that year his place was destroyed by fire. For a time after that he took orders for flour and other goods, and sent to wholesale dealers for the goods and delivered them to his customers. On August 17, 1908, he wrote to appellant at Minneapolis requesting the sale to him of fifteen barrels of flour. His request was answered by appellant forwarding to him through the mail one of their printed form orders which he was requested to sign and return. He signed the order and returned it by mail. The terms of the purchase according to the order were cash on arrival of draft with bill of lading attached. The consignment of flour was shipped August 25, 1908, from Faribault, Minn., to Minooka, Hlinois, consigned by appellant to itself, and the bill of lading with draft attached was sent to the Exchange Bank at Minooka, which was a private bank, managed by Mr. Colleps. The freight was prepaid to Minooka by appellant, and the bill of lading contained the clause “Notify G-. T. Coulahan.” The flour arrived at Minooka the last of August. Coulahan at that time was in straightened circumstances, and judgments had been recovered against him by various creditors, among them Sweet-Orr & Co., who had recovered a judgment for $137.70. When Coulahan learned that the bill of lading had been sent to the bank with the draft attached, he wrote to the appellant at Minneapolis on September 2nd, that if it did not let him have the flour on thirty days’ time he would not take it. Thereupon, on September 3rd, appellant wrote to the Minooka bank, through its Minneapolis banker, to deliver the bill of lading to Coulahan and return the draft.

Edward S. Emerson, a constable, on the 5th of September, levied on the flour under an execution in favor of Sweet-Orr & Co., against Coulahan, and sold it on September 19, 1908. Appellant brought this suit in assumpsit to recover the value of the flour. The case was tried in the County Court without a jury and judgment rendered in favor of Emerson.

Appellant contends that there was no delivery of the flour, either actual or symbolical, to Coulahan, and therefore the title was still in appellant. The proof shows that the flour arrived at Minooka on the C., R. I. & P. Ry. and remained in its depot for some days; that after some correspondence between appellant and Coulahan the bill of lading was delivered by the bank to an employe of the railroad company. It is upon such delivery of the bill of lading to the employe of the railroad company that appellee relies for establishing the title of the property in Coulahan and thereby subjecting it to levy under the execution in favor of Sweet-Orr & Co. Appellant urges that the title to the property would not pass by delivery of the bill of lading to the railroad company, and that it could exercise the right of stoppage in transitu. The evidence fails to show any effort on the part of appellant to exercise such right. Coulahan had endeavored to notify appellant of the seizure of the flour, but corresponded with the Illinois representative of appellant, who had no permanent location, and did not write appellant direct until September 17th, but the letter was not received by appellant in time to replevin the flour before the sale. The Exchange Bank was going out of business, and desired to get the bill of lading out of its possession. The flour was on a truck at the railway depot, and D. H. Andrews, the agent of the railway, being anxious to get the flour out of the way, notified Coulahan several times that the flour was there, but Coulahan paid no attention to the notice. On the evening of September 4th, the agent sent his son, G-arnett Andrews, who was his assistant, to notify Coulahan to take the flour away. On the morning of September 5th, D. H. Andrews, the agent of the railway, sent the assistant agent, his son, to the Exchange Bank and it delivered the bill of lading to the assistant agent; thereupon appellee levied the execution on the flour, shipped it to Morris and there sold it under the execution. G-amett Andrews testified in behalf of appellee that on the night of September 4th, he notified Coulahan the flour was there and asked him for the bill of lading, but does not say what if any answer Coulahan made to him. He further testified that the next morning his father sent him to the bank for the bill of lading, and that no other person ever told him to go and get the bill of lading. Immediately after testifying as above, he was asked: “Was there anybody that said anything to you about getting this bill of lading the night before you got it?” He answered, “Yes, sir.” Question: “Who was it that said it to you?” Answer: “Mr. Coulahan.” Question: “What did he say?” To this question, although proper as a part of the res gestae, the court sustained an objection. If the answer that no person except the railway' agent told him to get the bill of lading was true, he would have answered the question to which an objection was sustained by saying Coulahan told him not to interfere with it or not to get it.

Coulahan testified that he never received the flour nor the bill of lading, and that no person acting for him ever received the bill of lading.

Neither the flour nor the bill of lading was ever delivered to Coulahan, and he, so far as is shown by the evidence, never authorized any person to receive either of them for him, The flour having been shipped by appellant to itself, the carrier was the agent of appellant. The bill of lading was sent by appellant to the bank as its agent. Until there was either a delivery of the flour to Coulahan or of the bill of lading to Coulahan or some authorized agent of his to receive it there was no transfer of the property that would make it liable to a levy under an execution against Coulahan.

It results, therefore, that the title to the flour not having passed to Coulahan, the execution was not a lien thereon and the levy was unauthorized. Therefore the judgment must be reversed and the cause remanded.

Reversed and remanded.


author: Me. Justice Thompson

text:
    Evalyn Kingman, Appellee, v. Louis S. Kingman, Appellant.
    Gen. No. 5,189.
    1. Masters in chancery—when conclusions set aside. In matters other than stating accounts the master’s conclusions are only prima facie correct, and the court, acting on its own motion or upon' exceptions filed, may modify or reject the report if erroneous, defective or against the weight of the evidence.
    2. Separate maintenance—when wife not entitled to. In order for a wife to be entitled to a decree of separate maintenance she must prove that she is living separate and apart from her husband without her fault. Held, under the evidence, that the complainant did not show that she had a due conception of her duties as a wife, that she had not performed her obligations as a wife, that her constant journeys about the country against her husband’s will and her extravagances were all matters which tended to show that her course of conduct had been such as not to justify a decree in her favor.
    Bill for separate maintenance. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed.
    Opinion filed October 19, 1909.
    Winslow Evans, for appellant.
    Covey & Covey, for appellee.
   Me. Justice Thompson

delivered the opinion of the court.

This is a bill in chancery filed in September, 1908, by Evalyn Kingman, appellee, against her husband, Louis S. Kingman, appellant, for separate maintenance. The bill alleges that the parties were married in June, 1906; that complainant always treated the defendant with kindness and forbearance; that a few weeks after the marriage the defendant commenced a course of unkind, cruel and inhuman treatment towards the complainant; that defendant refused to furnish a home for complainant separate and apart from the other members of the family of defendant, and compelled complainant to live with the mother of defendant, an aged lady, whose society was not agreeable to complainant; that soon after the marriage, defendant stated to complainant that he had married her with the understanding she would go upon the stage, for which she had had special training, and that he preferred that she should be absent from Peoria that he might resume his manner of living as when a bachelor; that defendant purposely treated complainant in such a manner as to make her life miserable and to compel her to live separate and apart from him, and since January, 1908, defendant has without any cause positively refused to live with complainant; that defendant has an annual income of $20,000 and refuses to furnish complainant with sufficient money to properly support herself. The defendant answered the bill, denying all the material allegations and stated that before the departure of complainant he had twice offered to furnish her a home separate from his mother’s home; that he paid her an allowance of $20 per week while she lived with him, and had paid her a like allowance up to the beginning of this suit; that complainant wrongfully deserted him and went east without his knowledge; that he did not refuse to take her back; that her living apart from him was of her own volition and her own fault, and that his inco'me was not in excess of $3,000 per year. The cause was referred to a master in chancery to take and report the evidence with his conclusions.

The master, after overruling objections to his report, reported the evidence, with his conclusions, that the complainant was living separate and apart from the defendant without fault on her part and that $35 per week would be a reasonable sum for her maintenance. The objections were renewed in the Circuit Court as exceptions and overruled and a decree entered in accordance with the report. The defendant appeals to this court and assigns as error that the court erred in finding, first, that the appellee was living separate and apart from the appellant without her fault; second, that she is entitled to separate maintenance, and third, that the amount allowed is excessive.

It is contended in behalf of appellee that when the findings of the master have been approved by the trial court they will not be disturbed unless clearly and manifestly against the weight of the evidence, and that the findings of the master are as conclusive on the parties as the verdict of a jury in a civil cause. Such is not the rule. In matters other than stating accounts the master’s conclusions are only prima facie correct, and the court acting on its own motion or upon exceptions filed may modify or reject the report if erroneous, defective or against the weight of the evidence. Ennesser v. Hudek, 169 Ill. 494; Brueggestradt v. Ludwig, 184 Ill. 24; Larson v. Glos, 235 Ill. 584; Keuper v. Mette, 239 Ill. 593. The report of the master, while prima facie correct, is simply advisory and does not have the same force as a verdict of a jury in suits at law. Fairbury Agricultural Board v. Holly, 169 Ill. 9. In matters other than the stating of accounts the master is a ministerial officer and not a judicial officer, but in a case where the master has seen the witnesses and observed their manner and demeanor the finding of facts made by him is entitled to due weight.

