text:
    Gipps Brewing Company, Appellant, v. City of Peoria, Appellee.
    Gen. No. 6,386.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed May 9, 1917.
    Statement of the Case.
    Action by the Gipps Brewing Company, plaintiff, against the City of Peoria, defendant, to recover damages for cutting down the grade of two intersecting streets on which plaintiff’s property abutted. Prom a judgment for defendant, plaintiff appeals.
    George J. Jochem, for appellant.
    R. H. Radley, for appellee.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal corporations, § 440 —what is measure of damages for injury to property by public improvement. Where property has been damaged, though not taken, by a public improvement, and the damage is of such a character that a recovery may be had, the measure of damages is the difference in value; of the property before the improvement was constructed and the value after the improvement was completed.

2. Municipal corporations, § 425*—when property owner not entitled to damages for readjustment of building to conform to grade. In an action against a city for damages to property caused by the readjustment of plaintiff’s building to conform to the grade which had been legally established by the city prior to the time the building had been placed upon the premises, held that plaintiff was not entitled to damages.

3. Municipal corporations, § 425*—when city making street improvements is liable for damage to property of abutting owner. A city in making street improvements, such as lowering the grade of a street, is liable for damages which may result to the owner of property abutting on the street.

4. Municipal corporations, § 425*—when city is not liable for damage sustained by abutting owner cutting down street to conform to grade. A city is not liable for damage which the owner of property abutting on street corners may have sustained from his own voluntary act of cutting down the level of one of the streéts for a sidewalk which he had constructed thereon, so as to have it conform with a sidewalk built by the city on the other street.

5. Municipal corporations, § 882*—what is duty of abutting property owner as to construction of improvements on land to conform to grade. The owner of a lot abutting upon a street is required to take notice of the permanent grade which has been fixed by a city ordinance and to make permanent improvements which he places upon a lot to conform to the grade established.

6. Municipal corporations, § 450*—when evidence sufficient to show that market value of premises is not diminished by street improvement. In an action against a city for damages for injury to a corner lot sustained by the cutting down by the city of the surface level of one of the streets to build a permanent sidewalk, and by the cutting down of the level of the other street by the plaintiff itself, evidence held sufficient to show that the market value of the premises was not diminished by the improvement made by the city, and that the plaintiff was not entitled to recover damages for its own act in cutting down the level of the other street.


source: Caselaw Access Project

author: Mr. Presiding Justice Niehaus

license: Public Domain

text:
    Samuel H. Tinsman, Appellee, v. Independent Harvester Company, Appellant.
    Gen. No. 6,390.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Patents, § 19

      —when infringement of, defense to action on note for purchase price. In an action on a note where the defense was failure of consideration because certain patented inventions of the plaintiff which constituted the consideration turned out to be infringements of patents of others, held that under the express terms of the contract the matter of infringment of prior patents could not be made a legal basis of defense unless such infringement had been adjudicated by the judgment of a court.
    Appeal from the Circuit Court of Kendall county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed May 17, 1917.
    Statement of the Case.
    Action by Samuel H. Tinsman, plaintiff, against the Independent Harvester Company, defendant, to recover on a promissory note given by defendant to plaintiff for the purchase of certain patent rights. From a judgment for plaintiff for. $1,315, defendant appeals.
    Aldrich & Worcester, C. S. Burton, F. W. Parker and F. G. Hanchett, for appellant.
    Cornelius Reardon, for appellee; C. C. Bulkley, of counsel.

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

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

2. Patents, § 19*—when evidence insufficient to establish defense in action for purchase price. In an action on a note where the defense was failure of consideration because certain patented inventions of the plaintiff turned out to be infringements of the patents of others, held that even if such defense was legally effective, the defendant failed to establish the same by a preponderance of the evidence.

3. Patents, § 14*—when purchaser holding patents may not complain of failure of consideration of note for purchase price. In an action on a note where the defense was failure of consideration because certain patented inventions of the plaintiff which constituted the consideration turned out to be infringements of patents of other parties, contracts between the parties construed, and held that the defendant, who had acquired plaintiff’s patent rights and had profited by the ownership thereof, and was still in their possession and control, could not rightfully defend against the consideration to be paid therefor on the ground that some one claimed an infringement, even if the evidence disclosed that such a claim had been made.

4. Evidence, § 475*—what does not constitute preponderance. In an action on a note where the defense was failure of consideration because certain patented inventions of the plaintiff turned out to be infringements of patents of others, where one expert for the defendant testified that most of the plaintiff’s devices were substantially covered by prior "patents to others, and one expert produced by the plaintiff testified to the contrary, held that the defendant failed to establish its defense by a preponderance of the evidence.

5. Appeal and ebbob, § 451 —when objection as to admissibility of secondary evidence may not be raised. In an action on a note where a copy was introduced in evidence instead of the original, without objection on the ground of its being a copy, held that such objection could not be raised for the first time on appeal


author: Per Curiam.

text:
    City of Moline, Appellant, v. Gustaf Johnson, Appellee.
    Gen. No. 6,466.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Pleading, § 476

      —when declaration good after verdict. In an action against a city for personal injuries sustained in a public street, where plaintiff attempted to comply with the statute by averring the giving of notice to the city in the language of the act, and no bill of exceptions was incorporated in the record, held that, in the absence of demurrer, motion for new trial, or motion in arrest, and of anything on the defendant’s part to call the attention of the trial court to the question, the declaration was good after verdict.
    2. Municipal cokpobations, § 1233*—when giving of statutory notice of injuries must he alleged. The plaintiff, in an action against a city for personal injuries, has no right of recovery unless he gives the statutory notice and avers and proves that fact.
    Appeal from the City Court of Moline; the Hon. G. O. Dietz, Judge,- presiding. Heard in this court at the April term, 1917,
    Affirmed.
    Opinion filed May 17, 1917.
    Statement of the Case.
    Action by the City of Moline, plaintiff, against Gustaf Johnson, defendant, to recover for damages for personal injuries sustained by reason of a defective street of defendant’s. From a judgment for plaintiff for $4,000, defendant appeals.
    James M. Johnston, for appellant.
    Peter R. Ingelson and Dietz & Sinnett, for appellee.

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

   Per Curiam.


author: Mr. Presiding Justice Barnes

text:
    City of Chicago, Defendant in Error, v. Edward Erickson, Plaintiff in Error.
    Gen. No. 22,245.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Peindivillb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed April 10, 1917.
    Statement of the Case.
    Prosecution by the City of Chicago, plaintiff, against Edward Erickson, defendant, for making a disturbance and committing an assault in violation of a city ordinance. From a judgment of guilty and imposing a fine of fifty dollars, defendant brings error.
    James D. Power, for plaintiff in error.
    Samuel A. Ettelson and Harry B. Miller for defendant in error; Daniel Webster, of counsel.

      Abstract of the Decision.
    Municipal corporations, § 864

      —when evidence insufficient to sustain judgment for violation of ordinance. On a prosecution for violation of a city ordinance, in which the defendant was fined for making a disturbance and committing an assault, where there was no testimony to support the charge except that of the complaining witness, a woman, and she was flatly contradicted by the defendant, and the physical circumstances seemingly favored the defendant, and nothing in the record indicated that the parties were not of equal credibility, and where several business men of prominence had testified in support of the character of the defendant, held that the city had failed to establish the charges by a preponderance of the evidence.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Sydney Walker, Defendant in Error, v. Charles Hilland, Plaintiff in Error.
    Gen. No. 22,260.
    (Not to he reported in full.)
    Error to the Municipal Court.of Chicago; the Hon, Dennis W. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed on remittitur.
    Opinion filed April 10, 1917.
    Statement of the Case.
    Action by Sydney Walker, plaintiff, against Charles Hilland, defendant, to recover damages for injury to plaintiff’s automobile due to a collision with defendant’s, automobile. From a judgment for plaintiff for $298.31, defendant brings error.

