text:
    James F. Bishop, Administrator, Appellee, v. Bowman Dairy Company, Appellant.
    Gen. No. 21,016.
    1. Workmen's Compensation Act, § 2

      —when employees presumed to have elected to he hound hy act. All employers included in sec. 3 of the Workmen’s Compensation Act of 1913, Hurd’s Rev. St., ch. 48, are, by section 2, of such act, conclusively presumed to have elected to be bound by its terms, unless they have manifested a contrary intention in the manner therein provided.
    2. Workmen’s Compensation Act, g 3*-—who is not engaged in carriage hy land or water. In sec. 3 of the Workmen’s Compensation Act, Hurd’s Rev. St., ch. 48, the words “carriage by land or water” relate to those engaged in carriage as an “occupation, enterprise or business,” and not to those engaged in a business where carriage is an incident, and a milk company is not within such terms so as to be liable for injuries to the driver of one of its wagons under such statute.
    3. Workmen’s Compensation Act, § 3*—who is not engaged in operating warehouses within act. While defendant, a milk company, may have used and maintained “warehouses or general or terminal store houses” in connection with its business, held that it was not engaged in the business of operating them within the meaning of the statute.
    4. Workmen’s Compensation Act, § 3*—what enterprises not within scope of act. Adopting the principle of statutory construction that a thing within the letter is not within the statute if not also. within the intention, the Workmen’s Compensation Law, sec. 3, clause 8, includes only enterprises of such extra-hazardous character that the Legislature or a municipality have felt called upon to make provisions for the guarding, use or the placing of machinery or appliances, or for the protection and safeguarding of the employees or public therein, and municipal sanitary regulations applying to milk vendors or vehicle regulations, applying to all vehicles and operators alike, do not come within the meaning of such act.
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge; presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 15, 1916.

      Montgomery, Hart, Smith & Steere, for appellant.
    William English, for appellee.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

Bowman Dairy Company, appellant, hereinafter referred to as defendant, appeals from a judgment obtained by James F. Bishop, administrator of the estate of Frederick P. Noyes, appellee, hereinafter referred to as plaintiff, for $2,850, recovered on account of the death of the decedent, and based upon the contention that the business of the defendant fell within the terms of section 3 of the Workmen’s Compensation Act of July 1, 1913, which went into effect eight days before the accident. It was stipulated by the parties that if the defendant’s business did come within the terms of section 3, the proper amount for which it was liable was $2,850.

Plaintiff’s declaration, in substance, charged that defendant was possessed of a large number of buildings, outside of Chicago, known as bottling stations to which milk was delivered; that within these buildings the defendant had installed machinery and appliances used by numerous employees in separating and bottling milk and cream and canning and packing various other dairy products; that the stations were located close to railroad tracks on which were placed special cars, used exclusively in the transportation of defendant’s milk and other dairy products, between the stations and defendant’s switch tracks in Chicago, although these cars might be used by other dairy companies; that defendant loaded large quantities of these products on the cars, which were transported to its switch tracks in Chicago, where defendant unloaded them and distributed them by horses and wagons to consumers throughout the city; that at some of the switch tracks defendant maintained buildings used as offices and places where excess and unsold milk and other products were deposited and kept until disposed of. It further recites that there were municipal ordinances in Chicago, regulating vendors of milk and cream, providing license fees, requiring the name to be stamped on the cap of the bottle, and containing certain health regulations providing for the disposal of unfit products. It also recites the general vehicle regulations applicable to horse-drawn vehicles, and requiring horses to be hitched when left standing in any street; that the duties of the plaintiff’s intestate, who was a driver in the employ of the defendant, were to unload milk and other dairy products from the cars upon the wagons, and deliver them to consumers and to return the undelivered products to defendant’s buildings; that while he was driving a wagon belonging to the defendant, carrying milk and other products for delivery, the horse attached to his wagon became unmanageable and ran away, ‘1 and the plaintiff was then and there thrown to and upon the ground and was thereby then and there killed.” It avers the sending of the notice required by the statute, the granting of letters of administration, a statement of the amount of his wages, and avers that by force of the statutes defendant became liable to the beneficiaries thereunder in the sum of $3,500, payable in weekly instalments, and that defendant has refused to pay them. Plaintiff further averred that plaintiff and defendant had agreed that if defendant is liable in this cause as an employer under the statute in such case made and provided, being the act of the Legislature of Illinois, approved June 28, 1913, entitled “An Act to promote the general welfare,” etc., then the sum of $2,850 was the full value of the right of plaintiff to compensation for the death of said Frederick P. Noyes, deceased. Defendant elected to stand by its general demurrer, which had been overruled.

The sole question in the case is as to whether the defendant company, which it was agreed had not affirmatively elected to be bound by the terms of the Workmen’s Compensation Act of 1913, came within the terms of the third section thereof. It may be said that all employers included in that section are, by the second section, conclusively presumed to have elected to be bound by the terms of the act, unless they have manifested a contrary intention in the manner therein provided.

The third section of the act, which appears as paragraph 128 of chapter 48, Hurd’s Revised Statutes of Illinois (1913) is as follows:

“3 (a) In any action to recover damages against an employer, engaged in any of the occupations, enterprises or businesses enumerated in paragraph (b) of this section, who shall elect not to provide and pay compensation to any employe, according to the provisions of this act, it shall not be a defense, that: First, the employe assumed the risks of the employment; second, the injury or death was caused in whole or in part by the negligence of a fellow-servant; or third, the injury or death was proximately caused by the contributory negligence of the employe.

“(b) The provisions of paragraph (a) of this section shall only apply to an employer engaged in any of the following occupations, enterprises or businesses, namely:

“1. The building, maintaining, repairing or demolishing of any structure;

“2. Construction, excavating or electrical work;

‘ ‘ 3. Carriage by land or water and loading and unloading in connection therewith;

“4. The operation of any warehouse or general or terminal store houses;

‘ ‘ 5. Mining, surface mining or quarrying;

“6. Any enterprise in which explosive materials are manufactured, handled or used in dangerous quantities;

“7. In any enterprise wherein molten metal, or explosive or injurious gases or vapors or inflammable vapors or fluids, or corrosive acids are manufactured, used, generated, stored or conveyed in dangerous quantities ;

“8. In any enterprise in which statutory or municipal ordinance regulations are now or shall hereafter be imposed for the regulating, guarding, use or the placing of machinery or appliances, or for the protection and safeguarding of the employes or the public therein; each of which occupations, enterprises or businesses are hereby declared to be extra-hazardous.”

It is claimed that the business of the defendant, as described in the declaration, comes within the terms of clauses 3, 4, and 8. It seems very clear to us that the defendant was not, within the meaning of the statute, engaged in the “occupation, enterprise, or business” of 1 carriage by land or water, ’ ’ etc. In one very broad sense, practically every manufacturer, business house, farmer and truck grower, as well as those engaged in almost innumerable other occupations, as an incident to his business, carries by land or water, and loads and unloads in connection therewith, but very clearly, “carriage by land or water” relates to those engaged in carriage as an “occupation, enterprise or business,” and not to those engaged in an occupation, enterprise or business to which carriage is an incident. (See Uphoff v. Industrial Board of Illinois, 271 Ill. 312.) What is said in regard to clause 3 applies with equal force to clause 4, for while the defendant may have used and maintained “warehouses or general or terminal store houses” in connection with its business, it certainly was not engaged in the business of operating them within the meaning of the statute.

Plaintiff claims also" that defendant comes within clause 8, which covers any enterprise “in which statutory or municipal ordinance regulations are now or shall hereafter be imposed for the regulating, guarding, use or the placing of machinery or appliances, or for the protection and safe-guarding of the employees or the public therein; each of which occupations, enterprises or businesses are hereby declared to be extra-hazardous.”

In passing upon this section of the act, the Supreme Court said, in Uphoff v. Industrial Board of Illinois, supra, at page 315:

“The intention of the law-makers is the law. This intention is to be gathered from the necessity or reason of the enactment and the meaning of the words, enlarged or restricted according to their real intent. In construing a statute the courts are not confined to the literal meaning of the words. A thing within the intention is regarded within the statute though not within the letter. A thing within the letter is not within the statute if not also within the intention. When the intention can be collected from the statute, words may be modified or altered so as to obviate all inconsistency with such intention.”

Later, on page 317, the court continued:

“It is also plain that the Legislature only intended to include under paragraph (b) any such occupations, enterprises or businesses of the employer when they were properly considered to be ‘ extra-hazardous. ’ It is true that the clause in subdivision 8 of said paragraph (b) calling all of these trades, businesses, enterprises or occupations extra-hazardous was inserted for the purpose of making clear what was considered extra-hazardous, but it is also clear that the Legislature did not intend to include work that everyone knows is not extra-hazardous or even hazardous.”