The evidence introduced on the part of the appellee consists principally of her own oral testimony and of certain letters that passed between the parties. It is shown that before the marriage she had no family relations or ties, but had been adopted and brought up by strangers who maintained her in luxury; for a year before her marriage a Dr. Emerson, whose first wife had brought up appellee, had given her an allowance of $60 per month for her board, maintenance and clothing, etc. The parties became acquainted with each other through appellee meeting a sister of appellant at a school in Massachusetts and visiting this sister in Peoria some years before the marriage, but the parties had seen little of each other before their marriage. It appears from the evidence that at the time of the marriage appellee was twenty-eight years of age, and that she married appellant without any of Ms family knowing that a marriage engagement existed between them, although she had been acquainted with Ms family about ten years. It was arranged before the marriage that there should be no cMld born as a result of the marriage, and appellee insisted and appellant conceded it was agreed that she might go upon the stage, enter upon the life of an actress, take an engagement for a year and wMle on the stage be absent from appellant. Immediately after the marriage the appellant took appellee to live with him at his mother’s home in Peoria. The residence of the mother was a large, commodious, brick house in a good residence district, and was occupied by the mother and a brother of appellant and appellant and appellee with three servants. They appear to have lived together in peace about two weeks. Appellee then complained because she was required to live in the home of her husband’s mother, and desired to return to Boston, where the marriage had taken place, and then go to New York to complete arrangements to go on the stage. In the latter part of July she went east to try and make arrangements to go on the stage, hut was unsuccessful in procuring any engagement. Appellant met appellee in New York in August and the parties returned to Peoria in September. They stayed in appellant’s mother’s home a short time, then, appellant going out of town for a week, she went to the National Hotel; after that he stayed at his mother’s, but took Ms meals at the hotel, and she continued to stay at the hotel, although he wanted her to go back to his mother’s home, in which he was living alone at the time. He owned another eight or ten-room dwelling house a few blocks from his mother’s residence, and he offered to fit it up and live there with appellee; tMs she refused to do, although she says it was a nice house. He wanted to have one servant and she insisted she would not keep house with less than two servants and a horse and buggy. He said he had no use for a horse and buggy. In March, 1907, he proposed to rent a house on Randolph avenue in Peoria; she looked the house over, made no objections to it or to its location, and he rented it for two years. She testified that she did not want to keep house and live in Peoria, and that “I told him I would rather live east, because he said I could, I wanted to go to live with Mrs. Thayer in Boston.” Within a few days after he rented the house and before they moved in, she asked him for money to go to Chicago with which to buy clothes; at that time he was paying her an allowance of $20 per week for her personal expenses. He paid her $300 in advance on this allowance; she took this advancement and went to Chicago, as she stated, to buy clothes, but did not use the $300 advanced for that purpose, but. ran a bill at Marshall Field’s of over $800 on his credit and went on to Boston to a Mrs. Thayer’s, with whom she had boarded before the marriage. Appellant had no knowledge of her intention to go east, and testifies that the first information he had about her going east was a letter from her a few days afterwards saying she had left bim and the future was uncertain; however, the letter is not introduced in evidence and she denies writing any such letter. There was no further communication between the parties until the fall of 1907, when, in November, Mrs. Thayer came to see appellant and asked for some financial provision for appellee’s support. Appellant refused to say what he would do, but continued to send her the $20 per week. In January, 1908, appellee wrote appellant she was coming to see him, and she did come. He met her at the depot in Peoria and took her to a hotel, as the house he had rented for their use was now occupied by his sister. She wanted $35 per week or said she would come back to live with him. He said she could come back, but he. would not pay her the $35 per week; she also wanted him to furnish her ‘an outfit for a play. They stayed together at the hotel that night. The next day she went to Milwaukee and then to Chicago, where appellant again met her, and they stayed at the Grand Pacific Hotel. The following day he bought her a ticket to Detroit and gave her money to pay her fare to Boston, and continued to pay her the -allowance of $20 per week, hut stated he was not consenting to her remaining away. In March she again came to Peoria and demanded $35 per week, threatening if that sum was not paid she would make him lots of trouble and ruin his business. She again went east and soon thereafter began this suit.

Her account of appellant makes him out to be a very undesirable character, and according to her testimony he has failed to properly discharge his duty to her, and we do not see anything in his conduct to commend him. She tells many unsavory and foul details which she says her husband had told her of his former life, part of which had some connection with her refusal to live with him, but he denies making any of such statements. If her testimony is true, she now seeks to justify her absence from him because of suspicions that he is untrue to her. The bill does not contain any allegations on which to base such proof. Neither of these parties appears to have any proper conceptions of the obligations assumed in entering into the marriage relation and neither of them appears to have intended to be bound to any great extent by the obligations which the law and domestic relations impose upon husband and wife.

As complainant she alleges, and the burden was on her to show, that she was not living separate and apart from him without her fault. This allegation is not sustained by the evidence. He was reputed to be a man of wealth and she appears to have married him for the money she expected to get from him. By her own story she did not intend to keep house with the appellant, nor to live with him where his place of business was, but to go upon the stage and spend her time traveling about the country. At the time of the trial she refused to return to live with him. She is not living separate and apart from him without her own fault, and it is her duty to return to him and take up the duties which the law imposes on a wife. Courts ought not to encourage a wife in such reckless extravagance and in constant journeys about the country against her husband’s will. For these reasons the decree cannot be sustained. It is therefore unnecessary to consider the other errors assigned.

The decree is reversed.

Reversed.


text:
    Evalyn Kingman, Appellee, v. Louis S. Kingman, Appellant.
    Gen. No. 5,190.

      Decree—how allowances of solicitor’s fees to wife must be supported.- In order that allowances for solicitor’s fees and expense money incident to an appeal may he sustained in favor of a wife, the evidence must support such allowances and such evidence must be preserved by certificate of evidence.
    Separate maintenance. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Gbeen, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed October 19, 1909.
    Winslow Evans, for appellant.
    Covey & Covey, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an appeal prosecuted from an order of the Circuit Court of Peoria county, in favor of appellee and against appellant for the payment of $35 weekly, made on the 13th day of January, 1907, ordering that on the 19th day of January, 1909, and on each Tuesday thereafter appellant pay that sum for the support of appellee during the pendency of an appeal to the Appellate Court; and that appellant also pay $75 with which to pay solicitor’s fees, and $25 to pay costs and expenses in defending against an appeal by appellant from an order and judgment of that court allowing $140 solicitor’s fees and $35 a week alimony pendente lite, made on November 16, 1908, in a suit for separate maintenance begun by appellee September 23, 1908. The appeal from the decree made November 16, 1908, was perfected November 27, 1908, and is case 5191 now before this court. Post, p. 466. On December 12, 1908, Evalyn Kingman, appellee herein, filed her verified petition setting up the proceedings in her original case for separate maintenance, and also the proceedings in 5191 in this court up to and including the appeal which was perfected on the 27th of November, 1908; also setting up the financial condition and circumstances of the parties as set forth in her original petition for alimony, etc., and that the defendant as a witness in his own behalf on the hearing of the original case before the master had testified that the salary received by him, appellant, from the Kingman corporations for the year from September 14, 1906, to September 14, 1907, amounted to $3,400 and for the year from September 14, 1907, to September 14, 1908, the salary received by him from the Kingman corporations amounted to $4,000; that on September 14, 1908, his salary had been at his own request decreased to $1,000; that she had not been able to pay her solicitors anything; that she is indebted to various parties and has no means of paying her necessary living expenses, and prays for an order on the appellant to pay such sum as may be necessary for her to defend said appeal and pay the necessary costs and expenses therein and for such other relief as may to the court seem proper. The defendant filed an answer to the petition. The court on the hearing on the petition of December 12th, made the order on January 13,1909, from which this appeal is prosecuted.

