text:
    Terra Del Whipple, Appellee, v. John A. Whipple, Appellant.
    Gen. Nos. 14,060 and 14,061.
    1. Amendments and jeofails—when verification of amendment of sworn pleading not essential. Verification of an amendment to a sworn pleading is not essential where there is no fact alleged in the amendment calling for verification.

      2. Alimony—what questions cannot he determined upon application for. The merits of the main relief sought cannot be determined upon the application for the allowance of alimony pendente lite.

    3. Solicitor’s fees—when allowance to wife properly subject to revision. If an allowance of solicitor’s fees has been made to a wife to enable her to defend against an appeal by her husband questioning an allowance of alimony pendente lite, and if such allowance is not employed for such purpose, it is proper for the chancellor to modify his order with respect thereto.
    Divorce. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed December 7, 1908.
    Julian C. Ryer, for appellant.
    No appearance by appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

These two causes were consolidated for hearing upon the same briefs and abstracts.

Appellee has not appeared or submitted any arguments in defense of these appeals.

Terra Del Whipple filed her bill against her husband, John A. Whipple, for separate maintenance, charging as grounds extreme and repeated cruelty upon the part of her husband toward her. This bill was duly verified with the oath of appellee. The bill was subsequently amended, changing the prayer thereof from separate maintenance to divorce. The amendment was not verified. Verification was not necessary, as there was no fact alleged in the amendment calling for verification. The change injected by the amendment concerned the nature of the relief asked upon the identical facts averred in the original bill.

Appellant first demurred to the bill as amended, and upon the overruling of his demurrer answered, denying the truth of the material averments and injecting counter charges impugning the moral conduct of appellee during her married life.

The facts alleged in the bill if sustained by proof, are, in our opinion, prima facie sufficient to entitle appellee to the divorce prayed in the amendment filed. On motion of appellee for alimony pendente lite and an allowance for solicitor’s fees to enable her to prosecute her suit for divorce, the chancellor, on April 1, 1907, upon affidavits submitted by both parties, granted an allowance to appellee of $10 a week for alimony pendente lite and $40 for solicitor’s fees.

On May 20, 1907, appellant having theretofore prayed an appeal to this court from the order of April 1, 1907, granting alimony and solicitor’s fees, the chancellor, upon the petition of appellee duly verified, and on sundry affidavits submitted by both the parties, entered an order making an additional allowance of $95 for solicitor’s fees to enable appellee to defend against the appeal of appellant to this court from the order of April 1, 1907. From the order of May 20, 1907, appellant prayed for, was allowed and perfected an appeal to this court. The appeals now before us involve the legal integrity of these two orders.

As the learned chancellor did in the court below, so we have done on this review—examined with painstaking care all the affidavits submitted by the several parties which appear in the record before us, and after so doing our minds are attuned to that of the chancellor, made evident when- he said in rendering his judgment, “If defendant’s version is true, complainant should not have any alimony or solicitor’s fees, but it is impossible for the court, in view of the conflict here, to determine that matter on affidavits”. The merits of the controversy between the parties cannot be determined on a motion for temporary alimony. Burgess v. Burgess, 25 Ill. App. 525.

Allowance of temporary alimony and solicitor’s fees in divorce cases is discretionary with the chancellor, and the court of review will not go into the merits of the divorce suit upon an appeal from an order awarding temporary alimony. Lind v. Lind, 37 ibid. 178.

The affidavits considered, the award made is reasonable and within the apparent ability of appellant to pay.

Section 15, chap. 40, R. S., title “Divorce”, provides inter alia that “in case of appeal or writ of error by the husband, the court in which the decree or order is rendered may grant and enforce the payment of such money for her defense and such equitable alimony during the pendency of the appeal or writ of error as to such court shall seem reasonable and proper”.

In construing this statute it was held in Jenkins v. Jenkins, 91 Ill. 167, that the Circuit Court may make an order for solicitor’s fees after the perfecting of an appeal.

While the order of the chancellor allowing appellee solicitor’s fees to enable her to defend against this appeal was without error at the time it was made, and as our review is circumscribed to the condition environing the parties and their legal rights as. they existed at the time of the entry of the order, we are not permitted to adjudge the appeal upon conditions subsequently arising; yet we deem it but just and equitable to state that appellee has not appeared in this appeal and consequently has not incurred any liability for the solicitor’s fees so allowed her. It will therefore be conscionable for the chancellor to make such further order touching the allowance of May 20, 1907, as the law may permit and the rights of the parties require, for it is evident that appellee has not assumed the burden or incurred the liability which the $95 allowance was made to enable her to discharge.

The orders appealed from, of April 1, and May 20, 1907, are both affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    William Steinhaus, Defendant in Error, v. Emil Radtke, Plaintiff in Error.
    Gen. No. 14,069.
    1. Verdict—what does not establish preponderance of evidence. A preponderance of the evidence does not necessarily lie with the side producing upon a given fact or set of facts the greater number of witnesses.
    2. Torts—liability of tort-feasor. Tort-feasors are jointly and severally liable; they may be proceeded against, one without the other, at the election of the injured party. The party so selected must respond to the full measure of damages suffered by the injured party as the result of the tort committed by both wrongdoers.
    3. Variance—when objection comes too late. An objection of variance comes too late when first made on appeal.
    Trespass. Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed December 7, 1908.
    John Stelk, for plaintiff in error; James D. Power, of counsel.
    Utt Bros. and Lynn, House & Roe, for defendant in error.
   Mr. Justice Holdom

delivered the opinion of the court.

In a trial before the Circuit Court and a jury the plaintiff, William Steinhaus, obtained a verdict of $2,250 in an action against defendant, Emil Radtke, for an assault and battery upon him. Plaintiff remitted $750 from the verdict, whereupon the trial court overruled the pending motion for a new trial and gave judgment upon the verdict—less the amount of the remittitur—for $1,500, and defendant appeals to this court seeking a reversal of this judgment.

No complaints are made touching the pleadings or the rulings of the trial judge upon "the evidence, nor is it claimed that the damages awarded are excessive, but the errors assigned and argued are that the verdict and judgment are contrary to the manifest weight of the evidence, and that the trial court erred in giving instructions 2, 3 and 4, requested by plaintiff, and in failing to give instruction 1 proffered by defendant.

Plaintiff claimed, and produced witnesses whose testimony tended to sustain his claim, that defendant knocked him down by striking him in the back of the head or neck, and that while he was falling defendant kicked him in the left side above the groin; that after so maltreating plaintiff, defendant called upon his brother, Theodore, to strike plaintiff, and that responding to such request, Theodore struck plaintiff in the face. Twelve witnesses were sworn and testified, five of these sustaining plaintiff’s theory and seven of them in contradiction of it. A careful reading of the evidence impresses us with the extremity of its conflict. It is hopelessly irreconcilable on the assumption that all of the witnesses are equally worthy of belief. The credibility of the several witnesses was for the jury to determine. Their appearance upon the witness stand, their manner in giving their evidence, were matters peculiarly within the province of the jury, because they saw and observed the witnesses during all the time of their giving their testimony— a privilege denied us. Numbers do not necessarily establish preponderance. It often happens that the lesser number prove the most trustworthy and credible, and that when their testimony is analyzed and sifted with that of the greater number, the preponderance of the proof is found to arise from the evidence of the minor number. All the evidence considered, we are unable to say that the finding of the jury is manifestly contrary to its greater weight. The jury have reconciled the conflict. With their conclusion we rest content.

There is no vice in instruction 2. It states a correct principle of law applicable to the facts in evidence. There is no rule for contribution among wrong-doers. Two persons guilty of an assault, or any other tort, need not he sued jointly. They may be proceeded against, one without the other, at the election of the injured party. The party so selected must respond to the full measure of damages suffered by the injured party as the result of the tort committed by both wrong-doers. Barnes v. Gray, 5 H. & J. (Md.), 436; W. C. St. Ry. v. Feldstein, 69 Ill. App. 36.

Such being the law, it follows that the court properly refused to give defendant’s proffered instruction 1, as the statement of the law in that instruction was in direct conflict with the rule above announced.

Instruction Nos. 3 and 4 are equally vulnerable against objection. They state the law and were followed by similar instructions, in slightly amplified form, given at the request of the defendant.

Some argument is made upon a claim that there is a variance between the averments of the declaration and the proof. Suffice it to say that we observe no variance of an appreciable nature, and moreover the objection as to a Variance, if one existed, not having been made in the trial court, comes too late when made here for the first time.

We are satisfied that the record is free from reversible error, and the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    John A. Tolman & Company, Appellant, v. City of Chicago et al., Appellees.
    Gen. No. 14,073.
    1. Public streets—what use of, unlawful. The maintenance by a private corporation of an obstructing nuisance upon a public street is unlawful and may properly be removed by the municipality.

