text:
    Libby Shulman, Appellee, v. John J. Moser, Appellant.
    Gen. No. 23,170.
    (Not to be reported in full.)
    Abstract of the Decision.
    Landlord and tenant, § 503

      —when evidence shows default as to rent at time of service of notice to quit. On forcible entry and detainer to recover possession of leased premises for nonpayment of rent, evidence held sufficient to support a finding that at the time notice to quit was served on defendant he was in default as to the rent.
    Appeal from the Municipal Court o£ Chicago; "the Hon. Edmund K. Jarecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed November 30, 1917.
    Rehearing denied December 14, 1917.
    Statement of the Case.
    Forcible entry and detainer by Libby Shulman, plaintiff, against John J. Moser, defendant, to dispossess defendant for nonpayment of rent. A judgment was entered on the verdict for possession and an order entered for the issuance of a writ of restitution, and defendant appeals.
    John J. Moser, pro se.

    No appearance for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Taylor

license: Public Domain

text:
    Richard Morgan, trading as Chicago Decorating Company, Appellee, v. Charles A. Roland, Appellant.
    Gen. No. 23,197.
    (Not to be reported in full.)
    Abstract of the Decision.
    Frauds, Statute of, § 10

      —when evidence shows promise to he an original undertaking. In an action to recover for services rendered and goods sold and delivered, evidence held sufficient to support a finding that defendant requested plaintiff to do the work, that the latter relied only upon defendant’s promise and that such promise was an original and not a collateral undertaking of defendant.
    Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed November 30, 1917.
    Statement of the Case.
    Action by Richard Morgan, • trading as Chicago Decorating Company, plaintiff, against Charles A. Roland, defendant, to recover an amount claimed to be due for painting and paper hanging. From a judgment for plaintiff for $90, defendant appeals.
    Earl J. Walker, for appellant; A. R. Miller, of counsel.
    William Arthur Anderson, for appellee; Charles Goodman, of counsel.

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

   Mr. Justice Taylor

delivered the opinion of the court.


author: Mr. Presiding Justice Holdom

text:
    Joseph Morse, Appellee, v. W. M. Peterson, Appellant.
    Gen. No. 23,125.
    1. False imprisonment, § 37

      —when verdict not excessive. A verdict of $400 for false arrest and imprisonment is not excessive where it appears that plaintiff, while in humble circumstances and. somewhat shiftless, was not a criminal and that he was rather roughly awakened at night by defendant, the chief of police of a village, and was forcibly and against his will and over his protest marched through the. village streets and locked in a cell in the village police station, without any complaint or 'warrant against him.
    2. Damages, § 17*—liability of defendant as affected by poverty of plaintiff. In an action to recover for false arrest and imprisonment, the liability of the defendant cannot be measured by the poverty of the plaintiff.
    Appeal from the Circuit Court of Cook county; the Hon. David F. Matchett, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed December 3, 1917.
    Frederick Dickinson, for appellant.
    No appearance for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an undefended appeal, yet we see no escape from affirming the judgment of the trial court.

The action is trespass for false arrest and imprisonment. By the verdict of the jury the damages were assessed at $500 and on a remittitur of $100 made by-plaintiff a judgment, was entered for $400.

The only question argued is that the damages are excessive for the wrong committed.

Personal liberty is the most precious right of free men. In this case that right of a humble and maybe not very thrifty citizen, the plaintiff, was grossly invaded. He was arrested, maltreated and incarcerated in a police station cell without either complaint or warrant, contrary to law. He was taken from a place in which he indisputably had a right to be. He was innocent of any crime known to the law.

Defendant was chief of police of the police force, consisting of six men, himself included, of the Village of Winnetka in Cook county, where the unlawful acts complained of were committed. Defendant knew the plaintiff, who had resided within the limits of the Village of Winnetka for 32 years, and knew that he was not a criminal, but a somewhat shiftless and harmless person; yet at night he rather roughly aroused plaintiff from his slumbers and forcibly and against his will and in the teeth of his protest marched him through the village streets and locked him up in a cell of the village police station. For these inexcusable, unlawful acts defendant stands condemned to pay the plaintiff $400.

From the evidence we think there are circumstances of aggravation which call not only for compensatory but vindictive damages. As an officer of the law the defendant must be presumed to know that his conduct was not only unwarranted but illegal. His financial responsibility for such an illegal act cannot be measured by the poverty of the individual whose fights were assailed and whose liberty was interfered with. All persons are equal before the law. For such a flagrant violation of the law and the rights of plaintiff the award of damages cannot be regarded as excessive.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Charles Hanke, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 23,305.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Street railroads, § 142

      —when instruction is erroneous as placing too high a degree of care on motorman to avoid collision with wagon. In an action against a street railway company to recover for personal injuries through being struck by a car while driving across defendant’s track, too high a degree of care is imposed by an instruction, given at plaintiff’s request, that if the jury believe from the evidence that the motorman saw “or could have seen by the exercise of ordinary care and caution” that plaintiff, “in the exercise of ordinary care for his safety,” was going to reach the crossing before the car, then it was the motorman’s duty “to so operate and control said street car that he could stop it and avoid a collision,” and that if they find that the motorman did not have such control and the car and the wagon collided by reason thereof and injured plaintiff, they should find defendant guilty.

      Appeal from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed December 3, 1917.
    Statement of the Case.
    Action by Charles Hanke, plaintiff, against the Chicago Railways Company, defendant, to recover for personal injuries received through being struck by a car while driving across defendant’s track. From a judgment on the verdict for plaintiff for $2,000 defendant appeals.
    Ada M. Cartwright and Thomas J. Symmes, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    William McKinley and L. F. Binkley, for appellee.

      See Illinois Notes Digest, Vole. 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. Presiding Justice Holdom

delivered the opinion of the court.

2. Appeal and error, § 1652 —when erroneous instruction on negligence not cured by correct instruction. In an action to recover for personal injuries where the duty of plaintiff and defendant towards each other is the vital question in the case, error in giving an instruction at plaintiff's request which required defendant to exercise such care as virtually to make it an insurer is not cured by the fact that an instruction was given at defendant’s request which correctly stated the law on the question.

3. Street railroads, § 142*—when instruction on right of person crossing track to rely upon motorman avoiding collision is erroneous. In an action to recover for personal injuries by being struck by a street car in crossing the track at a street crossing, an instruction asked by plaintiff that “the plaintiff as a matter of law had a right to rely upon the duty and ability of the motorman in charge of said street car to so operate and control said street car as to avoid a collision,” is objectionable as being misleading and as taking away from the jury the determination of the fact as to whether the, motorman was in the exercise of ordinary care in controlling his car, or whether he was guilty of a lack of such ordinary care as to bring about the accident.

4. Instructions, § 126*—impropriety of abstract instruction. The giving of an instruction stating an abstract proposition of law, while not reversible error, is not to be commended.

5. Instructions, § 126*—when abstract instruction is erroneous. An instruction stating an abstract proposition of law which is not applicable to the facts in evidence should not be given.

6. Street railroads, § 83*—mutuality of rights and duties of cars and vehicles at crossings. The rights and duties of street cars and vehicles at intersecting crossings are correlative.


author: Mr. Presidihg Justice Holdom

text:
    John Burns, by his father and next friend, John Burns, Appellee, v. Chicago Railways Company et al., Receivers, Appellants.
    Gen. No. 23,316.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Corporations, § 573

      —what is effect of substitution of receivers as parties for corporation. Where, in an action against a street railway company, the plaintiff amends his proceedings by substituting as defendants the receivers of the street railway company, the railway company is automatically eliminated from the case and it is not error to overrule its motions to instruct a finding in its favor or to arrest the judgment.
    Appeal from the Superior Court of Cook county; the Hon. Joseph Sabath, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed December 3, 1917.
    Statement of the Case.
    Action by John Burns, a minor, by his father and néxt friend, John Burns, plaintiff, against the Chicago Railways Company and Henry A. Blair and John M. Roach, as receivers of Chicago Railways Company, defendants, to recover for personal injuries received while attempting to board a street car. From a verdict and judgment for plaintiff for $2,500, defendants appeal.
    Frank L. Kriete, for appellants; J. R. Guilliams and Thomas J. Symmes, of counsel.
    George E. Gorman and William B. Bauer, 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. Presidihg Justice Holdom

delivered the opinion of the court.

2. Carriers, § 476 —when evidence supports verdict in action for injuries. In an action to recover for personal injuries received in attempting to board a street car, evidence held to support a verdict for plaintiff.

