author: Mr. Justice O’Connor Mr. Presiding Justice Thomson

text:
    Lillian W. Rehthaler, Appellee, v. Crane Company, Appellant.
    Gen. No. 24,804.
    1. Negligence, $ 196

      —when cause of injury is question of fact. As a general rule the question whether an injury is the result of plaintiff’s negligence or defendant’s negligence or of their combined negligence is one of fact for the jury, and only becomes a question of law when the evidence clearly shows that the accident resulted, in part at least, from the injured person’s negligence.
    2. Negligence, $ 196*—what is effect of difference of opinion as to cause of injury. -If there he any difference of opinion as to whether an injury resulted from the negligence of plaintiff or the negligence of defendant, so that reasonable minds may arrive at different conclusions, the question is one of fact for the jury.
    3. Appeal and ebbob, $ 1408*—what evidence will sustain verdict. In determining whether the verdict should be set aside on the ground that defendant was not guilty of the negligence charged, the rule is that if there is in the record any evidence from which, if it stood alone, the jury might, without acting unreasonably in the eye of the law, find that the material averments of the declaration have been proved, the case should go to the jury.
    4. Roads and bbidges, § 240*—when question as to cause of injury is for jury. In an action to recover for personal injuries received through plaintiff being struck by iron pipes protruding from ,a wagon driven through the street by defendant’s employee, where the evidence shows that the pipes protruded 8 or 10 feet beyond the rear of the wagon, that the plaintiff was unable to see the nature of the load, as the wagon was driven directly towards her until it made the turn at the cross street at which the accident occurred, that in making such turn the pipes were caused to swing and that plaintiff, was a sufficient distance from the wagon not to have been struck except for the character of the load, it was held that the question as to whether plaintiff’s or defendant’s negligence or the negligence of both caused the injury was for the jury.
    5. Damages, § 188

      —when evidence is sufficient to sustain finding as to cause of injury. In an action to ■ recover for personal injuries received through being struck by iron pipes, which were being hauled in a- wagon driven by defendant’s employee, it appearing that subsequently cancer developed at the place of the injury, evidence examined and held sufficient to warrant a finding that there was a causal connection between the blow and the cancer.
    Thomson, P. J., dissenting.
    6. Damages, § 200*—what instructions are properly refused. In an action to recover for personal injuries received through being struck by iron pipes being hauled in a wagon driven by defendant's employee, where it appeared that cancer subsequently developed at the place where plaintiff received the blow, it is not error to refuse an instruction requested by defendant to the effect that before plaintiff could recover on the ground that she was suffering from cancer as a result of the injury, the driver must have foreseen that if she was so struck by the pipes, cancer might reasonably be expected to develop.
    7. Instructions, § 126*—what instructions are erroneous. It is not error to refuse instructions which are abstract in form.
    8. Roads and bridges, § 241*—when instruction as to duty of driver is erroneous. In an action to recover for personal injuries received through being struck by iron pipes protruding beyond the rear -of the wagon in which they were being hauled, it is not error to refuse defendant’s requested instruction that it was the driver’s duty to keep a lookout in front of him, since, in view of the unusual character of the load, this might, not be his sole duty.
    9. Evidence, § 446*—what is proper question on examination of expert. Where, in an action to recover for personal injuries, in cross-examination of a medical expert called by plaintiff, defendant’s counsel asks him whether he took the family history into consideration, it is not error to permit plaintiff to bring out, on redirect, what the family history was.

      10. Witnesses, § 209

      —what is extent of cross-examination. It is not error to sustain an objection, on the cross-examination of a witness, to a question relating to which he was not permitted, on objection of the same party, to testify as to on direct.
    Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed May 5, 1920.
    Rehearing denied May 17, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    Arden, Latham & Young, for appellant.
    George Pfirshing, for appellee.

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

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against defendant to recover damaged for personal injuries. There was a verdict and judgment in her favor for $4,000, to reverse which defendant prosecutes this appeal.

The record discloses that plaintiff, a married woman about 35 years old, was struck on the breast by some iron pipes, which were being hauled in one of appellant’s wagons, and which extended 8 or 10 feet beyond the rear end of the wagon. Later cancer developed at the place of the injury which necessitated an amputation of the left breast, and at the time of the trial it was certain that plaintiff would die from the cancel-.

Defendant’s theory of the case is that it was not guilty of any negligence, and that there was no connection between the slight injury received by plaintiff by being struck by the iron pipes and the cancer which later developed.

Prior to the injury plaintiff was in good health, the mother of three children, and devoted a part of her time to assisting her husband in the conduct of his business. He was a dealer in orthopedic supplies, and had his office in the Kesner Building at Madison street and Wabash avenue in Chicago. About 11:30 o’clock on the morning of the accident, February 13,1914, she left her husband’s office to go to lunch, and returning she walked south on the east sidewalk of Wabash avenue. Just as she was crossing Washington street on the east crosswalk, a one-horse wagon belonging to defendant was being driven north in the east street car track of Wabash avenue. This wagon was loaded with iron pipes, about 2 inches in diameter, which extended 8 or 10 feet beyond the rear end of the wagon. There are two street car tracks on Wabash avenue, south of Washington street. The east or northbound track turns east into Washington street. The horse and wagon turned east into Washington street. Plaintiff at that "time was in the roadway on the east crosswalk of Washington street and stopped to permit the horse and wagon to pass in front of her. The horse was being driven at a walk. As the wagon turned east, the driver swung his horse to the south to get out of the street car track. As he did so, the pipes extending from the rear end of the wagon swung to the north and struck plaintiff in the left breast knocking her down. She did not see the pipes in the wagon until it was too late to avoid being struck although she testified she was 8 or 10 feet north of the wagon when it turned east. She was assisted to her feet by Dr. Steele and the crossing policeman. She told them that she was not much hurt. Her waist was tom where she was struck and was' somewhat soiled. Dr. Steele gave her his card and stated that if she later found that she was injured more than she then thought she might notify him. She proceeded south to the next comer to the building where her husband kept his office. There she met a Mr. Bleadon who brought her a chair that she might sit down as she seemed to be somewhat stunned. Shortly after he went with her to Dr. Steele’s office, which was in the Columbus Memorial Building, a distance of about two blocks. Dr. Steele examined her and found a red mark on her left breast where she had been struck. The skin was not torn and there was no bleeding. About 5 days later she again visited Dr. Steele at which time the redness on her breast had disappeared, and at that time the spot was black and blue and was about 3 inches in diameter. Plaintiff testified that from the time of the injury until she visited Dr. Steele the second time she had a dull pain where she was struck, sometimes a burning sensation, and other times a sharp pain. Later on the bruise disappeared. In May following she and her family moved to Battle Creek, Michigan, and some time in June she discovered a lump about the size of a hazelnut on her left breast, about where the bruise had been. July following she consulted Dr. Harris at the Battle Creek Sanitarium who advised an immediate operation. Shortly after Dr. Harris went to Europe and after his return, January 8,1915, she again called on him. He again advised an operation and on the 20th of the same month the entire left breast was removed. The lump in her breast was a cancer. For a time afterwards she seemed to be improved in health. Later on another lump developed. She was again examined by Dr. Harris and several X-ray pictures taken. There is now another cancer which all the doctors testified would steadily grow worse and ultimately cause her death. Plaintiff, Dr. Steele and the crossing policeman testified, on behalf of plaintiff, as to how the accident occurred. The driver of the wagon did not testify. In fact the testimony shows that the driver did not know that any one had been injured and the defendant company was never able to ascertain which one of their drivers was in charge of the wagon.

Defendant contends that plaintiff was guilty of the negligence which caused the injury and that defendant was not guilty of any negligence and, therefore, the judgment is wrong and should be reversed.

As a general proposition the question as to whether an injury is the result of the negligence of plaintiff or defendant, or of the combined negligenceN of both, is one of fact for the jury, and only becomes one of law when the evidence clearly shows that the accident resulted, in part at least, from the negligence of the injured party. If there be any difference of opinion 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; Louthan v. Chicago City Ry. Co., 198 Ill. App. 329. In determining whether the verdict should be set aside on the ground that defendant was not guilty of the negligence charged, the rule is that if there is in the record any evidence from which, if it stood alone, the jury might, without acting unreasonably in the eye of the law, find that the material averments of the declaration have been proved, the case should go to the jury. Libby, McNeill & Libby v. Cook, 222 Ill. 206. Under the evidence here we think the case was a proper one for the jury to consider/ Here the undisputed evidence is that defendant was driving a horse and wagon with an unusual load of iron pipes which protruded 8 or 10- feet beyond the rear@ end of the wagon. It was being driven almost directly towards plaintiff until it turned east into Washington street. As plaintiff was walking south just prior to the accident, the wagon was coming north in Wabash avenue, and it would be difficult - for her to see the nature of the load on the wagon. Of course, the driver of the wagon knew that the load was an unusual one, and that the pipes extending beyond the end of the wagon were dangerous to persons on the street. The evidence tends to show that plaintiff stopped a sufficient distance from the wagon to permit it to pass and would have received no injury except for the unusual load which she did not see until it was too late to get out of the way of the swinging pipes. The evidence also tends to show that turning the horse out of the street car tracks in Washington street caused the pipes to swing to the north. In these circumstances we think the case was a proper one for the consideration of the jury. A case somewhat analogous and which is cited by both sides is Gielens v. Fidelity Transfer & Storage Co., 63 Wash. 383, 2 N. C. C. A. 544.

