text:
    Agnes Jacobson, Defendant in Error, v. George J. Cooke Company, Plaintiff in Error.
    Gen. No. 15,247.

      Assumpsit—when lies for money received for the use of another. If a party receives money from another for the use of property belonging to a third person, such third person may recover in assumpsit the amount in question.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed on remittitur.
    Opinion filed July 14, 1910.
    Alden, -Latham & Young, for plaintiff in error.
    G-entzel & Crane, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

In an action in the Municipal Court for money had and received by defendant for the use of the plaintiff, plaintiff had judgment for $151.80, to reverse which the defendant prosecutes this writ of error. Plaintiff kept a dram-shop at 285 Noble street, Chicago, up to September 5, 1907. She rented the premises from defendant from month to month and bought beer of defendant. The defendant agreed with her that it would take out a city dram-shop license for her for the period from April 1 to November 1, 1907, the fee for which was $500. Plaintiff kept a beer book, in which the driver of defendant charged her with the beer delivered to her and gave her credit for the money paid by her. This book was taken to the office of defendant and there balanced at the end of each month. In the beer book for April, 1907, is a charge of $500 against plaintiff for license. This sum she repaid in payments from time to time so that, giving her credit for $12, the price of three barrels beer delivered to her September 4 and 5, which she testified were returned to defendant, she was not indebted to defendant. No dram-shop license for the period from April to November 1, 1907, was delivered to plaintiff by defendant, but she carried on her dram-shop without question on the part of the City of Chicago until September 5, 1907, when she was ejected from the premises, where it was carried on by the purchaser of the premises at foreclosure sale. Julius Kwasigroch, called by plaintiff, testified that he obtained possession of the premises, 285 Noble street, September 5, 1907, and September 20, desiring to conduct a dram-shop therein, went to the office of defendant. He first saw Ryan, who sat at a desk in the office, and asked Ryan if there was any chance for him to buy the use of the unexpired term of the dram-shop license for 285 Noble street. Ryan'said that he had better see Mr. Cooke and took him into the office of Cooke, the president of defendant. He asked Cooke what he wanted for the use of the license and Cooke said $154, but finally agreed to take $125, and said that the witness should pay the money to Ryan, and he then paid Ryan $125, but no license was turned over to him. The defendant offered no testimony at the trial.

On the evidence in the record the trial court properly held that the payment of $125 to Ryan was a payment to the defendant.

The defendant ought to have taken out a license in the name of the plaintiff and delivered the license to her, for the ordinance provides that the license shall be posted in the dram-shop and provides a penalty for the violation of the provision. It does not appear in whose name the license was taken, but it does appear that defendant assumed to have the right to sell the use of the license for the unexpired term, and received therefor the sum of $125. Plaintiff paid defendant for the license, and whatever money it received for the use of the license was money which the defendant, according to the rules of equity and good conscience, ought to pay to the plaintiff. An action will lie for such money, as money received by the defendant to the plaintiff’s use. 2 Rob. Prac. 449.

Having received from Kwasigroch $125 for the use of the license for the unexpired term, the defendant cannot be heard to say that it should retain the money because the license was not assignable. But the plaintiff can recover in such an action only the sum which the defendant received. The defendant received $125 and the judgment is for $151.80.

If the defendant in error shall within five days remit from the judgment the sum of $26.80, the judgment will be affirmed; otherwise the judgment will be reversed and the cause remanded.

Judgment affirmed on remittitur of $26.80; otherwise reversed and remanded.

Remittitur filed and judgment affirmed July 18, 1910.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    Joseph Dvorak, Defendant in Error, v. Albert Prucha, Plaintiff in Error.
    Gen. No. 15,253.

      Contracts—right of purchaser to return merchandise not satisfactory. If a seller contracts to furnish an article satisfactory to the purchaser, conferring the right upon such purchaser to return the same within a specified time if not satisfactory, the absolute right to return the same within such time exists in the purchaser and he cannot be compelled to retain said article even though the same “would be satisfactory to an ordinarily prudent man.”
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding.
    Heard in this court at the March term, 1909.
    Eeversed and remanded.
    Opinion filed July 14, 1910.
    Charles Vesely and Charles Farson, for plaintiff in error; Lawrence A. Cohen, of counsel.
    Movak & Pollack, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The claim of plaintiff set out in his statement of claim is for $325 for a wagon built for defendant, on which defendant gave plaintiff a wagon valued at $50, and $12.75 for blacksmith work. Defendant admitted the claim for $12.75 and filed a claim of set-off for $50 for the wagon delivered to plaintiff. Plaintiff had a verdict and judgment for $387.25, the full amount of his claim, and the defendant sued out this writ of error.

We shall consider only the question whether the judgment shall be reversed for error in the instructions, and state only so much of the evidence as is necessary to present that question.

In May, 1907, the parties entered into a verbal agreement, whereby plaintiff agreed to build for defendant a wagon for $325. Defendant testified that he asked plaintiff the price of the wagon and he said $325; that defendant said, “I give you that if you make me a Mo. 1 wagon,” and defendant said, “I do that * * "" and if I make a wagon that don’t satisfy you, you don’t have to pay me for a year, and if it don’t satisfy you, you don’t keep the wagon. I own the wagon and you don’t have to pay for it. * * * I said I give you $325 if you satisfy me with a wagon. He said I do that. I put up a number one wagon for you. I have to satisfy you and if I don’t satisfy you, I own the wagon then.” On cross-examination he testified that in the same conversation plaintiff said, “If the wagon don’t satisfy you, you don’t have to take it, you don’t have to pay me for a whole year; if the wagon don’t suit you, you don’t have to take it. You can return it to me any time you want to if the wagon don’t suit you.” The testimony of the plaintiff was in conflict with the testimony of the defendant as to the terms of the agreement.

The court instructed the jury in part as follows:

“You are instructed, gentlemen of the jury, if you believe from all the evidence that the plaintiff in this case agreed with the defendant to build a wagon for the defendant to the satisfaction of the defendant, then if the jury believe from all the evidence in question that the wagon in question was built by the plaintiff in a manner such as would he satisfactory to an ordinarily prudent man, then the jury should find the issues for the plaintiff.”

In Goodrich v. Van Nortwick, 43 Ill. 445, the contract was in relation to the sale and purchase of a fanning mill to clean wheat, and it was agreed that “if the mill suited appellee, and answered the purpose, he was to keep it; otherwise it was to be returned within thirty days from the time the purchase was made and "the money was to be refunded.” And it was there held that “the terms of the agreement were, that if it suited and answered the purpose. It is manifest that it was required to answer both requirements. If it did not suit appellee, then he had the right to return the property, and he was by the terms of the contract to he the sole judge of whether it suited him.”

In this case, according to the testimony .of the defendant, it was agreed that he was not to pay for the wagon for a year, and might at any time, within the year, if the wagon was not satisfactory to him or did not suit him, return it to the plaintiff. We are unable to perceive any substantial difference between the agreement in the Goodrich case and the agreement testified to by the defendant in this case. The testimony of the defendant tended to show that he did not accept the wagon and the wagon was in the possession of the plaintiff when the action was brought.

It is contended for defendant in error that under the decisions in Keeler v. Clifford, 165 Ill. 544, and Union League Club v. Ice Machine Co., 204 id. 117, a wagon which would satisfy a reasonable man must satisfy the defendant. In Keeler v. Clifford plaintiff agreed to do certain grading on the land of the defendant, “to the satisfaction” of the defendant. The work done became attached to and inseparable from defendant’s land and plaintiff could not be put in statu quo. In Union League Club v. Ice Machine Co. the court cite and quote from Goodrich v. Van Nortwick without intimating any intention to overrule or modify the decision in that ease, but distinguish that case from the case under consideration on the facts.

On the authority of Goodrich v. Van Uortwick we hold that the giving of the instruction above quoted was error for which must be reversed and the cause remanded.

Reversed and remanded.


text:
    Fred Newmann et al., Defendants in Error, v. George W. Sexton et al., Plaintiffs in Error.
    Gen. No. 15,259.
    1. Corporations—how subscription for stock cannot be impeached. “The rule forbidding the introduction of parol evidence to explain a written instrument meets with no exception in the case of a subscription for stock of a corporation.” The fact, therefore that a subscription was not bona fide and absolutely entered into cannot be established by parol if the subscription on its face is absolute.
    2. Corporations—treasury stock defined. Treasury stock is stock which is returned by a person to whom it is issued to the corporation as a gift to sell the same and put the proceeds in the corporate treasury as working capital.
    3. Corporations—when subscription to stock made in good faith. If a subscription paper is absolute upon its face and the subscriber is legally liable for the amount of his subscription the same is deemed to have been made in good faith and will not enable the enforcement of individual liability against directors under section 18 of the Corporation Act.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. Henby C. Beiteeb, Judge, presiding.
    Heard in this court at the March term, 1909.
    Reversed.
    Opinion filed July 14, 1910.
    Statement by the Court. Plaintiffs sold and delivered to the Olson & Peets Company, a corporation, tobacco at the agreed price of $90.10. The contention of the plaintiffs is that all of the capital stock of said corporation was not subscribed in good faith and that therefore, under the provisions of section 18 of the Corporation Act, the directors of the corporation were jointly and severally liable to plaintiffs for the price of the tobacco. They accordingly brought suit in the Municipal Court against Sexton, Olson and Peets, directors of said corporation, for the price of the tobacco. Peets was not served with summons. The cause was submitted to the court, which gave judgment for the plaintiffs against Sexton and Olson for the amount claimed by plaintiffs.
    Olsen, Schmidt & Bice, for plaintiffs in error.
    Wise & Newman, for defendants in error.
   Mr. Justice Baker

delivered the opinion of the court.

