text:
    Don T. Rose, Appellant, v. Mutual Life Insurance Company, Appellee.
    Gen. No. 5,023.
    1. Insurance—how days of grace for payment of premium computed. Days of grace allowed for the payment of the second premium upon a policy are computed from the anniversary of the date upon which the policy became effective.
    2. Insurance—what laws govern construction of policy. An insurance contract is governed by the laws of the place of the delivery of the policy, except so far as the laws of another state are by contract made a part thereof.
    3. Insurance—effect of special upon general provision of policy. A special provision of a policy providing how payment of premium must be made, prevails over a general provision which makes a policy subject to the laws of a particular state which state has a statute providing a different method of payment.
    4. Insurance.—when declaration does not state cause of action. Held, that the several counts of a declaration which relied upon a policy of insurance failed to state a cause of action.
    5. Pleading—effect of allegation under videlicet. Matter other than that of essential description alleged under a videlicet need not be proved precisely as laid.
    6. Pleading—what not positive allegation. An allegation under a videlicet that a policy of insurance was issued and delivered on a particular date, is not a positive allegation.
    7. Pleading—what not allegation of payment of premium. An allegation as follows, is indefinite and argumentative: Rose “thereafter paid to said defendant all premiums due under said policy of which due notice was given him by the defendant as required by said laws of New York.”

      Assumpsit. Appeal from the Circuit Court of Kane county; the Hon. Linus C. Ruth, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed October 14, 1908.
    Frederick A. Brown, for appellant; Wm. R. T. Ewen, Jr., of counsel.
    Winston, Payne, Strawn & Shaw, for appellee; M. H. Whitney, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

In this suit by appellant against appellee to recover insurance upon the life of appellant’s father, deceased, after two partial trials appellant withdrew the common counts and filed additional counts, and appellee refiled to the whole declaration a general and special demurrer, previously filed to the original counts, and that demurrer was sustained. Appellant elected to abide by her declaration, which then consisted of seven special counts. Appellee had judg-' ment and plaintiff below prosecutes this appeal.

The first count set out a policy of insurance executed by appellee whereby it agreed to pay appellant $5,000 upon the death of Herbert A. Bose. It described appellant as the wife of Herbert A. Bose, whereas she was his daughter. It also set out certain “provisions, requirements and benefits”, stated on the back of the policy and made a part thereof. The policy was dated May 23, 1904, acknowledged receipt of the first annual premium of $169.40, and provided for the payment of that sum annually thereafter on May 23, till the premiums for twenty years had been paid. Among the statements on the back of the policy set out in the first count, were the following:

“Each premium is due and payable at the Head Office of the Company in the City of New York, or, at the option of the insured, at any Agency of the Company, in exchange for the Company’s receipt signed by the President or Secretary. Notice that each and every such, payment is due is given and accepted by the delivery and acceptance of this policy, and any further notice which may be required by any statute is thereby expressly waived. * * * After this policy has been in force one year, thirty days of grace will be allowed in payment of premiums, with interest for the time taken at the rate of five per cent, per annum, during which time this policy shall remain in force for the full amount.”

The count averred that appellee issued and delivered said policy to Herbert A. Bose, hereinafter called Bose, “on to wit, the 17th day of July, 1904.” The count averred that the application for said policy provided that said application should be a part of the contract of insurance between Bose and appellee and that said contract should be subject to the laws of New York. It then set out a certain statute of New York adopted in 1897, and alleged that it was in force then and thereafter till the death of Bose, which statute provided that no life insurance company doing business in. that state should declare a policy forfeited for non-payment of premium within one year after default in payment thereof by reason of such non-payment, unless a notice stating the amount of the premium, the place when it should be paid and the person to whom payable, should have been duly addressed and mailed to the person whose life is insured “at his or her last known postoffice address in this state”, at least fifteen days and not more than forty-five days prior to the day when the same is payable; and that such notice should also state that unless such premium is paid by or before the day it falls due, the policy will become forfeited and void. The count averred that Bose paid appellee the first premium, and thereafter paid all premiums of which due notice was given him as required by the laws of New York; that Bose died at Paducah, Kentucky, on August 3, 1905; that notice of death was given appellee, with a call for blanks on which to make proofs of death, which a provision on the back of the policy required should be on forms which appellee would furnish on request; and that appellee refused to furnish the blanks and refused to pay the policy at all, and informed the appellant that the policy was forfeited and void.

The count does not allege when Bose paid the first premium, but the policy set out therein acknowledges the receipt thereof, and if the allegation above stated that the policy was issued and delivered “on to wit, July 17, 1904,” is a positive allegation that it was issued and delivered on that date, then we regard it as a sufficient allegation that the contract became effective on that date, although dated May 23, 1904. The payment was for insurance for one year, and if the policy first became effective as a binding contract on July 17, 1904, the payment carried the insurance to July 17, 1905, and the provision for thirty days of grace after the policy had been in force one year carried the period for which the insurance was valid to August 16, 1905 (McMaster v. New York Life Ins. Co., 183 U. S. 25), even though Bose failed to pay the second premium, due May 23, 1905, by the terms of the policy. In the case just cited it was said that the company could not be allowed “by making the second premium payable within the period covered by the payment of the first premium, to defeat the right to the month of grace which had been proffered as the inducement to the application, and had been relied upon as secured by the payment.” Bose died August 3, 1905, while the policy was therefore in force, under the allegations of the first count, if that count avers positively that it was issued and delivered on July 17, 1904.

Does the allegation under a videlicet of the date when the policy was issued and delivered amount to a positive averment that it was delivered on that particular day? If issue had been joined, and at the trial the proof had been that the policy was issued on July 16 or 18, or on May 23, and not on July 17, would that have been a fatal variance from this count, or would such proof have been competent and sustained the count! In 1 Chitty’s Pleading, 318, it is said: “Where a party does not mean to be concluded by a precise sum or day stated, he ought to plead it under a videlicet, for if he do not he will be bound to prove the exact sum or day laid; it being a settled distinction that where anything which is not material is laid under a videlicet, the party is not concluded by it, but he is where there is no videlicet.” In Brown v. Berry, 47 Ill. 175, the court said: “The use of the videlicet is to avoid a variance, and to avoid a positive averment which must be strictly proved.” In Long v. Conklin, 75 Ill. 32, where the declaration alleged, under a videlicet, that the contract sued upon was made on November 28, 1871, and the proof showed that, it was made in January, 1872, the court said: “The day of making the contract is laid under a videlicet, and according to the familiar rule of pleading is not required to be proved as laid.” In Chicago G. W. Ry. Co. v. People, 79 Ill. App. 529, where the dates of making certain contracts were stated in the pleadings under a videlicet, and it was argued that they must be proved as laid, we said: “These dates are each laid under a videlicet, and by well-known rules of pleading petitioner was not bound to prove the precise dates.” That judgment was affirmed under the same title in 179 Ill. 441, without mentioning that question. We conclude that under this videlicet plaintiff could prove any other date, and that plaintiff used the videlicet because she intended not to bind herself to prove that the policy was issued and delivered on July 17, 1904, but wished to avail of whatever the proof might show as to the date when it became a binding contract. It must be assumed that she would have made a positive averment if she had intended to rely upon that precise date. We. are therefore of opinion that this count does not contain a positive averment that the policy was issued and delivered and a binding contract of insurance first completed on July 17, 1904. In the absence of any positive averment of a precise date when the contract became effective, we must presume, against the pleader, that the policy went into force on the day of its date, May 23, 1904.