3. Corporations—when■ original declaration considered as part of allegations against receivers substituted as parties. The original declaration in an action against a street railway company is to be included as a part of the allegations against the receivers of such company where, as amended, it stands against the receivers in place of the company.

4. Pleading, § 243*—when order of amendment includes all pleadings. An order of amendment in an action against a street railway company which provides that “all papers and proceedings herein be amended” by making certain persons, stated to be receivers of such company, party defendants, is sufficiently broad to include the amendment of all the papers then on file, pleas as well as declaration.

5. Carriers, § 464*-—propriety of rulings on. evidence in action by passenger for injuries. In an action by a passenger to recover for personal injuries received in boarding a street car, rulings of the court as to the admission and exclusion of evidence held not erroneous.

6. Damages, § 142*—when not excessive. In an action to recover for personal injuries, a verdict for $2,500 is not excessive where the evidence shows that plaintiff suffered painful injuries necessitating an operation and his remaining in the hospital for 10 days, that he suffered much pain and had to return to the hospital a month later for further treatment, necessitating the use of an anassthetic, and that he suffers from headache and an ear discharge and is somewhat deaf.


text:
    John E. Peterson, Appellant, v. John E. Landell et al., Appellees.
    Gen. No. 23,336.
    (Not to be reported in full.)
    Abstract of the Decision.
    Cancellation of instruments, § 2

      —when contract for purchase of business not canceled. Where it appears that one seeking to rescind a contract by which he purchased a business had possession of the business and dealt with it as his own for 7 months, removed it from the place at which it was located, sold it to a corporation for stock which was in face value $3,000 more than the purchase price he had agreed to pay for it, that changes had taken place in the property making it impossible to place all of the parties in statu quo, that in the transaction the parties dealt at arm’s length, and the charge of fraud and misrepresentation is not supported, the relief sought is properly denied.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed December 3, 1917.
    Statement of the Case.
    Bill by John E. Peterson, complainant, against John E. Landell and others, defendants, to rescind a contract for the purchase of a business on the ground of fraud and misrepresentation. From a decree dismissing the bill for want of equity, complainant appeals.
    Litzinger, Heady & Reid, for appellant.
    Edgar A. Jonas and Edward J. Hess, for appellees.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Adolph Gibberman, Appellee, v. Jonas Stangal et al., on appeal of Mollie Feder and Jacob Feder, Appellants.
    Gen. No. 23,459.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mortgages, § 518

      —when reason for appointment of receiver without hand must appear in order of appointment. Where a bond is not exacted upon the appointment of a receiver in foreclosure proceedings, the reason for appointing a receiver without bond must appear by an appropriate recital in the order of appointment.
    2. Mortgages, § 515*—necessity of notice and full hearing in proceedings for receiver. When a bond is not exacted of the receiver in foreclosure proceedings, there must be notice and a full hearing.
    3. Mortgages, § 515*—what constitutes sufficient service of motion for appointment of receiver on party. Service on a party of notice of a motion for the appointment of a receiver without bond in foreclosure proceedings is sufficient when made hy leaving a copy of the notice with her husband and codefendant.

      Interlocutory appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court.
    Reversed.
    Opinion filed December 3, 1917.
    Statement of the Case.
    Bill for foreclosure by Adolph Cibberman,' complainant, against Jonas Stangal and others, defendants. From an interlocutory order appointing a receiver of the mortgaged premises, defendants Mollie Feder and Jacob Feder appeal.
    Joseph Rosenberg, for appellants.
    Louis Dulsky and Samuel Dulsky, 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. Presiding Justice Holdom

delivered the opinion of the court.

4. Mortgages, § 518 —when order of appointment of a receiver must contain finding of ground of waiver of notice of applications for order for receiver and hond. A provision in a trust deed which waives notice of the application of an order for a receiver and the giving of a bond by the complainant does not dispense .with the necessity of a finding in the order of appointmeht of a ground for such waiver, hut the order should recite that the bond was not required because waived by the terms of the trust deed.


author: Mr. Presiding Justice Hoddom

text:
    A. T. Stearns, Appellee, v. Inga Swanson, Appellant.
    Gen. No. 23,548.
    (Not to be reported in full.)
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in this court.
    Reversed.
    Opinion filed December 3, 1917.
    Statement of the Case.
    Bill by A. T. Steams, complainant, against Inga Swanson, defendant, to restrain from doing certain things, among them, from the collection of certain judgments theretofore obtained by defendant against complainant. From an interlocutory order granting the injunction without notice, defendant appeals.
    Litzinger, Heady & Reid, for appellant.
    Frederick A. Brown, for appellee.

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

   Mr. Presiding Justice Hoddom

delivered the opinion of the court.

Abstract of the Decision.

1. Judgment, § 349 —when bond given on interlocutory order granting injunction without notice against collection of judgment is invalid. Where the bond given on an interlocutory order grant- ■ ing, without notice, an injunction, which restrains, among other things, the collection of certain judgments obtained by defendant against complainant, does not provide for the payment of such judgments in the event that the injunction is dissolved, such bond is in violation of Hurd’s Rev. St. ch. 69, sec. 8 (J. & A. If 6168).

2. Judgment, § 349*—who has right to assess damages where interlocutory order granting injunction is reversed on appeal. Where an interlocutory order granting an injunction is reversed on appeal, the assessment of defendant’s damages is for the chancellor and not for the Appellate Court.


author: Mr. Justice Dever

text:
    Robert W. Dunn, Appellee, v. Seig Natenberg and B. Natenberg, Appellants.
    Gen. No. 23,272.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed December 3, 1917.
    Statement of the Case.
    Action by Robert W. Dunn, plaintiff, against Seig Natenberg and B. Natenberg, defendants, to recover money deposited by plaintiff’s assignor with defendants to secure the performance of the promises made under a lease made by defendants to plaintiff’s assignor. The evidence showed that prior to the expiration of the term of the lease defendants sued for and recovered possession from plaintiff’s assignor for nonpayment of rent. There was a verdict and juclgment for plaintiff for $1,843.10, from which defendants appeal.
    Abstract of the Decision.
    1. Landlord and tenant, § 279

      —when lease is terminated. Where a lessor elects to take advantage of his legal right to terminate a lease for failure to pay rent and the lessee is dispossessed by due process of law, the lease is thereby terminated and the contractual relation between the lessor and lessee is dissolved.
    2. Landlord and tenant, § 274a*—when lessor not entitled to retain deposit as liquidated damages for breach of lease. The provision in a lease that a sum of money deposited by the lessee with the lessor to secure the performance of the terms and conditions of the lease shall, in the event of a breach of such terms and conditions, be retained by the lessor as liquidated damages on account of such breach does not entitle the lessor to retain such amount where the lessee has been dispossessed for nonpayment of rent, at the suit of the lessor, before the expiration of the term.
    3. Landlord and tenant, § 274a*—when evidence as to expenditures by lessor is inadmissible in action by lessee to recover deposit. In an action by a lessee against a lessor to recover a sum of money deposited with the latter by the lessee to secure the performance of the terms of the lease, evidence of expenditures by the lessor in remodeling the property is inadmissible, though such expenditures were made to secure the execution of the lease, where the lease contained no provision for reimbursing the lessor for them.
    4. Landlord and tenant, § 274a*—when evidence as to closing of property is inadmissible in action by lessee to recover deposit. In an action by a lessee against a lessor to recover a sum of money deposited with the latter to secure the performance of the terms of the lease, where the evidence shows that the lessee was dispossessed at the suit of the lessor for nonpayment of rent, evidence of damage to defendant by reason of the closing of the property is properly excluded.
    Bernard J. Brown, for appellants.
    Charles J. Monahan, for appellee; Robert W. Dunn, of counsel.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    F. N. Matthews & Company, Appellant, v. Morris Lilienthal et al., Appellees.
    Gen. No. 23,274.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court op Chicago, § 13

      —what are essentials of ■ :pleadings in. Even though no formal written pleadings are required in fourth-class cases in the Municipal Court of Chicago, the statement of claim must show that plaintiff has a good cause of action and the affidavit of merits must show that defendant has a legal defense.
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed December 3, 1917.
    Rehearing denied December 17, 1917.
    Statement of the Case.
    Action by F. N. Matthews & Company, a corporation, plaintiff, against Morris Lilienthal and others, defendants, to recover damages for breach of contract, to which defendants filed a statement of counterclaim. Plaintiff’s statement of claim and affidavit of merits were stricken from the files on defendants’ motion and plaintiff elected to stand by it, whereupon ’ judgment was entered by the court on defendants’ statement of counterclaim for $1,796.18, to reverse which plaintiff appeals.
    Frank & Lurie, for appellant.
    McEwen, Weissenbach & Shrimski, for appellees; Jerome J. Cermak, of counsel.