We shall consider only the question whether the whole amount of the capital stock of the corporation was subscribed in good faith. The capital stock was $2,500 in shares of $100 each. The copy of the subscriptions set out in the report of the commissioners is as follows:

“We, the undersigned, hereby severally subscribe for the number of shares set opposite our respective names, to the Capital Stock of Olson and Peets Co., and we severally agree to pay the said Company, for each share, the sum of .one hundred dollars.

Name Shares Amount

Albert H. Olson......... .............5 $500.00

Albert H. Olson ......... .............5 500.00

George W. Sexton........ .............10 1000.00

George E. Peets.......... .............5 500.00

The report then proceeds as follows:

“Amount of capital stock' actually paid in......2000.00

Amount of capital stock not paid in............ 500.00

Stock subscribed and not paid, disposed of as follows: Five shares subscribed for by Albert H. Olson and held subject to call of Board of Directors.”

On the filing of the report the Secretary of State issued a certificate of the complete organization of the corporation, which was duly recorded. Olson testified that he held the five shares for which he had not paid, “in trust as treasury stock of the corporation; that he never actually owned other than as trustee, nor was there any intention on his part or on the part of the other directors, that he should own these last five shares subscribed for by him and held subject to the call of the board of directors.” The subscription by Olson for the last five shares was absolute on its face.

“The rule forbidding the introduction of parol evidence to explain a written instrument meets with no exception in the case of a subscription for stock of a corporation.” Corwith v. Culver, 69 Ill. 502-506.

The last five shares subscribed by Olson were not “treasury stock.” Treasury stock is stock which is returned by the person to whom it is issued to the corporation as a gift to sell the same and put the proceeds in the corporate treasury as working capital. 1 Cook on Corporations, section 46.

Section 7 of the Corporation Act provides that the subscriptions for shares of stock “shall be made payable to the corporation and shall be payable in such installments and at such time or times as shall be determined by the directors.” “A call is an official declaration by the proper corporate authorities that the whole or a specified part of the subscriptions to the capital stock is required to be paid. An installment is one of the several part payments into which a single call may be divided.” Cook on Corporations, Section 104. Section 4 of the Act makes it the duty of the commissioners, in their report to the Secretary of State, to state, “What disposition has been made of the stock subscribed and not paid.” In compliance with this provision the commissioners reported that five shares subscribed by Olson had not been paid and were “held subject to call of the Board of Directors.” The obvious meaning of the report is that Olson’s subscription for five shares of stock which had not been paid was held subject to call by the directors. By the terms of his subscription and the Act, the subscription was subject to call by the directors.

We think that the only conclusion that can properly be drawn from the evidence is that all of the stock of the corporation, “was subscribed in good faith,” before the Secretary of State issued his certificate of the complete organization of the corporation, and therefore that the defendants are not liable for any debt contracted in the name of the corporation. The judgment will therefore be reversed.

Reversed.


text:
    George Hornstein Company, Defendant in Error, v. Roland A. Crandall, Plaintiff in Error.
    Gen. No. 15,267.
    Attobnet and client—power of former to hind client for printing of hriefs. If briefs and abstract are required by rule of court an attorney has power to bind his client for the printing thereof, and the fact that the charge made is to the attorney, is not conclusive that the obligation is his rather than the clients.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. W. W. Maxwell, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed July 14, 1910.
    Kruse & Peden and Boy 0. Merriok, for plaintiff in error.
    Hornstein & Fisher, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff,' on the order of defendant’s attorney, printed briefs and abstracts in the cases of Crandall v. Sorg and Crandall v. Niblack, in this court and in the Supreme Court, in "which cases the defendant was the appellant. The work was done between December 3Q, 1899, and December 17, 1900, and amounted to $174. This suit was begun August 19, 1908.

The cause was submitted to the court, which gave judgment for the plaintiff for $174.

It is contended that the evidence showed that the claim was the debt of the attorney of defendant, who gave the orders for the work and to whom the work was charged in plaintiff’s books, and not the debt of the defendant. The rules of this court and of the Supreme Court required printed abstracts and briefs. We think that it was within the scope of the implied authority of the attorney of the appellant in those cases to have abstracts and briefs printed at the cost of appellant. Williamson v. Bosbyshell, 14 Mo. App. 534.

The fact that the printing was charged to the attorney is by no means conclusive on the question whether the credit was given to the attorney or to the defendant here, for whom the printing was ordered. We think that from the evidence the court might properly find that the claim for printing the briefs and abstracts was the debt of the defendant and not of his attorney.

In Sorg v. Niblack defendant had a claim for a lien and the case is sometimes referred to as Sorg v. Niblack and at other times as Crandall v. Sorg. The printing of the briefs and abstracts in that ease amounted to $48, and the remainder of the claim, $126, was for printing briefs and abstracts in Crandall v. Lyon.

It is further contended that the action is barred by the statute of limitations and that the promise of the defendant to pay the debt was conditional, and that the condition on which the promise depended was not complied with.

Harch 3, 1905, the following contract in writing was made between the defendant and Albert 1ST. Eastman, his attorney in the mechanics’ lien cases:

“Chicago, March 3rd, 1905.

In consideration of a note of even date herewith of Seven Hundred Fifty-nine and 6%oo Dollars ($759.62),, signed by Rowland A. Crandall payable to the order of Albert H. Eastman, due on or before one (1) year after date, this day executed and delivered by said Crandall to said Eastman, is so delivered and received in full payment, discharge and satisfaction of all claims of every kind whatsoever, each against the other to date, save and except only that there is now pending and undetermined in the Circuit Court of Cook County a case known as Sorg v. Hiblaek, for the services in connection with which said Eastman has not been paid and in which case he represents the undersigned Crandall, a claimant for lien.

It is agreed between the undersigned that said Eastman shall continue to prosecute said ease and the net proceeds received therefrom shall be used first to reimburse said Crandall for all costs expended by him and taxed in said case, and the remainder to be divided equally, share and share" alike, between said Crandall and Eastman.

in witness whereof, this release and agreement is executed and delivered in duplicate the day and year first above written.

(Signed) Rowland A. Crandall.

(Signed) Albert H. Eastman.”

March 21, 1905, the following contract in writing was made between plaintiff and defendant:

“March 21, 1905.

Pursuant to an agreement entered into March 3, 1905, between R. A. Crandall and Albert H. Eastman regarding the litigation of Sorg-Hiblack, now pending in the Circuit Court of Cook county, where said Crandall has a claim for lien, it is agreed by and between George Hornstein Company and said R. A. Crandall, that whereas said Hornstein Company have a claim for briefs printed in said case, that they are to receive out of the costs allowed in said litigation their claim for ($174.00) one hundred and seventy-four dollars meaning out of the first proceeds of said litigation as provided in said contract to he paid to said R. A. Crandall.

George Hornstein Co.

R. A. Crandall.”

The contract between plaintiff and defendant of March 21, 1905, expressly refers to the contract between defendant and Eastman of March 3, 1905, and provides that plaintiff shall receive out of the “costs” allowed in Sorg v. Niblack, “their claim for $174, meaning out of the first proceeds of said litigation as provided in said contract to be paid to said R. A. Crandall.” By this contract defendant promised to pay plaintiff $174 out of the first proceeds received by him under his contract with Eastman.

This was a conditional promise springing out of and supported by the original consideration. The evidence shows that the condition on which the promise depended was complied with, for defendant received from Eastman about $1,-600 out of the proceeds of the case of Sorg v. Niblack.

We think the Municipal Court properly held, on the evidence, that the plaintiff was entitled to recover $174 of the defendant.

We find no reversible error in the rulings of the court on evidence, and the judgment is affirmed.

Affirmed.


author: Mr. Justice Freeman

text:
    People of the State of Illionis, Defendant in Error, v. Sigmund Hart, Plaintiff in Error.
    Gen. No. 14,409.
    1. Amusement—right of ticlcet-liolder in place of. A ticket-holder who has left a place of amusement where a public exhibition is being held, has no right to re-enter the same after the closing hours thereof.
    2. Amusement—when person properly ejected, from place of. A ticket-holder who has exhausted his rights with respect to entering and remaining in a place of amusement, is properly ejected therefrom when he refuses to leave upon request.
    3. Assault and battery—what justifiable. If a person improperly refuses upon request to leave a place of amusement his ejectment is proper and an assault and battery is not committed if no greater force than is necessary is used in ejecting him.
    Assault and battery. Error to the Municipal Court of Chicago; the Hon. J. E. Newcomeb, Judge, presiding.
    Heard in this court at the March term, 1908.
    Eeversed.
    Opinion filed July 14, 1910.
    Thornton & Chancellor, for plaintiff in error.
    John J. Healy, F. L. Barnett and Howard 0. Sprogle, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

Defendant prosecutes this writ of error to reverse a judgment of the Municipal Court of Chicago finding him guilty of assault and battery on the complaint of Elton Lower, and imposing a fine.