Having in view the principle thus laid down by the Supreme Court, what is the meaning that must be given to clause 8? It is clear that even giving the words their broadest construction, it only includes those enterprises which were of such a character that the Legislature or a municipality had felt called upon to make provisions for the regulating, guarding, use or on placing of machinery or appliances, or for the protection and safeguarding of the employees or the public therein. As the purpose of the act itself was to provide compensation for personal injuries, the words “regulations for the protection and safeguarding of the employees or the public” as therein used can only mean protecting and safeguarding them from personal injury. It, therefore, clearly appears that the sanitary municipal regulations referred to in the declaration are in no way connected with the purpose of the act, and consequently cannot be held to bring within its scope enterprises that would otherwise not be included. The only other provisions of the municipal ordinances referred to, apply to all vehicles and operators of vehicles, whether used in any enterprise or not, and so cannot have the effect of bringing those who use vehicles within the terms of this 8th clause, intended to be descriptive of extra-hazardous occupations, enterprises or businesses.

We do not wish to be understood as attempting to lay down a hard and fast rule as to what this 8th clause of section 3 includes; we are of the opinion however that it does not include the operation, enterprise or business in which the defendant was engaged. The judgment of the lower court must, therefore, be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Goodwin

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Fifty Cases Containing 30 Dozen Each, More or less, of Shell Eggs. Perfection Egg Company, Claimant, Plaintiff in Error.
    Gen. No. 21,171.
    1. Food, § 2

      —how Pure Food Act construed. The provisions of the Illinois Pure Food Act (Hurd’s Rev. St., ch. 127b, J. & A. T[ 10740 et seq.), are modeled after those of section 10 of the Federal Food and Drug Act, and the construction of the latter act by the United States Supreme Court is persuasive authority, and as the Illinois Legislature adopted the language of the Federal statute, it must be taken to have intended to use the language in the sense in which it had been construed.
    2. Food, § 2*—what constitutes holding article of for sale within Pure Food Act. In proceedings for the condemnation of eggs seized under Hurd’s Rev. St., ch. 127b (J. & A. If 10740 et seq.), decomposed eggs, which claimant intends to subject to some renovating process and put upon the market in the form of a dried product, are held for sale within the meaning of such statute regardless of the condition or form the article is to be in at the time it is ultimately to be sold, or of the intention of the shippers in regard to such ultimate form.
    3. Food—when eggs are adulterated. Although only a portion of the eggs in a case seized under Hurd’s Rev. St., ch. 127b (J. & A. If 10740 et seq.) may be decomposed and unwholesome, the case as a whole comes under section 8 of such act (J. & A. If 10747), which states that food is adulterated “if it consists in whole or in part of * * * decomposed * * * animal or vegetable matter.”
    4. Food—when within discretion of court to order inquest as to character of food. In proceedings on a seizure of a case of eggs under Hurd’s Rev. St., ch. 127b (J. & A. If 10740 et seq.) where a portion of such eggs are not decomposed, the court may, to prevent hardship, order an inquest for the purpose of determining what eggs are good and turn them over to the claimant, but it is not required to do so.
    5. Conflict of laws, § 31*—when claim that Federal law applicable because shipment interstate without merit. Contention of claimant that shipment of eggs at point of destination in the original packages seized under Hurd’s Rev. St., ch. 127b (J. & A. If 10740 et seq.) was an interstate shipment and therefore not subject to the penalties imposed by the state law, held to be without merit.
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 15, 1916.
    Lannen & Hickey and Francis O’Shaughnessy, for plaintiff in error.
    Maclay Hoyne and James McCarthy, for defendant in error; Edward E. Wilson and James R. Quinn, of counsel.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

This writ or error is sued out to reverse a judgment obtained by the People of the State of Hlinois, condemning and confiscating fifty cases containing thirty dozen each, more or less, of shell eggs, obtained in a proceeding instituted under section 10 of “an act to prevent fraud in the sale of dairy products, and imitation or substitutes, to prohibit and prevent the manufacture and sale” of unhealthful, adulterated, or misbranded foods, etc., in force July 1, 1907, (Hurd’s Rev. St., ch. 127b; J. & A. 10740 el seq.). The statute in effect, provides that any article of food, which is adulterated or misbranded within the meaning of the act, or which is made, labeled or branded contrary to the provisions of this act, or which does not conform to the definition of analytical requirements provided in this act, and is being sold or offered for sale or exposed for sale within the State of Illinois, shall be liable to be proceeded against in any court of record, or before any judge thereof, or before any justice of the peace, within whose jurisdiction the same may be found, and" seized for condemnation and confiscation.

The complaint alleged that the shell eggs in question, “being an article of food, were and are adulterated in this, that the said eggs * * • * consisted in whole or in part, of a filthy or decomposed or putrid, tainted or rotten animal * * * substance, and that the said eggs were then and there sold or offered for sale or exposed for sale within the State of Illinois,” contrary to the statute.

The claimant defended on the ground that said eggs were not “held with intent to sell, offer for sale, expose for sale, or to he manufactured into a food product in manner and form as alleged in the complaint herein; ’ denied that said eggs more or less consisted in whole or in part of filthy, decomposed or putrid animal substance, and said that said cases contained a large percentage of good eggs, and that claimant was candling and sorting said eggs and separating the good from the had and using only the good eggs.

On the trial, the evidence fully supported the contention of the State with reference to the condition of the eggs, although it appeared that some of the eggs were good. The evidence further disclosed that it was the apparent intention of the plaintiff in error, hereinafter referred to as claimant, to subject all or a portion of the unwholesome and partly decomposed eggs to some renovating process, and then put the dried product on the market. On this state of the record, the claimant seeks to reverse the judgment on the ground that the eggs were not being sold or offered for sale or exposed for sale within the State of Illinois within the meaning of the statute, and on the further ground that an entire case of eggs could not be confiscated upon proof that it contained a percentage of had eggs. The provisions of the statute are modeled after those of section 10 of the United States Food &, Drug Act, with the exception that section 10 of the statute provides for the seizure and condemnation of adulterated articles when they are “being transported from one State * * * to another for sale.” It therefore follows that the construction placed upon this statute by the Federal courts, and particularly by the United States Supreme Court, is at least very persuasive authority when similar questions arise under our own statute. In Hipolite Egg Co. v. United States, 220 U. S. 45, certain cans of eggs which were being transported from one State to another were seized under the authority of section 10. The eggs were the property of Thomas & Clark, an Illinois corporation engaged in the bakery business, which had shipped them from St. Louis to their own warehouses in Illinois. The evidence fully disclosed that the eggs were not to be sold in their original form, but were to be used in the baking business. It was therefore contended that the eggs were not shipped for sale within the meaning of the act. The court, after carefully considering this question, declared that “all articles, compound or single not intended for consumption by the producer, are designed for sale, and because they are, it is the concern of the law to have them pure.” This is, in effect, a holding that an article of food that is not to be used by the producer is held for sale within the meaning of the statute, regardless of the state or condition or form the article may be in at the time it is ultimately sold. It would seem that there can be no doubt about the soundness of the conclusion of the court, for the legislative authority had very clearly indicated its intention that adulterated articles of food should not be transported for sale at all, no matter what the intention of the shippers might be in regard to the ultimate form that the articles might take. The language of the court is equally applicable to the case at bar. Had the Legislature elected to do so, it might have made an exception in favor of adulterated articles intended to be put through a renovating process, but it did not elect to do so, but chose instead to use comprehensive language identical with that contained in the Federal statute. According to a well-established canon of construction, as it adopted the language of the Federal statute presumably with knowledge of the interpretation given it by the Supreme Court, it intended to use the language in the sense in which it had been construed. Luken v. Lake Shore & M. S. Ry. Co., 248 Ill. 377.

The claimant’s second point, that the statute does not authorize the confiscation of an entire case of eggs upon proof that the case contains a certain or uncertain percentage of bad eggs, seems to the court to be without merit. If a case contains eggs which are adulterated within the meaning of the statute, the case as a whole comes within the 8th section of the statute (J. & A. ¶ 10747), which expressly says that food is adulterated “if it consists in whole or in part of filthy, decomposed, putrid, infected, tainted or rotten animal or vegetable substance or article,” and this seems to the court a wise provision, for it would certainly destroy the effectiveness of the statute if immunity could be given by mingling one or more good eggs with others that were rotten.

This case is clearly distinguishable from one where a case of eggs, through circumstances beyond the control of the possessor, has in it some eggs that are bad, but where there is no evidence that such eggs are intended to be put upon the market in any form. In the case at bar there was ample evidence from which the jury could find that some, at least, of the eggs which came within the condemnation of the statute were held with an intent to sell them, within the meaning of the statute as hereinbefore defined.

Claimant also complains of the extra-judicial method by which the court separated the good eggs from the bad. As already indicated, we are clearly of the opinion that it was within the power of the court to condemn the cases of eggs on account of the presence of the so-called adulterated eggs which are shown to have been held for sale in violation of the statute. While the court might, to prevent hardship, order an inquest for the purpose of determining what eggs were good, and turn them over to the claimant, it was not required to do so, and therefore, the manner in which this was done is not one of which the claimant can complain.