It is next insisted that the verdict and judgment are wrong in that the evidence shows that there is no causal connection between the blow which plaintiff received on the breast and the cancer from which she later suffered ; that a blow cannot cause cancer. There is no dispute in the evidence but that plaintiff, prior to the accident, was a strong, healthy woman, and that she was struck on the breast by the iron pipes February 13, 1914, and knocked to the ground; that she was assisted to the sidewalk and appeared not to be greatly injured; that she went alone to her husband’s place of business about a block away; that about an hour after-wards she went with the witness Bleadon to Dr. Steele’s office which was a distance of two blocks; that she was then examined by Dr. Steele who found a red spot on her breast; that he gave her some treatment and that she went away, and about 5 days later again called on Dr. Steele; that he again- examined her breast and found that the red spot had disappeared but that her breast was then black and blue, the spot being about 3 inches in diameter; that afterwards the mark of the injury seemed to disappear from her breast; that in June following she discovered a small lump about the size of a hazelnut in her left breast; that shortly after-wards she consulted Dr. Harris at Battle Creek and he advised an immediate operation and diagnosed her ailment as cancer; that the following January the entire left breast was removed; that subsequently another lump developed and at the time of the trial she was suffering from cancer which would ultimately result in her death. Plaintiff testified that from the time she received the blow she suffered pain, sometimes a dull pain and other times a sharp pain and a burning sensation in her breast up until the time of the trial. Dr. Harris, for the plaintiff, testified that he was a graduate of the American Medical Missionary College, which was later merged with the University of Illinois, also a graduate of the Boyal College of Edinburgh, Scotland; that he was a Fellow of the Boyal College of Surgeons of Edinburgh, and later a Fellow of the American College of Surgeons; that since 1910 he was second in rank in the surgical department at the Battle Creek Sanitarium; that he examined plaintiff in July 1914, and diagnosed the lump in her breast as the beginning of cancer and advised an immediate operation; that shortly afterwards he went to Europe and returned the following January, and that Dr. Kellogg, the chief surgeon a.t Battle Creek Sanitarium, operated on plaintiff; that afterwards he treated plaintiff, and saw her December 27, 1917; that he ag;ain examined her and found that the bulge in her chest had greatly increased since his previous examination. He gave other testimony detailing plaintiff’s condition which shows that her case is hopeless. He further testified that it was impossible to definitely prove the cause of cancer; that nobody knows; that there is a vast amount of money spent all over the world to ascertain the cause but that every one is still in the dark; that from his own experience he knows that injuries had favored the growth of cancer; that 10 per cent of cancers are caused by traumatism or injury; that some surgeons, whom he considers good authority, estimate that as high as 14 per cent of cancers are so caused; that at first cancer is a local disease and later constitutional. On cross-examination he testified that when he first examined plaintiff she had no pain but there was a burning sensation in her breast; that her family history was given him before the operation; that there is a great difference of opinion among doctors concerning the relation of trauma to cancer, some suggesting that there is a relation between them only if there is long-continued irritations; that others are of the opinion that trauma alone may cause cancer, especially in the breasts of women; that a single blow can produce cancer cells, and that in addition to his own experience he relied, for authority, on Keene’s Surgery; that from 86 to 90 per cent of cancers of the breast develop without any history of injury at all; that in a majority of the remaining 10 to 14 per cent there is a history of a single intensive injury; that there was no cancer, tumor or tuberculosis in the family history of plaintiff. Dr. Steele, who was an occurrence witness for plaintiff, was called by defendant and testified that in his opinion there was no marked relation between the lump found by Dr. Harris on plaintiff’s breast and the blow she received from the pipes, but that he would not say it was impossible that there was some causal connection between the blow and the lump; that he would not say positively whether the blow caused the cancer. In answer to a question by the court, he said that if a person received a blow which caused a long-continued irritation it might produce a cancer. Dr. Sevan, an eminent surgeon of Chicago, was called by defendant and testified that he was chief surgeon at the Presbyterian Hospital, professor of surgery at Bush Medical College, and had been vice president of the American Society for the Control of Cancer; that cancer attacked persons indiscriminately, the healthy as well as the unhealthy; that it was his opinion, and the opinion of others who had specially studied the subject, that a single blow never causes cancer; that when a patient is suffering from cancer and attributes it to a blow, the. blow is a mere coincidence; that a cancer the size of a hazelnut in a woman’s breast might develop in 4 or 5 months, or it might take more than a year; that in his opinion there is no relation between a blow and cancer. Dr. Davis, for defendant, testified that he was professor of surgery in the College of Physicians and Surgeons, Chicago, and also had been connected as surgeon with other institutions; that in his opinion a single blow cannot cause cancer. Dr. Wood of New York, a specialist in the study of cancer, for about 20 years, testified that he had examined all cases of cancer, about 200 or 300 per year, coming to St. Luke’s Hospital, New York, with which he was connected; that the real cause of cancer is unknown; that medical men generally, have been trying to discover what causes cancer and how to cure it; that there are many theories as to the cause; that cancer is a growth of cells- on the body which cannot be stopped, and which continues growing until it kills the person; that in his opinion cancer could not be produced by a blow or a single trauma; that in many cases in which a blow was said to have produced a cancer investigation showed that the blow was received only a few weeks before the patient discovered the cancer which was of such size and extent that it -must have been present long before the blow was received; that in such cases, it was his opinion that the bldw merely calls the attention of the patient to the cancer and does' not cause it. On cross-examination he testified that the medical profession was as much in the dark to-day concerning the cause of cancer as they were 100 years ago. He further testified that it was not impossible that a blow or injury received by a woman 5 or 6 months before a small cancer the size of a hazelnut was discovered1 had something to do with it especially if the act caused some irritation-—-he could not say positively that it did not. He further explained that when he said it is possible that this cancer came from trauma it was on the theory that as the cause of cancer is unknown-, anything may possibly have some relation to it, Drs. Bevan, Davis and Wood, in response to. a hypothetical question covering the facts in the instant case, all testified that, in their opinion, there was no causal connection between the blow and the cancer.

In addition to the general verdict the jury answered three special interrogatories submitted at the request of defendant, and the third of which was as follows: “Q. Was the cancer which developed in plaintiff’s breast caused by the blow she received on February 13, 1914? A. Yes.” Counsel for defendant argue that in the light of the evidence, the answer of the jury to the special interrogatory and the general verdict in favor of plaintiff is at most but a mere guess or conjecture; that verdicts cannot be predicated on either and, therefore, in this case the verdict is erroneous and should be set aside and the judgment reversed. In support of its contention that there is no causal relation between the blow and the cancer, defendant cites the case of Bishop v. Chicago Telephone Co., 210 Ill. App. 347. In that case, the deceased, who was working for defendant upon a telephone pole, fell and was injured, and it was claimed, by reason of the spikes which were in the pole being insecure. The accident occurred June 11, 1911, and deceased died June 28, 1914. Plaintiff’s claim was that deceased died of cancer traceable to the injury received when deceased fell. There a doctor testified for plaintiff that the medical profession did not know the cause of cancer; that he had treated deceased for syphilis, which was discovered by the Wassermann test. Another of plaintiff’s witnesses testified that “he made an autopsy on deceased body; that he found a surgeon’s incision on the left breast, which had healed, also an enlargement of the left testicle and of the heart, also chronic inflammation of the inner lining of the arteries of long stand- . ing; both lungs had little hard masses, from the size of a pea to the size of a walnut; that there were a dozen of them in the liver; the kidneys were enlarged and showed numerous scars on the outer surfaces ;• in his opinion death was caused by chronic myocarditis or changes in the arteries called endocarditis; that endocarditis is an inflammation of the lining of the arteries and may be produced by alcoholism, syphilis or rheumatism; the heart muscle was degenerated, partly from age, partly from chronic diseases; there was no evidence of external violence except of a surgical character, nor of a fall or accident.” Another doctor called by plaintiff testified that he had treated the deceased during his lifetime, for a venereal disease; that he removed the cancerous breast. Other medical witnesses testified that they did not know the cause of cancer. Dr. Holmes testified that he never heard of a cancer of the breast in a male caused by trauma. Dr. Small testified that he never knew of a case of cancer caused by trauma. The court continuing said: ‘ ‘ Aside from all this medical testimony there is much other testimony, including letters of deceased and his wife to some of the employees of defendant, which when considered with the medical testimony make it clear, we think, that no injury sustained by the deceased while working on defendant’s telephone pole June 11, 1911, had anything whatever to do with the ailments which resulted in his death.” The court further said: “Moreover, the overpowering weight of the evidence demonstrates that the spike from which it is alleged deceased fell was not in a condition of disrepair.” Furthermore, the court held it was significant that no claim was made for damages at any time by the deceased during his lifetime. The first notice of the claim defendant received was the summons in the suit. The court held that the verdict of the jury was wrong and reversed the judgment with a finding of fact. From what we have said about that case we think it clearly apparent that deceased died from causes other than cancer.