Complainant testified that on the night of December 2, 1901, he attended an automobile exhibition at the Coliseum. He bought tickets of admission for himself and wife at the Wabash avenue entrance and gave them up when admitted to the building. About 9:30 o’clock in the evening he and his wife went through the back entrance of the Coliseum along a covered way to the Armory building, where a part of the exhibition. was displayed. He testifies that about ten o’clock or a little before he and his wife started to leave the Armory intending to return through the alley to the Coliseum, and that he asked “one of the door tenders” if a ticket was needed to get back into the Coliseum and that the man replied, “Oh no, its too late now; just follow the crowd around.” Beaching the back door of the Coliseum, complainant’s wife went through the vestibule first. Inside of the door she was asked by defendant, the doorkeeper at that entrance, for a ticket and replied that she had none. Complainant coming in inquired, as he says, “What’s the matter here?” The defendant answered “You can’t get in here without a ticket.” To this complainant replied “Well, I am here.” Defendant said to him, “Well, you will have to go out.” Complainant replied, “Well, I came in this way and I have an engagement and I want to go out the Wahash entrance.” Defendant said, “Well, you will have to get out.” Complainant states that defendant “held hoth of my wrists, and I believe I said to him. ‘Son, you are making a mistake. Ton will make a whole lot of trouble if you put me out of here, because I have paid my admission and I have a right to go through the Coliseum ” that defendant “said something about ordersthat complainant saw two men coming down the aisle toward him and that one Beaumont, who it appears from the evidence was the superintendent in charge of the building, said “There he is, put him out.” He says defendant took no part at that time, but that other men forcibly put him out through the door; that he resisted but did not receive “any great physical damage,” although he says his clothing was disarranged his overcoat torn and his leg bruised.

It is evident from complainant’s testimony that he refused to leave the building when told by the doorkeeper and others to do so and that he resisted when he was about to be ejected. His wife testifies: “One had hold on each side of him. They pushed him to the door. My husband was holding his feet down trying to stay there.” Another of complainant’s witnesses testifies when asked if complainant tried to stay there in the building, “He surely did. I saw that fellow grab hold of him and another fellow just like this (indicating) and he said, ‘Go on, get out of here.’ That’s how they treated him * * * I said he had his hands against the door jamb resisting and that is true.” In stating reasons for finding the defendant guilty the trial judge after stating that complainant asked for a ticket to go back to the Coliseum when leaving the Armory and was told by the doorkeeper there that he did not need one, that they would let him in without a ticket, said, “How the doorkeeper himself does not deny that statement.” In this the court seems to have been under a misapprehension, for the doorlceeeper there expressly testifies according to the abstract that he did not state to complainant nor to any one else that evening that they did not need any ticket to go hack into the Coliseum; but on the contrary that he told the crowd the alley entrance to the Coliseum was closed and that he instructed them to pass out-through the front entrance of the Armory. It is suggested that complainant’s reason for wishing to go through the Coliseum was that he had an automobile in front. He had delayed too long however. The hour of closing had come and after being informed of that fact complainant insisted upon remaining and going into the Coliseum. By his conduct he insisted upon being ejected by force, as he was.

It is urged by complainant’s attorneys that having purchased tickets, complainant and his wife had “more than a mere licensethat “their right is more in the nature of a lease entitling them to peaceable ingress and egress.” Citing Drew v. Peer, 93 Pa. 234-242. We are unable to perceive wherein that case has any application to the facts in the case at har. Complainant had no license merely because he had originally bought tickets of admission to remain in or re-enter the buildings or either of them after the hour for closing the exhibition for the evening had arrived. In Pennsylvania R. R. Co. v. Connell, 112 Ill. 295, the conductor of the railway train had been ordered by his superiors not to receive a ticket for fare over the road like the one' presented by the appellee; and when the ticket was presented notified appellee that he, the conductor, could not receive the ticket and that appellee must pay the regular fare or leave the train. This appellee refused to do and the conductor stoppéd the train at a regular station and put him off, using no more force than was necessary. The court says: “Had he left the train when the conductor refused to receive the ticket and ordered him to leave, he might have sued and recovered for all damages sustained in consequence of the act of the conductor expelling him from the train; but can he recover for the force used by the conductor, which he by his own act induced the conductor to resort to, in order to put him off the train?” It is held that, “when the conductor demanded that appellee should pay fare or leave the train, appellee would have been justified in refusing to pay fare, and in leaving the train on the command of the conductor; and had he done so he would have received no personal injuries and might then have brought his action and recovered as before stated; but when he refused to leave the train and thus compelled the conductor to resort to force, he can not recover for an injury which he voluntarily brought upon himself.” It is further said that a train crowded with passengers—often women and children— is no place for a quarrel or fight between a conductor and a passenger, “and it would be unwise and dangerous to the travelling public to adopt any rule which might encourage .a resort to violence on a train of cars.” The principle thus stated is applicable in the case at bar. The complainant had no right to demand re-admission to the Coliseum after he had voluntarily left that and the Armory building also,' and when the hour for closing had arrived. It appears from the evidence that others were seeking such re-admission and were all alike being refused. There was access through the alley to the street and the front of the building. The entrance or exit to a public exhibition or place of amusement is not the place for a quarrel or a physical struggle, even if complainant had any right to demand re-entrance to the Coliseum, which he had not. When he refused to leave the building after having been requested so to do, those in charge acting under orders from their superiors had a right to expel complainant, using such force as was reasonably necessary. To the same effect is what is said in Kiley v. Chicago City Ry. Co., 189 Ill. 384-390.

It is urged by complainant’s counsel that more force was used than was necessary. As we have already stated, the complainant had no right to refuse to leave the building when requested by the defendant. When he so refused and when as his own witness testified he endeavored to resist removal by holding back with hands and feet against the door way he invited and made necessary the use of more force than would otherwise have been required to put him out. In Paxton v. Boyer, 67 Ill. 132—135, which was an action of trespass for an assault and battery, it is said: “The principle is announced (citing cases) that a person is not liable for an unintentional injury resulting from a lawful act, where neither negligence nor folly is imputable to him who does the act, and that the burden of proving the negligence or folly where the act is lawful is upon the plaintiff.” The evidence fails to show that more force than was rendered necessary by complainant’s misconduct was used in putting him out of the building which he refused to leave when lawfully requested.

The judgment of the Municipal Court is reversed.

Reversed.


text:
    Nat Fields et al., Plaintiffs in Error, v. T. W. Dinkins, Defendant in Error.
    Gen. No. 14,739.
    Employer and employe—when discharge justified. If an employer is given the right to terminate a contract of employment if the services of the employe are not rendered to his satisfaction, he is the sole judge of the sufficiency, of his reasons and of the fact that such dissatisfaction exists; he has the right to discharge such employe for any reason when the latter’s services are not satisfactory.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Habby Olson, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed July 14, 1910.
    Adolph Marks, for plaintiffs in error.
    Lawrence & Folsom;, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an action for alleged breach of contract. At the conclusion of all the evidence the Municipal Court on motion directed a verdict for defendant and gave judgment against plaintiffs for costs. Plaintiffs seek to reyerse this judgment.

The agreement in question is dated April 10th, 1906, and was made and entered into “by and between T. W. Dinkins, Theatrical Manager, of the City, County and State,of New York, party of the first part, and. Fields & Fields, actor or actress, of the second part.” By its first 'danse the second party, plaintiffs herein, contracted to render services to defendant at such times and places in the United States and Canada as defendant might direct “during the theatrical season of 1906 and 1907; said season to commence and terminate at the option of the party of the first part,” the defendant herein. The second clause provided that the services to be so rendered were “to be as an actor or performer, including both general and special work, ‘General Business,’ and in choruses, but more especially as he or she may be assigned in the theatrical company or companies designated by the party of the first part.” The third clause is as follows: “The party of the second part hereby represents and asserts his or her competency and ability to fulfill the services hereby contracted for, to the entire satisfaction and approval of the party of the first part, failing which, at the election of said party of the first part, this contract is to immediately become null and void, without any liability accuring or attaching against the party of the first part thereby.”

There are provisions for payment of compensation and other provisions not material to the present controversy. There is evidence tending to show that the plaintiffs started “to rehearse the show the first week in August,” gave the first dress rehearsal and a full performance at Jersey City, a dress rehearsal at Providence where plaintiffs played a week; that they went from there to Boston, Worcester and Brooklyn, playing a week in each town, and from Brooklyn to Albany and Troy, thence to Montreal, Toronto, Buffalo, Detroit and Chicago. At the end of the week in Chicago plaintiffs were discharged. It is claimed that defendant had repeatedly expressed satisfaction with the show and that the discharge was in violation of the contract and because plaintiffs refused to lower their salaries.

On the part of defendant it is contended that the third clause of the contract gave defendant the right to discharge plaintiffs at any time and for any reason, of the sufficiency of which defendant was the sole judge. By that clause the plaintiffs asserted their competency and ability to fulfill the services they contracted to render “to the entire satisfaction and approval” of the defendant, and failing in this the contract at the defendant’s election became null and void, without liability on the part of defendant thereby. By discharging the plaintiffs the defendant indicated his dissatisfaction and election to nullify the contract. Under such contract the reasons for dissatisfaction were immaterial. The employer is the sole judge of the sufficiency of his reasons and of the fact that such dissatisfaction exists and has the right to discharge the employe for any reason when the latter’s services are not satisfactory. Satisfaction with theatrical services involves questions of taste, fancy and judgment of a personal nature, which the employer alone Can determine. Oases in point are: Crawford v. Mail & Express, 57th Northeastern Rep. (N. Y.) 616; Kendall v. West, 98 Ill. App. 116; Idem, 196 Ill. 221; Temby v. Brunt, 229 Ill. 540; International Harvester Co. v. Boatman, 122 Ill. App. 474-477.