      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 Dever

delivered the opinion of the court.

2. Municipal Court of Chicago, § 13 —what are essentials of statement of claim in fourth-class case. The provision of the Municipal Court Act (section 40, J. & A. f 3352), that a statement of claim need not set forth the cause of action with the particularity-required in a declaration at common law does not obviate the necessity that the statement in a fourth-class case show a legal liability of a defendant to a plaintiff.

3. Contracts, § 8*—when contract not to sell to competitors is void for uncertainty. A contract by which a seller agrees not to sell any like or similar articles to the purchaser’s competitors within specified territorial limits, without any time limits being fixed for compliance with its terms by the parties and which makes the purchase of any goods and the amount to be purchased optional with the purchaser, while it requires the seller to deliver the purchaser such goods as he may order, without specifying any means for determining the terms or prices, is unenforceable, in so far as executory, because uncertain and indefinite.

4. Damages, § 61*—when for loss of profits not recoverable. A claim for damages for an alleged loss of profits cannot be sustained when based on a failure to comply with the executory terms of a contract which are so uncertain and indefinite as to be unenforceable.

5. Municipal Court of Chicago, § 13*—when plaintiff’s statement of claim and affidavit of merits are defective. Where a defendant’s statement of counterclaim sets up the delivery to and retention by plaintiff of certain merchandise and plaintiff’s statement of claim and his affidavit of merits to the counterclaim alleges his election to return the merchandise without, however, it appearing therein that he had possession thereof at the time of the trial, plaintiff’s statement and affidavit are defective.

6. Pleading, § 367*—when affidavit of merits is improperly stricken from files. An affidavit of merits to a counterclaim which presents a valid defense to a part of the counterclaim is improperly stricken from the files.


text:
    Jacob Kaminsky, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 23,280.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Hastes and servant, § 706

      —When negligence of 'master is . question for jury. In an action by a servant against a street railway company to recover for personal injuries alleged to have been caused through defendant’s negligence, the question of such negligence held, under the circumstances shown by the evidence, to be for the jury.
    2. Master and servant, § 149*—what is duty of street railway company to protect yard employees. It is the duty of a street railway company employing men about its yards to use every reasonable precaution to protect them from the cars.
    3. Master and servant, § 695*—what evidence tends to show

      negligence in injuring person employed at night in street railway company yards. In an action to recover for personal injuries received while employed at night in a street car yard, evidence that the light In the yard was poor, the cars not lighted and that no warning was given of the approach of the cars causing the injury, though it was customary in the yard to give such warning, tends to show negligence on the part of defendant.

      Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed December 3, 1917.
    Rehearing denied December 17, 1917.
    Statement of the Case.
    Action by Jacob Kaminsky, plaintiff, against Chicago Railways Company, defendant, to recover for personal injuries received while in defendant’s employ. From a verdict and judgment for plaintiff for $15,000, defendant appeals.
    Robert J. Slater and Charles LeRoy Brown, for appellant; John R. Guilliams, of counsel.
    Francis X. Busch, for appellee.

      See niinols 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 Dever

delivered the opinion Off the court.

4. Master and servant, § 759 —when contributory negligence of street railway company yard employee is question for jury. In an action by a servant to recover for personal injuries, where the evidence is conflicting as to whether the plaintiff was negligent in passing between standing cars to carry out his employer’s orders, his negligence is a question for the jury.

5. Master and servant, § 432*—what degree of care required of servant. A servant is called upon to exercise a degree of care commensurate with the character of the work he is performing and the environment in which he is plfteed.

6. Master and servant, § 759*—when custom as to passing between cars makes contributory negligence of street railway company yard employee question for jury. In an action by one employed in a car yard to recover for personal injuries received in passing between cars to do his work, where the evidence shows that a custom existed in the yard which permitted the men in doing their work to cross between the cars, it cannot be said, as a matter . of law, that plaintiff was guilty of contributory negligence in doing so.

7. Master and servant, § 432*—what care servant required to exercise. A servant is required to exercise the care that a reasonably prudent person would exercise under the surrounding circumstances.

8. Master and servant, § 751*—when exercise of proper degree of care by servant is question for jury. In an action by a servant to recover for personal injuries, where the evidence is conflicting as to whether he exercised the proper degree of care, the question of his negligence is for the jury.

9. Master and servant, § 224*—what is question to be determined where defendant claims injuries are due to negligence of fellow-servant. In an action by a servant to recover for personal injuries, where defendant claims that such injuries were caused by the negligence of a fellow-servant, the question to be determined is whether plaintiff and such other employee, in the performance of their duties were brought into such association as that each might have exercised an influence upon the other, promotive of proper caution.

10. Master and servant, § 266*—who are not fellow-servants. A car cleaner and a car repairer who are employed in the yards of a street railway company, held not to he fellow-servants as a matter of law.

11. Master and servant, § 266*—when employee upon whom is imposed duty of warning of approach of cars is vice principal. Where an employer has established a custom of giving warning of the approach of cars to such an extent that a servant is authorized to rely thereupon, the continual performance of the duty imposed thereby cannot be delegated, and an employee upon whom the duty of giving the warning has been imposed occupied the relation of vice principal in regard thereto.

12. Instructions, § 151*—when instruction properly refused. It is not error to refuse to give an instruction though it contains correct statements of law where such statements are covered in other instructions and the instruction refused also contains erroneous statements.

13. Damages, § 125*—when verdict in personal injury action is not excessive. A verdict for $15,000 is not excessive where plaintiff received severe crushing injuries to his right leg, necessitating its amputation 2 or 3 inches below the kneecap, causing much pain and being of such a character that he cannot use an artificial limb for any considerable length of time, and where before the injury he was earning $14 a week, whereas after the accident his earnings have been from 40 to 60 cents a day.


text:
    Lillian H. Cazier, Appellee, v. Phillip State Bank of Chicago, Appellant.
    Gen. No. 23,283.
    (Not to he reported in full.)
    Abstract of the Decision.
    Assumpsit, Action op, § 89

      —when evidence supports verdict in action for money had and received. In an action to recover money had and received, evidence examined and held sufficient to support a judgment for plaintiff.
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed December 3, 1917.
    Statement of the Case.
    Action "by Lillian H. Cazier, plaintiff, against Phillip State Bank of Chicago, a corporation, defendant, to recover , a balance claimed to be due out of the proceeds of a sale of realty. From a judgment for plaintiff for $3,732.29, defendant appeals.
    Otto G. Ryden, for appellant.
    Donald L. Morrill, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    William Hanke, Appellee, v. George C. Keech, Appellant.
    Gen. No. 23,348.
    (Not to he reported in full.)
    Abstract of the Decision.
    Brokers, § 104

      —what does not relieve purchaser from liability on promise to protect broker to extent of commission. A purchaser who agrees with a real estate broker holding property for sale to protect him to the extent of any commission he had arranged for with the owner of the property is not relieved from such agreement by the fact that the broker thereafter informed the owner that he had previously been offered a higher price by another, thereby causing the owner to refuse to sell to the purchaser at less than such higher price.
    Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed December 3, 1917.
    Statement of the Case.
    Action by William Hanke, plaintiff, against George C. Keech, defendant, to recover on a contract to pay a commission on the sale of real estate. From a judgment for plaintiff for $112.50, defendant- appeals.
    Scott, Bancroft, Martin & Stephens and Louis W. Mack, for appellant.
    No appearance for appellee.

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

   Mr. Justice Dever

delivered the opinion of .the court.


text:
    Andreas Pienta, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 23,353.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Negligence, .§ 191

      —when question for jury. In an action to recover for personal injuries, where the evidence is conflicting, the question of the negligence of defendant is for the jury.
    2. Negligence, § 198*—when contributory is question for jury. In an action to recover for personal injuries, where the evidence is conflicting, the question of plaintiff's contributory negligence is for the jury.
    3. Street railroads, § 97*—what care required of person crossing tracks. One crossing a street railway track is chargeable by law with the exercise of reasonable care for his own safety.
    4. Street railroads, § 86*—when liable for injury to occupant of vehicle crossing tracks. Where one is injured by a street car while driving across the track with another in a wagon, if the evidence, in an action against the street railway company to recover for such injuries, tends to prove that his' injuries were the result of the negligence of defendant’s employees or of the joint negligence of such employees and the driver of the vehicle, then, if the jury find that plaintiff was free from negligence, the defendant will be liable.

      Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed December 3, 1917.
    Statement of the Case.-
    Action by Andreas Pienta, plaintiff, against Chicago City Railway Company, defendant, to recover for personal injuries. From a judgment for plaintiff for $10,000, defendant appeals.
    Benjamin F. Richolson and Charles LeRoy Brown, for appellant; John R. Guilliams, of counsel.
    Scott O. Cavette, Vincent G. Gallagher and Ernest Messner, for appellee.

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

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

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

   Mr. Justice Dever

delivered the opinion of the court.

5. Street railroads, § 135 —when negligence of driver of wagon struck while crossing tracks and injuring occupant is question for jury. In an action to recover for personal injuries to one struck by a street car while crossing the track in a wagon driven by another, the question of the driver’s negligence is for the jury.

6. Appeal and error, § 1543*—when faulty instruction on credibility of plaintiff as witness is harmless error. While an instruction that the jury shall treat the plaintiff in the same' way and subject him to the same tests as are legally applied to other witnesses is, when disconnected from other instructions, faulty, it is not reversible error where, by instructions tendered by defendant which are to be considered in connection therewith, the jury are instructed to take into consideration plaintiff’s interest, but that otherwise his testimony is to be treated in the same way and subjected to the same tests as that of other witnesses.

7. Instructions, § 90*—propriety of instruction on not considering statements of witnesses made out of cou/rt. An instruction to the effect that the jury cannot consider statements made by witnesses out of court except in so far as such statements tend to affect the credibility of the witnesses making them is not erroneous except as applied to plaintiff’s own testimony.

8. Evidence, § 177*—what is effect of statements of witnesses out of court as admissions binding party. Statements of witnesses out of court are not to be regarded as admissions binding upon the interest of a party who has in no way directed the making of the statements. .

9. Witnesses, § 342*—when evidence of contradictory statements of witness out of court is admissible. Generally, evidence of a contradictory statement of a witness out of court is admissible solely for the purpose of showing that he has made statements tending in some material way to contradict his testimony.

10. Appeal and error, § 1543*-—when instruction on not considering statements of witnesses out of court except on question of credibility and not excluding plaintiff is harmless error. An instruction that the jury cannot consider statements made by witnesses out of court except in so far as such statements tend to affect the credibility of the witnesses making them is not reversible error for failing to exclude the plaintiff from its application, where the evidence does not tend to show that he made statements out of court or on a former trial which materially contradicted his testimony in the last trial.

11. Street railroads, § 131 —what evidence does not contradict testimony of plaintiff on former trial as to distance car was away. In an action to recover for personal injuries through being struck by a street car, evidence of plaintiff on the first trial that at a certain time the car was 4 or 5 blocks away is not materially contradicted by his evidence on the second trial that at such time the car was far away.

12. Street railroads, § 152*—when error in instruction on operation of street ear is not ground for reversal. In an action to recover for personal injuries through being struck by a street car while an instruction that “while the law does not regulate the precise rate of speed at which a street car must be run under given circumstances, it does however require that said cars be operated with reasonable care so as to prevent them from injuring others lawfully using the streets in which said cars are being operated,” is, standing alone, subject to the construction that if defendant had operated its cars with reasonable care, plaintiff’s injuries could have been avoided, it is not ground for reversal where other instructions correctly state the duty which the law imposed upon defendant in the circumstances, in such a manner that the jury could not have been misled.

13. Appeal and error, § 1523*—when inaccuracies in instructions are not ground for reversal. Inaccuracies in some of a number of instructions are not ground for reversal, if the jury were not misled thereby when the instructions were read together.

14. Jury—what is effect of answer of juror to question as to interest in similar case. Failure of a juror, when asked whether he or any of his relatives had ever been in a street car accident and whether he or they .had ever been interested “in a case of this kind,” to disclose that his wife had met with an accident on a sidewalk and had settled a claim therefor with the city does not render his negative reply to such questions untrue.

15. Damages, § 112*—when verdict in personal injury action is not excessive. A verdict for $10,000' for injuries to a healthy boy of 18, whereby he received" two head wounds, one of which necessitated trepanning, causing him to remain in the hospital 3 weeks and resulting in necrosis of the bone and epileptic seizures and impairing his ability to earn a livelihood, is not excessive.


text:
    D. Mazor and A. Cohen, Appellees, v. B. Handler et al., on appeal of B. Handler, Appellant.
    Gen. No. 23,425.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment, § 343

      —when hill to enjoin enforcement of is insufficient. A hill to enjoin the enforcement of a judgment on the ground that through the error of the clerk of the trial court in entering of record as a denial of a motion to vacate the judgment, an order denying a motion to quash an execution issued on the judgment of such court, complainants, who were unable to secure a review of such order, should show what allegations were made in the petition to quash the execution.
    2. Municipal Court of Chicago, § 19*—when has power to cor-

      red error of clerk in entering of judgment. The Municipal Court of Chicago has power to correct, on motion, an error of the clerk in entering a judgment on its records even though 30 days had elapsed between the date the judgment was entered and the time when the party affected by the error learned of it.

      Interlocutory appeal from the Circuit Court of Cook county; the Hon. Thomas Gr. Windes, Judge, presiding. Heard in this court.
    Order reversed and cause remanded with directions.
    Opinion filed December 3, 1917.
    Statement of the Case.
    Bill by D. Mazor and A. Cohen, complainants, against B. Handler and others, defendants, to restrain the collection of judgments obtained by defendant Handler against complainants.
    From an interlocutory order denying a motion to dissolve the injunction entered in the cause, defendant Handler appeals.
    Blum, Wolfsohn & Blum, for appellant.
    Frank H. Lennards, for appellees.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

3. Appeal and error, § 1380 —when error in abuse of discretion of trial court will be corrected. A defendant against whom a judgment has been obtained by confession may move to quash the execution issued thereon or to vacate the judgment, and if the court, on a sufficient showing, abuses its discretion in ruling upon such motion, the abuse may be corrected by appeal to a court of review.

4. Judgment, § 343*—when bill to enjoin enforcement of should show request of trial judges to correct error. A bill to enjoin the enforcement of a judgment on the ground that the clerk erred in entering the denial of a motion to quash the execution thereon as a denial of a motion to vacate the judgment, should, where it alleges the refusal of the judges of the trial court to correct the error, show that such correction had been requested by motion or in some other legal manner.

5. Judgment, § 319*—when equity will not afford relief against enforcement .of. Where complainants seeking to enjoin the enforcement of a judgment were not prevented from obtaining relief in the trial court through any fraud, accident or mistake, but had opportunity by proper proceedings to present their defenses and by appeal to correct any error committed in the proceedings to obtain or vacate the judgment, equity will not afford them relief.

6. Appeal and error, § 718*—when order allowing appeal need not appear in record. Where a record discloses that an appeal from an order denying a motion to dissolve an injunction was prayed and that this prayer was followed by the filing of an appeal bond for costs, np order of the lower court allowing the appeal need be disclosed in the record.


author: Mr. Justice McSurely

text:
    Isidor Kohn, Appellee, v. John Nagel and Annie Nagel, on appeal of Annie Nagel, Appellant.
    Gen. No. 23,284.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Fraudulent conveyances, § 242

      —when evidence shows that conveyance by debtor to wife is presumptively fraudulent as to creditors. On a bill by a judgment creditor against the judgment debtor and the latter’s wife to set aside a conveyance by the debtor to the wife and subject it to the payment of the judgment, evidence examined and held sufficient to support a finding that such conveyance was presumptively fraudulent and void as to creditors whose claims were in existence when the conveyance was made.
    2. Fraudulent conveyances, § 45*—when actual insolvency need

      not be shown. To set aside a voluntary conveyance by a judgment debtor as in fraud of ■ the judgment creditor, it is'not necessary to show that, at the time of the conveyance, the debtor was actually insolvent.

      Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the March term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed December 3, 1917.
    Rehearing denied December 17, 1917.
    Statement of the Case.
    Bill by Isidor Kohn, complainant, against John Nagel and Annie Nagel, his wife, defendants, to set aside conveyances of certain realty to Annie Nagel and to subject the interest of John Nagel therein to the payment of a judgment had by complainant. From a decree for complainant, defendant Annie Nagel appeals.
    Bradley, Harper & Eheim, for appellant; Thomas E. D. Bradley and Edward J. Farrell, of counsel.
    Frederic A. Fischel, for appellee; Ignatz Spitz, of counsel.

      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 McSurely

delivered the opinion of the court.

