text:
    Fred Petton by Edward Petton, Appellee, v. Consolidated Coal Company of St. Louis, Appellant.
    1. Mines and minerals, § 91

      —when side of hauling road must be kept clear. Three years before the time of injury to a mule driver a fall of rock and coal occurred in a mine and a temporary track deviating from its former course was built around the pull, so close that there was barely room for a person to pass between a car and the side of an entry, and the defective condition was known to the mine manager. By reason of a deaf mule, the deafness of which was unknown to plaintiff, failing to obey an order at a point of depression, plaintiff was thrown from a car and was injured because of insufficient space on the side of the track. Held, a wilful violation of the Mining Act of 1911, § 15, par. E, J. & A. If 7489, requiring one side of hauling roads to be kept clear, was established.
    2. Mines and minerals, § 153

      —when evidence as to fall of rock is admissible. Where a mule driver is thrown from a car by a deaf mule not obeying an order on passing a depression in a track detouring around a fall and there is evidence that there was a pile of rock and dirt at the place in question, a question “where was the place you fell with reference to that pile of rock and dirt that had fallen there?” is not objectionable, since it is immaterial whether it had fallen there or been deposited by other means.
    3. Mines and minerals, § 194*-when instruction ignoring statutory count may be refused. Where an action by a mule driver is based upon counts setting up a violation of common law duties and of the Mining Act of 1911, § 15, par. E, J. & A. If 7489, defendant’s instructions directory in form, purporting to cover the entire case but ignoring the statutory count, are properly refused.
    Appeal from the Circuit Court of St. Clair county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Wise, Keefe & Wheeler, for appellant; Mastín & Sherlock, of counsel.
    W. S. Louden and Barthel, Farmer & Klingel, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

Fred Petton, a minor, twenty years of age, by Edward Petton, Ms father and next friend, brought this suit against the Consolidated Coal Company of St. LoMs, appellant here, to recover damages for injuries received by him while worMng in the latter’s mine at Breese, Illinois.

The first three of the four counts of the declaration contained substantially the same charges of negligence against appellant. They allege that on December 19, 1911, appellee was employed as a mule driver in appellant’s mine; that there was a certain entry in said mine known as the fifth west and that in the course of said entry there was a sharp decline or grade which had the effect of causing loaded cars of coal, being hauled over the same, to run faster than when on the level; that there had been a fall of coal and other debris in said entry around which a track had been built, making a sharp curve at such point, and where such curve existed there was a depression, all of which made it dangerous for loaded cars of coal to pass over the same and caused cars being hauled over said point to jerk and knock; that at the time above named, appellee was directed by the assistant mine manager, who had charge of the working men in said mine, to take a mule called “Dummy” and go in said fifth west entry and collect loaded ears of coal from the various rooms and haul them to a parting located therein; that appellee was not acquainted with the conditions in said entry and had never worked in the same prior thereto, which appellant well knew; that the mule furnished him was deaf, which fact was known to appellant but unknown to appellee; that while hauling two loaded cars, the mule stopped suddenly at the depression in said track in said curve; that appellee was riding on the tail chain, as he was reqmred to do; that appellee called to the mule to go on but that the mule by reason of Ms deafness did not hear and stood still permitting said cars, wMch were moving forward by force of gravity with accelerated speed and with irregular movements and with jerking of the cars, to run upon it, throwing appellee in front of the car and against the mule, thereby causing the mule to start when appellee was on the ground in front of the car, pulling said car over upon appellee, crushing and injuring bim.

The fourth count was based upon the statute (J. & A. 7475 et seq.) and in addition to setting up the facts leading to the injury alleged that said entry and track was one of the hauling roads in ¡Said mine; that one side of said hauling road at a point about the middle of said curve at the time in question and for twelve hours preceding the morning of said day, “was not kept clear of refuse or material for a space of two and a half feet from either side of the rail on said hauling road;” that appellee when thrown from the tail chain in front of the car was unable to escape because there was no space of two and a half feet on one side of the rail of said hauling road at said point clear of refuse and materials and was therefore caught and crushed by the car; that the injury to him was the direct result of the wilful failure of appellant “to have one side of said hauling road at said point of injury kept clear of refuse and materials for the space of two and a half feet outside the rails of said road.”

The trial resulted in a verdict and judgment in favor of appellee for three thousand dollars, and the Coal Company brings the record here for review, complaining that the evidence failed to support the verdict ; that the court ruled improperly upon the evidence and'erred in refusing to give two of its instructions.

It appeared from the proofs that about three years before appellee was injured there was a fall of rock and coal from the roof of the entry where the injury occurred and a temporary track was built around it. This track deviated some seven or eight feet from its former course and ran along close to the side of the entry. On one side the rock and debris from the fall came up close to the track and on the other side there was barely room for an ordinary person to squeeze through between a car and the side of the entry, the clear space being not more than a foot and a half as shown by appellee’s proof. The track around the fall was about thirty feet long and in the middle of this detour there was a depression in the track' so that loaded cars would of their own weight run down to the end of the depression. Appellee was set at work hauling coal in this entry on the morning of the injury. He had never" hauled in this entry before and was given a mule called “Dummy” that he had never used before and did not know of. After he had hauled two trips with the mule he started with the third, hauling two loaded cars. He was riding in the usual manner with one foot on the tail chain, the other near the spreader, with one hand on the car and the other on the mule. Just as the mule reached the low place in the track around the fall he stopped. Appellee called to him to “get up” but the mule did not move. Appellee was unable to hold the loaded cars back as they were coming down the incline, bumping and jerking and as they came nearer the tail chain slackened, the car ran up to the mule, which started suddenly, jerking the chain up and throwing appellee down on the track with his back towards the car, which ran upon him and severely injured him. There was evidence to show that the mule was deaf and paid no attention when spoken to. Appellee testified that he was unable to get from between the mule and the car, because there was not sufficient space on either side of the track. It was also shown by the proofs that on account of the defective condition of the track at the point in question, cars were frequently thrown from the track and complaint had been made to the mine manager of this condition of affairs.

We are inclined to the opinion that the proofs in the case were sufficient to entitle appellee to recover under the first three or common law counts of the declaration, but even if such were not the case we are satisfied that appellee established his right to recover under the fourth or statutory count of the declaration. That count was based on paragraph E, section 15 of the Act of 1911 in relation to Mines and Mining (J. & A. If 7489), which provides that “one side of all haulage roads shall be kept clear of refuse or materials, except timbering, unless the rib or timbering on such side shall be-2y2 feet or more from the rail, but in such case materials or refuse shall not be permitted within 21/2 feet of the rail.” The evidence showed a violation of this law under such conditions and for such length of time as to render the violation wilful under the statute. According to appellee’s testimony, which is the only direct testimony upon the subject, the failure of appellant to comply with this statute prevented his escape from his dangerous position and was therefore the proximate cause of his injury.

Appellant complains because counsel for appellee, over his objection, was permitted to ask “where was the place you fell with reference to that pile of rock and dirt that had fallen there?” The objection made by appellant to this question was that there was no evidence that any rock, particularly dirt, had fallen there. There was evidence that there was a pile of rock or rock and dirt at the place in question and it was immaterial whether it had fallen there or been so deposited by other means. The object of the question was to determine the location of the place where appellee fell with reference to the pile of debris, and we do not think the question, as asked, subject to serious criticism. Other objections made to the admission of evidence for appellee appear to us to be even less tenable than the one above referred to. The only question raised by appellant in regard to the instructions is the refusal of the court to give its first and third instructions. Both of these instructions purported to cover the entire case and stated conditions under which it would be the duty of the jury to find appellant not guilty, but the vice of the instructions was that they wholly ignored the fourth count of the* declaration, under which we have held appellee was entitled to recover, and were therefore properly refused.

The judgment of the court below will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    Edward J. Smith, Appellee, v. Consolidated Coal Company, Appellant.
    1. Mines and minerals, § 78

      —when electricity is of excess voltage. A mine employe came into contact with electric current generated for a motor. The motorman testified that in his opinion five hundred and fifty volts were carried, that the motor was so marked and that each of the lamps in the circuit was marked one hundred and ten volts. An electrical engineer testified that such lamps would require five hundred and fifty volts and that a person taking hold of an article charged with two hundred and seventy-five volts could let go, but not if it was charged with five hundred and fifty volts, and plaintiff testified he could not let go of the article he had. Held, the voltage was in excess of two hundred and seventy-five permitted by the Mining Act of 1911, § 17, J. & A. f 7491.
    2. Mines and minerals, § 103

      —when negligent to fail to repair. A machine repairer in a mine carried a metal file when riding on an electric motor car in the mine. The motorman found the file and placed it in the motor tool box. The fuse block above the tool box was out of order, two loose clamps therein letting the fuse come against the side of the box and the proper employe had been notified of the defective condition. The repairer in removing his file received an electric shock. Held, plaintiff was entitled to recover.
    3. Mines and minerals, § 82

      —when machinist is within protection of statute. A machine repairer in a mine having duties requiring him to go anywhere in the mine where a machine needed repairs and to carry tools with him, on riding on an electric motor car in performance of such duties is entitled to the protection of the Mining Act of 1911, J. & A. Iff 7475 et seq.