The conclusion stated is controlling. We find no error in the action of the trial court in directing a verdict for defendant. The judgment of the Municipal Court will be affirmed.

Affiimed.


text:
    J. T. Dunn et al., Defendants in Error, v. Thomas J. Fitzgerald, Plaintiff in Error.
    Gen. No. 14,888.

      Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presidng.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed July 14, 1910.

      Saul C. Erbstein, for plaintiff in error.
    Charles It. Young and Rudolph Wolener, for defendants in error.
   Mr. Justice Freeman

delivered the opinion of the court.

This is a writ of error by which plaintiff in error, the defendant in the lower court, seeks to reverse a • judgment against him for money claimed by the plaintiffs to be due them for merchandise sold and delivered. The cause was submitted to and tried by the court without a jury.

No questions are involved except those of fact. The plaintiffs’ business is that of butchers dealing in meats at wholesale. There is testimony in their behalf tending to show that in December, 1907, they had been having business dealings with one John Fitzgerald, a brother of the defendant; that on December 18th of that year John Fitzgerald had become indebted to them and the prospect of getting the balance which he owed them “did not look very goodthat plaintiffs refused therefore to sell him any more goods; that John told them that his brother, the defendant, would pay for all the goods he bought, and finally induced Havey, one of the plaintiffs, to go with him to the Stock Yards Savings Bank to see the defendant, who was cashier of that Bank; that at that interview the defendant told Havey to let John Fitzgerald have all the goods he wanted and render a bill to him, the defendant, and he would pay for all the goods; that thereafter the bills were rendered to defendant, amounting all together to $1,464.95, of which defendant paid from time to time all but a balance of $466.50, which balance he promised several times to pay, but failed to do so; that the payments by defendant were made by means of checks on the Stock Yards Savings Bank signed by defendant as cashier; that the bills so paid by defendant were made out to John Fitzgerald, but were all delivered to defendant at the bank; that after the interview of December 18, 1907, plaintiffs had nothing to do with John Fitzgerald, except to deliver the goods to him. Dunn, the other plaintiff, testifies that on one occasion he called on defendant with a bill and defendant said his wife was sick and he did not have the money and to come again." Later his partner went and defendant paid the bill.

In defendant’s behalf there is his testimony tending to show that defendant is cashier of the Stock Yards Savings Bank, with which he had at the time of the trial been connected for eighteen years; that on December 18, 1907, the plaintiff Havey, in company with defendant’s brother John, came to the bank and told defendant the plaintiffs were going to start selling sheep to John and asked defendant if he “would go good for them;” that defendant said “Ho,” and told Havey “at the time if he got in with John that John would do him, meaning he would beat him.” Defendant says that the next day “Havey and John came in again and Havey wanted me to do the business—wanted me to go and act for John;” that defendant said, “Ho, he will stick you, he will stick everybody that he has anything to do with,” and that Havey said, “If John lets the money here I will handle it,” and that defendant said “Ho, I didn’t want to handle anything that he has got;” and that Havey said, “It is not any more than right that you handle your brother’s money. I am willing to give him a chance, and if you will take the money and turn it over to me when he pays, all right;” and that defendant said, “All right. I will give you a cashier’s check for all the money he leaves here, but don’t let him go over a day. He will stick you.” After that defendant testifies that he saw Havey every day; he would bring in the bill and'John would leave the money. Defendant would pay the bill, and says he would get the money from John. Defendant denies that he told Havey to let John have all the goods he wanted and that he said he “would stand good for it.” John Fitzgerald also testifies that defendant merely agreed to receive the money from him and pay it to Havey if John should give it to defendant.

There is direct conflict in the testimony. It was the province of the court which heard the evidence and had the witnesses before it to settle the issue of fact. The evidence amply justifies the finding. We discover in the record no reason which would justify this court in disturbing the judgment. The presiding judge in the trial court had opportunities of observing the witnesses, their demeanor on the witness stand and during the trial which should have enabled him to determine their credibility better than we can possibly, do from the record only. The finding and judgment are by no means clearly and manifestly against the evidence, and in accordance with numerous and well settled precedents should not be disturbed.

The judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    London Guarantee and Accident Company Limited, Plaintiff in Error, v. Edward Morris et al., Defendants in Error.
    Gen. No. 15,171.
    1. Insurance—when casualty policy not void. If the policy does not purport to insure against any acts in violation of law but has for its purpose and effect the indemnification of the insured against loss from the liability imposed by law upon the insured for damages on account of bodily injuries or death suffered by an employe of the insured, it is not void and will cover a liability arising against the insured by reason of an injury suffered by a minor while engaged in the performance of a task prohibited by statute to be assigned to him.
    2. Insurance—“child” as used in casualty policy construed. The word “child” as used in a casualty policy construed to mean one under the age of puberty.
    3. Insurance—how policies construed. The language of the policy being that of. the company, is to be construed most strongly against it. If a word employed is susceptible of two meanings that meaning should be given which enlarges rather than restricts the liability.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed July 14, 1910.
    E. J. Folodte, for plaintiff in error.

      1ST. G. Collins and M. W. Borders, for defendants in error.
   Mr. Justice Freeman

delivered the opinion of the court.

Plaintiff prosecuted this writ of error to reverse a judgment of the Municipal Court of Chicago. At the close of the plaintiff’s evidence the lower court directed a verdict for defendant and judgment was entered accordingly.

The plaintiff issued to defendants an employer’s liability policy, whereby plaintiff agreed to indemnify defendants “against loss from the liability imposed by law upon the Assured for damages on account of bodily injuries or death accidentally suffered while this policy is in force by any employe or employes of the Assured while within the factory, shop or yard described in the schedule * ' * * in and during the operation of the trade or business. described in the schedule * * * subject to the following conditions.” One of these conditions is as follows: “This policy does not cover loss from liability for injuries or death to or caused by * * * any child employed by the Assured contrary to law, or any child employed under fourteen (14) years of age where no statute restricts the age of employment.”

It appears that one Jacob Braun, a minor, who it is stipulated was over fourteen years of age but under sixteen at the time he suffered the injuries from which this controversy arises, became an employe of the defendant as a common laborer in October, 1906, at their packing plant in St. Joseph, Missouri. At that time he is said to have been fifteen years and five days old and was lawfully employed. About two months later he was given employment on what is called a hog casing or “gut” machine, his duties being to insert the “casings” between two revolving rollers, and after passing them through to hang them up. The rollers operated, it is said, like a wringer “with knives on top of the drum to scrape the guts.” At the time of the accident, March 9, 1907, the machine had become clogged, one of the guts or casings having wrapped itself around a roller, and the foreman directed Braun to remove it. In doing so his hand was caught between the rollers and badly hurt. At that time he is said to have been fifteen years, four months and twenty days of age. It appears that the plaintiff herein deemed it proper to settle Braun’s claim for damages caused by the injury, and this it did, having entered into a stipulation with the defendants, who were Braun’s employers, that such settlement should not in any way be construed as a waiver of plaintiff’s rights under the policy, and that the questions of age and liability under the policy were to be settled later between the plaintiff and defendant. This action is brought to recover of defendants the amount so paid by plaintiff to Braun in settlement of his claim against defendants for damages.

It is said in plaintiff’s behalf that there are only two questions involved: First, whether the facts established a violation of law on the part of the defendants within the meaning of the policy; and, second, whether Jacob Braun was a “child” within the meaning of the condition of the policy as above quoted. It is urged that the employment of Braun on the machine by which he was injured was contrary to the law of the State of Missouri. The statute referred to is as follows: “No minor or woman shall be required to clean any part of the mill, gearing or machinery in any such establishment in this State while the same is in motion or work between the fixed or traversing parts of any machinery while it is in motion by the action of steam, water or other mechanical power.” That Braun was a minor and that he was at the time of his injury employed in violation of the statute quoted does not seem to be disputed. Cases are cited wherein the courts of Missouri have held to that effect. Nairn v. National Biscuit Co., 120 Mo. App. 144; Swift & Co. v. Rennard, 128 Ill. App. 181; Peters v. Gille, 113 S. W. Rep. 706. But the provision of the policy relied upon is to the effect that the policy does not cover loss from liability for injuries to or caused by any “child” employed by the assured contrary to law. It is insisted in behalf of defendants that while a child is a minor, a minor is not necessarily a child, and that in this case Jacob Braun, at that time “15 years, 4 months and 20 days old,” was not a “child” and therefore not within the meaning of the exception of the policy. It is contended by plaintiff’s counsel that to construe the policy in question so as to make it applicable in the ease at bar would be to enforce an illegal contract. In Kelley v. Home Insurance Co., 97 Mass. 288, it is said: “The general rule of law on this subject is stated in Boardman v. Merrimack Insurance Co., 8 Cush. 583. ‘When the direct purpose of the contract is to effect, advance or encourage acts in violation of law, it is void. But if the contract sought to be enforced is collateral and independent, though in some measure connected with the acts done in violation of law, the contract is not void.’ ” In the present case the contract does not purport to insure against any acts in violation of law. Its whole purpose and effect are to indemnify defendants against loss from the liability imposed by law upon the assured for damages on account of bodily injuries or death accidentally suffered by any employe of the defendants. Here a liability was imposed upon defendants by the judgment which-plaintiff settled and paid, and against such liability it was the purpose and effect of the policy to indemnify the defendants. The policy is clearly valid.