Chicago Union Traction Co. v. May, 221 Ill. 530, was an action for personal injuries claimed to have been suffered by reason of plaintiff being thrown with great force and violence against the side of a street car which she was in the act of boarding. It was contended that many of plaintiff’s ailments, and for which she claimed damages, were not the result of the accident. About 2 years after the accident plaintiff underwent a surgical operation in which an ovarian cyst was removed. Other pelvic organs of plaintiff were diseased. It was contended that these pelvic disorders were not the result of the accident. The court said (p. 535): “The physician who testified for appellee stated that the cause of ovarian cysts was unknown, and they were unable to state that the conditions found in appellee’s ovaries, Fallopian tubes and womb were the result of an external injury. Dr. Henrotin said: ‘I cannot take it for granted that trauma forms any portion or element in the original or • development of cysts,—of ovarian cysts.’ And Dr. Kolischer said: ‘If it be true (which was the case with the cyst removed at the first operation) that the condition of the cyst which was operated upon was dark-colored, then I can imagine that an injury led to a hemorrhage into the contents of the cyst. ’ And Dr. Moore, who was Mrs. May’s regular physician, and who was called the second day after the accident, said: ‘I do not know whether she had any condition of cystic tumor prior to May 7,1901. This condition may have been born with her. It is very frequently true that there are congenital conditions of that kind, and that they come into girlhood and from girlhood into womanhood, and that they may progress many years, in fact, before the condition becomes such as to require the attention of the expert and surgeon. They may go through life and never require it. ’ ” The court continuing said that the evidence showed that prior to the accident Mrs. May was a strong and healthy woman; that immediately after the injury she bad serious pains in her head, back, left leg, and in the region of the abdomen; that her genital organs soon became diseased. Continuing, the court said: “The physicians who treated and operated upon her did not say that the conditions they found when they operated were not the result of an external injury, hut, at most, said they could not say they were the result of such injury. One sáid he could imagine they were. We think it was a correct practice for the .court to permit appellee to prove the condition of her health at and prior to the time she was injured, and then to follow up that proof by showing her physical condition from the time of her injury down to the time of the trial, and to submit the question of the cause of her then physical condition, as a question of fact, to the jury under proper instructions.” There the jury were instructed that the burden was upon the plaintiff to prove that the disabilities from which she suffered were the result of the accident, and they were told that they had no right to guess or conjecture that any ailment complained of by plaintiff was the result of the accident. The court held this instruction proper and said: “If, therefore, the testimony of the plaintiff be taken as true, together with all legitimate inferences that may be drawn therefrom,—i. e., that the appellee was in good health prior to the injury; that she thereafter was in poor health; that she suffered pain in her head, back and left leg and lower part of the abdomen, and her genital organs became diseased, * * * that she may have had ovaries cysts from girlhood and suffered no inconvenience therefrom; that within a short time after the injury it was found that she did have ovarian cysts and fibroid tumors, * * * might not the jury, from the admitted facts, have legitimately drawn the conclusion that a pre-disposition to those conditions existed in appellee prior to the injury but from which she suffered no inconvenience, and that such pre-existing condition, .as a result of such injury, was so aggravated as to make what was a harmless condition prior to the injury a distressingly painful one after the injury?’’ In that case it was held that although the cause of ovarian cysts was unknown and although the doctor testified that he could not take it for granted that trauma had anything to do with the formation of the cyst, and another doctor testified he could imagine some connection between the injury and the formation of the cyst, this evidence together with the fact that plaintiff was a strong, healthy woman prior to the injury, and was diseased shortly thereafter, was sufficient to warrant a submission of the case to the jury under proper instructions, for their determination as to whether they might legitimately find from the testimony that the cyst resulted from the accident. In the instant case we think the evidence on behalf of plaintiff is much stronger than the evidence in the May case. Here one of the doctors testified that about 10 per cent of cancers occurring in women’s breasts were the result of trauma. They all testified that they did not know the cause of cancer. The other doctors testified that cancer might be caused by trauma. The evidence also shows that prior to the injury plaintiff was a strong, healthy woman; that she suffered a burning sensation and pain in her breast from the time she received the blow; that 2 or 3 months afterwards she was -afflicted with cancer in the breast and her health was much impaired. The jury were also told that'they had no right to guess or conjecture that the cancer was the result of the blow, but before plaintiff could recover the jury must believe from a preponderance of the evidence that the cancer did result from the blow received. Upon a consideration of all of the evidence in this case we think the jury might reasonably find as they did, viz., that the blow on the breast caused the cancer.

In Shaw v. Chicago, R. I. & P. Ry. Co., 173 Ill. App. 107, which was an action to recover damages for personal injuries, it was contended that a cancerous lump in plaintiff’s left breast did not result from the injuries received. In that case plaintiff was a passenger of defendant railroad company. The wheels of the tender left the track and plaintiff was thrown forward, her breast striking ag-ainst the seat in front of her. Prior thereto she was a strong, healthy woman. After the accident she returned to her home and remained in bed for about 2 weeks. She suffered pain. At the time of the trial, 3 years afterwards, she weighed more than 100 pounds less than she did at the time of the accident. She suffered with what was called a cancerous lump in the left breast. The court held that the question whether the injuries suffered were the result of the accident was a proper one for the jury.-

Complaint is also made to the refusal of the court to give an instruction tendered by defendant. By this instruction it was sought to tell the jury that defendant could not be held liable unless they found from the greater weight of the evidence that it was guilty of the negligence charged, and ‘ ‘ if you should find for the plaintiff on the question of negligence, still the Crane Company is liable only for the natural and probable consequences of the negligence proved, and the consequences must be such, in the light of the attending circumstances, that an ordinarily prudent man ought reasonably to have foreseen might probably occur as the result of such negligence.” We do not know what the quoted part of the instruction means. It was certainly confusing and probably would be misleading and was, therefore, refused. Counsel has made no application of it to this case. As we understand it, it is to the effect that before plaintiff could recover in this case on the ground that she was suffering from cancer as a result of the injury, the driver of the horse must have reasonably foreseen that if the pipes struck plaintiff in the breast, a cancer might reasonably be expected to develbp. Such an instruction, of course, should not have been given. It is also said that the court erred in refusing to give for defendant its tendered instructions Nos. 3 and 4. Both of these instructions were abstract in form and we have often held it is never error to refuse such instructions. However, they are both wrong. By them it is sought to tell the jury that it was the duty of the driver of the wagon to keep a lookout in front of him. This might not be his sole duty under the circumstances, since he had an unusual load in the wagon.

Complaint is further made that the court permitted Dr. Harris to testify to the family history of plaintiff and in giving his opinion based partly on such history. On cross-examination of this witness, who was called by plaintiff, he was asked by counsel for defendant whether he took into consideration the family history, and on redirect it was brought out what the family history was. We think there was no error in this. While this witness was testifying he said he based his opinion partly on his own experience and partly on Keene’s Surgery. He was then asked on direct examination: “Do you base your opinion also that ten to fourteen per cent of carcinoma cases could be traced to a blow from a traumatic origin from that work?” To this defendant objected and was sustained. On cross-examination the doctor’s attention was called to a book known as Keene’s Surgery. To this objection was sustained on the ground that when the plaintiff’s counsel asked concerning it, objection was made and sustained. There was no serious error in this ruling. Moreover, we think the excerpt from that work tends to corroborate the doctor’s testimony that there was some causal relation between trauma and cancer.

We have considered all the points made by counsel for defendant and are of the opinion that none of them would warrant a reversal of the judgment.

The judgment of the superior court of Cook county is affirmed.

Affirmed.

Mr. Justice Taylor concurs.

Mr. Presiding Justice Thomson

dissenting:

I am unable to concur in the foregoing opinion. The burden was upon the plaintiff to prove by a preponderance of the evidence that the cancerous condition from which she suffered was the result of the injury complained of. In my opinion she clearly failed in this. She cannot recover on a guess or conjecture that the injury may have caused the cancer. But, before a verdict in her favor should be allowed to stand it should be supported by evidence tending to prove that it in fact ,did cause it. Chicago Union Traction Co. v. Fortier, 205 Ill. 305; Albaugh-Dover Co. v. Industrial Board of Illinois, 278 Ill.179.

The precise question involved in the case at bar was recently before this court in Bishop v. Chicago Telephone Co., 210 Ill. App. 347, which.is referred to in the majority opinion. In that case the plaintiff’s intestate was alleged to have been injured through defendant’s negligence, having received a blow on the breast, following which a cancer developed from the effects of which he died. While the evidence in that case showed that the deceased had been suffering from other diseases which may have contributed to his death, as the majority opinion points out, a judgment recovered by the plaintiff was reversed by this court with a finding of fact to the effect, in part, that there was no causal connection between the injuries suffered by the plaintiff’s intestate and his death by cancer. In that case, the medical evidence tending to support the plaintiff’s theory was about as we find it in the case at bar, but the evidence for the defense here is much stronger than the evidence supporting the defendant in the case referred to. But, in that case this court said that the overwhelming weight of the evidence was against the claim that the cancer from which the deceased suffered and died was caused by the traumatic injury sustained by him. In my opinion there was even more reason for that conclusion in the case at bar,

As to the cases of Shaw v. Chicago, R. I. & P. Ry. Co., 173 Ill. App. 107, and Chicago Union Traction Co. v. May, 221 Ill. 530, relied upon by the plaintiff and referred to in the majority opinion, it does not appear that there was evidence in either case to the effect that there was no relation between the trauma and any of the conditions complained of. In the case at bar, however, my opinion is that the greater weight of the evidence is clearly to the effect that there was no relation between the trauma and the cancer which was the single physical ailment complained of.


source: Caselaw Access Project

author: Mr. Presiding Justice Matchett

license: Public Domain

text:
    Donald W. Anderson by August W. Anderson, Appellee, v. Peter J. Karstens, Appellant.
    Gen. No. 25,018.
    1. Trial, § 195