    4. Mines and minerals, § 194

      —when instructions must not ignore counts. When a mine employe charges in a count a breach of common law duties in failure to keep appliances on an electric motor car in proper repair and in other counts a violation of the Mining Act of 1911, § 17, J. & A. If 7491, prohibiting the carrying in wires of voltage above a certain number of volts, defendant’s instruction based on the common law counts depriving plaintiff of a right to recover under the statutory counts are properly refused.
    Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Wise, Keefe & Wheeler, for appellant; Mastín & Sherlock, of counsel.
    D. J. Sullivan and F. C. Smith, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

Appellee, Edward J. Smith, brought this suit to recover damag'es for personal injuries occasioned by an electric shock received by him while in the employ and by reason of the negligence of appellant.

There were four counts in the declaration. The first alleged that appellee was employed as a machine repairer in appellant’s mine, his duties requiring him to go anywhere in the mine where a machine needed repairs and carry with him tools to make such repairs; that he rode on motors with appellant’s knowledge and consent and that it was the duty of appellant to provide reasonably safe motors for him to ride upon and not expose him to unreasonable danger from electric shocks and bring upon him undue peril; that appellant negligently permitted a fuse in the fuse block, upon a certain motor, to become loose and insecure, which condition caused the fuse block to become charged with a heavy current of electricity, to wit, five hundred volts; that said fuse block was in close proximity to a certain tool box in which the motorman, in charge of the motor, had placed a file appellee was obliged to have in the discharge of his duty; that in taking said file from the tool box, appellee, while in the exercise of reasonable care for his own safety, came in contact with the fuse block and received an electric shock, which caused the injuries complained of.

The three other counts charged, in different forms, a violation of section 17 of the Mining Act of 1911 (J. & A. If 7491), which prohibits the carrying of a voltage in the mine on trolley wires or other exposed electrical wires above two hundred and seventy-five volts; that by reason of the excessive voltage and the loose and defective condition of the fuse block, the injury was caused to appellee.

There was a plea of the general issue, a verdict for two thousand dollars and a judgment for that amount and the costs of suit.

Appellant complains that the verdict is not sustained by the weight of the evidence; that the court erred in the admission of certain testimony offered on part of appellee and in refusing to give two instructions offered by appellant.

The proofs show that on October 25, 1911, appellee was employed by appellant to repair machines used at the face in different entries for mining coal; that when he was notified the machine was out of order it was his duty to fix it. Appellant operated, in the north and south main entries of its mine, electric motors running from the bottom of the shaft to the partings and hauling cars. Certain persons about the mine were permitted to ride on the motors in attending to their duties and appellee when called to repair a machine would ride from the bottom to the parting, where the motor stopped, and continue thence on foot to the face. He carried with him some tools used by him in fixing the machine, which were usually held together by a strap. On the day in question, after he had reached a machine he was about to repair, he discovered he had left a file and went back to the motor to get it. The motorman had found the file and put it in a tool box on the motor, used by him to hold certain tools. He told appellee where it was and appellee reached in the box, took hold of the file and attempted to remove it, when the file became connected with the current generated for the motor, and appellee was held there until the current was cut off, receiving painful injuries, which, in certain respects, permanently disabled him.

It was shown that the fuse block was just above the tool box on the motor and was out of order; that two clamps therein had become loose and let the fuse come against the side of the tool box; that appellant’s electrician, whose duty it was to fix the fuse block, had been notified by the motorman of its defective condition, but had failed to remedy it. Appellant offered no evidence upon the trial and the case therefore went to the jury upon the proofs submitted by appellee alone.

It is claimed by appellant that the proofs offered by appellee failed to establish that the trolley wire carried more than two hundred and seventy-five volts of electricity, which was the limit fixed by the statute. Upon this subject, Axon, the motorman, testified that in his opinion the voltage carried was five hundred and fifty; that it was marked on a plate on the side of the motor “voltage 550;” that there were five lamps in the circuit from the trolley to the rail and the voltage marked on each lamp was one hundred and ten. Parks, an electrical engineer, stated, that if there were five lamps in the circuit from the trolley to the rail, and each light marked one hundred and ten volts, the voltage carried by the trolley, in case none of the lights were burned out, was five hundred and fifty. He also said if a person takes hold of a metal file, charged with electricity of two hundred and seventy-five volts, he can let go, but if charged with five hundred and fifty volts he cannot, unless he falls. Morton, an expert electrician, testified, if a person takes hold óf a piece of metal charged with two hundred and seventy-five ' volts he will be able to let go. The testimony of appellee was, when he reached the file and the current struck him he could not let go; that the motorman tried to pull him loose and could not. This proof, which was uncontradicted, appears to us sufficient to establish the fact that the voltage carried by the trolley wire was in excess of two hundred and seventy-five volts. The proofs also appear to us to show that appellant was guilty of negligence in allowing the fuse in the fuse block in question to become loose and insecure and in permitting it to so remain, after having knowledge of its condition; that appellee was gxposed to unreasonable and unnecessary danger thereby and was entitled to recover for his injuries under the first or common law count of the declaration.

It is also made clear by the proofs, not only that appellant permitted the trolley wire to carry a voltage in excess of that permitted by the statute but also that such excessive voltage was the proximate cause of appellee’s injury.

The question is raised, however, as to whether appellee occupied such a position as to entitle him to the benefit of the provision of the Act of 1911, relating to coal mines (J. & A. jfjj 7475 et seq.). This act is entitled, “An act to revise the laws in relation to coal mines and subjects relating thereto, and providing for the health and safety of persons employed therein,” and provides among other things, that, “For any injury to any person or property occasioned by any wilful violation of this act or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured for any direct damages sustained thereby. ”

The courts of this State have always held that 'the “Miners Act” (J. & A. j[ff 7475 et seq.), must receive a liberal construction, for the protection of those employed in mines, but even if such were not the rule the language of this act is broad enough to include an employe m the mine, whose work contributed so directly to the mining of coal, as did that of appellee.

Complaint is made that the court refused two instructions offered by appellant. The first of these instructions told the jury that if plaintiff was injured because a file which he had in his charge was placed by the motorman in the tool box, and that while plaintiff was attempting to take the file from the tool box or had taken it therefrom it came in contact with the fuse box, and thereby the plaintiff was injured, plaintiff was not entitled to recover. The second told them that if they believed from the evidence the motorman or some other servant of the company placed the file in question in the tool box of the motor, and that the plaintiff brought said file in contact with an electric current, still he cannot recover, unless they further believe from the evidence that the company or some of its officers had knowledge or notice that such file was in said tool box.

Waiving all other objections to these instructions, they were both manifestly vicious in that they deprived appellee of all right to recover under the statutory counts of the declaration. The objections made to the rulings of the court on the admission of certain evidence are few in number, of minor importance and do not appear to us to be well founded.

The judgment of the court below will be affirmed.

Judgment affirmed.


text:
    Patrick Roach, Appellee, v. Willis Coal and Mining Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Randolph county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Patrick Roach against the Willis Coal and Mining Company, a corporation, to recover damages for injuries sustained by a fall of rock and other substances from the roof of a mine while in the employ of defendant. From a judgment in favor of plaintiff, defendant appeals.
    Abstract of the Decision.
    1. Mines and minerals, § 182

      —when evidence supports recovery.It appeared from evidence in an action by a mine employe to recover for injuries from a fall of rock and other substances from the roof of his working room that two days prior to the fall a piece of white top was discovered; that it was a treacherous substance and was liable to fall without warning; that it appeared to be solid; that it had been examined and the room marked with date of visit but no danger mark made, and that demand had been made for cross-bars. The defense contradicted this evidence in its material aspects. Held, a verdict for plaintiff would be sustained.
    2. Instructions, § 23

      —when proper in not requiring all counts to be proved. An instruction in a personal injury case that the plaintiff is not required by law to prove all the counts of his declaration, but it is sufficient if he proved one or more of the same as alleged therein by a preponderance of evidence, is not subject to an interpretation as permitting recovery if plaintiff proved one or two things in one or more of the various counts.
    3. Mines and minerals, § 191

      —when instruction on contributory negligence is proper. Where in an action under the Mining Act of 1911, J. & A. j]i 7475 et seq., there is evidence upon the question of contributory negligence, an instruction that contributory negligence is not a legal defense against a wilful violation of the statute is properly given.
    4. Mines and minerals, § 136

      —when right of action not affected by repeal of statute. . Where the Mining Act was repealed and a new act (J. & A., HIT 7475 et seq.) in relation to the same subject enacted after a miner was injured but prior to the trial of his case, his right to maintain his action under the law in existence at the time he was injured is fully preserved by R. S. c. 131, § 4, J. & A. 1 11105.
    C. E. Pope, for appellant.
    Webb & Webb, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    Security Insurance Company, Appellant, v. Richard Slack, Appellee.
    1. Pleading, § 343