      2. Nuisance—what is, as matter of law. Barrier platforms and skids constructed upon a public street impeding the movements of pedestrians are by statute a public nuisance.
    3. Nuisance—rights of municipality with respect to. A municipality may proceed to abate a public nuisance and prosecute for fines for their maintenance, the one or the other, or both, in its discretion but it is not required to proceed to penalize as a condition precedent to the right to abate.
    4. Nuisance—what does not preclude municipality from right to abate. Acquiescence in the maintenance of a public nuisance or purpresture does not estop a municipality to abate the same.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed December 7, 1908.
    Statement by the Court. It appears from the averments of the hill in the record that appellant is a domestic corporation, engaged in the business of a wholesale grocer, and in that business buys, sells and manufactures food products, such as spices, etc.; that such business has been conducted on a large scale continuously since the year 1885, with success and profit; that it employs in the vicinity of 200 persons, and that the ramifications of its business extend to the States of Wisconsin, Michigan, Iowa, Minnesota, Ohio and Kansas; that its main place of business is in Chicago, and that it occupies as tenant from year to year a five-story brick building situate on the southwest corner of Michigan avenue and Lake street and numbered 59 to 71 Michigan avenue and 4 to 8 Lake street; that in the necessary conduct of such business somewhere in the vicinity of 200 tons of merchandise is received into and discharged from its place of business every working day, by means of twenty single and double teams and wagons; that there are means of ingress and egress to the Michigan avenue and Lake street building from both the avenue and street fronts and by means of an alley twenty-three feet in width running north and south on the west side of the building; that it would be practically impossible for appellant to conduct its business without using certain mechanical appliances and maintaining a permanent platform and a temporary skid-way as a means of loading and unloading wagons at the street with goods and merchandise from and to its place of business; that at the Michigan avenue and Lake street openings of the building a platform of four feet is maintained at a height of about eighteen inches above the sidewalk and on a line with the first or shipping floor of the building; that skids in connection with these platforms are maintained to connect the platform with the end of the merchandise wagons when backed up at the street curb; that these skids are constructed of planks about eight feet long, one foot wide, and of a thickness of one and one-half inches, and when in use run from the platform in front of the shipping room to the rear end of the wagon in process of loading or unloading. The platform is a permanent structure with two iron steps at each end for foot passengers to use in mounting to and descending from the platform to the sidewalk. The skids are movable and are in use much of the time during business hours. It is said that when the skids are not in actual use they do not encumber the sidewalk, but leave that part of the walk in front of the raised platform free for use by pedestrians. It is charged that the platform and, skid method of getting goods to and from appellant’s building is that which obtains by all the wholesale houses in the neighborhood of appellant, and that such method has been in vogue for more than thirty years, with the knowledge of the city, and without any disturbance on its part prior to the attempt on the part of the city to do those things which the bill seeks to enjoin. The neighborhood, it is said, is congested with traffic and is in the vicinity of the freight warehouses and yards of several railroads; that neither the platform nor skids are a nuisance or create a purpresture, and are not in violation of the common law or any statute of this State or any ordinance of the city of Chicago; that the city authorities threaten to prevent appellant from using the skids or maintaining the platforms, and that to do so will he unjust, oppressive and unreasonable, and if the city is successful in so doing, will result in irreparable injury and loss to appellant; prays for an injunction to arrest the city in its design to interefere with appellant’s skids and platform, etc. A temporary restraining order was entered upon the ex parte application of appellant upon the recommendation of a master after reading the bill.
    The city and all of the defendants filed a joint and several answer, which sets up inter alia that Lake street and Michigan avenue are public streets, controlled solely by the city, and that the city is required, in the exercise of such control, to see to it that these streets shall at all times be open for public travel throughout their entire length and width; that the platforms and skids are a barrier to such free and uninterrupted use of the sidewalks of said streets fronting appellant’s premises, and constitute purprestures and nuisances; that the maintenance of said platforms and skids are without authority, and that it is the duty of the city to remove them and keep the streets open' for travel by the public, unobstructed.
    The cause was tried before the chancellor upon the bill and answer above recited and replication of appellant to the answer, and an agreed statement of facts, with some enlightening photographs showing appellant’s place of business in operation with and without the skids in use. The statement of facts in its most material parts, as applied to the rights of the parties, is as follows:
    “That on the Michigan avenue side of the premises of complainant, the skids are in use, on each average working day, an average of two hours and fifteen minutes and principally between the hours of 9 o’clock a. m. and 4 o’clock p„ m. That the greatest public travel on said Michigan avenue and said Bast Lake street on each average working day is between the following hours; 6 to 8 o ’clock a. m., 12 o ’clock noon to 1 o’clock f. m., and 5 to 6 o’clock p. m. 'That the average number of pedestrians traveling along said Michigan avenue in either direction on the sidewalk immediately abutting the premises of the complainant each working day between the hours of 6 o ’clock a. m. and 6 o’clock p. m. is 2,415 persons. That the average number of persons passing each average working day when the skids are in use and traveling along said sidewalk and passing over and along the platform provided for pedestrians when skids are in use is 536 persons. That on the Lake street side of the premises the skids are in use each average working day three hours and nineteen minutes, and principally between the hours of 8 o ’clock a. m. and 4:30 o ’clock p. m. That the average number of pedestrians passing along the Lake street side of said premises between the hours of 6 o’clock a. m. and 6 o’clock p. m. is 1,912. That when the skids are in use on the Lake street side of the premises of the complainant, about 453 persons pass along and over the platform provided for them adjoining the shipping platform of the complainant each average working-day.”
    The chancellor, upon the hearing, dissolved the temporary injunction and dismissed the bill for want of equity, and appellant appeals.
    Albert Kocourek and Ashcraft & Ashcraft, for appellant; Raymond M. Ashcraft, of counsel.
    William D. Barge and George W. Mlller, for appellees ; Edward J. Brundage, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

We think the learned counsel for appellant have misconceived the controlling- principle of the case at bar, and have argued their client’s case ingeniously from an erroneous view point. Their arguments would be very convincing were they applicable to the cause argued. The questions do not rest in the solution of the proposition that the use of the skids is not per se a nuisance, but whether or not the maintaining of the permanent platforms and the operation of the skids in conjunction therewith, across the public highway, so interferes with the permanent right of the public to the unimpeded and unobstructed use of every part of the public walk in front of appellant’s building and place of business, as to constitute a nuisance in fact. From the photographs in the record, it is plainly seen that the movements of pedestrians are greatly impeded by the barrier platforms and skids there appearing in the street on both the Michigan avenue and Lake street fronts of the business premises of appellant, and that when these skids are in use pedestrians encounter obstructions which materially impede their progress. That such obstructions are nuisances, are not matters resting on judicial interpretation from the facts. They have been so designated by the law-making power of the state. Section 221, div. 5, chap. 38, R. S., which reads that “It is a public nuisance,” among other things, “to obstruct or encroach upon public highways, private ways, streets, alleys, commons,” etc. By par. 75, sec. 62, art. 5, chap. 24 R. S., it is enacted that the city council shall have power to declare what shall be a nuisance and to abate the same; and to impose fines upon parties who may create, continue or suffer nuisances to exist”.

This vests in the city dual powers, both to abate nuisances and to penalize the parties responsible for their existence! The city may proceed to abate and prosecute for fines the one or the other, or both, in its discretion, but it is not required to proceed to penalize as a condition precedent to the right to abate.

It is again insisted that the city has recognized the right to maintain the platforms and skids by long-acquiescence, but it is a sufficient answer to this to say that the city has no legal right or power to consent to the continued existence of a purpresture or to any condition which operates to deny to the public the free and untrammeled use of any part of the public highway. It is conceded by the stipulation of facts that those portions of the streets obstructed by appellant with its platforms and skids are a part'of the public highway. The court say in Smith v. McDowell, 148 Ill. 51, that “the permanent encroachment upon a public highway or street, unauthorized by the legislature, and the creation of a perpresture therein which obstructs the free and uninterrupted passage of the public is, as a matter of law, a public nuisance. The matter of inconvenience to the public, or that sufficient of the street may remain unobstructed to still accommodate the public travel, cannot be considered”.

In Hibbard v. Chicago, 173 Ill. 91, it was sought to enjoin the city from tearing down an awning or shed which had been constructed over a public walk, in virtue of a license given by the city, and the court said: “The mere consent of the city council by resolution or order gives no vested right. * * * The averment that the awning so erected does not injure or obstruct any person does not change the case. The sole question to be determined is, is it an encroachment on the street of the City, and if so, it is a purpresture”.

The case of People v. Harris, 203 Ill. 272, involved the maintaining of a bay window erected by authority of an order of the city council. The court criticised and condemned this order as being without authority of law, and said “that there is no safe field of speculation other than to keep within the limits placed by the books, by saying that the streets in their entirety are public properties exclusively for public use, and that they or any part of them cannot be devoted exclusively to private purposes or private use”. The rule of law controlling the public highway is that they are for their whole width and length held for the exclusive use of the public, and that the municipal authorities can grant no right or easement, not of a public nature, and that the street in its entirety must be maintained for public use, and that all private encroachments thereon, from whatever source they may emanate, are unlawful. Field v. Barling, 149 Ill. 556; Pennsylvania v. Chicago, 181 ibid. 289; Chicago Cold Storage, etc. v. People, 224 ibid. 287.

