author: Mr. Presiding Justice Smith

text:
    Nannie M. Bryan, Appellant, v. Chicago Herald Company et al., Appellees.
    Gen. No. 15,430.

      Instructions—what considered in passing upon motion for peremptory. In passing upon a motion for a peremptory instruction the question of the preponderance of the evidence does not arise nor is the court concerned with the weight of the evidence introduced. The fact that different inferences might fairly be drawn from the facts and circumstances shown in evidence is not material. It is only where there is no evidence whatever produced on some material point to sustain a verdict that a court is justified in refusing to submit the case to a jury, and giving a peremptory instruction to find for the defendant.
    Action on the case. Appeal from the Circuit Court of Cook county; the Hon. E. M. Mangan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed May 5, 1911.
    Rehearing denied May 19, 1911.

      Statement by the Court. This is an action on the case brought by Nannie M. Bryan, appellant, against the Chicago Herald Company, a corporation, and Alexander A. McCormick, appellees, to recover damages for malicious prosecution.
    At the conclusion of the plaintiff’s evidence, on the trial of the case, the defendants moved for a directed verdict on the ground that the evidence failed to show the connection of the defendants with the malicious prosecution alleged in the declaration and shown by the evidence. The motion was allowed, and the court instructed the jury to find the defendants not guilty. Judgment was entered upon the verdict in favor of appellees and against appellant for costs of suit. This appeal is prosecuted to reverse that judgment.
    From the record, it appears that Nannie M. Bryan, appellant, plaintiff below, is the wife of William S. Bryan, and on October 7, 1902, and for many years prior to that time, the plaintiff lived with her husband and children in the city of St. Louis, Missouri. Mr. Bryan was engaged in the publishing business in that city, and was also an author, and shortly after the Spanish-American War, wrote a work called, “Our Islands and their People.” On March 29, 1899, he entered into a contract with the N. D. Thompson Publishing Company of St. Louis, by the terms of which they were to publish this work in two volumes, at their expense, and Mr. Bryan was to receive one-third of the net profits. There was a large demand for the book, and thousands of volumes were sold over the country.
    The Chicago Herald Company, appellee, is an Hlinois corporation, and owns and publishes the Chicago Becord-Herald. Alexander A. McCormick, appellee, and defendant below, was, during the time of the transaction in question, secretary and general manager of the Chicago Herald Company. He had sole charge of the transaction for the Chicago Herald Company regarding the delivery of certain of its notes to Mr. Thompson of the N. D. Thompson Publishing Company, out of which the malicious prosecution grew.
    It appears that the Chicago Herald Company bought, the books called “Our Islands and their People,” written by Mr. Bryan and published by the N. D. Thompson Company, in large numbers, and paid for them by giving its notes. The agreement between the Chicago Herald Company and the N. D. Thompson Publishing Company was that the Chicago Herald Company was to have twelve months’ time in which to pay for the books, but it appeared that six months’ paper was given, because it would be more readily discounted at the banks, with the agreement that when paper matured it was to be replaced by other notes of the Herald Company, running for six months, with interest.
    It further appears that on October 7, 1902, the N. D. Thompson Publishing Company had in its possession three promissory notes made payable to its order and signed by the Chicago Herald Company, aggregating $10,800. These notes were given in payment of books already received. Mr. Thompson had been trying to discount these notes in St. Louis from September 23, 1902, until October 7, 1902, but without success. On the latter date Mr. Lillingston, secretary of the N. D. Thompson Publishing Company, gave the notes to Mr. Bryan, requesting him to discount them at his bank. Nothing was said to Mr. Bryan as to whose notes they were. Mr. Bryan endorsed the notes on the day he received them, and discounted them at his bank in St. Louis, and the proceeds thereof were placed to his credit. He had never discounted any paper of the Chicago Herald Company before. The notes were left by him with the bank for discount about the middle of the day. He did not learn that they had been discounted, and the proceeds passed to his credit, until about three o’clock of that day. In the meantime he learned that the N. D. Thompson Publishing Company was about to make an assignment. Up to that time he had received nothing whatever from the N. D. Thompson Company on account of his books, and he learned that there was due him about $46,000 from that company.
    Shortly before this transaction Bryan had been told that the sale of his book had reached a total of about $700,000, and, therefore, that the profits amounted to a very large sum, of which Mr. Bryan was entitled to an amount over $46,000. In addition to this there were other outstanding notes which Mr. Bryan had endorsed for Mr. 'Thompson as an accommodation, to the amount of $4,400, for which, with the so called Herald notes which he had discounted on that day, amounting to $10,800, he was liable on his endorsement for Thompson’s benefit, amounting to about $15,000. Mr. Bryan had no way of protecting himself either on the endorsements or on the profits due him from the publication of the work, and, acting on the advice of his attorney, he at once notified the Thompson Publishing Company that he had retained the proceeds of the three notes discounted on that day, and applied the same on account of the indebtedness due him from the Thompson Publishing Company. On the second day after the notes were discounted, the Thompson Publishing Company made an assignment.
    On October 11, 1902, or about four days after the notes had been discounted, Mr. Bryan met Mr. A. A. McCormick on the street in St. Louis. Mr. J. W. Corley, general sales agent for the Thompson Publishing Company, who was with McCormick, introduced McCormick to Bryan, stating that McCormick was the manager of the Chicago Herald Company, and had come to St. Louis to see about these notes, and that he was going to have blood or money. Later on, the same day, Mr. Bryan went to the office of his attorney, Mr. Sullivan, and there met Mr. McCormick and Mr. Bobert, a St. Louis lawyer, representing the Chicago Herald Company. McCormick stated at that interview that the money realized upon the notes discounted belonged to the Chicago Herald Company. Mr. Robert also made a similar statement, and demanded that Mr. Bryan pay over the money. Upon Bryan declining to do so, Robert stated that unless he did they would prosecute him and his wife in the civil and criminal courts. Mr. Bryan stated to Mr. Robert and Mr. McCormick his relations with the Thompson Publishing Company, and that the company was greatly indebted to him, and that he was liable on endorsements for their accommodation on paper to the extent of $15,000; that he had retained the proceeds of the notes to protect himself against this liability and that he had not known the Chicago Herald Company in the transaction at all. This conversation occurred on Friday or Saturday, and on the following Sunday Mr. McCormick went out to Mr. Bryan’s residence and had a long conversation with him in regard to the notes, and Mr. Bryan explained fully his reasons for keeping the proceeds, informing Mr. McCormick that the notes had been delivered to him without any notice of any interest or pretended interest of the Herald Company in them, and that he had endorsed the notes and discounted them at his bank, and had drawn the proceeds out under the advice of his attorney, because the Thompson Publishing Company had made an assignment.. He also again stated that there were other notes outstanding which he had endorsed for Mr. Thompson’s accommodation, to the amount of $4,400, and that the Thompson Publishing Company owed him in the neighborhood of $46,000 on account of his books. Mr. McCormick claimed that the notes belonged to the Chicago Herald Company, and that they were going to have the money if they had to prosecute Bryan and his wife to the end of the law in both the civil and criminal courts.
    On the day following the Chicago Herald Company brought a civil suit against Bryan to recover the amount of the proceeds of the notes and subsequently obtained judgment therefor, which was later reversed by the Supreme Court of Missouri.
    On November 30,1902, the Chicago Herald Company procured the indictment of Mr. Bryan for the embezzlement of the notes or their proceeds, on the trial of which Mr. Bryan was acquitted.
    After the judgment was obtained by the Chicago Herald Company against Mr. Bryan in the lower court, and before the Supreme Court had reversed it, a garnishment suit was brought on the judgment against Nannie M. Bryan, this appellant. This suit came up on June 18,1903, for trial and Mrs. Bryan was ordered to pay the money into court by ten o’clock on Monday, June 22,1903, and some days thereafter judgment was entered against her as garnishee. This judgment was later reversed by the Supreme Court of Missouri.
    On June 20, 1903, the criminal prosecution set out in the declaration in this case and which forms the basis of this action for malicious prosecution was begun, charging Mrs. Bryan with receiving embezzled money feloniously and wilfully, being the money of the Chicago Herald Company, which William S. Bryan had illegally taken into his possession as the agent of the Chicago Herald Company, and had fraudulently and feloniously embezzled and converted to his own use.
    It appears that on October 7, 1902, when Mr. Bryan drew the proceeds of the notes out of his bank, he paid the money to his wife on account of his indebtedness to her, and the evidence tends to show that he was indebted to her for various amounts of money theretofore loaned to him by her.
    The criminal case against Mrs. Bryan came up for hearing on June 30, 1903, and upon the close of the state’s evidence Mrs. Bryan was discharged.
    We do not take the time to set out what occurred at the time of the arrest of the plaintiff on this charge, but the evidence tends to show a want of probable cause, and it shows substantial injury.

      Auden, Latham & Young, for appellant.
    Matz, Fisher & Boyden, for appellees; Dwight S. Bobb, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The principal question presented to this court on this record is the action of the trial court in giving to the jury at the close of the plaintiff’s case a peremptory instruction to find the defendants not guilty. In view of the conclusion which we have reached in this case, we shall not enter into a detailed discussion of the evidence. We think the evidence introduced on behalf of the plaintiff, when taken to be true, together with all legitimate inferences which may be drawn therefrom in favor of the plaintiff, tends to support the cause of action set out in the declaration (Hewes v. C. & E. I. R. R. Co., 217 Ill. 500) and that the court erred in sustaining the motion for a peremptory instruction and instructing the jury to find the defendants not guilty.