3. Fraudulent conveyances, § 89 —what is effect of marital relation in determining whether conveyance is void. In ascertaining whether a conveyance from husband to wife is in fraud of creditors, while the marital relation is not, of itself, sufficient ground for holding the transaction void, it is ground for closely scrutinizing the transaction.

4. Fraudulent conveyances, § 300*—when decree conforms to bill. On a bill to set aside a conveyance as in fraud of creditors, decree rendered held to follow sufficiently the theory appearing in the bill.


text:
    Henry F. Wardwell, Appellee, v. Hocking Valley Railway Company, Appellant.
    Gen. No. 23,295.
    (Not to be reported in fuli.)
    Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed December 3, 1917.
    Statement of the Case.
    Action by Henry F. Wardwell, plaintiff, against Hocking Valley Railway Company, defendant, to recover damages for a breach of contract for the sale of goods. From a judgment for plaintiff for $14,250, defendant appeals.
    Calhoun, Lyford & Sheean, for appellant; Edward W. Rawlins, of counsel.
    H. G. Colson, for appellee.

      Abstract of the Decision.
    1. Sales, § 373

      —when evidence shows breach of contract to deliver cars within reasonable time. In an action to recover damages for a breach of contract for the sale of cars, evidence examined and held sufficient to support a finding that the contract called for delivery in a reasonable time, that such delivery was not made and that plaintiff was entitled to recover.
    2. Sales, § 376*—what is measure of damages for breach of contract to deliver property. The measure of damages ón a breach of contract to deliver property is the difference between the contract price and the market price at the time and place of delivery.
    •3. Sales, § 380*—how measure of damages for breach of contract to sell goods may not be established. In an action to recover damages for a breach of contract for the sale of goods, the measure. of damages is not to be established by proof of the price fixed in an unconsummated agreement by plaintiff for the resale of the goods to another.
    4. Sales, § 386*-r~when finding as to market value of goods will not be disturbed. In an action to recover damages for breach of a contract for the sale of goods, a finding as to the market value of such goods which is well within the limits of the testimony in regard to their market value will not be disturbed on appeal.
    5. Trial, § 300*—when propositions of law are insufficient. Propositions of law submitted to the court should not assume the existence of facts in dispute.
    6. Trial, § 297*—when proposition of law is properly refused. A proposition of law is properly refused where the evidence fails to establish 'the facts which it assumes and upon which it is predicated.
    7. Trial, § 292*—when proposition of law properly refused as inapplicable to facts. A proposition of law is properly refused when it ignores part of the evidence and when it is not applicable to the facts as found by the court.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Benjamin E. Cahn, Appellee, v. Northwestern Mutual Life Insurance Company, Appellant.
    Gen. No. 23,301.
    1. Insurance—what is tontine. Tontine insurance is a system based, under various forms, “upon the idea of a loan or investment of the property for the benefit of a number of persons, the income at first being divided among all and the shares of the members who die passing not to their own legal representatives but to increase the interest of the surviving member, until, at last, after the number of members has gradually diminished by successive deaths, the last survivor takes the whole income, or, if such be the terms agreed upon, the whole principal."
    2. Corporations, § 178

      —what is right of holders of tontine policies as to inspection of looks of company. Holders of tontine policies are entitled to an inspection of the books and papers of the company in order that they may determine the proper amount of the surplus.
    3. Insurance—how proper amount of surplus of tontine policy ascertained. The ascertainment of the proper amount of the surplus of a tontine policy involves the number, dates and amounts of the policies issued, the number terminated or the amount paid on account of them, the amount of premiums and other like items and the equitable apportionment of the surplus among the continuing policies.
    4. Insurance, § 54*—what does not constitute guaranty of amount of surplus on tontine policy. Letter of an insurance agent as to the amount of surplus which would accrue on a tontine policy at the end of 20 years, held not a guaranty by the company that the insured would be entitled to that amount at the end of that time.
    5. Insurance, § 54*—when holder of tontine policy deemed to know that statement of agent as to surplus on policy at end of tontine period is only opinion. One taking out a tontine policy is held in law to know that the amount of the surplus at the end of the tontine period will depend upon the happening of several contingencies during the period, and that any statement of an agent made at the beginning of the period as to the amount of the surplus can only be an estimate or opinion.
    6. Insurance, § 912*—when inclusion of interest in judgment in

      action on tontine insurance policy is error. It is error, in an action to recover an amount claimed to he due on an insurance policy, to include in the verdict and judgment interest on an amount admitted hy defendant to be due and for which judgment had been recovered by plaintiff in a prior action, the claim for interest thereon having been merged in such prior judgment.
    7. Appeal and erbob, § 1802

      —when judgment will he reversed without remanding. Errors of the trial court in refusing defendant’s motion to instruct the jury in its favor and in granting plaintiff’s motion for a peremptory instruction are errors which cannot be cured upon another trial, and in such case the Appellate Court will reverse the judgment without remanding, and will enter a judgment of nil capiat.

    Appeal from the Circuit Court of Cook county; the Hon. Robert E. Crowe, Judge, presiding. Heard in this court at the March term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Reversed and judgment here.
    Opinion filed December 3, 1917.
    John Barnes and Scott, Bancroft, Martin & Stephens, for appellant; Horace H. Martin and Lester L. Falk, of counsel.
    Silber, Isaacs, Silber & Woley, for appellee; Frederick D. Silber and Martin J. Isaacs, of counsel.

      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 McSurely

delivered the opinion of the court.

Plaintiff, holding a semitontine life .insurance policy issued by the defendant, which had matured, was entitled to certain options, including one involving the cash payment to him of a so-called surplus; the amount of this surplus is the subject of this suit. Defendant says it is- $2,396.98, but plaintiff claims that it is $6,245.50.

A phase of this case was formerly before us; see Cahn v. Northwestern Mut. Life Ins. Co., 192 Ill. App. 172. Subsequent to that decision a judgment was entered against defendant for the amount admitted to be due, that is, $2,396.98, and the judgment order, recited “that this suit proceed as to the claim of the plaintiff for the allowance of interest upon the sum aforesaid, and as to all other disputed matters and issues made up between the parties thereto.” Shortly thereafter, that is, on May 6, 1915, this judgment was paid and satisfied of record.

Upon the trial of the issues left open the court denied a motion to instruct for the defendant and allowed a motion to instruct the jury to return a verdict for the plaintiff for $5,221.43; this includes the balance of the surplus claimed by plaintiff with interest, and also interest on the amount of surplus as admitted by the defendant from the date of the maturity of the policy to the payment of the judgment therefor. Upon this verdict judgment was entered from which defendant has appealed.

To what amount of surplus is plaintiff entitled? Determined alone from the language and theory of the policy, the amount is as stated by defendant, $2,396.98, but plaintiff asks for the dominant effect of a letter given to him by one of defendant’s agents prior to the issuance of the policy.

The evidence tends to show that some time in October or November, 1891, a Mr. St. Giles, a solicitor of insurance for defendant, gave to plaintiff a written proposal which in part was as follows:

“Benj. R Cahn, Esq., City.
“Dear Sirs—•
“I hereby present for your consideration the following proposition for $10,000:00.
“Your insurance age is 29, changing on the 26th of Feb. ’92 Plan 20 payments life 20 years non-forfeiting Semi-tontine.
At the end of 20 years the policy guarantees the insured the following options, one of which is sure to meet your circumstances:
1st Option:—
To withdraw, in cash, the guaranteed
* Reserve $ 4,708.80
And the Accumulated Surplus (estimated) $ 6,245.50
Total, $10,954.30
“Our estimates are exceedingly conservative; they are based on the dividend of 1884, the lowest paid for years, with only 5y2 per ct. interest when the Company earns 6.22 per ct. on its entire assets.
2nd Option:—
********
3rd Option:—
To cash the surplus $ 6,245.50
And receive a paid-up policy for $10,000.00”

Plaintiff kept this proposition for a few weeks and then went "to the office of the general agents of the company in Chicago. Plaintiff says he handed the paper to one of the agents, saying, “I want to buy this insurance”; that he thereupon signed some papers and underwent a medical examination, and left, taking with him the proposal. About two weeks thereafter the defendant issued the policy in question and delivered the same to plaintiff.

