text:
    Elgin, Joliet & Eastern Railway Company, Appellant, v. Northwestern National Bank of Chicago, Appellee. Elgin, Joliet & Eastern Railway Company, Appellee, v. Crouch Construction Company et al. (Chicago Dredging and Dock Company, Appellant.)
    Gen. No. 5489.
    Gen. No. 5490.
    1. Damages—when liquidated, treated as penalty. Where the amount agreed to be paid for the breach of the contract greatly exceeds the actual damages suffered on account of the delay, that is to say, if the amount agreed to be paid is out of proportion to the probable damage sustained, the court will be disposed to treat the stipulated sum as a penalty and not as liquidated damages.
    2. Damages—when liquidated, treated as penalty. The fact that parties fix a sum to be paid and call it liquidated damages, does not always control the question as to the measure of recovery for the breach of the contract, and if the clause fixing the amount of damages appears to have been inserted to secure prompt performance of the agreement, it will be treated as a penalty and not more than actual damages proved can be recovered.
    3. Interest—liability of custodian of fund interpleaded. Whether the interpleader he at common law or by statute the custodian of the fund complaining in the interpleader cause, will, unless he shall have paid the money into court, be decreed to pay it to the rightful claimant when ascertained, with interest thereon through the whole interpleader period, during which he has presumably enjoyed its beneficial use.
    4. Interest—what instrument in writing within meaning of statute. A written order accepted, is an instrument in writing for the payment of money within the meaning of the Interest statute, and if at the time of the acceptance of such an order the amount due thereunder has not been ascertained, interest will begin to run upon the amount when ascertained from the time of the acceptance of such an order.
    5. Mechanic’s liens—when subcontractor not entitled to Men. If the contract between the owner and the original contractor provide that the work shall be delivered free from liens, a subcontractor is entitled to no lien.
    6. Mechanic’s liens—when personal judgment unauthorized. If no lien be recovered a personal judgment against a defendant in a proceeding for lien is unauthorized.
    Mechanic’s lien. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Statement Tby the Court. On May 10, 1898, the Elgin, Joliet & Eastern Railway Co., hereinafter called the Bailway Co., entered into a contract with the Crouch Construction Co., hereinafter called the Crouch Co., whereby the latter undertook to do certain dredging and build a slip and dock at Waukegan, Illinois, upon the property of the Bailway Co., the total price not to exceed $24,000. Payments were to be made from time to time within 85% of the- engineer’s estimates, the remaining 15% to he reserved until all the work should he completed and the issue of his final estimate. By paragraph 4 of the contract the Crouch Co. covenanted to turn over the completed work free from all indebtedness, judgments and liens of every character, and to protect and save the Bailway Co. harmless from all expenses and costs in connection therewith. The work was to be completed by August 15, 1898, and in the event it should be delayed, the 5th paragraph covenanted that time was of the essence of the contract, and that delay would entail serious loss and damage upon the Eailway Co., difficult, if not impossible, of exact measurement, and $250 per day was stipulated for as liquidated damages for every 24 hours’ delay after midnight of August 15, 1898, which the Crouch Co. agreed to pay upon demand; that the Eailway Co. might apply on account thereof any moneys which may have been retained by it under the estimates provided for.
    On September 20, 1898, the work was not completed and the Crouch Co. made an assignment for the benefit of .creditors in the County Court of Cook county to George C. Aldrich, who, under the order of said court, proceeded with the work and completed the same on or about December 14, 1898. Before the date fixed for the completion of the work the Crouch Co. obtained cash advances from the Northwestern National Bank of Chicago, hereinafter called the Bank, upon three written orders drawn by the Crouch Co. on the Eailway Co. payable out of the moneys to become due the Crouch Co. One was for $7500 and two were for $5000 each. The Eailway Co. paid all the orders except $2500 on the third, which was in the words and figures following:
    “Chicago, Illinois, July 22, 1898.

      To the Treasurer of the Elgin-, Joliet & Eastern Ry.

      Co., Chicago, III.

    Dear Sir :
    Please retain out of any moneys due us on account of Waukegan work Five Thousand Dollars ($5000.00), and pay the same to the Northwestern National Bank on or about Aug. 25, and oblige.
    Tours very truly,
    Crouch Construction Co.,
    Per C. D. Crouch, Prest.”
    On which was endorsed the following:
    “Noted; will comply with above request. This is the 2nd request to pay $5000 to Northwestern National Bank out of any amount due Aug. 25th. July 23, 1898. F. D. Raymond, Treas.”
    The engineer’s final estimate of December 31, 1898, showed an actual cost of the work under the contract to be $21,897, $1727.43 of which was unpaid. After the assignment various mechanics’ lien suits were commenced for labor and materials and others threatened. On March 3, 1899, the Railway Co. filed a bill under section 31 of the Mechanics’ Lien Act of 1895. The bill made the Crouch Co., George C. Aldrich, assignee, the Bank, the Chicago Dredging and Dock Co., hereinafter called the Dredging Co., and the other mechanic’s lien claimants parties defendant. It alleged that the work was not completed until December 14, 1898, and on account thereof the Railway Co. suffered damage. The bill asked for a general settlement, as provided by the said section 31 then in force, and stated that if anything was found to be owing from the Railway Co., it would bring the amount into court and pay it to whom it might be found due.
    There was a hearing and the decree dismissed several of the mechanics’ lien claims as invalid. It found that certain others were valid claims, but denied the liens and entered judgment thereon, disallowed the damages claimed by the Railway Co. and decreed that the Bank recover from the Railway Co. the sum of $1727.43, together with interest thereon at 5% per annum from the date the Bank filed its answer, to the date of the decree, making a total of $2738.
    The Railway Co. and the Dredging Co. prosecuted separate appeals from the decree, which were consolidated here.
    Henry S. Wilcox, for Chicago Dredging and Dock Company, appellant; Jesse Wilcox, of counsel.
    Holt, Wheeler & Sidley, for Elgin, Joliet & Eastern Railway Company, appellant.

      Charles M. Sturges, for Northwestern National Bank of Chicago, appellee.
   Mr. Justice Willis

delivered the opinion of the court.

The Railway Co. proved no actual damages, but contends that the Bank is not entitled to the fund because the Railway Co. was entitled to $250 per day as liquidated damages from August 15, 1898, until December 14, 1898, when it is alleged the work was entirely completed. This would make the damages amount to approximately $30,000. Under the contract the full consideration for the work was not to exceed $24,000 and the engineer’s final estimate showed the actual cost to be $21,897. Under this construction of the contract the Railway Co. might take from the Crouch Co. the completed work for nothing and more than $8,000 besides. In its argument here the Railway Co. confined its claim of $250 per day from August 15 to September 20, 1898, the day when the assignee was appointed, amounting to $8750. Either allowance would far more than absorb the balance due under the contract, and if the position of the Railway Co. is well taken, then there was nothing left to be paid on the last half of the last order held by the Bank.

Where the amount agreed to be paid for the breach of the contract greatly exceeds the actual damages suffered on account of the delay—that is to say, if the amount agreed to be paid is out of proportion to the probable damage sustained, the court will be disposed to treat the stipulated sum as a penalty and not liquidated damages. The fact that parties fix a sum to be paid and call it liquidated damages, does not always control the question as to the measure of the recovery for the breach of the contract, and if the clause fixing the amount of damages appears to have been inserted to secure prompt performance of the agreement, it will be treated as a penalty and not more than actual damages proved can be recovered. Scofield v Tompkins, 95 Ill. 190.

It is said in Sedgwick on Measure of Damages, p 493: “If, from the nature of the agreement, it is clear that any attempt to get at the actual damages would be difficult, if not vain, then the courts will incline to give the relief which parties have agreed on. But if, on the other hand, the contract is such that the strict construction of the phraseology would work absurdity or oppression, the use of the term liquidated damages will not prevent the courts from inquiring into the actual injury sustained and doing justice between the parties.”

The contract, among other things, required the excavation of a waterway to be of a uniform depth; the piling, timbering, capping, anchoring, etc., of the excavated frontage in the manner specified, and with the materials of the size and quality prescribed; the disposal of the excavated material in the manner prescribed, and the filling in with earth to a certain level. Full execution of every one of these requirements was necessary to the complete performance of the construction of said slip and dock. Had there, after August 15, 1898, remained a single load of excavated earth to be removed, one cubic yard of back filling to be put in place and leveled, or one timber cap to be bolted in, under the construction of the contract contended for by the Railway Co., $250 per day must be the price of such deficiency, so long as it should continue; nor could there, in that case, be any equal abatement or apportionment of the whole per diem stipulated sum to the degree of just compensation for the deficiency in completion. Whenever such a result could be produced, the sum named as liquidated damages will be construed as a penalty only, to be restrained in recovery to just compensation for actual damages as they shall be shown by the proofs. Trower v. Elder, 77 Ill. 452, and cases there cited.

The proof shows that after August 15,1898, the Railway Co. made various payments to various persons. This tended to show that it did not then suppose that the $250 per day was liquidated damages. When a contract or agreement is in any manner indefinite or uncertain, and the parties have, by their own conduct, placed a construction upon it which is reasonable, courts will adopt such construction. Vermont Street M. E. Church of Quincy v. Brose, 104 Ill. 206; Storey v. Storey, 125 Ill. 608; Street v. Chicago Wharfing Co., 157 Ill. 605; Work v. Welsh, 160 Ill. 468; Consolidated Coal Co. v. Schneider, 163 Ill. 393. All the circumstances considered, it would seem incredible that the parties to this contract could have understood and intended to pay as damages the amount contended for by the Railway Co. It would be absurd and highly oppressive to so hold in the absence of proof of any actual damages. We think it entirely clear that the sum stipulated for as damages was intended as a penalty, .regardless of the language used.