This count therefore shows that the policy had lapsed by its own terms, unless the allegation that Bose “thereafter paid to said defendant all premiums due under said policy' of which due notice was given him by the defendant as required by said laws of New York,” amounts to an allegation that within thirteen months after the policy became effective he paid another premium of $169.40, or that he received no notice and unless because of a lack of such notice the policy could not be forfeited prior to his death. We consider the allegation above quoted insufficient for several reasons. It is indefinite and argumentative. It does not positively allege that he paid a second premium. If he paid a second premium it does not allege that he paid it within thirteen months, but the allegation would be satisfied by proof that he paid it after the thirteen months had expired. It does not allege that appellee accepted the payment. Again, though this contract does not state where the contract was delivered by appellee to Bose, yet the policy set out described the-person whose life was insured as “Herbert A. Bose, Paducah, in the county of McCracken, State of Kentucky,” and has on its back the indorsement or stamp of “Biscoe Hindman, general agent, Louisville, Kentucky.” The count avers that Bose died at Paducah, Kentucky. In the absence of a contrary averment, it is a reasonable inference against the pleader that the policy was delivered by appellee’s agent to Bose in Kentucky. It was therefore a Kentucky contract and was not governed by the laws of New York, except so far as they were by the contract made a part thereof. Equitable Life Society v. Clements, 140 U. S. 226, 232; Mutual Life Insurance Co. v. Cohen, 179 U. S. 262; Mutual Life Ins. Co. v. Hill, 193 U. S. 551. We have already stated the substance of the New York statute of 1897, which this count averred was by the application made a part of the contract of insurance. Before the words “in this state” had been put into the statute it was held that this statutory provision of the state of New York in reference to forfeitures did not of itself apply to contracts made by a New York company outside of that state, but only to business transacted within the state of New York. Mutual Life Ins. Co. v. Cohen, supra; Mutual Life Ins. Co. v. Hill, supra. Strong-reasons why such statutes cannot have extra-territorial effect are given in the Cohen case. Said former statute of New York is set out in full in Mutual Life Ins. Co. v. Phinney, 178 U. S. 327, 330. In 1897 said statute was re-enacted and the words “at his or her last-known post-office address” were changed to read “at his or her last known post-office address in this state.” This made it still clearer that the act could not be operative, and that these provisions as to notice before forfeiture were not intended to be operative, outside of New York state, and cannot' apply to a policy-holder whose address is in another state. Therefore no notice to Bose was required before a forfeiture would- follow his non-payment of the premium for the second year. Again, according to the allegation of this count, the contract was only made subject in general terms to the laws of New York, while in the contract there was an express stipulation as above quoted that notice that each and every such payment of premium is due is given and accepted by the delivery and acceptance of the policy, and any further notice required by the statute is expressly waived. While the reference to the laws of New York-is general, the provision of the contract above referred to is special and is directed particularly to the subject of notice when a payment of premium will become due. Upon the subject of apparent conflict between general and special provisions of a contract the court in Mutual Life Ins. Co. v. Hill, supra, made the following observations: “The ordinary rule in respect to the construction of contracts is this: that where there are two clauses in any respect conflicting, that which is specially directed to a particular matter controls in respect thereto over one which is general in its terms, although within its general terms the particular may be included. Because when the parties express themselves in reference to a particular matter the attention is directed to that, and it must be assumed that it expresses their intent, whereas a reference to some general matter, within which the particular may be included, does not necessarily indicate that the parties had the particular matter in thought. Here, when the parties stipulate that no other notice shall be required, attention is directed to the particular matter of notice. When the stipulation is that the contract shall be construéd to have been made in New York, no particular statute is referred to, and the attention may not be directed to the matter of notice, or any other special feature of New York law. The special controlled the general; that which must have been in the minds of the contracting parties controls that which may not have been, although included within the language of the latter stipulation. This is the general rule in the construction of all documents—contracts as well as statutes.” For these reasons we hold that the reference in the contract to the laws of New York did not require appellee to give notice to Bose when a premium became due, as a condition precedent to the lapse of the policy for non-payment thereof, and therefore the averment that Bose paid all premiums of which due notice was given him by appellee as required by the laws of New York was not an averment that Bose paid any premium after the first. We therefore hold that the first count did not state a cause of action.

The second count averred that “on, to wit, May 12, 1904,” Bose paid appellee $169.40, in consideration of which appellee agreed to make and deliver to Bose a contract insuring his life for $5,000 in favor of appellee, his daughter, and agreed to give him one year of insurance, and to continue said insurance provided he would within thirty days after the expiration of the first year, and after the expiration of each subsequent year pay appellee $169.40; that thereafter, “on, to wit, July 17, 1904,” appellee delivered to Bose a policy of insurance which is set out in the count and is the same as set out in the first count. The second count averred that Bose refused to accept said policy, and gives the reasons which he stated to appellee for so refusing, and that appellee thereupon agreed to have another policy issued as of that day, properly describing the beneficiary, and otherwise' identical with that set out; that Bose relying on said promises, 'retained the policy, but that appellee did not deliver a new policy as agreed; and it averred the death of Bose, notice of death and denial of liability, as before. If the use of the videlicet in alleging these dates be treated as having the effect already stated, then there is no date positively stated in this count except the date of the policy, and if that is the date when the contract became effective-, then the policy had become forfeited by its own terms before Bose died, and the verbal contract, if any, is not shown to have been in force when Bose died. If the use of the videlicet be disregarded, the substance of the count is that Bose paid the premium for .one year on May 12, 1904, and that appellee agreed to issue a policy which should be effective for thirteen months; that it delivered to Bose a policy which he refused to accept; that it agreed to issue another policy to meet his requirements and did not do so, and that Bose died August 3, 1905. The count does not allege a contract that Bose should be treated as insured from May 12, 1904, or from any other date. The count does not allege the payment of any further premiums. It does not allege that the policy which Rose retained but refused to accept was ever in force. It therefore does not state a cause of action at law in behalf of appellant. "Whether she can maintain a bill to compel the issue of the policy promised, or whether-the personal representative of Rose can maintain a suit to recover the $169.40 cannot be determined in this suit.

The third count is substantially like the second, except that it alleges that when Rose stated to appellee the reasons why he refused to accept the policy, appellee agreed to have the date of the policy changed from May 23, 1904, “to, to wit, July 17, 1904,” and to correct the description of the beneficiary from wife to daughter, the other terms to be identical with the ones set out, and that appellee did not change the policy as agreed. This count shows that.the policy set out was not accepted and did not become a binding contract, but that appellee promised to prepare a different policy. As the date which the changed policy was to bear is stated under a videlicet the contract does not show that the date was to be within thirteen months before Rose died. If this count can be said to state a verbal contract to insure for thirteen months in consideration of the sum paid, then that contract either went into effect on May 12, 1904, or as that date is also laid under a videlicet, the time when it went into effect is not positively stated. If it went into effect on May 12, 1904, it had become forfeited before Rose died. If it went into effect on some other date, the count does not show that it was in force when Rose died.

The fourth count alleges that “on, to wit, the 12th day of May, 1904,” Rose paid appellee $169.40 and that for that consideration appellee agreed to pay appellant $5,000 on the death of Rose; that appellee agreed to execute and deliver to Rose a policy to that effect to be in force from the time of its issue, and that said $169.40 should keep said policy in force thirteen months from its issue; that appellee did not execute said policy hut retains the $169.40; that Bose died on August 3, 1905, and it alleges notice of death and denial of liability as before. If this alleges a verbal contract of insurance made on May 12, 1904, it also alleges that the payment was to keep the insurance in force for thirteen months and that that time had expired before Bose died. If the use of the videlicet in connection with the date of May 12, 1904, gave appellant the right to prove thereunder any date other than May 12, then the allegations are uncertain and do not show that the verbal contract was in force when Bose died.

The fifth count alleges that “on, to wit, the 22nd day of May, 1904,” appellee made and • afterwards issued the policy set out. It makes the same averments concerning the New York statute as in the first count, makes the same allegations as in the first count of the payment of the first premium, and that Bose thereafter paid all premiums of which due notice was given him under the laws of New York, and avers the death of Bose, and notice thereof and denial of liability in the first count. It does not aver when the policy was issued. It must therefore be assumed that it was issued at its date, May 23, 1904. The payment of the first premium therefore only kept the policy in force till June 22, 1905, and under the views expressed by us in discussing the first count the policy had lapsed by its own terms before Bose died, under the allegations of this count.

The sixth count is like the first, except as hereinafter stated. It sets out in full the application and medical examiner’s report. The application states that it is subject to the laws of the state of New York. It contains the following answers: “I reside at 319 Jackson street, in the city of Paducah, county of Mc-Cracken, State of Kentucky.” “My former residence were same.” “My place of business is 104 and 105 Fraternity Building:” “My P. 0. address is same.” It also contains the following at the close of the-application: “I have paid $............ to the subscribing soliciting Agent, who has furnished me with a binding receipt therefor, signed by the Secretary of the Company, making the insurance in force from this date, provided this application shall be approved, and the policy duly signed by the Secretary at the Head Office of the Company and issued. Dated at Paducah, Ky., May 12, 1904. Signature of person whose life is proposed for insurance, (Signed) Herbert A. Bose. I have known the above named applicant for about three months and saw him sign this application. I have issued binding receipt No,.... on account of this policy contract. (Signed) L. A. Werner, Soliciting Agent.”

If the fact that the blanks are not filled up in the part of the application last above quoted and in the agent’s certificate thereunder means that said parts of the application and certificate were not intended to be adopted by the signers, then they have no bearing on this count. If, however, they are effective parts of the application and of the certificate of the agent, then this insurance was to take effect from May 12, 1904. Under the other language of this count, which is exactly the same as that discussed under the first count, there is no averment of the payment of any premium after that covering the first year. The thirteen months had therefore expired according to this count long before Bose died.

This count also states that appellee claims to have sent to Bose at 319 Jackson street, Paducah, Kentucky, a notice of the time when the second premium became due, and it sets out the alleged notice. It then avers that 319 Jackson street, Paducah, Kentucky, was never the post-office address of Bose, but was merely his boarding house when in Paducah, and that he was never there but once or twice a month and never received said notice. As we have already held that by the contract notice was waived and that appellee was not bound to give notice of the maturity of the second premium, this averment was immaterial.

The seventh count is like the sixth, except that it omits all allegations in reference to an attempt by appellee to notify Eose of the maturity of the second premium. If the views we have hereinbefore expressed are correct, no count of this declaration states a cause of action.

The judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Joseph Perido, Appellee, v. Chicago, Burlington & Quincy Railroad Company, Appellant.
    Gen. No. 5,047.
    1. Evidence—should be confined to issues. Evidence which does not tend to prove any issue involved in á case is immaterial and should he excluded.
    2. Instructions—effect of refusing abstract proposition of law. An instruction though correct, if abstract in form, may be refused without the commission of error.
    Trespass on the case. Appeal from the Circuit Court of Whiteside couty; the Hon. Frank D. Ramsay, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded.
    Opinion filed October 14, 1908.
    Rehearing denied November 11, 1908.
    A. A. Wolfersperger and J. A. Connell, for appellant.
    McCalmont & Ramsay and D. C. Waite, for appellee ; Blodgett & Riordon, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

Johnson Creek in Whiteside county,, at the place here in question, runs in a southwesterly direction and passes through the farm of Joseph Perido, the appellee. Originally somewhat crooked, the bed of the stream has been straightened and deepened by a drainage district. The drainage district built levees of earth on each side of the new channel, and there were box culverts and iron culverts at places to allow water from the adjacent lands to pass into the creek, and these sluiceways were protected by gates to prevent water passing from the creek upon the lands. About a mile or a mile and a quarter below appellee’s farm, the Fenton & Thompson Eailroad Company built an embankment and laid thereon its railroad tracks across the valley drained by this creek and by Otter creek, just south of this, and built a bridge over Johnson Creek. It was supported by eight rows of four wooden piles each, and the piles were twelve to eighteen inches in diameter, and said rows were about fourteen or fifteen feet apart. The rows were at right angles to the railroad track and at an angle of 42 degrees to the stream, ánd there was proof that a person standing ten or fifteen rods up stream in the middle of the creek could not see through underneath the bridge, but the piles proved practically a solid obstruction to his vision. On December 30, 1906, after the ordinary water in the creek had been frozen over, there was a heavy rain and flood, and there was an ice gorge in Johnson Creek which dammed the water back so high at appellee’s farm that it swept away the dike on the southeast side and flooded a large portion of his farm, and the waters left the bed of the creek and flowed across his land. Johnson Creek came from sand hills some miles above. The flood carried large quantities of sand upon portions of appellee’s farm, and made the rest of it so wet and swampy that, according to appellee’s proof, it was unfit for cultivation the next year. Appellee’s proof was that between twenty-eight and twenty-nine acres of the farm were covered with sand to a depth of from eight and a half inches to twenty-four inches. On March 1, 1906, preceding this overflow, the Chicago, Burlington & Quincy Bailroad Company, appellant, purchased the railroad of the Fenton & Thompson Bail-road Company and thereafter operated the same. Appellee brought this action against appellant to recover damages for the injury to his land occasioned by said overflow, charging that the manner in which the wooden piles were set and maintained across the stream caused the forming of this ice gorge and the consequent injury to his land. Appellee had a verdict for $1,610.82. The court below denied a motion by appellant for a new trial, and gave appellee a judgment on the verdict, from which defendant below appeals.

It is contended that the court below erred in sustaining objections to questions put by appellant to certain experts, with reference to the formula recognized among engineers for the capacity of bridges, and whether this bridge afforded an adequate outlet for the waters of the territory drained by Johnson Creek. It was not stated as a cause of action in appellee’s declaration, nor did appellee seek to prove, that the bridge was insufficient to allow the waters to pass through but the alleged cause of action was the setting of the rows of piles at an angle of 42 degrees with the course of the creek and thereby obstructing the flow of ice and debris down the stream and causing an ice gorge and a consequent flood over appellee’s lands. The inquiry whether the bridge was recognized by engineers as sufficient to carry the waters of the valley was therefore immaterial.

The trial court permitted both parties to show the conditions existing on December 30, 1906, and for a few days thereafter, immediately below the bridge, but confined that inquiry to the immediate vicinity of the bridge. The dike broke and was swept away and appellee’s farm was flooded about four o’clock in the afternoon of December 30. Appellant introduced evidence tending to show that there was no ice at the railroad bridge at that time, but that the gorge of ice was then formed some distance above the bridge, and that at four o’clock that afternoon at the railroad bridge the water was flowing northeast up stream. Appellant then sought to introduce a plat of all the surrounding country, showing that Otter Creek and Johnson Creek joined about a quarter of a mile below this railroad bridge, and that the joint stream was crossed a little further down by a highway bridge and still further down by railroad bridges of the Chicago, Milwaukee & St. Paul Railroad and of another line of appellant. Appellant then inquired of witnesses what caused the water to run northeast up stream at the bridge in question. The trial court refused to admit that part of the plat which showed the union of Johnson and Otter Creeks, and the highway and railroad bridges below, and required that part of the plat to be cut out before admitting the rest of the plat in evidence, and refused to admit proof of what caused the water at the bridge to flow up stream.

Appellee was not living upon his farm at the time of this flood. He was not present till some days later. He had but one witness who testified that the gorge of ice extended up from the railroad bridge on the afternoon of December 30, when the gorge of ice caused the water to rise above the top of the dike in appellee’s farm, to overflow upon his land and to wash out the dike, and to turn substantially the entire flood waters out of the creek and over his land, carrying with it the sand which was then deposited thereon and caused the main damage. That witness on cross-examination showed that he only viewed the scene from the highway bridge northeast of appellee’s farm and from appellee’s farm that afternoon, and that he did not go to the railroad bridge till the next day. Therefore his statement that the gorge of ice began at the railroad bridge, seems to have meant merely that he so concluded from what he saw at the railroad bridge next day. Appellee’s other witnesses did not say that there was a gorge of ice at the railroad bridge that afternoon. Several of them did testify that on December 31, they found the ice piled up at the railroad bridge. On the other hand, appellant produced six or eight witnesses who were at the railroad bridge on the afternoon of December 30, at the hour when the dike broke on appellee’s farm, or later that afternoon, several of them farmers living near by and who would not be likely to be prejudiced in favor of appellant, who testified that there was no gorge of ice or piling of ice at the railroad bridge that afternoon, and some of them testified that they could see that the ice was gorged or piled up at the bend in the creek some seventy-five rods above the railroad bridge, and that, while there was ice in the bottom of the creek at the railroad bridge, yet it had not risen, and the water was flowing over the ice. Several of them also testified that the water at the railroad bridge at that time was flowing up stream. There was a very decided preponderance of evidence that there was no ice gorge at the railroad bridge that afternoon, but that the lower part of the ice gorge, and the place where the ice began to pile and create the dam which forced the water above over the dike upon appellee’s land, and washed out the dike there, was at the bend of the creek some seventy-five rods above and northeast of the railroad bridge. If that evidence was true, then the maintenance of the piles under the bridge as described did not cause the injury to appellee’s land, unless the piles caused the gorge at the bend of the creek. Certainly, under the proof mentioned, nothing at the railroad bridge could have caused that gorge to form so far above the railroad bridge, unless it was the flow of the water up-stream.

We conclude, therefore, first, that the court should have awarded a new trial on the ground that the verdict for appellee was against the clear preponderance of the evidence, and, second, that the court should have permitted proof by appellant of the conditions at the wagon bridge below this railroad bridge, and at the other railroad bridge below that, so far as such proof would "tend to show what caused that water to flow upstream. This proof is admissible, first to show that appellant was not responsible for any stoppage of ice at the bend in Johnson Creek, even if the jury concluded that such stoppage was caused or aided by the flow of water up-stream, and, second, because the jury might be disinclined to believe that the water flowed upstream, in apparent violation of the laws of nature, and appellant had a right to remove any such defect in its proof by showing that existing conditions below, for which it was not responsible, forced the water to turn back.

Appellant argues that the court erred in giving the first instruction requested by appellee, on the ground that it made appellant an insurer. Some of the instructions in this record are not numbered, but those which may be called the first and second were held not erroneous in O. & M. Ry. Co. v. Thillman, 143 Ill. 127. Appellant argues that the court erred in refusing to give instruction number five requested by it. It is an abstract proposition of law and does not attempt to apply that proposition to this case, and on familiar principles it was not error to refuse it. Moreover, the general question of the exercise of engineering skill in the building of this bridge across this waterway was not involved, but only the presence of these piles in the channel diagonally across the course of the water and as close together as they were, as impeding the flow of ice when carried down by a flood. It is argued that the court erred in refusing the eighteenth instruction requested by appellant. It is said that there was no evidence that when this embankment and bridge were built there was any other natural passageway for the water, other than Johnson Creek. The evidence was there was a deep valley there about one mile wide. The drainage district and its work and dike did not go below the bridge. In a state of nature the water would have flowed over the surrounding country if a gorge formed in the bed of the creek, and the heavy earth embankment maintained by appellant prevented that natural flow of water. But for this embankment a gorge of ice in the bed of the creek at the place where the railroad bridge was located (if the gorge was there), would not have dammed the water back towards appellee’s farm for any considerable distance. This instruction was therefore calculated to mislead the jury. Appellant complains of the refusal of its instructions Nos. 12, 15 and 16, and of the modification of its instruction No. 11. An examination of the instructions given at appellant’s request will show that the substance of these instructions was given to the jury. We are of opinion that appellant was not injured by the rulings upon the instructions.

But because the court should have permitted appellant to prove what conditions below this railroad bridge caused the water to flow up-stream under the railroad bridge, and because the verdict is contrary to a clear preponderance of the evidence, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Smith

text:
    Paul Oscar Steidtmann, Appellant, v. The Joseph Lay Company, Appellee.
    Gen No. 13,438.
    APPEALS AND ERRORS-when merits not subject to review. Upon reversal by the Supreme Court and remandment to the Appellate Court under a holding, among other things, that the trial court erred in excludin~g certain material evidence, the Appellate Court will not pass upon the merits of the cause.
    Assumpsit. Appeal from the County Court of Cook county; the Hon. ALVA F. WINGERT, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Reversed and judgment here.
    Opinion filed November 22, 1907.
    (Opinion not reported.) Reversed by Supreme Court and reinstated in this court October 23, 1908.
    Reversed and remanded.
    Opinion filed November 6, 1908.
    A. W. MARTIN and EDWARD H. S. MARTIN, for appellant.
    EMERSON E. McGriff, Frederick S. McClory and Lyman M. Paine, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

In Steidtmann v. Joseph Lay Co., 234 Ill. 84, the judgrnent of this court was reversed, and the cause was remanded to this court because there was no sufficient finding of facts incorporated in the judgment of this court, with directions that if the facts are held by this court to be different from the finding of the trial court, this court may found its judgment upon such different findings and to recite the facts so found in the judgment; but if the facts are not so found different from the finding of the trial court, the judgment should be reversed for the errors occurring on the trial and the cause remanded to the County Court.