The policy purports to be on the semitontine plan, and its tontine dividend period was 20 years. It pro-, vided that the policy should, “if kept in force, share in the surplus according to the Company’s usage, at each distribution after twenty years from the date hereof, until all contributions to" the surplus found in the course of making such distributions to have arisen from this policy shall have been returned.” It was also provided that “No dividend shall be allowed or paid upon this policy, unless the insured shall survive the completion of the Tontine Dividend Period, and unless this policy shall then be in force.” Further provisions are as follows:

“9th. The condition last preceding being contained in all policies issued on the Semi-Tontine Plan, all savings made in consequence of it shall be apportioned equitably among such policies issued on that plan as shall complete their Tontine Dividend Periods; and in making such apportionment, savings from lapses occurring in any year shall be distributed among those policies only upon which premiums shall have been payable in that year.

“10th. Upon the completion of the Tontine Dividend Period provided this policy shall not have been terminated previously by lapse or death, the said insured or his assigns, without the consent of any other person named as beneficiary, if any, shall have the option either:

“First, to withdraw in cash the accumulated surplus apportioned by the Company to this policy, leaving the policy full paid for its face.

“Secondly, on furnishing satisfactory proof that the insured is then in good health, to apply said surplus to the purchase of a non-forfeitable participating paid-up addition to the amount insured under this policy.

11 Thirdly, to surrender this policy and receive therefor in cash its entire share of assets (that is, the accumulated reserve, together with the surplus apportioned), which reserve the Company guarantees shall not be less than Forty-seven hundred eight and 80/100 dollars, in addition to said surplus, or

“Fourthly, to surrender this policy and apply said entire share of assets to the purchase of a non-participating paid-up policy, payable in case of death to the executors, administrators, or assigns, of the said insured, provided that satisfactory proof be furnished that the insured is then in good health. But if no notice in writing of the way elected in which to apply the Tontine Dividend be given to the Company within sixty days after the completion of the Tontine Dividend Period, then the Tontine Dividend shall be applied in the first way mentioned.

“It is hereby stipulated and agreed by the Company that in addition to the options mentioned above, the insured, at the completion of the Tontine Dividend Period, shall have the privilege of applying the apportioned surplus to the purchase of an Immediate Annuity, at the Company’s published rates.”

Attached to the policy was a copy of the application paper signed by plaintiff. Among other questions and answers was the following:

“11. Do you understand and agree that no) statements, representations or informa-) tion made or given by or to the person) soliciting or taking this application for) a policy, or to any other person, shall) be binding on the Company or in any) Yes. manner affect its rights, unless such) statements, representations or informa-) tion be reduced to writing, and pre-) sented to the officers of the Company) at the Home Office in this application? ) ”

Upon the completion of the tontine period, plaintiff gave no notice in writing of the option which he wished to exercise, and accordingly, under the terms of the policy, the first option became operative, and in accordance therewith defendant tendered to plaintiff the sum of $2,396.98 in cash, which it is not disputed represented the accumulated surplus apportioned by the defendant under the provisions and plan of the policy.

In Bouvier’s Law Dictionary, vol. 2, edition 1914, tontine insurance is defined as:

“A system of insurance which under various forms is based upon the idea of a loan or investment of property for the benefit of a number of persons, the income at first being divided among all and the shares of members who die passing not to their own legal representatives but to increase the interest of the surviving member, until, at last, after the number of members has gradually diminished by successive deaths, the last survivor takes the whole income, or, if such be the terms agreed upon, the whole principal.”

And further:

“Policies of this character are kept in classes of ten, fifteen, or twenty years, called respectively the ton-tine periods, and accounts are kept with the funds of each class to ascertain the amount due on each policy at the expiration of its tontine term, at which time the surplus profits are apportioned equitably among such policies as complete the term.” Pierce v. Equitable Life Assurance Society, 145 Mass. 56.

Holders of such policies are entitled to an inspection of the books and papers of the insurance company in order that they may determine the proper amount of the surplus. Ellinger v. Equitable Life Assurance Society, 132 Wis. 259. To ascertain the proper amount of surplus involves “the number, dates and amounts of tontine policies issued; the number terminated by death, lapse or otherwise, or the amount paid on account of them; the amounts of premiums or other items necessary to the ascertainment of the surplus, and the equitable apportionment of it among the persistent policies. Only by an inspection of the books and papers of the defendant in its possession can the items be ascertained.” Townsend v. Equitable Life Assurance Society, 263 Ill. 432, 439.

Did the prior letter of the agent, St. Giles, amount to a guaranty by the company of the amount of surplus? We hold that it did not. It is unnecessary to consider the binding force of this proposal upon the company, or the question whether it was merged into the policy, for we are of the opinion that the proposal itself does not amount to a guaranty. By this proposal plaintiff was offered a “20 years * * * SemiTontine policy,” that is, a policy with a surplus to be determined at the end of the tontine period in accordance with the theory of such policies. Plaintiff must be held in law to know that the proposal offered that kind of insurance; hence he must have known that the amount of the surplus at the end of the ton tine period would depend upon the happening of several contingencies during this period, and that any statement made at the beginning of the period of the amount of this surplus could only be an estimate or opinion. Entirely consistent with this kind of insurance, the proposal states in explicit words that the figures given as to the amount of surplus which might be expected were “estimated,” which estimates it was said were conservative, based upon previous experience. The fact that this explanatory language was not used where the surplus was again mentioned in the proposal is of no importance; it was sufficient once to indicate its contingent character. Our conclusion as to the effect of the St. Giles proposal is in accordance with what was said in Keithley v. Mutual Life Ins. Co., 271 Ill. 584, where a similar representation as to the amount of surplus was characterized as “no more than a prophecy,—the expression of an expectation.

We find nothing in the cases cited by counsel for plaintiff which dissuades us from our conclusion, although it may be conceded that some of them are not in harmony with our views. ' On the other hand we find many cases, which seem to us of greater persuasive force, which support us. Among these are Langdon v. Northwestern Mut. Life Ins. Co., 199 N. T. 188; Williams v. New York Life Ins. Co., 122 Md. 141, 89 Atl. 97; O’Brien v. Equitable Life Assurance Society, 173 Mich. 432, 138 N. W. 1086; Grange v. Penn Mut. Life Ins. Co., 235 Pa. 320, 84 Atl. 392; Untermyer v. Mutual Life Ins. Co., 128 N. Y. App. Div. 615, 113 N. Y. Supp. 221; Tourtellotte v. New York Life Ins. Co., 155 Wis. 455, 144 N. W. 1117.

It was error to include in the verdict and judgment interest upon $2,396.98, the amount of surplus admitted by defendant to be due. This amount, as we have seen, was put into judgment, and the claim of interest on that was merged in the judgment. The plaintiff had no further right then to claim interest on that sum. The evidence also shows a tender of this amount, which plaintiff declined to accept.

Under the contract of the parties plaintiff was not entitled to recover any more than the amount of his first judgment, and the trial court in the present case should have allowed defendant’s motion to instruct the jury in its favor, and should have denied plaintiff ’s motion for a peremptory instruction; and as the errors of the trial court were errors of law which cannot be obviated or cured upon another trial (Pennington v. Grand Trunk Western Ry. Co., 277 Ill. 39), the judgment will be reversed without remanding, and judgment of nil capiat will be entered in this court.

Reversed a/nd judgment here.


text:
    John Kick, Appellee, v. Calumet & South Chicago Railway Company, Appellant.
    Gen. No. 23,325.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William Peotmoeb Cooper, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed with finding of fact.
    Opinion filed December 3, 1917.
    Statement of the Case.
    Action by John Kick, plaintiff, against Calumet & South Chicago Railway Company, defendant, to recover damages for personal injuries. From a judgment for plaintiff for $900, defendant appeals.

      Abstract of the Decision.
    1. Street railroads, § 104

      —when doctrine that negligence of driver of vehicle cannot be imputed to occupant is inapplicable. The rule that, in an action to recover for personal injuries through the collision of a vehicle with a street car, the negligence of the driver cannot he imputed to one riding with him cannot be applied where the driver is under the control of and driving as directed by the injured person.
    2. Street railroads, § 131*—when evidence shows that driver of vehicle was under control of injured person. In an action to recover for personal injuries to one received from the collision of the vehicle in which he was riding, with a street car,. evidence held to show that the injured person was in control of the driver.
    '3. Street railroads, § 131*—when evidence shows knowledge of danger in crossing track. In an action to recover for personal injuries to one received through the collision with a street car of a vehicle in which he was riding and of which he was in control, evidence held to show that plaintiff, in the exercise of ordinary care, must have known that if he instructed the driver to cross the track and the driver so did, a collision would be inevitable and that plaintiff risked the motorman’s being able to stop the car.
    4. Street railroads, § 97*—when person in control of vehicle crossing track is guilty of contributory negligence. One who, in control of a vehicle, orders the driver to cross a car track, when to do so will render a collision with an approaching car inevitable unless the motorman succeeds through extraordinary efforts in stopping the car, is guilty of contributory negligence preventing a recovery for injury received by the collision.
    5. Street railroads, § 131*—when evidence shows lack of negligence by motorman in operation of car. Evidence in an action to recover for personal injuries through a collision between a vehicle and a street car, held to show that the motorman had no reason to believe that the vehicle would attempt to cross, and that he did all that was possible to stop the car, but that stopping it before the collision occurred was impossible.

