author: Mr. Presiding Justice Thompson

text:
    The People of the State of Illinois, Appellant, v. George M. Jamison et al., Appellees.
    Gen. No. 4,962.
    1. Pasties—who may, who may not, he joined in action upon joint and several ohligation. At common law, on a joint and several obligation executed by more than two persons, one or all of the surviving obligors may be sued, but not an intermediate number.
    2. Appeals and errors—what not final judgment. In an action upon a joint and several obligation a judgment against part of the defendants is not final so long as the action remains pending as to other defendants.
    Action of debt. Appeal from the Circuit Court of Henderson county; the Hon. John A. Gbat, Judge, presiding.
    Heard in this court at the April term, 1908.
    Appeal dismissed.
    Opinion filed April 15, 1908.
    W. H. Stead and James W. Gordon, for appellant; L. H. Hanna, of counsel.
    Safford & Graham and Charles J. Scofield, for' appellees.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action of debt brought on the collector’s bond of Truman C. Allen, sheriff and ex officio collector of Henderson county, against Truman 0. Allen, Bobert Hodson, George P. Galbraith, George M. Jami-son, Henry N. Ives, Thomas Maley, C. Henry Brainard, John Marshall, Bobert W. Marshall, James G. Hogue, William Adair, together with Mary Thompson and G. M. McGaw, administrators of the estate of Joseph Thompson, deceased, and Edward Stine, executor of the last will of John Stine, deceased, to recover certain tax moneys alleged to have been paid to said Truman 0. Allen by his predecessor in office, Joseph P. Morey, and to have been received by Allen by virtue of his office as collector as the successor of Morey. The record shows that process of summons was duly served upon Truman C. Allen, Bobert Hodson, Henry N. Ives, George P. Galbraith, Thomas Maley, C. Henry Brainard, William Adair, John Marshall, Bobert W. Marshall, Edward Stine, executor of the last will of John Stine, and George M. McGaw and Mary Thompson, administrators of the estate of Joseph Thompson, deceased. The declaration avers that the bond sued on was executed by Truman. C. Allen, Bobert Hodson, George M. Jamison, George W. Ives, George P. Galbraith, Thomas Maley, C. Henry Brainard, Joseph Thompson, John Stine, John Marshall, Bobert W. Marshall, James C. Hogue and William Adair. It further avers that since the execution of the writing obligatory the said Joseph Thompson died intestate and that Mary Thompson and G. M. McGaw were duly appointed administrators of the estate of said Joseph Thompson, deceased, and that John Stine one of the makers of said writing obligatory died testate and that Edward Stine has been appointed and has qualified as executor of said John Stine, deceased, and said executor and administrators are made parties defendant with the surviving obligors.

Of the defendants, George M. Jamison, Robert Hod-son, Henry N. Ives, George F. Galbraith, C. Henry Brainard, Edward Stine, executor of John Stine, John Marshall, Robert W. Marshall, James C. Hogue and William Adair filed a general and special demurrer to the declaration. The remaining defendants, Truman C. Allen, the principal obligor, and Thomas Maley, one of the sureties and the personal representatives of Joseph Thompson, a deceased surety, did not join in the demurrer. No default or judgment has been entered as to the defendants who did not join in the demurrer, and the suit is still pending and undetermined in the Circuit Court against the defendants not joining in the demurrer. The demurrer was disposed of by sustaining it and judgment was entered that the defendants demurring go hence without day. From that judgment this appeal is prosecuted by the plaintiff.

A motion has been made by the defendants in whose favor judgment was rendered on the demurrer to dismiss this appeal on the ground that the appeal is premature, that the judgment of the Circuit Court is not a final judgment, part of the ease being still pending and undetermined in the Circuit Court.

The rule is well settled that at common law on a joint and several obligation executed by more than two persons, one or all of the surviving obligors may be sued, but not an intermediate number. Kaestner v. First Nat. Bnk., 170 Ill. 322; Cummings v. People, 50 Ill. 132; Scanlon v. People, 95 Ill. App. 348. In the present case the principal obligor, Truman C. Allen, and Thomas Maley, a surviving surety, are parties and have been served with process and the case is still pending against them in the Circuit Court, Appeals were not known to the common law and can be taken only when the statute has conferred the right. Sharples v. Barker, 100 Ill. App. 108. The statute, section 91 of the Practice Act, provides that “appeals shall lie to and writs of error from the Appellate or Supreme Courts, as may be allowed by law, to review the final judgments, orders or decrees of "any of the Circuit Courts” etc. A judgment in an action ex contractu, where all the obligors are sued, which leaves the case pending and undisposed of as to the principal and one of the sureties, cannot be said to be a final judgment. Thompson v. Follansbee, 55 Ill. 427; International Bank v. Jenkins, 109 Ill. 219; Maley v. L. E. & W. R. R. Co., 84 Ill. App. 55; Lewis v. New Music Hall Co., 100 Ill. App. 415; 1 Black on Judgments, sections 21-23; 1 Freeman on Judgments, section 27. We are not aware of any deviation or judicial relaxation of the statute in cases at law in this state, although some cases in chancery lay down the rule that in cases of great hardship an appeal might be allowed even if the case is undetermined as to some parties. Dillon v. Griswold, 118 Ill. App. 627. If this appeal can be prosecuted at this time, then at some future time the remainder of the case may be appealed, and the case will be tried by piecemeal. We are satisfied this appeal is premature, and it is therefore dismissed.

Appeal dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    Frank Haigh, Appellant, v. John T. Lenfesty et al., Appellees.
    Gen. No. 4,980.
    Appeals and errors—when freehold involved. A freehold is involved where the issue is as to the existence or non-existence of the right perpetually to maintain a dam of a certain height upon the land of another.
    Bill in chancery. Appeal from the Circuit Court of Kankakee county; the Hon. Frank L. Hooper, Judge, presiding.
    Heard in this court at the April term, 1908.
    Transferred to Supreme Court.
    Opinion filed May 7, 1908.
    Statement by the Court. This is a bill in chancery brought by Frank Haigh, appellant, against John T. Lenfesty, Edwin E. Beardsley and Olive Beardsley, appellees, praying that the defendants be enjoined from constructing or maintaining a dam on the Kankakee river and from raising and backing up water on certain land to the damage of complainant. The allegations of the bill so far as it is necessary to state them are these; that complainant is the owner of certain lots and one hundred and eighty acres of land in the township of Aroma, Kankakee county, and has owned and been in possession thereof for more than seven years; that complainant’s grantors had been the owners and in possession of said lands for over twenty years; that said lands adjoin the north bank of the Kankakee river and that complainant owns to the center of said river; that the defendants are the owners of certain real estate lying on both sides of said river; that there has been located on the lands of the defendants for more than thirty years certain mills operated by water power; that the power was furnished by a dam constructed across the river in 1852; that said dam remained on said premises of defendants until 1903 backing water up the river adjoining and opposite the premises of complainant. It is further alleged that the land of complainant being further up the river than the land of the defendants, that in August, 1903, the defendants constructed another dam fifty feet down the stream, thereby raising the water at least twelve inches higher than the old dam caused water to be raised in the river and to a greater height than it had ever been raised and that by reason of the construction of the new dam a large portion of complainant’s farm was entirely submerged by the new dam backing up water further than the old dam backed water; that complainant had expended large sums of money in digging drains and his drainage is injured and the producing qualities of his farm reduced by said, overflowing, and that complainant will sustain irreparable damage if defendants are permitted to maintain said dam, and prays that defendants be restrained from maintaining a dam “except at the same place and of the same height as the dam constructed prior to 1903 and from raising the water on complainant’s land to any greater height than it had been maintained for twenty years prior to 1903” and that the dam built in 1903 be ordered removed.
    The defendants answered the bill denying that complainant is the owner of the land claimed by him or that he had been in possession of the same for seven years or that his grantors had been for more than twenty years. The answer admits the construction of the dam in 1852, and that it has remained from thence to the present time and that the dam built in 1852 backed the water up the river not only to and adjoining the alleged premises of complainant but further up the river and beyond the alleged premises of complainant. The defendants admit the construction of a new dam in 1903 upon their own premises a few feet further down the stream than the old dam, which they assert remains in the river at the place where it was erected more than forty years ago, and deny that the dam constructed in 1903 was or is any higher than the dam built in 1852, or that the new dam raises the water any higher than it was raised by the old dam. The defendants in their answer say that the original dam was constructed on premises owned by the defendants for the last thirty years, and that the dam erected in 1903 is on the premises of the defendants and is not higher than the old dam still in the river and further say they have had for twenty years the legal right to erect on said premises belonging to these defendants a dam across said river to the height of, to wit, seven feet above the bed of the river as it existed thirty years ago and “have the further legal right to back the water up upon the alleged premises of complainant to the extent it may be backed up by the erection and maintenance of a dam upon the premises of the defendants of the height of seven feet by virtue of said right having been conveyed to these defendants and their grantors by the original owners of the alleged premises of complainant” and deny the right of complainant to the relief sought. A replication was filed. After a trial on the pleadings and evidence adduced in open court a decree was entered finding the equities against the complainant and dismissing the bill. The complainant appeals to this court.
    Small & Brook, for appellant.
    W. B. Hunter, for appellees.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