In discussing the ordinance of the city council, in virtue of which the platform in question was built in the last case cited, the court say: “While the ordinance provides that the sidewalk may be used for public purposes, yet in order to use it those passing over it must go up and down five or six steps at either end. If it is not a nuisance and an obstruction, then the city might authorize private parties to erect and maintain bulkheads in every street of the city of any height. Public streets and sidewalks cannot be lawfully used for any such purpose. We are of the opinion that the platform in question was a nuisance and such an obstruction to public travel as entitled appellees to have it removed”.

We think the foregoing expressions of opinion by the Supreme Court are decisive of the rights of appellant, that the difference between these cases and the case at bar is simply one of degree, and that the obstructions in question here fall under the ban of the law, and that the city of Chicago, through its accredited officials, has the right to abate the nuisance thus created, by removing the purpresture constituting the nuisance. It is the duty of the city to see that the streets remain unobstructed, free and untrammeled for public use, and to remove all obstacles which stand in the way of such free enjoyment by the public.

The decree of the Superior Court dissolving the temporary injunction and dismissing appellant’s bill for want of equity, being right, is affirmed.

Affirmed.


author: Mr. Presiding Justice Smith

text:
    John Kulpinsky, Plaintiff in Error, v. Marshall E. Sampsell et al., Defendants in Error.
    Gen. No. 14,205.
    1. Appeals and errors—when exception not essential to preserve ruling for review. The Appellate Court will consider rulings with respect to instructions even though the bill of exceptions shows no exception to the ruling of a motion for a new trial.
    2. Passenger and carrier—when existence of relation essential to recovery. The following instruction held properly given in this case:
    “The court instructs the jury that the plaintiff has alleged in his declaration that at the time and place in question he was a passenger on said car. This is a material allegation of said declaration and the burden of proof is upon the plaintiff and he must prove said allegation by a preponderance or greater weight of the evidence before he can recover in this case. If you find from the evidence, under the instructions of the court, that the plaintiff has failed to prove by a preponderance or greater weight of the evidence that at the time and place in question the plaintiff was a passenger on said car, then the plaintiff cannot recover and you should find the defendants not guilty."’
    Morris v. Chicago Union Traction Co., 119 Ill. App. 527, distinguished.
    3. Assault—when instruction as to liability of carrier for, appropriate; when not. An instruction as follows held properly given:
    “If you find from the evidence that the plaintiff, at the time of the accident was stealing a ride on defendants’ car, your verdict must be guilty.”

      Held, further, an instruction as follows properly refused:
    “The court instructs the jury that although you may believe and find from the evidence under the instructions of the court that the plaintiff got on the step of the east-bound car with the intention of ‘flipping’ the car or with the intention of stealing a ride and of not paying his fare, yet this fact alone, if it was a fact, would not justify the conductor in kicking the plaintiff, if he did kick him; and if you find from the evidence that the conductor in charge of the east-bound car kicked plaintiff and that such act on the part of the conductor was wilfully committed and that by reason thereof plaintiff was struck by defendants’ west-bound car and thereby injured as charged in the declaration, or either count thereof, you may find the defendants guilty.”
    The holdings being predicated upon the proposition that the declaration relied solely upon the existence of the relation of passenger and carrier between the plaintiff and defendant.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed December 18, 1908.
    John F. Waters, for plaintiff in error; Joel Baker, of counsel.
    John A. Rose and Frank L. Kriete, for defendants in error; W. W. Gurley, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Plaintiff in error, plaintiff below, was injured April 19, 1904. He ran after and overtook a street car on Randolph street in the city of Chicago, which was being operated by defendants in error, as receivers. Plaintiff in error boarded the car, on what is known as the blind side of the car, by going upon the step of the rear platform, which was separated from the platform by a vestibule door. He intended to ride there, as he claimed, only until the car should come to a stop, and thus afford him an opportunity to enter the car. After he had ridden on the step a short distance, variously estimated from 150 to 300 feet, and while the car was going at a rate of eight or ten miles an hour, it is claimed that the conductor of the car came to the vestibule door and opening it kicked plaintiff in error in the stomach. Plaintiff in error swayed outwardly from the car, and another car passing in the opposite direction struck him and knocked him off the car, and he received the injuries for which he brought an action for damages.

On the trial the jury returned a verdict for the defendants and judgment was entered on the verdict, on February 10, 1906.

On March 3,1906, that being the last day of the term, a motion was entered to vacate and set aside the order overruling the motion for new trial and the judgment, and this motion was continued for hearing and disposition to the March term 1906. On June 1, 1907, the order overruling the motion for a new trial, and entering judgment for defendant entered on February 10, 1906, was vacated; and thereupon, as the record shows, the plaintiff “enters herein his motion for a new trial in said cause and said motion coming on to be heard for a new trial herein, after arguments of counsel and due deliberation by the court, said motion is overruled”, and the usual judgment order was thereupon entered.

The errors relied upon in argument for a .reversal of the judgment relate to certain instructions given by the court at the instance of defendants in error. Defendants in error contend that we cannot consider these assignments of error for the reason that the bill of exceptions does not show any exception was preserved to the order of June 1, 1907, overruling the motion for a new trial, and cite East St. L. Elec. R. R. Co. v. Cauley, 148 Ill. 490; Johnson v. Farrell, 215 id. 542, and other cases in support of their contention. These cases state the rule of practice in this state at the time the briefs of defendants in error were prepared and filed, and until the rule was changed by Yarber v. Chicago & Alton Ry. Co., 235 Ill. 590, 597, where the cases announcing the rule of practice invoked by defendant in error are expressly overruled; and we think Johnson v. Farrell, supra, though not mentioned in the opinion, must also be considered as overruled as to this point.

The record in this case shows that exceptions were taken and preserved in the bill of exceptions to the instructions of the court requested by the defendant in error, and under the rule in the Yarber case supra, the instructions are before us for consideration.

The court gave the following instruction at the request of defendants in error:

“The court instructs the jury that the plaintiff has alleged in his declaration that at the time and place in question he was a passenger on said car. This is a material allegation of said declaration and the burden of proof is. upon the plaintiff and he must prove said allegation by a preponderance or greater weight of the evidence"before he can recover in this case. If yon find from the evidence, under the instructions of the court, that the plaintiff has failed to prove by a preponderance or greater weight of the evidence that at the time and place in question the plaintiff was a passenger on said car, then the plaintiff cannot recover and you should find the defendants not guilty”.

Plaintiff in error contends that the court erred in giving this instruction, and cites Morris v. Chicago Union Trac. Co., 119 Ill. App. 527, where the giving of this instruction was held to be error as applied to the facts of that case. This court in that case, at page 529 in the statement of facts preceding the opinion, called special attention to the fact that after the plaintiff was knocked to the ground and was unconscious, the servants in charge of the following car negligently failed to look ahead and neglected to use proper efforts to stop said car. There was no averment in the declaration in that case that the plaintiff was a passenger upon the following car, nor was there any proof to that effect. The instruction did not apply to either the allegations or the evidence. That case and the authorities there cited are authorities for the proposition that if the averments of the declaration are divisable, the plaintiff may prove so much of his averments as make out a case. In the case before us it is distinctly averred in each count that the assault was made upon the plaintiff in error while he was a passenger, thus stating the relationship of the parties at the time to be that of carrier and passenger, which raises the high degree of obligation resting upon the carrier of passengers that the law implies in such cases. In our opinion the instruction was applicable to this case and the court did not err in giving it.

It is contended that the court erred in giving the following instruction: “If you find from the evidence that the plaintiff, at the time of the accident, was stealing a ride on defendants’ car, your verdict must be not guilty”; and in refusing the following instruction requested by the plaintiff:

‘ ‘ The court instructs the jury that although you may believe and find from the evidence under the instructions of the court that the plaintiff, John Kulpinski, got on the step of the east-bound car with the intention of ‘flipping’ the car or with the intention of stealing a ride and of not paying his fare, yet this fact alone, if it was a fact, would not justify the conductor in kicking the plaintiff, if he did kick him; and if you find from the evidence that the conductor in charge of the east-bound ear kicked plaintiff and that such act on the part of the conductor was wilfully committed and that by reason thereof plaintiff was struck by defendant’s west-bound car and thereby injured as charged in the declaration, or either count thereof, you may find the defendants guilty.”

The rulings of the court upon these instructions present the question whether under the averments of the declaration and the evidence plaintiff is entitled to recover.

The theory of each count of the declaration, as we have previously stated, is that plaintiff became a passenger on the car, and while he was such passenger, the conductor of the car wilfully and wantonly assaulted and kicked the plaintiff and ejected him from the car, whereby he was struck by another car operated by the defendants going in an opposite direction and was injured.

