text:
    Chicago City Railway Company v. Mary Phillips.
    Gen. No. 13,604.
    1. Verdict—what sufficient to sustain. One good count, to which the evidence is applicable and of sufficient preponderating weight to support the action under such count, is sufficient to satisfy the requirements of the law, regardless of the fact whether or not there is proof sustaining the other counts of the declaration.
    2. Verdict—when not disturbed as against the evidence. A verdict will not he set aside on review, as contrary to the weight of evidence, unless clearly and manifestly so.
    3. Variance—when question of, raised too late. In the absence of a motion to exclude made at the time of the alleged variance appearing, a motion to direct a verdict made at the close of all the evidence is too late, and the question of waiver is effectually and finally waived.
    4. Instructions—when action of court in refusing to instruct that there could be no recovery under a particular count, harmless error, if error at all. The action of the court in refusing to instruct the jury that there can he no recovery under a particular count, if error at all, is harmless error, where the statutory method of applying to the court to instruct the jury to disregard the alleged faulty count was not pursued.
    5. Instructions'—when spirit of particular instruction improper. An instruction is properly refused which is calculated to raise doubts in the minds of the jurors and foster a spirit of disagreement.
    6. Instructions—need not contain repetitions. It is not error to refuse an instruction containing a correct proposition of law where the substance of the refused instruction is contained in other instructions given.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed January 27, 1908.
    Wm. J. Hynes, John E. Kehoe and C. LeRoy Brown, for appellant.
    McGoorty, Pollock and Loeb, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment of the Superior Court in favor of appellee for $5,000 assessed as damages by a jury for personal injuries suffered by appellee through the claimed negligence of appellant.

Appellee, a passenger upon a car of appellant, suffered the loss of her left leg above the ankle by having that limb run over by the car upon which she was a passenger, while in the act of alighting therefrom.

The declaration consists of two counts, the first of which charges in substance that the car was so improperly, negligently and carelessly operated and managed that while it was being moved in a westerly direction it ran upon, against and over appellee, who was then and there upon Sixty-eighth street, in the exercise of due care and diligence for her own safety. The second count sets forth the occurrence with more amplification as to detail than the first count, and with some variation. After averring the ownership and operation of the car and the road, it avers that on October 24, 1904, appellee was a passenger on a car going east on Sixty-eighth street; that it proceeded in an easterly direction to a point near to a certain public highway known as Cottage Grove avenue, where it stopped to permit passengers to alight therefrom; that appellee then pToceeded, with due care, to alight; then the duty of appellant is alleged, and the breach of duty charged is that while appellee was endeavoring so to alight from the car the servants of appellant in charge of its operation negligently caused the same to be suddenly started; that in consequence of such negligent act, appellee was thrown from the car with great violence to and upon the ground, rails and divers other objects upon the ground, and the car then and there ran npon, against and over appellee, injuring her and making it necessary to amputate her leg. To this declaration appellant interposed a plea of not guilty.

Appellant assigns errors, and urges in argument as reasons for reversing the judgment of the trial court: (1st) On all the evidence it is impossible to believe that appellee was injured by any other cause than by reason of her alighting from .the front platform of the east-bound car before it came to a stop; (2nd) a variance between the allegations and the proofs; (3rd) erroneous rulings on the admission of evidence; and (4th) error in refusing instructions requested by appellant.

The place of the accident in question is the eastern terminus for appellant’s cars running east and west on Sixty-eighth street. Passengers going north or south from this point are transferred to the cars of appellant which run in those directions on Cottage Grove avenue, to the east of which terminal point that thoroughfare is situate.

The theories of the contending parties as to how the accident happened are out of harmony and diametrically opposed to each other. At the eastern terminus of the Sixty-eighth street line the east-bound cars, after reaching the terminal point and discharging passengers, proceed to the north or west-bound track by means qf a switch installed at that place for such purpose, in order to make the return journey to the west. Appellee’s version of the accident is that the car came to a standing position, after which she went to the rear or west end platform of the car, and while it remained motionless proceeded to get onto the car step on the south side for the purpose of alighting upon the ground; that while, with due care, she was so endeavoring to leave the car, without warning to her, the car gave a sudden start toward the west, throwing her off of the car onto the ground and in some way drawing her under the forward wheels of the car, which ran over her left limb, severing it above the ankle. Appellant’s theory, unsupported by any eye-witness of the occurrence, but grounded upon physical conditions and environment, is that appellee attempted to get off the car while it was in motion and before it arrived at its eastern destination from the south side of the front or east end of the car, and in so doing lost her footing, fell to the ground, and her left leg was run over by the car while it was still proceeding eastward.

Counsel for appellant argue at great length and with much earnestness and apparent sincerity that these claimed physical conditions demonstrate that their theory is the only feasible one to be gathered from the proofs. They also say that at the time of the accident appellee was the only passenger on the car, while on the contrary she maintains there were two other passengers. Neither of these two passengers were called as witnesses. Much stress is also laid upon some' claimed inconsistencies and contradictions appearing in appellee’s evidence. The testimony, while clearly conflicting, is'not necessarily irreconcilably so. The burden of harmonizing the conflicting evidence was for the jury, and unless we áre able to say that the verdict of the jury is clearly against the weight and the preponderance of the evidence, we are not permitted to disturb it by interposing our judgment against that of the jury.

It was for the jury to determine whether the ear was going east or west at the time of the accident, whether appellee was endeavoring to alight from the front or rear platform of the car, whether she was attempting to alight while the car was motionless or while it was in motion, whether appellee’s injuries were suffered by a sudden and unheralded starting of the car, resulting from the negligent act of appellant’s servants in charge of the car, or whether they resulted from the recklessness and want of care of appellee in attempting to leave the car while it was in motion.

It was also the duty of the jury io determine the credence to be accorded the evidence of the several witnesses. They may not have attached, as we do not, any significance to the claimed inconsistencies in appellee’s evidence. That the mind and memory of appellee may have been somewhat confused at the sudden danger in which she was so unexpectedly placed and by the terrible affliction which in a moment overtook her, is not a matter of marvel. Could she be expected to watch for and remember every movement of the car, the people around it and her own situation in that awful moment when she lost her limb by the car passing over it? Surely not. It is evident the jury took this view, in which we can see no cause, legal, rational or humane, to disagree. But the crucial and controlling facts that the car suddenly and without warning started from a standing position while appellee was on the south side of the west end of it, while she was attempting to leave it, throwing her to the ground and injuring her in the manner which is not disputed, were necessarily so forcibly impressed upon her memory that she could testify convincingly in relation to them. The proof of appellee in this record, if believed by the jury, is amply sufficient to support the verdict. Notwithstanding the criticism indulged by appellant of appellee’s witnesses—Head, the clergyman, and Walker, the upholsterer—the jury might, as they evidently seem to have done, judging by their verdict, have put more faith in the truthfulness and disinterestedness of their evidence than they were willing to accord to the servants of appellant who testified.

Appellant also contends that there is a variance between the averments of the declaration and the proof given in support of them. Whatever may be said on this objection as to the first count, a careful weighing of the proof of appellee amply demonstrates its sufficiency to support the averments of the second count. It is not at all essential that both counts should be sustained by the proofs. If there is one good count, to which the evidence is applicable and of sufficient preponderating weight to support the action under such count, the requirements of the law are sufficiently met, regardless of the fact whether or not there is proof sustaining the other counts of the declaration. The trial court did not violate this legal principle by refusing to instruct a verdict for appellant on the ground of variance. Chicago & Great Western Ry. Co. v. Mohan, 88 Ill. App. 151, affirmed 187 Ill. 281; Swift v. Rutkowski, 82 Ill. App. 113, affirmed 182 Ill. 18; E. E. Co. v. Wieland, 179 Ill. 610.

A motion to so instruct the jury to find a verdict for the defendant at the close of defendant’s proof comes too late. “The question of variance may be waived, and is waived unless it is raised in apt time, and we are of the opinion the objection was made too late,” say the Supreme Court in City of Chicago v. Bork, 227 Ill. 60. The court further say in case supra: “While in Alford v. Dannenberg, 177 Ill. 331, it was said that advantage may be taken of a variance by a motion to exclude the evidence, there is nothing said in that case which would authorize a defendant to lie by in the trial of the case, after he has noticed that there is a variance between the proof and the declaration, until the proofs are all in, and then raise the question of variance for the first time.” A motion to instruct a verdict for the defendant on the ground of variance is tantamount to a motion to strike out the plaintiff is evidence for the same reason. It comes too late when made at the close of all the proof. The motion by appellant to instruct a verdict in its favor at the close of appellee’s proof stated no grounds for such motion. • The motion to instruct a verdict on the alleged ground of variance came too late • at the close of all the proofs. Coming too late, the objection of variance, which, if made in apt time, might have been effective, is waived. Whether or not there is a variance becomes immaterial in light of the waiver. The infirmity, if such exists, is cured by the verdict. In Lake Shore & M. S. Ry. Co. v. Ward, 135 Ill. 511, the defendant asked the court to instruct the jury to find a verdict for the defendant, and alleged as one ground of its motion a variance between the proof and the declaration. The court said: “This was the only attempt to point out a variance, and it was clearly insufficient. ’ ’

The refusal of the court to instruct the jury that there could be no recovery under the first count, was harmless error, if error at all. However, the instruction here proffered was to find a verdict for appellant. Section 51, chapter 110, R. S., provides that “if one or more of the counts in a declaration be faulty, the defendant may apply to the court to instruct the jury to disregard such faulty count or counts.” This method appellant did not adopt, and, as held in Anderson v. Semple, 7 Ill. 455, if a party does not avail himself of his right to have the jury instructed to disregard faulty counts, it is his own fault.