Claimant’s final contention that as there is a national food law, and as this was an interstate shipment remaining in the original package, it was not subject to the penalties imposed by the State law, is also without merit. The judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Fourteen Cases Containing 30 Dozen Each, More or Less, of Shell Eggs. Perfection Egg Company, Claimant, Plaintiff in Error.
    Gen. No. 21,181.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 15, 1916.
    Statement of the Case.
    Condemnation proceedings by the People of the State of Illinois against Fourteen cases containing 30 dozen each, more or less, of shell eggs. Perfection Egg Company, claimant. From a judgment for plaintiff, claimant brings error.
    The facts in this case are substantially the same as People v. Fifty Cases Containing 30 Dozen Each, More or Less, of Shell Eggs, ante, p. 319, and is governed by the decision in that cage,

      Lannen & Hickey and Francis O’Shaughnessy, for plaintiff in error.
    Maclay Hoyne and James McCarthy, for defendant in error; Edward E. Wilson, of counsel.
   Mr. Justice Goodwin

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Charles Meseke, Appellee, v. H. Piper Company, Appellant.
    Gen. No. 21,224.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. George Bedford, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 15, 1916.
    Statement of the Case.
    Action by Charles Meseke, plaintiff, against H. Piper Company, defendant to recover damages alleged to have been sustained by plaintiff’s horse and wagon as a result of the running away of the team owned by defendant. From a judgment for plaintiff, defendant appeals.
    Plaintiff’s horse was hitched to a wagon and was standing on the north side of Madison street in the village of Forest Park, facing west. The team and wagon belonging to the defendant, in charge of a driver, was delivering bread in said village, and it being about noon, the driver drove the team into a shed, which was in a yard immediately adjoining Madison street. The shed was about forty or fifty feet inside of the yard. The yard was inclosed with a fence, there being two entrances to the same. The driver took the bridles off the horses and hung them on the hames, fed his team, and then went into a restaurant, which was situated near the yard, to eat his dinner. About five minutes thereafter, he looked out and the team was gone. In some manner not disclosed by the evidence, the team got out on Madison street and turned east, running away. They ran into plaintiff’s horse and wagon. Plaintiff’s horse was injured and parts of the wagon shafts broken. On account of the injuries the plaintiff was unable to afterwards use the horse. The value of the horse was placed by a witness on behalf of the plaintiff to be from $100 to $125, while a witness testified on behalf of the defendant that the horse was not worth to exceed $50. There was also evidence as to other items of damage incurred.
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13a

      —what does not constitute variance between statement of claim and proof. In a fourth-class case in the Municipal Court of Chicago for damages caused to plaintiff’s horse and wagon by defendant’s runaway team, where plaintiff’s statement of claim averred that defendant’s team and wagon were left “unattended, unhitched and unguarded,” and the evidence was contended to be in fatal variance therewith in showing only that the team was left unattended and unhitched, such contention held to be without merit.
    2. Negligence, § 187*—when evidence sufficient to sustain finding as to negligence in driving team. In an action for damages to plaintiff’s horse and wagon by defendant’s runaway team, evidence
      held sufficient to sustain a finding as to negligence of the driver of defendant’s team.

      Thomas C. Angerstein, for appellant.
    No appearance for appellee.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

3. Negligence, § 164a —when evidence as to gentle disposition of horse inadmissible. Where plaintiff in action for damages caused to his horse and wagon by defendant’s runaway team offered evidence as to the gentle disposition, etc., of his team, such evidence was properly refused, plaintiff not claiming that the horses were other than gentle, but basing his action on the negligence of defendant on the control and management of the team.


text:
    Baltimore & Ohio Chicago Terminal Railroad Company, Appellee, v. Illinois Brick Company, Appellant.
    Gen. No. 21,282.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 15, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by the Baltimore & Ohio Chicago Terminal Railroad Company, plaintiff, against Illinois Brick Company, defendant, to recover unpaid freight charges of $9 per carload on 156 carloads of brick, hauled by plaintiff for defendant from Blue Island, Illinois to Chicago. From a judgment for $1,669.46 in favor of plaintiff, defendant appeals.
    It was not disputed that the rate charged was reasonable and in compliance with the schedules filed with the Interstate Commerce Commission and the Railroad and Warehouse Commission of Illinois, and was less than the maximum rate as fixed by the said railroad and warehouse commission. The defense was that the plaintiff during the month of August, 1911, hauled brick from Chicago Heights, Illinois, to Chicago, a distance of thirty miles, for $5.50 per carload, over the. same track as that on which it hauled the brick for the defendant from Blue Island to Chicago, a distance of but eighteen miles, for which plaintiff charged the defendant $9 per carload; that this was unjust discrimination and contrary to law, and that the defendant should not be required to pay more than that charged by the railroad company for hauling from Chicago Heights, $5.50 per carload and that therefore plaintiff’s claim for $1,447.34 is excessive in the sum of $478.
    In 1898 the railroad company entered into a written contract with a land association of Chicago Heights whereby the association conveyed land to the railroad company for right of way and for other purposes, in consideration of which the railroad company agreed that its freight charges for hauling carload lots from Chicago Heights to Chicago should, for a period of 99 years, be $5.50 per carload.
    In 1910, when it attempted to raise the freight charges from Chicago Heights to Chicago, it was enjoined by the Circuit Court of the United States for the Northern District of Illinois, Eastern Division, from doing so, which injunction was still in full force and effect, the court holding said contract to be valid and binding.
    Felsenthal & Wilson, for appellant; David Levinson, of counsel.
    Jesse B. Barton, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Abstract of the Decision.

1. Carriers, § 218*—when evidence insufficient to establish unjust discrimination in freight rates. In an action by one carrier against another to recover unpaid freight charges for hauling cars on plaintiff’s railroad, defense of unjust discrimination in freight rates charged defendant held not to be established by the evidence.

2. Interest, § 82*—when objection to allowance of interest may not be raised on appeal. Objection to the allowance of interest on plaintiff’s claim not having been presented to the trial court, the question cannot be raised in a court of review.


text:
    Maud Louthan, Administratrix, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 21,347.
    1. Street railroads, § 97

      —when contributory negligence of driver of team passing in front of car question for jury. In an action against a street car company for death of plaintiff’s intestate where defendant contended that plaintiff’s intestate was guilty of contributory negligence in swinging his team across defendant’s tracks at such a short distance in front of the car that it was physically impossible to prevent the collision, and where there was a conflict in the evidence with regard to such distance, held that the contributory negligence of plaintiff was a question for the jury.
    2. Negligence, § 198*—when contributory negligence of plaintiff question for jury. If there be any difference of opinion on the question of contributory negligence, so that reasonable minds may not arrive at the same conclusion, then it is a question of fact for the jury.
    3. Appeal and error, § 1401*—when judgment will not be reversed on appeal. A court of review will not reverse a judgment unless it can say that the verdict is against the manifest weight of the evidence.
    4. Street railroads, § 131*—when evidence sufficient to sustain finding that defendant guilty of negligence. In an action against a street railroad for the death of a person killed while attempting to drive a team across defendant’s tracks in front of an approaching car, evidence held insufficient to sustain a finding that defendant was guilty of negligence.
    5. Street railroads, § 141

      —when instruction on superior right of way of street car company properly refused. An instruction on the superiority of right of way of the street car along its right of way over vehicles traveling in same direction is properly refused as inapplicable to a case where a driver was attempting to cross the track and where the question was not one of superior right to the use of the street but was purely as to whether defendant was guilty of negligence and the driver exercised ordinary care.
    6. Street bailboads, § 144*—when instruction not objectionable as limiting the exercise of due care of deceased to precise time of crossing street car tracks. Where an instruction that if plaintiff has proven his case as alleged in his declaration by a preponderance of the evidence, the jury should find defendant guilty, which was objected to on the ground that the allegations of the declaration limited the exercise of due care and caution on the part of deceased to the precise time when he was crossing the tracks of defendant street car company, held that the objection was tenable as to the first count but was not tenable as to the three additional counts, and that the court committed no error in giving such instruction.
    7. Negligence, § 226*—when instruction on exercise of ordinary care not erroneous. In an action for the death of a person who was killed while attempting to drive across a street car track in front of an approaching street car, an instruction defining ordinary or reasonable care held not unobjectionable on ground that it assumed that an ordinarily careful man would permit himself to be surrounded by the same circumstances that surrounded the deceased.
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 15, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Franklin B. Hussey and Charles Le Roy Brown, for appellant; John R. Guilliams, of counsel.
    Gorman, Pollock, Sullivan & Livingston, 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 O’Connor

delivered the opinion of the court.

Appellee (plaintiff) brought an action against the appellant (defendant) for damages on account of the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. The jury returned a verdict for $6,250 in favor of the plaintiff, upon which judgment was entered. To reverse this judgment, defendant prosecutes this appeal.