The rule that a plaintiff cannot make one case in his pleadings and recover on another case made by his proof is too well settled to admit of question or argument. The evidence shows beyond controversy that plaintiff was not a passenger. He was stealing a ride on defendants’ car, and had no intention of becoming a passenger. The evidence shows, we think, that plaintiff was a trespasser, and that the assault of the conductor was made while plaintiff was in the act of trespassing upon the car.

In our opinion plaintiff was not entitled to submit a case under his declaration involving a wilful and wanton assault, by the conductor of the car acting within the scope of his authority, upon the plaintiff while he was a trespasser. This is in substance the ruling of the trial court in the instructions above quoted, and we find no error in the ruling.

Error is also assigned upon the giving of an instruction to the effect that the jury should not allow anything for mental impairment, for the reason that the declaration makes no claim for mental impairment. In view of what we have already said that no recovery can be had in this case, under the averments of the declaration, it is unnecessary for us to consider this instruction. The giving of it did not and could not affect plaintiff’s ease injuriously. It is likewise, and for the same reason, unnecessary for us to consider the exclusion of evidence relating to plaintiff’s mental impairment.

Finding no material error in the record, the judgment o"f the Superior Court is affirmed.

Affirmed.


text:
    Georgie Clifford, Defendant in Error, v. James E. Stafford, Plaintiff in Error.
    Gen. No. 14,224.
    1. Bailments—when relation of inn-keeper and guest does not arise. One who engages a room for a limited period, as for a week, with the owner who runs separately a restaurant, does not become a guest within the meaning of the law.
    2. Bailments—obligations of lodging-house keeper. A lodging-house keeper is under no duty in any way to care for the safety of the goods and property of his lodger.
    Action of contract. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March, term, 1908.
    Reversed with finding of facts.
    Opinion filed December 18, 1908.

      C. Van Alen Smith, for plaintiff in error.
    Adolph Masks, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This writ of error brings before us for review the record in an action in the Municipal Court of Chicago, instituted by defendant in error against plaintiff in error to recover the value of a silk dress claimed by the plaintiff below to have been taken from her room in the Commercial European Hotel in Chicago while she was there a guest. The cause was tried before the presiding judge without a jury and resulted in a judgment for the plaintiff for $50.

One Bessie Baker at the same time, began a similar action against plaintiff in error in the same court to recover the value of a plume claimed by her to have been taken from the same room. The cases were tried together in the Municipal Court by agreement of counsel and judgment was rendered in favor of Bessie Baker for $20 against plaintiff in error.

There is no controversy of fact in the records. The two plaintiffs rented room 157 of the Commercial European Hotel for the definite period of one week, for which they agreed to pay at the end of the week five dollars, and they did pay five dollars for the room when they surrendered it. The defendant, Stafford, conducted a restaurant which was run separately, where meals were served to lodgers in the hotel and others, but the contract covered the room simply, and did not include meals in the restaurant.

The evidence tends to show that Georgie Clifford, while occupying the room, lost a silk dress which was taken from the room, and that Bessie Baker lost a plume, while they were occupying the room, and that the plume was taken from the room.

The question presented by the assignments of error, and by the briefs of the parties, is whether, when the property was lost the relation of inn-keeper and guest existed between the parties so as to make the plaintiff in error liable for its loss.

In our opinion the point upon which the question of liability turns is the fact that a specific agreement was made between the parties for the room for a definite term at a price named. Whatever the plaintiff in error’s relations may have been to travelers who came to his hotel for lodging and entertainment for no definite time or price but for a reasonable consideration, under the contract made between the parties in this case, defendant in error became a mere lodger, and the plaintiff in error was a keeper of a lodging house, and was under no duty to care in any way for the safety of the goods and property of defendant in error. Beale on Inn-keepers & Hotels, Sec. 331; Stewart v. McCready, 24 How. Pr. 62; Shoecraft v. Bailey, 25 Ia. 553; Pullman Palace Car Co. v. Smith, 73 Ill. 365; Bailey v. The People, 190 id. 34; Vigeant v. Nelson, 140 Ill. App. 644, and cases there cited.

If the plaintiff in error was under no duty to care in any way for the safety of the goods and property of defendant in error, then no duty was violated by plaintiff in error, and there was and is no liability shown by the evidence. The judgment is therefore reversed with a finding of facts.

Reversed with a finding of facts.


text:
    Cora M. Langan, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 14,230.
    1. Instructions—when as to preponderance of evidence erroneous "beyond cure. An instruction which tells the jury that they “are not to he supposed, furthermore, to consider at all the greater number, of witnesses,” is erroneous and cannot be cured by any other language contained in the charge.

      2. Instructions—when as to credibility of witnesses erroneous. Held, that the charge of the court in this case was erroneous in the comparison made between the credibility given to the testimony of the lesser and the greater number of witnesses.
    3. Instructions—when error to refuse, upon interest of plaintiff. Where the defendant is a corporation, it is error to refuse an instruction as follows:
    “The jury are instructed that while the law permits a plaintiff in a case to testify in her own behalf, nevertheless the jury have the right in weighing her evidence, of determining how much credence is to he given to it, to take into consideration the fact that she is the plaintiff, and that she is interested in the result of the suit.”
    4. Instructions—what not essential to right of jury to consider interest of plaintiff. It is not necessary in order that the jury may consider the interest of the plaintiff as affecting credibility that the jury first find that such plaintiff was swayed or influenced in giving his or her testimony by his or her interest in the result of the suit.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed December 18, 1908.
    Edward C. Higgins and Ferdinand Goss, for plaintiff in error; John R. Harrington, of counsel.
    Johnson & Lowenthal and Josiah Burnham, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Cora M. Langan brought an action in the Municipal Court of Chicago against the plaintiff in error, Chicago City Eailway Company, to recover damages for injuries claimed to have been sustained by her by being pushed from the street car of the company by another woman, a passenger on the same car at the time. The date of the occurrence was September 4, 1906, at about four o’clock in the afternoon.

The plaintiff, Mrs. Langan, was a passenger on a south-bound Halsted street car of the defendant and had notified the conductor that she wished to leave the car at Seventy-seventh street, and pursuant to her request the conductor gave the signal to stop when the car was midway between Seventy-sixth and Seventy-seventh streets. In obedience to the signal the speed of the car began to diminish, and when the rear or north end of the car had about reached the north crosswalk of Seventy-seventh street and the car was going at the rate of one or two miles an hour preparatory to stopping at the south line of Seventy-seventh street, the plaintiff either stepped off the car and fell backwards to the ground, or was pushed off by another woman. According to the plaintiff’s theory, when she reached the rear platform of the car she found the conductor standing at the rear of the platform holding out of the center window of the vestible a bunch of lighted paper. The checking of the speed of the car caused the flames to reach his hand and he sprang backward against a large woman, who was standing behind the plaintiff, knocking her against the plaintiff, so that both the large woman and the plaintiff fell off the car together, the large woman falling upon the plaintiff.

The theory of the defendant is that the incident of the lighting of a piece of paper had nothing whatever to do with the accident; that the paper had burned down to the conductor’s hand when the car was a short distance south of Seventy-sixth street and was there thrown away, and that there was no other woman besides the plaintiff on the rear platform at the time, and that no other woman fell from the car with the plaintiff; that the plaintiff stepped off the car at the north crossing while the car was moving and fell backwards or sideways upon the ground.

The trial of the cause resulted in a judgment in favor of the plaintiff against the defendant, the plaintiff in error here, which seeks to reverse the judgment by this proceeding.

Plaintiff in error contends that the charge to the jury was highly prejudicial to it, and that it was erroneous in various of its parts.

In charging the jury on the question of preponderance of the evidence the court said:

“The preponderance of the evidence does not mean alone the number of witnesses testifying to a given point, but relates more particularly to the credibility of the witnesses testifying on a given state of facts relative to a given point. The jury are not to be supposed, furthermore, to consider at all the greater number of witnesses. This may be considered along with other facts relating to the evidence. If the jury find from the evidence that a lesser number of witnesses testifying to a given point are entitled to more credit than a large number of witnesses testifying to the contrary of a given point, then it would be the province of the jury to find the greater weight of the evidence in favor of that side having the lesser number of witnesses, but if the jury find that the witnesses testifying upon that side having the greater number of witnesses are equally credible and that their testimony, taken in connection with all the testimony in the case, and the facts and circumstances material to the case, are entitled to greater credibility and that their testimohy outweighs the testimony of the lesser number of witnesses, then it would be the duty of the jury to find the issues in favor of that side having the greater number of witnesses”.

The positive and peremptory statement that “The jury are not to be supposed, furthermore, to consider at all the greater number of witnesses”, is not a correct statement of the law. Hays v. Johnson, 92 Ill. App. 80, 83; Eastman v. Street Ry., 79 Ill. App. 585, 589. We do not think the above language is in any way modified by what precedes it or follows it in the charge; but if it was modified and the correct rule stated in another part of the charge on that subject it would not cure the error; for the jury would then have been left at liberty to select and act upon either instruction as it might appear to them to be most proper. C., B. & Q. R. R. Co. v. Harwood, 80 Ill. 88, 91.

