text:
    Joseph Daube, Defendant in Error, v. Jonas Kuppenheimer, Louis Kuppenheimer and Albert Kuppenheimer, trading as B. Kuppenheimer & Company, Plaintiffs in Error.
    Gen. No. 20,789.
    1. Dismissal, nonsuit and discontinuance, § 3

      —how long right to dismiss has existed. The right to take a voluntary nonsuit in jury cases has not changed since the year 1819, and such right is specifically recognized in the Municipal Court Act, sec. 30 (J. & A. ¶ 3342).
    2. Trial, § 183

      —when peremptory instruction may be withdrawn. A trial judge may change his mind after he has announced his intention to give a peremptory instruction, and it is not error under ordinary circumstances to withdraw an instruction even after it has been read to the jury.
    3. Dismissal, nonsuit and discontinuance, § 1

      —what is nature of right to take voluntary nonsuit. The right to take a nonsuit is a substantial right and should not be taken away without giving the plaintiff some opportunity to exercise that right.
    4. Dismissal, nonsuit and discontinuance, § 14

      —when party may take voluntary nonsuit. Under the Practice Act, see. 70 (J. & A. H 8607) and sec. 30 of the Municipal Court Act (J. & A., If 3342), as to the right to nonsuit, a plaintiff has the right to take a nonsuit if he so desires after he has learned the views of the court as to the law and before the jury actually retire.
    5. Dismissal, nonsuit and discontinuance, § 14

      —when request for voluntary nonsuit not too late. A request for a nonsuit in a jury trial does not come too late when made after the trial judge has directed a verdict and before the jury have done anything towards complying with the court’s direction, and before any verdict has been signed, announced or otherwise rendered.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.

      Felsenthal, Beckwith, Wilson & Spingler, for plaintiffs in error; Arthur C. Bachrach, of counsel.
    Adler & Lederer, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

The plaintiff, Joseph Daube, brought suit in the Municipal Court for $8,721.99, alleged to be due him from the firm of B. Kuppenheimer & Company for salary and commissions on the sale of merchandise for the defendants. There were two trials. Upon the first trial a verdict was returned in favor of the plaintiff for $6,221.91, which was set aside and a new trial granted. Thereupon the defendants paid into court the sum of $1,991.03, admitted by them to be due to the plaintiff, and filed an amended affidavit of merits as to the remainder of the plaintiff’s claim. A second trial was then had, covering several days’ time and making a most voluminous record. After all the evidence was heard, the defendants orally and in writing moved the court to instruct the jury to find the issues for the defendants. This occurred during the. forenoon session of July 15, 1913. The court heard arguments on the motion and took the same under advisement until two o’clock in the afternoon of the same day. At that time the court reconvened with all parties present and the jury in the jury box, whereupon the trial judge made the following statement: “In this case, gentlemen, I have come to the conclusion that it is incumbent upon the court to instruct the jury, and I do instruct the jury to assess the plaintiff’s damages in the sum of $1,991.03, and you will sign a verdict for that amount. Now, the parties are entitled to the court’s view or reasons for this action, and the court is entitled to state them so that the court .cannot be misunderstood.” The court then began stating his reasons, and was still stating such reasons when, at 2:45 p. m., plaintiff’s counsel interrupted and asked to be permitted to take a nonsuit. The record shows that after having made the preliminary announcement above quoted, and before he 'had begun stating his reasons, the trial judge handed a written form of verdict to the bailiff, but this form of verdict had not been signed by any of the jurors when the request for a nonsuit was made. The court allowed a nonsuit to be taken, and the suit was dismissed at the costs'of the plaintiff. After making a motion to vacate the judgment, which was denied, the defendants sued out this writ of error.

The brief of counsel for defendants begins as follows: “The question presented to this court by this record is as follows: Has a trial Judge the power to permit a plaintiff to take a nonsuit after the trial court has directed the jury to return a verdict against the plaintiff at the close of all the evidence, and after pen, ink and the verdict is handed to the jury, and where the request for a nonsuit is first made forty-five minutes after the court had directed a verdict, and while the court is stating his reasons for his action, but before the verdict is signed!”

In Howe v. Harroun, 17 Ill. 494, 497, where the practice of taking voluntary nonsuits was under consideration, the court said: “By the common law the plaintiff could take a nonsuit at any time before the verdict of the jury was announced to the court.”

In Berry v. Savage, 3 Ill. (2 Scam.) 261, it was said: “At common law, a plaintiff was permitted to take a. nonsuit, at any time before the verdict was rendered in court. (Wooster v. Burr, 2 Wend. [N. Y.] 295.) But by the 13th section of ‘an Act regulating the practice in the Supreme and Circuit Courts of this State, and for other purposes,? passed March 22, 1819, it is provided, that ‘every person desirous of suffering a nonsuit on trial, shall be barred therefrom, unless he do so before the jury retire from the bar.’ ”

The identical words of the Statute of 1819 were reenacted in the general revisions of 1845 and 1874. In 1907, this provision was amended to read as follows: “Every person desirous of suffering a non-suit shall be barred therefrom, unless he do so before the jury retire from the bar, or if the case is tried before the court without a jury, before the case is submitted for final decision.” Practice Act, sec. 70 (J. & A. ¶ 8607).

Section 30 of the Municipal Court Act (J. & A. ¶ 3342) is, in part, as follows: “Every person desirous of suffering a non-suit on trial shall be barred therefrom unless he do so before the jury retire from the bar, or before the court, in case of the trial by the court without a jury, states its finding.”

From these quotations it will be seen that the law in this State with reference to the right of a plaintiff to take a voluntary nonsuit in jury cases has not changed since the year 1819, and that this right is specifically recognized in the Municipal Court Act. The only change that has been made in the statutory .law with reference to nonsuits has been the addition in 1907 of a clause fixing the time when the right is barred in nonjury cases. In jury trials, the only limitation that has ever been imposed by1 statute in this State upon the common-law right of a plaintiff to dismiss his suit at any time before a verdict is returned is the provision that he must do so “before the jury retire from the bar. ’ ’ In the ordinary case of a trial by jury the jury do not “retire from the bar” until they have heard all the evidence, the arguments of counsel and the-instructions of the court; and in such case, it is the undoubted right of a plaintiff, under the statute, to dismiss his suit at his costs, after all the instructions have been given, provided he does so in the moment of time that usually intervenes between the 'reading of the last instruction and the actual retirement of the jury from the jury box to consider their verdict. In this case, the only instruction given was an oral instruction “to assess the plaintiff’s damages” at the amount admitted by the defendants to be due, which, in effect, amounted to a peremptory instruction to the jury to return a verdict in favor of the defendants as to the only matters in controversy. Upon the giving of such a peremptory instruction, the usual practice is to hand to the jury a prepared form of verdict, which is signed by the jury, under ordinary circumstances, without leaving the jury box. The real question in this case, therefore, is whether a-request for a nonsuit in a jury trial comes too late if made after the trial judge has directed a verdict, but before the jury has done anything towards complying with the court’s direction, and before any verdict has been signed, announced or otherwise rendered.

