text:
    Charles W. Pease, Administrator, Plaintiff in Error, v. Rockford City Traction Company, Defendants in Error.
    Gen. No. 6,330.
    1. Abatement and revival, § 2

      —what is rute, at common law as to survival of actions for personal injuries. At common law a party injured by the negligence of another had a right of action against him for pain, suffering, expense of being healed, loss of time, and permanent injury from the negligent act, which action did not survive.
    2. Abatement and revival, § 2*—when action for personal injuries survives under statute. Under section 123 of the Act of April 1, 1872, in regard to administration of estates (J. & A. jf 172), a common-law right of action because of negligence survived to the personal representative of a party injured thereby if his death was not due to such injury, but nothing could be allowed for his death.
    3. Abatement and revival, § 54*—when right of action for death survives in favor of personal representative. If a party’s death was due to an injury from another party’s negligence, his right of action because of such injury would abate, but by the Act of 1853, now chapter 70 of the Revised Statutes (J. & A. jf 6184 et seq.), a new cause of action would be given to the personal representative of such party for the benefit solely of his widow and next of kin.
    4. Death, § 38*—when administrator may not amend declara^ tion in action for personal injuries commenced by deceased. The administrator of a party whose death was due to an injury from another party’s negligence cannot so amend the declaration in an action brought by the deceased to recover damages for such injury as to recover in such action because of such party’s death under section 70 of the Revised Statutes (J. & A. If 6184 et seq.).

      5. Abatement and revival, § 101*—when judgment of dismissal is erroneous. Where an action to recover damages for injuries because of another party’s negligence brought by the injured party was dismissed after his death of such injuries and after an amended declaration had been filed in such action by such party’s administrator under section 70 of the Revised Statutes (J. & A. If 6184 et seq.), seeking to recover for death, held that such dismissal was erroneous and that the judgment should have been that the defendants go hence without day or that plaintiff take nothing by his suit.
    6. Appeal and error, § 1078

      —when cross, errors are essential. Cross errors should be assigned by defendant, appellee, as to the action of the court in dismissing an action for personal injuries brought by a deceased person, after an amended declaration is filed by plaintiff’s administrator in such action, seeking to recover for death under Rev. St. sec. 70 (J. & A. 6184 et seq.), in order that the question of whether the defendant is entitled to a judgment in bar may be decided in his favor.
    Error to the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Boy F. Hall, for plaintiff in error.
    B. K. Welsh, for defendants in error.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

Warren W. Pease sued the Rockford City Traction Company and the Rockford & Interurban Railway Company and filed a declaration in which he alleged that he had been injured by their negligence, and he sought to recover for his pain and for his expenses in being cured and for his loss of time. Afterwards he died. An administrator of his estate was appointed, and the papers were so amended as to substitute him as plaintiff. The administrator filed an amended declaration containing four counts. He afterwards dismissed the first three counts. The court struck the fourth count from the declaration and afterwards dismissed the suit. It is not necessary to state the allegations of the first three counts of the amended declaration, because the administrator voluntarily abandoned them. The fourth count set out that Warren W. Pease was injured by the negligence of' the defendants, and that he died as the result of said injury, and left surviving him next of kin who had been deprived of their means of support, and that Charles W. Pease had been appointed administrator. The defendants filed the general issue, and after-wards withdrew that plea and moved to strike said fourth count from the declaration, and that motion was granted. The main question is whether such a declaration by the administrator could be properly filed in a suit commenced by deceased in his lifetime.

1. At common law if one were injured by the negligence of another, the injured party had a right of action against the other for his pain and suffering, expense of being healed, loss of time, and permanent injuries resulting from the negligent act or omission. This action did not survive.

2. Since the act in regard to the administration of estates, approved April 1, 1872, went into force, section 123 (J. & A. 172) thereof as construed by the Supreme Court in connection with other statutes makes the foregoing right of action at common law survive to the personal representative of the party injured, if his death is not due to the injury. The' recovery is for the benefit of the estate, and inures to the creditors of the estate and then to their heirs at law or legatees of the deceased.

3. If the death was caused by the injury, the right of action which the injured person had abates. By the Act of 1853 which became chapter 70 of the Revised Statutes of 1874 (J. & A. 6184 et seep), and has since been amended, a new cause of action was given to the personal representative of a person whose death was caused by such an injury, and the recovery was solely for the benefit of the widow and next of kin, and the measure of recovery was a fair and just compensation for the pecuniary injuries resulting to the widow and next of kin from such death.

In the action first above described, the recovery is for the loss to the party injured. Even where the action survives, as described in the second foregoing paragraph, the recovery is only for what the deceased could have recovered if he had not died, and nothing can be allowed for the death. (Savage v. Chicago & J. Elec. Ry. Co., 238 Ill. 392.) In the action described in the third paragraph above, it is the death caused by such injury which first gives a right of action, and then only where deceased left a widow or next of kin or both who suffered pecuniary injury because of such death. The damages begin to accrue after the death. These damages do not accrue for the benefit of the creditors of the deceased nor to legatees to whom he may have willed his personal estate, but only to his widow and next of kin.

Counsel have discussed many cases. There is language in some of the earlier decisions which seems to give color to the position taken here by plaintiff, but in our view of the question the principles laid down in the recent cases of Prouty v. City of Chicago, 250 Ill. 222, and Ohnesorge v. Chicago City R. Co., 259 Ill. 424, are decisive and controlling in support of the judgment of the court below. Under these authorities, and the allegations of the fourth additional count, the cause of action for which this suit was brought abated when Warren W. Pease died because of said injuries, and the cause of action stated in the fourth additional count did not arise until he died because of such injuries, leaving a widow and next of kin who were injured in a pecuniary way by his death. As the cause of action for which this suit was begun by Warren W. Pease abated at his death, and as the new cause of action stated in the fourth additional count did not arise until his death, we are of opinion that this new cause of action cannot be ingrafted upon the original suit or recovered for therein. This conclusion is supported by Merrihew v. Chicago City Ry. Co., 92 Ill. App. 346; Thomas v. Star & C. Milling Co., 104 Ill. App. 110; Staunton Coal Co. v. Fischer, 119 Ill. App. 284; and Harhin v. Ferro Concrete Const. Co., 185 Ill. App. 239.

The judgment should have been that defendants g*o hence without day, or that plaintiff take nothing by his suit, or both. Instead* the judgment was a dismissal of the suit, which does not bar another action. Defendants were entitled to a judgment in bar, but have not assigned cross errors. The judgment dismissing the suit is a final judgment and we therefore let it stand. The judgment awarded execution against the administrator. This was error. A supplemental record, filed here, shows that this error has since been corrected in the court below. The judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Otto Wallin, Plaintiff in Error.
    Gen. No. 6,332.
    (Not to be reported in full.)
    Error to the County Court of Lake county; the Hon. Perky L. Persons, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Otto Wallin, defendant, charging him with a violation of the Anti-Saloon Act. From a judgment of conviction on fifteen counts and fines aggregating $1,150 and sentence to imprisonment for thirty days, defendant brings error.
    Abstract of the Decision.
    1. Intoxicating liquors, § 147

      —when evidence is insufficient to prove drinking of malt liquor in saloon. In a prosecution for violation of the Anti-Saloon Act, evidence held insufficient to show beyond a reasonable doubt that “buck,” an alleged malt liquor, was drunk by certain persons in defendant’s saloon.
    2. Criminal law, § 594*—when judgment of conviction on all counts of information should he affirmed or reversed as to all. A judgment of conviction on all counts of an information must be affirmed or reversed as to all and cannot be affirmed as to part and reversed as to part.
    3. Intoxicating liquors, § 128*—when judgment of conviction on all counts of information cannot he sustained. A judgment of conviction on all counts of an information under the Anti-Saloon Act cannot be sustained by testimony as to sales down to the time of trial.
    P. L. Jorgenson, for plaintiff in error.
    Ralph J. Dady and E. M. Runyard, for defendant in error; W. F. Weiss, of counsel.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Federal Rubber Manufacturing Company, Appellant, v. Plow City Garage, Appellee.
    Gen. No. 6,341.
    (Not to be reported in full’.)
    Abstract of the Decision.
    1. Principal and agent, § 113

