text:
    Frank J. Sullivan, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,977.
    1. Negligence—how question whether violation of ordinance constitutes, determined. Whether an infraction of an ordinance requiring lights is a contributing cause of an accident, is a question for the jury to determine.
    2. Negligence—when ordinance requiring lights inapplicable. Such an ordinance does not apply after day-break.
    3. Evidence—how time of day-break established. The only competent evidence in this ease as to the time of day-break on a particular day is that adduced from the weather bureau officials.
    4. Evidence—what records incompetent. Held, that the records kept by an electrical engineer in the employ of the city of Chicago which purport to show when electric lights controlled from a power house were shut off, were incompetent.
    5. Words and phrases'—“day-break” defined. Day-break is the dawn or first appearance of light in the morning.
    6. Appeals and errors—when admission of erroneous evidence will not reverse. The admission of erroneous evidence will not reverse unless prejudice results.
    7. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction will not reverse if its substance was substantially given in other instructions.
    8. Instructions—approved form as to damages in personal injury ease. An instruction upon this subject as follows, approved:
    "If under the evidence and instructions of the court the jury find the defendant guilty, then in estimating the plaintiff’s damages, if any, it will be proper for the jury to consider the effect, if any, of the injury in the past and in the future upon the plaintiff, the use of his arm and his ability to attend to his affairs generally, in pursuing any ordinary calling, insofar, if at all, as the evidence shows that these have been affected in the past and will be affected in the future, and also the bodily pain and suffering if any, he sustained or will sustain as a direct result of said injury, and any and all damages insofar, if at all, as they are alleged in the declaration and shore n by the proof to be the necessary and direct result of the injury complained of.”
    9. Instructions—when not erroneous in failing to identify issues. Held, that an instruction complained of in this case was not erroneous in that it failed to identify issues referred to, when construed in connection with other instructions given.
    Action in ease for personal injuries. Appeal from the Superior Court of Cook county; the.Hon. Marcus Kavanagh, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 5, 1912.
    Rehearing denied and opinion modified and refiled February 19, 1912.
    Samuel S. Page and C. LeRoy Brown, for appellant.
    James C. McShane, for appellee.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

The appellant, the Chicago City Railway Company, in this appeal seeks the reversal of a judgment against it for five thousand dollars rendered by the Superior Court of Cook county on June 26, 1909, in favor of the appellee, Frank J. Sullivan.

The judgment was in an action on the case for personal injuries and was rendered on the verdict of a jury.

The occurrence resulting in the injuries was the collision, at about half past six in the morning of January 15, 1908, of one of the appellant’s cars with a wagon which the appellee was then driving, eastward on Forty-seventh street in the city of Chicago. The collision was a “rear end” one, the car running into the wagon from behind. The wagon was thus pushed around and Sullivan was thrown to the ground, where the wheel of the wagon passed over his arm, breaking it and badly crushing the bones so that two operations were necessary before proper apposition was secured. The arm is left somewhat deformed and without its normal strength or capacity for motion.

One of the forty-three assignments of error made by the appellant asserts that “the verdict was excessive,” but in its argument herein this claim is not in itself urged as a ground for reversal. It is, however, insisted that the assessment of damages was “extraordinarily liberal” and that this was proof of the prejudicial and therefore reversible character of the error which appellant argues was committed in an instruction concerning damages, which will be hereinafter referred to. We do not think that the damages were, in view of the injuries proven by the testimony of the plaintiff and of the medical men produced by him, so large as to show passion or prejudice or justify us in reversing the judgment if it be otherwise sustainable.

The positions taken by the appellant against its being otherwise sustainable are three: First, that it and the verdict on which it stands are contrary to the law and to the clear weight of the evidence; second, that the court below erred in admitting incompetent evidence; and third, that the court erred in rulings on instructions, refusing an instruction that should have been given and giving several instructions that should not have been given.

The first of these positions is divided by appellant into the claims: (a) that the weight of the evidence proved that the defendant (by its motorman) was guilty of no negligence, but exercised reasonable care; (b) that there were circumstances proven by, and undisputed in, the evidence which show the plaintiff to have been guilty of contributory negligence as a matter of law; (c) that if this be not so, nevertheless the clear weight or preponderance of the evidence on other matters showed contributory negligence.

The essence of the defense under the first of these claims is that under the law a collision between a street car and a vehicle going in the same direction raises no presumption of negligence, and that without such presumption the evidence of any negligence in the present case is lacking or is clearly overborne by the evidence to the contrary effect.

The declaration charged in general terms that the defendant ‘ so negligently * * * managed and operated said street car * * * that it ran against * * * said wagon. ’ ’

The jury were instructed at the request of the plaintiff that the defendant’s car had the right of way over other vehicles over the track in question, but that the drivers of other vehicles had the right to drive upon said track provided they used ordinary care not to unnecessarily obstruct street cars, and that if the motorman knew or should have known that other vehicles were accustomed to drive upon and along said track, it was his duty to exercise ordinary care towards keeping a proper lookout for such vehicles, and to exercise ordinary care to prevent the car from running against such vehicles. (Instruction 2.)

At the request of the defendant they were instructed that if they believed from the evidence that the injury was the result of a mere accident, they must find the defendant not guilty (instruction 12); that the burden was not on the defendant to prove that it was innocent of the charges made against it, but that the burden of proving the negligence charged was on the plaintiff (instruction 16); that the motorman in the absence of knowledge, actual or within his reach, to the contrary, had the right to act on the assumption that the plaintiff would act with due care and caution and prudence for his own safety (instruction 18); and that by reason of its convenience to the public as a carrier of passengers and because of the inability of its cars to turn out, a street railway company is vested between street intersections with the right of way over other vehicles to the portion of street occupied by its tracks (instruction 19); that there was no presumption of negligence against the defendant from the mere fact alone that the accident happened (instruction 20); that the defendant was not bound to run its cars in such a manner as would make accidents impossible, but only to handle and manage its cars in an ordinarily careful manner to avoid collisions with others upon the street who were themselves in the exercise of ordinary care and caution (instruction 21); and that the motorman was not bound to use the highest degree of care and caution possible to avoid coming in collision with other vehicles upon defendant’s tracks, but only to use ordinary care to prevent such collisions (instruction 30).

We think these instructions stated the law on the question of the duty of the defendant and its agent and the alleged default therein claimed by the declaration as favorably to the defendant as it had a right to ask.

The instructions taken together certainly are not more stringent in laying down the duty of the defendant than the rule stated in North Chicago Electric Railway Company v. Peuser, 190 Ill. 67, that the operator of a street car “must employ all reasonable means to avoid injuring those whom he knows may rightfully use that part of the streets, occupied by the cars,” and they fail to go so far as the instructions approved by this court in Regan v. McCarthy, 119 Ill. App. 578, that it is negligence in a motorman to run his car at such a high rate of speed that he cannot stop it under the circumstances shown in evidence within the distance at which he could see an obstruction ahead of him on the tracks.

In the case of Regan v. McCarthy we held that while there might be conceivable circumstances which would prevent its being conclusive proof of neglig*ence that a car was not stopped within the time in which it could be stopped, there was no objection to the statement that it was such proof of negligence that the car was being run at a rate of speed which rendered it impossible to stop it' within the distance for which under any given state of circumstances existing an obstruction ahead of it on the tracks could be seen.

In the case at bar we have no hesitation in holding that it was at least a question for the jury—with whose decision we shall not interfere—whether the motorman was not guilty of negligence in running into the plaintiff’s wagon under the circumstances shown by the evidence. We do not think that there is either a lack of evidence to that effect or a clear weight of evidence to the contrary.