      Abstract of the Decision.
    1. Automobiles and garages, § 3*—when evidence sufficient to sustain judgment for plaintiff in action for damages for collision between automobiles. In an action to recover damages for injuries to the plaintiff’s automobile sustained in a collision with an automobile of the defendant, where such collision occurred near a street intersection, and the defendant reached the intersection first and had the right of way in the usual course of driving, and the plaintiff claimed that he was forced to the curb by the defendant’s wrongfully talcing a short cut, held that under the conflicting evidence the judgment in favor of plaintiff should not be disturbed.
    2. Appeal and" error, § 1659

      —when judgment sustained upon remittitur. Where in an action for damages for injuries to an automobile the testimony as to damages appeared unsatisfactory, but it also appeared that the court could ascertain from competent evidence what was the reasonable cost of necessary repairs, held that upon remittitur of the amount of certain items, the judgment for plaintiff should be sustained.
    J. A. Bloomingston, for plaintiff in error.
    Charles B. Obermeyer, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion . of the court.


text:
    Cora B. Hirtzel, Defendant in Error, v. Annie Ball, Plaintiff in Error.
    Gen. No. 22,286.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed on remittitur.
    Opinion filed April 10, 1917.
    Rehearing' denied May 10, 1917.
    Statement of the Case.
    Action by Cora B. Hirtzel, plaintiff, against Annie Ball, defendant, to recover for the value of services rendered as an attorney. From a judgment for plaintiff for $600, defendant brings error.
    Abstract of the Decision.
    1. Attorney and client, § 126

      —when agreement to pay usual fee implied. In the absence of an express agreement as to the amount of compensation to he paid an attorney for his services, there is an implied contract to pay the usual and customary fee.
    2. Attorney and client, § 127*—when judgment for services excessive. In an action for attorney’s fees for services, rendered mostly in securing an abandonment of proceedings before the Board of Local Improvements under a resolution to pave an alley, where the plaintiff sued for $1,000 and the verdict was for $600, and two experienced attorneys testified that such services were worth from $800 to $1,000, and no evidence to the contrary was introduced, held that the judgment should be affirmed on a remittitur of $100.
    3. Attorney and client, § 123*—what is effect of testimony of experts as to value of services of attorney. A court is not hound by the testimony of experts as to the value of services of an attorney, and should take into consideration its own knowledge of the value of such services
    Heffron, Perkinson & Berlet, for plaintiff in error.
    Felsenthal & Wilson, for defendant in error; David Levinson, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Alexander Lips et al., Plaintiffs in Error, v. Anton J. Cermak, Bailiff, and Anna L. McCoid, Defendants in Error.
    Gen. No. 22,289.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Execution—when proceedings for trial of right of property dismissed for misjoinder of plaintiffs. In proceedings for trial of right of property levied on under an execution, where it was claimed that the automobile in question was taken in exchange by one of the plaintiffs and that it was left with the other plaintiff to sell under an agreement that he was to have all he realized from a sale above a certain amount, held that the mere contract to sell did not give tlie plaintiff having such contract the standing of a claimant, and that the motion of the defendant to dismiss for misjoinder of plaintiffs was properly granted.

      Error to the Municipal Court of Chicago; the Hon. D. H. Wamsley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed April 10, 1917.
    Statement of the Case.
    Proceedings for trial of the right of property in an automobile, levied upon under an execution in favor of defendant McCoid, by Alexander Lips and Benjamin F. Nysewander, Jr., by J. L. Nysewander, his next friend, plaintiffs, against Anton J. Cermak, bailiff of the Municipal Court, and Anna L. McCoid, defendants. From a judgment dismissing the suit for misjoinder of parties plaintiff, plaintiffs bring error.
    Harry H. Felgar, for plaintiffs in error.
    Arthur B. McCoid and Nels H. Olsen, for defendants in error; Otto C. Rentner, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Execution, § 122 —what is purpose of proceedings for trial of right of property. In proceedings for trial of right of property levied on under an execution, the purpose is to determine the right to the property as against the levy.

3. Execution—when proceedings for trial of right of property may not he maintained hy claimants jointly. In proceedings for trial of right of property, where one person claimed the title to the automobile in question and another claimed merely an interest in the proceeds of a sale of the automobile, held that the property could not have been awarded to both claimants, and that therefore the action could not he maintained by them jointly.


text:
    Theofila Galewski, Appellee, v. Clover Leaf Casualty Company, Appellant.
    Gen. No. 22,309.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed April 10, 1917.
    Rehearing denied April 24, 1917.
    Statement of the Case.
    Action by Theofila Galewski, plaintiff, against the Clover Leaf Casualty Company, a corporation, defendant, to recover on an accident policy for the death of the husband of plaintiff. From a judgment for plaintiff, defendant appeals.
    Bradley, Harper & Eheim, for appellant; Samuel A. Harper and Edward J. Farrell, of counsel.
    S. P. Douthart and Fred C. Smith, for appellee; Guerin & Barrett, of counsel.

      Abstract of the Decision.
    ■ 1. Appeal and ebbob, § 800*—what must be contained in bill of exceptions. Points urged for a reversal, relating to the sufficiency of the evidence and predicated on a motion for new trial as recited in the clerk’s transcript, cannot, be considered in the absence of such motion from the bill of exceptions.
    2. Appeal and ebbob, § 1512

      —when improper remarks of court as to comparative weight of negative and positive evidence are reversible error. In an action upon an accident insurance policy to recover for death, where the plaintiff claimed that death resulted from an- infection in the internal ear, which started from the blood caused by a wound sustained in an accident, and the defendant claimed that such an infection could not have been caused by an external injury like the one in question, and the question of liability hinged on whether the trouble antedated the accident, and plaintiff’s evidence on that subject was mainly of a negative character, to the effect that the witnesses never knew of such a trouble, and the defendant offered direct and positive evidence that the insured had chronic internal ear trouble prior to the accident which developed into a septic condition that caused his death, held that remarks of the trial judge calculated to convey to the minds of the jury the impression that negative evidence was as strong and conclusive as positive evidence to the contrary constituted reversible error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Henry Marble Company, Appellee, v. William T. Church, Trustee, Appellant.
    Gen. No. 22,321.
    1. Mechanics’ liens, § 57

      —who is not contractor. In mechanic’s lien proceedings, where the complainant sought to enforce a lien as contractor for the work of replacing certain marble tiling in a building of the defendant, and it appeared that a party wall existed between such building and the one adjoining, and that the holder of a 99-year leasehold of such adjoining premises made a contract with a construction company for the demolishing of the building adjoining that of the defendant, and for the foundation and masonry work of a new one, such contract providing for excavations under the party wall, the protection of the defendant’s building and the furnishing and replacing of materials which might become injured in the doing of the work, and such construction company employed complainant to do such replacing work, held that complainant did not sustain the relation of contractor to the defendant, under the terms of section 1 of the Mechanics’ Liens Act of 1903 (Hurd’s Rev. St. 1911, p. 1477, J. &' A. If 7139), in force at the time in question.
    2. Mechanics’ liens, § 59*—who is subcontractor. In mechanic’s lien proceedings, where the complainant sought to enforce a lien as contractor for the work of replacing certain marble tiling in a building of the defendant, where it appeared that a party wall existed between such building and the one adjoining, and that the holder of a 99-year leasehold of such adjoining premises made a contract with a construction company for the demolishing of the building adjoining that of the defendant, and for the foundation and masonry work of a new building, such contract providing for excavation under the party wall, the protection of the defendant’s building and the furnishing and replacing of materials which might become injured in the doing of the work, and the construction company made a contract with complainant to do such replacing work, held that the complainant was not a contractor under section 1 of the Mechanics’ Liens Act of 1903 (J. & A. If 7139), but was a subcontractor as defined in section 21 of said Act (J. & A. If 7159), and that, as no attempt was made by averment or proof to bring complainant within the provisions of said section 21, it was needless to discuss whether he had any right to a lien a,s a subcontractor.

      3. Mechanics’ liens, § 61

      —what is effect of waiver of lien hy contractor. A mechanic’s lien cannot be enforced by a subcontractor where the contractor has waived his lien.
    Appeal from the Superior Court of Cook county; the Hon. Charles' M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed with directions.
    Opinion filed April 10, 1917.
    Church, Shepard & Day, for appellant; Howard W. Lewis, of counsel.
    Otto W. Jurgens, for appellee; George H. Mason, of counsel.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

In 1912, and up to the date of this proceeding to enforce a mechanic’s lien, appellant owned the fee to a certain Lot 2, and one Mayer a 99-year leasehold to the adjoining Lot 1. Both lots were improved with buildings. On their division line was a party wall, the agreement for which was recognized as in full force and effect. Mayer, desiring to demolish the building on his lot and to erect another in its place and having in mind his duty under the party-wall agreement (as found by the master) to support said party wall and repair any damage necessarily occasioned to appellant’s premises in carrying out his plans of construction, entered into a contract with the Falkenau Construction Company for the foundation and masonry work of his building, which provided for excavations below the party wall, and that the Falkenau Company should protect appellant’s building from all damages and injury during the erection of Mayer’s building and should “furnish and replace materials, etc., which in any way might become injured or damaged by reason of thé work under said building contract.” The specifications for Mayer’s new building provided for such restoration and constituted a part of Mayer’s contract with said Falkenau Company. By way of assurance Mayer showed appellant such provision in the specifications and verbally promised —what he was in duty bound to do under the party-wall agreement—to repair any damage that might be incurred to appellant’s building. The Falkenau Company proceeded with its work shortly after entering into said contract. To do necessary underpinning and shoring of the party wall the Falkenau Company’s workmen entered appellant’s building and took out the marble tile floor from part of its basement, which appellee, pursuant to its contract with the Falkenau Company, subsequently restored. For furnishing said work and material it seeks to enforce a mechanic’s lien on appellant’s lot and building.

Shortly after the completion of the foundation work, appellant demanded of Mayer the restoration of his premises to their original condition. Thereupon Mr. Falkenau of the Falkenau Company called up appellant by telephone and asked if he would consent to a change of material for the floor. Appellant refused his consent insisting on restoration of the basement floor to its original condition, and accordingly it was relaid with marble tiling by appellee pursuant to its contract with the Falkenau Company. For the cost of such work and the interest thereon a decree was entered for a mechanic’s lien on the land and improvements of appellant. In the view we take of the case it is immaterial whether appellant knew that the Falkenau Company had sublet that work to appellee.

