text:
    Ninian H. Welch, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 20,962.
    1. Street railroads, § 64

      —what constitutes negligence at crossing. To drive an electric car at a speed which makes it impossible to stop within less than twenty-five feet, directly alongside and past another car which is standing at a public street crossing unloading passengers is negligence, since under such circumstances a motorman should proceed slowly and cautiously and have his car under such control that it could be stopped at once.
    2. Street railroads, § 64

      —what may be relied on in operation of car at crossing. In passing behind a street car standing on one of two parallel tracks, the view of the car approaching from the opposite direction on the other track is obstructed by the standing car until the distance from a place of safety to one of danger is but a step or two, and in such case the pedestrian or passenger has a right to rely upon his sense of hearing as well as of sight and to expect the approaching car to give warning of its approach, and to observe city ordinances as to speed.
    3. Appeal and error, § 1411

      —when Appellate Court not justified in disturbing verdict of jury. Where there is sufficient evidence upon an issue of fact to warrant its submission to the jury, the Appellate Court is not justified in disturbing the verdict of the jury upon that issue unless such verdict is clearly and manifestly against the weight of the evidence.
    4. Appeal and error, § 1411

      —what is duty of court on appeal as to verdict. Where it is assigned that a verdict is against the weight of the evidence, it is the duty of the Appellate Court to examine and weigh the evidence, but that duty does not permit the court to substitute its judgment for that of the jury on a pure question of fact, unless the conclusion of the jury is palpably wrong.
    5. Appeal and ebbob, § 1411

      —when verdict will not be disturbed on appeal. Verdict as to negligence of street railway or as to contributory negligence of person struck by car while passing behind another standing car, held not manifestly against the weight of evidence.
    6. Instbuctions, § 89—when instruction as to number of witnesses not erroneous. An instruction, stating that “the fact that the number of witnesses testifying on one side is larger than the number testifying on the other side does not necessarily alone determine the preponderance of the evidence is on the side for which the larger number testified,” and also stating the matters which the jury might take into consideration in determining the preponderance of the evidence, without again referring to the number of witnesses, is not prejudicially erroneous, under the facts of this case.
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Frank L. Kriete and Watson J. Ferry, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.

      John A. Bloomingston, for appellee.

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

   Mr. Justice Fitch

delivered the opinion of the court.

By this appeal the Chicago City Railway Company, appellant, seeks to have reversed a judgment entered against it in the Circuit Court of Cook county, for $1,267.67, in favor of appellee, the administrator of the estate of Karolina Jankus, deceased, who was struck and killed by one of appellant’s street cars at the intersection of Wentworth avenue and Sixty-second street in the city of Chicago, about 6:30 a. m., on September 20, 1911. As grounds for reversal, appellant claims, first, that the deceased was guilty of contributory negligence; second, that the verdict is against the manifest weight of the evidence; and third, that the court gave an improper instruction on behalf of appellee.

The deceased was a Russian, twenty-five years of age at the time of her death, unmarried, and, prior to her death, was living with her sister on Paulina street, near Forty-fifth street, in Chicago. She was working in a factory located on LaSalle street, just north of Sixty-second street. Wentworth avenue, Paulina street and LaSalle street run north and south, and LaSalle street at Sixty-second street is a block east of Wentworth avenue." Appellant operates a double-track electric street car line on Wentworth avenue. The west track is used for southbound cars and the east track for northbound cars. These tracks are" five feet apart and cars pass about a foot from each other. On the morning of the accident Miss Jankus, in going to her work, boarded one of appellant’s street cars on Wentworth avenue in the neighborhood of her home. The car was well filled with passengers, among whom were several who were working in the same factory with Miss Jankus. The car in which she was riding stopped to let off passengers at or near the south crossing of Sixty-second street. Miss Jankus was the first to alight. She stepped down from the rear platform, and walked around the back end of the car to go east on Sixty-second street. As she stepped from behind the car that was standing at the crossing she was struck by another car coming north on the adjoining track, and was thrown to the ground. Her clothing was caught in the wheels of the front truck, and she was dragged along until the car stopped north of the north crossing. Three witnesses, who were immediately behind her when she was hit by the northbound car, testified that they did not hear any bell ringing on that car before the accident happened, that when the deceased was about on the east rail of the west track she turned her head and looked to the south, then moved forward two steps, and was struck by the car on the other track. The motorman of the northbound car testified that the deceased was hit by the “grab handle” which is located just south of the front corner of the car; but all the other witnesses who saw her at the moment of the collision testified that she was struck by the front end of the street car, near the northwest corner of the car. The motorman also testified that he was sounding his gong; that he had shut off the power of his motor before he reached the crossing, and was “drifting six or seven miles an hour with no power on”; that when he saw Miss Jankus step from behind the other car he applied the brakes and reversed the motor, coming to a stop about thirty-five feet away; that when he first saw the deceased she was ten or twelve feet away from him; that he could not stop his car within that distance when going six miles an hour; that in order to stop a car in that distance it “would have to be going about two or three miles an hour”; and that “with the reverse lever, going at a mile and a half or two miles an hour, you could stop it in from six to seven feet, or maybe a couple of feet less.” There was other evidence tending to prove that the northbound car was moving at a much higher rate of speed than seven miles an hour; but whatever the speed was, the motorman admitted that he did not have his ear under such control that he could have stopped it in less than twenty-five feet.

From this evidence, it seems clear to us that if the motorman had exercised ordinary care, under the circumstances, the accident would not have occurred. To drive an electric car at a speed which makes it impossible to stop within less than twenty-five feet, directly alongside and past another car which is standing at a public street crossing unloading passengers, is, to say the least, not a reasonably prudent thing to do. All reasonable minds must agree that ordinary care, under such circumstances, requires a motorman to proceed slowly and cautiously, and to have his car under such control that he could stop it at once, if necessary. The evidence shows that the cars passed so close to each other that the deceased could not see the approaching car until it was nearly upon her. It does not appear from the evidence that she was running, or was unmindful of her surroundings. On the contrary, the evidence tends to prove that just before she stepped in front of the northbound car she looked to the south and listened for the approach of a car from that direction. Seeing or hearing nothing, she advanced two steps and was killed.

Several cases, decided by another branch of this court, have been cited by appellant’s counsel, which seem to hold that under circumstances somewhat similar to those shown by the evidence in this case, the failure of the person injured to “stop, look and listen” before stepping from one of two parallel tracks to the other is such contributory negligence as will preclude a recovery. None of such cases holds in terms that under such., circumstances the failure of the person injured to stop, look and listen makes him guilty of negligence per se, and as a matter, of law, but in each of such cases the conclusion reached by the court is a finding of fact from the evidence.

In several of such cases, the case of Illinois Cent. R. Co. v. Batson, 81 Ill. App. 142, is cited with approval. In that case, the court, after quoting from sundry other cases in this State, said: “These authorities, and many others that might be cited, warrant the statement that while a failure to look if a train is approaching is not in law negligence per se, it is negligence in fact, if there are no conditions or circumstances which excuse looking. And a jury, without evidence of conditions or circumstances which excuse looking, when looking would disclose the danger, is not warranted in finding that such failure to look is not negligence.” Conceding this to be a fairly accurate statement of the rule in such cases, it will be seen that if in any case similar to that here involved, there is evidence of conditions or circumstances which excuse looking, when looking would have disclosed the danger, then the mere failure to look is not decisive upon the question of contributory negligence, either as a question of fact or as a question of law.