      —when copy of instrument sued on need not be filed with declaration. Paragraph 32 of Practice Act, J. & A. ¶ 8569, requiring a copy of the instrument sued on to be filed ten days before the second term of court, does not apply where the instrument sued on has been lost or destroyed by fire.
    2. Insurance, § 569

      —when 'copy of policy need not be filed with declaration. In an action on an insurance policy, a copy of the policy need not be filed with the declaration ten days before the second term of court where the policy was destroyed by fire and was set out in haec verba in the declaration as soon as a copy of it was furnished by the insurance company after demand therefor.
    3. Insurance, § 552

      —jurisdiction of city courts. R. S. c. 110 If 7, J. & A. H 8544, giving courts of record of the county in which plaintiff or complainant resides jurisdiction in actions by individuals against insurance companies, does not deprive city courts of jurisdiction where plaintiff resides and the defendant is served in the city where the court is located.
    4. Insurance, § 637

      -—when proofs of loss with attached Inventory admissible. Proof of loss with attached inventory is admissible in evidence to show that insured had complied with the provisions of the policy in regard to furnishing them, but they are not proper evidence to be considered by the jury in fixing the value of the articles named therein.
    5. Insurance, § 701

      —measure of damages for loss by fire. In an action for fire insurance, the measure of damages is not the original value of the goods insured but the amount or extent of the loss or damage occasioned by the fire.
    6- Insurance, § 699

      —when instruction improperly assumes damages resulted after the fire. Requested instruction informing the jury that they should not award insured damages for injuries to the property resulting from the refusal of a police officer to admit him to the premises for some days after the fire, held properly refused as assuming that there were damages to the property resulting from insured not being permitted to take possession of his property at once after the fire.
    Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded..
    Opinion filed October 9, 1913.

      E. P. Peers and Edgar P. Holly, for appellant.
    Webb & Webb, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

Appellee brought suit in assumpsit to the September Term, 1911, of the City Court of the city of East St. Louis, on an insurance policy for $1,000, issued on household goods and clothing of appellee, which he alleges were destroyed by fire June 4, 1911.

The declaration, which was filed November 3, 1911, had no copy of the policy filed with it, but it was alleged therein that the original had been destroyed by the fire and that appellee had demanded a copy thereof of appellant, which has been refused. Appellant then filed a motion asking that appellee be compelled to file a copy of the policy, and tendered a copy for that purpose. Appellee confessed the motion and the cause was continued. On January 5, 1912, appellee filed an amended declaration, setting out therein a copy of the policy in haec verba, but filing no separate copy thereof. Afterwards appellant asked judgment of dismissal against appellee on the ground that a copy of the instrument sued on had not been filed ten days before the second term, but this was denied and later the cause was again continued. On March 12, a copy of the policy was filed with the declaration.

A declaration of four counts was filed, which in ad-, dition to the usual averments stated that appellant had waived proof of loss, together with certificate of a magistrate, thereto, by disclaiming liability; that the policy was destroyed by fire; that appellant refused to furnish blanks upon which appellee could make the proofs required until after the sixty-day limit named in the policy; that within sixty days appellee delivered proof of claim and schedule according to his best ability and knowledge. The general issue was filed, also special pleas, alleging that appellee had filed a fraudulent statement; that he permitted gas jets to remain open in the house, so that the escaping gas came in contact with fire and caused an explosion; that a demand for a certificate of a magistrate had been made on appellee and not furnished; that appellee failed to use reasonable means to save or preserve property after the fire, and that naphtha, benzine and other explosives were kept about the house. At the September term of court, 1912, appellant entered a motion to dismiss the cause for want of jurisdiction, which was denied and the cause was continued until the following January term, at which time, after the case had been called for trial appellee, over the objection of appellant, was permitted to file three additional replications. Further pleadings were had which finally resulted in joinder of issues, a trial, verdict of the jury in favor of appellee for $775 and judgment in his favor for that amount.

Appellant advances as reasons why this judgment should be reversed that the City Court of Bast St. Louis had no jurisdiction in this class of cases; that the suit should have been dismissed for failure of appellee to file a copy of the instrument sued on ten days before the second term; that the court made improper remarks concerning the case, in the presence of the jury; that the court erred in admitting the proof of loss in evidence in allowing appellee to file additional replications after the cause had been called for trial and in refusing to give an instruction offered for appellant ; and that the verdict was not sustained by the weight of the evidence.

To sustain the claim that the City Court of East St. Louis had no jurisdiction in this class of cases, appellant refers to paragraph 7, chapter 110 of the Revised Statutes (J. & A. j[ 8544), which provides that “The courts of record of the county wherein the plaintiff or complainant may reside, shall have jurisdiction of all actions hereafter to be commenced by any individual against any insurance company, either incorporated by any law of this State or doing business in this State. And all process issued in any cause commenced in the county wherein the plaintiff may reside, wherein an individual may be plaintiff or complainant, and any such company defendant may be directed to any county of this State for service and return.” Appellant insists that the City Courts are not “courts of record of the county” within the meaning of this act and rely upon the case of Maccabees of the World v. Harrington, 227 Ill. 511, as sustaining this doctrine. It is 'true that certain language is used in that case, which appears in general terms to support appellant’s position, but a careful reading appears to us to demonstrate that it is not intended to apply to the question here raised by appellant. There, a resident of the city of Chicago commenced suit in the City Court of Chicago Heights and summons was issued to the sheriff of Sangamon county and served on the superintendent of insurance as agent of the insurance company. The cause of action had accrued in the city of Chicago and neither the plaintiffs, the defendant nor the agent of the latter served with process had legal residence in the city of Chicago Heights. The Supreme Court in that opinion stated: “The only question to be determined is whether the City Court of Chicago Heights obtained jurisdiction of the person of the defendant and had the power, under the service had, to render a judgment in personam against it.” The court held that said City Court had no such jurisdiction, basing its opinion largely upon the fact that it had been often held by the Supreme Court “that the territorial limits of the jurisdiction of a City Court for service of original process is confined to the city limits wherein such court is located.” It .is plain from what is there stated, that for the purpose of the service of process a City Court is not a court of record of a county within the language of the statute. The question was not raised in that case as to whether a suit by an individual against an insurance company wa§ one of a class of cases of which city courts had jurisdiction. The case before us is very different from the one referred to. Here the suit was commenced by a resident of the city and service was had on appellant within the city limits and it was not necessary to take advantage of the statute to issue process for service outside of the city. Section 1 of our statute in reference to city courts (J. & A. jf 3289), provides that they “shall have concurrent jurisdiction with the circuit courts within the city in which the same may be, in all civil cases, etc.” We are of opinion that in cases such as this, where the plaintiff resides and the defendant is served in the city where the court is located, the City Court has jurisdiction, and that the court below in this case properly refused to dismiss the suit for want of jurisdiction.

Paragraph 32 of our Practice Act (J. & A. If 8569), provides that: “If the declaration and copy of the instrument of writing or account on which the action is brought, shall not be filed ten days before the second term of the court, the defendant shall be entitle d-to a judgment as in case of non suit.” Appellant insists that as the copy of the insurance policy here sued on was not filed ten days before the second term of the court, to which the suit was brought, its motion for judgment dismissing the suit should have been sustained.

In Phenix Ins. Co. v. Stocks, 149 Ill. 319, it was held that the setting out of an insurance policy in haec verba in the declaration was a sufficient compliance with the statute requiring a copy of the instrument on which the action is brought ,to be filed with the declaration. The insurance policy in this case was burned in the fire and appellee was therefore unable to set out a copy. He, however, demanded a copy of appellant and as soon as it was furnished him he set it out in the declaration. Under the circumstances, this appears to us to have been a sufficient compliance with the requirements of the law.

In the case of People v. Pace, 57 Ill. App. 674, which was a suit at law on a lost bond, it was held by this court that the section of the statute which requires plaintiff to file a copy of the instrument sued on does not relate to instruments which had been lost; that if there was no original instrument in existence the law does not require a copy to be filed, and we adhere to the reasoning upon which that decision was based. .

Appellant complains that the court refused" one of its instructions, which informed the jury that they should not award appellee damages for injuries to the property resulting from the refusal of a police officer to admit him to the premises for some days after the fire. This instruction was properly refused as by its wording it appears to assume that there were damages to the property resulting from the fact that appellee was not permitted to take possession of his property at once after the fire, and the question as to whether there were such damages was one of fact to be determined by the jury, from all the proof.

The other questions raised by appellant, except those relating to the sufficiency of the proof to sustain the recovery, need not be discussed, as they are of minor importance and are not such as would occur on another hearing of the case, which must be awarded.