From both the pleadings and the evidence it appears that the question involved in this appeal is the right of .the appellees, who own land on the Kankakee river lower down the river and adjoining the premises of appellant, to back the water of the river upon the premises of appellant by the construction of a dam upon their own premises. Appellees in their answer claim the right under a grant by a deed to their grantors made by grantors of appellant while said grantors of appellant owned said overflowed premises, and by user under such grant. The evidence shows that in 1852, one Wylie, who at that time owned the premises now owned by appellant, granted the right to build on the premises now owned by appellees a dam of the height of six feet above the bed of the river, and that appellees have become the owners of said grant. The appellees by their defense claim a perpetual easement in the lands of appellant. Such an interest in land is a freehold. Chaplin v. Commissioners of Highways, 126 Ill. 264 (overruling Lucan v. Cadwallader, 114 Ill. 285, and Eckhart v. Irons, id. 469); Perry v. Bozarth, 198 Ill. 328; Foote v. Marggraf, 233 Ill. 48; 10 Am. & Eng. Ency. of Law, 398 (2nd Ed.); 1 Preston on Estates, 13; Hewlins v. Shippam, 5 Barn. & Cress, 221. The right granted by deed to maintain a dam perpetually at a certain height and thereby cover the land of another to the extent that a dam of the height contended for would flood it is an easement that involves a freehold.

This court has no jurisdiction of a case involving a freehold and the clerk is therefore directed under section 102 of the Practice Act of 1907 to transmit the transcript and files of this case to the Supreme Court.

Transferred to Supreme Court.


author: Mr. Presiding Justice Baker

text:
    William Maegerlein, Appellee, v. City of Chicago, Appellant.
    Gen. No. 13,978.
    1. Pleading—when propriety of filing of plea admitted. A plaintiff by demurring to a plea of the Statute of Limitations to an amended count admits that such plea is properly filed.
    2. Pleading—when original count withdrawn. By filing with leave of court an amended count, complete in itself, containing no reference to the original count which it is designed to supplant, such original count is withdrawn and is admitted to be superseded by the new count filed.
    3. Pleading—when defendant entitled to plead de novo. Where one count of a declaration is by intendment withdrawn and a new count substituted therefor, the defendant is entitled to plead de novo.

    4. Pleading—when defendant entitled to plead de novo. Where a material amendment is made in a declaration,, the defendant is entitled to plead de novo.

    5. Pleading—when amendment relates bade to the beginning of the action. The declaration in a cause relates back to the beginning of a suit, and where an amendment of a declaration is a mere restatement of the cause of action set up in the declaration, it relates back to the beginning of the suit.
    6. Pleading—when amendment does not relate bade to beginning of action. An amendment which introduces a new cause of action does not relate back to the beginning of the suit so as to stop the running of the Statute of Limitations but is the equivalent of a new suit on such cause of action and the statute continues to run until the amendment is filed.
    7. Statute oe Limitations—when bars cause of action set up in additional count. Held, that the cause of action set up in the new count filed in this case was not the same cause of action originally sued upon, that the right to plead de novo to such new count was absolute in the defendant, and that the plea of the Statute of Limitations interposed by the defendant was a complete bar to the action.
    8. Pleading—when question whether new count states a new cause of action is raised and when not raised by demurrer to the plea of the Statute of Limitations to such count. If the plea in such case is, in form, that the cause of action did not arise within, etc., before the filing of the count, the question is raised by demurrer to the plea of the statute. If the plea is, in form, that the cause of action did not arise within, etc., before the beginning of the suit, the question is not raised by demurrer to such plea, but is presented on the trial, where the plea is traversed, as a question of law.
    Action on the case. Appeal from the Circuit Court of Cook county; the Hon. Richabd W. Clietobd, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed with finding of facts.
    Opinion filed June 2, 1908.
    George W. Miller, Egbert N. Holt and Thomas J. Sutherland, for appellant; Edward J. Brundage, of counsel.
    Felsenthal, Foreman & Beckwith, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $3,990, recovered in an action on the case for damages to the personal property of the plaintiff. The question presented relates to the plea of the five years’ Statute of Limitations to the amended third count of the declaration.

The original declaration, filed February 4,1904, contains two counts, each alleging that plaintiff was the owner of certain lots fronting on Mary street; that defendant wrongfully, etc., constructed an embankment across said Mary street, and thereby plaintiff’s said real estate was damaged, etc. To this declaration the defendant pleaded not guilty. March 12, 1907, an order was made giving plaintiff leave to amend his declaration instanter, and providing, “that the plea to the original declaration stand as pleaded to the declaration as amended.” The same day, plaintiff filed an “amended declaration” containing three counts, the first two of which are in substance the same as the counts of the original declaration. The third count repeats the allegations of the first and second counts in relation to the ownership by plaintiff of said lots and the construction of an embankment across Mary street by defendant in 1900; alleges that prior to said time, defendant had provided said Mary street with sewer pipes, manholes, catch basins, etc., to carry off the water from said street, and that defendant, in the year 1900, wrongfully, etc., “closed all sewer connections in front of plaintiff’s premises, whereby the natural flow of water had been drained off from said street and from adjoining premises.” It then alleges that in a building on said premises, the plaintiff had stored certain articles of personal property which were greatly damaged, etc., by water which, by reason of the premises, ran into the basement of plaintiff’s said building.

The trial began April 22, 1907, before a jury.

April 25, by leave of court, plaintiff filed another count, which begins as follows: “And now comes the plaintiff, by his counsel, and amends the third count of his declaration, heretofore filed by him, so as to read as follows.” Then follows a count, complete in itself and containing no reference to the original third count. The count is a substantial repetition of the original third count filed March 12, except that it alleges that defendant constructed said embankment in 1901, and then: “wrongfully removed, closed and obstructed all catch basins, manholes and sewer-connections in said Mary street in front of plaintiff’s premises, whereby the natural flow of water had been drained off from said street and from adjoining premises.” The wrongful act alleged in the original third count was that defendant, “wrongfully closed and obstructed all sewer connections,” and that in the amended third count was, that it, “wrongfully removed, closed and obstructed all catch basins, manholes and sewer connections.”

To the amended third count the defendant filed a plea averring that the causes of action in said amended third count mentioned, “did not, nor did either of them, accrue to the plaintiff at any time within five years next before the commencement of this suit, in manner and form as the plaintiff has above complained against it, the defendant, in said third count as amended,” etc. To this plea the plaintiff filed a general demurrer which was sustained.

It appears from the bill of exceptions that the plaintiff “abandoned” on the trial the first two counts of his amended declaration.

That the third count of the declaration stated a new cause of action against which the statute had run before that count was filed, is not controverted. In appellee’s brief it is said: “March 12, 1907, the declaration was amended by the addition of a third count in which the cause of action was practically changed. Had appellant then interposed the plea of the Statute of Limitations to the declaration as amended, such a plea would have been a good defense, but it did not. Instead, it waived the plea of the Statute of Limitations and filed the plea of the general issue to the amended declaration.” But plaintiff filed, April 25, an amended third count, to which on the same day defendant pleaded the five years’ statute. The questions in the case are as to the right of the defendant to plead the statute to the amended third count, and whether the plea of the statute to that count is a good plea to the count. By demurring to the plea of the statute to the amended third count, the plaintiff admitted that the plea was properly filed and raised the question only as to the effect of such plea. By filing, with the leave of the court, an amended third count, complete in itself, containing no reference to the original third count, the original third count was withdrawn, and was superseded by such amended third count. 1 Ency. of Pl. & Pr., 625; Ray v. Fredigal, 3 Pa. S. 221. To such count the defendant had the right to plead de novo. If the new matter set ont in the amended third count had been added to the original third count by amendment, the count would thereby be amended in a material respect, and the defendant would have the absolute right to plead to such count as amended. Griswold v. Shaw, 79 Ill. 449. We think that the defendant had the right to plead the statute to the amended third count.