The charge of the court upon this point is also objectionable in the unusual and extraordinary comparisons between the credit to be given to the testimony of the lesser and the greater number of witnesses. This portion of the charge tends to emphasize the objectionable portion of the charge first above adverted to. There was a sharp conflict in the evidence on the material facts, and it was, therefore, important that the jury should be accurately instructed as to the law.' The larger number of witnesses to these facts testified for the defendant. There was no evidence before the jury justifying any inference that this greater number of witnesses was not credible. We think the charge was highly prejudicial to the defendant, and contained reversible error.

The defendant requested the court to instruct the jury as follows:

“The jury are instructed that while the law permits a plaintiff in a case to testify in her own behalf, nevertheless the jury have the right in weighing her evidence, of determining how much credence is to be given to it, to take into consideration the fact that she is the plaintiff, and that she is interested in the result of the suit”.

This instruction in substance, though in better English, has been approved. West C. St. Ry. Co. v. Dougherty, 170 Ill. 379; C. & E. I. R. R. Co. v. Bur-ridge, 211 id. 9, 13. The court refused to give it. It should have been given.

Furthermore, the court in its charge on this subject of weighing the plaintiff’s testimony, after telling the jury that they were entitled to take into consideration the fact that she is the plaintiff and interested in the result of the suit, further stated that “if the jury find from the evidence that the plaintiff in giving her testimony was swayed or influenced by her interest in the result of the suit, then you should give that fact such weight as in their judgment it is entitled to and give her whole testimony only such weight and consideration as it is entitled to, considering the fact that she was swayed or influenced in giving her testimony by her interest in the case; on the other hand, if you find that the plaintiff in giving her testimony was not swayed or influenced by reason of any interest which she has in the outcome of the case, then you would not be warranted in giving the mere fact that she is the plaintiff in the case any weight whatever, but you would weigh her testimony by the same standard and test it by the same tests as you would the testimony of any other witness”.

The statute removing the disqualification, as witnesses in civil actions, of persons by reason of their interest in the event of the suit, as parties or otherwise, provides that such interest may be shown for the purpose of affecting the credibility of such witness, but the statute does not provide that the jury must first find that the plaintiff was swayed or influenced in giving his or her testimony by his or her interest in the result of the suit before the jury can consider his or her interest as affecting the testimony of such plaintiff, as the charge plainly informed them. It was material error, in our opinion, to refuse the instruction requested, and to give the charge to the jury as it was given.

Inasmuch as there must be a retrial of the case, we refrain from discussing the evidence in the record.

For the errors indicated the judgment is reversed and the cause is remanded.

Reversed and remanded.


text:
    Constantine Gunszfsky, Defendant in Error, v. Peoples Gas Light & Coke Company, Plaintiff in Error.
    Gen. No. 14,239.
    1. Master and servant—when not required to furnish safe place to work. The rule that a master is required to exercise reasonable care to furnish a reasonably safe place to work does not apply where the conditions are changing from time to time in the prosecution of the work. If the nature of the work is such as to produce changes and temporary conditions in the place where the work is performed, the rule does not require the master to keep the place reasonably safe under such changed conditions which the work renders necessary.
    2. Master and servant—when doctrine of assumed risk applies. Where the work which the servant is doing tended to create the dangers from which he suffered his injury, the law is that such servant is held to assume the risk of such dangers and the master is not responsible.
    Action in ease for personal injuries. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.
    Reversed with finding of facts.
    Opinion filed December 18, 1908.
    Statement by the Court. Defendant in error Gunszfsky brought an action in the Municipal Court of Chicago against The Peoples Gas Light & Coke Company, plaintiff in error, to recover damages for personal injury. The bill of particulars filed in that court by the plaintiff is as follows:
    “Plaintiff’s claim is that whereas on or about the 31st day of May, 1907, at the city of Chicago, state and county aforesaid, the defendant employed the plaintiff as a laborer to work as such in one of their buildings in said city and whereas it became the duty of the defendants to provide for plaintiff a reasonable safe place for him to work so not to endanger his life or limb, yet this defendants disregarding their duty negligently, carelessly and wantonly ordered the defendant to do some digging in said building and the plaintiff although using due care and diligence was badly hurt and his head by reason of stone and debris falling on his head suffered great pains arid anguish and was hindered from performing his daily work and therefore brings his suit for $1,000.”
    On the trial of the cause the jury returned a verdict in favor of the plaintiff and against the defendant for $1,000, from which the plaintiff remitted $200 and the court denied a motion for a new trial and a motion in arrest of judgment, and entered judgment for $800 on the verdict.
    The record shows that the plaintiff was employed by the defendant as a laborer at its Division street works in Chicago. The defendant Gras Company was engaged in putting concrete under the foundation walls of its building, for an additional support thereto. It first excavated the earth inside the foundation walls down to the level of the bottom of the foundations. In order to put the concrete under the foundation walls, it was necessary to excavate holes in the floor along and inside of the walls about two or three feet square and eighteen inches deep opposite to the places under the wall where concrete was to be put, for the men to stand in while digging under the wall. The manner of doing the work was to excavate a space under the wall about three feet long, the whole thickness of the wall and eighteen inches deep. When the digging was finished, the concrete was immediately put in under the wall and built up to it, and the remainder of the excavation was then filled in. Between these excavations under the wall were left solid dirt foundations'of about six feet long to support the foundation wall until the concrete was put in. It so happened, however, that the hole or excavation which was dug nearest to the one in which the plaintiff was working was ten feet or more away from it. The place where the work was being done was light, and everything was open and in full view.

      The plaintiff commenced working at the excavation at about 12:30 in the afternoon, and worked until about four or five o’clock, when some stones from the wall over the excavation fell on his head.
    At the close of the plaintiff’s case, and again at the close of all the evidence, the defendant moved the court to instruct the jury to find it not guilty. Both of these motions were denied and exceptions to the rulings were saved.
    Sears, Meagher & Whitney, for plaintiff in error; James F. Meagher and Edwin Hedrick, of counsel.
    Nathan Neueeld, for defendant in error; Isaac E. Korn, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The record shows little controversy of fact. Besides the fact that the danger to which the plaintiff was exposed was open and obvious, it appears that the plaintiff had been warned of the danger by defendant’s foreman that stones might become loose and fall and he had been instructed to be careful to be out of .the way of such stones. The wall itself, as shown by the evidence, was in nowise defective or dangerous as it stood before the excavation was made. The wall and its foundation was in good condition and contained no defect or cause of danger. The work was done in a proper and careful manner. There is no evidence that any props or supports could or should have been placed under the wall at the point where plaintiff was digging, or that it was customary or usual or practicable to place supports under the wall while the digging was being done. It appears that the work was carefully done, not only in the usual and customary way of doing that kind of work, but that it was done in the only practical manner.

It is clear from the evidence, we think, that there was nothing whatever which caused the stones to fall upon the plaintiff except his own digging of the earth from underneath the wall. When he began digging at the place where he was injured, the bottom of the wall at that place was on the level of the floor. This is nowhere questioned or qualified by any of the witnesses in their testimony. There was no danger or possibility of the wall or any stones in the wall falling until the digging was done by the plaintiff. When the plaintiff began to excavate the earth under the wall the conditions were changing every moment as he progressed with his work. Plaintiff knew all the facts and changing conditions as he proceeded with his work, and he knew them before the defendant could know them, unless the foreman stood there all the time. And even then, plaintiff knew better than any one else the existing conditions and dangers, for they were incident to and accompanied the work itself as the earth was removed by him. As the work progressed, the condition of safety was being changed momentarily to a temporary condition of danger, which was created by the digging itself. Plaintiff’s testimony shows that he knew stones were liable to fall, for he told the foreman that he should brace them up.

Under the conditions and circumstances shown by the evidence the defendant was not required to exercise reasonable care to furnish the plaintiff, its servant, a- safe place in which to work. The leading case, perhaps, in this state upon this subject is Village of Montgomery v. Robertson, 229 Ill. 466. In that case the defendant in error was in the employ of the plaintiff in error as a laborer, shoveling gravel in a gravel pit, and his leg was broken by the falling of a gravel bank. By his declaration he averred: “(1) That the gravel pit was a dangerous place to work, which was known to defendant and unknown to plaintiff; (2) that defendant failed to perform its duty to take reasonable care to provide plaintiff a reasonably safe place to work; (3) that plaintiff was directed by defendant’s foreman to work in a dangerous place, the danger being known to defendant and unknown to plaintiff; (4) that after discovering the danger plaintiff reported it to the defendant’s foreman and was ordered to continue work”. And in the sixth count it was averred “that the plaintiff was inexperienced in such work, and the defendant failed to warn him of the existing danger. ’ ’

In discussing the application of the general rule that the master must exercise reasonable care to furnish a safe place for his servant to work, the court said, at page 472 of the opinion: “But that rule is subject to limitations and exceptions. One exception universally recognized is, that the general rule does not apply where the conditions are changing from time to time in the prosecution of the work. If the nature of the work is such as to produce changes and temporary conditions in the place where the work is performed, the rule does not require the master to keep the place reasonably safe under such changed conditions which the work renders necessary. (Thompson on Negligence, sec. 3876.) In such a case the master does not make or create the place or conditions, but they are created by the progress of the work and the workmen engaged in it. In this case the removal of the gravel created the attendant dangers, and while a master might become liable for an injury on account of some other fault or neglect, he would not be made liable under the rule here invoked. A master cannot he held to make a gravel pit safe for employes from moment to moment, when the natural support of the bank is being constantly removed and where the changing conditions must be watched and provided against by the laborers themselves ’ ’.