It is contended by the Railway Co. that the court erred in allowing interest upon the $1727.43. The bill was, both in form and substance, a bill of interpleader, although brought under the mechanics’ lien act then in force. The rule is that the custodian of the fund, complaining in the interpleader cause, will, unless he should have paid the money into court, be decreed to pay it to the rightful claimant when ascertained, with interest thereon through the whole interpleader period, during which he has presumably enjoyed its beneficial use. 2 Daniell’s Chancery practice, (6 Am. Ed.) 1563, note 11 (a); Spring v. South Carolina Ins. Co., 8 Wheaton (U. S.) 268 (p. 293); Sibley v. Equitable, etc. Society, 3 N. Y. Supp. R. 8; Same case, 24 Jones & S. N. Y. Superior Court, R. 274. The Railway Co. cannot be heard to contend that the equitable rule charging an interpleader complainant with interest on the fund, ■if not paid into court, does not apply here because the bill in the case was for general settlement under the mechanics’ lien act, or because the Railway Co. itself claimed the fund. True, this was a statutory inter-pleader, but the procedure thereunder is governed by the equitable rules and incidents which prevail in chancery. McGraw v. Bayard, 96 Ill. 146. Nor is it any hardship to the Railway Co. that it should be required to pay interest on the money the use of which it has enjoyed for more than twelve years.

The written order accepted by the Railway Co. was an instrument in writing for the payment of money. Section 2, chapter 74, Hurd’s R. S. provides for interest on all moneys after they become due on instruments in writing. Every demand for money fundamentally involves the question of the right of the claimant to it and to how much. These questions may be the subject-matter of prolonged controversy. Nevertheless, when those uncertainties shall be at last resolved by legal ascertainment, the title and quantum as found, if they shall have arisen upon an instrument in writing for the payment of money, will, when found, relate back, for the purpose of the computation of interest, to the date at which the right of the determined quantum originally existed in the law. Under the statute, both the quantum of money, and the right to it, stand finally liquidated and ascertained as of that date, for the purpose of interest. Dobbins v. Higgins, 78 Ill. 440; Scroggs v. Cunningham, 81 Ill. 110; Downey v. O’Donnell, 92 Ill. 559; Heissler v. Stose, 131 Ill. 393; Dick Co. v. Sherwood Letter File Co., 157 Ill. 325; Bauer v. Hindley, 222 Ill. 319.

As $1727.43 was shown to be due on the contract, and as there were no other valid claims except that of the Bank, and as the Railway Co. has not shown that it was entitled to recover damages for failure to complete the contract on time, it follows that it should have paid the money to the Bank August 25, 1898, and we are of opinion that the Railway Co. was liable to pay this interest.

The Dredging Co. was a subcontractor under the Crouch Co., and obtained a judgment, but was denied a subcontractor’s lien therefor. Its appeal is on the ground that the court erred in denying it a lien. If it was entitled to a mechanics’ lien for the amount allowed by the judgment of the court, that would wipe out the sum awarded to the bank, which would be erroneous, as it would make the Railway Co. pay twice. Paragraph 4, of the contract between the Railway Co. and the Crouch Co. provided that the work should be delivered free from liens. Therefore no subcontractor could have a lien. Von Platen v. Winterbotham, 203 Ill. 198; Brown Construction Co. v. Central Illinois Construction Co., 234 Ill. 397.

The judgment in favor of the Dredging Co., as well as the judgment in favor of the other lienors against the Crouch Co., appear to be invalid under the holding of the Supreme Court in Turnes v. Brenckle, 249 Ill. 394, which says: “While the power of a court of equity to enter a personal decree for a deficiency after there has been a sale has been recognized, we are not aware of any case which holds that the court may enter a personal decree where there has been an entire failure to establish a lien under the statute.” No error has been assigned questioning the validity of these judgments, but such invalid judgments do not aid at all to give the Dredging Co. a lien against the Railway Co. The Dredging Co., in its contract with the Crouch Co., also covenanted to complete the work called for by the contract free from indebtedness and liens. It thereby waived its right to a mechanics’ lien.

Finding no reversible error in the record, both portions of the decree appealed from are affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    Perry Asplund, Defendant in Error, v. The Conklin Construction Company et al., Plaintiffs in Error.
    Gen. No. 5493.
    1. Negligence—when construction company and owning company jointly liadle. Where a construction company has the same officers as the company for which it is doing the work under a contract, or where one company is organized as an instrument in the hands of another for construction purposes, or where both companies are corporations occupying the same premises, employing the same servants, and more or less jointly associated, though separate corporations, both companies are really one organization, and a person in the employ of one is in the employ of both, and both are responsible to the employe for the negligence of either.
    2. Master and servant—right of latter to assume performance of duty dy fSrmer. A servant has the right to assume that his master has performed his personal obligation of inspection.
    S. Master and servant—respective duties of inspection distinguished. The master has a duty of inspection as well as of observation; the obligation of the servant is that of observation.
    4 Instructions—when containing abstract proposition will not reverse. An instruction which contains an abstract proposition of law will not reverse if not misleading.
    Action in case for personal injuries. Error to the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Barr, McNaughton & Barr, for plaintiffs in error; Stern, Anderson & Davis, of counsel.
    D. R. Anderson, for defendant in error.
   Mr. Justice Willis

delivered the opinion of the court.

Perry Asplund began this suit in case in the Circuit Court of Will county against the Conklin Construction Company, hereinafter called the Construction Company, and the Interstate Independent Telephone and Telegraph Company, hereinafter called the Telephone Company, to recover damages for injuries sustained on December 2, 1904, by falling from a telephone pole while in their employ. He obtained a judgment for $5000 which was reversed and the cause remanded because the jury were erroneously instructed. Asplund v. Conklin Construction Co., 154 Ill. App. 164. On the second trial he obtained a verdict for a like amount. Bach company made a motion for a new trial and in arrest of judgment, which were denied, and judgment was entered on the verdict. Both companies excepted to the denial of the motions and prayed an appeal, but it was not perfected and this writ of error was sued out to review the judgment.

The Construction Company was engaged in constructing a new telephone line near Joliet for the Telephone Company. The line was to consist of a series of poles with a ten pin cross-arm at the top and a messenger wire to support the telephone cable. The poles had been set and a “gain” cut near the top of each to receive the cross-arm. The messenger wire had been attached about five feet below the top of each pole. On the morning of the accident, defendant in error was engaged, with other linemen, in placing the top cross-arms. He climbed the pole on the side opposite to the gain, and on reaching a point near the top, stuck the spur of his right foot into the pole, threw his left leg around it and leaned over the top, but did not use his safety belt. He dropped a line to the ground man, who tied a cross-arm to the same, and defendant in error then raised the cross-arm, put it into the gain and drove two lag screws through it into the pole. On receiving a signal from the ground man that one end of the cross-arm was too high, he swung himself to the messenger wire, and standing thereon, threw his left arm over the cross-arm and with a hand axe in the other hand, struck the cross-arm on the extreme end, whereupon it broke at a point between his arm and the pole. He fell to the ground and both Ms ankles were crushed, permanently crippling him.

The amended declaration upon which the cause was submitted to the jury alleged that Asplund was in the employ of both companies, and charged, in substance, that the companies negligently failed to furMsh Mm with a reasonably safe cross-arm upon wMch to rest Ms weight; and negligently failed-to inspect said cross-arm; and averred that while he was in the performance of his duty and in the exercise of reasonable care for his own safety, while so climbing and resting Ms weight upon said cross-arm, it broke, and he fell to the ground and was injured.

It is not denied that the construction company is liable, if a liability exists, but it is contended that the Telephone Company is in no way connected with the accident, because defendant in error was in the employ of the Construction Company alone; that the Construction Company was an independent contractor and that the Telephone Company had nothing to do with the work until it was completed, and that therefore the record fails to show a joint liability.

The evidence shows that one Parsons was district manager of the telephone company and superintendent of construction and financial man for the construction' company at Joliet, and had full charge and control of the work, employed the men, saw to the paying of them and directed their movements; that the two companies had the same general officers, and, at -Joliet, they occupied the same office, used the same warehouse, and the same man acted as foreman for both companies. The men who worked for the construction company were often called upon to do repair work for the telephone company and vice versa, no separate account of their time being kept. If it rained so they could not work on construction outside, they often worked inside for the telephone company. The wages of all the men at Joliet worMng for either company were paid by the same kind of a check. Parsons determined what men should work for the construction company and what men should work on repair work for the telephone company. He also determined what wagons should be used on construction work and what wagons should be used on repair work. He determined what materials should be put into the construction work and what materials should be put into repair work. He determined who should act as boss of the gang, whether it was working on construction work or on repair work. It is clear that he supervised the construction of the telephone line and it is just as natural to suppose that he did it as the manager of the telephone company as that he did it as the superintendent of the construction company. It has been held that where a construction company has the same officers as the company for which it is doing the work under a contract, or where one company is organized as an instrument in the hands of another for construction purposes, or where both companies are corporations occupying the same premises, employing the same servants, and more or less jointly associated, though separate corporations, that both companies are really one organization, and that a person in the employ of one is in the employ of both, and that both are responsible to the employe for the negligence of either. K. & S. R. R. Co. v. Horan, 131 Ill. 288; West Chicago Street R. R. Co. v. Morrison, 160 Ill. 288; Chicago Economic Fuel Gas Co. v. Myers, 168 Ill. 139; Dieters v. St. Paul Gaslight Co., 91 N. W. Rep. 15.