      —What is authority of agent selling goods. An agent in making a sale of goods is authorized to do whatever is usual in carrying out the object of his agency, and if a warranty of the goods is usual he may give it in order to effect a sale, and thereby bind his principal.
    2. Sales, § 283*—When custom, as to warranty is question of fact. What is usual in making sales of goods as to a warranty thereof is a question of fact.
    Appeal from the County Court of Rock Island county; the Hon. Nels A. Larson, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Action by Federal Rubber Manufacturing Company, plaintiff, against Plow City Garage, defendant, to recover $253.31 balance due upon a bill for automobile tires, to which defendant filed plea of general issue and plea of recoupment, claiming breach of warranty and loss equal to amount of said balance. From a judgment for plaintiff for $168.99, plaintiff appeals, claiming full amount sued for, and defendant assigns cross errors, claiming damages to full amount sued for.
    Albert Huber, for appellant.
    Dietz & Sinnett, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

3. Trial, § 57 —when order for goods is not in evidence. Where a written order for the purchase of certain goods by defendant was offered in evidence, in an action for the purchase price of the goods, and was admitted as to such matters as were indorsed thereon with approval of defendant who signed it and not as to other matters, and no proof was made as to what matters indorsed on the order were made with defendant’s approval, held that such order was not in evidence and there was nothing to base a claim that a verbal warranty of the goods was avoided by such subsequent written order.

4. Sales—when rule that written contract avoids prior verbal warranty is inapplicable. The rule that a written contract of sale avoids a prior verbal warranty has no application where the writing is only an order for the goods.

5. Appeal and error, § 1301*—when presumed that decision of trial court as to amount of damages is correct. Where the trial court examined certain automobile tires offered in evidence to support a defense of breach of warranty in the purchase thereof, and no witness described such tires and no photograph thereof was in the record or the tires certified to the Appellate Court, held that the Appellate Court will presume that the decision of the trial court on the amount of damages was correct.


text:
    Ira J. St. Onge et al., Appellees, v. Hartford Fire Insurance Company, Appellant.
    Gen. No. 6,346.
    1. Insurance, § 334

      —when company is bound by agent’s Knowledge in renewing fire policy. Where the agent for the defendant insurance company had in his possession plaintiff’s policy, which provided that other' insurance on the insured property was permitted, and shortly before the expiration of the policy the plaintiff notified the agent, at the latter’s instance, to renew the policy, and same was renewed, but the agent’s clerk in writing it up made it read that other insurance was not permitted, and the agent knew of other insurance plaintiff had on the property and had all of the policies in his possession for the plaintiff, held that the company was bound on such renewal policy notwithstanding the provision therein that other insurance was not permitted, in an action thereon for a loss.
    2. Insurance, § 352

      —when right to forfeit fire policy because of additional insurance is waived. Where the agent of an insurance company was informed by a party about to take out a policy with his company that he was about to take a second policy also with another company, held that such agent should have made known to such party any objection to his taking such other policy, and his silence in the matter would constitute a waiver by his company of any right to declare a forfeiture because of such other policy.
    3. Insurance, § 447*—what does not constitute fraud in proofs of loss. Merely an optimistic account of the value of insured goods destroyed would not be a fraud in proofs of loss.
    4. Insurance, § 456*—when proofs of loss are waived. Where an insurance company, before proofs of loss were furnished, refuses to pay such loss, such proofs are waived.
    5. Insurance, § 669*—when evidence is sufficient to sustain verdict in action on fire policy. Evidence -held to warrant the finding of the jury that plaintiff’s goods lost by fire were worth in excess of $6,000, and that a verdict for the amount of plaintiff’s policy accordingly was not excessive, in an action on such policy to recover for such loss.
    6. Witnesses, § 194*—when list of goods made by owner after fire may be used to refresh memory of owner. A list of goods lost by a fire made by the owner after the fire, held admissible in evidence to refresh his recollection in testifying, although he could not later at the trial remember all the details, in an action on an insurance policy to recover for such loss.
    7. Insurance, § 620*—when evidence as to subsequent selling price of exchanged property is admissible in action on fire policy.

    Evidence as to the price at which certain real estate, given in trade for a certain stock of goods, subsequently sold for, held inadmissible in an action to recover on an insurance policy for the loss by fire of such goods.
    8. Witnesses, § 224*—when question on cross-examination of not erroneous. Where objection to a question on cross-examination whether the witness had heard another witness say certain things at the trial was sustained, held not error.
    Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsey, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.

      Barger & Hicks, Seymour Edgerton and J. B. & J. L. Oakleaf, for appellant.
    Searle & Marshall and Bollinger & Block, for appellees.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

On April 13, 1913,"Ira J. St. Onge and Agnes A. St. Onge, his wife and partner, were conducting a general country store in the Village of Reynolds in Rock Island county. They kept dry goods, groceries, boots and shoes, jewelry, etc. In the night of that day their stock of goods was destroyed or very badly injured by a fire. At that time they had three policies of fire insurance in force upon said stock of goods, each for $2,000, one dated December 23, 1912, issued by the Springfield Fire & Marine Insurance Company, and hereinafter called the Springfield policy, one dated February 1, 1913, issued by the Assured’s National Mutual Fire Insurance Company, and hereinafter called the Assured’s policy, and one dated February 27, 1913, issued by the Hartford Fire Insurance Company and hereinafter called the Hartford policy. The Hartford company refused to pay the policy, and the owners brought this suit thereon and filed a proper declaration in which the plaintiffs averred at length that said policy contained a provision forbidding additional concurrent insurance, whereas it was agreed that other insurance should be allowed; and the declaration alleged facts to show that the insured did not know that the' policy so read and that that portion of the policy was not binding upon them. Defendant filed a plea of nonassumpsit, with notice of four special matters of defense: (1) That this policy was forfeited by taking out the Assured’s policy; (2) that this policy was forfeited by taking out the Springfield policy; (3) that the assured presented false and fraudulent proofs of loss and thereby forfeited the policy; (4) that in the proofs of loss the owners falsely, stated that the cause of the fire was unknown to them whereas they well knew how the fire was started, the intimation apparently beihg that the owners were responsible for the fire. This fourth claim is abandoned in this court. There was a jury trial and a verdict for the plaintiffs assessing their damages at $2,260.50. A motion for a new trial was denied, plaintiffs had judgment and defendant appeals.