The declaration in a cause relates back to the beginning of the suit. Where an amendment of the declaration is a mere restatement of a cause of action stated in the declaration, it relates back to «the beginning of the suit.

An amendment which introduces a new cause of action does not relate back to the beginning of the suit so as to stop the running of the Statute of Limitations, but is the equivalent of a new suit on such cause of action, and the statute continues to run until the amendment is filed. Eylenfeldt v. Ill. Steel Co., 165 Ill. 185.

Where the plea of the Statute of Limitations to a new or amended count or narr. is in form, that the cause of action, etc., did not accrue within, etc., prior to the filing of such new or amended count or narr., a demurrer to such plea raises the question whether such new or amended count or narr. sets up a new cause of action or only presents by way of restatement the same cause of action which was set up in the original declaration. If the new or amended count or narr. only restates a cause of action stated in the original declaration and therefore relates back to the beginning of the suit, the plea that the cause of action did not arise within, etc., prior to the filing of such new or amended count or narr. is no answer to'' the cause of action so set up. But if such new or amended count sets up a new cause of action and is therefore, as to such cause of action, the beginning of the suit, then such plea of the appropriate Statute of Limitations is a good plea.

Where the plea of the statute to a new or amended count or narr. is in form that that the cause of action did not arise within etc. prior to the beginning of the suit, a demurrer to the plea does not raise the question whether such new or amended count, or narr., sets up a new cause of action, or only restates a cause of action stated in the original declaration, hut only the question whether the cause of action set up in such new or amended count or narr. is barred under the statute by the time which the plea alleg’es elapsed between the time when the cause of action accrued and the beginning of the suit. But upon the trial of the issue made by such plea and a traverse thereof, the .same question of law is presented that arises upon demurrer to a plea which avers that the causes of action, etc., did not accrue within etc. prior to the filing of such new or amended count or narr. In either case the court determines, by inspection and comparison of the original declaration and the new or amended count or narr., the question whether such new count or narr. sets up a new cause of action, or only restates a cause of action set up in the original declaration. In the one case it sustains or overrules the demurrer, as it is of opinion that the new or amended count or narr. restates a cause of action stated in the original declaration or sets up a new cause of action. In the other case the court declares as a matter of law that the suit was begun when the praecipe was filed, or when the new or amended count was filed, as it is of opinion that the new or amended count or narr. restates a cause of action set up in the original declaration, or sets up a new cause of action.

In I. C. R. R. Co. v. Cobb, 64 Ill. 140; N. C. R. M. Co. v. Monka, 107 id. 342; Phelps v. I. C. R. R. Co., 94 id. 548; C., B. & Q. R. R. Co. v. Jones, 149 id. 397; Fish v. Farwell, 160 id. 236, and I. C. R. R. Co. v. Campbell, 170 id. 163, the plea in each case of the Statute of Limitations to the new or amended count or narr. was, in form, that the cause of action did not accrue within, etc., prior to the filing of such new or amended count or narr. In each case a demurrer to the plea was interposed and it was held that the demurrer was properly overruled where a new cause of action was set up in such new or amended count or narr., and properly sustained where the cause of action set up in the original declaration was only restated in such new or amended count or narr.

In Secord-Hopkins Co. v. Lincoln, 173 Ill. 357, S. C. sub nom. Pullman v. Secord-Hopkins Co., 73 Ill. App. 30, the plea wás that, “the cause of action in the amended declaration did not accrue to the plaintiff within five years before the commencement of the suit.” Upon this plea issue was joined. The plaintiff had judgment in the Circuit Court. Upon appeal it was held that the amended declaration set up a new cause of action to which the statute pleaded was a complete defense, and the judgment was reversed with a finding of facts that the promises set forth in the amended declaration were made more than five years prior to the filing of the amended declaration, and the cause was not remanded. Upon a further appeal to the Supreme Court the judgment of the Appellate Court was affirmed.

In this case the plea was pleaded to the third count of the declaration as amended, and averred that the cause of action in that count mentioned did not accrue' to the plaintiff within five years, “next before the commencement of this suit in manner and form as the plaintiff has above complained against it, the defendant, in said third count as amended.”

We think that even if the amended third count' had presented merely a restatement of a cause of action stated in the original declaration, the plea would be a good plea and the demurrer to it, in that case, should have been overruled. But that is a question not necessary to be decided. The cause of action set up in the amended third count was a new cause of action; the defendant had the right to plead the Statute of Limitations to that count, and it pleaded it promptly. The plea presented a bar to the count, and the demurrer to it should have been overruled.

Upon the trial of an issue made by a traverse of the plea, it would be the duty of the court to declare either that the suit, as to the cause of action set up in the amended third count, was begun April 25, 1907, when that count was filed, or March 12, 1907, when the original third count was filed and the wrongful acts of the defendant averred in either count were done and committed in 1901, more than five years prior to the filing of the original third count, and were therefore barred by the statute when that count was filed.

The usual practice in a case where a demurrer to a plea presenting a good defense to the declaration has been sustained is, no doubt, to reverse with directions to overrule the demurrer. But in this case, where appellee has admitted in his brief that the plea of the five years’ Statute of Limitations would have been a good defense to the original third count, if pleaded thereto, we are unable to perceive any sufficient reason for remanding the cause, either with or without such directions.

The wrongful acts of the defendant averred in the third count and in the third amended count of the declaration were done and committed in 1901, more than five years prior to the filing of the third count. The causes of action arising therefrom were barred by the statute on March 12, 1907, when the original third count was filed. It is then not material whether such new cause of action be regarded as introduced in and by the original third count or in and by the amended third count. If in and by the original third count and the count filed April 25th be regarded as an amendment to that count, and not as an amended count, still the amendment being in a material respect, gave the defendant, as we have seen, the right to plead the statute to the count as amended. In either case the right to plead the statute is clear; in either case the statute was properly pleaded; in either case the bar of the statute is complete.

It is manifest that there can be no recovery under either the original or amended third count, for the Statute of Limitations is an unanswerable bar to the cause of action set up therein, and the first and second counts were abandoned by the plaintiff. The judgment will therefore be reversed with a finding of facts, and the cause will not be remanded.

Reversed with finding of facts.


text:
    Fannie Klugman, Appellee, v. Sanitary Laundry Company, Appellant.
    Gen. No. 13,989.
    1. Amendments and jeofails—lohen amended declaration relates baclc to the beginning of the suit; when not. The original declaration, by fiction of law, relates back to the beginning of the suit; the amended declaration, if it presents a re-statement of the cause of action set out in the original declaration, also relates back to the beginning of the suit; if the cause of action set out in the amended declaration is a new cause of action and not a mere re-statement of the cause of action set out in the original declaration, the amended declaration does not relate back to the beginning of the suit so as to stop the running of the Statute of Limitations, but is the equivalent of a new suit on such cause of action and the statute continues to run until the amended declaration is filed.
    2. Pleading—how allegation of wrong may be charged against defendant-. To state a cause of action against a defendant for a wrong alleged to have been committed by his servant, the ultimate fact necessary to be pleaded is that the wrongful act was committed by such defendant. This may be alleged either by charging that the defendant, by. his servant, committed the act, or without noticing the servant, by charging that the defendant committed the act.
    3. Pleading—when dedaration does not charge assault of servant as that of defendant. A declaration alleging assault does not charge a defendant with responsibility therefor where the commission of such assault is charged to have been made by the servant of the defendant, unless the declaration contains apt allegations setting forth that at the time of such assault such servant was acting for the defendant in the prosecution of his (the defendant’s) business and within the scope of his employment.
    4. Statute of Limitations—when amended declaration sets up

      new cause of action. An amended declaration sets up a new cause of action if the original declaration for which it is filed as a substitute stated no cause of action.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Robebt W. Weight, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed with finding of facts.
    Opinion filed June 2, 1908.
    Fulton H. Sears, for appellant; Clark Varnum, of counsel.
    Mark J. Sullivan, for appellee; John F. Mahon, of counsel.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $2,000, recovered by the plaintiff in an action on the case to recover damages alleged to have been sustained by her as the result of injuries inflicted on her person by a servant or agent of the defendant.

The only question which we deem it necessary to consider is, whether under the pleadings and evidence the two years’ Statute of Limitations is a bar to the action.

Defendant had a laundry, and one McBea collected from patrons of the laundry articles, took them to the laundry and returned them to their owners. July 15, 1903, an altercation occurred between McBea and plaintiff, at which time the injuries complained of were sustained by her. The suit was begun June 20 and the original declaration was filed June 23, 1905. To this declaration a general demurrer was filed, which was sustained and plaintiff given leave to file an amended declaration. November 20, 1905, more than two years after the alleged cause of action accrued, an amended declaration was filed. To the amended declaration the defendant pleaded that the causes of action, etc., did not accrue to the plaintiff within two years next before the commencement of the suit, and also pleaded not guilty. To the special plea the plaintiff replied, traversing the allegations of the plea.

