author: Mr. Justice Clark Mr. Justice Smith

text:
    Fred Wenger, Appellee, v. Strobel Steel Construction Company, Appellant.
    Gen. No. 16,881.
    1. Master and servant—upon what doctrine of assumed risk predicated. The doctrine of assumed risk presupposes that the master has performed the duties of caution, care and vigilance which the law casts upon him. It is those risks alone which cannot be obviated by the adoption of reasonable measures of precaution by the master that the servant assumes. The mere fact that the occupation is hazardous does not render the master immune from liability if he is negligent in his conduct. He must use reasonable care and caution to secure the safety of his servant while engaged in and about his business.
    2. Trial—discretionary power of court to permit evidence in chief upon rebuttal. If evidence is proper in chief its admission upon rebuttal will not reverse in the absence of an abuse of discretion by the trial court.
    3. Evidence—when manipulation of ankle will not reverse. If after the court has permitted a plaintiff in a personal injury action to manipulate his ankle, claimed to have been injured, in the presence of the jury, he orders such evidence stricken out and directs the jury to disregard a movement made by the plaintiff, a reversal will not be ordered.
    4. Instructions—when modifications will not reverse. Slight modifications of instructions will not reverse even though subject to criticism if no prejudice appears to have resulted.

      5. Verdicts—when not excessive. Held, in a personal injury action that a verdict for $7,000 was not excessive where it appeared that the plaintiff was about 40 years of age at the time of the trial, and prior to the injury was earning about 4 dollars per day, that he underwent a second operation about 7 months after the accident, and at the time of the trial, which occurred about a year and a half after the accident, there was still an opening in his leg from which pus was being discharged, and that the evidence tended to show that the injury sustained was permanent.
    Smith, J., dissenting.
    Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed May 21, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Frank M. Cox and R. J. Fellingham, for appellant.
    David K. Tone and H. M. Ashton, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

Judgment was obtained by the appellee against the appellant in the sum of $7,000 upon a verdict of a jury rendered for that amount, the action having been brought for damages for personal injuries alleged to have been sustained by the appellee by reason of the negligence of the appellant.

The appellee was in the employ of the appellant, and was working with a gang of men in tearing up ñ wooden structure constituting a temporary railroad bridge of the Lake Shore & Michigan Southern railroad, at a street crossing in the city of Chicago. The immediate foreman of appellee was one William Belt. Daniel McAvoy was the general foreman from whom Belt received instructions and who exercised authority over two or more gangs of men, including the one in which appellee was working. The railroad tracks at the street in question extended substantially east and west. The wooden bridge which was being torn up was about 18 feet above the ground. The rails and ties had been removed from the bridge, and the men were engaged in removing the stringers that extended lengthwise upon it. The one which was being handled at the time of the accident was 9 by 16 inches and 24 feet in length. These stringers rested on caps, and on top of them ordinary railroad cross-ties were laid. Bolts, called backing bolts, bad been put through these stringers sidewise to keep them from spreading apart. The stringers were bolted to the caps immediately under them by drift or drop bolts, the drift bolts being % of an inch thick. The bolts were from 18 to 30 inches long, and were driven down through the stringers and buried in the caps underneath. The derrick used in the work was equipped with a rope and also a cable, the former being used for the lighter loads and the latter for the heavier ones-. There is conflict in the evidence as to how the drift bolts were taken out prior to the accident. The appellee and three witnesses who gave evidence in his behalf testified that the drift bolts were first removed by using a claw-bar, and then the stringer afterwards raised by the derrick and steam power. On the other hand several-witnesses for the appellant testified to the effect that the drift bolts were never pulled by hand power and a clawbar, and that they could not be so pulled; that they were in fact pulled first by the rope line being placed around the stringer and pulling and jerking the stringer and drift bolt loose from the cap.

The foreman, Belt, heretofore referred to, was a witness for the appellee. He testified that about 15 or 20 minutes before the accident he told the men to pull out the bolts; that he told appellee and one Welch to “hook on the center of the timber and then to get in the clear;” that appellee and Welch adjusted the line three times before the accident happened. He further testified: “The first time they went out and hooked onto the center of the timber. Then we raised the timber up the first time and I saw it was fouled on the east end, and I slackened the timber down again and told them to take the line out and hitch it onto the end that was fouled, and plaintiff and Welch went out there and put on the line, and then they got off the timber and I went ahead on it and loosened the timber up, and after I loosened the timber up I slacked down again and moved the line to the center, and in slackening this timber down this drift bolt in the center fouled again. When I told plaintiff and Welch the third time to adjust the line they went out there and hooked in the center of the timber as near as they could. Then Welch went to the east end of the bridge and plaintiff came to the east end of the derrick. Plaintiff went about 25 feet and at the time of the accident he was standing within three feet of the car. The first time after plaintiff adjusted the line he stood back at the end of the car just about the same place.” He further testified that he went ahead on the timber, and had the timber up about 10 or 12 feet in the air, and then gave the niggerhead man a signal to stop; that thereupon McAvoy, the general foreman, who was standing at the east end of the bridge, said ‘ ‘ Gro ahead and take the-thing out of there;” that he, Belt, obeyed this order and gave the engineer a signal to go ahead; that the engineer gave the niggerhead man steam to pull it; and that when the timber let loose on the east end it struck the ball of the railroad rail and skidded back and caught plaintiff between the timber and the brake-beam of the derrick car. The west end of the timber hit the derrick car and the plaintiff. At that time the east end of the timber was up in the air and appellee was standing at the east end of the derrick by the side of Belt (the witness). The testimony of appellee on the manner of the accident was substantially the same as that of Belt, excepting that appellee said he undertook to get upon the derrick car after McAvoy gave Belt 'the order. Belt says that he did not notice that appellee moved from the position directly east of the derrick.

The chief portion of the oral argument made in behalf of the appellant was, and a large portion of the written argument is, devoted to a discussion of the proposition that the appellee was guilty of contributory negligence in going west instead of east, as did his companion.

The testimony would indicate that it had been customary in like circumstances for some of the men to go towards the derrick car and for others to go east; that the men were supposed to look after themselves, and no definite orders were given them as to where they were to stand. The argument of appellant is that it was apparent that the necessary result of handling the timber in the way that it was being handled would be to cause it to come towards the derrick; that therefore the foreman, the appellee and others who stood in a position where the timber might have reached them were guilty of negligence. The question of negligence is a mixed question of law and fact. The action of the appellee was not such that we can say he was guilty of contributory negligence as a matter of law. Nor, considering the question as one of fact, can we say that the verdict of the jury upon it was against the manifest weight of the evidence. Some of the men were in the habit of going towards the derrick car, and others in the opposite direction, when a timber was being raised. If the timber was so handled that it went straight in the air there was no danger. If, however, it went up at an angle it would naturally go towards the derrick car, as the force exerted upon it came from that direction. The foreman, however, was at the east end of the derrick car, and evidently considered it a safe place. Both he and appellee were there when McAvoy, the general foreman, gave the order complained of, and McAvoy must have been aware of that fact.

The jury by its verdict has found that the appellee was not guilty of contributory negligence, and the trial judge by refusing to grant a new trial has set his approval upon its finding in that regard. In our opinion the judgment should not be reversed on the ground that appellee was guilty of contributory negligence.

It is next argued by the appellant that the risk was one which was assumed by the appellee under his contract of employment. It is true that a servant assumes the ordinary risks incident to the work upon which he is engaged, and these risks are necessarily greater where the work consists in demolishing a building or erecting a structure which requires 'the'handling of heavy pieces of material, etc., than are those incident to other occupations. But the rule presupposes that the master has performed the duties of caution, care and vigilance which the law casts upon him. It is those rislis alone which cannot be obviated by the adoption of reasonable measures of precaution by the master, that the servant assumes. Pantzer v. Tilly-Foster Iron Milling Co., 99 N. Y. 368; City of La Salle v. Kostka, 190 Ill. 130. The mere fact that the occupation is hazardous does not render the master immume from liability if he is negligent in his conduct. He must use reasonable care and caution to secure the safety of his servants while engaged in and about his business. Hansell-Elcock Foundry Co. v. Clark, 214 Ill. 399; American Car Co. v. Hill, 226 Ill. 227.

Appellee argues that the foreman, Belt, was operating the derrick properly; that he discovered or became aware that the bolts had not been taken out, and thereupon ordered the machinery stopped; that at this juncture McAvoy appeared upon the scene and gave the order as heretofore set .forth, which resulted in Belt doing what he would not otherwise have attempted. McAvoy was vice-principal of the appellant, and Belt, as foreman or sub-foreman, was acting in a similar capacity. The negligence of either of these men must, in our opinion, be regarded as the negligence of the appellant. It was, therefore, a question of fact for the jury to determine whether or not these men were or either of them was guilty of negligence, taking into consideration the fact that appellee, perhaps with others, was standing east of the derrick car and in what is now claimed by appellant to have been a dangerous location in view of what was being attempted. We cannot say that the decision of the jury, as expressed by its verdict, is, with reference to this point, manifestly against the weight of the evidence.