We think the same principles apply in this case as in the case just cited. The points of similarity are numerous and they are so obvious that it is unnecessary to state them. If the plaintiff seeks to recover on the ground that the foreman of the defendant ordered him to go to work in the building at a certain place and that he took such order as an assurance of the safety of the place, the answer is that at the time such order or assurance was given the place was perfectly safe; and in further answer may be quoted the following from the Robertson case, supra, at page 472 of the opinion:

“If what Noteman said was an assurance of safety at the time there was no wrong in giving the assurance, since the bank was then entirely safe and no accident occurred. Such an assurance could not continue indefinitely during the removal of the gravel. When the superintendent was there he had the bank broken down, and any assurance he might have given did not continue during subsequent changes, when a large amount of gravel was removed from the face of the bank”.

It clearly appears from the record that the danger in the work the plaintiff was doing was in shoveling the earth from underneath the wall and that any loose stones in the wall might be left thereby without support and likely to fall when the digging was being done, and it was necessary always for the plaintiff to be on the lookout for the falling of such stones. The plaintiff cannot plead ignorance of the law of gravitation, and its effects on solid substances when their supports are removed. The defendant would have no reason to suppose or presume such ignorance, or that plaintiff needed instruction on that subject. There was no duty laid upon the defendant to warn the plaintiff of such dangers which are patent to ordinary intelligence. (Robertson case supra.)

The case of Cleveland, C., C. & St. L. Ry. Co. v. Brown, 73 Fed. 970, 974, is also in point, and holds that the rule under consideration is not applicable to a case like this, “where the place becomes dangerous in the progress of the work, either necessarily, or from the manner in which the work is done”.

The case just cited is followed in Heald v. Wallace, 71 S. W. Rep. (Tenn.) 80. In that case Wallace was injured by the falling of a rock beneath which he was digging and undermining. He continued to undermine the rock until it fell upon him. The court said, at page 85 of the opinion: “We do not think this rule of the common law applicable in such a ease. The principle invoked is usually applied to a permanent place, and not to such places as are constantly shifting and being-transformed as the direct result of the employes’ labor”.

In this class of cases where the work which the servant was doing tended to create the dangers from which he suffered, it has been held that the servant assumed all such risks and the master was not responsible. Florence & C. C. R. Co. v. Whipps, 138 Fed. 13; Utica H. C. Co. v. Whalen, 117 Ill. App. 23; Welch v. Carlucci Stone, 64 Atl. (Pa.) 392; Livingstone v. Saginaw Plate Glass Co., 109 N. W. (Mich.) 431.

In our opinion, therefore, under the bill of particulars and the evidence, no recovery can be had, and the judgment must be reversed with a finding of facts.

Reversed with finding of facts.


text:
    James J. Smith, Plaintiff in Error, v. Daniel Eustace, Defendant in Error.
    Gen. No. 14,216.

      Verdict—when set aside as against the evidence. A verdict will be set aside on review as against the weight of the evidence where clearly and manifestly so.
    Forcible detainer. Error to the .Municipal Court of Chicago; the Hon. Mancha Bruggemeyer, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed December 18, 1908.
    H. A. Tiffany, for plaintiff in error.

      No appearance by defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This is a writ of error which brings before the court the record of the Municipal Court of Chicago in an action of forcible detainer brought by James J. Smith, plaintiff in error, against Daniel Eustace, defendant in error, for possession of certain premises in the city of Chicago.

The evidence shows that plaintiff was the owner of the premises in question, and in October, 1902, sold by a verbal contract the property to defendant for the sum of $900, payable in instalments of $10 per month until the whole amount was paid with interest at six per cent, on the deferred payments. The defendant with his family took possession of the premises and remained in possession thereof until the action was brought for the possession. The plaintiff paid all instalments as they fell due up to September 24, 1906, and thereafter failed to make payments until demand in writing was made by plaintiff for possession. At this time $120 was due and unpaid. Defendant refused to deliver possession of the premises on demand, and thereupon the action was commenced.

The jury returned a verdict for the defendant, and the court entered judgment on the verdict.

Tn our opinion the verdict is manifestly against the clear weight of the evidence, and the trial court should have set aside the verdict and awarded a new trial.

The judgment is therefore reversed and the cause is remanded for a new trial.

Reversed and remanded.


text:
    Bessie Baker, Defendant in Error, v. James W. Stafford, Plaintiff in Error.
    Gen. No. 14,225.
    This case is controlled by the decision in Clifford v. Stafford, ante, p. 247.
    Action of contract. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.
    Reversed with finding of facts.
    Opinion filed December 18, 1908.
    C. Van Alen Smith, for plaintiff in error.
    Adolph Marks, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The facts as to the special agreement made between the plaintiff in error' and the defendant in error in the record in this case are precisely the same as in Georgie Clifford, defendant in error, v. James W. Stafford, plaintiff in error, No. 14224, ante, p. 247. For the reasons there given and upon the authorities there cited, the judgment of the Municipal Court of Chicago is erroneous and is therefore reversed with a finding of facts.

Reversed with finding of facts.


author: Mr. Justice Baker

text:
    William Eugene Brown, Plaintiff in Error, v. The People of the State of Illinois, Defendant in Error.
    Gen. No. 13,113.
    1. Perjury—when indictment and verdict correspond. A verdict convicting a defendant of “attempted subornation of perjury” is not variant from an indictment charging him with an attempt to “incite” to perjury.
    2. Perjury—when false testimony material. False testimony as to a question of fact placed in issue by the pleadings in a cause is material and may be made the basis of a prosecution for perjury.
    3. Evidence—when testimony of absent witness not admissible in criminal prosecution. The testimony of an absent witness is not admissible on behalf of the defendant in a criminal case even though the People have had an opportunity to cross-examine such a witness in a trial in which both parties were the same and in which the testimony offered was given.
    4. New trial—when newly discovered evidence not ground for. A new trial in a criminal case will not be granted the defendant upon the ground of newly discovered evidence where the motion is based solely upon the affidavit of such defendant and refers to evidence affecting only the credibility of witnesses who testified against him.
    Criminal prosecution for subornation of perjury. Error to the Criminal Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed December 18, 1908.
    Statement by the Court. Plaintiff in error was indicted in the Criminal Court for a violation of the following section of the Criminal Code: “Whoever endeavors to incite or procure any other person to commit perjury, though no perjury is committed, shall be imprisoned in the penitentiary not less than one year, more than five years, or confined in the county jail not exceeding one year and fined not exceeding $1,000”, and sentenced to imprisonment in the house of correction for one year, and to pay a fine of $100 and costs.
    An information was filed in the Supreme Court by the state’s attorney of Cook county against plaintiff in error, who was a practicing attorney in Chicago and a member of the bar of this State, charging him with certain fraudulent practices and moving for his disbarment. After the respondent had filed his answer, the cause was referred to Gf. Fred Eush, a master in chancery of the Superior Court of Cook county, to take the evidence and report the same to the Supreme Court. The substance of the information, answer, and of the testimony taken by the master as special commissioner, is stated in the opinion in the case of The People ex rel. v. Brown, 218 Ill. 301.
    The first count of the indictment avers that the information and answer thereto were filed in the Supreme Court, and order of reference made as above stated, and further avers that it was pertinent and material to the issue in said proceeding to inquire whether there was such a person as William H., alias Billy Barton; whether such person was a detective and whether said Brown had delivered to him a check for $3,850; that when said proceeding was about to come up for hearing before said Bush, special referee, etc., said Brown unlawfully, etc., endeavored to incite one Charles T. Hass to commit perjury in said proceeding, etc.; that he unlawfully, etc., endeavored to incite and procure said Hass to appear before said Bush in said proceeding and testify that he knew said Billy Barton, had employed him as a detective; that he had been shown by said Barton a check for $3,850; that Barton went from Chicago to Kansas City to look up one Nelson; when in fact at said time when etc., Hass did not know Barton; had not employed him as a detective; had not been shown by him a check for $3,850 or any other sum; Barton did not go to Kansas City to look up Nelson and Hass had not told Brown that he knew Barton, or had employed him as a detective or otherwise; or been shown a cheek by him; or that Barton had gone to Kansas City to look up Nelson, and so etc., said Brown unlawfully etc. did endeavor etc. to incite and procure the said Hass to commit perjury etc.
    The second count is substantially like the first except that the proceedings in the Supreme Court and before the special commissioner are stated more fully.
    The defendant pleaded not guilty. The jury returned the following verdict: “We, the jury, find the defendant, William Eugene Brown, guilty of attempted subornation of perjury in manner and form as charged in the indictment”. Motions for new trial and in ar-

      rest were made and overruled, and judgment entered on the verdict as above stated.
    William Eugene Brown, for plaintiff in error.
    No appearance by defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

We have not been favored with a brief for the People in this case.