The proofs showed that on April 25, 1911, appellant issued a policy to appellee on his household goods for $1,000, for the term of three years. The policy contained, among other provisions, the following: “The amount of loss or damage to be estimated according to the actual cash value of the property at the time of the loss and to be paid to the assured or the legal representatives of the assured upon receipt and acceptance by the said company, of satisfactory proofs of loss, made as provided herein.” Also, “if there shall be other insurance, whether valid or not upon the property herein insured, the assured shall recover of this company no greater proportion of the loss sustained than the sum hereby insured, bears to the whole amount insured thereon.” At the time of the fire, appellee had three other policies of $1,000 each on the same property in addition to appellant’s, making a total of insurance of $4,000. The property insured was in a six room house in East St. Louis, Illinois, where appellee, his wife and their fifteen year old son were living. The day before the fire, appellee’s wife went to St. Louis and he and the boy went fishing, leaving the house empty. The next morning the house was discovered to be on fire and before it could be extinguished a great many of the articles insured were totally destroyed, while others were damaged by fire and water. Appellee did not learn of the fire until five or six o ’clock on the evening of the day of its occurrence, when he returned and found police officers in charge of the premises, and it was nearly a week thereafter before he again gained possession of the same. He was indicted for arson in connection with the fire, but the State’s Attorney of the county afterwards entered a nolle prosequi. Appellee in his testimony was permitted to use an inventory made by himself and wife soon after the fire, and afterwards submitted with proofs of loss to the several insurance companies, of the property claimed to have been destroyed or injured and to testify therefrom as to the fair cash value of the articles therein enumerated. The total valuation made by him amounting to $4,385.90. In fixing the value of his own clothing, which he placed at over $600 and practically all of which had been worn one or more seasons, he stated that the amounts named were what he paid for them and in the same way he fixed the value of his wife’s clothing, amounting to some $700, which he stated he knew nothing about except what he had paid for them. The value of the furniture, rugs and other articles about the house were in like manner determined by the cost price regardless of the time they had been in use or their actual value at the time of the fire. There was no other testimony on the part of appellee as to the value of the property, except one witness, who testified concerning a piano and a mahogany dresser and who also stated that the price of certain other pieces of furniture were higher now than when appellee purchased the same. The list from which appellee testified, together with the sworn proof of loss, was admitted in evidence, over appellant’s objection.

The statement that hundreds of dollars worth of wearing apparel—suits, hats, dresses, shoes, linens and underclothing—that have accumulated in a family for a number of years, and have been worn from time to time, have a fair cash value equal to the original purchase price, cannot be taken seriously, unless there is some particular reason shown why such value has been maintained, which was not done in this case, and the same reasoning must apply with some modification to furniture and articles of household use. In the testimony of appellee, no deductions appear to have been made for articles that were not destroyed but only damaged. The amount testified to by appellee would seem to be the total sound original value of the goods insured and not the amount or extent of the loss or damage occasioned by the fire, which was the proper subject of inquiry. Lancashire Ins. Co. v. Lyon, 124 Ill. App. 491.

It was proper to admit the proof of loss, with an attached inventory in evidence, to show that appellee had complied with the provisions of the policy in regard to furnishing the same, but they were not proper evidence to be considered by the jury in fixing the value of the articles named therein. The policy sued on provided, as above stated, that the amount of such loss or damage was to be estimated “according to the actual cash value of the property at the time of the loss.” Also that the assured should recover of appellant “no greater proportion of the loss sustained, than the sum hereby insured bears to the whole amount insured thereon.” The amount of the recovery against appellant was $775, and as the amount of the insurance carried by appellant was but one-fourth of the total amount of the policies taken out on the same property by appellee, it must be assumed that the jury valued the property at four times the amount of the verdict in this case, or $3,100, and they must therefore have been to a large- extent controlled in fixing values by the purchase value of the articles contained in the schedule as sworn to by appellee and stated therein.

It appears to us that an improper basis was used in determining the actual cash value of the property destroyed at the time of the fire, and that the judgment based on the verdict resulting therefrom should not be permitted to stand. The judgment of the court below is accordingly reversed and the cause remanded.

Reversed and remanded.


text:
    Thomas & Hoeltmann, Appellee, v. St. Louis Brewing Association, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Thomas & Hoeltmann, a corporation, against St. Louis Brewing Association, a corporation, to recover charges for transferring and storing hotel furniture upon which defendant held a chattel mortgage. From a judgment in favor of plaintiff for $221.70, defendant appeals.
    M. V. Joyce and A. B. Garrett, for appellant.
    Martin D. Baker and Dan McGlynn, for appellee.

      Abstract of the Decision.
    Warehousemen, § 23*—when chattel mortgagee liable for hauling and storage charges. In an action for hauling and storage charges in connection with hotel furniture subject to a chattel mortgage at the time it was hauled and stored, evidence held, to show that chattel mortgagee ordered the goods to be stored in its name and that it' was therefore liable for the charges after it had purchased the property at the foreclosure sale.
   Mr. Justice Higbee

delivered the opinion of the court.


text:
    City of Centralia, Appellee, v. John Knash, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal corporations. § 864

      —when evidence shows a disturbance of the peace in violation of ordinance. On complaint for violation of a city ordinance by disturbing the peace, evidence held sufficient to warrant a verdict of guilty though defendant claimed to be attempting to separate persons fighting.

      Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Complaint by the City of Centralia against John Knash for a disturbance of the peace in violation of a city ordinance. From a judgment against defendant for five dollars and costs, defendant appeals.
    Charles F. Dew and A. D. Rodenberg, for appellant.
    No appearance for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

2. Municipal corporations, § 865*—when instruction properly refused. In an action for disturbance of the peace in violation of a city ordinance, instruction for defendant failing to require the jury to find from a preponderance of the evidence that defendant was attempting to prevent an assault upon another, held properly refused.

3. Municipal corporations, § 865*—abstract instructions. Requested instruction telling the jury that a bystander could interfere to prevent an assault, using such force as might be necessary, provided that after the separation he did not follow up either of the parties and assault him, held properly refused as not being applicable to the facts óf the case.

4. Appeal and error, § 1101*—effect of failure to file briefs. When appellee fails to file brief within- the time provided by the rules of court, the Appellate Court may reverse the judgment pro forma, unless on an examination of the record it deems it proper to decide the case on its merits.


author: Mr. Justice Thompson

text:
    R. W. Lay and Ida Lay, Appellees, v. Illinois Central Railroad Company, Appellant.
    1. Appeal and error, § 963

      —when record imports verity. On an appeal from an order overruling a motion for a judgment on what was claimed to be the verdict of the jury, a record which shows that the jury failed to agree on a verdict and that a new trial was ordered, imports verity, cannot be impeached by the verdict filed in the case, binds the parties and controls the court in its consideration of the appeal.
    2. Appeal and error, § 269

      —when order overruling motion for judgment is not final. Where on an appeal from an order overruling a motion for a judgment on what was claimed to be the verdict of the jury the record shows that the jury failed to agree on a verdict and that a new trial was ordered, the order is not a final judgment from which an appeal may be prosecuted.
    3. Mandamus, § 16

      —when proper to compel entry of judgment on verdict. If a party is not satisfied with a ruling on a motion for a judgment on a verdict, the question of the sufficiency of the verdict to support a judgment can be raised by petition for mandamus to compel the trial judge to enter judgment on the verdict.

      Appeal from the Circuit Court of Johnson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1913.
    Dismissed.
    Opinion filed October 9, 1913.
    James C. Courtney and Charles J. Huffman, for appellant; Judge W. W. Barr, of counsel.
    Spann & Spann, for appellees.

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

   Mr. Justice Thompson

delivered the opinion of the court.

This case comes here on appeal from an order of the Circuit Court of Johnson county, overruling appellant’s motion for judgment, on what it claims was the verdict of a jury.

The record of the court shows that the court in disposing of the motion adjudged all the costs in the case against the appellant. The judgment for all costs was unwarranted but since this case must be retried this error can and no doubt will be corrected on the final disposition of the case.

The appeal in this case must be dismissed because the order appealed from was not a final judgment in the case.

The court records show that the jury failed to agree on a verdict and that a new trial was ordered. This record imports verity, and the verdict filed in the case cannot impeach that record. If the appellant was not satisfied with the rulings of the court on its motion for judgment on the verdict, the question of the sufficiency of the verdict to support a judgment could have been raised by petition for mandamus to compel the trial judge to enter judgment on the verdict.

Holding as we do that the order appealed from is not a final judgment from which an appeal may be prosecuted, the question as to whether the verdict of the jury was regular and sufficient does not arise in this case.

The record as made not only binds the parties but must control this court in its consideration of this appeal.

Since this appeal must be dismissed and the case is yet to be heard on the merits, a discussion of the numerous alleged errors on the former trial will not be entered on here.

The appeal is therefore dismissed.