Another claim concerning the sufficiency and weight of the evidence is that the negligence of the defendant, even if assumed, does not justify the verdict or judgment, because the plaintiff was, as a matter of law, guilty, under undisputed evidence, of contributory negligence. Evidence much relied on to establish this position is that which, without contradiction, establishes the fact that the plaintiff was driving a wagon which, at the time of the collision, carried no light. An ordinance of the city of Chicago was introduced as follows:

“Lights on Vehicles.
1443. Hours eor Carrying : It shall be unlawful for any owner or driver of any automobile, wagon, truck, dray, cart, carriage, cab, omnibus, bicycle, motorcycle, or other wheeled vehicle to use the streets of the City without having displayed until daybreak after the hour of eight p. m. during-the period commencing with April first and ending October 31st and until daybreak after six p. m. during the period commencing with November first and ending March thirty-first, one or more lights.
1444. Penalty: Any person violating any of the provisions of the preceding Section shall be fined not less than ten dollars nor more than fifty dollars for each offense.”

In any event, it would have been for the jury to say whether an infraction of this ordinance, if it had been violated, was a contributing cause of the accident. Kenyon v. Chicago City Ry. Co., 235 Ill. 406. It would not have been proper for the court below, nor would it be proper for this court, to declare it such a contributing 'cause as a matter of law.

The jury were, in our opinion, correctly and sufficiently instructed as a matter of law on the nature and effect of any contributory negligence of the plaintiff; but no instruction .construing the ordinance nor specifically alluding to the effect of a violation of it seems to have been asked or given.

The ordinance was objected to by the plaintiff when offered in evidence by the defendant, but was admitted over the objection. It is probable, therefore, that its effect and the effect of its violation was brought by argument before the jury. Whether they were asked in such argument to determine its applicability, we cannot know, and it is not material. If it were held applicable to the time—six thirty in the morning of January 15, 1908—then, although the question of its infringement would be settled, there would still remain open to the jury the question whether that infringement contributed to the injury. That question would then, however, be involved in our consideration of the weight of the evidence. We do not so consider it as the matter actually stands, for we hold that the ordinance was not applicable and therefore not violated. If it were left to the jury whether it was “daybreak” at the time and place in question, and if it inheres in their verdict that they found it to be so, their decision was a correct one and any other would have been unjustifiable. We think indeed that the only competent evidence on this point was the statement of Professor Cox of the Weather Bureau, from a scientific standpoint, that daybreak was an hour and forty-three minutes before sunrise on that day, and that sunrise was 7:16 a. m.

This testimony of Prof. Cox was indeed as to “twilight” the first question asked him being, “What was the length of the twilight before sun-up ? ’ ’ His answer indicating that length was followed by the question, “That is the break of day, you mean?” which he answered: “I mean that one hour and forty-three minutes before it was sunrise it would be absolute darkness, and then it gradually changes from that to dawn. It commenced to get daylight. ’ ’

But we know of no definition of “daybreak” materially differing from that of the Century Dictionary—■ “The dawn or first appearance of light in the morning,” or of Webster—“The time of the first appearance of light in the morning.” This definition makes “daybreak” synonymous with the beginning of the twilight described by Prof. Cox as occurring on January 15, 1908, at 5:33 a. m., about an hour before the accident. We cannot, in construing a penal ordinance, make “daybreak” mean something extending the operation of that ordinance beyond what the standard definitions of the word would effect.

After “daybreak” there was no obligation under the ordinance on the plaintiff to carry a light on his wagon. Failure to do so under some circumstances might indeed have been justification for a jury’s finding him contributorily negligent. There was left to the jury, however, in this case the question of the plaintiff’s negligence under all the circumstances, including light or darkness and the distance at which objects could be seen, the weather that morning, the condition of the street and the snow or absence of it therein, the condition of the tracks, the alleged passage of a westbound car, behind which the plaintiff says he was attempting to pull out of the way of the east-bound car which ran his wagon down, and the speed of both vehicles, as all these things appeared and were discussed by the varying if not conflicting witnesses.

It inhered in the verdict, given under full instructions that contributory negligence would forbid the plaintiff’s recovery, that the jury found from the evidence that he was not guilty of it, and we see no reason to disturb that finding, either because of the undisputed absence of lights on the wagon or because of the other grounds urged by the defendant.

This leaves for our consideration only the alleged errors of the trial Judge during the trial.

The first of these of which complaint is made is the reception in evidence of a record made by one George Steadman, an electrical engineer for the city of Chicago, located at the city’s electrical power house at 6345 Wentworth avenue in Chicago, which power house had been proven by a previous witness to furnish street electric lights on 47th street at the place of the accident. This record was a record made in writing each.day in this power house and thereafter placed in a book. It purported to show the time the electric lights controlled from said power house were shut off. It would seem from the evidence to have been in the nature of a report sent each day from the power house to the city electrician’s office at the city hall. Besides the testimony of the witness Steadman and of another named Foltz concerning the actual matters involved, which were whether or not the lights were lighted at the time of the accident, and if not, the reason therefor, the entry itself was read into the record and marked “Exhibit A.” The transcript of the record says: “Said original exhibit was part of a book and the part admitted in evidence is set forth in the preceding quoted excerpts read. The book itself by agreement of the parties did not go to the jury.” The parts read which were material were “Number of circuit 1”, the date, “1-15-08” and “Time of turning off 6:30,” which the witness explained meant that the lights were turned off on Circuit 1 on January 15, 1908, at 6:30 a. m.

The appellee contends that the admission of this memorandum in evidence was justifiable because it was a record made by a public officer in the discharge of his official duty, and that it was competent and material to show conditions at the point involved as well as tending to show that it was “not dark,” by which we suppose is meant that it was after “daybreak” and presumably light enough to see a wagon at some distance ahead on the tracks. The admissibility of the evidence on any ground is denied by the appellant, and the question is argued at length by both parties. We are inclined to agree with the appellant that the memorandum as offered was incompetent and its admission erroneous. But we are not of the opinion that the error was a very important one or that it can reasonably be supposed to have had any misleading effect on the jury. Nqí every admission of incompetent evidence is a ground for reversal. The testimony of Foltz had shown that the 47th street lights were fed from the power house in question and that a record showed the time the lights were turned out at that station on January 15, 1908. Steadman testified that he was located at that plant and that a record produced was in his handwriting and was made in the morning after shutting down. He was then asked, “What time was the power shut off and the lights turned out on the morning of January 15,1908?” This question was objected to by the defendant and the court asked: “Will you offer the records?” Counsel for plaintiff replying in the affirmative, the court of its own motion said, “Well, I think the records are competent.” The witness, before the excerpts noted were read, testified that he had made the memorandum “honestly” and “truthfully” setting down the facts on the morning specified. Counsel for appellant now argue that “Circuit 1” was not mentioned in the testimony of Foltz or Steadman, but only in the memorandum, and that there being no evidence that Circuit 1 supplied 47th street, the memorandum is entirely unconnected in the evidence with 47th street. No suggestion of this sort, however, was made when the introduction of the memorandum was objected to before the trial judge. It was treated by both sides apparently as referring to the locality involved.

After the excerpts were read counsel for plaintiff asked Steadman, “When did you turn off the lights that you made entries of, when it was dark or when it got to be daylight?” The question was objected to, but the witness answered, “After daylight.” The court then ruled: “That objection sustained,” but no motion was made to strike the answer out. On further examination, counsel for plaintiff asked the question, “They” (i. e. the lights) “were certainly all out at 6:30 that morning?” to which the witness, without objection to question or answer, replied in the affirmative.