■ The original declaration, by fiction of law, relates back to the beginning of .the suit. The amended declaration, if it presents a restatement of a cause of action, set out in the original declaration, also relates back to the beginning of the suit. If the cause of action set out in the amended declaration is a new cause of action, and not a mere restatement of the cause of action set out in the original declaration, the amended declaration does not relate back to the beginning of the suit so as to stop the running of the Statute of Limitations, but is the equivalent of a new suit on such cause of action, and the statute continues to run until the amended declaration is filed. Eylenfeldt v. Ill. Steel Co., 165 Ill. 185.

Upon the trial of the issue made by the special plea and the traverse thereof, two questions were presented: the question when the suit was begun as to the cause of action set out in the amended declaration, which was a question of law for the court, and the question when the cause of action accrued, which was a question of fact for the jury-. It is not controverted that the cause of action accrued July 15,1903.

The action is barred in two years. The amended declaration was filed more than two years after the cause of action accrued. If therefore the original declaration failed to state a cause of action against the defendant, the Statute of Limitations is an unanswerable bar to the cause of action set up in the amended declaration. Eylenfeldt v. Ill. Steel Co., supra.

To state a cause of action against the defendant for a wrong committed by his servant, the ultimate fact necessary to be alleged is, that the wrongful act was committed by the defendant. This may be alleged either by alleging that the defendant by his servant committed the act, or without noticing the servant, by alleging that the defendant committed the act. 2 Chitty Plead., 708, Note n.

A declaration that fails to allege in terms that the wrongful act was committed by the defendant, must allege facts from which the conclusion arises that the wrongful act of the servant of the defendant, set out in the declaration, was an act within the scope of the servant’s employment, and done in the prosecution of the business of the defendant. The original declaration alleged that defendant operated a laundry and employed in said business a certain servant who called at the houses of customers to take and return articles of clothing; that July 15, 1903, the defendant, “through its said servant, called upon and was upon the premises of plaintiff for the purpose of delivering a certain package of clothing that had been laundered by defendant for a certain reward to be paid by plaintiff to defendant, and when the plaintiff was in the act of quietly, gently and peacefully receiving said package the defendant’s servant aforesaid suddenly, wrongfully and wilfully and without just cause accused plaintiff of attempting to defraud defendant. And said servant used vile and opprobrious language toward plaintiff, cursed and abused her in loud tones and grasped plaintiff by the shoulder, throwing plaintiff down to and upon the floor there, and struck her divers severe blows upon the face and body,” by means whereof the plaintiff was greatly injured, etc.

This is not an allegation that the assault was committed by the servant of the defendant while acting for the defendant in the prosecution of its business and within the scope of his employment. It is entirely consistent with the allegation of the declaration that the servant beat the plaintiff because he had a quarrel with her, and that he was not doing nor attempting to do any act in the prosecution of the business of the defendant, in the line of his employment, when he made the assault.

The act of an employe of a laundryman in beating a patron of his employer, is not an act so far incidental to his employment that the conclusion may be drawn that such beating was an act within the scope of the employment of such employe, and done in the proseention of the business of his employer. The test of a master’s liability is not whether a given act was done during the existence of the servant’s employment, but whether it was done in the prosecution of the master’s business.

In McCann v. Tillinghast et al., 140 Mass. 327, it was said: “A declaration alleged that ‘the defendant’s servant, B., who was at the time watching and guarding the defendant’s lumber yard and had charge thereof, unlawfully, without cause, and maliciously, made an assault upon’ the plaintiff to an extent specified, ‘all of which the said defendant’s servant did wrongfully and without cause in an unjustifiable attack upon the plaintiff, under an assumption that the plaintiff was trespassing upon the defendant’s land, and without notice to leave’.” And it was held on demurrer that the declaration did not sufficiently allege that the assault was committed by B. while acting within the scope of his employment as defendant’s servant, and the demurrer was sustained.

We are of opinion that the original declaration did not sufficiently allege that the assault upon the plaintiff was committed by the servant of the defendant while acting within the scope of his employment in the prosecution of the business of the defendant, and that it failed to state a cause of action against the defendant, and the demurrer thereto was, therefore, properly sustained. See also Davis v. Houghtelin, 33 Neb. 582; Mitchell v. Hughes, 32 Pac. Rep. 185; Hamberg v. Singer Mfg. Co., 4 N. Y. Supp. 185.

The amended declaration set up a new cause of action as to which the filing of that declaration was the beginning of the suit. To that cause of action the Statute of Limitations pleaded thereto was an unanswerable bar and the peremptory instruction to find the defendant not guilty should therefore have been given.

The judgment of the Superior Court will be reversed with a finding of facts, and the cause will not be remanded. Reversed with finding of facts.


text:
    Edward Reiter, Appellee, v. The Standard Scale & Supply Company, Appellant.
    Gen. No. 14,008.
    1. Employee and employe—what not equivalent to a discharge. A request by the employer for the resignation of his employe is not equivalent to a discharge when not so treated by the parties.
    2. Employee and employe—what sickness of latter does not justify withholding of salary. Temporary sickness of an employe does not justify the withholding of his compensation where the contract of service provides that such employe shall “give his best services for the promotion and welfare of the business" of such employer.
    3. Employee and employe—when employe entitled to salary. An employe is entitled to his compensation during a period in which he does not report for duty where he has been told not to so report until notified—no notification to report having been given and his discharge not made.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed June 2, 1908.
    Winkler, Baker & Holder, for appellant.
    Ashcraft & Ashcraft, for appellee; Charles F. Rathbun and E. M. Ashcraft, of counsel.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

In an action of assumpsit begun November 6, 1906, to recover the installments of salary of plaintiff for the months of May, June, July, August, September and October 1906, at $300 per month, plaintiff had judgment for $1,700, and the defendant appealed.

The contract of employment was originally made between plaintiff and the Standard Scale and Supply Co., Limited, but the defendant company purchased and took over the business of the other scale company, assumed said contract, and the contract is treated by both parties as if originally made between plaintiff and defendant. The contract of employment was in writing’, and provided for the employment of plaintiff by said Scale Company as manager of its branch house in Chicago, for the term beginning March 1, 1904, and ending December 31, 1911, his compensation to be $3,600 per year, payable in monthly installments of $300, and certain share in the profits of the business of said branch house; the plaintiff “to give his best services for the promotion and welfare of the business.”

Appellant contends that plaintiff was discharged by defendant July 31, 1906; that he was ill much of the time during May, June and July, and therefore cannot recover his salary for those months on the contract, because it was not performed on his part, but can only recover on a quantum meruit or quantum valebant whatever compensation he may reasonably deserve to have for such services as he did render during those months; that because of his discharge he cannot recover the monthly installments of salary specified in the contract for August, September and October, but his remedy, if any he has, is for breach of the contract.

As early as October, 1905, defendant asked for plaintiff’s resignation. This was not per se a discharge of plaintiff by defendant, and was not so treated by the parties. Plaintiff refused to resign, retained his position, discharged his duties, and was paid his salary up to and including April, 1906. Plaintiff was ill during the greater part of May and June, 1906, and July 3 defendant wrote him that it was an opportune time for him to offer his resignation. To this letter plaintiff replied July 17. Defendant then wrote plaintiff as follows:

“Tour letter of the 17th inst. replying to ours of' the 3rd inst. has been received. We regret that your management has been so unprofitable as to make it necessary for us to have your resignation. We are not liable for unearned salary during your absence. We desire to. close the matter speedily and amicably, if possible, and will be glad to have a proposition from you so as to wind up the affair at once, and only a reasonable proposition can be considered.

Awaiting your prompt reply, we are, etc.”