The testimony of a witness named Lundberg was introduced' by the plaintiff in rebuttal, and the complaint is made that it was improper because it was a part of the plaintiff’s main case and therefore shoukj, have been offered before the defendant’s testimony was produced. Whether or not testimony should be allowed in this manner is a matter resting in the sound discretion of the court, and will not be reviewed on appeal unless that discretion is shown to have been abused. City of Sandwich v. Dolan, 141 Ill. 430; I. D. & W. Ry. Co. v. Hendrian, 190 Ill. 501. We cannot say that there was an abuse of the discretion in the ease before us.

During the course of his examination, the plaintiff was asked the question as to how much he could move his ankle. He undertook to answer by indicating with his foot. That was objected to by counsel for the defendant. The ruling on the objection was deferred, and afterwards, at the request of plaintiff’s counsel to “strike it out,” the court said, “Strike it out, and the jury will disregard the movement made by plaintiff.” While the indication attempted to be made by the witness was perhaps improper, as being self serving, we think the announcement of the court was sufficient to remove any incorrect impression the jury may have received.

Complaint is made as to the action of the court in modifying certain instructions tendered by the appellant, and in refusing certain other instructions tendered by it. We have carefully considered the objections, and think that the instructions given by the court—6 as tendered by the appellee and 17 as tendered by the appellant—sufficiently and correctly advised the jury as to the law which should govern them in arriving at their verdict. We do not regard the slight modifications made in instructions tendered by the appellant as erroneous.

It is insisted by the appellant that the damages awarded are excessive. The appellee, it appears, was about 40 years of age at the time of the trial, and prior to the injury was earning about $4.08 a day. He underwent a second operation about seven months after the accident, and at the time of the trial, which occurred about a year and a half or more after the accident, there was still an opening in his leg from which pus was being discharged. There was also testimony to the effect that the injury would be permanent. We do not regard the amount of the verdict so large as to require us to reverse the judgment on that ground..

We find no error in the record which should cause a reversal of the judgment, and the same is affirmed.

Affirmed.

Mr. Justice Smith

dissented on the ground that if plaintiff’s duty required him to go west toward the derrick, he assumed the risk of an obvious danger in his employment; if it was not his duty to go west toward the derrick, he was guilty of contributory negligence in taking a position towards which the force exerted upon the timber or stringer would cause it to move with great force when detached from its fastening.


source: Caselaw Access Project

author: Mr. Justice Clark

license: Public Domain

text:
    J. George Scott, Appellee, v. Chicago Binder & File Company of Chicago, Illinois, Appellant.
    Gen. No. 16,745.
    1. Municipal court—when charge not subject to review. The oral charge given by the court is not subject to review on appeal in the absence of objection or exception.
    2. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    3. Interest—when allowance not subject to review. The question as to the allowance of interest is not preserved for review in the absence of objection or exception.
    Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed May 21, 1912.
    M. D. Dolan, for appellant.
    Mather & Hutson, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought by the appellee against the appellant in the Municipal Court of Chicago for commissions for the sale of certain loose leaf binders, files, etc. There was a trial before the court and a jury, which resulted in a verdict in favor of the appellee of $1,450.43. The verdict included interest. Upon this verdict judgment was entered.

We are asked to reverse the judgment for. the reasons, first, that the evidence fails to sustain the verdict; second, that errors were made in instructions in the charge of the court to the jury, and third, because interest was allowed.

There were no written instructions tendered, excepting one by the appellant, which was the defendant below, to the effect that the jury be instructed to assess the plaintiff’s damages at the sum of $238, which was the amount the defendant admitted to be due to the plaintiff. This motion was denied and an exception was preserved by the defendant. The court then instructed the jury orally. No objection was made, so far as the record shows, and no exception was preserved to any portion of the charge. The only question, therefore, to be passed upon in relation to the instructions is as to the failure to instruct upon the motion of the defendant, in the manner heretofore set forth. We have carefully examined the testimony as shown in the abstract, and cannot agree with the contention of appellant that the evidence fails to support the verdict. No good purpose wohld be served by discussing the evidence, and we refrain from doing so.

The appellant insists that the trial court misconstrued the written contract. The appellant did not, however, by tendering any instruction seek to have the court instruct the jury in accordance with the appellant’s theory as to its construction. While, as heretofore stated, no objection or exception appears in the record as to the charge of the court, we have examined the instructions as delivered orally by the court, and are of the opinion that the portion of the charge construing the contract, and of which complaint is made, was correct.

The question as to the allowance of interest was not preserved in the record by either objection or exception. The question as to whether or not there was unreasonable or vexatious delay in payment was one for the jury, and we see no reason for reversing the judgment because interest was allowed in the verdict.

The judgment will be affirmed.

Affirmed.


text:
    Herbert S. Walsh et al., Appellees, v. North American Cold Storage Company, Appellant.
    Gen, No. 16,528.
    1. Mechanic's, liens—when decree not disturbed, A decree awarding a mechanic's lien will not he disturbed if predicated upon the report of a master approved by the court, unless it appears either that errors of law have intervened or that the findings of fact or some of them are clearly and palpably against the weight of the evidence.
    2. Mechanic’s liens—when architect’s certificate not essential. A decree awarding a mechanic’s lien will not be disturbed notwithstanding no final certificate was issued by the architect as provided for in the contract which formed the basis of the action, if it appears that the work had been accepted by the architect and that the issuance of the final certificate was deferred in deference to the owner.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed May 21, 1912.
    L. A. Stebbins, for appellant; Mater, Meter, Austrian & Platt, of counsel.
    Samuel J. Lumbard, for appellees.
   Mr. Justice Clark

delivered the opinion of the court.

This appeal brings up for review a decree entered in a mechanics’ lien case. The petition was filed by the appellees, Herbert S. Walsh and Michael C. Masterson, doing business as Walsh & Masterson, against the appellant, North American Cold Storage Company, and sundry other individuals and corporations who were charged to Aave an interest in the subject matter as contractors, sub-contractors, trustees under mortgage, holders of notes upon the mortgage, etc. The only lienors, however, who prosecuted the suit to effect were the appellees, Walsh & Masterson, and the American Bridge Company of New York. By the decree the former were awarded the sum of $8,713.20 and the latter $20,848.69. These amounts included interest from the dates that the contracts respectively were found by the master to have been completed, to the date of the master’s report, and also interest upon the amounts found to be due by the master from the date of his report to the date the decree was entered by the court. It was also ordered that the appellant pay to the appellees Walsh & Masterson $385.63 and to the Bridge Company $1,320.30, being the sums paid by them respectively to the master as fees.

The appellant, North American Cold Storage Company, in 1904 undertook the building of a large addition to its warehouse on North Canal street in the City of Chicago. Contracts were made with different independent contractors for various portions of the work. The contract entered into with Walsh & Masterson was for what was known as the sub-structure work, and that with the Bridge Company was for the steel work. The former contract was entered into on May 5, 1904, and the latter on June 9, 1904. The appellant also entered into three contracts with Carlson & Dunning, made respectively in June, August and October, 1904. These contracts were for mason work, ■tearing down a wall, etc. The addition to the building covered a space of about 60 by 60 feet, the old structure being about twice as long as and of equal width to the addition. The old structure was 15 stories in height, and the new 16 stories. There was no place for the storage of material to be used in the construction of the building except on the site itself, and material could only be delivered at the site at about the time the several contractors were ready to make use of it. Because of the difficulties in the way of contractors who were doing different portions of the work at the same time, and because of the lack of space for materials, a great many practical and serious difficulties were encountered in the construction of the building.

The contract of Walsh & Masterson provided that the work thereunder should be completed by June 5, 1904. The testimony tended to indicate and the master found that the work was completed on August 4, 1904; that this work was done by them to the satisfaction of the architect named in the contract, and that they furnished material and did extra work at the request of the appellant, the reasonable value of which was $791.13. The master further found that subsequent to the making of the contract with Walsh & Masterson changes were made by the appellant in the original drawings or plans; that the new plans were furnished some time during the month of June, 1904. There was testimony to the effect, and the master found, that during the progress of the work a change was again made in the plans, which necessitated the re-arranging of a row of piers and slight other changes, which required Walsh & Masterson to go further out into the river in building the dock and cofferdam in order to protect the foundations. It further appears that delay was caused because of the fact that the appellant did not obtain permission from a railroad company to excavate under the tracks west of the foundation, until about June 30, 1904. It appears that on June 8, 1904, Mr. Abbott, the architect, "wrote to Walsh & Masterson notifying them that the contract •time had expired for the completion of the work, and requesting them immediately to proceed to do certain work required of them under the contract. Letters were written by the appellant in June and July, complaining of the delay in the completion of the work, and to these letters Walsh & Masterson replied, in one letter giving as their reason for not proceeding with the excavation that it would be very dangerous to attempt to start it on so small a lot while the pile driver was being operated, and giving as a reason for not driving the sheet piling on the west end of the lot that the appellant had not arranged to divert the C. M. & St. P. trains, which would have to be done before the piles could be driven. The master in his report states that he was unable to determine the exact amount of delay that was caused by changes in the plans. He finds, however, that there was due Walsh & Masterson from the Storage Company the sum of $6,791.13, after the allowance of $5,000 theretofore paid by the Storage Company. This amount of balance is admitted by the appellant to be correct. On August 30, 1904, the architect referred to wrote Masterson to the effect that the work done by his firm was acceptable and that they were relieved from any responsibility touching the work should it be damaged by other contractors or by vessels passing along the river. Although demand was made for what is called a final certificate, no such certificate was issued, unless the letter referred to can be treated as such. The fact that no such certificate was issued is not relied upon by appellant as ground for reversal.