We are unable to find any rulings of the trial court in the admission of evidence so erroneous as to call for a reversal of the judgment. The merits of the case on the .whole record are certainly with appellee. The objections made are trivial and highly technical, and in no way relate to any testimony in the slightest degree affecting the merits or operating to curtail any of the defenses sought to be introduced by appellant.

Appellant complains in argument of the refusal of the trial court to give instructions 16 and 18 tendered by appellant. As to the refusal to give other instructions on which error is assigned and not argued, error is waived.

Instruction 16 was calculated to raise doubts in the minds of the jurors and foster a spirit of disagreement. This instruction was,- in form, disapproved in City of Evanston v. Richards, 224 Ill. 444. The refusal to give this instruction was not error.

The court properly refused to give the eighteenth instruction, as the jury were sufficiently informed by other instructions given at the instance of appellant in relation to the degree of care or diligence which the law required of appellee to entitle her to prevail. The doctrine of contributory negligence in that instruction referred to, was in effect but a repetition of the import of other instructions given at the- request of appellant.

The jury by their verdict found appellant guilty of the negligence charged in the declaration, which resulted in severe injury to appellee and also in like manner found her free from any want of care for her own safety which in any manner contributed to cause such injuries. The trial court, in overruling a motion for a new trial, has evidenced its concurrence in the jury’s findings on these matters. The record fails to disclose anything which to our minds would justify us in arriving at a different conclusion. The trial was fairly conducted, the evidence is without any legal infirmity, the jury were correctly instructed upon the law applicable to the facts of the case. The rights of appellant were duly safeguarded in every material matter. The judgment is reasonable for the dismemberment sustained by appéllee as a consequence of the negligence of which appellant stands convicted, to the amount of which no complaint is made. Justice seems to have been done in accord with legal precedent and practice.

The verdict and judgment merits our approval, and the judgment of the Superior Court is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Adams

license: Public Domain

text:
    A. J. Lindquist v. State Bank of Chicago.
    Gen. No. 13,588.
    Bill of exceptions—when not in custody of court. A hill of exceptions handed to the clerk of the court, even though O. K.’d by opposing counsel, with instructions to the clerk to 'file the same after its approval by the court, is not in contemplation of law in the custody of the court, and cannot, after the lapse of the time provided for its presentation, be signed by the court, nor can the same, at a subsequent term, be signed by such court nunc pro tunc as of a time within the presentation period.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. George A. Dtjpuy, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed January 27, 1908.
    Oscar D. Olson and O. C. Peterson, for appellant.
    Steele & Thompson and Charles Hughes, for appellee.
   Mr. Justice Adams

. delivered the opinion of the court.

Appellee sued appellant in assumpsit and recovered judgment for the sum of $612.57, from which judgment this appeal is. The appellee moved here to strike the bill of exceptions from the record, and the motion was reserved till the hearing of the cause. The judgment was entered December 29, 1906, a day of the December term of the court, and the appellant prayed an appeal, which was allowed on his filing an appeal bond and bill of exceptions within thirty days from December 29,1906.

March 4, 1907, the following order, entitled in the cause, was entered: “On motion of defendant for order of court, to permit him to file his bill of exceptions herein, nunc pro tunc as of date January 26, 1907, it appearing to the court that, prior to said date, the said bill of exceptions had been submitted to the plaintiff’s attorneys for examination and found by them to be correct, as appearing by the ‘O. K.’ mark in an unusual place, and was never called to the court’s attention, nor seen by the court, and that on the said date, January 26, 1907, the defendant also delivered the said bill of exceptions to the clerk of this court, for the approval and seal of said court to be thereto attached, and instructed said clerk to file the same in this cause, when approved by the court; and it further appearing to the court that the signing and filing of said bill of exceptions has been overlooked and omitted, and that said bill has, since said date, been in the sole possession and custody of the court, it is therefore ordered by the court that said bill of exceptions be approved, signed and filed nunc pro, tumo as of and for said date, January 26, A. D. 1907, and the same is hereby done accordingly.”

The bill of exceptions in the record concludes thus: “"Which is done nunc pro tuno as of and for January 26, 1907, the fourth day of March, A. D. 1907,” and is signed, “George A. Dupuy, (Seal), Judge.”

The time to file a bill of exceptions by the order of December 29, 1906, expired January 28,1907, which was a day of the January term, 1907, of the court, and there was no extension of this time fixed after the order of December 29, 1906. March 4, 1907, was a day of the February term 1907 of the court.

The question to be determined is, whether the court had jurisdiction to enter the nunc pro tunc order of March 4,1907. It appears from that order that, January 26, 1907, appellant deposited with the clerk of the court what purported to be a bill of exceptions marked “O. K.”, and instructed the clerk to file it when approved by the court. It also appears from the order that the clerk never presented to the presiding judge the bill of exceptions. The order recites that it was never called to the judge’s attention, and that he had never seen it.

The court held, as is apparent from the order, that the bill of exceptions was in the custody of the court from the time it was delivered by appellant’s attorney to the clerk, to file the same when approved. It is a question of law whether such delivery and instruction to the clerk placed the instrument in the custody of the court, and we dissent from the proposition that it did. An unfiled document, and especially a document which cannot properly be filed until action is taken in respect to it by the presiding judge, when delivered to the clerk, with the implied instruction not to file it till the presiding judge shall approve it, is certainly not in the possession of the court, nor is it even in the official possession of the clerk. If the clerk had lost the bill of exceptions, and the appellant, claiming that he was damaged thereby, had sued the clerk and his sureties on his official bond, we think it plain that the suit could not be maintained.

It does not appear from the nunc pro tunc order, or otherwise, that the clerk was requested or undertook to present the bill of exceptions to the presiding judge. It is no part of the clerk’s duty to present to the judge of the court, for his approval, a bill of exceptions. This is the duty of counsel, and the clerk’s official duty in respect to a bill of exceptions does not commence until it has been signed, sealed (when sealing is required), and made a part of the record by the presiding judge. When the order of March 4, 1907, was made, the court had lost jurisdiction of the cause, and the order is void. Hill v. City of Chicago, 218 Ill. 178; Pieser v. Minkota Milling Co., 222 ib. 139.

No question is argued by appellant’s counsel which does not require a bill of exceptions. The bill of exceptions will be stricken from the transcript of the record and the judgment will be affirmed.

Affirmed.


text:
    Charles L. Bonney v. Thomas S. McClelland.
    Gen. No. 13,593.
    •1. Trial—when action of court in advancing time of, will not he reversed. It is within the discretionary power of the trial court to advance or refuse to advance the hearing of a cause, and the action of the court with respect to such matter will not be reversed, unless an abuse of the discretionary power is shown. Likewise, the action of the court in advancing the hearing of a cause will not be reviewed where the hill of exceptions does not affirmatively show that the cause was actually tried out of its regular calendar order.
    2. Judicial notice—of what not taken. The Appellate Court will not take judicial notice of the rules of the Circuit Court.
    3. ' Notice—what sufficient service of. A notice to a non-resident attorney, who appears of record as the attorney in charge of the cause, unassociated with local counsel, is sufficient if made by means of the employment of the registered mail service of the United States.
    Action of libel. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed January 27, 1908.
    Statement by the Court. The trial court dismissed, at appellant’s cost, a suit brought by him against appellee. Hence this appeal. July 21, 1906, a declaration was filed, in which it is averred in substance as follows: Plaintiff, in January, 1906, was temporarily residing in the city of Jacksonville, Florida, and George M. Nolan was then mayor of said city, and the defendant was then in said city of Chicago ; and said defendant, at said time, wrote a defamatory and false letter to said mayor, in which letter he characterized and designated plaintiff as a “big crook” and a “bunco steerer,” and stated in said letter that the same was written to put said mayor on his guard against robbery, and defendant subscribed and forged to said letter the name “H. Schuettler,” H. Schuettler being then and there assistant chief of police of the city of Chicago.