In passing behind a street car standing on one of two parallel tracks which are as near'to each other as those on Wentworth avenue, the view of a car approaching from the opposite direction on the other track is obstructed by the standing car until the distance from a place of safety to one of danger is but a step or two. In the recent case of Stack v. East St. Louis & S. Ry. Co., 245 Ill. 308, 1 N. C. C. A. 687, the plaintiff stepped off the rear platform of a car, passed around the back end of the car, and was struck by another car going in the opposite direction. There was evidence tending to prove that the ear which struck the deceased was running at an excessive rate of speed, that no gong was sounded, and that the car which struck him was within two or three feet of him as he came from behind the other car. After stating these conditions and circumstances, the court said: “It was possible for him (the plaintiff) by the exercise of a sufficiently high degree of care, to have discovered the eastbound car and not have got in its way. He had, however, a right to rely upon his sense of hearing as well as of sight, and to expect the appellant, in running its car past another car stopped for the discharge of passengers, to give warning and to observe the ordinance of the city in respect to speed. While the negligence of the appellant did not relieve the deceased from the necessity of exercising care for his own safety, it is to be considered in determining whether his conduct was such as an ordinarily prudent man might have adopted under the circumstances, and that question was properly submitted to the jury.” (Italics ours.)

It has been repeatedly held—so often, in fact, that a citation of authority is unnecessary—that where there is sufficient evidence upon any issue of fact in any case to warrant its submission to the jury, the Appellate Court is not justified in disturbing the verdict of the jury upon that issue, unless the verdict is clearly and manifestly against the weight of the evidence. Where it is assigned for error in this court that the verdict is manifestly against the weight of the evidence, it' is the duty of this court to examine and weigh the evidence; but this duty does not require nor permit this court to substitute its judgment for that of the jury on a pure question of fact, unless the court can say that the conclusion reached by the jury is palpably wrong. In this ease, the deceased was at a public crossing. Her rights there were equal to those of appellant. She was required to exercise ordinary care for her own safety, and appellant was likewise required to exercise ordinary care in the operation of its street cars to avoid injury to her. The care required of the deceased was no greater that that required of appellant. If appellant’s motorman had been exercising ordinary care, the accident would not have happened. If the deceased had used extraordinary care, doubtless the accident would not have happened. She had a right, however, as is said in the Stack case, supra, to rely upon her sense of hearing as well as of sight, and to expect the appellant, in running its cars past another ear stopped for the discharge of passengers, to give warning and to proceed with such speed as the circumstances reasonably required.

We therefore conclude that upon the facts of this case the verdict of the jury is not manifestly against the weight of the evidence, either as to the negligence of the defendant or as to the alleged contributory negligence of the deceased.

Complaint is also made that the court erred in giving an instruction, in which, after stating that “the fact that the number of witnesses testifying on one side is larger than the number testifying on the other side does not necessarily alone determine the preponderance of the evidence is on the side for which the larger number testified,” the matters which the jury may take into consideration in determining the preponderance of the evidence were enumerated, without again referring to the number of witnesses. It is true that more witnesses testified on the side of appellant than on the side of appellee, but an examination of their evidence discloses the fact that practically the same number of witnesses testified on each side as to the essential and important facts regarding the accident. For the reasons stated by Mr. Justice Scanlan in the recent opinion in the case of Christ v. Chicago Rys. Co., 191 Ill. App. 69, we think the giving of this instruction was not prejudicial error in this case.

For the reasons indicated, the judgment of the Circuit Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Pam

license: Public Domain

text:
    Joseph Damiani et al., Executors, Defendants in Error, v. Theodore Proulx, Plaintiff in Error.
    Gen. No. 20,491.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Suit by Joseph Damiani, Frank De Trana and Alexander De Trana, executors of the last will and testament of Joseph De Trana, deceased, against Theodore Proulx, to recover upon a promissory note executed by defendant, payable to the order of the said Joseph De Trana, now deceased. The statement of claim set forth that plaintiffs were the executors of the last will and testament of the said Joseph De Trana, deceased, duly appointed by the Probate Court of Cook county. It also set out the note in full, a copy of which was attached to and made a part thereof. To this statement of claim defendant, who is an attorney of law, filed an affidavit of merits wherein he did not deny the execution of the said note, but claimed to have paid on said note the sum of $50; and further, that there was due him from the said De Trana, by reason of legal services rendered and disbursements advanced, the sum of $199. Also, on the same date defendant filed a ‘ ‘ statement and affidavit of claim on set-off,” which was but a repetition of his affidavit of merits.
    No affidavit of merits was filed by the plaintiffs to this statement and affidavit of claim on set-off.
    On the trial below, before the court without a jury, the court found the issues against the defendant and assessed the plaintiffs’ damages in the sum of $359.10, and judgment for said amount was entered thereon, to reverse which the defendant has sued out this writ of error.

      Abstract of the Decision.
    1. Witnesses, § 95

      —when evidence of witness incompetent. In a suit by an executor on a promissory note payable to a deceased person, testimony of the defendant that he had paid part of the note to deceased was incompetent under Hurd’s Rev. St. 1911, ch. 51, sec. 2 (J. & A. ¶ 5519), defendant being an adverse witness on his own behalf.
    2. Executors and administrators, § 227

      —when presentation of claim necessary. In a suit by an executor on a promissory note payable to a deceased person, evidence of the defendant that he had rendered legal service to the deceased was properly excluded, since before a claim for services could be set off, the claim of defendant should have been presented to the Probate Court for allowance.
    3. Appeal and error, § 452

      —what must he proved at trial. The Appellate Court cannot take judicial notice of rules of the Municipal Court.
    4. Municipal Court op Chicago, § 13

      —what is effect of appearance and affidavit of merits. In a suit by an executor on a promissory note payable to a deceased person, where the defendant entered his appearance and filed an affidavit of merits and a statement and affidavit of claim on set-off, such appearance was in the nature of a plea of general issue, and the affidavit of merits and plea of set-off constituted notice of his defense.
    5. Executors and administrators, § 303

      —when capacity of executor to sue not put in issue. In a suit on a promissory note by an executor, where the defendant in his statement and affidavit of claim on set-off did not deny that plaintiffs had been appointed executors, such representative character of the plaintiffs was not put in issue but was admitted.
    Cyrus J. Wood, for plaintiff in error.
    Flynn & Lyon, for defendants in error.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    Joseph Fekete, Plaintiff in Error, v. Arthur Nowak, Defendant in Error.
    Gen. No. 20,522.
    (Not to he reported in full.)
    Abstract of the Decision.
    Contracts, g 387

      —token breach of contract not shown. Where a lessor of premises used for a saloon entered into a contract with the lessee by which the lessee was to buy beer from the lessor provided that “fifty per cent, of other popular brands of bottled beer” might be sold by the lessee, and such lessor claimed that there was a breach of the contract and offered to prove that the lessee had not purchased bottled beer from the lessor for two months, such offer of evidence was insufficient to show a breach of the contract, since the lessee might have had sufficient beer on hand or might not have sold bottled beer.