      —-when instruction to find for party witl he denied. Where, at the close of the evidence, defendant moves for an instruction to the jury to find the issues for defendant, the motion should be denied if there is any evidence in the record from which the jury could reasonably return a verdict for plaintiff; otherwise it should be granted.
    2. Negligence, § 185*—when evidence will warrant recovery. In an action to recover for personal injuries, plaintiff may recover if the evidence is sufficient under any good count.
    3. Negligence, § 45*—when doctrine of “attractive nuisance” does not apply. The principle of the “attractive nuisance” making an owner or occupier liable where the injury results from some dangerous element, a part of or inseparably connected with the alluring thing or device, cannot be invoked to establish liability for injury to a child caused by the explosion of a can into which another child had dropped a lighted match where the explosion did not take place until after the contents of one can had been poured into the other and the match applied.
    4. Negligence, § 45*—what is extent of doctrine of “attractive nuisance.”. Semhle, that the doctrine of “attractive nuisance” requires that the dangerous thing have a power of attraction so strong as to amount to an implied invitation to the child to come upon the premises, thus excluding him from the status of a voluntary trespasser.
    5. Negligence, § 45

      —what is effect of gasoline or oil cans as attractive nuisances. In the legal sense, gasoline and oil cans are not such attraction or allurement as would prove irresistible to child instincts and curiosity.
    6. Negligence, § 194*—•when attractiveness to children is question of fact. While, ordinarily, the question whether any given thing or any situation created by the owner of premises will amount to an invitation to a child to come thereon is one of fact for the jury, the nature of the thing or of the situation created must be such that the jury can reasonably find that the child was so attracted.
    7. Negligence, § 45*—when premises are not rendered attractive try leaving oil cans thereon. The owner of vacant premises does not, by allowing oil and gasoline cans to remain thereon, invite the children of his neighborhood to trespass on the property, especially where there is nothing else on the premises of a nature to attract children.
    8. Negligence, § 49*—when aot of leaving oil and, gasoline cans on premises is not proximate cause of injury. Even though the owner of vacant property was negligent in permitting oil and gasoline cans to remain on his premises, it not appearing who placed them there, such negligence was not the proximate cause of the injury to plaintiff, a child of tender years, who was burned by the explosion of one of the cans which were carried into an adjoining aHey by other children who emptied one of the cans into the others and then applied lighted matches, causing the explosion.
    Appeal from the Circuit Court of Cook county; the Hon. Frank Johnston, Jr., Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed with finding of facts.
    Opinion filed May 28, 1920.
    Harry A. Biossat and Frank L. Boyd, for appellant.
    Harris F. Williams, 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, samo topic and section number.

   Mr. Presiding Justice Matchett

delivered the opinion of the court.

The appellee, who is plaintiff below, sued defendant, appellant, in an action on the case for personal injuries and recovered a judgment for $7,500 upon the verdict of a jury, from which this appeal is taken. As plaintiff was a minor the suit was brought by his father as next friend.

The declaration consisted of two counts, the first of which charged that defendant maintained an attractive nuisance by means of which plaintiff, a child of tender years, was injured. The second count alleged defendant used a certain vacant lot adjoining a public alley and unprotected for storing tools, machinery and explosive materials, which were easily in view of the alley; that while plaintiff was passing along this public alley, certain cans containing, explosive fluids thus stored were set on fire by other children of tender years, who were playing with them, whereby plaintiff was injured, etc.

To this declaration defendant filed the general issue and certain special pleas denying that he used the premises for storage purposes as alleged, or that he permitted or allowed cans of oil, gasoline, lubricants or any explosive to remain on the premises.

The evidence showed that the defendant owned, possessed and controlled the lot in question. It was known as Nos. 2133 and 2135, Potwyne place, was in a thickly populated district in the City of Chicago where there were many children. The lot was and for 16 years had been used by defendant in his business as contractor. The defendant lived at 2130 Montrose avenue, and at the rear of this lot, used as a residence, was a garage. The entry to this garage was from the alley and just about opposite to the vacant lot on Potwyne place. This public alley extended in an easterly and westerly direction along the south end of the vacant lot. The vacant lot was not fenced next to the alley as were the other lots in the block. The lot, alley and garage were used integrally by defendant in and about his business as a cement contractor. There were wagons on the lot and a concrete mixer which was operated by a gasoline motor attached to it, certain piles of lumber, a tool house and tool box standing near and some 20 feet from the open alley. The gasoline for the concrete mixer was sometimes obtained from the barn, sometimes brought from other places and defendant testified: ‘ ‘ When we brought the mixer and gasoline engine home if it had gasoline in it, it stayed there on the lot with the gasoline in it with a box around it.” A number of large and small cans were placed on the lot from time .to time by defendant’s employees. These cans retained some part of their usual contents, some lubricating oil and others gasoline.

Defendant owned and used two automobiles which were run by gasoline. These were usually backed out of the garage on Montrose avenue to and upon the Potwyne place lot for the purpose of getting into the alley and vice versa. It would not have been possible to have used the lot in the way it was used by defendant if it had been fenced on the alley side because there would not have been room to turn with the loads of material, etc., used in the business. There were also sand and gravel piles and piles of forms, etc.,, upon the lot. These things were all visible at all times from the alley which was open and unobstructed and used by the public generally and by children in the neighborhood.

The explosion which caused plaintiff’s injury occurred in what was known as a five gallon “monogram can.” This can had been placed on the lot near the tool shed with two other cans by an employee of the defendant. This employee stated that defendant had told him to put the cans in the alley but that he (the employee) did not want to put them there and he therefore put them in the lot. The defendant was familiar with the conditions on this lot as he used it, substantially, in the same manner-for a number of years. He also knew that there were many children in the neighborhood of tender years and that they were accustomed to play on the lot, but he had told them not to play there.'

It was shown for the defendant (and the evidence is uncontradicted) that the. defendant from time to time cleaned up this lot; that one of defendant’s servants examined the lot prior to the accident on the morning of August 7th. There was at that time a lot of wall paper there, cans, stove pipes, shoes, oil cans, paint pots and paint brushes. He cleaned them up. The only movable things left on the lot were two oil cans. It also appeared that people generally, from time to time, threw stuff of all kinds on the lot, which was from time to time removed'by defendant’s servants. Further, that (he two automobiles and the oil for them were kept in the garage; that the gasoline used by defendant was stored in a tank underneath the ground on the south side of the garage, and was pumped out inside the garage with a pump; that there was a lock on the outside of the gasoline tank, and that this lock was fastened. The two oil cans which were placed on the lot were put there for the purpose of having the ash man take' them away; and the tool shed was always locked.

It was also proved by a witness familiar with the qualities of monogram oil that in the year 19.16 it was used for lubricating purposes; that it would not be set on fire by a lighted match; that it would bum at a temperature of about 365 degrees Fahrenheit; that in order to make that oil explode it would be necessary to mix an explosive with it and that gasoline, as a liquid, would not explode, but its vapor would do so. The foregoing facts are, we think, practically uncontradicted.

On the day of the injury some of the children of the neighborhood went to play as usual upon this lot. Among them was Thomas Philbin, between 8 and 9 years of age; Rudolph Munson, 7 or 8 years of age; Nore Munson, 5 or 6 years of age and Teddy Lindholm, between 7 and 8 years óf age, and the plaintiff, who was then 5% years old. All of the children lived in the immediate vicinity. They found the large five-gallon can, which had been placed near the tool shed by defendant’s employee, and some other cans, and began to play with them by dropping lighted matches into them. They carried two of the cans into the alley between the end of the lot and the garage. There they poured the contents of one of the cans into the large five-gallon can and continued to drop lighted matches into it. At first the cans only smoked but as more matches were thrown into each can, after the cans were taken into the alley and after the contents of another can had been poured into the larger one, an explosion occurred; the large monogram oil can was thrown into the air and came down in a flame just as the plaintiff approached and this flaming can fell at his feet and he was very severely injured:

It is not contended that the damages are excessive if the plaintiff, in fact, had a' right to recover. The fatal match was thrown by Rudolph Munson, who was about 7 or 8 years of age, as before stated.

At the close of the evidence defendant made a motion that the court instruct the jury to find the issues for the defendant, and the refusal of this motion is the principal error assigned and argued. The rule of law to be applied is well settled. If there is any evidence in the record from which the jury could reasonably return a verdict for the plaintiff the motion should be denied, otherwise it should be granted. Devine v. Delano, 272 Ill. 166; Brimie v. Belden Mfg. Co., 287 Ill. 11. And the plaintiff may recover if the evidence is sufficient under any good count. Supolski v. Ferguson & Lance Foundry Co., 272 Ill. 82. We think it is apparent that if the judgment can be sustained it must be upon the theory that the defendant maintained upon his premises an11 attractive nuisance ’ ’ whereby plaintiff, a child of tender years, was attracted to the premises and injured. The case was tried and is argued here on that theory.

The liability of an owner of premises to children of tender years, who come thereon without express invitation from the owner, has been the occasion of conflicting decisions both in England and America. It is the - conclusion of an able writer in 11 Harvard Law Review, p. 349-373, reviewing the decisions:

“That the law ought not to impose upon the landowner even a qualified liability, so far as the condition of his premises is concerned, to children entering without permission, although attracted by his method of making beneficial use of his premises.”