      William H. Symmes and Frank L. Kriete, for appellant; J. R. Guilliams and Warner H. Robinson, of counsel.
    John A. Bloomingston, 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 McSurely

delivered the opinion of the court.

6. Stbeet baileoads, § 73 —when failure to ring gong or absence of lights is immaterial. Failure to ring a gong or have lights upon an approaching street car is net important where one injured in crossing the track admits having seen the car approaching before his vehicle went upon the track.

7. Stbeet baileoads, § 131*—when evidence shows contributory negligence in crossing track with vehicle. Evidence in an action to recover for personal injuries through colliding with a street car in crossing the track, held to show plaintiff’s contributory negligence.


text:
    Louis Wald, Appellee, v. Morris Lilienthal et al., trading as Lilienthal, Berman & Elisberg, Appellants.
    Gen. No. 23,343.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fey, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed December 3, 1917.
    Statement of the Case.
    Action by Louis Wald, plaintiff, against Morris Lilienthal, Ruby Berman and Harry Elisberg, copartners, trading as Lilienthal, Berman & Elisberg, defendants, ■ for salary and commissions claimed under a contract. From a judgment for plaintiff for $187.69, defendants appeal.
    McEwen, Weissenbach & Shrimski, for appellants; Jerome J. Cermak, of counsel.
    Hyman L. Weiss, for appellee.

      Abstract of the Decision.
    Appeal and error, § 1414

      —when finding of court on conflicting evidence not disturbed. In an action to recover salary and commissions, tried hy the court without a jury, where the evidence is conflicting, the finding of the trial court in favor of the plaintiff will not be disturbed on appeal unless clearly and manifestly against the weight of the evidence.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    G. Fred Schorr, Appellee, v. John T. Shayne & Company, Appellant.
    Gen. No. 23,352.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Scanlan, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed December 3, 1917.
    Statement of the Case.
    Action of assumpsit by Gr. Fred Schorr, plaintiff, against John T. Shayne & Company, defendants, to recover damages for a breach of contract of employment. From a judgment for plaintiff for $1,397.50, defendant appeals.
    O’Shaughnessy & O’Shaughnessy, for appellant.
    H. G. Colson, for appellee; Philip S. Brown, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the conrt.

Abstract of the Decision.

1. Hastes and sebvant, § 76 —what will not defeat contract l>y officer of corporation for employment of servant. The contract of one who enters into a contract of employment with the president of a corporation, in good faith and without knowledge of internal regulations of the management affecting such contracts, cannot be defeated by showing that such contract was entered into by the president in violation of a private resolution of the corporation’s directors.

2. Hastes and servant, § 84*-—when good faith in entering into contract of employment is shown. Evidence in an action to recover damages for a breach of contract of employment, held sufficient to show that plaintiff entered into such contract in good faith.


text:
    W. A. Davis, Appellee, v. E. J. Rose, Appellant.
    Gen. No. 23,473.
    (Not to he reported in full.)
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court.
    Reversed.
    Opinion filed December 3, 1917.
    Statement of the Case.
    Bill by W. A. Davis, complainant, against E. J. Bose, . defendant, to enjoin defendant from selling, assigning, leasing or attempting to sell, assign or lease certain premises. From an injunctional order granted complainant, defendant appeals.
    Mayer, Meyer, Austrian & Platt, for appellant.
    No appearance for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Injunction, § 162 —when granting of order for without notice is improper. That an order of injunction was granted without notice is ground for reversal, unless it appeared from the bill and affidavit that the rights' of complainant would have been unduly prejudiced if the injunction had not been issued immediately or without notice.

2. Injunction, § 162*—when granted without notice. To justify the issuance of an injunction without notice, it is not sufficient to state conclusions of prejudice, but facts must be stated from which the court can draw the conclusion that an immediate injunction without notice is necessary to save complainant from harm.

3. Injunction, § 67*—when will not be granted because seeking specific performance of contract. An injunction which, in. effect, seeks the specific performance of a contract for the construction of a building, involving the preparation of plans and specifications by the court and the superintendence of their carrying out, "will not be granted.

4. Injunction, § 13*—when denial proper because of adequate remedy at law. An injunction which seeks to have a court of chancery deliver to complainant possession of premises described in a lease from defendant will not be granted, complainant having an adequate remedy at law.


text:
    Gaelic Park Athletic Club, Appellee, v. J. K. Fielding and John Fielding, Appellants.
    Gen. No. 23,603.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Equity, § 23

      —when jurisdiction may be retained. It Is proper for a court, in the exercise of its equitable powers, to declare a resulting or constructive trust, and, having taken jurisdiction for this purpose, may retain it,for the purpose of determining all the rights of the parties.
    2. Injunction, § 206*—when decree against interference with use and occupation of premises is warranted by evidence. On a hill to enjoin the interference with the use and occupation of property and with the collection of fees from others for using and occupying it, evidence held sufficient to support a decree for complainant.
    Appeal from an interlocutory order of the Circuit Court of Cook-county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court.
    Affirmed.
    Opinion filed December 3, 1917.
    Statement of the Case.
    Bill by the Gaelic Park Athletic Club, a corporation, complainant, against J..K. Fielding and John Fielding, defendants, to restrain them from interfering with the use and occupation of certain premises and with the collection of admission fees and fees from others for the use of such premises. From an order granting a temporary injunction, defendants appeal.
    McMahon & Cheney, for appellants; O’Shaughnessy & O’Shaughnessy, of counsel.
    Winston, Payne, Strawn & Shaw, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.


author: Per Curiam.

text:
    Margaret Ann Bonnet, Plaintiff in Error, v. John Hobrecker, Jr., Defendant in Error.
    Gen. No. 23,340.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 800

      —what ruling must he preserved hy hill of exceptions. The ruling of the trial court on a motion to vacate an order of dismissal cannot be preserved for review without a hill of exceptions.
    2. Appeal and ebbob, § 1120*—when suit will he dismissed. Where a plaintiff in error presents no suggestions in opposition to a motion to dismiss the writ of error and the record presents nothing upon which an assignment of error can properly be made, the suit in which the writ was sued out will be dismissed.
    Error to the Circuit Court of Cook county; the Hon. Habby C. Moean and Hon. Samuel C. Stough, Judges, presiding. Heard in this court at the October term, 1917.
    Suit dismissed.
    Opinion filed December 3, 1917.
    Statement of the Case.
    Motion by John Hohrecker, Jr., defendant in error, to strike from the record portions of the transcript filed by Margaret Ann Bonnet, plaintiff in error, and to affirm the judgment.
    Sidney N. Ware, for plaintiff in error.
    Custer & Cameron, for defendant in error.

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

   Per Curiam.


author: Mr. Presiding Justice Niehaus Per Curiam:

text:
    Minnie Richardson, Defendant in Error, v. Mary Lusk, Administratrix, et al., Plaintiffs in Error.
    Gen. No. 6,237.
    1. Judgment, § 238

      —when nunc pro tunc may he entered after death of party. A trial court has the power to enter a nunc pro tunc judgment after the death of a party to an action where previous to such death verdict was rendered and the court had the case under advisement on a motion for a new trial.
    2. Appeal and error, § 1258*—when error in rendition of judgment may not he complained of hy defendant. A defendant cannot complain of a judgment on remittitur tor less than the amount fixed hy verdict.
    On Petition fob Rehearing.
    Judgment, § 238*—what is effect of Abatement Act on power to enter judgment nunc pro tunc after death of party. Power to enter a judgment nunc pro tunc after death of a party against whom it is rendered from a date prior to his death and after verdict, and the case was under advisement on motion for new trial, is not denied hy section 12 of the Abatement Act (J. & A. 12).
    Error to the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed April 19, 1917.
    Rehearing denied October 4, 1917.
    Cooke, Pope & Pope, for plaintiffs in error.
    Cantwell & Smith and E. V. Orvis, for defendant in error.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This suit was brought in the Circuit Court of Lake county by the defendant in error Minnie Richardson against Lovina Raymond and five other defendants. The suit is in trespass, and the declaration charges that the defendants in the suit assaulted the plaintiff. There was a trial by a jury, and a verdict rendered at the December term of the court, on January 16, 1915, in favor of the plaintiff, for $2,500 against all the defendants in the case except Kate Wagner, who was found not guilty.