      Error to the Municipal Court of Chicago; the Hon. C. H. Bowles, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Action of forcible entry and detainer brought in the Municipal Court of Chicago by Joseph Fekete against Arthur Nowak, to recover possession of premises occupied as a saloon, known as No. 1959 West Grand avenue, Chicago. While the defendant and one Balazs were joined as defendants in the summons and both served, the defendant alone entered an appearance and the case proceeded to trial against him. On the trial below, the jury, under an instruction by the court, returned a verdict finding the defendant not guilty, upon which verdict judgment was entered against the plaintiff for costs, to reverse which the plaintiff has sued out this writ of error.
    Aaron Soble, for plaintiff in error.
    Max Luster, for defendant in error; J. Ambrose Gearon, of counsel.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    Warren Land Company, Appellee, v. Chicago, St. Paul, Minneapolis & Omaha Railway Company, Appellant.
    Gen. No. 20,598.
    1. Carriers, § 102

      —when carrier liable for delay. A carrier is liable for delay in the shipment of merchandise, even though increased traffic causes such delay, and the shipper knows of the increased traffic, where such carrier continues to receive shipments without giving notice that they would be accepted subject to delay.
    2. Carriers, § 102

      —that is duty of carrier when delay may be anticipated. A carrier has no right to accept shipments which the law presumes will be delivered within a reasonable time unless otherwise stipulated, when it knows or by the exercise of reasonable care should know that delay is inevitable.
    3. Carriers, § 106

      —that mil be presumed in action for delay in shipment. It will be presumed that a carrier by the exercise of reasonable care should have had knowledge of a congested condition of traffic in shipments of hay, when similar conditions existed during several years prior thereto.

      4. Carriers, § 100

      —that is not excuse for delay in shipment. Where a bill of lading provided for storage of property shipped if not removed by the consignee within a certain period, a contention of the carrier in a suit by the consignee for delay, that such delay was caused by the congested condition of the terminal tracks due to the failure of consignee to remove the goods which arrived, would not excuse the carrier’s delay.
    5. Carriers, § 110

      —what is measure of damages for delay' at common law. At common law the measure of damages in case of a delayed shipment is the difference between the market value of the goods at the time and place they should have been delivered and the value at the time and place of actual delivery.
    6. Carriers, § 108

      —when evidence as to damages for delay insufficient. In an action for delay in a shipment of hay by a carrier, where the plaintiff introduced evidence as to the value of such hay at the time and place of shipment, but gave no evidence as to the value at the time and place it should have been delivered, there was no evidence from which the jury could arrive at the proper measure of damages, and an instruction as to the measure of damages was erroneous.
    Appeal from the County Court of Cook county; the Hon. J. E. Hillskotter, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 6, 1915.
    Statement by the Court. This was an action brought in the County Court of Cook county by the Warren Land Company, appellee, hereinafter referred to as the plaintiff, against the Chicago, St. Paul, Minneapolis & Omaha Railway Company, appellant, hereinafter designated as the defendant, for damages because of delay in the arrival of four carloads of hay delivered by plaintiff to the defendant at Warrens, Wisconsin, for shipment to Chicago, Illinois, during the month of May, 1912. The declaration consisted of four counts, and the gravamen of the charge in each count was substantially the same, namely, that on certain days in May, 1912, plaintiff delivered certain quantities of baled hay for transportation to Chicago, and that the defendant did not perform its duty in regard to said shipment but negligently delayed the carriage and delivery thereof to the consignee at Chicago for a time beyond what was reasonable, whereby as a direct consequence of the said wrongful, negligent and careless conduct of the defendant, the market value of said hay greatly depreciated and declined from what it would have been if said hay had been carried and delivered by the defendant to the consignee at Chicago within a reasonable time.
    To this declaration a plea of general issue was filed, and on the trial below the jury returned a verdict in favor of the plaintiff for $265.90, upon which verdict' the court entered judgment, to reverse which defendant has prosecuted this appeal.

      Charles A. Vilas and Ira C. Belden, for appellant; .William G. Wheeler, of counsel.
    Lewis S. Eaton, for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.

On the trial below, plaintiff offered in evidence the four bills of lading covering the shipments in question, all of which were alike in form differing only as to the car numbers and quantities of hay shipped. The delay complained of in the declaration and proven by the evidence, consisted of the time that elapsed between the date of arrival of the cars upon the terminals of the Chicago & Northwestern Railway, the connecting and final carrier, and the time the cars were placed upon the team track for unloading. The dates of arrival of the cars upon the terminal of the Chicago & Northwestern Railway were stipulated. The dates of placement upon the team track for unloading were proven by the plaintiff. The plaintiff in its declaration set forth the number of days the delivery of each car was delayed. Defendant admitted the delay proven in the arrival of the cars on the terminal tracks and the time of their placement on the team track; but in explanation of this delay, offered evidence showing that during the months of May and June, 1912 (the period during which the shipment of the hay in question was made), there was an unusual and extraordinary quantity of hay shipped to Chicago over the line of the Chicago & Northwestern Railway Company; that during the said months there were from 530 to 540 cars on hand at the Chicago & Northwestern terminal at Chicago which could not be delivered to its team tracks because the latter were constantly filled to capacity. Evidence was also offered to show that no discrimination was made in favor of any other commodity shipped during this period. Certain tabulated statements and statistics were offered in evidence, and objections to their admission were sustained, and from an examination of the record, we think properly so. Such evidence was at best merely cumulative, being compilations in tabular form, of conditions with reference to the unusual and unprecedented congestion testified to by the various witnesses on behalf of the defendant.

The defendant contends that as such testimony was not contradicted, it should have been considered by the court as a complete defense to the claim of the plaintiff ; and in support thereof cites, among other authorities, several Illinois cases. These cases, however, as we read them, are so dissimilar in the facts that they can have no application to the case at bar. The court, in its instruction, placed before the jury the correct principles of law applicable to the line, of evidence offered in defense of plaintiff’s claim. In connection with this instruction, we must consider the further testimony in evidence, that this congested condition which defendant stated was unusual and unprecedented, was one which had prevailed not only during the year 1912, but also during the years 1910-1911; furthermore, there was no evidence to show that defendant had called plaintiff’s attention to this condition or had accepted the shipment subject to the delay by reason of these conditions. While defendant argues that the representative of the plaintiff in Chicago knew, of such condition and that this constituted notice to the plaintiffs, yet the decisions hold that knowledge even by the plaintiffs themselves would not bar a recovery where the carrier knowingly continues to receive shipments without notifying the shipper that the shipment would be accepted subject to delay in delivery.

■ The holding of this property by the defendant upon its terminal tracks is not unlike holding same in storage. Defendant admits that, located as these cars were on its terminal tracks, they were inaccessible, and only when placed on the team track could the consignee make disposition of the shipment for thé shipper. Defendant had no right to accept shipments (which the law presumes will be delivered within a reasonable time unless otherwise stipulated) when it knew, or by the exercise of ordinary care should have known, that delay was inevitable. And in view of the evidence that similar conditions prevailed on defendant’s terminal tracks during several years previously thereto, it is fair to presume that by the exercise of reasonable care, the defendant should have had knowledge of this congested condition. Great Western Ry. Co. of Canada v. Burns, 60 Ill. 284; Illinois Cent. R. Co. v. Cobb, Christy S Co., 64 Ill. 128.