The other controverted question is whether the injured Jacob Braun was a “child” within the language of the exception in the policy. If he was at the time a child “employed by assured contrary to law,” then the policy does not cover loss from liability for injuries to him. It does however cover loss from liability for injuries to all employes not included within the terms of the special exception under consideration. In ascertaining the meaning of the parties to the contract, expressed in the use of the word “child” as here employed, we are not interpreting nor construing a statute. Insurance policies “being signed by the insurer only and prepared by persons acting in the exclusive interest of the insurance Company, the language is that of the insurer, and hence the rule is that the provisions and conditions of the policy are construed most favorably for the insured.” Niagara Fire Ins. Co. v. Scammon, 100 Ill. 644-649; Healy v. Mut. Accident Association, 133 Ill. 556-561. In the case last cited it is said: “When the words are without violence susceptible of two interpretations, that which will sustain his claim and cover the loss must in preference be adopted.” If the word “child” in this connection is susceptible of two interpretations, it must be given the meaning most favorable to the insured. But in our judgment it is not thus susceptible. The ordinary meaning of the word as commonly used in accordance with its usual import is one under the age of puberty. This accords with the common law definition, and with the definition given by a “factory statute” of the State of Missouri (Chapter 161, Art. 6, Section 10104, Missouri Statutes), which defines child to mean a person under the age of fourteen years. A witness called by plaintiff as an expert on the subject so testifies and the fact is not disputed.

For the reasons indicated we are of opinion that Jacob Braun was not a child within the meaning of the condition of the policy in controversy. The judgment of the Municipal Court must therefore be affirmed. “ x

Affirmed.


text:
    Brink’s Chicago City Express Company, Plaintiff in Error, v. Thomas M. Hunter, Defendant in Error.
    Gen. No. 15,217.

      Executions—what not abandonment of property justifying levy. If a person having merchandise in possession for purposes of delivery does not complete delivery to the person for whom it was intended, in order to justify a levy thereon pursuant to an execution against another person into whose possession it ultimately comes, it must appear that such merchandise has been abandoned, and in order “to constitute an abandonment there must be the concurrence of the intention to abandon and the actual relinquishment of the property, so that it may be appropriated by the next comer.”

      Trover. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding.
    Heard in this court at the March term, 1909.
    Reversed and judgment here.
    Opinion filed July 14, 1910.
    William English, for plaintiff in error.
    Clef F. Severson and William Ohones, for defendant in error; Gridley, Culver & King, of counsel.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an action of trover, in which the plaintiff seeks to recover the value of twenty-five volumes of an Encyclopaedia of Law and Procedure. The Municipal Court stated the facts as shown by the evidence substantially as follows: In April, 1907, a law book company shipped the books in question from Albany, packed in a wooden box addressed to one Edward R. Hills, an attorney, 909 Hartford Building, Chicago, care of Brink’s Chicago City Express Company. Plaintiff received the books from the railroad company on April 27, 1907, and took them to 909 Hartford Building for delivery to said Hills. Hot finding Hills there and being told that he was moving to room 1212 Rector Building, the plaintiff’s driver took the package of books to the Rector Building. He found calciminers at work there in room 1212, and left the package of books in the hall, near the entrance to that room. One Theodore Walliser, said to be an attorney, was about to move to room 1208 in the Rector Building and when he did so move is said to have found this package of law books in that room, 1208. They remained there some weeks and in July following said Walliser opened the box, placed the books on his own desk and shelves and seems to have used them thereafter for his own purposes until about October 11th following. Upon that date they were levied upon by defendant as bailiff of the Municipal Court, acting by one of his deputies, under an execution issued by said court upon a judgment therein, in favor of a third party and against said Theodore Walliser for $200 and costs. Walliser is said to have represented to the deputy that the books were his by purchase, but that they would be of no value to any

one else, as he alone could complete the set. They were taken however under the writ, and thereafter on October 22, 1907, were sold by the defendant at public auction. It is conceded that at the time of the levy and sale and until March 23, •1908, when this suit was begun, the defendant had no notice nor knowledge of the title of the law book company or of the rights of the plaintiff express company in or to the books in question. The Municipal Court found from this evidence that the plaintiff had abandoned said books, had relinquished any claim, title, or right of possession to them, had been guilty of gross negligence and had no claim or title thereto as against the defendant bailiff and execution creditors of said Walliser without notice.

It is contended in behalf of plaintiff that the facts as stated by the lower court do not warrant the conclusion that the plaintiff had abandoned the books in question at the time of the levy and sale hy the defendant bailiff. In this contention we concur. There can be no abandonment of one’s property or rights without an intention to abandon.- It is said in Judson v. Malloy, 40 Cal. 299, that “to constitute an abandonment there must be the concurrence of the intention to abandon and the actual relinquishment of the property, so that it may be appropriated by the next comer.” See also Breedlove v. Stump, 3 Yerg. (Tenn.) 257, quoted with approval in Dawson v. Daniel, 2 Flipp (U. S.) 301; Livermore v. White, 74 Maine, 452; Log Owners Co. v. Hubbell, 135 Mich. 65.

There is nothing in the statement of facts nor apparently in the evidence tending to show that prior to the institution of this suit the plaintiff was aware that the books in question had not reached the person to whom they were intended to be delivered. Without such knowledge there could be no intention to abandon. The box containing them was distinctly marked with the name of the consignee. Walliser, the execution debtor, had wrongfully removed them from the box and appropriated them to his own use. He had falsely represented them to be his own by right of purchase. He had full knowledge of the name of the consignee, whom, had he tried, he could have had no real difficulty in finding. He acquired no title nor right of possession against the plaintiff nor the real owner by his misconduct, and having no title nor right, the defendant could acquire none by a levy on the property of another in Wallis'er’s wrongful possession, under an execution against him. Am. & Eng. Enc. of Law, 2nd ed., Vol. 19, p. 580.

It is true apparently that it was negligent on the part of plaintiff’s driver to leave the box of books where it could fall into the hands of Walliser as it did. But such negligence had in it no element of estoppel. There was no fraudulent intent to mislead, nothing to induce the defendant officer to make the levy or sale. Whatever negligence there was did not deprive the real owner nor the plaintiff acting as his representative of title and right of possession. As is said in Am. & Eng. Enc. of Law (2nd ed.), Vol. 24, p. 1161: “It is a well settled general rule that a person cannot be deprived of his title to personal property without his consent, express or implied, and where no fraud or misleading acts on his part are shown; * * * the owner of property is entitled to recover it even from a bona fide purchaser, who purchased the property from a mere possessor.” Walliser in this case had not even a right to temporary possession. Neither the real owner of the books nor the plaintiff knew he had them. “The owner of goods is not divested of his property therein by the casual loss of them and therefore as against him a finder acquires no title. And since the finder acquires no title to the goods found as against the true owner, he can transmit none to any other person.” A. & E. of Law, 2nd ed., Vol. 19, p. 580. In Sargeant v. Marshall, 28 Ill. App. 177-180, it is said that “the owner of personal property, when wrongfully taken from his possession, is not bound to pursue it diligently and recapture it, under penalty in case of neglect of losing title if it is sold to a third party.” Conceding that it was through negligence of the plaintiff’s driver that Walliser obtained possession of the books as he did, and that plaintiff was negligent also in not sooner finding out that they were in Walliser’s possession, such negligence did not divest the owner of title nor plaintiff of the right to recover possession, even if the books had been sold by Walliser to a bona fide purchaser. A. & E. Ency. of Law (2nd ed.), Vol. 24, p. 1162. The levy by the defendant was wrongful. He “levied upon the goods at the peril of showing they were the property of the defendant in the writ, as the writ could not justify him in seizing or selling those of a third party.” Foote v. People, 14 Ill. App. 280. See also Ellsner v. Radcliff, 21 Ill. App. 195.

The Municipal Court found the defendant not guilty and gave judgment against the plaintiff. The judgment disposed of the entire subject-matter of the litigation and is a final appealable order. The court found the value of the books in controversy to be $75. The judgment of the Municipal Court will be reversed and judgment entered here in favor of the plaintiff and against the defendant for $75 and costs.

