author: Mr. Presiding Justice Holdom

text:
    John B. Edwards, Trustee, Appellant, v. Schillinger Brothers Company, Appellee.
    Gen. No. 14,978.
    1. Bankruptcy—liability of preferred creditor. A creditor who has been unlawfully preferred, upon demand of the trustee should return the property received to the situs of the bankrupt within the jurisdiction of the court exercising jurisdiction of the estate.
    2. Assumpsit—when lies by trustee in bankruptcy. Assumpsit lies by a trustee in bankruptcy to recover goods delivered to a creditor of the bankrupt by way of unlawful preference—the action of tort is, however, the usual remedy adopted.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 17, 1910.
    Hoyne, O’Connor & Irwin, for appellant; Harry D. Irwin and Carl J. Appell, of counsel.
    McCaskill & Son, for appellees.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment, rendered on an instructed verdict, of nil capiat and for costs.

This action is brought by plaintiff as trustee in bankruptcy of Schillinger Brothers Asphalt Company, which had been duly adjudged a bankrupt by the District Court of the United States for the Eastern District of Missouri, under sections 60b and 67c of the Federal Bankruptcy Act of 1898, to recover the value of certain property conveyed by the bankrupt to the defendant within four months of the filing of the petition in bankruptcy, with the intent and purpose of hindering, delaying and defrauding its creditors.

The bankrupt and defendant were both corporations, the defendant having its principal office in Chicago and the bankrupt in St. Louis. G. A. Schillinger was the principal stockholder in both corporations, and in August, 1902, after an examination of the bankrupt’s affairs in St. Louis, pronounced it in his own expressive way, a “busted community,” which expression being interpreted meant that he had come to the conclusion that the bankrupt corporation was insolvent. And such conclusion was the only one that he could reasonably have arrived at from the conditions which his examination must have disclosed. On October 6, 1902, a petition to have the bankrupt corporation declared a bankrupt was filed, and thereafter an adjudication of bankruptcy entered. The schedules of the bankrupt show indebtedness of $9,166.66, with assets valued at $4,301.04. On August 1, 1902, the bankrupt was indebted to defendant for goods sold and delivered, $4,445.53. At no time since that date was the bankrupt’s assets sufficient to pay or discharge its debts. On September 15, 1902, the bankrupt transferred to defendant, and defendant received, certain assets and property of the bankrupt valued at $2,316.25, for the purpose of applying the same partly upon its indebtedness to defendant. The bankrupt knew it was insolvent at the time, and intended by such transfer to give defendant a preference over its other creditors, and defendant received such property with the intent to secure a preference and with knowledge of the insolvency of the bankrupt corporation. By arrangement between these parties the defendant was to pay a note of the bankrupt for $225 and give it credit on its account for $1,653.25. The property consisted of engines, machinery, concrete mixer, asphalt pans, etc., and was shipped to defendant and received by it at Chicago. On February 25,1903, Edwards as trustee demanded of defendant the goods received by it from the bankrupt, which defendant informed Edwards, through its counsel, he might have if he would go to Joliet, Illinois, and Battle Creek, Michigan, and some other places to which the property had been taken, and get it. Defendant admits that the property has not been returned to plaintiff. This action was brought to recover the value of the goods constituting the unlawful preference. Plaintiff urges that the action of assumpsit is the appropriate action; that while a tort action was maintainable, the tort might be waived and the value of the goods recovered in an assumpsit action; that under the proofs plaintiff was entitled to a judgment for the value of the goods which constituted an unlawful preference.

Defendant’s counsel complain that the abstract is not prepared in compliance with the court’s rules, and that the cause should be affirmed for want of a sufficient abstract. The abstract is in many respects meagre and not in accord with the rule, but not sufficiently violative of the rule to justify the court in ignoring the merits and arbitrarily affirming what we have concluded is an erroneous judgment. It is not seriously disputed that the preference was made as charged in the declaration and that defendant knew of the insolvency of the bankrupt corporation at the time and received the goods as payment on its account in violation of the Bankrupt Act, supra.

Plaintiff being entitled to receive back the goods so transferred to defendant by the bankrupt, they should have been delivered to him under the demand made. Failure to do so constituted a conversion of the property to defendant’s own use. Nor was plaintiff • required to go around to one place and another wherever defendant had seen fit to deport the goods, and gather them up; but defendant was obligated to return them to the place from which it had unlawfully taken them, and where the bankrupt had its situs and the bankruptcy court in which the bankrupt estate was being liquidated exercised its jurisdiction.

The Bankruptcy Act supra vested in the'trustee the right to recover the property or its value from the person receiving it as an illegal preference within the meaning of the Act. Tort undoubtedly was an appropriate action, and is the most usual course of procedure in such cases. Still such remedy was not intended to be exclusive of all others. Plaintiff might elect as to which form of action he would pursue for the remedy which the Act confers. City of Elgin v. Joslyn, 136 Ill. 525, supported as it is by many other cases since decided, is, we think, conclusive of the right. The court lay down the rule that “Where one wrongfully takes the goods of another and applies them to his own use, the owner may waive the tort and charge the wrong doer in assumpsit on the common counts as for goods sold or money received.” Shober v. Schedler, 63 Ill. App. 48; Ward v. Montgomery, 67 ib. 346; T. W. & W. Ry. Co. v. Chew, 67 Ill. 378.

The demand for the goods was necessary in the first instance, for if the defendant had complied with the demand by returning the goods it would have discharged itself from further liability; but not having returned the goods in response to such demand, it became liable to plaintiff for their value in any form of action in which a judgment for such value could be maintained. Nor was such demand an election to proceed in any particular form of action, either for the recovery of the goods or their value. Failure to deliver left plaintiff free to proceed for their value either by a tort action or an assumpsit suit. Even had an action in tort been first instituted, after its discontinuance plaintiff would have had the right to prosecute an assumpsit action as freely as he would in the first instance. After dismissal of the tort action he would have had the same right to proceed as was open to him before the institution of such tort action. But the assumpsit suit before us is the only action ever brought. Stier v. Harms, 154 Ill. 476; Gibbs v. Jones, 46 ib. 319; Flower v. Brumbach, 131 Ill. 646. There is nothing inconsistent between tort &nd„assumpsit where the value of property is sought to be recovered. Oonsequently the doctrine of election has no application. In its broad sense an election operates as an estoppel; but there is nothing in this case estopping plaintiff from maintaining at any time an appropriate action by which the value of the goods is recoverable. First Nat. Bank v. Barse Com. Co., 198 Ill. 232; Bradner v. Williams, 178 ib. 420.

The judgment of the Superior Court will, for the reasons indicated, be reversed and the cause remanded for a new trial.

Beversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    John Todd, Appellee, v. Oscar Daniels et al., Appellants.
    Gen. No. 14,984.
    1. Evidence—effect of admission of counsel. An admission pf counsel made in open court with respect to the issues of a pending cause, has the same force and effect as testimony.
    2. Negligence—what relieves injudicious act from imputation of. An emergency order necessarily given on the spur of the moment in an effort to avoid an accident, though injudicious, is not subject to the imputation of negligence because of the lack of time to form a correct judgment.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed.
    Opinion filed March 17, 1910.
    Statement by the Court. The action is case for personal injuries, and the relation of the parties at and prior to the accident in which plaintiff was injured was that of master and servant. Plaintiff was working in the* capacity of “hoisting engineer” for defendants, who were engaged in erecting a bridge across the Iowa river near Curtis, in the State of Iowa. Todd was in charge of an engine which was operating a boom derrick on a car which was on a railroad track. At the time of the accident plaintiff was engaged, under a foreman whom he alleges was not a fellow servant, in hoisting a certain iron beam weighing about 16 tons. The declaration charges that the foreman directed plaintiff to a point where the track was on an embankment, to lift the beam, that he did so with the “hoisting machinery;” that the car carrying the machinery was moved a short distance down an incline in the track; that by reason of the beam being carried down the incline, and for other reasons not averred specifically, it is charged that the beam swung back and forth on its supporting cable; that in this situation the foreman gave plaintiff a signal to suddenly lower the beam; that it was the duty of defendants to furnish plaintiff a reasonably safe place in which to work; that defendants wholly failed to do so, and carelessly, etc., ordered plaintiff to lower the beam when it had swung beyond the embankment upon which the car was resting, which plaintiff did in obedience to said order, and that the beam then and there, by reason of being lowered beyond the centre of gravity of the car and derrick, jerked the derrick and car and turned them over on their sides and threw plaintiff with force, etc., to the ground, under the machinery and derrick, whereby he was injured.
    An eye witness of the accident testified that after the train crew picked up the girder the car was started out toward the piers; that when they reached the trestle, the girder being out over the trestle, a strong wind was blowing from the south and caught the girder; that two men who had hold of the head of the girder held it in position, but the men in the rear of the girder were unable on account of the force of the wind to hold their end in position and it swung toward the east over the end of the bridge so far as to cause the car to “cant” over and raise its wheels from the track on the west side; then the car foreman gave an order to plaintiff to lower the load, which he did. At the time this order was given one end of the girder had gone so far to the east that when it dropped it struck on one of the pile caps, where it rested a moment. The car then righted and the girder started downward, when suddenly the cable became taut, when the girder was about ten feet from the ground. The boom was in such a position that the weight thrown upon it by the girder overturned the car. Plaintiff had under his management all the machinery controlling the raising, lowering and stopping the load. The cables, derrick and machinery were all in .good condition just before the accident and the cable did not break. Another witness testified that at the time of the accident he was operating a “nigger head” on the car which was being used to propel the car forward, ropes being attached to the trestle work ahead and being wound on the nigger head, “thus moving the car.” When the car reached a point where there was an incline in the track, the girder being over the trestle ahead of the car, in order to keep the girder from touching the ties it was raised a little, and while this was being done a sudden gust of'wind blew the far end toward the east, when the men on that end immediately put their weight on it and held it down on top of the trestle. The wind then blew the opposite end, which the men were unable to hold or control, and the car started to tip and the order was immediately given to lower the load, which order plaintiff obeyed. The car seemed for a moment to .right itself until the lowering suddenly stopped, when the car tipped over and the car and the girder rolled down the east side of the bank and the plaintiff with them. Just what caused the lowering to suddenly stop, no witness directly discloses, hut from all the testimony on this subject, the situation of the car, the hanging of the girder over the embankment, the depth of the embankment, the condition of the cable, etc., it would seem to us that the sudden stoppage resulted from the fact that the extremity of the cable was reached before the girder reached the foot of the embankment prior to the descent of the ear with the machinery resting upon it. The vice president of the defendant company testified that plaintiff told him the morning after the accident that he had the girder swung properly; that it was running parallel in the tracks, and so ,far as he could see everything was in fine shape, when suddenly a gust of wind came up which “shoved” the end of the girder; that the first thing which occurred to him was to drop the load, “so as to hit it in the center,” but he was not quick enough to do it; he worked the clutch to make it drop as above, but could not; “it was too fast” for him. Defendants offered in evidence a sworn statement made by plaintiff the day after the accident, in which he swears: “I was the engineer of derrick car, Oscar Daniels Company number four, and was running the engine on said car on March 1st, 1904, erecting the span of the Curtis bridge when the car overturned and killed Hans Halverson. I further say that the car and engine were in first class order and that the accident was not caused by any defect in the engine, car, lines, cables, tackles, or any other appliances then being used by the Oscar Daniels Company. In my opinion the accident was caused by a sudden gust of wind blowing an end of the girder around, thereby throwing the weight on the side of the car; and that accident was unavoidable and everything that could be done to prevent same was done. The boom was a good one and broke after fall.”
    The jury rendered a verdict of guilty with damages assessed at $995, upon which a judgment was entered after the overruling of motions for a new trial and in arrest of judgment.
    Eddy, Haley & Wetten, for appellants; Charles H. Pegler, of counsel.

      John A. Bloomingston, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

While -reversal is asked for several errors assigned on the record, in the view we take of the case but one question calls for our decision, which being answered in the negative, all other questions raised by counsel cease to be important. Such question is: Does the evidence sustain the charge of negligence in the declaration?

And in the solution of this question we are aided by the narrowing of the issues to the claim “that a wrong order was given.” The undisputed colloquy of the trial judge with plaintiff’s counsel so demonstrates. The court said: “Then the machinery of the apparatus was in good working condition. They do not claim it was not. All they claim is that a wrong order was given. The whole case turns on that. That is right, isn’t it?” To which counsel for plaintiff responded, “That is true.” Counsel for plaintiff confined his argument to this point. Such is the gravamen of the charge in the declaration; that the duty of defendants was to furnish plaintiff a reasonably safe place in which to work, and that the falling of the car was the result of a careless order of defendant’s foreman. The evidence conclusively proves that the crane car, with its machinery and tackle, was in every respect in good order and condition, and that the place on the car where plaintiff was working was in every respect a safe place normally for him to do his work. The admission above set out has the same force and effect as the testimony, and in this respect, therefore, our conclusion is not subject to challenge. The accident did not result from any defect in any appliance in use at that time, or by reason of the lack of safety of the car; but it was brought about by the meeting of an unexpected antagonistic force in the form of a strong-gust of wind. That the accident occurred as detailed by plaintiff in the affidavit which he made the day after its happening is not only sustained by the testimony of all the witnesses, but is not seriously disputed by any one. Therefore we are narrowed down to the one remaining point—was the order a wrong .order, and if it was so proven to be, was it given in an emergency when there was no time for deliberation or thought, so that negligence is not imputable, because if there had been time for deliberation a different order could have been given which would have averted the disaster which followed the so-called “wrong order.” There is reliable evidence supporting the theory that the order given to lower the girder was the right order to give, and its successful carrying out the only means of averting the threatened accident. The gust of wind was not anticipated by any one engaged at the work with plaintiff. The peril of all on the car was suddenly made imminent. There was no time for anything but instant action. Instinct and not deliberation was the only faculty the exercise of which might save the situation. All that could be done was done, and it may be if the cable had been sufficiently long to have reached a resting place with the girder, the wisdom of the method employed to save the car from falling over the embankment might have been demonstrated. As plaintiff swore the day after the accident, when the occurrence and all the circumstances attending it were vividly in his mind, the accident was caused by a sudden gust of wind, the accident was unavoidable, and every thing possible was done to prevent it. The order to lower the girder was an emergency order, necessarily given on the spur of the moment in an effort to avert an accident which was momentarily threatening the crane car and those working upon it. Even if the judgment thus exercised was not the most judicious, the lack of time in which to form a more correct judgment relieves the act from an imputation of negligence. C. B. & Q. R. R. v. Peterson, 32 Ill. App. 139; Dunham v. Dandelin, 143 Ill. 409; Union Traction v. Newmiller, 215 ib. 383.

It is plain from any viewpoint of the facts in this record that no negligence charged is sustained by the proofs, and the judgment of the Circuit Court is reversed.

Reversed.


text:
    E. E. Walsh, Appellee, v. United States Tent & Awning Company, Appellant.
    Gen. No. 14,990.
    1. Bailments—right of bailee to maintain action for damages. A bailee may sue and recover the entire damages done to personal property in its possession.
    2. Assumpsit—when lies for money had and received. If a bailee has sued for and collected the entire damage done to personal property in his possession, the true owner of such property may, by assumpsit, recover of such bailee the amount so collected.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavanagh, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 17, 1910.
    Edward R. Litzinger, for appellant.
    McArdle & McArdle, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This cause was tried under a count for money had and received and the general issue. Another special count and the common counts constituted the declaration filed. The money count declares upon the lease of a certain tent from plaintiff to defendant for use by a customer of defendant’s. The tent was sent to Florida, the rental being $75, and was to be returned by freight to Chicago. As an additional rental charge defendant was to store the tent in its Chicago warehouse for plaintiff until spring. The tent was injured in transitu and arrived in Chicago in a damaged condition. Defendant settled with the carrier for the damage by receiving the sum of $375, which plaintiff demanded by that count. On a trial before the court and a jury, the trial judge directed a verdict for the amount claimed and entered a judgment upon the verdict, from which defendant prosecutes this appeal and asks a reversal, contending, in effect, that plaintiff has no right of recovery under the money count for the $375 received from the carrier for damage to the tent during transit from Florida to Chicago.

The difficulty in this case seems to have been created by plaintiff in obstinately refusing to come to a settlement for the damage to his tent suffered by the carrier. He refused every settlement proposed and withheld from defendant his consent to arrange a settlement with the carrier, but in the face of such refusal defendant did settle with the carrier for $375. Walsh refused to accept the $375 in settlement when it was offered to him by defendant, although subsequently he expressed a willingness to do so.