The legal principles involved in this case and upon which we rely in reaching the conclusions hereinafter stated are illustrated in the following, authorities: In New England Fire & Marine Ins. Co. v. Schettler, 38 Ill. 166, the policy sued on forbade other insurance hot indorsed on the policy and not consented to in writing by the company, and made the insurance void if there was such other insurance, and there was other insurance, but the assured mentioned to plaintiff’s agent when he took out this policy that he had effected insurance in two' other offices, and the agent did not enter this in writing on the policy, and it was held that for this neglect the assured should not suffer. In Farmers’ & Merchants’ Ins. Co. v. Chesnut, 50 Ill. 111, there should have been mention in the application of a wooden building standing near the building insured, and the lack of which it was claimed made the insurance void. But the proof showed that assured. after-wards remembered that he had failed to mention this wooden building and he went back to the office and told the agent about it, and the agent said it would make no difference. It was held that if this was true the company could not defend an action on the policy on that ground. In Rockford Ins. Co. v. Nelson, 65 Ill. 415, it was held that if the agent of the insuranee company made out the application for the insurance with a knowledge of the facts, without collusion between him and the insured, then the company was bound by the agent’s knowledge. In St. Paul Fire & Marine Ins. Co. v. Wells, 89 Ill. 82, it was held that not only was notice to the agent of an insurance company notice to the company, but also that if the agent was otherwise cognizant of the facts and dispensed with any necessary act on the part of the assured, the company and the agent are estopped. There, there was a provision in the policy against liability if the property was vacant, and the insured in applying for the insurance told the agent that it might be vacant at times, and the agent said that would not matter, and the company was held liable, notwithstanding the property was vacant at the time of the fire. In Phenix Ins. Co. v. Grove, 215 Ill. 299, it was held that notice to an agent within the scope of his agency is notice to the company, and if, after the agent has notice of a fact authorizing a forfeiture, the company retains the premium it has received and does not elect to cancel the policy, it will be held to have waived the condition and to be liable under the policy. This was a case of other insurance forbidden by the policy, and the agent who took this application and issued this policy had been notified of the existence of other insurance, and nevertheless took and retained the premium, and the company was held liable. It was held in Chicago Life Ins. Co. v. Warner, 80 Ill. 410, that if the practice of the company and its course of dealings with the insured and others known to the insured has been such as to induce a belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted upon, the company will not be allowed to set up such forfeiture as against one in whom their conduct has induced such belief. To the same effect is Illinois Life Ass’n v. Wells, 200 Ill. 445. The question whether there has been a waiver of a condition authorizing a forfeiture is a question of fact for the jury. Conductors Benefit Ass’n v. Tucker, 157 Ill. 194. Where, after a loss, an insurance company bases its refusal to pay the policy on other grounds than those which might arise from the proofs of loss, objections to the proofs of loss are thereby waived. Where the insured in his proofs of loss has overvalued the property destroyed, still, if he acted in good faith, in the honest belief that the property destroyed was worth the value he placed upon it, and the excessive valuation was not intended to deceive or defraud the insurance company, such overvaluation cannot be held to be fraudulent, and will not defeat a recovery. Commercial Ins. Co. of California v. Friedlander, 156 Ill. 595.

The policy sued on contained the following: “$ Nil additional concurrent insurance permitted.” The policy elsewhere provided that unless otherwise provided by agreement, indorsed hereon or added hereto, it should be void if the insured then or thereafter obtained other insurance on the property. Robert P. Wait had a private bank in Reynolds and another at Taylor Ridge, and also was largely interested in farming and stock raising and was a very busy man. He was also agent for several fire insurance companies, including the Springfield and the Hartford. His sister, Pearl Wait, conducted most of his insurance business at the bank in Reynolds. Wait had a fire proof vault and kept St. Onge’s insurance papers there. The Hartford and Springfield policies were issued by Wait’s office and were kept for St. Onge in Wait’s vaults. In that vault was a prior Hartford policy, expiring at the date of this, which had also been issued by Wait. That former policy permitted additional insurance. Just before it expired Pearl called St. Onge by telephone and asked if he wished the Hartford policy renewed. He directed her to renew it. Shortly thereafter she was absent from the bank on account of sickness in her family. Wait called St. Onge by telephone and asked if he wanted the Hartford policy renewed. St Onge replied that he had already arranged with Pearl for its renewal, and Wait told him that she was absent and he would have it attended to. It was then written by Miss McConnell, another clerk in the bank. In the form used there was a dollar mark and a blank space for an amount and then a description of the retail stock. That blank she filled with “$2,000.” Below that there was a like dollar mark and a space and description of store fixtures, etc. St. Onge had no insurance under that description and she there wrote “nil.” Then followed a dollar mark with a blank space, in which might be written any unusual matter to be covered. Then followed another dollar mark and a blank space and the words “additional concurrent insurance permitted.” In that blank space she wrote “nil.” She duly executed the policy and placed it in the vault with St. Onge’s other policy in the Springfield, and this policy was never seen by. Wait nor by St. Onge until after the fire, and neither of them had any knowledge that that word “nil” had been inserted. It is entirely clear from the evidence of Wait and St. Onge that it was never intended by either of them that the word “nil” should be there inserted, but it was intended that additional insurance should be permitted by this policy. As Wait knew that the assured had other insurance in force, the policy for which was then in Wait’s possession, the insurance company was bound notwithstanding the additional insurance.

But Wait did not have possession of the Assured’s policy, and defendant claims that by obtaining it St. Onge forfeited the Hartford policy. It was intended that the Hartford policy should permit other insurance. No limit thereon was made or suggested. We hold the policy is to be construed as if it had permitted additional insurance and had placed no limit thereon, and therefore St. Onge did not forfeit the Hartford policy by afterwards taking out the Assured’s policy. But there is further proof on this subject. St. Onge testified that at the time when Pearl called him up about renewing the Hartford policy and upon his telling her to renew it, he also told her that he had taken out another policy with the Assured and that he wished to take that down to her and have it put in the vault with the Hartford and Springfield; policies, and that when he had the other conversation with Wait about the renewal he told Wait not only that he wanted the Hartford policy renewed," but also that he had another policy with the Assured and he wanted it put in the vault with the Hartford and Springfield policies. Pearl Wait denied any information from St. Onge concerning the Assured’s policy by that name, but she did remember that either then or about that time St. Onge called her up and asked how much insurance he had with them, and she told him, and he said something about another agent being there from another company. This matter was brought out when Hildreth, an adjuster for the Hartford, came there after the fire. At that time St. Onge produced the Assured’s policy, and Hildreth told St. Onge that this violated the clause in the Hartford policy prohibiting other insurance, and St. Onge replied that Wait knew he had that policy and that he had called Pearl and told her about his other insurance. Pearl then was called into the room where Hildreth, Wait and St. Onge were and Hildreth testified that he asked her if she knew about the Assured’s policy and she answered that she had some conversation with St. Onge over the telephone as to how much insurance they had written on his stock and that he was talking with another agent about insurance. Wait testified, denying any recollection on his part that St. Onge said anything about any other insurance. The denials of Wait and Pearl were not positive, and Pearl clearly admitted what we have above stated. We think that under the law when St. Onge told Pearl that he was discussing other insurance with the agent of another insurance company, she as the representative of Wait, the agent, should have made it known to St. Onge if there was any objection to his procuring other insurance. Her entire silence in our opinion constituted a waiver of any right to now declare a forfeiture, because he did take this other insurance.

In view of what we hereafter say about the actual loss, we think it sufficient to say that in our opinion under the evidence the proofs of loss were not fraudulent. Moreover, the Hartford company, in writing, expressly refused to pay the loss sometime before the proofs of loss were furnished, and thereby waived proofs of loss, and the proofs that were furnished were unnecessary and immaterial. It is a fair question for decision under the evidence whether St. Onge in those proofs gave an optimistic account of the value of the goods that had been destroyed, but that would not be a fraud.

As there were three policies in force of $2,000 each, the Hartford company was only bound to pay one-third of the loss, and the important question is whether, after deducting what plaintiffs realized from the salvage, the loss amounted to $6,000. Defendant relied chiefly on the evidence of one Harris as to the value of that stock. He was sent to Reynolds after the fire by the manager of the Underwriters Salvage Company of Chicago. That company dealt in stock such as this was after the fire, and made a specialty of buying such property, and it was manifestly for his interest to value this property as low as possible. The fire broke out in the nighttime and, had evidently smoldered for a long time before it was discovered, for, when those who first arrived at the scene broke in the door, the smoke was so dense that they could not enter standing erect. Hose was used to deluge the goods with water and afterwards chemicals' had to be used to put out the fire. Harris had never seen the goods before, yet he testified that, notwithstanding the effects of the smoke and the water and the steam and the chemicals, he could tell by an examination of the goods that they were old, shopworn, and unsalable, and his testimony was based upon his theory that before the fire they were only worth fifty per cent, of the cost price. St. Onge, familiar with the goods, testified that they were such goods as were required in that community and were salable. He had bought an old stock of goods and had sold therefrom and added thereto during the years in which he had been running it. Other witnesses who had at some time known something about the stock previously kept there testified, some depreciating it and others saying that it was an up-to-date stock of goods. The value of such material had risen in price since the oldest of the goods had been purchased. What they were worth just before the fire was a question of fact for the jury. St. Onge turned over to the adjuster such of his books and inventories as were left, and sent to the houses from which he had somewhat recently purchased goods and obtained invoices from them of his goods so purchased and turned these over to the adjuster. There is no pretense but what he truly gave to the adjuster the cost price of the goods. He may have been disposed to place a high value upon what he had in the store, and we are satisfied that Harris very unduly depreciated their value. We conclude that from the evidence the jury might fairly find that the fair value of the goods just before the fire considerably exceeded $7,000. He sold a part of them at special sale, held for several weeks, for $800, and sold the residue for $200, and it is not claimed that he did not do as well with the remnant as he could. There were two loads of debris taken out of the store after the fire, which he testified were the remains of goods which he knew he had in the store and which were so completely destroyed that no list of them could be made at all. He testified that these goods so completely destroyed were worth $1,000. No one contradicted him. These goods are included in our estimate that there was considerably more than $7,000 worth of goods in the store. It cost something in clerk hire and rent to sell the remnants, for which $800 was obtained, but deducting the full sum of $800 and $200 and we are of opinion the jury were warranted in finding that the loss considerably exceeded $6,000. The verdict was made up of the $2,000 called for by the policy, and interest thereon. We ai3 of the opinion that no ground exists for a holding here that the verdict was excessive.