In Berry v. Savage, supra, after the jury had heard all the evidence, and had retired to consider their verdict, they returned into court and asked for instructions, as to the effect of certain evidence. The court gave such an instruction, and thereupon, after the instruction was so given, the plaintiff’s counsel asked for a nonsuit. The trial court refused this request, but the Supreme Court held that the right to a voluntary nonsuit was not barred under the statute until the jury retired the second time, because all the instructions had not been given until that time. The court said: “We are clearly of the opinion that the plaintiff had a right to submit to a nonsuit, when the instructions were given.”

In Howe v. Harroun, supra, it is said: “Both by the common law and by our statute, when the case is tried by a jury, the plaintiff, before he determines whether he will take a nonsuit, not only has an opportunity of knowing precisely what the testimony is upon which his rights depend and upon which the jury are to act, but he also hears the charge of the court to the jury so that he knows by what rules of law the jury are to be governed in deciding upon those facts. And all know, who have carefully observed the course of nisi prius trials, that it is as necessary to understand how the law is tote laid down to the jury as to know what are the facts, to enable a party judiciously to determine whether or not to take a nonsuit; while it may he conceded, with equal propriety, that the party should not know what is the opinion of the jury.” (Italics ours.)

Following this reasoning, it is manifest that a plaintiff cannot “hear the charge of the court” in any case .until the court had pronounced such charge, and hence is not in a position to “judiciously determine whether "or not to take a nonsuit” until after he has heard the charge given, i. e., spoken or read, to the jury. This being true, • it can make no difference, in principle, whether the instruction so given be peremptory or otherwise, for in either case the plaintiff cannot definitely know the views of the court as to the law of the case until the instruction is given to the jury.

In Brown v. Lawler, 130 Ill. App. 540, a motion was made by the defendant at the close of all the evidence to instruct the jury to find the defendant not guilty, and the defendant presented to the court a writteminstruetion to that effect to be given to the jury. After argument on the motion, the court sustained it and marked the instruction “given,” and arose to read the instruction to the jury, when the plaintiff, before the instruction had been read, moved for a nonsuit. The trial court denied the motion and instructed the jury to find the defendant not guilty, and afterwards entered judgment on the verdict. This judgment was reversed by the Appellate Court of this district upon the authority of Berry v. Savage, supra, and Howe v. Harroun, supra.

In Sroke v. R. W. McCready Cork Co., 156 Ill. App. 506, heard in the Appellate Court of this district upon a writ of error to the Municipal Court, the facts, as stated"in the opinion, were as follows: “When plaintiff rested his case defendant moved to instruct a verdiet in its favor. This motion the trial judge determined to allow and was about to instruct the jury to render its verdict in defendant’s favor when plaintiff, the jury still being in the jury box and not having left the bar of the court, moved for a nonsuit. This motion the court allowed and judgment for costs against plaintiff was accordingly entered. ’ ’ This judgment of the Municipal Court was affirmed upon the ground that section 30 of the Municipal Court Act (J. & A. ¶ 3342), which, it was pointed out, is the same as section 70 of the Practice Act (J. & A. ¶ 8607) so far as jury trials are concerned—permits a plaintiff to take a nonsuit at any time before the jury retires from the bar of the court. The court there said: “As early as Berry v. Savage, 2 Scam. 261, the court in construing this statute, gave it a broad interpretation by holding that plaintiff’s right to a nonsuit was not barred until the whole case, evidence and instructions, were with the jury, and that in the event of the jury returning to the bar of the court for further instructions, then before the jury again retired from the bar of the court the plaintiff might, if he saw fit, take a nonsuit.” (Italics ours.)'

In McMechen v. Chicago, B. & Q. Ry. Co., 166 Ill. App. 150, upon a trial before' a jury in the Circuit Court, the defendants moved for a peremptory instruction in their favor at the close of the plaintiff’s evidence. The jury were excused, the motion was fully argued on both sides, and, at the conclusion of the argument, the court announced that he would give the peremptory instruction. The jury were sent for, but before they returned to the box, plaintiff’s counsel asked leave to take a nonsuit. This request was denied, and the jury returned a verdict pursuant to the peremptory instruction of the court. Upon motion for a new trial, however, the verdict was set aside and the nonsuit allowed. This judgment of nonsuit was affirmed in the Appellate Court. In the opinion it is said:

“This question under the practice in this state is governed by statute. Under the statute before it was amended, as construed by our Supreme Court, in order to bar the plaintiff’s right to submit to a nonsuit, the jury must have the whole of the case down to and including the instructions of the court. If for any reason the jury retired from the bar without having thm whole of the case, the evidence, arguments' and the law as announced in the court’s instructions, the plaintiff’s right to a voluntary nonsuit was not taken away. This rule secured to a plaintiff not only the right of knowing the whole of the evidence in the case, but also of having the benefit of the arguments of opposite counsel, and the law of the case as given by the court, ■ so that he might judiciously determine whether or not to take a nonsuit in a jury trial.” (Italics ours.)

It is true that in the same opinion the court said that where a motion is made for a peremptory instruction in- a jury case, the plaintiff 'is entitled to take a non-suit “provided he elected to do so prior to the reading of the peremptory instruction to the jury.” But this proviso is a dictum, merely under the facts of that case, is not found in any of the cases cited by the learned writer of the opinion, ^.nd is inconsistent with the view expressed in the opinion that the plaintiff is entitled to know “the law of the case as given by the court, so that he might judiciously determine whether or not to take a nonsuit.” A trial judge may change his mind after he has announced his intention to give a peremptory instruction; and it is not error, under ordinary circumstances, to withdraw an instruction even after it has been read to the jury. Devine v. City of Chicago, 178 Ill. App. 39.

In practice, the decision of the court upon a motion for a peremptory instruction is usually announced to counsel before the instruction is, in fact, read or given to the jury; and this practice is certainly in accord with the principle announced in the cases above cited. In the present case, however, the court orally instructed the jury to find a verdict in the same sentence in which he announced his decision upon the motion for an instructed verdict, without giving the plaintiff’s counsel any opportunity whatever to move for a nonsuit until after the instruction'had been orally pronounced. It is conceded by defendant’s counsel that if the trial judge had not actually instructed the jury to sign a verdict, but had merely announced his intention to do so, and stated the reasons that prompted him so to do, the plaintiff’s right to a nonsuit would not have been barred if exercised before the formal instruction was pronounced. The right to take a non-suit is a substantial right, and ought not to be taken away without giving the plaintiff some opportunity to exercise that right. To hold that the plaintiff’s right was barred merely because the peremptory instruction was pronounced in the same breath with the announcement of the court’s decision upon the motion for an instructed verdict, would be, in effect, to deprive the plaintiff of any right of election, and, in our opinion, would give more effect to mere form than to substance. If, as was held in the cases above cited, the statute was intended to secure to a plaintiff not only the right of knowing the whole of the evidence in the case, but also of having the benefit of the arguments of opposite counsel and the law of the case as given by the court, so that he may (then) judiciously determine whether or not to take a nonsuit, then it follows that he cannot be deprived of that right until he has had an opportunity to make his election after he is advised of the court’s views as to the law of the case. The important and essential thing is that the plaintiff shall have an opportunity to take a nonsuit, if he so desires, after he has learned the views of the court as to the law, and before the jury actually retire; and it is unimportant and immaterial whether such knowledge is conveyed to him by a preliminary announcement of the court’s views upon the law of the case, or by an instruction to the jury.