While defendant did not own the tent, it had as lessee such a special property right in it that it might maintain an action in relation to it, either for its possession; if such had been lost, or for any damage to it occasioned by third persons during the existence of such property right. This is not seriously contested by either party. Plaintiff was the general owner of the tent and defendant had but a special property in it during the lease and the time it held it in storage. The damage to the tent, suffered by the carrier, did not affect that special property right for which it was entitled to be compensated. Still in virtue of its special property right it was clothed with authority to maintain an action or receive money in settlement of any damage done to the tent during the continuance of such right. So that in this case it had the right to sue for such damage and to make a binding settle. ment with the carrier therefor. This being settled, the sole question remaining for solution is, whether plaintiff is entitled to demand and sue for the money received by defendant in settlement with the carrier under the count for money had and received by defendant for the use of plaintiff. Did defendant by operation of law receive the $375 for the use of plaintiff? An action for money had and received is in its essence and nature an equitable action. Vol. 3, Am. & Eng. Ency. Law, 762. We think the principle applicable here is fairly stated in Woodman v. Nottingham, 49 N. H. 387, where the court say: “The defendant being found a wrong doer, the plaintiff may be regarded as bailee both of the horses and money, and in that capacity, holding a special property in such chattels, and sufficient to entitle him to recover in his name for the entire injury. A bailee, having a special property, may recover the whole value of the property, holding the value beyond his own interest in trust for the general owner, and the judgment recovered by the bailee may be pleaded in bar to any action that might be afterwards brought by the general owner for the same property. 2 Hilliard on Torts, 571; King v. Dunn, 21 Wend. 253; Stanley v. Gaylord, 1 Cush. 536; Sedgw. on Dam. 569; Barron v. Cobleigh, 11 N. H. 560; Littlefield v. Biddeford, 29 Maine, 320.”

The direction of the verdict by the trial court was the logical and correct disposition of the case under the conceded facts and the law applicable thereto, and the judgment of the Superior Court is therefore affirmed.

Affirmed.


text:
    Sarah J. O’Connell, Appellee, v. Supreme Tent of the Knights of Maccabees of the World, Appellant.
    Gen. No. 14,998.
    1. Fbateenal benefit societies—when change of beneficiary becomes effective. Held, that if a member and his beneficiary have done all that they could do to effect a change of beneficiaries in accordance with the by-laws of the society, that the legality of such change would not be affected by any neglect on the part of an officer of the society or by the fact that the certificate with the new beneficiary was issued post-dated ¿he death of the member.
    2. Evidence—when admission of affidavit for continuance containing hearsay, will not reverse. If counsel has specifically consented to the introduction of an affidavit for a continuance containing hearsay, he cannot subsequently obtain a reversal upon the ground of the admission thereof.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. John A. Gbay, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 17, 1910.
    H. H. C. Miller and W. S. Oppenheim, for appellant.
    M. H. Hoey, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment of $2350 rendered on the verdict of a jury. The action was assumpsit upon a benefit certificate issued by the defendant order upon the life of James O’Connell, the husband of plaintiff. The benefit certificate was originally issued to James O’Connell as a member of a subordinate lodge of defendant called D. P. Markey Tent No. 93, and was dated October 1, 1902, in which plaintiff and a brother of the member, Bartholomew O’Connell, were designated as beneficiaries. On August 11, 1903, James O’Connell endorsed on the back of this certificate a direction revoking his decision as to the beneficiaries named and designated the plaintiff, his wife, as sole beneficiary. On the same day the certificate was delivered to one 0 ’Donnell, record keeper of the local tent, with 50 cents as transfer fee, with directions to surrender the certificate to the Supreme Tent and have issued in its place a new certificate in which plaintiff should be designated as the sole beneficiary. To this time all things required of the member by the by-laws and rules of the order for issuing a new certificate as requested by the endorsement of the old one had been done. It seems that Mr. O’Donnell, the record keeper of the local Tent, died in August, 1904, without having forwarded to the Supreme Tent the O’Connell certificate. This certificate came into the hands of his successor, William Geissler, who soon afterwards delivered the same to plaintiff and her husband, who received it in the belief that it was a new certificate naming plaintiff as, the beneficiary. James O’Connell being seriously ill was taken to a hospital. Dennis D. O’Connell learning that his brother James ’ life was despaired of and that his illness was likely to terminate fatally, bethought him of the benefit certificate of defendant and bestirred himself to see that the dues had been paid and that all things were in order so that no trouble might be encountered after James’ death. This led him to look at the certificate which he found in the possession of plaintiff, and he then made the discovery that the old certificate had never been surrendered to the Supreme Tent and a new certificate issued designating plaintiff as sole beneficiary. On October 24, 1904, the old certificate was again given to the local tent record keeper with instructions to forward it to the Supreme Tent for the issuance of a new certificate and another transfer fee of 50 cents was paid to Geissler, the then record keeper. The certificate in due time was forwarded to the Supreme Tent. James O’Connell died on October 28, 1904, and the new certificate in suit was issued by the Supreme Tent dated October 31, 1904, three days, after the death of James O’Connell.

Three propositions are argued for reversal: First, that the certificate post-dating the death of the member O’Connell, no action can be maintained upon it. Second, that O’Connell’s answer to questions in the application for membership that he had never had stricture and had never consulted a physician or had any disease of his urinary organs were untrue; that such answers were warranties, and being false vitiated the certificate. Third, the erroneous admission in evidence of an affidavit containing an opinion of Dr. Foreman based on hearsay evidence.

First. The by-law which sanctions change of beneficiary provides substantially that a change shall take effect “upon delivery to the record keeper of a tent of the life benefit certificate * * * with a written request for change therein* * *and the fee of 50 cents.” If this by-law is to receive a reasonable interpretation, such as the language used is susceptible of, then it would seem to us that when plaintiff and her husband first delivered the original certificate with the request endorsed on it for change of beneficiary and paid the necessary fee to the record keeper of the tent in which O’Connell was a member, then the change was, according to this by-law, accomplished, and subsequent actions of the Supreme Tent or subordinate body in making the same apparent would relate back to that time and in legal effect be operative therefrom, and the rights of all concerned established, as of that date. The tone fides of the conduct of the parties is nowhere challenged, nor that the designation of plaintiff as sole beneficiary was made as claimed by plaintiff and amply supported" by the proof found in the record. This being so, the failure to procure a new certificate is in no way imputable' to plaintiff or O’Connell, but to the neglect of duty of defendant’s officer, the record keeper of the local tent, to do his duty, that duty which, in the circumstances of the delivery of the old certificate with its endorsement, required him to forward the same to the Supreme Tent for its issuance of a new certificate, conforming to the revocation and designation endorsed on the old one. If the change did not take effect at that time because of the return of the certificate to and its acceptance by plaintiff and her husband, surely when the certificate was again left by plaintiff with the local tent record keeper with the 50 cent fee four days before the death of her husband, with the request to forward the same to the Supreme Tent for the issuance by it of a new certificate conformable to the direction endorsed upon the old one, and it was so forwarded and the certificate in suit issued to and accepted by plaintiff, notwithstanding the date of such certificate is four days subsequent to the death of O’Connell, it must be held to have become effective from the day of the last delivery to the record keeper, which antedated the death of 0 ’Connell by four days. The language of the by-law referred to in effect provided against a condition of the character which confronts us in this case, which but for the by-law might operate to nullify the wish of a member whose death intervened between the time when the certificate with endorsement and fee should be delivered to the record keeper of the local tent, and the issuing of the new certificate in its place by the Supreme Tent. This case is clearly distinguishable from Freund v. Freund, 218 Ill. 189. In the Freund case the right to change the beneficiary rested on the provisions of a state statute which was by that statute made a condition of every policy and directed „to be incorporated in all policies. In the Freund policy such provision of the statute was inserted as a condition of the policy. By that statute a change could not become operative until sanctioned by endorsement upon the policy at the home office. Pending such transfer and endorsement the insured died. By the by-law of defendant the change of beneficiary takes effect upon delivery to the record keeper of a tent of the life benefit certificate with a written request for change thereon and the payment of fifty cents. These essential provisions of the by-law were fully met four days preceding O’Connell’s death, and thereby the change was accomplished, and the new certificate when issued was evidence of that fact and related back to the time when the change was accomplished and as of that time must the rights, duties and obligations of the parties be adjusted.