The contention that the defendant was indicted for one offense and convicted of another is without merit. To suborn means to incite, to procure, and the offense charged in the indictment was aptly called in the verdict “attempted subornation of perjury”.

The contention that the false testimony which the indictment charged that the defendant endeavored to incite and procure Hass to give, was not shown to be material to the point or issue in the disbarment proceedings, cannot be sustained. The information in the disbarment proceedings alleged that the respondent, on the pretest that he wanted to have Nelson apprehended, obtained from the bank the possession of said check for $3,850 and refused to produce the same, claiming that he had given it to Barton, a detective; that Barton was a fictitious person and the use of his name a fraudulent device used by respondent to get possession of the written evidence of his fraud. The respondent in his answer averred that he delivered the check to Barton, who was known to respondent as a person who did detective work, with instructions to find Nelson ; denied that Barton was a fictitious person, etc.

Whether there was such a person as Barton, and whether respondent delivered the check to him, after it came back into his possession, were questions put in issue by the pleadings in the disbarment proceedings. Again, the evidence that there was no such person as Barton, and therefore that the statement of the respondent that he delivered the check to Barton and had not been able afterwards to find Barton, regain possession of the check and return it to the bank, tended to show that the respondent had suppressed material evidence and was for that reason admissible and material. Chicago City Ry. v. McMahon, 103 Ill. 485; 1 Wigmore on Ev. sec. 278.

On the trial the defendant was unable to procure the attendance of several witnesses who had testified in the disbarment proceedings and offered to prove their testimony in such proceedings. The witnesses whose testimony it was offered to prove were all living, but the preliminary evidence showed that some of such witnesses were out of the state, and that others were sick and unable to attend. The parties in the disbarment proceedings and in this case are the same. The people in that proceeding had an opportunity to cross-examine the witnesses whose testimony it was offered to prove in this case. The rule applicable to the testimony of absent witnesses given at a former trial of the same case is applicable,in this case to the testimony of absent witnesses given in the disbarment proceedings. The question is therefore presented, whether, in a criminal case, testimony of a witness at a former trial who is out of the state or so ill as to be unable to attend the trial, is admissible for the defendant. On this question the authorities are conflicting. In several of the states such testimony has been held admissible.

In Bergen v. The People, 17 Ill. 425, it was held by the Supreme Court of this state that in a criminal case, evidence, for the prosecution, of .the testimony of a witness, then beyond the jurisdiction of the court, by procurement of the defendant, given at the examination of the defendant before the magistrate for the same offense, was not admissible.

Among the cases cited in the opinion were, Finn v. The Commonwealth, 5 Randolph, 701, and People v. Newman, 5 Hill, 295. In Finn’s case and in People v. Newman the witnesses were out of the state, and the testimony was offered by the prosecution and held not admissible. In Brogy v. The Commonwealth, 10 Grattan, 722, the witness was out of the state and the evidence was offered by the defendant and held not admissible.

To the same effect are Owens v. The State, 63 Miss. 450; Collins v. Commonwealth, 12 Bush. 271, and U. S. v. Angell 11 Fed. 34, in each of which cases the evidence was offered by the defendant; and State v. Houser, 26 Mo. 431, where the evidence was offered by the prosecution. In jurisdictions where such evidence is held admissible, it is held admissible whether offered by the defense or by the prosecution. We regard the decision in Bergen v. The People, supra, as controlling in this case, although in that ease the evidence was offered by the prosecution, and in this case by the defendant, and it follows that in our opinion the evidence was properly excluded.

We find no error in the other rulings of the court on questions of evidence or in the rulings on instructions. The judgment should not, in our opinion, be reversed because of the argument of counsel for the People.

On the evidence, we cannot say that the jury might not properly find the defendant guilty. The material facts tending to show his guilt were testified to by Hass, Mrs. Starek and Mullen, and their testimony was directly contradicted only by the testimony of the defendant.

The defendant filed his own affidavit alone in support of his motion for a new trial, on the ground of newly discovered evidence tending to affect the credibility of Hass, Mrs. Starek and Mullen. The court did not err in denying his motion. Martinatis v. The People, 223 Ill. 117.

Finding no error in the record, the judgment of the Criminal Court will be affirmed.

Affirmed.


text:
    John B. Whitney et al., Defendants in Error, v. Caroline Bullock et al., Plaintiffs in Error.
    Gen. No. 14,222.
    1. Contracts—what incompetent to aid construction of. It is incompetent to show by the parol evidence of one of the parties to the contract the purpose of providing for the payment thereunder of certain installments of money.
    2. Contracts—what incompetent to aid construction of. The statement of an attorney who drafted an instrument made at the time of its execution as to the effect thereof, is incompetent to aid in the construction thereof.
    3. Contracts—how obligations imposed by determined. The obligations imposed by a contract are those created by the instrument and that instrument affords the only evidence of its terms and conditions.
    4. Contracts—what not, of indemnity. A release by the prospective heirs of one to whom money is to be paid given to those who have undertaken to pay such money, such a release only to be operative in the event of the death of the ancestor to whom such money was to be paid, is not an agreement for indemnity against the enforcement of such obligation of payment by the personal representatives of such ancestor.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantry, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.
    Reversed.
    Opinion filed December 18, 1908.
    Masoh & Wymau, for plaintiffs in error.
    Adams & Froehlich, for defendants in error.
   Mr. Justice Baker

delivered the opinion of the court.

This writ of error brings before us for review the record of a judgment for $907.70 recovered by defendants in error against plaintiffs in error in the Municipal Court of Chicago in a cause tried by the court without a jury.

Milo S. Bullock was the husband of the defendant Caroline Bullock and the father of the defendant Blanche B. Cone. He and the plaintiffs were partners in business. In February 1906 they entered into the following agreement:

“Whereas each of the members of the co-partnership of Whitney, Christenson & Bullock, of Chicago, Illinois, doing business as clothing manufacturers in the City of Chicago, Illinois, and consisting of John B. Whitney, August Christenson and Milo S. Bullock, all residents of Chicago, Illinois, desires to dissolve the co-partnership heretofore formed and now existing by mutual consent.

And whereas the said John B. Whitney and August Christenson desire to acquire the entire interest of the said Milo S. Bullock and assume all existing liabilities of the said co-partnership:

And whereas the said Milo S. Bullock desires to dispose of his entire one-third interest in the said co-partnership and business now existing for cash and retire from the said co-partnership, on condition that all the present existing liabilities of the said co-partnership of every kind, character and nature be assumed and paid by the said John B. Whitney and August Christen-son, their heirs, executors, administrators and assigns, when due and payable:

Now therefore, this agreement witnesseth: that John B. Whitney and August Christenson have in hand paid Milo S. Bullock the sum of six thousand ($6,000.00) dollars, in cash, and covenant and agree to pay the further sum of one thousand ($1,000) dollars, in equal monthly installments consecutively of one hundred and twenty-five ($125.00) dollars cash each and every month beginning March 1st, 1906, to and including October 1st, 1906, until said sum of one thousand ($1,000) dollars has been fully paid to the said Milo S. Bullock, the total sums aforesaid of seven thousand ($7,000) dollars shall be in full of his entire one-third interest in the said co-partnership and business, including all capital contributed, all profits, if any have accrued during the continuance of the said co-partnership and business to the date hereof.

The said Milo S. Bullock hereby acknowledges the receipt of six thousand ($6,000) dollars in cash and does hereby grant, bargain, sell and convey to the said John B. Whitney and August Christenson, their and each of their heirs, executors, administrators and assigns, forever, his entire one-third interest in the said co-partnership of Whitney, Christenson & Bullock, of Chicago, Illinois, to have and to hold all and singular the said grantor’s entire title, right and interest in the assets of the said co-partnership, without any manner of account whatever, and the said John B. Whitney and August Christenson their and each of their heirs, executors, administrators and assigns, hereby assume and agree to pay in full all of the debts, bills, notes or liabilities of the said co-partnership of every kind and character, and all notes, bills for merchandise, or otherwise, wages or material, or other demands of every kind and character now existing against the said co-partnership or individuals thereof, to which said Milo S. Bullock may be in any way liable in law or equity by reason of said co-partnership.

In witness whereof we have hereunto set out hands and seals this 20th day of February, 1906.

John B. Whitney [Seal.]

Aug. Christenson [Seal.]

& Milo S. Bullock. [Seal.]