During plaintiff’s illness Mindrum, a salesman, was in charge of the office of defendant in Chicago. July 31, 1906, plaintiff went to the office to take charge of the business and was shown by Mindrum the following telegram:

1 Assume charge Chicago House. Refuse to recognize Mr. Reiter as manager.”

Plaintiff then collected his personal effects and left the office. The next day he received a letter from defendant, dated July 30, stating: “We repeat that it is our wish to close the matter at once and that this is the opportune time for you to offer your resignation. ’ ’

August 5, Grill, the president of the defendant company, came to Chicago and met plaintiff. Plaintiff told Grill that he was ready to go back to work, and Grill asked him to resign, and plaintiff refused to resign. He asked Grill if he should go back to the office next morning and take the management and Grill replied, “No, we want you to resign.” Two or three days later the conversation was in substance repeated. August 11, plaintiff asked Grill if he was ready to have plaintiff go to work and Grill replied, “No, we want you to resign.” Plaintiff said,1 ‘ I won’t resign. ’ ’ He asked Grill, ‘ Am I to understand that I have been discharged?” and Grill said again, “We want you to resign.” Plaintiff said, “I won’t resign. If I don’t resign, I suppose you have got to discharge me or else I will go back to work,” and Grill said, “I think you would rather resign.” Grill asked plaintiff to make a proposition, and plaintiff offered to resign and cancel the contract on payment of $5,000. Grill refused to accept the proposition and made a counter proposition which plaintiff declined to accept. This conversation occurred Saturday. At its close, plaintiff said that he would go to the office Monday and take charge to carry out his contract, and Grill said, “No, don’t come to the office until I notify you.” It was admitted that Grill, if present, would testify that he told plaintiff August 11: “that his place as manager had been filled, and that the defendant company had no further use for his services.” Plaintiff in rebuttal testified that Grill did not say that defendant had no further use for his services, but did say that he would let plaintiff know, through Mindrum, if he wanted plaintiff to go back to work Monday. Some weeks later, plaintiff reported at the office to take charge, but was not permitted to do so.

If the transaction of July 31 and the letter of July 30, stood alone, they might well be held to amount to a discharge, but those acts must be considered in connection with all the other evidence in the case. The defendant in October, 1905, asked for plaintiff’s resignation, but did not treat such request as a discharge, but paid plaintiff his salary up to the end of April, 1906. It again asked for plaintiff’s resignation July 3, 1906, but did not treat the request as a discharge, for it repeated the request July 19,1906. It did not treat those requests, or the occurrence of July 31, or the letter of July 30, 1906, as a discharge, for the president of the company came to Chicago early in August and repeatedly requested plaintiff to resign, and in answer to plaintiff’s direct question whether he was to understand that he had been discharged, only repeated the request that plaintiff resign, and according to plaintiff’s testimony at the close of the last conversation between them, in answer to plaintiff’s statement that he would report for work the next week day, told plaintiff not to come to the office until the defendant notified him to come. By each request to plaintiff to resign, defendant recognized the contract of employment as existing and in force, and the plaintiff as still in its service under said contract.

We cannot, on all the evidence in the record, say that the finding of the jury, implied by the verdict, that the plaintiff was not discharged by the defendant before the beginning of the suit, is so far against the weight of the evidence as to require a reversal of the judgment on that ground.

By the contract the plaintiff was employed for a term of nearly eight years, as the manager of defendant’s branch house in Chicago. He was ill most of the time from May 4 to July 31, 1906, and was at the office only three or four days during that time. But his illness was not of such a nature as to prevent him from transacting business at his house, and he had his mail sent there and communicated with the office by telephone. His contract required him, “to give his best services for the promotion and welfare of the business,” and there is no evidence tending to show that he did not do so. We do not think that under the evidence the defendant was entitled to any reduction from the stipulated salary of the plaintiff because of his temporary illness. Erickson v. Stone, 102 E. C. L. 248; Ellis v. Ellis, Q. B. 248.

The question of the right of an employe to recover for constructive services after his discharge is not presented on this record. The suit is for installments of salary. The declaration does not aver that plaintiff was discharged by defendant, but on the contrary, avers that he is still in the service of the defendant. If he was not discharged, but reported for duty so soon as he was able to do so and held himself in readiness to perform the duties he was employed to perform, the law will not require him to forfeit his right to the compensation agreed upon because the defendant saw fit to direct him not to enter upon the performance of those duties without notice from the defendant, and then failed to give him such notice. Berg v. Carroll, 16 Daly, 73.

No demand for salary was necessary, but it was proper for plaintiff to show that he notified defendant of his readiness to perform the contract, and we think it was not reversible error to admit plaintiff’s letters of August 20 and October 1, 1906, limited in their effect, as they were by the last instruction given for the plaintiff.

We find no reversible error in the instruction given for the plaintiff, nor in the refusal or modifications of the instructions asked by the defendant, and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Laura L. Arthur, Appellant, v. John J. Doyle et al., Appellees.
    Gen. No. 14,601.
    Appeals and errors—when appeal from Municipal Court will he dismissed. An appeal from a judgment of the Municipal Court will be dismissed where a complete transcript of the record is not filed within forty days after the order of judgment or decree appealed from is entered, no extension of the time having been granted and the incompleteness of the record not consisting merely of inadvertent or clerical omissions.
    Action of debt. Appeal from the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Appeal dismissed.
    Opinion filed June 9, 1908.
    Statement by the Court. Appellant brought in the Municipal Court of Chicago an action of debt against appellees, in which she claimed $1,500 debt and $1,500 damages, thus making her action a case of the first class. February 10, 1908, she recovered a judgment for $1,500 debt and $8 damages and costs, from which she prayed and was allowed an appeal to this court, and filed her bond. The transcript filed by her in this court March 11, 1908, was certified by the clerk of the Municipal Court to be a “complete transcript of certain proceedings in a certain cause * * * lately pending in said court wherein” appellant was plaintiff and appellees defendants. May 21st she in this court suggested á diminution of the record' and asked leave to file an additional record instanter, and her motion was denied. May 28th appellees moved to dismiss her appeal.
    Steele & Thompson, for appellant.
    No appearance by appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

Section 22 of the Municipal Court Act provides that “Authenticated copies of records of judgments, orders and decrees appealed from shall be filed in the office of the clerk of the Supreme Court, or of the Appellate Court, as the case may be, within forty days after the date of the order, judgment or decree appealed from, unless the Municipal Court, by an order entered within said forty days, shall have granted further time for the filing of the same.” Laws of 1907, 236.

Appellant did not, within forty days from the date of the judgment, obtain from the Municipal Court an order granting her further time for filing of the transcript in this court. If the transcript filed March 11th had been certified to be a complete copy of the record, and through mistake any part of the record was omitted from such transcript, then on suggestion of diminution this court would have the power to grant leave to supply the part of the record so omitted from the transcript. But the transcript filed March 11 is not certified to be a complete copy of the record, but only of “certain proceedings in the cause.”

Whether this court had the power, within forty days from the date of the judgment, to extend the time to complete the transcript, is a question not before us, for no application was made for such extension within that time.

The words “Authenticated copies of records of judgments, ’ ’ in said section 22, means copies which are certified by the clerk to be complete copies of the record. Gadwood v. Kerr, 181 Ill. 163. Appellant failed to file such copy within the time fixed by the act giving her the right to appeal, or to obtain further time, and her appeal must be dismissed.

Appeal dismissed.


author: Mr. Justice Freeman

text:
    Paul Huff, Plaintiff in Error, v. Wells Fargo & Company, Defendant in Error.
    Gen. No. 13,927.
    Personal injuries—distinction between licensee and one who is upon premises by invitation. One on premises “not with a view of transacting any business with the owner is a mere licensee and the owner owes him no higher duty to protect him from injury than he would if he were a trespasser;” but, on the other hand, “the duty of the owner to one who comes there by the owner’s invitation to transact business in which the parties are mutually interested is to exercise reasonable care for his safety while upon that portion of the premises required for the purpose of his visit;” and “under such circumstances the party is said to be on the premises by implied invitation of the owner.” Pauckner ■ v. Wakem, 231 Ill. 276, followed.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed June 2, 1908.
    W. G. Johnson and H. B. Bathbone, for plaintiff in error.
    Holt, Wheeler & Sidley, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an action by plaintiff in error to recover for personal injuries. At the close of the plaintiff’s case the court, on motion of the defendant, instructed the jury to find the defendant not guilty. It is contended that in this the court erred; that there is in the record evidence from which, standing alone, the jury could, “without acting unreasonably in the eye of the law, find that all the material averments of the declaration had been proven”; and that the cause should (Libby v. Cook, 222 Ill. 206-216) therefore have been submitted to the jury.

The defendant was the owner of a freight house located on Plymouth place and Taylor street, Chicago. The main freight room was above the street; and its floor was about on a level with the bed of an ordinary wagon. In this room was an elevator shaft, standing about the middle of the building, “with brick walls on both sides and corrugated iron doors,” as there is evidence tending to show. The building was not very wide. Plaintiff was working for an employers’ association which operated, among others, the wagons of defendant at that time, there being a teamsters ’ strike in Chicago. He was a helper on one of defendant’s wagons thus operated, which was employed in picking up freight and conveying it to defendant’s freight house. It was a part of his duty to assist in unloading the freight upon the floor of the freight house.