The order appealed from herein further provides that in case of affirmance of the decree of November 16th the payments made for her support under this order be allowed as a credit pro tanto on the decree made on November 16th. It is assigned for error that the court erred in rendering a decree for alimony pending the suit for separate maintenance, and that the allowance of $35 per week is excessive, and that the decree is against the weight of the evidence; also that the court erred in rendering judgment for the $75 solicitor’s fees and $25 for other expense money. The opinion in King-man v. Kingman, post, 466, disposes of the question concerning the $35 per week alimony, and it is unnecessary to say anything further concerning that subject.

Concerning the allowance of $75 solicitor’s fees and the $25 expense money, there is no proof in the record concerning the reasonable value of the solicit- or’s fees or the amount of other expense money required to defend against the appeal in 5191, and the certificate of evidence purports to contain all the evidence that was presented at the hearing. It was said in the case of Jones v. Jones, 111 Ill. App. 396, that the allowance of $25 solicitor’s fee in a divorce case was the allowance of only a nominal fee, and the decree was sustained on that ground, although there was no proof as to what would be the usual, reasonable and customary fee in such a case. In the case of Hunter v. Hunter, 121 Ill. App. 380, decided by the same court, the same justice writing the opinion that wrote the opinion in the Jones case, it was said: “No evidence is preserved in the record upon which the allowance of the sum of $100 to appellee, as her reasonable solicit- or’s fee, can be predicated, and the decree to that extent was improper.” In Metheny v. Bohn, 164 Ill. 495, in considering the propriety of a decree in a partition suit which allowed a fee to the complainant’s solicitors the court said: “The rule that the evidence to sustain an allowance of this character must be preserved in the record has been repeatedly stated by this court. It was established as a rule in Gloodwillie v. Millimann, 56 Ill. 523, where it was said (p. 527): ‘As a rule of practice, the evidence upon which such an allowance is made should be preserved in the record. Where such large sums are allowed and the rights of litigants are likely to be so materially affected they should not be deprived of having a decree reviewed in an appellate court.’ And this rule has prevailed whenever the question has arisen since that time, whether in suits for partition or on the dissolution of an injunction or otherwise. * * * ‘In fixing the amount of a reasonable fee, the examination should be directed to what is customary for such legal services where contracts have been made with persons competent to contract, and not what is reasonable, just and proper for the solicitor in that particular case. The inquiry should be, not what an attorney thinks is reasonable, but what is the usual charge.’ * * * When the question is considered in an Appellate Court, although it is one about which the court is well qualified to form an opinion and upon which it will exercise an independent judgment, the evidence is necessary to a proper review of the allowance, for the purpose of showing what the ordinary and usual charges of solicitors for like services are in the court where the allowance is made, in cases where such fees are the subject of contract betwe'en solicitor and client.”

In the case at bar the court allowed $100 for solicitor’s fees and other expenses for the purpose of defending against the appeal. If courts shall be permitted to adjudge more than nominal sums of money to be paid to parties without any proof on which to sustain their judgments, then the judges of the courts would be arrogating to themselves arbitrary powers. There would, in such event, be no rule to govern the courts, and litigants would be at the mercy of and subject to the caprice of the judges. WTiere is the dividing line as to whether a fee of $25 or $2,500 should be allowed? It is well known that the customary fees charged in the different counties by competent and able counsel in similar cases for similar services differ very much. The only safe rule for the people is to hold to the established rule. The sum of $100 allowed for the expenses of defending the appeal cannot be said to be merely a nominal sum. Because there is no evidence preserved in the record as to the value of the services of the solicitors and the necessary expense money, the order is reversed and the cause remanded.

Reversed and remanded.


text:
    Evalyn Kingman, Appellee, v. Louis S. Kingman, Appellant.
    Gen. No. 5,191.
    1. Divorce—what sufficient to sustain aTloioance of alimony pendente lite. The merits of the case should not be tried upon the hearing of the preliminary motion for temporary alimony and expense money; all that is required is that it shall appear that the wife has shown by her pleadings a meritorious cause of action and that the suit is prosecuted in good faith.
    2. Divorce—how allowance of alimony pendente lite determined. There is no fixed rule for the allowance of temporary alimony but it is a matter resting in the exercise of the sound discretion of the court on the facts as presented; it is jus^ that a wife who is prosecuting her suit in good faith should he able to live comfortably and be placed upon an equality with her husband to carry on the litigation; she should be maintained in a condition suitable to the station in life occupied by the parties.
    Separate maintenance. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Winslow Evans, for appellant.
    Covey & Covey, for appellee.
   Me. Justice Thompson

delivered the opinion of the court.

This is an appeal from an order allowing temporary alimony and suit money to appellee in a suit pending for separate maintenance by her against her husband. The original bill was filed September 23, 1908, and was verified. Since the making of the order appealed from in this case, the original suit was disposed of by a decree in favor of the appellee and was appealed from and is now in this court as case No. 5189. Ante, p. 456. The original bill, after alleging that appellee was living separate and apart from her husband without her fault because of the conduct of her husband, alleges that the appellee hás no property or income of her own, and that the appellant is possessed of real and personal estate to the amount of $400,000 and that his annual income is about $20,000. The appellant answered the bill denying all the material allegations and stated that he has property to the amount of $36,000 and receives $1,000 per annum as trustee of the Martin Kingman estate and $1,000 per year as salary from the Kingman corporations and that he is a devisee and legatee under the last will and testament of Martin Kingman, but the bulk of that estate is held subject to certain trusts and will not be received by him until the expiration of ten years from November, 1904. After the filing of the answer the appellee filed a petition asking for temporary alimony and suit money.

The petition alleged that by the adjudication of the County Court of Peoria county the part of the King-man estate held in trust for the appellant amounts to $318,759 and that the estate of appellant has been greatly increased since the death of Martin Kingman. The petition also stated that appellee is indebted in the sum of $150 and that it would be necessary to spend $300 in the purchase of clothing; that she has no home; that she is boarding at the National Hotel in Peoria and that her board and room costs $21 per week; that the case will be bitterly contested and that it will be necessary for her to bring witnesses from Boston and New York or to take their depositions, and that appellee should be allowed at least $200 to cover her reasonable expenses in the prosecution of her suit; that she has been unable to pay her solicitors anything for services rendered and to be rendered, and prays that she be allowed a reasonable sum for her support during the pendency of her suit, and that a reasonable sum be allowed her to carry on her suit and pay her solicitor’s fees, etc.

The appellant answered the petition setting forth his property substantially as is set forth in the original answer. On the hearing of the motion for temporary alimony, the will of Martin ICingman was offered in evidence and an affidavit filed showing that board and room could be obtained at about $10 per week at certain hotels in Peoria. The court, on the 16th of November, 1908, on the hearing on the petition, entered a decree allowing the appellee the sum of $35 per week alimony pendente lite from the 17th of November, 1908, until the further order of the court and $140 on account of her solicitor’s fees. From this order the defendant appeals, and assigns for error that the court erred in decreeing the $140 for her solicit- or’s fees on the ground that there is no evidence to support that part of the decree and that the allowance of $35 per week is excessive.

Since the perfecting of the appeal the appellee filed in this court a confession of the assignment of error concerning solicitor’s fees, and later on the same day appellant filed in this court a waiver of that assignment of error. Neither party has sought any action of this court upon the writing filed by the other party concerning that assignment. We conclude that appellant does not desire the case reversed on that assignment, and that appellee releases the decree as to that sum. Under the foregoing circumstances the propriety of that part of the decree is not before us for review.

It appears from an examination of the pleadings of appellee, if they be true, that she has a meritorious cause of action and that she is prosecuting her suit in good faith. The merits of the case should not, however, be tried upon the hearing of the preliminary motion for temporary alimony and expense money; all that is required is that it shall appear that the wife has shown by her pleadings a meritorious cause of action and that the suit is prosecuted in good faith. While the matters in controversy are being litigated, the wife is entitled to support until it is shown by the result of the trial that she is not. This rule arises out of the duty of the husband to support his wife. It appears from the pleadings that the appellee has neither any estate nor any income, and it also appears from the statement of appellant that he is in -receipt of salaries amounting to $2,000 per year and has real estate, loans and stocks in his own name amounting to $36,000, and that an estate of nearly $400,000 is held in trust for him, and while he is not yet receiving the income from that estate he is the owner of it. There is no fixed rule for the allowance of temporary alimony, but it is a matter resting in the exercise of the sound judicial discretion of the court on the facts as presented. The rule laid down by Bishop in his work on Marriage and Divorce is, that the wife should be allowed about one-fifth of the joint- income, and it is just that a wife who is prosecuting her suit in good faith should be able to live comfortably and be placed upon an equality with her husband to carry on the litigation. She should be maintained in a condition suitable to the station in life occupied by the parties. While $35 per week is more than one-fifth of the actual income of appellant, yet upon the showing made by appellee, it is not one-tenth of what would be the natural increase of the estate of which appellant is the owner. While the amount allowed is large, considering his actual receipts, we do not think it is so large as to require this court to interfere with the discretion of the trial court. The decree is therefore affirmed, except as to-the solicitor’s fees, which have been released.