It is contended that the court erred in rulings at the trial. St. Onge had made a list of the goods which he knew he had in the store but which were so completely destroyed that they could not be identified. The plaintiffs offered that in evidence and the court sustained an objection by defendant thereto, but it permitted St. Onge to use it to refresh his recollection in testifying. He had testified that he knew it to be true and correct. He could not remember all the details at the time of the trial, and we are of opinion that such a foundation was laid that he was entitled to use it to refresh his recollection. Vonach, a witness for plaintiffs, testified that he represented the former owner of this store in the sale of the stock of goods to St. Onge some three years before this fire. It appeared that this was a trade for real estate owned by St. Onge. On cross-examination, Vonach was asked if he did not know that after the trade the man who then acquired that real estate sold it for $2,800, and an objection thereto was sustained, and it is claimed this was error. There are two reasons why no error was committed. To have gone into the question of the price afterwards obtained for this real estate would have involved a collateral inquiry as to why the man sold it, and whether he made suitable efforts to obtain the best price he could, and whether he made a good bargain or was cheated in the sale of the real estate. But, further, Vonach testified more than once that he did not know for what price that property was afterwards sold. It was not error to sustain an objection to a question put to St. Onge on cross-examination as to whether he heard a certain witness say certain things at the trial. Complaint is made of remarks of counsel for plaintiff to the jury. They were immediately qualified, and they were drawn out because of some effort to establish the matter alleged in the fourth paragraph of the notice of special matter which defendant set up under the general issue. An intimation had been given that the proof would show that St. Onge was responsible for the fire, and what his counsel said that is complained of was expressive of a natural indignation at that charge. It is argued that all of plaintiff ’s instructions are erroneous in that, where they require the jury to find from the evidence they should have read “from the evidence in the case.” It is impossible that the jury should have understood that the instructions referred to any evidence except that which had been heard in that case; but, further, several of defendant’s instructions contained the same defect, if it be a defect. Defendant’s brief earnestly insists that under the Hartford policy that company is only liable for three-fourths of one-third of the loss. It was conceded in oral argument that there is no three-fourths clause in the policy sued on, and that that portion of the brief was written by mistake by an attorney who did not participate in the trial. We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


text:
    Ira J. St. Onge et al., Appellees, v. Springfield Fire & Marine Insurance Company, Appellant.
    Gen. No. 6,347.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsey, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Action by Ira J. St. Ong’e and Agnes A. St. Onge, plaintiffs, against Springfield Fire & Marine Insurance Company, defendant, to recover upon a policy of insurance for $2,000 for a loss. From a judgment for plaintiffs for $2,266.66, defendant appeals.
    Most of the questions involved were disposed of in the case of St. Onge v. Hartford Fire Ins. Go., ante, p. 127, concerning the same stock of merchandise and same fire loss.
    Seymour Edgerton, Barger & Hicks and J. B. & J. L. Oakleaf, for appellant.
    Searle & Marshall and Bollinger & Block, for appellees.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Abstract of the Decision.

1. Insurance, § 280 —when additional fire insurance is permitted by acts of agent. Where an insurance agent issued to a party a policy of fire insurance upon his stock of goods which provided that other insurance was not permitted, the agent knowing at the time that other insurance was already on the goods, and the insured believing such policy permitted other insurance as he intended, and the agent retained possession of the policy for such party at his request for safe-keeping and insured did not see the policy until after the fire, held that the agent understood and meant by delivering such policy to permit other insurance without limitation on the amount thereof, and such policy would not he invalidated by the issuance of a subsequent policy by another company.

2. Insurance, § 654*—when evidence as to additional fire insurance is immaterial. Where additional insurance was permitted in a fire policy, held that it would be immaterial in an action on such policy for a loss whether other insurance was in force when the policy was issued or that other insurance was issued thereafter and canceled before the loss, and that there was no error in refusing to admit evidence as to such other insurance.


text:
    Daniel L. Dougherty, Appellee, v. Spring Valley Coal Company, Appellant.
    Gen. No. 6,350.
    (Not to be reported in full.)
    Appeal from the City Court of Spring Valley; the Hon. W. H. Hawthorne, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Action by Daniel L. Dougherty, plaintiff, against Spring Valley Coal Company, defendant, to recover damages for personal injuries sustained in defendant’s coal mine. From a judgment for plaintiff for $950, defendant appeals.

      Abstract of the Decision.
    1. Mines and minerals, § 80

      —what degree of care must he exercised by mine owner in providing safe place to work. A mine employer is not an insurer that the place where he sets his men to work shall he absolutely safe, but he is only bound to exercise reasonable care that such place is reasonably safe.
    2. Mines and minerals, § 80*—when employee may not recover for injuries due to alleged failure to provide safe place to work. Where it was the duty of a miner employed in a mine to “brush” loose coal and rock from the roof of the room wherein he was placed to work, held that he could not recover from his employer for injuries sustained by a fall of coal or rock from the roof while so employed, under a declaration charging a duty upon the employer to provide a reasonably safe place and condition in which to work.
    3. Mines and minerals, § 176*—when evidence insufficient to show that danger mark is necessary on roof of entry of mine. Evidence held insufficient to sustain a finding that the appearance of the roof of the main entry of defendant’s coal mine was such as to require under the Mining Act a danger mark there and an entry to that effect on its record, or to sustain a finding that the defendant had not used reasonable care to make that place reasonably safe for its employees, in an action to recover damages for injuries sustained by the plaintiff by rocks falling from the roof of the entry upon him.
    4. Trial, § 133*—when remarks of counsel are prejudicially erroneous. Sneering questions and remarks by counsel for the plaintiff in a personal injury action as to the plaintiff being a poor person and comparing him with John D. Rockefeller, and sneering remarks as to defendant’s counsel, held improper and prejudicial.
    McDougall, Chapman & Bayne, for appellant; Mastin & Sherlock, of counsel.
    G. F. Wagner, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    John Seymour, Appellant, v. Woodstock & Sycamore Traction Company et al., Appellees.
    Gen. No. 6,353.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Limitation or actions, § 64

      —what constitutes new cause of action. Where an original bill for mechanic’s lien, filed within time, set up as basis for such lien certain contracts between the complainant and certain of several defendants for the construction of and furnishing material for the railroad of a codefendant, and three years later an amendment of such bill was filed setting up contracts, as basis for such lien, between complainant and said codefendant, for whom the railroad was to be built, and alleging that said other defendants were owned and controlled by and subsidiary to said codefendant, held that a new cause of action was set up in such amendment and same was barred by the statute of limitations.