The master in chancery to whom the case was referred for his conclusions of fact found the facts substantially as above stated, but they do not support appellee’s claim to a mechanic’s lien, which is predicated entirely on the theory that appellee was a contractor as defined! by section 1 of the Mechanics ’ Liens Act of 1903, then in force, which reads as follows:

“Any person who shall by any contract * * * with the owner of a lot * * * or with one whom such owner has authorized or knowingly permitted to contract for the improvement of or to improve the same, furnish material * * * for the purpose of repairing any * * * building * * * shall be known under this act as a contractor.”

(Hurd’s Rev. St. 1911, p. 1477, J. & A. fl 7139.)

The findings of the master and the record clearly ' show that the labor and material furnished by appellee were furnished pursuant to its contract with the Falkenau Construction Company. If under the terms of said section, therefore, any one held the relation of contractor to appellant as owner, it was either Mayer or the Falkenau. Company, the former on the theory that he furnished the material and work by contract with appellant as owner, and the latter on the theory that it furnished the material and work under a contract with Mayer for the improvement and that appellant as owner authorized or permitted Mayer to enter into such contract with the Falkenau Company. But under neither theory nor the above state of facts does appellee occupy the position of contractor as defined by the statute and therefore it could not enforce a lien as such, because appellant neither made a contract with the Falkenau Company nor authorized it to make one with appellee. On the contrary, it clearly appears that appellee was a subcontractor, as defined in section 21 of said Act, which reads:

“Every mechanic, workman or other’ person who shall furnish, any materials, * * * or furnish or perform services or labor for the contractor shall be known under this act as a subcontractor.”

(Hurd’s Rev. St. 1911, p. 1483, J. & A. 7159.)

No attempt was made by averment or proof to bring appellee within the provisions of the statute giving a lien to a subcontractor. It is needless, therefore, to discuss whether appellee had any right to a lien as such. The theory on which the bill was brought was not supported by the proof or findings of the master and court, and hence it should have been dismissed for want of equity.

But even if appellee were entitled to a lien as subcontractor, it cannot be enforced, in our opinion, because of provisions in the contract with the Falkenau Company whereby the latter, in effect, waived its right to any lien for work done on appellant’s premises. It expressly agreed to protect appellant’s building from all damages and replace materials in any way injured or damaged by reason of its work, the cost whereof was to be included in the price for Mayer’s building. If the contractor waives his lien the subcontractor cannot enforce one. Kelly v. Johnson, 251 Ill. 135.

And upon the said state of facts it is questionable in view of Mayer’s obligation under the party-wall ■agreement to make good the damages so sustained by appellant, and of the fact that the restoration was inade pursuant thereto and not pursuant to a new contract with appellant, whether even the Falkenau Construction Company could, as against appellant, be deemed a contractor under section 1 of said Act (J. & A. ff 7139).

The decree will be reversed with directions to dismiss the bill for Want of equity.

Reversed with directions.


text:
    Edward D. Mack, Appellee, v. General Accident Fire & life Assurance Corporation, Limited, Appellant.
    Gen. No. 22,331.
    (Not to he reported in full.)
    Abstract of the Decision.
    Instteance, § 435

      —when claim, should "be prorated because insured was engaged in more hazardous employment. In an action upon an accident insurance policy, where the rate of premium was based upon the occupation of the assured, and where liability was not disclaimed, but it was contended by the defendant that plaintiff was injured in doing an act in an occupation classified as more hazardous than that stated in his application, and that therefore his claim should be prorated, and where, although plaintiff was insured on the basis of being engaged as mill proprietor with office work, he was engaged in the more hazardous occupation of superintending work, prior to and at the time of being injured, held that the judgment in favor of plaintiff on the basis of his being engaged as a mill owner with office work should be reversed, and a judgment entered in the Appellate Court on the basis of his being erigaged in superintending work.

      Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmixi., Judge, presiding. Heard in the Branch Appellate Court at the. March term, 1916.
    Reversed and judgment here with findings of fact.
    Opinion filed April 10, 1917.
    Statement of the Case.
    Action by Edward D. Mack, plaintiff, against the General Accident Fire & Life Assurance Corporation, Limited, defendant, to recover on an accident insurance policy. From a judgment in favor of plaintiff for $810, defendant appeals.
    John A. Bloomingston, for appellant.
    M. D. Dolan, for appellee; Freeman K. Blake, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    American Trust & Savings Bank, Appellee, v. A. Bauer Distilling & Importing Company, Appellant.
    Gen. No. 22,340.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Corporations, § 387

      —when knowledge of officer received in unofficial capacity not imputed to corporation. In an action on a note by a banking corporation, which received the same in good faith for value, before maturity, where it was claimed that the note was ultra vires, and also that it was given for accommodation, and that such facts were known to the vice president of the bank, who was also a director of the corporation for whose benefit the. note was negotiated, held that the knowledge of such officer acquired, not while acting in his official capacity for the bank, but casually and through his individual relation to such other corporation, could not be charged to the plaintiff.

      Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed April 10, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by the American Trust & Savings Bank, a corporation, plaintiff, against A. Bauer Distilling & Importing Company, defendant, to recover on a promissory note. From a judgment for plaintiff, defendant appeals.
    James R. Ward, for appellant.
    McGilvray, Eames & Vaughan, for appellee.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Cokpokations, § 450*—what is power of to execute notes. A corporation has power to execute notes for purposes incident to the transaction of its business, and such notes will be presumed to have been executed in the legitimate course of business, and, whether so executed or not, will be valid in the hands of bona fide holders without notice.

3. Bills and notes, § 50*—when note hosed on sufficient consideration. In an action on a note by a bank, where the defendant claimed that the note was in fact given to take up a like note apparently given for accommodation, but the good faith of the bank, which received the note before maturity, without notice of infirmity and • in the usual course of business, was not impeached, held that as the note was given to take up another note it could not be said to have been without consideration.

4. Bills and notes, § 255*—when hank innocent purchaser for value of note given in payment of accom-modation note. Where an accommodation note is negotiated to or discounted by a bank in the usual course of business, without notice of its real character, the payment thereof by another note, also taken without notice, does not deprive the bank of its position as an innocent purchaser .for value.

5. Bills and notes, § 479 —when questions relative to protest fees on note not reviewed. Where in an action on a note the protest fees were not put in issue by the defendant’s affidavit of merits, points made on the question of the proof of such fees will not be considered on appeal.


author: Mr. Justice McDonald

text:
    Joseph Shadauski, otherwise known as Joseph Schultz, Appellant, v. Chicago Railways Company, Appellee.
    Gen. No. 22,186.
    (Not to he reported in full.)
    Abstract of the Decision.
    Master and servant, § 697

      —when evidence insufficient to show negligence of street car repair foreman in handling trolley pole while employee is on.ladder on side of car. In an action for personal injuries by a street car repairer employed by the defendant street car company, where the declaration alleged that while plaintiff was stepping from a ladder, leaning against a car, to the roof of such car, a foreman negligently caught hold of the broken trolley pole and pulled it down so violently that the car rocked, whereby the ladder slipped and plaintiff was thrown, and plaintiff testified that the foreman loosened the pole and let it go up easy, and the sole negligence relied upon was the manner in which the foreman handled the pole, held that the evidence wholly failed to sustain the charge of negligence, but that on the contrary it tended to show that the foreman was free from any negligence in handling the pole. "
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed April 10, 1917.
    Statement of the Case.
    Action by Joseph Shadauski, otherwise known as Joseph Schultz, plaintiff, against the Chicago Railways Company, defendant, to recover damages for personal injuries received while working as car repairer for defendant street railroad. From a judgment against plaintiff for costs, plaintiff appeals.
    Wyman, Jurgens & Carpenter, for appellant.
    J. R. Guilliams and Frank L. Kriete, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Horace H. Stoddard, Appellant, v. Illinois Improvement & Ballast Company and H. C. Greer, Appellees.
    Gen. No. 22,203.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 463

      —what does not work forfeiture of lease. The breach of an implied covenant will not work a forfeiture of a lease, the only available remedy for such breach being an action for damages.
    2. Mines and minerals, § 38*—when action of forcible entry and detainer does not lie in favor of landlord against tenant. An action of forcible entry and detainer will not lie for breach of an implied covenant in a mining lease to quarry stone with reasonable diligence, if found and so long as it is found in profitable quantities.
    3. Mines and minerals, § 22*—when implied covenant that stone will be quarried with reasonable diligence exists. Where a quarrying lease contains no express covenant requiring the .lessees to quarry any definite amount of stone, there is merely an implied covenant that stone will he quarried with reasonable diligence, if found, and so long as it is found in quantity and kind that might be quarried with a profit to the lessees.