The deceased was in the teaming business, and on the day of the accident, December 9,1910, was engaged in hauling brick from a building which stood on the north side of Twenty-second street and about 50 feet east of the P., Ft. W. & Co. Railway viaduct. Twenty-second street extends east and west in the City of Chicago, and is occupied by two street car tracks upon which defendant operates its cars. The street cars pass under the tracks of said railroad, which cross Twenty-second street from north to south at a point about 280 feet west of Archer avenue, which is the first street east of the viaduct which crosses Twenty-second street. The railroad tracks are elevated, and the roadway of Twenty-second street is depressed, passing under the railroad in a subway. The depression of Twenty-second street begins at a point about 50 feet west of Archer avenue and continues to the viaduct or subway. The incline.is 230 feet in length and the grade 3.1 per cent. In the center of the subway and between the two car tracks is a row of pillars running from east to west supporting the railroad tracks. At the subway the roadway of Twenty-second street is about 42 feet wide.

About noon, December 9, 1910, a team and wagon belonging to the deceased was standing at the north curb of Twenty-second street, facing west, in front of the building that was being wrecked. The wagon was loaded with about 2,000 brick, weighing about four tons. The brick were to be hauled east in Twenty-second street. The evidence tends to show that the deceased asked the driver of the team whether he could make the turn east of the viaduct, and there being some doubt of the driver’s ability in this regard, the deceased got on the wagon to make the turn; that as he did so he and the driver both looked east to ascertain whether a car was approaching. The deceased got on the wagon, started to make the turn, and when the front wheels of the wagon were about over the south rail of the. north or westbound track, one of the defendant’s cars coming from the east struck the wagon between the two wheels. The deceased was thrown off the wagon, caught between the wagon and the east pillar that supported the railroad tracks, and instantly killed. At the time of his death he was thirty-two years old and left him surviving his widow, the plaintiff.

The defendant’s first contention is that recovery is barred by the contributory negligence of the deceased, the argument being that the deceased negligently swung the team across the tracks at such a short distance in front of the car that it was physically impossible for the defendant to prevent the collision; that the physical facts and mathematical computation demonstrate that the distance between the car and wagon was too short to enable the car to be stopped; that “the controlling question in this case is the distance that intervened between the car and the wagon at the time the horses swung to the south.” We agree that the controlling question is as stated by the defendant. Both parties have made elaborate analysis of the evidence, and we have carefully examined all the evidence in the record. The distance between the car and the wagon at the time in question is variously estimated by the witnesses from 12 to 15 feet as stated by the motorman to 380 feet by the witness Wilson. Other witnesses put the distance at 20 or 25 feet; others at the top of the incline, which was shown by actual measurement to be 230 feet; others that the street car was about the middle of the incline, which they estimated to be about 20 or 25 feet, when the team swung across the track. This testimony shows that estimates made by the witnesses as to the distance between the car and the wagon, when stated in feet, is exceedingly inaccurate and very unreliable. The evidence shows that the car could be stopped within 35 or 40 feet.

As a general proposition, the question of contributory negligence is one of fact for the jury, and only becomes one of law when the evidence clearly establishes that the accident resulted from the negligence of the injured party. If there be any difference of opinion on the question, so that reasonable minds may not arrive at the same conclusion, then it is a question of fact for the jury. Bale v. Chicago Junction Ry. Co., 259 Ill. 476; Chicago Union Traction Co. v. Jacobson, 217 Ill. 404; Patterson v. Chicago City Ry. Co., 195 Ill. App. 527 From a careful consideration of all the facts and circumstances as shown by the record, we are clearly of the opinion that the question of contributory negligence of the deceased was properly submitted to the jury.

The defendant next contends that the clear preponderance of the evidence shows that the defendant was guilty of no negligence. A court of review will not reverse a judgment unless they can say that the ■verdict is manifestly against the weight of the evidence. The jury saw and heard the witnesses and found the issues for the plaintiff; the trial judge also saw and heard the witnesses and approved the verdict of the jury. We have carefully examined all the evidence in the record and cannot say that the verdict is manifestly against the weight of the evidence.

The defendant next contends that the court erred in refusing to give instruction No. 1, offered by the defendant. The instruction, in substance, was that by reason of its convenience to the public as a carrier of passengers, and the inability of its ears to turn out, a street railway company is vested with a superior right of way over other vehicles, over that portion of the street .occupied by its tracks at points other than street intersections. To sustain this contention, reliance is chiefly placed upon the case of North Chicago Elec. Ry. Co. v. Peuser, 190 Ill. 67. In that case plaintiff was driving in the street car track, a car was coming from behind, and the gong was sounded repeatedly. Plaintiff failed to turn out of the track in time and the vehicle in which he was riding was struck by the car. The instruction refused in that case was that the street car company, as a carrier of passengers and by reason of the inability of its cars to turn out, was vested with a superior right of way over other vehicles; that it was the duty of the drivers to turn out and allow the cars to pass, and “to use care not to obstruct and delay the same.” The court there considered the relative rights of the parties where the driver of the vehicle was traveling longitudinally in the track in front of the car, and what was said there does not apply where the driver was attempting to cross the track, as in the case at bar. Springfield Consol. Ry. Co. v. Gregory, 122 Ill. App. 607; Pattison v. Chicago City Ry. Co., supra. In North Chicago St. R. Co. v. Smadraff, 189 Ill. 155, it was held that it was not true that street cars under all circumstances have a superior right of way over that portion of the street occupied by its tracks, except at street intersections, but that a street car company generally has a superior right of way at such places; that the question was not one of superior right to the use of the street but purely as to whether the defendant was guilty of negligence and the plaintiff in the exercise of ordinary care. This was the question in the case at bar and the instruction was therefore properly refused.

The next contention is that the court erred in instructing the jury that if they found from the evidence and under the instructions that the plaintiff had proven her case as alleged in her declaration by a preponderance of the evidence, they should find the defendant guilty. In support of this contention, the defendant argues that the allegations of the declaration limit the exercise of due care and caution on the part of the deceased for his own safety to the precise time when he was crossing the street car track. The declaration consists of four counts. In the first count the allegation of care and caution is: “While the said Frazier Louthan with all due care and caution for his own safety was then and there driving his team of horses and wagon in a southerly direction over and across the westbound tracks,” and in each of the three additional counts, the allegation is: “While the said Frazier Louthan was exercising all due care and caution for his own safety was then riding in a certain wagon drawn by two horses and driving the same across the track on the aforesaid street and highway.” The objection to the allegations of the three additional counts is not tenable. St. Louis Nat. Stock Yards v. Godfrey, 198 Ill. 288; Chicago & A. R. Co. v. Fisher, 141 Ill. 614; Pusateri v. Chicago City Ry. Co., 156 Ill. App. 578; Larsen v. Ward Corby Co., Gen. No. 20,985, ante, p. 109. The first count, however, is subject to the objection. The question therefore is, was the giving of the instruction error? The defendant to sustain its contention cites Krieger v. Aurora, El. & C. Ry. Co., 242 Ill. 544; Cromer v. Borders Coal Co., 246 Ill. 451; Cantwell v. Harding, 249 Ill. 354; Bale v. Chicago Junction Ry. Co., 259 Ill. 476.

In the Krieger case, supra, an instruction was given similar to the one here complained of. It was then held that while the practice of giving such an instruction was not commendable, yet it was generally held not ground for reversing the judgment. The court there said, p. 550: “In Central Railway Co. v. Bannister, 195 Ill. 48, and West Chicago Street Railroad Co. v. Lieserowitz, 197 Id. 607, the instruction was held unobjectionable on the theory that it was the same as if the allegations of the declaration had been copied into the instruction. In those cases the court said that had the instructions copied the allegations of the declaration no objection could have been urged to them. The theory in the cases in which the instruction has been held unobjectionable is that it merely refers the jury to the declaration to ascertain what facts are averred and orders a verdict if such facts have been proved. Considering the instruction the same as though it copied the averments of the declaration in this case, the allegation respecting care and caution on the part of the plaintiff in each count was the same, and was in the following words: ‘While the said plaintiff with all due care and caution was then riding across the said railroad.’ ” It was there held that, as the real controversy was over the questions whether the plaintiff could have seen or heard the car or the signals, which were alleged to have been given, before driving on the track, and whether he was guilty of negligence in placing himself in the position of danger, the instruction was bad. In that case it will be noticed that all counts of the declaration were the same and limited the exercise of due care and caution to the time when the plaintiff was riding across the track, while in the case at bar, the allegations of the three additional counts do not so limit such period of time.

In the Cromer case, supra, the declaration consisted of but one count. One of the defenses interposed was that of assumed risk, and as the declaration did not expressly nor by fair implication negative such defense, it was held error to give an instruction similar to the one now under consideration.

The Cantwell case, supra, was an action based on fraud and deceit. There were two special counts, the first of which failed to allege scienter. One of the instructions told the jury that if they believed from the evidence that the plaintiff had made out his case, as laid in the declaration, “or any count thereof,” they must find for the plaintiff. This was held to be error, since the jury might have found the defendant guilty on the first special count.

In the Bale case, supra, there were four counts in the declaration. The allegation of the first count limited the exercise of due care to the time the deceased was in the place where he was struck by the train. The contention of the defendant there was that the deceased was guilty of negligence in placing himself in that position when he knew the train was approaching. The instruction told the jury that if they believed from a preponderance of the evidence that the plaintiff had proved his case as ‘ ‘ alleged in the first, second or fourth counts of his declaration, or either of them,” then they should find the defendant guilty. This was held to be error since the first count ignored the question whether the deceased was guilty of negligence in placing himself in a dangerous position.