The Supreme Court held that reversible error was committed by the trial court in excluding certain material evidence. It would be manifestly improper for us to consider and pass upon the merits of the cause until all the material evidence can be brought before us. Accordingly, the judgment of the trial court is reversed and the cause is remanded to the County Court for the errors pointed out by the Supreme Court.

Reversed and remanded.


text:
    Jacob Tyma, Appellee, v. Tarrant Foundry Company, Appellant.
    Gen. No. 14,153.
    1. Master and servant—what essential to sustain recovery for injury caused by defective appliances. A servant in order to recover for defects in the appliances of the business is called upon to establish three propositions: first, that the appliance was defective; second, that the master had notice thereof or knowledge or ought to have had, and third, that the servant did not know of the defect and had not equal means of knowing with the master.
    2. Master and servant—when former not obligated to cover gearing. The master is not bound in law to cover the gearing, which is in plain sight, of a machine on which the servant has agreed to work, and is not liable to an action by a servant injured thereby for neglecting to do so, especially where there was no evidence tending to show that it was proper, practicable or feasible to cover the gearing on the machine in question.

      8. Master and servant—what within doctrine of assumed risTc. The risk of injury from working upon a derrick which is without covering to its gearing, if apparent, is assumed by the servant.
    Action in case for personal injuries. Appeal from the Circuit Court of book county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed with finding of fact.
    Opinion filed November 6, 1908.
    Statement by the Court. Appellee Tyma brought suit against Tarrant Foundry Company, appellant, to recover damages for personal injuries sustained by him January 13, 1903, while he was employed by appellant in its foundry in the city of Chicago as a moulder’s helper.
    The declaration consists of two counts. The first count avers that appellant was negligent in failing to use ordinary care to put and keep its crane and the windlass and gearing thereto attached in a safe condition and in good repair so that persons working on or about the same would not be injured, but it permitted one of the handles of the windlass of said derrick to become worn out, loose and in bad and unsafe condition, and commanded appellee then and there to use said handle and wind said windlass with said defective handle, in order to elevate a heavy piece of iron; and that appellee at such command, using due care for his own safety, took hold and commenced to wind and revolve said windlass, when through the carelessness of appellant as aforesaid, the defective handle became separated from and flew out of and away from said windlass with great force and throwing the right hand of appellee between certain cogs of the said derrick, and his right hand was thereby badly cut, crushed and wounded, so that four of the fingers of said right hand were then and there amputated, etc.
    The second count alleges the duty of appellant to use ordinary care to cover and keep covered the gearing of said crane or derrick, so as to prevent injury to persons working upon said crane, and that it did not regard its duty in that behalf, and did not use ordinary care to cover and keep covered said gearing, but negligently permitted said gearing to remain open and uncovered to the danger of persons working thereabout, and that by reason thereof, when the handle of the windlass of said crane became loose, the right hand of appellee was caught between the unprotected gearings of said derrick and injured.
    The evidence in the record tends to show that appellee Tyma commenced to work for appellant January 2, 1903, as a common laborer, at first. Subsequently he worked as a moulder’s helper in a certain room in appellant’s-foundry. About seven o’clock on the morning of the day he received the injury appellee began his usual work in the room where he had been working up to that time, and continued his work for about one-half hour, when appellant’s foreman took appellee into another room and to one of its moulders and informed the moulder that appellee would be his helper; and then instructed appellee to do whatever the moulder told him to do.
    There was an ordinary hand derrick or crane near by, used for elevating and moving for short distances castings, etc. The crane was equipped with a shaft running across two upright timbers and attached thereto. On this shaft was a small cog-wheel or pinion which intermeshed with a much larger cog-wheel attached to a drum. The weight to be raised and moved was attached to a rope which wound around the drum. The crane was operated by an iron crank or handle through the end of which was a square hole which fitted over the squared end of the shaft upon which the pinion or small cog-wheel was fastened. On one side of the crane was the slow gear and on the other side a faster gear, and this handle was used interchangeably for either gear. When the operative desired to use the slow gear he slipped the crank on the squared end of the shaft to which was fastened the slow gear; and if he desired to use the fast gear he would put the handle on the end of the shaft connected with that gear. At the time of the accident appellee was using the slow gear. The handle or crank had been in use many years at the time of the accident in question, and the square hole in the end was somewhat worn by use.
    According to the testimony of appellee, he had never used this crank or handle prior to the day of the accident. On that day he had used it twice, and while using it the third time was injured.
    At the time in question the moulder had prepared, with the assistance of appellee, a large receptacle called a cope, weighing about 700 pounds, which was filled with sand. When thus filled the total weight of cope and sand was about two tons. The moulder directed appellee to raise it up by turning the drum of the crane with the handle. In obedience to the command of the moulder, appellee raised the cope to a height of four or five feet, and was then directed to lower it, which he proceeded to do by reversing the motion of the handle. While doing so the handle was jerked off, or it slipped off the end of the shaft and fell to the floor, and appellee either fell, throwing his hand into the gearing, or endeavored to stop the crane by taking hold of the gear, and his hand was drawn between the cog wheels.
    The trial resulted in a verdict against appellant, upon which judgment was entered.
    A motion was made at the close of the plaintiff’s evidence to instruct the jury for the defendant, which was denied. A similar motion was made at the close of all the evidence and denied; and exceptions to the rulings of the court were preserved.
    Horton, Brown & Miller, for appellant.
    W. D. Munhall, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

A reversal of the judgment is urged upon the grounds that the evidence is insufficient to maintain a cause of action under either count of the declaration; that the trial court erred in refusing an instruction requested by appellant; and on the ground that counsel for appellee made improper remarks in his argument to the jury. In the view we take of the case it will be unnecessary for us to consider any other than the first ground above stated.

The rule of law in respect to the burden of proof that is imposed upon a servant in a suit against his master for injuries resulting from defective machinery is stated in section 414 of Wood on the Law of Master and Servant, as follows: “The servant, in order to recover for defects in the appliances of the business, is called upon to establish three propositions: 1st. That the appliance was defective; 2nd. That the master had notice thereof, or knowledge, or ought to have had; 3rd. That the servant did not know of the defect, and had not equal means of knowing with the master”. This is the well settled law of this State. Goldie v. Werner, 151 Ill. 551; Armour v. Brazeau, 191 id. 117, 126; Sargent v. Baublis, 215 id. 428, 432, 433; Montgomery Coal Co. v. Barringer, 218 id. 327, 329.

The evidence shows that the crank which appellee was using was the simplest possible appliance, and that it was designed to slip on and off the shaft readily and easily as it was desired to use it on one end or the other of the shaft. No method or means was provided for fastening the crank on the shaft. The crank is not shown to be in a bad or unsafe condition, although it was worn, and it fitted loosely on the shaft. Everything about it was open and obvious at a glance, and appellee, by the exercise of ordinary care in the use of it, must have had full knowledge of all defects in it, and was therefore bound to take notice of any such defects. As said in Armour v. Brazeau, supra, he could not assume a fact against his own knowledge, and assume that a defect open to his observation did not exist. The evidence does not tend to prove that the handle was so worn out that it did not engage the shaft when properly placed thereon. On the contrary, it shows that the handle did engage and control the shaft when properly placed thereon, and that the cause of the injury, on appellee’s theory of the case, was the removal of the handle in some way from the shaft, whereby appellee lost control of the derrick after the load had been lifted to the desired height, and while appellee was endeavoring to lower it. The witness Motzny testified that when he saw appellee’s hand in the gearing the handle was on the ground, and the witness picked it up and put it on the shaft. This he did doubtless in order to use it in releasing appellee’s hand.

The witness Storz testified: “I examined the handle right after Tyma was hurt. I found it worn out, it fell out. The handle was loose there in the hole. The hole in the handle was worn out. The hole there was too big, and that is all. I couldn’t tell how much it was too loose. * * * I used the same crank handle there during the week that I worked there after this accident. We hoisted whatever loads happend to come along, quite a few were copes, lifted the same kind of cope that was being lifted at the time this man was hurt ’ ’.

Appellee Tyma’s account of the accident is as follows: “I raised the cope with both hands, then the moulder said ‘down’ and I commenced to let it down. The handle was loose and it kind of jerked and the handle flew off, and I got my hand in there. The handle went onto the floor”.

This is all the evidence in the record to support the allegations in the first count of the declaration that the defective handle caused the injury to appellee. It does not warrant the inference, we think, that appellee was injured through or by reason of any defect in the handle.