This conclusion is supported by decisions of some States which hold that no recovery can be had in these cases where the child is in fact a trespasser, but we think the weight of the authority is other-wise. Thompson Commentary on the Law of Negligence, vol. 1, secs. 1024-51. Our courts have taken a broad and liberal view of the landowner’s social duties in this respect and the rule of law, as first announced in the so-called “turntable cases” (Sioux City & Pac. R. Co. v. Stout, 17 Wall. [U. S.] 657) has been generally followed in this State. The courts have, however, laid down certain definite conditions which it is held must exist in order to make the doctrine applicable. St. Louis, V. & T. H. R. Co. v. Bell, 81 Ill. 76. In McDermott v. Burke, 256 Ill. 401, and Follett v. Illinois Cent. R. Co., 288 Ill. 506, these conditions are stated and summarized. In Follet v. Illinois Cent. R. Co., supra, the Supreme Court points out that the cases in which an owner or occupier will be held liable under this theory fall into two classes: “First, where the injury results from some dangerous element, a part of or inseparably connected with the alluring thing or device, as in the turntable cases, where children may be killed or injured while playing with the thing on account of its dangerous nature. Second, where the attractive device or thing is so located or situated that in yielding to its allurement the child, without such intervention of another element as breaks the relation of cause and effect, is brought directly in contact with danger from some independent source which occasions the injury.”

If it is said that the facts of the instant case as above set forth bring it within the first class enumerated the reply is that this cannot be for the reason that the cans were in themselves entirely harmless. It was ■ only after the contents of one can were poured into another, and lighted matches applied, the explosion occurred. It is clear in the legal sense the cans were not such attraction or allurement as would prove irresistible to childish instincts and curiosity. The theory of our law on this subject seems to be that the dangerous thing must have power of attraction so strong as to amount to an implied invitation to the child to come upon the premises, thus precluding him from the status of a voluntary trespasser. It is true that this is a fiction, but one invented, as many others, in the interest of substantial justice.

Ordinarily the question of whether any given thing or situation created by the owner would amount to an invitation to a child to come upon the premises is a question of fact for the jury, but the nature of the thing or situation created must be such that the jury can reasonably find that the child was so attracted. It has been held that turntables, or an artificial pond of water, or a push car, or a sand pile, or a bin of sand, may reasonably be found to constitute such attraction or allurement by the jury. The line is not an easy one to draw for there are few things, new or old, not attractive to children in the sense in which that word is commonly used.

We find no case where cans on a vacant lot have been held to have this alluring quality, and we think no jury under circumstances presented here could reasonably find that the owner of vacant premises who allows cans of the kind described to remain thereon invites the children of his neighborhood to trespass on his property. Indeed, that would require a higher degree of care than most parents, on whom nature has cast the duty of guarding their children from dangers of this kind, in fact, exercise. Nor do we think our conclusion would be different if, as appellee contends, we should consider it our duty to consider the whole premises and the whole situation in determining whether the things thereon were, in fact, alluring. ' No one of the children who testified said that he was attracted to or went upon these premises because of his desire to see anything which was placed thereon. Under such circumstances to hold the owner liable would almost amount to imposing the liability of an insurer.

This defect in plaintiff’s case is, we think, vital whether it is claimed that the facts bring it within either the first or second class of cases enumerated. If, however, we consider it as of the second class, there is from that standpoint an additional reason why the plaintiff cannot recover.

This case, as we view the evidence, discloses that there was the intervention of another and independent element which broke the relation of cause and effect and the supposed negligence of defendant was, therefore, not the proximate cause of plaintiff’s injury. This intervening cause in this case was the act or acts of other lads who carried the cans from defendant’s lot into the alley, poured the contents of one can into the other and then applied the lighted matches which directly brought about the explosion.

The contention of appellee that the acts of these children of tender years could not be a juridical cause as was held by a divided court in Iamurri v. Saginaw City Gas Co., 148 Mich. 27, cannot, we think, be considered the law of this State in view of the decision of our Supreme Court in Seymour v. Union Stock Yards & Transit Co., 224 Ill. 579, where plaintiff, a child, was attracted by piles of clay deposited by a defendant railway company along its tracks adjacent to a public street, but who, when the train approached, ceased to play with the clay and ran along the bank touching the cars as they passed until he slipped under them and was injured. Although, apparently, too young to be held guilty of contributory negligence, it was held that he could not recover, because his own acts, not the allurements of the clay pile, were the proximate cause of his injury.

In view of his tender years and the undoubtedly serious injuries- which appellee sustained we have given to the evidence and law of this case the most careful consideration. On no theory under this evidence do we think the plaintiff can recover. The proof is undisputed that people of the neighborhood, generally, threw discarded articles of many kinds upon this lot. It is also undisputed that the can in which the explosion occurred and which had been put upon the lot by defendant’s servant did not explode when the lighted matches were first applied to it. There is no proof as to who placed the other can upon the lot nor what the contents of it were. It is just as probable under the evidence that the other can was placed there by a stranger as it is that it was placed there by the defendant or his servant. The evidence is therefore entirely consistent with the view that defendant is guilty of no negligence causing the injuries. For the reasons stated there can be no recovery in this case.

The judgment will therefore be reversed with a finding of facts.

Reversed, with a finding of facts.

Mr. Justices Barnes and Gridley concur.

Finding of facts. We find as facts in this case that the appellant, Peter J. Karstens, was not guilty of any negligence proximately causing the injuries for which he was sued by appellee.


text:
    In the Matter of the Estate of Edward Wahl, Deceased. William W. Pick, Appellant, v. Herman J. Diecks, Administrator, Appellee.
    Gen. No. 25,171.
    1. Appeal and error, § 45

      —what statutes as to appeals are repealed. In so far as section 8 of the Appellate Court Act (J. & A. 1f 2968) and section 91 of the Practice Act (J. & A. j[ 8628) conflict with chapter 3 of the Administration Act (J. & A. j[ 49 et seq.) or sections 122 and 123 of chapter 37 (J. & A. Iff 3248, 3249), they, as the later enactments, repeal and supersede these sections.
    2. Appeal and error, § 45*—when appeal to circuit court is proper. Proceedings against a surviving partner authorized by Hurd’s Rev. St. ch. 3, secs. 86-89 (J. & A. Tf 136-139) while in some respects equitable in nature, considered as a whole, both as to their substance and the mode of procedure authorized, constitute á special statutory proceeding, and an appeal from a judgment of the probate court therein lies to the circuit court.
    3. Witnesses, § 251*—who has btirden of establishing privilege. The burden is on one who claims that a communication is privileged to establish the facts bringing the evidence objected to within the rule claimed.
    4. Witnesses, § 167*—when communication to attorney is not privileged. Where one was the attorney of both parties at the time a communication was made, the communication is not privileged in a controversy between them.
    5. Witnesses, § 167*—what is effect of attorney acting as scrivener. Where an attorney is simply acting as scrivener at the time the communication is made, it is not privileged.
    6. Appeal and error, § 1395*—when findings of chancellor will

      not be disturbed. The findings of the chancellor who heard the witnesses testify in open court will not be disturbed when there is sufficient evidence to support the decree.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed May 28, 1920.
    Matthew P. Brady, for appellant.
    John S. Hum:mer, for appellee.

      5ee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Appellant, William W. Pick, is the surviving partner of Edward Wahl, deceased, who died on the 8th day of January, 1917. January 27 thereafter, appellee, Herman J. Diecks, administrator of Wahl’s estate, filed a petition in the probate court of Cook county, in which he set up that Wahl in his lifetime held a lease for years on certain premises at No. 10 South Clark street, on which, he, Wahl, had deposited with the lessors the sum of $3,000 to secure the faithful performance of the covenants and conditions of the lease, which sum was to be applied on the last 4 months’ rent, which was to be paid at the rate of $9,000 yearly.

The petition also alleged that Wahl held another lease of No. 9 South Wabash avenue, in the City of Chicago, for a term of 2 years, at a rental of $15,000 per year, on which a similar deposit for the sum of $7,500 had been made by him, and that both these deposits were to draw interest at the rate of 6 per cent per annum; that after taking these leases Pick on July 7, 1914, became a partner of Wahl under a copartnership agreement which provided that Pick should be owner of an undivided half .interest in the leases and the two saloons conducted at these respective places but was to have no interest in the deposit made on No. 9; that Pick was neglecting the place -at No. 10 South Clark street; that the rent for the month of January and other bills were not paid; that the interest of the estate was being put in jeopardy by Pick’s neglect and that it was liable to be entirely lost; that the administrator could not obtain any information from Pick with reference thereto and the petition prayed that the court would enter an order requiring the said William W. Pick as such surviving partner to render an account to the court of said copartnership at No. 10 South Clark street and No. 9 South Wabash avenue, by a short day to be fixed by the court.

It further prayed for a rule on the said William W. Pick to appear in open court and to submit to an examination as to the copartnership estates at a time to be fixed by the court and for a further order requiring Pick, as surviving partner, to file a good and sufficient bond, by reason of the continuance of the said copartnership, in such sum as the court may deem proper, and for such other and further relief as to the court may seem equitable.

William W. Pick answered as respondent admitting the existence of the leases and the partnership, but denied that the partnership continued until the death of Wahl, so far as both saloons were concerned, as alleged in the petition. On the contrary he said that on or about the 1st day of November, 1916, the said copartnership, was dissolved so far as the same related to the saloon business at No. 10 South Clark street, but in no other respect, and that from November 1, 1916, the said business at No. 10 South Clark street was owned and controlled by the said Edward Wahl as his “sole and undivided property * * Respondent said he did not know whether the rent for January had been paid.

The probate court heard the evidence and entered an order finding the existence of the partnership as alleged and with reference to the premises known as No. 10 South Clark street, that on November 1, 1916, an agreement was made between Wahl and Pick by which it was ostensibly dissolved, and that thereafter it was ostensibly continued in the name of Wahl, but that this agreement was made with a design to “accomplish an unlawful and fraudulent purpose”; that Pick and Wahl were in pari delicto with reference thereto and that Wahl’s administrator was bound thereby.