Dismissed.


text:
    Nelson Chesman & Company, Defendant in Error, v. E. C. Singers, Plaintiff in Error.
    1. Quo warranto, § 18

      —proper method to attach corporate existence. Quo warranto is a proper proceeding to attack directly the legal existence of a corporation.
    2. Corporations, § 51

      —what sufficient proof of corporate existence. Where the questions of corporate existence is raised collaterally under a plea of nul tiel corporation, plaintiff is not required to prove that it is in all respects a legal corporation, and proof that plaintiff had a de facto existence will be sufficient to maintain the actions until such proof is overcome by the defendant.
    3. Corporations, § 51

      —how corporate existence may he proved,. A plaintiff to meet a plea of nul tiel corporation, the issue so raised being a collateral one, may offer proof that defendant contracted with it as a corporation, and the contract itself is sufficient prima facie evidence to show a de facto corporate existence and such proof must prevail until overcome by evidence of no corporate existence.
    4. Corporations, § 51

      —hoio corporate existence may he proved. Where in an action on a contract note the defendant pleads nul tiel corporation, the introduction in evidence of the note showing a contract in writing to pay plaintiff a sum of money sufficiently proves its corporate existence, and in the absence of any evidence by the defendant it is proper to direct a verdict for the plaintiff.
    Error to the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.

      J. F. Vickers, for plaintiff in error.
    Johnson-Johnson and W. L. Coley, for defendant in error.

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

   Mr. Justice Thompson

delivered the opinion of the court.

Nelson Chesman & Company brought suit in the City Court of East St. Louis against Edward C. Singers on a contract note and recovered a judgment for the amount specified in the note.

To the declaration the defendant filed a plea of general denial and plead specially nul tiel corporation.

The plaintiff to sustain his action introduced the note in evidence and rested its case.

The defendant introduced no evidence and the court directed the jury to return a verdict for plaintiff for the amount due on the note.

The defendant objected to the ruling of the court for the reason plaintiff had offered no proof that it was a corporation, authorized to do business in this State. Plaintiff in error (defendant below) brings the case here and urges a reversal of the judgment on the ground that where the plea of mil tiel corporation is interposed the burden is placed on the plaintiff to show corporate existence and legal right to sue, and insists that since defendant in error (plaintiff below) offered no evidence to prove such existence or right that the judgment is contrary to the law and evidence in the case.

To directly attack the legal existence of a corporation, quo warranto is a proper proceeding.

Where the question of corporate existence is raised collaterally as in this case, under the plea of nul tiel corporation, the plaintiff is not required to prove that it is in all respects a legal corporation.

Proof that plaintiff had a de facto existence would be sufficient to maintain the action until such proof was overcome by defendant. Hudson v. Green Hill Seminary Corp., 113 Ill. 618; Brown v. Scottish-American Mortgage Co., 110 Ill. 235.

In this case the plaintiff introduced the note in evidence showing that the defendant had contracted in writing to pay plaintiff the sum of money which forms a basis of the judgment in this case.

It is a settled rule in this State that the plaintiff to meet the plea of nul tiel corporation (the issue so raised being a collateral one) may offer proof that defendant contracted with it as a corporation, and the contract itself is sufficient prima facie evidence to show a de facto corporate existence, and such proof must prevail until overcome by evidence of no corporate existence.

In West Side Auction House Co. v. Connecticut Mut. Ins. Co., 85 Ill. 497, the Court treating this subject said: ‘ ‘ The lease offered in evidence is a contract between appellant and appellee, as a corporation. The contract with appellee, as a corporation, is sufficient evidence of its corporate capacity and overcame the plea of nul tiel corporation. There is no evidence to rebut it.”

Under the pleadings and proof in this case the court did not err in directing a verdict for the plaintiff and the judgment is therefore affirmed.

Affirmed.


text:
    Kate O’Rourke, Administratrix, Plaintiff in Error, v. Louisville & Nashville Railroad Company, Defendant in Error.
    1. Carriers, § 289

      —what care required as to intoxicated passenger. Where a railroad company abandons an intoxicated passenger at a dangerous place on its platform, the degree of the passenger’s incapacity from drunkenness controls the question of due care or negligence of both parties.

      2. Carriers, § 430

      —when intoxication is not contributory negligence. Where a railroad company abandoned a passenger at a dangerous place on its platform while the passenger was in such a mental state of intoxication as to he incapable of caring for himself, the question of contributory negligence is not involved.
    3. Carriers, § 452

      —when declaration for death of intoxicated passenger is sufficient. In an action for the death of an intoxicated passenger from the negligence of a railroad company, a declaration stating in effect that the passenger was, through intoxication, so bereft of reason that he was without intelligence to care for himself and while in that condition and known by defendant to be in that condition was abandoned in a known place of danger, where injury would be likely to result, and that by reason thereof he was killed, states such facts as constitute actionable negligence.
    Error to the Circuit Court of Gallatin county; the Hon. William H. Green, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded with directions.
    Opinion filed October 9, 1913.
    Rehearing denied October 29, 1913.
    G. W. Pillow and Bartley & Bartley, for plaintiff in error.
    J. M. Hamill, and C. P. Hamill, for defendant in error.

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

The ruling of the court in sustaining the demurrer to plaintiff in error’s declaration is the only error complained of in this case.

The declaration, which is of many counts and great length, in substance charges that plaintiff in error’s intestate was, while in a drunken condition, received by defendant in error as a passenger on its train at East St. Louis, to be transported to Shawneetown. That his intoxicated condition was apparent and known to defendant in error’s servants at the time he was so received as a passenger. That his state of intoxication increased after he was aboard the train and that when-the train reached the town of Ashley, situated about fifty miles from East St. Louis, he was in such a state of intoxication that he was mentally incapable of caring for himself, and that defendant, knowing his said condition permitted him to leave its car and wander upon its platform at said station and that when he attempted to re-enter said car while it was still standing motionless on its tracks the defendant in error, by its servants, wilfully and negligently refused to permit him to re-enter its car and continue his journey, but then and there abandoned him leaving him on the said platform in said drunken condition, knowing that he was by reason thereof unable to care for himself.

That the place he was so abandoned was a dangerous one, being the point where the defendant in error’s tracks were crossed by the tracks of the Illinois Central Eailroad. That the said dangerous place was well known to defendant in error. - That he was abandoned there about nine o’clock p. m., and that about four o’clock the following morning plaintiff in error while still in said intoxicated condition wandered on the tracks of the Illinois Central Eailroad, and was struck and killed by a fast train on said road without negligence of the agents and servants of said road. That the abandonment of the deceased at such a dangerous place- while he was, through such intoxication, mentally incapable of caring for himself was the negligence which caused his death.

The facts alleged if proved would warrant a verdict for plaintiff. If the plaintiff was as the declaration alleges, in such a mental state- of intoxication as to be incapable of caring for himself, the question of contributory negligence would not be involved in the case. The degree of incapacity from drunkenness would control the question of due care, or negligence of both plaintiff and defendant. If plaintiff was, through intoxication, so bereft of reason that he was without intelligence to care for himself and while in that condition and known by defendant to be in that condition he was abandoned in a known place of danger where injury would be likely to result, such facts would constitute negligence.

It is a case stated and not a question of insufficient proof with which we are now dealing. We are of the opinion that the declaration states a case. The case of Burke v. Chicago & N. W. R. Co., 108 Ill. App. 565, and cases cited in that opinion, clearly sustain the views we have expressed in this case.

The trial court should have overruled the demurrer, and for this error the cause is reversed and remanded with directions to overrule the demurrer.

Reversed and remanded with directions.


text:
    Walter Greenfield, Plaintiff in Error, v. Napoleon Maclin, Executor, Defendant in Error.
    1. Husband and wife, § 18

      —what evidence admissible in recovering for necessaries furnished. In an action against a husband’s estate to recover for support and necessaries furnished his wife living apart, a contract in which the husband made certain provisions for his wife while they were living separate and apart is admissible in evidence and evidence is admissible to show whether the provisions had been carried out and what other support had been given her. The claimant’s proof of a failure to provide the necessaries for support of the wife is not limited to showing a failure to provide necessaries up to the agreed amount only, but he may show the husband’s- failure to provide whatever amount was necessary, even though it exceeds the contract sum.
    2. Husband and wife, § 18

      —when no liability for wife’s necessaries. A husband and wife separated and the wife made her home with her daughter and son-in-law and there lived as a member of the family without any express agreement to pay for support and necessaries furnished by the son-in-law, who sued the husband’s estate therefor on his death. The husband by contract provided for the support of his wife and she accepted the same as satisfactory and no one ever made claim against the husband for an additional sum for the support of his wife. Held, a verdict for the estate was proper.
    3. Appeal and error, § 1531

      —when instruction as to contract releasing husband from support is harmless. In an action against a husband’s estate for necessaries furnished his wife, an instruction stating that a contract between husband and wife providing for the wife’s support and releasing the husband from further obligation is binding unless steps were taken to set it aside is harmless, where the questions before the jury were as to the sufficiency of the amount provided in the contract and whether there was any understanding that plaintiff should be paid for furnishing support which was necessary over and above such contract provision.
    4. Husband and wife, § 14

      —when instruction as to necessity of contract to pay for wife’s necessaries is proper. In an action against a husband’s estate to recover for necessaries furnished his wife, an instruction that plaintiff must prove an agreement or understanding, that the wife would pay for the necessaries does not imply that the agreement or understanding would have to be an express one, especially when the whole series of instructions is considered together.
    Error to the Circuit Court of Perry county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    C. E. Pope, for plaintiff in error.
    B. W. Pope, for defendant in error.