      August 30, 1906, defendant pleaded the general issue. Certain affidavits filed in the cause are made part of the record by bill of exceptions, and it appears by an affidavit of the. defendant, sworn to October 17, 1906, that said defendant made application to the court to advance the cause on the docket, so that he might have a speedy trial. In support of this application, defendant filed his own affidavit’ and that of H. F. Sehuettler. In defendant’s affidavit it is stated that the appellant is a resident of Jacksonville, Florida, and has been since early in the year 1905, and that he is, his own attorney in the suit and cannot be personally served with notice; also that the charges in the declaration are absolutely false; that affiant never wrote the letter or had anything to do with the writing of it. Sehuettler, in his affidavit, says in substance, that he had seen the letter mentioned in the declaration, and that the signature thereto was not his, and that he, by order of the mayor, had submitted said, letter, with letters of the defendant and others, to experts, for the purpose of ascertaining the authorship of the same, and that affiant, after investigation, found nothing which, in the least, would implicate the defendant as being the author of said letter.
    November 22, 1906, the court entered an order advancing the cause and setting it for trial December 11, 1906. December 29, 1906, the following order was entered in the cause:
    “Application having been made to the court by said defendant for instructions as in what manner he should serve notice on said plaintiff, who appeared as his own attorney in said cause, and it appearing to the court that said plaintiff is not a resident of Illinois, nor has been for more than eighteen months last past, and that he is resident of Jacksonville, Florida:—It is ordered that said defendant serve notices on said plaintiff by mailing the same to plaintiff in registered letters, or envelopes, directed to said plaintiff at Jacksonville, Florida, said application' having been made and directions given on, to-wit, October 20,1906, but by error or mistake not entered of record, it is here ordered that this order be entered nunc pro tunc as of October 20, 1906.”
    December 11, 1906, there was filed in the cause affidavits of Homer W. Woodbury, in which, after setting out the title of the cause and the order of November 22, 1906, above referred to, there follows a notice stating, in substance, that the order was entered in the cause November 22, 1906, and that, December 11, 1906, the defendant would appear in the court, at ten o’clock in the forenoon, to try said cause, and that the cause might be tried before Judge Clifford, or any of the judges of the Circut Court engaged in the trial of common law cases. The notice is signed, “ Thomas S. McClelland, pro se” Then follows the affidavit of Homer W. Woodbury, in which the affiant deposes, in substance, that November 23, 1906, he enclosed in an envelope, duly stamped and addressed to Charles L. Bonney, Jacksonville, Florida, a true copy of the order and notice aforesaid, and caused the same to be duly registered at the post office, paying therefor eight cents, and mailed the same, the registry receipt being here exhibited to the court.
    December 29, 1906, affidavits of appellee and said Woodbury were filed. McClelland, in his affidavit, deposes, in substance, that October 20, 1906, he mailed to Charles L. Bonney residing at Jacksonville, Florida, a notice that he would move the court to advance said cause on the docket, enclosed in a registered letter, duly stamped, the registry receipt and report of the postmaster at Chicago, Illinois, beiag attached hereto and made a part hereof, and that November 6, 1906, said notice was returned to affiant by the post office department marked “Refused,” and he therefore says that said Bonney refused to accept said notice.
    Exhibits attached to the affidavit show registry of the letter, and that it was handed to Bonney, who called at the post office in.Jacksonville, Florida, and that he returned it, “stating that he did not want it, and would not sign for it.” The affidavit of Homer W. Woodbury shows the mailing by him, November 23, 1906, of a letter containing said notice, addressed to Charles L. Bonney, Jacksonville, Florida, its registry and the receipt for registry, and that the letter was offered to Bonney at the post office in Jacksonville, and he refused to take it. The foregoing are all the affidavits or evidence contained in the bill of exceptions.
    Charles L. Bonney, for appellant.
    Thomas S. McClelland, for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

The assignments of error argued by appellant are that the court improperly advanced the cause for trial, and that the nunc pro tunc order of December 29, 1906, is void, for the reason that there was no minute or memorandum on which to base it. Section 16 of the Practice Act in force when the order advancing the cause was made, provides: “All causes shall be tried, or otherwise.disposed of, in the order they are placed on the docket, unless the court, for good and sufficient cause, shall otherwise direct.” Counsel contend that good and sufficient cause was not shown. Whether the cause should be advanced on the showing made, rested in the sound legal discretion of the court, and the court’s decision cannot be set aside, except for manifest abuse of its discretion. Morrison v. Hedenberg, 138 Ill. 22, 25; Staunton Coal Co. v. Menk, 197 ib. 369, 373.

Thomas S. McClelland, the appellee, is a member of the Chicago bar, and, as such, an officer of the Circuit Court, and the declaration charges him with having forged to a letter written by him, and containing matter libelous on its face, the name of the assistant chief of police of the city of Chicago. '’Such charge was well calculated to injure Ms reputation as a man, and Ms business as a practicing attorney, and if true, disqualified Mm from practicing in the Circuit Court, or continuing to be an officer of that court. Appellee, in his affidavit, expressly denies that he wrote the letter or caused it to be written, or inspired it, and states that he never saw any part of it except the signature, which was exhibited to him by Herman F. Schuettler, the assistant cMef of police, whose name was signed to it; and Mr. Schuettler, as shown by the statement preceding this opinion, deposed that on investigation made by him, by order of the mayor of the city of Chicago, he found not the smallest scintilla of evidence implicating appellee as the author of the letter. It was also relevant for the court to consider that the charge in the declaration was made without oath, and without the personal knowledge of the appellant, who resided in Jacksonville, Florida, when the letter was written. The suit was commenced and the declaration filed July 21, 1906, and appellee’s affidavit states that “the plaintiff is a resident of Jacksonville, Florida, and has not resided in said Cook county smee early in the year 1905.” We cannot hold that the court, m entering the order of November 22, 1906, abused its discretion. There is nothing in the record to show that the cause would not have been reached for trial December 11, 1906, or that it was not reached and called for trial in its regular order on the docket, on that day, and every presumption must prevail in favor of the judgment, in the absence of anything in the record rebutting the presumption.

It is not necessary to the decision of this appeal to pass on the question whether the court had jurisdiction to enter the nunc pro tunc order of December 29, 1906. There is no statute providing that the court, in such a case as the present, shall or may direct the manner of serving notice. Appellant says there is a rule of the trial court so providing; but if there is any such rule, it is not in the record, or any evidence of it, and therefore we cannot consider it. We cannot take judicial notice of the rules of the Circuit Court. Anderson v. McCormick, 129 Ill. 308, 314; 62 Ill. App. 599, 602.

That a sufficient notice was mailed to appellant and handed to him at the post office in Jacksonville, Florida, and that he refused to take it from the office or to sign a receipt for it, is shown by the evidence. Appellant does not deny that he refused to receive the notice, but attempts to excuse Ms refusal, saying’, in his argument, “It is common practice, under this rule, for an attorney to refuse to receipt for such a copy of notice, even after he has read the same.” This may be appellant’s practice, but it is not always safe to measure another’s corn with one’s own half bushel, or another’s conduct by one’s own conduct. The result may prove short. It is unprofessional and discourteous for an attorney to refuse to receive or acknowledge the receipt of a proper notice, and we are pleased to be able to say, from our observation and experience, that such is not the practice of reputable members of the Chicago bar. We do not think appellant is in a position to make any objection in respect to notice. Residing in Jacksonville, Florida, he commenced suit in the Circuit Court of Cook county, and filed a declaration signed in his own name; and he had no agent or attorney in Cook county or in this state, so far as appears from the record, on whom notice could be served. It is significant that although appellant appeared in court by attorney at the term at wMeh judgment was rendered, and therefore in time to move for a vacation of the judgment appealed from, and to support such motion by proper evidence, if any he had, that he had a good cause of action, no such motion or showing was made, and now appellant seeks relief here, which he mig’ht have had, on a proper and sufficient showing, in the trial court.

The judgment will be affirmed.

Affirmed.


text:
    Thomas B. Brougham, Administrator, v. Edgar T. Paul.
    Gen. No. 13,597.
    1. Contracts—when recovery upon implied contract cannot be had. No recovery can be predicated upon an implied contract if an express contract appears to have existed between the parties with respect to the subject-matter of the litigation.
    2. Contracts'—when employment contract terminable at will. A contract of employment made for an indefinite period is terminable at the will of either party.
    3. Contracts—when discharge not illegal. No recovery can be had upon the ground of a breach of a contract of service by a discharge from service where the contract is indefinite with respect to the period of its duration, inasmuch as such a contract is terminable at the will of either party thereto.
    4. Instructions—must not assume facts in dispute. An instruction is erroneous which assumes the existence of facts in dispute between the parties to the litigation.
    5. Verdict—when not sustained by a preponderance of the evidence. A preponderance of the evidence does not exist in favor of the plaintiff, where it appears that the verdict rests upon his own sworn statement denied in every respect by the sworn statement of the defendant, both parties being uncorroborated, and both being of equal credibility.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in this court at the March term, 1907.
    Reversed and remanded.
    Opinion filed January 27, 1908.
    Statement by tbe 'Court. Edgar T. Paul, tlie appellee, sued the appellant, Thomas B. Brougham, as administrator with the will annexed of the estate of Daniel E. Murphy, deceased, and recovered judgment for the sum of $5,000. The declaration consists of a special count and the common counts. In the special count it is averred, in substance, that, to wit, May 1, 1899, in consideration that plaintiff would enter into defendant’s employ as managing agent of a tract of land in the city of Evanston, in Cook county, for such period as would be required to improve, develop and fit the same for market, to wit, for one year, for such compensation as his services should be reasonably worth and as he would reasonably deserve, the defendant promised to employ plaintiff in said capacity and to continue him in snch employment until such services should be completed, to wit," from the day and year aforesaid; and plaintiff, confiding in said promises, to wit, May 1, 1899, entered defendant’s employ in said capacity and on said terms, and continued in the performance of services in and about the purchase of said tract of land, the acquisition of title thereto, the subdivision and resubdivision thereof into lots, blocks, streets and alleys, etc., for a long space of time, to wit, till June 20,1901, and although plaintiff was then and always has been ready and willing and offered to continue in the performance of said services, the defendant wholly refused to permit him so to do, and, to wit, June 20, 1901, wrongfully discharged him, to plaintiff’s damage, etc. The second count is a long drawn out quantum meruit count for labor and services, following which are the common counts.
    The defendant pleaded the general issue. The jury found the issues for the plaintiff and assessed his damag-es at the sum of $5,000, and the court overruled defendant’s motion for a new trial and rendered judgment on the verdict.
    Seymour Edgerton and George P. Merrick, for appellant.
    Pierson & Pease, for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