In passing upon a motion for a peremptory instruction the question of the preponderance of the evidence does not arise, nor is the court concerned with the weight of the evidence introduced. The fact that different inferences might fairly be drawn from the facts and circumstances shown in evidence is not material. It is only when there is no evidence whatever produced on some material point to sustain a verdict that a court is justified in refusing to submit the case to a jury, and giving a peremptory instruction to find for the defendant. “If there is no evidence, or but a scintilla of evidence, tending to prove the material averments of the declaration, the jury should be directed to return a verdict for the defendant. (Libby, McNeill & Libby v. Cook, 222 Ill. 206, 212).” In Offutt v. Columbia Exposition, 175 Ill. 472, it was said: “Much confusion has doubtless arisen from the different meanings attached to the phrase ‘tending to prove,’ bnt giving it the meaning as held by this court in the Bartlett case, above cited, that it is evidence upon which the jury could without acting unreasonably in the eye of the law, decide in favor of the plaintiff or the party producing it, most of the apparent conflict between the different cases disappears. Thus it was said by Mr. Justice Maulé, in Jewell v. Parr, 13 Com. Bench, 909, ‘ applying the maxim, de minimis non curat lex, when we say that there is no evidence to go to the jury, we do not mean that there is literally none, but that there is none which ought reasonably to satisfy the jury that the fact sought to be proved is established. It is of course true that there are cases where there is literally no evidence in support of some material and necessary allegation, but there are many others where there may be some evidence tending to some remote degree to support every allegation, yet of too inconclusive and unsubstantial a character to be the foundation of a verdict. In either of such cases the court may, when the question is properly raised, so determine and direct a verdict as in cases where there is no evidence. A mere scintilla of evidence, if it means anything means the least particle of evidence—evidence which without further evidence is a mere trifle—and as the law does not regard trifles, we see no reason why on such a motion the court may not adjudge such evidence insufficient in law, and direct a verdict as in cases where there is no evidence.’ ”

Upon a careful review of the evidence in this case, and carrying in mind the rulings of onr Supreme Court in the above cases, and others cited to us, we are clearly of the opinion that the evidence offered by the plaintiff below, when taken as true, with all legitimate inferences which the jury might draw from it in favor of the plaintiff, fairly tended to support the cause of action set out in the declaration, and that the case should have been submitted to the jury.

Inasmuch as the case must be reversed and the cause be remanded for a new trial, we deem it just to the parties to refrain from any discussion of the evidence which must go before another jury. The trial court and jury should hear the cáse upon its merits uninfluenced by anything that may be said in disposing of this appeal.

For the error in giving the peremptory instruction the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    John Pozlep, Defendant in Error, v. Crane Company, Plaintiff in Error.
    Gen. No. 15,715.
    Master and servant—when latter cannot recover for failure to furnish safe place. A servant cannot recover for an injury suffered by him in the course of his employment from the failure of his employer to furnish him a safe place to work, where the defective condition was open and obvious so that it was known or ought to have been known to the servant.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of fact.
    Opinion filed May 5, 1911.
    Alden, Latham & Young, for plaintiff in error.
    Coburn & Case and Fred W. Bentley, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

An action was brought by John Pozlep, defendant in error, against the Crane Company, plaintiff in error, in the Superior Court to recover for personal injuries alleged to have been received by him on November 15, 1906, while he was in the employ of the Crane Company. The original declaration consisted of one count, and was filed on July 1, 1907. In April, 1908, two additional counts were filed. On the trial, the court sustained motions of the defendant below to instruct the jury that the plaintiff could not recover under either the original declaration or the second additional count.

The first additional count alleges that the defendant in error (hereinafter called the plaintiff) was in the employ of the defendant, and in the course of his employment, it was his duty to wheel scrap iron in a wheelbarrow from a point in the defendant’s plant over and upon planks or a passageway which extended over the roofs of certain sheds, to certain bins, where the plaintiff was to dump the scrap iron; that the defendant negligently permitted the planks which were lying upon the roof of a shed or bin to remain in a loose and unfastened condition and furnished no support underneath said roof, and negligently removed and took away from underneath said roof, the„ supports which prior to the day on which the plaintiff was injured, had been underneath the said roof, so that said planks and said roof were insufficiently supported and unfit to hold the load which the plaintiff was then and there wheeling oyer the same, and was shaky and teetering, which said condition of the roof was not known to the plaintiff, and that while the plaintiff was in the exercise of due care for his own safety, by reason of the shaking and teetering of said planks and roof, he was thrown off from the same into a certain hole in said roof directly adjacent to and adjoining said planks, whereby he was severely injured.

It appears from the evidence that the defendant operated a pipe mill at Rockwell and Fifteenth streets, in the city of Chicago, and that certain railroad tracks ran north and south adjoining the eastern boundary of the property. The sheds extended north and south, and were about sixteen feet west of and parallel with the railroad tracks. The roof of each shed was sixteen feet from the gable or ridge to the eaves, and had a slight pitch, being two feet higher at the ridge than at the eaves. The space between the easterly shed and the railroad tracks was divided off into bins into which scrap iron was dumped. There were five of these bins and they were made by nailing two-inch planks to posts which were set sixteen feet east of the east side of the easterly shed. 'The easterly side of the shed in this way constituted the west end of the bin. The width of the bins differed to some extent. A plank passageway extended from a platform along the north side of the main pipe mill to the roof of the west shed. From that place where planks rested on the roof the passageway extended over the roofs of the two sheds in a northeasterly direction. Near the eastern edge of the east shed, two three-inch planks extended out upon the bins. These planks were the end of the passageway, and from them wheelbarrow loads of scrap iron, which was wheeled out from the pipe mill and over and along the passageway above described, were .emptied into the bins below. -These planks rested on the roof from three to five feet from the eaves, and extended out diagonally over the bins and rested on one of the partitions running .east and west that divided the space between the east shed and the railroad tracks into bins. They also rested on a support that was built up at the point where the planks extended over the eaves and they were nailed at each of these three points. Where the planks rested on the roof two boards were placed to lessen the jar when the wheelbarrows were wheeled from the roof onto the planks.

It was a part of the duty of the plaintiff and other employes to gather up scrap iron that accumulated in the pipe mill, and to wheel the same in wheelbarrows from the pipe mill over the passageway above described and empty the same in the bins. The plaintiff had been engaged in this work for a period of from four to six months prior to the date on which he was injured, and had occasion to go over the passageway in question a number of times every day.

The accident occurred about nine-thirty o’clock in the morning. Plaintiff claimed that the last time he had been over the passageway prior to his injury was about eleven o’clock on the day previous, and that the passageway was solid and firm on all occasions when he had been over it prior to the day he was injured, but that at the time of the injury it was insecure, and was teetering and shaky. The plaintiff’s testimony is that after he was on the planks and was about to empty his load of scrap iron into one of the bins he was thrown to the ground in an open space where there was no roof near the passageway or planks, because of the shaking and teetering condition of the roof, and thereby injured.

•The plaintiff and his witnesses claimed that large quantities of coal had been stored in the east shed under that part of the roof over, which the passageway extended, and that prior to the time the plaintiff was injured and after eleven o ’clock of the day before, this coal which it was alleged formed a support to the roof, was removed. The evidence, however, on behalf of the defendant, shows that the shed in question had been constructed about a year before the accident. The manner of the construction, the dimensions of the uprights, stringers and rafters, were all proven. The plaintiff himself testified that the roof was solid prior to the time he was injured; “that nothing broke at the time I fell but the planks went loose and tipped me right over and threw me into the hole. When the roof was shaking and the planks went up and down, I fell.”

Nine witnesses for the defendant testified that it was solid before the accident and that it was also just as solid after the accident. One workman who saw the accident immediately walked over the planks from which the plaintiff fell and he testified that they were solid and firm. Another workman had just passed over the same planks and passageway and in returning, after dumping his load, he passed the plaintiff just as the plaintiff was coming out wheeling the load with which he fell. This workman as well as several others testified that the roof over which the passageway extended was firm immediately after Pozlep came over it; that there was no change of any kind in the supports thereto; that the roof was as solid immediately after the accident as it had been before, and that the defendant continued to. use the passageway without any change as to the supports to the roof, for several months after the plaintiff’s injury.

Numerous errors are assigned on the record and urged in argument as grounds for a reversal of the judgment. We do not deem it necessary to discuss or refer to the grounds of reversal based upon such alleged errors for the reason that in our opinion the evidence on the part of the plaintiff is unbelievable, and affords no basis for the recovery which was had in this case in view of all the evidence. We think that the evidence shows that the plaintiff started out over the passageway, with a wheelbarrow load of scrap iron, and proceeded over the roofs of the sheds and upon the planks that extended from the east shed over the bins, when his wheelbarrow, through carelessness on his part, ran off the north side of the planks, and that the plaintiff, in attempting to hold back the wheelbarrow and keep it from falling, was himself drawn over with the wheelbarrow and fell to the ground, sustaining the injuries which he suffered.