In West Chicago Street Railroad Company v. Morrison, supra, suit was brought against the street railroad company, the tunnel company, and Charles T; Terkes for damages sustained by the Morrison Company for trespass in tearing down the building in which the Morrison Company was located. It was contended that the street railroad company was not a party to the trespass; that if there was any liability it was against the tnnnel company; that the judgment was a unit and if reversible as to one, was reversible as to all. Yerkes was president of the street railroad company and was also a member of the board of directors of the tunnel company, and gave the order to the tunnel company for taking possession of and demolishing the building, which was the trespass complained of. The court sustained the judgment, and in passing upon the case said:

“This evidence, it seems to us, fairly and clearly tends to show that the tunnel company was a mere means or mode adopted by the street railroad company for the construction of its tunnel,—a mere instrument or tool used for that purpose,—and that the tunnel company was organized and acted simply as the agent or servant of the street railroad company.”

In Economic Fuel Gas Company v. Myers, supra, it was claimed that the gas company was not liable for the injury because the construction work for the gas company was being done by the Chicago Contract Construction Company as an independent contractor. In the opinion of the court it is said:

“We are of the opinion, however, that the doctrine of ‘independent contractor’ does not apply to the present case. In the first place, the construction company was a mere means or mode, adopted by the gas company for the construction of its system of gas-pipes and gas works. The construction company was a mere instrument or tool used by the gas company for that purpose. The evidence tends fairly and clearly to show, that the construction company was organized and acted simply as the agent or servant of the appellant company. An attempt is here made to evade liability by interposing a construction company as the guilty party. The officers of the gas company were also officers of the construction company. The construction company and the gas company had their offices in the same building, the offices of the gas company being on the first floor and the offices of the construction company being on the second floor. One Judson was the president of the gas company, and at the same time was consulting and supervising engineer of the construction company. One Tuille was paymaster of the construction company and also an officer of the gas company. One Bryant was supervising the office and fixtures of the construction company in December, 1892, and was also secretary and treasurer of the gas company. One Jelps was in the employ of the gas company and left such employment and worked for the construction company, but at once went back into the service of the gas company. All the officers and employees of the construction company, who testified in this case, were either at the same time connected in some way with the gas company, or passed alternately from the service of one to the service of the other.”

Applying the principles announced in the foregoing cases to the facts in this case, it seems to us that the evidence in this record fairly and clearly tends to show that the construction company was a mere means or mode adopted by the telephone company for the construction of the telephone line, and that the construction company was acting as the agent or servant of the telephone company, and we are unable to say that the jury was not authorized and fully justified in finding that the telephone company was liable for the negligence of the construction company.

It is contended that defendant in error contributed to his injury by his failure to use a safety belt and by not inspecting the cross-arm, and that he assumed the risk. A number of experienced linemen testified that a safety belt is never used in putting on the top cross-arm of new work, and their evidence was not contradicted. The testimony is without variation that a safety belt is only used where the workman is required to remain stationary for a long time or is working among many wires, or is engaged at work which requires the free use of both hands, and is never used where the lineman is moving about. The district manager testified that it was not practical to nse a safety belt while placing the cross-arm at the top of the pole, for the reason that the greater portion of the body is above the top of the. pole. The evidence strongly tends to establish that defendant in error performed the work of adjusting the cross-arm in the usual, customary and approved manner of experienced linemen. He testified that he had never seen the cross-arm until he raised it to the top of the pole. The gain was about eight inches from the top, and in setting the cross-arm his body was above the top of the pole. When he lowered himself to the messenger wire his head and shoulders were still above the cross-arm, and the knot was unobservable to him. Notwithstanding the proof may show that he, with other employes, had taken these arms from the warehouse, it does not follow that he was bound to inspect them, and in the absence of notice to the contrary he had a right to assume that the master had performed that duty. C. & E. I. R. R. Co. v. Hines, 132 Ill. 161; Illinois Steel Company v. Schymanowski, 162 Ill. 447. A servant must take notice of obvious material conditions and of obvious danger, but he is not obliged to look for these; while the master must ascertain material conditions and danger which can be found by the exercise of reasonable diligence. Illinois Steel Co. v. Mann, 100 Ill. App. 367, 376. The master has a duty of inspection as well as of observation; the obligation of the servant is that of observation. Bailey on Master’s Liability, etc., 93-100-107 and 108; Illinois Steel Co. v. Mann, supra. Among the personal duties of the master is the duty to use reasonable care to furnish the servant with reasonably safe appliances with which to work. In entering upon the service, he has a right to assume that the master will perform the duties imposed upon him, and the original contract of employment does not include any assumption by the servant of risks or dangers due to failure of the master to perform such duties. The servant may assume the duty has been performed unless he is chargeable with notice that it has not been. In this case, defendant in error was furnished with a cross-arm admitted to be defective, and he did not assume the risk in the absence of notice of its condition. C. & E. I. R. R. Co. v. Hines, supra; Schillinger Bros. Co. v. Smith, 225 Ill. 74. Whether the defendant in error was guilty of negligence which contributed to his injury, and whether he assumed the risk, were questions of fact for the jury, and their finding on these questions in his favor is amply supported by the evidence.

Complaint is made of instructions 1 and 3 given on behalf of defendant in error. No. 1 is as follows:

‘ ‘ The court instructs the jury that it was the duty of the defendant for whom the plaintiff was then working to exercise reasonable care to furnish the plaintiff a reasonably safe cross-arm upon which to perform his work.”

The criticism is that it states an abstract principle of law and contains the implication that he had a right to be upon the cross-arm. Instructions should be so drawn as to apply to the case to be decided by the jury, but if the instructions are not misleading, it is not ground for reversal that they are mere statements of the rules of law. Chicago City Railway Company v. Anderson, 193 Ill. 9; Illinois Match Co. v. C. R. I. & P. Ry. Co., 250 Ill. 396. The evidence shows that it was necessary that the weight of defendant in error should in part rest on the cross-arm. We do not think' that this instruction misled the jury, and we find no difficulty with the 3rd.

Finding no error in the record warranting a reversal, the judgment is affirmed.

Affirmed.


text:
    Miles Clement, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5501.
    1. Verdicts—duty of Appellate Court to review. When the trial court refuses a new trial and enters judgment upon the verdict, and the defeated party removes the cause to the Appellate Court for review, it then becomes the duty of the Appellate Court to exercise a like supervisory power over the verdict and to reverse the judgment founded thereon where, upon a consideration of the testimony, such verdict is found to be clearly against the weight of the evidence.
    2. Appeals and errors—when assignments of error deemed waived. Assignments of error not argued are deemed to have been waived.
    Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    Pinkney & McRoberts, for appellant.
    No appearance for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

Miles Clement brought this suit in case in the Circuit Court of Peoria county against the Peoria Railway Company to recover for injuries sustained while driving on its Elizabeth street track in the city of Peoria. On a trial, at the conclusion of all the evidence, the company moved the court to instruct the jury to find it not guilty. This motion was denied. The jury returned a verdict for $2000. A motion, for a new trial was made. Twelve hundred and fifty dollars was remitted from the verdict. The motion for a new trial was denied, and judgment was entered for $750. The company prosecutes this appeal to review such judgment.

The evidence shows that at 6:40 in the evening of January 20, 1910, appellee was driving north with a horse hitched to a wagon. It was dark and snow was falling. The only light was a city arc light about 260 feet behind him. While on the track he was struck by one of appellant’s south-bound cars. He was apparently unconscious when found, and was pinned to the fender of the car by the front axle of the wagon. He lost two teeth, was bruised on the left shoulder and was cut about the face and head, and sustained other lesser injuries, but had no bones broken or dislocated. He was confined in the hospital about three weeks and was unable to work until June 1, 1910.

The declaration contained four counts, which, in substance, charged negligence in the rate of speed at which'the car was driven; failure to sound a gong; failure to keep watch and to stop in the shortest time and space possible on the first appearance of danger; failure to keep signal lights on the end of the car so as to render it conspicuous to public travel. The last three charges were for violations of a city ordinance regulating the operation of street cars. Each count stated that appellee was in the exercise of due care when injured.

It is not claimed that there is any error of law in the record other than the refusal of the court to direct a verdict or grant a new trial.

Without attempting to review the testimony of the various witnesses, but after full examination of the record, we find it conflicting in many points. There was evidence for appellee tending to prove that the car was running eight miles an hour; that no gong was sounded; that the motorneer, just prior to the accident, was not keeping vigilant lookout; that there was no light burning on the car; and that appellee was in the exercise of due care. There was evidence for appellant tending to prove that the car was running only five or six miles per hour; that the gong was sounded at the street crossing about 360 feet north of the place of the accident; that the motorneer was at his post and was keeping a vigilant lookout; that there was a light on the front of the car; and that appellee was guilty of contributory negligence. The whole evidence fairly tended to prove all the material averments of the declaration and the court did not err in denying the motion to direct a verdict. Libby, McNeill & Libby v. Cook, 222 Ill. 209, and cases there cited.