It is contended by defendant’s counsel that where a peremptory instruction is given in a jury case, the actual signing of the verdict by the jury is a mere matter of form which may legally be dispensed with,, and therefore, it is said, the moment the peremptory instruction is given, the function of the jury ceases, and there is, in effect, a “retirement” of the jury from the bar. If this conclusion is sound, then, by the same reasoning, the actual reading of the peremptory instruction to the jury—or, in the Municipal Court, the oral utterance of such an instruction to the jury—is also a mere formality, which may legally be dispensed with, and the jury’s functions would cease as soon'as the court has reached a conclusion as to the legal questions raised by a motion for a directed verdict, favorable thereto, whether such conclusion be announced by the court or not. If this were the intention of the statute, it should read as follows: Every person desirous of suffering a nonsuit shall be barred therefrom unless he do so before the arguments are concluded, or before the court has announced any conclusion as to the law of the case. Such is not the reading of the statute.

For the reasons stated, the judgment of the Municipal Court will be aErmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    Martin Lavin, Administrator, Appellee, v. Wells Brothers Company, Appellant.
    Gen. No. 20,799.
    1. Appeal and error, § 38

      —what is extent of Appellate jurisdiction of Appellate Court. Under section 8 of the Appellate Court Act (J. & A. ¶ 2968) and section 91 of the Practice Act (J. & A. ¶ 8628) the jurisdiction of the Appellate Court in matters of appeal is confined to appeals from final judgments, orders or decrees entered “in any suit or proceeding at law or in chancery.”
    2. Courts, § 101

      —how jurisdiction of Superior Court is conferred. The authority of the Superior Court to hear and determine questions" under the Workmen’s Compensation Act of 1911 (J. & A. ff 5459) was conferred by section 10 of such Act.
    3. Workmen’s Compensation Act, § 12

      —what is nature of proceeding in Superior Court. A proceeding in the Superior Court as to the application of the Workmen’s Compensation Act, under section 10 of the Act of 1911 (J, & A. 115459), is sui generis—a creature of the statute—a summary proceeding in which facts and questions are “investigated” in any manner that may seem to be “reasonably necessary.” ®
    4. Workmen’s Compensation Act, § 12

      —what is nature of suit for compensation. A proceeding in the Superior Court under section 10 of the Workmen’s Compensation Act of 1911 (J. & A. If 5459) is not a suit conducted in accordance with either the forms and modes of procedure of either a suit at law or in chancery, does not involve any personal or property right that can be enforced at law or in equity and is not brought for the recovery of damages occasioned "by the infringement of a right.
    5. Appeal and error, § 316a

      —when Appellate Court is without jurisdiction to entertain appeal. The Appellate Court is without jurisdiction to entertain an appeal from the Superior Court where a decision is entered under section 10 of the Workmen’s Compensation Act of 1911 (J. & A. If 5459) allowing a certain sum to be paid for injuries.
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Appeal dismissed.
    Opinion filed October 6, 1915.
    F. J. Canty, for appellant; Zimmerman, Myers & Garrett, of counsel.
    Gorman, Pollack, Sullivan & Livingston, for appellee.

      Sec Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from an order of the Superior Court of Cook county, awarding to appellee, as administrator of the estate of Thomas Lavin, deceased, the sum of $3,500, to be paid in weekly instalments of $8.61 each, as the amount of compensation payable under the Workmen’s Compensation Act of 1911 (J. & A. ¶ 5449 et seq.), for injuries (resulting in death) sustained by said Thomas Lavin while in the employ of appellant. Appellant seeks to have the order or judgment reversed upon the alleged grounds that there is no evidence to show that the injury which caused the_ death of the deceased employee arose “out ofzand in the course of” his employment, that the evidence doés not show that the deceased left him surviving lineal or collateral heirs “to whose suppbrt he had contributed within five years previous to the time of his death,” that nonresident alien heirs are not entitled to the benefits of the Workmen’s Compensation Act of 1911, that there were sundry errors in the admission of evidence, and that the court erred in refusing to hold certain- propositions of law offered by appellant.

It will be noticed that all these contentions proceed upon the theory that the proceeding in the Superior Court, was an action or proceeding at law. A motion was heretofore made by appellee, which was reserved to the hearing, to dismiss the appeal upon the ground that the proceeding in the Superior Court was neither an action at law nor a suit in equity, but was purely a statutory proceeding, and that the statute does not provide for an appeal in such cases.

We do not find any provision in the Compensation Act of 1911 authorizing such an appeal. Hence, if this court has any jurisdiction of this appeal, it derives its jurisdiction either from the Appellate Court Act, or from the General Practice Act. Section 8 of the Appellate Court Act (J. & A. ¶ 2968) provides that this court shall “have jurisdiction of all matters of appeal or writs of error from the final judgments, orders or decrees of any of the circuit courts, or the superior court of Cook county, or county courts, or from the city courts in any suit or proceeding at law, or in chancery other than criminal cases, not misdemeanors, and cases involving a franchise or freehold or the validity of a statute.” Section 91 of the Practice Act (J. & A. ¶ 8628) provides that: “Appeals shall lie to and writs of error from the appellate or supreme courts, as may be allowed by law, to review the final judgments, orders or decrees of any of the circuit courts, the superior court of Cook county, the county courts or the city courts and other courts from which appeals and to which writs of error may be allowed by law, in any suit or proceeding at law or in chancery.”

In both of these sections, the jurisdiction of this court in matters of appeal is confined to appeals from final judgments, orders or decrees entered “in any suit or proceeding at law or in chancery.” The question is therefore presented, whether the proceeding in the Superior Court can be considered as “a suit or proceeding at law or in chancery,” within the meaning of those words as used in the statutes above mentioned.

In Grier v. Cable, 159 Ill. 29, it was said: “A suit or proceeding at law, as those terms are used in section 8 of the Appellate Court Act, must be understood to mean a suit or proceeding instituted and carried on in substantial conformity with the forms and modes prescribed by the common law.” This sentence was quoted with approval in Myers v. Newcomb Drainage Dist., 245 Ill. 140, where it was also said: “And on like principle a suit or proceeding in chancery must be understood to mean a suit or proceeding instituted and carried on in substantial conformity with the forms and modes prescribed by the rules of chancery." In Grier v. Cable, supra, it was held that section 8 of the Appellate Court Act does not give the Appellate Court jurisdiction of an appeal from a County Court in the matter of a contested claim against the estate of a deceased person, because such a proceeding is neither a suit nor proceeding at law or in chancery, but is purely a statutory proceeding; and in Myers v. Newcomb Drainage Dist., supra, the same reasoning was applied to a proceeding in the County Court for the organization of a drainage district. In the latter case, the court also held that section 91 of the Practice Act confers no right of appeal from or writ of error to the Appellate Court “in any case which is instituted and carried on in conformity with forms and modes not according to or recognized by the common law or rules of chancery but solely in accordance with statutory provisions.”