In our opinion, the theory of the plaintiff’s case, as shown by his evidence, is that the passageway and planks, up to the day of the accident, were firm and safe and well supported, but that by removing coal from underneath the roof of the sheds, the support of the roof was taken away, causing the planks to teeter and wabble, so that the plaintiff was thrown off of the planks.

We are unable to believe, and we do not think the jury were warranted in believing that the gable or ridge of the roof, or any part of the roof on which the planks rested, was supported by the coal which had been stored underneath, or that the supports of the passageway were in any way weakened by the removal of the coal from underneath the roof.

The theory that the gable of the roof or the ridge of the roof, or any part of the roof of the shed upon which the planks rested was supported by coal stored in the shed, seems to us too unreasonable to be believed in view of the evidence in the case, which showed that it was otherwise firmly supported, and also in view of the fact proved by a great preponderance of the evidence that the planks and the passageway were as firm at the time of the accident as they had been for the six months previous thereto. We think the evidence shows that there was no change in the condition of the passageway and planks caused by the removal of the coal or coke from the shed.

It is clear from the evidence that the plaintiff knew the condition of this walk or passageway which he was required to use, as well if not better, than the defendant, and it is well settled that a servant cannot recover for an injury suffered by him in the course of his employment from the failure of his employer to furnish him a safe place to work, where the defective condition was open and obvious so that it was known or ought to have been known to the servant. Browne v. Siegel Cooper & Company, 191 Ill. 226; East St. Louis Ice & Cold Storage Co. v. Crow, 155 Ill. 74; Kaare v. T. S. & I. Co., 139 N. Y. 369.

The theory of the plaintiff’s case narrows the issue on the question of fact to negligence on the part of the defendant in weakening the supports of the east half of the roof of the east shed over which the passageway extended, by removing the coal from the shed so that it would not reach the roof, and that thereby the supports to the planks above were rendered insecure and weak. This, we think, is conclusively negatived and proven untrue by the uncontradicted testimony in the case as to the manner in which the shed was constructed.

The plaintiff in his testimony on direct examination did not mention the subject of the removal of coal. On his cross-examination he testified that he never went under the sheds himself at all, and that he did not know when they took the coal out of the shed. He says it was not his business to know.

The witness Stephens stated that the shed was filled with coal and coke about five months before the accident, and that the coal was filled in the shed up to the roof; that they dumped the coal in from the top of the roof, and filled it up as far as they could fill it; that the roof was supported by the coal, and that as long as the coal remained in the shed the roof was solid; that the coal was taken out nights to “fill the boilers,” but the witness was unable to say when the coal was taken out of the shed; that when he went there the next day after he heard the plaintiff was hurt there was a little coal left, the pile being not more than three feet from the floor. This witness was a discharged employe, and as appeared from his cross-examination, had been arrested and in jail for several months; had not lived with his family for eight years, and had been one of the principal witnesses in another damage suit against the defendant. He admitted that in the spring of the year 1908, he had a conversation with Mr. Koester, the superintendent of the Crane Company’s plant, in which he proposed that if Koester would give him a job he would not testify as a witness in the two cases in which the Crane Company was defendant and the plaintiffs wanted him as a witness. An examination of the testimony of this witness shows, we think, that in his mind the roof of the shed was not so much weakened by the removal of the coal as from some other causes. He claimed that the planks were both .too long and had no bearing underneath, and swayed up and down, and in reply to a question by the court: “Where do you understand you are to describe the condition of the planks, what place?” the witness answered: “It was laid over a hole and everything under it was bare, nothing under to hold, and he had to go over that place to dump the scrap iron.” In another part of his testimony he says that the “plank always swayed up and down when he walked over it because there was no support in the middle of the plank. The roof was all right,at the point where the plank rested on the roof, that part was all right, but as soon as he got off the roof then it had no bearing at all, and then it wabbled.” This indicates very clearly that the wabbling of the plank which the witness had in mind and testified to was due to a lack of support in the middle of the plank, one end of which was resting on the roof, and not due to any weakness in the roof itself for lack of support, as averred in the declaration. The testimony of this witness does not support the declaration.

The only other witness for the plaintiff was Anton McLane, who testified that he knew what was under the roof upon which the plank runway was laid before the day that the plaintiff got hurt and up to that day, and that there was coal and coke there. He testified that after plaintiff was injured the witness went into the shed and that there was coal around in the corners of the shed, and that the top of the roof was about nine feet high. On cross-examination he says, that he didn’t have any occasion to go inside the sheds and never went into them; he did not know when they commenced taking coal from the sheds, and that they had been taking coal out of the sheds for two days, but could not tell when they started to remove the coal; that he first looked under the shed on which the passageway was constructed after the accident, never before.

This evidence,-standing by itself, we regard as exceedingly unsatisfactory, in that it does not show the negligence on the part of the defendant averred in the declaration, and fails to show that any considerable or unusual amount of coal was taken from the shed between the time the plaintiff went over the passageway on the day prior to the accident and the time he was injured, and it fails to show that the removal of the coal in any way weakened the planks of the passageway or interfered with their support or the support of the roof.

The judgment is therefore reversed with a finding of fact.

Reversed with finding of fact.


text:
    Charles Hinkley Baker, Appellant, v. Howard W. Baker et al., Appellees.
    Gen. No. 16,448.
    1. Evidence—effect given to admissions. Admissions shown for the purpose of establishing important agreements are received with caution, and where writings exist which tend to contradict the admissions in question, the verity of the fact sought to be established by the admissions must be shown by clear and convincing evidence.
    2. Partnership—what essential to establish existence of relation. When the fact of co-partnership is in issue as between the partners,' courts will not proceed on conjecture, but strict proof is required.
    3. Contracts—effect of failure to bring action within limitation ■period fixed by contrast. If an action to enforce alleged rights under a contract is not brought within the time limited by such contract for the bringing of an action, the same becomes barred. Held, under the evidence, that there was no waiver of the limitation period of the contract in question in this case and no representations, acts or conduct which induced the action of the complainant in this case m not bringing his action within the time stipulated.

      Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed May 5, 1911.
    James Hamilton Lewis and Elijah N. Zoline, for appellant; Wallace Streeter, of counsel.
    Custer & Cameron and Timothy F. Mullen, for appellees.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This cause has been before this court on appeal ■from a decree sustaining a demurrer to the second amended bill and dismissing the bill for want of equity. Baker v. Baker, 139 Ill. App. 217. In the opinion of the court filed on that appeal the substance of the bill is stated, and there is no necessity of restating it here. It appeared in that case that at the time the court sustained the demurrer the complainant moved for leave to amend the bill and the court denied the motion. This was held to be error on the showing made in support of the motion, and the decree was reversed and the cause was remanded with directions to permit the proposed amendments to be made.

Upon the case being redocketed in the Superior Court the amendments were allowed to be filed. Answers and replications thereto were filed, and the cause proceeded to a hearing on the merits, at the conclusion of which a decree was entered dismissing the bill for want of equity.

Two principal questions are presented in this case; first, whether there was a co-partnership as alleged in the bill; second, whether the cause of action is barred by the limitation clause of the trust agreement shown in the bill.

The partnership averred in the bill is claimed to have been formed by a parol agreement in 1894 or 1895. The averments of the bill as to the terms and conditions of the partnership agreement are indefinite and not wholly consistent. The evidence offered by the complainant in support of the bill is not consistent. The claims made in the proofs and oral arguments presented to us, sometimes assert that the partnership was to consist of an interest in the stocks of the companies referred to, after William T. Baker, the deceased, had either withdrawn from the enterprise the money which he had advanced, or after he had taken therefor the bonds of the company. Then again it is urged in argument that the partnership was to take effect after the enterprises described in the bill had progressed in their development to the point where they were assured financial successes; and on the other hand it is claimed that the partnership was formed at the beginning of the Snoqualmie Falls enterprise, and it involved an interest on the part of the complainant in the main enterprise and collateral enterprises, including the moneys put in by Wiliam T. Baker, the complainant furnishing , the opportunity and option, and engineering services necessary to construct the plant or plants, and the deceased, William T. Baker, furnishing the moneys necessary to start and conduct the business. A further theory is also advanced that the deceased succeeded to the interest of Mr. Powers in the enterprise.

The evidence relied upon by the complainant to establish the existence and terms of the partnership consists in what is claimed to be expressions in letters written by William T. Baker, the deceased, to the complainant, in which the expressions “our” or “we” are used, and in admissions proved to have been made to sundry parties in conversations between them and William T. Baker. In these conversations it is shown that William T. Baker stated, under various circumstances and on various occasions, that the complainant owned a half interest in the Snoqualmie Falls project and that they were joint partners, the son and father having each a half interest. The various witnesses who testified to these admissions on the part of William T. Baker in some instances state the proportions in which the property was stated to be owned between the father and the son, and in some instances no particular proportions are named or referred to. Nowhere in the evidence on behalf of the complainant is any definite date fixed at which the partnership commenced, nor is there any proof of the terms of the alleged co-partnership agreement further than is indicated above.