Prom the testimony the master found that the American Bridge. Company of New York employed the American Bridge Company of New Jersey to do most of the fabrication of the material which was used in the building; that the plans and specifications were prepared by the architect and submitted to the American Bridge Company of New York, the plans then being sent to the drafting department of the Detroit plant of the New Jersey corporation; that some of the drawings were not received at the Detroit drafting department until the month of September, 1904. The amount to be paid to the American Bridge Company under its contract was $41,000, and the work was agreed to be completed by September 1, 1904. The master found that the delay, changes, and lack of information from the appellant, resulted in considerable delay in the drafting of the shop drawings, and that thereby the time taken for the purpose of completing the working or shop drawings was prolonged about a month beyond what it ordinarily would have taken. The master further found that there were changes made in the plans of the architect subsequent to the entering into the contract with the American Bridge Company of New York, and some time during the progress of the work on the building; that these changes caused delay, the exact amount of which it was impossible from the evidence to determine; that it was impossible for the American Bridge Company of New York to proceed with the work until certain dimension stone, to be laid, as we understand it, by Carlson & Dunning under their contract, had been set on top of the piers heretofore referred to; that therefore the American Bridge Company could not commence its portion of the work on the building until August 8, 1904.

It appears that the erection of the steel work on the addition was done by Oscar Daniels Company under a sub-contract with the American Bridge Company of New York; that the Daniels Company acted on the theory that it would be able to place a derrick upon the roof of the building belonging to the appellant and to which the addition was being constructed; that negotiations were had with reference to the use of this roof with Mr. Denman, the superintendent of the cold storage plant; that Mr. Denman stated he could s.ee no objection to using this roof, providing the company could be guaranteed against damage resulting therefrom, but that he would not give his consent without consulting the president, Mr. Johnson, who was in California; that all negotiations concerning the use of the roof failed, and on September 9, 1904, the Bridge Company proceeded to erect the derrick on the site of the new building, and that this derrick was completely erected and ready for work on September 15, 1904.

The master further found, and there is testimony to support the finding, that it was originally the intention to use the derrick (placed on the roof of the old building) in setting the grillage beams, and there being no available place other than the roof of the old building for the derrick, it was necessary to set these beams by hand, which was done; that it was impossible to place the derrick on the site of the building before September 12, 1904, owing to the condition of the foundation and the work going on prior to that time, which was being performed by others than the Bridge Company or its sub-contractor; that the Bridge Company was delayed in the erecting work by the fact that the north brick wall of the old building was not removed in time to permit the constructing gang to make connections at the columns of the old building, which were inside of this brick wall, with the floor beams of the said addition, as they went along. The work of tearing down this wall, as heretofore stated, was contracted to be done by Carlson & Dunning.

The master found that the building could have been erected in five or six weeks’ time if the derrick had been placed on the old building and connections made, whereas it took twice that length of time under the conditions as they existed, the wall not having been taken down and the Bridge Company not being allowed to use the roof of the building for the derrick.

There is testimony to support the finding, and the master found, that subsequent to the time when the Bridge Company began the erection of the iron work it proceeded with its work with due expedition until November 23, 1904; that at this time there remained certain work under the track west of the building in the basement, and connected with the old wall of the building, which work was not completely performed until December 17, 1904; that this work was delayed through no fáult of the Bridge Company, but because of conditions which existed at that time, for which it was not responsible.

The master found that there was extra work performed by the Bridge Company, amounting to $477.02; that the balance left due on the contract, and for extra labor and material, after deducting the sum of $25,000 theretofore paid by the appellant, was $16,477.02; and the correctness of this finding is admitted by appellant in the appendix to its brief.

On December 17,1904, Mr. Johnson, president of the appellant company, wrote the Bridge Company as follows:

“Replying to your favor of December 13th, would say that I should be very glad indeed to send you the balance of your contract, were it not that Walsh & Masterson, against whom we have brought suit for delay in their contract, have made you parties to their suit for the balance of their money. Under these circumstances I trust you will appreciate my position, and we will hope for a speedy trial and determination as to just where the responsibility does lie for the delay in the completion of this building. As we have frequently written you, it has been a very serious proposition with us, and it has put us to much additional expense. Personally, I feel that some of this delay was caused by Walsh & Masterson, and some by the American Bridge Company. As to just the proportion, I will of course be unable to say without going into the matter at some length and detail. I am sure that I am more anxious than you can be to pay you and have the matter settled.”

As in the case of Walsh & Masterson, no formal final certificate was given by the architect to the Bridge Company, but on January 20,1905, the following letter was written:

“I herewith accept the character and quality of the erection work as performed by the Oscar Daniels Company in the erection of the structural steel frame for a sixteen story addition to the North American Cold Storage Company’s building, at Canal & Kinzie street, but this acceptance is not to be construed as an acceptance of the work as to the limit of time in which the work of erection was to be done.”

It appears that one Alexander C. Warren had contracted with the appellant to lay the reinforced concrete floors and the roof of the building; that he was delayed so that he was unable to do the work until the winter time; that he originally filed a claim for $4,000 on account of such alleged delay, but that this claim was afterwards abandoned; that a final settlement was made between Warren and the Storage Company in the spring of 1905, and that he was paid the balance due on his original contract price and allowed the sum of $2,397.35 for delay; that at the time of the final settlement a contract was entered into by Warren and the Storage Company and one F. K. Pennington, who, it would seem, was acting in the interest of the Storage Company. From this contract it would appear that the claim of Warren in the present proceeding was to be prosecuted as though no settlement had been made; that the expense of the conduct of the case, including the fee of the attorney who had appeared on behalf of Warren, should be borne by the Storage Company, and that whatever amount should be. allowed Warren in the litigation because of the delays should be divided in a manner fixed by the contract between the parties to the contract. The contract specifically provided,'however, that the Storage Company might settle its controversy with Walsh & Masterson and the American Bridge Company in whatever way it deemed best, without reference to Warren or his rights in the premises. A similar contract seems to have been entered into between the Storage Company and Carlson & Dunning. The Warren claim was not pressed before the master, and that of Carlson & Dunning appears to have been settled by the payment of their original contract price in full. Testimony' was offered before the master to substantiate the claim. of Carlson & Dunning for damages due to delay, the total amount claimed being $4,445.

As heretofore stated, it is not claimed by the appellant that Walsh & Masterson were not entitled to recover because no final certificate of the architect was given them. The, same concession is not made, however, with respect to the claim of the American Bridge Company. It is still insisted by the appellant that no recovery may be had by it because no final certificate was granted.

As to both claims, it is insisted by the appellant that the appellant showed before the master damages for delay, for which Walsh & Masterson and the American Bridge Company of New York were responsible, in the sum of $84,824.65.- The claim is made up as follows:

“Paid to Warren (Warren’s testimony, 1075-340) ............................$ 2,379.35
Loss in labor efficiency of men working for Storage Co. direct, after Jan. 1/05, laying concrete during cold weather...... 5,000.00
Loss to Storage Co. by reason of the fact that the concrete work they did with their own labor was ragged and uneven on account of the cold weather......... 2,000.00
There were 530,000 cubic feet of space in the new building (Johnson’s testimony, 1136-364). The reasonable rental market value of 1 foot of cubic space for 1 year was in the winter'of 1904-5 12 cents (Johnson’s testimony, 1182-379, 1358-450.) The value of 530,000 cubic feet of space of the character in question in 1905, for 5 months was .............. 26,500.00
There was a loss of the use of one half of the space in the old building for 5 months (Johnson’s testimony, 1182-379). The total cubic space in the old building was 700,000 cubic feet (1138-364); one half of same—350,000 cubic feet; value of 350,000 cubic feet of space for 5 months, at 12 cents per annum per foot................................. 17,500.00
(The total cost of- operating the combined plant, including the addition, is substantially the same as the operation of the old plant before the addition was erected (Johnson’s testimony, 1139-364, 1145-366,1152-368,1157-370). Therefore the Storage Company is entitled to recover the reasonable market value of the refrigerated space without any deduction for the cost of refrigerating, and it is so computed in the last paragraphs.) The top floor of the new building was designed to install a butter renovating plant which the Storage Co. had purchased for that purpose (Johnson’s testimony, 1172-375), but by reason of delay In completion of said building it lost the good-will o.f said plant that it had purchased, and lost the season’s business of .1904-5 (Johnson’s, testimony, 1168-374, 1169-373). Thereafter it became impracticable by reason of such delay to install the plant, and the plant was sold piece by piece for scrap or old iron, for the sum of $3,000 (Johnson’s testimony, 1174-374). It cost $5,000 more to build the building with the top floor designed for the installation of the butter renovating plant than it would have cost to erect the whole building for storage purposes only. (Johnson’s testimony, 1171-374). The butter renovating business was worth $15,000 in the fall of 1904 (Johnson’s testimony, 11Ó2-372); the good-will that went with the plant was worth conservatively $10,000 (Johnson’s testimony, 1164-372); and, therefore the total damage to the Storage Co. incurred by reason of this transaction was................................. 27,000.00
$80,379.35
To the above should be added the damages, if any, allowed to Carlson & Dunning against-the Cold Storage Co. upon their cross-bill, the total damages claimed by Carlson & Dunning in said cross-bill being ...................... 4,445.30
$84,824.65.”

