text:
    George A. Hutchinson, Appellant, v. William Nettleton, Appellee.
    Gen. No. 5,685.
    1. Damages—physician’s services. In an action by a physician for services, the reasonable value thereof is for the jury to determine, and a verdict for $150 should not be disturbed where the physician charged $575 on his books and sued for $1,050; several physicians gave widely varying estimates concerning the value of the services; the physician who assisted had had thirty years’ experience and testified that in his opinion defendant’s back was dislocated and not broken and that he would not have used the cast placed thereon by the plaintiff; plaintiff forced himself into the case knowing that an older physician was desired, and there is evidence that his treatment was violent and unskilful and caused great pain.
    2. Physicians—instruction as to shill required. An instruction that a "physician must bring to the case and exercise that degree of knowledge, skill and care which a good physician and surgeon would use under the circumstances is proper.
    3. Physicians—instruction concerning allowance for unshilful treatment in action for services. A physician suing for services performed is not injured by an instruction which authorizes an allowance to defendant for pain caused by plaintiff’s failure to use the skill of a good physician but which leaves the question of skill and of whether defendant suffered pain because of any lack thereof to the jury.
    4. Physicians—harmless error. An instruction providing that before a physician could recover for certain services performed he must prove by a preponderance of the evidence that he was a regularly licensed physician and surgeon at the time cannot be held to have affected the verdict where, after oral proof of such license, the jury found for the physician.
    5. Instbuctions—statements of counsel as to. A ruling that counsel cannot state to the jury the instructions he is going to ask and further that each party has offered instructions is correct, since so far as the jury is concerned "the instructions are given as the court’s view of the law and they should not be informed at whose request they are given.
    Appeal from the County Court of Boone county; the Hon. William C. De" Wole, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    William L. Pierce and H. B. Stevenson, for appellant.
    Barnes & Barnes, for appellee; William Biester, of counsel.
   Mr. Justice Willis

delivered the opinion of the court.

Late in the forenoon of January 31, 1911, appellee, a carpenter and retired farmer, residing in Capron, Illinois, while working on a building"' near Capron, fell from a scaffold about nine or ten feet to the ground and was injured. Someone at the place where appellee was injured sent for appellant, a physician of about two years’ experience, residing in the same place. ■ He came and rendered some temporary aid and was told by appellee’s family that his services were not wanted as they wanted a Doctor Johnson from Harvard, Illinois. Appellant informed appellee’s family that if they needed his services, he would come back at any time and he went away. Dr. Johnson was called but was not at home and a Dr. Goddard came in his place. Dr. Goddard did not get there until about 2 o’clock. Shortly before Dr. Goddard arrived appellant was called again by a neighbor of appellee. On the arrival of Dr. Goddard he was told by appellant that he (appellant) was to treat appellee and that Dr. Goddard was only to administer the anaesthetic. Appellant made an examination of appellee’s back and discovered, as he says, that the back was broken. He began making arrangements to reduce the fracture. To do so he procured two boxes, placed them on the table in such a position that one would be under- the shoulders of appellee and the other one would be under the lower part of his back and the supposed fracture would be between. He then had Dr. Goddard administer the anaesthetic, placed appellee on the boxes, caused four men to manipulate his arms and legs back and forth, while appellee stood over the patient with his hands beneath the supposed fracture and lifted the body up and down several times, and, as he testified, he could distinctly feel the fracture reduced. He then placed several layers of cotton wadding next the body then a plaster cast around the body, and then a steel support or rod, and encased this in more plaster of Paris, and then pnt on wadding and kept appellee in this case for about five weeks and attended him from time to time. Appellee has now regained the use of his body and is fully recovered. A controversy arose between them over the amount of the bill. On May 15, 1911, appellant sued appellee in assumpsit, and filed a declaration containing the common counts and a bill of particulars for $1,050, $1,000 of which was for performing the operation and $50 for medical services and supplies from January 31, 1911, to March 20, 1911, to which was interposed a plea of the general issue. A trial resulted in a verdict of $150 for plaintiff, his motion for a new trial was overruled, and judgment was entered on the verdict, from which plaintiff prosecutes this appeal.

Dr. Goddard, a physician of about thirty years’ experience, who, on his arrival, examined appellee’s back, testified that he did not discover any fracture and found what appeared to be, in his opinion, a slight dislocation between the eighth, ninth and tenth dorsal vertebrae. He testified that he would not have used the kind of a brace that appellant used; that he would have depended on the plaster of Paris cast; that the services rendered that day were reasonably worth from $50 to $100 based on the assumption that there might have been some dislocation and fracture. Dr. Johnson testified that, assuming appellee’s injury might have been a fracture or dislocation at the time, the services rendered by appellant were reasonably worth from $50 to $100 for the operation alone. For appellant Dr. Whitman testified that on the same assumption that appellant’s services were worth $500 and if it was not a fracture they were not worth a picayune. Dr. Mitchell testified that assuming that there was a fracture, appellant’s services were worth from $500 to $700 for the entire case. Dr. Swift testified that, assuming that there was a fracture and dislocation, the services were worth from $500 to $1,000, but assuming that there was no serious dislocation, they were worth about $50. Dr. Robert Hutchinson, the father of appellant, testified that the reasonable charges for the services were $1,000. It was admitted that a Dr. Mc-Innes, if'present, would testify, that, assuming the services to have been performed as testified to by Dr. Hutchinson, the services would be worth $500.

There are various circumstances weakening appellant’s claim to recover so much as he now urges. He only charged appellee $575 on his books for his entire services, and told him he would take $500 for a cash settlement. In his bill of particulars he claims $1,050 for his services. He tries to explain this difference by saying that he charged these sums if a cash settlement were made. It certainly is unusual to charge one sum as the expected compensation upon a plaintiff’s books and then charge him as much again if it becomes necessary to sue for it. This, with the difference in values placed upon his services by the physicians, and the doubt existing as to whether or not there was a fracture, may well have tended to weaken the value of appellant’s services in the eyes of the jury, and having thus tampered with his own claim, he cannot complain that the jury looked upon it with suspicion, and the jury may have thought that appellant’s conduct in forcing himself into the case after he knew that the family preferred an older and more experienced surgeon was unprofessional, and they may have believed from the evidence that appellee’s back was not broken, and that the treatment of appellant in setting' the supposed fracture was extremely violent, unskilful and unnecessary from which he was subjected to severe pain and suffered mental anguish, and that the amount of the verdict is as much as his services were reasonably worth. Certainly these were questions of fact where the jury’s finding should not be disturbed, where such finding is not manifestly against the greater weight of the evidence.

In the ninth and tenth instructions given for appellee, appellant was required, in the treatment of appellee, to bring to the case and exercise that degree of knowledge, skill and care which a good physician and surgeon would use in that case under the same circumstances. It is urged that this language was improper, Perhaps some more modern phrase might have been employed, but the Supreme Court in Holtzman v. Hoy, 118 Ill. 534, the cause of action being the alleged neglect and unskilfulness on the part of the defendant as a physician and surgeon in the treatment of plaintiff’s leg for a serious and complicated fracture, said: “The duty which the defendant, as a physician and surgeon, owed the plaintiff, was to bring to the case in hand that degree of knowledge, skill and care which a good physician and surgeon would bring to a similar case under like circumstances. ’ ’ This case has never been overruled or modified and it fully answers the argument and authorities cited by counsel for appellant in support of the criticism of this feature of the instructions. The tenth instruction also told the jury that if the appellant in treating appellee did not use and exercise that degree of knowledge, skill and care described in the ninth instruction, and that in consequence thereof the appellee suffered pain and mental anguish, then appellee was entitled to compensation therefor as against any claim made by appellant for such services and it was not necessary that appellee or any other witness testify that appellee sustained any amount of damages in dollars and cents, but it was the duty of the jury to allow the appellee such a sum as the jury believed from the evidence would compensate appellee for any such pain and mental anguish, and if the jury found that such amount equaled or exceeded any sum that they found appellant should be allowed for his services and supplies to the appellee in person, then appellant could not recover anything whatever -in this action for his services to appellee in person or the supplies furnished appellee. This instruction only authorized an allowance to appellee for any pain caused by appellant’s failing to use the skill of a good physician and surgeon, and it expressly leaves it to the jury to determine whether appellant did use that degree of care and skill, and if they find that he did not then it is left to the jury to determine whether in consequence thereof appellee suffered any pain. If this instruction is not strictly correct, still, if the facts were found as therein specified, plaintiff could not recover at all for such unskilful services, and therefore he was not injured by the instruction. Complaint is also made of appellees’ ninth instruction directing the jury that if after considering all the evidence, facts and circumstances, they believed from the evidence that a good physician and surgeon under the same circumstances as surrounded appellant when he was called to treat appellee, would not have placed on the back of appellee a brace similar to the one placed thereon by appellant, and would not have placed on appellee a cast similar to the one placed thereon by appellant, then the jury must not award anything to the appellant for his services in putting on said cast or the things furnished by appellant in doing'it. The jury did not follow the direction of the instruction and if they had nothing would have been allowed appellant for the operation, whereas, as the bill for everything outside of the operation was only $50 the jury did allow bim $100 for the operation.