The evidence on behalf of the defendants on this issue consists quite largely of the correspondence between the complainant and William T. Baker. These letters are the only written evidence of the business relations of the complainant and his father to each other or to the enterprise involved in the case; and in our judgment they are far more conclusive and convincing than the casual admissions or statements of William T. Baker under various circumstances shown by the testimony of the very reputable witnesses who testify to such statements or admissions.

Considering the circumstances under which the letters in evidence were written, and the probability that in the course of the extensive correspondence that was had between William T. Baker, who was advancing large sums of money in the enterprises, and the complainant, who was in the field of operations at a great distance from Chicago, where William T. Baker lived, it seems to us that had there existed a co-partnership relation between the father and son in the enterprises involved in the litigation, some clear expression or intimation would have been made, particularly by the complainant, of such partnership relations. In this correspondence would be the natural place to look for evidence of the co-partnership in the absence of a written agreement. The evidence is clear outside of the correspondence, and indeed it is conceded, that the title to all the property was taken in the name of William T. Baker and.remained in his name until corporations were formed and the properties were transferred to the different corporations so organized; and that then all the certificates of stock in the corporations were issued to William T. Baker. In all the correspondence we find no existence, or suggestion even, of any co-partnership relation between complainant and his father, nor do we find any reference to any such relations. On the contrary, the context and direct expressions in the correspondence clearly point to the fact that the complainant was the local manager and engineer in charge of the work and business, and was receiving from his father a salary for such work. The complainant’s letters repeatedly refer to the property and the enterprises as belonging to William T. Baker alone.

It is freely admitted on the part of the defendants that there may have been, and that there probably was, an intention on the part of William T. Baker to give the complainant an interest in the enterprise in consideration of the fact that he was the originator of the Snoqualmie Falls scheme and had contributed the engineering ability and services and time necessary to develop it, at a salary not commensurate with the ability displayed and the responsibility assumed by him, when the enterprise and business had developed to a point, and the circumstances were such, that an interest might be safely and properly given to the complainant. But the contention of the defendants is, and we think the proof shows, that up to the time-of William T. Baker’s death the enterprise had not reached the state when William T. Baker in his judgment deemed it advisable to carry out any such intention, if he had it. The evidence shows, on the contrary, that at the time of the death of Mr. Baker the. Snoqualmie Falls enterprise was in a desperate financial condition, and not only was that true, but Mr. Baker himself was in a precarious financial condition and on the verge of failure, and that this situation was due largely to the very considerable amount of money which he had been compelled to expend and use in the promotion of the enterprise; that at that time it had not only not reached the point of assured success, but large amounts of money were still required to complete it and put it in a condition where it would begin to produce returns. It is doubtless true that the death of Mr. Baker tied the hands of his creditors for a year,. and thus made it possible for the representative of the estate to interest outside capital, which saved not only his estate from bankruptcy, but the enterprise in question from failure. The complainant himself profited by the securing of this money through Harris & Company to the extent of his interest in the estate. He showed his appreciation of the situation by refraining from taking any steps which might create any suspicion or doubts in the minds of Harris & Company, who were furnishing the additional funds necessary to finance the project, under the trust agreement signed by the heirs and representatives of the estate.

On August 12,1901, complainant wrote to his father: “Until I talked with you last month it never occurred to me that for my idea and the promotion of the scheme I was to get nothing, although you think my. having been employed was sufficient compensation.” This is singular language for complainant to use if it was a fact, as alleged, that for years an arrangement had existed between them by which he was to have, or had, a one-half interest in the scheme. The letter further says: “If a stranger had been associated with you in the work he would have had a promoter’s interest of at least ten per cent, to which he would have been entitled, but to me this is denied.” August 16, 1901, William T. Baker wrote to complainant in reply to the above: “Your letter of the 12th came this morning and my first impulse on reading it was to return it to you. You know perfectly well that I have always done for you everything you have asked that was in my power to do. * * * When we were talking about doubling the stock for doubling the plant you asked if I would not give you some stock then, and I told you only that all of it would eventually go to you and the other children.” And further on in the same letter he says: “There have been times when I would have considered a proposition to sell simply because I was near being wrecked by it, and I have made many sacrifices that you know nothing about, and would not appreciate if you did, for your sake and that of the other children.”

In the last paragraph of this letter he further says that he never felt it necessary to say what he would do if the plant ever reached a condition where he did not have to put money in it and could see some of the promised revenue coming to him, and suggests that complainant should have some of the patience that he has had to exercise and should trust him “for the rest. ’ ’

We find appellant in his letter to his father of July 4, 1902, saying: “Apropos to the sale of the company which you wish to effect, I write to ask you what my share will be as original promoter of the project.”

These extracts from letters written in 1901 and 1902 by the parties (samples of what appears in many letters) clearly indicate their relations at that time to the business in question and to each other. The subsequent correspondence shows no change in their relations.

We do not think that a court of equity can infer a co-partnership existing in this case upon the proof shown in the record. We think the reliable and most reasonable evidence in the record negatives the existence of any such co-partnership, and warrants the finding of the chancellor that ho such partnership existed as that alleged in the bill. Evidence of admissions by parties to transactions should be clear and convincing in order to establish important agreements such as the one claimed in the bill. Courts have found it necessary to receive such admissions with caution; and if the evidence in the case contains writings of parties, as in this case, which distinctly point to a different relationship than that of co-partners, namely, to a relationship of employer and employe, the inference that any other relationship exists must be founded upon very clear and convincing evidence. When the fact of co-partnership is in issue as between the parties, courts will not proceed on conjecture, but strict proof is required. Second Bates on Partnership (Ed. 1888), sec. 1136; 30 Enc. of Law and Procedure, p. 357, 414; Gray v. Gibson, 6 Mich. 300; Chisholm v. Cowles, 42 Ala. 179; Hill v. Mallory, 112 Mich. 387; Walker v. Matthews, 58 Ill. 196.

We feel compelled to hold with the chancellor who heard the case below, that the complainant has failed to establish the co-partnership alleged in the bill.

On the second question in the case, as to whether the cause of action is barred by the limitation clause in the trust agreement set up in the bill, w.e are of the opinion that the evidence shows that the complainant was not induced by anything that was said or done by the defendants, or any of them, to postpone the bringing of this suit beyond the time allowed by the provisions of the trust agreement. We think the evidence establishes the fact that the defendants never waived in any manner or form the limitation clause of the agreement; but that the condition of the estate of William T. Baker at the time of his death made it absolutely necessary that the financing of the affairs of the estate, which were much involved by reason of the advancement of money and obligations incurred by William T. Baker in behalf of and in connection with the enterprises set ont in the bill of complaint, should be carried on without being embarrassed or complicated by litigation between the complainant and the other heirs of William T. Baker. This consideration appealed as strongly to the complainant as it did to the defendants in the bill, inducing him to delay the commencement of proceedings until the financiering arrangement with Harris & Company should be completed.

On October 31, 1904, just prior to the making of the trust agreement, complainant wrote to his brother Henry a letter complaining that Henry’s promises had not been kept, and adding: “You were full of promises of this sort, anything to get me to be silent-in regard to my claim until financial matters were adjusted, which as a matter of policy I would have done anyway.” Complainant testified that he had some talk with his brother about not suing before the Harris financing was completed, because if he did sue it might upset it, and he agreed with that idea. It appears that the arrangements with Harris & Company were fully completed about September 1, 1905. The complainant, however, did nothing until the last day of the year which was allowed him by the trust agreement to commence his action, and then he instituted a suit in the federal court which was after-wards dismissed on his own motion. This bill was not filed until the 15th day of March, 1906, more than four months after the year had expired, the proceedings in the federal court being then pending.

The record shows that complainant, after the arrangements with Harris & Company were completed, did not rely upon anything that had been said or done by the defendants, or any or either of them, and did not believe that they intended to settle or adjust his claim for a co-partnership interest in the Snoqualmie Falls project, for on July 28, 1905, he wrote to his counsel inclosing his father’s letters and several copies of a “brief,” and discloses in his letter the fact that he expected nothing to result from the negotiations then pending, and was simply biding his time until the Harris refunding should be accomplished, when he would commence his suit. He says in the letter: “With the Harris deal closed, if it is to be closed, I will feel that then the time has arrived for my inning, and with yourself at the bat I have no doubt that a brilliant • score will result. * * * You may strike, and strike hard, and it is necessary to do so, not only that I may have what is mine, but in order to vindicate myself against the unjust and false coloring they have put me in before the people generally.” This letter indicates very clearly that at the. time he wrote it he reposed no confidence in his brothers and sister Bertha, or that they would settle the matter out of court.

August 31, 1905, he wrote to Howard Baker from New York, warning him not to distribute any of the money belonging to the trust, in order that the money itself might be made the subject of the litigation; and in the letter he says that he has instructed his counsel to stop any distribution, and that he intends to begin his fight, and “this is to give you notice of it.”

Howard replied to this letter on September 2, 1905, saying that he had already relieved the stringency among some of the heirs by advancing them $25,000 each out of the trust fund, and that complainant had previously authorized it to be done. Thereupon complainant wrote that he had instructed his counsel to prepare the suit for reclaiming his partnership interest, and that he will go to Chicago the next week or the week following, when the suit would be filed, and “inasmuch as the year in which this has to be done is near a close, the matter can be no longer delayed.”