It appears that an architect’s certificate dated November 16,1904, is to the substantial effect that $20,000 was then due, less a payment of $10,000 theretofore made. This certificate further showed that a balance of $6,000 would be due upon the completion of the work. The master found and, we think, properly, that the architect’s acceptance of the work, together with the certificate of November 16, 1904, was sufficient to comply with the requirements of the contract as to a final certificate; that from these two documents no other conclusion could be reached than that the work was accepted by the architect, and that there was still $16,000 due after the payment of the said $10,000. In other words, the point attempted to be made by the appellant, that the Bridge Company may not recover because there was no final certificate issued by the architect, is not well founded.

The concluding portion of the master’s report is as follows:

“3. With reference to the question whether said Storage Company is entitled to damages by reason of the delays in the completion of the work of the said Walsh & Master son, and of the American Bridge Company of New York an immense amount of evidence has been introduced bearing on that question, and a great number of legal questions have been discussed. It would be impracticable to discuss that evidence and ' those legal propositions in detail. In my opinion, before the Storage Company can be entitled to any damage, by reason of the said delay, it must show, with at least a fair degree of accuracy, the amount of damage occasioned by each of said contractors, and it must be able to trace that particular damage directly to one or the other of said contractors, and show that such damage was or ought to have been in contemplation of the parties to said contracts, when the same were entered into. It should also appear that such damage was not attributable to any fault on its own part. The burden of proof as to these matters is on said Storage Company.

4. The architect in this case was not intended by either contract to act as an arbitrator, with reference to the amount of delay, if any, or the amount of damage resulting from such delay; and even if he had been made such arbitrator, his conduct and that of Mr. Johnson, the president of said Storage Company, would have deprived him of any right or duty. I do not intend to impute any improper motive to said architect. His duty, in one sense, was to protect the interests of his employer, particularly as he was not made an arbitrator, by the terms of thé contracts; but, if he could be regarded as an arbitrator, his evident interest on behalf of the Storage Company, and Mr. Johnson’s interference and assumption of the duties of the architect, in many respects, would have disqualified the architect to act as an arbitrator. It was the duty of the architect, on application of either contractor, made at the time, to certify to what additional time should be granted; but, in my judgment, this provision of the contract, as also that one giving to the Storage Company the right to take over the work in case of delay, were waived by the action of the parties, or failure to act under such provisions, by all parties concerned. These provisions of the contracts gave to each party a privilege only, which privilege was not taken advantage of by either, although all had actual knowledge of the conditions existing, which may have given the right to exercise the privilege.

5. The contractor and the owner of the building were each protected in case of delays by these two provisions of the contracts, but none saw fit to act on their right in that regard. All assumed to go ahead without protest on the part of anyone, without regard to their privileges, rights or duties, under those provisions. These waivers, however, in _my opinion, would not prevent either party from claiming any legal damage to which they might be entitled by reason of such delays.

6. With reference to Walsh & Master son, it is impossible to tell whether or not the delay on their part was occasioned wholly, or in part, by the delay in the delivery to them of the altered plans, or by the changes in the work, which they had to perform; nor (if only in part) how much of the delay was attributable to those causes.

7. As to the Bridge Company, if it had had access to the work at the time contemplated by the contract, it could have completed its part of the work within the time limited; certainly it could have done so, had it not been for the delays occasioned by reason of the unforeseen difficulties encountered during the progress of its work. It was the duty of the Storage Company, to do all in its power, within reason, to have the work preceding the work of the Bridge Company, in such a state that the Bridge Company could proceed as soon and as rapidly as possible. It did not insist upon its right to take over the work of Walsh & Masterson, and that fact tends to justify the inference that the contractors were doing all in their power to expedite the work. While it might waive-that right, so far as its own interests were concerned, it could not do so, if by so doing it worked an injury to subsequent contractors. As before found, the Bridge Company proceeded with its work, as rapidly as could be expected, under the conditions existing.

8. While, in my opinion, the evidence does not establish the custom in the trade, with reference to the use of the roof of the adjoining building for the derrick, which is claimed by counsel for the Bridge Company, still, the. Storage Company, aside from the existence of a technical custom of that kind, was under obligations, to allow the said Bridge Company (particularly 'under the conditions existing at the site) to use the premises under its control, in any manner, which would give to said Bridge Company the advantage of any usual and ordinary methods of utility and practice, in connection with the work necessary to be done, which would facilitate its work, provided that no damage would result to the Storage Company thereby. The proof shows that the use of said roof would not have resulted in any damage to exceed $100 and the Bridge Company offered to guarantee said Storage Company against any damage or loss of any kind, which offer was refused. The Storage Company could not thus place an unnecessary and unreasonable obstacle in the way of the prosecution of the work of the Bridge Company, and then seek to hold it liable for damage resulting from its own unreasonable and unjustifiable position. The adjoining building was practically a part of the premises on which the work was to be done, and a refusal to permit the use of the roof under the existing circumstances was just as unjustifiable as if the owner of a building should contract to have work done in a certain portion of the building, and then should refuse to allow the contractor to go upon or place his material or tools on any portion of the building except the particular spot where the work was to be done. If the owner of a small congested area of ground, such as this was, who owned the land completely surrounding that site, should refuse to allow a contractor to make use' of any of that land for material or tools or implements or machinery needed in the erection of the structure proposed to be erected on the inconvenient and congested site, surely no court of equity would permit that owner to collect damages for delay in the erection, arising from the inconvenience and impossibility of working to.advantage under such conditions.

9. Even if the said Storage Company was entitled in equity to recover damages in this case, in my opinion, the evidence is not of a character to justify the court in finding, as a fact, that the entire building could have been completed by January 1, 1905. The only evidence in that regard is the testimony of Mr. Johnson, and he was not, in my opinion, sufficiently qualified with reference to all of the different trades involved, to give a reliable opinion, as to just how long it might take each contractor to complete his particular contract. •

10. It may be that the Storage Company could have hastened the completion, if contracts had been made earlier, or if it had exercised the privilege (which it had under some of the contracts, at any rate) of taking over the work and completing it itself. It knew of the delays, and yet permitted things to go on without taking advanta-ge of that privilege, and before it can charge up damages to any one contractor, growing out of delay on the part of a preceding contractor, it should appear that every reasonable effort was made to hasten the work.

11. A number of contracts for work and materials which would seem to be essential for the operation of the plant were not entered into until March, 1905, and the work under some of these contracts was not to be completed for from thirty to sixty days. Indeed, it appears that the elevators were not in fact completed until August 11,1905, and it would seem that the building could have been of no practical use until the elevators were all in running order; and no reason is shown why they were not completed earlier.

12. It would seem that these contracts could have been made much earlier, and that, if so, the work under them might have been completed much earlier than they were in fact completed. The evidence- fails to show that these later contracts could not have been completed in a shorter time, particularly if they had been made at an earlier date. There is so much indefiniteness and uncertainty as to these matters, that the court would not be justified, on the mere opinion of Mr. Johnson, in finding as a fact that the delay in the final completion of the plant, so that it was ready for operation, was all occasioned by the said delays in the work done by said Walsh & Masterson and the American Bridge Company of New York, nor with any sort of exactness, how much of the whole delay was chargeable to said last named parties.

13. Nor is it possible to ascertain with any degree of accuracy, just how much of the delay in the ultimate completion' was chargeable to Walsh & Master-son, nor how much to said Bridge Company.

14. In my opinion, said Johnson was not qualified as an expert with reference to all of these different kinds of work, to such an extent that his opinion alone should suffice to inflict the heavy damages claimed in this proceeding.

15. Moreover, on the question of the amount of the damages, the evidence is too indefinite and uncertain to justify finding that any certain sum is properly chargeable to one and the balance to the other of said two contractors.

16. I am of the opinion also, that the proper measure of damages has not been adopted by the solicitor for said Storage Company, as to a portion of the damages claimed, particularly as to the rental value. The proof offered shows practically the profits (under the guise of the rental value of storage space per cubic foot) which the Storage Company could have made, rather than the rent which could have been obtained for the building as a whole, if rented to some one other than the Storage Company.

17. What has been said before, makes it unnecessary, in my opinion, to discuss at length the claims of Warren & Company and of Carlson & Dunning, for damages. If said Storage Company have failed to show that it is entitled to damages as against Walsh & Masterson and the Bridge Company, it surely cannot purchase claims made against it by said subsequent contractors, and attempt to prove up such damages against itself for the purpose of recovering sueh additional damage against Walsh & Master son or the Bridge Company.”

The record in this case is very voluminous, the abstract containing more than one thousand pages. The appellant has submitted a brief and a reply brief, which together comprise nearly 450 pages. After having carefully perused the abstract and the briefs filed, we are of the opinion that the decree should be affirmed. In our judgment no good purpose would be served by a lengthy discussion of all the points raised in the briefs.

The claim is made that interest was improperly allowed upon the claims. The allowance of interest and the method of computing the same were proper. McDonald v. Patterson & Co., 186 Ill. 381; Ruddy v. McDonald, 244 Ill. 494; Sections 2 and 3, Chapter 74, Revised Statutes.