The real controversy is one of fact, and it was the peculiar province of the jury to weigh the evidence and reconcile it if possible, or if it could not be done, decide it according to the weight of the evidence as it might have appeared to them. Therefore, whether the circumstances were such as to show that the negligence of appellant caused or contributed to the injuries sustained by appellee, and whether there was negligence on the part of appellee which contributed to the injury, were questions of fact to be determined from all the evidence by the jury. Upon the motion for a new trial the trial court had a supervisory power over the verdict of the jury on these questions of fact. When the trial court refuses a new trial and enters judgment upon the verdict, and the defeated party removes the cause to this court for review, it then becomes the duty of this court to exercise a like supervisory power over the verdict, and to reverse the judgment founded thereon where, upon a consideration of the testimony, • we find that such a verdict is clearly against the weight of the evidence. C. & A. R. R. Co. v. Heinrich, 157 Ill. 388; C. & E. R. R. Co. v. Meech, 163 Ill. 305; Chicago City Ry. Co. v. Mead, 206 Ill. 174. But where upon such consideration of the evidence we are unable to say that the verdict is clearly against the weight of the evidence, then the verdict of the jury, approved by the trial judge, who saw the witnesses, should be decisive of the questions of fact. Under these rules of law, we do not consider that the condition of the evidence would justify us in disturbing the conclusions of the jury upon the questions of fact.

Appellant’s contention that the remittitur did not make the judgment “righteous” was not argued. It may therefore be considered as waived. W. St. L. & P. Ry. Co. v. McDougal, 113 Ill. 603; Keyes v. Kimmel, 186 Ill. 109; Calumet Furniture Co. v. Reinhold, 51 Ill. App. 323; Chicago Union Traction Co. v. Lawrence, 113 Ill. App. 269. However, we do not consider the amount of the judgment too great a compensation for the injuries appellee sustained.

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

Affirmed.


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    H. H. Gunther, Appellant, v. Chicago, Burlington & Quincy Railway Company et al., Appellees.
    Gen. No. 5504.
    1. Contracts—remedy for failure of corporation to execute. If the agents of a railroad company agree to execute a certain contract and the railroad company fails or refuses to execute such contract, the remedy is by mandamus.

    2. Employer and employe—right of former to discharge. In the absence of a definite contract for a term of employment the employer may discharge his employe at will.
    Appeal from the Circuit Court of Knox county; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    R. D. Robinson, for appellant.
    Williams, Lawrence, Welsh & Green and F. O. McFarland, for appellees; J. A. Connell, of counsel
   Mr. Justice Willis

delivered the opinion of the court.

On January 18, 1908, H. H. Gunther brought this suit in case in the Circuit Court of Knox county, against the Chicago, Burlington & Quincy Railway Company and three of its officers, H. D. Judson, J. W. Mulhern and W. H. Manss, to recover damages claimed to have been suffered by reason of the failure of the railway company to execute a contract for certain railway facilities, and for wrongfully discharging him from its employ. Later, the case was dismissed as to the railway company and the declaration several times amended. A demurrer was sustained to the last amended declaration, and Gunther elected to abide by it, and the defendants had judgment for-costs. Gunther prosecutes this appeal.

The declaration, as finally amended, contained two counts. The first charged that appellant was, and had been for ten years, an employe of the C. B. & Q. Ry. Co. and as such employe was connected with its construction department; that while in the employ of said company he had become the lessee of certain lands in Bureau county, with the right to move the gravel and sand therefrom; that to make its operation profitable, he needed a side track and switch tracks from the railway to said land, and applied to the railway company therefor; that the company, through its agents, caused a written contract with him for the construction of tracks connecting with the railway to be prepared; that he signed it on the understanding that the company would execute it, and thereupon with the consent of the railway company he spent large sums of money in the construction of a grade, side tracks and switches to and upon said land; that at the time appellees were officers of the railway company and knew the facts in relation to the lease and contract and the expenditures made by him; that they, wrongfully and unlawfully conspiring to injure him, threatened that if he did not convey the lease to them or the railway company, they would cause it to refuse to execute said contract and would secure his discharge from its employ; that he refused to surrender the lease, and thereupon appellees, as officers and agents of said railway company, caused it to refuse to execute the contract and procured his discharge from its employ, that as the result appellant has been unable to operate his gravel pit and has lost larg'e profits thereby. The second count was substantially the same as the first, except that it charged that because of said wrongful, unlawful and malicious acts of appellees, appellant lost his position as an employe of the railway company, and the wages that he might have made in that employment.

It appears that some agents of the company had drawn up a contract between it and appellant for putting a track and switches into his gravel pit to connect with the railway company’s system. He signed the contract. The railway company did not. . The promise of the agents that'the railway company would sign it was not in writing. If the railway company wrongfully failed to sign it and if the fact that appellant expended money in the expectation that the railway company would sign it gave him a right to have it signed, then his remedy is an action for mandamus, or some other appropriate action against the company.

The nature of a corporation aggregate is such that it can only perform its corporate functions and duties through representatives. Elliott on Railroads, sec. 203. It may be that these officers found that the contract was unfavorable to the company, or that it was giving appellant special privileges, which it had no right to grant. It may be that they found that the contract was illegal, or that appellant was using his position as an employe to get advantages. If so, they were in the lawful discharge of their, duty in refusing to enter into the contract. There can be no conspiracy to do a lawful act. There is no fact stated which shows that appellees, as officers, did anything less than their duty to the' company in causing the contract to be rejected.

There, is nothing in the declaration to show that appellant had a contract for any special term of employment. In the absence of a definite contract for a term of employment the master may discharge his employe at will. What the master may lawfully do in the conservation of his business the officer or agent as such may lawfully do in the proper discharge of his duty. Elliott on Eailroads, supra. The officers had a right to discharge appellant at any time for a reason unknown to him, or simply because they preferred not to have him in the employ of the company, or preferred to have some other man in his place. It certainly would be' a strange doctrine to announce that, whenever an employe is discharged by the corporation for which he is working and he has no contract for a stipulated term, he may hold the officers discharging him liable therefor.

There was no statement in either count of the declaration that the acts charged against appellees were performed with a view to their private gain.

Neither count of the declaration stated a cause of action and the demurrer was rightfully sustained thereto.

The judgment of the Circuit Court is affirmed.

Affirmed.

Thompson, P. J., took no part.


text:
    Julia Wall, Appellee, v. Brotherhood of Painters, Appellant.
    Gen. No. 5508.
    1. Feateenal benefit societies—when provision for suspension self-executing. A provision in the constitution of a fraternal benefit society is self-executing which provides that if a member be indebted for dues for a certain period he shall stand suspended without vote being taken to that effect.
    2. Fbatebnal benefit societies—what does not waive suspension. The acceptance of premiums after a suspension has automatically been effected, does not waive the suspension in the absence of evidence showing intention of waiver.
    Assumpsit. Appeal from the County Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed with finding of facts.
    Opinion filed October 13, 1911.
    Jack, Irwin, Jack & Miles, for appellant.
    Stevens, Miller & Elliott, for appellee; H. O. Morgan, of counsel.
   Mr. Justice Willis

delivered the opinion of the court.

This is a suit in assumpsit brought by Julia Wall, widow of Henry Wall, deceased, in the County Court of Peoria county to recover benefits under his membership in the Brotherhood of Painters, Decorators and Paper Hangers of America. The Brotherhood is a union as well as a beneficiary society, and is affiliated with the American Federation of Labor and National Building Trades Council. No benefit certificate was issued, but each member had a book in which payments of monthly dues were entered, and also had a union card. The declaration contained the common counts and a special count setting up verbatim sections 27, 46, 93 and 100a of the constitution, and averred that Wall, up to the time of his death, May 7,1909, had continuously been a full beneficial member in good standing for more than seven years before his death; that he died without naming any beneficiary; and that his widow was entitled to benefits; that a claim was made in accordance with the rules of the Brotherhood, and payment refused. Accompanying the declaration was an affidavit stating that her claim was for a death benefit of $250 principal and $12.50 interest. The Brotherhood interposed a plea of non-assumpsit and gave notice that on the trial it would offer in evidence sections 27, 46 and 93 of the constitution, and filed an affidavit which stated that by failure to comply with the requirements of said sections, Wall, stood suspended and was not in continuous good standing during the period of six months immediately preceding his death. At the close of all the evidence the court refused an instruction directing a verdict for the Brotherhood. 'A trial resulted in a verdict for $270.29. A motion for a new trial was made, a remittitur of $3.13 was entered, the motion for a new trial was denied, judgment was entered for $267.16, and the Brotherhood prosecutes this appeal. Appellant contends that the court below erred in refusing to direct a verdict; in giving the instructions requested by appellee; in refusing to give instructions requested by appellant; in modifying an instruction requested by appellant and in giving the instruction so modified, and in overruling a motion for a new trial.