The authority of the Superior Court to hear and determine such questions as were raised in this proceeding, and to make the order complained of, was conferred by section 10 of the Compensation Act of 1911 (J. & A. ¶ 5459). That section provides, in substance, that “Any question of law or fact arising in regard to the application of this law in determining the compensation payable hereunder shall be determined either by agreement -of the parties or by arbitration as herein provided;” that if such questions cannot be settled by agreement, the employee and the employer shall each select “a disinterested party,” and a third “disinterested party” shall be appointed by the judge of the County Court, “or other court of competent jurisdiction,” of the county where the injured employee resided or worked at the time of his injury, and that the three persons so selected shall constitute a board of arbitrators “for the purpose of hearing and determining all such disputed questions of law or fact arising in regard to the application of this law in determining the compensation payable hereunder;” that it shall be the duty of both the employer and the employee to submit to such board of arbitrators all facts or evidence in their possession or under their control relating to such questions; that the board of arbitrators shall hear the evidence submitted, and ‘ ‘ shall have access to any books, papers or records of either the employer or the employe showing any facts which may be material to the questions before them;” and such board “shall be empowered to visit the place or plant where the accident occurred, to direct the injured employe to be examined by a regular practicing physician or surgeon, and to do all other acts reasonably necessary for a proper investigation of all matters in dispute; ’ ’ and that a copy of the report of the arbitrators shall be filed in the State Bureau of Labor Statistics, ‘ ‘ and shall be binding upon both the employer and the employe except for fraud and mistake: Provided, that either party to such arbitration shall have the right to appeal from such report or award of the arbitrators to the circuit court or the court that appointed the third arbitrator of the county where the injury occurred by filing a petition in such court within twenty days after the filing of the report of the arbitrators, and upon filing a good and sufficient bond, in the discretion of the court, and upon such appeal the questions in dispute shall be heard de novo, and either party may have k jury upon filing a written demand therefor with his petition.”

"What, then, is the nature of the proceeding in the Circuit, Superior or County Court, which comes before such court upon appeal from the decision of a board of arbitrators selected as provided by said section 10? By the terms of that section, the appeal is instituted “by filing a petition in such court” within twenty days after the report of the arbitrators is filed, and by filing a bond, if the court requires one to be filed. The statute does not provide for any other or further pleadings of any kind whatever. What such petition shall contain is not prescribed by the statute. Presumably, it should aver that an employee was injured in the course of his employment, that some question or questions of law or fact had arisen “in regard to the application” of the Compensation Act of 1911 “in determining the compensation payable thereunder” to the injured employee, upon which question or questions the parties had been unable to agree and had therefore submitted them to a board of arbitrators, as provided by said section 10, and that the petitioner was not satisfied with the decision of the arbitrators. It would not be necessary to set forth in such petition the terms of the arbitrators’ report, for the reason that section 10 provides that “upon such appeal the questions in dispute shall be heard de novo,” and hence it is immaterial, upon such appeal, how or in what manner the board of arbitrators may have disposed of such questions. Upon the filing of such a petition, the appeal is ready to be heard before the court, or before a jury, if a written demand be made therefor. What order or judgment, if any, the court shall enter after the questions in dispute shall have been heard and determined, the act does not prescribe. Since, however, the ultimate object of- the proceeding is to determine the amount of compensation, if any, payable under the provisions of the Compensation Act to the injured employee, it would seem that the proper order to be entered is one that finds and determines the amount of such compensation. In arriving at that result, and for the purpose of determining that amount, it is apparent from the provisions of section 10 that the court in which the proceeding is pending must have the same powers as the board of 'arbitrators, and, presumably, must perform the same duties, viz., to hear all the evidence submitted, including any books, papers or records of either party that show any fact which .may be material to the.questions in dispute, to “visit the place or plant where the accident occurred,” to direct the injured employee to be examined by a physician, and ‘‘to do all other acts reasonably necessary for a proper investigation of the matters in dispute.” Som'e of these functions are judicial; others are not. Such a proceeding does not conform to any of the recognized forms and modes of procedure of either an action at law or a suit in equity. It is sui generis— a creature of the statute—a summary proceeding in which facts and questions in dispute are “investigated” in any manner that may seem to be “reasonably necessary. ’ ’

In Brueggemann v. Young, 208 Ill. 181, it was held that the constitutional provision which gives to Circuit Courts “original jurisdiction of all causes in law and equity, and such appellate jurisdiction as is or may be provided by law,” includes the prosecution of every claim or demand in a court of justice which was known at the adoption of the constitution as “ an action at law or a suit in chancery,” and also all actions since provided for, in which personal or property rights are involved, which belong to the same class, or are of the same nature, as actions at law or in equity, such as eases “where the Legislature creates a new statutory remedy for the recovery of property or for damages occasioned by the infringement of a right.” But in the same case it was held that where the Legislature has conferred jurisdiction upon the Circuit Court to hear and determine matters which are neither actions at law nor suits in equity, as those terms are ordinarily understood, and do not involve personal or property rights such as are ordinarily enforced by an action at law or suit in equity, and are not for the recovery of damages occasioned by the infringement of a right, such a proceeding must be classified as a purely statutory proceeding. The proceeding in question in this case comes within this classification. It is not a suit conducted in accordance with the forms and modes of procedure of either a suit at law or in chancery; it does not involve any personal or property right that can be enforced by an action at law or in equity; and it was not brought “for the recovery of damages occasioned by the infringement of a right.” The compensation payable under the Workmen’s Compensation Act of 1911 cannot be considered as “damages occasioned by the infringement of any right.” It is an amount arbitrarily fixed by the statute, to be paid by the employer to an employee who is injured in' the course of his employment, whether such employee would have any right to recover damages from his employer for such injury or not. The statute does not compel either party to accept the provisions of the act. Such acceptance is a matter that is purely optional with them. But if they elect to come under its provisions, they waive their right to sue or defend as at common law.and consent to adjust their disputes, if any should arise, as to the amount of compensation that should be paid, by resort to arbitration with but one appeal from the decision of the arbitrators. In the brief of appellant’s counsel it is said: “The purpose of the Compensation Acts was to insure to the employee and dependents the certainty of some income during disability; and to the dependents, after the employee’s death, the certainty of some recoupment against the loss of support. It also was the purpose to protect the employer from expensive and vexatious law suits and to give him a standard by which, from experience or actuarial figures, he could estimate the percentage of probable loss from injuries in the business and charge it up so as to make the industry bear the loss.” (Italics ours.) Conceding that this is a fair statement of the purposes of the Compensation Act, it must be apparent to anyone that such purposes would be frustrated in many cases if the decision of the board of arbitrators upon the disputed questions could be reviewed, first, by a nisi prius court, then by this court, and finally by the Supreme Court. If this could be done, then the only practical result of such legislation in many cases would be to project both employer and employee into a new and untried field of litigation, fully as vexatious, as dilatory, and as expensive as that which the act was designed to avoid. We cannot believe that such was the legislative intention.

For" the reasons stated, we are of the opinion that this court is without jurisdiction to entertain this appeal, and the motion of appellee will therefore be sustained and the appeal dismissed at the costs of appellant.

Appeal dismissed.


text:
    William T. Warren, Appellant, v. Renault Freres Selling Branch, Appellee.
    Gen. No. 20,831.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 398

      —what not recoverable in action for breach of warranty. In a suit for damages for breach of warranty in the sale of an automobile, evidence that the defendant failed to overhaul the car without expense as agreed was incompetent, since there was no averment in the statement of claim of liability for failure to make repairs without cost and the plaintiff did not amend his pleading.

      Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Suit by William T. Warren against the Renault Freres Selling Branch, a New York corporation, to recover damages for breach of warranty in the sale of an automobile. A verdict was directed in favor of the defendant, and upon entry of judgment the plaintiff brought this appeal.
    William A. Jennings, for appellant.
    Burry, Johnstone & Peters, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

2. Municipal Court op Chicago, § 13 —what is extent of abolition of formalities in pleading. While the formalities of pleading have been abolished by statute, it is still the law in the Municipal Court that a party is. limited in his evidence to the claim he has made.

3. Sales, § 400 —what evidence not admissible in suit for breach of warranty. In a suit for damages for breach of warranty in the sale of an automobile, where the only warranty proved was that the car was guaranteed for life against' any defect in manufacture or workmanship, evidence that the automobile was defective in design and plan of construction, and that the life of an ordinary automobile was at least two years, was incompetent.

4. Sales, § 236 —what not warranty. Where an automobile which was sold was warranted against defects in manufacture, an agreement by the seller to overhaul the ear without cost after a trip was not part of the warranty but a special agreement.

5. Sales, § 263 —what is extent of warranty where automobile is sold. Where an automobile is warranted against any defect in “manufacture and workmanship,” the word “manufacture” evidently refers to the process of converting the raw materials into finished parts for use in the automobile, and the word “workmanship” evidently refers to the character of the work done by workmen in the factory.

6. Sales, § 400 —what evidence proper in suit for breach of warranty. In an action for damages for breach of warranty in the sale of an automobile, warranted against defects in manufacture and workmanship, evidence tending to prove that noise in the engine and other parts was due to improper fitting of the several parts was improperly excluded.

7. Sales, § 401 —token question for jury arises in suit for breach of warranty. In an action for damages for breach of warranty in the sale of an automobile, warranted against defects in manufacture, evidence tending to prove that the tires were defective warranted a submission to the jury of such question.

8. Parties, § 31 —what does not constitute change of parties. Where a suit was brought against “Renault Freres Selling Branch” and it appeared that there were two corporations of the same name, and the plaintiff filed an amended statement of claim adding the words, “Á New York corporation,” and procured another writ which was served upon the agent of the foreign corporation, there was no change of parties, but merely a wrong service in the first place, and the amendment did not change the name of the defendant or substitute a different defendant.


text:
    Emma Freels, Appellee, v. Hugo Freels, Appellant.
    Gen. No. 20,848.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoobty, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Suit for divorce by Emma Freels against Hugo Freels. The bill charged the defendant with cruelty and adultery, and alleged that he was a man of large means, with an income of $10,000 or $12,000 a year. The defendant, by his sworn answer to the bill, denied that he was guilty of the charges made against him, and denied that he was possessed of as much property as was stated in the bill of complaint. His answer admitted ownership of real estate valued at $16,000, exclusive of the incumbrances thereon, however. The defendant also filed a cross-bill, accusing his wife of adultery, and it was evident from the allegations of the original bill, the answer thereto and the cross-bill, that there was a very bitter quarrel between the two. Upon a preliminary hearing as to the question of alimony pendente lite, the Circuit Court ordered the defendant to pay $6 a week until the further order of the court, and $25 solicitor’s fees. The defendant failed to pay such allowance and a rule was entered to show cause why he should not be punished for contempt. At the hearing the defendant stated that he had four commissions for sales of real estate, aggregating $200, which would become due when the sales were consummated, but that he had no money and had borrowed $150 from his employer to meet expenses. Upon a second hearing, it appeared that one of the sales had been closed, but that his employer, instead of paying over defendant’s share of the commission, had kept it to apply upon the loan above mentioned. The court evidently thought that these facts indicated an intention on the defendant’s part to evade the order of the court, and again continued the hearing, with the statement that he must pay at least $25 on account of alimony, or he would be committed for contempt. When the next hearing came on, the defendant claimed that he had been unable to raise more than $10, which he offered to pay to the complainant. Thereupon the court adjudged him guilty of contempt of court and entered an order of commitment. This appeal followed.
    Abstract of the Decision.
    Contempt, § 70

      —when order of commitment is proper. Evidence held, to justify an order of commitment for failure to pay alimony, it appearing that the defendant could have raised the small amount involved and that the chancellor was lenient when he failed to comply with the court’s order.
    T. F. Monahan, for appellant.
    No appearance for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.


text:
    H. and A. Israelstam, trading as Grant Works Fair, Appellees, v. United States Casualty Company, Appellant.
    Gen. No. 20,862.
    1. Appeal and error, § 199

      —what is extent of jurisdiction of Appellate Court. The Appellate Court has no authority to declare any act of the Legislature unconstitutional and void.
    2. Appeal and error, § 624

      —what cause not transferable. An appeal from a judgment entered in a fourth-class case in the Municipal Court cannot be transferred to the Supreme Court.
    3. Appeal and error, § 2

      —what is nature of right of appeal. The right of appeal is strictly statutory and can only be prosecuted when and in the manner authorized by statute.

      4. Appeal and error, § 6

      —what is nature of writ of error. A writ of error is regarded, as a writ of right, requiring no statutory authorization to maize it available.
    5. Appeal and error, § 38

      —what is purpose of statute giving Appellate Court jurisdiction. The main purpose of section 8 of the Appellate Court Act (J. & A. If 2968) was to give to the Appellate Courts jurisdiction over a certain class of cases of which the Supreme Court, prior to 1877, had jurisdiction, and it was not intended to confer any right of appeal in any case where that right did not already exist.
    6. Appeal and error, § 38

      —what statutes referred to appeals when Appellate Court was given jurisdiction. At the time of the passage of the Appellate Court Act, the only “then existing law” that conferred any right of appeal was section 67 of the Practice Act of 1872, now section 91 of the Practice Act (J. & A. If 8628).
    7. Municipal Court of Chicago, § 10

      —what is nature of practice. The jurisdiction and practice of the Municipal Court are essentially different from the jurisdiction and practice of city courts.
    8. Appeal and error,'§ 38

      —what is effect of statute as to appeals to Appellate Court. - The clause in section 8 of the Appellate Court Act (J. & A. If 2968), authorizing appeals to the Appellate Court from the judgments of city courts, was not intended to refer to any city court thereafter created unléss such court when organized should be substantially of the same class or grade as the city courts then in existence.
    9. Municipal Court of Chicago, §22

      —when appeal does not lie. Neither section 8 of the Appellate Court Act (J. & A. If 2968) nor any other statute gives any right of appeal to the Appellate Court from the judgments of the Municipal Court in fourth-class eases.
    Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Appeal dismissed.
    Opinion filed October 6, 1915.
    Moses, Rosenthal & Kennedy, for appellant; Walter Bachrach, of counsel.
    Rose, Symmes & Kirkland and John L. Fogle, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

Appellees brought suit in the Municipal Court against appellant upon a burglary-insurance policy, claiming that merchandise valued at $999, covered by such insurance policy, had been stolen from their dry goods store. The suit was brought as a fourth-class case in contract. Upon a trial before the court without a jury, appellees recovered a judgment for $839.16, whereupon appellant prayed for and was allowed an appeal to this court upon filing a bond for $1,200, which was filed and approved by the trial court. After the filing of the transcript- of the record in this court, appellees moved to dismiss the appeal upon the ground that there is no statute authorizing an appeal (as distinguished from a writ of error) in such cases.