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

Plaintiff in error filed a claim in the Probate Court of Perry county against the estate of Wiley House, deceased, for board, washing, nursing and medicine, claimed to have been furnished to Malinda House, wife of said Wiley House, the account covering a period of five years.

Wiley House and his wife, Malinda, separated in October, 1898, and lived apart thereafter. Wiley House died April 24, 1911, and Malinda died on May 10,1911.

Some time in the year 1899, Malinda commenced proceedings for separate maintenance against her husband, alleging cruelty as grounds for separation. This suit was compromised before trial, and by the terms of the settlement Wiley House was to allow his wife certain household goods and other personal property, a small house in Du Quoin, Illinois, and was to pay her one hundred dollars per year, and the agreement further provided that Wiley House was to be released from further obligations to support his wife.

This agreement was recognized by both parties from 1899 to the time of Wiley’s death in 1911.

During all this time covering a period of about thirteen years, Malinda House had practically made her home with her daughter and son-in-law, Mr. and Mrs. Walter Greenfield, said Walter Greenfield being the claimant herein.

On the objections filed to this claim by the executor of the estate of Wiley House, a trial was had in the County Court which resulted in the rejection of the claim.

Claimant prosecuted an appeal to the Circuit Court of said county and a trial by jury resulted in favor of the estate and claimant brings the case to this court by writ of error for review. The errors assigned and relied on to work reversal are two. First, the contract made between Wiley House and Malinda House, in which the husband made certain provisions for his wife while they were living separate and apart, was admitted in evidence and it is insisted that this was error.

The defendant had the right to show by any competent evidence that Wiley House had made provision for the support of his wife during the separation and whether the provision had been carried out and what other support, if any, had been given her. And claimant had the right to prove by any competent evidence the failure to provide the necessaries for support of the wife even beyond the agreed sum if that was hot sufficient under the circumstances.

It does not appear from the evidence that the wife ever claimed that her husband had not made ample provision for her under that settlement. She accepted the provisions as satisfactory for the whole of the thirteen years they lived apart. No steps were taken to have this amount increased.

The claimant must have known of this agreement and the amount that Malinda House was receiving each year. There was also an absence of any agreement or understanding that claimant was to have any remuneration for taking care of his mother-in-law. Claimant’s wife was a daughter of Mrs. House and Mrs. House lived with claimant and his family as one of the members for thirteen years. No claim was ever made by any one against Wiley House for an additional sum for the support of his wife.

Under the evidence in this case we cannot say the jury should have found differently. There was no express agreement by which claimant was to be paid for board and care furnished Mrs. House and no facts and circumstances by which it could be said there was an implied contract to furnish them.

The second error claimed, arises on the instructions given for defendant.

The first instruction told the jury that the contract introduced in evidence was such a one as the law permits a husband and wife to make and would be binding unless steps were taken by the wife to set it aside. While no contract can be legal as between husband and wife which would in effect relieve the husband from support of the wife, and so far as the instruction might be considered as relieving the husband from such duty it would be erroneous, still the jury could not have been misled on that point, for the questions that were before them were as to the sufficiency of the amount provided in the contract, and whether there was an understanding or agreement either expressed or implied that the claimant should be paid for furnishing support to Malinda House which was necessary over and above such provision as made in the contract. The criticism of the second instruction directed toward the following language used in the instructions: “He (claimant) must prove by a preponderance of the evidence that at the time Malinda House went to the home of Walter Greenfield or at some time since then there was an agreement or understanding between them that Malinda House would pay for such services, care and attention as should be given her by said Greenfield, etc.” The complaint about this instruction is that the jury would understand that the agreement or understanding would have to be an express one whereas the law is that it may be implied.

It would be difficult to see how the jury would find it necessary under that instruction to require proof of an express contract to pay for such services, especially when the whole series of instructions are considered together.

On the whole case we are satisfied the verdict of the jury was right, and finding no errors requiring a reversal hereof the judgment of the trial court will be and is affirmed.

Affirmed.


text:
    Emil F. Kerchner, Appellee, v. Stephen Davis, Appellant.
    1. Automobiles, § 2

      —right in street and mutual duties. Automobiles have no greater right in the streets than other vehicles, and pedestrians and automobile drivers have equal rights in the use of the streets.
    2. Automobiles, § 2

      —precautions to avoid injury to passenger alighting from a street car. Where a driver of an automobile going in the same direction as a street car knows that the car is approaching a street crossing and is slackening its speed, to avoid injuring a passenger alighting from the car, it is the duty of the driver to have his automobile under control, and if necessary to stop it altogether.
    3. Automobiles, § 2

      —when negligent in striding passenger alighting from street ear. An automobile was being driven between a street car track and the curb in the same direction as the car and the driver knew that passengers were let off at a certain street intersection and that the car Was slackening speed on approaching the crossing. In passing the car the automobile was five feet from the side thereof and in going eight miles an hour, without sounding a horn or other signal, struck a passenger who had alighted from the car, the evidence being conflicting whether the car had stopped. Held, the automobile driver was negligent.
    4. Automobiles, § 3

      —when contributory negligence is a question of fact. Where an automobile approaching between the street car tracks and the curb, a street car going in the same direction strikes a passenger who had alighted from the street car without looking backwards, and the evidence is conflicting whether the street car had stopped, the questions of contributory negligence in not looking to see whether an automobile was approaching and the method of getting off of the car are-for the jury.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    M. U. Hayden and Barthel, Farmer & Klingel, for appellant.
    Turner & Holder, for appellee.

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

This suit was tried on the third and fourth counts of appellee’s declaration, charging appellant with negligent and careless driving of an automobile at an unreasonable and improper rate of speed, thereby causing injury to appellee, while he was in the exercise of due care for his own safety.

The injury was received on West Main street in the city of Belleville, opposite a point where Cleveland avenue intersects or opens into West Main street. West Main street runs east and west and Cleveland avenue runs north and south. Cleveland avenue does not cross West Main street. It opens into said street from the south, but does not continue north beyond West Main street. On West Main street there is a double track electric railway and on the day of the injury appellee was riding on a car of said railway from his place of business down town to his home, which was located a short distance west of the point where a straight line would have touched the north side of West Main street, if such line had been projected north from the west line of Cleveland avenue. He was riding west on the car which was running on the north track, and when the car approached Cleveland avenue it commenced to slow up to receive or discharge passengers. It was the custom of the street railway company to discharge passengers from the north side of the rear platform of the cars running west.

A short time before the car on which appellee was riding reached Cleveland avenue it passed appellant, who was driving an automobile westward along the north side of West Main street. After the street car passed appellant he followed closely, and when the car slowed up to let appellee off appellant’s automobile was following closely behind. In getting off the car appellee was facing westward, in the direction the car was moving.

There is a conflict of evidence as to whether the car had come to a complete stop when appellee got off. Preponderance of the evidence seems to be that the car had practically stopped at the west side of Cleveland avenue, the usual place for stopping, and appellee stepped off from the rear platform on the north side of the car and had taken two or three steps when the automobile struck him and knocked him to the pavement. .

The only evidence as to the speed of the automobile at the time of the accident was that of appellant, who testified it was running about eight miles an hour.

The uncontroverted facts are that the street car had passed the automobile just before the Cleveland avenue crossing was reached; that the street car slowed up'as it approached Cleveland avenue to let passengers off; that the usual place for the west-bound cars to stop was on the west side of Cleveland avenue; that the distance from the north rail of the track the car was on to the curbing on the north side of the street is about eighteen feet; that appellant knew passengers were let off at that point; that after the street car passed him he followed the car and was close behind it when appellee stepped off; that no horn was sounded or other signal given by appellant at the time or immediately before the accident.

It further appears from the evidence that immediately after the accident the street car and the automobile were close together, both standing on the west side of Cleveland avenue, and that appellee was there taken out from under the automobile; that from the side of the street car to the automobile was only about five feet. This fact clearly disproves appellant’s contention that his car was only two and one-half feet from the north curbing when he struck appellee, the proof being that the distance between the north rail of the track and the curbing was a little over eighteen feet. It appears from the evidence that appellant must have known that the street car was slacking its speed for that crossing, since his own testimony shows that he was close to it at the east side of Cleveland avenue and its place of stopping only about nineteen feet farther west. Appellant testified that appellee got off the car' before it stopped and that had he waited until the ear stopped he would not have been struck. This testimony indicates what appellant was attempting to do. He evidently intended to drive his machine past the car before any passengers would alight, and so took that risk. He miscalculated, and the injury resulted.

Under the circumstances it was his duty to have Ms macMne under control, and if necessary to avoid accident and injury to others to stop it altogether.