Appellant called as witnesses Johnson, Abplanalp, Black, McIntyre, Stnmpf and Ingstead. All of these witnesses testified that the handle was not ont of repair at the time appellee was injured, and that the same handle was nsed every day on the same shaft for six months after the accident to appellee, without any change or repairs on either handle or shaft. Some of the witnesses testified that the handle in question had been used constantly from the day of the accident to appellee, January 13,1903, until the day of the trial of the case, May 14, 1907, without any change or repairs. We think, therefore, that the testimony on behalf of appellee fails to make out the cause of action averred in the first count of the declaration and, further, the great preponderance of the evidence in the case shows that the appliance furnished appellee was not defective, and that appellee’s injury was not caused by the worn condition of the handle.

As to the negligence averred in the second count of the declaration that appellant neglected and failed to use ordinary care to cover and keep covered the gearing of the derrick and that in consequence of such negligence appellee’s hand was thrown into and between the gearing and injured, the evidence fails to show that there was anything about the cog-wheels which made them dangerous, uncovered as they were, to an operative in the ordinary course of his employment in the operation of the derrick. It was not necessary for appellee in operating the derrick to put any part of his body in close proximity to the wheels. The uncontroverted fact shown by testimony offered by appellant is that appellee did not properly place the handle on the shaft or he pulled it off the shaft in some manner and it fell to the ground, and thereupon appellee took hold of one of the gear wheels and tried to keep it from turning and so keep the cope from going down to the ground; that he held on so long that his hand was forced around between the small pinion and the large wheel. After this testimony was given by Johnson and Abplanalp and Stumpf, appellee was recalled on rebuttal and made no denial of the statement of these witnesses. No evidence was offered in behalf of appellee controverting the testimony of these witnesses. Their evidence therefore stands uncontradicted or explained; and if true, as we think it must be considered, the negligence averred in the declaration was not the cause of the injury. On the contrary it appears that the injury to appellee’s hand was the result of his own inconsiderate and impulsive act.

Furthermore, as the court said in Kolb v. Chicago Stamping Co., 33 Ill. App. 488, speaking through Mr. Justice Moran, at page 490 of the opinion: “There is no evidence tending to show that the appliances for doing the work were not of the usual kind, or that they lacked any safeguard that was in use on such machines, or that its operation was attended with any danger not plainly apparent and not easily avoided by ordinary attention. Counsel for appellant strenuously argues that it was negligence not to have the treadle boxed, but there is no evidence introduced to show that it could be boxed, or that it was usual or customary to box treadles on such machines”.

So here, there is no evidence in this record that it is proper, practicable or feasible to cover the gearings on the derrick in question; or that on similar machines such gearings were covered or that it was usual and customary to cover them.

A master is not bound in law to cover the gearing, which is in plain sight, of a machine on which the servant has agreed to work, and is not liable to an action by a servant injured thereby for neglecting to do so. McGuerty v. Hale, 161 Mass. 51; Wilson v. Mass. Cotton Mills, 169 id. 67.

Appellee was a man forty years of age and of ordinary intelligence and powers of observation. He assumed to work on the derrick in its then condition without the gearing covered and without making any complaint as to its condition. The danger of getting caught in the gearing was an obvious one, and was as apparent to appellee as it would have been had he been particularly cautioned against it. Appellee, therefore, assumed the risk of operating the derrick without a guard or cover.

Appellant’s motion at the close of all the evidence to instruct the jury to find the defendant not guilty should have been allowed and the jury should have been so instructed.

The judgment of the Circuit Court is reversed, but the cause is not remanded, and a finding of fact is made.

Reversed with finding of fact.


author:
Mr. Presiding Justice Smith
      Mr. Justice Chytraus

text:
    Bedelia Fitzgerald, Appellee, v. City of Chicago, Appellant.
    Gen. No. 14,159.
    1. Pleading—when averment of injuries sufficient to admit particular evidence. Held, that a declaration which after averring certain specific injuries, proceeded as follows: “and she thereby then and there suffered divers internal and external injuries, and she thereby also then and there received a serious and permanent shock to her spine and nervous system, and as a direct result and in consequence of said injuries she became and was sick, sore, lame and disordered,” etc., is sufficient to admit evidence of injuries to knees, ribs and nerves.
    2. Evidence—what improper form of hypothetical question. It is improper, after an expert has testified to finding certain physical injuries, to ask him if in his opinion a particular accident caused such conditions.
    3. Evidence—what not erroneous exclusion in action for sidewalk injury. It is not error to refuse to permit a witness to testify as to whether there was a beaten path leading onto or off the sidewalk in question at either end of it, nor is it error to refuse to permit a witness to testify as to whether a particular street or sidewalk in question was the usual way of travel from a particular point.
    4. Appeals and errors—what essential to preserve propriety of

      question for review. In order to preserve for review the propriety of a hypothetical question put to a medical expert, it is essential that an exception he preserved to the ruling of the trial court.
    5. Measure of damages—in action for personal injuries. The use of the phrase “doctor’s bill” in an instruction upon this subject is criticised in a dissenting opinion filed in this case by Mr. Justice Chytraus.
    Chytbaus, J., dissenting.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlaiit, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed on remittitur.

    Opinion filed November 6, 1908.
    Statement by the Court. This action was brought by Bedelía Fitzgerald, appellee, against the City of Chicago to recover damages for injuries alleged to have been sustained November 12, 1904, by falling upon a defective sidewalk on the north side of Sixty-eighth street, near and east of Stony Island avenue, Chicago. The plaintiff had judgment, and the defendant prosecutes this appeal.
    The declaration avers in substance that appellant possessed and controlled a certain public sidewalk at the place above described, and that it negligently permitted a certain portion of said sidewalk to become and remain in a defective and improper and dilapidated condition of repair, in that many of the boards composing said sidewalk were loose and unfastened, and the stringers upon which said boards rested were decayed and rotten and some of the boards were missing, and all of the boards were unfit for the purpose for which they were used; that said condition of the sidewalk had existed for such a length of time prior to the injuries complained of that the appellant knew, or by the use of ordinary care in that behalf, would have discovered said defective condition. And it is averred that appellee, while walking along and upon said sidewalk with all due care and without knowing its loose condition, stepped upon one of said loose boards, and was thrown violently upon the sidewalk, suffering certain alleged injuries.
    All of the witnesses introduced on the trial practically agree that the piece of sidewalk in question had become out of repair and was dangerous to walk upon, and had been in this condition for several months prior to the accident in question.
    The evidence in the record shows that there was a heavy wind blowing, and that appellee went upon the sidewalk in question in order to obtain the protection of an adjacent high board fence. While walking along on the sidewalk close to the fence she stepped with her right foot upon the end of a board on the right side of the stringer, and as she did so the plank, being-loose, tipped up, and her right foot went into the hole thus made, and while in the act of bringing her left foot forward it struck the board and she was thrown and fell heavily upon her side and face.
    The trial resulted in a judgment against appellant for $2,500, which appellant contends is excessive and erroneous.
    Edward J. Brundage and John R. Caverly, for appellant; Edward C. Fitch, of counsel.
    John F. Waters, for appellee; Joel Baker, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Appellant contends that the court erred in not excluding the testimony of Dr. Cox introduced by appellee, on the grounds of a variance and incompetency.

The record shows that shortly before testifying, Dr. Cox made an examination of appellee for the purpose of qualifying himself to testify in the case as an expert. He was asked to describe to the court and jury what he found from his examination, confining himself to the objective symptoms. He testified that on the sixth and seventh ribs, just back of the posterior axillary line, he found two lumps; that he examined her ankles and knees and shoulders and he found on the right knee a creaking noise on motion, and it was not as limber as the other knee; and that he found the same condition on the left shoulder. Counsel for appellant thereupon moved to strike out the above testimony, on the ground that there was no allegation in the declaration that the knee or ribs were injured. The court denied the motion.

We are of opinion that the averments of the declaration are broad enough to make the testimony admissible and that the court did not err in refusing to strike out the testimony.

The same witness further testified that he examined appellee’s nerves—the nerves of the eyes, of the skin, of the knees and wrists and elbows; that the nerves of the skin were not active, and did not respond to irritation readily; that the nerves of the eyes were slow in action and the knee jerked and the wrist jerked and the reflex actions were exaggerated, and that the circulation was poor.- He examined the eyes in refence to the action of the pupils, which he found slow and sluggish in their reaction, and that this indicated a sick nerve. This testimony was objected to by appellant on the same ground, and the court overruled the objection. In this ruling we think the court did not err. The declaration after averring certain specific injuries proceeds: “and she thereby then and there suffered divers internal and external injuries, and she thereby also then and there received a serious and permanent shock to her spine and nervous system, and as a direct result and in consequence of said injuries she became and was sick, sore, lame and disordered,” etc. These averments, we think, were sufficient to justify the admission of the evidence objected to, and that there was no variance.

The witness stated that the conditions which he found might be produced by an injury, and if they re-suited from an injury suffered November 12, 1904, and if she had been treated by a physician since that date, the conditions which he found were permanent.

It is urged that this testimony was improperly admitted because the questions put to the witness did not ask for his opinion as to whether the accident of November 12, 1904, caused the conditions described.

We do not think it would have been proper to ask the witness whether in his opinion the accident' of November 12, 1904, caused the conditions. That was a question of fact for the jury. In Chicago Union Traction Co. v. May, 221 Ill. 530, the court say at page 536 of the opinion: “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 submit the question of the cause of her then physical condition, as a question of fact to the jury under proper instructions”, etc.