Appellant’s counsel contend that there was an express contract between the appellee, Edgar T. Paul, and Daniel E. Murphy, deceased, and that such being the case, there can he no recovery, the suit being on an implied contract. Thomas B. Brougham, the appellant, testified that the tract of land in question (which consisted of about thirty acres situated in North Evanston, in Cook county) was purchased by Mr. Murphy for $90,000—$60,000 cash and an equity in a building situated in the city of Chicago, called the Wisconsin building, which equity was estimated to be of the value of $30,000. Mr. Murphy desired to make a resubdivision of the Evanston tract, and sell lots in the resubdivision, and Mr. Brougham testified that, May 9, 1899, Mr. Paul, the appellee, Mr. Murphy, Mr. Bates and he, Brougham, were present in his office in Chicago, and he introduced the matter and said to Mr. Paul that Mr. Bates had recommended him as a good man to prepare the property for sale, and said farther, “We will need some assistance in that matter, and we want to get it in shape, so that the property can be sold. Do you think that you could undertake it?” and Paul said, “Yes', I would be very glad to do that indeed. It is property that I have been trying to get hold of a long time. I know that just as soon as we get it in some neat shape, that I can sell lots very rapidly. Just as soon as the people see that we are starting in to do something there, I know that I can sell the property and sell it very quickly, and to many people in Evanston.” Some farther conversation occurred, in reference to procuring some other lots for the subdivision, when witness said to Paul, “Very good, that is just exactly what we want. Now, what basis would you want to perform this work on, for?” and Paul said, “I have such confidence in my ability to sell the property that I am willing to take that on a commission basis.” Witness said, “You mean that you will assist us in putting the property in good condition, so that it would be attractive to people, and we can sell on a commission basis?” Paul said, “Yes, I will be willing to do that for 5 per cent.” Then Mr. Murphy said, “That is just right. I have always paid by a commission. I am an insurance agent, and I pay commission to agents when they insure lives. Five per cent, will be satisfactory”; after which Mr. Murphy further said: “Now, Mr. Paul, I recognize your infirmity, and that it would be very difficult for you, on account of the infirmity, to attend to the matter of selling property, getting about, etc., and I am willing to pay an additional five per cent, to anybody who assists you in bringing in customers.” Mr. Paul’s physical condition was such that he had to use a crutch and cane in walking-. At the conclusion of Mr. Murphy’s statement last above quoted, the following questions to and answers by Mr. Murphy occurred :

“Q. Five per cent, to him and five per cent, to this man to assist? A. In addition, yes.
Q. Making it ten per cent? A. That would be ten per cent.
Q. On sales? A. On sales.”

The witness then said to Paul, “Now, we want it distinctly understood there will be a great deal of work you can assist us in before we sell, and that the commission will be in payment of that work,” and Paul said, “Certainly, that is what I will do.”

Mr. Thomas Bates was present at the conversation testified to by Mr. Brougham, and testified that he introduced Mr. Paul to Mr. Murphy and told the latter that Paul was a real estate man and would be a good man to handle the land, and Mr. Murphy told Paul that he wanted to sell the property, and there was some talk of a resubdivision, and Paul said he would like to handle the property, when Mr. Murphy asked him on what terms, and he, Paul, said he would be willing to take it on a straight commission basis, and Mr. Murphy said he would much prefer that, as he did riot intend to pay out money if a man couldn’t do him any good, and unless he made sales he was not to receive any compensation, but was to take the property and sell it on a straight -commission basis, and Paul told him that was perfectly satisfactory to him; that he would take it and sell it on a straight commission basis. Witness further testified: “There was talk of five per cent, commission. I don’t know that I' could recall the exact amount, but there was talk of five per cent, commission, and my recollection is that in lieu of Mri Paul’s assistance in some other matters, such as the subdivision of the property, not his assistance, because he did nothing about that, but with reference to the building of a house or something of that sort, Mr. Murphy was to pay him a little in excess of five per cent, commission. I don’t recall but what it might have been five per cent, or some part of it. Certainly, it was a five per cent, basis for selling the property.”

The foregoing evidence shows that there was, as claimed by appellant, an express contract between Mr. Murphy, deceased, and the appellee, and that the contract was that appellee should render assistance in getting the property in shape for the sale of lots therein, and was to have the sale of the lots, and that his compensation for his assistance in getting the property in shape so that lots therein could be sold, and for selling lots in the resubdivision, was to be five per cent, commission on prices of such lots as he might sell, and that his compensation was to depend solely on the sale of lots by him. It is admitted that he had, by the contract, the exclusive privilege of selling lots in the resubdivision.

That there was an express contract, as testified by the witnesses Brougham and Bates was not denied by appellee in his testimony on the trial, or at all by any witness, and the testimony of Brougham and Bates that there was such a contract is corroborated by circumstances in evidence.

Mr. Brougham testified that sometime in October, 1900, Mr. Paul, in witness’ office, stated to witness that he would rather have the basis of his commission as a part of the profits, instead of selling on a commission basis, and asked witness what he thought about it, and witness said that he would submit the matter to Mr. Murphy, but was quite certain that he would not approve of it, that Mr. Murphy would go on the basis of the contract that was made with him. A letter from appellee to Mr. Murphy, dated October 25,1900, was put in evidence by appellant, which letter contains the following:

“As further evidence of my confidence in the result, I also told Mr. Brougham that .as regards my compensation I would be willing—in fact prefer—to base it on a portion of what profit you make out of your investment. One reason for this idea is, that if a person works on a straight commission, he is apt to dabble in everything that comes along, while this matter is of such magnitude that it ought to be continually foremost in a person’s mind, so that he will take advantage of everything that may arise that can be applied to make the issue a success.”

Mr. Brougham further testified that, after October 25, 1900, Mr. Murphy, Mr. Paul and himself had a conversation in witness ’ office about the matter of the letter of October 25th, and witness said to Mr. Murphy that Paul had suggested to him that he would rather take the matter on the basis of a share of the profits, instead of on a commission basis, and asked Mr. Murphy what he thought about it, and Mr. Murphy said, “I don’t want to do that,” and there was no change. Early in May, 1899, the appellee entered upon the work of superintending the preparation of the land in question for the sale of lots in it, and appellee’s letter of October 25, 1900, shows that, at that date, if not earlier, the work of preparation was complete and the property in a condition to market the lots in it, and yet not until June 27, 1901, did appellee ask for or set up any claim for compensation, and that letter is more in the nature of a pleading letter than the assertion of a claim. The only reasonable conclusion from the evidence is, as we think, that there was an express contract between Mr. Murphy and appellee, as claimed by appellant. There having been an express contract, there cannot be a recovery on sn implied one. Walker v. Brown, 28 Ill. 378; Ford v. McVay, 55 ib. 119, 122; Phelps v. Hubbard, 59 ib. 79; Compton v. Payne, 69 ib. 354; Foley, admr., v. Bushway, 71 ib. 380, 391; Siegel v. Borland, 191 Ill. 107, 112; Illingsworth v. Slosson, 19 Ill. App. 612, 614; Ramming v. Caldwell, 43 ib. 175, 178.

The authorities cited are conclusive that where there is an express contract there cannot be an implied one.

In Siegel v. Borland, 191 Ill., p. 112, the court say: “An implied contract cannot exist when there is an express one about the same subject-matter. It is only where the parties do not expressly agree that the law implies a promise.” The same doctrine was announced in Walker v. Brown, the first case cited supra, and has never been departed from in this state.' Such also is the law in other jurisdictions in this country and in England.

What has been said renders it necessary, of itself, to reverse the judgment. But, inasmuch as the case must be remanded, we deem it expedient to consider other questions argued by counsel. The appellee never sold a single lot, but Mr. Murphy sold two of the lots, and as it is admitted that appellee, while in charge of the property, had the exclusive privilege of selling, he, under proper pleadings and proof, would be entitled to recover commissions on the sums for which the lots were sold. One of the lots was sold to Mr. Brougham for $1,700. What price the other was sold for, does not appear from the evidence. If it be conceded that, under the common counts and in view of the evidence of an express contract, the plaintiff would be entitled to recover a commission on the sale of the lot to Mr. Brougham, the recovery could not be for more than five per cent, of $1,700 and interest. But the verdict is for $5,000 and so is the judgment. Counsel for appellee mildly suggest that it is not assigned as error that the damages are excessive, and therefore inquiry as to the amount of damages assessed is excluded. It is assigned as error that appellant’s motion for a new trial was overruled, and one of the grounds for a new trial in the written motion is that the verdict is contrary to the evidence. It is clear that the jury were misled by the erroneous theory on which the cause was tried for appellee. Appellee’s attorneys introduced evidence tending to prove services of appellee in resubdividing the land into lots, blocks, streets, etc., and improving the same and the value of said services, and asked and' the court gave instructions on the theory that there might be a recovery on such evidence, regardless of whether appellee had or not sold any lots.

It is not merely a case of excessive damages assessed in respect to a matter which the jury might lawfully consider. Here the jury have assessed damages with reference to a matter which, in assessing damages, they could not lawfully consider.

Counsel for appellee contend that appellee was wrongfully discharged by Mr. Murphy, and therefore he is entitled to compensation for the services which he performed prior to his discharge, in assisting in the preparation of the land for market. Appellee.testified that he, Mr. Murphy and Mr. Brougham met in Mr. Brougham’s office a few days before June 27, 1901; that Mr. Brougham did most of the talking, and abruptly notified him that he didn’t care to have him in charge of the Evanston property any longer, and that he asked Mr. Brougham if that conclusion was final, and he said it was; that they would prefer to dispense with his services, and that after that date he performed no services; that his services extended from the first Saturday in May, 1899, till June, 1901.