Reversed and judgment here.


author: Mr. Presiding Justice Chytraus

text:
    Andrew Helgesen, Appellee, v. Chicago Suburban Water & Light Company, Appellant.
    Gen. No. 15,029.
    1. Pleading—when declaration sufficient after verdict. Held, that the declaration in an action for injuries sustained by reason of the plaintiff becoming the connection .between two disconnected ends of an electric wire defectively stated a good cause of action and that the same was sufficient after verdict.
    2. Evidence—what essential to admissibility of written statement employed for purposes of impeachment. Such a statement to be admissible must be genuine and in the same condition in which it was at the time the witness sought to be impeached made it and the burden of showing such genuineness and unchanged condition is upon the party offering it.
    3. Evidence—impeachment by means of previous self-contradictory statements. In impeachment of any statement of fact, material to the issue, made by a witness or party while testifying, a previously made verbal or written inconsistent or conflicting statement may be introduced in evidence not, however, unless, while testifying, the witness’ or party’s attention has been called to such previous statement with specification of time and place when made (or it be shown, if written) in order that circumstances under which it was made be known, that opportunity be given for full explanation and that it may be ascertained whether the previous statement is, in reality, inconsistent and impeaching so that it should be permitted to discredit the testimony given.
    4. Evidence—questions of fact involved in admissibilty of evidence are for the court. The question of admissibility of impeaching evidence is one solely for the court, although in that connection he may be required to determine upon the same questions of fact which may be in issue in the case.
    5. Trial—when jury should be required to retire. If it is sought to use a written statement for purposes of impeachment and its genuineness is in question and it is of an important and material character the evidence with respect to its competency should be heard out of the presence of the jury.
    6. Trial—when conduct of counsel ground for reversal. If an attorney undertakes to anticipate the ruling by the court with respect to the competency of a written statement sought to be used for purposes of impeachment and states in the presence of the jury the effect of such written statement, his conduct is prejudicial and the paper in question being incompetent, such conduct becomes ground for reversal.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Duptjy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed July 15, 1910.
    Girard A. Ellingson, for appellant.
    John F. Waters and Joel Baker, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

This is a personal injury suit wherein plaintiff claims that he was injured by reason of negligence attributable to defendant, while in defendant’s employ as an electrical lineman. Plaintiff sustained the injury, of which he complains, through becoming the connection between the two disconnected ends of a wire carrying 1,100 volts of electricity, while he was at work upon the cross-arm of an electric wire pole. He recovered a judgment for $3,500 in a jury trial and from that judgment defendant prosecutes this appeal.

The declaration contains an original count, which was filed August 23, 1906, and three additional counts which were filed January 31, 1908.

The original count sets up that hy order and direction of the defendant plaintiff ascended a certain pole to “string and transfer” a certain wire provided by the defendant and Jhat the wire was heavily charged with electricity and was “exposed at parts and improperly, inadequately, insufficiently and unsafely insulated,” which facts were not known to the plaintiff but which defendant did know or by the exercise of ordinary care should have known; that the defendant did not “warn and instruct” plaintiff of the dangerous condition of the wire and, that, while upon the pole and in the exercise of proper care, plaintiff, by reason of the premises, came in contact with the wire, and received an electric shock whereby he was injured. In the evidence it appears, and it was admitted at the trial, that, when plaintiff ascended the pole, he was fully aware of the fact that the wire from which he received the shock was charged with electricity. It is also clear from the evidence that plaintiff observed and was aware of the condition of the wire and of the insulation thereof before receiving any shock and that, as to the insulation and physical condition of the wire, he had a better and earlier opportunity of observation than anyone else. Plaintiff failed totally in proving the cause of action set up in this count.

The first additional count sets up that, by order and direction of the defendant, plaintiff ascended a pole to “string and transfer” a wire, provided by defendant, from that pole to another, with averments similar to those in the original count as to the wire being charged and exposed and not properly insulated and as to the lack of knowledge on the part of plaintiff and defendant’s knowledge or charge-ability with knowledge. This» count also sets up that, while plaintiff was upon the pole exercisiúg due care, defendant “failed to furnish plaintiff a safe place to do said work}” and that by the conduct of defendant in that behalf “plaintiff unavoidably came in contact with certain of said wires and as an immediate consequence” sustained an electric shock and was thereby injured. Ho element of unsafety in the place provided is set up except the condition of the wire and, if this count states a cause of action, which we need not now determine, plaintiff failed in establishing the .cause of action set up for the same reason that he failed in respect to the original count.

The second additional count sets up that plaintiff was in the employ of defendant and that defendant ordered and directed him to ascend a certain pole and to transfer and string a certain wire attached to that pole upon another pole, with averments similar to those in the original count as to the wire being charged and exposed and not properly insulated and as to the lack of knowledge on the part of plaintiff and defendant’s knowledge or chargeability with knowledge. It also sets up that, while plaintiff was exercising ordinary care for his own safety and was in the act of stringing and transferring the aforesaid wire, a vice principal of defendant, who was upon another pole and who was assisting in and superintending plaintiff’s work, “caused plaintiff, while holding and working with said dangerous and uninsulated wire, * * to come in contact with another wire, which act * * completed an electrical circuit through plaintiff’s body,” whereby plaintiff sustained an electric shock and was thereby injured.

It is conceivable that plaintiff may have been “caused” “to come in contact with another wire” by a vice-principal of defendant, as set up in this count, without any negligence whatever on the part of anyone or without there being any negligence attributable to defendant in that cdnnection, and we are not prepared to say that this count presents a state of facts showing that the injury to plaintiff was caused by negligence attributable to the defendant, so as to make the count sufficient against a demurrer, yet, at this stage of the case, after verdict, this count may be regarded as defectively stating a good cause of action and, therefore, as sufficient when aided by the legal inferences and intendments which follow a verdict. We will so regard it.

Plaintiff’s evidence tends to prove a state of facts creating a cause of action under this second additional count, when regarded as last stated. The defendant’s evidence tends to prove an entirely different state of facts and one that is totally inconsistent with any right of recovery by the plaintiff. Plaintiff’s evidence is not so full and clear in detail and circumstance as to satisfactorily establish negligence in the acts charged under the second count and to preclude the idea of contributory negligence on plaintiff’s part. However, as the crucial details and circumstances may be more fully developed upon another trial and the case may then have a different aspect, we prefer not to place our disposal thereof upon a lack of evidence on the part of the plaintiff. There is another ground upon which we are obliged to reverse the judgment in this case.

According to the evidence, Heinze, defendant’s foreman of the construction crew engaged in the work, was in a position to see and observe more clearly and fully than anyone else what happened when plaintiff was injured. Heinze was defendant’s principal witness in the trial. It was of vital importance to the due administration of justice in this case and to the accordance of a fair trial to the defendant that nothing should occur in the proceedings which would have a tendency to erroneously and unjustly discredit Heinze. Under these circumstances, any occurrence of that character in the procedure during the trial, occasioned by the conduct of plaintiff’s attorney, would, of course, vitiate the verdict subsequently returned, if in favor of the plaintiff. Plaintiff’s attorney undertook to impeach Heinze’s testimony and credibility by evidence of a previous unsworn contrary statement made by him out of court. -In the admission of this previous statement, under the circumstances under which it was admitted, plaintiff’s attorney led the court into reversible error. The previous statement, by which it was sought to impeach, was typewritten. It was essential to its admissibility that it be genuine and that it be in the sanie condition when offered in evidence as when Heinze made it. Had it been corrupted while in the possession of plaintiff or his attorneys, it was inadmissible when offered on plaintiff’s behalf.

During cross-examination of Heinze, on March 12, 1908, plaintiff’s attorney, Waters, first brought up the subject of the typewritten statement. He asked the witness whether, on October 11, 1901, he had had a conversation with Joel Baker, one of the plaintiff’s attorneys, at the corner of eertain streets, if what the witness then said was not taken in shorthand by Baker, and if it was not afterwards typewritten. To these questions and also to the question whether the signature to the paper, which counsel apparently held in his hand, was the witness’ signature, the witness replied affirmatively. The examining attorney then asked: “Q. You saw that paper and examined it and made those erasures in my office last week, didn’t you, and did you see those lines that are smudged out?” To this the witness answered: “A. Well, there was some erasures made, yes.” Thereupon the following questions were asked and answers made: “Q. And you read this over carefully, didn’t you, before you signed it ? A. Yes. Q. That is true, .isn’t it ? A. Well, if this is the same statement, yes. Q. Yes.—Isn’t that your signature? A. Yes, but I don’t know about this. Q. Didn’t you see me write out the ‘crew’ and the other words ? Didn’t you see me write them? A. Yes. Q. There is no question about that being the paper, is there? A. Ho sir.” This was all that occurred relating to the statement at that time. What was referred to as “those erasures” and as the lines “smudged out” and whether the statement was upon one or several pieces of paper does not appear in this record.

Later in the trial, after defendant had rested, the plaintiff’s attorney, Waters, said: “If the court please, the plaintiff wishes to introduce in rebuttal, now, the statement of Heinze identified this morning.” Clearly, Waters had failed to lay a sufficient foundation for the statement’s admissibility in respect to its altered condition. It appears that there were erasures and alterations in the paper offered in evidence. Its integrity was further impeached hy the defense after the court had permitted it to he introduced in evidence. Thp burden of a satisfactory explanation of its condition rested upon the plaintiff, who offered the paper in evidence and who, by himself or his attorneys, had the possession thereof. Upon objection to its admission by defendant’s attorney, Mr. Waters replied: “It contradicts flatly what he [the witness] stated here this morning, on the stand. Your honor will remember that he admitted this morning on the stand that he made the erasures himself and signed it and dated it last Friday in my office.” The court overruled the objection of the defense by saying: “The first page of it, except the last two lines, may be received. The last two lines and what follows on the second page will not he received.” To this ruling the defendant’s attorney excepted. Plaintiff’s attorney then read that part, apparently, which the court permitted to be introduced in evidence and rested his case in rebuttal.