From the view we take of the evidence it will be necessary to consider appellant’s first contention only. Sections 27 and 100a of the constitution set out in the special count and referred to in the notice, need not be further mentioned. Section 93 of the constitution gives the wife of a full beneficial member at his death a benefit of $250 on a membership of between seven and ten years, “provided the member has not been indebted for an amount equal to 3 months’ dues, but has been in continuous good standing during the period immediately preceding his death.” Wall died May 7, 1909, more than seven years after he became a member of the Brotherhood. His membership book was introduced in evidence. It showed that the dues for December, 1908, were paid March 3, 1909; that the dues for January and February, 1909, were paid March 31, 1909; that the dues for March, 1909, were paid April 21, 1909, but it did not show payment of a reinstatement fee. No section of the constitution was introduced showing when dues were payable, but oral testimony was admitted without objection that they were due on the first Wednesday of each month. Therefore, the dues for December were due on Wednesday, December 2, 1908; the dues for January were due on the first Wednesday in January, and the same is true for February and March, 1909, and Wednesday, March 3, 1909, when the payment for March was due, the dues for the three preceding months had not been paid. The 46th section of the constitution provides: “Any member indebted for 3 months’ dues shall stand suspended, a vote of the L. U. not being required to suspend him. His membership book shall be deemed sufficient notice of arrears and no further notice be required from the financial secretary.” This section is plainly self-executing or automatic. Lehman v. Clark, 174 Ill. 279; National Union v. Shipley, 92 Ill. App. 355; Dillon v. National Council, 148 Ill. App. 121; Taufer v. Brotherhood, 122 N. Y. Supp. 527; Freckmann v. Supreme Council of Royal Arcanum, 70 N. W. 1113; Field v. National Council of Knights and Ladies of Security, 89 N. W. 773. By the failure of Wall to pay the December, January and February dues until in March, 1909, all his rights under his membership in the Brotherhood were suspended ipso facto, without any act of any kind by anyone else to complete such suspension. National Council v. Burch, 126 Ill. App. 15; Dillon v. National Council, supra.

Appellee’s contention is that because there is no record of the collection of the $1 reinstatement fee the acceptance of arrearages amounted to a waiver of the automatic suspension.

In Field v. National Council, supra, the court said, quoting from the decision of the Supreme Court of Nebraska: “ The doctrine of waiver, which is often appealed to, to prevent forfeitures in the case of policies of insurance, has no application to the forfeitures of memberships in these orders. The laws and rules governing the different branches of such an order are in the nature of contracts among all the members, and considering the widespread extent of these organizations, and the very great extent to which these schemes of benevolence have taken the place of life insurance, especially among the working classes, it is highly important as a principle of public policy, that in cases of this kind their rules and regulations should be substantially upheld by the. judicial courts. State v. Temperance Benevolent Association, 42 Mo. App. 485; Karcher v. Supreme Lodge, 137 Mass. 368; Hall v. Supreme Lodge, 24 Fed. 450; Rood v. Association, 31 Fed. 62.” To the same effect are Royal League v. Moerschbaecher, 88 Ill. App. 89, afterwards affirmed in 188 Ill. 9.

There is nothing in the record to show that it was intended by accepting the payments to waive the requirements of section 46 of the constitution, which provides: “A suspended member shall not again be placed in benefits until 6 months from the date of settling in full all arrearages.” It is no doubt true that the acceptance of the arrearages by the secretary would effectuate a valid reinstatement, but this would not contravene the express terms of section 46, which says: “Failure of the financial secretary to report suspension or collect reinstatement fees shall not constitute a waiver of default nor entitle the member to benefits for period prior to such payment of arrearages.” Such reinstatement, by section 46, precluded him from benefits for the period of 6 months thereafter, within which time he died. It is clear to us that the acceptance of arrearages was not a waiver of the requirements of section 46, and that at the time of his death he had not been in continuous good standing during the period of six months immediately preceding his death. Not being entitled to benefits when he died, appellee, as the widow, cannot recover, and the court erred in refusing to direct a verdict for appellant.

Reversed.

Finding of facts, to be incorporated in the judgment :

We find from the evidence under the constitution of the Brotherhood that Henry Wall was not in the benefit class at the time of his death, and that his widow is not entitled to benefits.


text:
    S. T. Osgood et al., Appellees, v. Mrs. A. A. Poole, Appellant.
    Gen. No. 5511.
    1. Interest—when mechanic's lien law will not support recovery. Interest is not recoverable by virtue of the mechanic’s lien law if the proceeding be not one under such law, and if there is nothing in the record to show the right to a mechanic’s lien.
    2. Interest—how unreasonable and vexatious delay of payment established. No fixed rule can be laid down to determine what constitutes unreasonable and vexatious delay in payment. The question is one of fact to be decided by the jury under the peculiar circumstances of each particular case.
    3. Evidence—when best, required. If a contract be in writing and objection is made to oral evidence to prove the terms of such contract, the written contract should be required or its absence accounted for.
    4. Evidence—when conversation with representative competent. Conversations with one who was the agent and representative of the party with respect to the subject-matter of the controversy, are competent and should be admitted.
    5. Evidence—when improper to read from account book. It is error to permit a witness to read into the record items contained in an account book, no foundation for the introduction of such account book having been made.
    6. Evidence—when documentary not offered at proper time. A defendant is not entitled to introduce documentary evidence until the plaintiff has closed his case in chief.
    7. Abbitbation and awabd—what essential to valid award. If an agreement of arbitration provides that the finding of the arbitrator shall be reduced to writing, a written award is essential.
    8. Abbitbation and awabd—what works revocation of agreement to arbitrate. The institution of a suit to recover for the subject-matter of the arbitration is by implication a revocation of the agreement to arbitrate.
    Assumpsit. Appeal from the Circuit Court of LaSalle county; the Hon. Edgab Eldeedge, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed and remanded.
    Opinion filed October 13, 1911.
    Opinion modified, rehearing denied, November 23, 1911.
    E. C. Van Hoorebeke and H. M. Kelly, for appellant.
    M. N. Armstrong and I. I. Hanna, for appellees.
   Mr. Justice Willis

delivered the opinion of the court.

On September 14, 1903, appellees, contractors and builders at Marseilles, Hlinois, entered into a written contract with appellant to move back an old house and build an addition of six rooms to it for $1250. On October 14, 1903, they made another written contract to build two more rooms to the house for $225. Under the first contract the work was to be completed December 1, 1903. No time was specified for the completion of the work in the second contract. Changes were .made from time to time as the work progressed. The work was not completed until June 1,1904. Thereafter appellees brought a suit against appellant in the Circuit Court of LaSalle county to recover a balanee claimed to be due them, and later entered into a written agreement with appellant to arbitrate their differences and dismissed the suit. Arbitrators were selected and they decided that neither party owed the other, but did not then reduce their decision to writing. On August 15, 1908, appellees commenced this suit and filed a declaration containing the common counts and a bill of particulars claiming a balance due, with interest thereon. Appellant filed a plea of the general issue with notice of set-off, and a special plea setting up an arbitration and award, and a bill of particulars claiming damages for delay in the completion of the work. Appellees filed a similiter to the general issue and four replications to the plea of arbitration and award. The first replication denied that an award was made and on this issue was joined. A demurrer was sustained to the second, third and fourth replications. They were amended and again demurred to and the demurrer was carried back and sustained to the plea of arbitration and award. Appellant abided by her plea. Upon a trial appellees obtained a verdict for $530, $130 of which was for interest. A motion for a new trial was denied, judgment was entered on the verdict, and this appeal was prosecuted by defendant.

In the first, second and sixth instructions given for appellees the court told the jury if they found any sum was due, they should allow interest thereon at 5% per annum. The mechanics’ lien law allows interest on the amount due on a building contract when the action to recover the same is brought within the requirements of the statute and maintained, but this is not a mechanics’ lien suit, nor is there anything in the record that tends to show that appellees were ever entitled to a mechanics’ lien, and if they were, they are not now seeking to enforce it. They were not entitled to interest for an amount due on an instrument in writing, as the evidence shows that the amounts due on the written contracts were paid, this suit being brought for extras. Therefore, if they were entitled to interest it would be by force of the last clause of section 2 of the Interest statute, which provides that interest may be allowed on money withheld by an unreasonable and vexatious delay of payment. No fixed rule can be laid down to determine what constitutes such unreasonable and vexatious delay in payment as will entitle the creditor to interest. The question must necessarily be decided to a very considerable extent from the circumstances of each particular case. Sammis v. Clark, 13 Ill. 544; Board of Education v. Hoag, 25 Ill. App. 558. A mere failure to pay a claim or demand or the defense of such a claim will not necessarily constitute the delay in payment unreasonable and vexatious. Devine v. Edwards, 101 Ill. 138; County of Franklin v. Layman, 145 Ill. 138. The mere fact of appearing and defending a suit is not sufficient, because that is a right which cannot be construed into an unreasonable and vexatious delay of payment. Imperial Hotel Co. v. Claflin Co., 175 Ill. 119. “To create an unreasonable and vexatious delay in payment, within the meaning of the statute, there must be something more than mere delay of payment. To authorize the recovery for interest the debtor must in some way throw obstacles in the way of collection, by circumvention, contrivance or management of his own, which induces the court to withhold proceedings against him longer than it would otherwise have done. ’ ’ Imperial Hotel Co. v. Claflin Co., supra. Appellant claimed more for damages for delay in the work and loss of rent than appellees sought to recover, and apparently there was an honest difference of opinion between them. We find nothing in the record which would justify the trial judge in holding, as a matter of law, that there had been an unreasonable and vexatious withholding of payment on the part of appellant. Whether or not money has been withheld by an unreasonable and vexatious delay of payment is a question of fact’for the jury. Kennedy v. Gribbs, 15 Ill. 406; Davis v. Kenaga, 51 Ill. 170; Board of Education v. Hoag, supra. It was error for the court to direct the jury to allow interest if they found any sum due appellees.