Mr. Brougham testified that June 21, 1901, he, Paul and Mr. Murphy met at his office, and he said to Paul, “Mr. Paul, I wanted you to confront Mr. Murphy about what I am going to talk with you about. I have ascertained that you have deceived Mr. Murphy in the matter, that instead of the Kidder heirs purchasing or taking the equity in the Wisconsin building, that is not true, and that actually it was taken by a person who represented you solely, and we feel that you have deceived us, and when that came to me through a personal friend of yours, who said you solicited him to take the title for you of that Wisconsin building, I made up my mind that it was time Mr. Murphy was made aware of the fact that all he paid to the Kidder estate was $60,000 in cash, and that the Wisconsin building was taken by you. Mr. Paul said, I am astonished; I am completely surprised.’ I said, ‘What justification can you give to us?’ He said, ‘I will tell you. It come to a point where the Kidder estate or heirs would not consider taking the Wisconsin building, and it seemed to me that we were getting the property so cheap, and it was a good thing for you, I would take the property myself.’ Mr. Murphy said, ‘That is very kind of you, Mr. Paul, but you are aware that I would not put any money in Chicago or Evanston property, if by that means I didn’t think I was getting rid of the Wisconsin building, which was an annoyance to me.’ Well, I said, ‘Mr. Paul, we don’t wish you, hereafter, to collect rents in the Wisconsin building for us.’ He said, ‘I have collected part of them only; McKey & Poague have collected a greater portion of the rents.’ I said, ‘We want the building. We do not choose to have you collect the rents for us in the future, ’ and he gave an order for McKey &• Pogue to turn the property over to us. Paul said, ‘I am completely astonished, and I don’t think this is fair treatment. You get the property just in shape so that I would sell it, and then you take it away from me.’ I said, ‘Mr. Paul, that is not right. We will live up to our contract. . Any property there that you sell," Mr. Murphy will pay you what he said he would as commission. You are not discharged. ’ Mr. Murphy repeatedly said that he would be only too glad to pay Mr. Paul a five per cent commission or anybody else that Mr. Paul could get to purchase.”

The Wisconsin building, mentioned in the evidence last referred to, was not in Evanston, but was situated at the corner of Midway plaisance and Ellis avenue in the city of Chicago, and was not at all involved in the services which appellee was employed to perform in respect to the Evanston property.

It appears from Mr. Brougham’s testimony that the sole matter of dispute was appellee’s conduct in respect to the Wisconsin building.

It appears from appellee’s testimony that the Kidder heirs owned the Evanston property, and appellee acted as their agent in selling it to Mr. Murphy.

The foregoing .was all the evidence in respect to the alleged .discharge of appellee, and certainly there is not a preponderance of evidence that he was discharged. He, as plaintiff, is personally interested in the result of the suit, whereas Mr. Brougham is interested solely as administrator.

In Peaslee v. Glass, 61 Ill. 94, the' .court, Mr. Justice Lawrence delivering the opinion, say: “It belongs to the plaintiff to make out a ease. The burden of proof is upon him, and where the issue rests upon the sworn affirmation of one party and the sworn denial of the other, both having the same means of information and both unimpeached and testifying to a state of facts equally probable, a conscientious jury can only say that the plaintiff has failed to establish his claim. ’ ’ But, if appellee was discharged, the question arises whether he can recover, as counsel claim, for his services in superintending the putting the property in shape for the sale of lots in it. In all suits for wrongful discharge which have come within our observation, or of which we have knowledge, there have been contracts fixing definitely the time of employment, and the measure of damages in such cases is, what the employe would have earned, by the terms of the contract, had he not been discharged, less what he earned, if anything, between the date of his discharge and the date of the termination of the contract. Manifestly this is not such a ease. Here the appellee seeks to recover on a quantum meruit, or what his services performed prior to his alleged discharge were reasonably worth. It must appear, to warrant such recovery, that therq was a breach of the contract by the appellant. But the contract which, as we have shown, was proved and not denied, fixed no time for the performance by appellee of the services which he was employed to perform. There is nothing in the contract binding appellee to continue for any time in the performance of the services which he'engaged to perform, or binding on Mr. Murphy, deceased, to retain him in his employ. How, then, could his discharge be a breach of the contract?

Appellant’s counsel contend that the contract, being indefinite as to time of employment, was determinable at will, citing the following cases: Davis et al. v. Fidelity Fire Ins. Co., 208 Ill. 375; Coffin v. Landis, 46 Penn. St. 426, and Gilbert v Judson, 85 Cal. 105. In Davis v. Fidelity Fire Ins. Co., supra, the employment by the Insurance company of Davis & Shepherd as its agents in Chicago was by letter, and the letter fixed no time for the duration of their employment. Davis & Shepherd contended that they were employed for five years; but the court held not, saying: “We have no doubt the parties fully expected that the western agency of the insurance company and the business relation established between them would continue for some time,—perhaps for a period of years. Still, the time the western agency and the business relation between the parties were to continue was left indefinite by the agreement, and the insurance company was not bound to continue its western agency,. and neither party, by the terms of the agreement, could require the other to continue the relation thereby established between them longer than such relation was agreeable to both.” The court cites, among other eases, Orr v. Ward, 73 Ill. 318, which is directly in point in the present case. See, also, Fidelity Ins. Co. v. Ill. T. & S. Bank, 110 Ill. App. 92, and cases cited. This is the case affirmed in Davis v. Fidelity Ins. Co. supra.

In Coffin v. Landis, supra, Landis contracted with Coffin for the sale by Coffin of certain lands of Landis, on which he was about to found a colony, Coffin to have one-half of the clear profit on sales to customers. No time of Coffin’s employment was fixed by the contract. The trial judge submitted the case to the jury ‘ ‘ on the evidence as a hiring for a year,' ’ ’ but reserved the question whether, under the contract between the parties, it was the right of the defendant, at his will, to terminate the arrangement into which they had entered and to discharge the plaintiff. ’ ’ The Supreme Court answered the question affirmatively, saying, among other things: “Considering then the nature of this agreement, its subject-matter and its expressed stipulations, we cannot hold that it binds the defendant to employ the plaintiff, or obliges the plaintiff to remain in the agency any longer than during the will of the parties, without interpolating what they have left out, and without danger of defeating their intentions when the contract was ma'de.” The jury in the trial court found for the plaintiff and assessed his damages; but that court subsequently held, on the question reserved, “that the contract was terminable by either party, without notice and without cause,” and the Supreme Court affirmed the judgment. "We are of opinion that' the contract in question was determinable by either of the parties, at will and without notice.

In Gilbert v. Judson, 85 Cal. 105, there was a contract between the parties, by which Gilbert was to sell at a commission of ten per cent, certain lots owned by Judson, the compensation to be paid to Gilbert to be in full for all services which he might render in assisting and advising in the surveying and laying out of the lands for market. The court held that Gilbert’s compensation depended on the sale of lots by him, and that as he sold no lots, he was not entitled to recover the reasonable value of his services rendered in connection with the laying out of the lots.

Instructions 4%, 5 and 6, given at appellee’s request, are and each of them is erroneous. Instruction 4y2 informed the jury that appellant could not terminate the plaintiff’s agency “except for a good and sufficient cause, and without first giving the plaintiff notice that such agency would be terminated within a reasonable time.” Instruction 5 is to the effect that if the defendant terminated plaintiff’s employment without just cause, plaintiff was entitled to recover for all services performed by him to the time of the termination of his contract. Instruction 6 informed the jury that- when no.time is fixed within which services are to be completed, neither party to the contract can terminate it without giving to the other a reasonable time in which to fulfill his part of the contract.

The modification by the court of appellant’s fourth instruction, and the giving it as modified, was error. The modification informed the jury that if the plaintiff was discharged without just cause, he might recover for such services as the evidence" showed he had rendered.

Appellant’s fifth instruction, which the court refused to give, is as follows:

“If the jury believe from the evidence in this case that no time was specified for the duration of the contract between the plaintiff and the defendant, testified to in this ease, then the court instructs you, as a matter of law, that the defendant had the right to discharge the plaintiff, with or without cause, at any time, without liability therefor.”

"We think this instruction obnoxious to criticism for two reasons. It apparently assumes that the contract claimed by appellant to have been made was made, which was a question for the jury, and the last part of it, namely, “without liability to the plaintiff therefor,” might lead the jury to believe that there could be no recovery at all, ■ although under the common counts the plaintiff would, as we think, be entitled to recover commissions, as provided by the contract, on $1,700, the price of the lot sold by Mr. Murphy to Mr. Brougham. We cannot say it was error to refuse the instruction. We think appellant’s seventh instruction, refused, states the law, and that it was error to refuse it. The instruction is as follows:

“The court instructs the jury that if they believe from the evidence that the plaintiff, Paul, made an express contract, he must recover on the express contract as proved, and he cannot recover anything on any implied understanding or for any. service not according to the express contract as proved by the evidence, and that an express contract excludes an implied contract. ’ ’

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Railroad Supply Company v. Adolph Klofski.
    Gen. No. 13,603.
    1. Fellow-servants—when doctrine of, does not apply,. The fellow-servant doctrine has no application where the charges of negligence are with respect to the non-delegable duties of the master.
    2. Pleading—when declaration sufficiently charges that the incompetency of the defendant's servants caused the plaintiff’s injury. Held, that the declaration set forth in this opinion sufficiently charged that the incompeteney of the defendant’s servants caused the plaintiff’s injury.
    3. Pleading'—when declaration sufficiently charges that the failure of the defendant to furnish a safe place to work was the cause of the plaintiff’s injury. Held, that the declaration set forth in this opinion sufficiently charged that the'failure of the master to furnish a safe place to work was the cause of the plaintiff’s injuries.
    4. Master and servant—duty of former to latter. It is the duty of the master to exercise reasonable care to provide for his servants a reasonably safe place in which to work, and this duty is a com tinuing one.