The day of the accident, May 3, 1905, a load of freight was brought to the freight house about seven o’clock p. m. by the wagon on which plaintiff was employed. The wagon was backed up to one of the large doors on the east side of the freight house. Plaintiff’s testimony as to what occurred is as follows:

“We backed the wagon that I was on up to the door and I got off the driver’s seat and went down probably two doors and dumb up into the building. I went there to get around the wagon. I couldn’t get back over the freight, it was loaded so high, and then I went and got up to the platform and went across to the outside—the west side, that was a little clear, and on the east side the freight was piled up by the other teams coming np and unloading before we did, and when I got back, I was pretty thirsty, and thinks I, I’ll run down into the—I went down into the basement. I went down the day before, the second, to get a couple of pails of water for my horses after we had fed, so I went right down the back stairs at the south end and got my drink of water and came up and I was looking across to see where my team stood. We had a pair of white horses—after I left the basement I came up onto the first floor, walked right alongside of the west side of the building. It was clear there. The same way that I had gone down until I came opposite where the wagon was. I seen where the wagon was and two men that was out with us that day in a buggy was standing right behind the wagon talking, and I seen where the team was.”

Having reached a point opposite his wagon, he started directly eastward to go to it. The place at that point was somewhat dark and there were piles of goods in that part of the freight room. The darkness was intensified to plaintiff because he had just come from the light basement. Without perceiving the opening, he walked into an elevator shaft which was in the line of his advance toward the wagon, and fell to the basement, receiving the injuries complained of. On cross-examination he testified:

“My duties in connection with the wagon took me into the building. I had to get in there in order to get the hind end of it. I could not get back over the wagon, it was so full. The wagon was wide, one of them express wagons.. They take up the whole door almost. There is not six inches on either side of them when they are backed up to the door. I got to get around—when the wagon was backed up there, then the freight was taken off.”

It is urged in behalf of the defendant that plaintiff was a mere licensee upon that part of defendant’s premises; that his duties required him to go no further into the building from the east door, where his wagon was, than was necessary to unload the freight from the wagon in the immediate vicinity of that door. Plaintiff testifies that he had never seen the elevator, did not know it was there, and that prior to that time he had only been “just right by the door where we took the freight off.”

It is argued in defendant’s behalf that plaintiff was, when injured, in that part of the building without invitation, express or implied; that of his own motion he “took it upon himself to go upon an exploration trip in search of water and made his way as best he could in the darkness and amid the confusion of boxes, barrels and packages incident to a freight house floor to the basement, ’ ’ where he had obtained water for his horses the day before. Hence it is said plaintiff was either a trespasser or a bare licensee, to whom defendant owed no duty, except to refrain from wilful or affirmative acts which are injurious, that he was a bare licensee as a matter of law.

It appears, however, from the testimony above quoted that plaintiff went into the building primarily not to get a drink of water, but “to get around the wagon”; that he could not get back over the freight on the wagon because “it was loaded so high”; that he went to the west side of the building because on the east side, where the wagon was, “the freight was piled up by the other teams coming up and unloading before we did,” and that it was after he had gotten into the building and on the west side of it that he concluded to get the drink of water where he had gotten water the day before. According to this evidence, plaintiff’s exploration trip was not begun in order to get the drink of water, but to get around to the rear of his wagon, where he says it was his business to help “unload the freight” and put it inside the building.

In Pauckner v. Wakem, 231 Ill. 276-280, the distinction between a mere licensee and one who is on the premises of another by invitation, express or implied, is pointed out. It is said that one on premises “not with a view of transacting any business with the owner is a mere licensee, and the owner owes bim no higher duty to protect him from injury than he would if he were a trespasser”; but, on the other hand, “the duty of the owner to one who comes there by the owner’s invitation, to transact business in which the parties are mutually interested, is to exercise reasonable care for his safety while on that portion of the premises required for the purpose of his visit”; and “under such circumstances the party is said to be on the premises by implied invitation of the owner.” In that case the appellee had left his work temporarily to attend to a call of nature, and in passing through the appellant’s warehouse for that purpose fell into an unprotected elevator shaft. It was said (page 28) that “the invitation to go there for the goods must be held broad enough to include all the space occupied by the goods, together with necessary passways in and out of the warehouse”; notwithstanding that at the exact moment of the injury the appellee in that case was not engaged in the business of his employer. In Calvert v. Springfield Light Co., 231 Ill. 290-293, it is held that an owner of premises who by invitation, express or implied, leads others to go upon premises for any lawful purpose, is liable for injuries occasioned by unsafe conditions of the premises known to the owner, and that if there are hidden dangers the owner must use ordinary care to give persons rightfully upon the premises warning thereof, the duty extending to an independent contractor or his servants working upon his premises.

The distinction between a workman on premises by invitation who is injured while seeking a toilet room and the same workman when seeking a drink of water is not wide. Both of these are natural needs to the workman, and it is, we think, a fair question for the jury whether or not, under the facts of the particular case, the owner of premises has been negligent in failing to use ordinary care to keep them reasonably safe for such an employe. But in the case at bar plaintiff was, as he states, trying to get to the rear of liis wagon to do the work for which he was employed. It was, we think, a proper question for the jury, whether the plaintiff in the case at bar was injured by reason of any negligence of the defendant or by reason of contributory negligence of his own.

As the case must be tried again, we refram from discussion of the evidence. The judgment of the Superior Court must be reversed and the cause remanded.

Reversed and remanded.


text:
    Nelson Langlois, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 13,972.
    Contributory negligence—when teamster seeking to cross street car tracks guilty of. One in charge of a heavy team who seeks to cross street car tracks is guilty of contributory negligence if he fails to look in both directions for approaching cars or if he has looked and seen an approaching car, attempts to cross in front thereof, driving slowly and under circumstances calculated to result in a collision.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed with finding of facts.
    Opinion filed June 2, 1908.
    Statement by the Court. Defendant in error, Nelson Langlois, sued to recover for personal injuries alleged to have been caused by the negligence of plaintiff in error. Defendant in error was driving a heavily loaded two-horse “tallow-wagon” west on Forty-tMrd street about seven o’clock in the evenmg of December 27, 1906. The day had been wet and the night was dark. The plaintiff in error, the Chicago City Bail-way Company, operates electric cars on Wentworth avenue, a north-bound track being located on the east side, and a south-bound track on the west side thereof. There is evidence to the effect that when defendant in error reached Wentworth avenue he looked south to see if a car was coming north from that direction, and drove slowly onto the north-bound track. He continued on his way across the south-bound track and the rear of his wagon was hit by a south-bound car just as it was leaving the west track, jarring the wagon sufficiently to throw defendant in error to the ground, but doing no injury to the wagón.
    The cause was submitted to a jury, which returned a verdict for $1,000 in favor of defendant in error. Judgment was entered on the verdict, from which judgment this appeal is prosecuted.
    Samuel S. Page and Ferdinand Gross, for plaintiff in error; John B. Harrington, of counsel.
    James L. Bynum and Charles C. Spencer, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

The defendant in error—hereinafter called plaintiff— testified that he had been a teamster for about seventeen years and was fully acquainted with the fact that on such a night street cars may be more difficult to control than in dry weather, and that with a heavily loaded wagon it is not always easy to cross street car tracks quickly in an emergency: He states that he looked north as well as south; that he could see well for several blocks; that nothing obstructed the view, and that he did not see the south-bound car coming from the north until the car was within some forty feet of him. A number of witnesses called in his behalf, however, who were south of him, and therefore further away from the approaching car, did see it at the time when he drove into Wentworth avenue, and testified that it was brightly lighted and plainly visible. The testimony of these witnesses further tends to show that Langlois was not alert; that he was sitting leaning over, watching his team, apparently neither looking out for cars on the tracks he was crossing nor hastening his team until the bell sounded close to him. Then he pulled on the lines and the horses went a little faster. From all the evidence it is, we think, apparent either that plaintiff failed to look north, as he claims he did, or that if he did look, he saw the car and deliberately attempted to cross in front of it with a heavily loaded wagon, driving slowly and, under the circumstances, negligently. Lee v. C. C. Ry. Co., 127 Ill. App. 510-511.

The evidence in behalf of the defendant tends to show with reasonable certainty that the motorman rang his bell, put on the air brakes promptly, and was running at a reasonably moderate rate of speed. The evidence of witnesses for plaintiff tends to corroborate this evidence, and we are of opinion that from the testimony of the plaintiff’s witnesses the conclusion is inevitable that plaintiff was guilty of contributory negligence, except for which the accident would not have occurred.