      Appeal from the Circuit Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed April 10, 1917.
    Statement of the Case.
    Aeticfn of forcible entry and detainer by Horace H. Stoddard, plaintiff, against the Illinois Improvement & Ballast Company, a corporation, and H. C. Creer, defendants, to recover possession of premises leased for quarrying purposes. From a judgment for defendants, plaintiff appeals.
    Earl J. Walker, for appellant.
    Knapp & Campbell, for appellees; John R. Cochran, of counsel.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Louis Fendl and W. C. Virkus, copartners, trading as Fendl & Virkus, Defendants in Error, v. George J. Cooke Company, Plaintiff in Error.
    Gen. No. 22,242.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed.
    Opinion filed April 10, 1917.
    Statement of the Case.
    Action by Louis Fendl and W. C. Yirkus, copartners, trading as Fendl & Yirkus, plaintiffs, against George J. Cooke Company, a corporation, defendant, to recover a deposit made under a written contract for the purchase of beer exclusively from defendant and for the installation of fixtures and plumbing in plaintiff’s saloon by defendant, and damages for the breach of such contract. From a judgment for plaintiffs for $275, defendant brings error.
    John C. Slade, Robert J. Folonie and Hendrik Folonie, for plaintiff in error.
    Coburn & Bentley, for defendants in error.

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

   Mr. Justice McDonald

delivered the opinion of the court.

Abstract of the Decision.

1. Contracts, § 387*—when evidence insufficient to show fulfill•ment of contract by saloon keeper for purchase of beer and use of bar fixtures. • In an action for the return of money deposited pursuant to a contract under which the defendant installed fixtures and plumbing in the plaintiffs’ saloon, and plaintiffs agreed to sell the defendant’s beer exclusively for a period of two years, and for damages sustained for breach of the contract, where the deposit money was to he returned to the plaintiffs with interest at the expiration of said two years in the event of a compliance with such contract, and it appeared that there were some objections to the fixtures furnished but that they were usable, and plaintiffs ordered the defendant to remove the fixtures and they did so, and plaintiffs discontinued doing business after the expiration of about six months after entering into the contract because of their failure to procure a license and not because of any breach of contract by the defendant, held that the fulfillment of the contract by the plaintiffs was a condition precedent to their right of recovery of the deposit, and that they failed to make such proof.

2. Contracts, § 294 —when performance by plaintiffs is essential to recovery for breach. In an action to recover money deposited with the defendant, where such money was deposited under a contract providing that the same should he returned in the event that the plaintifs should, during the period specified, purchase the beer of the defendant exclusively during the period and in the quantity specified, held that the fulfillment of such contract by the plaintiffs was a' condition precedent to a right of recovery of such deposit and for damages for breach of the contract, and that the fact that the fixtures were defective could not be taken advantage of by the plaintiffs to strengthen their case.


text:
    Elizabeth Arado, Plaintiff in Error, v. David Arado, Defendant in Error.
    Gen. No. 22,263.
    1. Marriage—when doctrine of estoppel inapplicable to uphold marriage. In divorce proceedings where the parties were first cousins and the marriage was ceremonial and the parties had lived together as husband and wife for many years, and children had been born who were still living, and the bill was dismissed for want of equity and a decree annulling the marriage entered, held that the doctrine of estoppel could not be invoked to uphold a relationship which the statute expressly condemned and declared void.
    2. Marriage, § 4*—when marriage between first cousins is void. A marriage between first cousins in violation of section 1 of the Marriage Act, ch. 89, Hurd’s Rev. St. (J, & A. If 7345), declaring, such marriages to be incestuous and void, is not only voidable but void.
    3. Marriage, § 4*:—when between first cousins not declared to be valid. Where a marriage between first cousins was annulled and it was contended that such marriages were only voidable and not void, held that as such marriages had been declared incestuous and void by section 1 of the Marriage Act (J. & A. If 7345), and as the crime of incest was made a felony by section 157 of the Criminal Code, ch. 38, Hurd’s Rev. St. (J. & A. 1f 3775), that to declare valid a marriage, the consummation of which was made a felony, would be unreasonable and would he against the express public policy of the State.
    4. Marriage—when fact that performance of is by minister of church of parties is immaterial. Where a marriage between first cousins was annulled as in violation of section 1 of the Marriage Act (J. & A. If 7345), and it was contended that because such marriage was sanctioned by the church of which the parties were members, and as the marriage was performed by a minister of that church, it should be upheld under section 5 of the Marriage Act (J. & A. 1f 7349), providing that persons belonging to any religious church, etc., might celebrate their marriage according to the rules and principles of such church, held that such section referred only to the celebration of marriages, and presupposed that the parties thereto would not come within the inhibitions of said section 1.
    5. Divorce, § 135

      —when alimony and solicitor's fees properly disallowed. Alimony and solicitor’s fees held properly disallowed where the bill for divorce was dismissed and the marriage annulled on the ground that the parties were first cousins, and the alleged marriage was thus void in its inception.
    Error to the Circuit Court of Cook county1; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed April 10, 1917.
    King, Brower & Hurlbut, for plaintiff in error.
    Charles P. Molthrop, for defendant in error.

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

   Mr. Justice McDonald

delivered the opinion of the court.

This writ of error brings up for review a proceeding wherein plaintiff in error’s bill for divorce was dismissed for want of equity and a decree annulling the marriage between the parties was entered on defendant’s cross-bill.

The pleadings admitted that the complainant, Elizabeth Arado, and the defendant, David Arado, entered into a ceremonial marriage on October 4, 1894, and for many years thereafter lived together and cohabited as' man and wife; that, as the fruits of the said marriage, two children were born to them, both of whom are still living; that complainant and defendant were cousins of the first degree.

Section 1 of our Marriage Act, ch. 89, Hurd’s Bev. St. of Hlinois (J. & A. ft 7345), is as follows;

“ That hereafter marriages between * * * cousins of the first degree, are declared to be incestuous and void.”

It is insisted by complainant that notwithstanding the aforesaid provision of the statute declaring marriages between cousins of the first degree to be incestuous and void, such marriages are in fact only voidable.

• The Legislature, in the interest of morality and for the protection of society, has declared such marriages to be incestuous and - void, and in so doing has by statute clearly expressed the public policy of this State with respect thereto. By section 157 of our Criminal Code, ch. 38, Hurd’s Bev. St. of Illinois (J. & A. 3775), the crime of incest is made a felony, punishable by imprisonment in the penitentiary. It is difficult to conceive of a marriage having any validity, the consummation of which is made a felony. And to so hold would be to do violence to reason and to utterly disregard the express public policy of the State. Williams v. McKeene, 193 Ill. App. 615; In re Wittick’s Estate, 164 Iowa 485, 145 N. W. 913; Wilson v. Cook, 256 Ill. 463.

Complainant also invokes the doctrine of estoppel to preclude defendant from assailing the validity of the marriage. Such doctrine cannot be invoked to uphold a relationship which the statute expressly condemns and declares void. Furthermore, where both parties are particeps criminis, as in the case at bar, the doctrine can have no application.

It is also contended that marriages between cousins of the first degree are • sanctioned by the church of which the parties hereto were members, and that inasmuch as the marriage ceremony was performed by a minister of that church, it should be upheld under section 5 of our Marriage Act (J. & A. 7347), which provides that “All persons belonging to any religious society, church or denomination, may celebrate their marriage according to the rules and principles of such religious society, church or denomination.” It is a sufficient answer thereto to state that this section refers only to the celebration of marriages, and presupposes that the parties thereto do not come within the inhibitions of section 1, supra.

It is finally urged that the court erred in refusing to allow complainant alimony and solicitor’s fees.

The allowance of alimony and solicitor’s fees contemplates, as a basis therefor, a valid or at least a voidable marriage contract; and it appearing from the pleadings that the alleged marriage contract in question was void in its inception, the relation of husband and wife never existed between the parties hereto, and hence the court properly refused to make such allowance to the complainant. McKenna v. McKenna, 70 Ill. App. 340.

Finding no reversible error, the decree will be affirmed.

Affirmed.


text:
    Glenridge Coal Company et al., Appellants, v. Marion County Coal Company, Appellee. Marion County Coal Company, Appellee, v. Glenridge Coal Company et al., Appellants.
    Gen. No. 22,280.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed April 10, 1917.

      Certiorari denied hy Supreme Court (making opinion final).
    Statement of the Case. .
    Bill by Glenridge Coal Company, Knowlton L. Ames and Thomas C. Loueks, complainants, against the Marion County Coal Company, defendant, for an accounting and damages for an alleged breach of contract for the sale of coal, and cross-bill by defendant to recover for coal sold and delivered. From a decree in favor of defendant on its cross-bill for $7,842.86 and dismissing complainants’ bill for want of equity, complainants appeal.