Appellee’s eleventh instruction told the jury that appellant could not recover in this case unless he had proven to the jury by a preponderance of the evidence that at said time he was a regularly licensed physician and surgeon by the State Board of Health. He did submit oral proof that he was licensed to practice medicine and surgery and the jury found for bim and therefore this instruction did not affect the verdict.

During the final argument, one of appellant’s attorneys, having referred to the instructions that might be given, the following occurred:

Attorney for appellee: “I object to any reference to instructions on either side.”

Attorney for appellant: “I said, the only instruction that we were going to ask is that you do justice; if that is an erroneous proposition we want it in the record. ’ ’

The Court: “The objection is sustained and I am only ruling in so far that it is not proper to make any reference to the jury that you request exceptions to the remarks of the court.”

Attorney for appellant: “I say again that the court will read the instructions to you. That’s a part of this case. We have offered some, and they have.”

Attorney for appellee: “I object again and except to that statement that wherein he says that they have offered some, and we have, and I ask the court to rule on it and give me an exception to that remark.”

Court: “The court will once more sustain the objection and once more call counsel’s attention to the fact that the court has ruled that waived and it is improper to make any reference to the instructions.”

Appellant complains of this ruling. So far as the jury is concerned, instructions are the instructions of the court, given as the court’s view of the law, and the jury should not be informed at whose request they are given. Aneals v. People, 134 Ill. 401; Indiana I. & I. R. Co. v. Otstot, 212 Ill. 429. This contention is without merit.

No substantial error appearing in the record, the judgment of the lower court must be affirmed.

Affirmed,


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    L. S. Penniman et al., Appellees, v. H. Pinke et al., Appellants.
    Gen. No. 5,686.
    1. Mechanics’ liens—when case may he remanded with directions to refer to master. Where mechanics’ lien proceedings were not referred to a master, and to ascertain the correctness of the final decree the appellate court must state practically a hook account between the parties and pass upon a mass of details and items, the decree will be remanded with directions that the case be sent to a master to state and report the account.
    2. Costs—when charged one-half to each party. On appeal in mechanics’ lien proceedings, one-half the costs may be charged against each party where each is at fault for failure to ask for a reference to a master.
    3. Appeals and eeboes—when record may he withdrawn to use the evidence before a master. Where a decree is reversed and the cause remanded with directions to refer to a master because the appellate court must, to ascertain the correctness of the decree, pass upon a mass of details, the appellants may upon agreement between the parties withdraw the record to use the evidence therein before the master.
    Mechanic’s lien. Appeal from the Circuit Court of Winnebago county; thé Hon. Abthtjb H. Fbost, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed and remanded with directions.
    Opinion filed October 15, 1912.
    A. D. Early, for appellants.
    Fred H. Smith and Charles W. Ferguson, for appellees.
   Mr. Justice Willis

delivered the opinion of the court.

This is a bill for a mechanic’s lien, for the erection of a certain building, resulting in a decree in favor of the contractors for $732.30. The assignment of error and the argument involve a large mass of details. It is disputed whether or not many different details of the contract were performed; whether or not many extras were authorized, and what they cost.

In order to ascertain whether this decree is right, we must state practically a book account between the owner and the builder, and pass upon a mass of details and items. In our opinion, this detail work should not have been performed by the chancellor, and a review of the mass of evidence therefore cannot be cast upon this court in this way. The court should have sent the case to a-master, with directions to take and report the evidence, and to state and report an account between the parties and then upon objection and exception, particular items would be open to investigation, and we would not be required to examine the face of the whole account.

In Patten v. Patten, 75 Ill. 446, it is held that a complex and intricate account is an unfit subject for examination in court, and ought always to be referred to a master, to be examined by him and reported, in order to a final decree. Where that is done specific exception can be taken, which may be reviewed in court. In French v. Gibbs, 105 Ill. 523 it is said, quoting Moss v. McCall, 75 Ill. 190: “Where accounts involve large sums of money, and the testimony as to the rights of the parties is conflicting and unsatisfactory, in conformity with the rules of chancery practice the cause must be referred to a master to render a concise and accurate statement of the accounts, so that the same may be readily comprehended, and any objection taken passed upon understandingly. This is the well recognized and established practice in all cases of a complicated character, and should have been adopted in this case.” In Daly v. St. Patrick’s Catholic Church, 97 Ill. 19, it is said: “It cannot be expected, nor can it be required of us, to take this vast amount of evidence and state an account between the parties. It is impracticable, even if time would permit. A reference should have been made to a master to state an account. We have repeatedly held that we will not in such cases perform that labor, if permitted by the rules of practice. We will, in such cases, reverse and remand the cause, that an account may be stated by the master.” Each party is at fault. Each party ought to have asked a reference. We, therefore, reverse and remand the cause, and charge one-half of the costs of this court against the owner H. Pinko, and one-half of the costs against the two contractors, Penniman and McKenzie, and remand the cause to the court below to send the same to the master, with directions to take and report the evidence, and to state and report an account between the parties.

If appellants desire to withdraw the record from this court upon an agreement between the parties to use the evidence already therein, before the master, that may be done.

Reversed and remanded with directions.


text:
    John S. Mathews, Conservator, Appellant, v. Mary Jane Sargent, Appellee.
    Gen. No. 5,689.
    1. Lunatics—duties of conservator under act relating to. R. S. c. 86, does not authorize a conservator to appear against his ward and use his ward’s estate to prevent the restoration of her rights.
    2. Lunatics—duties of conservator on notice of desire of ward to he restored to rights. A conservator of one adjudged feeble-minded, on notice that she desires to be restored should interview her and, if satisfied that she has recovered, place no obstacles in her way; but if doubtful of her recovery he should consult the county judge and govern himself by his directions, in which case he will be entitled to reimbursement «for reasonable expenses so incurred.
    3. Lunatics—when conservator cannot recover against ward’s estate for expenses of contesting restoration. The conservator of one adjudged feeble-minded cannot recover from his 'ward’s estate for expenses and attorneys’ fees incurred in an unsuccessful attempt to prevent her restoration, where such expenses were not incurred under the county court’s authority but in violation of R. S. c. 86, and where to his knowledge the ward’s relatives had employed competent attorneys to prevent the restoration.
    Appeal from the Circuit Court of Knox county; the Hon. Robebt J. Gbier, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Fletcher Carnet and James W. Carnet, for appellant.
    Williams, Lawrence, Welsh & Green and F. 0. McFarland, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

In January, 1909, Mrs. Mary Jane Sargent was adjudged feeble-minded by the County Court of Knox county on the petition of Linnetta C. Sargent, a daughter-in-law, and John S. Mathews was appointed her conservator. Her property consisted of a dower and homestead interest in a farm of 200 acres that had never been assigned; one-fonrth interest in 120 acres of land, 40 acres of which was brush pasture; a dower in 120 acres; $500 in cash and a note for $500 secured by a mortgage. In March, 1911, she filed a petition in the same court praying to be restored to her rights. The notice required by the statute was served on the conservator. Thereupon he employed a firm of attorneys, and the daughter-in-law employed another firm to' resist the application of Mrs. Sargent to be restored. Neither the conservator, the daughter-in-law, nor the attorneys of either of them ever interviewed Mrs. Sargent before the hearing. The conservator and his attorneys consulted a doctor who had not seen her for more than a year, and a nurse who had had charge of her but had not seen her for months, and spent some time searching for and interviewing other witnesses. The attorneys employed by the daughter-in-law took active steps in looking up evidence. When the petition was set for hearing, the conservator filed an affidavit for a continuance on the ground that a witness was unable to be present, and the hearing was continued. The conservator and the daughter-in-Iaw brought witnesses from Q-alva, Illinois; Davenport, Iowa, and Omaha, Nebraska, to prove that Mrs. Sargent should not be restored. On the hearing Mrs. Sargent and two or three of her friends were sworn and examined. The conservator called and examined the doctor and nurse, and a number of other witnesses, and the case was submitted without argument. The jury found in her favor and the court entered an order restoring her to her rights.