      Appeal from the Circuit Court of De Kalb county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Suit by John Seymour, complainant, against the Woodstock & Sycamore Traction Company, the Chicago, Waukegan & Fox Lake Traction Company, the Interurban Construction Company of Chicago, the Northeastern Electric Railway Company and the Central Trust Company of Illinois, defendants, to obtain a lien upon the property of the Woodstock & Sycamore Traction Company and the Chicago, Waukegan & Fox Lake Traction Company for certain labor and material furnished for the building of a line of interurban railway for the first-named company. From a decree dismissing the bill as amended, upon demurrer sustained, for want of equity, the complainant appeals.
    Cliffs & Cliffs and Peepers & Wing, for appellant.
    Zane, Morse & McKinney, George Brown, Charles T. Rogers and T. E. Ryan, for appellees; Clarence E. Eldridge, of counsel.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

2. Limitation of actions, § 104 —how defense of raised. Where the fact that a cause of action is barred by the statute of limitations appears on the face of a bill, it can be raised by demurrer.

3. Corporations, § 516*—what does not constitute proof of identity of two corporations. The fact that two corporations may have the same president or the same president and secretary, or that one contractor, a corporation, agrees to pay for work done by delivering stock or bonds of another corporation for which the work was to be done, or that one corporation owned the majority of the stock of another corporation, if it could lawfully hold such stock, is no proof that the two corporations were one and the same company, or that one was a dummy for the other and what one does the other really does.

4. Mechanics’ liens, § 183*—when Mil does not state cause of action against railroad company as contractor or subcontractor. Where a bill for a mechanic’s lien set up several contracts by the complainant with different construction companies for the construction of, or furnishing material for, different portions of a certain railroad of another company, all of which companies appeared to have the same officers and were made parties to such bill, and one of the companies with which one of such contracts was made was alleged to own a majority of the capital stock of said railroad company, held that such bill stated no cause of action against such railroad company as a contractor or as a subcontractor, no notice as a subcontractor being alleged.


text:
    Emil Swanson, Administrator, Appellee, v. Moline, Rock Island & Eastern Traction Company et al., Appellants.
    Gen. No. 6,370.
    1. Conflict of laws, § 38

      —where actions ex delicto may be brought. Actions ex delicto for injuries to the person are transitory and may he brought within a jurisdiction other than that within which Such injuries occurred.
    2. Pleading, § 100*—what plea of general issue does not admit. A plea of the general issue to a declaration charging that the defendant’s railroad trestle on which plaintiff was walking when he was injured was a public highway does not admit such charge.
    3. Roads and bbidges, § 1*—what does not, constitute a public highway. A railroad trestle over a stream is not made a public highway by reason of the stream being, as a navigable stream, a public highway.
    4. Dedication, § 25*—what does not constitute dedication of railroad trestle as public highway. Where the predecessor of the defendant railroad filed a certain plat of an island showing two straight lines close together drawn across the river channel from the island to the shore apparently where the railroad’s trestle was built, held that such plat was not a dedication of the trestle as a public highway, in an action to recover damages for injuries sustained by the plaintiff while walking on such trestle.
    5. Interurban railboads, § 4*—when instruction as to plaintiff being a trespasser is erroneous. An instruction submitting to the jury whether a certain interurban railroad trestle where the plaintiff was injured was a public highway and that, if it was, such party was not a trespasser thereon, held erroneous, in an action to recover damages for such injury.
    6. Roads and bridges, § 18*—what user of railroad trestle does not constitute it a public highway. The fact that an interurban railroad acquiesced in the occasional use by the public of its trestle over a stream for foot travel would not make such trestle a public highway of require the railroad to place officers at the ends of the trestle to prevent such use, nor would the fact such trestle was used in going to an amusement park owned by the railroad make such trestle a public highway.
    Appeal from the City Court of Moline; the Hon. G. O. Dietz, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed February 10, 1917.

      Searle & Marshall, for appellants.
    A. H. Kohler and J. T. & S. R. Kenworthy, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Oscar E. Swanson and Evan S. Evans were walking over a trestle owned by one of appellants and operated by the other for an interurban railway over an arm of the Mississippi River from the Illinois shore to Campbell’s Island, where there was an amusement park and an inn and where a dance was in progress, after nine o’clock p. m. of May 31, 1915, when an interurban car overtook them. Evans succeeded in clinging to a timber on the lower side. Swanson apparently fell down and was struck by the fender and either was knocked off or jumped off or fell off and was drowned. The administrator of his estate brought this action in the City Court of Moline to recover damages for the loss of his next of kin by his death, which was attributed in the declaration to the negligence of the appellants. After certain pleas to the jurisdiction, appellants filed a plea of not guilty and there was a jury trial and appellee had a verdict and judgment for $3,000, from which defendants below appeal.

This accident did not. occur in Moline, and it is contended that, therefore the City Court of Moline had no jurisdiction. Actions ex delicto for injuries to the person are transitory. 1 Chitty’s Pl. 269; Hanna v. Grand Trunk Ry. Co., 41 Ill. App. 116. We decided this question in favor of the jurisdiction in Knickerbocker Ice Co. v. Leyda, 128 Ill. App. 66. This was followed in Torpedo Top Co. v. Royal Ins. Co., 162 Ill. App. 338. Both cases are based upon Hercules Iron Works v. Elgin, J. & E. Ry. Co., 141 Ill. 491. This is a civil case within the meaning of Brueggemann v. Young, 208 Ill. 181. We hold the City Court had jurisdiction.

Appellee claims that this trestle was a public highway and that Swanson was not a trespasser in walking thereon, because (1) the state of the pleading admits that it was a public highway; (2) it was over a navigable river, which is all a public highway; (3) a plat filed by a predecessor of appellants dedicated this trestle as a public highway; (4) the top of the dam on which this trestle was built is a public highway, and this trestle is therefore in a public highway, and it is therefore itself a public highway; and (5) appellants invited the public to travel on a trestle and consented that they do so.

Certain counts of the declaration charged that this was a public highway. Appellee contends that by filing the general issue only, appellants have admitted that allegation and cannot be heard to dispute it. The authorities relied upon by appellee to sustain that contention hold that by filing only the general issue the defense admits that it owned and operated the appliances which caused the injury. In Union Stock Yards & Transit Co. v. Karlik, 170 Ill. 403, each count of the declaration alleged that the accident occurred on a certain street in the City of Chicago. The only plea was not guilty. This was not treated as confessing that this was a public street, but on the contrary, the question whether it was a public street was treated as one of the principal questions to be decided from the evidence. We hold that the plea in this case did not admit that this trestle was a public highway.

For the proposition that a navigable stream is a public highway, appellee relies upon Braxon v. Bressler, 64 Ill. 488, and Village of Brooklyn v. Smith, 104 Ill. 429. Those cases related to the title to a street at the water’s edge, and only incidentally say that a stream is a public highway. It no doubt is a public highway along which foot travelers can walk at will plication here contended for would make every railroad trestle bridge over a navigable stream a public highway along which foot travelers can walk at will without being trespassers, and we conceive that application of the rule to be entirely untenable.

A predecessor of appellants in the ownership of this interurban road filed a certain plat of Campbell Island, which showed various lots and streets on parts of said island and the amusement park on the west side of said island, and had two straight lines close together drawn across the river channel to the Illinois shore at the place, probably, where the trestle is built. Appellee offered that plat in evidence, and contends that that was a dedication of this trestle as a public highway and relies upon City of Elgin v. Beckwith, 119 Ill. 368. That was an action of ejectment. The lines across the Fox River on the plat there in evidence were marked “bridge.” At the time this plat was made there was already a bridge across the Fox River at that point. The question was who had the title to certain land at the margin of the river and whether a certain street went straight across the river or changed its direction at the river bank. In the plat here in question the lines referred to are not marked “bridge” and are close together, and evidently only indicate the line of this trestle. We hold the plat did not dedicate this trestle as a public highway.