The record shows further correspondence on the subject of the proposed suit, including a letter to defendant, Henry D. Baker, prior to October 3, 1905, to which Henry replied under date of October 9, 1905, in substance that he would stand with Howard and Bertha and their counsel, and adds: “You have never shown us any valid evidence of your claim. You will now have a chance to let the court pass on your claim. ’ ’

The next day complainant wrote to Howard, Bertha and Henry: “We have decided among ourselves that my claim for my partnership interest in the property shall be litigated. * * * I think you are wise in letting the matter take this course, and as one of you stated while I was in Chicago, ‘we can then dismiss any personal feeling in the matter and let the matter take the course of ordinary business.’ ” He further advises them in this letter that he has retained “two of the most eminent lawyers in Chicago, the best one in Seattle and an able one here” (New York), and that suits will be begun in Chicago and Seattle soon, the preparation of them being nearly completed. The complainant testified that he had given instructions to his counsel to bring suit as soon as he could, and that he wanted it done within a year. In obedience to these instructions, the bill was filed in the United States Circuit Court November 4, 1905, within the year named in the trust agreement.

There is no ground for doubt that complainant’s letters express clearly his state of mind and his purpose to bring his suit within the period named in the trust agreement; and the fact that he did bring suit within that period shows conclusively not only that he intended to so act, but, also, that he was not misled by the defendants into letting the year slip by without instituting his suit. It follows, in our opinion, that nothing was said or done by the appellees, defendants, or any of them, which rendered it impossible for complainant to bring his action within the ■ specified time, or waived the limitation period on their part, or estopped them, or either of them, from in-. sisting upon the failure of complainant to abide by and perform that clause of the agreement, and that complainant knew and acted upon that understanding of the situation. The facts disclosed in the correspondence, and the bringing of the suit in the federal court bring the case fully within the doctrine of Vincent v. Mutual Reserve Fund Life Ass ’n, 74 Conn. 684; McFarland v. Peabody Ins. Co., 6 W. Va. 425; Ripley v. Aetna Ins. Co., 30 N. Y. 136, and other cases. The mere pendency of negotiations during a part of the period of limitation, conducted in good faith with a view to a compromise is not a waiver of the limitation and will not estop the party for whose benefit it was made from setting up the defense. Phoenix Ins. Co. v. Lebcher, 20 Ill. App. 450. Early in September, 1905, .the correspondence shows that complainant had instructed his counsel to commence suit for his partnership interest. The efforts at compromise were therefore ended in ample time for action to be brought and complainant in fact filed his bill in the federal court. Phoenix Ins. Co. v. Lebcher, supra; Garido v. American Cent. Ins. Co. (Cal.), 8 Pac. 512; Allen, v. Dutchess Co. Mut. Ins. Co., 95 App. Div. 512; Travellers’ Ins. Co. v. California Ins. Co., 1 N. Dak. 151; Garretson v. Hawkeye Ins. Co., 65 Iowa 468.

The evidence in the case, we think, warrants the conclusion, and no other conclusion, that the complainant was not induced by any representations or actions taken by the defendants to forego the commencement of this action until the limitation in the trust agreement had expired, and therefore, that there was no waiver of the agreement on the part of the defendants, nor are they estopped by anything that was said or done by them from insisting on the terms of the agreement. The limitation clause in the trust agreement has been held in Baker, v. Baker, supra, by this court, a valid and binding agreement.

For reasons stated the decree is affirmed.

Affirmed.


text:
    Bernhard Loeff, Plaintiff in Error, v. Herbert Nicholson, Defendant in Error.
    Gen. No. 16,656.
    Appeals and errors—effect of failure to file brief and abstract. A motion by defendant in error to dismiss will be sustained if it appears that the plaintiff in error has failed to file his brief and abstract in accordance with the rules of the court.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Writ of error dismissed.
    Opinion filed April 28, 1911.
    Louis Greenberg, for plaintiff in error.
    P. L. O’Meara, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff in error, as appears by the record of this court, has failed to prosecute his writ of error by filing his abstracts and briefs in accordance with the rules of court. The motion of defendant in error to dismiss the writ of error at the costs of plaintiff in error is therefore sustained and the writ of error is dismissed.

Writ of error dismissed.


text:
    William H. Barrett, Appellee, v. John Began, Appellant.
    Gen. No. 16,981.
    Appeals and ebbobs—when appeal dismissed. An appeal will be dismissed if the proper transcript and brief and abstract is not filed within the time fixed by statute and the rules of court.
    Appeal from the Circuit Court of Cook county; the Hon. A. H. Fbost, Judge, presiding.
    Heard in the Branch Appellate Court at' the October term, 1910.
    Appeal dismissed.
    Opinion filed April 28, 1911.
    M. S. Emerich, for appellant.
    H. M. Pierce, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Appellee presents to the court a motion that the additional or supplementary record filed in this cause be stricken from the record of this court for the reason that the same was not filed within the time allowed by the court for filing the same and that the appeal be dismissed for the reason that abstracts and briefs have not been filed in accordance with the orders of this court.

On an inspection of the record and files we find that a complete record was not filed within the time allowed and that no abstracts and briefs have been filed. Appellant has not duly prosecuted this appeal. The motion to strike the additional record filed herein March 21, 1911, is sustained and the appeal is dismissed for want of prosecution.

Appeal dismissed.


text:
    William Billings, Defendant in Error, v. J. J. Straight, Plaintiff in Error.
    Gen. No. 17,241.
    Appeals and errors—when writ of error dismissed. If the transcript of the record does not show a final judgment, a writ of error will be dismissed.
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Writ of error dismissed.
    Opinion filed April 28, 1911.
    Pines & Newman, for plaintiff in error.
    Dunn & Hayes, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The record in this case does not show a final judgment in the Municipal Court of Chicago, from which an appeal or writ of error can be prosecuted. There is nothing in the record therefore for this court to review.

The motion of defendant in error to dismiss the writ of error must be sustained.

Writ of error dismissed.


author: Mb. Pebsidirg Justice Smith

text:
    S. Gumpert & Company, Defendants in Error, v. William Junker & Company, Plaintiff in Error.
    Gen. No. 16,763.
    Municipal Court—when stenographic report stricken. If the statement of facts or stenographic report is not signed and filed within the time provided in section 23 of the Municipal Court Act or within an extension of time allowed by the court within thirty days of the entry of judgment, the same will be stricken.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 18, 1911.
    Rehearing denied May 9, 1911.
    William R. Brand, for plaintiff in error.
    Ferguson & Goodnow, for defendants in error.
   Mb. Pebsidirg Justice Smith

delivered the opinion of the court.

Defendants in error present their motion to strike from the record the bill of exceptions and stenographic report of evidence in this cause, and to affirm the judgment of the Municipal Court of Chicago, on the ground that the bill of exceptions or report was not signed by the trial judge within the time prescribed by the statute.

It appears from the record that the judgment was rendered May 27, 1910. On June 15, 1910, the time for the defendants to file a bill of exceptions was extended to August 27, 1910, by an order of court. By a memorandum endorsed on the bill of exceptions or report on August 27, 1910, and signed by John H. Hume, one of the judges of the Municipal Court of Chicago, it appears that the stenographic report was presented to Judge Hume, acting as chief justice in the absence of Chief Justice Olson and in the absence of Presiding Judge Beitler from this state. On Sep- ' tember 28, 1910, the stenographic report or statement of facts was certified to as follows: “And the said certificate of evidence and statement of facts is signed and sealed nunc pro tunc as of August 27, 1910, accordingly this 28th day of September, A. D. 1910. Henry C. Beitler, Judge Municipal Court of Chicago.” The paper was filed in the office of the clerk of the Municipal Court of Chicago on September 29, 1910. Ho order of court was made ordering the document or paper filed as of August 27, 1910.

It is clear, therefore, that the statement of facts or stenographic report was not signed and filed within the time provided in section 23 of the Municipal Court act, or within the extension of time allowed by the court within the thirty days of the entry of judgment. Upon the authority of Lassers v. N. German Steamship Co., 244 Ill. 570; Haines v. Danderine Co., 248 Ill. 259, the stenographic report of the evidence must be stricken from the record.

The assignment of errors presents only questions which must necessarily be heard and considered on the stenographic report or statement of facts. As we have held above, this is not properly a part of the record.- We cannot, therefore, examine it for the purpose of considering the errors assigned. The motion to strike is sustained, and the judgment is affirmed.

Affirmed.


author: Mr. Justice Baldwin

text:
    Harry B. McCardel, Plaintiff in Error, v. S. F. Bowser & Company, Defendant in Error.
    Gen. No. 15,369.
    Municipal Court—when judgment not reversed. A judgment of the Municipal Court will not be reversed for error if it appears that substantial justice has been done.
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.
    Heard in the Branch Appellate Court at the March term; 1909.
    Affirmed.
    Opinion filed May 5, 1911.
    M. L. Thackaberry, for plaintiff in error.
    Gorham & Wales, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

This is an action of the fourth class brought by the plaintiff in error in the Municipal Court of Chicago to recover commissions alleged to be due him from defendant in error, on account of certain sales made by him as a salesman for the defendant in error.