We have described the circumstances surrounding the admission of this piece of evidence more fully than we should have otherwise done because of the emphasis placed by the parties themselves on the contention regarding it. We do not ourselves regard it as very serious or significant. That the street lights were out on 47th street was relevant and material if not very important evidence; but we have expressed our view that the question of whether it was “daybreak” under the meaning of the city ordinance was practically foreclosed, by accurate scientific testimony, and as to the conditions of murkiness, obscurity, and as to the possibilities and probabilities of the mo.torman seeing the plaintiff’s wagon and the plaintiff seeing the car at a given distance, the jury had the varying statements of the parties and other persons actually on the ground, and were unlikely to be influenced by this memorandum in determining the essential question for their consideration of the alleged negligence of the respective parties. We shall not reverse the case on account of the admission of this evidence.

The other alleged errors of which appellant complains are rulings on instructions. The trial judge refused the following instruction, identified in the trans-script and Abstract as 39 E. In refusing it he marked it “Already given”:

“The court instructs you that it is not enough to entitle the plaintiff to recover in this case to prove that the motorman in question was guilty of negligence which proximately helped or contributed to bring about the accident and injury in question, but the plaintiff must go further and prove by a preponderance of all the evidence in the case considered under the court’s instructions that he did not proximately help or contribute to bring about said accident and injury by any want of ordinary prudence, care, vigilance, caution and foresight on his part.”

We think that the thirty-four instructions given, taken together, covered both the obligation of proof of due care on the plaintiff’s part and the rule that such due care must appear affirmatively by a preponderance of the evidence. The tendered instruction quoted in itself may have been unobjectionable, and if it had been given, others given might have been superfluous; but we do not think that its refusal under the conditions stated was reversible error. The jury could have been left in no doubt by the instructions which were given as to their duty if they found that the plaintiff had not established by a preponderance of evidence his freedom from any contributory negligence or want of due care.

The appellant also complains of the following instruction given at the request of plaintiff:

“7. If, under the evidence and instructions of the court the jury find the defendant guilty, then in estimating the plaintiff’s damages, if any, it will be proper for the jury to consider the effect, if any, of the injury in the past and in the future upon the plaintiff, the use of his arm and his ability to attend to his affairs generally, in pursuing any ordinary calling, in so far, if at all, as the evidence shows that these have been affected in the past and will be affected in the future, and also the- bodily pain and suffering, if any, he sustained or will sustain as a direct result of said injury, and any and all damages in so far, if at all, as they are alleged in the declaration and shown by the proof to be the necessary and direct result of the injury complained of.”

We do not think this instruction erroneous or objectionable.

The appellant also complains of Instruction 1, given at the request of the plaintiff, which relates to the quantum of evidence required of the plaintiff to prove “his case,” and of Instruction 4, which is as follows:

“The Court instructs the jury that if you believe from the evidence that the plaintiff while in the exercise of ordinary care for his own safety, if you believe from the evidence that he was in the exercise of such care, was injured as a direct result and in consequence of the negligence of the defendant as charged in the declaration, if you believe from the evidence that the defendant was so negligent, then you should find the defendant guilty.”

We think that the objection made to these'instructions, that in referring to “the plaintiff’s case” and to “the negligence of the defendant charged in the declaration,” they fail to identify the issues to which they refer, is not, in view of the other instructions given, the nature of the issues and the rulings of the Supreme Court, tenable; nor that the one peculiar to Instruction 4, that it limits the care which the plaintiff was obliged to prove to the moment of the accident, and eliminates the hypothesis of “his going upon the street without taking precautions to guard against the dangers incident thereto,” is more so.

Finding no reversible error in the proceedings below, the judgment of the Superior Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Brown

license: Public Domain

text:
    Nick Breiling, Plaintiff in Error, v. Alois Hybl, Defendant in Error.
    Gen. No. 16,077.

      Contracts—when deemed executed. A contract executed by the parties to be bound, and delivered, without any condition annexed, is binding, notwithstanding a third party is named in such contract who has not signed the same.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in this court at the March term, 1910.
    Reversed and judgment here.
    Opinion filed February 5, 1912.
    T. Webster Brown, for plaintiff in error; Edward H. Morris, of counsel.
    No appearance for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

The defendant in error, Alois Hybl, on July 3, 1909, executed a contract for the exchange of certain real estate with Nick Breiling, the plaintiff in error herein.

The contract, so far as it is material to this controversy, is as follows:

“This agreement made and entered into this 3rd day of July in the year of our Lord one thousand nine hundred and nine at Chicago, Illinois, by and between Alois Hybl and Maria Hybl, Ms wife, * * * party of the first part, and Nick Breiling and Maria Breiling, * * * party of the second part,
“Witnesseth: That the party of the first part for and in consideration of the covenants and agreements hereinafter specified * * * the said party of the first part doth hereby agree to convey or canse to be conveyed to Nick Breiling and Maria Breiling, the said party of the second parties heirs or assigns by warranty deed from Alois Hybl and Maria Hybl, his wife, the following described property. * * * The south east quarter of Section Twenty-seven, Township Seventeen North, Range Three East * * * with improvements. * *
“And the said part of the second part * * * doth agree to convey or cause to be conveyed to Alois Hybl and Maria Hybl * * * by warranty deed from Nick Breiling and Maria Breiling” (certain property in Chicago). * * *
“It is hereby further mutually agreed and understood by and between the parties hereto and as part of the consideration of this agreement, that each party hereto is to provide for the use of the other within ten days from the date hereof proper abstracts of title to the property hereby agreed by them to be conveyed, or caused to be conveyed, showing good and sufficient title to the same in the grantors herein mentioned.
* * * Provided, however, that the party hereto failing or refusing to carry out this contract shall pay unto the other party thereto the sum of two hundred dollars as liquidated damages for said other party’s expenses and costs in and about the carrying on of the negotiations herein for the exchange of said property herein described.
* * * ######
In witness whereof the said parties hereto have hereunto set their hands and seals the day and year first above mentioned.
Alois Hybl (seal)
Nick Breiling (seal)
Witnessed by
Fred P. Dengler,
Fred Wm. Dulfer.”

(The italics are ours.)

Alois Hybl and Maria Hybl, his wife, owned each an undivided one-half of the property that Alois Hybl by this contract agreed should be conveyed. Maria Hybl took no part in the negotiations preceding the contract and was not present when it was signed, and afterwards refused to join in it or to execute any conveyance. Breiling was ready, able and willing to carry out the contract on his part, but Hybl on account of his wife’s position was unable to do so. Breiling then brought suit against Alois Hybl in the Municipal Court for damages for the breach. The suit was tried without a jury, and the court gave a judgment of nil capiat and for costs against Hybl and in favor of Breiling, holding as the law applicable to the issues the following:

“Maria Hybl, who was the other person named in the body of the instrument as the other party to the party of the first part, failed to sign said contract, and for that reason same was incomplete and could not be enforced.”

Breiling appealed to this court. Defendant has entered no appearance herein.

The finding and judgment of the court below were erroneous.

The contract was none the less a completely executed contract between plaintiff and defendant, because a third party was named in the body of it, who did not sign it.

So far as appears in the record it was both executed and delivered (at least by being left with the agent or broker for both sides) without any condition annexed or mentioned that it was not to be operative without Maria Hybl’s signature. As stated, the mere insertion of her name as one of the contracting parties did not alter the obligation of Hybl. Dillon v. Anderson, 43 N. Y. 231; Mattoon v. Barnes, 112 Mass. 463; Thomas v. Caldwell, 50 Ill. 138.