The conservator presented his report to the court, asking credit, among other things, for money paid his attorneys to apply on expenses of the trial, $36.60, and for money paid his attorneys to apply on their fees and expenses, $134.54, and for an allowance for his services as conservator from January 2, 1910, to May 29, 1911, $100. The report showed that he received $790.42 and paid out the entire amount, having nothing left except the $500 mortgage. The County Court approved the report and allowed all the claims, and from that order Mrs. Sargent appealed to the Circuit Court of said county. On a trial there without a jury the court affirmed the order relative to the compensation of the conservator and disallowed the claims for expenses and attorneys’ fees, and from that order the conservator appealed to this court.

Section 17, Chapter 86, Hurd’s R. S., directs that “the conservator shall manage the estate of his ward frugally and without waste.” Section 13 of the same chapter directs that “he shall appear for and represent his ward in all suits and proceedings unless another person is appointed for that purpose.” But the statute nowhere provides that he shall appear against his ward and use the ward’s estate to prevent a restoration. He was her trustee and not her adversary. On receipt of notice that his ward desired to be restored, the conservator should have consulted or interviewed his ward, and if satisfied that she had recovered, place no obstacles in the way of her restoration. If, on the other hand, he entertained doubts of her ability to care for herself and manage her estate, he should have laid the matter before the county judge and been governed by his directions, and for any reasonable expense so incurred he would have been entitled to be reimbursed. Moreover, he knew that the daughter-in-law had employed a competent firm of attorneys who were doing all that was needed to prevent his ward’s restoration, and was charged with the knowledge that there was no necessity of spending his ward’s money for that purpose. There was no reason whatever why he should take any steps against her restoration when he learned that her relatives, the persons supposedly most interested in her welfare, had employed competent attorneys to do the same thing.

Our attention is not called to any Illinois authority that supports the conservator’s contention that the ward’s estate should pay the costs of an unsuccessful attempt to prevent a restoration. Some cases from other states are cited, hut in so far as we have been able to examine them, they are based upon statutes or orders of court of the respective states in which those decisions are found and therefore not applicable here, as there is no such statute in this' state and there was no order of court authorizing the conservator to expend any of his ward’s money for that purpose. We can see no justifiable motive in the conduct of the conservator towards his ward’s estate, and he having-incurred unnecessary expense without the authority of the County Court and in violation of the statute, can not recover from the estate which he was appointed to conserve.

• To establish the rule contended for by appellant would place the estate of a person under disability virtually at the mercy of the conservator, however unscrupulous he might be. There are no grounds, legal or equitable, upon which the charges made by the conservator in his account against the estate of appellee in resisting her application for restoration should be allowed, and the order of the Circuit Court is affirmed.

Affirmed.


author: Mr. Justice Whitney

text:
    Frank Donlevy et al., Appellants, v. S. E. Sims et al., Appellees.
    Gen. No. 5,612.
    1. Fees and salaries—county hoard has implied power to employ expert accountant under act relating to. Under R. S. c. 53, § 52, providing that county hoards shall have full authority to inspect, examine and audit the records, fee hooks, etc.,, of any county officer paid in whole or in part by fees, and to correct the accounts, and providing for a penalty for refusal or failure to permit county hoards or any one authorized by them to have free access to such books, the county board has the implied power to make a contract with an expert accountant, requiring him to investigate certain county offices and report to the board.
    2. County boabd—what contract beyond power of. It is beyond the power of the county board to make a contract with an expert accountant, requiring him to examine certain county offices to determine the arrears, make a conclusive decision, and settle with the officers by that conclusion alone, since it would deprive the board of power which they must exercise.
    3. County board—employment of expert accountant by, not precluded by approval of auditor’s report. The fact that the county auditor has audited the books of certain county officers and that the county board has approved his report does not preclude the board from making a further investigation of the offices and from employing an expert accountant to investigate thoroughly.
    4. County board—what within exclusive discretion of. It is within the exclusive discretion of the county board to determine whether it is wise to make a particular contract with an expert accountant for an investigation of certain county officers.
    5. County board—may investigate office of state’s attorney. County boards have authority to investigate the office of the state’s attorney, since such attorney receives certain fees, portions of which the law requires him to account for to certain county officers.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding.
    Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Butters & Armstrong, for appellants.
    Max Murdock and Clarence Griggs, for appellees.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellants were tax payers of La Salle county who filed a bill in equity against the County of La Salle, the county clerk, and county treasurer of that county, and S. E. Sims, to obtain a decree that a certain contract between the county and Sims is void, and to cancel it, and to restrain the county clerk from issuing warrants under said contract, and to restrain the county treasurer from paying said warrants, and to restrain said Sims from attempting to collect the moneys provided by said contract to be paid to him, and to restraih said county from paying any moneys tinder said contract. The bill was sworn to, and there were two other affidavits filed on a hearing of the application for a temporary injunction. A demurrer was interposed to the bill and the demurrer and the motion for a temporary injunction were heard .at the same time. The court found there was no equity in the bill, sustained the demurrer, and denied the motion for a temporary injunction. The complainants elected to abide by their bill, and the bill was dismissed for want of equity.

Certain of the complainants perfected an appeal to the Supreme Court, but that court found that no constitutional question was involved, and that the case did not involve the validity of an ordinance, and that it had no jurisdiction, and the case was transferred to this court, pursuant to the statute.

A reference to the statutory provisions will show that they practically control all of the questions involved in this appeal.

The bill shows that a certain auditing committee, and said Sims, entered into a contract, wherein said Sims agreed to make a thorough investigation of the office of county clerk for eight years; the recorder for six years; the sheriff Ole Benson, for four years; the sheriff, Frank Trumbo for four years; H. L. Arnold, county treasurer for four years; John G-oedtner for four years-; C. S. Cullen, states attorney, for ten years; N. R. Foster, superintendent of schools, for four years; U. J. Huffman, superintendent of schools, for four years; J. N. St. Clair, probate clerk, for six years; and the circuit clerk for six months, to June 1, 1911; and to make due report of his investigation to .the county board, for the compensation of six thousand dollars, payable five hundred dollars a month for six months, and the balance on the completion of the investigation and report. The auditing committee referred this contract to the county board, with a reeital that the board had previously authorized this auditing committee to employ outside expert aid, and that it had entered into this contract with Sims, and requested that authority be given the county clerk to draw warrants on the county treasurer, payable out of the county funds, for the sums due Sims, on the order of the three members of the auditing committee, as the money became due to him. It is alleged this contract is unauthorized, unconscionable, a waste of county funds, and without any authority in law. It is also alleged that some years before the county board established the office of county auditor, and that the books of all the officers named, except the state’s attorney, had been audited by that officer, and that their action had been approved by the county board, and that the books had been found to be correct. The bill is based on the- theory, (1) that the county board had no lawful authority to make such an investigation; (2) that if it did, it had to be made wholly at the meeting of the board in open session; (3) that it had no power to investigate the office of state’s attorney, and as the payment was in a gross sum, without distinguishing the amount to be paid for the investigation of the office of state’s attorney, therefore the entire contract price was void; (4) that the amount proposed to be paid was very much in excess of the value of Sim’s services. Section 24 of chapter 34, Illinois Statutes, authorizes counties to make all contracts, and do all other acts in relation to the property and concerns of the county necessary to the exercise of its corporate powers. Section 25, paragraph 2 of this chapter provides that the county board shall have power to manage the county funds, and county business except as otherwise specifically provided; and paragraph 3 of the same section provides that county boards shall have the power to examine and settle all accounts concerning the receipts and expenditures of the county.

Section 52, chapter 53 of the Statutes provides that county boards in counties of all classes shall have full authority, in their respective meetings, to inspect, examine and audit the records, fee books, books, papers, forms, memoranda and reports of any county officer who is paid in whole, or in part, by fees, in which fees are charged or recorded, and in which is kept any minutes or records of business of their respective offices, for’the purpose of auditing, checking and correcting the accounts rendered by said county officers; and said section last referred to provides for a penalty for any officer who fails or refuses to permit county boards, or any one authorized by them, to have free, unobstructed access to his books, etc.; and by the provision of that section it is clearly an implied power that county boards have to authorize a person to perform some part of the duty of the board. Appellants contend that all fee books, papers, vouchers and reports which bear upon the amount that any county officer has'received, or paid out, must be brought into public meeting of the county board, and that the board must sit in session, and as a whole must examine each paper and. each item necessary to be investigated; and that all the work of determining that a true account has been rendered, must be performed in open sessions of the board.. Manifestly, this is practically impossible. It would require the expenditure of time which members of the county board can not afford to give. It even involves matters of bookkeeping, and the adding of many columns of figures, and many members of a county board have not had the training that fits them to perform such work rapidly and correctly. If it was the purpose of this contract to have Sims determine the arrears and make a conclusive decision on the subject, and settle with the county officers by that conclusion alone, undoubtedly that would be beyond the power of the board. It would be depriving the board of power which they must exercise,' but no reason is seen why the board cannot employ an expert accountant to go over the books, reports and papers, and even make other investigations to search for hidden or omitted items, and to make full report thereof to the board; and then the board can investigate those things which require their attention, and then determine what action shall be taken. No other conclusion than this would be reasonable or sensible. It is claimed, however, that one officer had already been over these books, and had reported them correct, and the board had adopted that report. That may be, and still the board may have found reason to believe that the county auditor had made mistakes, or had not made a sufficiently thorough investigation. They were not precluded by their action, and the county auditor’s report, from making further investigation, and we do not doubt the power of the board to employ another man to make a more thorough investigation. It is contended that there is a difference between an audit and an investigation. That may be so, but the contract in this case is simply that Sims shall make a thorough investigation of certain offices.