Defendant in error, a corporation, is engaged in the manufacture and sale of oil tanks and pumps. Plaintiff in error was employed by it as a traveling salesman. He sued to recover $200, and interest thereon, and filed an itemized statement setting up the various transactions from which he alleges he is entitled to commissions.

Defendant in error claimed that under the written contract between them the orders listed in the statement were obtained under circumstances which did not entitle plaintiff to commissions thereon. It also claimed a full accord and satisfaction between itself and plaintiff.

The case was tried without a jury, resulting in a finding and judgment for defendant, upon which plaintiff assigns error.

The claim of plaintiff in error was made np of commissions upon five several sales claimed to have been made by him, with interest thereon, together with items of storage, discount, freight, expense, etc., charged against him. The testimony shows that upon the trial each of the items claimed by the plaintiff was contested by defendant.

We are clear that so much of the claim as is for interest ($28.21) cannot be allowed. No such unreasonable and vexatious delay of payment was shown as would authorize a judgment for interest in any event, even if he were to recover upon the remainder of his claim.

But as to the other items, the testimony was sharply conflicting. The trial judge had the advantage of personally hearing the witnesses as they testified, and we cannot say that the manifest weight of the evidence was in favor of the plaintiff in the court below. After several months of controversy between the parties as to the amount due plaintiff in error, defendant in error sent a letter to his attorney explaining the controverted items, and enclosing a check, payable to the order of McCardel, for $8.75, “to balance the account.” This check was accepted and used by plaintiff. Without deciding whether or not the acceptance and use of the check by him constituted an accord and satisfaction of all controverted matters between them, we are of the opinion, after careful consideration of the evidence, that substantial justice was done the parties in the court below, and the judgment will, therefore, be affirmed.

Affirmed.


text:
    Louisa Sleeting, Appellee, v. The Supreme Tribe of Ben Hur, Appellant.
    Gen. No. 15,385.
    1. Insurance—when recovery will not he sustained where death results to insured while breaking the law. Held, that under a provision of the policy which exempted the society from liability where death resulted to the insured while breaking the law, that an assault, vicious in character, with a large bottle, was a criminal assault with intent to commit murder, and the insured being killed by a police officer assaulted, that the insured therefore lost his life while breaking the law and no recovery in favor of the beneficiary could be sustained.
    2. Criminal law—what is deadly weapon. A large bottle is a deadly weapon within the meaning of the statute making an assault with a deadly weapon a criminal offense.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Solon Philbrick, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and judgment here.
    Opinion filed May 5, 1911.
    Statement by the Court. Louisa Sleeting, widow of Joseph Sleeting, deceased, brought suit in the Circuit Court of Cook county against the Supreme Tribe of Ben Hur, a fraternal beneficiary association, appellant herein, upon a benefit certificate issued by it on the life of Joseph Sleeting, deceased.
    Appellant’s principal defense in the court below was made under one of its by-laws reading as follows:
    “No benefits shall be paid on account of the death of a member, which death occurred * * * on account of or in consequence of, or as a result of the known violation by any such member of any law, either civil or criminal, of any state, territory, province or county in which such member may be, which violation of law is the proximate or remote cause of such death or disability, or if the death immediately follow such violation of the law and would not have occurred except for the violation of such law.”
    It appeared from the evidence that on the 21st of June, 1905, there was a strike of the teamsters of the city of Chicago, and that several of the strikers had been, at about five o’clock of that day, arrested in the outer room of Hogan’s saloon, at the corner of Indiana and St. Clair streets; that a few minutes later Police Officer Peter O’Neill entered the rear room of the saloon, in which there were at the time only Sleeting and the barkeeper. Immediately upon the entrance of O’Neill Sleeting shouted at him, using opprobrious epithets, and an altercation resulted in which Sleeting struck the officer over the head with a bottle, breaking it and seriously injuring the officer, after which Sleeting further struck the officer with the broken part of the bottle remaining in his hand, whereupon the officer shot and killed Sleeting. The defense, therefore, claimed that Sleeting’s death was the result of an unlawful assault by him upon the officer, and that his death immediately followed such act, while the plaintiff contended that Sleeting’s attack upon the officer was in self-defense; that the officer attempted to arrest Sleeting without a warrant, and without his having committed any crime in the presence of the officer, on account of which Sleeting was justified in resisting the officer. The jury found a verdict for $1,100, the amount of the benefit certificate, and the court entered judgment thereon, after overruling the motion for a new trial.
    Appellant contends in this court that the judgment of the court below should be reversed, because (1), it is contrary to the law and the evidence, and (2), the court gave an erroneous instruction for the plaintiff, and also erroneously refused to give, instructions 4, 8 and 9, offered by the defendant.
    Mann & Miller and Gale Blocki, for appellant; Benjamin Crane, of counsel.

      Charles Werno, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

It is practically conceded by appellee that the by-law quoted above was valid and binding upon Mrs. Sleeting, the beneficiary in the certificate, but she contends Sleeting’s death did not occur under conditions which released the organization from its liability to her.

We think the court below erred in giving the jury on behalf of the plaintiff the instruction complained of, and also erred in refusing instructions 4, 8 and 9 offered by the defendant. For these errors we should reverse and remand the cause for a new trial, except for our findings upon the evidence.

Concerning the actual occurrences at and about the time of Sleeting’s death the testimony is comparatively brief. Police Officer O’Neill testified that as he stepped into the rear room of the saloon there were present only Sleeting and the bartender; that Sleeting was twenty or thirty feet distant from him and immediately upon his entering the room Sleeting called out to him: “You damned son-of-a-bitch, get out of here or I will knock your brains out,” at the same time reaching down behind and getting a long-necked bottle. He started for me with the bottle and I told him to drop the bottle. * * * He started for me with the bottle and I told him to cut it out. He did not pay any attention to either of us, but kept coming toward me with the bottle in his right hand. * * * He kept coming and when he came up a little further I told -him to drop the bottle and the bartender hollered at him again to cut it out. He kept coming up until he got within ten feet of me or so and I pulled out my revolver and told him that he was under arrest and to drop the bottle. He paid no attention, but came on and when he got within a step of me or within striking distance I reached over my left hand and threw my arm around his that had the bottle in. He grabbed me by the left—he had the bottle in the right hand—and he grabbed me by the left hand and shoved me and at the same time'he shoved the bottle oyer my right arm and struck me there (indicating), breaking the bottle into small pieces, and cutting a gash in my head (indicating) about three inches long, so that it kind of staggered me a little, and when the bottle broke he held the neck of the bottle in his hand and struck at me then with the jagged edges of the neck of the bottle and I threw up my left hand and knocked it off and he just caught me on the back of the head here (indicating) in two or three places and cut a gash in the back of my coat about four inches long, then I put the revolver up to him and shot.”

On cross-examination O’Neill stated: “After I pulled out the revolver I stopped; I did not walk toward him then; and when he got within about striking distance of me or a step away from me then I stepped over and got him around the arm. * * * After I pulled my revolver I said to him, ‘You are under arrest, drop the bottle, ’ that was after he called me a son-of-a-bitch and told me he would knock my brains out. ’ ’

“Q: But he had not done anything to you? A. He called me a son-of-a-bitch, and said he would knock my brains out.”

“Q. Had he done anything else? A. He was coming towards me with a bottle raised in his right hand.”

On re-direct examination O’Neill further stated: “Sleeting advanced toward me a little over half-way of the bar before we met. I don’t know the length of the bar. He advanced toward me probably fifteen feet after I went in there.”

Patrick G-oeghan, the bartender, testified: “Saw Officer 0 ’Neill come in the swinging doors there. Sleeting was at opposite end of bar. Officer 0 ’Neill stepped in the door. At the time of the shooting there were only three of ns in the saloon. The officer came in and Sleeting hollered to him to get out of here you son-of-a-b—•. Sleeting was at the end of the bar at that time. As soon as he said that he rushed in and got this bottle, a bottle about sixteen inches long. Then he rushed out with the bottle and the officer and him went for one another and I hollered at him to ‘put down the bottle,’ and the officer hollered, ‘put down the bottle. ’ Sleeting advanced to about the center of the bar before he met Officer 0 ’Neill. I didn’t see 0 ’Neill draw his gun. I heard the shot fired. When they met they clinched and scuffled- for a couple of minutes. Sleeting got loose his arm and struck the officer on the head, breaking the bottle. The next thing I knew the shot was fired.” On cross-examination he stated that nothing had happened or been said between the officer and Sleeting before the occurrence.

One Frank M. Specht testified: “I pushed open the swinging door and saw Sleeting hit Officer O’Neill over the head with a bottle; at that time they were about the center of the saloon. He struck him just the instant I stepped in. Don’t remember hearing anything said. Then I saw Officer O’Neill shoot.”

On cross-examination Specht stated: “Up to the time I pushed open the swinging doors did not know there was anything wrong going on inside and as I pushed open the doors I saw Sleeting hitting Officer O’Neill with a bottle. O’Neill did not shoot at the same time. Sleeting hit 0 ’Neill with the bottle and the bottle broke, then he went to hit him again with the pointed end of the bottle he still had in his hand. Then the shot was fired. * * * At the time the officer shot Sleeting, Sleeting had the bottle in his hand. I said the bottle was broken, but he had the neck of the bottle.”