The contract having been made by Hybl, there is no doubt that he was bound by it and liable for a breach of it. His having the title to real estate was not essential to a valid contract on his part to convey it. Gale v. Dean, 20 Ill. 320; Plummer v. Rigdon, 78 Ill. 222; White v. Bates, 234 Ill. 276. It merely prevented him executing it unless he could procure that title or cause it to he conveyed. This has never been questioned in such cases. The contest is generally over the proper measure of damages. In this case the parties fixed that measure themselves.

In the absence of anything to show them extortionate or inequitable, the stipulation for liquidated damages should be enforced.

The judgment of the Municipal Court is reversed and judgment will be entered here for the plaintiff, Nick Breiling, against the defendant, Alois Hybl, for $200 and the costs in both courts.

Reversed and judgment here.


author: Mr. Justice Smith

text:
    Raymond Costello, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,937.

      Verdicts—when excessive cured hy remittitur. If a verdict is not so excessive as to indicate that it was the result of passion or prejudice, it may be cured by the entry of a remittitur.

    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Horr. Geobqe A. Dupuy, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed on remittitur.

    Opinion filed February 5, 1912.

      Remittitur filed February 8, 1912.
    Franklin B. Hussey and Watson J. Ferry, for appellant.
    George E. Gorman and McGoorty & Pollock, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The appellee, a boy between three and four years old, was injured while playing with four or five other children on 39th street near Michigan avenue, Chicago.

The appellant insists, in an able and earnest argument, that the verdict is not justified by the evidence and is against the overwhelming weight of the evidence. The testimony of the witnesses for the appellee tended to show a negligent operation of appellant’s street car, whereby it struck the appellee and injured him. The testimony of the witnesses for appellant tended to show that the appellant’s servants were not guilty of negligence and that appellee was run over by an express wagon passing along the street at that time. As usual, much can be and, as the briefs prove, has been said in the arguments on both sides pertaining to the details of the testimony and the credibility of the witnesses. These are questions of fact for the jury and an analysis and discussion of the same would extend this opinion to an unwarranted length. The verdict of a jury should not be set aside without deliberate, careful and serious consideration, and then only when it appears to the court to be clearly and manifestly against the weight of the evidence. On the question of the liability of appellant we shall not disturb the verdict; but on the question of the damages, mindful of the above mentioned well settled principles and in accord therewith, we conclude that the damages are excessive. The appellee, through counsel, contended that the car knocked him down and that in rolling over his left foot was run over by the rear wheels of the car, crushing the middle and the two small toes. There was spme conflict of testimony as to the extent of the injuries to the toes, but to whatever extent they were crushed, the Doctor at the hospital considered it necessary to amputate all three of the toes and so did. There were no other injuries, and for the said injuries to and loss of the middle and two small toes of the left foot the jury assessed the damages of the child at $3,000 and judgment was entered therefor.

While the practice of enforcing a remittitur in this court is not usual and is seldom considered warranted, yet it is sometimes proper and, when so considered, sustained. North Chicago St. R. R. Co. v. Wrixon, 150 Ill. 532; West Chicago St. R. R. Co. v. Musa, 180 Ill. 130; Chicago City Ry. Co. v. Gemmill, 209 Ill. 638; City of Elgin v. Nofs, 212 Ill. 20, Affirming 113 Ill. App. 618 (except as to costs); Sandy v. Lake St. El. R. R. Co., 235 Ill. 194.

The parties had a fair trial. The court did not err in its ruling on the evidence complained of, and the instruction given on behalf of the appellee, of which ¡complaint is made, has been so often approved that comment thereon is unnecessary.

We do not think the verdict so excessive that, under the circumstances, it should be considered the result of passion or prejudice, or one that cannot be cured by a remittitur. We have therefore concluded that it is in this case our duty to give, and that justice will be best subserved by giving, the appellee an opportunity to file a remittitur, if it be so desired. If the appellee shall, within ten days from the filing of this opinion, enter in this court a remittitur in the sum of $1000, the cause shall thereupon stand affirmed on a judgment for the sum of $2000 and the costs of this appeal, under the authority of City of Elgin v. Nofs, supra, shall be taxed against the appellee. If the said remittitur be not entered herein within the said ten days, the said judgment will thereupon be reversed and the cause remanded for a new trial.

Affirmed upon remittitur.

Remittitur filed and judgment affirmed February 8, 1912.


text:
    John Mackin, Appellee, v. The Metropolitan West Side Elevated Railway Company, Appellant.
    Gen. No. 15,974.
    Master and servant—when doctrine of assumed rislc applies. If the appliances employed by the servant are of simple and ordinary construction and the dangers incident to the employment are such as must have been known and appreciated by all reasonable men, the doctrine of assumed risk will apply.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in this court at the October term, 1909.
    Reversed.
    Opinion filed February 5, 1912.
    Addison L. Gardner and William E. Moss, for appellant ; W. W. Gurley, of counsel.
    Quin O ’Brien and Lawrence W. Potter, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

In a suit for personal injuries the appellee, hereinafter called plaintiff, secured judgment for three thousand dollars against the appellant, hereinafter called defendant.

The declaration in different counts alleged negligence of the defendant in that it did not furnish plaintiff with a reasonably safe place to wurk or reasonably safe appliances, did not furnish competent fellow laborers in sufficient number to safely do the work required, and gave a negligent order to plaintiff to work in such unsafe place, with such unsafe appliances, and without sufficient help to do the required work.

The plaintiff was employed by the defendant on the work at which he was injured as a common laborer. At the time he was injured he was- with others loading a spool, or reel, of copper wire cable into a wagon. These spools, or reels, were like a common thread spool; the ends were four to five feet in diameter and the core between the ends about two feet long. The cable was wound around the core between the ends of the spool almost to the outer rim of the ends. These reels weighed from three thousand to four thousand pounds each and were kept in defendant’s yard, from which they were taken by wagon to string the cable underneath the defendant’s elevated structure. The wagon so used was an ordinary wagon with the end gate out. The reels were loaded into the wagon by a crew of men rolling them up two skids extending on an incline from the ground up into the rear end of the wagon. The skids were about fifteen feet long and each made of two planks, two by eight inches, laid together, so that each skid was four inches thick and' eight inches wide. The skids, from one and a half to two feet apart, rested firmly upon cribbing built on the ground and made of wood four by four inches and about five feet long. On the day of the accident the plaintiff was one of the crew of eight or nine men rolling a reel of wire weighing about thirty-eight hundred pounds up the skids into the wagon. The reel was within an inch or two of the wagon when it began to roll back down the skids. The plaintiff was on the skids pushing on the reel when it got beyond control and started down, striking him, knocking his body between the skids and catching his head between the wire wound around the core of the reel and the cribbing, severely crushing his head, causing him to be confined in a hospital for four weeks, suffering much pain, spitting blood for four or five days, and having hemorrhages from the ears for about two weeks, resulting in claimed permanent injury to Ms neck and deafness in the left ear.

The testimony showed that one of the men kept a cribbing timber pushed under and in the rear of the reel wMle rolling it up the skids, thereby blocking it and preventing it from rolling down, and that the cribbing block was not put in right or in some way it slipped and thereby they lost control, and being unable to hold it, the reel rolled back down the skids, causing the injury to plaintiff. There was testimony that in addition to the block used to hold the reel, ropes had also been used by passing them around the cable and around the front axle of the wagon, and as the reel was rolled up the incline a man would, by taking up the slack of the rope on the hitch around the axle, help hold the reel. The order of the foreman to the plaintiff and others in loading the reel was “to get places anywhere you could.” There was practically no conflict in the testimony as to the foregoing facts. The testimony on the part of the plaintiff was that two reels before the one in question were loaded without the use of the ropes; that on the part of the defendant was that six to ten reels were so loaded without ropes, covering a period of several days. The superintendent and foreman, neither being in the employ of defendant at the time of the trial, testified on behalf of defend- and they had each told the plaintiff on different occasions he should not get behind the reel in loading, which the plaintiff denied.