The resolution under which his employment was ratified was that the auditing committee should have power, if deemed necessary, to employ outside expert aid and the contract with Sims, which is attached to that report of the auditing committee, provides as above stated, that Sims was to make a thorough investigation of certain offices, and make a true report of his investigation. He was in no way authorized by this contract to audit anything. He was simply to make an investigation, and report to the board. In our judgment the county board had authority to make this contract. The question whether it was wise to make this investigation is purely within the discretionary power of the county board, and the question whether they are paying more than some other man would undertake to do the work for is also a matter within the exclusive discretion of the county board. There is no averment in the bill of fraud, and no evidence of it in the entire proceeding. It is argued that the state’s attorney is not a county officer, and that the board had no power to audit or investigate his accounts and that as this contract provides for paying one gross sum for the work, .which included an investigation of the state’s attorney’s office, it is therefore illegal and void. The state’s attorney is in a sense a county officer. He receives certain fees, fines and forfeitures and is by law required to account therefor, or for certain portions thereof, to certain county officers whose accounts county boards have the undoubted right to investigate and it therefore necessarily follows that county boards must have the authority to investigate his office to learn whether he has received all that he ought to collect and has paid over all that he is required to so account for.

The decree of the Circuit Court is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Thomas Clark Haws, Plaintiff in Error.
    Gen. No. 5,628.
    1. Criminal law—cross-examination of witnesses. On prosecution for assault with a deadly weapon, on cross-examination of one of defendant’s character witnesses, questions by the state’s attorney as to whether witness had heard anybody say that the defendant had trouble with his hired man, which usually arose because of intimacy with the hired man’s wife, are highly improper and if persistently repeated might reverse if the defendant’s guilt is not clear, but the mere asking thereof should not reverse where the defendant’s guilt is clear.
    2. Assault with deadly weapoh—when jury fully instructed as to law of self-defense. The jury is fairly instructed on the law of self-defense where the basis of defendant’s contention as to why such instructions should be given is brought to the jury’s attention, and where several other instructions are given which fully set forth the law applicable thereto.

      3. Criminal law—instructions. It is not prejudicial error to refuse instructions, the principles of which are covered by those given.
    4. Assault with deadly weapon—when finding of guilty warranted. On prosecution for assault • with a deadly weapon, a verdict of guilty is warranted where the testimony for the people clearly shows that defendant broke a sugar bowl over the head of the prosecuting witness, when he stooped over to pick up some wood, and then fired two shots at him, and no evidence in opposition thereto is offered except that the defendant has a good general reputation as a peaceable citizen.
    5. Assault with deadly weapon—intent. The intent of an assault with a deadly weapon is for the jury to determine from the circumstances shown by the evidence.
    Prosecution for assault with deadly weapon. Error to the Circuit Court of Putnam county; the Hon. Thomas N. Green, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Barnes & Magoon, for plaintiff in error.
    J. E. Taylor, for defendant in error; Winslow Ewans, of counsel.
   Mr. Justice Whitney

delivered the opinion of the court.

Plaintiff in error was indicted for an assault with a deadly weapon upon one Vincent Peradoto, found guilty under the first count only of the indictment, and duly filed. From the judgment of the trial court the cause is brought before this court on writ of error, and upon three points only is it urged that the judgment ought to be reversed, viz: (1) The improper conduct of the State’s Attorney; (2) the refusal of the court to instruct the jury as to the law of self defense; (3) that the testimony does not support the verdict.

The State’s Attorney on cross-examination of one of the character witnesses offered by defendant below asked him if he had ever heard anybody in that community say that the defendant had trouble with his hired man, and that the trouble usually arose through his being too intimate with the hired man’s wife. To this and to two other similar questions the court sustained an objection, and while the State’s Attorney in his argument contends he was acting in good faith and within the legitimate realm of cross-examination, still it is not a question of the good faith of the State’s Attorney, but of the effect on the jury of such questions. These questions were highly improper, and if this were not a clear case as to whether the defendant was guilty, the persistent putting of such questions might be reversible error.

In this case there is no doubt of defendant’s guilt as hereafter stated, and the mere asking of these questions, which the court did not permit to be answered, should not work a reversal.

The jury was fairly instructed on the law of self defense. They were told by an instruction given apparently at the request of the People how they should consider the testimony of the sheriff, who related to them what plaintiff in error had said about the trouble. That instruction is as follows:

“Ton are instructed that where the verbal admission of a person charged with crime is offered in evidence, the whole of the admission must be taken together; as well that part which'makes for the accused, as that which may make against him, and if the part of the statement which is in favor of the defendant is not disproved, and is not apparently improbable or untrue when considered with all the other evidence in the case, then such part of the statement is entitled to as much consideration from the jury as any other part of the statement.”

Thus, it will be seen that the very basis of what plaintiff in error contends is the reason why the jury should be instructed on the law of self defense, was brought to the attention of the jury by this instruction.

This court cannot see that any evidence of self defense was offered, but even if the evidence of this admission, taken as a whole would bear that interpretation, the jury were fully instructed as to the law of self defense.

A part of the instructions given at the request of plaintiff in error were as follows:

(35) “The jury are instructed that if they believe from the evidence in the case that there is a reasonable doubt as to whether the prisoner at the time of the shooting, was under reasonable apprehension that the prosecuting witness intended to inflict upon him great bodily harm, and that he fired the shot in self defense as explained in these instructions, then the jury must acquit. ’ ’

(36) “The jury are instructed further that under the laws of this state a person has the right to resist an unlawful attack, or threatened attack if proven, by force, and if it be necessary to preserve the life of the person assailed, or to prevent great bodily harm from coming to him, the repelling force may go to the extent of shooting the assailant.”

(37) “The court instructs the jury that the law is, that if a person is threatened with an assault in such way as to induce in him a reasonable belief that he is in actual danger of losing his life, or of suffering great bodily harm, he will be justified in defending himself, although the danger is not real, but only apparent, such a person will not be held responsible criminally if he acts in self defense upon real and honest motives as to the character of the danger induced by reasonable evidence although he may be mistaken as to the actual danger.”

(38) “The jury are further charged that a person need not be in actual or imminent peril of his life or great bodily harm before he may slay his assailant. It is sufficient if in good faith he has a reasonable belief from facts as they appear to him at the time that he is in such imminent peril, if such facts would arouse a similar belief in the mind of a reasonable person.”

(39) “The jury are further charged that the law is that where a man is in the lawful pursuit of his business and is threatened with attack, and from the nature of the threatened attack, if proven, there is reasonable ground to believe that there is a design to take his life, or to do him great bodily harm, and the party threatened with such attack, if proven, does so believe, then the shooting of the assailant under such circumstances will be excusable or justifiable in law, although it should afterward appear that no injury was intended and no real danger existed as to the party doing the shooting.”

The refused instructions on the same subject were all repetitions in different form of the instructions on the law of self defense given at the request of plaintiff in error.

It is well settled law that where instructions have been asked and given upon a given question, it is no error to refuse another instruction upon the same question; and if the instructions refused in so far as they announce correct principles of law are covered by the instructions given, it is not prejudicial error to refuse them. Chicago City Ry. Co. v. Schmidt, 217 Ill. 396; Hanchett v. Haas, 219 Ill. 546.

The testimony introduced by the People proves clearly that Peradoto was an employee on the farm of plaintiff in error, and lived in plaintiff in error’s house, the latter reserving one room for himself; that Pera doto one morning near the close of the time of his employment, brought into the kitchen some kindling to make a fire, and dropped some of it, and stooped down to pick it up, when plaintiff in error broke a sugar bowl over Peradoto’s head and then fired two shots at him from his revolver.