Second. Defendant assumes that the answers which O’Connell made to questions contained in his application for membership, that he was in good health, had never had a physician or suffered from any diseases of the urinary or genital organs or from stricture, were false. Such assumption is based upon statements which O’Connell is said to have made to Dr. Foreman at a time when his mind was clouded from septic symptoms. O’Connell died of urethral stricture, and it is assumed from this fact that before the time of his application for membership he had suffered from some urinary or genital disease. Excluding the statement made to Dr. Foreman by 0 ’Connell at a time when his mind was clouded, there is no evidence justifying such conclusion. The testimony of his wife and brother Dennis clearly repels any such assumption. In this condition of the testimony the fact was before the jury for solution, and with their determination we see no reason to disagree or cause for interposing our opinion in opposition to their finding. The cause was properly submitted to the jury, and the overruling of the motion of defendant to instruct a verdict in its favor was without error.

Third. We think defendant waived the objection to the admission of the affidavit of Dr. Foreman containing hearsay statements. When the court ruled against defendant’s motion for a continuance its counsel said: “I also say that a part of it” (referring to the affidavit now objected to) “where he says he knows certain things because other persons have told him certain things, that is incompetent, but I am willing to allow the affidavit to go in so far as that is concerned.” By thus consenting to the introduction of the affidavit the objection, now made, was waived.

Finding no reversible error in the record, the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Minnie A. Phillips, Appellant, v. John F. Devine, Administrator, et al., Appellees.
    Gen. No. 15,006.

      Dismissal—when proper upon sustaining demurrer to declaration. The dismissal of an action at law is proper upon the court sustaining a demurrer to the declaration because of its failure to state a cause of action in a case which has been called for trial upon the merits—the plaintiff not being ready with an amendment.
    Action on the case. Appeal from the Superior Court of Cook county; the Hon. Beit M. Smith, Judge, presiding.
    Heard in this court at the October term, 1809.
    Affirmed.
    Opinion filed March 17, 1910.
    Minnie A. Phillips, appellant, pro se.

    Gardner, Stern & Anderson, for appellees.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Minnie A. Phillips, the plaintiff in the trial court and the appellant here, on June 11, 1907, commenced this suit by praecipe against James Reddick, then public administrator of Cook County, and William F. Anderson and Robert F. Gentzel for damages in an action on the case for “fraud and deceit.” On September 14, 1907, plaintiff, by leave of court, filed her third amended declaration. On November 14, 1907, the death of Reddick was suggested, and on January 18, 1908, James Devine as administrator with the will annexed of James Beddick, deceased, was substituted as a defendant in the place of Reddick, deceased, and all papers were amended to conform thereto. On April 29, 1908, all of the defendants filed a general demurrer to the said third amended declaration. On May 15,1908, the demurrer of the defendants to said third amended declaration was sustained and plaintiff suffered a judgment of nil capiat and for costs, from which judgment plaintiff prosecutes this appeal.

The demurrer being general, the question . to be decided is: Does the declaration as finally amended state a cause of action for fraud and deceit which would sustain a judgment had the parties gone to trial upon that pleading and plaintiff had prevailed.

We have carefully examined every part of the declaration demurred to, which rests in one count and contains 48 numbered paragraphs and as abstracted covers over twelve printed pages. No useful purpose can be subserved by setting out its varied allegations, and we therefore refrain from so doing or from here repeating any portion of it. We regard it as sufficient to say that, regardless of all defects in matters of form and technicalities of common law pleading, there cannot be gathered from these many paragraphs, or any averments thereof, either singly or together, or by any manner of combination, sufficient facts essential to charge the defendants or any one of them in an action for fraud and deceit. The cause at the time the demurrer was argued was reached for trial in the regular order upon the call of the trial calendar. Plaintiff not being ready with an amendment of any kind to her declaration, the court erred neither in sustaining the demurrer as it did after argument, nor in dismissing the suit when called for trial.

The judgment of the Superior Court being without error is affirmed.

Affirmed.


author: Mr. Justice Baker

text:
    Philip Hatowski, Appellee, v. Alexander Cassriel, Appellant.
    Gen. No. 14,975.

      Tboveb—when conversion established. Held, under the evidence, that the transfer of possession of the property alleged to have been converted was not in pursuance of a sale or a contract of sale, but that such transaction was a mere bailment with at most a privilege of purchasing at a price named.
    Trover. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Ththh-l, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 17, 1910.
    Weissenbach & Meloan, for appellant.
    Alfred Livingston and E. N. Zoline, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In an action of trover by appellee against appellant for the conversion of a diamond ring and a pair of diamond earrings, plaintiff had judgment for $562.50, and the defendant appealed. Plaintiff had a jewelry store in Chicago and delivered the rings in question to one Goldfield March 5, 1905. The same day Goldfield pawned the earrings to defendant as security for a loan of $160, and two days later pawned to defendant the ring, as security for a loan of $175. The only evidence as to the transaction between plaintiff and Goldfield is the testimony of plaintiff and Bose Sager, his clerk. Plaintiff testified that “on March 5, 1903, a man by the name of Mr. Goldfield, I lmow him a few years, he come into my place, and tells me he wants to see rings for his wife, or a diamond ring. I says, ‘how high do you want to gol’ He says, ‘ something about two and a half to three carats.’ He also says he wants to see some earrings. I took out a pair of diamond earrings from my safe and a diamond ring and show him the earrings and the ring. He says, ‘what is the price of the earrings ? ’ I told him $310. He asked me the price of the ring. I told him $175. He asked me if I will give him them to show his wife, and if she liked them—I says, ‘yes, I will give it to yon,’ and he says he will report me hack about the earrings in two hours, and he told me he is going to ask a diamond dealer if it is a bargain, and I let him have them.” Bose Sager testified that, “Mr. Goldfield came in and asked Mr. Hatowski if he couldn’t show him something in a pair of diamond earrings and a ring. Mr. Hatowski said ‘yes’ and showed him a pair of diamond earrings, also a ring, and he looked at them and asked Mr. Hatowski if he wouldn’t let him take it home and show it to his -wife. He did not know which she would like, and Mr. Hatowski told him ‘yes’ and he said he would take them home and if she liked them, and then he would see if they were good diamonds and worth the value, and if they were all right and satisfactory he would bring them back and make a bargain with him.” The testimony does not prove or tend to prove a sale, nor even an agreement to sell at a future time. Goldfield asked to see rings and when shown them asked to be permitted to take them to show to his wife and to a dealer in diamonds. Plaintiff named a price for the rings but Goldfield did not agree to buy them at the price. The transfer of possession was not in pursuance of a sale or of a contract to sell. The transaction was a mere bailment with, at most, a privilege of purchasing at the price named, which Goldfield could exercise or not, at his option. By such bailment the property in the rings did not pass to Goldfield, and the defendant could acquire from-Goldfield no right to the rings as against the plaintiff. On the uncontroverted facts of the case plaintiff was entitled to recover, and the judgment therefore should not be reversed because of error in the rulings of the court on instructions.

The record of the acquittal of Goldfield on an indictment for larceny of the rings from plaintiff was not admissible in evidence in this case.

The jury assessed plaintiff’s damages at $606.25, plaintiff remitted therefrom $43.75, and the court gave judgment for $562.50. Appellant contends that the evidence is not sufficient to warrant or support a judgment for that amount. The earrings weighed one and a quarter carats each, the ring two and a quarter carats, making a total of four and three quarter carats. The only evidence as to their value at the time they were pawned by Goldfield to defendant was the testimony of defendant. He was asked their value at that time and answered that they were worth about $100 a carat. Asked if the earrings were not worth $250, he answered that they were worth around $200. Asked what the ring was then worth, he answered that it was worth in the neighborhood of $200, maybe' a little more.

We do not think that the later answers of the defendant materially qualify his first answer that the value of the rings was about $100 a carat. Taking the value of the rings at $100 a carat and adding interest at five per cent from March 5 and 7, 1903, when they were pawned, to May 8, 1908, when the judgment was rendered, the amount exceeds the amount of the recovery.

We think that the plaintiff was, on the evidence in the case, clearly entitled to recover against the defendant the amount he recovered, and the judgment will therefore be affirmed.