      Abstract of the Decision.
    1. Sales, § 83*—when seller has right to cancel contract for failure to make stipulated payments. On a bill for an accounting and for damages for breach of contract, where the defendant, as owner and operator of a coal mine, had made a contract with the complainant for the exclusive right to sell the output of such mine with an exception as to sale within a certain radius, and where the time for payment was fixed to meet pay days of the defendant, and defendant had to rely upon regular remittances in order to keep its mine in operation, and, against the continued objections of the defendant as to irregularity in' payments, the complainant failed to make payments as provided for, and the defendant finally canceled the contract after a large amount had become overdue, contract construed and held that, inasmuch as time was clearly of the essence of the contract, the defendant was justified in canceling such contract because of the failure to make payments as provided, and that the dismissal of the bill for want of equity was proper.
    2. Contracts, § 330*—what does not constitute waiver of past breaches. The continuation of a contract in force after various breaches does not constitute a waiver of past breaches, where the alleged waivers are conditioned upon the future fulfillment of the contract.
    3. Contracts, g 345

      —when action for breach may not be maintained. An action for breach of a contract cannot be maintained where the complaining party is in default.
    Walter W. Ross, for appellants.
    Mayer, Meyer, Austrian & Platt and Noleman & Smith, for appellee.

      See Illinois Notes Digest, Vola. XI to XT, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Louis F. A. Hedrich, Defendant in Error, v. United States Brewing Company, Plaintiff in Error.
    Gen. No. 22,292.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant—when lease construes against party' drafting it. The whole of a lease must he considered, and force and meaning given to every part, if possible, and doubtful and inconsistent reservations or conditions should be given a construction least favorable to the party drafting the instrument.
    2. Landlord and tenant, § 76

      —when tenant no right to terminate lease. In an action to recover rent on a lease of premises for the term of one year, where the lease was drafted by the defendant, and provided that it was made on condition that a saloon license would issue, and that in the event of the city’s refusal to issue a license or its revocation of one theretofore issued, the lessee might terminate the lease on ten days’ written notice, and that, in case of destruction or rendering of the premises uninhabitable by fire, rent should abate until the premises were rebuilt or rendered fit for occupancy, and in case of failure to rebuild or repair the lease might be terminated upon notice, and that the lessee reserved the right to terminate the lease at any time on ten days’ notice, held that the ten-day cancellation provision had application only in case of total destruction by fire, or failure to put the premises in habitable condition after damage by fire, and that consequently the defendant did’not have the right to terminate the lease at any time.

      Error to the Municipal Court of Chicago; the Hon. Joseph S. La But, Judge, presiding. Heard in the Branch Appellate Court, at the March term, 1916.
    Reversed and remanded.
    Opinion filed April 10, 1917.
    Statement of the Case.
    Action by Louis F. A. Hedrich, plaintiff, against the United States Brewing • Company, defendant, to re-, cover rent for the lease of premises Toy defendant from plaintiff. From a judgment for plaintiff for $198.79, defendant brings error.
    Winston, Payne, Strawn & Shaw, for plaintiff in error; Arthur C. Marriott, of counsel.
    Joseph G. Sheldon, for defendant in error.

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

   Mr. Justice McDonald

delivered the opinion of the court.

3. Landlobd and tenant, § 321*—when exelusion of evidence in action for rent is reversible error. Where, in an action for rent under a lease, one of the issues involved was the ownership of certain property which the lessee removed from the demised premises, and plaintiff introduced evidence as to’ his ownership and installation of the property, and defendant offered countervailing evidence that it had installed the property, and an objection by plaintiff to such evidence was sustained, held that as the value of the property was included in plaintiff’s claim and constituted part of the allowance of damages, the refusal to admit such evidence constituted reversible error.


text:
    Gustave Fingado, Appellee, v. Wilson Braiding & Embroidering Company, Appellant.
    Gen. No. 22,300.
    1. Assignments, § 33

      —when pleading not supported by personal affidavit as to ownership of assigned claim is defective. In an action in the Municipal Court upon an account, where plaintiff’s statement of claim alleged an assignment of the account to him for valuable consideration, and was supported by the affidavit of plaintiff’s attorney which alleged that the plaintiff was then the actual bona fide holder of the account, and the defendant, in his affidavit of merits, disclaimed knowledge of the supposed assignment and stated .upon information and belief that the plaintiff was not the actual bona fide owner and holder of the account, and defendant’s affidavit was stricken from the files and its countermotion to strike plaintiffs statement was denied, and, upon the defendant’s electing to stand by its affidavit of merits, default was taken and judgment entered, held that in failing to support his statement of claim by his personal affidavit as required by section 18 of the Practice Act (J. & A. 1f 8555), the plaintiff failed to state a cause of action, and that therefore the denial of the defendant’s motion to strike such statement of claim from the files was error.
    2, Statutes, § 234*—how statute in derogation of common law construed. A statute which is in derogation of the common law must be striptly construed, and a strict compliance therewith is indispensable.
    3. Statutes, § 234

      —how statute requiring affidavit of ownership of assigned claim construed. In an action in the Municipal Court upon an account, where the plaintiff’s statement of claim alleged that he was the assignee of such account for valuable consideration, and the affidavit in support of such statement of claim was made by the plaintiff’s attorney, held that section 18 of the Practice Act (J. & A. If 8555), giving the assignee and bona fide holder of a chose in action the right to sue in his own name but requiring such holder to make allegations or affidavit of ownership, being in derogation of the common law, required strict construction.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed April 10, 1917.
    Barer & Holder, for appellant; G. Raymond Collins, of counsel.
    Henry M. Goldsmith, for appellee.

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

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

   Mr. Justice McDonald

delivered the opinion of the court.

Appellee, Gustave Fingado (plaintiff below), recovr ered a judgment against the Wilson Braiding & Embroidering Company for $1,928.78, to reverse which this writ of error is prosecuted.

Plaintiff in his statement of claim alleged that the account sued upon had been assigned to him for a valuable consideration. The statement of claim was supported by the affidavit of plaintiff’s attorney, wherein he alleged that the plaintiff was then the actual bona fide holder of said account.

Defendant filed an affidavit of merits, in which it disclaimed any and all knowledge or notice of the supposed assignment of the account in question, and stated upon information and belief that plaintiff was not the actual bona fide owner thereof, and that said account was not assigned to plaintiff for a good and valuable consideration.

On motion of the plaintiff, defendant’s affidavit of merits was stricken from the files. Defendant made a countermotion to strike plaintiff’s statement of claim from the files, which was denied by the court, and defendant having elected to stand by its affidavit of merits, its default was taken and the judgment in question entered against it.

The question here presented for determination is whether or not plaintiff’s attorney had the right to make the affidavit required by statute, in support of plaintiff’s claim.

Section 18 of the Practice Act, ch. 110, Eev. St. of Illinois (J. & A. 8555)j is in part as follows:

“The assignee and equitable and bona fide owner of any chose in action not negotiable heretofore or hereafter assigned, may sue thereon in his own name, and he shall in his pleading on oath, or by his affidavit, where pleading is not required, allege that he is the actual bona fide owner thereof, and set forth how and when he acquired title,” etc.

This provision of the statute being in derogation of the common law, it must be strictly construed, and a strict compliance therewith is indispensable. (Edwards & Bradford Lumber Co. v. Bontjes, 193 Ill. App. 392; Leemon v. Grand Crossing Tack Co., 187 Ill. App. 247.) One of the requirements of the provisions of the act in question is that the assignee shall, in his pleading, on oath or by his affidavit, where pleadings are not required, allege that he is the actual bona fide owner of the chose in action. The obvious reason therefor is that such information is peculiarly within the knowledge and conscience of the assignee alone. ¡

The statement of claim in question being unsupported by plaintiff’s personal affidavit, it failed to state a cause of action under section 18, supra, and hence the court erred in denying defendant’s motion to strike same from the files. Hadden v. Larned, 83 Ga. 636; Shattuck v. Myers, 13 Ind. 46; Hinkle v. Lovelace, 204 Mo. 208.

In our opinion, defendant’s said motion was sufficiently definite and specific to reach this objection.

In this view of the case, it becomes unnecessary to pass upon the other points raised.

The judgment will be reversed and the cause remanded.

Reversed cmd remanded.


author: Mr. Presiding Justice McSurely

text:
    Lepman & Heggie, Plaintiff in Error, v. Inter-State Produce Company, Defendant in Error.
    Gen. No. 22,215.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rinsus F. Robinson, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action in attachment by Lepman & Heggie, a corporation, plaintiff, against the Inter-State Produce Company, defendant, to recover the difference between the contract price and the market price of two cars of turkeys. From a judgment for defendant, plaintiff brings error.
    Abstract of the Decision.
    1. Attachment, § 9*—when original will not lie. An original attachment will not lie in Illinois to recover unliquidated damages.
    2. Damages, § 81*—what is distinction between liquidated and unliquidated. Damages are said to be liquidated where they can be determined from the contract itself or from the contract and the rules of law applicable thereto, and where it is necessary to introduce evidence before plaintiff can prove his case, the damages are said to be unliquidated.
    3. Attachment, § 9*—-when affidavit is for unliquidated damages. In an original attachment action bought to recover the difference between the contract price and the market price of two cars of turkeys, where the affidavit alleged the purchase of a car of turkeys to contain a certain number of pounds of the grade designated as dry picked, dry packed and packed in barrels separate, at a certain price per pound, and that such turkeys were rejected on the ground of being frozen and of inferior quality to those purchased, and that the market value on the day in question was a certain .higher price per pound, held that the order quashing the attachment on the ground that it appeared in the affidavit that the claim was for unliquidated damages was correct.
    4. Attachment, § 9

      —what affidavit in action to recover difference between contract and market price of poultry should set forth. In an original attachment action to recover the difference between the contract price and the market price of certain cars of poultry, held that the affidavit should have set forth the market price at the time of the breach of the contract, which was on the day the articles should have been delivered.