It is claimed by the appellant that the requisite architect’s certificate was not issued to the Bridge Company. We think the master in his report correctly found that the two certificates which were issued, and which heretofore have been referred to were all that were required to be furnished. It is quite apparent from the record that no formal final certificate was granted because the architect felt it his duty to see Mr. Johnson, the president of the appellant, and obtain his permission, which permission Mr. Johnson refused to give. We regard the case of McDonald v. Patterson & Co., supra, and the cases therein cited, as controlling Upon this point.

We fully agree with the master in his conclusions qn the questions of delay and the responsibility therefor. In our opinion the proofs do not show that the appellant is entitled to any damages as against the appellees for delays in the completion of the work. Even if damages were to be allowed, we do not think that the proofs offered by the appellant afforded any basis for assessing damages as against the appellees, or a division of the same if assessed.

Cross-errors have been assigned by the appellees because attorneys’ fees were not allowed them. The provisions of section 17 of the Mechanics’ Lien act, in so far as it allows a lien holder to recover an attorney’s fee, to be taxed as part of the costs, is unconstitutional, being in violation of section 22 of Article IV. Manowsky v. Stephan, 233 Ill. 409.

■For the reasons stated the decree will be affirmed.

Affirmed.


text:
    Samuel T. Atkins, Plaintiff in Error, v. John W. Vreeland, Defendant in Error.
    Gen. No. 16,197.

      Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. Mioham, P. Girten, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed May 21, 1912.
    Michael P. Morrisey, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Judgment for costs was entered in this case in favor of the defendant in error, the suit being one of forcible detainer. The defendant in error has not entered his appearance in this court, and we are informed by the plaintiff in error that the plaintiff in error has for some time been, in possession of the premises.

The only practical question involved, therefore, is the matter of costs. The principal point presented in the brief of the plaintiff in error is that the verdict was against the manifest weight of the evidence. We have examined the record with care, and have come to the conclusion that such is a fact and that a new trial should have been granted for that reason.

The judgment therefore is reversed and the cause remanded.

Reversed and remanded.


text:
    Olive Allott, Defendant in Error, v. William H. Bowers, Plaintiff in Error.
    Gen. No. 16,328.
    This case is controlled by the decision in Allott v. Bowers, 168 Ill. App. 578.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded with directions.
    Opinion filed May 20, 1912.
    Edward J. Kelly, for plaintiff in error.
    William A. Rogan, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

The writ of error in this case brings up for review the action of the Municipal Court of Chicago in denying a motion to vacate a judgment entered by confession on a lease, and to permit the defendant to interpose a defense.

The s,ame question is involved as in ease No. 16327 between the same parties and upon the same lease. An opinion was filed by Branch D of this court on March 25, 1912, in that case. (168 Ill. App. 573.) For the reasons stated therein we think the judgment should be reversed and the cause remanded, which is accordingly done with directions to the Municipal Court to vacate the judgment and permit the defendant to make defense.

Reversed and remanded with directions.


author: Mr. Justice F. A. Smith

text:
    Henry Lovett v. Oscar E. Binner. Willis J. Wells, Appellant, v. Oscar E. Binner, Appellee.
    Gen. No. 16,941.
    Attachment and garnishment—act construed. The statute now in force does not exempt from garnishment amounts payable on negotiable instruments not due at the time of service of garnishee summons if the instruments mature before “rendition of the judgment” in the hands of the defendant.
    Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and judgment here.
    Opinion filed May 21, 1912.
    Parker & Hagen, for appellant.
    Charles Hudson, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This action in assumpsit with attachment in aid was commenced February 2, 1909. The attachment writ was issued February 20, 1909, and was served on several garnishees including appellant, Willis J. Wells, February 22, 1909. Several motions of appellant were made to quash and were overruled. The garnishees did not answer the interrogatories filed, and conditional judgment was entered against the defendant, and a scire facias was served upon the garnishees. Appellant answered denying indebtedness, “except upon negotiable promissory notes not due at date of writ;” and to interrogatory 7, he answered as follows:

“On or about June 16th, 1908, I purchased from Oscar E. Dinner 615 shares of the capital stock of Dinner-Wells Co. for the sum of $32,595.00. Certificates for said 615 shares of stock were thereupon assigned and transferred to me by said Oscar E. Dinner, and I thereupon made and delivered to the said Oscar E. Dinner eight negotiable promissory notes, all dated June 16th, 1908, payable to the order of said Oscar E. Dinner; note No. 1 for the sum of $3900.00, payable in weekly installments of $75.00 each, the first installment being due on the 23rd day of June, 1908; note No. 2 for $3900.00, payable in weekly installments of $75^00 each, the first installment to be due on the 23rd day of June, 1909; note No. 3 for $5200.00, payable in weekly installments of $100.00 each, the first installment being payable on the 23rd day of June, 1910; note No. 4 for $5200.00, payable in weekly installments of $100.00 each, the first installment being due on the 23rd day of June, 1911; note No. 5 for $5200.00, payable in weekly installments of $100.00 each, the first installment being due on the 23rd day of June, 1912; Note No. 6 for $5200.00, payable in weekly installments of $100.00 each, the first installment being payable on the 23rd day of June, 1913; note No. 7 for $5200.00, payable in weekly installments of $100.00 each, the first installment being payable on the 23rd day of June, 1914; note No. 8 for $2589.70, payable in weekly installments of $100 each, the first installment being due on the 23rd day of June, 1915. Notes numbered three to eight, in-elusive, bear interest at the rate of sis per cent, per annum from the 16th of Juno, 1910, payable semiannually. All installments on note No. 1 have been paid when due. All of said promissory notes have been transferred by said Oscar E. Binner and are now held by other parties. ’ ’

A trial was had before the court without a jury which resulted in a finding and judgment against the defendant Binner for $5,012, and against the garnishee Wells, appellant, for $1,200.

June 16, 1908, Wells, the garnishee, bought from Binner, the principal defendant, his interest in the Binner-Wells Company, a corporation, represented by 615 shares of the capital stock which were then assigned and transfered to Wells, and. in consideration therefor Wells made and delivered his promissory notes above described for $32,595 payable in installments of $75 per week during 1908, and 1909, and $100 per week thereafter. This $75 per week was paid each week during 1909 to Binner by Wells, the garnishee, by giving a check to the Binner-Wells Company, of which he was the principal if not the only stockholder, to the order of Binner for $75. These checks were given to Miss Kiley, a stenographer for the company, who acted for Binner in his absence in California. Miss Kiley stamped them with a rubber stamp for deposit, and took them to the bank, and deposited them to the credit of Binner. Some of these installments were divided by making them for $45 to the order of Binner and for $30 to the order of his wife.

From February 22, 1909, to the date of the answer, June 15, 1909, the garnishee Wells paid the principal defendant, Binner, $1,200 in the manner above stated. After answer filed and before the trial, the garnishee paid Binner installments amounting to $2,025 making the total payments made after service of summons and before judgment $3,225.

The appellee assigned cross-errors setting forth that the. finding and judgment are for a.smaller amount than plaintiff is entitled to recover from Wells.

It is contended by appellant that the judgment against him is erroneous in that it is based on an indebtedness represented by negotiable instruments not due at the date of service of garnishee summons. We do not agree with this contention. While the whole of the notes were not due, one installment was due, and the other amounts or installments fell due between the date of service and the date of judgment. Snider v. Ridgeway, 49 Ill. 522. We do not think the act of 1872 made any substantial change in the garnishment act as construed in Snider v. Ridgeway, supra. The clause “or rendition of the judgment” meant the same in the act of 1872 that it did in the act of 1845. We do not think that the statute now in force exempts from garnishment amounts payable on negotiable instruments not due at the time of service of garnishee summons if the instrument matures before “rendition of the judgment” in the hands of the defendant.

In our opinion the cross-errors of the plaintiff, appellee, are well assigned, and the judgment is reversed and a judgment for the amount which fell due on the notes up to the time judgment was rendered in the trial court, is entered in this court on a finding of fact for $3,225 against appellant Wells.

Reversed and judgment here.


text:
    John G. McDermott, Appellant, v. Frank Burke, Appellee.
    Gen. No. 16,929.
    I. Instructions—what question presented by motion for peremptory. The question presented to the court by motion at the close of the evidence for a peremptory instruction, regardless of whether such an instruction has been refused at the close of the plaintiff’s evidence is, whether there is any evidence in the case either offered by plaintiff or defendant which, with all the legitimate and natural inferences to be drawn therefrom, is sufficient to sustain a verdict for the plaintiff.
    2. Negligence—doctrine of turntable eases. An essential element of the turntable or allurement rule is that a child of tender years cannot be regarded as a trespasser on the premises of the defendant, because he was attracted to its premises by the dangerous thing that caused the injury.
    3. Negligence—when doctrine of allurement does not apply. If the child is attracted to the premises because of an object which was not dangerous, the doctrine of allurement does not apply, even though his injury result from dangerous machinery located upon such premises.
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in the Branch Appellate Court ut the October term, 1910.
    Affirmed.
    Opinion filed May 21, 1912.
    John P. Ahrens, for appellant.
    Frank M. Cox and B. J. Fellingham, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

On the trial of this action in the Circuit Court, at the close of the plaintiff’s evidence, the defendant, appellee, made a written motion to direct a verdict. This motion the court denied. At the close of all the evidence, the defendant renewed the motion to direct the jury to find a verdict for the defendant, and the court granted the motion, the verdict was returned accordingly and, judgment was entered thereon against the plaintiff, appellant.