Affirmed.


text:
    John Crotzer, Appellee, v. Freeport Railway Light & Power Company, Appellant.
    Gen. No. 5,205.
    1. Contributory negligence—what not, as a matter of law. It is not negligence per se in Illinois for a passenger to get on or off a slowly moving street car.
    2. Negligence—tohen sudden starting of car constitutes. If the employes of a traction company in charge of a car knows that a passenger is in the act of alighting or preparing to alight when the car shall reach a proper place for a passenger to alight, then it is negligence suddenly to start the car forward before the passenger has alighted.
    Action in case for personal injuries. Appeal from the Circuit Court of Stephenson county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    W. N. Cronkrite and Witte & Manus, fox appellant.
    Louis H. Burrell, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in case commenced by the appellee in the Circuit Court of Stephenson county to recover for injuries alleged to have been sustained by appellee while alighting from one of appellant’s street cars at the intersection of Chicago street and Spring street in the city of Freeport.

There are seven counts in the declaration alleging that the plaintiff was a passenger on one of the cars of the defendant; that plaintiff gave the defendant a reasonable notice of his desire to get off said car at Spring street, and that it was the duty of defendant to stop its car at said place a sufficient length of time to enable plaintiff to alight therefrom in safety, and that defendant slowed up said car and that plaintiff, while in the exercise of due care and caution, was preparing to alight from said car when it should come to a stop; that defendant negligently failed to stop said car and negligently caused the car to be violently started forward, whereby the plaintiff was thrown with great violence off the car and thereby permanently injured, etc. On a trial before a jury a verdict of $500 was returned against the defendant. A motion for a new trial was overruled and judgment was rendered on the verdict and the defendant company appeals.

The only questions presented for review are: First, that the judgment is not supported by the evidence; second, that the trial court erred in the giving of two instructions at the request of appellee.

The evidence shows that appellant’s track runs north and south on Chicago street and that half a block south of Spring street appellant’s track crosses a railroad known as the Central track, by what is known as a jump crossing—the rails on the railroad track not being cut, so that the street railway car has to jump over them, and because of that fact the car has almost to come to a stop when crossing the railway; that the car upon which appellee was riding was an open car with the seats across the car and what is known as a foot-board or running-board on each side of the car; that there were only six or seven passengers in the car. The evidence on behalf of appellee shows that appellee, after the car crossed the central track, told the conductor that he wanted to get off at Spring street; that the conductor rang the bell and the car slowed up; that when appellee told the conductor he desired to get off he took his dinner bucket and stepped out on the running board and while he was standing on the running board the car had arrived at near the north side of Spring street; that the car suddenly started forward and appellee was thrown to the ground and his ankle sprained and some of the ligaments torn. There was evidence corroborating appellee given by two other witnesses. The evidence on the part of appellant shows that the appellee got off while the car was slowing up and before the car was started forward by the motorman, and that appellee was injured in attempting to get out of the way of an approaching automobile. The evidence was conflicting as to whether appellee was thrown off the car or just jumped off. Appellant contends that appellee was negligent in preparing to alight from the car before it had come to a stop. It is not negligence per se in Illinois for a passenger to get on or off a slowly moving street car. If the employes of appellant in charge of the car knew that appellee was in the act of alighting or preparing to alight when the car should reach the proper place for a passenger to alight, then it would be negligence to suddenly start the car forward before the passenger had alighted. Peterson v. Chicago Traction Co., 231 Ill. 324; Springfield Railway Co. v. Hoeffner, 175 Ill. 634; Chicago City Ry. Co. v. Lowitz, 218 Ill. 24; N. Chicago Street Ry. Co. v. Williams, 140 Ill. 275; Cicero & Proviso St. Ry. Co. v. Meixner, 160 Ill. 320; North Chicago Street Ry. Co. v. Wiswell, 168 Ill. 613; C. & J. El. Ry. Co. v. Lloyd, 129 Ill. App. 156. It was for the jury to determine from all the evidence whether appellee’s injuries were caused by the negligence of appellant and whether or not the appellee, by his own carelessness, contributed to his injury. We would not be justified in interfering with the verdict of the jury in the conflicting state of the evidence.

The two instructions given on behalf of the appellee of which the appellant complains are substantially duplicates, though in different language, and in substance are: That if the jury believed from the evidence the plaintiff was a passenger upon a car of the company and that appellee gave the conductor reasonable notice of his desire to get off the car at Spring street, and while attempting to alight from the car in the exercise of due care for his own safety he was injured by reason of negligence of the appellant, if you believe from the evidence such negligence has been proved as set forth in the appellee’s declaration, then the appellee is entitled to recover. An instruction in the precise language of the second was approved in Springfield Ry. Co. v. Hoeffner, 175 Ill. 634. The other instruction of which complaint is made simply sets forth the same propositions of law as are contained in the second, hut not so concisely. The court might have refused the third instruction as a duplicate of the second, but there were only three instructions given for the appellee and ten were given for the appellant, some of which were duplicates. We find no reversible error in the case and the judgment is therefore affirmed.

Affirmed.


text:
    Thomas Pumphrey, Appellee, v. Carrie L. Giggey, Appellant.
    Gen. No. 5,218.
    1. Dram-shop Act—how oimership of premises established. The ownership of the premises upon which a dram-shop is conducted should be shown by the deeds, or in the absence of such deeds, by the records thereof; abstracts of title made hy an abstract company are not competent for that purpose, nor are inventories filed in connection with an estate not prepared under authority of the defendant.
    2. Evidence—when telephone conversations incompetent. In order that a telephone conversation may be competent, the party testifying thereto must be able to identify the voice of the person with whom he was speaking.
    3. Pleading—effect of averment under videlicet. If time is averred under a videlicet proof of the exact date alleged need not be made.
    Action in case. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 19, 1909.
    A. Philip Smith and Charles W. Ferguson, for appellant.
    E. D. Reynolds, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in case under section 9 of chapter 43 of the Revised Statutes, begun by Thomas Pumphrey to recover damages from Thomas Malana and Carrie L. Giggey for the loss of an eye. The jury returned a verdict in favor of plaintiff for $1,000 upon which judgment was rendered and the defendant Giggey appeals.

The declaration alleges that Thomas Malana on, to wit, December 26, 1907, occupied and used a certain building and premises in the city of Rockford for a dram-shop and that he therein sold intoxicating liquor to Albert Copeland, causing his intoxication and that Carrie L. Giggey was the owner of said building at the time, with a knowledge that intoxicating liquors were therein sold by Thomas Malana, and that in consequence of said intoxication of Copeland he threw a glass cup against Pumphrey thereby wounding him so that the sight of plaintiff’s eye was wholly destroyed.

It is assigned for error by appellant that incompetent evidence was admitted concerning the ownership of said premises and that there was no evidence upon which the judgment could be sustained against appellant. On the trial the appellee offered in evidence from the files of the Probate Court of Winnebago county an inventory signed by Louisa Wunder, administratrix, filed in the estate of George Wunder in February, 1904, which was marked exhibit “B,” describing the real estate claimed to have been owned by George Wunder at the time of his death, which included the premises aforesaid. There was also offered in evidence a petition for letters of administration in the estate of George Wunder, signed by-Louisa Wunder, filed in February, 1904, which shows that Louisa Wunder was the widow and Caroline Giggey the heir at law of George Wunder. The petition for letters of administration and the inventory were both admitted over the objection of appellant. The inventory, exhibit “B,” and the petition for letters of administration are not in the bill of exceptions, but papers purporting to be copies of those documents are attached to the bill of exceptions after the signature of the judge; hence they are no part of the record and are not before us for our consideration. If the inventory and letters of administration were in the record we fail to see how they would bind appellant. They were papers prepared by some other person in the estate of G-eorge Wunder, and to be competent against appellant, she must be shown to have knowledge of them and to have done some act or received some notice in relation thereto which would bind her. The record does not show that any judicial action had been taken upon said exhibit “B.”