Plaintiff in error offered no evidence in opposition thereto; his guilt therefore was clearly established. The wife and children of Peradoto came down stairs immediately after the, beginning of the tumult, and it is possible that in their testimony they did not each describe what occurred in exactly the same way, but no oné of them gave any testimony tending to' free plaintiff in error from the charge. The only proof offered by plaintiff in error was that his general reputation was good as a peaceable and law-abiding citizen.

A man with a good reputation as a peaceable and law-abiding citizen may be guilty of such an assault as is alleged in the first count of this indictment. It was for the jury to pass upon the question of fact before them, and the fact of the assault not being denied, and the circumstances under which it was committed fully appearing before the jury, they were justified in arriving at the conclusion that plaintiff in error was guilty.

If the circumstances detailed by the witnesses for the People are true, they show an unprovoked assault with a revolver upon Peradoto, and the intent of the assault was a question for the jury to determine under those circumstances as shown by the evidence.

It is not seen how the verdict could have been different and the trial court committed no error in sentencing plaintiff in error pursuant to the verdict. Judgment affirmed.

Affirmed.


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    J. G. Young, Appellee, v. J. A. Buell, Appellant.
    Gen. No. 5,631.
    1. Estoppel—6y evidence in court. On assumpsit for medical services, where a surgeon procured by plaintiff testified that he looked alone to plaintiff for his pay, he is estopped at all times thereafter from asserting any claim against defendant for the services.
    2. Physicians and suboeons—when finding of original promise to pay for medical service warranted. A finding that defendant made an original promise to pay for an operation on his daughter and for medical services, and that credit was extended therefor, is warranted, whether she was a member of his family or not, where there was evidence that the plaintiff consulted him about the operation and about its cost and defendant said he could not pay for it then, but could later.

      3. Physicians and surgeons—assisting physician’s compensation. One liable for medical services is shown to have understood the custom for the attending physician to settle with a physician called in to assist, or to have understood that such was the arrangement in the particular case, where the one so liable presented a bill to the assistant for coal sold to him, and on request to allow the amount on the bill for services stated that there was no obligation to him but that the attending physician was the one to collect the money.
    Appeal from the County Court of Livingston county; the Hon. W C. Graves, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Z. F. Yost, for appellant.
    E. A. Simmons, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellee is a physician. This suit is for medical services claimed to have been rendered to appellant’s minor son, and to appellant’s daughter Bertha. There was filed the common counts and general issue thereto. There was also plead the statute of frauds as to the daughter and replication that she was a member of appellant’s family and that he was liable for the services for her. Demurrer to this' replication was sustained. An amended count to the declaration was filed which charged that Bertha was the daughter and a member of appellant’s family, and that appellant became liable for services rendered for her. A plea was filed thereto that the daughter Bertha was not a member of appellant’s family, was of full age, and that they were not family expenses. There was a jury trial and verdict for three hundred dollars, and a judgment for that sum and interest, making a total of $302.21. Defendant below appeals.

Appellee was called to attend a son of appellant and did so, and the son died, and appellant paid his bill for medical services. Afterwards appellee was called to treat another son, and also called to treat appellant’s daughter Bertha. Appellant’s wife had been dead for several years, and the daughter, Bertha, about nineteen years of age lived at home with her father.

It is undisputed that medical attendance was necessary. We have no doubt under the evidence that she was a member of his family, although in the view we take of this case, that is not very material. It became necessary to have a surgical operation for each of these children.

Appellee advised with the father and told him about what it would cost, and who would be obtained to perform the operation, and then appellee procured a surgeon to perform it. The charge for each operation in appellee’s bill is $150. The proof was that each of these charges was reasonable, usual and customary in that locality, and this was not disputed.

Appellant introduced a scale of prices fixed by the medical society of that county, which would have allowed a larger sum for these operations.

Appellant contends that the fees for the operations were due to Dr. Scouller, but Dr. Scouller, who was a witness in this case, testified that he looked alone to appellee for his pay, in substance testifying he had no claim against appellant, so that in any event he would at all times after he made this admission be estopped from asserting any claim against appellant for those services. The testimony of Dr. Scouller also shows that appellant sold some coal to Dr. Scouller, and Dr. Scouller asked to have this allowed or turned in some way-on the fees for these operations. He testified that appellant presented him the bill for the coal and that he told him that he thought it ought to be allowed, whereupon appellant said he was under no obligation to Dr. Scouller at all; that Dr. Young was the man who was to collect the money, and that he, Scouller, had nothing to do with it. So, it would appear from the evidence that appellant understood the arrangement, or knew of the custom that had been testified to, that the attending physician made the charge, and that the surgeon employed to make the operation looked to the attending physician. There is also evidence that appellant was consulted before each of these operations, and knew all about them, and he knew what they were to cost, and particularly was appellant talked to about the operation on the daughter before it took place, and was told about what it would cost, and remarked he did not have the money to pay for it then, but could pay for it after awhile.

J. B. Parsons testified that this account against appellant was left with him for collection, and that he called upon appellant and had conversations with him in regard to the account two or three times, and when the matter of the account was discussed said that he owed the claim all right, but did not have the money at the time, and could not pay any money on it. He said he could not pay the bill at that time, or any part of it, in cash, but would give a note, a plain note, due in a year.

The jury could well find that this was an original promise on the part of appellant to be responsible for the services, whether the daughter was a member of his family or not, or whether or not the services were family expenses, and that appellee extended the credit to appellant for all of the services rendered; and the law clearly is that if one performs services at another’s request, even though the services may be rendered to a third party, yet the party requesting the services would be liable therefor, from the fact that he made an original undertaking or promise to be responsible for them.

We think it satisfactorily appears from the evidence in this record that it was an original undertaking on the part of appellant, and that he, when the services were rendered, expected to pay for them, and after-wards acknowledged his liability therefor.

It clearly appears from this record that he was liable on an original promise for these services, and it is not seen how the jury could have rendered a verdict except one against appellant, under the facts as they appear from the evidence. It was the evidence at the trial as above stated, that where the attending physician calls another surgeon or consulting physician, it is customary for the attending physician to present and collect the entire bill, and settle with the physician called in, in consultation, or to assist.- That was the course pursued in this case, and it is evident that appellant understood that custom, or understood the particular arrangement made in this particular case.

The instructions given for the plaintiff are in the main substantially correct. The instructions requested by appellant and refused were confusing and misleading under the evidence as it appeared at the trial, and if they had been given could not have produced a different result under the evidence.

Seeing no reversible error in the record in this case, the judgment of the court below is affirmed.

Affirmed.


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    Fox River Distilling Company, Appellant, v. George Andrichik, Appellee.
    Gen. No. 5,637.
    1. Corpobations—liability of corporation for agent's acts. On assumpsit for goods sold, where the evidence indicates that plaintiff corporation held a certain person out as its agent so far as the transactions involved are concerned and the acts of the agents testified to are concerning such agency, an instruction on the power of corporations to act through agents and as to their liability for the acts of agents may be given.
    2. Account stated—when not established. On assumpsit for an alleged balance due for goods sold, when defendant testified that he made payments, which were not credited, the jury were justified in finding that there was no account stated which barred defendant.

      Appeal from the County Court of Will county; the Hon. George J. Cowing, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Lagger & Blatt, for appellant.
    J. W. Downey, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

This is a suit to recover an alleged balance due for goods sold, etc. Appellant filed a narr of the common counts to which non assumpsit, set-off and payment were pleaded. Both parties filed bills of particulars showing what each party claimed to be the condition of the account between them. A trial was had by the court with a jury, and a verdict returned for appellee on his plea of set-off for $43.62, on which the court entered judgment, and appellant brings the case to this court, and asks a reversal of the judgment because the verdict is not sustained by the evidence, and because the court erred, as it is claimed, in giving an instruction for appellee; all other errors assigned practically being waived because nothing is said about them in appellant’s brief and argument. But one instruction was asked or given for appellee. There is error claimed in the giving of that instruction. The instruction is as follows:

‘ ‘ The court instructs the jury, that corporations can only act on contract by their officers or agents, and when a corporation holds certain persons out to the public as authorized to act on its behalf, then the corporation, like an individual, will be bound by all the acts and contracts' of such persons which are done or made within the apparent scope of their said agency, and if you believe from the evidence in this case that the defendant appointed Leopold Fleischer as its agent, or voluntarily and knowingly held bim out to the public as such agent, and as authorized to act and sell merchandise on its behalf, and receive payments for such merchandise, then the plaintiff is bound by the acts o'f such agent. ’ ’

The principal witness for appellant was said Leopold Fleischer, who testified that he was the agent of appellant and had authority to sell wines, liquors, and other things for appellant, and was authorized to receive payment therefor.