Section 5 of the bill of lading provided as follows:

“Property not removed by the party entitled to receive it within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given may be kept in car, depot, or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier’s responsibility as warehouseman only, or may be, at the option of the carrier, removed to and stored in a public or licensed warehouse at the cost of the owner and there held at' the owner’s risk and without liability on the part of the carrier. * * *”

Therefore, the additional claim made by defendant that the congestion was due to the failure of the consignee of this particular shipment, and of consignees of other shipments, to unload the cars after they were placed upon the team track would not excuse defendant’s delay, as it had by its contract expressly provided a remedy to relieve a condition brought about by the failure of consignees to unload cars after they were placed on the team track. Even without such provision as contained in section 5 of the bill of lading, under Illinois Cent. R. Co. v. Cobb, Christy & Co., supra, delay on the part of a shipper or-his representative, in unloading cars placed on the team track, does not excuse the defendant. Every benefit that the defendant was entitled to under its evidence was given it by the court in its instruction to the jury, who, by their verdict, were evidently of the opinion that such evidence did not absolve the defendant from the negligence charged in the declaration. And after a careful examination of the record, we believe the jury were warranted in arriving at that conclusion.

Defendant, however', complains of the instruction with reference to the measure of damages, which, as given by the court in its instruction, was based upon the first paragraph of section 3, which is as follows:

“The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid) at the place and time of shipment under this bill of lading, unless a lower value has been represented in writing by the shipper or has been agreed upon or is determined by the classification or tariffs upon which the rate is based, in any of which events such lower value shall be the maximum amount to govern such computation, whether or not such loss or damage occurs from negligence.”

There can be no doubt that at common law the measure of damages, in case of a delayed shipment, is the difference between the market value of the goods at the time and place they should have been delivered and the value at the time and place of actual delivery. Plaintiff, however, contends that the parties, by section 3 of the bill of lading, provided for a different measure of damages, namely, the difference between the value at the place and time of shipment, plus the freight charges, and the value of the property at the time and place of actual delivery. Defendant insists, however, that said section 3 has no reference to any loss or damage arising from delay, but only to loss or damage sustained by the goods themselves, namely, to the substance of the property shipped; and that the measure of damages for the delay in question is the one that prevails at common law. We have already set out that part of section 3 upon which plaintiff relies in support of its contention. Defendant argues that the other paragraphs in the same section show conclusively that the loss or damage referred to in the paragraph relied upon by plaintiff does not apply to damage by reason of delay. The said section 3, after the paragraph already set out, provides as follows:

“Claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property. * * * Unless claims are so made the carrier shall not be liable.
“Any carrier or party liable on account of loss or damage to any of said property shall have the full benefit of any insurance that may have been effected upon or on account of said property, so far as this shall not avoid the policies or contracts of insurance.”

Defendant points out that the absence of the word “delay” in the paragraph relied upon by the plaintiff, and its presence in the paragraph immediately following, is an indication that the word “delay” was intentionally omitted in the preceding paragraph, because, obviously, damage occurring to a party by reason of delay cannot properly or logically be measured by the value at the point of origin. We believe there is much force in this contention. In an action for damages occasioned by delay, necessarily there must be proof of the value of the property at the time and place it should have been delivered, for, without such evidence, proof of the value of the property when actually delivered establishes nothing, for unless it appears that the value of the property at the time and place it should have been delivered was more than the value of the goods at the time of actual delivery, the delay could not have resulted in any damage. Moreover, the concluding paragraph which refers to the right of the carrier or party liable, to have the benefit of insurance effected upon or on account of said property, lends additional force to this construction. It therefore appears to us that the contention of the defendant that section 3 of the bill of lading has no application to damage caused by delay of the shipment is not only reasonable and just, but that any other construction would be inconsistent with reason and lead to confusion in arriving at the proper damages.

Plaintiff, in offering evidence as to the damages sustained by it, introduced evidence only with reference to the value of the property at the time and place of shipment, giving no evidence whatever as to the value thereof at the time and place it should have been delivered. The court, in its instruction to the jury, adopted the measure of damages contended for by the plaintiff, refusing that contended for by the defendant. Clearly, therefore, not only did the court improperly instruct the jury, but there was no evidence from which the jury could have arrived at the proper measure of damages. Klass Commission Co. v. Wabash R. Co., 80 Mo. App. 164; Byers v. Southern Exp. Co., 165 N. C. 542; Morrow v. Missouri Pacific Ry. Co., 140 Mo. App. 200. Therefore, the judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    Harry A. Rezek, Plaintiff in Error, v. Fred Grosch et al., Defendants in Error.
    Gen. No. 20,623.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Suit by Harry A. Rezek against Fred Grosch, W. L. Hoffman and Oscar Heineman to recover for the value of services alleged to have been rendered in connection with the sale of certain realty situated at the southwest corner of Armitage and Fairfield avenues in the city of Chicago. Upon the trial before the court without a jury, the' plaintiff dismissed as to the defendants. W. L. Hoffman and Oscar Heineman, and the case having proceeded against Grosch alone, the court found the issues for the defendant, in whose favor judgment for costs was rendered, to reverse which plaintiff has sued out this writ of error.
    Abstract of the Decision.
    1. Appeal and error, § 1242

      —when party cannot complain of dismissal. An order of dismissal as to one defendant cannot be reviewed when such dismissal was entered on the motion of the party complaining.
    2. Appeal and error, § 1414

      —when finding of court will not he disturbed on appeal. In an action for commissions, a conclusion of the trial court that a real estate broker had not proven his case by a preponderance of evidence will not be disturbed on appeal, it appearing that such conclusion was not clearly and manifestly against the weight of evidence.
    Gustave Neuberg, for plaintiff in error.
    Bowersock & Stilwell, for defendants in error.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    Frederick W. Grapperhaus and Reginald C. Russell, trading as Grapperhaus, Russell & Company, Appellants, v. John M. Taylor, Appellee.
    Gen. No. 20,649.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Action brought in the Municipal Court of Chicago by Frederick W. Grapperhaus and Reginald C. Russell, partners trading as Grapperhaus, Bussell & Company, against John M. Taylor for real estate commissions claimed to be due from defendant in bringing about an exchange of properties between the defendant and one Nicholas Hunt. On the trial below the jury returned a verdict in favor of the defendant, upon which the court entered judgment, to reverse which plaintiff has prosecuted this appeal.
    Abstract of the Decision.
    1. Brokers, § 93

      —what is question of fact in action for compensation. The question whether a real estate broker was the procuring cause in bringing about a transfer of property is a question of fact for the jury.
    2. Appeal and error, § 1411

      —when finding of jury not disturbed on appeal. A finding of the jury will not be disturbed on appeal unless clearly and manifestly against the weight of the evidence..
    3. Brokers, § 29

      —what broker is entitled to compensation. Where an owner of property employs several real estate brokers to sell such property, the broker whose efforts actually bring about the sale is the broker who is entitled to the commission.
    Ashcraft & Ashcraft, for appellants; Charles F. Rathbun, of counsel.
    C. D. Lee, for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    Samuel Atkins, Defendant in Error, v. William Smith, Plaintiff in Error.
    Gen. No. 20,666.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.