W. A. McPhail was permitted to testify over the objection of appellant, that he was the abstractor of deeds connected with the Rockford Abstract Company; that he examined the title to the premises in exhibit B on December 26th, and prior thereto, and found the record of the title to be in the heirs of G-eorge Wunder, deceased. A motion was made to strike out this testimony and it was overruled. He also testified that he did not know who were the heirs of George Wunder are further than he found from the files of the estate of G-eorge Wunder, and that the saloon of Malana was situated on the premises described in exhibit “B.” The testimony of the witness McPhail was incompetent. He testified to a mere conclusion. He was connected with the Rockford Abstract Company and does not even say that he examined the public records. Abstracts of record are only admissible under the statute, and to make them competent the burden is upon the party offering them to bring them by proper proof within the terms of the statute. Chicago & Alton R. R. Co. v. Keegan, 152 Ill. 413.

The ownership could be proved either by the deeds themselves or if the deeds could not be obtained by the records thereof under certain- circumstances. If the title is not directly in issue the rule as to the best evidence does not apply; proof may be made of the declarations of the owner or by acts of ownership or control. When it appears that the knowledge of a witness as to the title is derived from some written instrument relating to the title his testimony will not be received unless such instrument is produced or its absence satisfactorily accounted for. 12 Encyc. of Ev. 544. Parol testimony is not admissible as to what records show concerning the ownership of land. Cornwell v. Cornwell, 91 Ill. 414.

The attorney for appellee became a witness on the trial and testified to a conversation over the telephone with a person who called him over the telephone and said she was Caroline Giggey, and that she said she was the owner of the property; but he does not testify that he knew her voice so that he could know that she was the party talking, except from the conversation that occurred. Unless there was some proof that he knew the voice of Caroline Giggey or that Caroline Giggey was the person talking or that the conversation came over a telephone under the control of Caroline Giggey, the evidence of Beynolds was not proper. There is nothing in the record to show that this conversation was with Caroline Giggey, except the statement of the party at the other end of the telephone, and Caroline Giggey would not be bound by the statements of a stranger. To admit statements made over the telephone without proof of some fact or circumstances which tends to show who the speaker is would be a very dangerous precedent.

The ownership of the saloon property by Caroline Giggey was a material question, and was the only fact which would make her liable for the loss of appellee’s eye. Appellee should have been prepared to prove that ownership by competent testimony. Because of this admission of incompetent testimony this case must be reversed.

Complaint is also made of the 1st, 7th and 10th instructions given on the part of the appellee. The tenth instruction has been approved in Cicero & Proviso St. Ry. Co. v. Brown, 193 Ill. 274, and is not subject to any objection. The first instruction told the jury that if they believed from the evidence that Malana on or about the 26th day of December sold intoxicating liquor to Copeland and thereby caused the intoxication of Copeland, etc. The declaration alleges that the sale was made on, to wit, December 26th. The time being averred under a videlicet, it was not necessary that the sale should be proved to have been made on the date so alleged. There was no error in the instruction.

It is also claimed that the first and seventh instructions- assume that Copeland was intoxicated. This criticism is only noticed that upon another trial the instructions may be more carefully worded.

The judgment is reversed because of the incompetent evidence admitted, and the cause is remanded.

Reversed and remanded.


author: Mr. Justice Willis

text:
    Harry Wilson, Appellant, v. Monmouth Pottery Company, Appellee.
    Gen. No. 5,034.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Master and servant—burden to show knowledge of defect. Held, that the burden of proof was not upon the master to show that the servant had knowledge of a defect in a scaffold by reason of which such servant was injured.
    3. Master and servant—what care required of latter. In the exercise of ordinary care a servant cannot close his eyes to visible or obvious defects and then be heard to say that he did not see such defects and had no knowledge of them.
    4. Master and servant—application of rules of law relative to injuries received from, defective appliances, etc. The rules of law relating to injuries received from defective appliances and ma. chinery used by the servant, apply to defects in the construction of a scaffold.
    Action in case for personal injuries. Appeal from the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed October 19, 1909.
    Carney, Carney & Frank, for appellant; C. B. Wilson, of counsel.
    L. H. Hanna and J. H. Hanley, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Appellant, Harry Wilson, was employed by appellee, the Monmouth Pottery Company, during a part of July and August, 1905, to repair its smoke stacks at its plant in Monmouth, Illinois, and during the latter part of August was engaged in rebuilding the flues in a stack about six feet square and sixty-five feet high. There were two of these flues about two and one-half feet wide east and west and five and a half feet in length. They were built of fire brick, had four inch walls, and occupied practically the entire inside of the stack. Each was independent of the stack, and of the other, with a space of about an inch between all walls for expansion and contraction. To construct these flues a scaffold was built in each by projecting a brick an inch and a half or two inches at the corners at each side of the flues nearly opposite each other, on the ends of which were placed two by four timbers. On these were laid two inch planks, about five and one-half feet long lengthwise of the flues. There was also a scaffold on the outside of the stack, from which material was passed through a hole about two feet square, through the west outside wall. This hole was filled up and another made higher up, and the scaffolds were raised as the work progressed. On Friday, August 25, appellant was absent, and John Strand, who was head kiln burner for appellee, conducted the work in place of appellant for that day. On Saturday morning, August 26, appellant resumed the work and after he had worked for a time on the scaffold in the west flue, it gave way, and he fell to the bottom of the stack, cutting his head and mangling his foot. He brought this suit in the Circuit Court of Warren county to recover damages for the injuries so sustained. His amended declaration contained two counts, and averred in substance that appellee constructed, or caused to be constructed, an unsafe scaffolding or platform in a certain stack, and permitted the same to be and remain in an unsafe condition, of which appellant had no knowledge, and that while appellant was working on said scaffold, in the exercise of due care for his own safety, said scaffold gave way and appellant fell to the bottom of the shaft and was permanently injured. There was a plea of not guilty, a trial and a verdict of not guilty. A motion for a new trial was denied, judgment was entered on the-verdict, and against appellant for costs, and Wilson appeals.

Appellee testified that when he asked leave of absence for the day the superintendent asked him if Strand could not work in his stead; that appellee replied that he did not care; that the superintendent asked if it were against the rules of the union, and he answered that the union would not find it out as it was inside work, and that Strand was satisfactory to him. The superintendent testified that he opposed appellant’s leaving for that day because they were anxious to have the stack completed as soon as possible and did not wish to be delayed on account of the heavy business they were doing; and that appellant suggested and requested that Strand do the work during his absence, and that after asking the question about the union Strand was placed at the work at appellant’s suggestion. It was therefore a disputed question of fact whether appellee placed Strand at this work, or whether Strand was put at the work because appellant requested it in order that he might get a day off without stopping the work. The jury therefore were warranted in believing that appellant selected Strand to take his place for that day.

Appellant was a mason of sixteen years’ experience and more than ordinary intelligence. He was injured August 26, 1905, and had worked repairing appellee’s smoke stacks since the preceding 21st of July. He testified that nothing was said when he commenced about how the work should be done; he had done considerable work there and knew what was wanted and had done this kind of work a good many times. He admitted suggesting the method of constructing the necessary scaffolding. Appellee furnished the material and a carpenter to saw the lumber and appellant built the scaffolds, except the one that fell and that was the same scaffold which appellant had built the second below, but which Strand moved up to the position from which it afterwards fell. The proof showed that the inside measurements of the core where it was placed by appellant below were 31% inches at the south end and 31% inches at the north end, while the same measurements at the place to which Strand removed said scaffold were 31 inches and 31% inches scant, and each were five feet and six inches long the other way; so that the timbers were a closer fit where the scaffold fell than where appellant had put them. Appellant testified that he had worked upon this scaffold half an hour, and appellee contends for a longer time, when it fell, and the proof shows that the light in the stack was sufficient to afford a clear view of the scaffold and its construction. The only particular in which it is claimed this differed from those built by appellant, was in the use of wedges at the ends of the two by fours. Appellant testified that he used them in the scaffolds he built, and the carpenter testified that he did not make any wedges, and did not remember any. Holly, appellant’s assistant, testified that he did not find any when he knocked down the scaffolding, and that he never saw appellant make any wedges. Appellant’s helper testified that he did not remember taking up any scaffolding that was wedged. Strand testified that he did not see appellant use wedges.