All of the evidence in this record indicates that appellant in so far as the transactions with appellee are concerned, did hold the said Fleischer out to the world as its duly authorized agent to act in its behalf.

The only business transactions between appellant and appellee were solely in the nature of selling the goods in which appellant dealt by the said Fleischer as agent, and collecting the pay therefor by said Fleischer, and there is no evidence or claim to the contrary.

The instruction particularly directed the attention of the jury to business within the scope of the agent’s authority by the following language, “Then the corporation, like an individual, will be bound by all the acts and contracts of such persons which are done or made within the apparent scope of their said agency.”

Certainly all of the acts done by the agent were especially within the apparent scope of his authority. The agent testified he was the agent, with authority to sell appellant’s goods, and collect the pay therefor. All his acts as testified to were concerning sales of appellant’s goods by the agent, and collecting for them. There is no reversible error in this instruction under the evidence as it appears in this record.

The remaining question is one on the facts as they appeared in evidence. Each side presented its witnesses. The jury saw them and heard them testify, and had an opportunity to judge of their credibility. It was the particular province of the jury to weigh the evidence, and to give to the testimony of each witness the credit they thought it was entitled to. The jury saw fit to believe appellee’s witnesses, and adopted appellee’s theory of the case, and in so doing this court is not prepared to say they were wrong.

The principal bone of contention was the item of $85.41 claimed to have been paid by appellee for which, appellant had not given him credit. He testified he paid it, and the agent could not remember about it. Other items of payment were testified to by appellee, and admitted by the agent as not having been credited. It was practically admitted that the account was not correct. It was not correct as a matter of fact.

Appellee testified that when Peretz and the agent were at his place, and were talking- about the account, he said to them, “You figure up my account and get it straight and if there is any balance due, I will pay it. If I have paid you too much, I will expect you to make it right.”

It must have appeared to the jury as it does to this court on the record, that the agent was mistaken, to say the least, about the account, and although Peretz testified that appellee said to him in substance that the account was all right, yet the agent who sold the goods, and collected for them, practically admitted that the account was wrong.

Appellee testified that he had made payments that had not been credited. Hence, the jury were justified in finding there was no account stated which barred appellee. The jury evidently looked at the claim of an account stated as unfair, when appellant, through its agent, practically admitted that the account was wrong as a matter of fact, but sought to hold appellee to an acknowledgment of its correctness on the ground that he had held the bills so long a time without complaint.

The jury decided between the parties, and we are not disposed to say they were wrong in their verdict. Judgment affirme.d.

Affirmed.


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    Sarah Mabrey, Appellee, v. Amos Haverstick, Appellant.
    Gen. No. 5,646.
    1. Negligence—dog frightening team. In an action for injuries sustained when a team alleged to have been frightened by defendant’s dog crashed into plaintiff’s buggy, plaintiff must establish by the preponderance of the evidence that defendant’s negligence in keeping the dog as charged was the proximate cause of the injury, and it must be proved that defendant was the owner and possessor of the dog with knowledge of its vicious propensities of frightening teams or circumstances which reasonably show that defendant must have had knowledge of such viciousness established.
    2. Witnesses—effect of making defendant a witness for plaintiff. When plaintiff makes defendant his witness he is in ,a bad position to argue that defendant’s testimony cannot be relied on.
    3. Animals—liability for vicious dog. A verdict for personal injuries caused by alleged negligence of defendant in owning and keeping a vicious dog, with knowledge of his propensity to frighten teams along the highway, which dog frightened a team driven with due care and such team ran into plaintiff’s buggy and injured her, cannot be sustained when the evidence is insufficient to show that defendant had knowledge of such propensity and it must be concluded from the evidence that the driver of the team which ran into plaintiff’s buggy was negligent in the manner in which he drove.
    4. Evidence—statements of plaintiff in pleadings filed in previous cases admissible. On action for personal injuries sustained when a team, alleged to have been driven with due care, crashed into plaintiff’s buggy when frightened by an alleged vicious dog kept and owned by defendant, with knowledge of such vicious propensity to frighten teams along the highway, it is error to exclude a declaration filed in an action against defendant and the driver of such team and the original declaration in the action at bar in which • it was alleged that such driver negligently drove a team of colts with his left hand and led another team with his right hand.
    Action in case for personal injuries. Appeal from the Circuit Court of Whiteside county; the Hon. Emery C. Graves, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed October 15, 1912.

      Carl E. Sheldon, for appellant.
    N. G. Van Sant and Harry H. Waite, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

This is an action on the case brought by appellee against appellant to recover damages for injuries sustained by appellee having been thrown from a buggy in which she was riding with her daughter on the public highway, opposite appellant’s farmhouse by reason of appellant’s negligence.

The negligence complained of is that appellant was the owner of and kept a vicious dog, well knowing the dog’s vicious propensity to frighten, annoy and bite horses, and viciously attack, pursue, bite and frighten horses and teams traveling and being driven along the public highway, and that this dog ran out of appellant’s yard, and frightened the team of one Albert Scott, while said Scott was using due care in the driving thereof, thereby causing said team to crash into and destroy the buggy in which appellee was riding, throwing appellee out, and causing the injuries now complained of. The trial resulted in a verdict and judgment for appellee for $500, and the case comes to this court on appeal.

To enable appellee to recover, it was necessary for her to establish by a preponderance of the evidence that the negligence of appellant, charged in the declaration, was the proximate cause of the injury; and in establishing such negligence, it was necessary for her to prove that appellant was the owner and possessor of the dog, with knowledge of its vicious propensities of barking at and frightening teams passing along the highway; or to prove circumstances from which it must appear to all reasonable persons, that appellant must have had knowledge of such vicious propensities. Keightlinger v. Egan, 65 Ill. 235; Mareau v. Vanatta, 88 Ill. 132; Swanson v. Miller, 130 Ill. App. 208.

There is evidence in the record from which the jury could find the vicious propensities of the dog, but slight, if any, evidence to show appellant’s knowledge of it. Appellant specifically and flatly denies any knowledge on the subject. He testified he had never seen or known of the dog having frightened, bitten or pursued teams and horses when driven in the highway; and no witness in the case testified affirmatively that appellant had such knowledge of the propensities claimed.

We see nothing in appellant’s evidence, beyond his natural interest in the event of the suit, that would -tend to discredit him in any way, and the fact that appellee first used him as a witness, puts her in a bad position to argue that his testimony cannot be relied on. We think the verdict is against the weight of the evidence on that point.

The negligence complained of is that appellant kept a dog knowing his vicious propensities to frighten teams. The negligence was the act of keeping such a dog. Was that negligence the proximate cause of appellee’s injuries? The rule, if there can be said to be a rule applicable to the facts in this case, is set forth at length in Seith v. Commonwealth Electric Co., 241 Ill. 252, as follows: “The rules for determining whether a negligent act or omission is the proximate cause of an injury are well established and have been applied by different courts in numerous cases to different conditions of fact. There has been practically no difference of opinion as to what the rules are, and they may be briefly stated as follows: The negligent act or omission must be the cause which produces the injury, but it need not be the sole cause nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which, in combination with it, causes the injury, or if it sets in motion a chain of circumstances and operates on them in a continuous sequence, unbroken by any new or independent cause. The question is not determined by the existence or non-existence of intervening events, but by their character and the natural connection between the original act or omission and the injurious consequences. To constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence. It is not necessary that the person guilty of a negligent act or omission might have foreséen the precise form of the injury, but when it occurs it must appear .that it was a natural and probable consequence of his negligence. If the negligence does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the two are not concurrent and the existence of the condition is not the proximate cause of the injury. * * * The test is whether the party guilty of the first act or omission might reasonably have anticipated the intervening* cause as a natural and probable consequence of his own negligence, and if so, the connection is not broken; but if the act of the third person which is the immediate cause of the injury, is such as in the exercise of reasonable diligence would not be anticipated and the third person is not under the control of the one guilty of the first act or omission, the connection is broken and the first act or omission is not the proximate cause of the injury.”

One phase of the rule was stated in Chicago Hair & Bristle Co. v. Mueller, 203 Ill. 558, as follows: “If the negligent act and the injury are known, by common experience, to be usual in consequence, and the injury such as is liable, in the ordinary course of events, to follow the act of negligence, it is a question of fact for the jury whether the negligence was the proximate cause of the injury;” and there is a general review of the subject in Thompson on Negligence, chap. 5. In Braun v. Craven, 175 Ill. 401, the court said: “The principle is, damages which are recover able for negligence must be such as are the natural and reasonable results of defendant’s acts, and the consequences must be such as, in the ordinary course of things, would flow from the acts and could be reasonably anticipated as a result thereof.”