The amended declaration contains one count, and alleges that on September 9, 1908, and prior thereto, the defendant was a contractor and builder in Chicago, and as such contractor and builder was possessed of and in possession and control of a building or structure then in course of construction by him as such contractor and builder, on Albany avenue, between Jackson boulevard and West Van Burén street, in Chioago 5 that the- building in the course of construction was about 16 feet north of a building then used as a school-house, located on the northwest corner of Albany avenue and West Van Burén street; that in constructing the new building the defendant had on the first floor a cable running on or over a sheave, or grooved wheel, operated by horsepower, and used and operated in hoisting material and other things from one floor to another of the building; and on the date aforesaid and prior thereto had a pile of sand on the first floor of the new building near the cable and sheave; that on the day and year above mentioned the plaintiff was an infant of eight years of age and had been attending the school in question for about two years prior thereto; that plaintiff was attracted by said pile of sand and was permitted by the defendant to play at and around it in said new building, and at and near and around the cable and sheave, without any hindrance by the defendant, and without warning to the pupils of the school of any danger or injury to them from coming in contact with the cable and sheave; that the cable and sheave were of such a character as to be an attraction to the plaintiff, or to any child of the tender age of plaintiff, and when in operation the cable and sheave were highly dangerous to plaintiff and other children playing near or around the same; that the plaintiff entered the said building, which was unguarded and suffered negligently to remain open, and unbarricaded, without guard or shield, and no guard and shield was maintained around the said cable and sheave by the defendant, who knowingly and carelessly and negligently omitted to have any person or persons around or in said building to forbid plaintiff and other pupils of the school from entering the building or warn them of the danger of said cable and sheave; that at the noon recess of said school shortly before twelve o’clock on September 9, 1908, the plaintiff entered said doorway or opening of the said new building and placed his left hand on said cable when it was not in operation, and while his hand was on said cable the cable and sheave were suddenly and without warning to the plaintiff started; and before the plaintiff could remove his hand from the cable, his left hand and fingers were caught between the cable and sheave and two of his fingers were injured.

The main question presented by the record is whether the trial court erred in instructing the jury to find for the defendant, and in entering judgment upon the verdict.

The evidence for the plaintiff tended to show that the sand pile in question which attracted the plaintiff and other children into the building was situated from fifteen to thirty feet from the place where the plaintiff was injured by the cable and sheave. The building was located about fifteen feet back from the street line, and the sand pile was approximately opposite the center door of the building, some twenty-five or thirty feet from the door. The children attending the school including the plaintiff were accustomed to enter the building and play upon the sand"pile. On the day in question the plaintiff, with another lad of about his age, entered the building at the noon recess of the school and played upon the sand pile. After playing' there. awhile, the plaintiff observed the cable, and sheave, and leaving the sand pile went over to the cable and sheave and put his hand upon the cable while it was not in motion. The cable was suddenly started, and his fingers were drawn in between the cable and sheave and crushed.

The evidence for the plaintiff showed that the defendant was a contractor engaged in the furnishing and supplying the material required for the masonry and brickwork in the construction of the building. His contract provided that divers other persons would be engaged in doing various kinds of work upon and in the construction of the building, and he agreed to so prosecute the work so as not to delay or hinder the doing of any work upon or about the building by any other person or persons.

The evidence tended to show also that other work' was in progress in the building; that the materials therefor were piled on the street in front of the building or in the parkway or space between the street and the building, and that planks were so placed as to enable the material being used to be either wheeled, in wheel barrows, or carried through the center door of the building and into the basement or lower floor of the building where the sand pile and sheave and cable were located; and that at the time of the plaintiff’s injury, workmen were in the premises and were at work bringing in materials and carrying on the necessary work of construction.

The evidence for the defendant, in many respects, corroborated the evidence for the plaintiff, and, in some immaterial respects, contradicted it. There was a difference or controversy as to the distance between the sand pile and cable and sheave. The evidence for the defendant showed that the defendant had given orders to his workmen to drive the children out of the building and prevent their playing on the sand pile, and that they were at times ordered out of the building by the workmen. Aside from these matters, there was no particular difference or controversy between the evidence of the plaintiff and the evidence introduced in behalf of defendant.

The contention of the plaintiff, appellant here, is that the declaration and proof brings the case clearly within the doctrine laid down in the turntable cases and that the court should have submitted the case to the jury. It is urged by appellant that the court having overruled the motion to direct the jury, made at the close of the plaintiff’s evidence, must have necessarily weighed the evidence in sustaining the motion at the close of all the evidence, and cites the case of Libby, McNeill & Libby v. Cook, 222 Ill. 206. In that case, the court very clearly holds that there is but one rule to be applied to motions to instruct the jury, whether they are made at the close of the plaintiff’s evidence or at the close of all the evidence, and the rule is there repeated that in either case if there is no evidence or but a scintilla of evidence, tending to prove the material averments of the declaration, the jury should be directed to return a verdict for the defendant, but if there is in the record any evidence from which if it stood alone the jury could, without acting unreasonably in the eye of the law, find that all the material averments of the declaration have been proven, then the case should be submitted to the jury. The question then presented to the court by the motion at the close of the evidence was, whether there ivas any evidence in the case either offered by plaintiff or defendant, with all the legitimate and natural inferences to be drawn therefrom, which was sufficient to sustain a verdict for the plaintiff.

There is in our opinion no basis for the contention that the plaintiff had made out a prima facie case, or that a prima facie case was made out by the evidence in the case at the close of all the evidence, showing a breach of any duty cast upon the defendant by the law, unless it be based upon the doctrine of the cases known as the turntable or allurement cases.

The principal case cited by appellant on this point is the case of the City of Pekin v. McMahon, 154 Ill. 141. The court in its opinion in that case, at page 149, says:

“In many, if not all of.the foregoing turntable cases, stress is laid upon the facts that the turntable was in a public or open and frequented place, that it was dangerous and left unfastened, and when in motion was attractive to children by reason of their love of motion by other means than their own locomotion, and that the servants of the railway companies knew, or had reason to believe, that it was attractive to children, and that children were in the habit of playing on or about it. The doctrine of the cases is that the child cannot be regarded as a voluntary trespasser, because he is induced to go upon the turntable by the defendant’s own conduct.”

The above, we think is a comprehensive statement of the doctrine, and we are aware of no cases extending" the rule as announced in the above case. There is no disposition or tendency, so far as we have been able to study the turntable and other cases, where the injuries complained of were caused by agencies of a different character, to extend the doctrine of the turntable or allurement cases.

In some of the states the doctrine of the turntable cases seems to have been repudiated. Northwestern El. R. R. Co. v. O’Malley, 107 Ill. App. 599.

In our opinion a consideration of the evidence in this case demonstrates that the proof in this record is not broad enough to bring the ease within the turntable or allurement rule. An essential .element of the doctrine is that the child of tender years cannot be regarded as a trespasser on the premises of the defendant, because he was attracted to its premises by the dangerous thing that caused the injury. In the case at bar, the evidence does not show that appellant was attracted onto the premises by reason of the presence of the sheave and cable; on the other hand, the evidence is clear that the attraction to the appellant and other children which induced them to enter upon the premises was the sand pile on which they played. This sand pile was not dangerous; and appellant, according to the evidence, was not injured by any machinery at the sand pile. There is no evidence in the record that the presence of the sheave and cable was the attraction which brought the appellant or the other children of the school into the building. They could not move or play with the cable and sheave. It was clearly the sand pile. This did not cause the injury complained of.

We think, therefore, under the application of the law in Seymour v. Union Stockyards and Transit Co., 224 Ill. 579, the evidence fails to show that the appellant was attracted into the premises by the dangerous sheave and cable which injured him. In the Seymour case, large quantities of clay had been brought to the place where the accident happened, on fiat ears, and unloaded and left on the north side of the defendant’s railroad tracks. The clay formed an uneven and a continuous bank along the tracks from Wallace street to Halsted street. Large numbers of children had been accustomed to play on the vacant lots near by, and when the clay was left along the tracks,, they were accustomed to play upon the clay bank, moulding clay with their hands, and making it into pies or marbles a.nd the like, and baking it on fire. The plaintiff Seymour was on this clay bank playing when a train filled with cattle and hogs passed. He abandoned his play and undertook to throw clay at the passing train and to punch the cattle and hogs with a stick. In doing so he slipped down the side of the slope of the clay to and upon the track and under the wheels'of a passing car and was seriously injured. This court held that there could be no recovery, and the holding was affirmed by the Supreme Court. We think the case is in all respects similar to the case at bar, and that the same rule must be applied to the case as was applied in the Seymour case.

We do not think therefore that the doctrine of the turntable or the allurement cases applies in this case.