In the case of Kessler v. Washburn, 157 Ill. App. 532, the court said: “The true test is, that he (an automobile driver) must use all the care and caution which an ordinarily prudent and careful driver would have exercised under the same circumstances.” A prudent, careful driver would have anticipated that passengers were likely to get off the car under the circumstances of approaching a street crossing and the slackening of its speed. A prudent driver would have been watchful to avoid the kind of accident that then happened. Automobiles have no greater right in the streets than other vehicles. Pedestrians and automobile drivers have equal rights in the use of the streets. There is a clear distinction between the requirements where one approaches a place of known danger like a railroad crossing and where one simply attempts to cross a street where automobiles and other vehicles may run. The rails hold cars to a particular line. Not so in the case of automobiles. The driver selects a track and directs the course of an automobile the same as a driver of a team and wagon. The weight and power of the automobiles together with the reckless and unskilled driving so prevalent require the utmost stringency of the law to check the increasing casualties that are taking place.

Appellee had the right to get off the car and use the street to reach his home. In attempting to do so he was exercising his right to the usual and lawful use of the street.

There is abundant evidence in the record to show negligence and almost recklessness of appellant in the running his automobile so close to the street car under the circumstances shown by the evidence.

It is contended, however, that appellee was guilty of such contributory negligence as will prevent a recovery. The negligence charged to appellee is that he did not wait until the street car stopped before he got off, and also that he did not look to see whether any automobile was approaching from the east. The evidence as to whether the car had stopped when app ellee alighted from it is conflicting. Appellee and several of his witnesses testified that the car had come to a stop when he got off. Appellant and several of his witnesses testified that he got off while the car was still moving.

It was for the jury to say where the truth of this matter laid and whether under the circumstances his manner of getting off the car was negligence which contributed to his injury.

The question whether it was negligence on the part of the appellee to get off the car without looking backwards'was also one for the jury. His failure to look towards the rear of the car to see if any one was approaching in an automobile or whether ordinary care required that he alight from the car with his face in the direction the car was moving were proper considerations for the jury, and unless the verdict was manifestly against the weight of evidence it ought not to be disturbed. We are of the opinion the verdict and the judgment were right under the facts and law in the case, and the judgment is therefore affirmed.

Affirmed.


text:
    Sallie G. Owens, Appellant, v. Commonwealth Trust Company, Appellee.
    1. Mortgages, § 697

      —when tenant in common may redeem. An owner of an undivided one-half of land joining with her co-tenant in executing a mortgage, and the land being sold en masse in foreclosure, can redeem only by paying the whole of the purchase price and interest and cannot redeem one-half of the land by making a payment.
    2. Tenancy in common, § 6

      —title acquired in redeeming from foreclosure. Where tenants in common, each having an undivided one-half interest in land, join in executing a mortgage, one of them redeeming the whole of the land after a foreclosure sale is restored to her ownership of one-half and has an equitable lien on the other half to enforce contribution from the cotenant.
    3. Mortgages, § 697

      —when right to redeem is not affected by bad faith of tenant in common. Where two cotenants execute a mortgage on their land and the mortgagee furnishes a son of a cotenant the money to purchase the land at the foreclosure sale, who assigned the certificate of purchase to the mortgagee as security for the money, and such secret arrangement between the mother, son and mortgagee, by which mother and son would be gainers at the other cotenant’s expense, is such bad faith as will not operate to defeat redemption by the cotenant.
    4. Tender, § 4*—sufficiency in equity. The law of tender is less rigid in equity than in law.
    5. Mortgages, § 712

      —when tender to redeem is sufficient. On redemption from a foreclosure sale by one of two tenants in common who joined in the mortgage, a tender is sufficient if an offer to pay the proper amount is made and there is proof of present ability to carry out the offer.
    6. Mortgages, § 712

      —when tender to redeem is sufficient. On a bill to redeem from a foreclosure sale, a tender is sufficient where the mortgagee testified that she went to the office of the purchaser with a representative of the party she was to borrow the redemption money from, who had with him for mortgagor’s use a certified check for the amount required to redeem, offered to pay the amount required and that redemption was refused.
    7. Mortgages, § 712

      —when tender sufficient without counting out money. On a bill to redeem from a foreclosure sale it cannot be contended that the actual money to redeem was not counted out to the purchaser when no objection of that kind was offered when a tender was made.
    Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Sallie G. Owens, pro se.

    Charles Campbell, for appellee.

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

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section numbec-

   Mr. Justice Thompson

delivered the opinion of the court.

This is a suit in chancery brought by appellant against appellee to enforce the right of redemption of certain lands sold under a decree of foreclosure.

The bill alleges that appellant and her sister, Cora Owens Hume, were the sole and equal owners of about two hundred and forty acres of land situated in Marion county; that said owners executed a mortgage on said premises to the Prudential Insurance Company of America; that said mortgage was foreclosed and the land sold by the masters in chancery, July 1, 1911; that appellee was the representative of the mortgagee at the time and before the foreclosure proceedings were instituted.

The bill further alleges that W. Gr. Hume, the son of Cora Owens Hume, was the purchaser at the foreclosure sale, and that the money used to make the purchase was furnished by the appellee, and the said W. Gr. Hume thereupon assigned the certificate of purchase to appellee; that the said Cora Owens Hume made no effort to redeem from the sale so made to her son. The bill further alleges that on June 29,1912, appellant went to the office of appellee, Commonwealth Trust Company in St. Louis, Missouri, and made a tender to it of the full amount necessary for redemption, and that appellant refused to accept the same..

Appellant clearly had the right to redeem by paying or offering to pay the purchase price and the interest required by statute. She was the owner of an * undivided one-half of the land. She and her cotenant, her sister, joined in the execution of the mortgage which was foreclosed.

The sale was en masse and she could redeem only by paying the whole of the purchase price. She could not under the statute have redeemed one-half of the land by paying one-half of the amount necessary to redeem the whole.

The redemption of the whole would have restored appellant to her ownership of her one-half and given an equitable lien upon the other half to enforce contribution from her sister. The court erred in holding that appellant by redeeming would only acquire an interest in the undivided one-half she owned before the foreclosure sale. Fischer v. Eslaman, 68 Ill. 78.

This principle of law only becomes material on consideration of the views expressed by the court during the trial.

Counsel for appellee to sustain the decree of the trial, relied solely upon the alleged failure of appellant to present legal tender of the amount necessary to redeem from the foreclosure sale.

The doctrine of equity is compensation, not forfeitures. Appellee was the mortgagee. Appellee furnished W. G. Hume the money to purchase the land at the foreclosure sale. Hume, to secure the money so obtained, assigned this certificate of purchase to appellee. While the record does not show actual fraud arid collusion to defeat appellant’s right of redemption, the record shows enough to indicate that her sister was willing to take the whole property through the purchase of her son and leave appellant out of consideration altogether. Good faith on the part of appellant’s sister required fair co-operation to protect their common interests, and a secret arrangement between Mrs. Hume and her son and appellee, by which Mrs. Hume and her son should be gainers at appellant’s expense would not be regarded as good faith on the part of Mrs. Hume.

The law of tender is less rigid in equity than in law. It is enough, in such cases as this, if an offer to pay is made and there is proof of present ability to carry out the offer. Doyle v. Teas, 5 Ill. (4 Scam.) 202.

Appellant testified she went to the office of appellee . with a representative of the party she was to borrow the money from and offered to pay the amount necessary to redeem, and appellee refused to allow her to redeem. Appellant says the party with her had with bim, for her use in that matter, a certified check for twelve thousand dollars. The amount required to redeem was less than that sum.

Unless we can say the evidence shows that appellant testified falsely about being prepared to pay by certified check, we must conclude she was able to make the payment at the time she went to appellee’s office in St. Louis. Appellee did not base its refusal to accept the payment on the ground that no legal tender was made. There is no denial by appellee that appellant went to its office and made the tender or offer of payment, just as she detailed in her testimony.

■ It is contended here, however, that the actual money was not counted out at that time. No objection of that kind was then offered by appellee.

The evidence of what was said and done at the time appellant went to appellee’s bank rests solely on the testimony of appellant and that is quite brief. It must be accepted unless disproved, or in some way impeached by the facts and circumstances proved in this case.

We cannot say it has been discredited beyond belief, but must hold that she did offer to redeem and the offer was refused, and that she was prepared with certified check to make her offer good, and under such a state of facts it was inequitable to refuse her offer and so deny her the right of redemption. The decree dismissing complainant’s bill was erroneous.

The case will be reversed and remanded.

Reversed and remanded.


text:
    Martha J. Poole, Appellee, v. David S. Lansden, Executor, Appellant.
    1. Intoxicating liquors, § 227

      —when evidence sufficient to sustain recovery by widow for death of husband. In an action against dramshop keeper hy widow to recover damages on account of the death of her husband, caused by his intoxication which was alleged to have been produced hy sales of liquor to him by defendant, a verdict for plaintiff held sustained hy the evidence.
    2. Intoxicating liquors, § 245

      —when damages for injury to widow’s means of support not excessive. Verdict for five thousand dollars against dramshop keeper for injury to widow’s means of support caused by death of husband resulting from intoxication produced hy defendant, held not excessive,
    3. Jury, § 48

      —when county board may prepare jury list. County board may, during a term of court, meet and prepare a jury list out of which a jury may he selected for use at that term.
    4. Appeal and error, § 1502

      —when irregularity in method of selecting 'jury list not cause for reversal. Irregularity in the method of selecting jury list not cause for reversal where appellant did not exhaust his peremptory challenges and record shows he was satisfied with the jury.
    Appeal from the Circuit Court of Union county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Rehearing denied November 6, 1913.
    A. Ney Sessions, Alfred Adams, W. H. Nelms and F. P. Drennan, for appellant.
    James Lingle and Hileman & Crawford, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

This is a suit of trespass on the case, brought under the provisions of the “Dram Shop Act” (J. & A. If4609) by appellee, to recover damages on account of the death of her husband, caused by his intoxication, which intoxication is alleged to have been produced by sales of liquor made to him by appellant.