One of appellees was permitted to testify that certain improvements were made, which were not in the original contract, when the contract had not been produced in evidence. The questions that elicited this evidence were asked and answered over the special objection of appellant that the contract itself was the best evidence of what was or what was not contained therein. The contract was in writing, and in existence, and should have been produced.

Appellant was not permitted to relate a conversation which she claimed to have had with one Watson, appellees’ superintendent in the construction of the house, concerning a change in the original contract with relation to the front porch. Appellees’ evidence shows clearly that Watson was not only their representative, but was in charge of the work, and under that proof he had power to bind appellees. Appellant should have been permitted to testify to any conversation she and Watson had in relation to any changes made about the work.

One of appellees, when testifying to the items going to make up their claim, was permitted to read from an account book, without first laying the statutory foundation for its introduction in evidence. It was error to permit him to read into the record the items of account contained in the book. The foundation for its introduction was afterwards laid and the book admitted in evidence, and the error measurably cured. It is not clear, however, that the book was properly admitted, there being some proof tending to show that it was not kept in the regular course of business and that some of the entries were not made on the date they purported to be. But we think no harmful error resulted therefrom.

It is contended that the court erred in refusing to admit in evidence a bill rendered by one Wilson to appellant, the same being for hardware which she claims was used in the building. This contention does not fairly represent the true state of the record for the reason that when one of appellees was being examined, he was shown, on cross-examination, this bill, and asked if he did not direct appellant to pay it and that he would pay her, and he denied this. Thereupon counsel for appellant offered the bill in evidence, and the court then held that it ought not to be admitted until appellant began introducing her proof. Appellant’s counsel persisted in the offer and the court sustained the objection. This ruling was proper because the time had not yet arrived when appellant was entitled to introduce evidence, as appellees had not yet closed their case in chief; also for the further reason that the witness denied that he directed appellant to pay the bill. There was then no evidence which justified its admission. Afterwards, appellant, in making her case, testified that she presented said bill to one of appellees, and he told her to pay it and she would be allowed for it. This testimony laid a foundation for the introduction of the bill, but appellant did not thereafter offer it. Therefore the court did not err concerning the Wilson bill.

It is contended that the court erred in carrying the demurrer to the amended replications back to the plea of arbitration and award and sustaining the same thereto. Parties submitting their differences to arbitration have a right to impose any conditions they see fit. The plea of arbitration and award set out a submission in writing which required the finding of the arbitrators to be reduced to writing. The parties having imposed a condition that the award should be in writing, it was essential, to make a valid award, that it should be in writing. The authority of arbitrators is subject to revocation by either party to the suit at any time before the award is made. Morse on Arbitration and Award, 230. The institution of a suit to recover for the subject-matter of the arbitration was by implication a revocation of the agreement to arbitrate. Morse on Arbitration and Award 236; Frink v. Ryan, 3 Scam. 322; Ross v. Nesbit, 2 Gilm. 252; Paulsen v. Manske, 126 Ill. 72; Crilly v. Philip Rinn Co., 135 Ill. App. 198. But it does not appear from the face of the plea itself that the contract to arbitrate was rescinded before the award was reduced to writing. We.therefore conclude that the court should not have carried the demurrer back to the plea; and as it does not appear that the amended replications are defective, the demurrer should have been overruled.

The judgment is therefore reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.


text:
    Media State Bank, Appellant, v. G. M. Garrett, Appellee.
    Gen. No. 5514.
    1. Set-off—what not proper subject of. A matter originating after the institution of suit is not the proper subject-matter of set-off.
    2. Appeals and errors—when erroneous evidence afterwards stricken will reverse. If the harm resulting from the admission of erroneous evidence is not removed by the subsequent striking thereof, a reversal will he awarded.
    Assumpsit. Appeal from the Circuit Court of Henderson county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the April term, 1911.
    Reversed and remanded.
    Opinion filed October 13, 1911.

      Safford & Graham and Scofield & Califf, for appellant.
    James W. Gordon and O’Harra, O’Harra, Wood & Walker, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This is an action in assumpsit with an attachment in aid brought by the Media State Bank against G. M. Garrett as endorser and guarantor of a note for $530 dated February 8, 1908, payable one year after date to the order of Garrett with interest at 7% per annum, signed by James E. Wolfe. A demurrer was sustained to the declaration. The áttachment was dismissed. The amended declaration contained the common counts and two special counts. The first special count declared on the note and set out the endorsement and guarantee, and averred that the note was presented for payment when due but was not paid by Wolfe and by reason thereof Garrett became liable therefor. The second special count was practically the same as the first except that it set up the note in haeo verba. Pleas of non-assumpsit and set-off were filed. After the evidence was all in the plea of set-off was withdrawn and the evidence in support of it excluded and special pleas 3 and 4 were filed. The 3rd alleged that Garrett delivered to the Bank another ■note given by Wolfe to Garrett and a mortgage given by Wolfe to secure the note, which were accepted in satisfaction of the promises mentioned in the declaration. The 4th was substantially like the 3rd. Replications denying the averments of these pleas were filed. Upon the issues so formed'the case was submitted to the jury, and it found for Garrett. The Bank’s motion for a new trial was overruled, and Garrett had judgment for costs, from which the Bank appeals.

Appellant contends that the verdict is clearly against the weight of the evidence, and that the court erred in admitting improper evidence hearing on the plea of set-off.

Appellant made preliminary proof of the execution of the note and of the endorsement and guarantee thereon, and the note and endorsement were admitted in evidence. This made a prima facie case, and cast the burden upon appellee to establish by a preponderance of the evidence the defense of accord and satisfaction set up in special pleas 3 and 4.

The evidence shows that on February 8,1907, James E. Wolfe borrowed $530 from appellant and gave a note therefor due six months after date, signed by himself and appellee; that it was- entered by appellant’s assistant cashier and book-keeper in its note register as of that date; that the note sued on was entered therein April 14, 1908; that on February 8, 1908, or within a day or two afterwards, Wolfe and appellee went to the Bank and Wray, the cashier, wrote the note sued on and drew up a mortgage securing the same on Wolfe’s homestead; that Wolfe took the mortgage to get his wife’s signature, in which he failed; that he executed it on February 17, 1908, and the cashier sent the mortgage for record, and the same was recorded on March 2, 1908; that the new note was made payable to appellee and signed by Wolfe; that on April 14,1908, Wolfe and appellee went to the Bank and Wray stamped on the back of the note sued on the endorsement and guarantee contract which appellee signed, and delivered the new note to the Bank. Wray surrendered the old note to Wolfe, who delivered it to G-arrett. Appellee testified that the cashier wrote two notes, dated February 8, 1908, payable to himself, for $530 each, one year after date, which were signed by Wolfe, which notes were exactly alike except that one of them showed on its face it was secured by a mortgage on real estate; that Wray took the note which was not marked secured by a mortgage in payment of the note of February 8, 1908; that afterwards in May he delivered the note which stated that it was secured by a mortgage to Wray, who accepted it and the mortgage in discharge of the other note, and stated at the time that he would hand him the note so satisfied in a little while. Wray testified that he did not prepare two notes on February 8,1908, or about that time, but only one, it being the note in suit, and prepared the mortgage, and that April 14, 1908, appellee signed the guarantee on the note and delivered the note to him as cashier of the Bank and that he surrendered the note dated February 8, 1907; that some time afterwards, probably in the fall, the mortgage was turned over to him that he might see what could be done with it for the protection of appellee, but not in satisfaction of the note. The assistant cashier and book-keeper testified that she kept the note register correctly; that there was but one such note dated February 8, 1908, upon the register, and that it was entered April 14, 1908. The entries on the note register were admitted in evidence and they showed no such second note. On February 9, 1909, Wray, Wolfe and appellee met. Appellee said, “What about the note’?” Wolfe replied that he would fix the note up and send Wray the money in a short time. There was no proof that appellee demanded that the note be surrendered to Mm. Appellee testified that he spoke to Wolfe about the note for Wray’s sake only.

Appellee’s testimony was not corroborated by any other evidence. Wray’s testimony, wMch directly contradicted that of appellee, was corroborated by the testimony of the assistant cashier and book-keeper, the entries upon the note register, the conversation wherein appellee spoke to Wolfe about the payment of the note, the fact that appellee did not demand the surrender of the note, and the presumption of ownership arising from the Bank’s possession of the note. One paying in discharge of an obligation usually takes it up. We think the evidence clearly fails to establish appellee’s defense of accord and satisfaction.

The verdict against appellant may, in onr opinion, be partly accounted for by the prejudice produced against it upon the introduction in evidence by Garrett, as is urged under the plea of set-off, of an affidavit for an attachment filed in this case to recover between seven and eight thousand dollars upon a large number of notes, including the one here sued upon; of an attachment writ; of its levy upon real estate of Garrett; of an attachment bond and of the dismissal of the attachment and a release of the attachment levy, and of the sustaining of the demurrer to the original declaration and of the leave given to file an amended declaration herein, which is the declaration upon this note, together with the testimony of Garrett that in settling the attachment suit, so far as it related to the other notes, except this $530 note, which he refused to settle, the officers of the Bank compelled him to allow an attorney’s fee of $200, which he testified he resisted but finally yielded to. The pretense was that this $200 was to be recovered as a set-off. Of course as the $200 matter did not originate till after the present suit was begun, it could not, under any circumstances, be set-off in this suit. Pettis v. Westlake, 3 Scammon, 535. This evidence was wholly calculated to make a jury think that the Bank was pressing Garrett and when that effect had been produced the plea of set-off was withdrawn, and in a general way the evidence under the plea of set-off was informally treated as excluded, but the effect naturally remained. We are of the opinion that its exclusion did not remove the sympathy and prejudice in the minds of the jury made by its introduction.