In Pollock on Torts, the author declares that the only rule tenable on principle, where the liability is founded solely on negligence, is contained in the statement, “that a person is expected to anticipate and guard against all reasonable consequences, but that he is not, by the Law of England, expected to anticipate and guard against that which no reasonable man would expect to occur.” Webb’s Pollock on Torts, p. 45. Judge Cooley states the rule as follows: “If an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause injury followed, as a direct and immediate consequence, the law will refer the damage to the last or proximate cause, and refuse to trace it to that which was more remote.” Cooley on Torts (3rd Ed.), 99. In Wharton on Negligence, sec. 134, is found the following-question and answer: “Supposing that if it had not been for the intervention of a responsible third party the defendant’s negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be answered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of independent, responsible human action."

Can it be said that appellant could have reasonably anticipated that a third person would come along the road driving a span of colts, sitting back on his wagon, driving them with his left hand, and leading behind him another team with his right hand, and that the team of colts would become frightened by the act of appellant’s dog running down to the highway and barking, thereby frightening the team of colts, and. causing them to crash into another buggy being driven along the highway?

The act of negligence must be kept in mind, namely, that of keeping a dog, knowing his propensity to frighten teams passing along the road.

Albert Scott was in no way under the control of appellant, and if we are to believe anything from the evidence, it must be concluded by all reasonable men that Scott was negligent in the manner in which he drove his span of colts.

The proof that was admitted is sufficient to show this, and when, in connection with that, is taken into consideration the rejected evidence of what appellee must be held to, as admitted by herself, it is clear that she believed Scott was negligent.

An action was commenced in the City Court of Sterling by appellee against appellant and Albert Scott, and in that case a declaration was filed which alleged among other things that Scott was negligently and carelessly driving a young team of horses hitched to a wagon, and leading another team of horses hitched to another wagon, and that it was his duty to use due care and diligence in the management of his teams for the safety of other persons traveling upon and along the course of the public highway; yet, that said Scott did not regard his duty in that behalf, but on the contrary did carelessly and negligently drive and lead said teams. The present case was originally commenced against both appellant and said Scott, and the original declaration filed in this case alleged substantially the same thing in regard to the way in which Scott was driving and leading his teams. These declarations should have been admitted in evidence, and it was error to exclude them.

“The question as to how far statements made by a party to a suit, in pleadings filed in previous cases, are admissible in evidence, is one on which the authorities are conflicting, but the rule adopted in this State is that they are admissible, and their weight is to be determined from all the facts and circumstances under which they were made.” Gardner v. Meeker, 169 Ill. 40.

In Soaps v. Eichberg, 42 Ill. App. 375, it is said as follows: “We think the rule is, that the admissions of a party as to a fact, no matter how made, may be given in evidence against him. Bills in chancery and answers in chancery have uniformly been deemed admissible in evidence, and that, too, without regard to whether such pleading were sworn to or not. Robbins v. Butler, 24 Ill. 387; Daub v. Englebach, 109 Ill. 267. In the case last cited an unsworn answer which, like the declaration in the case at bar, had been withdrawn from the files by leave of court, was held to be competent evidence, and in relation to that it is there said: ‘It is wholly immaterial whether the answer was sworn to or not and it does not matter that it was withdrawn from the files. ’ While at common law fictions are recognized in pleadings, and it was not required that pleadings should state the truth, yet the decided weight of authority is that common-law pleadings are admissible in evidence. Wharton on Evidence, sec. 838; Lyster v. Stickney, 4 McCrary C. C. 109; Gery v. Mannel, 89 N. C. 83; Peckham Iron Co. v. Harper, 41 Ohio St. 100; Boots v. Cannon, 94 Ind. 408. Much that has been said against the admissibility of this count in the declaration applies not so much to its competency but to its weight and value as evidence. If it was admissible it should have been submitted to the jury, who are the judge of its weight as evidence. If it tended to support the issue upon the part of plaintiff in error, he had the right to the benefit of it.”

We find no error in giving or refusing instructions.

The judgment is reversed and the cause remanded.

Reversed and remanded.


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    Lilly Rashed, by N. M. Rashed, her next friend, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5,648.
    1. Damages—when verdict not excessive. A verdict for seven hundred and fifty dollars is not so excessive as to justify a reversal, where the physicians’ bill is eighty or ninety dollars, plaintiff lost three months’ time because of the injuries, is still suffering therefrom, and is yet incapacitated for labor.
    2. Carriers—personal injuries. A verdict for plaintiff should not be reversed where the evidence is conflicting whether she was thrown down by the sudden starting of the street car when she was alighting, or whether she walked off the car before it stopped.
    Action in case for personal injuries. Appeal from Vie Circuit ■Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Pinkney & MgRoberts, for appellant.
    "William M. Barnes and Weil & Bartley, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.

Appellee sued appellant .to recover for injuries sustained by her through the alleged negligence of appellant while she was getting off of appellant’s car. The suit resulted in a judgment against appellant for $750 from which judgment this appeal is prosecuted. No questions are raised of error of the trial court in rulings on evidence, or in the giving or refusing of instructions, but the contention of appellant is that the verdict is contrary to law, and is not sustained by the greater weight of the evidence, and that the damages are excessive.

The evidence is that appellee’s physician’s bill is something like eighty or ninety dollars; that she lost about three months’ time, all as the result of the injuries ; that she is yet suffering from the effects of the injuries, which yet incapacitate her for labor. If appellant is liable at all, $750 is not so excessive as to justify a reversal on that account.

There is a conflict of evidence between appellant and appellee as to the cause of the injury, and it might be difficult for this court to say just where the preponderance of the evidence is, therefore this court cannot say the verdict is not supported by the greater weight of the evidence.

It was the province of the jury who saw and heard the witnesses to judge of the weight to be given the testimony of each witness. Undoubtedly there was in the appearance of the respective witnesses certain things of which this court has no knowledge that enabled the jury to determine which side had the greater weight of the" evidence, and both sides agree that only in cases where the verdict is clearly and manifestly against the weight of the evidence can or ought this court disturb the verdict on questions of fact, where the evidence is conflicting.

As appears by the evidence, appellee was a Syrian girl, in this country but a short time, who spoke and understood very little English. Indeed the conductor of the car testified that he told her to wait until the car stopped, but that she did not understand him. It is undisputed that appellee sounded the electric bell to get off the car. She so says, and appellant must have seen her do so because he testifies that she was seated at the time she rang the bell and that “as soon as the car stopped, or slowed down, she got up.”

It is apparent that the conductor was unable to fix in his mind, at the time he testified, whether the car stopped or merely slowed down. Appellee says she gave notice that she wanted to get off by ringing the electric bell, and that two men with dinner baskets got off just ahead of her, and this is undisputed.

Appellee further testifies that as soon as the car stopped she stood up to get off and started for the door and started to get off after the two men got off, and while she was getting off the car started and she was thrown to the ground.

The conductor states this differently, in substance that she simply got up and walked off the car while it was in motion, and before it stopped.

Several passengers were on the rear platform from which appellee started to get off, but not one of them, except one young man, was called upon to testify, or even named in evidence.

Appellee called a witness who corroborated her as to where she was found, namely, at the south side of the street. The company called a boy who stood on the platform, and a couple of passengers who were in the car, and the motorman, and they mostly agreed that she lay in Cedar Street, and they said they did not notice that the car stopped until it got to the south side of Cedar Street, hut that their attention was not directed at all to anything until after the car stopped at the south side of Cedar street, and the girl had fallen.

No two witnesses seem to agree as to the place on the street where appellee fell, from the car. Appellee fell from the car and was hurt. She had no acquaintances on the car, and did not, as we have before stated, speak the language, or have the opportunity to get the names of any witnesses.

In view of the conflicting evidence, and the fact that the verdict has the approval of the trial judge, we cannot say that the jury should have found that she walked off the car before it stopped.

The judgment of the court below is affirmed.

Affirmed.