The declaration, which consists of one count, charged that the defendant on the 20th day of August, 1910, in Tamms, in the county of Alexander, was then and there the keeper of the dramshop, and that on said day sold and gave to one Edward Poole, the husband of Martha J. Poole, plaintiff, intoxicating liquors which he, the said Edward Poole, then and there drank and in consequence said Edward Poole then and there became and was intoxicated, and in consequence thereof on the said day he became and was unable to manage and control a certain team of horses, which he, the said Edward Poole, was then and there driving, while so intoxicated as aforesaid. Whereby, and in consequence of said premises, said team became unmanageable and ran away with the said Edward Poole and threw him, the said Edward Poole, with great force and violence to the ground, thereby giving to the said Edward Poole fatal wounds and injuries from which said wounds and injuries, the said Edward Poole on the 22nd day of August, 1910, died.

The declaration further alleges that said Edward Poole, on the day of his death and for a long time preceding thereto, followed the business of farmer, and derived a large income therefrom.

The trial resulted in a verdict and judgment against appellant for five thousand dollars, to reverse which appellant prosecutes this appeal. Twenty-one errors have been assigned on the record by appellant. We do not deem it necessary to consider and discuss in this opinion more than two or three of the alleged errors.

When the case was called for trial in the court below, the defendant made a motion to quash the array of jurors and the court on consideration of that motion sustained and quashed the array. The array was quashed upon the ground that the county board neglected to make up a ten per cent, list of the voters as required by section 1 of chapter 78 of the Eevised Statutes of Illinois. (J. & A. 6831.) The court was then confronted with a situation where it found itself without a panel and without a legally composed list in a box from which to draw a panel. The county board was thereupon assembled and made up the required ten per cent, list and from such list they selected one hundred names for each term of court provided for by law and placed the names so selected in a jury box. It was from this box that the panel in question was drawn by the clerk in the manner provided by the statute. It is this panel which is challenged.

It is urged by appellant that it was contrary to law for the county board to meet and prepare a jury list during the term of the court, and out of which a jury was to be selected for use at that term of court. It will be observed that section 3 of said chapter of the statute (J. & A. jf6833) provides: “If, for any reason, the list or the selection provided for in the foregoing sections of this Act shall not be made at the meeting of the board held at the time specified, such list or selection shall he made at any meeting to be held as soon thereafter as may be.” Here is found ample authority for the action of the board in providing the list and the authority of the court to recognize the legality of the selection so made.

When the first motion to quash the array was sustained the court was without a legally drawn panel of jurors. To meet such a condition section 12 of the said chapter 78 (J. & A. 6842) was enacted, containing the following: “If for any reason the panel of petit jurors shall not be full at the opening of such court, or at any time during the term, the clerk of such court may again repair to the office of the county clerk and draw in the same manner as at the first drawing such numbers of jurors as the court shall direct, to fill such panel.” Here is found ample authority for the court to direct the clerk to proceed to draw a panel of jurors, and this is what the court ordered in the ease at bar after the list had been prepared by the county board and the clerk.

It is contended further by appellant that the ten per cent, list from which the jurors were selected was taken from a list of names made out in 1909, 1910 and 1912.

The testimony of Charles L. Kimmel, county clerk, who described in detail the method pursued by the county board in making up the list, said: ‘ ‘ The names came from poll books, the majority of which were placed in boxes at the June and September meetings, 1910, perhaps some from the December meeting, 1909, and took sufficient number of names from the poll books of the November election 1912, to complete the full list of ten per cent.” Appellant contends that this method was without warrant of law, for the reason that the section 5 of said chapter 78 (J. & A. 6835) requires that the list be made every two years or sooner if the list is exhausted. Even though the method pursued in the selection of the list might technically be regarded as irregular, still it is not of that character of irregularity which could he held as prejudicial to the defendant. In the case of Siebert v. People, 143 Ill. 571, the Court said: “It is not claimed that the jury selected in the mode it was selected was prejudiced against defendants, or that they were not fair-minded men, and of sufficient intelligence to faithfully and intelligently discharge their duties as jurors, but, on the other hand, the jury seemed to be satisfactory to the defendants when taken. The defendants, in the selection of the jury, did not exhaust but a little more than one-half of their peremptory challenges. No one of the jurors selected were forced upon the defendants, but they were all voluntarily accepted. Indeed the only complaint now made is that the jury was not selected in the technical mode required by the statute, and for that reason, and that alone, the judgment should be reversed.” We cannot concur in that view. While the statute was not strictly followed in the selection of a jury, still the record fails to show that the rights of the defendants were in any manner prejudiced, and we cannot hold that the irregularity should result in a reversal of the judgment.

Again in the case of People v. Madison County, reported in 125 Ill. 334, it was held: “If it be assumed that the jury was obtained irregularly, a challenge to the array will not be sustained, where it is not also shown that a positive injury has been sustained in consequence of the refusal of the court to quash the panel. ’ ’

In the case at bar, it is not contended by appellant that his peremptory challenges had been exhausted and that he was forced to take a jury that was not to his liking. So far as this record discloses, the defendant was perfectly satisfied with the make-up of the jury. We fail to discover in this record such irregularities in the selection of the jury as to require a reversal of the case.

It is nowhere denied by appellant that he sold intoxicating liquors to appellee’s intestate, and in the face of this record it could not seriously be contended that appellee’s intestate was not in an intoxicated condition at the time he received his injury and death; and while some attempt is made to argue against the claim that the death of Edward Poole was the result of his intoxication, but that it resulted from the fact that the wheels of the wagon in which said Edward Poole was driving came in contact with "some stumps along the roadside, and that the stumps were the proximate cause of the injury, still this contention hardly deserves serious consideration. With greater earnestness and plausibility, appellant contends that the judgment is excessive.

In a case of this character, plaintiff’s right to recover must be predicated upon an injury to her means of support. Appellant contends that appellee was not injured in her means of support for the reason that her husband was a retired farmer and not actively engaged in business. The evidence shows that at the time of his death said Edward Poole was the owner of a residence in the city of Anna, which was worth between four and five thousand dollars, and that he was also the owner of that three hundred and twenty acres of land in said county of Union, which was worth in the neighborhood of thirty thousand dollars. Her interest in the house and lot on which she lived was worth probably two thousand, dower and homestead both being considered. The value of the house and lot in excess of the dower ánd homestead estate belonged to the heir.

The proof shows without controversy that the annual rental of her interest in the farms does not produce over four hundred dollars and out of this amount she must pay one-third of the taxes and repairs. The evidence shows that it would require considerably more than her income for her reasonable support, considering her station in life and the character of support given her by her husband prior to.his death. The evidence shows that her husband was sixty-two years of age at the time he was killed.

Appellant contends that one of the appellee’s attorneys, in the argument made before the jury, referred to some of the jurors by name and that his conduct in that regard was prejudical. It is also contended that the same attorney, in referring to the absence of the appellant at the trial, said: “The defendant did not have nerve enough to come here and face a jury in that case.”

Objections were made both to the reference to jurors by name and to the use of the language concerning appellant’s absence and each objection was sustained by the court. The conduct of the attorney in both particulars was highly improper.

It is not commendable for attorneys to address a juror by name while making an argument to the jury. And while the courts have not regarded such conduct in itself sufficient for reversal, it is now universally held to be highly improper. Nor can this court approve the language the attorney uesd in referring to appellant’s absence. However, before a court would be warranted in condemning such remarks, all the circumstances preceding would have to be taken into consideration. The appellant was absent. The attorney for appellant had commented on his inability to be present in such a way as to arouse the sympathy of the jury, and the language employed by appellee’s attorney was used to meet it.

It appears that much exaggeration of both fact and law was indulged in by attorneys for appellant and this was calculated to invite strong assertions from opponents. We fail to'find in this record such misconduct of appellee’s attorneys as would require a reversal. We find nothing to indicate that the verdict of the jury was a result of passion or prejudice arising from such conduct. Chicago City Ry. Co. v. Strong, 230 Ill. 58.

The record contains but brief extracts of the argument, while the trial court heard the whole arguments of attorneys. The trial court evidently saw nothing prejudicial in the conduct of appellee’s attorneys since it approved the verdict. The verdict of the trial court will therefore be affirmed.

Affirmed.