■ There was no evidence of any defect in the appliances. They were of simple and ordinary construction. The ordinary dangers incident to the work and the place, in the manner of loading the reels as shown by the evidence, were open and obvious to any reasonably prudent man. The reel was not properly blocked, thereby causing it to roll back down the incline, a danger incident to the employment in the manner of loading the reels that must have been known iand appreciated by all reasonably prudent men. Gunning System v. LaPointe, 212 Ill. 274, and cases there cited; Montgomery Coal Co. v. Barringer, 218 Ill. 327-332.

Whatever may have been the manner of loading the reels at a time prior to the accident, the same was not material under the averments of the declaration and the evidence, which is undisputed, that the plaintiff continued at the work without objection. C. & E. I. R. R. Co. v. Heerey, 203 Ill. 492; Cichowicz v. International Packing Co., 206 Ill. 346. Nor is there any other evidence of a situation that takes the case from under the general rule of assumption of risk, unless it be held, as contended by plaintiff, that the plaintiff was injured in doing the work under an order of the defendant, thereby not assuming the risk.

■ The testimony on the part of the plaintiff pertaining to the order in loading the reel was, “to get places anywhere you can.” In pursuance to that order the plaintiff claims he pushed on the reel until it was part way up the incline, when he voluntarily got upon the skids and continued pushing on the reel. Although the superintendent and the foreman both testified they had instructed him to keep from behind the reels, which instructions he denied, neither he nor any other witness testified to any order to take any particular position at the time of his injury or at any other time. The plaintiff testified that neither the superintendent nor the foreman told him where he should stand. The order “to get places anywhere you could” seems to have been a general order to all the men, given previously, while at work loading the reels. The order being general in the performance of the work (Linderman Box Co. v. Thompson, 127 Ill. App. 134), and there being no evidence of any defective appliances or that the place was unsafe, except as to the danger incident to the manner of doing the work apparent to all reasonably prudent men, or any evidence that a sufficient number of competent laborers were not employed to safely do the work required, as charged in the declaration, plaintiff assumed the risk and there can be no recovery.

Other errors are assigned, but we do not consider it necessary in the view we take of the case to discuss them. The case is an unfortunate one and it would seem that in the zeal of the servant in the performance of his work he has suffered from an accident for which the law gives no redress.

The judgment is reversed with a finding of fact.

Reversed.


text:
    Ford Jones, Administrator, Appellant, v. City of Chicago, Appellee.
    Gen. No. 15,979.

      Pleadings—what not part of. While it is the common practice in equity to make exhibits a part of the pleadings it is not proper to make exhibits a part of common law pleadings.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the October term, 1909.
    Reversed and remanded with directions.
    Opinion filed February 5, 1912.
    Walter S. Holdek and Gf. Fred Bush, for appellant.
    Edward J. Brundage, for appellee; George M. Bag-by, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff, the appellant here, on March 30, 1903, began a suit in assumpsit in the Circuit Court of Cook county against the defendant, the appellee here. The declaration consisted of the common counts and a special count, wherein it was averred that Hiram J. Jones performed certain services at the special instance and request of the defendant, “and being so indebted the defendant in consideration thereof, to-wit, on the twelfth day of April, A. D. 1893, then and there accepted and approved in writing statements rendered therefor by said Hiram J. Jones, which said accepted and approved statements are attached hereto and made a part of this declaration, and said defendant then and there promised,” etc. The declaration was subsequently by leave of court amended by making profert of the letters of administration. A general demurrer to the amended declaration was overruled. The defendant "thereupon filed six pleas, one of which was a plea of the five year statute" of limitations, and another of the ten year statute of limitations. The plaintiff demurred to said pleas of the statute of limitations and the court overruling same the plaintiff elected to abide by his demurrers. The court thereupon entered judgment for the defendant and plaintiff appealed.

The declaration averred that the cause of action accrued April 12, 1893. The suit was begun March 30, 1903, within ten years. The declaration further averred that for services rendered for the defendant at its special instance and request the defendant, on said April 12, 1893, “accepted and approved in writing statements rendered therefor.” The declaration averring an approval and acceptance in writing by the defendant of statements rendered by the plaintiff for services, it appears that both pleas of the statute of limitations were subject to demurrer.

It seems that the argument before the trial court was whether or not the exhibits attached to the declaration were evidence of a debt in writing. The error was evidently the result of considering the copies of the exhibits attached to the declaration as a part thereof. While it is a common practice in equity to make exhibits a part of the pleadings, it is not permissible under common law pleading prevailing in this state. Harlow v. Boswell, 15 Ill. 57; Stratton v. Henderson, 26 Ill. 68; Humphrey v. Phillips, 57 Ill. 132; Hippach v. First Nat’l Bank, 169 Ill. 515; Bayles v. Chytraus, 175 Ill. 370; Gossett v. Union Mutual Accident Assoc., 27 Ill. App. 266; Byrne v. Clark, 31 Ill. App. 651; Thompson v. Kimball, 55 Ill. App. 249; People v. Pace, 57 Ill. App. 674.

The remark of the court in Gunton v. Hughes, 181 Ill. 135, pertaining to a ruling on a demurrer there under discussion—“To overrule it here would unsettle rules of pleading long established, and introduce confusion and uncertainty whére none now exist. The distinctions between common law and equity pleadings are well defined and well understood by the legal profession and cannot be ignored”—is peculiarly applicable to the question here considered.

Counsel for both parties agree that the only question presented by this appeal is the sufficiency of the said pleas of the statute of limitations, and from the record as presented we are precluded from passing on any other question.

The judgment is reversed and the cause remanded with instructions that the court sustain the demurrer to the said pleas of the statute of limitations.

Reversed and remanded with directions.


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    William Reichert, Jr., Administrator, Appellant, v. Chicago City Railway Company, Appellee.
    Gen. No. 15,992.

      Negligence—what essential to recovery. An accident, no matter how unfortunate, cannot be made the basis of a recovery unless shown to have resulted in whole or in part from the negligence of the defendant averred and proved.
    Action in ease for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Willabd M. McEwen, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 5, 1912.
    Albert H. Meads, for appellant; Leslie J. Ayer, of counsel.
    William Rothmann and Watson J. Ferry, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This was an action brought to recover damages for the death of Hubert Reichert, a boy between thirteen and fourteen years of age. At the close of the plaintiff’s evidence the court upon motion of the defendant instructed the jury to find the defendant not guilty.

The declaration consisted of one count. The negligence therein charged was the careless and negligent driving and managing of defendant’s car. At about five thirty in the afternoon of November 28, 1907, the decedent with two other boys, Edward Burkhart and Paul Krohn, the only witnesses called to testify to the accident, were on the west side of Halsted street 25 to 50 feet north of Fifty-second street. The decedent and Edward started to cross the street to go to a five cent theatre. Edward testified in substance pertaining to the accident, that he started across the street first and Hubert was following him, but how far behind him he did not know; that he walked to the middle of the street and then ran across in front of a supply car coming north on the east street car track; that he did not look around after he started across the street until he got on the sidewalk on the east side of the street; that he then looked around and saw a south-bound car had stopped and he went over to the car. As to Hubert he said: “When I got over there I didn’t know where he was until I found that he had been struck by the car.”