Appellant argues that his positive testimony, although uncorroborated, is entitled to more weight than the negative testimony of four witnesses, tending to show that no wedges were used in the scaffolds built by appellant. Whether appellant used wedges, whether they were necessary for the construction of a reasonably safe scaffold, and whether appellant’s positive evidence was overcome or outweighed by appellee’s negative evidence, were questions of fact for the jury.

The evidence strongly tends to show that appellant’s attention was repeatedly1 called to the dangerous condition of the scaffolds built and used by him, and that it was suggested that they be made more secure, and that he replied if they suited him he did not know that it ought to bother others. To a suggestion from his helper that the scaffold was dangerous, he replied that he supposed the helper was insured. Two witnesses testified that appellant said, after the accident, it was his own fault; a third, that appellant remarked it was his annual fall. Another testified that, when told they were going on with the work, appellant said, “For God’s sake, don’t build that same kind of a scaffold.” One witness testified that after returning to appellee’s employ, appellant said it was a wonder he had not been killed long ago. Most of these statements appellant denied.

It was for the jury to say whether the evidence sustained appellant’s averment that he was in the exercise of due care when injured, or whether his negligence contributed to the injury. If they believed the testimony for appellant they were not justified in finding appellee not guilty. If they believed the evidence for appellee they were justified in so finding. The fact that they found appellee not guilty is conclusive that they believed the testimony introduced by appellee. They were the judges of the facts and of the credibility of the witnesses. In Steffy v. People, 130 111. 98, the court said: “Whether the evidence warranted the verdict was a question of fact peculiarly within the province of the jury to determine, and great weight is to be given to their finding. Courts are reluctant to substitute their opinion for that of a jury upon controverted questions of fact. To justify this court in reversing on the ground that the evidence was insufficient, it must appear that the finding of the jury is not sustained by the evidence, or that it is palpably contrary to the decided weight of the evidence.” Many authorities will be found in the Supreme and Appellate Beports to the same effect, the latest to which our attention is called being People v. Horchler, 231 111. 566. We conclude from an examination of all the testimony that we would not be justified in disturbing the verdict on the ground that it was contrary to the evidence.

Counsel for appellant urge that it was improper to permit Anderson, the carpenter, to testify for appellee relative to the construction of the scaffolds built by appellant, and that they were dangerous to work upon.

The record discloses that Anderson was called by appellant and testified concerning the same subject-matter in much the same language. His testimony for appellee was competent, first because the subject was introduced by appellant, and it was proper to permit appellee to meet it as a matter of defense, and second, for the purpose of showing that appellant might have had notice of the method of the construction of the scaffold, and might have known of any defect in the same. The extent of appellant’s knowledge of the scaffold that fell and its construction, and whether his means of knowledge were equal to appellee’s, were questions of fact for the jury.

Counsel for appellant contend that the burden of proof was upon appellee to show that appellant had knowledge of the defect in the scaffold, and cite Swift v. Gaylord, 126 Ill. App. 281; Pressed Steel Car Co. v. Herath, 110 Ill. App. 596; C. & E. I. R. R. Co. v. Hines, 132 Ill. 161; City of La Salle v. Kostka, 190 Ill. 130. We have carefully examined these cases, and are of the opinion that they do not support appellant’s contention. It is held in some of them that the employe is not bound to make what is termed therein an inspection, but by that it is not meant that the employe is not required to exercise ordinary care for his own safety, or that he can close his eyes to visible or obvious defects. On an appeal, the court said in the Swift case, 229 Ill. 330: “In actions for personal injuries it has always been held in this state that the plaintiff must allege and prove that he was free from negligence contributing to the injury * * *. Knowledge or want of knowledge of a defect may be inferred from the circumstances, but by whatever evidence the fact must be shown, the burden of proof in that regard rests upon the plaintiff.”

It is urged that appellant had a right to presume, in the absence of actual knowledge to the contrary, that appellee had discharged its duty. Appellant was required to exercise ordinary care for his own safety, and the law charges him with notice of any visible or obvious defects in the scaffold, which in the exercise of ordinary care he might have discovered, although he had no actual knowledge of them. In the exercise of ordinary care he could not close his eyes to visible or obvious defects, and then be heard to say that he did not see such defects and had no knowledge of them.

It is also contended by counsel that the rules of law relative to injuries received from defective appliances or machinery used by the servant do not apply to a defect in the construction of a scaffold. We are of the opinion that there is no merit in this contention. In Armour v. Brazeau, 191 Ill. 127, a case where a servant was injured by the breaking of a defective plank in a scaffold, the court said: “If a defect in an appliance is open and obvious, so that by the exercise of ordinary care in the use of the appliance, the employe will have knowledge of the defect, he is bound to take notice of the defect. He cannot assume a fact against his own knowledge, and assume that a defect open to his observation does not exist.”

There being no harmful error in the exclusion or admission of evidence, or in the ruling of the court upon the instructions, the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Kate A. Moore, Appellee, v. The Aurora, Elgin & Chicago Railroad Company, Appellant.
    Gen. No. 5,069.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Evidence—competency of contradictory statements. A statement of a witness made out of court, orally or in writing, if contradictory on a material point to his sworn statement as a witness, may be introduced in evidence not as substantive proof of the truth of such statement, but as tending to discredit the witness.
    3. Evidence—tohen exclusion of contradictory written statement not ground for reversal. The exclusion of a written statement made by a witness out of court though contradictory to his sworn testimony, will not reverse if the witness upon the stand has admitted the making of such statement and the contents of the-same were read to him in the hearing of the jury.
    4. Damages—when expenditures in endeavoring to effect a cure should not be allowed. In the absence of proof that the expenditures claimed to have been made in seeking to effect a cure were the usual customary and reasonable charges for the services rendered, no allowance will be permitted.
    5. Instructions—considered as a series. Instructions should be regarded as a series, should be read together and the omissions of one may be supplied by the contents of another.
    Action in case for personal injuries. Appeal from the Circuit Court of Kane county; the Hon. Linus C. Ruth, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed upon remittitur.
    Opinion filed October 19, 1909.
    Hopkins, Peffers & Hopkins, for appellant.
    T. E. Ryan and Botsford, Wayne & Botsford, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This was an action on the case brought by appellee against appellant to recover damages for injuries claimed to have been sustained by appellee while alighting from one of appellant’s cars. The original declaration consisted of two counts. Subsequently, an amended second count was filed, and later, a third count was added. The third count was amended, the first original count was dismissed by appellee, the second by the court, and a trial was had on the third count as amended. This count alleged that appellee became a passenger upon a car of appellant to be carried to a certain point in the city of St. Charles; the duty of appellant to carry safely and deliver appellee at her destination; that appellant negligently permitted said car and its rear platform to be overcrowded with passengers; that when the car reached appellee’s destination, it was stopped; that appellee proceeded with all due diligence to press her way through the crowd and while she was pressing her way through the crowd on the platform, the servants of appellant negligently caused the car to be started; that appellee did not observe that it was in motion, and, in the exercise of due care for her own safety, stepped from said car while in motion, and was thrown violently to the ground and permanently injured, and has been compelled to expend large sums of money in endeavoring to be cured. The plea of not guilty was filed, and on a trial appellee obtained a verdict of $6,125. A motion for a new trial was denied, judgment was entered on the verdict, and the company prosecutes this appeal.

Appellee testified that she notified the conductor when she paid her fare, that she wished to get off at Prairie street; that the conductor made a reply showing that he understood her direction; that when they reached that street, he rang the bell, stopped the car and called out the name of the street; that she arose and passed by the conductor in the crowded aisle, and to the rear platform which was also crowded; that the conductor then started the car but she did not know it; that it was six o’clock at night in December, and dark, and she did not see that the car was moving; that she stepped down, and that was all she remembered.