Affirmed.


text:
    George Brown, Jr., Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,980.
    1. Contributory negligence—when failure to loolc and listen does not constitute. One riding upon a wagon with duties to perform thereon, having no control over the driver thereof, is not guilty of contributory negligence as a matter of law in failing to keep a lookout for approaching street cars.
    2. Negligence—when violation 'of ordinance will not bar recovery. One employed upon a wagon but not having control thereof or of the driver thereon, will not be barred of a recovery for injuries sustained by such wagon being struck by a street car because of such wagon not being provided with a light as required by ordinance.
    3. Instructions—approved form as to ordinary care. An instruction upon this subject, as follows, approved.
    “The court instructs the jury, as a matter of law, that the defendant was not required to exercise toward the plaintiff the highest degree of care, but the said defendant was only required to exercise toward the plaintiff ordinary care on the occasion in question, and ordinary care is such care as a person of ordinary prudence would exercise under the same or like circumstances, and if the jury believe from the evidence, under the instructions of the court, that the defendant exercised just before and at the time of the accident in question, ordinary care to avoid injuring the plaintiff, but that, nevertheless, the plaintiff was injured, then they should find the defendant not guilty.”
    4. Instructions—approved form as to credibility of witnesses. An instruction upon this Subject as follows, approved:
    “The jury are instructed that they are the judges of the credit that ought to be given to the testimony of the different witnesses, and that they are not to believe anything to be a fact because a witness has stated it to be so, provided the jury believe from all the evidence that such witness is mistaken about such fact or has wilfully and knowingly testified falsely in regard thereto.”
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 17, 1910.
    John S. Lord, Franklin B. Hussey and C. LeRoy Brown, for appellant; John R. Harrington, of counsel.

      William Elmore Foster, Thomas E. D. Bradley and Clayton W. Mogg, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In an action on the case for personal injuries plaintiff had judgment for $3,500 and the defendant appealed. The defendant operated in State street, Chicago, a double track electric street railway. Harrison street west from State is about forty feet north of the same street east from State. Plaintiff when injured was on a wagon which came east on Harrison into State and was going to cross State and then go east on Harrison. The wagon belonged to, and the driver was employed by, a certain teaming company. The wagon had on it eighteen large trunks belonging to the American Express Company. Plaintiff was employed by the Express Company, and his duty on the wagon was to take charge of the trunks and their contents and see that nothing was taken or lost from the wagon.

From the evidence the jury might properly find that the team was driven diagonally, in a southeasterly direction, across State street; that when the team went on the east track, which was the north-bound track, the north-bound car, which afterwards struck the wagon, was more than one hundred feet south of the train; that the street was well lighted and that the motor man in charge of said car saw the wagon when it was in Harrison street approaching State; that the wagon was plainly visible from the car from that time until the collision occurred, and that the car could have been stopped after the team went on the north-bound track in time to avoid a collision between the car and the wagon. Before the wagon cleared the track the car struck the hind end of the wagon and thereby the plaintiff sustained the injuries complained of.

From the evidence the jury might, we think, properly find that the defendant negligently operated said car, and that thereby plaintiff was injured as alleged in the declaration.

The errors relied on by appellant for a reversal of the judgment as stated in the bill are:

“I. Plaintiff failed to prove he was in the exercise of ordinary care for his own safety.

2. The court erred in refusing to instruct the jury as to the definition of the care required by law of the parties.

3. The court erred in giving improper instructions.

4. The court erred in rulings upon the admission and rejection of evidence.”-

Plaintiff’s duty on the wagon was to watch and guard the trunks and their contents. He had nothing to do with the driving of the team, no control over its driver except perhaps to direct him where to go. He testified that he knew that there were street cars in State street and that he did not remember that he looked either way after the wagon reached State street, to see if the cars were coming. We think that on the evidence in the case the question whether the plaintiff was in the exercise .-of reasonable care for his own safety was a question for the jury, o.n which their verdict must be held conclusive.

The court refused to give for the defendant the following instruction :

“1. The court instructs the jury, as a matter of law, that the defendant was not required to exercise toward the plaintiff the highest degree of care, but the said defendant was only required to exercise toward the plaintiff ordinary care on the occasion- in question, and ordinary care is such care as a person of ordinary prudence would exercise under the same or like circumstances, and if the jury believe from the evidence, under the instructions of the court, that the defendant exercised just before and at the time of the accident in question, ordinary care to avoid injuring the plaintiff, but that, nevertheless the plaintiff was injured, then they should find the defendant not guilty.”

The instruction was proper and should have been given. In no given instruction did the court give any definition of the term “ordinary care.” The evidence was conflicting. The evidence for the defendant tended to show that the team was not driven diagonally across State street, but moved south in the southbound track and proceeded in that track until opposite Harrison street east of State, and then turned to the east across the north-bound track; that as soon as the team started to turn to the east the motor man made every effort to stop the car, but was unable to do so in time to avoid striking the wagon. In D. & R. G. R. R. Co. v. Norgate, 141 Fed. 247; 6 L. R. A., N. S., 981, and in Junction City v. Blades, 1 Kan. App. 84; 41 Pac. Rep. 677, it was held erroneous to refuse to give for the defendant an instruction containing the same definition of “ordinary care” as the instruction in question. The term “ordinary care” is easily understood, but difficult to define. The definition stated in the refused instruction is rather a statement, of the same idea in different language than a definition. As applied to the facts of this case we áre unable to see how the defendant was prejudiced by the refusal to give the instruction. When the team drove on the track in front of the car, ordinary care on the part of the motor man required him to use all the means in his power to stop the car to avoid injuring the passengers in the car as well as the wagon and those on the wagon. The question for the jury then was not what ordinary care on the part of the motor man required him to do, but whether the collision was the result of his failure to do what ordinary care clearly required him to do to prevent such collision. We think the judgment should not be reversed for the refusal to give said instruction.

The substance of defendant’s refused instruction 4 is contained in other instructions given for defendant, and it was not error to refuse to give said instruction.

The court gave for the plaintiff the following instruction :

“17. The jury are instructed that they are the judges of the credit that ought to be given to the testimony of the different witnesses, and that they are not to believe anything to be a fact because a witness has stated it to be so, provided the jury believe from all the evidence that such witness is mistaken about such fact or has wilfully and knowingly testified falsely in regard thereto.”

We think that the meaning of the instruction would not be altered or affected if the word “thereto,” the last word in the instruction, is struck out and the words “to such fact” substituted, and therefore it was not error to give the instruction. Goss Printing Co. v. Lempke, 191 Ill. 199.

We do not think the court erred in giving plaintiff’s instruction 26.

The evidence tended to show that there was no light on the wagon, and that the collision occurred about 11 p. m. The defendant offered and the court excluded the following ordinance of the city of Chicago :

Lights on Vehicles.

“1443. Hotjes foe Carrying. It shall be unlawful for any owner or driver of any automobile, wagon, truck, dray, cart, carriage, cab, omnibus, bicycle, motorcycle, or other wheeled vehicle, to use the streets of the city without having displayed until daybreak after the hour of eight-p. m. during the period commencing with April first and ending October thirty-first, and until daybreak after six p. m. during the period commencing with November first and ending March thirty-first, one or more lights.

“1444. Penalty. Any person violating any of the provisions of the preceding section shall be fined not less than ten dollars nor more that fifty dollars for each offense.”

Plaintiff was neither the owner nor the driver of the wagon and therefore was not guilty of a violation of the ordinance, and we think the ordinance was properly excluded.

The record is, we think, free from reversible error, and the judgment is affirmed.

Affirmed.


text:
    Walter J. Merritt, Appellee, v. International Harvester Company, Appellant.
    Gen. No. 14,986.
    1. Bill of exceptions—when motion to strike denied. If the time for the filing of the bill of exceptions has been extended by-order entered with jurisdiction, the fact that it recites that such order was made pursuant to stipulation may be rejected as surplus-age and the extension sustained as not dependent at all upon the stipulation.
    2. Evidence—what competent upon question of care and competency of employe. A single act of negligence held competent, under the particular circumstances of this case, upon the question of the care and competency of an employe.
    3. Instructions—need not repeat. An instruction containing a correct proposition of law, though refused, will not reverse if its substance is contained in "other instructions given.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 17, 1910.
    Rehearing denied March 31, 1910.
    William Rothmann and D. A. Orebaugh, for appellant ; Edgar A. Bancroft, of counsel.
    David K. Tone and H. M. Ashton, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In an action on the case for personal injuries in the Superior Court, the declaration averred that plaintiff was an electrician in the service of defendant, and when injured was engaged in repairing an electric crane; that he was injured by reason of the carelessness and ineompetency of the servant of defendant who was in charge of said crane; that said crane man was incompetent and habitually negligent, etc., and that defendant knew, or in the exercise of ordinary care could have known that said crane man was incompetent, negligent, etc.; that plaintiff did not know and could not in the exercise of ordinary care have known that said crane man was incompetent or negligent, etc. The trial resulted in a judgment for the plaintiff for $7,500 and the defendant appealed.