Paul Krohn testified in substance pertaining to the accident, that he was standing on the curb when the boys started across the street; that Edward first started across the street and was on the west track, the south-bound track, when Hubert started to cross; Edward ran across about ten feet ahead of the supply car going north on the east track; Hubert stopped on the west track waiting for the supply car to pass; that he, Paul, looked north and saw the south-bound car at 51st place; that he thereupon “hollered” at Hubert; Hubert started to run south out of the track and the car struck him in the back; in the language of the witness, “He didn’t have no chance at all”; the decedent was struck by the south-bound car before the northbound car had passed him; the cars were going about the same rate of speed, which he thought was eleven or twelve miles an hour; the south-bound car stopped about twenty feet, or half a car length, after striking Hubert; it was not very dark; he could see Edward crossing the street and Hubert out on the street.

The decedent and the said two witnesses lived in the neighborhood and were familiar with the street and operation of the cars thereon. Hubert, being behind Edward, evidently thought he should not attempt to pass in front of the north-bound car and waited for it to pass. Had he attempted to cross in front of it and been thereby injured, he would, under the circumstances, have been guilty of contributory negligence. In avoiding that car he stopped, waiting for it to pass. Was he, at that age, under all the circumstances, guilty of contributory negligence? Whatever answer may be made to that question we are of the opinion that there is no proof of defendant’s negligence as charged.

The testimony of Paul that the cars were going at about the same rate of speed; that Hubert was. struck by the south-bound car before the north-bound car had passed him; that Edward was ahead of him and crossed about ten feet in front of the north-bound car, is uncontradicted. If this testimony be true, and it must be so considered, it follows that Hubert stopped in front of the south-bound car when it was within a very short distance from him. If the cars were going at the same rate of speed and Edward crossed ten feet ahead of the north-bound car, and the south-bound car struck Hubert, who was behind Edward, before the north-bound car passed him, then, the car being about forty feet long, Hubert must have stepped on the south-bound track when the south-bound car was less than fifty feet from him. Edward looked around when he was on the east sidewalk and saw that the south-bound car had then stopped. This proof, with-the other evidence, is conclusive that the accident happened within a very short period of time, and that the decedent must have gone in front of the south-bound car within a very short distance thereof. There is no proof whatever of what the motorman was doing, how far he could have seen the decedent, any circumstances that should have, warned him that decedent was going to step upon the track between street crossings, and there stop, or that he could, by the use of all possible means at his command, have stopped the car more quickly than he did. It was, of course, a most unfortunate accident, but we are of the opinion there was no evidence tending to prove the negligence charged against the defendant. The court therefore did not err in instructing the jury to find for the defendant. The judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Baldwin

text:
    The People of the State of Illinois, Defendant in Error, v. Joseph Ronnenberg, Plaintiff in Error.
    Gen. No. 15,875.
    Municipal court—when without jurisdiction of criminal offense. If an offense is an infamous crime and can only be prosecuted upon indictment by a grand jury, the Municipal Court is without jurisdiction.
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed.
    Opinion filed February 20, 1912.
    Louis Greenberg, for plaintiff in error.
    John E. Wayman, for defendant in error; William B. Fetzer, of counsel.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Plaintiff in error seeks to reverse a judgment upon an information filed in the Municipal Court of Chicago, charging him with stealing property to the value of iM 5, to which he entered a plea of guilty, and upon which he was sentenced to one vear in the House of Correction and to pay a fine of $100.-

The writ of error seeks to reverse the judgment upon three grounds: First.—that the information does not charge an offense; second,—that the Municipal Court of Chicago had no jurisdiction to try the defendant for larceny; third,—that the failure to allege in the information the Christian name of the alleged owner of the property stolen renders the information void.

In the case of People v. Zaidee Hunt, 162 Ill. App. 628, we had occasion to pass upon a question which is conclusive of this case. In conformity with our holding in that case, we now hold in this, under the authority of People v. Russell, 245 Ill. 268, that the offense of larceny here charged against plaintiff in error, and of which he stands convicted of record upon his plea of guilty, is an infamous crime, and can only be prosecuted upon indictment by a grand jury. This being true, the Municipal Court was without jurisdiction, and the proceedings therein, including the plea- of guilty by the plaintiff in error, were without legal effeet. The judgment, therefore, must be reversed.

The decisions in the Bussell case and in the Hunt case, supra, were rendered after the briefs were filed in this case.

Judgment reversed.


text:
    New York Life Insurance Company, v. Margaret E. Andrews, individually and as administratrix, Appellant, v. Dorothy Golden et al., Appellees.
    Gen. No. 15,991.

      Insurance—lohat fraud essential to be shown in order to establish that change of beneficiary was effected thereby. Such fraud or undue influence must be shown as to' have practically deprived the deceased of her free agency, and be particularly directed toward securing the desired and accomplished result. Such proof should be reasonably clear and convincing. It is not enough that it justify a suspicion, conjecture or possibility.

      Bill of interpleader. Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding.
    Heard in the Branch Appellate court at the October term, 1909.
    Affirmed.
    Opinion filed February 6, 1912.
    J. H. Westover and Eric Winters, for appellant.
    Frank W. Swett, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This is an appeal from a decree rendered by the Superior Court of Cook county upon a bill of inter-pleader filed by the New York Life Insurance Company, complainant, against Margaret E. Andrews individually and as administratrix of the estate of Ella H. Blumberg, deceased, appellant, and Dorothy Golden, a minor, and Mary M. Bartelme, her guardian, appellee, both appellant and appellee claiming to be entitled to the proceeds of a life insurance policy for $5000.

• Upon getting the parties into court, the Company was allowed to pay into the hands of the clerk of the court the sum of $4866.30, the proceeds of the policy of insurance issued by it upon the life of Ella H. Blumberg, deceased, and the court proceeded to hear the controversy as to whether this sum rightfully belonged to appellant or to appellee.

The real controversy, therefore, is between Margaret E. Andrews, as heir and administratrix of the estate of Ella H. Blumberg, deceased, and Dorothy Golden, who was named as beneficiary in the policy.

It appears that the policy of insurance in question was issued by the Company to Ella H. Blumberg on January 14, 1908, to take effect as of December 15, 1907; that, as originally prepared, it was payable to “the executors, administrators and assigns of the insured, or to the duly designated beneficiary, with right of revocation; ” that, on February 2, 1908, the deceased requested the Company to change the beneficiary mentioned in the policy, and to make it payable to the defendant, Dorothy Golden, a minor daughter of William Golden; that Ella H. Blumberg died on 'July 15, 1908, with the policy in full force.

On behalf of Margaret E. Andrews, as- heir and administratrix of the estate of Ella H. Blumberg, deceased, it was contended that William Golden, father of Dorothy Golden, had, some time prior to the commencement of the suit, and when the deceased was about seventeen years of age, seduced and debauched her, and continued to have unlawful sexual relations with her thereafter, with more or less frequency until her death; that, being about fifteen years older than she, said Golden exercised a malign influence over her, and that she became more and more under his control, until she was incapable of acting contrary to his will, and was in this mental condition at the time the alleged change of beneficiary was made in the policy of insurance. It is expressly charged that William Golden entered into a scheme to profit by his improper relations with the deceased, and to cheat and defraud Margaret E. Andrews and other heirs of the deceased out of the proceeds of the policy, and that the Insurance Company was deceived and fraudulently induced to make Dorothy Golden the beneficiary of said policy through his influence.