We think there is evidence in the record to support the hypothetical questions put to Dr. Cox. We find no objection made, or exception saved on that ground, to the hypothetical questions put to Dr. Cox, and hence there is no such question on his testimony for this, court to review.

We find no reversible error in refusing to permit Koehler, Jr., to testify as to whether there was any beaten path leading onto or off the sidewalk in question at either end of it, or in refusing to permit the witness Fox to testify whether or not Sixty-eighth street or the sidewalk in question was the usual way of travel out to Stony Island avenue from the pipe yard and waterworks. This evidence would in nowise aid the jury to decide whether appellee was in the exercise of due care under the circumstances immediately before and at the time of the accident.

The court gave what is known as the eighth instruction requested by appellee upon the measure of damages. This instruction, after enumerating several elements of damages which the jury should take into consideration, proceeds as follows: “all monies necessarily expended or become liable for doctor’s bills, if any, while being treated for such injuries which the jury may believe from the evidence she has expended or become liable for, if any”, etc.

It is contended that there is no evidence upon which to base the instruction.

Dr. Small testified that he made eight or ten visits to appellee, and she was in his office four or five times, and it may have been more than that; and that he charged her two dollars a visit; that he rendered her a bill for these services and she paid him for his services. We think this evidence afforded a sufficient basis for that part of the instruction.

It is further urged that there is no evidence of any “loss of time and inability to work and transact business”, which the instruction directed the jury to consider.

Appellee testified that since the accident she has been unable to do any baking, cooking, washing or scrubbing. Dr. Small testified that appellee was confined to her room with pleurisy for several weeks. The evidence tends to show that some of the injuries complained of are permanent. We think the evidence was sufficient in this particular for the jury to consider, and afforded a sufficient basis for the instruction.

The record discloses no substantial defense to the action. But, upon a consideration of the injuries shown and their extent, we are of the opinion that the verdict and judgment of $2,500 is excessive. In our opinion the evidence justifies a recovery for $1,500, but not more than that amount. If, therefore, appellee shall remit from said judgment one thousand dollars and file such remittitur in writing in this court within ten days, the judgment may be affirmed, but otherwise it will be reversed and the cause remanded.

Affirmed on remittitur, otherwise reversed.

Remittitur filed and judgment affirmed.

Mr. Justice Chytraus

dissenting:

The rule of law presented by the plaintiff’s eighth instruction, which rule the jury were directed to adopt and follow in admeasuring to the plaintiff her damages, I cannot assent to as being correct. The proposition is that in determining the amount of plaintiff’s damages the jury (always so far as shown by the evidence) should take into consideration the nature and extent of plaintiff’s physical injuries, and they may take into consideration '‘ suffering in body and in mind, if any, resulting from such physical injuries, and such future suffering and loss of health, if any, as * * * she has sustained or ivill sustain by reason of such physical injuries” and “ all monies necessarily expended or become liable for doctor’s bills, if any, while being treated for such injuries which the jury may believe from the evidence she has expended or become liable for, or will necessarily expend and become liable for”.

Aside from the ambiguity and great uncertainty of meaning, arising from the very careless use of language—certainly deplorable in a judicial proceeding— the instruction appears to me to be open to the objection that it lays down the rule that a “doctor’s bills”, and not the usual, reasonable and customary charge of value of services rendered by the doctor, is the test or measure of damage.


text:
    Marianna Godzicka, Appellee, v. Thomas Krolik, Appellant.
    Gen. No. 14,168.
    1. Verdict—when not disturbed as against the evidence. A verdict is final on a question of fact unless it is palpably against the clear weight and preponderance of the evidence.
    2. ' Instructions—need not contain repetitions. A correct instruction may properly be refused if its substance is contained in another given.

      Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed November 6, 1908.
    Horton, Brown & Miller, for appellant.
    R. Wilson More, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Appellee, Marianna Godzicka, brought action in the Superior Court against appellant, Krolik, to recover damages for personal injuries sustained by her in falling upon a walk on the premises of appellant, caused, as it is claimed, by the defective condition of the walk. Appellee had judgment for $500 which appellant seeks to reverse on two grounds: first, that the verdict is against the weight of the evidence; and second, the court erred in refusing to give certain instructions requested by appellant.

It appears that appellant was in July, 1905, • the owner of premises known as No. 607 Holt avenue, Chicago, which were improved and were rented to divers tenants. Appellee had lived in a rear house on the premises prior to the time of the alleged injury about ten months. The only means of ingress and egress which she had to and from the premises occupied by her was over the walk in question. While walking over the walk, a board broke under appellee’s foot and her foot and leg went into the hole to a point just below the knee and she fell upon the walk, injuring her leg and hip, and her head struck against the brick wall of the building.

Upon a review of the evidence in the record bearing on the question of the condition of the sidewalk, we find that seven witnesses, including appellee, testified to its dangerous condition. Appellee testified that a board broke under her and her foot and leg went through; that the boards were loose and some were rotten.

The witness Zwiziak, who lived in the front part of the premises six months and moved from there on May 3, 1905, says that most of the boards from the center of the building to the front were decayed and loose, the heads of the nails being sunk almost through the boards; that he nailed down one of the boards himself some time in April, and that he notified the agent of the condition of the walk.

Antoine 'Maciejewski, who lived in the front part of the premises about six months and used the walk, testified that the walk was rotten and shaky, and that she saw the hole where appellee fell; that the board was broken and was old and rotten, and the hole *was large because the board was wide.

John Godzicka, husband of appellee, testified to substantially the facts just stated above.

Joseph Luzak, who lived in the premises, testified that the boards of the walk were loose and rotten, and that he helped to make repairs on the walk shortly before the accident.

Mary Brzicki testified that she lived in the rear house of the premises nearly two years with her husband and family; that there were loose and decayed boards in the walk, and the stringers were decayed, and that the walk had been in that condition a longtime, and that she notified appellant’s agent of the condition of the walk.

Martin Godzicka saw the hole the night of the day of the accident. The board was from four to six inches wide and “it broke right down through”. “It was an old board and rotten on the bottom”.

This was in substance the testimony on behalf of appellee. Appellant called four witnesses as to the condition of the sidewalk. Koristan says he passed over the walk in July, 1905, and did not see any broken or rotten boards.

Pallasch, appellant’s agent, says he passed over the walk probably thirty times in June, 1905, and there were no rotten boards. Wroblaski, employed by Palíasela as a carpenter and repairer, was at the premises a few days after a cement sidewalk was laid in front of the premises in. July, 1905, and did not see any broken or loose boards, or any holes; he did not pay any attention to it. Gwizela, also employed by appellant’s agent as carpenter and repairer, was working on the property six days in July, 1905, and passed over the walk three or four times a day. He says there were no broken or rotten or loose boards; they were all made fast between July 4th and July 20th; that every repair necessary was made. Bessie Schmelcer says the walk was in perfect condition. Valerian Palíasela, daughter of appellant’s agent, testified that she went over the walk two or three times a month and there were no broken boards and it did not shake as one walked over it.

It is manifest from this testimony that there is a sharp conflict between the witnesses for appellee and those called by appellant. The verdict of the jury must be final on such a question unless it is palpably against the clear weight and preponderance of the evidence. We find no ground in this record for holding that the vei'dict is against the weight of the evidence.

In so holding we have not overlooked the contention of appellant that the testimony in support of appellee’s case is conflicting; nor have we failed to give due weight to the testimony of the physicians, particularly as to finding no injury upon examinations made by them. But the question of the injury received by appellee, if any, was for the jury to determine, and we cannot say that its verdict is palpably wrong on the evidence.

Errors are assigned upon the refusal of the court to give instructions numbered respectively 15, 22 and 27.

The first instruction given at the request of appellant covered the entire case presented by the pleadings and the evidence. It embraced substantially every rule of law expressed in the refused instructions. The substance of refused instruction No. 15 is contained in given instruction No. 1. Refused instruction No. 22 is covered by given instruction No. 1 and by given instruction No. 9. Refused instruction No. 27 is fully covered by given instructions Nos. 1 and 13. We find, therefore, no error in the refusal of the court to give the instructions named.

Finding no error in the record, the judgment is affirmed.