Thereupon, after the admission of the paper in evidence, Heinze was called as a witness in surrebuttal by the defendant. Upon his direct examination in surrebuttal Heinze, having testified that at Waters’ request he had gone to his office and there signed the typewritten statement, was interrogated, and he answered, among other things, as follows:

“Q. Was the statement then [when signed] in the same condition—was the statement then as written up as you had given it to Mr. Baker? A. Well, there were a few things we changed.

Q. Tell what was changed there what was wrong at that time ? A. Well, there was a few remarks in there that I was supposed to make that I had not said.

Q. What were they? A. For instance, for the first one, it says, ‘he and Helgesen were transferring the wires from the old to a new pole,’ and I said the ‘crew’ was transferring the wire from the old to a new pole.

Q. What else was not as you remember stating it to Mr. Baker ? A. This ain’t the statement I signed.

Q. Well, look at it carefully. A. This here is not what I signed, though.

Q. Look at the second page—did you sign that? A. Yes.

Q. How did—how do you know you did not sign the first page ? A. Well, it says things here that had not been in the first statement at all.

Q. Was it fastened together when you signed it? A. There was a pin in here, if I ain’t mistaken.

Mr. Waters: Q. Is there any pin-hole there now? A. Ho, there isn’t; there wasn’t—it was just fastened in the corner like, it was not like this, I don’t think.

Mr. Kales : Q. What is there in that statement that was not in it, in the statement that you signed, and the statement, that you gave to Mr. Baker? A. It says, ‘He sent Helgesen up to untie the wire from the old pole, and Helgesen found it was not tied in the usual way, and called him up to look at the job.’ It was not said that way in my statement.

Q. Was it stated that way in the statement which was handed to you to sign ? A. Ho, it was not, it didn’t say that at all.

Q. Did you alter the statement which you signed the other day in any way? * * * A. I did not; I said I told Mr. Waters to change this, the few things that were not right.

Q. Did you change them yourself? A. Ho.

Q. What did he say about doing it ? A. He done it while I was there.

Q. You saw him do it ? A. Yes.

Q. In his own hand. A. Yes.

Q. Did the first sheet look like that ? A. It looked something like it, yes.

Q. Is there anything else in that first page that was not according to your statement to Mr. Baker, or according to the paper which you signed? A. It says, ‘he went up on the new pole and Helgesen handed him the wire to show that it was not cut, he looked at it and threw it back to Helgesen and told Helgesen to take it; he then hollered ‘Andy, let loose,’ and when he saw he had got the current, called to Charlie on the next pole to cut the wire.’ That was not in my statement.

Q. Did you ever give that statement to Mr. Baker ? A. Ho.

Q. Did you ever sign a paper with it in ? A. Ho, sir.

Q. Did you say anything—do you see anything else in that statement that was not in the paper that you signed, or in the statement that you gave to Mr. Baker on the first page only ? A. That is all there is in there.”

In the cross-examination of Heinze upon surrebuttal the following questions, besides others, were asked and the following answers received by Mr. Waters:

“Q. Do you remember having me write the word ‘crew’ in there ? A. Yes, sir.

Q. I had a leaf—it is a roll-top desk, and I pulled the leaf out, and you sat right there close to me, as I am to you now, and you read it over ? A. Yes, sir.

Q. And you told me to strike out the lines down here, didn’t you ? A. Yes, sir.

Q. This is in ink, and this is with the pencil; you remember that, don’t you ? A. Yes, sir.

Q. And yet you say that is not your statement ? A. Ho, not those words.”

Ho other evidence was adduced by either party touching the physical condition, making or signing of the statement introduced to impeach the testimony and credibility of Heinze.

A witness may be impeached by proof of verbal statements upon material points made by him out of court, which are contradictory of his testimony on the trial. Such verbal statements are not, however, admissible in impeachment unless the witness’ attention was called to the same upon his examination, with a specification of the time and place when and where such previous statements, which it is purposed to offer in impeachment, were made. Quincy Horse Ry. Co. v. Gnuse, 137 Ill. 264. It is required thus to call the witness’ attention to the proposed impeachment in order that there may be an opportunity, on behalf of the witness and on behalf of the party calling the witness, to obtain a full explanation the circumstances surrounding the making of such previous statement, if any were made, that it may be ascertained whether the previous statement is, in reality, a statement inconsistent with and in contradiction of the witness’ testimony, and that the impossibility of any such previous statement having been made, if such be the case, may be shown before the previous statement is admitted in evidence.

“The rule is, that the contradictory declarations of a witness, whether oral or in writing, made at another time, cannot be used for the purpose of impeachment until the witness has been examined upon the subject, and his attention particularly directed to the circumstances in such way as to give him full opportunity for explanation, or exculpation, if he desires to make it. If the contradictory declaration is in writing, questions as to its contents, without the production of the instrument itself,- are ordinarily inadmissible, and a cross-examination for the purpose of laying the foundation for its use as impeachment would not, except under special circumstances, be allowed until the paper was produced and shown to the witness while under examination. * * * All the law requires is, that the memory of the witness shall be so refreshed by the necessary inquiries as to enable him to explain, if he can and desires to do so. Whether this has been done is for the court to determine before the impeaching evidence is admitted.” The Charles Morgan, 115 U. S. 69, 77.

Before the admission in evidence of the paper containing the previous statement, all the evidence adduced by either party touching its making, its integrity and its admissibility should have been heard, and, in this instance, it should have been heard out of the presence of the jury. It is for the trial judge, solely, to pass upon the admissibility of evidence and during an investigation as to the admissibility of a previous statement, such as that here involved, much may be said by the attorneys and heard by the jurors which may unjustly affect the interests of one party or the other injuriously.

“It is the exclusive province and duty of the court to decide upon the admissibility of evidence, and it is none the less so where, in order to make such determination, the court is obliged to examine and pass upon questions of fact. In all cases, whether civil or criminal, where objection is made to the competency of evidence offered, and the question depends upon facts which may be proved or disproved, it is the duty of the judge to hear all proper evidence offered on either side, touching the question of competency, before letting the challenged evidence go to the jury; and it is error to do otherwise.” And it makes no difference that the fact, which the judge is thus called upon to decide, may be identical with the issue on which the opinion of the jury will be ultimately taken. 1 Thompson on Trials, Secs. 318, 319. “It is the office of the judge to pass Upon the admissibility of evidence, and he cannot devolve it upon the jury, whose duty it is to consider its sufficiency, (p. 685) * * * The reference of the preliminary question and the consideration of the merits to the jury at the same time would perplex and embarrass their inquiries—greatly increase the probability of their being misled—and, unless the jury was one of more than ordinary discrimination, they would hardly be competent to the task of considering the facts in their different phases, applying them, and understandingly respond to the issue (p. 687).” Degraffenreid v. Thomas, 14 Ala. 681. “Although it is the privilege and prerogative of the jury to determine all matters of fact which are involved in the issue submitted to them, yet it is equally the exclusive duty of the court to determine all matters of law, even if they involve the necessity of deciding upon the truth of facts. Thus, it is the duty of the court to determine all matters of fact which go to show that offered evidence is either admissible or not. * * * If a deposition be objected to, as having been fraudulently or otherwise illegally taken, the court, and not the jury, is to inquire into the facts upon which the objection is founded. And so in the case at bar, it was for the court to have decided the fact which was submitted to the jury, that it might determine whether the- declaration of Robinson was admissible evidence. If, upon such examination of facts by the court, it decides to admit evidence, it is for the jury to consider, weigh and apply it; but if it be rejected, the jury has no legal right even to know that it was ever offered.” Robinson v. Ferry, 11 Conn. 460, 463. To the same effect Bartlett v. Smith, 11 Mees & W. 483, and Jenkins v. Davies, 10 Adolph & Ellis, 314.

While the objection of defendant’s attorney to the admission of the paper containing the previous statement was pending, plaintiff’s attorney, in the presence of the jury, boldly asserts, relative to Heinze’s statement, that “It contradicts flatly what he [the witness] stated here this morning on the stand.” This statement by plaintiff’s attorney in the presence of the jury as to the contents of a paper, the admissibility of which was under consideration by the court, was highly unprofessional and for the attorney to then state his conclusion as to the contents of the paper was prejudicial to the defense and, the paper not being admissible in evidence, reversible error. This conduct, by an attorney of the intelligence and ability of plaintiff’s counsel, appears like a deliberate invitation of error. It is most viciously unfair to the adverse party and disrespectful to the trial judge thus to anticipate a ruling, by announcing to the jury the contents of the writing, the admissibility of which is under consideration. The idea was conveyed to the jurors that the writing contradicted “flatly” the testimony of the witness. Bnder the circumstances the learned trial judge, considering the admissibility of the paper, was not in a position to contradict the attorney, and even though the paper had been excluded, the interests of the defense would have been unjustly prejudiced.

Moreover, a serious error intervened in the admission of the paper in evidence upon the insufficient foundation laid for its admissibility. Heinze was the only witness by whom it was sought to build a foundation for its admissibility. Not only does his testimony, considered all together, fail to establish its genuineness as a statement made by him, but that testimony discredits the genuineness of the statement and leaves in the mind a strong impression that the statement offered and received in evidence is a falsification of some statement Heinze did make.