In support of the motion, appellees cite section 23 of the Municipal Court Act (J. & A. ¶ 3335) which, so far as it bears upon the present motion, reads as follows: “That the final orders and judgments of the Municipal Court in cases of the fourth class * * * shall be reviewed by writ of error only.” Appellees claim that this is the only provision of any statute in tfiis State which authorizes any court to review the final judgments of the Municipal Court in fourth-class cases, and therefore contend that this court is without jurisdiction to entertain the present appeal. To this, appellant replies that the right of appeal to this court from the final judgments of the Municipal Courts in such eases is not dependent upon the Municipal Court Act, but is given by section 8 of the Appellate Court Act (J. & A. ¶ 2968), and reaffirmed by sections 91 and 118 of the present Practice Act (J. & A. ¶ 8628, 8655), and that if the above quoted provision of section 23 of the Municipal Court Act is to be given its literal meaning, it violates section 29 of article VI of the Constitution by destroying the uniform operation of the laws relating to the jurisdiction of this court, and is therefore void and of no effect.

It has been repeatedly held that this court has no authority to declare any act of the Legislature unconstitutional and void. Where the validity of a statute is questioned for the first time in this court, we must take the law as we find it upon the statute books, unless it is a proper case to be transferred to the Supreme Court for decision, or unless the Supreme Court has already declared the statute in question unconstitutional, in which latter case it is our duty to follow the law as laid down by the Supreme Court. If an appeal lies in this case to any court, it was properly brought to this court. Hence, it cannot be transferred to the Supreme Court. Nor has the particular portion of section 23 above quoted ever been held to be unconstitutional, although most of the rest of that section has been. If, therefore, it be true that there is no statute authorizing an appeal to this court in such eases, then it is our duty, as we view it, to give effect to that portion of section 23 above quoted, even if we should be of the opinion that it is unconstitutional.

The right of appeal is strictly a statutory one. It has no existence apart from the statute, and can only be prosecuted when and in the manner authorized by statute. Tedrick v. Wells, 152 Ill. 214, 217; Haines v. People, 97 Ill. 161; Hesing v. Attorney General, 104 Ill. 292, 295; Steger v. Steger, 165 Ill. 579, 581; Keokuk & H. Bridge Co. v. People, 185 Ill. 276.

A writ of error, on the other hand, is regarded in this State as a writ of right, requiring no statutory authorization to make it available. In Haines v. People, 97 Ill. 161, our Supreme Court, after a review of the decisions in this State, upon the subject of the right to sue out writs of error, said: “From this review of the authorities it is clear that a writ of error lies in this State from either this court or the Appellate Court to all inferior courts of record, for the purpose of reviewing their final determinations in all cases involving property rights or personal liberty, where no appeal is given from such inferior court of record to some intermediate court or to this court. And furthermore, that this right exists independently of any statutory or constitutional provisions, by force of the common law, in all cases in which the jurisdiction of such inferior court is exercised according to the course of the common law. And in the latter class of cases the writ lies to the Circuit Courts, whether an appeal is given or not. Where an appeal is given it is to be regarded as merely cumulative.”

Keeping clearly in mind this distinction between the right of appeal and the right to sue out a writ of error, viz., that the former is purely a statutory right, while the latter exists independently of the statutes, it manifestly becomes necessary to examine the several statutes purporting to give a right of appeal to this court—since that is the right claimed in this case—in order to ascertain to what extent and in what cases that right has been granted in this State. For a clearer understanding of such statutes, a brief reference to certain constitutional provisions is also necessary. These constitutional provisions are contained in article VI of the Constitution of 1870. Section 1 of that article provides that the judicial powers of the State, except as by that article is otherwise provided, shall be vested in one Supreme Court, Circuit Courts, County Courts, justices of the peace, police magistrates, “and such courts as may be created by law in and for cities and incorporated towns.” Section 2 provides that thg Supreme Court shall have original jurisdiction in cases relating to the revenue,' in mandamus and habeas corpus, “and appellate jurisdiction in all other cases.” Section 11 provides that after the year 1874, Appellate Courts of uniform organization and jurisdiction may be created in, districts formed for that purpose, “to which such appeals and writs of error as the general assembly may provide, may be prosecuted from Circuit and other courts.” Section 12 provides that the Circuit Courts shall have original jurisdiction “of all causes in law and equity.”

In pursuance of the provisions above mentioned contained in section 11 of article VI of the Constitution, the Legislature passed an act in 1877 establishing Appellate Courts. Section 8 of that Act (J. & A. ¶ 2968), as originally enacted, so far as it affects the present contentions, was as follows: “The said Appellate Courts created by this act shall exercise appellate jurisdiction only, and have jurisdiction of all matters of appeal, or writs of error from the final judgments, orders or decrees of any of the circuit courts, or the Superior Court of Cook County, or from the city courts in any suit or proceeding at law or in chancery, other than criminal cases, and cases involving a franchise or freehold or the validity bf a statute. Appeals and writs of error shall lie from the final orders, judgments or decrees of the circuit and city courts, and from the Superior Court of Cook county directly to the Supreme court, in all criminal cases and in cases involving a franchise or freehold or the validity of a statute.”

It is apparent from this language that the main purpose of section 8 of the Appellate Court Act was to give to the Appellate Courts jurisdiction over a certain class of cases of which the Supreme Court, prior to 1877, had jurisdiction; that is, to divide the jurisdiction then exercised solely by the Supreme Court so that certain cases formerly reviewable by the Supreme Court could thereafter be reviewed by the Appellate Court. It was not intended by that section to confer any right of appeal in any case where that right did not already exist, but merely to prescribe what appeals and what writs of error, prosecuted under laws then existing, should be heard by the Appellate Court instead of by the Supreme Court. That such was the purpose and effect of that section was declared by the Supreme Court in the case of Ingraham v. People, 94 Ill. 428. In that case an appeal was taken to the Supreme Court in a criminal case, and the question arose whether section 8 of the Appellate Court Act or section 88 of the Practice Act (J. & A. ¶ 8625) then in force (which contained similar language) authorized an appeal in a criminal case. The Supreme Court dismissed the appeal, saying: “We do not construe those sections as giving a right of appeal in a criminal case, but only as allowing appeals and writs of error to this court in those several enumerated cases, according as appeals and writs of error lay in said cases, respectively, under the then existing laws. * * * They were provisions merely regulating appeals and writs of error as between the Appellate and Supreme Courts, prescribing to which particular court they were to be taken. It was not the purpose to give a new right of appeal in any case in which an appeal had not before been given.” (Italics ours.)

What, then, were “the existing laws” upon the subject of appeals that were in force in 1877?

Section 67 of the Practice Act of 1872 provided that “Appeals from all circuit courts and from the superior court of Cook county, may be taken to the supreme court from all final judgments, decrees and orders: Provided, such appeals shall be prayed for and allowed at the term at which the judgment, decree- or order was rendered; And, provided, the party praying for such appeal shall, within such time, not less than twenty days, as shall be limited by the court, give, and file in the office of the clerk of the court from which the appeal is prayed, bond, in a reasonable amount to secure the adverse party, to be fixed by the court, with sufficient security to be approved by the court." (Rev. St. 1874, ch. 110, sec. 67.)