Affirmed.


text:
    Vincent C. Mooney, Administrator, Appellee, v. City of Chicago, Appellant.
    Gen. Mo. 14,180.
    1. Negligence—what essential to recovery in action for sidewalk injury. In order for the next of kin to recover for the death of their ancestor by reason of an alleged defective sidewalk it must appear by a preponderance of the evidence (1) that the municipality was guilty of the negligence alleged in the declaration; (2) that the deceased was injured by reason or as á result of such negligence; (3) that the deceased was in the exercise of due care at the time of the accident, and (4) that his death was the proximate result of the injury sustained.
    2. Instructions—when need not embody all elements essential to recovery even though concluding with direction. Where an instruction purports to define the law of one branch of the case, it is not necessary to embody other elements essential to recovery even though it directs a verdict, where other instructions are given which perform that office.
    3. Instructions'—when use of word “injured" not misleading. In an action for death caused by negligence the use of the word “injured” without words indicating that the death of the deceased was caused thereby, held, not misleading.
    4. Release—when does not bar right to recover for death caused by alleged wrongful act. A release made by the plaintiff’s intestate in his lifetime discharging one tort-feasor from liability for injuries sustained does not bar a right of action- as against another joint tort-feasor which accrues to the next of kin by virtue of death ensuing from such injury.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Abthtjb H. CHETLAiisr, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed November 6, 1908.
    Statement by the Court. Appellee, Vincent C. Mooney, as administrator of the estate of Edward Dillon, deceased, brought this action against appellant, City of Chicago, to recover damages for causing the death of said deceased.
    The negligence averred in the declaration, consisting of two counts, is that appellant permitted Harrison street, one of its public streets, at the intersection of Clark street therewith, “to remain in a dangerous and unsafe condition, and permitted and allowed several of the paving stones of said street to be removed and to remain absent and missing from said street, and allowed a large and deep hole and depression to exist in said street at said place”. Both counts aver that the hole was dangerous and existed long enough before the accident to charge the city with notice thereof, and that Dillon' at the time of the accident described was in the exercise of due care for his own safety. The first count alleges that while Dillon was driving a certain wagon and team along Harrison street at the said intersection a wheel of his wagon ran into said hole by means whereof the wagon was broken and Dillon was thrown with great force and violence to the pavement and thereby received injuries which resulted in his death.
    The second count differs from the first only in that it avers that the wagon was loaded with barrels, and that Dillon was thrown to the ground and one or more barrels fell upon and struck him and thereby he sustained injuries which resulted in his death.
    Both counts allege the survival of a widow and children of Dillon, his next of kin and make proferí of letters of administration. The general issue was pleaded to the declaration.
    The testimony produced on the trial by appellee tends to show that at the time of the accident, March 5, 1903, at the northeast corner of the intersection of Clark and Harrison streets, there was an opening in the pavement of the roadway at the curb, through which water was drained from the gutter of the street to the sewer, and about a foot from the sewer inlet there was a hole or depression in the granite pavement produced by the removal of four or five granite blocks. The hole was six inches deep and the blocks around it were loose. When the right rear wheel of the wagon on which the deceased was riding went into the hole it slid into the opening into the sewer. The axle of the wagon broke when the wheel went into the hole in the pavement. The right rear corner of the wagon went down and the deceased was thrown violently upon the sidewalk from the driver’s seat where he was sitting. The wagon was a barrel wagon having a box and barrel rack on it, and was about forty feet long.
    When the accident happened Dillon was turning the corner out of Harrison street into Clark street. Several barrels fell off the wagon, and one or more fell upon Dillon. The hole had been in the pavement and the blocks around it had been loose for months. The evidence offered for appellee further tended to show that the injuries to Dillon were serious and caused his death.
    The testimony offered by appellant tended to show that there was no hole in the pavement at the time of the accident, and that the accident did not cause the death of Dillon. It further tended to prove that the skein of the wagon was worn through at the point where the axle broke, and that it was the defective skein which caused the break, and for that reason Dillon was guilty of negligence which contributed to the accident; that Dillon in his lifetime had executed to his employer, McKay, a release for his injuries, and consequently appellant was also released from the cause of action involved in this suit.
    The jury returned a verdict against appellant for $3,500 and judgment was entered thereon for that amount.
    Edward J. Brundage and John R. Caverly, for appellant; Edward C. Fitch, of counsel.
    Frank V. Campe, for appellee; A. L. Gettys, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The question is presented, on the errors assigned and relied on for a reversal of the judgment, whether or not the verdict is contrary to the weight of the evidence.

It was necessary, undoubtedly, for appellee, to prove by a preponderance of the evidence (1) that appellant was guilty of the negligence alleged in the declaration; (2) that the deceased was injured by reason of, or as the result of that negligence; (3) that the deceased was in the exercise of due care at the time of the accident; (4) that his death was the proximate result of. the injuries sustained. The question is, does the evidence in the record sustain the averments of the declaration?

The evidence as to the existence of the hole in the pavement is somewhat conflicting. Sullivan testified that he was following the deceased at the time of the accident, and that there was such a hole at the time of the accident, and that it was made by the absence of granite blocks from the pavement, and that the granite blocks around the hole were loose. The witness John T. Dillon says that he was a carriage driver and drove over Harrison street two or three times every night and he noticed the condition of the pavement at the northeast corner of Harrison and Clark streets; that there was a large hole near the curb, the blocks being out of the street.- Hartman testified that he ■ worked for years in a clothing store at the northeast corner of Harrison and Clark streets and saw the accident in question; that there was a hole there in the pavement made by some cobble-stones being removed from the pavement; that he saw several wagons drop into that hole and lose their loads in the same manner that Dillon’s wagon did. One was a furniture wagon, the rear wheel of which broke, about two months before the accident in question, and the furniture was thrown upon the sidewalk. The witness Stucke, a shoemaker, was working at the southwest corner of Harrison and Clark streets, saw Dillon’s wagon drop into the sewer hole. The stones were loose around the hole and had been loose for months. He saw other wagons fall in there long before Dillon’s wagon fell in. He saw many accidents at that corner where the barrel wagon fell, and that a furniture wagon tipped over there about a month before Dillon’s wagon and the furniture fell off. The witness Coyne testified that there was a hole and that the paving stones were loose around it, and that he had seen wagons turn over at that place.

On behalf of appellant McKay testified that he examined the place soon after the accident on the same day and there was no hole there. The other witnesses on behalf of appellant on this point were policemen who had traveled their beat for years past this corner, and that although it was their duty to observe and report defects in the streets, they never saw the hole.

In our opinion the verdict of the jury on the question of the negligence of appellant is sustained by the evidence and we cannot say it A against the weight of the evidence and ought to be set aside.

The evidence shows that the skein of the axle around which the right rear wheel revolved was worn through and the axle was thereby weakened where it broke when the wheel went into the hole in the pavement. And the witness McKay was permitted to testify to his eonclnsion that the breaking of the axle was dne to the defective skein. At the time of the accident it was daylight.

Appellant, on this evidence, bases a contention that the deceased was guilty of contributory negligence in that he ought to have seen the hole and avoided it, and as an experienced teamster he well knew the jolts and jars to which his wagon would be subjected in passing over defects in the pavement, and yet he loaded heavily his wagon with a skein worn out, and drove his wagon along the streets without avoiding the hole in the pavement.

We are not inclined to hold that the verdict was against the weight of the evidence on this question. There are good grounds for placing little reliance on the testimony of McKay in this case; and as to whether Dillon ought to have seen the hole and avoided it under the circumstances was a question for the jury to determine in the first instance, and we find no reason in the record for arriving at a different conclusion from that of the jury.

What was the proximate cause of Dillon’s death was a controverted question on the trial of the case. There is evidence in the record given by Bridget Dillon, his widow, by John T. Dillon, his brother, by Coyne, who knew him seven or eight years, and by Biddle, who knew him about fifteen years, that before the accident he was a stout, healthy man and weighed about two hundred pounds; that he never had any medical attendance, and never complained about his back or kidneys. The. testimony is that at the time of the accident Dillon sustained a compound fracture of the right leg. The verdict of the coroner’s jury found that he died from degeneration of his vital parts, complicated by a compound fracture of the right leg. There is medical testimony to the effect that at the time of his- death he was suffering from the compound fracture, a dislocation of the right ankle, and shock; that the fracture did not heal at all and infection or blood poisoning had set in, and his death resulted therefrom. Dr. Lewke, coroner’s physician, testified that he examined deceased after death and he found the ununited fracture of the right leg, a fatty heart and liver, and enlarged spleen and enlarged and fatty kidneys. He testified that septic infection might produce this condition; that poisons coming from the wound might travel through the blood, pass through the liver and heart and cause a destruction of the tissues and the tissues are then replaced by fat cells, that is the usual process in the body; that this will take place rapidly, as soon as two weeks. From the time of the fracture of the leg, to the death of the deceased, was two weeks and three days. And further, Dr. Lewke testified that Dillon died of fatty degeneration of the heart and kidneys,' complicated with the compound fracture of his right leg; that both conditions were factors producing his death. The witness could not give the direct cause which produced Dillon’s death because he did not know what his history and condition were before the injury, but when he was given Dillon’s previous history and condition, according to the evidence and assuming these to be true, he stated that the death was caused by septicemia due to a compound fracture of the leg.

Dr. Hamill’s testimony tends to show that septicemia caused the death.

Upon a consideration of all the testimony and the circumstances of the case bearing upon this question we are of opinion that the evidence shows that the death of Dillon was the proximate result of the injuries sustained in the’ accident in question.

Our conclusions upon the proofs made in the case on the different points necessary to be covered by the evidence in order to entitle appellee to recover, logically and necessarily dispose of the contention of appellant that the verdict is contrary to the weight of the evidence, adversely to that contention.

At the request of appellee the court gave to the jury what is known in this case as instruction No. 6. It is in the following terms:

"The court instructs the jury that it is not necessary to a recovery in a case of this character that the evidence should show actual notice to the City of Chicago of the defective condition of the street, if you believe from the evidence that it was defective. If the jury believes from the evidence that the street in question where the plaintiff is alleged to have been injured was out of repair at the time, and had been out of repair for a considerable length of time before said injury is alleged to have occurred for so long a time that the city authorities, by the use of ordinary care on their part, would have known of the defective condition of said street in time before the accident in question, by the exercise of ordinary care to have repaired the same, then notice of such condition of said street may be presumed, and if the jury believe from the evidence in this case that the street where the alleged injury is said to have occurred was out of repair, and was in an unsafe condition to travel upon at the time of alleged injury, and had been so out of repair and in an unsafe condition for a considerable length of time before said injury is alleged to have occurred, so that the city authorities, by the use of ordinary care on their part, might have known of the condition of said street in time to have repaired the same before said injury and did not repair the same, and that the intestate, while driving over said street on the 5th day of May, 1903, one of the wheels of the wagon which he was on fell into a hole in said street and he was thereby injured, and if you further believe from the evidence that the intestate was, at and immediately before the time of said injury, in the exercise of reasonable care for his own safety, then you will find the defendant guilty.”