A motion by appellee to strike the bill of exceptions from the record was reserved to the hearing. The time for filing a bill- of exceptions was, by an order entered on the stipulation of the parties, extended to and including Saturday, August 8, 1908. Judge Ben M. Smith was the presiding judge at the trial of the cause. August 6, 1908, Judge McEwen entered in the Superior Court the following general order: “It is ordered that the Superior Court adjourn and that the clerk’s office of said court be closed on Saturday, August 8, 1908, known as primary election day. It is further ordered that all motions, orders and rules made returnable and expiring on the aforesaid day be, and the' same are hereby continued until Monday, August 10, A. D. 1908, without further notice.”

August 10 the following order was entered in said cause: “Motion by defendant, by its attorney, for extension of time to file bill of exceptions entered and continued this 10th day of August, 1908.”

August 11 the following order was entered in said cause: “On the stipulation of the parties to this suit filed, it is ordered that the time for filing the bill of exceptions herein be and is hereby extended to and including September 10, A. D. 1908.” On the same day there was filed in the cause an instrument purporting to be a stipulation by the attorneys of record of the parties for the extension of the time for filing the bill of exceptions in said canse to September 10, 1908. By an order entered August 18 plaintiff’s motion to strike from the files said stipulation filed August 11 and to vacate the order that day entered was entered and continued, to be disposed of by Judge Smith. By an order entered September 4 said motions were continued to the September term. The bill of exception was presented to Judge Smith September 5, 1908.

November 18, 1908, the motions of plaintiff to strike from the files said instrument purporting to be a stipulation to extend the time for filing bill of exceptions filed August 11 and to set aside the order that day entered extending the time' for filing bill of exceptions to September 10, were both denied, and order entered giving defendant leave to file its bill of exceptions nunc pro tunc as of September 5, 1908, and on the same day the bill of exceptions was filed nunc pro tunc as of that date.

Appellee does not contend that the general order entered August 6, 1908, that the clerk’s office be closed August 8 ánd that “all motions, orders and rules made returnable. and expiring on the aforesaid day be continued until Monday, August 10, 1908,” did not operate to extend defendant’s time for filing a bill of exceptions in this case to and including August 10, but his contention is that assuming that the order operated to extend the time for filing the bill to and including August 10, no order extending ■ the time for filing the bill was entered until after August 10, and that the court could not, after that day, except by consent of parties, extend the time for filing a bill of exceptions. Mr. Jacob M. Owen signed the stipulation filed August 11 in the name of plaintiff’s attorneys. He had no authority either from the plaintiff or either of his attorneys to sign any stipulation in the cause, and the stipulation was therefore not binding on the plaintiff. But we think, although the question is not free from difficulty, that the effect of the order of August 10, assuming that the court had on that day authority to enter an order further extending the time for filing a bill of exceptions, was to extend and continue in the court such power after August 10. If this conclusion is correct, it is not material that the stipulation filed August 11 was not authorized by or binding on the plaintiff, or that the order of August 11 states that it was made on the stipulation of the parties, for if the court had authority on August 11 to make the order without the consent of the plaintiff, the stipulation and so much of the order as recites that it was made on the stipulation of the parties may be disregarded and the order held valid as an order, not made by consent of plaintiff, that the time for filing the bill be extended to September 10. The bill was presented to the trial judge September 5, and therefore might properly be ordered filed as of that date.

The motion of appellee to strike the bill of exceptions from the record is therefore denied.

Three errors in procedure are relied on for reversal by appellant. The first is that the court erred in refusing to permit Michel, the general foreman of defendant’s foundry, to answer the question “whether any one had complained to him about the way in which Paul (the crane man) did his work?” Michel was asked by defendant’s counsel what Paul’s reputation was on, etc., around the foundry with reference to whether he was careful and competent, and answered, “I had never heard anything either way.” He was then asked, “Did you éver hear anybody say that he was careless or not competent?” and answered “No.” He was then asked the question whether any one had complained to him of the manner in which Paul did his work, and the objection was properly sustained on the ground that the witness had already answered the question.

The second is that the court erred in admitting the testimony of the witness Hlavac to a single act of alleged negligence on the part of the crane man. We think the evidence was, under the circumstances of the case, competent.

The third is the refusal of the court to give for defendant the following instruction: “The jury are instructed that even if you believe from the evidence that on and before July 1,1907, the crane man in question was incompetent, careless, unskilled and reckless, yet, if you further believe from the evidence that the plaintiff’s injury was not caused by any negligent act of said crane man as alleged in the declaration, but was caused by plaintiff’s own want of care, or that it was the result of an accident, then you should find the defendant not guilty.” By defendant’s instruction 3 the jury were told that, “unless plaintiff had proven by a preponderance of the evidence that he was at and just before the accident in the exercise of due care and caution for his own safety” he could not recover and the verdict should be not guilty. Defendant’s given instruction 13 is as follows:

“The jury are instructed that in order to find the defendant guilty in this ease you must believe, from the evidence, that the injury complained of was occasioned by carelessness or negligence on the part of the defendant in retaining in its employ a careless and incompetent crane man, as alleged in the declaration, and was not simply an accident, and if the jury believe, from the evidence, that the injury resulted from a mere accident, and not from any negligence on the part of the defendant, as alleged in the declaration, then the plaintiff cannot recover and you should find the defendant not guilty.”

We think that the substance of refused instruction 7 is contained in given instructions 3 and 13 and therefore it was not error to refuse to give said instruction.

The remaining contention of appellant is that the trial judge should have directed a verdict for the defendant.

In the malleable iron shop of defendant were four rooms, in each of which was an electric crane. Plaintiff was an electrician and worked in all the rooms alternately two weeks days and two weeks nights. When he worked nights he operated the crane. He was injured in room 2, which was 600 feet long from north to south and 300 feet broad. The crane was near the middle of the room from north to south, and the rails on which it moved ran east and west. The rails were thirty feet apart about fifteen feet above the floor and supported by posts. The crane consisted of the bridge, at the ends of which were wheels which ran on the rails; of the cross traveler which moved north and south, and of the hoist, by which an object could be raised or lowered. The bridge, cross traveler and hoist were each operated by separate motors controlled by the crane man, who stood in a cage suspended from the bridge. The crane man at and for several months before the time of the accident was Paul Papiech. Plaintiff had been down on the floor and his duties required him to go on the top of the crane to watch the working of an armature which he and other electricians had just installed in the motor of the cross traveler. The cage stood alongside of a post and steps attached to the post led to the cage. Steps on the side of the cage led to its top, which was on a level with the top of the bridge. Plaintiff testified that he intended to stand on an angle iron which formed the top of the bridgethat he passed through the cage and when he was on the top of the cage the crane was started and he lost his balance and fell; that as he fell the cross traveler was also started and his right hand went into the gearing which moved the cross traveler, was ground off, and he fell into the cage.

Papiech, the crane man, testified that he saw plaintiff climb to the top of the cage; that the crane was stopped and he did not start it until plaintiff called out “all right,” that he then moved the crane to take out the tops or bungs of a furnace; that he had to move the crane in order to get to the furnace; that he had taken out three bungs and went for the fourth before plaintiff fell; that he moved the crane three times east and three times west after plaintiff went on top of the crane before he fell. He further testified that Lyons (another crane man in the service of defendant) was in the cage with him when plaintiff was hurt, and that he had seen Lyons in attendance at the trial. Lyons was not called as a witness. The evidence for the plaintiff tended to show that Papiech was either incompetent or negligent, or both, in the operation of the motors by which the crane or bridge, cross traveler and hoist were operated and moved; that the attention of defendant’s foreman, Draeger, had been called to the improper manner in which he operated the motors which moved the different parts of the crane; and that his incompetency or carelessness had been manifested by repeated occurrences in the foundry.

Draeger testified that he had never been told of any fault on the part of Papieeh, and his testimony and the testimony of the other witnesses called by the defendant tended to show that Papieeh was a careful and competent crane man.