Upon the issues being made up, the cause was heard before one of the chancellors of the Superior Court, and Mrs. Theresa Lewis, Mrs. IT. S. Williams, Thomas W. Golden, Mrs. Elsie Gilchrist Christie, Mrs. Elenora Heidelman, Mrs. Margaret E. Andrews, Henry Davidson, Mrs. Matilda Northhausen, Mrs. F. Youngblood, Mrs. William E. Golden, Curtis Shipley and Lena Landmar, twelve witnesses, severally testified on behalf of Mrs. Margaret E. Andrews; and Albert McArthur, O. W. Green and William S. Vallette (all employed by the Insurance Company) severally testified on behalf of Dorothy Golden, the minor, and Mary M. Bartelme, guardian. The court entered a decree in favor of Dorothy Golden, and in its decree found, among other things, that on or about the 14th day of January, 1908, the Insurance Company issued its policy upon the life of Ella H. Blumberg for $5000.00, payable to ‘ ‘ the executors, administrators and assigns of the insured, or to the duly designated beneficiary, with right of revocation;” and that thereafter, while the policy was in full force and effect on the 2nd day of February, 1908, the insured made regular request to change the beneficiary to Dorothy Golden; that such change of beneficiary was duly and regularly made as provided by the contract of insurance, and that the deceased signed the application therefor, and caused the change to be made, acting as a free agent, and while of sound mind and memory, and without any undue influence having been exercised upon her for the procurement of the same by William E. Golden, or by any person or persons whomsoever.

Appellant brings the case here, and assigns as errors that the court below admitted improper evidence on the part of appellees, and rejected proper evidence offered on the part of appellant, and that the court below erred in rendering a decree in favor of appellees and against appellant.

After a careful consideration of the matter, we do not think appellant has been denied any substantial right by the rulings of the court below with respect to the admission of testimony. Nor do we think the evidence in the case warranted any different conclusion than' that reached by the learned chancellor. The controversy in this case is essentially one where appellant claims that the alleged change in beneficiary in the policy was induced by the fraud or undue influence of Golden. To sustain that contention, the fraud or undue influence must be shown to be such as to practically deprive deceased of her free agency, and be partieularly directed toward securing the desired and accomplished result. Larabee v. Larabee, 240 Ill. 576; Riordan v. Murray, 249 id. 517.

Moreover, such proof should be reasonably clear and convincing. It is not enough that it justify a suspicion, conjecture or possibility. Beyer v. LeFevre, 186 U. S. 114; Cudney v. Cudney, 68 N. Y. 148.

“Unlawful cohabitation of the legatee and testator is not of itself sufficient evidence from which a jury could infer undue influence. It is true, if there are other facts, unlawful cohabitation may be a circumstance of weight. "It is well established that undue influence, however used, must, in order to avoid a will, destroy the free agency of the testator at the time and in the very act of making the testament.” Trost v. Dingler, 118 Pa. 259.

'From the record in this case, we think it clear that in procuring insurance upon her life,—and in not accepting the policy when it was tendered to her, on the 2nd of February, 1908, until it should be made payable to Dorothy Golden, deceased was carrying out her own purposes, and was not in any manner or to any extent coerced or influenced thereto by William Golden. Indeed, it does not appear that he knew anything about it, and it clearly appeared that he was not present when the insurance was solicited by Mr. Davidson, nor when she saw Dr. Greene, or Mr. McArthur, when she was examined, nor when she called at the office of the Insurance Company (by which all these three men were employed), to get the policy on the 2nd of February, 1908, at which time she specifically gave directions to make it payable to Dorothy Golden. The conduct of William Golden, himself a man of family, in sustaining illicit relations with the deceased, was most reprehensible, but we cannot find from this record that he exercised any such influence or control over her as to invalidate her action in designating Dorothy Golden as beneficiary of the life insurance.

The action of the court below was without substantial error, and its decree will he affirmed.

Decree affirmed.


text:
    Clara R. Appell, Appellee, v. Ravenswood Hospital, Appellant.
    Gen. No. 15,994.
    1. Verdicts—what essential that excessiveness shall vitiate. If it becomes clear that a verdict is so excessive as to be repellant to the sense of justice, or is otherwise tainted with passion or prejudice, the Appellate Court will interfere.
    2. Verdicts—when not excessive. Held, in an action on the case for personal injuries, that a verdict reduced by remittitur to $7500 was not excessive where the plaintiff’s foot was severely burned and in consequence she suffered great pain, became permanently injured and was impaired in her earning capacity.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 6, 1912.
    Rehearing denied and opinion modified February 20, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Colin C. H. Fyffe and J. Francis Damman, Jr., for appellant.
    Peckham, Brown, Packard & Walsh and Norman A. Street, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Appellant is an Illinois corporation, organized under the general law relating to corporations for profit, and was operating a general hospital in the city of Chicago, of which Dr. Green, a surgeon, was, at the time of the injury complained of, the manager.

In February, 1908, appellee went to this hospital for some minor operation. After the operation had been performed, and while she was still unconscious from the ether, the attendants placed her in a bed. In conformity with the usual practice in such cases, the bed had just been heated, by placing in it three hot water bottles. When appellee was about to be put into this bed thus warmed to receive her, the attendants removed two of these bottles, but carelessly left the third. When she recovered consciousness, about three hours later, it was found that her foot was burned, and that the remaining hot water bottle was still warm. As a result of the burn, a somewhat protracted stay in the hospital and operations on her foot were necessary, and, it is claimed, that her injuries are permanent. The jury gave her a verdict of $10,000, upon which the trial court required a remittitur of $2,500, and entered judgment for $7,500.

Upon this appeal the Hospital assigns and argues in its brief various alleged errors. Upon the oral argument, however, in which we were aided by the able and forceful presentation of the merits of the case, counsel for appellant, strenuously and persuasively argued that the verdict and judgment were excessive, the former so much so as to compel the conclusion that the jury was influenced by passion, or other improper motive. We have carefully gone over the entire record in the case and the printed arguments, and we do not think the contentions of appellant can be sustained.

The liability of appellant, as also the helplessness of appellee and the gross carelessness of the Hospital attendants in the matter of causing the injury complained of, we think the record clearly establishes, and we therefore come next to a consideration of the character and extent of the injuries.

And first, it should he stated that the proper amount of damages in cases of this character is a question of fact peculiarly for a jury, whose action in respect thereto has, and should have, much weight with an appellate court. If, however, it becomes clear that the verdict is so excessive as to be repellant to the sense of justice, or is otherwise tainted with passion or prejudice, this court should interfere to prevent the injustice.

Prior to the injury, plaintiff was an active woman of twenty-eight, and in good health. She testified to having suffered terribly from the burn during the three weeks she was first in the hospital; that thereafter she went home where she had a trained nurse for a week, and then a general nurse for about four months, during which time she could not use her foot at all; that she was compelled to have a double cushion put in her shoe because she could not step on her heel after it apparently had healed; that her physician called every day for about two months, and then every other day for several months, after which she went to his office for treatment two or three times a week until late in 1908, when she began to again have severe pains in her heel which continued until April, 1909, when she submitted to another operation upon her heel on account of which she remained in the hospital about two weeks, after which she claimed to be permanently disabled. She had also the testimony of her two medical attendants, Dr. Weiner and Dr. Gilmore. Each of them corroborated her testimony and gave a detailed and technical description of the character and extent of the burn, and of the subsequent treatment and operation which it made necessary. Both regarded the injury a permanent one. And we regard it as significant that Dr. Green, the superintendent of the Hospital (appellant), who was present at the trial, made no attempt to prove, either by his own testimony or that of other experts, that the injuries received by appellee were less severe than were claimed, or that they were not permanent in character.

Upon this record we must consider it as established that the appellee’s injuries were severe, exceedingly painful, and that they were permanent. This being settled in her favor, we do not think that the verdict was so large as to indicate passion or prejudice on the part of the jury, nor do we think the judgment was excessive in amount.