      Abstract of the Decision.
    1. Appeal and error, § 1414

      —when finding of trial court not disturbed on appeal. A finding of a trial court that services of a court stenographer were rendered to an attorney instead of his client will not be disturbed on appeal, it appearing that such finding was not clearly and manifestly against the weight of the evidence.
    2. New trial, § 76

      —when properly denied. A motion for new trial on the ground of newly discovered evidence is properly denied where the affidavits show that such evidence is merely cumulative, and there is nothing to show that the party, at the trial, attempted to secure such evidence, or asked for a continuance to obtain it.
    Statement of the Case.
    Suit by Samuel Atkins against William Smith for services rendered in reporting a case wherein defendant was attorney for the plaintiff. On the trial below before the court without a jury, the court found the issues for the plaintiff and entered judgment against the defendant for $19.75, to reverse which the defendant has sued out this writ of error.
    William C. Smith, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    Anna J. Smolen, Defendant in Error, v. Michael Ziemba and Mrs. Michael Ziemba, Plaintiffs in Error.
    Gen. No. 20,677.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 6, 1915.

      Abstract of the Decision.
    1. Trover and conversion, § 30

      —when demand for property alleged to he converted is necessary. In an action for the conversion of a piano, where the evidence showed that the defendants came into possession of such piano lawfully, there being no actual conversion in the form of a claim of ownership, the sale or abuse or destruction of the property, or acts amounting to an assertion of dominion over the property inconsistent with the owner’s right, plaintiff was compelled to rely upon proof of a demand for the property and refusal by the defendants.
    2. Trover and conversion, § 39

      —when conversion not shown. In an action for the conversion of a piano, evidence held insufficient to show a demand for such piano- and a refusal by the defendants to comply with such demand.
    Statement of the Case.
    Proceeding in the Municipal Court of Chicago by Anna J. Smolen against Michael Ziemba and Mrs. Michael Ziemba, for the unlawful taking and converting to their own use of a piano belonging to the plaintiff, of the value of $175. The defendants contended that the piano was kept by them at the plaintiff’s request and that the plaintiff had refused to remove it when requested. Upon the trial below, before the court without a jury, the court found the issues in favor of the plaintiff and assessed her damages in the sum of $150 and costs, for which amount judgment was entered, to reverse which defendants have sued out this writ of error.
    Jones, Kerner & Posvic, for plaintiffs in error; De Witt C. Jones, of counsel.
    No appearance for defendant in error.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    Joseph Frazer, Appellee, v. Charles Kuntzeman, Appellant.
    Gen. No. 20,777.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1414

      —when finding of trial court not disturbed on review. A finding of a court upon a question of fact where a jury is waived will not be disturbed unless clearly and manifestly against the weight of the evidence.
    Appeal from the City Court of Chicago Heights; the Hon. Charles H. Bowles, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Suit by Joseph Frazer against Charles- Kuntzeman to recover one hundred dollars paid by plaintiff to defendant for rent for the months of May and June, of certain premises owned by defendant, situated on Sixteenth street, Chicago Heights, Cook county, Illinois. The suit was originally brought before a justice of the peace. Upon trial in that court, judgment for a like amount was entered, from which an appeal was taken to the City Court of Chicago Heights, where, upon trial de novo before the court without a jury, the judgment in favor of plaintiff for one hundred dollars herein appealed from was entered.
    Robert A. Meier, for appellant; George A. Brinkman, of counsel.
    No appearance for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    Etha Gallay, Plaintiff in Error, v. August Mathis, Defendant in Error.
    Gen. No. 20,797.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded with directions.
    Opinion filed October 6, 1915.
    Rehearing denied October 15, 1915.
    Statement of the Case.
    Suit by Etha Gallay against August Mathis to recover damages for personal injuries sustained as a result of being run down by an automobile owned and operated by the defendant. The statement of claim set forth a cause of action and subsequently the defendant filed his appearance in said cause by his attorney, and demanded a trial by jury. The following day, on motion of the defendant, an order was entered that the time within which to file an affidavit of merits in said cause be extended five days. Seven days later, judgment by default was entered against defendant because of Ms failure to file an affidavit of merits within the time allowed by the court. A jury was impaneled and sworn, who, after hearing the evidence and arguments of counsel, returned a verdict assessing plaintiff’s damages in the sum of $1,000, upon which verdict the court entered judgment. The record further shows that on the hearing, defendant was neither present nor represented. More than sixty days after judgment was entered, a motion was made by the defendant, through Ms attorney, to vacate and set aside the said judgment, but this motion was denied by the court. Later, defendant filed a sworn petition praying that leave be given the defendant to. file an affidavit of merits instanter. Upon the hearing on this petition, both parties being represented, the court entered an order setting aside the judgment and granting defendant leave to file an affidavit of merits instanter. To procure reversal of this order, this writ of error has been sued out.
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 19

      —when default judgment may he set aside. Under section 21 of the Municipal Court Act (J. & A. ¶ 3333), when thirty days have elapsed after entry of a judgment, such court can obtain jurisdiction only by a motion to vacate the judgment upon proof of errors of fact riot appearing of record, which would be in the nature of a writ of error coram nohis at common law, or by petition in the nature of a bill in equity showing equitable grounds for vacation of the judgment.
    2. Judgment, § 142

      —when affidavit insufficient to warrant setting aside of judgment. An affidavit to set aside a judgment stating that neither defendant nor his attorney bad notice that a default would be applied for, or that damages would be ordered, does not confer jurisdiction on a court of chancery to entertain a bill to vacate a judgment.
    3. Municipal Court of Chicago, § 19

      —what is nature of proceeding to vacate default judgment. A proceeding to vacate a judgment of the Municipal Court is in the nature of a bill in equity, and the facts essential to confer jurisdiction upon a court of chancery must be stated positively and are not sufficiently set forth where they are merely stated to be on information and belief.
    4. Appeal and error, § 710

      —what is effect of record as to facts shown. A record of the Municipal Court showing affirmatively that no affidavit of merits was filed imports verity.
    5. Municipal Court of Chicago, §19

      —when court is without jurisdiction to vacate judgment. Where a petition to vacate a default judgment does not account for the failure of defendant to file an affidavit of merits within the time allowed, and does not explain why a motion to vacate the judgment was not made within the statutory period of thirty days, the Municipal Court is without jurisdiction to enter an order vacating the judgment.
    6. Appeal and error, § 1083

      —when cross-errors cannot he considered on appeal. Where a writ of error is directed to an order vacating a default judgment, cross-errors as to error of the court in entering the original default cannot be considered, they being the proper subject-matter of a separate writ of error.

      Jacob Levy, for plaintiff in error; Josiah Burnham, of counsel.
    Brundage, Landon & Holt, for defendant in error.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    Edward E. Betts, Appellee, v. Homer G. Tate, Appellant.
    Gen. No. 20,827.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1411

      —when verdict will he set aside on appeal. In an action for fraud and deceit in the sale and purchase of real estate, a verdict for the plaintiff' is clearly and manifestly against the weight of the evidence, when it appears that no material false representations were made, and that the plaintiff did not rely upon such statements as were made.