The petition was thereupon dismissed “for want of equity” in so far only as the same so directed and referred to the saloon business carried on at No-. 10 South Clark street and the copartnership obligations in regard thereto. As to the other business, the prayer of the petition was granted. From the decree the administrator prayed an appeal to the circuit court where respondent-appellant moved to dismiss it for the reason that the circuit court did not have jurisdiction. This motion was denied and the court ordered the matter placed on the chancery docket. After hearing, a decree was entered finding the facts as alleged in the petition and “that the said copartnership continued in existence and in full force and effect continuously up to the time of the death of said Edward Wahl.” That after the death of Wahl, Pick abandoned the co-partnership business at No. 10 South Clark street and failed to inventory that business in the probate court; that by reason of this neglect a receiver had been appointed for it, and it was ordered and adjudged that Pick should within 10 days from the entry of the decree “file herein a complete, accurate and true statement of the assets and liabilities of said copartnership as of the date of the death of the said Edward Wahl,” including the business carried on at No. 10-South Clark street, and should within said time render a full, true and accurate account to the administrator, and should thereafter, such true account render at the end of each 2 months from the date of the decree.

Leave was given to each party to apply to the court for further orders.

The principal contention of appellant is that the appeal was improperly taken to the circuit court and that that court was without jurisdiction of the subject-matter. The determination of this question depends upon whether the proceeding was a “proceeding at law or in chancery” within the meaning of section 8 of the Appellate Court Act (J. & A. jf 2968) and section 91 of the Practice Act (J. & A. jf 8628). If the proceeding was a suit or proceeding at law or in chancery within the meaning of these statutes, then the appeal should have been taken to this court; the circuit court was without jurisdiction and the motion to dismiss the appeal should have been granted. But if the action brought in the probate court was a special statutory proceeding, then by virtue of other provisions of the statutes an appeal would lie to the circuit court; that court had jurisdiction and the motion to dismiss was properly denied.

It has been held that in so far as these sections 8 and 91 conflict with chapter 3 of the Administration Act (J. & A. ft 49 et seq.), or sections 122 and 123 of chapter 37 (J. & A. jfjf 3248, 3249) entitled “Courts,” they, as the later enactments, repeal and supersede these sections. See Hannah v. Meinshausen, 216 Ill. App. 169; Union Trust Co. v. Trumbull, 137 Ill. 146; Lynn v. Lynn, 160 Ill. 307; Grier v. Cable, 159 Ill. 29.

Section 91 of the Practice Act, approved June 3, 1907, in force July 1,1907, provides:

“Appeals shall lie to and writs of error from the appellate or supreme courts as may be allowed by law, to review the final judgments, orders or decrees of any of the circuit courts, the superior court of Cook county, the county courts or the city courts, and other courts from which appeals and to which writs of error may be allowed by law, in any suit or proceeding at law or in chancery * *

Said section 8 .of the Appellate Court Act provides:

“The said appellate'courts created by this act shall exercise appellate jurisdiction only, and have jurisdiction of all matters of appeal or writs of error from the final judgments, orders or decrees of any of the circuit courts, or the superior court of Cook county,' or county courts, or from the city courts in any suit or proceeding at law, or in chancery other than criminal cases, not misdemeanors, and cases involving a franchise or freehold or the validity of a statute. * * * ”

The duties of a surviving partner and the proceedings which may be had in the probate court with reference thereto are set forth in chapter 3, secs. 86 to 89 of the Administration Act, Hurd’s Eev. St. 1917, pages 25 and 26 (J. &. A. fifí 136-139). These sections seem to have been substantially followed by the administrator.

While these provisions are in some respects equitable in their nature, we think, considered as a whole, both as to their substance and as to the mode of procedure provided, they constitute a special statutory proceeding. An examination of the cases called to our attention indicates that it is not always an easy matter to determine to which class a particular proceeding may belong within the meaning of these statutes. Laurunszka v. Empire Mfg. Co., 271 Ill. 304; Christensen v. R. W. Bartelmann Co., 273 Ill. 346; Lavin v. Wells Bros. Co., 272 Ill. 610; Myers v. Newcomb Drain. Dist. Com’rs, 245 Ill. 140; Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180. The latest expression of our Supreme Court on the subject is found in Nadig v. Turner, 291 Ill. 513, in which case the court held that an application by an administrator for leave to carry out a contract of a deceased person to convey real estate was a purely statutory proceeding, although one of the parties contended it was in the nature of a bill for specific performance and therefore a proceeding in chancery.

Referring to section 8 of the Appellate Court Act, the court says:

“That act refers only to appeals ‘in any suit or proceeding at law or in chancery, ’ and that has been construed to mean suits or proceedings instituted and carried on in substantial conformity with the forms and modes prescribed by the common law.” Grier v. Cable, 159 Ill. 29.

Applying this rule we are disposed to hold the circuit court had jurisdiction and did not err in refusing the appeal.

Appellant further contends that' incompetent evidence was admitted by the court which, if excluded, would preclude the findings of the decree. With other evidence tending to show a dissolution of the partnership as to the business at No. 10 South Clark street, as appellant contended, it was made to appear that on October 31, 1916, Pick and Wahl made and filed with the clerk of the City of Chicago an assignment of their joint license at that number to Wahl alone and the new license was at once issued in Wahl’s name. The petitioner claimed this was only an ostensible transfer and to support this claim proved by Henry L. Wilson, an attorney, and by his sister, who was at that time acting as his stenographer, that after the license was thus taken out appellant Pick came to his office and secured a draft of the following statement:

“To W. W. Pick:

“This is to inform you that saloon license issued by the City of Chicago, dated October 31, 1916, for the second period of 1916, being license No. -, at 10 South Clark Street, was issued to me in my name for convenience only, and that you are the owner of an undivided half interest in the license and saloon at 10 South Clark Street, being owned by you and myself as copartners, under the name of Edward Wald. The license was issued to me in my individual name for convenience only.”

Wilson testified that he informed Wahl about the preparation of the statement, that Wahl said it was all right and that a few days later Pick told him that Wahl had executed this instrument after he, Pick, had changed the word “inform” to “acknowledge.” Lily F. Wilson, the stenographer, identified a copy of the statement as the one which was dictated to her at Pick’s request. She also testified to statements made by Pick at that time to the effect that he was still a partner in the business at No. 10 South Clark street.

Notice was. given respondent to produce the original paper which he did not do, nor did he deny that he had it in his possession nor contradict the testimony of these witnesses as to the facts testified to by them.

The evidence, however, was all objected to on the ground that it was privileged because of the relationship of attorney and client. We do not think this contention can be sustained. In the first place, Wilson was not at that time retained as the attorney of Pick. There is no proof that the relationship of attorney and client a.t that time existed between them. The proof shows that he had at other times acted as attorney for each of them and usually without compensation. It devolves upon one who claims a privilege to show facts which bring the evidence objected to within the rule claimed. If Wilson was the attorney of both Wahl and Pick at this time (and that theory is just as consistent with the evidence as any other), then these communications would not be privileged in any controversy arising between them. If we regard Wilson as Wahl’s attorney, then any communication made by Pick to him was clearly not privileged. Indeed the theory of appellee that Wilson was not at this time the attorney for either, but simply acted as a scrivener is entirely consistent with the evidence. If so the conversations were not privileged. DeWolf v. Strader, 26 Ill. 225; Smith v. Long, 106 Ill. 485; Champion v. McCarthy, 228 Ill. 87; Spencer v. Razor, 251 Ill. 278.

We think there was abundant evidence to sustain the decree and that we should not disturb the findings of the chancellor who heard witnesses testify in open court. Valbert v. Valbert, 282 Ill. 415; Struve v. Tatge, 285 Ill. 103; Ackman v. Potter, 239 Ill. 578.

Appellant also contends that the ostensible dissolution of the partnership between Wahl and Pick as to No. 10 South Clark street was made for a fraudulent purpose with the idea that Wahl might possibly later file a petition in bankruptcy and thus escape liability on the lease. There is no proof that Wahl was in fact insolvent. He was'an ignorant man; he could neither read nor write. After bankruptcy was suggested as a means of getting rid of the lease he took legal advice and was told that it would be a foolish and impossible thing for him to do. If he ever had a fraudulent intention within the meaning of the law we think his repentance was complete and in due time. On this issue also we are unable to say that the finding of the chancellor is palpably wrong and the decree will therefore be affirmed.

Affirmed.

Mr. Justices Barnes and Gridley concur.


text:
    Jacob Margolis, by Frieda Margolis, Appellant, v. Bremner Brothers Company, Appellee.
    Gen. No. 25,205.
    Negligence, $ 16

      —when trespasser on wagon cannot recover for injuries. In an action to recover for personal injuries received by plaintiff, a child of tender years, in alighting from defendant’s moving wagon in obedience to its driver’s order, where there is no count in the declaration alleging that plaintiff was wantonly or wilfully injured, and it appears from plaintiff’s own evidence that he was a trespasser on defendant’s wagon- at. the time he was injured, he cannot recover.
    Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard jn the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed May 28, 1920.
    McMahon, G-raber & Elward, for appellant; Joseph F. Elward, of counsel.
    John A. Bloomingston, for appellee.

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

   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This was an action on the case for personal injuries sustained by plaintiff, a child between 6 and 7 years of age, as a result of alleged negligence of the defendant. At the close of plaintiff’s evidence the court directed the jury to return a verdict for the defendant, which the jury did, and judgment was entered on the verdict. The question is whether the court properly directed the verdict.