The defendants, including Lovina Raymond, entered into an oral motion for a new trial, and afterwards filed a written motion, on February 11, 1915; and the' motion for a new trial was on that date argued and taken under advisement by the court. The December term of the court adjourned on February 19, 1915, with the motion for a new trial undisposed of.

On March 12, 1915, while the motion for a new trial was still pending, and no judgment yet entered, Lovina Raymond died. On March 15th, following, suggestion was made of the death of Lovina Raymond, and entered of record in the case. Afterwards Mary Lusk, as administratrix of the estate of Lovina Raymond, deceased, was substituted for the deceased party. Then on August 30, 1915, during the pendency of the motion for a new trial, the defendant in error entered a remittitur of $1,000. The motion for a new trial was then overruled, and thereupon a judgment mmc pro tunc was entered on the verdict for $1,500 as of the date that the case was taken under advisement by the court, namely, February 15, 1915, which was prior to the death of Lovina Raymond. The judgment rendered was against all the plaintiffs in error, and includes Lovina Raymond.

The question raised on error has reference to the validity of a judgment nimc pro tunc which was rendered against a party, who is deceased at the time the entry was actually made, but was living at the date of the entry of the judgment. The power and propriety of' courts of record, both trial courts, and courts of review, to enter judgments nunc pro tunc, after the death of a party to the record, and as of a day before such death, where the delay in the entry of the judgment was on account of the convenience or necessity of the court, and not on account of any fault of the party litigant, and where injustice would otherwise result to one or both parties to the record, is clearly established by the. decisions in this and other jurisdictions. Seymour v. O. S. Richardson Fueling Go., 205 Ill. 77; Danforth v. Danforth, 111 Ill. 236; O’Sullivan v. People, 144 Ill. 604; Merchants Loan & Trust Co. v. Egan, 143 Ill. App. 572; McReynolds v. Brown, 121 Ill. App. 261; Bunker v. Green, 48 Ill. 243; Linn v. Brecher, 90 Ill. App. 6; Reid v. Holmes, 127 Mass. 326; Kelley v. Riley, 106 Mass. 339; Tapley v. Martin, 116 Mass. 275; Tapley v. Goodsell, 122 Mass. 176.

Our Supreme Court in the case of Bumker v. Green, supra, passes directly upon the point here involved, and in discussing the matter in that case the court held: Where a trial was had in an action of trespass to personal property, and the jury found a verdict in favor of the plaintiff, and a motion for a new trial was entered, but not decided for several months; and in the meantime the plaintiff died, and the court thereupon rendered a judgment nunc pro tunc, as of the term at which the trial was had, that said judgment would be a good and valid judgment if entered nunc pro tunc, as of a date before the death of the party; and after the day and date of entering the verdict. And the Appellate Court in the ease of Linn v. Brecher, supra, and in the case of Merchants Loan & Trust Co. v. Egan, 143 Ill. App. 572, clearly holds, in the line of the authorities cited, that a trial court has the power to enter a nunc pro tunc judgment after the death of a party to the suit, where the verdict was rendered previous to such death, and the court had the case under advisement on a motion for a new trial.

We regard these authorities as decisive of the question here involved, and are of opinion that the entry of the judgment nunc pro tunc made in this ease was regular and valid.

It is sufficient to say, in reference to the question raised by the .plaintiffs in error concerning the remittitur of $1,000, thereby reducing the judgment below the amount fixed by the verdict of the jury, that the plaintiffs .in error were not injured by such reduction, and are therefore not in position to raise any objection to the same. The judgment is affirmed.

Judgment affirmed.

Per Curiam:

On petition for rehearing plaintiff in error for the first time claims that section 12 of the Abatement Act (Hurd’s St. page 2, J. & A. jf 12) is- controlling on the question of entry of judgment as of a date prior to the death of her intestate. That statute was not referred to in her briefs and therefore not discussed in the opinion. We do not think the power to enter the judgment nunc pro tunc is denied by that section. The rehearing is denied.


author: Mr. Presiding Justice Niehaus

text:
    Jessie F. Kline, Appellee, v. City of Sterling, Appellant.
    Gen. No. 6,343.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal corporations, § 1013

      —liability of city for injury to pedestrian due to slippery wain. A city is not liable in damages for personal injuries sustained by a pedestrian because its streets or walks or crossings became slippery on account of a snow fall.
    Appeal from the City Court of Sterling; the Hon. Carl E. Sheldon, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of facts.
    Opinion filed April 19, 1917.
    Rehearing denied October 3, 1917.
    Statement of the Case.
    Action by Jessie F„ Kline, plaintiff, against City of Sterling, defendant, to recover damages for personal injuries due to the .alleged negligent construction by defendant of a bridge over a gutter on defendant’s streets and allowing such bridge to remain out of repair. From a judgment for plaintiff for $475, defendant appeals.
    The bridge was an iron plate, 18 inches wide and 7 feet long, perforated with holes % of an inch in size and with a smooth surface except for 3 rows of raised letters iy2 inches long, making the words “made in Twin City Foundry Co., Sterling, ’ ’ and which had been somewhat worn off at the edges and made smooth by constant use, upon which plaintiff slipped while crossing thereon during a snow storm and broke her arm.
    John M. Stager, for appellant.
    Jarvis Dinsmoor, for appellee; C. C. & J. W. Johnson, of counsel.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Robert Schultz, by Sylvester Schultz, Appellee, v. Aurora, Plainfield & Joliet Railway Company, Appellant.
    Gen. No. 6,366.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Street railroads, § 69

      —when evidence sustains inference of negligence of motorman in failing to promptly stop car which strikes child. Evidence held to sustain the inference, in an action to recover damages for personal injuries to a child 2 years old, due to being struck by defendant’s street car, that the motorman in his management of the car was not.as prompt in his efforts to stop the car to prevent injuring the child as he could and should have been in the exercise oí reasonable care for the child’s safety.

      Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 19, 1917.
    Rehearing denied July 31, 1917.
    Statement of the Case.
    Action by Robert Schultz, by Sylvester Schultz, his father and next friend, plaintiff, against Aurora, Plainfield & Joliet Railway Company, defendant, to recover damages for personal injuries resulting from being struck by defendant’s street car. From a judgment for plaintiff for $2,500, on remittitur, defendant appeals.
    Snapp, Heise & Snapp, for appellant; Winston, Payne, Strawn & Shaw, of counsel.
    Edward R. Nadelhoffer, for appellee; John J. Wellnitz, of counsel.

      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 ana section number.

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

2. Street railroads, § 69 —what constitutes insufficient warning to child of danger from, car. Ringing of a street car gong and yelling by the motorman serve no useful purpose as warning to a 2-year-old child, as such child would in the natural order of things be wholly without judgment or knowledge or appreciation of the purpose of such warning or understanding of the significance of such ringing and yelling, or realization of the effect of the speed of the car or the dangers that might result therefrom.

3. Damages, § 115*—when verdict for personal injuries not excessive. Judgment for $2,500 held not excessive for injuries to a 2-year-old child necessitating constant attention of a physician for 3 months, with daily dressing and skin grafting, great pain for a long time, and a permanent scar tissue covering the wound, and inability to walk for 4 or 5 months.


text:
    Richard Farnsworth, Plaintiff in Error, v. William Gromm, Defendant in Error.
    Gen. No. 6,373.
    (Not to he reported in full.)
    Error to the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 19, 1917.
    Rehearing denied October 3, 1917.
    Statement of the Case.
    Action by Richard Farnsworth, plaintiff, against William Gromm, defendant, to recover for the use and occupation of certain premises. From a judgment for defendant for costs, upon trial by the court and motion by defendant to exclude. all the evidence, plaintiff brings error.
    Butters & Clark, for plaintiff in error.

      Abstract of the Decision.
    Assumbstt, Action oe, § 62
      —when does not lie for use and occupation against contract purchaser of land. Under a contract for the purchase by defendant of certain premises upon partial payments, providing that upon his default in any required payment plaintiff should have the option of terminating the contract and retaining as liquidated damages any 'payments made, and that defendant should retain possession of the premises until such default and exercise of plaintiff’s option, where defendant made default and plaintiff exercised his option by forfeiting and determining the contract and demanding possession of the premises, and defendant surrendered same, held that an action in assumpsit would not lie for use and occupation of the premises or for damages under the contract.
    Stead, Woodward & Hibbs, for defendant in error.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.