In 1874, an act was passed entitled: “An act in relation to courts of record in cities" (Rev. St. 1874, ch. 37, p. 345), which, with some changes that are not pertinent to the present inquiry, was re-enacted in 1901 (Hurd’s St. 1912, ch. 37, p. 704, J. & A. ¶ 3289 et seq.). Section 1 of that act provided that such courts should have “concurrent jurisdiction with the circuit courts within the city in which the same may be, in all civil cases * * * and the course of proceedings and practice in such courts shall be the same as in the Circuit Courts, so far as may be.” Section 18 (which is the same as section 18 of the present City Court Act) provided that “appeals may be taken and writs of error prosecuted from city courts to the Supreme Court the same as in like cases from circuit courts."

By an amendment passed in 1877 to the Practice Act of 1872, the first paragraph of section 67 of that Act was made to read as follows: “Appeals from and writs of error to all Circuit Courts, the Superior Court of Cook County and city courts, and from other courts from which such appeals and writs of error may he allowed hy law, may be taken to the Appellate Courts from all final judgments, orders and decrees, except as hereinafter stated.” The exception thus referred to was contained in section 88 of the same Act, the first paragraph of which, as amended by the Act of 1877, was as follows: “Appeals from and writs of error to Circuit Courts, and the superior courts of Cook county, and city courts, in all criminal cases and cases in which a franchise or freehold, or the validity of a statute is involved, shall be taken directly to the Supreme Court in case the party appealing or prosecuting such writ of error shall so elect, excepting in cases of chancery.” This portion of said section 88 was further amended in 1879, so as to read as follows: “Appeals from and writs of,error to circuit courts, the superior court of Cook county, the criminal court of Cook county, county courts and city courts in all criminal cases, below the grade of felony, shall be taken directly to the appellate court, and in all criminal cases above the grade of misdemeanors and cases in which a franchise or freehold or the validity of a statute or construction of the constitution is involved, and in all cases relating to revenue or in which the State is interested as a party or otherwise, shall he taken directly to the Supreme Court.” It was this section, as thus amended, that was before the Supreme Court in the Ingraham case, supra, in which case, as above stated, it was held that neither section 8 of the Appellate Court Act nor said section 88, as amended in 1879, was intended to give any new right of appeal where none existed before, but both sections were intended merely to regulate such appeals and writs of error as could be prosecuted “under the then existing laws.” Said section 88, with certain changes not affecting the present question, was re-enacted in the revision of the Practice Act in 1907, which is now in force.

In addition to the right of appeal conferred by section 67 of the Practice Act of 1872, as amended in 1877, above quoted, there were also in force at the time the Appellate Court Act was passed, divers special statutory provisions authorizing appeals to the Supreme Court in certain special proceedings (such as condemnation proceedings, drainagé cases, attachment cases, forcible detainer cases, special assessment proceedings, and others), which it is unnecessary to set forth in this opinion, as none of such special provisions has any bearing upon the question here involved, further than to show that it has always been the practice of the Legislature to grant the right of appeal in express terms whenever that right, as distinguished from the common-law right to prosecute a writ of error, was intended to be given.

In 1887, section 8 of the Appellate Court Act was amended by inserting therein after the words “Superior. Court of Cook County,” the words “or county courts,” and after the words “other than criminal cases,” the words “not misdemeanors.” The addition of these words is of no importance in this inquiry, as the right of appeal from the judgments of county courts, and in cases of misdemeanors, is not here involved.

In 1907, the Practice Act of 1872 was revised, and by that revision, section 67 of the Act of 1872 was rewritten and is now embodied in section 91 of the present Practice Act. Said section 91 is as follows: “Appeals shall lie to and writs of error from the appellate or supreme courts as may be allowed by law, to review the final judgments, orders or decrees of any of the circuit courts, the superior court of Cook county, the county courts or the city courts and other courts from which appeals and to which writs of error may be allowed by law, in any suit or proceeding at law or in chancery. Appeals or writs of error in this section allowed shall be subject to the limitations by this Act provided and to the conditions imposed by law” (5 J. & A. ¶ 8628). This language does not differ, in any essential particular, from that of section 67 of the Practice Act of 1872, as amended in 1877. Section 88 of the prior Practice Act became section 118 in the revision of 1907 (J. & A. ¶ 8625), and that part of that section which is material to the question before us is identical with section 88 as amended in 1879, herein-above quoted.

In Damon v. Barker, 239 Ill. 637, it was held that section 118 of the present Practice Act does not give any right of appeal in any case, but merely directs to what court appeals shall be prosecuted when authorized by other sections of the statute, thereby following the previous decision, as to that section in Ingraham v. People, supra. This ruling was followed in Myers v. Newcomb Drainage Dist., 245 Ill. 140. In the opinion filed in the Damon case, supra, the Supreme Court used some language from which it might appear that section 91 of the Practice Act of 1907 is the only statute now in force giving the right of appeal, but in the latter case, this language was qualified in the following manner, viz.: “The right of appeal or writ of error, in so far as the right is granted by the Practice Act, is conferred by section 91 of the act.”

From this review of the statutory provisions that were in force at the time the Appellate Court Act was passed, it will appear that the only “then existing law” that conferred any right of appeal, as distinguished from the right to sue out a writ of error, to review the final judgments of inferior courts in ordinary actions at law, was the provision in section 67 of the Practice Act of 1872, as amended in 1877, above quoted, and which has now become section 91 of the present Practice Act. By that section, the right of appeal was and is limited to appeals from the final judgments, orders and decrees of Circuit Courts, the Superior Court of Cook county, city courts and “other courts from which such appeals may be allowed by law.”

Appellant does not claim that there is or ever was a statute which, in express terms, purported to give any right of appeal to this court from the judgments of the Municipal Court in fourth-class cases, but contends that the words “city court,” as used in the acts above mentioned, and especially as used in section 8 of the Appellate Court Act, includes the Municipal Court of Chicago. It is true that it has been held that the Municipal Court of Chicago is one of the courts which section 1 of article VI of the Constitution provides may be created by law in and for cities and incorporated towns (People v. Olson, 245 Ill. 288). But the Municipal Court was not organized under the City Court Act above mentioned, and the jurisdiction and practice of the Municipal Court are essentially different from the jurisdiction and practice of city courts organized under the City Court Act. Manifestly, if, as was held in Ingraham v. People, supra, section 8 of the Appellate Court Act was not intended to give any right of appeal that had not been given before that act was passed, then the clause in that section which authorizes appeals to this court from the judgments of city courts could not have been intended to refer to any city court thereafter created, unless such court, when organized, should be substantially of the same class or grade as the city courts then in existence. That the Municipal Court of Chicago is wholly unlike the city courts referred to in section 8 of the Appellate Court seéms too clear for argument."