Appellant says: “The evidence shows that plaintiff was riding on a side step of a bakery wagon owned and operated by the defendant; that this bakery wagon had a covered top, and that the step on which the plaintiff was riding was on the left side of the bakery wagon, about five (5) feet from the front of the wagon; that the wagon was*proceeding eastward, along Polk street, at a slow trot; that just before it reached Robey street the driver of the wagon shouted in a loud voice to plaintiff, while he was so riding on the side step, ‘Hey! get off!’ but that the driver did not stop the bakery wagon or decrease its speed or make any provision for the plaintiff to get off this side step; that immediately • after the driver spoke these words, the plaintiff started to get off this side step and fell under the rear left wheel of the bakery wagon.”

This statement is substantially correct but omits one material matter testified to by plaintiff himself. He says: “I was hitching on the wagon and the man told me.to get off, the driver of the wagon.” It thus clearly appears, we think, that plaintiff was a trespasser. There was no count in the declaration alleging that plaintiff was wantonly or wilfully injured by defendant.

We think on the uncontradicted facts that plaintiff could not recover.

Appellant relies on North Chicago City Ry. Co. v. Gastka, 128 Ill. 613, and Smorawski v. Chicago City Ry. Co., 211 Ill. App. 557. The defendants in both these cases were common carriers of passengers and there was, therefore, an implied invitation for any one to become a passenger who cared to do so. The rule in these cases would, therefore, not be applicable in this case. Scott v. Peabody Coal Co., 153 Ill. App. 103, is also cited, but in that case the defendant’s servant invited the plaintiff to ride upon the wagon. In Hayes v. Sampsell, 274 Ill. 258, the rules applicable where the' plaintiff, being a child, is on a conveyance by invitation of the owner, express or implied, are discussed, and the conclusion reached the defendants may in such cases be held liable. We do not think that rule applicable to the undisputed facts here. We think the court properly directed a verdict and the judgment will he affirmed.

Affirmed.

Mr. Justices Barnes and Gridley concur.-


text:
    Daniel Lewy, Appellee, v. Standard Plunger Elevator Company, Appellant.
    Gen. No. 25,218.
    1. Contracts, § 125

      —what is effect of illegality of consideration. A contract based upon an illegal or immoral consideration is unenforceable.
    2. Contracts, § 144*—when contract to influence legislation is unenforceable. A contract to perform services which will necessarily tend to influence improperly legislation, public contracts or the administration of justice, by reason of contingent compensation provided therein, is unenforceable.
    3. Appeal and error, § 365*—when invalidity of contract may be considered on appeal. Even though the objection that the contract on which recovery is sought is void as against public policy in that it provides. a contingent compensation for securing a contract from public officers, was not pleaded or otherwise raised in the trial court, the public interest requires that it be considered by the Appellate Court.
    4. Principal and agent, § 69*—when public policy does not prevent compensation. Public policy will not prevent an agent from recovering commissions, from his principal, under a contract providing for commissions contingent upon sales, because the sale of the article was made to public officials, where no improper means were adopted in effecting the sale.
    5. Principal and agent, § 83*—when contract for commissions is established by evidence. In an action by a salesman to recover commissions on sale, pursuant to a contract between plaintiff and defendant that defendant would pay plaintiff commissions on sales by him, evidence examined and held to support a finding that such sale was effected by plaintiff and was made pursuant to his original contract and not under ,a special arrangement as claimed by defendant.
    6. Principal and agent, § 81

      —when defendant has burden of establishing agreement. In an action by a salesman against his employer to recover commissions claimed to be due him under his contract on a sale made thereunder, the burden is on defendant, who claims that such sale was made under a special agreement, to establish such contention.
    7. Principal and agent, § 82*—what evidence as to damages is admissible. In an action by a salesman to recover for breach of his contract of employment, it is proper to permit him to testify as to his earnings with other employers for the purpose of fixing a basis for damages for loss of prospective commissions under the contract in suit, and his evidence need not be limited to profits resulting from such contract.
    8. Appeal and error, § 1484*—when admission of evidence as to damages is harmless. Error in admitting evidence as to speculative profits in an action for breach of contract is harmless where the jury allowed no speculative damages.
    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, 1919.
    Affirmed.
    Opinion filed May 28, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    John A. Bloomingston and Ellis & Lewis, for appellant.
    Schaffner & Friend and Isaac S. Rothschild, for appellee.

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

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

   Mr. Presiding Justice Matchett

delivered the opinion of the court.

Plaintiff below brought suit against defendant-appellant in an action of assumpsit. The declaration alleged the making of a contract between the parties on the 1st day of November, 1914, by the terms of which appellee, Daniel Lewy, was employed as a salesman -for the term of five years beginning on that date and ending October 31,1919. In one of the counts the contract is set up in hcec verba. Its material provisions are that the territory assigned to Lewy is the State of Illinois with the right to solicit specific jobs from outside territory “when specific instructions are issued to that effect by the party of the first part. ’ ’ That his compensation shall be a commission of 5 per cent, of the total contract price for the installation of Standard Plunger Elevators on all contracts secured by him until the total aggregate value of contracts secured during any fiscal year, beginning November 1, 1914, amounts to $100,000 and a commission of 2% per cent on the total contract price of the aggregate value of contracts in excess of $100,000 secured during any such year, said commissions to be payable half upon the signing of the contract and the other half when payments made by the customer' equal 50 per cent of the contract price. And Lewy agrees that “each year, during the existence of the contract, he will secure, at least, $100,000 in contracts for the installation of Standard Plunger Elevators.”

It is specifically provided that: “The party of the second part must be instrumental in bringing the elevators sold by the party of the first part to the attention of the prospective customer, and bring the parties together with the result that a contract is agreed to and signed; otherwise, the party of the second part shall not be entitled to any commission.” By another clause it is provided that the “Party of the first part agrees to advance to said party of the second part the sum of two hundred fifty ($250) dollars a month, payable on the first day of e.ach month, during the term ■of this agreement, and to charge said sums advanced against the commissions earned by said party of the second part. ”

It is .'also stated that the agreement may be canceled and terminated by either party upon the failure of the other party to comply with any clause of the agreement, and upon the giving of the other party 30 days ’ notice of the failure to comply “otherwise it is to remain in full force and effect until the termination of the agreement as specified herein.”

The seventh clause of the contract further provided that in case of rightful termination of the agreement before the expiration thereof, “the party of the second part shall be entitled to a commission as hereinbefore specified upon any contract secured by the party of the first part in the territory covered by this agreement, provided, however, that the contract so secured is one on which the party of the second part has been working during the term of this agreement.”

The declaration alleges that the plaintiff entered into the employ of the defendant and fully complied with all the terms and provisions of the contract from the 1st day of November, 1914, until the 12th day of February, 1916, when he was wrongfully discharged by the defendant “by means whereof the plaintiff has lost and been deprived of all the commissions, drawing accounts, profits and advantages which he might and otherwise would have derived and acquired from continuing in the employ of the defendant, as aforesaid; and which the defendant has from time to time wholly refused to pay or allow the plaintiff, and the plaintiff has been and is by means of the premises wholly unemployed.”

Common counts were also filed with a copy of the instrument sued on. To this declaration defendant filed the plea of the general issue and special pleas in which it alleged its right to discharge plaintiff under the terms of the contract.

Two trials by jury have been had on these issues. In the first trial the plaintiff recovered a verdict of $7,600; on the second a verdict of $7,000 on which the court entered judgment. It appears that the principal matter in controversy is whether ■ under the terms of the contract plaintiff is entitled to a commission on a contract made by defendant with the County Commissioners of Hamilton County, Ohio, hy which appellant was to install elevators in the courthouse there at the price1 of $103,855. The contract between appellant and appellee was terminated by a letter to appellee dated January 12, 1916, in which it stated:

“Pursuant with the provisions of the contract between you and this company, please take notice that the agreement between us, dated November 1st, 1914, is hereby cancelled and terminated, because of your failure to comply with its provisions, such cancellation and termination to take effect 30 days from the date' upon which this notice was delivered to you. Specifically, you have failed to secure, at least, $100,000 in contracts for the installation of Standard Plunger Elevators, during the year between November 1st, 1914 and November 1st, 1915, and you have also broken your agreement to perform faithfully, diligently and to the utmost of your ability such duties as have been specified and required of you by the company from time to time.”

This letter was delivered to plaintiff’s office by an attorney January 14, 1916. Plaintiff continued thereafter to give all his time to the work of the company until February 14, when, pursuant to the notice, he quit. It was admitted on the trial that contrary to the statement in the notice the defendant had faithfully and diligently performed his required duties so that the principal issue of fact is whether plaintiff failed to install the required number of elevators between November 1, 1914, and November 1, 1915, as claimed.

From other items of the account which are conceded to be correct it is apparent that if plaintiff is entitled to commissions on the Hamilton county courthouse job then this provision of the contract was also complied with and the discharge was wrongful. In so far as that issue was one of "fact it seems to be settled in favor of the plaintiff by the verdict of the jury, but appellant here, and apparently for the first time, argues that the contract as applied to the order for installing these elevators in the Hamilton county courthouse is void as against public policy in that it provides for a contingent compensation for securing a .contract from a public official. On this point we are cited to Providence Tool Co. v. Norris, 2 Wall. (69 U. S.) 45; Goodrich v. Tenney, 144 Ill. 422; County Com’rs Randolph County v. Jones, 1 Ill. (Breese) 237; Cook v. Shipman, 24 Ill. 614; Crichfield v. Bermudez Asphalt Paving Co., 174 Ill. 466 and Hyland v. Oregon Hassam Pav. Co., 74 Ore. 1, 144 Pac. 1160. That a contract based upon an illegal or immoral consideration is unenforceable, is elementary, and that a contract to perform services which would tend necessarily to improperly influence legislation, public contracts or the administration of justice, by reason of contingent compensation provided therein, is unenforceable, is established by the cases cited.