Numerous errors are assigned relating to rulings of the trial court to the instructions and the amount of the judgment. In view of the conclusion stated, it is not necessary to consider the questions so raised.

For the reasons indicated, the judgment of the Municipal Court must be reversed, with a finding of facts.

Reversed, with finding of facts.


author: Mr. Justice Smith

text:
    William H. Noyes, Appellee, v. Alma Clarke et al., Appellants.
    Gen. No. 14,033.
    Appeals and ebbobs—what orders not subject to review. An order which is entered by the Circuit or Superior Court in strict conformity to the mandate of the Supreme Court rendered in a cause, is not subject to review and an appeal therefrom will be dismissed.
    Foreclosure. Appeal from the Superior Court of Cook county; the Hon. Geobge A. Dupuy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Appeal dismissed.
    Opinion filed June 2, 1908.
    Rehearing denied June 16, 1908.
    Albert Wesley G-ottschalk, for appellants.
    Ellis & Lewis, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

On April 6, 1905, a decree of foreclosure and sale was entered in the Superior Court, from which appellants prosecuted an appeal to this court, where the decree was affirmed. From this court an appeal was prosecuted to the Supreme Court, where the decree was affirmed in all respects, except in the matter of the fees and charges of the master in chancery in allowing $85 for services for which there is no statutory fee. This allowance in the decree was for examining the testimony and preparing the finding as to a single question of fact. As to that allowance the decree was reversed, and the cause was remanded to the Superior Court, with directions to allow a fee of $25 for said services. Gottschalk v. Noyes, Admr., 225 Ill. 94.

After the cause was remanded, notice was given to appellants on April 11, 1907, that appellee would, on April 22, 1907, move to reinstate said cause in the Superior Court and modify the decree theretofore entered therein to conform to the mandate of the Supreme Court. On April 22, 1907, an order was entered in the Superior Court in the cause, appellants appearing pursuant to such notice, redocketing the cause and modifying the decree to make it conform to the mandate of the Supreme Court. A typographical error was made in the order of April 22, 1907, by which the decree so modified was referred to as having been entered on April 5, 1905, whereas in fact it had been entered April 6, 1905. This error was, on motion of solicitors for appellee, corrected on June 10, 1907.

On May 3, 1907, appellants moved the court to re-tax the costs, and the court denied the motion and taxed costs due the complainant at $42.45, affirming the bill of costs certified by the clerk. On May 4, 1907, the court granted a joint and several appeal to the defendants from the order entered April 22, 1907, and from the order entered May 3, 1907, giving the defendants thirty days in which to file an appeal bond in $1,000 and a certificate of evidence. The bond was filed May 31, 1907. On June 10, 1907, an order was entered reciting that it appearing to the court that through inadvertence on May 4, 1907, an appeal was allowed from that portion of the order of April 22, 1907, purporting to amend the original decree to conform to the mandate of the Supreme Court, and that portion of the order granting the appeal was vacated.

This appeal, as stated by appellants in their briefs, is from the orders “entered on April 22, 1907, and on May 3, 1907.”

In our opinion, the order entered on April 22, 1907, is not an appealable order. It was entered in strict conformity with the mandate of the Supreme Court. “Where a case has been tried in this court or the Appellate Court, and remanded with specific directions to do some act, the court below has no- power to do anything but to carry out the specific directions.” Union Nat. Bank v. Hines, 187 Ill. 109, 114. The order of April 22, 1907, was res adjudicata in the Supreme Court in this case, and it is not in our power to review it. Being in conformity with the mandate of the Supreme Court, there is nothing in the order subject to review here.

As to the order of May 3, 1907, which was virtually a denial of a motion to retax costs which were made and taxed in the cause before the appeal to the Supreme Court, the action of the court was in conformity with the rule above stated, and the motion presented matter settled and adjudicated by the Supreme Court in this cause, and hence the Superior Court was without power to adjudicate upon it. No appeal can be prosecuted from such an order, for it involves a matter already adjudicated upon in this case by the Supreme Court.

This appeal is therefore dismissed.

Appeal dismissed.


text:
    Catherine Nagle, Appellee, v. John Keller, Appellant.
    Gen. No. 14,057.
    1. Dram-shop Act—who may maintain action under section 9. A pauper sister, who under the Pauper Act has a legal right to the support of her brother, who is her only relative, is entitled to maintain an action under section 9 of the Dram-shop Act for loss of support through the habitual intoxication of such brother caused or contributed to by the defendant.
    2. Dram-shop Act—what evidence competent in action under section 9. The financial condition of the plaintiff and of the relative who was her means of support at the time of the commission of the wrongful act complained of, is competent to be shown in an action under section 9 of the Dram-shop Act.
    3. Dram-shop Act—against whom exemplary damages may he awarded. In an action under section 9 of the Dram-shop Act, exemplary damages may be awarded against the landlord who leases premises to the occupant with permission to sell intoxicating liquors thereon.
    4. Instructions—when cannot he complained of. Instructions containing a vice common to instructions asked and given on behalf of the complaining party are not subject to review.

      Proceeding under section 9 of Dram-shop Act. Appeal from the Circuit Court of Cook county; the Hon. Richard W; Clifford, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed June 2, 1908.
    Statement by the Court. Catherine Nagle, appellee, commenced this suit in the Circuit Court to recover damages for loss of her means of support, in consequence of the habitual intoxication of her brother, John W. Nagle, caused in whole or in part by intoxicating liquors sold and given to him by Peter T. McCarthy, a dram-shop keeper in Chicago. The action was brought under section 9 of the Dram-Shop Act.
    The declaration is in' four counts. The first count avers that appellee is the sister of John W. Nagle, deceased; that Peter T. McCarthy and Victor Briard, on January 24,1903, conducted the business of a dram-shop at 254 South Halsted street, Chicago, and that appellant John Keller was the owner of the said building and premises and had knowledge that intoxicating liquors were to be sold therein, and permitted the occupation of said premises by McCarthy and Briard for such purpose; that on the day aforesaid, and divers other days during the period of two years before said day, said McCarthy and Briard sold and gave intoxicating liquors to said John W. Nagle, and thereby caused him to become and be habitually intoxicated, and in consequence thereof during the time last aforesaid, John W. Nagle wasted and squandered his money and property, and became greatly impoverished, reduced, demented in mind and ruined in body and estate, neglecting to attend to his business or calling or in any manner providing employment for himself or support for appellee; and in further consequence of the habitual intoxication of said Nagle so caused, said Nagle died January 24,1903; by means of which premises appellee was injured in her means of support, etc.
    The second, third and fourth counts set out the same cause of action, with unimportant variations of form.

      The defendants pleaded not guilty, and Briard filed an additional plea of non-joint liability.
    The liability of appellant Keller is predicated wholly upon the leasing of the premises by him to McCarthy, to be occupied by the latter as a dram-shop, and with knowledge that they were to be, and as a matter of fact were, used for keeping therein a saloon or dram-shop.
    On the trial the defendants, at the close of the evidence for the plaintiff, each requested the court to in<. struct the jury to find the defendant not guilty. This motion was sustained as to Briard, and overruled as to appellant. Appellee then obtained leave to amend her declaration, discontinuing as to Briard, and the amendment was then filed. The trial proceeded without objection, and at the close of all the evidence appellant Keller moved the court to instruct the jury to find him not guilty. The motion was overruled. The jury returned a verdict in favor of appellee for $3,000, and after denying motions for a new trial and in arrest of judgment, the court entered judgment on the verdict.
    John J. Swenie, for appellant; M. B. Habéis, of counsel.
    Woodley & Pendleton and M. W. Mattison, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This action is brought and prosecuted on the theory that having been supported for many years by her brother, and being legally entitled to his support under the Pauper Act, appellee had a right of action against the defendants under section 9 of the Dram-Shop Act to recover damages for injury to her means of support on two grounds alleged in her declaration; first, for the loss of support from her brother during the two years immediately preceding his death, during which he failed, to a large extent, to provide for her, in consequence of his habitual intoxication, continued and augmented by liquors sold to him constantly during that time by McCarthy; and second, for the total and permanent loss "of his support as a result of his death from excessive intoxication.

Appellant urges as a ground for reversing the judgment that under section 9 of the Dram-Shop Act a sister or brother does not fall within the degree of kinship which will enable him or her to sustain an action for loss of means of support caused by the failure of the person intoxicated, habitual or otherwise, to furnish support.

In support of this contention appellant invokes the well-known canon of construction applicable to statutes, contracts and other instruments, that where an enumeration of specific things is followed by general words or phrases, the latter are held to refer to those things of the same kind as those specified.