Officer Sweet testified: “Then I went inside through the swinging doors and I saw the officer with his hand up this way (indicating), and the blood streaming down his face. That was Officer O’Neill.”

Officer Tallowitz testified: “I was just getting off the step of the wagon, when I heard a shot fired and I walked toward the door of the saloon and they led Joseph Sleeting out of the saloon. We led him into the wagon and as soon as he was in the wagon I went into the saloon and saw Officer O’Neill in there with blood streaming down his head.”

On behalf of plaintiff three witnesses testified to the general effect that they were friends of Sleeting and had been in the saloon with him shortly before the occurrence, though none of them saw the affair.

It appears in the testimony that shortly before the controversy between O’Neill and Sleeting, O’Neill and other officers had arrested some of the strikers in the front room of the saloon, and appellee contends that Sleeting knew of this and that he believed O’Neill had come to arrest him without a warrant, and that he was, therefore, justified in resisting.

From the evidence it clearly appears that Sleeting was the aggressor, and at the time and immediately before his being shot he was engaged in a murderous assault upon the officer, who was justified in shooting him. The large bottle used by Sleeting in making the assault upon O’Neill was a deadly weapon within the meaning of the law making an assault with a deadly weapon a criminal offense. Hamilton v. People, 113 Ill. 34; McNary v. People, 32 Ill. App. 58.

Sleeting’s assault was so vicious in character that it was likely to be attended with serious danger, and to have caused the death of O’Neill, and would have sustained a criminal charge of assault with intent to commit murder. Crowell v. People, 190 Ill. 508.

The evidence does not at all sustain the contention of appellee that Sleeting was resisting an unlawful arrest by the officer when he was shot. The fact clearly shows that at and prior to the very moment when the officer placed him under arrest, and some little time before the shot was fired, Sleeting himself was engaged in a criminal assault upon the officer, who acted with commendable courage in not using his revolver until his own life was actually seriously threatened.

On the whole record, the judgment of the court below must be reversed and a judgment entered here in favor of appellant upon a finding of facts.

Reversed and judgment entered here.


text:
    William J. Garvy, Appellee, v. The National Foundry Company, Appellant.
    Gen. No. 15,400.

      Abatement—what former suit pending. In an action for rent ensuing a distress a plea of former suit pending is established by proof of a judgment entered by confession for the same cause of action (opened up to allow pleading, the judgment stfinding as security), the proceeding being still pending.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed May 5, 1911. .
    Anderson & Anderson, for appellant.
    A. S. Lakey, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

Appellee (plaintiff below) procured from the Circuit Court a distress warrant to recover $450, for rent claimed to be due upon certain premises for the months of March, April and May, 1908. The property seized under the warrant was subsequently released upon bond, whereupon appellant filed a plea in abatement in this distress warrant proceeding, averring that when this proceeding was begun there was pending in the Superior Court of Cook county a prior suit between the same parties, for rent of the same premises, and for the same period—March, April and May, 1908. To this plea appellee filed replication denying that there was such other suit pending.

The alleged prior suit was an action in assumpsit wherein judgment upon a cognovit had been entered by confession on May 14, 1908; eight days thereafter, upon motion of defendant, the court entered an order allowing the defendant to plead within five days, the judgment to stand as security; within said five days defendant did file its plea of general issue, and of set-off, and no trial of said prior suit has ever been had.

This case was tried without a jury, and at the hearing the court struck out all testimony in regard to the former case, upon the ground that it constituted a variance between the plea and the proof. Thereupon appellant asked leave to plead to the merits. This the court refused, and entered judgment for $450.

Appellant contends here that the court below erred first, in striking out the evidence as to the former action; and second, in refusing to allow the appellant to plead to the merits.

The action of the court in striking out the evidence concerning the suit was evidently based upon the opinion of the court that the former suit was not a pending action, and was determined and ended by the judgment. In this we think the court erred.

The former case was then pending and undetermined upon the pleas filed by leave of court. Under these pleas both parties had the right to introduce testimony, and there could be no final judgment in the case entered until the issues raised by them were disposed of.

Appellee contends here that the plea for a prior suit was not a good plea in any event, because plaintiff could pursue both the remedies concurrently.

It is sufficient to say that he filed a replication denying the facts alleged in the plea, and did not raise the question of its sufficiency in law, as he might have done.

For the error pointed out, the judgment must be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Baldwin"

text:
    Travelers Insurance Company, Appellant, v. Benjamin A. Leafgreen, Appellee.
    Gen. No. 15,412.

      Verdicts—when not disturbed as against the evidence. A verdict not manifestly against the weight of the evidence will not he set aside on review.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed May 5, 1911.
    Horton & Miller, for appellant.
    Lee & Lee, for appellee.
   Mr. Justice Baldwin"

delivered the opinion of the court.

This is an action of the first class brought by the Travelers’ Insurance Company (appellant) in the Municipal Court of Chicago, to recover the sum of $1,703.96, as premiums on four policies of insurance issued to appellee.

A jury trial was had, resulting in a verdict for $525.95 in favor of appellant, which was set aside and a new trial granted. Upon a second jury trial a verdict for $503.79 was rendered, upon which, after overruling a motion for a new trial, judgment was rendered against Leafgreen. The insurance company then appealed to this court.

Appellee is a building contractor, doing business as the- Leafgreen Construction Company, and has a number of men in his employ. On November 13, 1904, he procured two policies of insurance,—one against liability to employes for injuries, known as employer’s liability policy,—and the other against liability to persons other than employes, and known as public liability policy. These policies were issued for the term of one year from their date. Two other policies of the same kind were issued to appellee on November 13, 1905.

The premium upon each policy is based upon the entire amount earned by all employes of the assured, engaged in stated employments. The rate to be charged varied according to the character of the work performed. The employer’s liability policy specified the following rates per $100 expended for labor: Mason and carpenter work, $4.00; private residences four stories high, and under, $2.00. Under the public liability policy the rates per $100 expended for labor were: Mason and carpenter, $1.50; private residences four stories high and under, $1.00. Taking the two policies together, the rates would be per $100 expended for labor as follows: Mason and carpenter work, $5.50; private residences four stories high and under, $3.00.

As to the first two policies, the assured contended that his liability was at the rate of $3.00 per $100 expended for labor, which would make the amount due from him (after deducting the amount advanced by him on the policies) the sum of $503.79, the amount of the judgment; while appellant contends that the rate should have been $5.50 per $100 (on the ground that the flat buildings, etc., were not “private residences four stories high and under,” but were chargeable as under the class “mason and carpenter work”), at which rate there was due to it, after allowing credit for advance payments, the sum of $1,266.96.

In addition, the appellant claimed $437 as advance premiums upon the last two policies. Leafgreen contends that he is not liable for any portion of this amount upon the ground that he did not accept the. policies.

As to the delivery of the last two policies, there is a direct conflict in the evidence. Appellant proved, that through its broker, it made actual delivery of the policies at the office of Leafgreen, and the record discloses several admissions on the part of Leafgreen that strongly support the contention that the policies were accepted by him. Among other things tending to sustain this contention may be mentioned the fact that a notice of injury under the second set of policies was received by the company from Leafgreen’s office. This circumstance, however, is explained by the testimony of Leafgreen’s sister-in-law, a clerk in his employ, that she sent the notice without authority from her employer, or any one authorized to instruct her, and without giving the matter very much consideration. She also testifies that she had never made out a report like it before, and that she did not notify Mr. Leafgreen that she had done so for some weeks afterward. It appears, however, that nothing was done by the company about the report. She further testifies as to the alleged delivery of the policies, that Mr. Taft, the broker representing the company, brought them in and left them on the table, telling her to give them to Mr. Leafgreen, which she did when he came in. That when she did so he. told her to return them to Mr. Taft; that subsequently, when Mr. Taft came in, she so informed him, and he requested her to hold them until he could, himself, see Mr. Leafgreen.

We think the evidence with respect to the delivery of these policies was amply sufficient to sustain a verdict in favor of the company, if one had been thus rendered. The jury, however, on both trials reached a different conclusion. As the witnesses testified in their presence, they were better qualified to determine the weight which should be given to their evidence than we can be, and we cannot say that the, verdict is so clearly against the weight of the evidence upon this question, as to justify us in reversing.

As to whether the defendant was right-in his contention that his indebtedness to the company under the first two policies was only $503.79, or whether the company was entitled to $763.17 more than that amount, upon the ground that it should have been paid a premium at the rate of $5.50 for “mason and carpenter work,” which carried the higher rate, instead of being done on “private residences, four stories high and under,” we are unable, from the record before us, to determine. The amount disbursed for work under these several classifications respectively does not sufficiently appear, nor does the record present the question in a manner which enables us to pass upon it. From the record before us, we cannot say that the amount awarded by the jury was not correct.

The judgment will, therefore, be affirmed.