      Appeal from the County Court of Cook county; the Hon. Isaac Hudson, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Action on the case for fraud and deceit alleged to have been practiced by Homer G. Tate, the defendant, upon Edward E. Betts, the plaintiff, in the purchase by defendant from plaintiff of certain real estate valued at $900, the fraud alleged being in inducing plaintiff to accept a note of one Dalbey for $364.25 as part payment óf the purchase money for the real estate. On the trial below the jury found the defendant guilty and assessed the plaintiff’s damages in the sum of $364.25 plus interest from the date of the note, May 3, 1912. Upon this verdict the court entered judgment against the defendant for the sum of $364.25 and costs, to reverse which the defendant has prosecuted this appeal.
    Charles V. Clark, for appellant.
    E. L. Gary and A. J. Deutschmann, for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    William C. Gorman, Appellant, v. May Gorman, Appellee.
    Gen. No. 20,840.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Divorce, § 53

      —when dismissal of divorce hill, proper. The dismissal of a bill for divorce for want of equity, on the charge of adultery, is not clearly and manifestly against the weight of the evidence, where it appears that the court stated that he did not believe the plaintiff’s witness, and the testimony of plaintiff was thus left uncorroborated.
    2. Divorce, § 53

      —when refusal to allow additional evidence is error. On appeal from a decree dismissing a bill for divorce, where the record showed that the trial court stated that complainant had testified that he had deserted his wife, but did not show evidence warranting such statement, the action of the court in refusing to allow the introduction of additional testimony was erroneous, as depriving the plaintiff of a fair and impartial hearing.

      Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Bill for divorce brought by William C. Gorman against May Gorman, on charges of desertion and adultery. The defendant made no appearance and was defaulted. At the hearing the bill was dismissed for want of equity and this appeal followed.
    Charles S. McNett, for appellant.
    No appearance for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    Theresa Hamill, Administratrix, Appellee, v. Peter Territilli et al., on appeal of City of Chicago, Appellant.
    Gen. No. 20,855.
    1. Master and servant, § 836

      —when servant not independent contractor. Under a contract whereby a city had the right to inspect and approve not only the material and labor but also the tools, appliances and methods used by a contractor, the foremen! of the contractor were compelled to obey the orders o'f the city engineer, the city had the right to dismiss employees who did not obey instructions as to carrying out the contract, and the city reserved the right to make alterations in the plans, the contractors were not independent contractors but servants of the city within the rule as to the doctrine of respondeat superior.

    2. Master and servant, § 836

      —what is immaterial in determining whether person is independent contractor. Under a contract whereby a contractor was a servant of a city, since the city retained the control and supervision of the work, it was immaterial that such control was not actually exercised.
    Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Statement by the Court. This is an action on the case by Theresa Hamill, administratrix of the estate of William Hamill, deceased, against Peter Territilli, Ole Scully and the City of Chicago, for their alleged negligence in causing the death of the intestate. On the trial of the case below the jury returned a verdict ’ against the three defendants in the sum of $8,00.0, upon which verdict the court rendered judgment, and from this judgment an* appeal has been prosecuted by the City of Chicago alone, whom we shall hereafter designate as the appellant.
    The intestate, at the time of his death, was employed by Territilli & Scully in laying a sewer pipe in the bottom of a trench which was being dug by the said Territilli and Scully under a contract with the appellant. The intestate met his death by the caving in of one side of the trench in which he was working. The negligence charged is that the walls or sides of this trench were inadequately braced, as a result of which the west wall caved in for a distance of fifteen or twenty feet while the intestate was working in the bottom of the trench, injuring him so severely as to cause almost instant death.
    John W. Beckwith and N. L. Piotrowski, for appellant; David R. Levy and Matthew J. O’Brien, of counsel.
    Gorman, Pollock, Sullivan & Livingston, for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.

There is no controversy on any question of fact, the only question for review being one of law as to the construction of the contract between the said Territilli and Scully and the appellant, under which the work was being done at the time plaintiff’s intestate met his death. Both in the brief filed and in the oral argument made before this court, counsel for the appellant admitted that the only question in the case was whether or not, under the contract of employment, the relationship existing between Territilli and Scully and the appellant was that of independent contractor or that of master and servant, and further asserted that this question must be determined solely from the written contract offered in evidence. Appellee concurs in this statement as to the issues involved, and as we view the facts in the case, under the rule as laid down in Pioneer Fireproof Const. Co. v. Hansen, 176 Ill. 100, and in Foster v. City of Chicago, 197 Ill. 264, we are of a similar opinion.

Appellant strongly contends that under the contract of employment Territilli and Scully were independent contractors for whose negligence it was not responsible, while appellee urges the contrary.

In its brief and oral argument appellant has placed great reliance in the case of Foster v. City of Chicago, supra, which is also reported in 96 Ill. App. 4. In the course of the decision of the Appellate Court, which was adopted as the per curiam decision of the Supreme Court, it was said (p". 7):

“The general rule is stated by Bishop on Noncontract Law, sec. 602, to be that ‘a contractor who simply undertakes to bring about a result after his own methods is not a servant’ of his employer, and the latter is not liable for such contractor’s negligence; while on the other hand, one ‘who, though he is to have a stipulated price for a thing, executes it under the direction and superintendence of the employer,’ is a servant, and the employer is liable to third persons injured by the negligence of such a servant.”

And the court further stated in the course of its opinion (p. 7):

“The liability of the city, therefore, depends mainly upon the contract—whether or not, by the written agreement, the work in doing which appellant’s intestate lost his life was done under the direction and superintendence of the city, in such sense as to make the latter liable. ’ ’

In that case the court held that the relationship of independent contractor existed and that the city was not liable. Appellant, in urging that the Foster case, supra, controls in the case at bar, calls the attention of this court particularly to the similarity of facts in both cases; and our examination of the facts shows that the circumstances and manner of the accident are almost identical. While appellant further argues that the contracts in both cases are practically the same, we are of a contrary opinion. Appellee, however, insists that our Supreme Court, in City of Chicago v. Murdock, 212 Ill. 9, has adopted a different construction of the contract in issue in Foster v. City of Chicago, supra. In order to determine whether or not such was the effect of the decision in City of Chicago v. Murdock, supra, we have carefully examined the contracts offered in evidence in both the Foster and Murdock cases, supra, and find that they are in fact identical. While it is true that in the Murdoch case the court held that the doctrine of respondeat superior applied because the work performed under the contract was inherently dangerous, yet the court also held that the contract clearly showed upon its face that the city of Chicago retained, through its commissioner of public works, absolute control and supervision of the work, and the manner in which it should be performed. In arriving at this conclusion, the court in the course of its opinion, stated:

“Upon looking into the contract between the city of Chicago and the contractor, Duffy, we find that it was signed by W. D. Kent, commissioner of public works, on behalf of the city, and contains, among other provisions, the following: ‘All of the material used in said work, manner, time and place of doing same, together with all things therewith connected, must be in each and every particular satisfactory to the commissioner of public works of said city. Said work shall be done in accordance with plans prepared for the doing of the same. * * * Said work shall be commenced on or before the first day of October, A. D. 1895, shall progress regularly and uninterruptedly after it shall have been begun, except as shall be otherwise ordered by the commissioner of public works,’ etc. ‘Should the commissioner of public works deem it proper or necessary, in the execution of the work, to make any alterations which shall increase or diminish the expense, such alterations shall not vitiate or annul the contract or agreement hereby entered into, but the said commissioner shall determine the value of the work so added or omitted, such value to be added to or to be deducted from the contract price as the case may be. And the said party of the first part covenants and agrees to perform all of said work under the immediate direction and superintendence of the commissioner of public works of the city of Chicago, and to his entire satisfaction, approval and acceptance. All material used and all labor performed shall be subject to the inspection and approval, or rejection, of said commissioner, and the said city of Chicago hereby reserves to its commissioner of public works the right finally to decide all questions arising as to the proper performance of said work. ’ In short, the contract clearly shows upon its face that the city retained, through its commissioner of public works, the absolute control and supervision of the work and the manner in which it should be performed. Therefore, under the foregoing decisions (City of Chicago v. Joney, 60 Ill. 383, and City of Chicago v. Dermody, 61 Ill. 431, supra), Duffy was not an independent contractor, and for his negligence the doctrine of respondeat superior must apply. ’ ’