      Frank Schoenfeld, for plaintiff in error; George F. Ort, of counsel.
    Harford & Lightfoot, for defendant in error; Florence W. Stephens, of counsel.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

5. Attachment, § 9 —when original action does not lie against nonresident. The fact that the defendant in an original attachment proceeding is a nonresident does not alter the rule that such an attachment will not lie to recover unliquidated damages.


text:
    H. S. Gile Grocery Company et al., Appellees, v. Chicago & Northwestern Railway Company, Appellant.
    Gen. No. 22,766.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Rehearing denied April 30, 1917.
    Statement of the Case.
    Action by H. S. Gile Grocery Company, a corporation, and others, plaintiffs, against the Chicago & Northwestern Railway Company, a corporation, defendant, to recover damages for failure of defendant to deliver a shipment of canned com in good order. From a judgment for plaintiff for $284.50, defendant appeals.
    Irving Herriott and Ira C. Belden, for appellant; William G. Wheeler, of counsel.
    Maurice W. Seitz and Durward Grinstead, for appellees.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

Cabbiebs, § 81 —when failure of carrier to notify consignee of arrival of shipment at port of embarkation constitutes breach of contract. In an action against a common carrier for failure to deliver a shipment of canned corn in good order, where the shipment was delivered to the defendant as the initial carrier and the car was consigned to a certain party with directions to notify the plaintiff, in care of the steamship company at a certain city, and after arriving at the dock at such city, the car was overlooked and remained on the dock for two months and a half, when notice of its arrival was given to the steamship company, and the cases were then unloaded from the car and remained at the dock for over two weeks, after which the shipment was delivered -to a steamer and ultimately reached the consignee, and during all of this time no notice was given to either the consignor or consignee of the delay in shipment, held that under the bill of lading the defendant was required to notify the plaintiff upon the arrival of the shipment at the port of embarkation, and that leaving the car at such port without notice to either the consignor or consignee for such period constituted a breach of the contract.


text:
    C. W. Moyer, Appellee, v. Walden W. Shaw Livery Company, Appellant.
    Gen. No. 22,774.
    (Not to he reported in full.)
    Appeal from the County Court of Cook county; the Hon. Benjamin Ball, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by C. W. Moyer, plaintiff, against the Walden W. Shaw Livery Company, a corporation, defendant, to recover damages for injury to plaintiff’s automobile, caused by a collision with another automobile. From a judgment for plaintiff for $256, defendant appeals.
    Abstract of the Decision.
    1. Automobiles and garages, § 3*—when question of negligence and contributory negligence of drivers of colliding automobiles are for jury. In an action to recover damages for injury to an automobile sustained in a collision between an automobile of the plaintiff and a taxicab of the defendant at a street crossing, where the testimony was widely at variance, held_ that the questions whether the accident was caused by the negligence of the defendant’s chauffeur and whether plaintiff’s chauffeur was guilty of contributory negligence were properly left to the jury and that the finding in favor of the plaintiff should not be disturbed. °
    2. Automobiles and garages, § 3*—when defenses that plaintiff was operating car without license and at unlawful speed are unavailable. In an action to recover damages for injury to an automobile in a collision between automobiles owned, by the respective parties, where the defendant charged that the chauffeur driving plaintiff’s car had no license, and also that such car moved across a boulevard at a higher rate of speed than permitted by statute, held that as neither the running of the car without a license nor the operation at a rate of speed in excess of the statutory limit was shown to have had any causal connection with the accident, such defenses were unavailable.
    3. Negligence, § 8*—when violation of statute or ordinance is material. The violation of an ordinance or statute is not ordinarily negligence per se but only one of the elements to be considered, and in any event such violation, to be' material, must be shown to have had a causal connection with the accident.
    4. Witnesses, § 278

      —what is proper mode of impeachment. Permitting an impeaching witness to testify from a transcript of -his stenographic notes is a proper mode of impeachment.
    Sabath, Stafford & Sabath, for appellant; Charles B. Stafford, of counsel.
    Max Krauss, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Sterne & Maley Company, Appellee, v. Tom Chamales, Appellant.
    Gen. No. 22,794.
    (Not to be reported in full.)
    Abstract of the Decision.
    Corpobations, § 307

      —when officer liable for debts made in name of corporation. In a suit to enforce the liability of an officer of a corporation under section 18 of the Corporation Act (J. & A. If 2435), providing that if any person pretending to be an officer .shall assume to exercise corporate powers before compliance with the act, and before all stock shall have been subscribed in good faith, he shall be liable for debts made by him in the name of the corporation, where it appeared that it was proposed to form a corporation, and that the defendant subscribed for stock and was elected vice president and personally participated in the business and contracted obligations, and that a charter was issued but was not filed for record until after the delivery of the merchandise in question, held that the case was within said section 18, and that a judgment in favor of plaintiff was proper.

      Appeal from the Municipal Court of Chicago; the Hon. Chakles N. Goodnow, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Rehearing denied April 30, 1917.
    Statement of the Case.
    Action by Sterne & Maley Company, a corporation, plaintiff, against Tom Chamales, defendant, to enforce the individual liability of defendant, as officer of a corporation, for debts contracted in the name of the corporation. From a judgment for plaintiff for $558.79, defendant appeals.
    William R. Brand, for appellant.
    Frank N. Hillis, Martin Walsh and Guy M. Blake, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Aloizy Roszek, by Frank Roszek, Appellee, v. Bauerle & Stark Company, Appellant.
    Gen. No. 22,801.
    1. Workmen’s Compensation Act, § 4

      —when is minor legally permitted to work. In a personal injury case brought on behalf of a minor, who was fifteen years old at the time of being injured, while operating a sandpaper machine in the factory of the defendant, where the defendant filed a special plea alleging that both parties were under the Workmen’s Compensation Act of 1913, and a demurrer was sustained and the defendant elected to stand by the plea, section 1 of the Children’s Employment Act of 1897 (J. & A. If 5307), prohibiting children under fourteen to work in factories, and section 11 of the Act of 1903 of the Child Labor Act (J. & A. % 5317), prohibiting children under sixteen from operating certain specified machines, including sandpaper machines, considered in connection with section 5 of the Workmen’s Compensation Act [Cal. Ill. St. Supp. 1916, If 5475(5)], defining as employees “minors who are legally permitted to work under the laws of this State,” and held that under such statútes, and applying the words of the Compensation Act literally, plaintiff was “legally permitted to work” in the defendant’s factory, and that as both plaintiff and defendant were under the Workmen’s Compensation Act of 1913, the trial court did not have jurisdiction.
    2. Workmen’s Compensation Act, § 1*—what is purpose■ of. It is contrary to the spirit of the Workmen’s Compensation Act to relate the amount of compensation to the precise act which occasioned the injury, as the purpose of the act does not rest on the theory of negligence, but on the theory that the injuries to workmen and deaths caused by accidents in any business should be regarded as a part of the expense of the business and should be borne by such business.
    3. Workmen's Compensation Act, § 4*—when minor is legally permitted to work. A minor aged fifteen years, who was injured while working at a sandpaper machine in a factory, which was forbidden him under section 11 of the' Act of July 1, 1903, of the Child Labor Act (J. & A. j[ 5317), held to nevertheless have been “legally permitted to work” under section 5 of the Workmen’s Compensation Act of 1913 [Cal. 111. St. Supp. 1916, IT 5475(5)], and to have been thus under the act, although injured through a violation of the statute.
    4. Workmen’s Compensation Act, § 4*—what minors are legally permitted to do work. Section 5. of the Workmen’s Compensation Act of 1913 [Cal. 111. St. Supp. 1916, IT 5475(5)], defining as employees “minors who are legally permitted to do work under the laws of this State,” construed and held that in the absence of restrictive words conditioning the work of minors to that special kind permitted to them, eligible minors doing any kind of work in a lawful place of employment were included.
    5. Workmen’s Compensation Act, § 4

      —when contention that no contract of employment exists for application of act is untenable. In an action in tort in behalf of a minor fifteen years old who was injured while at work on a sandpaper machine, which was contrary to section 11 of the Child Labor Act of 1903 (J. & A. jf 5317), where a special plea was filed alleging that such minor was under the Workmen’s Compensation Act, and plaintiff contended that, as section 1 of the Compensation Act [Cal. 111. St. Supp. 1916, 1[ 5475(1)] provided that every employee “as a part of his contract of hiring” should be deemed to have accepted the provisions of the act and to be bound thereby, the plaintiff’s work being unlawful, could not have been the subject of a lawful contract of hiring, and that therefore there was no contract and the act did not apply, held that such contention was untenable.
    Dever, J., dissenting.
    On Petition fob Rehearing.
    Appeal and error, § 1157*—when argument in petition for rehearing is improper.. Argument' of points for the first time in a petition for rehearing is in violation of the rules relating to such petitions.
    Appeal from the Superior Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed.
    Opinion filed April 16, 1917.
    Rehearing denied April 30, 1917. Supplemental opinion on petition for rehearing filed May 1, 1917.
    Fyffe, Ryner & Dale, for appellant.
    David K. Tone and F. A. Rockhold, for appellee.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff, a minor, while employed by defendant was injured. He brought a common-law action in tort, and upon trial had a verdict and judgment for $3,000, from which defendant appeals.