      5. Master and servant—duty of former to latter. It is the duty of the master to exercise reasonable care to employ competent servants, and such as are fit for the work they are intended to be employed in, and to discharge an incompetent or negligent servant, if he learns or has reason to believe that he is incompetent or negligent.
    6. Verdict—how may not he impeached. A verdict of a jury may not be impeached by the affidavits of the individual jurors who •rendered the same, nor by the affidavits of others setting forth the hearsay statements of any of such jurors.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Georqe A. Duptjy, Judge, presiding.
    Heard in- this court at the March term, 1907.
    Affirmed.
    Opinion filed January 27, 1908.
    Statement by tlie Court. The appellee was plaintiff and the appellant defendant in the trial court. The declaration contains two counts, in which it is averred in substance as follows:
    First count. Defendant, July 14,1902, was engaged in the foundry business, in the manufacture of various iron and metal articles, and had for said purpose certain ladles, vessels or pots, with appliances attached thereto, filled with metal in a molten state, slag and other substances, in a dangerously high temperature and condition. Plaintiff was employed by the defendant to work in said business as a moulder, and he and the servants of defendant were, on the day and year aforesaid, directed to take certain molten metal from a certain vessel, to be used by plaintiff and said servants in moulding brake-shoes or other articles manufactured in defendant’s business. It was then and there defendant’s duty to use reasonable care to provide for plaintiff and its servants a reasonably safe place to work in, and to keep the floor and place around and about said vessel, filled with metal, in a dangerously high temperature, in a dry, even, and safe condition, clear of obstacles, so that plaintiff and the servants of defendant could work there in safety. Defendant negligently kept and maintained the floor, or place around and about said vessel, uneven, with holes, wet, and obstructed with various iron articles, so as to endanger the safety of those there employed, and negligently permitted the same so to remain, etc., all of which was known to defendant, but unknown to plaintiff. And by reason of said negligence of defendant, and while plaintiff was engaged in the exercise of due care about defendant’s business, a certain servant of the defendant tripped, slipped and fell to the ground, while carrying molten metal in a ladle, operated by means of a handle from four to seven feet long, and, by means of the premises, caused the metal in said ladle to spill to the ground and explode, and said metal was thrown against the head of the plaintiff and injured him, etc.
    Second count. This count avers the business of the defendant, substantially as does the first, and avers that it was defendant’s duty to employ competent, sober and careful servants, who would use due cafe and caution while handling and operating ladles filled with molten metal, for the safety of those engaged in defendant’s business. It is then averred that defendant negligently employed an incompetent, careless and reckless servant, and permitted said servant to work, operate and manage ladles filled with molten metal, of which incompetency of said servant defendant knew, or by the exercise of reasonable diligence might have known; but which was unknown to plaintiff. By means whereof, and while plaintiff was in the exercise of due care, and engaged in the said business, the defendant, by its said servant, so negligently operated said ladle, filled as aforesaid, that it caused the metal in said ladle to spill, flow to and explode on the ground, and said metal was thrown with great force to and upon plaintiff and injured him, etc. The defendant pleaded the general issue. The jury found for the plaintiff and assessed his damages at the sum of $2,541. The defendant moved for a new trial and in arrest of judgment, which motions the court overruled and rendered judgment on the verdict.

      The defendant’s foundry was a brick building about 300 feet long from south to north and about 100 feet wide from east to west. In it there were two furnaces, each about thirty feet long and six feet wide, situated about the center of the length of the building and next to the east wall. The north furnace was No. 1 and the south one No. 2, and there was between them a space of about twenty-five feet. In the east wall, opposite the space between the furnaces, there was a door to the switch yard. The fire boxes of the furnaces were fed with coal from the space between them, and the furnaces were fed with pig iron, scrap iron, steel, spruce and broken or worthless castings. There were railroad tracks outside the building along its sides, on which iron and other material for use in the foundry were brought to the building, and on the east side the iron and other material were wheeled in wheelbarrows and trucks through the east door and into the space between the furnaces and there piled. About forty tons of pig and other iron were put into the furnaces each day. There were four heats, two at each furnace, daily, and there were eight or nine tons to a heat. There were boxes of coal at the sides of the furnaces, and the passage between the boxes was about twelve feet wide. Each of the furnaces had two spouts, one on the inside, where the passage-way was, and one on the outside from the passage-way, from which spouts the iron, when molten, was received in ladles and carried to the moulds. There were about 100 men working in the foundry at the time of the accident, fifty-five or sixty of whom were moulders and the remainder common laborers. There were two classes of moulders, floor moulders and bench moulders. The greater number of the floor moulders worked on the south side of the foundry, south of the furnaces, and used large ladles called bull ladles, in which to catch the molten iron as it came from the spouts of the furnaces. Their ladles, when filled, were carried away by some of the • common laborers. The bench moulders used hand ladles, which weighed between twenty-five and thirty pounds each, and had handles about five feet long, and held from fifty to sixty pounds of molten iron, so that a ladle, when full, weighed from seventy-five to ninety pounds. The bench moulders, themselves, carried their ladles, when filled, to their places of work. Klofski, the plaintiff, was a bench moulder, his bench being situated north of the furnaces. On the day of the accident, between eleven and twelve o’clock in the forenoon, when the usual signal to take molten iron from the furnaces was given, the plaintiff and others went to the north spout of the north or No. 1 furnace, to get the iron from it, but found the spout clogged, or, as the witnesses say, frozen up, when Joseph Wolf, the foreman, ordered them to go between the furnaces and take the iron from the south side of No. 1 "furnace. The men obeyed the order and formed in two lines, the lines being in a Y shape, the angle of the Y being next to the spout. When these lines were thus formed, the man nearest the spout held his ladle under it to receive the molten iron, and when his ladle was full, if he was in the right line, he turned to the left, carrying his ladle to his bench, and if in the left line, he turned to the right and carried away his ladle, when the next man, in the opposite line, filled his ladle and did likewise, and so alternately. The plaintiff was in one of the lines, about fifteen feet from the spout, waiting for his chance to fill his ladle, when a bench moulder, called Scotty, turned from the spout, with a full ladle, to go west in the passageway between the furnaces and between the two lines of men, when he fell and spilled the iron in his ladle on the ground, and it exploded, burning and injuring the plaintiff. The plaintiff was about thirty-three years old at the time of the accident, July 14, 1902, and had then been in defendant’s employ from the middle of March, 1902, or about four months.
    F. J. Canty, J. C. M. Clow and E. E. Gray, for appellant; H. E. Long, of counsel.

      F. W. Jaros, for appellee; Francis J. Woolley, of counsel.
   Mr. Justice Adams

delivered the opinion of the court.

Counsel for the defendant contend (1) that neither count of the declaration states a cause of action; (2) that a certain servant of the defendant, who threw down a poker in -the place where plaintiff and other servants were working, Scotty, the servant, who is claimed by the plaintiff to have been incompetent, and certain laborers in defendant’s employ were all fellow-servants of the plaintiff, and therefore there can be no recovery; (3) that the court erred in giving certain instructions for the plaintiff, and in refusing certain instructions asked by the defendant; and (4) that the court erred in overruling defendant’s motion for a new trial.

The objection urged to the first count is, that it is not alleged in the count that the failure of the defendant to furnish a safe place to work was the cause of plaintiff’s injuries, and that it is not averred in the second count that the servant who tripped and fell was not a fellow-servant of the plaintiff. Neither of these objections can be sustained.

In the first count, after averring negligence of the defendant in permitting the floor or place where the employes were working to be and remain with holes in it, wet, and obstructed, it is averred, “and by reason of the careless and negligent misconduct of the defendant aforesaid, while the plaintiff was in the exercise of due care and diligence for his own safety, and was engaged in and about the business of said defendant aforesaid, a certain servant of the defendant then and there tripped, slipped and fell, etc.”

It is clearly averred in the count that it was by reason of the defendant’s negligence in failing to exercise reasonable care to provide and maintain a. reasonably safe place for its servants to work in, that one of its servants slipped and fell, causing the molten metal which he was carrying in a ladle to fall to the ground, explode and he thrown against plaintiff.

The fellow-servant doctrine has no application to the present case, in which the charges are violations by the defendant of duties which it could not delegate to another. Deering v. Barzak, 227 Ill. 71.

The plaintiff’s counsel cites cases to the effect that if there is any defect in the count, it is cured by the verdict, to which we think it is unnecessary to refer. The first count, as originally filed, contained the words “not a fellow-servant of the defendant,” which words were stricken out by amendment, but defendant’s counsel have abstracted the count as originally filed.

The objection urged to the second count is, that it is not averred in it that the incompetency of the servant caused the plaintiff’s injuries. A mere.reading of the count is sufficient to show this objection untenable. Next after the averment that the defendant negligently employed an incompetent servant and permitted him to work, is this language: “By means whereof, while the plaintiff was engaged as aforesaid, and exercised due care and diligence for his safety, the defendant then and there, by its said servant or servants, so wrongfully, carelessly and negligently operated said ladle, filled with metal, in a dangerously high and heated temperature as aforesaid, that it caused said metal or substance, in said ladle, to spill, flow and explode to and upon the ground, whereby said metal and substance was then and there thrown with great force and violence to and against the head, etc., * * * of the plaintiff.” The count plainly avers that the defendant, by its incompetent servant, negligently and carelessly operated the ladle, which can only mean that the incompetent servant actually and negligently operated it with the result stated in the count.

For convenience we will consider separately the evidence bearing on.each count of the declaration, commencing with the first count.

Kroll, who was in one of the lines of men, waiting to fill his ladle, when the accident happened, testified: “There were piles of pokers, pig iron not used, slag not hanled out and brick lying in the passageway between the furnaces. The place where Scotty slipped and fell was uneven. The irons and pokers used for slag work laying there. Those pokers and iron were long iron rods used to poke the inside of the furnace; some of them were twenty feet long and some longer. I saw Scotty fall. He made a step and fell on the irons, and his ladle fell from his hands. There was a hole there cut by the wheelbarrows. It was as big and deep as my hat, measuring about five inches. The nearest poker lay right at the hole. I can’t tell whether the irons or the hole was the cause of his fall.” Witness further testified that the ground was wet, and that when melted iron is poured onto wet ground or wet iron, it explodes, and that the iron exploded and some of it went onto plaintiff; also, that the hole which he had described was there when he went to work in the foundry, six months before the accident. On cross-examination witness testified: “As you leave the furnace you can’t see very well. You are liable to step over most anything. I saw him fall at that place where this hole was. I saw his toe up against the poker and Í saw the poker lifted up by his foot from the ground. The poker was right alongside of this hole. I noticed that he stepped into this hole and then fell. He fell because the things were in the way there. He fell over the hole there.”