When the previous statement involved is in writing or is typewritten and signed, the necessity for a foundation upon which its admissibility may be placed still remains. The impeaching evidence not being verbal but written, the required foundation is consequently necessarily somewhat changed in its character. The genuineness of the written statement must be established, before it can be admitted in evidence. Proof of the handwriting of the signature is but one step in that direction. If any changes, alterations or interlineations appear, the party offering the paper must show that these were made prior to the signing of the paper or with the consent of the witness, before the statement is admissible in evidence. It is the duty of the party, proposing to impeach the witness by the introduction of such previous statement, to call the witness’ attention to that statement so that in proper season there may be an opportunity for explanation, if any there be, of the inconsistency. Boeker v. Hess, 34 Ill. App. 332, 336; Travelers Preferred Accident Assn. v. McKinney, 57 Ill. App. 141, 142; Seckel v. York Nat’l Bank, 57 Ill. App. 579, 583; Gaffney v. People, 50 N. Y. 416, 423. “A written statement or deposition is as susceptible of explanation as verbal statements.” Conrad v. Griffey, 16 How. (U. S.) 23, 47.

“A witness is not bound to answer as to matters reduced to writing by himself or another, and subscribed by him, until after the writing has been produced and read or shown him.” Newcomb v. Griswold, 24 N. Y. 298, 301; Bellinger v. People, 8 Wend. 595, 598. The whole writing must be read in evidence. The Queen’s Case, 2 Bros. & B. 286; C. E. L. 148.

For the errors indicated relative to the impeaching statement the judgment of the trial court must be reversed and the case must be remanded for another trial.

The third additional count is a mere collection or compilation of the statements presented as the several causes of action in the other counts of the declaration. Nothing new, of substance, is added.

The imperfections in the abstract of the record herein are such that we have often been obliged to go to the record. For instance, the omission from the abstract of the word “yet” on page 222 of the record and the changing of the words “had reached” on page 229 in the record into “was” in the abstract, materially changes the sense of what the witness said, in both instances. Obviously these alterations were unintentional, for in both instaces the alteration makes against appellant. The preparation of the abstract is lawyer’s work; it is not clerical work. Furthermore, we find that the TIeinze statement which was offered in evidence nowhere appears as a whole—neither in the abstract nor in the record. The record and the abstract should have shown it in its entirety. It should have been made to appear in the condition it was when offered, that is, the record and the abstract should have shown both that part thereof which was received in evidence and that part which was rejected. The labor of this court is very much increased by poor and defective abstracts and records, and the determination of cases is correspondingly delayed.

Reversed and remanded.


text:
    Lullus J. Ennis, Appellee, v. Vincent A. Connery et al., Appellants.
    Gen. No. 15,036.
    Contributory neqligence—when person crossing street guilty of. A person crossing a public street is bound to be watchful for teams every moment of the time and if he voluntarily gets himself into a position by reason of which he suffers injury, he is guilty of contributory negligence and cannot recover.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. William McSurly, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed July 15, 1910.
    H. L. Howard, for appellants; O. W. Dynes, of counsel.
    J. D. Byan, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Plaintiff brought suit against appellants, Vincent A. and Michael M. Connery, doing business as Connery Brothers, and the Illinois Brick Company, a corporation, jointly, to recover damages for personal injuries sustained in being run upon, if not run over, by a coal wagon. After the suit was brought plaintiff covenanted not to prosecute any suit against the Brick Company, discontinued the suit as to it and filed an amended declaration against appellants only. Upon a trial by jury plaintiff recovered a judgment for $5000. Appellants are now seeking to procure a reversal of that judgment.

Upon a careful consideration and analysis of the evidence we find no negligence chargeable to the Connery Brothers. It appears that at about 8:30 o’clock in the morning of June 2, 1905, the plaintiff being somewhat late to his place of employment, came from a station of the elevated railroad on Congress street and, after going north, from Congress street, a distance of about eighty feet, upon the sidewalk on the east side of State street, undertook to cross State street, diagonally, in a northwesterly direction to the west side of that street. While he was attempting to make that crossing “on a jog or a run” the accident to plaintiff happened. State street is a north and south street and has a driveway 51 feet and 10 inches wide from curb to curb where plaintiff attempted to cross. In the center of the street, approximately, there are two street car tracks placed at a distance of four feet and ten and one half inches apart. The east rail of the east track lies substantially, twenty-four feet from the east curb. There is no material conflict of fact in the evidence. Plaintiff was the principal witness and practically the only witness as to the circumstances under which he was injured. The west street car track was the south-bound track and the east street car track was the north-bound track, and in testifying the plaintiff so spoke of them.

Plaintiff, as stated, was a little late on the morning in question and should have been at his place of employment at the time the accident occured. Before starting from the sidewalk to cross the driveway, according to his testimony, he looked and found the street comparatively clear. In crossing diagonally toward the north he came to the south-bound track where he was stopped, between the two tracks, by a mule team coming south “rapidly” with an empty brick wagon. He stopped when this team was about twenty-five or thirty feet from him. This team was being driven in the south-bound track at “a very fast trot”—at a speed of “at least twelve miles an hour.” When this team passed him he “shouted” at the driver for driving so fast. Then looking he observed another mule team with an empty brick wagon following the first one. These two teams belonged to the Illinois Brick Company. The second team was about thirty to fifty feet behind the first one and was coming at the same rate of speed. It then appeared to him that he would not have time to cross in front of the second mule team. As he heard a noise, or something otherwise attracted his attention, he looked back and discovered a loaded coal wagon with three horses coming toward him from the south, in the northbound track and within ten feet of him. This coal, wagon was in the possession and control of the Connery Brothers. The plaintiff testified the coal wagon came at a fairly rapid speed but not nearly as rapid as that of the brick wagons. The driver of the coal wagon testified that he came along at a walk and with 12,200 pounds of coal in his wagon. When plaintiff discovered the coal wagon he believed himself in danger, as he states. He then began to shout and turned and ran north in order to get behind the second brick wagon. When he had gone, as he presumes, about ten feet the mule nearest him swayed or “swung out over the car track” and knocked him down under the horses attached to the coal wagon. The hind foot of one of the horses struck one of his anides and splintered it seriously. The driver of the coal wagon, however, having his feet against the dashboard of his wagon, “jerked the horses so he almost sat them back” and stopped the coal wagon with one of its front wheels on plaintiff’s leg. The. wheel did not pass over plaintiff’s leg but was subsequently backed off.

Although the coal team had been coming at a fairly rapid speed, according to plaintiff, that, together with the other evidence herein, would have afforded no ground for finding the driver of the coal wagon guilty of negligence. But to us the testimony and circumstances indicate very clearly that the coal wagon came along at a walk. It is not surprising that under the circumstances plaintiff was unable to accurately judge of the coal team’s speed in the ten feet he saw it travel.

Plaintiff voluntarily got himself into the position which brought about his injury. When he chose to cross the street in the manner he did it behooved him to be watchful for teams every moment of the time. Had he not stopped to shout at the driver of the first mule team but instead looked about him he would undoubtedly not have been injured. At all events we find no negligence on the part of the driver of the coal wagon. The judgment must be reversed.

Reversed.


text:
    Albert Conrad, Appellee, v. Sykes Steel Roofing Company, Appellant.
    Gen. No. 15,042.

      Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed July 15, 1910.
    Charles E. Paih, for appellant.

      Francis X. Busch, Frank A. Rookhold, and Plotke & Mayer, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Plaintiff has recovered a judgment in this case for personal injuries. Defendant is endeavoring to procure the reversal of that judgment, mainly on the ground that it is not sustained by the evidence. There was a trial by jury in the court below.

Defendant is in the business of manufacturing steel roofing material and plaintiff was in defendant’s employ as a general helper in its factory at the time he was injured. When the accident occurred he was operating a metal cutting machine or shears for cutting sheet metal. This machine was operated by a foot treadle. At the time he was injured he was cutting strips of sheet metal two inches wide and two feet long from a sheet of metal two feet wide and four feet long. The machine had a table upon which the sheet of metal lay while being fed into the shears. Back of the shears was a gauge by which he regulated the widths of the strips so as to make them two inches in width. The machine was used by many of the defendant’s employes at different times. There was no regular or permanent operator upon the machine. Plaintiff had been in defendant’s employ for two years and a half and during the period of the last two years he had worked on the machine three or four times a week. If the operator kept his foot on the treadle the cutting blade would keep on going up and down. The operation was to shove the edge of the sheet of metal under the cutting blade up to the gauge and to step on the pedal or treadle and the cutting blade would then come down and cut the sheet metal. Each operation took but a second of time. Plaintiff testified that when he was shoving in the last strip of a sheet of metal “the machine got down alone. I did not have my foot on the treadle when the machine come down alone.” The ends of the first, second and third fingers of his right hand were cut off. In other words, although plaintiff had taken his foot off the treadle the machine repeated, that is, the cutting blade came down. Plaintiff happened to have his fingers underneath the blade at the time. The repeating, as one of the witnesses testified, occurred because some of the parts would not engage one another properly upon this machine.

There is some conflict in the evidence as to whether the machine was out of repair or not and the ‘evidence would warrant a finding either way as to whether plaintiff was aware of the defect or danger if any existed; but both these questions were questions for the jury and upon the record herein we do not feel justified in disturbing the conclusions the jury arrived at.

We find no error in the instructions requiring a reversal.

The judgment must be affirmed.

Affirmed.

Mr. Justice Mack took no part in the consideration or the decision of this case.