The declaration avers that at the time of the injury plaintiff was under'sixteen years of age, to wit, fifteen years old, and was operating, by defendant’s permission or direction, a sandpaper machine, in violation of the Child Labor laws of this State, which caused the injury. Defendant pleaded the general issue and specially that both parties were under the Workmen’s Compensation Act of 1913. A demurrer to this special plea was sustained, and defendant elected to stand by its special plea.

If the parties were under the Compensation Act, this judgment cannot be sustained, for the trial court had no jurisdiction. If the parties are not within the act, the demurrer to the special plea was rightly sustained and the case was tried in the proper forum. A majority of this court is of the opinion that the parties were under the Compensation Act, and consequently the judgment cannot stand.

That the defendant is one of the class of employers included in the act is not in question.

By section I of the Act relating to the employment of children, in force July 1, 1897 (J. & A. ft 5307), no child under the age-of fourteen years shall be employed in any manufacturing establishment or factory. By section 11 of the Act of July 1, 1903, of the Child Labor Act (J. & A. 5317), the employment of children under the age of sixteen years to operate certain specified dangerous machinery is expressly forbidden. One of such machines mentioned in the act is a sandpaper machine. Both statutes prohibit the employment of any child under the age of fourteen years in such a factory as was operated by the defendant; and under both statutes it was lawful for the plaintiff, fifteen years of age, to be employed in such a factory, but not to work at the sandpaper machine. Under section 5 of the Workmen’s Compensation Act [Cal. 111. St. Supp. 1916, [[ 5475(5)], among the persons defined as employees are “minors who are legally permitted to work under the laws of the State.” Under the above statutes, and applying the words of the Compensation Act literally, plaintiff was “legally permitted to work” in defendant’s factory.

It is argued that because at the time of the accident plaintiff was working at a machine which was forbidden to him by the statute, he was not a minor “legally permitted to work under the laws of the State.” It is said that any other construction would open the door to violations of the statutes designed to safeguard children of any age in employment, and it is suggested in this, connection that some employments, for instance farming, are open to children under fourteen years of age. It is not necessary for us to determine how whether this clause includes children under fourteen years of age. It is possible to discern a substantial distinction between the status of children wholly forbidden employment in a factory or similar place and those permitted to work in such places. It is difficult to see any substantial distinction between the status of eligible minors and of adults; both may lawfully work in a factory; both may not work at certain machines; adults may not work at machines constructed and operated contrary to the various safety regulations of the State; minors may not work at certain specified machines; the underlying purpose in both cases being safety. The status of employment is the same in both cases; the difference lies only in the details of the regulations for safety. We have laws relating to the guarding of dangerous machines, factories, hours of labor, occupational diseases, comfort and safety of employees. An adult employee injured through the violation of any of these regulations is still under the Compensation Act. By parity of reasoning a minor permitted to work in the same factory is under the act although injured through a violation of statute.

We are of the opinion that it is contrary to the spirit of the Workmen’s Compensation Act to relate the amount of compensation to the precise act which occasioned the injury. The purpose of the act is to compensate for personal injuries speedily and economically, unrelated to any negligence or omission of legal duty, such compensation to be considered as part of the cost of production. “The Workmen’s Compensation Act is an entire departure from the common law in regard to the relation of master and servant. It does not rest on the theory of negligence, but on the theory that the injuries to workmen and deaths caused by accidents in any business should be regarded as a part of the expense of the business and should be borne by the business.” Keeran v. Peoria, B. & C. Traction Co., 277 Ill. 413, 420.

We believe this was the manifest intention of the Legislature with reference to eligible minors. If it had been otherwise, it would have been very easy to have added after the words, “legally permitted to work under the laws of the State,” restrictive words conditioning the work of minors to that special kind permitted to them, That this was not done impels to the conclusion that the words were used with the intention to include minors in a lawful place of employment doing any kind of work.

In section 1 of the Workmen’s Compensation Act of 1913 [Cal. 111. St. Supp. 1916, 5475(1)] it is provided that every employee “as a part of his contract of hiring * * * shall be deemed to have accepted all the provisions of this Act and shall be bound thereby.” It is plausibly argued that as it was unlawful for plaintiff to work at a sandpaper machine, such work could not be the subject of a lawful contract of hiring; hence there is no contract and the act does not- apply. But this might be said of any employment of minor or adult who works for an employer who fails to comply with the legal safety regulations in his place of business. This contention is aimed at the effectiveness of the Compensation Act, and if sustained would render it useless. We think this contention goes too far. If there is no contract, then the mutual duties between master and servant disappear, and employees would be unprotected either under the Compensation Act or at common law. Violation of law is no part of the contract of employment. The contract is for personal services at agreed wages, subject to the laws of the land.

The entire argument for plaintiff seems to be based upon a promise which, if established, would work great hardship to employees generally; logically pursued it would lead to the avoidance of the obligations of the Compensation Act by employers wherever there was noncompliance with the safety regulations imposed by statute, and we would have again with us the troublesome and unfair puzzles of assumed risk, contributory negligence, fellow-servant, and the like.

The only reported case, in point, of which we know is Foth v. Macomber & Whyte Rope Co., 161 Wis. 549, in which the court construed these words we have been considering, which are identical in the Wisconsin Compensation Act and ours. The reasoning in that opinion seems to us to be convincing and has influenced our conclusion. Counsel for plaintiff has not successfully distinguished that case from the case before us. The suggestion that the Illinois and Wisconsin laws differ with respect to eligibility of all minors for some work—to wit, agriculture—is based on error. The law is the same in both States, as appears in the additional opinion filed in the Foth case, in disposing of a pétition for rehearing. The very point presented by counsel in this connection is there given attention. Referring to the words in question, the opinion says: “The office of this clause * * * is to constitute a reference by which the conditions 'and restrictions of the laws of the State relating to the employment of minors are intended to be incorporated in this act.” We are in accord with this construction.

We hold that plaintiff and defendant here were under the Workmen’s Compensation Act of 1913, and • that the trial court did not have jurisdiction.

The judgment of the Superior Court is reversed.

Reversed.

Mr. Justice Dever dissents.

Supplemental Opinion by Mr. Justice McSurely, upon Petition por Rehearing.

A petition for rehearing has been filed on behalf of plaintiff, which consists almost entirely of argument of points not heretofore presented for our consideration. This is in violation of the rules of this court.

However, our attention is now for the first time called to two cases bearing upon the question involved. The first of these is Stetz v. F. Mayer Boot & Shoe Co., 163 Wis. 151. We think this case can be distinguished from the case before us in this, that in that case it appears the contract of employment was unlawful ab initio. This is not true of the case at bar j here the .boy was originally employed in the “repairing room oiling sticks,” which is not prohibited work to a boy of his age. We are inclined to think that counsel has departed from the theory of his case as presented to us in his original brief and argument, and is attempting in his petition for rehearing to recast this theory into the form passed upon in the Stetz case, supra.

The other case is Lostutter v. Brown Shoe Co., Gen. No. 6317, 203 Ill. App. 517. We are in accord with the statement of the dissenting opinion that the question of the repeal of our Child Labor Act is not involved.

While the opinions in these cases do" not dissuade us from our opinion heretofore expressed, they emphasize the importance of having a final determination of the question involved by our Supreme Court; and to secure this we are ready to give assistance in any feasible way which may be suggested to us.

Petition for rehearing denied.


text:
    Anna Richert, Administratrix, Appellee, v. Village of Niles, Appellant.
    Gen. No. 22,805.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Turran, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Anna Bichert, administratrix of the estate of Albert Bichert, deceased, plaintiff, against the Village of Niles, defendant, to recover for the death of Albert Bichert, alleged to have been due to the negligence of defendant in knowingly permitting a certain public highway to be in an unsafe condition of repair so that it was not safe for public travel. From a judgment for plaintiff, defendant appeals.
    Abstract of the Decision.
    1. Municipal corporations, § 1098

      —when evidence sufficient to show that hoy did not jump off wagon. In an action against a village to recover for the death of a boy fifteen years old caused by-being thrown from a wagon which was being driven by another person along a public road on a dark night, where the front wheel of the wagon went down into a hole up to the axle, followed by the hind wheel, and it was claimed that the boy jumped off, and no one saw him the instant he went off the wagon, but the driver of the wagon stated that he saw a lantern which the boy held fall down in front of the wagon and go out, and that the hoy apparently fell off the seat, and stopped his team and got down and found the boy lying on the street in an apparently lifeless condition, evidence held sufficient to show that the boy was thrown off or fell off the wagon, and that he did not jump off it.
    2. Municipal corporations, § 1098*—when evidence sufficient to show negligence in allowing hole to exist in road. In an action against a village, to recover for the death of a boy caused by his being thrown from a wagon as the result of the wheels going down into a hole in a public road on a dark night, held that testimony showing that such hole had been in the street for about a month, and that accidents had happened at the same hole before the accident in question, constituted sufficient proof of negligence.
    3. Municipal corporations, § 1089*—what evidence admissible to show condition of road after accident. Where, in an action against a village to recover for the death of a boy caused by his being thrown from a wagon as the result of the wheels going ¿own into a hole in a public road on a dark night, the defendant claimed that it was error to permit evidence as to the filling up of the hole very shortly after the accident, and where it appeared that the witnesses who gave such testimony had been sent for the purpose of filling the hole, and had testified as to its location and sizei, held that such evidence was proper to prove conditions immediately or shortly after the accident in question.