Where the case is close on the facts, incompetent evidence is necessarily prejudicial. Frike v. Orr, 109 Bl. App. 200. The exclusion of incompetent evidence does not always cure the prejudice'resulting from its admission. City of Joliet v. Donnelly, 129 Ill. App. 119. The same rule is necessarily applied where the evidence when admitted was competent under the plea of set-off, where that plea was afterwards withdrawn, and the evidence was highly prejudicial or misleading on the other issue, on the ground that the exclusion of the evidence under such circumstances could not efface the impression already made thereby on the jury, nor could such evidence be rendered harmless by instructions. The erroneous admission of evidence, subsequently stricken out, is sometimes, in connection with other error, ground for reversal. Miller & Gassaway v. Wabash R. R. Co., 123 Ill. App. 60.

We are therefore of the opinion that the court erred in not granting a new trial.

The judgment is reversed and the cause remanded.

Reversed and remanded.


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    Samuel T. Stites, Appellee, v. Egbert T. Wilson, Appellant.
    Gen. No. 5519.
    Landlord and tenant—effect of hold-over. Where a tenant holds over after the expiration of his term, without any new contract in respect thereto, the landlord has the option to treat him as a trespasser, or waive the wrong of holding over and treat him as a tenant for another year, upon the same terms' as in the original lease; and if there is no conflict in the evidence as to the facts, the question whether such hold-over tenant became a trespasser is one of law to be determined by the court.
    Forcible detainer. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed.
    Opinion filed October 13, 1911.
    E. D. Reynolds, for appellant.

      Fisher & North, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This was an action of forcible detainer brought on December 7, 1909, by appellee under clause 4, section 2, chapter 57, Hurd’s E. S., before a justice of the peace of Winnebago county against appellant to recover the possession of a house and lot, situated in the city of Rockford, and afterwards taken on appeal to the Circuit Court of said county. On the trial there, appellee introduced in evidence a warranty deed of the premises in controversy, proved that he then owned the same and that he served a thirty day notice on appellant to quit possession thereof on or before December 6, 1909; that appellant was in possession, and rested. Appellant testified in his own behalf and rested. Thereupon the court directed the jury to find the appellant guilty of unlawfully withholding the possession of the premises. The jury found him guilty. A motion for a new trial was denied. Judgment was entered on the verdict and this appeal was taken to review the judgment.

The evidence shows that appellant lived in East Rockford; that Addie E. Wilson, his mother, owned several houses in South Rockford, one of which she occupied; that in the spring of 1907, she entered into a verbal agreement with appellant that he might occupy with her the premises involved in this suit, in consideration that he would care for her property and collect the rents. Appellant moved into the premises April 6, 1907, cared for her property and collected the rents until December following, when she finally ceased living there and informed him that her son George would thereafter collect her rents. Appellant testified that he entered upon a tenancy of the premises for one year, commencing April 6, 1907, and ending April 6, 1908; that in April, 1908, his mother told him that he could stay one more year, and that he supposed his second lease started from April 6, 1908. In November, 1908, she demanded possession of the premises, and on his refusal to surrender them, commenced a suit in forcible detainer to recover their possession, which she afterwards dismissed, and sold the property to appellee.

It is contended that appellant’s tenancy was from year to year and could not be terminated without the 60 day notice required by section 5, chapter 80, Hurd’s E. S.

“When one is a tenant of premises for a year, under either a written or verbal lease, and the tenant and the landlord come together at the end of the year, and the tenant says to the landlord that he will stay for another year, and the landlord assents to it and the rent is paid at the former rate, that is a leasing for one year, and does not create a tenancy from year to year. A tenancy from year to year will be created where a tenant holds over, after the expiration of a former lease, for one or more years, and pays rent, nothing being said between the parties, no agreement as to the time he shall hold being made.” Johnson v. Foreman, 40 Ill. App. 456. Appellant’s possession from April 6, 1908, to April 6, 1909, was a new leasing for one year, which expired April 6, 1909, according to his own evidence.

Where a tenant holds over after the expiration of his term, without any new contract in respect thereto, the landlord will have the option to treat him, as a trespasser, or waive the wrong of holding over and treat him as a tenant for another year, upon the same terms as in the original lease. Goldsbrough v. Gable, 140 Ill. 269; Eppstein v. Kuhn, 225 Ill. 115; Weber v. Powers, 213 Ill. 370. After April 6, 1909, appellant had no contract to retain possession of the premises, and he neither paid nor tendered rent therefor, and his holding over thereafter, made him either a trespasser or a tenant at will. Therefore, appellee who became the owner December 5,1908, had the option as landlord to treat him as a trespasser or waive the wrong of holding over and treat him as a tenant. He elected to treat appellant as a trespasser or tenant at will, and neither the notice required by section 5, chapter 80, Hurd’s E. S., or the 30 day notice that he gave appellant, was necessary for the maintenance of the suit.

It is also contended that the legal presumption arising from the holding over, is that appellant became a tenant from year to year, and that said presumption can only be rebutted by proof of a contrary intention; and whether appellant did hold over was a question of fact to be determined by the jury, and the peremptory instruction should not have been given. In the several cases cited in support of this contention, the evidence was conflicting.' In this case no one disputed the testimony of appellant upon the sole point controlling the case. There was no conflict in the evidence and the facts controlling the question were admitted. There was nothing under the admitted facts for a jury to pass upon. Therefore, the question of appellant’s tenancy became a question of law, and it was not error for the court to instruct the jury to find the defendant guilty.

The judgment is therefore affirmed.

Affirmed.


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    Edward A. Welch, Appellant, v. City of Highwood, Appellee.
    Gen. No. 5524.

      Injunctions—when suggestion of damages filed in apt time. A suggestion of damages filed within the time fixed by the decree disposing of the case, is in apt time.
    Bill for injunction. Appeal from the Circuit Court of Lake county; the Hon. Chaims H. Donneely, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed in part and reversed in part.
    Opinion filed May 25, 1911.
    Cooke, Pope & Pope, for appellant.
    O. S. Gooch, for appellee; E. S. Gail, of counsel.
   Mr. Justice Willis

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of Lake county assessing damages in the sum of $200 against Edward A. Welch, appellant, on an amended suggestion of damages, based principally on services rendered by a solicitor in procuring the dissolution of an injunction restraining the city of Highwood, appellee, its officers and agents, from cutting off appellant’s water supply. An injunction was granted on the bill without notice. An answer denying the material allegations of the bill, supported by affidavits, was filed, and a motion was made to dissolve the injunction. A replication was filed to the answer. A hearing was had on the bill, answer and affidavits; and the injunction was dissolved, and the bill dismissed for want of equity. An appeal was granted and leave given to file a suggestion of damages. The suggestion was filed and the hearing thereon continued. The appeal was prosecuted to this court, and the decree was affirmed for want of a certificate of evidence. After-wards a rehearing was granted here and appellant allowed to dismiss the appeal without prejudice and to withdraw the record. Welch v. City of Highwood, 150 Ill. App. 397. The suggestion remained undisposed of pending the appeal. The final order of this court was filed below and the cause was redocketed, and leave was given to amend the suggestion. An item was added to the suggestion, for damages sustained for following the appeal to this court. Proof was heard on the suggestion as amended, and the sum of $200 was allowed appellee as damages, and this appeal is prosecuted to reverse that decree.

Section 12 of the Injunction Act provides as follows: “In all cases where an injunction is dissolved by any court of chancery in this state, the court, after dissolving such injunction, and before finally disposing of the suit, upon the party claiming damages by reason of such injunction suggesting in writing the nature and amount thereof, shall hear evidence and assess such damages as the nature of the case may require and to equity appertain, to the party damnified by such injunction,” etc.

Fry v. Radzinski, 219 Ill. 533, relied on by appellee to sustain the decree, involved an appeal from a motion granting an injunction, and it was there held that in such case the appellant was entitled to damages for solicitor’s fees for services rendered in the Appellate Court in procuring the dissolution of the injunction, and that the Circuit Court should assess them. The Fry case is not in point here, except as it relates to the power of the lower court to assess the damages, because there was no injunction in this court on the former appeal.

Appellant contends that the suggestion of damages was filed after the decree was entered and appeal prayed, which was too late. The statute allows the court in which the proceeding is pending to assess damages caused by the improvident issuing of an injunction, at any time before the suit is finally disposed of. Wing v. Dodge, 80 Ill. 564. The record shows that the leave to file the suggestion of damages was a part of the decree dissolving the injunction, dismissing the bill, and allowing the appeal; and it was in apt time, under the authority of Johnson v. McNellis, 228 Ill. 351.

The proof shows that appellee’s solicitor charged $137 for services in the Circuit Court, and that that was a reasonable fee for the services rendered, and had been paid by appellee. The proof also shows that during the hearing below appellee withdrew $3 of that charge, leaving its claim here for solicitor’s fees in the court below $134. The proof also shows that appellee paid $1.25 notary fees in administering the oath to affiants whose affidavits were filed in support of the motion to dissolve the injunction. The allowance was supported by the evidence to the extent of $135.25. The balance being for services in this court, not rendered in procuring tbe dissolution of the injunction, was erroneously allowed.