From the foregoing it clearly appears that none of the cases cited is in point. In the case at bar, the allegations of the three additional counts do not limit the exercise of due care to the period of time when the deceased was crossing the tracks, and it will be noticed that the instruction did not authorize a recovery on proof of the allegations of any particular count, but told the jury that the plaintiff must prove her case by a preponderance of the evidence as alleged in her declaration. Under these facts, we are of the opinion that the court committed no error in giving the instruction.

The defendant next complains that the court committed error in giving instruction No. 6, offered on behalf of the plaintiff. This instruction defined ordinary or reasonable care, and the defendant concedes that ■as an abstract proposition of law it is unobjectionable, but contends that as applied to the facts in this case it was eiToneous in that it assumed that an ordinarily careful man would permit himself to be surrounded by the same circumstances that surrounded the deceased. This contention is without merit.

Finding no reversible error in the record, the judgment of the Superior Court of Cook county will be affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Cassius M. Carr, Plaintiff in Error.
    Gen. No. 21,559.
    1. Dentists, § 2

      —when person may not practice dentistry without license. Under Hurd’s Rev. St. ch. 91 (J. & A. If 7433 et seq.), a person may not practice dentistry without a license unless he comes vrithin one of the exceptions made by the statute itself.
    2. Dentists, § 2*—what constitutes practicing dentistry without a license. Where defendant, in an information charging him with unlawfully practicing dentistry withbut a license, had no such license but taught particular methods of treating dental diseases and demonstrated on patients furnished by his students, and charged such students $175 for instruction and demonstration but did not charge the patients for such work, held, under all the evidence, that he was practicing dentistry without a license within the meaning of Hurd’s Rev. St. ch. 91 (J. & A. K 7433 et seq.).

    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed March 15, 1916.
    Darrow, Bailey & Sissman, for plaintiff in error.
    Maclay Hoyne, for defendant in error.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff in error, hereinafter called the defendant, was prosecuted upon an information, filed on behalf of the Illinois State Board of Dental Examiners, charging him with unlawfully practicing “dentistry, dental surgery, and other branches thereof, without first applying for and obtaining a license for such purpose from the Illinois State Board of Dental Examiners,” in violation of the Act to Regulate the Practice of Dental Surgery and Dentistry. From a judgment of conviction of the Municipal Court of Chicago, imposing a fine of $50, he prosecutes this writ of error. The case was tried before the court, a jury having been waived. There is little dispute as to the facts. The evidence tends to show that the defendant was admitted to practice dentistry in Utah in 1894; that in May, 1914, he established and conducted in Illinois what he designates as “C. M. Carr’s School of New Dentistry,” his place of business being No. 30 North Dearborn street, Chicago; that he was still conducting the same at the time of the trial; that the defendant had invented a set of instruments (one hundred and fifty in number) which he used in the work; and that he had recently been awarded a patent covering these instruments. It is claimed that the instruments were superior to other instruments in use, especially in the treatment of pyorrhea. The course pursued in said school consisted of an explanation and demonstration of the use of said instruments; also instruction as to the proper care of the instruments. At the time of the trial about sixty-three students, all of whom were dentists regularly licensed to practice in Illinois had received instruction in defendant’s school. Each of these students was required to pay the defendant $175 tuition and $175 for a set of the instruments.

The method of instruction adopted by the defendant was: After teaching the student how to keep each of said instruments in proper condition, the student would bring in one of his patients. The defendant would then, in the presence of the student, strip, scrape, plane, polish and grind the teeth of the patient, demonstrating, as defendant states, to the student the use of the instruments. The greater part of the work, however, was done on the teeth of the different patients, by the dentists, or students, themselves. For this instruction and demonstration the defendant charged each dentist $175. None of the several patients paid anything to the defendant for this work.

Section 3, ch. 91 Rev. St. (J. & A. ¶ 7435), provides that no person shall begin the practice of dentistry or dental surgery or any branch thereof, without first applying for and obtaining a license for such purpose from the Illinois State Board of Dental Examiners. Section 5 (J. & A. 7437) of the same act provides: ‘ ‘ Any person shall be regarded as practicing dentistry or dental surgery within the meaning of this act, who shall treat or profess to treat any of the diseases or lesions of human teeth or jaws, * * *: Provided- * * * this act shall not prevent students from performing dental operations under the supervision of competent instructors within a dental school, college, or dental department of a university recognized by the Illinois State Board of Dental Examiners.” Section 16 (J. & A. 7448) of the same act provides that any person who shall practice dentistry without first obtaining a license for that purpose, shall, upon conviction, be fined for each offense not less than $50 nor more than $200.

There is contention that defendant’s school has been recognized by the State Board of Dental Examiners, as provided by said section 5, and it is conceded that he has no license to practice dentistry in this State. The defendant contends that he is not practicing dentistry, but that he is teaching “particular methods of treating dental diseases,” which he designates as “preventive dentistry” and that practicing dentistry within the meaning of the statute implies the practicing of the same for compensation; that he does not receive compensation for the work he does on the teeth of the patients, and that he has not, therefore, violated any law of this State.

Under our statute a person may not practice dentistry without a license, unless he comes within one of the exceptions made by the statute itself. If it be conceded that what the defendant did was done solely for the purpose of teaching the use of his instruments and his “particular method of treating dental diseases, ’ ’ this, under all the facts shown by the evidence, .would not bring him within any exception made by the statute. Nor do we think that the fact that he did not receive any compensation, if such were the fact, would do so, if the work he did actually constituted practicing dentistry as defined by the statute. We think, however, that the evidence clearly shows that he did receive compensation for what he did.

The statute expressly states what shall constitute practicing dentistry, and whether the defendant was practicing dentistry, within the meaning of the statute, was a question to be determined from what he did and not what he designated his acts to be. After a careful consideration of all the evidence in the case, we are clearly of the opinion that the defendant was practicing dentistry without a license, within the meaning of the Act to Regulate the Practice of Dental Surgery and Dentistry. The judgment of the Municipal Court of Chicago will therefore be affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. Edward A. Schutt, Plaintiff in Error, v. Ludwig Siems and Meta Siems, Defendants in Error.
    Gen. No. 21,677.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed March 15, 1916.
    Rehearing denied and opinion slightly modified March 23, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Habeas corpus on the relation of Edward A. Schutt, plaintiff, against Ludwig Siems and Meta Siems, respondents, for the custody of plaintiff’s child. . From an order quashing the writ and dismissing the petition, the relator brings error.
    The infant child involved in this controversy was the daughter and only child of the relator, and the granddaughter of the respondents. The relator was a man about thirty-two years of age, residing in the Village of Laporte, Minnesota, in which State he resided practically all of his life. On February 25, 1911, he was married to the daughter of the respondents at Kenosha, Wisconsin. Respondents’ daughter and the relator were cousins of the first degree, and prior to said marriage she lived with her parents in Chicago.. She visited the relator and other relatives in Minnesota and there became engaged to marry the relator. Afterwards the relator came to Chicago to be married, but found that the law of this State prohibited marriages between cousins of the first degree. Thereupon he, together with the respondents and said daughter, proceeded to Wisconsin where the marriage ceremony was performed. They all immediately returned to Chicago, and within a day thereafter the re-. lator and Ms wife went to their home in Minnesota, where they continued to live together as husband and wife until April 10,1914, when she died. Vivian Dorothy Schutt, the child in question, was the only child bom to relator and his wife and was about two years old when her mother died. She was not very strong physically, and about three weeks after her mother’s death was taken to the home of the respondents in Chicago, where she lived at the time of these proceedings.
    About December 11, 1914,. relator was notified by publication that respondents had filed a petition in the County Court of Cook county for the adoption of said cMld. December 24, 1914, relator visited the respondents and the child, and on the 28th of the month demanded that the respondents deliver to him his child, which they refused to do. Thereupon the petition in this case was filed.
    The respondents contended that the custody of the child was turned over to them by agreement “so that they could raise her to maidenhood, the father, however, to have the right to visit said child at reasonable times;” that this was done at the dying request of the child’s mother; that she was well taken care of and had a good home in Chicago, and that it is to the best interests of said child that she stay with respondents.
    There was evidence to show that respondents were able to furnish the child with a more comfortable home than relator. The evidence tended to show that relator was very fond of his child and that he did not intend in any way to surrender any of his rights by turning her over to respondents; that he was a strong healthy man, was a carpenter and contractor, and engaged in the lumber business; that he had held positions of public trust such as assessor, member of the village council, etc.; that he was honest and industrious, and had no bad habits; that he had had some financial reverses occasioned by the destruction by fire of relator ’s lumber yard and was indebted in several small sums; that he was earning about one hundred dollars per month; and that he had arranged with a family living in Minnesota to take care of himself and child. Respondents further contended and the court found that the relator1 and his wife were married in Wisconsin to evade the laws of Illinois; that the marriage was incestuous and void ab initio; that the respondents were proper persons to have the custody of the infant child, and that it was for the child’s best interest to be remanded to their custody.
    Abstract of the Decision.
    1. Parent and child, § 3

      —when parent entitled to custody of child. The parent has the right to the custody of his child as against the world unless he has forfeited his right, or the welfare of the child demands that he be deprived of it.
    2. Parent and child, § 2*—what is controlling element as to custody of child. The controlling element with reference to the custody of a child is the welfare of the child, and this is not to be •determined solely from the financial standing of the parties.
    3. Marriage, § 2*—what law determines validity of marriage in foreign State. The legality of a marriage taking place in a foreign State, when questioned in Illinois, is to be adjudged by the laws of the foreign State, except where the marriage is in violation of some positive law of this State.
    4. Marriage, § 2*—where marriage contracted in foreign State recognized. Relator in habeas corpus proceedings for the custody of his daughter who had married his first cousin, the mother of such daughter, in Wisconsin, and returned with her thereafter to his home in Minnesota, contracted a valid and binding marriage even though the laws of Illinois, which had been the home of his wife and whence he had taken her to Wisconsin, prohibit such a marriage.