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    William F. Flock, Appellee, v. Judson T. Williams, Appellant.
    Gen. No. 5,652.
    1. Evidence—existence of partnership. In an action to charge defendants, as copartners, with certain goods delivered, it is not error to admit a pamphlet caused to be published by one of the defendants before the account sued on commenced, in which he referred to his codefendant as the managing partner in the business for which the goods were delivered.
    2. Evidence—contract as to joint enterprise admissible to prove partnership. In an action to charge defendants, as copartners, for goods delivered, it is not error to admit a contract which provides for a joint enterprise between defendants as to the business for which the goods were furnished and which is prima facie proof of a partnership.
    3. Evidence—when sufficient prima facie proof of partnership to make declaration of members admissible. A contract between codefendants which shows a community of property, of interest, of profits, and of management in a certain business makes a sufficient , prima facie showing of a partnership between defendants to authorize the admission of declarations of either in relation to the business, whether made in or out of the presence of the other and with or without the other’s consent.
    4. Evidence-—when order of. proof not insisted on. If during trial sufficient proof is introduced, courts do not stand on the order of the proof.
    5. Partnership—when person liable as partner. One is liable as the partner of the person who ordered certain goods, on the ground that he held himself out to the world, as a partner of such person where in a pamphlet published by him he allows such person to be referred to as the managing partner of the business for which the goods were sold.
    6. Partnership—when estopped to deny. One is estopped to deny the existence of a partnership with a person who ordered certain goods if a pamphlet, which he published, referring to such person as managing partner, came into the hands of the seller of the goods and the seller was informed of the alleged partnership and gave credit on the strength of it.
    7. Partnership—liability as partner for goods delivered. One is liable for goods furnished if a person, alleged to be his partner, asked that they be charged to the partnership, he held himself out to the seller as a partner, and the goods were used in the alleged partnership business for the alleged partner’s benefit.

      Appeal from the City Court of Sterling; the Hon. Henry C. Ward, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    A. A. Wolfersperger, for appellant.
    N. G. Van Sant and Robert W. Besse, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court. ‘

Appellee sued appellant and one Hirleman, charging them as copartners for seed and various other articles delivered to a certain farm known as “Woodlawn Farm No. 2” in this proceeding. Hirleman filed a plea of discharge in bankruptcy, and proved his plea, which eliminated him from the case. Appellant filed a plea denying the partnership alleged. The jury found the issues against appellant. A motion for a new trial was made, and overruled, and judgment was entered on the verdict for the amount thereof, $160.63 and costs. There is no doubt under the evidence but what the goods sued for were bought of appellee by Hirleman on credit, and that they were' used on the farm in question, and were mostly for seed.

The vital question in the case is whether or not appellant and Hirleman were partners at the time the goods were purchased, in so far as the rights of third parties were concerned?

It becomes necessary at first to determine whether or not a prima facie case of such a relation was shown by the evidence, and then to determine whether or not that prima facie case was rebutted by appellant, or whether or not the evidence as a whole, if a prima facie case was first made, shows a preponderance in favor of appellee. Where sufficient evidence has been given to raise a fair presumption that two or more persons are partners, then the acts and declarations of each are admissible as evidence against the others to strengthen the prima facie case already established. Conlan v. Mead, 172 Ill. 13. If the evidence of a partnership relation has been prima facie established, the acts and declarations of the alleged copartners, though not done or made in each other’s presence, are admissible in aid of the prima facie case. Daugherty v. Heckard, 189 Ill. 239. The account sued on this case commenced on February 28, 1908. Under date of February 20, 1908, appellant caused to be published a pamphlet, in which Hirleman was alluded to as the managing partner of the farm above mentioned, namely Woodlawn Farm No. 2. This publication was the act of appellant. He procured and paid for the publication. The publication was the first documentary evidence offered. The offer was objected to, and the objection was overruled. There was no error in overruling the objection. The basis of the objection was that it was incompetent and immaterial. We think it was admissible and competent because it tended to prove the issue. It was a statement, or act, of appellant in or by which he named said Hirleman as a partner on Woodlawn Farm No. 2. Appellee knew of this publication, read it, and understood it before he commenced to sell the goods in question. We think the publication was sufficient to lead appellee, or others, to suppose that appellant was a partner of Hirleman in the farm business. Any conduct on the part of a person reasonably calculated to lead others to suppose he is a partner in a particular business, amounts to a holding out on his part, for by such conduct he lends his credit to the concern. Dooley v. Vance, 97 Ill. App. 42. Next was offered in evidence a contract between said Hirleman and appellant, proved to have been executed by each of them. It was objected to because of being incompetent, immaterial, irrelevant and as not tending to establish in any way any partnership relation between the parties. The objection was overruled, and in this we think there was no error. This contract does not provide for any rents, or the payment of any rent. It requires each party to furnish one-half of the live stock, machinery, seeds, etc., and to pay one-half of various expenses, and provides for a division of what the farm produced; that no farm produce or live stock should be sold without the consent of both parties; that Hirleman was to have the management of the business, subject to the consent and approval of appellant, and that in case of disagreement as to certain things, the decision of appellant was to be final. It will be seen that in the business the parties in all substantial matters were to pay for furnishing equally and pay the expenses equally, and share the proceeds of the farm equally, and that appellant reserved the right to equally control, at least, the business, for by the terms of the agreement, while Hirleman was to have general charge of the business, it was all to be subject to the consent and approval of appellant. It was a joint enterprise of furnishing, paying the expenses, and in the management—a community of property, a community of interest, a community of profits and a community of management. We think this agreement was proof prima facie of a partnership, and it is readily distinguished from the contracts mentioned in the cases cited by appellant as to farm leases; and appellant on February 20, 1908, alluded to Hirleman as the managing partner of that farm. We think this document was properly introduced in evidence, and made a prima facie case sufficient to authorize receiving in evidence the declarations of either Hirleman or appellant in relation to the partnership business, made in or out of the presence of the other, and with or without the other’s knowledge or consent. This evidence was offered in the proper order of the introduction of testimony technically, but in the holding of the Supreme Court in Daugherty v. Heckard, 189 Ill. 246, of the opinion, even if such declarations were offered prematurely, the error, if any, in such offer, would not demand reversal if the prima facie proof was produced in the further course of the trial.

Courts do not stand on the order of the proof if during the trial sufficient proof be introduced. Hirleman testified that he told appellee when he started to trade there to charge the goods to Williams & Hirleman.

The agreement between appellant and Hirleman provided that at the close of the business the parties should attempt to divide what was then on the farm, and that if they could not agree a public sale should be held and a division made in that manner. Hirleman testified that he and his man prepared a sale bill and took it to the Sterling Standard. The publisher of the Standard testified the sale bill was brought to him by Hirleman. Hirleman testified that changes were made in the copy of the sale bill furnished the printer; that such changes were made by appellant, as witness supposed, and that testimony was allowed to stand as given, and was not denied by appellant. The sale bill purported to be signed by Hirleman and appellant. The sale took place, and notes were taken from different purchasers at the sale, payable to Williams & Hirleman, and indorsed by appellant in the name of Williams & Hirleman. Appellee testified that during the running of the account he had a talk with appellant in which appellant said, “Be sure and don’t get our accounts mixed; keep them straight,” and appellee told him he would be careful. It seems from the evidence that Williams also, at that time, was engaged in running other farms. Appellee testified that he presented and made known to appellant the amount of the account; that the amount was $160.63, and that appellant at no time during the life of the account ever denied that that- was the relation between him and Hirleman, whereby the goods were charged to the two, which testimony was given without objection, and that no part of the account was ever paid to him.

Hirleman also testified that he told appellee the account was all right, so that if a partnership relation existed, or appellant had held himself out to appellee as a partner, the declarations of Hirleman would be binding upon Mm. Appellant in no way attacks the amount of the bill, or the fact that the goods were delivered by appellee to Hirleman for use on the farm in question, so that if the partnership is shown by the evidence and the facts and circumstances in evidence, appellant would be liable therefor.

We hold that appellant held Mmself out to the world and to appellee in such a manner as to make him liable as a partner with Hirleman when he allowed Hirleman to be alluded to as the managing partner of the farm in the pamphlet in question, which came to the possession and knowledge of appellee before he commenced to sell the goods. Appellee testifies that he was so informed, and gave credit on the strength of it, and if he did, we think appellant is estopped to deny the existence of the partnership. Appellee was told by Hirleman to charge the goods to Williams & Hirleman, and if they were in fact partners, or if appellant before the goods were furnished held himself out to appellee as a partner, and appellee furnished the goods, and they went to the farm in question for the joint benefit of appellant and Hirleman, appellant is liable for the price thereof.

We see no reversible error in the admission or refusal of evidence.

We have read each instruction given, and while the first instruction is an abstract one, and its refusal would not have been error, yet, as an abstract rule of law, it, as a whole, announces the law of partnership. The second instruction might be criticised for the same reason, but we cannot see how the verdict could have been different, if they had both been refused. The third, fourth, fifth and eighth instructions are criticised because there was not evidence on which to base them. We think they are not open to that criticism.

We approve of the conclusions reached by the jury and the trial court upon the fact that a partnership' existed, and that this indebtedness was incurred in the partnersMp business. Judgment affirmed.

Affirmed.