The decree will therefore be affirmed for $135.25 and reversed- as to the remainder at the costs of appellee.

Affirmed in part and reversed in part.


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    George J. Sutherland, Appellant, v. Rockford & Interurban Railway Company, Appellee.
    Gen. No. 5530.
    1. Child labob law—act construed. Held, that the child labor law was intended to apply only to the employment of children under stated ages in stores, factories, work-shops and other buildings and enclosed places where uny labor is performed, and that it was not intended to apply to the employment of children outside.

      2. Statutoey law—rule of efusdem generis. Under this rule general words following an enumeration of particular cases are held to apply only to cases of the same kind as those which are expressly mentioned.
    3. Pleading—when declaration by servant defective. If a servant charges negligence resulting in his injury he should also allege that such negligence was not that of a fellow-servant, if under the facts set up the injury might have resulted from the negligence of a fellow-servant.
    Action in case for personal injuries. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the April term, 1911.
    Affirmed:
    Opinion filed October 13, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Charles W. Ferguson and A. D. Early, for appellant.
    Fisher & North and R. K. Welsh, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

The declaration sets forth the following state of facts. On August 9, 1908, the Rockford & Interurban Railway Company, appellee herein, owned and operated a system of street railway lines in and about the city of Rockford. It conducted an amusement resort, known as Harlem Park, near the city of Rockford, and one of its lines ran to this park. During the park season, it often became necessary to attach extra cars, or “trailers,” to the regular cars running to and from Harlem Park, and these trailers were in charge of ene man, whose principal duties seem to have been to operate the brake of the trailer and signal the motorman of the regular car when passengers desired to alight from such trailer. On the date in question, and for some time prior thereto, George J. Sutherland, appellant herein, had been employed by appellees at different times to take charge of a trailer on trips to and from Harlem Park. He had worked on the afternoon of August 9th in such employment and, when he ceased work at six p. m., had been directed to report at seven p. m. for further work. He reported at the general office of appellee in the city of Rockford and was directed to proceed to the company’s barns, near Harlem Park, and there report to the ‘ ‘ starter, ’ ’ who would put him in charge of a trailer. He proceeded to the barn and, not finding the starter there, attempted to board a moving car of appellee for the purpose, as alleged, of riding to another point where he expected to find the starter. In some way, he lost his hold on the grab handle on the side of such moving car, was thrown down and run over, injuring him so as to require the amputation of portions of both legs. He brought suit against the company, by his next friend, and filed a declaration to which a demurrer was sustained. He thereupon filed an amended declaration of three counts, to which also a demurrer was sustained. He elected to abide by his amended declaration and defendant below had judgment, from which plaintiff appeals.

The first count of the amended declaration, besides stating the facts as hereinbefore given, also alleges that on the date in question, appellant was under the age of sixteen years and that he was injured after seven o’clock in the evening and before seven o’clock in the morning. It is evident that this first count is laid under section 10 of the Child Labor Law of 1903, which section is as follows:

“No person under the age of sixteen years shall be employed or suffered or permitted to work at any gainful occupation more than forty-eight hours in any one week, nor more than eight hours in any one day; or before the hour of seven o’clock in the morning or after the hour of seven o’clock in the evening. Every employer shall post in a conspicuous place in every room where such minors are employed a printed notice stating the hours required of them each day of the week, the hours of commencing and stopping work and the hours when the time or times allowed for dinner or for other meals begins and ends. The printed form of such notice shall be furnished by the State Inspector of Factories, and the employment of any such minor for a longer time in any day so stated shall be deemed a violation of this section.”

Appellant contends that, under the provisions of this section, appellee became liable for any injury sustained by him when employed by appellee after seven p. m. and while he was under sixteen years of age, regardless of whether or not appellee had been guilty of negligence.

The second count of this amended declaration alleges that the employment of appellant while under the age of sixteen years was dangerous to the life and limbs of appellant, thus seeking to lay this count under section 11 of the Child Labor Law, a portion of which is as follows:

“No child under the age of sixteen years shall be employed * * * in any capacity whatever in the manufacture of goods for immoral purposes, or any other employment that may be considered dangerous to their lives or limbs or where their health may be injured or morals depraved; * * * .”

The court has made an examination of all the different sections of the Child Labor Law, and of the various decisions of our courts relating thereto, and is of the opinion that said Child Labor Law was intended to apply only to the employment of children under stated ages in stores, factories, work shops and other buildings and enclosed places where any labor is performed, and that it was not intended to apply to the employment of children outside. The first section of said Act provides that no child, under a certain specified age, shall be employed, etc., in any theatre, concert hall, or place of amusement where intoxicating liquors are sold, or in any mercantile institution, store, office, hotel, laundry, manufacturing establishment, bowling alley, passenger or freight elevator, factory or workshop, etc. The second section of such Act prescribes that the employer of a child, under a certain specified age, in any mercantile institution, store, office, hotel, laundry, manufacturing establishment, bowling alley, theatre, concert hall or place of amusement, passenger or freight elevator, factory or workshop, shall keep a register, etc., and shall procure an age and school certificate approved as thereinafter provided. The third section of said Act provides that every person etc., employing, etc., shall post and keep posted in a conspicuous place in every room in which such help is employed or suffered or permitted to work, a list, etc. Section four of said Act provides, among other things, that there must be produced and placed on file in such mercantile institution, store, office, hotel, laundry, manufacturing establishment, bowling alley, theatre, concert hall or place of amusement, factory or workshop, and accessible to the State Factory Inspector, etc., an age or school certificate.

The enforcement of the Child Labor Law is entrusted to officials known as factory inspectors, and section 9 of said Act provides that such inspector shall visit all mercantile institutions, stores, offices, laundries, manufacturing establishments, bowling alleys, theatres, concert halls or places of amusement, factories or workshops, and all other places where minors are or may be employed, in this state, and ascertain whether any minors are employed contrary to the provisions of this Act. Section 10, as quoted above, requires the posting of a notice in every room where such minors are employed. Section 11 enumerates a large number of employments forbidden to children under sixteen years of. age and then continues, as quoted in the third paragraph of this opinion, “or any employment that may be considered dangerous to their lives or limbs.” The rule of construction, known as the rule of ejusdem generis, which in brief is that general words following an enumeration of particular cases are held to apply only to cases of the same kind as those which are expressly mentioned, will not permit the court to construe the words, “any employment that may be considered dangerous to their lives or limbs,” as applying to an employment like that of appellant by appellee, which is entirely different in character from those enumerated in section 11. Section 12 of said Act provides that the presence of any person under the age of sixteen years in any manufacturing establishment, factory or workshop, shall constitute prima facie evidence of his or her employment therein.

It is evident, from the above discussion of the various sections of said Child Labor Law, that it is intended to apply only to employment of children under a certain age in enclosed places. If the theory of appellant were correct and this law applied to all kinds of employment, it would be a violation of the law for a farmer to employ a child under the age of sixteen years at work before seven o’clock in the morning or after seven o’clock in the evening, and, if, while so employed, the child were injured, the farmer would be liable, regardless of the negligence, either of the child, or the farmer, and such a construction of the law would clearly be absurd. We conclude that the entire Act has no application to outdoor labor and was not so intended by the Legislature. Again, under the rule of construction known as ejusdem generis, the language “other employment that may be considered dangerous to their lives or limbs,” in section 11, must be construed as applying to employments kindred to those enumerated in that section, and the employment of appellant upon a trailer car of appellee cannot, by any stretch of the imagination, be considered as included in that list. Therefore, the question whether or not the actual employment of appellant upon a trailer car of appellee was dangerous to his life or limb cannot enter into this case at all. It follows that the employment of appellant by appellee was not in violation of the Child Labor Law and that the demurrer to the first and second counts of the amended declaration was rightfully sustained.

The third count of the amended declaration, after-setting out the situation in detail with regard to appellee’s lines of railway and appellant’s employment thereon, avers that he was working for appellant; that he attempted to board a trolley car of appellee slowly moving; that appellant, while in the exercise of due care and caution, seized a grab handle on said car and was about to jump on said car when the motorneer of said car, seeing appellant about to jump on said car while in motion, negligently put on additional power, which caused a sudden movement forward of said car, in consequence of which the grab handle was jerked from the grasp of appellant and he was thrown with great force upon the ground and under the wheels of said car, etc. This count also alleges, like the first and second, that appellant was under the age of sixteen years and that the accident occurred after seven o’clock in the evening. If this count was intended to be laid under section 10 or section 11 of the Child Labor Law, it is bad for the same reasons that apply to the first and second counts. If it was intended, as seems to be the case, to charge common law negligence, then it is likewise defective for other reasons. It does not aver that the negligence which is charged to have caused the accident was not the negligence of a fellow-servant of appellant, and it does state that it was the negligence of the motorneer which was responsible for the injury to appellant. Joliet Steel Co. v. Shields, 134 Ill. 209; Bennett v. Chicago City Ry. Co., 243 Ill. 420. The count charges that appellant was in the employ of appellee in charge of one of its trailer cars, and he would, therefore, under the authorities, be a fellow-servant with such motorneer.

In our judgment, the third count of the amended declaration is bad, whether brought under the statute or to charge common law negligence, and the demurrer was properly sustained thereto.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.