The judgment will be affirmed.

Judgment affirmed.


text:
    Henry W. Leman, Appellee, v. Percival Steele, Appellant.
    Gen. No. 16,063.
    1. Bankruptcy—who should not represent receiver as counsel. An attorney for creditors petitioning that a corporation be declared bankrupt should not act as attorney for a receiver appointed upon the filing of such petition.
    2. Receiverships—when services of attorney not rendered to individuals. Held, under the evidence, that the legal services sought in this ease to be made the basis of a set-off, were rendered to the receiver as such and not to the receiver in his individual capacity.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. George W. Patton, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed February 6, 1912.

      Ceitiorari denied by Supreme Court (making opinion final).
    Charles Lane, for appellant.
    Frank H. Culver, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

In January, 1901, appellant, Percival Steele, as attorney for certain creditors, filed a petition in the United States District Court in Chicago to have the Union Feather and Wool Mfg. Co. declared a bankrupt, and upon his motion, appellee, Henry W. Leman, was appointed receiver for the Company. The Federal Court, however, required the petitioning creditors to file a bond to protect the Company. To secure such a bond, appellant, by undertaking to hold him harmless, induced appellee to indemnify a bond company which gave the required bond. After a hearing, the Federal Court dismissed the petition to have the corporation adjudged a bankrupt, which action was affirmed by the United States Circuit Court of Appeals, to which the petitioning creditors had appealed. Subsequently, the bond company was compelled to pay, and it in turn compelled appellee (Le-man) , to protect it upon the indemnifying bond which he had given it, whereupon, after demand, appellee, Leman, brought this suit to recover from appellant upon his undertaking to protect Leman.

Appellant filed various pleas, but relied for his defense essentially upon a plea of set-off. Upon a trial, the court refused to admit the proof offered by appellant under his plea of set-off, and instructed the jury to return a verdict in favor of Leman for $2,398, upon which judgment was entered, and Steele appealed to this court.

The controlling question in this case is whether or not the services set out in the copy of account or bill of particulars attached to the plea of set-off filed by Steele, and in support of which he offered testimony, are properly chargeable against Leman individually, for, if not, the judgment in his favor was proper.

After a careful consideration of the record in the case, and of the briefs and arguments of counsel, we think the court below properly held that the alleged set-off could not be allowed. It appears that some of the services charged for were rendered before the receiver was appointed. Throughout the bankruptcy litigation, Steele represented the petitioning creditors, and, on their behalf, procured the appointment of Leman as receiver, and made all the necessary and somewhat unusual arrangements for the bond which the court required them to give, and out of the giving of which this suit arose, and this part suggests, at least, that the services here sought to be recovered for were rendered for and were properly chargeable to the petitioning creditors. And this suggestion is strengthened by an inspection of the items charged for, many of which were not and could not have been for the benefit of Leman, as receiver. For example, Steele makes a charge under date of January 28, 1901, for preparing and having entered an order for the ap-> pointment of a receiver. As the receiver had not been appointed, this service was clearly not chargeable to him but to the petitioning creditors.

“Jan. 31, attendance before Justice of the Peace Hamburger in reference to two suits against the Union Feather & Wool Mfg. Co. and presenting to Justice the matter of the petition filed in U. S. District Court, etc., and having execution stayed in both cases.” “Feb. 1st, dictating petition and order to restrain attachment suit of A. Groldberg before Justice Hamburger.” “Feb. 5th, attendance before Judge Kohlsaat having restraining order entered in Groldberg case, obtaining certified copy thereof, having same served, etc. Attendance before Justice Hamburger, etc. Serving restraining order upon various parties having attachment suits, etc.” . Feb. 6th, attendance before Judge Kohlsaat upon motion of alleged bankrupt for rule to file bond, having amount fixed at $2,000, and time to file same fixed at five days. * * * “Oct. 30, attendance in U. S. Court of Appeals and argument, all day. ’ ’

Just how these items could be proper charges against the receiver, who was but an officer of the court, does not appear.

It is true that when Leman had been appointed receiver and had been by order of court authorized “to employ counsel to advise and represent him as receiver,” he did file a written acceptance of the appointment as receiver, in which he designated Steele “as his attorney, upon whom service of notice” could he made. It appears, however, that Steele prepared and procured the entry of the order, which was entered upon-his motion, authorizing Leman “to employ counsel to advise and represent him as receiver” and yet Steele seeks; in this case, to charge this service to Leman, personally.

The position of appellant, Steele (he being the attorney for petitioning creditors in bankruptcy), acting as attorney for the trustee, was one which the policy of the law condemns: “The attorney for the petitioning creditors should not he allowed to be the attorney for the receiver or trustee in bankruptcy. While such representation is not prohibited, it affords an opportunity for chicanery, fraud and perjury.” In re Strobel, 20 Am. Bank Rep., 22.

“The trustee should not he allowed to retain the counsel for the bankrupt.” In re Rusch, 5 Am. Bank Rep. 565.

Our own Supreme Court refused to allow the solicitor of the receiver to he paid for services rendered to him where it appeared that he had also been the solicitor for the complainant, and said: “Attorneys cannot accept employment from adverse litigants in the same controversy. Nor does it matter that their intentions and motives are honest. The rule is a rigid one, designed not alone to prevent the dishonest practitioner from fraudulent conduct, hut as well to preclude the honest practitioner from putting himself in a position where he may he required to choose between conflicting duties or he led to attempt to reconcile conflicting interests, rather than to enforce to their full extent the rights which he alone represents." Strong v. International Assn., 183 Ill. 97.

In this case, Steele, having drawn and had entered the order authorizing his employment, was fully apprised of the fact that the service he was to render Leman in the bankruptcy matter, was to him “as re-' ceiver;” and in that capacity only (if at all) was Le-man liable for the services, and, even then, for such amount as should be determined by the court in which he was appointed.

“In his relations to the court appointing him, and the consequent restriction upon his powers, the receiver occupies a somewhat different position from that of an administrator or executor. Strictly, a receiver had no right to incur any liability without the consent of the court. * * f In this casé no question is made as to the employment of the attorney by the receiver; the court has approved of the propriety and necessity of such action. When counsel is employed with the approval of the court, all the authorities agree that the court will pass upon the amount to be allowed for services. We are satisfied that this rule as to compensation prevails both in the English and American courts and that it is the universal practice of courts of equity to compel claimants upon the fund to present their claims to the court and that, where so presented and passed upon, such claims are res judicata so far as the receiver is concerned and that his personal liability ceases. * * * We cannot conceive that any attorney, whose every act must he with full knowledge that he is acting for an officer of the court, will complain that, in accepting employment from a receiver, he is held to do so with the understanding that his compensation will depend upon the amount which may he allowed him therefor by the court upon the final accounting of the receiver. Any other xuJe would subject the receiver to expensive litigation after Ms final accounting and discharge from his trust." Walsh v. Raymond, 58 Conn. 251.

“Any acts of the receiver not within the authority conferred by the order of court and not otherwise authorized by the court, do not bind the court. The corollary of this proposition is that, if the receiver act without authority or exceeds his authority he becomes personally liable and must answer individually. This produces the correlative that, where the receiver acts within the scope of his authority as given by the court, he incurs no personal liability. * * * Under no circumstances does a receiver incur any personal responsibility where he acts in conformity with the orders of the court.” Alderson on Receivers, pp. 329-330.

We are convinced that the attempted offset constituted no valid defense to the claim sued on, and the judgment of the court below will be affirmed.

Judgment affirmed.