Appellant criticises this instruction and claims that it is erroneous because it directs the jury to find the defendant guilty, if, after finding the facts which are supposed to constitute the negligence of appellant, they find Dillon was injured, and says nothing in regard to such injury causing Dillon’s death. The contention is that for the mere injury appellee could not recover in this action, and therefore, the instruction submits the case to the jury on a false issue. Montgomery Coal Co. v. Barringer, 218 Ill. 327; Illinois I. & M. Co. v. Weber, 196 id. 526; and I. C. R. R. Co. v. Smith, 208 id. 608; and City of Chicago v. Sutton, No. 13369 in this court (not reported) are cited to the effect that if an instruction directs a verdict for either party or amounts to such direction in case the jury find certain facts, it must necessarily contain all the facts which will authorize the verdict directed; and as .it directs a verdict it must be considered by itself—it is not supplemented by the other instructions given.

A careful examination of the instruction before us shows that it is directed to the question of notice to the city, and what constitutes such notice, of the condition of the street. Upon that subject there is no claim that the law is not correctly stated. In order to apply the law to the evidence in the case it was proper to state in the instruction certain elements in the case shown by the evidence upon which it became necessary for the jury to consider the question of notice. This we think is the purport and scope of the instruction. In Pardridge v. Cutler, 168 Ill. 504, th.e instruction under considération by the court undertook to review the whole of the evidence and omitted the defendant’s evidence which went to the merits of the case. But where an instruction, as in this case, purports to define the law of one branch of the case we do not think it is necessary to embody every element essential to a recovery, even though it directs a verdict, where other instructions are given which perform that office.

In Judy v. Sterrett, 153 Ill. 94, an instruction was given on the subject of a contract to marry which fixed no definite time for its performance. The manifest purpose of the instruction was to inform the jury that the law would presume the contract was to be performed within a reasonable time, and that under such a contract to marry within a reasonable time or on request the request need not be made by the plaintiff herself, but might be made through an authorized agent. The instruction closed with a direction that if the jury found that anyone authorized by the plaintiff for that purpose had called upon the defendant and requested him to marry the plaintiff, and he refused or neglected to do so, then they should find the issues for the plaintiff. The court in commenting upon the instruction said at page 100: “It is not necessary that an instruction intended to serve some particular office, or to define the law of some particular branch of the case, should have embodied in it every fact or element essential to sustain the action (citing authorities). It is sufficient if the jury were informed in other instructions what was required to constitute a valid subsisting contract of marriage.” It is true the ground of objection there urged was that if submitted to the jury the question of law as to whether or not there was “a valid subsisting contract of marriage”, but the principle of the rule stated applies to the instruction under consideration here.

Furthermore, this action is for the recovery of damages for the benefit of the- next of kin for their financial or pecuniary loss by the death of Dillon. The jury must be presumed to have known when the instruction was given to them what the action was for, and that it was not for the injury which occasioned his death. They knew this both from the declaration and other instructions given them. Hence they could not have been misled by the use of the word “injured” without words indicating that the death of the deceased was caused thereby. We do not think the error pointed out was harmful.

It is urged that this instruction and instruction No. 5 given by the court are defective and erroneous in that they direct a verdict, but wholly ignore a material element in the case—the release or satisfaction given by Dillon, the deceased, to McKay, his employer, covering all claims on account of the injury sustained.

In connection with the testimony of James McKay, Dillon’s employer at the time of his injury, appellant offered- in evidence a release or satisfaction signed by deceased, dated May 13, 1903, to James McKay, purporting to release all claims on account of the injuries he had received. A release of appellant as a joint wrongdoer, of the cause of action sued on in this ease, is claimed through this instrument.

This contention involves a misapprehension of the claims covered by the release, or of the cause of action on which this suit is based. That release or satisfaction settled - and discharged all claims which Dillon had against McKay, and, we will assume, against appellant for the injury sustained by him through the negligence of McKay, or appellant by which he was injured. But, Dillon did not in his lifetime have the claim or cause of action here involved which arose for the first time at his death in favor of his widow and next of kin, and did not have the right or the power to release and discharge it. It is a cause of action unknown to the common law, and was first created in this State by the act of the general assembly, approved February 12, 1853. A full exposition of this statute, its objects and purposes, and the nature and measure of damages which may he recovered under it, are given in City of Chicago v. Major, 18 Ill. 349; Chicago & Rock I. R. R. Co. v. Morris, 26 id. 400, and Maney v. C. B. & Q. R. R. Co., 49 Ill. App. 105. It follows, therefore, that the claim or cause of action released or satisfied by the McKay document was an entirely different claim or cause of action from the statutory cause of action involved in this case, and the release had no relation to this case, and was erroneously admitted in evidence and was properly ignored in the instructions..

We find no reversible error in the rulings of the court in admitting the testimony of Dr. Hamill as to the cause of Dillon’s death. We do not think it was error to overrule the objection to the hypothetical question put to Dr. Lewke calling for his opinion as to the cause of death.

The judgment is not excessive, we think, under the evidence. The other contentions of appellant made in argument are answered by what we have already said. We find no fatal error in the record, and the judgment is affirmed.

Affirmed.


text:
    Isaac Zechman et al., Defendants in Error, v. Jacob Zasofsky, Plaintiff in Error.
    Gen. No. 14,885.
    Appeals and Errors—when signing of hill of exceptions without jurisdiction. After the lapse of sixty days from the date of judgment and after the expiration of the time fixed by order for presenting the bill of exceptions, the Municipal Court is without jurisdiction either to extend the time for presenting such bill of exceptions, or to sign and seal the same.
    Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Motion allowed.
    Opinion filed November 10, 1908.
    Grossberg & Kompel, for plaintiff in error.
    Moses, Rosenthal & Kennedy, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The defendant in error moved the court to affirm the judgment entered in the case by the Municipal Court for failure on the part of the plaintiff in error to file his abstracts of record and briefs in the time required by the rules of court.

The ground assigned does not justify the affirmance of the judgment and that motion must be denied.

A second motion is made to strike the bill of exceptions in said case from the record filed in this court.

It appears from the record that the judgment of the court below was entered April 2, 1908, and the plaintiff in error—defendant below—was given forty days in which to file his bill of exceptions.

On May 2, 1908, an order was entered extending plaintiff in error’s time to file his bill of exceptions ten days.

On May 13, 1908, an order was entered giving plaintiff in error to June 10, 1908, to file his bill of exceptions.

On June 6,1908, an order was entered giving plaintiff in error to June 15, in which to file his bill of exceptions.

On June 15, 1908, an order was entered giving plaintiff in error to June 22, 1908, in which to file his bill of exceptions.

On June 24, 1908, an order was entered giving plaintiff in error to and including July 10, 1908, in which to file his bill of exceptions.

On July 28, 1908, an order was entered giving plaintiff in error to and including August 15 in which to file his bill of exceptions.

On July 28, 1908, the bill of exceptions was filed.

From these orders it appears that the time for filing the bill of exceptions by virtue of the order entered on June 15, 1908, expired on June 22, 1908. The bill of exceptions was not filed on that date, but on June 24, 1908, an order was entered extending the time for filing bill of exceptions to and including July 10, 1908. There appears a hiatus of two days between the expiration of the time fixed in the order of June 15 and the entry of the order of June 24, 1908, There also appears a hiatus between the expiration of the time under the order of June 24, 1908, extending the time to July 10, 1908, in which to file the hill of exceptions and the entry of the order of July 28, 1908, and the filing of the hill of exceptions on that date. Upon the filing of the bill of exceptions the defendants in error duly objected to the signing and sealing of the bill of exceptions by the trial court, on the ground that the court had lost jurisdiction to settle the bill of exceptions.

By section 21 of the Municipal Court Act it is provided that there are no terms in the Municipal Court, but that every judgment, order or decree of said court is final after the expiration of thirty days from the rendition thereof, and the court loses power at the expiration of such time to vacate, set aside or modify such order. By section 22 of the Municipal Court Act it is provided that the practice in cases of appeal and writs of error to the Municipal Court shall, in first-class cases, be the same—as near as may be—as the practice in eases of appeals from and writs of error to circuit courts in similar cases. And section 38 of the Municipal Court Act provides, among other things, that a bill of exceptions may be tendered to the judge in a first-class case at any time within sixty days after the entry of the final order of judgment, or within such further time thereafter as the court, upon application made thereafter within such sixty days, may allow.

In our opinion the order entered on June 24, 1908, being more than sixty days after the entry of the final judgment in the case and being entered two days after the expiration of the order of June 15,1908, was without authority or jurisdiction of the Municipal Court, and was therefore void under the rule laid down in Hill v. The City of Chicago, 218 Ill. 178, in which the rule of practice announced in Plotke v. Chicago Title & Trust Co., 175 Ill. 234, is affirmed.

The motion therefore to strike the bill of exceptions from the record in this case must be allowed.

Motion allowed.