We think that from the evidence .the jury might properly find that Papieeh negligently started the crane and cross traveler on the occasion in question, and that his negligence directly contributed to plaintiff’s injury; that he was before the accident either incompetent or careless and negligent in the control and operation of the crane and motors by which the different parts of the crane were moved and operated, and that defendant knew, or by the exercise of ordinary care, could have known, before the time of the accident, that he was incompetent or habitually careless and negligent. Appellant further contends that plaintiff knew, or by the exercise of reasonable care could have known, the character and qualities of Papieeh as a crane man as to competency and carefulness or the reverse, and therefore it is immaterial whether he was competent or careful, because if he were not, plaintiff by his knowledge thereof and failure to object to working with him, assumed the risk. We think that on the evidence the question whether plaintiff knew, or by the exercise of reasonable care could have known, that Papiech was an incompetent or careless crane man, was a question of fact for the jury, on which their verdict must be held conclusive against the defendant.

We think that the court did not err either in refusing to direct a verdict for the defendant or in denying defendant’s motion for a new trial on the ground that the verdict was against the evidence, and the judgment is affirmed.

Affirmed.


text:
    John Schlumbrecht, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,993.
    1. Evidence—what competent upon value of plaintiffs time. Held, that it was competent for the plaintiff in an action on the case for personal injuries to give Ms opinion as to the value of his time as a bartender serving in his own saloon.
    2. Evidence—effect of failure to strike out unresponsive answer. An improper refusal to strike out an unresponsive answer will not reverse if no harm appears to have resulted.
    3. Instbuctions—approved form as to credibility of witnesses. An instruction upon this subject, as follows, approved:
    “The jury are the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony.”
    4. Instructions—when omission of phrase “as to such fact” will not reverse. The words “as to such fact” are to be understood at the close of an instruction as follows:
    “The court instructs the jury, that they are not bound to believe anything to be a fact because a witness has stated it to be so, providing they believe from the evidence that the witness is mistaken or has testified falsely.”
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. John A. Gbav, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 17, 1910.
    William Rothmann and C. LeRoy Brown, for appellant; John R. Harrington, of counsel.

      Schuyler F. Lynn, Clifford C. Roe, Arthur A. House and James W. Keating, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In an action on the case for personal injuries plaintiff had judgment for $5500 and defendant appealed. Defendant operated an electric street railway in Halsted street. Thirty-third street east of Halsted is south of that street west of Halsted, and the usual stopping place of north-bound cars, which run on the east track, is at the northeast corner of Halsted and Thirty-third as it is east of Halsted. Plaintiff was injured in attempting to go on the front platform of a north-bound Halsted street car near Thirty-third street. The testimony of plaintiff was that he stood just north of the north cross-walk in Thirty-third street and signaled the car to stop; that it stopped with its front end about twelve feet north of said cross-walk; that he walked forward to the front end of the car, took hold of the rail on the car with one hand and the dash with the other, put one foot on the step and was trying to put the other up, when the car started suddenly forward and he lost his hold and balance and fell, with his right foot in such position that the wheels passed over it and so injured it that it was necessarily amputated about the middle of the instep. The testimony of the plaintiff was corroborated by the testimony of O’Brien and Miss Daley, each of whom testified, to witnessing the accident from the southeast comer of Thirty-third and Halsted. In direct conflict with their testimony was the testimony of Collins, the motor man, and Kilroy, who testified that he was on the front platform of the car at the time of the accident. Both testified that the car did not stop or slow down on reaching Thirty-third street; that plaintiff attempted to get on to the front platform while the car was running at a speed of eight or ten miles per hour, and in doing so missed or lost his hold on the hand-rail, fell and was injured.

. The negligence alleged in the first count of the declaration was, that the car having stopped on signal to permit plaintiff to go on the car; that the defendant negligently started the car forward at a rapid rate of speed before plaintiff had time to go upon said car, and while he was in the act of climbing on the steps of said car, by reason whereof, by the sudden motion of the car, plaintiff was thrown from the car and injured.

If the. jury believed the testimony of plaintiff, O’Brien and Miss Daley, they properly might find the defendant guilty. If they believed the testimony of the motor man and Kilroy, they could not do otherwise than find the défendant not guilty, for taking their testimony as true, the defendant was not negligent and the plaintiff was guilty of gross negligence. On the evidence in the case the contention of appellant that the “verdict is not justified by the evidence” cannot be sustained.

The declaration alleged that by reason of his injuries plaintiff has been prevented from attending to his affairs and business, and thereby lost great gains and profits, etc. Plaintiff testified that he had a saloon and before the accident was his own bartender, and that for nine months after his injury he was unable to tend his bar. He was asked by his counsel what his time was worth during said nine months. Counsel for defendant objected to the question on the ground that it called for a conclusion, the court overruled the objection and plaintiff answered' “about four dollars a day.” We think this was but the expression of the opinion of the witness as to the pecuniary value of his services by the day during the time mentioned, and that it was competent. C. & E. I. R. R. v. Bivans, 142 Ill. 401; C. U. T. Co. v. May, 221 id. 530; C. U. T. Co. v. Brethauer, 223 id. 521.

On the cross-examination of plaintiff’s witness 0 ’Brien he was asked if he did not at a specified time and place say to plaintiff’s counsel, “the car came along and slackened up speed and was coming to a stop, but was still in motion, and he tried to get on, but seemed to miss his hold and fell back and fell to the ground,” and answered, “that is the way you wanted me to say it. I have told you that the car stopped.” Defendant’s counsel moved to strike out the answer and the motion was overruled. and defendant excepted. The answer was not responsive and should have been struck out. Math v. C. C. Ry. Co., 243 Ill. 114. But we do not think that the judgment should be reversed because of such refusal. The question was repeated and finally the witness answered, “No, I did not tell him that.”

We see no objection to plaintiff’s instruction 3 that: “The jury are the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony.”

By the plaintiff’s instruction 5 the jury were told that in weighing the evidence “the relations which exist between any witnesses and either party to the suit, if any has been shown by the evidence” might be considered by the jury. In defendant’s instruction 8 they were told that in determining on which side was the preponderance of the evidence the jury might take into consideration, among other things, “the relation or connection, if any is shown by the evidence, between the witnesses and the parties to the suit.” Appellant’s contention that the judgment should be reversed because of the giving of plaintiff’s instruction 5 cannot be sustained.

Defendant’s instruction 6 is as follows:

“6. The court instructs the jury, that they are not bound to believe anything to be a fact because a witness had stated it to be so providing they believe from the evidence that the witness is mistaken or has testified falsely.”

We think that in construing this instruction the words “as to such fact” are to be understood at the close of the instruction, and therefore that the instruction is not erroneous. Goss Printing Co. v. Lempke, 191 Ill. 199.

The following is plaintiff’s instruction 7:

“7. While the credit of a witness may be impeached by showing he or she made statements out ■of court contradictory to and inconsistent with his or her testimony on the trial concerning matters material and relevant to the issues, still the jury are not bound to disregard the testimony of a witness thus impeached, if they believe that the witness while on the witness stand gave a truthful, candid and honest statement of the facts and circumstances surrounding the transaction in question, but notwithstanding such impeachment the jury may give such weight and credit to such witness as in their opinion from all the evidence before them it is entitled to.”

Defendant laid the foundation for impeaching plaintiff’s witness O’Brien, but offered no evidence of his contradictory statements. His admissions on cross-examination as to contradictory statements were all as to immaterial matters. The instruction should have been refused, but we do not think that the giving of it was harmful to the defendant.

Appellant also contends that each of plaintiff’s instructions 9, 10 and 12 is erroneous. We find no error in any one of said instructions.

In view of the serious nature of plaintiff’s injury and the effects of such injury, as shown by the evidence, we cannot say that the damages are excessive.

The judgment is, we think, free from reversible error, and the judgment is affirmed.

Affirmed.


text:
    Helen Balfour, Appellant, v. Chicago City Railway Company, Appellee.
    Gen. No. 15,002.
    Appeals and ebbobs—when manner of reading instructions will not Be revieived. If complaint is made as to the manner in which the trial judge read instructions to the jury, the conduct of the judge in such regard must be shown by statements contained in the bill of exceptions and not by affidavits.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Oscab E. Heabd, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 17, 1910.
    H. J. Toner, for appellant.
    John E. Kehoe and Watson J. Ferry, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the plaintiff from a judgment for the defendant entered on a verdict of not guilty in an action on the case for personal injuries. Plaintiff was a passenger on an east-bound car on the Sixty-third street line of defendant and fell or was thrown from the front platform of the car as it was crossing South Park avenue, and thereby one of her legs was so injured that it became necessary to amputate it.