One Wagner testified for appellant that he was on the rear platform of the car when appellee started to alight; that he said to her, “Aunty, don’t you do it. The car is moving;” that she said, “I have to get off;” that he said, “Ton stay right where you are and we will stop the car. We will get it stopped and have them fetch you back,” that she said, “No, I have to get off, and I can get off,” that she jumped and fell; that by that time the car had moved from thirty-five to fifty feet. Appellee, in rebuttal, testified that she never saw the witness Wagner before the trial, and denied that such a conversation took place. There was therefore a direct conflict in the evidence as to whether or not appellee was warned and knew that the car was moving when she alighted. The jury and the court had the opportunity of seeing these witnesses who testified, one against the other, and to note their demeanor while on the stand. They had better means than we have to compare and properly estimate the credibility and value of their evidence. It was within the province of the jury to fully consider, weigh and reconcile the conflict in their testimony, so far as that could be done, and when they were unable so to do, then to reject such portions as they believed were not entitled to credence. The evidence seems to be equally balanced, but for aught we know, the decided weight may have appeared to the jury and the court to have been with appellee. The presumption is that the jury have done their duty and found correctly; that the trial judge, being in a position to determine accurately whether the finding is right, has determined correctly in overruling the motion for a new trial. We must, therefore, leave the question of the credibility of the witnesses and the worth of their evidence, where the law placed it, with the jury, and decline to disturb their finding, since the verdict does not appear to be clearly and palpably against the evidence.

One Millen, a passenger on the car at the time appellee was injured, called as a witness by appellee, stated in his direct examination that he was unable to say whether the car stopped a long or short time; that he had time to raise up on his feet; that he neither heard the signal to stop or to go forward; that he did not remember the starting of the car or exactly how it started. On cross-examination he stated that he did not remember making any statement other than the one he made on the trial. He was then shown a paper and asked if the signature thereto were his, and he replied that it was. Upon being asked, if, at the time he made the statement contained therein, he believed it to be true, or a substantial statement of the transaction, he answered, “Yes.” He was then asked if the statement, that “The car stopped an unusually long stop, so long that I looked to see why they stopped so long,” were true when he made and signed it, and he replied that it was. He was also asked if the statement, “As the car started I saw Mrs. Moore just coming out of the door onto the platform,” were true, and he said, “It must have been.” Upon being asked if it were true that ‘ ‘ She made her way from there to the step after the car was in motion,” he replied, “Yes, sir.” In short, he admitted that the statements about which he was interrogated were true when made. Appellant then offered the written statement in evidence, and an objection was sustained to its admission. It is now argued that Millen’s testimony contradicts his statement in several important particulars, and that the written statement should have been admitted for the purpose of impeachment. The statement of a witness made out of court, orally or in writing, if contradictory on a material point to his sworn statement as a witness, may be introduced in evidence, not as substantive proof of the truth of such statement, but as tending to discredit the witness. However, the violation of this rule does not always amount to reversible error. The witness Millen, in the presence of the jury, admitted that he made the statements contained in the paper, which statements were read to him in the hearing of the jury, and that the same were true when made. His cross-examination was not restricted or limited, and the jury had as good an opportunity to judge of his credibility when questioned as fully as he was as to its contents, as they would had the written statement been admitted in evidence. Its exclusion was not harmful error.

It is contended that the court erred in giving appellee’s first, second, fifth, ninth and twelfth instructions. The first was on the measure of damages and enumerated the elements for which appellee might recover if the jury believed that she had made a case, concluding with ‘ ‘ as well as moneys expended in endeavoring to be cured of her injuries, if any the evidence shows. ’ ’ The second advised the jury that it was not necessary that any witness should have expressed an opinion as to the amount of damages, but that the jury might make the estimate from the facts and circumstances in proof, and by considering them in connection with their knowledge, observation and experience in business and ordinary affairs of life. This was true as to certain elements of damage for which she was entitled to recover if she proved her case, but it was not true as to money expended in endeavoring to be cured of her injuries.

These instructions would have been free from error had there been no proof of any damages except those arising from physical injuries. Suffering in mind and body, future suffering, loss of health or permanent injury are not capable of pecuniary measurement. Physicians ’ and nurses ’ services and the value of medicines and all necessary expenditures made in endeavoring to be cured are elements of damage capable of pecuniary measurement and the law requires that the amounts of such expenditure shall be proved if they are to be recovered. North Chicago Street Railroad Company v. Fitzgibbons, 180 Ill. 466; Keokuk Bridge Co. v. Wetzel, 228 Ill. 253; Village of Chatsworth v. Rowe, 53 Ill. App. 387. The proof showed that Dr. Bishop’s bill was $111, Dr. McMaster’s $300, Mrs. Poulter’s $150, Miss Daily’s $25, Miss Davis’s $270, Mrs. Merrill’s $120, and Dr. Pelton’s $15, aggregating $991. Some of the parties named testified to these amounts, and others were not called. There was no proof that these amounts were the usual, customary and reasonable charges for such services, nor was there any proof that appellee had bound herself to pay them, or was liable to pay such amounts, nor was there any proof that the contracting of these bills by appellee was necessary or reasonable, in endeavoring to be cured of her injuries. In the absence of such proof these items were allowed to go to the jury, under these instructions, and we must assume that the jury added them to the amount of the judgment. This error can be cured by a remittitur.

The fifth instruction said to the jury that if appellee directed the conductor to stop the car, and if it were stopped, appellee had the right to assume that the conductor would not cause it to be started until she had a reasonable time to safely alight. The court instructed the jury at the instance of appellant that if appellee was warned not to attempt to alight, and thereafter did alight, and received the injuries, then she could not recover. The rule is “that instructions given for plaintiff and defendant must be construed together, and when so considered if they state the law correctly as a whole, the error that may appear in one series will be deemed cured by the other.” Lawrence v. Hagerman, 56 Ill. 68; Lourance v. Goodwin, 170 id. 390. These two instructions read together correctly stated the law, and the jury could not have been misled.

The ninth instruction stated that if the jury believed that appellee had proven her case as laid in the declaration, they should find the issues for appellee. Appellant contends that the averment in the declaration that appellee did not observe that the car was in motion, but continued through the crowd on the platform, and, in the exercise of due care for her own safety, stepped from said ear while in motion, was not equivalent to a charge that she was in the exercise of ordinary care, and that its incorporation into the instruction was erroneous. If this criticism upon the declaration were sustained, still appellee’s thirteenth instruction told the jury that if they believed, from the evidence, that appellant was guilty of the negligence as charged in the declaration, and that such negligence was the proximate cause of appellee’s injuries, they should find appellant guilty provided they further believed from the evidence that appellee, at and before the time of the injury, was in the exercise of reasonable care for her own safety. The words ‘at and before the time” as used in the instruction, refer to the period from the time appellee started to leave the car until she fell, leaving it for the jury to determine whether she used due care when she stepped from the car. Peterson v. Chicago Traction Company, 231 Ill. 324; Knox v. American Rolling Mill, 236 Ill. 437. ‘ ‘ The instructions must be taken as a series, and where this is done, and there are other instructions in the series that fully cover the error complained of, it is cured.” City of Springfield v. Williams, 72 Ill. App. 439.

While appellee’s twelfth instruction may be subject to some of the criticisms urged, we do not deem the. error harmful.

This opinion will be lodged with the clerk of this court and if, within seven days, appellee will remit $991 from the judgment, it will be affirmed for $5,134, at appellee’s costs. Otherwise, the judgment will be reversed and the cause remanded.

Afterwards appellee remitted $991 of the judgment. The judgment is therefore affirmed in the sum of $5,134 at appellee’s costs.

Affirmed upon remittitur.


text:
    Peter Fox, Appellee, v. City of Joliet, Appellant.
    Gen. No. 5,081.
    1. Evidence—when expert testimony competent. Held, that expert testimony -is competent upon the question as to the possible effects upon the health of the plaintiff and his family resulting from the breathing of noxious odors proceeding from a drain.
    2. Torts—when municipality liable for converting running stream into public sewer. If a running stream is converted by a city into a public sewer by enclosing it and assuming control of it and by appointing officers to keep it in repair, the city will he liable for damages the same as if the sewer were originally an artificial one.
    3. Torts—extent of liability of joint tort-feasor. A tort-feasor who contributes to an injury is liable for the entire damage resulting from the joint act of all tort-feasors.
    4. Damages—when instructions limit recovery to evidence. Held, that the instructions complained of in this case properly limited the recovery of the plaintiff to such damages as were shown by the evidence.
    Action in case. Appeal from the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Robert W. Martin, for appellant.
    Donahoe, McNaughton & McKeown, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This is an action on the case, brought in the Circuit Court of Will county, by Peter Fox against the City of Joliet, to recover damages for the deprivation of the use, occupation and enjoyment of his home, for sickness of members of his family, and for expenses incurred in their treatment, caused by appellant turning sewage into a natural watercourse running, across appellee’s premises. The suit was begun August 7, 1906, and a trial resulted in a judgment for $1,200 for appellee, which, on appeal, was reversed. City of Joliet v. Fox, 135 Ill. App. 444. There, a full statement of the averments of the declaration may be found. On the reinstatement of the cause, the five years’ Statute of Limitations was interposed. The second trial resulted in a verdict for appellee for $1,000. A remittitur for $200 was filed, a motion for a new trial was denied, judgment was entered for $800 and the city prosecuted this appeal.