The very language in the contract quoted by the court in the Murdock case, supra, was construed in the Foster case, supra, by Judge Freeman of the Appellate Court as merely reserving to the city the right to generally supervise the work so as to insure compliance with the contract and to obtain the result called for thereby. The opinion in the Murdock case is apparently adhered to in the case of Boyd v. Chicago & N. W. Ry. Co., 217 Ill. 332, wherein the court said:

“Plaintiff in error insists the railway companies are liable under the decision in the City of Chicago v. Murdock, 212 Ill. 9, on the ground that the Chicago and Northwestern Railway Company retained control and direction of the work. In that case the work was intrinsically and inherently dangerous, and in such a case the rule of respondeat superior applies although the work is done by an independent contractor. The commissioner of public works also had control of the manner and method of doing the work, with power to inspect, approve or reject all material and labor and to make alterations in the work.”

Had the contract in the case at bar contained only provisions similar to those set forth in the contracts in the Foster and Murdock cases, supra, the said Territilli and Scully, under the decision of the later case, must be considered not as independent contractors, but as servants of the appellant, for whose negligence it is liable. However, a comparison of the contract in the case at bar with those in the Murdock and Foster cases shows that the contract now before us contains not only all the provisions construed in the aforementioned cases, but contains, in addition, others increasing and augmenting the power of the appellant to control and supervise the work to be performed thereunder. In the Murdock and Foster cases the contracts provided that “all material used and all labor performed shall be subject to the inspection and approval or rejection, of said commissioner, and the said City of Chicago hereby reserves to its commissioner of public works the right finally to decide all questions arising as to the proper performance of said work,” while in the case at bar the contract further provided that “all appliances, tools and methods used shall also be subject to the inspection and approval of the said board of local improvements.” (Italics ours.) In addition, the contract in the case at bar provides:

“The contractor shall employ capable superintendents or foremen to represent him on the work, and they shall receive and obey orders from the engineer.” (Italics ours.)
“The Board of Local Improvements shall have authority to order the dismissal of any employee on the work who refuses or neglects to obey any of its instructions relating to the carrying out of the provisions and intent of these specifications, or who is incompetent, unfaithful, abusive, threatening or disorderly in his conduct, and such person shall not be again employed on the work.”

Appellant, under this contract, had the right to inspect and approve not only the material and labor but also the tools, appliances and methods used. The foremen of Territilli and Scully were compelled to obey the orders of the engineer of appellant. Appellant also had the right to order the dismissal of any employee who refused or neglected to obey any of its instructions relating to the carrying out of the provisions and intent of the specifications which under the contract were a part thereof; moreover, appellant reserved to itself the right to make any alterations in the plans and specifications it deemed desirable or necessary, and such change would not annul or vitiate it. Clearly, therefore, under the contract in the case at bar, tested in the light of the decisions, it must be held that appellant did retain the absolute control and supervision of the work and the manner in which it should be performed. The fact that this right of control was not exercised is immaterial; it is sufficient that the right existed.

“The absolute test is not the exercise of power of control, but the right to exercise power of control. * * * Although the trustees should be across the Atlantic, nevertheless, * * * if they retained the power to control and direct the work, they would be liable; because it is the possession of the right of interference, the right of control, that puts upon a party the duty of seeing that the person who stands in that relation does his duty properly. If they have retained to themselves the right of directing the mode of doing the work, then, if the work is done wrong, the simple principle is that they are responsible.” Linnehan v. Rollins, 137 Mass. 123. To the same effect are 16 Am. & Eng. Encyc. of Law, p. 186; 26 Cyc. of Law and Proc. p. 1547, and Moll on Ind. Cont. & Emp. L. P. 43. “The relation of master and servant does not cease ‘so long as the master reserves any control or right of control over the method and manner of doing the work, or the agencies by which it is to be effected.” Speed v. Atlantic & P. R. Co., 71 Mo. 303.

We are therefore of the opinion that Territilli and Scully were hot independent contractors but the servants of the appellant, and for their negligence the doctrine of respondeat superior must apply.

Finding no reversible error, the judgment will be affirmed.

Affirmed.


text:
    Charles A. Phelps, Appellee, v. Thomas M. Hunter, Appellant.
    Gen. No. 20,889.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment, § 170

      —what constitutes rendition. The rendition of a judgment is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and verdict.
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and judgment here.
    Opinion filed October 6, 1915.
    Rehearing denied October 15, 1915.
    Statement of the Case.
    Action of replevin by Charles A. Phelps against Thomas M. Hunter, bailiff of the Municipal Court of Chicago. From a judgment for .plaintiff, defendant appeals.
    Emery S. Walker and Charles M. Ruth, for appellant.
    Arthur L. Ballas, for appellee.

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

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

   Mr. Justice Pam

delivered the opinion of the court.

2. Judgment, § 232 —what constitutes entry. The entry of a judgment is a ministerial act which consists in spreading it upon the record or writing it at large in a docket or other official book.

3. Municipal Court of Chicago, § 19 —how judgment evidenced. A judgment of the Municipal Court of Chicago is evidenced not by an order, as entered on half sheets, but by the order as spread out on the record by the clerk.