We do not think the evidence proves any negligence on the part of the defendant appellee in conducting the work which he was engaged upon at the time appellant was injured. The evidence on both sides of the case shows clearly that it was impracticable to barricade or close the doors of the building, and still continue the work of conveying into the building the materials necessary. Nor can we see that it was practicable to barricade the cable and sheave in such manner as to prevent the plaintiff from coming in contact with it while material was being elevated to the upper stories of the building by means of the elevator run by the cable and sheave." We do not think it was the duty of the defendant to provide a watchman who should stand at the cable and sheave to prevent or keep children from coming in contact with it. Emerson v. Peteler, 35 Minn. 481; Union Stock Yards & Transit Co. v. Butler, 92 Ill. App, 166; C. B. & Q. R. R. Co. v. Stumps, 55 Ill. 367.

Appellant also urges error in the refusal of the trial court to permit appellant to show that there was no playground- for the school children except on the streets and sidewalks around the schoolhouse and new buildings, by refusing to permit appellant to show the surroundings of Albany street and Van Burén street. We do not think the court erred in excluding the evidence sought to be introduced. It was immaterial to the issues in this case. The substance of it had already appeared in the evidence offered by the plaintiff.

We find no error in the record, and the judgment is therefore affirmed.

Affirmed.


text:
    A. J. Lindemann & Hoverson Company, Appellant, v. Advance Stove Works et al., Appellees.
    Gen. No. 16,908.
    1. Pleading—what admitted by demurrer in chancery. A demurrer to a biU of complaint admits all allegations well pleaded. Such a demurrer, however, does not admit conclusions or inferences drawn by the pleader, nor any construction put by the complainant upon the contracts referred to in the bill, but not set forth.
    2. Partnership—what voluntary association not. A voluntary unincorporated association organized for the purposes of regulating certain affairs of its individual members connected with and related to their individual enterprises, as affected by the demands of the labor unions formed by its employes, is not a partnership, even though incidentally it may accumulate property. Held, further, that the association in question in this case was not one terminable at the will Of any of its members.
    3. Restraint op trade—what not combination in. Held, that the unincorporated voluntary association referred to in the preceding paragraph of syllabus not having,as one of its objects a regulation of prices, was not in restraint of trade, and further that its effect was not to restrict the right of a laborer to dispose of Ms labor.
    Appeal from the Superior Court of Cook county; the Hon. George A. Dtjpuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed May 21, 1912.
    Statement by the Court: Appellant filed its amended bill of complaint in the Superior Court to which certain defendants named in the bill demurred. The court sustained the demurrers. Appellant elected to abide by its amended bill, and the court dismissed the bill for want of equity, and rendered a decree against appellant for costs.
    The amended bill is very voluminous, but it is necessary to state somewhat fully its averments. It alleges that complainant A. J. Lindemann & Hoverson Company, a corporation engaged in the manufacture of stoves, on April 8, 1904, became a member of an unincorporated association of manufacturers of stoves, known as Stove Founders’ National Defense Association, the object of which association, as complainant was then advised, being to unite the stove manufacturers of the United States for their mutual protection for resistance against unjust demands of, their workmen or others.
    To become a member of this ¿ssociation it was necessary to make certain payments by way of assessment, and certain contributions to what was known as. an emergency fund, which emergency fund was to be used in case of certain exigencies. The amount chargeable against complainant as its proportionate contribution to the emergency fund, based upon the by-laws of the Association, was $2,855, of which amount the complainant paid in cash $1,455, and gave its thirty day demand note for the balance of $1,400. The note was dated April 8, 1904, and was payable to the order of Stove Founders’ National Defense Association. Complainant on the same day signed the following agreement or members’ obligation:
    “We, the undersigned, being stove manufacturers, do hereby covenant and agree with each other, and every person composing the membership of the Stove Founders National Defense Association, as follows:

      First: Any unjust demands made upon any member of said Association by any of their workmen, or others, shall be resisted by the united action of all members in protecting said member upon whom such unjust demand shall be made.

      Second: We bind ourselves to obey the constitution, by-laws, and lawful regulations of said Association.”
    The bill avers that no emergency has arisen requiring any part of the emergency fund to be used by the Association, and complainant avers that there was no consideration for the note.
    It is further set forth in the bill that at the time complainant became a member of the association there were certain provisions of the constitution and bylaws in existence which complainant does not set out in its bill verbatim, but states the same in the following manner:
    That the constitution provided and still provides as follows: “That the objects of said association are to unite the Stove manufacturers of the United States for their mutual protection for resistance against any unjust demands of their workmen; that the members of said association skal] be corporations, persons or firms engaged as principals in and operating a foundry for the manufacture of cooking or heating stoves, ranges or furnaces; that the members of said association shall make and execute in writing an agreement or obligation in words and manner following,” setting up the agreement above set forth. The bill then sets out the by-laws of the Association, which are not material to the questions presented on this appeal.
    The bill alleges that the defense association has from time to time entered into conference agreements with Iron Holders Union of North America, with Stove Mounters and Steel Range Workers International Union of North America, and with the Metal Polishers, Buffers, Platers, Brass Holders, and Brass Workers International Union of North America, in and by which agreements the association has established for each year the rate of wages for the respective classes of employes aforesaid and for all of said employes employed by the members of said association and that said rate is established the same for all so employed by all of said members without any change during any current year, regardless of their skill and ability as molders, stove mounters, etc., and that by doing this the association has stifled the competition between the various members of the various trades unions located in various parts of the United States as to the price of their labor, and that thereby the said association has ^ enhanced the cost of the articles produced and manufactured and sold by members of the association, and that by their action in this behalf the association increased wages and that wages are much higher than they would be but for the conference agreements, and that in consequence of conference agreements, complainant has had to pay higher wages to its employes and has been deprived of its free will in paying to its employes wages that would otherwise be agreed upon, and that it has been obliged to pay a higher rate than it would have to pay otherwise.
    The bill does not set out any conference agreement, but states that the conference agreements established and fixed the wages, and that by a conference agreement entered into about the 29th and 30th days of March, 1905, between said association and the Iron Molders Union, it was agreed that the general rate of apprentices to journeymen molders should be one to five and one to each shop, and that when the members desired more or required more for the needs of the business the question should be referred to the president of the association and the president of the union for investigation and relief; and the bill alleges that the association has enforced the agreement with relation to the ratio of apprentices and has prevented complainant from employing more than one apprentice to every five journeymen molders, and rendered it impossible for complainant to teach as many apprentices as it might see fit to become expert molders; and that this is in restraint of trade and has a tendency to prevent competition in labor.
    The bill further alleges that the complainant believed that the objects and aims of the association were legal and legitimate until shortly before the time that it tendered its resignation as a member, when upon consultation with its attorneys it was advised that the objects and aims of the association had become illegal since complainant had become a member; and the complainant avers that the association had departed from its chief object, the resistance to unjust demands, and had entered into agreements annually with workmen through which instead of resisting unjust demands of workmen those unjust demands were sanctioned and approved, and that through the conference agreements between the association and the respective unions, a gigantic trust combination has been formed, in violation of the laws regulating competition and restraint of trade, and the complainant avers that on November 27, 1908, being then in good standing with reference to the payments of its dues and assessments, and there being no strikes or settlement of difficulties pending, complainant tendered its resignation and demanded that the association forward the $1,400 note to it together with the sum of $1,455 cash that it had contributed to the emergency fund, which fund complainant alleges was intact, and had not been used for any purpose; and complainant alleges that its resignation was not accepted, and it further alleges that prior to the filing of the bill it from time to time protested to the officers and representatives of the association that the association had become illegal and was in restraint of trade, and an illegal combination with the object of stifling competition; but notwithstanding such protest the association still continues to enter into conference agreements with said labor unions.
    The complainant further alleges that on April 7, 1909, Lewis Moore, who was treasurer of the association, and who is one of the defendants in this case, commenced suit in the Superior Court of Cook County, based upon the $1,400 promissory note aforesaid, which suit complainant alleges was caused to be filed by the said association, and complainant attaches to the bill of complaint as an exhibit the declaration in said suit, and further shows that on the 12th day of May, 1909, it filed certain pleas which it attaches and makes a part of the amended bill. Said pleas were six in number, as follows:

      First. The general issue.

      Second. That the note was without consideration and void, because given for unlawful and illegal purposes, having been given to further the purposes of an unlawful and illegal combination and conspiracy to control and regulate commerce and trade.

      Third. That neither the appellant nor the president thereof was authorized to execute such a note because the same was given in furtherance of an illegal combination and conspiracy to fix and control prices.

      Fourth. That the note never was legally assigned or endorsed to Lewis Moore.

      Fifth. That the note was given in furtherance of unlawful and illegal combinations and conspiracies to stifle and prevent competition, and was without consideration and void. That the plaintiff, Lewis Moore, had notice at the time he received the note that it had been given for unlawful and illegal purposes.