      William C. Hartray and C. Helmer Johnson, for plaintiff in error.
    Gorman, Pollock & Livingston, for defendants in error.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

5. Infants, § 4 —when evidence sufficient to sustain award of custody of child to father in habeas corpus proceedings. In a habeas corpus proceeding by a father residing in another State to procure the custody of his child which was left with the maternal grandparents in this State after the death of the mother, evidence held sufficient to sustain an award of the custody of the child to the father.


author: Mr. Presiding Justice McSurely

text:
    Mary Kraus, Defendant in Error, v. National Council, Knights and Ladies of Security, Plaintiff in Error.
    Gen. No. 21,420.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed with finding of facts.
    Opinion filed March 27, 1916.
    Statement of the Case.
    Action by Mary Kraus, plaintiff, against National Council, Knights and Ladies of Security, defendant, on a benefit certificate issued by defendant on the life of Julia Kraus, plaintiff’s mother. From a judgment in favor of defendant for $954, plaintiff brings error.
    This case involves facts substantially like those involved in Neenan v. National Council, Knights and Ladies of Security, 188 Ill. App. 490. Description of the plan of insurance, with benefit certificates and bylaws of the defendant material to the point in the instant case, may be found in the opinion filed in that case.

      By defendant’s by-laws it was provided that:
    “All assessments for every month shall become due and payable on the first day of the month. The certificate of each member who has not paid such assessment or assessments and dues on or before the last day of the month, shall, by the fact of such non-payment, stand suspended without notice, and no act on the part of the Council or any officer thereof, or of the National Council, shall be required.as essential to such suspension, and all rights under said certificate shall be forfeited. No right under such certificate shall be restored until it has been duly reinstated by the member complying wdth the laws of the Order, with reference to reinstatement.’.’
    It was also provided that a member might be reinstated by payment within sixty days from date of suspension of all arrearages, “provided, however, That he be in good health at the time of making payment * * *; Provided, further, That the receipt and retention of such assessments or dues, in case the suspended member is not in good health * * * shall not have the effect of reinstating said member or of entitling him or his beneficiaries to any rights under his Benefit Certificate.”
    Decedent’s assessment for September, 1912, was not paid during that month, whereby under the automatic operation of the by-laws she became suspended, and subsequent payment would operate to reinstate her only on condition that at the time of such payment she was “in good health.” A payment was made on October 7, 1912. There was evidence that on October 7, 1912, decedent was afflicted with mitral regurgitation— a valvular disease of the heart—and that she had been under the care of a physician for this disease for several months prior thereto; that because of this disease and its consequences she was confined to the house for some eight months before her death; that the disease progressed, with the usual dropsical conditions, until it caused her death.

      Abstract of the Decision.
    1. Insubance, § 906

      —when evidence sufficient to show that member of fraternal insurance society not in good health at time of attempted reinstatement. In an action on a benefit certificate in a fraternal insurance society on account of the death of plaintiff’s mother, the evidence held sufficient to show that decedent who was automatically suspended from membership on account of nonpayment of dues, at the time of her attempted reinstatement by payment of delinquent dues, was not in good health so as to be entitled to reinstatement.
    2. Insubance, § 782*—when member of fraternal insurance society automatically suspended. Suspension of member of fraternal insurance society for nonpayment of dues, held to have operated automatically and without necessity of order by such society.
    A. W. Fulton, for plaintiff in error.
    Joseph M. Connery, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    George L. Trafton, Guardian, Defendant in Error, v. National Council, Knights and Ladies of Security, Plaintiff in Error.
    Gen. No. 21,681.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed with finding of facts. ’
    Opinion filed March 27, 1916.
    Statement of the Case.
    Action by George L. Trafton, as guardian of Alfonso, Louise and Jennie Cadamartrie, plaintiff, against National Council, Knights and Ladies of Security, defendant, on a benefit certificate issued to Flora Cadamartrie. From a judgment in favor of plaintiff for $967.50, defendant brings error.
    This case in its general features and as to the question involved is similar to the case of Kraus v. National Council, Knights and Ladies of Security, ante, p. 345, and Neenan v. Same, 188 Ill. App. 490. Reference is made to the opinions in these eases for description of the character of the benefit certificate and the by-laws.
    The defense in this case was that the insured did not pay the assessment under the certificate for the month of July, 1913, before the last day of the month, and for that reason, under the by-laws, she became suspended, and that on August 26, 1913, when she paid the July and August assessments, she was not in good health, a condition necessary to reinstatement.
    It was proved that on August 28, 1913, the insured was suffering from a tumor of the uterus, with pressure symptoms which in the opinion of her physician, required the removal of the tumor. Upon his advice she was taken to a hospital and on August 30th an operation was performed removing the tumor and also the uterus, fallopian tubes and ovaries. The tumor was about the size of a fist. The doctor describes it as “quite a large tumor.” It is also not controverted that this tumor had been growing for a period of at least several months prior to this time. Immediately after the operation her heart began to fail, the doctor testifying, “there was a weak heart-muscle, the heart wasn’t strong enough to carry her along during the convalescence.” She died on September 2nd. There was testimony to the effect that she appeared to be in good health on August 26th.
    It was contended that the by-laws were not properly introduced ip evidence. They were certified under the hand of the national secretary, with the seal of the society affixed.
    Abstract of the Decision.
    1. Insurance, § 906

      —when evidence sufficient to establish that member of fraternal order not in good health at time of attempted reinstatement. In an action on a benefit insurance policy, evidence held to show that insured, who had failed to pay an assessment for one month and was thus automatically suspended under the rules of the order, was not in good health during the following month at the time of an attempted reinstatement by the payment of the delinquent assessment, and that she was accordingly not a member of such society in good standing at the time of her death.
    2. Insurance, § 906*—when evidence sufficient to sustain finding that member of beneficial order not in good health. Evidence that decedent was suffering from a tumor of the uterus, held to prove that she was not in good health.
    3. Insurance, § 807*—what constitutes good health within rules of fraternal society as to reinstatement. The words “good health” in the rules of a fraternal insurance society with reference to reinstatement of a member mean that a person is in a reasonably good state of health and free from any disease or illness that tends seriously or permanently to weaken or impair the constitution, and such words do not refer to the appearance of good health.
    4. Evidence, § 250*—when by-laws of fraternal society admissible in evidence. By-laws of a fraternal insurance society, certified under the hand of the national secretary and with the society’s seal affixed, were properly introduced in evidence, in compliance with Hurd’s Rev. St. ch. 51, sec. 15 (J. & A. f 5532).
    5. Insurance, § 807*—where acceptance of delinquent assessment does not operate to reinstate member of beneficial society in poor

      health. Where there Is evidence that the “financier” of a fraternal insurance society accepted an assessment which would operate to reinstate decedent in membership in such society providing she was in good health, but there is no evidence that such “financier” knew that she was not in good health, such acceptance did not operate to reinstate decedent, and there is no liability upon her benefit certificate in such society.

      It was also contended that the defendant waived the provision of the by-laws with reference to good health when the financier of the society accepted the assessment on August 26th.
    A. W. Fulton, for plaintiff in error.
    J. Marion Miller, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Charles M. Johnson, Defendant in Error, v. Clarence H. Morgan and Ira S. Ferguson, Plaintiffs in Error.
    Gen. No. 21,531.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John C. Wobk, Judge, presiding. Heard in this court at the October term. 1915.
    Reversed.
    Opinion filed March 27, 1916.
    Statement of the Case.
    Action by Charles M. Johnson, plaintiff, against Clarence H. Morgan and Ira S. Ferguson, defendants, for damages on account of defendants’ breach of' contract to convey land to plaintiff. From a judgment for $317.50 in favor of plaintiff, defendant Morgan brings error.
    Ferguson was not served with summons, and suit proceeded by trial by the court to judgment for $317.50 against Morgan, who seeks reversal. An order severing Ferguson and permitting Morgan to prosecute his writ of error alone was entered in the Appellate Court.
    By his statement of claim plaintiff averred that defendants made a contract with him to deliver and convey certain land in Washburn County, Wisconsin, for a consideration of $300 which plaintiff paid, but defendants breached this contract and have failed and refused to deliver and convey the land, to the damage of plaintiff?