text:
    Margaretta Killham et al., Appellees, v. James Chaloupka, Appellant.
    Gen. No. 20,904.
    (Not to be reported, in full.)
    Appeal from the Superior Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Action of trespass on the case by Margaretta Kill-ham, Mabel Killham, Mary Killham, George Killham, Henry Killham, Sarah Killham, Ethel Killham, Raymond Killham and Alfred Killham, minors suing by their mother, Margaretta Killham, as next friend, against James Chaloupka, under the Dramshop Act, sec. 9 (J. & A. ¶ 4600-4655 inc.), to recover damages for injuries to their means of support by reason of the intoxication of George Killham, husband and father of said plaintiffs, caused in whole or in part by the sale to him of intoxicating liquors by the defendant. From a judgment for plaintiffs for $1,500, defendant appeals.
    The evidence offered on behalf of • the plaintiffs showed that George Killham, the husband and father of the plaintiffs, commencing in the year 1906, had for five years been employed by the federal government in the post-office department, at first receiving an annual salary of $600, which was gradually increased until the summer of 1911, when he was receiving $1,100 per year; that if the said George Killham had continued in Ms position another year Ms salary would have been increased to $1,200 per year; that during said period he was in the habit of frequenting the saloon of the defendant, buying liquor and becoming intoxicated thereby; that by reason of said intoxication he was, during these various years, absent from his work a great part of the time, during some years being absent as much as two or three months; that according to the records of the post office, admitted in evidence on behalf of the defendant, Killham was absent from work 242% days, whereby he lost in pay the sum of $654, which record further showed that in the year 1911 alone, up to August 19th, when Killham resigned from the service, he was absent 99 days, 60 of which were immediately prior to Ms resignation; that the said Killham, when asked why he resigned, testified:
    “Why, I was not able to work. I was—my nerves was all gone from drinking and I thought it best to resign because I thought I would get discharged anyway.”
    The evidence further showed that it was customary for him to turn all his money over to Ms wife, with the exception of a few dollars which he withheld to defray personal expenses; that at the time suit was brought, all the children who are plaintiffs in this action were minors, but that one had become of age prior to the time of the trial of the case; that notice had been served upon the defendant by Mrs. Killham early in 1908, and on several occasions thereafter, not to sell her husband intoxicating liquors; that during the year 1908 Gertrude Ivers, a daughter of George Killham, had read to defendant a notice in writing not to sell George Killham any intoxicating liquors. The testimony, of the plaintiffs also shows that from December 24,1913, up to the trial of tliis case, May, 1914, he contributed to the support of the plaintiffs the sum of only $18; that during September, 1913, he was in a place known as the Washingtonian Home; and that Margaretta Killham, his wife, and one of the plaintiffs worked two days each week doing general housework to support herself and family, and was also compelled to accept assistance from the United Charities and the county authorities.
    Defendant, testifying in his own behalf, disclaimed any acquaintance with Killham before the spring of 1909, and stated further that while in his saloon, Kill-ham never drank to excess; that he never at any time sold him enough liquor to produce intoxication, nor did he recollect ever having seen Killham inebriated. He denied ever having seen Mrs. Killham at his place of business or that he had ever received any notice from either her or anyone else, not to sell liquor to the said Killham. He further testified that the first time he received or heard of any such notice was in 1911, about three weeks before the beginning of this suit, when defendant’s partner, one Taluzek, told him that notice had been given, following which no more liquor was sold to Killhaim
    Taluzek, the partner, testified that Killham never took more than a few small drinks at any one time, and that he never saw Killham intoxicated either in the saloon or elsewhere, and that the first time he received notice not to sell Killham any liquor was. in August, 1911. Another witness, who at one time tended bar in defendant’s place for about three weeks, and who lived in the neighborhood, stated he had never seen Killham drink to excess in the saloon of defendant, nor had he ever seen him intoxicated at any time, but that he had often seen Killham take two or three small drinks of liquor in the morning.
    The defendant complained of the following instruction:
    “The court instructs the jury that if they find from the evidence that plaintiff, Margaretta Killham, did serve notice on defendant, or any of his agents, asking defendant not to sell liquor to her husband, George E. Killham, and that defendant failed to comply with said notice, then if you find from the evidence that plaintiffs are entitled to damages you may assess exemplary damages for the failure of defendant to comply with said notice.”
    Abstract of the Decision.
    1. Intoxicating liquors, § 1ST

      —when minor children entitled to recover under Dramshop Act. Minor 'children are entitled to recover damages for injuries to their means of support by reason of the intoxication of their father under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), although the mother is able to support them, as the act is intended to protect the family of a drunkard against immediate or probable want of support.
    2. Intoxicating liquors, § 208

      —what evidence not admissible in action under Dramshop Act. Evidence that a drunkard frequented other saloons is inadmissible on the question of damages, in an action by the wife and children for damages for injuries to their means of support by reason of intoxication, under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), where the wife objected to the sale of intoxicating liquors to the husband, as an action may be maintained against one or all of the persons selling intoxicating liquors to a drunkard for the entire loss, and a recovery and satisfaction against one constitutes a bar to a recovery against another who may have contributed in causing the same intoxication.
    3. Judgment, § 460

      —judgment under Dramshop Act against one liquor seller as bar to judgment against another. A recovery and satisfaction against one person selling liquor to a drunkard, in an action by the wife and children for damages for injuries to their means of support, under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), constitutes a bar against another who may have contributed in bringing about the same intoxication.
    4. Intoxicating liquors, § 189

      —liquor sellers’ joint and several liability under Dramshop Act. Under the Dramshop Act (J. & A. ¶ 4609), the wife and minor children of a drunkard have the right to sue either one or all of the persons who sold the husband and father intoxicating liquor, for damages for the entire injury to their means of support.

      Lackner, Butz, von Ammon & Johnston, for appellant.
    Samuel W. Norton, for appellees.

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

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same tonic and section number.

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

   Mr. Justice Pam

delivered the opinion of the court.

5. Intoxicating liquors, § 232 —inequality of interest of plaintiffs in damages recoverable in action under Dramshop Act. The amount of damages recoverable in a joint action by the wife and children of a drunkard, under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), is not limited to the period that all the plaintiffs have an equal interest in the whole of the recovery, and even if one of the children marries and is no longer dependent upon the father, the jury may determine from the evidence the extent to which each of the plaintiffs is injured up to the time of trial, and return a verdict for the gross amount.

6. iNtoxicating liquors, § 232 —damages recoverable in action under Dramshop Act not required to have accrued prior to bringing of action. In an action by the wife and minor children of a drunkard for damages for injuries to their support, due to the intoxication of the husband and father, under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), a recovery may be had for all damages accruing to the plaintiffs which naturally and proximately proceeded from such intoxication, although a part thereof accrued after the commencement of the suit.

7. Intoxicating liquors, § 251 —when instruction in action under Dramshop Act not prejudicial. In an action by the wife and minor children of a drunkard, under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), for damages for injuries to their means of support due to the intoxication of the husband and father, an instruction to the effect that although the evidence as to damages resulting from injury to the plaintiffs’ means of support were indefinite, still the jury should establish the damages from such evidence pertaining thereto as was before them, held not to be prejudicial in the light of other instructions, and because of the fact that the amount of the verdict showed that the jury did not speculate as to the damages.

8. Intoxicating liquors, § 250 —when instruction in action wilder Dramshop Act not misleading. In an action by the wife and minor children of a drunkard, under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), for damages for injuries to their means of support due to the intoxication of the husband and father, an instruction to the effect that if the jury found from the evidence that the wife served notice on the defendant or his agents not to sell liquors to the husband and that defendant failed to comply with said notice, then, if they found from the evidence that the plaintiffs were entitled to damages, exemplary damages might be assessed for failure to comply with said notice, held not misleading as authorizing the awarding of exemplary damages although no actual damages resulted after the giving of the notice, because of the fact that the word “actual” was omitted before the word “damages.”

9. Intoxicating liquors, § 249 —ichen instruction in action under Dramshop Act not prejudicial. In an action by the wife and minor children of a drunkard, under the Dramshop Act, sec. 9 (J. & A. ¶ 4609), for damages for injuries to their means of support due to the intoxication of the husband and father, an instruction to the effect that there could be a recovery for injuries to the person as well as to the means of support, held not prejudicial where the court in eighteen other instructions had charged the jury that a recovery could be had only for damages for injuries to their means of support.

10. Intoxicating liquors, § 245 —when verdict in action under Dramshop Act not excessive. In an action by the wife and minor children of a drunkard, under the Dramshop Act, see. 9 (J. & A. ¶ 4609), for damages to their means of support due to the intoxication of the husband and father, a verdict for $1,500 held not excessive.

11. Appeal and error, § 1411 —when verdict on conflicting evidence will not be disturbed. Where there is a conflict in the evidence, the verdict of the jury on questions of fact will hot be disturbed unless such verdict is manifestly and clearly against the weight of evidence.