Affirmed.


text:
    John H. Geary, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 15,431.
    1. Negligence—failure to protect stairway opening upon street. Held, that it was negligence to maintain a stairway which opened upon and extended into a public street which was unprotected upon one side thereof. Held, further, that the plaintiff, a pedestrian, who was injured by falling into the opening, was not, under the evidence, guilty of contributory negligence which barred a recovery.
    2. Negligence—must not take question from jury. Whether it is negligence to fail to place guards or railings about a stairway opening into a public street, is a question of fact to be determined by the jury, and the court should not by its instructions take such question away from the jury.
    3. Negligence—when owner of abutting property jointly liable with municipality. If a stairway extending into and opening upon a public street is a nuisance and an injury results to a pedestrian by reason thereof, the owner of the property to which such stairway is appurtenant is jointly liable with the municipality having control of the street.
    4. Instructions—must not assume facts not in evidence. An instruction is properly refused which assumes the existence of facts not established by the evidence.
    5. Instructions—when should define ordinary care. An instruction which concludes with a direction to the jury to find for the defendant if certain facts are believed, should he full and complete, and the issue of ordinary care being in the case a definition of what would be ordinary care under the circumstances shown, should he contained in the instruction.
    6. Instructions—when contains intimation that exercise of more than ordinary care was required. An instruction asked by the defendant in a personal injury suit which gives undue prominence to physical disabilities and infirmities of the plaintiff, is properly refused in that it intimates that the exercise of more than ordinary care is required.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed on remittitur.

    Opinion filed May 5, 1911.
    Statement by the Court. This is an appeal from a judgment of the Superior Court in favor of the plaintiff below (appellee here) upon a verdict of $4,000, on account of injuries sustained by the plaintiff, caused by the negligence of the defendants.
    The Berkshire Life Insurance Company owned the property at the corner of North Western avenue and Pleasant Place. It was improved with a building upon it and a basement below. About 9 o’clock of the evening of March 28, 1907, appellee, while walking east on Pleasant Place near and toward the corner of that street and North Western avenue for the purpose of boarding a street-car, fell into an open stairway adjoining the property owned by the defendant, the Berkshire Life Insurance Company. As a result of the fall plaintiff claims to have sustained serious injuries.
    The declaration alleged negligence on the part of the defendant in permitting the stairway or opening on the sidewalk, leading downward a depth of eight feet into the basement of the building, and failing to keep or maintain any railing, guard or protection of any kind whatsoever on the west side or opening to said stairway.
    The evidence tended to show that the night was very dark, foggy and- rainy, and that there was no street light at the corner, nor was there any light in or about the opening to the stairway.
    The defendants contend that the plaintiff’s injuries were by no means as serious as claimed, and that the flesh wound over the right eye, one of the injuries received, was entirely healed within three weeks. They also introduced evidence tending to show that, conceding plaintiff was suffering from pains in the head, or that his eye-sight was défective, still such pains or defective eye-sight were due to causes other than the injuries sustained in the fall; that in effect the plaintiff had been seriously ill" when about thirteen years of age, as a result of which his eye-sight was considerably affected at that time, and that the claimed impairment of his eye-sight must have been largely caused by that illness.

      Appellants contend here that the damages are excessive, and that the court below erred in not instructing the jury to find for the defendants; and also erred in refusing to give four other certain instructions asked by the defendants.
    Edward J. Brundage and John B. Caverly, for appellant, City of Chicago; M. R. Harris and E. C. Fitch, of counsel.
    Thoman, Harnwell & Pearsons and Edwin White Moore, for appellant, Berkshire Life Insurance Co.
    David G. Robertson and Rockhold & Busch, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

The accident to plaintiff occurred about 9 o’clock of a dark, rainy, foggy night. Appellee was walking east on the cement sidewalk on Pleasant Place to take a car on North Western avenue. About twenty or twenty-five feet west of North" Western avenue, with its opening to the west, began a stairway leading downward to the basement under the building owned by the appellant, The Berkshire Life Insurance Company. The sidewalk was a little wider than the stairway, but at this point was widened out so that persons might walk around the stairway. There was an iron railing around the east and north sides of the stairway, but no light or obstruction to hinder one from falling down the stairway if he approached from the west. From the testimony and an inspection of the photograph offered in evidence, we think the defendants were clearly liable for maintaining such a dangerous place in a public sidewalk of the city. Indeed, the liability of the defendants does not seem to be seriously controverted, except that the defendants contend that plaintiff was guilty of such contributory negligence as prevented a recovery.

After careful examination of the testimony we find ourselves unable to sustain this contention and, therefore, hold that the court below did not err in refusing to give the peremptory instructions asked by the defendants.

Defendants also complain of the court’s refusal to give certain other instructions, the first of which is as follows:

“The court instructs you that a person who is disabled or lacking some or all of the natural faculties must use care and caution commensurate with such disabilities in passing over or along a sidewalk; therefore, in this case, if you believe from the evidence that the plaintiff, at and before the time of the alleged accident, was suffering from some ailment or defect in his eyes and ears, and while passing over or along the sidewalk in question he did not use such care and caution commensurate with such disabilities or defects, if you believe from the evidence such to be the fact, and that such failure on his part, if there be such failure on his part, proximately caused or contributed to cause the alleged accident in question, then you should find the defendant not guilty.”

We think this instruction clearly objectionable. It assumed facts not in evidence, and gave undue prominence to the alleged disabilities of the plaintiff, thereby _ intimating to the jury that the appellee was required to use more than ordinary care. Moreover, since the instruction directed a verdict, and, therefore, must be full and complete, it did not define what would-be ordinary care under the circumstances shown. The instruction in terms refers to 11 some ailment or defect in his eyes and ears,” and it does not at all appear that his defective hearing could in any way have contributed to the accident. There was no noise or outcry being made which could have warned him had his hearing been perfect.

Appellants also complain of the court’s refusal to give instruction number 3 asked for by them, which .reads as follows:

“Under the law in this state, the mere fact that plaintiff was injured by reason of a failure to place guards or railings at the place in question does not of itself establish liability on the part of the defendants, or either of them. The test in this case is whether or not the conditions as they existed at the time and place in question as shown by the evidence in this case were such as to make the sidewalk reasonably safe for ordinary travel thereon by persons who are themselves in the exercise of due care and caution for their own safety, in view of the circumstances surrounding them. ’ ’

The court was justified in refusing this instruction, because it sought to inform the jury that the failure to place guards or railings was not sufficient as a matter of law to establish the negligence of the defendants. This was clearly a question for the jury. City of Chicago v. Baker, 195 Ill. 54. In any event the refusal of the instruction could not have injured the appellants, because the jury were fully instructed in the matter in other instructions given.

The next instruction which it is claimed the court erred in refusing is as follows:

“You are instructed that under the law in this State the defendant is not required to exercise a higher degree of care toward the plaintiff than is the plaintiff required to exercise himself to avoid injury. All that the City is required to do under the law is to exercise reasonable care to keep and maintain its streets in a reasonably safe condition for the ordinary purpose of travel thereon by persons who are themselves in the exercise of ordinary care for their own safety at the time, in view of all the circumstances surrounding them.
“Therefore, if you believe in this case that at the time and place of the alleged accident the plaintiff was not exercising such care and caution for his own safety as an ordinarily prudent person would exercise under like circumstances, and that such failure on his part caused or contributed to cause said injury, then no matter how the City neglected its duty in this case, you should find the defendant, City of Chicago, not guilty.”

The substance of this instruction seems to us fully covered by instructions numbered 1, 2 and 5, actually given on behalf of appellants. Appellants also complained that the court refused to give an instruction offered by them reading:

“You are instructed that the defendant, the Berkshire Life Insurance Company, cannot be held liable to the plaintiff in this case, and cannot be found guilty, unless you find from the evidence that the maintaining of the stairway, mentioned in the evidence, was a wrongful act.”

This instruction is misleading. The question which the jury had to decide was whether maintaining the stairway was a negligent act, while the instruction was to the effect that the Insurance Company could not be held liable unless the maintaining of the stairway was a wrongful act.

Lastly, appellants complain that the court refused to give instruction number 6, which they tendered, and which reads:

“You are instructed that the fee of the land used for the streets and sidewalks is owned by the City of Chicago, and that it is only the duty of the said City to use reasonable care to make the streets and sidewalks reasonably safe for the use of persons passing thereon, such persons using such care and caution for their own safety as ordinarily prudent persons would use under like circumstances. You cannot find the Berkshire Life Insurance Company guilty, unless the sidewalk was rendered unsafe for travel to persons using such care, by reason of some act on the part of said Berkshire Life Insurance Company.”

This instruction does not correctly state the law. It is not true that in all cases the fee of the land used for streets and sidewalks is owned by the City of Chicago, nor is it true that the Insurance Company could not be found guilty unless, by reason of some act on its part, the sidewalk was rendered unsafe. Its ownership and use of the property, with the stairway, constituting a nuisance extending out into the sidewalk, rendered it jointly liable with the City of Chicago. City of Peoria v. Simpson, 110 Ill. 294.

Finding no reversible error in the action of the court in respect to these instructions, we now proceed to consider the contention that the verdict was excessive.

After a careful consideration of all the evidence in the case, we have reached the conclusion that the verdict is too large. Appellee suffered' serious injuries, for which we have already found that appellants were responsible. From the character and extent of the injuries, we think the appellee will be compensated by receiving $3,000. Accordingly, if appellee will, within ten days from the filing of this opinion, file in this court a remittitur of $1,000, the judgment will be affirmed; otherwise the judgment will be reversed and the cause remanded for a new trial.

Affirmed upon remittitur.

Remittitur filed and judgment affirmed May 6, 1911.