      Plaintiff testified that he met Ferguson “and talked to him in regard to some lots at Long Lake in Wash-hum County, Wisconsin. ’ ’ This was the only evidence as to any contract. Plaintiff then introduced a warranty deed whereby defendants conveyed to plaintiff a number of lots in Washburn County, Wisconsin. The deed appeared to be in proper form and was duly delivered to plaintiff. Plaintiff then said that he sent the deed to be recorded to the registrar of deeds of Washburn County, Wisconsin, but it was returned with a letter from the registrar which said that the plat of the property mentioned in the deed had not been recorded.
    The lots conveyed by the warranty deed were described as in certain blocks in “Orielle Park, a subdivision,” etc. At the date of the delivery of the deed there was a subdivision, duly platted into blocks and lots, of that name. The lots mentioned in the warranty deed could be readily identified and located from this plat. It appeared that defendants supposed this plat had been recorded in the office of the registrar, but such was not the fact. It did appear that prior to this suit the tract called Orielle Park had been re-platted under another name, which latter plat had been recorded; that the blocks in this later plat were of the same size and numbered identically as the blocks of the Orielle Park plat, and that the lots mentioned in the deed could be identified and located on this later plat. A deed conveying to plaintiff these lots by more definite description in accordance with the later plat was offered for delivery to plaintiff provided he should withdraw his suit.
    Brown, Brown & Brown, for plaintiffs in error.
    Harris, Kagy & Vanier, for defendant in error.

      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.

Abstract of the Decision.

1. Vendor and purchaser, § 352 —when evidence insufficient to establish breach of contract to convey land. In a suit for damages on account of defendants’ breach of contract to convey land to plaintiff, where a deed appearing to be in proper form was executed and delivered to plaintiff, evidence held insufficient to establish a breach of the contract.

2. Vendor and purchaser, § 352*—when letter from registrar of deeds in State in which land located inadmissible. Letter from registrar of deeds in another State in which he said that the plat of the property mentioned in deed which w.as returned therewith, had not been recorded, held not to be competent evidence in an action for breach of contract to convey the land described in such deed.

3. Vendor and purchaser, § 352*—when unrecorded plat admissible in action for breach of contract to convey land. An unrecorded plat of a subdivision of land whereon lots alleged to have been conveyed to plaintiff could be identified, held competent evidence in suit for breach of contract to convey such lots and to have been improperly stricken from the record.


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    Thomas C. Dolan, Defendant in Error, v. Harry A. Loker, Plaintiff in Error.
    Gen. No. 21,588.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed March 27, 1916.
    Statement of the Case.
    Action by Thomas C. Dolan, plaintiff, against Harry A. Loker, defendant, for rent. From a judgment in favor of plaintiff, defendant brings error.
    There was evidence that on February 25,1913, Jacob C. Paquet was the owner of an apartment building in Chicago, and on that date entered into a written lease with the defendant for an apartment, the term beginning May 1, 1913, and extending until April 30, 1914, the rent to be $'42.50 per month. Subsequently, in April, 1913, Paquet sold the property to plaintiff, Dolan, and Loker’s lease was assigned to plaintiff. J. M. McDonald appeared to have been acting as collector for Paquet, and he collected some rents for a short time after plaintiff became the owner of the building. Defendant said that on June 14, 1913, by agreement with plaintiff his lease was canceled and a new lease entered into expiring September 30, 1913, and as evidence of this he produced what purported to be a duplicate of the lease upon which judgment was entered, across the face of which is written these words: “Canceled.June 14, 1913, J. M. McDonald, Agent.” It was admitted that McDonald wrote this. Defendant also produced a memorandum which he himself had written, which is to the effect that the apartment had been leased to the defendant from July 1 to September 30, 1913, and upon this memorandum McDonald wrote his name. Plaintiff testified that he could read and write and that he never authorized McDonald or anybody else to make the notation of cancellation across the lease, that he did not see the paper prepared by defendant, nor McDonald write his name thereon, and that he never directed him to sign it. McDonald’s authority to act in the matter was denied by plaintiff.
    M. M. Hart and H. J. Rosenberg, for plaintiff in error.
    Frank P. McGinn, for defendant in error.

      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.

Abstract of the Decision.

Principal and agent, § 8 —when evidence sufficient to sustain finding that agent had no authority to cancel lease. In an action for rent, evidence held sufficient to sustain a finding that plaintiff’s agent had no authority to cancel lease of premises in question.


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    William W. Paisley and Charles H. Walker, trading as Paisley & Walker, Defendants in Error, v. C. N. Michels, Plaintiff in Error.
    Gen. No. 21,687.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed March 27, 1916.
    Rehearing denied April 10, 1916.
    Statement of the Case.
    Action by William W. Paisley and Charles H. Walker, trading as Paisley & Walker, plaintiffs, against C. N. Michels, defendant, on a ¡judgment note. From a judgment by confession in favor of plaintiffs for $425, defendant brings error.
    Defendant entered his motion to stay execution and permit him to plead and defend. This motion was supported by affidavit. After hearing the motion the court denied it. Defendant contended that his motion should have been allowed because the affidavit showed a good and meritorious defense to the action on the note.
    The matter set up as a defense was that plaintiffs, while acting as agents of defendant, falsely and fraudulently made certain representations, and that defendant, being in ignorance of the facts and relying upon the statements of the plaintiffs, was thereby induced to trade a piece of real estate for a note secured by trust deed upon other real estate, and some stock in a store. It was said, first, that it was misrepresented that $2,000 had been paid upon a $12,000 incumbrance, which was a prior lien upon the real estate covered by the trust deed securing a $6,000 note which defendant alleged he was induced to accept, and that certain interest instalments had been paid upon this prior incumbrance. Another representation said to be fraudulent was that the stock in the store had a market value in excess of $125 per share, “whereas in truth and in fact * * * said shares of stock had no market value, but their value, if any, was entirely speculative and uncertain.” Defendant did not allege that the stock was not worth $125 per share, nor that it could not be sold for that amount. It was also alleged that there was a false representation that the $6,000 note and the trust deed securing it were “in legal form, ’ ’ whereas the note was not correctly described in the trust deed in that the note was made payable “November 1st after date,” and the trust deed recited that it was “payable November 1, 1918, after date.”
    Abstract of the Decision.
    1. Judgment, § 82

      —when affidavit supporting motion to open judgment hy confession insufficient. A motion to open a judgment entered by confession and to permit the defendant to plead should not be granted unless it satisfactorily appears to the court by affidavit that defendant has a good defense upon the merits, such affidavit to be construed most strongly against such defendant, and it is not sufficient to state facts from which, if proved on a trial, a defense might be inferred.

      F. C. Ellis and Jesse Wilcox, for plaintiff in error.
    P. H. Bishop, for defendants in error.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic pud 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. Judgment, § 82 —when allegation in affidavit supporting motion to open judgment hy confession on note insufficient. Where in an affidavit supporting a motion to open judgment by confession on a note, to stay execution and permit defendant to plead, defendant sets up that plaintiffs while acting as his agents falsely and fraudulently represented that $2,000 had been paid on a prior lien of $12,000 on real estate whereby he was induced to trade real estate belonging to him for a note secured by such other real estate, held that the value of the real estate not appearing, it made no difference with regard to the value of the note received by plaintiffs as to whether the first incumbrance was $10,000 or $12,000, or as to the amount of interest unpaid, and the affidavit was consequently insufficient.

3. Judgment, § 82*—when allegation in affidavit supporting motion to open up judgment hy confession on note insufficient as statement of defense. Where it was alleged, in an affidavit filed in support of defendant’s motion to open up a judgment on a note by confession, that stock traded to defendant by plaintiffs was fraudulently represented as having a market value in excess of $125, whereas, it had no market value, but its value, if it had any, was speculative and uncertain, it. not being alleged that it was worth less than $125, held such allegation was insufficient as a statement of defense.