The negligence alleged in the first and third counts was the negligent operation of the car, whereby, etc.; that alleged in the second count was that the defendant having stopped said car at, etc., while the plaintiff was getting off from the ear, negligently started the car, whereby, etc. An additional count alleged that it had been the custom of defendant to stop its east-bound Sixty-third street cars on the west side of South Park avenue; that three days before the accident that custom was changed, and said cars were stopped thereafter only on the east side of said avenue; that defendant carelessly, etc., failed to notify plaintiff of such change, or to warn her against attempting to alight from the car on the west side of said avenue; that by reason of such negligence plaintiff, while preparing to leave said car and while in the exercise of due care, etc., was thrown from the car and injured, etc.

The bill of exceptions does not purport to set out, even in substance, the testimony of plaintiff or of any one of the several witnesses which it stated were called by her, or of any one of the several witnesses which it states were called by the defendant. It states that plaintiff gave evidence tending to prove certain facts, from which, it may be conceded, that the jury might properly find a verdict for the plaintiff, and then states that the defendant introduced evidence tending to prove that plaintiff was not in the exercise of ordinary care for her own safety, and that the defendant was not guilty of the negligence alleged in any count of the declaration.

The grounds of reversal urged are: First, that the court erred in giving certain instructions for the defendant, and, second, that the court erred in reading certain instructions for the defendant with emphasis and dramatic effect, etc.

The second ground of reversal cannot be considered because no fact is stated in the bill of exceptions to support it. It is true that an affidavit is incorporated into the bill of exceptions as to the manner in which the presiding judge read certain instructions. But we cannot look into an affidavit to determine what occurred on the trial of a case, but can look only into the statements of the bill of exceptions for that purpose.

Complaint is made of eleven of the instructions given for the defendant. We find nothing improper in any one of said instructions.

The judgment will be affirmed.

Affirmed.


author: Mr. Justice Freeman

text:
    Aultman & Taylor Machinery Company, Appellee, v. Warren Springer, Appellant.
    Gen. No. 14,977.

      Waebanties—what not of capacity. Held, ■ that the particular language in question in this case, was not a guarantee of the capacity of the boilers involved therein.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Oscab E. Heabd, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 17, 1910.
    Steadman & Soelke, for appellant.
    Thomas E. D. Bradley, for appellee.
   Mr. Justice Freeman

delivered the opinion of the Court.

Appellee recovered judgment against defendant for $1123.19 balance claimed to be due for two boilers furnished and erected by plaintiff in October, 1902, for defendant under a written contract and specifications. The contract price was stated in plaintiff’s proposition to furnish the boilers, accepted in writing by the defendant, to be $3375. The boilers were furnished and erected it is said in October, 1902, at or about which time defendant paid half of the contract price. In February, 1903, he paid $500 more and in March following made another payment of $250, leaving due the balance of $1123.19 for which plaintiff has recovered the judgment from which this appeal is prosecuted.

There is evidence tending to show in April, 1903, a statement of the account showing a balance of $1123.19, the amount now in controversy, was presented to the defendant by the witness Brown and that the defendant then promised to pay that balance in the early part of the following month, viz: May, 1903; also that on or about the 10th of May, 1903, a statement of the same account, with interest thereon computed to that date was presented to defendant by the witness Merrill, and that defendant then again acquiesced in the correctness of the statement and promised to pay the amount within a few days. The testimony of the witnesses who presented these statements to the defendant, to the effect that the defendant’s promise to pay the balance shown by them to be due, and that no complaint of any kind was made as to the condition of the boilers nor any suggestion that the warranty of the plaintiff with reference to them was not fully satisfied, is unqualified. Apparently the defendant does not deny that he so acknowledged the correctness of the statements to one of these witnesses at least and promised to pay the balance thereby shown to be due. He testifies, however, that he thinks he told the witness Merrill the latter part of April or May.that the boilers were not up to the warranty, that he would not pay any more money until he “found out for certain by some expert who knew about the water tube boilers, that we certainly could not keep up steam with them, ’ ’ and that he would not pay any more until he found out to his satisfaction; that this was after he had made the payments credited to him. It appears from the evidence that the boilers were put in during October, 1902.

The declaration in this suit was filed August 7, 1903. In 1904 the plaintiff sold the premises and “sold the boilers with the building.” August 10, 1903, defendant pleaded the general issue to the plaintiff’s declaration, and nearly two years thereafter filed a plea of set-off, claiming a breach of the alleged guaranty “that the boilers would be of sufficient capacity to produce steam sufficient to operate the machinery of the defendant * * * at less cost to the defendant for fuel than the boilers with which the defendant was then supplying steam for the operation of the plant.” There was another count to this plea alleging a guaranty of capacity of the boilers to supply steam to operate the machinery of the defendant’s plant, and that the boilers were not of sufficient capacity. Three years later, April 30, 1906, additional pleas of set-off were filed.

The issues were submitted to the court, a jury having been waived. Upon the trial the plaintiff rested after introducing evidence as above stated, tending to show the promise of the defendant to pay the amount claimed to be due. Thereupon the defendant to sustain his pleas of sét-off introduced the evidence upon which he relies, setting up a breach of the alleged warranty as to the capacity of the boilers. The warranty is as follows: “We will guarantee that these boilers can be worked constantly up to 300 H. P. each without the slightest injury to any of their parts, and that every detail of the boiler shall meet with the approval of the Hartford Steam Boiler Inspection and Insurance Company.” The defendant’s evidence consisted first of the testimony of two witnesses to the effect that there was trouble in the operation of the boilers owing to an alleged scarcity of steam space, and that steam enough could not be produced by the boilers to run a 250 horse power Corliss engine; and second, of the testimony of two witnesses who testified as experts. The first of these had not seen the boilers but said that in his opinion if they were such as were described to him they could not generate 300 horse power, that their maximum capacity would be 125 or 130 horse power. The second of these experts gave testimony to the same effect. In reply plaintiff produced evidence tending to show that the boilers were left in bad condition when in December, 1904, they came under the control and observation of the witness, that the insides were corroded, dirty and filled with scale, and that they produced 376 horse power for a year afterward, furnishing steam to three establishments including the 350 horse power Corliss engine referred to. Another witness gave testimony to the effect that boilers of that construction would produce not only 200 horse power each, but would go up to 400 horse power each without trouble, and still another testified that the boilers in controversy would produce 700 horse power under every day conditions. There was other evidence having some bearing upon the issues raised, which it is not necessary to detail. The court found the plaintiff entitled to recover the amount of the account stated, but refused to allow interest, and gave judgment accordingly. A request that the court find “that said boilers were guaranteed by said plaintiff to be capable of being worked constantly up to 300 horse power each” was refused.

It is urged in behalf of defendant that there are but two questions of fact and one of law material to the issues. The first of these alleged questions of fact-is: What was the guarantee of the plaintiff? The phraseology of this alleged guaranty is above quoted. Defendant’s counsel discuss at length the evidence which it is claimed tends to substantiate the contention that the boilers “could not be worked up to more than a maximum of 100 horse power-each.” We cannot with propriety follow them in this discussion, nor is it necessary to do so. There is no dispute as to the language of the alleged guarantee. The question is as to its meaning and construction. Defendant’s claim is that it is a guaranty of capacity of 300 horse power for each boiler. It appears, however, from the letter containing the alleged guaranty and from the specifications enclosed with that letter that the boilers the plaintiff sold and the defendant purchased were “two 200 H. P. Cahall Horizontal Cross Drum Boilers.” They were not 300 horse power boilers at all. It would be singular if when plaintiff was selling and charging for 200 horse power boilers it should unnecessarily and intentionally guarantee them a capacity of 300 horse power. Such a construction could only be warranted in case the language of the alleged guaranty clearly showed such intention. The alleged guaranty asserts that the boilers “can be worked constantly up to 300 horse power each,” and there is evidence tending to show that with proper quality of fuel this could be done. But this is not the whole. That statement is modified by what follows, namely, that the boilers can be so worked “without the slightest injury to any of their parts.” This is, we think, a guaranty of the quality of the boilers, not of their capacity. We are of opinion the court’s ruling to the effect that the phraseology in question was not a guaranty of the capacity of the boilers is correct.

In view of this conclusion it is immaterial whether such alleged guaranty of capacity was kept and performed or not. There is evidence upon which the court might properly find the boilers could be so worked, and what is more to the point, there is evidence also tending to show that the capacity of the boilers was adequate to the demands of defendant’s plant.

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

Affirmed.