Appellee says that this defense was not pleaded nor was it raised in any other manner in the trial court. This is true. Nevertheless, if the point is good as made, it would be the duty of this court, although it was not preserved in the usual manner by pleading or objection made or exception taken, to sustain the contention. The reason for this is the transcendent interest of the public in such contracts and in the faithful performance of official duties.' Our courts have always enforced these rules of law with zeal and diligence, and, in so doing, have, perhaps, not at all times been careful to state the limitations of the doctrine. We assume that there is no rule of law which makes it illegal to negotiate a contract for the sale of goods or supplies to a public agency and for public purposes. The distinction between personal influence used to secure legislation, public contracts, etc., and legitimate professional services performed in making the legislature or public officials acquainted with the merits of measures desired or merchandise to be sold is pointed out in Trist v. Child, reported in 21 Wall. (U. S.) 441, and cited with approval in the case of Oscanyan v. Winchester Repeating Arms Co., 103 U. S. 261. In that case after stating that legitimate professional services may not be condemned, the court said:

“So, too, with reference to furnishing the government with arms or supplies of any kind. It is legitimate to lay before the officers authorized to contract, all such information as may apprise .them of the character and value of the articles offered, and enable them to act for the best interests of the country. And for such services compensation may be had as for similar services with private parties, either upon a quantum meruit or, where a sale is effected, by the ordinary brokerage commission. And here it may be observed, in answer to some, authorities cited, that the percentage allowed by established custom of commission merchants and brokers, though dependent upon sales made, is not regarded as contingent compensation in the obnoxious sense of that term, which has been so often the subject of animadversion by this court, as suggesting the use of a sinister or corrupt means for accomplishing a desired end. ’ ’

It is to be noted the commission here claimed on the Hamilton county courthouse sale is precisely the same in amount as that provided for orders from private enterprises.

In attempting to sustain another and different defense the defendant upon the trial called a majority of the Hamilton county courthouse commissioners as witnesses and by their testimony showed affirmatively that no improper influences were used in obtaining this contract. Appellant thus produced the evidence which gives appellee a clean bill of health on this point, which appellant raises, apparently, for the first time in this court. We do not think there was anything in this contract contrary to public policy, or that it necessarily tended to require* the doing of anything against good morals.

Appellant next contends, somewhat inconsistently, that the law of Ohio was such with reference to this transaction that plaintiff, under the terms of his contract with the defendant, could not earn any commission by reason of the fact that the Ohio law provides contracts of this kind must be awarded and made with the person who offers to perform the labor and furnish the material at the lowest price and who gives a good and sufficient bond. Appellant says (truly) that the Ohio courts passed upon this very contract and held that it was made in conformity with this law which required the contract to be given to the lowest bidder. We are not impressed by this argument of appellant. Every sale is presumably made to the lowest bidder and if the matter of making this sale of elevators was altogether so easy as appellant would have us believe, it is passing strange that the defendant should have requested the plaintiff to make many trips to Cincinnati at defendant’s expense for the sole purpose of getting the contract. True, the work had to be let to the lowest bidder but the Ohio law does not require that the defendant’s elevators should be specified as the ones to be put in the building. Also the commissioners were empowered if they saw fit so to do to reject any and all bids. It is perfectly apparent that there was as. much legitimate work for an energetic salesman to do in the way of securing this public contract as there would have been had defendant been dealing with a private enterprise.

Two things, as we construe this contract, were necessary on plaintiff’s part to earn his commissions. One was that he should bring the elevators sold to the attention of the prospective customer, and the other, that he should bring the customer and his employer together with the result that a contract was agreed to and signed. These conditions were complied with by the plaintiff, at least it was a question for the jury as to whether the conditions had in fact been complied with and the jury decided in plaintiff’s favor.

The evidence shows that much time and effort were put forth by plaintiff in demonstrating to the commissioners the supposed superiority of defendant’s elevators over other types, particularly electrical elevators, which through a change of specifications might have been substituted. He also met and overcame objections that the defendant was a nonresident competitor and other local objections made by reason of that fact. He gave valuable assistance in preparing the bid in such a way as to outwit defendant’s competitors, All these matters required skill of a high order and tact as well, and were handled by plaintiff in such a way, apparently, that without the use of any improper means, defendant secured this contract. We do not think this second contention of the defendant can be sustained.

Another issue of fact is raised by appellant’s further contention that the services of plaintiff in connection with the Hamilton county courthouse contract were rendered pursuant to special arrangements made between plaintiff and the company with reference thereto which superseded the contract of November 1, 1914. In that connection testimony was offered by the defendant tending to show a conversation between the president of appellant and plaintiff to that effect. It seems the burden of proof is clearly upon appellant to establish this contention if true. The conversation is denied by the plaintiff and letters of the defendant in evidence are not consistent with the theory that such special arrangement was made. Here again the jury have found the issues for the plaintiff. We think the findings justified by the evidence. Indeed the undisputed testimony that the contract dated November 1, 1914, was not, in fact, signed until September 23, 1915, •months after the Hamilton county contract was secured, and that no exception as to that contract appears therein, seems to have made it impossible for the jury to decide otherwise on that issue.

Appellant also contends that the court erred in permitting plaintiff to testify, over objection, as to his earnings with other employers for the purpose of fixing a basis for damages for loss of prospective commissions, and argues that such evidence should have been limited to past profits resulting from the same contract from which damages were sought, citing Roth v. Spero, 48 N. Y. Misc. 506, 96 N. Y. Supp. 211. We think the evidence was admissible under the rule laid down in Barnett v. Caldwell Furniture Co., 277 Ill. 286. But however that may be, the defendant was not injured, as the jury apparently did not allow any speculative damages.

Appellant also complains of instructions given and refused but we find no error in any of them which would require reversal.

The judgment, we think, is not larger than plaintiff was clearly entitled to under the terms of the contract without any allowance for prospective damages sustained by reason of its wrongful termination.

It will be affirmed.

Affirmed.

Mr. Justices Barnes and Gridley concur.


author: Mr. Justice Barnes

text:
    Whitney, Inc. (corporation), Appellee, v. Fred L. Mandel and Blanche R. Mandel, Appellants.
    Gen. No. 25,187.
    1. Sales, § 153

      —what constitutes acceptance of article purchased. The retention of a garment, by the person for whom it was made, for a month without attempting to return it or notifying the maker that it is not satisfactory constitutes an acceptance of the garment.
    2. Husband and wife, § 8*—when article purchased is family expense. Where a garment made for a married woman is accepted, it is kept for use and thus becomes a family expense for which the husband as well as the wife is liable.
    3. Husband and wife, § 8*—what are family expenses. To render the purchase price of an article a family expense, it is not necessary that the article shall actually be used in the family as the term “use” is commonly applied, but it is a legal use, as contemplated by the statute, when such article is in the family for actual use when required.
    4. Husband and wife, § 8*—what clothing is family expense. A wife’s dress is among the articles for which both husband and wife are chargeable as a “family expense” under the statute.
    Appeal from the Municipal Court of Chicago; the Hon. Howabd Hayes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed May 28, 1920.
    Robert H. Holmes, for appellants.
    Baker & Holder, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.

Appellee brought suit to recover from appellants, husband and wife, the alleged agreed price of $173 for a cloth dress and guimpe sold and delivered to the wife at her request, averring in the statement of claims that the merchandise was for the benefit of their said family. The defense, in substance, was that appellee undertook to make-said wife a suitable gown and promised it would be satisfactory, but failed to construct it properly and. abandoned it while temporarily in appellants’possession. A jury was waived and the court found the issues against appellants and rendered judgment for the sum aforesaid.

Appellants urge that the evidence did not show an express contract as declared on, nor that the garment had been “used,” and hence the garment could not be classified as a family expense so as to render the husband liable.

We need not recite the evidence as to the contract, for the undenied testimony given for plaintiff tended to show1 an express contract for the goods at the agreed price as alleged. Defendants’ testimony related mainly to the alleged unsuitability or improper construction of the gown and to the question of its delivery and use. That relating to its construction we need not consider if the garment was accepted, as the evidence tends to show, for it appears from the testimony for defendants that after the garment was delivered to the wife it was kept for nearly a full month before it was returned for alteration, which was made, but not to the wife’s satisfaction. No propositions of law were submitted, but the court may well have held that the retention of the garment for that length of time without either attempting to return it or notifying plaintiff that it was not satisfactory or properly constructed constituted acceptance (Doane v. Dunham, 65 Ill. 512; Underwood v. Wolf, 131 Ill. 425; Guggenheim v. Hoffman, 128 Ill. App. 289); and that having been accepted it was kept for use and so in law became a family expense, thereby rendering the husband as well as the wife liable. As said in Arnold v. Keil, 81 Ill. App. 237, citing Fitzgerald v. McCarty, 55 Iowa 702, it is not necessary that the articles should be actually used in the family, as.the word “use” is commonly applied. “It is a legal use, as contemplated by the statute, when they a,re in the family for actual use when required.” And there can be no doubt that a, wife’s dress is classified among the articles for which both husband and wife are chargeable as a “family expense” under the statute. (Hyman v. Harding, 162 Ill. 357.) Accordingly the judgment will be affirmed.

Affirmed.

Mr. Presiding Justice Matchett and Mr. Justice G-ridley concur.