4. Judgment, § 82*—when allegations in affidavit supporting motion to open up judgment hy confession on note insufficient. Where a note is made payable “November 1st after date” and the trust deed securing its payment recites that it is “payable November 1, 1918, after date,” such discrepancy is at most a clerical error and does not impair the value of the note, and allegations that it was fraudulently represented that the note and trust deed were in due form and that defendant is informed and believes that the note and trust deed might not be acceptable as security or collateral, are unavailing in an affidavit supporting a motion to open up a judgment against defendant by confession on such note.


text:
    Charles Brachas, Defendant in Error, v. Sabath & Weisskopf Company, Plaintiff in Error.
    Gen. No. 21,723.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed March 27, 1916.
    Statement of the Case.
    Action by Charles Brachas, plaintiff, against Sabath & Weisskopf Company, defendant, for $529. From a judgment in favor of plaintiff, defendant brings error.
    Plaintiff alleged that he had deposited $500 with defendant as security that Anton Lechowicz would turn over to defendant all collections made by him while employed by defendant; that when it was done, the deposit was to be returned to plaintiff with five per cent, interest; that subsequently Lechowicz left the employ of defendant, having turned over to it all moneys collected by him.
    Defendant in its affidavit of defense said that Lechowicz, employed as salesman and collector, made collections aggregating $190.75 which he failed to turn over to defendant, also that he was indebted to defendant for a balance on his merchandise and cash account, also for an item of expense incurred by defendant in verifying accounts among the trade, also for commissions advanced on sales where the accounts were not collected. The trial court struck from defendant’s affidavit the last three items just described and entered judgment against defendant for the difference between the amount of plaintiff’s claim, $529, and $190.75, the collections said not to have been turned in, which is $338.25. The court reserved jurisdiction of the balance of plaintiff’s claim for future determination. The condition of the deposit of the $500 was stated in the written agreement of the parties to be to secure defendant “against any loss from dishonesty, misconduct or neglect of business” of Lechowicz.
    Abstract of the Decision.
    1. Indemnity, § 11—what is extent of liability on contract indemnifying against loss from dishonesty, misconduct or neglect of business by salesman. The condition of a deposit of a specified sum, stated to be the securing of defendant “against any loss from dishonesty, misconduct or neglect of business” of defendant’s salesman has reference to any indebtedness due defendant or loss sustained through dishonesty, neglect or misconduct of such salesman including loss due to failure to turn over collections, and 'does not include balance against such salesman on his merchandise and cash account, an item of expense incurred by defendant in verifying accounts among the trade or commissions on sales where accounts were not collected.
    2. Municipal Court of Chicago, § 13*—when affidavit of merits sufficient. In an action in the Municipal Court of Chicago to recover a deposit stated to be for the security of. “defendant against any loss from dishonesty, misconduct or neglect of business” of defendant’s salesman, an allegation in defendant’s affidavit of merits of such salesman’s failure to turn over collections, held sufficient as it placed" in issue the allegation "of plaintiff’s statement of claim that such salesman, when he left defendant’s employ, had turned over all moneys collected by him.
    Sabath, Stafford & Sabath, for plaintiff in error.
    Benjamin B. Morris, for defendant in error.

      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:
    Carrie O. Meacham et al., Trustees, Defendants in Error, v. Harry H. Lobdell, Trustee, Plaintiff in Error.
    Gen. No. 21,811.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed March 27, 1916.
    Statement of the Case.
    Action by Carrie O. Meacham, Philo A. Otis and Seymour Morris as trustees, plaintiffs, against Harry H. Lobdell, trustee for Samuel Pitluk and Leo J. Lieberman, copartners, trading as La Salle Street Shoe Store, for pro rata share, by reason of a lease, in moneys recovered by defendant from the sale of assets of such copartners. From a judgment for plaintiffs for $1,754.22, defendant brings error.
    Pitluk and Lieberman were lessees of a store under a written lease from plaintiffs for a term beginning May 1, 1912, and ending April 30,1917, at a monthly rental of $500 payable on the first day of each month during the term. The lessees also agreed to pay lessors for electric light used. In April, 1913, the lessees made an assignment of their property to Lobdell, as trustee, to be converted into money to be used in paying their creditors. The rent of the store due April 1, 1913, was not paid. On April 10th the trustee took possession of the premises and occupied them until April 18th. Plaintiffs claimed that under the terms of the lease, the lessees being in default not only as to rent but on other covenants, the entire rental for the balance of the leased term became due and that plaintiffs were creditors of Pitluk and Lieberman to that amount, that is, from April 1, 1913, to April 30, 1917, at $500 a month, which is $24,500, and to this should be added a bill of $332.10 for electric light, making a total of $24,832.10; and from this should be deducted the-amount paid by the trustee while he was in possession, namely, $124.51, leaving a balance due plaintiffs of $24,707.59. Based upon the allowance of plaintiffs’ claim for this amount, judgment was entered for their pro rata share of the moneys in the hands of the trustee.
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 24

      —when matters which should have teen set up in affidavit of merits not reviewed. Under the rules of the Chicago Municipal Court, defendant, who was trustee in an assignment for the benefit of the creditors of a copartnership, should have set up the defense that plaintiffs were not parties or beneficiaries of the assignment in the affidavit of merits filed in such suit, and he will be heard only as to those matters of defense specifically set out in his affidavit.
    2. Municipal Court of Chicago, § 29*—when existence of copies of agreement presumed. Where, in a suit in the Municipal Court of Chicago against the trustee of an assignment for the benefit of a copartnership’s creditors, it was contended by defendant that plaintiffs did not sign the agreement of assignment, and it appeared that the document in evidence was signed by only one creditor but that eight other creditors shared in the disposition of the proceeds of the money in the hands of the trustee, and there was no evidence that the copy of the agreement in the record was the only copy or that plaintiffs had not signed another copy, held a presumption was raised that there must have been another or other copies of the agreement, one of which may have been signed by plaintiffs.
    '3. Municipal Coubt of Chicago, § 18a*—when verdict correct in form. Fofm of verdict in the files held correct, even though it may have been informal, in view of sufficiency of recital in the record as to the verdict returned.

      John C. Farwell, for plaintiff in error.
    Edward A. Dicker and Arthur A. Basse, for defendants in error.

      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.

4. Municipal Court op Chicago, § 13 —when motion to amend affidavit of defense properly denied. Motion of defendant to amend his affidavit of defense was properly denied when made several weeks after the conclusion of the trial and when no amendment was presented to the court at the time the motion was made.

5. Landlord and tenant, § 75*—when provision of lease for payment of entire amount of rental as liquidated damages upon assignment for benefit of creditors valid. Where under provisions of a lease it was provided that if lessees should make assignment for benefit of creditors, the lessees should at once pay to the lessors “a sum of money equal to the entire amount of rent by this lease provided to be paid * * * as the liquidated damages of the lessors,” held that the claim of lessors for such entire amount of rental as liquidated damages was justified under the terms of the lease as against a trustee of the lessees for the benefit of their creditors.


text:
    The People of the State of Illinois, Defendant in Error, v. William De Joy, Plaintiff in Error.
    Gen. No. 21,814.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed March 27, 1916.
    Statement of the Case.
    Prosecution "by the People of the State of Illinois, plaintiff, against William De Joy, defendant, for pandering. From a judgment of guilty, defendant brings error.
    Reynolds, Macy & Clarke, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

      Abstract of the Decision.
    1. Criminal law, § 409

      —when question of sufficiency of information may not he raised on appeal. Where defendant’s attorney goes to trial without objection to the information and it is suggested that the information is insufficient in that it charges several offenses in the alternative and does not describe the place of the offense, and such defects do not go to the question of guilt or innocence, it is too late to object to them in the Appellate Court.
    2. Prostitution, § 3a*—when information for pandering charges only one offense. The words “inducing” and “persuading” in an information for pandering are practically synonymous and charge only one offense. •
    3. Prostitution, § 3a*—what is sufficient description of place in information for pandering. A charge that the offense of pandering happened in the City of Chicago, at 671 Milwaukee avenue, is sufficient description of the place of the offense.
    4. Criminal law, § 497*—when execution of written jury toaiver presumed on appeal. Where the record in a criminal case recites the execution of a jury waiver in writing it imports verity in that regard, and a waiver in the record is not impaired as to its integrity because defendant signed by making his mark.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Joseph Frankel et al., Appellees, v. Sol C. Salzenstein, Appellant.
    Gen. No. 21,946.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed March 27, 1916.
    Rehearing denied April 10, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Joseph Frankel and others, plaintiffs, against Sol C. Salzenstein, defendant for excess of advances, over amount due defendant for commissions which he was alleged to be obligated to repay under the contract of employment. From a judgment in favor of plaintiffs, defendant appeals.
    The contract commenced to run March 9, 1909, and ended February 28, 1910. It was claimed on behalf of defendant that plaintiffs wrongfully discharged him before the end-of the contract, but there was evidence to the effect that at a meeting between defendant and plaintiffs in December, 1909, or possibly January, 1910, defendant proposed “to quit,” to which plaintiffs agreed.
    David R. Levy and Douglas C. Gregg, for appellant.
    Silver, Isaacs, Silver & Woley, for appellees; Martin J. Isaacs and James D. Woley, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 50*—when evidence sufficient to sustain finding that servant not wrongfully discharged. In an action against a traveling salesman for the excess of advances over commissions earned, evidence held sufficient to establish that defendant was not wrongfully discharged, and that he quit under an agreement.

2. Municipal Court of Chicago, § 13*—when sufficiency of statement of claim admitted. Upon the question of competency of evidence to support the judgment in an action for the repayment of the excess of plaintiffs’ advances over commissions due defendant as a salesman, where plaintiffs’ statement of claim alleges advances to defendant which defendant’s affidavit of merits admit, and further states the amount of orders upon which defendant is entitled to commissions, and where defendant did not avail himself of the provisions of rules of the Chicago Municipal Court whereby he could have questioned the correctness of such statement or be excused for cause from a specific answer, held that the correctness of plaintiffs’ statement of the account was admitted and it was unnecessary to make detailed proof thereof.