It is quite unnecessary, however, for us to consider in detail the argument of counsel in support of the construction contended for by them, for the reason that the Supreme Court has settled the construction of the Dram-Shop Act in King v. Haley, 86 Ill. 106. At page 108 of the report the court say in their opinion:

“A cause of action is given to anyone who may be injured in his person or property, or means of support, by any intoxicated person, jointly or severally, against such person or persons who may have caused the intoxication, in whole or in part, of the person who commits the injury. An action is also given to anyone who may in the same manner be injured ‘in consequence’ of the intoxication of anyone, whether habitual or otherwise, against the parties who may cause such intoxication. In the one case it is for the direct injury inflicted by ‘an intoxicated person,’ and in the other it is for such damages as may arise ‘in consequence’ of such intoxication. This is the plain meaning of this section of the statute as expressed in unambiguous language. ’ ’

The evidence in the record shows that appellee was a poor person, infirm and unable to earn a livelihood. She was supported by her brother John W. Nagle, and was dependent upon him for her support. He was her only near relative of sufficient ability to support her. In our opinion appellee, being a pauper sister, had a legal right under the Pauper Act to the support of her brother, her only relative, as shown by the evidence, of sufficient ability to support her, and hence, under the Dram-Shop Act, she had a right of action for injury to this means of support, and for causing the loss of this support. The legal liability of the brother to afford such support, and the reciprocal legal right in appellee to that support is settled, we think, in People v. Hill, 163 Ill. 186, and in Danley v. Hibbard, 222 id. 88. It does not affect this position that suits under the Pauper Act are brought in the name of the People for the use of the pauper. The pauper is the real beneficial plaintiff for whom the action is brought. It is the pauper’s claim which is enforced. The method of enforcing it provided by the statute is a mere matter of procedure. The essential thing is that the statute gives the pauper a legal right to support. Danley v. Hibbard, supra.

It is urged on behalf of appellant that the liability for support created by the Pauper Act terminates with the life of the person upon whom the burden of support is imposed by the statute, and that the liability does not pass to the deceased person’s estate, but passes on to the next relative in order as enumerated in the statute, if there be such relative of sufficient ability, and if not, then to the county.

The evidence in the record shows that after her brother’s death, appellee had no other relative who was able to contribute to her support, and that since her brother’s death she has been the recipient of charity. If appellant’s construction of the statute be correct, the only person or corporation upon whom the support of appellee falls is the county. We think, however, the purpose of the Pauper Act is to put the burden of supporting paupers upon their relatives, and to prevent, as far as possible, such burden being cast upon the public. It follows, therefore, in line with the statutes above referred to and the public policy expressed therein, that the liquor seller who causes the loss of a pauper’s support should be required to respond in damages for such illegal act, in order to prevent as far as possible the burden of that support falling upon the public. Such an interpretation not only enforces the clear public policy expressed in the statutes, but it accords with the principles of justice and equity. Whether the pauper has any interest in or claim against the deceased relative’s estate is beside the question. The financial interest of the pauper is that the supporting relative’s ability to earn and contribute to his support shall be unimpaired, and that his life shall be prolonged.

The evidence shows that the appellee was an invalid pauper and that she was dependent upon her brother for her support. He had supported her for many years, giving her money from time to time when he was living with her and when he was living elsewhere. No other conclusion can be drawn from the testimony of appellee, Mary Nagle, Higgins and G-race. The testimony of these witnesses as to the facts bearing upon appellee’s condition, and her support by her brother, is not contradicted in the record. The evidence shows that the habitual and excessive intoxication of John W. Nagle was caused, in whole or in part, by McCarthy and his employes, and that his ability to support appellee was thereby diminished. It also shows, we think, that the almost constant intoxication produced, in whole or in part, by liquors supplied by McCarthy, reduced Nagle to the most pitiable condition of body and mind, and finally caused his death. The verdict of the jury is, we think, supported by the evidence.

Error is assigned upon the rulings of the court in permitting Mary Nagle, John Grace and Catharine Nagle to testify to the salary received by John W. Nagle while working for Culver, Page & Hoyne for twenty years preceding 1888; and as to property owned and sold by him in 1888 and 1889, and at other dates. We think the financial condition of appellee, of Mary Nagle her sister, and of her brother John W. Nagle, was a material question, and that the court did not err in the rulings complained of. Clears v. Stanley, 34 Ill. App. 338, 342; Flynn v. Fogarty, 106 Ill. 268.

It is argued that a large portion of the damages awarded by the jury are given as exemplary^damages by way of punishment, and that whatever may be the case as against McCarthy, there is no proof in the record that appellant had wilfully disregarded the rights of appellee, or wantonly and recklessly violated the law, and therefore exemplary damages against appellant are not warranted by the record.

In Hackett v. Smelsley, 77 Ill. 109, the court construed section 9 of the Dram-Shop Act with reference to the liability of the owner of the saloon premises for exemplary damages, and held that there is no difference in the degree of culpability between the saloon keeper and the owner of the premises, and that they are jointly liable on the same basis. On page 123 of the report the language of the opinion is as follows: “It must be admitted, the meaning of the statute in respect of exemplary damages is not so perspicuously expressed as might have been. But, taking the two clauses together, we cannot think it to be their construction, that it was intended to draw a distinction between the seller, and the owner of the building, and subject them to a different measure of liability—the one for actual damages only, and the other for both actual and exemplary damages.”

This construction of the statute is reaffirmed in Triggs v. McIntyre, 215 Ill. 369, 376; and in Wanack v. Michels, 215 id. 87, 94; and in Beckerle v. Brandon, 229 id. 323, 325. In Wanack v. Michels, supra, the owner is held to be a joint wrongdoer with the occupant who sells the liquor and the owner of the premises who leases them with permission to the occupant to sell intoxicating liquor thereon, and with knowledge that such liquor is sold thereon, must be held, under the circumstances mentioned in the statute, as committing the tortious act with guilty intent.

In actions under this statute, the courts are not dealing with a common law liability, but purely statutory liability expressly and clearly imposed upon the landlord as a part of a general plan for regulating and suppressing “the evils arising from the sale of intoxicating liquors” as the title of the Dram-Shop Act phrases it. Authorities cited by counsel which treat of the common law right to exemplary damages are therefore not in point.

The verdict in this case and the judgment is for $3,000. It does not appear from the record, and the court cannot say with certainty that the jury intended to assess anything more than the actual damages. There are better reasons for considering that the verdict was intended by the jury to express the actual damages sustained by appellee than for holding that it was intended to include exemplary damages. We think the jury were warranted by the evidence in awarding the amount as actual damages. All things considered, the amount is not exorbitant considered as actual damages. But, however, that may be, and assuming that the damages awarded are in part exemplary, the evidence shows that McCarthy arid his employes sold intoxicating liquors to Nagle while he was intoxicated, and when they knew he was in the habit of becoming intoxicated, and the jury were warranted by the evidence in so finding. This was a sufficient basis for exemplary damages. Kennedy Bros. v. Sullivan, 136 Ill. 94; Earp v. Lilly, 217 id. 582, 586. The evidence likewise shows that appellant was the owner of the saloon property, and that he leased it to McCarthy, having knowledge that intoxicating liquors were to be sold therein. This knowledge, as we have seen from the authorities cited above, makes appellant liable for damages, both actual and exemplary, for which McCarthy is liable.

What we have said above disposes of the objections made to instruction numbered 3 in the abstract with regard to exemplary damages. Further, appellant cannot complain of this instruction, for in requesting the court ,to give instructions numbered 6 and 7, which are in substance the same as instruction 3, he induced the trial judge to instruct on that theory of the law, and he will not now be permitted to shift his ground and complain that the jury were erroneously instructed. I. C. R. R. Co. v. Latimer, 128 Ill. 163; N. C. R. R. Co. v. Peuser, 190 id. 67.

We perceive no merit in the objections urged to instruction numbered 2, as to the character of proof against McCarthy and appellant respectively.

The court did not err, in our opinion, in refusing to give instruction numbered 17, requested by appellant at the close of the plaintiff’s testimony, directing the jury to find for the defendant Keller, for the reasons, given above, when discussing the evidence.

The court did not err in refusing instruction numbered 23, for the reason that it is substantially covered by other instructions given at the request of appellant, except the first clause of the first sentence of the instruction to the effect that “this action is based wholly upon the statute, and the statute being highly penal in its nature, must be strictly construed.” This statement is a mere abstract proposition of law, and it has been often held that the refusal of the court to give such instructions is not error.

We find no substantial error in the record, and the judgment is affirmed.

Affirmed.