The watercourse rises near the northern limits of the city, flows south about a mile, then southwesterly about a mile and empties into the Desplaines River. In 1873, appellant deepened the lower portion below the point where appellee afterwards lived, to permit the flow of surface waters. In 1890, appellant deepened and widened the stream, built stone walls on either side, and covered it with planks along its entire length. After that it was called the slough drain. Later, the covering of the drain on appellee’s premises rotted and was replaced by stones cemented together. In 1892, appellant built, in Cass street, a fifteen inch sewer about three quarters of a mile long and connected it with the slough drain, and afterwards built sewers in eight other streets and connected them with the Cass street sewer or directly with the slough drain. The territory thus drained was thickly populated, most of the buildings having sewer connection, so that much vile smelling matter passed into the drain at a point about two blocks above appellee’s house.

The evidence shows conclusively that for a number of years prior to the trial, the condition of the drain was such that nauseous odors, steam and foul gases escaped through the crevices in the sides and cracks in the covering into appellee’s house; that the cellar filled with steam when the doors were shut; that the wall paper and carpets in the house got mouldy, as also did fruit and clothes left in the cellar; that before the sewers were connected with the slough drain, appellee and his family enjoyed good health, and that thereafter, during the five years prior to the bringing of the suit, members of his family were sick, and three daughters contracted tuberculosis and died; and that after leaving the premises the other members of appellee’s family improved in health. Two physicians who had attended members of appellee’s family during their sickness, testified as to the possible effects of the drain upon their health.

It is urged that expert testimony was not admissible unless sufficient to show that no other cause than the slough drain could have produced the sickness of the members of appellee’s family. In Illinois Central Railroad Company v. Latimer, 128 Ill. 163, physicians who were examined on the - trial below were asked whether fright would produce the heart trouble with which appellee was afflicted, and the court held that it was proper for them to give their professional opinion. In Supreme Tent Knights of Maccabees of the World v. Stensland, 206 Ill. 124, a physician was asked if, in his opinion, the death of the party could have been caused by strangulation, and the court held the question proper. In the case at bar, the physician did not testify that the odors arising from the slough drain caused the sickness. One testified that the constant breathing of the sewer gas of which the water in the slough drain was full would lessen a person’s resistance to disease, and that such a person would succumb to tuberculosis much easier than a person with a strong resistance; and the other, that, in her opinion, the condition of the drain would, in time, cause a person residing over it to have tuberculosis. We think there was no error in the admission of this testimony.

For appellee, one Robeson testified that his place of business was over the slough drain and within one hundred and fifty feet of appellee’s house; that the water smelled very offensive, and that he had headaches and no appetite, was weak and dizzy; that it undermined his system and poisoned him; that there was steam in his shop in the morning; that the joists in the floor over the drain rotted, and that the fumes or smells of the slough drain disabled him. Appellant contends that his testimony was incompetent because it did not tend to prove that appellee’s home was rendered physically uncomfortable, and that there was. no proof offered as to what Eobeson’s sickness was, nor that it was the result of sewage turned into the slough drain by the city. With the exception of the statement as to the effect of the drain upon, his health, this evidence was competent. There was no objection to his testimony that the smell from the drain affected his health until he stated that “it disabled” bim, when an objection was made to the question that elicited this answer; nor was there a motion to strike any of his testimony on this subject from the record. Thus there is nothing on this question preserved for our consideration. Eobeson’s wife testified that the gases from the drain weakened her husband and affected his stomach. There was no objection to the question to which this answer was given, but a motion to strike out the answer was made and denied. Later, all her testimony as to the effect of the slough drain upon her husband’s health was excluded. Appellant thereby obtained what it sought under its motion to strike the answer from the record.

Appellant complains that a number of appellee’s instructions were erroneous, on the ground that they told the jury that if they believed, from the evidence, that appellant had assumed control of the stream in question and converted it into a sewer for public use, it would be obliged to maintain the same in such condition as not to injure those through whose property the stream passed, because the declaration did not charge that appellant had assumed control over the slough drain and converted the same into a sewer. It is true that the word “convert” is not used in the declaration, but it is there charged that appellant “caused great quantities of dirt, offal, sewerage, night soil and filthy, unsanitary and decaying matter and substances,” to be emptied into the stream above appellee’s house, which were carried through his premises. We think this averment is equivalent in law to an allegation that the city converted the natural watercourse into a sewer. If a running stream is converted by a city into a public sewer by enclosing it and assuming control of it, and by appointing officers to keep it in repair, the city will be liable for damages the same as if the sewer were originally an artificial one. Am. & Eng. Enc. of Law, 2nd Ed., Vol. X, 245. Village of Kewanee v. Ladd, 68 Ill. App. 154.

Appellant also complains that appellee’s instructions do not limit the recovery of appellee’s damages to such an amount as was shown by the evidence, but left it to the fancy of the jury to fix the amount of damages as they saw fit.

The fifth and seventh instructions told the jury that if they believed, from all the evidence in the case, that the city did certain things and that certain things were true, then the depreciation in rental value was not the true measure of damages, but the true measure of damages was compensation for physical discomfort, for being deprived of the use and comfort of his home, and in regard to such damage the amount in dollars .necessary to compensate the plaintiff need not be stated by any witness, but should be left to the judgment and discretion of the jury. These instructions did not expressly say that this judgment and discretion and such compensation must be based upon the facts in evidence; but when all the given instructions are considered as a series, we are of opinion that the jury could not have failed to so understand its duty. “Where the injury is to the physical comfort and results in the deprivation of the comfortable enjoyment of a home * * * the amount in dollars necessary to compensate the plaintiff in such cases is not to be estimated by a witness or the actual amount thereof established by testimony or calculated by any arithmetical rule. It must be left to the sound judgment, experience, and discretion of the jury to fix the amount in view of the facts in each particular case.” Gempp v. Bassham, 60 Ill. App. 84, and authorities there cited. Appellee’s instructions on the measure of damages were in harmony with the foregoing authority and were therefore proper.

We have examined carefully the modified and re-' fused instructions, and while there may be some merit in appellant’s criticism of the ruling of the court in regard to them, yet had they been given as asked, we are of opinion that the verdict of the jury could not reasonably have been otherwise than for appellee.

There was proof that a large portion of the offensive matter that fouled the water of the slough drain came from the closets on the sewers and from the steel works, but this did not lessen appellant’s liability, for the reason that appellant, by connecting its sewers with the drain and draining the sewage into it, became responsible for the flowage of the polluted water through it, the same as if it were originally an artificial drain, and at least contributed to produce the injury sustained by appellee. It thus became a joint tort feasor and as such, was liable for the whole damage. Village of Kewanee v. Ladd, 68 Ill. App. 154; Bloomington v. Costello, 65 Ill. App. 407; 10 Am. & Eng. Enc. of Law, 245. There is evidence that during the five years prior to the commencement of the suit, members of appellee’s family were sick much of the time; that he became liable for doctor’s bills incurred by reason of such sickness which, it was shown, might have resulted from the condition of the drain; that he vacated his house because of such condition. Two juries upon substantially the same evidence have found that appellee sustained damages arising from appellant’s conversion of the watercourse through his premises into a sewer. The first gave him a verdict of $1,200 which the trial court approved. The second, $1,000 which, after a remittitur of $200, was approved by the court. We do not think that $800 will more than fairly compensate appellee for the damage caused him by appellant during the five years next prior to the bringing of the suit.

We are satisfied, from an inspection of the entire record, that substantial justice has been done, and that there is no error in the record warranting a reversal. Therefore the judgment is affirmed.

Affirmed.

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