      Theodore A. Kolb, for appellant; Francis X. Busch, of counsel.
    Irwin R. Hazen and Le Roy V. Penwell, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    William Billos and George Thanos, Appellees, v. Joseph F. Kozlowski, Appellant.
    Gen. No. 22,812.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Damages, § 85

      —when money deposited ~by tenant as security for rent not treated as liquidated damages. In an action to recover money deposited under a lease to secure the payment of rent, where the plaintiffs had been dispossessed under a judgment for possession, and the rent of one month amounting only to one-eighth of the deposit, was involved, and the issue was whether the defendant was entitled to retain the entire deposit as liquidated damages, held that to compel the forfeiture of the entire amount of the deposit for the nonpayment of a month’s rent would be unconscionable.

      Appeal from the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by William Billos and George Thanos, plaintiffs,'against Joseph T. Kozlowski, defendant, to recover money deposited as security for the payment of rent. From a judgment for $853.28 in favor of plaintiffs, defendant appeals.
    Beach & Beach, for appellant; Paul C. Schussman, of counsel.
    W. A. Morrow, for appellees.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Damages, § 85*—what is nature oí money deposited By tenant as security for rent. Money deposited by a tenant as security for rent will, as a rule, be regarded as a penalty merely and not as liquidated damages, and it is immaterial whether the deposit is called a penalty or liquidated damages, and particularly so when the deposit is out of all proportion to the rent due.

3. Damages, § 85 —what is important in determining whether deposit is penalty or otherwise. The element of reasonableness is an important factor in determining whether or not a deposit should be considered as a penalty or otherwise,' and if the forfeiture would be unreasonable, the entire deposit should. not be applied as liquidated damages.


text:
    Mrs. A. Margolis, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 22,816.
    (Not to he reported in full.)
    . Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Mrs. A. Margolis, plaintiff, against the Chicago Railways Company, defendant, to recover damages for injuries to plaintiff’s automobile due to a collision with defendant’s street car. From a judgment for plaintiff for $340.15, defendant appeals. -

      Abstract of the Decision.
    1. Street railroads, § 131

      —when evidence is sufficient to sustain judgment for plaintiff in action for injuries to automobile. In an action against a street car company to recover damages for injuries to plaintiff’s automobile, where the trial was by the court, and it appeared that as the automobile which was being driven south, came to an east and west street and before starting to turn, the driver stopped the car, and, in looking south, saw a northbound car standing in front of the car barns about half a block away and passengers getting on and off, and that she then started to turn east and when the car was partially upon the northbound track she reversed and started back towards the west, and that just then the car struck the front end of the automobile, held that a judgment in favor of the plaintiff was not manifestly against the weight of the evidence.
    2. Street railroads, § 97*—when driver of automobile is not negligent in turning at street intersection in front of street car. In an action against a street car company to recover damages for injuries to plaintiff’s automobile, where the trial was by the court, and it appeared that as the automobile which was being driven south came to an east and west street, and, before starting to turn, the driver stopped the car, and, in looking south, saw a northbound car standing in front of the car barns about half a block away and passengers getting on and off, and that she then started to turn east, and when the car was partially upon the northbound track she reversed and started back towards the west, and that just then the car struck the front end of the automobile, held that the trial court could properly conclude that, as the automobile was first at the street intersection, the motorman of the street car should have given the driver time to pass, and that she was justified in proceeding to make the turn without paying further attention to the street car.
    William H. Symmes and Frank L. Kriete, for appellant ; J. R. Guilliams and C. C. Cunningham, of counsel.
    George D. Wellington and Ernest W. Clark, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Bessie Feldman, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 22,825.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Carriers, § 476

      —when evidence sufficient to show injury of alighting passenger by sudden starting of car. In an action for personal injuries sustained by plaintiff while alighting from the defendant’s street car, where plaintiff claimed to have been injured by the sudden starting of the car while she was in the act of alighting, and her uncontradicted testimony was corroborated by her son and another witness, held that, while there might have been inconsistencies in the plaintiff’s story of more or less importance, the jury could properly conclude that in its essentials it was sufficient to support the charges of negligence in the declaration.

      Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Statement of the Case.
    Action by Bessie Feldman, plaintiff, against the Chicago Railways Company, defendant, to recover damages for personal injuries received while alighting from one- of defendant’s street cars and due to the sudden starting of the car. From a judgment for plainti^ for $2,000, defendant appeals.
    Watson J. Ferry, for appellant; W. W. Gurley, J. R. Gulliams, Joseph D. Ryan and Frank L. Kriete, of counsel.
    William Cullen Burns, for appellee; A. H. Ranes, of counsel.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Appeal and error, § 1248 —when counsel may not complain of conduct of court in administering rebuke. Where, in the argument of a personal injury case, the defendant’s attorney persisted in bringing before the jury material matter which was not strictly, part of the evidence, and which the court ruled out, and,then, upon counsel persisting, was rebuked by the court, held, that as the action of the court was invoked by the improper fconduct of counsel, the defendant could not be heard to complain on appeal.

3. Damages, § 114*—when verdict for injuries to woman is not excessive. A verdict for $2,000 held, not excessive, where a woman nine weeks pregnant, who was thrown while alighting from a street car, received injuries to her leg, stayed in bed about ten days, then suffered a miscarriage, was in bed three weeks thereafter, was for some time attended every day by her physician, also suffered considerable pain, was apparently in good health before the accident, was sick during the succeeding summer and has suffered pain in her side since then.


text:
    Pennsylvania Company and Chicago & Alton Railroad Company, Appellees, v. Erie Railroad Company, Appellant.
    Gen. No. 22,830.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Oscar Mi Torrison, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 16, 1917.
    Rehearing denied April 30, 1917.
    Statement of the Case.
    Action by the Pennsylvania Company, a corporation, and the Chicago & Alton Railroad Company, a corporation, plaintiffs, against the Erie Railroad Company, a corporation, defendant, to recover damages for injury to a caisson sunk by plaintiffs in connection with the construction of a bridge and struck by defendant’s steamer while navigating in the Chicago River. From a judgment for plaintiffs for $11,-500, defendant appeals.
    Abstract of the Decision.
    1. Collision, § 4

      —when negligent management of steamer is sole cause of injury to caisson. In an action for damages for injury to a caisson through its being struck by a steamer of the defendant which was being navigated in the daytime in a navigable river, where it appeared that such caisson had been sunk by the plaintiffs in connection with the construction of a new railroad bridge, and that it was twenty-eight feet long by sixteen feet wide, and projected four feet above the water, and closed the south draw of the old bridge so that vessels could use only the north draw, which facts were known to the captain of the steamer and to the captain of the tug having the same in tow, and, in approaching the bridge, which was swmng to let the steamer pass, the latter should have retarded its speed in order to get through the proper draw, but instead went ahead at full speed, held that the sole cause of the accident was the negligent management of the steamer, unaffected either by the conduct of the captain of the tug or those in charge of the bridge. „

    2. Collision—when lack of permit for bridge and caisson is not defense to action for injury to caisson. In an action for damages for injury to a caisson through its being struck by a steamer of the defendant which was being navigated in the daytime in a navigable river, where it appeared that such caisson had been sunk by the plaintiffs in connection with the construction of a new railroad bridge, and that it was twenty-eight feet long by sixteen feet wide, and projected four feet above the water, and closed the south draw of the old bridge so that vessels could use only the north draw, which facts were known to the captain of. the steamer and to the captain of the tug having the same in tow, and, in approaching the bridge, which was swung to let the steamer pass, the latter should have retarded its speed in order to get through the proper draw, but instead went ahead at full speed, and defendant contended that the lack of a city permit for the bridge and caisson constituted a defense, held that, as the negligent management of the steamer was the sole cause of the accident, the lack of a permit had no causal connection whatever with the occurrence and was therefore not a defense to the suit.

      W. O. Johnson and Bull & Johnson, for appellant; Robert J. Folonie and George C. Gale, of counsel.
    Loesch, Scofield, Loesch & Richards and Winston, Payne, Strawn & Shaw, for appellees; Silas H. Strawn, James Stillwell and Walter H. Jacobs, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

3. Collision—when exclusion of ordinances is not erroneous. The exclusion of city ordinances in an action for damages for injury to a caisson through its being struck by a steamer is not error where the violation of such ordinances had no causal connection with the occurrence in question.