Formerly there was a ferry across this arm of the river about a quarter of a mile above where the trestle now is. Whether that ferry is still continued does not appear. Boats are now kept some distance below where this trestle is. Many years ago the United, States Government built a dam across this branch of the river at this place in order to cause more water to pass west of the island where there was actual navigation. The dam was apparently thirty or thirty-five feet wide and was made comparatively smooth on top. Much, of the time no water went over this dam, and the officer who had charge of building it seems to have made the top of the dam comparatively smooth, so that people could walk and drive across it, between the Illinois shore and Campbell’s Island in times of low water. Afterwards the predecessor of appellants obtained a permit to build this trestle upon said dam on condition that it would keep the dam in repair and that the Secretary of War could revoke the permit at will. It built this trestle on the east side of the dam, leaving sufficient of the top of the dam on the west side of it for the passage of teams and people. For many years teams have been driven and people have walked between the island and the mainland on the top of this dam immediately west of this trestle at times of low water. We see no reason to suppose that this permissive use of the top of the dam has turned it into a public highway as against the United States Government, but are of opinion that the Government could remove the dam or so change it as to make it impassable for teams and foot travelers whenever it chooses; but if the public by long use has acquired the right to go over the top of the dam, we fail to see how this makes the top of the trestle a public highway. The top of the trestle is seven and a half or eight feet above the top of the dam. Will it be contended that the top of the elevated roads in the streets of the City of Chicago are public highways over the ties of which foot passengers may lawfully walk at will, or that the tops of elevated railroads in cities are public highways which foot passengers may use at will, simply because they are in and over streets which are public highways? The obvious purpose of such elevations is so that the railways shall cross above the space where people have a right to travel and that the public shall be free from the danger of being struck by cars traveling on railways located on the surface of the ground. This question was decided in Mason v. Missouri Pac. Ry. Co., 27 Kan. 83. The plainttiff there was injured upon such a trestle erected over a public highway. It was there contended by the plaintiff that, as .the street belonged to. the public from the center of the earth to the heavens above, persons had a right to use the trestle as a public street. The court said:

“Not so. The embankment and trestlework were the property of the railway company. They were used for the purpose of the company in operating its cars and trains, and so built and constructed as to render any travel thereon perilous, even without the operation of cars upon the track. Whether the authorities consented to the construction of such embankment and trestlework is immaterial at this time. The railway company was in full occupation of it, and the public had no right to cross over such a dangerous structure, and, knowing it to be unsafe for travel, to claim exemption from all negligence on their part, and charge the railway company with the fruits of their own imprudence.”

We find nothing in the evidence which would permit the jury to find that the top of the trestle was a public highway. The court therefore erred in giving instructions for appellee which submitted to the jury the question whether this trestle was a public highway and which told the jury that if it was the deceased was not a trespasser.

Appellee contends that appellants invited the public to travel on this trestle and consented that they do so. In the construction of this trestle' there were timbers resting on the ground and standing parallel with the course of the water. Upon these timbers other heavy timbers at each side ran lengthwise of the trestle. On top of these timbers were railroad ties parallel with the water and from six to ten inches apart. On these ties the rails of the track were laid. Any one walking lengthwise of this trestle must exercise care not to stumble and fall between the ties. There was no place fitted for foot passengers to walk upon. The entire structure was but little wider than the cars which traveled upon it. There was not room on either side for a person to stand while a car passed him. On the "up stream side, a little distance from the trestle were poles seventy-five feet apart, which carried the arms with which the trolley was connected. There were planks on edge between the trestle and each pole, so that it was possible for a person to get out by the pole and let a car pass him. The very structure of this trestle is practically conclusive proof that it was not intended for public travel on foot. On the Illinois side, close to the track, was a sign a short distance above the ground, which read: “Bridge—Danger— Keep off,” in capital letters a foot high. There is proof that people did walk over this trestle in high water, and that once before this event a car overtook some people on the trestle and stopped and took them on the car. There is no proof that at any other time appellants or their servants saw people going across this trestle. The island contained about five hundred acres and had on it two farms occupied the year round by its owners, and numerous cottages occupied only in the summer time. This railway track across the island and to the park on the other side of the island was only operated in the summer time. Appellant’s would not be chargeable with notice that the public traveled on the trestle when appellants were not using it. In the summer time appellants only operated a car across it once'each way every thirty minutes, except that on holidays there was a car each way once every fifteen minutes. Therefore people may have gone over this trestle at numerous times without appellants being charged with notice thereof. Moreover, this young man was walking across it after nine o’clock of a night when the moon was not shining, and we do not find any proof that any one ever traveled across it in the night before. But if appellants knew that people sometimes did walk across the trestle, that did not give consent nor require appellants to place officers at the ends of the trestle to prevent this use. This question has been many times considered by the Supreme Court, from Illinois Cent. R. Co. v. Godfrey, 71 Ill. 500, in 1874, down to a recent date, and the cases on this subject are so fully collected and discussed in Cunningham, v. Toledo, St. L. & W. R. Co., 260 Ill. 589, that we deem it unnecessary to review them here. The court there said:

"It very materially affects the question of the respective duties and liabilities of the parties whether at such time the plaintiff was in the exercise of a legal right or not. The right of way was the exclusive property of the company, upon which no unauthorized person had a right to be for any purpose. The plaintiff was traveling upon defendant’s right of way, not for any purpose of business connected with the railroad but for his own mere convenience, as a footway, in reaching his home on return from a search after his cow. There was nothing to exempt him from the character of a wrongdoer and trespasser in so doing, further than the supposed implied assent of the company arising from their noninterference with a previous like practice by individuals. But because the company did not see fit to enforce its rights and keep people off its premises no right of way over its grounds was thereby acquired. It was not bound to protect or provide safeguards for persons so using its grounds for their own convenience. The place was one of danger, and such persons went there at their own risk and enjoyed the supposed implied license subject to its attendant perils. At the most there was here no more than a mere passive acquiescence in this use. A mere naked license or permission to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner to provide against the danger of accident.”

The fact that this decision was by a divided court only emphasizes that the court intended to adhere to the rule there stated. We discussed a similar question in Deach v. Woolner Distilling Co., 187 Ill. App. 524. Appellee argues that these cases are inapplicable because deceased was going to a dance at the amusement park conducted by appellants and therefore was on the trestle on business connected with these companies. This trestle was built and operated and the amusement park conducted in order that people might ride in appellants’ cars and pay the proper fare therefor, but there was never any implied permission to walk over this trestle in order to escape paying fare. We hold this position untenable. Appellee lays much stress on Chicago Terminal Transfer R. Co. v. Gruss, 200 Ill. 195. Chicago Terminal Transfer R. Co. v. Kotoski, 199 Ill. 383, was another case growing out of the same accident. The plaintiffs who there recovered were walking on a tréstle, but they had been told by trainmen to walk there, and the employee on the front car of the bunch of cars running backward which struck these people saw them and did not signal his engineer to stop, and the declaration charged wilful and wanton negligence, and the court held that this was proof tending to show wilful and wanton negligence. There is no such charge in the present declaration, and we consider those cases not in point.

We are of opinion that, so far as the evidence in this record shows, Swanson and all others who went over this trestle on foot were trespassers and appellants only owed them the duty not to wilfully injure them after their presence on the trestle was discovered, which means that the motorman of the car was bound to stop his car as soon after he discovered the presence of this man ahead of him on the trestle as he could by the use of the appliances which he had and without danger to the safety "of his car and passengers. Appellee introduced testimony tending to show that the motorman did not use certain appliances within his control, by the use of which he could have stopped the car sooner than he did. Appellants introduced testimony tending to show that the car could sooner be stopped by the appliances which the motorman did use than by those which he did not use. As we conclude that this case should be submitted to another jury, uninfluenced by instructions which left the jury to find that this trestle was a public highway and Swanson not a trespasser in traveling thereon, we do not now discuss the comparative weight of the testimony on this question on each side.

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

Reversed and remcmded.


text:
    John Jaegle, Appellee, v. Estate of Emil Jaegle, Appellant.
    Gen. No. 6,382.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Executors and administrators, § 270

      —when evidence insufficient to sustain claim. Evidence held insufficient to show any basis from which the jury could decide what wages ought to be allowed the claimant on account of work done for the intestate, in a claim in the Probate Court against an estate to recover for such work.
    2. Landlord and tenant, § 325*—when evidence sufficient to show agreement for occupancy of premises free of rent. Evidence
      held to show that the claimant and the intestate agreed that on expiration of the intestate’s lease of the claimant’s land the claimant should live with the intestate on said land and that the intestate should have the use thereof, in a claim in the Prohate Court to recover for rent.

      Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Claim filed in the Probate Court of La Salle county by John Jaegle, claimant, against the estate of Emil Jaegle, defendant, to recover $1,500 for labor and services performed for the deceased in his lifetime, and $1,539 for rent of thirty-eight acres of land from March 1, 1906 to March 1, 1915, at $4.50 per acre, as per lease. From a judgment by the Circuit Court, on appeal, for the claimant for $1,500, the administratrix for said estate appeals.
    Robert E. Larkin and H. M. Kelly, for appellant.
    W. A. Panneck, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    W. A. Kelly, Appellee, v. Charles Sanderson, Appellant.
    Gen. No. 6,383.
    (Not to be reported in full.)
    Appeal from the Circuit Court of La Salle county; the Hon. Job A. Davis, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Action by W. A. Kelly, plaintiff, against Charles Sanderson, defendant, for assault and battery, to which the defendant pleaded not guilty and son assault demesne. From a judgment for plaintiff for eight hundred dollars, defendant appeals.
    Plaintiff, to prevent water running from a public court in the rear of his property, which was higher than his property, onto his property, made an embankment with ashes six or eight inches high, causing the water to accumulate in the court, so that when defendant attempted to take out his horse from his barn opening on the court he found this water there, and told his boy to open the embankment and let the water out. Plaintiff ordered the boy away, and then defendant came up with a hoe and began digging an opening, which Kelly filled up with a shovel as fast as it was made. A fight with hoe and shovel followed until they were separated, plaintiff receiving from the hoe a gash in his leg an inch deep and an inch and a half long, for which this action was brought.
    Abstract of the Decision.
    1. Assault and battery, § 22

      —when verdict is not excessive. In an action for assault and battery, evidence held sufficient to sustain a verdict for eight hundred dollars damages for personal injuries, where such injuries required medical attendance at times for two weeks and prevented plaintiff from practicing his profession as a dentist for some time, and left a permanent scar and caused pain at times for six months after the injuries were sustained, and grounds for exemplary damages appeared.
    2. Assault and battery, § 22*—when party is entitled to instruction on exemplary damages. Every provocation for an assault does not deprive the party assaulted of a right to exemplary damages for such assault, and the question is one for the jury upon which such party is entitled to have them instructed.
    R. A. Green and H. L. Richolson, for appellant.
    H. M. Kelly, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Harlan Watson, Appellee, v. W. B. Lozier, Appellant.
    Gen. No. 6,388.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 800

      —what Mil of exceptions must contain for purpose of review. A contention on appeal that the trial court erred in overruling a motion for a continuance certified to by the clerk of court, but not shown, nor any proof in support thereof or denial of such motion, in the bill of exceptions, is not presented for review by the Appellate Court.
    Appeal from the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Action of forcible detainer by Harlan Watson, plaintiff, against W. B. Lozier, defendant, to recover possession of one hundred acres of land. From a judgment for plaintiff, defendant appeals.
    The defendant by lease dated October 20, 1914, leased the premises involved for the year from March 1, 1915 to March 1, 1916. The plaintiff by lease dated October 20,1915, leased the premises for the year from March 1,1916 to March 1,1917. The defendant did not surrender possession March 1, 1916, and the plaintiff after serving him with written demand for possession brought this action.
    Hanley & Cox and Safford & Graham, for appellant.
    Brown & Soule, for appellee.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

2. Forcible entry and detainer, § 79 —when lease to subsequent lessee is admissible in action by such lessee. Under clause 4 of section 2 of the Forcible Entry and Detainer Act (J. & A. If 5843), providing that the person entitled to the possession of lands may be restored thereto by suit under the act, where any lessee holds possession without right after determination of the lease by its own terms, the lessee of a subsequent lease of the lands is entitled to offer his lease in evidence to show his right of possession, in an action under such act.

3. Forcible entry and detainer, § 47*—when lessee of subsequent lease is a grantee. The lessee of a subsequent lease suing for possession of the lands, the lessee of a prior lease holding over after the expiration of the term according to his lease, is a grantee within the meaning of section 14 of the Landlord and Tenant Act (J. & A. 7052), providing that the assignee of the lessor shall have the same remedy for nonperformance of any agreement in the lease as his grantor or lessor might have had.


text:
    Irene Faletti, Administratrix, Appellee, v. W. L. Child, Appellant.
    Gen. No. 6,396.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Putnam county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Action by Irene Faletti, administratrix de bonis non of the estate of Edward McCabe, deceased, plaintiff, against W. L. Child, defendant, to recover for money loaned by the deceased to the defendant and interest thereon and money collected by the defendant in the lifetime of the deceased from parties owing him and which had not been accounted for or paid to him. From a judgment for plaintiff for $795.83, defendant appeals.
    Abstract of the Decision.
    1. Assumpsit, action of, § 93

      —when verdict deemed to be based upon amount of check alleged to represent money loaned. In an action to recover for money in part loaned to and in part collected by the defendant, where the verdict was for an amount exactly equal to that of a certain check stated to represent the money loaned and interest thereon and was excessive as a valuation of two teams of mules, the proceeds of the sale of which the defendant collected, and there being no other proof in the case, held that such verdict should be taken as upon such check alone.
    2. Assumpsit, action of, § 87*—what presumption arises from receipt of check from deceased person. The mere fact that the defendant received from the plaintiff’s intestate a certain check and received the money thereon could not create the presumption that the intestate loaned the defendant the amount of the check, but the ordinary presumption would be that the money was paid because it was due and owing by the intestate to the defendant, in an action to recover such amount.
    3. Assumpsit, action of, § 89*—when evidence insufficient to show that check is for money loaned. Evidence held insufficient to sustain the finding that a certain check given by plaintiff’s intestate to the defendant, who received the money thereon, was for money loaned to the defendant, in an action to recover the amount of such check.
    A bill of particulars filed showed an item of a check for $600 as for money loaned to the defendant and cashed by him, and another item for money arising from the sale by the defendant of two teams of mules belonging to the deceased.
    George W. Hunt, for appellant; C. B. Chapman and Butters & Clark, of counsel.
    Barnes, Magoon & J. L. Murphy, for appellee.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

4. Assumpsit, action of, § 92 —when instruction is misleading. An instruction that a $600 item in a hill of particulars was based upon a certain check for that amount in evidence, held misleading , in an action to recover for money loaned in which such bill of par- ¡ ticulars was filed, as in order to sustain that item it would be necessary not merely to show the check but also that it was an advancement or loan to the defendant.


text:
    Emma Griggs, Appellee, v. A. R. Griggs et al. John G. Petteys, Appellant.
    Gen. No. 6,403.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Suit by Emma Griggs, complainant, against A. R. Griggs and Ms attorney, John G. Petteys, defendants, for injunction. From an order granting a temporary injunction against the defendant John G. Petteys, he appeals.
    The defendant A. R. Griggs, being a nonresident of the State of Illinois, was not served with summons.
    John G. Petteys, pro se and Charles F. Hanson, for appellant.
    F. H. Hayes, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 864 —what abstract must contain. Any error alleged on appeal must be shown in the abstract, and the reviewing court will not search the record to find some error not shown therein.

2. Appeal and error, § 799*—how petitions and motions for change of venue, affidavits and rulings of court may be made part of record. Petitions and motions for a change of venue and affidavits in support thereof and the ruling of the court thereon can only be made a part of the record by being incorporated in the bill of exceptions or certificate of evidence, both in chancery and at law, and a mere showing in the abstract that a petition for a change of venue was filed and denied would be insufficient to secure a review of such denial.