John Schultz, a moulder in defendant’s employ, testified as to the condition of the space between the furnaces, that there were holes in it as deep as his anide, which had been there as long as he had worked there, which was over a year; that the holes were made by throwing down iron and brick, and wheeling in wheelbarrows. This witness did not see the accident.

Albert Vatek, a moulder, testified that there was a hole between the two furnaces where the men were catching iron, and that Scotty stepped into it.

John Novak, a moulder, testified that there was a hole in the passageway, and sprue, which is the breakage of castings, broken pieces of iron, and three bars or rods on one side and six on the other side, and that they lay on each other crosswise. On cross-examination he testified: “The hole and the pokers and hooks were only about three, four or five feet from the spout. He would take about three feet at a step, and 'it only took two or three steps from the spout before he stepped into the hole.” On cross-examination, this witness testified that there were piles of sprue and iron lying in and scattered all over the passageway, and also bricks and coal; that the space between the furnaces was filled clear across with bricks, iron and other stuff, and that, when the men carried iron from the spout, they had to climb over it, and that the condition had been the same during the nine months witness had worked there.

The pokers are described by Mr. McElroy as one and one-quarter iron rods, twelve or fourteen feet long, and he says they were usually laid on the ground, except when being used.

The evidence for the plaintiff shows that when one is taking molten iron from the spout, the effect on his eyes is temporarily to limit their capacity for distinguishing things; also, that the bench moulders, who carry their own ladles, when filled, have to run or move very rapidly away from the furnace to their moulds, because, if they do not, the iron may cool and become unfit for moulding. This is not contradicted, but is corroborated by Mr. Mair, the labor foreman, who testified: “The hand ladles will cool more rapidly than the bull ladles, and the men carrying hand ladles would have to be more expeditious and rapid, to keep it from chilling, than those carrying the bull ladles.”

The evidence for the plaintiff is, that before the day of the accident the bench moulders did not take molten iron from the spouts inside the passageway. John Schultz testified that he had worked there more than a year, and that, before the time of the accident, the single ladles were filled from the outside and the bull ladles from the inside, between the furnaces. Kroll testified that the bench moulders always took the iron from the outside, when the spout was nót frozen, and that the men with the bull ladles took iron from the inside, and that both spouts were always running when there was a heat, except on the day of the accident. Vatek, a bench moulder, testified on cross-examination that he never drew iron between the furnaces till the time of the accident. John Novak testified that during the nine months he worked there he never took iron from the inside of the furnaces, but always from the outside. The plaintiff testified: “Before the day of the accident we always got iron from the outside of the furnace. The bull ladles took their iron from the inside. Before the day of the accident I did not go between the furnaces.” The uncontradicted evidence is, that the foreman, on the day in question, ordered the bench moulders, including the plaintiff, to take the iron from a spout in the passageway between the furnaces.

The defendant called three witnesses—James McBlroy, the defendant’s timekeeper, Charles Hair, defendant’s labor foreman, and Joseph Wolf, defendant’s general foreman. MeElroy’s duties, according to his evidence, were to keep the time of the men, and to examine the castings, which he did in the discount room, separate from the foundry and about 150 feet distant from the furnaces. The following question was asked him and answer given:

“Q. You did not have any duties to perform between these furnaces, did you? Á. Well, sometimes I would have to go down there with castings' that were coming-in bad, and show them to the foreman, or to the superintendent, to stop them. Generally the superintendent was situated between the furnaces.”

This witness testified that, from November, 1901, till July, 1902, when the accident happened, he saw no holes in the floor between the furnaces, that there were none there; that there were piles of sprue or castings alongside the furnaces, but not in the passage where the men walked; that he never saw any obstructions. there of iron or anything else, or any hole in the floor. On cross-examination he testified: I did not concern myself as to whether there were holes in the floor between the furnaces or not.”

Charles Mair, the labor foreman, testified that sometimes the spouts of the furnaces did not work well, and then the men worked indiscriminately either on the inside or outside of the furnaces. Also, that he never saw any holes in the floor between the furnaces, or anything there except necessary coal which was kept in a box, and that there was no sprue in the way of the men; that there might possibly be some stuff there, but he did not know whether there was or not.

Joseph B. Wolff testified that the floor between the furnaces was not cluttered up with heaps of iron, brick, coal, or anything else, and that there was no hole in the floor, or any material except a poker about twelve feet long. This witness also testified that before the day of the accident plaintiff worked between the furnaces; that he had seen him there many times. On recross, he testified: “I know that Klofski must have been between the two furnaces, because I know his duties took him there. ’ ’ In this conflict of the evidence it was clearly for the jury to decide whether the place between the furnaces was or not a reasonably safe place in which to do the work which plaintiff was engaged in doing, and if not, whether the defendant knew the place was unsafe and obstructed, as testified by plaintiff and other witnesses, or by exercising ordinary care would have so known, and whether plaintiff, before going to work there, at the time of the accident, knew, or by the exercise of ordinary care would have known, the condition of the place.

It is well settled that it is the duty of the master to exercise reasonable care to provide for his servants a reasonably safe place in which to work, and this is a continuing duty. Am. & Eng. Ency., 2nd ed., p. 88; C. & E. Ill. R’d Co. v. Kneirim, 152 Ill. 458; C. & A. R. R. Co. v. Eaton, 194 Ill. 441; Deering v. Barzak, 227 Ill. 71.

In the last ease the court say: “The duty of the master to use reasonable diligence to furnish the servant with a reasonably safe place in which to work is one of those primary and continuing obligations cast upon the master by the law which cannot be delegated to another.” The case is similar to the present. In that case the plaintiff, while carrying a ladle filled with molten metal, fell by reason of an obstruction which it was claimed was placed in the gangway by a fellow-servant of the plaintiff. The court say: “If the gangway through which appellee would have to pass on his return was obstructed and unsafe, which was known, or by the exercise of reasonable diligence would have been known to the foreman, in time to have removed the obstruction before the accident, and appellee was ignorant of the unsafe condition and free from the imputation of contributory negligence, appellants are not absolved from their duty to use reasonable diligence to restore the gangway to a reasonably safe condition because it had become unsafe through the agency of a fellow-servant of appellee.” Citing numerous authorities.

The evidence for the plaintiff in this case is amply sufficient to sustain a finding that the passageway between the furnaces was obstructed and unsafe, and that the defendant knew this, or by the exercise of reasonable care would have known it in time to make it reasonably safe, and that the plaintiff did not know of the condition of the passage, and had not equal opportunity with the defendant to know of it.

We will next consider the evidence bearing on the alleged incompetency of Scotty, the servant who fell, spilling the molten iron which he was carrying on the ground. The averment of the declaration is that the defendant negligently employed an incompetent and careless servant and permitted him to work, etc. It is the duty of the master to exercise reasonable care to employ competent servants and such as are fit for the work they are intended to be employed in, and to discharge an incompetent or negligent servant if he learns or has reason to believe he is incompetent or negligent. Wabash Ry. Co. v. McDaniels, 107 U. S. 454; Bailey on Master’s Liability for Injuries to Servant, p. 47; Labat on Master & Servant, sections 177, 185. This author says: “Incompetency is inferable where a servant is addicted to vicious habits, which diminish his physical and mental efficiency and render him less trustworthy; the most common kind of incompetency under this head being that caused by intemperance in the use of intoxicating liquors.” Ib,, sec. 185. The author also says the duty is a continuing one. Ib., sec. 8.

Kroll testified that on the day of the accident Scotty was drunk; that he could tell this by the way he carried himself; that he had seen him drunk in the foundry on other days before the accident; that four or five times he was so drunk that he had to quit work. Schultz testified that in the morning of the day of the accident he saw Scotty in a saloon drinking whiskey, and that he was drunk at the time of the accident; that he had known him a long time, both at Deering’s and defendant’s place, and that he was drunk almost every day; that witness worked on Scotty’s bench one time and found half a dozen whiskey bottles there; also, that he was staggering from side to side when he got his iron, at the time of the accident.

Vatek testified that Scotty was his partner, and that when he came to work the morning of the day of the accident he was drunk; that he had whiskey with him in a beer bottle, and drank it, and that he was drunk fl.11 the time he worked in the defendant’s place, whenever he had money; that witness saw him when he started to catch iron at the time of the accident, and he staggered from side to side.

Novak testified substantially as did Vatek.

The witnesses for defendant testified in substance as follows: McElroy testified that he never saw Scotty drunk in the foundry, and that he was not drunk and did not stagger the day of the accident. Hair, the labor foreman, testified that he knew there was a man there by the name of Scotty, but he was not acquainted with him; that he was not under him, and that he-never saw him drunk in the foundry. On cross-examination he testified that he had seen Scotty drunk occasionally, and that he saw him lying drunk on one of' the tracks alongside the foundry; that he did not remember ever having seen him put out of the shop in an intoxicated condition; that he may have seen him in that condition, but did not remember it. Wolf, the-general foreman, testified that he had seen Scotty drunk around the foundry; but to witness’ knowledge, he had. never seen him drunk at work in the foundry.