      Sixth. That the note was given for the purpose of contribution to an emergency fund to carry out illegal purposes in restraint of trade and commerce, and that the note was given for the purpose of being used in furtherance of unlawful and illegal conspiracies to that effect, of which the said Lewis Moore, plaintiff, had notice.
    The bill further alleges that Moore had been a long time treasurer of the association, and there was no consideration for the assignment and transfer of the note to him, and that the suit on the note was wholly for the use and benefit of the association, and that Mo.ore is not the owner of the note; that the endorsement on the note is as follows: “Stove Founders’ National Defense Assn., Lewis Moore, Treas.,” and the complainant alleges that neither Moore nor the association is entitled to possession of the note and that said suit should be dismissed.
    Complainant alleges that the expenses of conducting the affairs of the association have been shared by the members and paid pursuant to assessment on the members; that $5,000 a year is paid to the secretary and $10 a day to the president and to certain members of certain committees when they attend upon the affairs of the association, and also certain traveling expenses in connection with the settlement of the difficulties are paid in the same manner, and all the necessary expenses of the executive committee and officers in hearing appeals, and also the rental of offices, all of which expenses this complainant alleges amount to a large sum of money. And the bill alleges further that no definite time has been fixed by the constitution and by-laws for the duration of the association, and that if can be dissolved at the will of any member, and that complainant elects to dissolve the association and have its affairs wound up; and alleges that the association was never incorporated and none of the defendants, except nineteen in number, named, reside in the state of Illinois.
    The bill avers that complainant believes that there is about the sum of $100,000 in said emergency fund, to which it is entitled to its proportionate share, which it is informed and believes would amount to at least $3,800, but that as the amount obtained by the association from each member depends upon the number of employes at work for such member, it is impossible to determine accurately how much the association has received from all sources and what sum it would now have in the emergency fund without an accounting. And complainant alleges that a large part of the emergency fund is in the possession of the Joliet National Bank and the Merchants’ Loan and Trust Company, and that it believes that some of it is in the possession of Lewis Moore, treasurer.
    Complainant prays that the association may be declared illegal and void and be dissolved, and for an accounting, sale of assets, distribution of proceeds, payment to cpmplainant of what may be due it; that if the association should be dissolved complainant’s relationship may be declared severed; that the different banks and the executive committee and officers be restrained from transferring any part or disposing of any of the moneys or securities of the association until further order of the court; thaf the $1,400 note be declared null and void and cancelled, and that Lewis Moore he restrained from proceeding with his suit thereon, and that all of the defendants be restrained from paying out or doing anything with any of the money in the emergency fund, and that a receiver may be appointed for the association.
    The bill is not sworn to and no injunction or order of any kind was issued pursuant to any prayer thereof.
    The original bill alleged, regarding the return of a portion of the emergency fund, that a member retiring from business and resigning, etc., should have returned to him a proportion of the fund. This averment is not incorporated in the amendment to the bill.
    Arnd & Arnd, for appellant.
    McCullough & McCullough and Albert C. Wenbau, for appellees.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Many points are made in the briefs and it will be impossible to discuss all of them or even any of them at very greath length. We shall content ourselves with a brief discussion of the main questions involved.

For the purposes of this appeal all the allegations of the bill as amended that are well pleaded must be considered to be true. On the other hand, the demurrer admits none of the conclusions or inferences drawn by the pleader, nor any construction put by the complainant upon contracts referred to in the bill, but not set forth.

It is contended that the Stove Founders’ National Defense Association is a voluntary unincorporated association organized for commercial purposes, and for pecuniary profit and gain to its members, and that the members of the association as between themselves are partners, and the rights of those members are governed by the laws of partnership.

In our opinion the bill does not show the association to be one for the purpose of gain and profit, or that it is a co-partnership as between the members themselves. No profits attach to the business or work of the association, and none are contemplated by the constitution and by-laws. Its sole function and purpose is to regulate certain affairs of its individual members connected with and related to their individual business enterprises as affected by the demands of the labor unions formed, by their employes, and its principal purpose seems to have its source in the advisability of united action in opposition to the united action of the labor union.

Story in his work on Partnership, 5th Ed., Sec. 2, defines the contract of partnership as: “A voluntary contract between two or more competent persons to place their money or effects, labor or skill or some or all of them in lawful commerce or business, with the understanding. that there shall be a communion of profits thereof between them.”

In 1st Collyer on Partnership, 6th Ed., Sec. 2, a partnership is defined to be: “A voluntary contract between two or more persons for joining together their money, goods, labor and skill or one or all of them, under, an understanding that there shall be a communion of profits between them, and for the purpose of carrying on a legal trade, business, or adventure. ’ ’

To the same effect is Lindley on Partnership, 2d American Edition, page 1.

If a voluntary association does not contemplate trade and profit it is not a partnership. If it accumulates property incidentally in the promotion of .its real purpose that does not change the character of the association.

“Voluntary associations not having any well-defined legal status have under the pressure of necessity been-treated by learned jurists as partnerships, and it has been held that in their relations to third persons their members are to be regarded as partners; but since the death of a member does not of necessity work a dissolution of the association, and there exists no authority in a single associate to bind the others, whatever may be their relation and liability to third persons, they are not partners inter sese.” (4th Cyc. 301, Note.)

To the same effect are the cases of Burt v. Lathrop, 52 Mich. 106; Hossack v. Development Association, 244 Ill. 274.

It is further urged that the defense association is one at will, and its life is terminable at the will of any of its members. This contention, in qur qpinion, is unsqund. Hqssack v. Development Association supra. 25 Am. & Eng. Ency. of Law, 2d Ed, page 1141.

It is next urged that the complainant is now entitled to a surrender of the note which it gave on account of the emergency fund of the defense association, and also to its proper proportion of the emergency fund, and that it has no adequate remedy at law to obtain a cancellation of the note.

The by-laws of the association as set up in the original bill, gave a member of the association, and therefore appellant, a right when it resigned and retired from business to a proportion of the emergency fund, but it does not give to the appellant, who does not aver that he has retired from business, a right to resign and at the same time claim a proportionate return of the emergency fund when it has not retired from business.

The original bill is still a part of the complainant’s bill, although the amendment does not include all of its provisions. The amended bill is not a substitute for the original bill. Lewis v. Lanphere, 79 Ill. 187.

We do not think that the defense association is a co-partnership among corporations, nor do we think it is shown by the bill to be inimical to fair trade and commerce. The association is in no sense concerned with commerce and trade. It can only be considered as having any relation to commerce and trade because it seeks to deal in a collective manner with the demands of labor unions. Its objects and purposes are not to regulate prices, although prices may be as a mere incident to its -objects and purposes directly affected. The constitution and by-laws as set forth in the amended bill show the organization to be ah arbitration and conciliation association. No article, section or by-law set forth shows that it fixes prices or any of the elements of prices, or that it in any manner restricts production. We do not think it restricts the right of a laborer to dispose of his labor. The averments o.f the bill which seek to raise these questions, and upon which this contention is made, -are mere conclusions of the pleader. ■ The bill does not aver the terms of any of the conference agreements. It merely states that these agreements were entered into annually, but does not' give the terms of the agreements. The pleader then concludes that the effect of these agreements was to restrain and restrict the right of laborers to dispose of their labor, and" that they tended to stifle competition and to increase the rate of wages and thereby increased the cost of production. But upon an examination of the bill we are unable to say whether there is any foundation for the inferences and conclusions stated in the bill, for the reason that no facts are averred and no agreements are set out for the inspection of the court. It would be futile to the last degree for the court to discuss propositions based upon such averments of the bill.

We find no errors in the decree, and it is affirmed.

Affirmed.


text:
    Walter B. Griffen, Defendant in Error, v. Albert Cohn, Plaintiff in Error.
    Gen. No. 16,883.

      Trial—when remarles of counsel will not reverse-. Improper remarks -will npt reverse where g,n objection thereto was sustained, and no motion was made to strike the remarks from the record, and no instruction was asked directing the jury not to consider them.
    Error to the Municipal Court of Chicago; the Hon. Mancha Brtjggemeyer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 191J3.
    Affirmed.
    Opinion filed May 21, 1912.
    S. L. and Fred Lowenthal, for plaintiff in error.
    Gregory, Poppenhusen & McNar, for defendant in error; Edward R. Johhston, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

We are urged to reverse the judgment entered in an action in the Municipal Court of Chicago instituted by Walter B. Griff en, defendant in error, hereinafter called plaintiff, against Albert Cohn, plaintiff in error, hereinafter called defendant, o.n the grounds that the verdict is contrary to the evidence; (2) the trial court gave an erroneous instruction, and (3) that the plaintiff’s attorney made improper remarks to the jury.

•The plaintiff is an architect, and by the action sought a recovery for architect’s fees for services rendered. The testimony offered by the plaintiff consisted of his own testimony as to the employment by the defendant and the services rendered and the value thereof, and that of two architects in the City of .Chicago as to the reasonable, usual and customary fees of architects in the City of Chicago. The defendant testified denying in some respects the testimony of the plaintiff. Upon an examination of the evidence we cannot say that the verdict is contrary to the evidence.

We find no valid objection to the instruction complained of. We think it fairly submitted the case to the jury.

Counsel for the plaintiff in the course of his argument to the jury said in substance that architects give their clients their best estimate as to what the building will cost to produce according to the plans, and that is what G-riffen did. He earnestly sought to produce bids. I offered them in evidence and counsel objected to them, and the court sustained the objection, and they did not go in. It is not my fault. I did all in my power.”

The court sustained the defendant’s objection to the remarks. No motion was made to strike the remarks from the record, and no instruction was asked by the defendant directing the jury not to consider them as they were improperly made. We cannot reverse the judgment on that ground.

The judgment is not erroneous and is affirmed.

Affirmed.