3. Injunction, § 48*—when temporary injunction against ousting landlord from premises in favor of lessee is correct. Where a bill was filed alleging that complainant had been induced by defendants to sign a paper represented by them to be a power of attorney from her to collect rents of her property for a short time in order to secure payment to them for obtaining the release of her son from an asylum, that she relied on such representations in signing such paper, that she afterwards borrowed the money elsewhere and paid such expenses, that she subsequently learned said paper was in fact a twenty-year lease of said premises to one of defendants, that the other of the defendants had as attorney for this one collected the rents and retained part thereof after paying her a part, that the agreed rent in such lease had not been paid, and that the lessee was endeavoring to oust her from possession of the premises, held that a temporary injunction was authorized, notwithstanding one was not specifically prayed for in terms.


author: Mr. Presiding Justice McSurely

text:
    City of Chicago, Defendant in Error, v. Victor Bisso, Plaintiff in Error.
    Gen. No. 22,064.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed February 19, 1917.
    Statement of the Case.
    Complaint by the City of Chicago, plaintiff, against Victor Bisso, defendant, charging him with keeping a disorderly house in violation of section 2019 of the Municipal Code of Chicago. From a judgment of conviction and fine of one hundred dollars, defendant brings error.
    William L. Martin, for plaintiff in error.
    Harry B. Miller, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal Court of Chicago, § 26 —when denial of motion for change of venue is not correctly preserved for review. Denial of a motion for a change of venue, in a case under the Municipal Court Act, held not properly preserved for review under section 23 of that Act (J. & A. If 3335), by a purported bill of exceptions in the absence of a correct statement as required by such section.

2. Attorney and client, § 11*—when affidavit may not be sworn to before attorney. An affidavit in support of a motion for a change of venue cannot be sworn to before the party’s attorney in the case.

3. Municipal corporations, § 867*—when presumed that verdict for violation of ordinance is correct. Judicial notice will not be taken in the Appellate Court of a municipal ordinance not before it, and the correctness of a verdict for a violation of such ordinance will be presumed.

4. Disorderly house, § 2*—when evidence is sufficient to sustain conviction for keeping. The evidence held to sustain the charge, in a prosecution for keeping a disorderly house in violation of a municipal ordinance.

5. Appeal and error, § 1514*—when curtailing of time for argument of motion is harmless error. It is not reversible error for a court to curtail time for argument of a motion for a new trial in a case.


text:
    City of Chicago, Defendant in Error, v. Victor Bisso, Plaintiif in Error.
    Gen. No. 22,065.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmux, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed February 19, 1917.
    Statement of the Case.
    Complaint by the City of Chicago, plaintiff, against Victor Bisso, defendant, charging him with violation of section 1539 of the Municipal Code of Chicago. From a judgment of conviction, defendant brings error.
    The decision in this case is governed by City of Chicago v. Bisso, ante, p. 162.
    W. L. Martin, for plaintiff in error.
    Harry B. Miller, for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    City of Chicago, Defendant in Error, v. Emma Simonetti, Plaintiff in Error.
    Gen. No. 22,066.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed February 19, 1917.
    Statement of the Case.
    Complaint by the City of Chicago, plaintiff, against Emma Simonetti, defendant, charging her with keeping a dramshop and selling liquor in less quantities than one gallon, in violation of section 1539 of the Municipal Code of Chicago. From a judgment of conviction and fine of fifty dollars, defendant brings error. See also, City of Chicago v. Simonetti, 203 111. App. 279.
    William L. Martin, for plaintiff in error.
    Harry B. Miller, for defendant in error.

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 26

      —when denial of motion for change of venue not correctly preserved for review. Denial of a motion for a change of venue, in a case under the Municipal Court Act, held not properly preserved for review under section 23 of that Act (J. & A. ¶ 3335), by a purported bill of exceptions in the absence of a correct statement as required by such section.
    2. Attorney and client, § 11*—when affidavit may not he sworn to before notary. An affidavit in support of a motion for a change of venue cannot be sworn to before the party’s attorney in the case.
    3. Municipal corporations, § 867*—when presumed that verdict for violation of ordinance is correct. Judicial notice will not be taken by the Appellate Court of a municipal ordinance not before it, and the correctness of a verdict for a violation of such ordinance will be presumed.
    4. Intoxicating liquors, § 105*—when evidence is sufficient to sustain conviction for keeping dramshop. Evidence held to sustain the charge, in a prosecution for keeping a dramshop in violation of a municipal ordinance.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Chicago & Riverdale Lumber Company, Defendant in Error, v. Edward P. Quinliven, Plaintiff in Error.
    Gen. No. 22,550.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mechanics’ liens, § 73

      —when payment by owner to contractor is in fraud of subcontractor’s claim. In an action under section 28 of the Mechanic’s Lien Law (J. & A. ¶ 7166), against the owner of a building and a contractor for work and materials in remodeling the building to recover the. price of materials sold to such contractor, where the owner, after notice of the plaintiff’s claim, paid the contractor, within ten days after the plaintiff had delivered the materials to him, the full amount due the contractor under their contract without deducting the price of such materials due the plaintiff, and without taking a contractor’s statement under the statute, held that such payment was in fraud of the plaintiff’s claim.

      Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 19, 1917.
    Statement of the Case.
    Action by Chicago & Riverdale Lumber Company, a corporation, plaintiff, against Edward P. Quinliven et al., defendants, under section 28 of the Mechanic’s Lien Law (J. & A. ([ 7166), to recover the price of lumber sold to a general contractor to be used in remodeling the defendant Quinliven’s house under a contract between him and said contractor, who were sued jointly in said action. From a judgment for plaintiff for $370.07 upon a directed verdict, defendant Quin-liven, by order of severance, alone brings error.
    Timothy J. Fell, for plaintiff in error; Herman P. Haase, of counsel.
    Archibald Cattell, for defendant in error; Carl A. Waldron, of counsel.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Mechanics’ liens, § 73 —when subcontractor is not estopped to sue owner and contractor. A subcontractor is not estopped to sue the owner of a building and a contractor having a contract for the remodeling thereof by the conduct of his agent where the owner, after notice of the subcontractor’s claim, pays the contractor within ten days after delivery of materials to him, without deducting the subcontractor’s claim, although an agent of the subcontractor had previously told the owner to make such payment to the contractor and notify him, which the owner had done.


text:
    Frederick Bausman for use of W. J. Selleck and Maria Borden, Executrix, Appellee, v. John A. Mead and Carl B. Hinsman, Appellants.
    Gen. No. 22,615.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and judgment here.
    Opinion filed February 19, 1917.
    Statement of the Case.
    Action by Frederick Bausman for the use of W. J. Selleck and Maria Borden, executrix of the estate of Hamilton Borden, deceased, plaintiff, against John A. Mead and Carl B. Hinsman, defendants, to recover upon a bond given by the defendant Mead as principal and the defendant Hinsman as surety. From a judgment for plaintiff for $6,885, defendants appeal.
    Abstract of the Decision.
    Bonds, § 18

      —when bond given by purchaser at judicial sale of bankrupt property deemed to be for creditors other than holders of mortgage bonds. Where the purchaser at a judicial sale of a bankrupt’s property gave in part payment of the purchase price in lieu of cash certain bonds held by him secured by mortgage upon the property, with his bond, with surety, conditioned to pay. to any person, firm or corporation then or -thereafter becoming legal creditors of the bankrupt whatever pro rata sum might be adjudged due them from the proceeds of such property the same as would have been paid them as a dividend or otherwise had the purchase price been paid in cash instead of in said mortgage bonds, provided the question of their equality or priority with or over said mortgage bonds should be established in such bankruptcy suit by a certain date, held, in an action on such bond brought by other holders of mortgage bonds of the same issue upon the property, to recover the penalty thereof against the principal and surety therein, that such bond was not given to secure such other holders of the mortgage bonds but to secure other creditors.
    Opinion upon a former trial in same ease may be found in 182 Ill. App. 35. The case was redocketed and tried in consolidation with two other cases brought on the same cause of action by the court without a jury.
    Bayley & Webster, for appellants.
    Cratty Bros. & Flatau and Charles Hudson, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.