The testimony of plaintiff’s witnesses, who were-Scotty’s fellow-workmen, one of whom had known him for twelve and another for fourteen years, and all of' whom worked at the foundry while he did, is, in substance, that he was an habitual drunkard. Whether Scotty was incompetent was clearly a question for the jury, as between these witnesses and defendant’s, witnesses. If Scotty’s habit was as testified by the plaintiff’s witnesses, the defendant must either have-known this, or by exercising reasonable diligence would, have known it. Western Stone Co. v. Whalen, 151 Ill. 472; C. & A. R. R. Co. v. Sullivan, 63 ib. 293; Ill. Cen. R. R. Co. v. Smiesni, 104 Ill. App. 194; Staunton Coal Co. v. Bub, 119 ib. 278.

Other authorities will be found in the cases cited. Klofski testified that Scotty worked at a bench about' ninety feet from the bench at which he worked; that he first saw him about a week before the accident, and that he did not know him or anything about his habits. Wolf testified that plaintiff worked on the north side and Scotty on the south side of the furnaces, and that these places of work were about 100 feet apart, and that he could not tell whether or nót they, when at work, could see each other; that there were four heats each day, and the men worked together at heats. It is to be noted, however, that the moulders worked by the piece, and each one was anxious to take his iron from the furnaces as soon as possible, and consequently was looking* out for himself. The evidence shows that the defendant had a superintendent, one McGill, who, McElroy testified, was generally between the furnaces, a general foreman and a labor foreman, and it was a question for the jury whether plaintiff knew of Scott’s habit of intoxication, or whether he had ,or not as good an opportunity "as the defendant to know of it.

We find no reversible error in the giving of plaintiff’s or the refusal of defendant’s instructions. The court gave twenty-six instructions for the defendant, some of which were much more favorable to the defendant than it was entitled to, and which should not have been given. In support of its motion for a new trial, the defendant filed two affidavits setting forth that three of the jurors had stated, two to one of the affiants, and one to the other affiant, that the jury arrived at their verdict in respect to the damages by each juror writing down the sum he thought the plaintiff was entitled to, then adding the several sums together and dividing the total by twelve. Had the affidavits been 'made by the jurors themselves, they would not have been admissible to Impeach their verdict, and much less is mere hearsay evidence of the unsworn statements of jurors admissible for such purpose. Phillips v. Town of Scales Mound, 195 Ill. 353, 364, and cases there cited.

The motion for a new trial'was properly overruled, and the judgment will be affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    Patrick H. Heffron v. Concordia Fire Insurance Company.
    Gen. No. 13,586.
    1. Statute of Limitations—when amended declaration sets up new cause of action. An amended declaration sets up a new cause of action where it pleads specially a policy of insurance, the original declaration consisting merely of the consolidated common counts.
    2. Supreme Court—effect of decisions of, with respect to Appellate Courts. The Appellate Courts are conclusively hound hy the decisions of the Supreme Court of the state.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed January 27, 1908.
    J. M. H. Burgett, for appellant.
    Bates, Harding & Atkins, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of nil capiat and for costs rendered against the appellant, who was plaintiff below. The suit was originally brought in °the Circuit Court on April 4, 1894, by the appellant against the appellee. May 10, 1894, a declaration on an account stated was filed. November 15, 1898, a judgment for $5121.67 was rendered by the Circuit Court in favor of the plaintiff. This court reversed the judgment on the ground that no recovery could be had on the insurance contract in question on the declaration filed, and that a special count was necessary. Concordia Co. v. Heffron, 84 Ill. App. 610.

January 8,1900, the mandate of the Appellate Court remanding the cause was filed in the Circuit Court, and the next day the cause was there redocketed.

It was dismissed on April 23, 1900, for want of pro-sedition, but reinstated on the ground that the dismissal was in 'effect the result solely of mistake or misprision of the clerk. We do not think it necessary to discuss the propriety of this reinstatement or the power of the court to make it. The bill of exceptions in relation to it does not show a seal of the judge, nor is there any cross-assignment of error on the part of the appellee raising the question. The intendments are in favor of the power of the court, in the absence of error assigned and shown.

April 7, 1904, an amended declaration was filed in said cause, containing three special counts on a policy of insurance for certain whiskey destroyed by fire on April 7,, 1893, which belonged to the plaintiff and was insured by the defendant, and a count on “an account stated” in the common form.

October 3, 1906, amended pleas were filed by the defendant to this amended declaration. The first was the general issue; the second was to the first three counts of the declaration, and set up the Statute of Limitations of five years; the third was to the same counts, and was of a limitation of twelve months contained in the policy sued on; the fourth to the same counts was of the Statute of Limitations of ten years.

To the first plea the plaintiff filed a similiter, and to the other three general demurrers.

On the demurrers being overruled on October 10, 1906, the plaintiff elected to stand by them, and dismissed the fourth count of his declaration. The judgment appealed from followed.

It is manifest in this record that if either of the three special pleas was good, the judgment should be •affirmed. Therefore it is necessary only for us to decide if the demurrer to the fourth plea was properly overruled. This certainly does not admit of serious question in this court.

The same history which we have detailed as that of this case to the present time, was practically the history of a companion suit brought in the Circuit Court by Heffron for the same loss against the Rochester German Insurance Company on another policy on the property destroyed. In that case, as in this, suit was brought on April 4, 1894, and on May 11, 1894, a declaration on “an account stated” was filed. March 4, 1899, a judgment was entered for the plaintiff by the Circuit Court for $3212.85. The defendant appealed, and the appeal was heard by the Branch Appellate Court, where the judgment was reversed on the same grounds which caused the reversal by this court of the judgment against the Concordia Company. Rochester German Insurance Company v. Heffron, 89 Ill. App. 659. Thereupon the cause was redocketed in the Circuit Court, and on March 10, 1904, an amended declaration was filed therein, containing special counts on the policy of insurance. A plea of non-assumpsit and pleas of a limitation of twelve months stipulated in the policy itself, and of the Statute of Limitation of ten years were pleaded by the defendant. To these special pleas general replications traversing them were filed by the plaintiff. On the trial the court instructed the jury to find for the. defendant on the ground that the cause of action set up by the amended declaration was different from the caus.e of action set up in said original declaration, and was barred under the terms of the policy sued on by the fact that more than one year elapsed after the loss by fire for which plaintiff sought to recover, before said amended declaration was filed, and was barred under the Statute of Limitations by the fact that more than ten years elapsed 'after such loss before said amended declaration was filed.

The plaintiff’s counsel presented to the Circuit Court at the trial an affidavit and the bill of exceptions filed when the case had been before tried, for the purpose of showing that the cause of action for which the plaintiff was seeking to recover under his amended declaration was the same as that for which plaintiff originally intended to bring the suit; but the court refused to consider such affidavit or bill of exceptions on the ground that 'the cause of action for which plaintiff originally intended the suit to be brought must be ascertained from the original declaration filed therein.

It will be seen that at this point in that case there was presented precisely the question which is presented in the case at bar, namely: Considering the amended declaration and the original declaration by themselves, was the plea of the Statute of Limitations good to the former? The plaintiff certainly is in no better position in the present case, where he has raised the question by demurrer to the plea of the statute, than he was in the Rochester Company case, where he raised it by replication.

Either method is allowable doubtless, but the essential matter is that the question raised in each proceeding was whether, comparing' the original declaration with the amended declaration, the court was right in saying that the amended declaration stated a new cause of action.

The plaintiff appealed from the judgment of the Circuit Court in the case of Heffron versus the Rochester German Insurance Company, and this court affirmed the judgment, saying: “The questions presented are questions of law, namely—first, whether the action is barred by the provision in the contract limiting the time for bringing suit to twelve months after the fire; and, second, whether the suit is barred by the Statute of Limitations. The solution of both these questions depends on the question whether the amended declaration states a new cause of action.”

On the authority of Fish v. Farwell, 160 Ill. 236, and other cases decided by the Supreme Court, we held that the suit was barred by the limitation in the contract and by the Statute of Limitations. Heffron v. Rochester German Insurance Co., 119 Ill. App. 566.

- We also said in that case: “The court refused to consider the affidavit or the bill of exceptions, and this is assigned for error. The ruling was proper. '"A court cannot go outside of the declaration to ascertain the cause of action' Fish v. Farwell, supra.

From this court the plaintiff took an appeal to the Supreme Court, where our judgment was affirmed, the court saying:

“First: Upon the face of the pleadings and without reference to extrinsic facts, it is manifest that the counts of the amended declaration, which plead specially the contract of insurance, set up a different cause of action from the count upon an account stated in the original declaration.
“Second: * * We hold that the correct construction of the statute in question is that the identity of the canses of action is to be determined by the court as a question of law by the inspection and consideration of the original and amended declarations.
“It follows that the Circuit Court did not err in refusing to consider the affidavit or hill of exceptions, or in instructing the jury to find for the defendant, and that the Appellate Court did not err in affirming the judgment of the Circuit Court.” Heffron v. Rochester Ins. Co., 220 Ill. 514.

In view of this decision and opinion of the Supreme Court in the Rochester Company case, the following language of the opinion of Mr. Justice Adams, speaking for our court, in the same case, has even increased applicability to the present appeal:

“Assuming that the learned counsel well knows that we are bound by the decisions of the Supreme Court, Ms argument must he- intended ultimately for that court and made on the hypothesis that this court in such cases as the present is a necessary half-way station on the route from the trial court to the Supreme Court.”

Counsel indeed places his case, in his reply brief, on the erroneousness of the decision of Heffron v. Rochester Ins. Co. (supra), by the Supreme Court, and admits that that case does hold adversely to Ms contention. But he says the holding is not the law, and that the decisions of the court are only. evidence of the law,” and in that case “not strong evidence of the law.”

The decisions of the Supreme Court of Illinois are not only strong but conclusive evidence of the law to us.

The judgment of the Circuit Court is affirmed.

Affirmed.