Signed, sealed and delivered in the presence of

W. W. Wade

Blanche Bullock Cone.”

After this agreement was executed, but on the same day, the defendants, without the knowledge of Milo S. Bullock executed and delivered to the plaintiffs the following instrument:

“We, the undersigned, natural and only heirs of Milo S. Bullock, of Chicago, Illinois, do hereby agree as follows:

That should the said Milo S. Bullock depart this life before October 1st, 1906, the period named and provided for the payment of eight certain monthly installments of one hundred and twenty-five ($125,00) dollars each in a certain agreement of dissolution of even date herewith of the co-partnership of Whitney, Christenson & Bullock, by mutual consent, which said co-partnership is this day dissolved.

In consideration of one ($1.00) dollar and other valuable consideration, we hereby agree to release and discharge John B. Whitney and August Christenson, both of the City of Chicago, from any further payments of the said installments upon the demise and decease of the said Milo ¡3. Bullock, should it occur as aforesaid before October 1st, 1906.

Witness our hands and seals this 2nd day of February, 1906.

Mrs. Caroline Bullock, [Seal.]

Blanche Bullock Cone. [Seal.]

Signed, sealed and delivered in the presence of

Geo. J. Kuebler.”

Milo S. Bullock was then ill and died March 7, 1906, intestate. His administrator recovered a judgment against plaintiffs in the Superior Court December 10, 1906, for $893.70, for the installments falling due under said agreement after March 1, 1906, and interest thereon. This judgment the plaintiffs in this action paid at once to the plaintiffs in the judgment and the judgment was satisfied. The recovery in this case was for the amount so paid by the plaintiffs in satisfaction of said judgment and interest thereon. The cause of action, as set out in plaintiffs’ statement of their demand, was for a breach of the instrument signed by the defendants, and the theory of the plaintiffs was, that said instrument was an agreement to indemnify plaintiffs against any installments falling due after the death of Milo S. Bullock, under the agreement between plaintiffs and Bullock, which they might be compelled to pay to his administrator. Both of said instruments were drawn by George J. Kuebler, an attorney who represented Bullock, and plaintiffs had no lawyer.

Plaintiff Whitney testified, over the objection of defendants, that he estimated the value of Bullock’s interest in the co-partnership at $6,000, and that the intention of the parties, in “having said additional $1000, payable in installments, put in the agreement, was to assure to Milo S. Bullock an income of $125 per month for eight months or so long as he should live”. This testimony was clearly incompetent, and in construing the instrument sued on, will be disregarded. Whitney also testified, over the objection of the defendants, that after said instruments were drafted but before they were executed, “Kuebler informed said Wiitney that the effect of the same would be that said Whitney and Christenson would not have to pay any installments on said Exhibit 'A’ which would become due after the death of Milo S. Bullock”. Exhibit “A” is the instrument executed by the defendants. The instrument signed by plaintiffs and Bullock is Exhibit “B”. It is that agreement and not Exhibit “A” that obligated plaintiffs to pay certain installments to Milo S. Bullock. But if by any construction it can be held that Kuebler’s declaration referred to the installments falling due under Exhibit “B”, the evidence was incompetent and will also be disregarded.

Said Wiitney also testified on behalf of plaintiffs, over objection of defendants, “that the reason (as understood between himself and Kuebler, before the execution of said instrument), that the provision to release said Wiitney and Christenson from further payments upon the death of the said Milo S. Bullock, was not incorporated in said agreement, ‘Exhibit B’, was owing to the critical illness of the said Bullock, and the desire of both the said "Whitney and the said Kuebler to save said Bullock unnecessary worry over the transaction”.

This evidence was also incompetent and will be disregarded.

The obligations of defendants to plaintiffs are those created by the instrument they executed, and that instrument affords the only evidence of its terms and conditions. Osgood v. Skinner, 211 Ill. 229.

By the terms of that instrument defendants, ‘‘ agreed to release and discharge (plaintiffs) from any further payments of the installments (mentioned in the contract between plaintiffs and Milo S. Bullock) upon the demise of the said Milo S. Bullock should it occur as aforesaid before October 1st, 1906”.

We know of no rule of construction under which this instrument can be held to be a covenant to indemnify the plaintiffs in case they should be compelled to pay to the personal representatives of Milo S. Bullock installments falling due after the death of Bullock, under the contract between him and the plaintiffs. No doubt as a release the instrument was inoperative for a release, “supposeth a right in being”, and defendants had no “right in being”, in the contract between plaintiffs and Milo S. Bullock. But it does not follow that because the instrument is inoperative as a release, that it can be held to be a contract to indemnify plaintiffs in case they should be compelled to pay installments falling due after the death of Milo S. Bullock. To so hold would be to give a construction to the instrument not warranted by its language.

In our opinion, the evidence discloses no right of action in the plaintiffs against the defendants on said instrument, and the judgment will therefore be reversed with a finding of facts, and the cause will not be remanded.

Reversed.


text:
    William B. McKeand, Defendant in Error, v. Moses S. Feinberg et al., Plaintiffs in Error.
    Gen. No. 14,232.
    Appeals and errors—when finding of court will not he reversed. Where a trial is had by the court as to the facts, the court stands in the place of the jury and the decision will he reversed or affirmed by the same rules which govern when the facts are tried by a jury, and the finding not being manifestly against the weight of the evidence it will not he reversed.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed December 18, 1908.

      B. C. Bachrach, for plaintiffs in error.
    Joseph O. Morris, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The plaintiff in an action in the Municipal Court against plaintiff in error Feinberg, as maker, and plaintiff in error Mayer as gurantor of a promissory note, of which the following is a copy:

‘ ‘ Chicago, August 1, 1905.

Four months after date I promise to pay to the order of W. B. McKeand & Co. Five Hundred Dollars at 803 Rookery Bldg., Chicago, value received with interest at the rate of 5 per cent per annum.

M. S. Feikberg.

Endorsements: George Mater,”

had judgment for $543.80, to reverse which this writ of error is prosecuted.

The note on which the recovery was had was given in renewal of another note for the same amount, dated March 29, 1905, payable four months after date to the order of plaintiff, made by Feinberg and guaranteed by Mayer.

Plaintiff and defendants were interested in the Owl Mining Company of New Mexico. The note of March 29 was delivered by Feinberg to plaintiff, who gave to Feinberg his check for $500, payable to the order of Baker, plaintiff’s bookkeeper, and by him endorsed. Feinberg obtained the money on this check and sent the amount, by telegraph, through a Chicago bank, to the mining company in New Mexico.

The contention of plaintiffs in error is that plaintiff, desiring to invest $500 more in said mining company, about March 29, 1905, requested defendant Mayer, who was then in his employ, to obtain from defendant Feinberg, his brother-in-law, a note for $500, and to sign the same as guarantor, so that plaintiff might have the same discounted and thereby procure $500 to invest in said mining company; that pursuant to such request and for the accommodation of the plaintiff said note of March 29 was made by Feinberg, guaranteed by Mayer and delivered to plaintiff; that plaintiff had the same discounted for his own benefit; that the check for $500 that plaintiff gave Feinberg was given to him as an officer of said mining company as an advance to or investment by the plaintiff in said company on his own account; that at the maturity of said note of March 29, it not being convenient for plaintiff to pay said note, defendants, at his request, made and guaranteed the note sued on and delivered the same to the plaintiff, so that he might have the same discounted and with the proceeds pay the note of March 29. This contention was supported by the testimony of the defendants. Their testimony was contradicted by the plaintiff, who testified that he was asked by Mayer in March, 1905, to put more money in said mining company; that he refused to do so; that he was then asked to advance or get the money on a note for $500 to be made by Feinberg and guaranteed by Mayer, so that they might invest the same in said mining company; that he agreed to make such loan or advance and that the note was made and given to him for money actually loaned and advanced by him to the defendants, and was not made for his accommodation, and that the note sued on was given in renewal of said note of March 29.

The cause was heard by the court without a jury. We are asked to reverse the judgment, on the ground alone that the finding is contrary to and not supported by the evidence.

In Field v. C. & R. I. R. R. Co., 71 Ill. 461, Chief Justice Breese said: “This court has often held, where a trial is had by the court, as to the facts, the court stands in the place of the jury, and the decision will be reversed or affirmed by the same rules which govern when the facts are tried by a jury. Ambs v. Honore, 24 Ill. 122; Eastman v. Brown, 32 ib. 53. And it was emphatically said in Wood v. Price, 46 ib. 435, that the same force and effect should be given to the finding of a judge as to the verdict of a jury.”

To the same effect are the decisions of this court: Hays v. Langley, 90 Ill. App. 500; Coal Co. v. Beaver, 95 id. 95; Greer v. Clay, 99 id. 204.

The introduction of the note in evidence made a prima facie case for the plaintiff; the defense was supported by the testimony of the defendants which was contradicted by the testimony of the plaintiff. The trial judge heard the parties testify, and his finding not being against the great preponderance of the evidence, it must stand. The judgment is affirmed.

Affirmed.