In Lott v. Davis, 264 Ill. 272, it was said: “If the Municipal Court is considered in its entirety it is impossible to assign to it a place identical with the grade or class of any other court which now exists ,or ever has existed. The court goes under the generic name of a city court, but it belongs to a specific class different from the city courts created under the general City Court Act, and is created, not as a part of the judicial department of the State at large, but as a local court of the city for the purpose of administering the law within the city.” In the same case, the similarity that exists between the jurisdiction and practice of the Municipal Court in fourth-class cases and the jurisdiction and practice that formerly .obtained before the police magistrates and justices of the peace of the city of Chicago is pointed out, and it was held, for that reason, that in the exercise of its jurisdiction in fourth-class cases, the Municipal Court of Chicago is not a court of the same class or grade as the Circuit Court. By the same reasoning it necessarily follows that in the exercise of its jurisdiction in fourth-class cases, the Municipal Court is not a court of the same class or grade as city courts organized under the general City Court Act; for the City Court Act provides that city courts organized thereunder shall have “concurrent jurisdiction with the ‘Circuit Courts” within the cities in which they are organized, and that the practice in such courts shall be the same as in the Circuit Courts.

We presume that no one would contend that an appeal from a judgment of a police magistrate is in the same category or must be treated by the Legislature in the same manner as an appeal from a judgment of a city court in a similar ease, even though the amount involved in each was identical; nor would it be seriously contended, we think, that an appeal from a judgment of a justice of the peace in an action ex contractu could be taken to the Appellate Court under any law that has ever been passed in this State, even though the right of appeal to this court from the final judgments of a Circuit Court or city court in precisely the same kind of a case is conferred by existing laws. The character of the jurisdiction that is vested in the Municipal Court of Chicago in fourth-class cases, and the manner in which such cases are instituted and carried on in that court, would seem to be quite as sufficient a reason for placing such cases in a class by themselves, so far as the right of appeal to this court is concerned, as the manner in which the same kind of suits were formerly instituted and carried on before the justices of the peace of the city of Chicago, whose jurisdiction is now exercised by the Municipal Court. If the Legislature had seen fit to authorize appeals from the judgments of the Municipal Court in fourth-class cases to the Circuit Court, it would have dealt with such cases in precisely the same manner as it had previously dealt with cases of the same character in the justices ’ courts. It saw fit, however, to provide that the final judgments of that court in such cases may be reviewed by writ of error from this court.

Since, as we think we have shown above, the only statutes which authorize appeals to this court from the judgments of city courts refer to courts whose jurisdiction and practice are radically different from that of the Municipal Court of Chicago, it would seem to follow that such statutes can have no proper application to appeals from the judgments of the Municipal Court of Chicago in fourth-class cases; and since there are no such cases in city courts organized under the general City Court Act as fourth-class cases, that is, as the cases so denominated in the Municipal Court of Chicago are instituted and carried on in city courts in an entirely different manner, we are at a loss to see how the mere fact that the Legislature has seen fit to recognize this distinction, by providing that the judgments of the Municipal Court in fourth-class cases shall be reviewed in this court by writ of error only, affects the uniformity of the jurisdiction and practice of this court.

Our conclusion upon the whole question presented by this motion is that neither section 8 of the Appellate Court Act, nor any other statute in this State in force at this time, gives any right of appeal to this court from the judgments of the Municipal Court in fourth-class cases. The motion to dismiss the appeal will therefore be allowed.

'Appeal dismissed.


text:
    Catherine Bosco by Angelo Bosco, Appellee, v. Boston Store of Chicago, Appellant.
    Gen. No. 20,884.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Action by Catherine Bosco, a minor, by her next friend, Angelo Bosco, plaintiff, against the Boston Store of Chicago, a corporation, defendant, in the Superior Court of Cook county, to recover for personal injuries caused by being struck by an auto-truck. From, a judgment for plaintiff for $12,000, defendant appeals.
    The suit was originally brought against the Boston Store and the Grabowsky Power Wagon Company, a corporation. The declaration charged that at the time of the accident the Grabowsky Power Wagon Company, a dealer in auto-trucks, was operating, driving and managing certain auto-trucks along the public streets of the city of Chicago “in conjunction with the defendant Boston Store”; that while the plaintiff, a girl seven years old, was crossing Madison street at the intersection of Paulina street, and was in the exercise of such care and caution for her own safety as might be expected of a child of her tender years, the defendants so negligently drove one of their auto-trucks that through their negligence the auto-truck ran into the plaintiff and threw her to the ground, causing divers serious permanent injuries. To this declaration the Boston Store filed a plea of not guilty, and three special pleas, which aver that at the time of the accident, the Boston Store did not own, manage, operate or drive the auto-truck in question, either in conjunction with the Grabowsky Power Wagon Company or otherwise, and aver that the auto-truck in question was, at the time and place of the accident, owned, operated, driven and managed by the Grabowsky Powér Wagon Company. Upon the trial,' the plaintiff entered a nonsuit as to the Grabowsky Power Wagon Company, and the cause proceeded as against the Boston Store alone.
    Moses, Rosenthal & Kennedy, for appellant; Hamilton Moses and Henry Jackson Darby, of counsel.
    Miles J. Devine, for appellee; John T. Murray, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

Abstract of the Decision.

1. Negligence, § 186 —when evidence sufficient to make prima facie case. In an action to recover for personal injuries caused by being struck by an auto-truck alleged to be owned and controlled by defendant, where defendant’s pleadings put in issue the fact of such ownership and control by it, such possession and control by defendant held proved prima facie by evidence showing that the name of defendant was painted on the outside of such truck.

2. Negligence, § 165 —when evidence admissible to show ownership of vehicle causing injury. In an action to recover for personal injuries caused by being struck by an auto-truck, where defendant’s pleadings put in issue the ownership and control of the truck and the control of the servant operating it at the time of the accident, held error to exclude evidence that such truck was in fact not owned and operated by defendant at the time of the accident, and was owned and operated by another under contract with defendant, and that the servant operating such truck at such time was the servant of such other person, as it was competent for defendant to show such facts as tending to sustain its pleadings and exonerate it from liability.


text:
    Ella A. Pixley, Appellant, v. Illinois Commercial Men’s Association, Appellee.
    Gen. No. 20,891.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Action by Ella A. Pixley, plaintiff, against the Illinois Commercial Men’s Association, defendant, in the Municipal Court of Chicago, to recover on a certificate of insurance wherein plaintiff was designated as beneficiary.
    The essential facts are undisputed. It appears that prior to his death, insured was subject to severe attacks of headache, and on two or three occasions, many years before his death, he had taken morphine to relieve the pain; that on Friday, September 22, 1911, he told a woman servant at his apartment that he had not been well, and was nervous; that the following morning he appeared at the apartment and said to the woman who opened the door for him, “I am awfully sick, and want to come in and go to bed”; that he also said'that he did not want a doctor, but merely wanted to rest; that he went into his bedroom and shut the door, and about noon, he sent word to his wife “that he was at the apartment being taken care of, and for her not to worry”; that he ate nothing that day; that about two o’clock in the afternoon, one of his servants went to his bedroom door and asked him if he wanted anything, receiving a negative reply; that he was then standing, holding a bottle containing small white tablets; that he had two or three of the tablets in his hand, and was counting out others; that in reply to an inquiry as to what he was taking, he said it was “something to ease the pain” in his head, “some medicine he got at the drugstore”; that he asked for a glass of water, and handed the bottle containing the tablets to the woman, who took it from the room and left it in a bedroom adjoining, where it was found the next day; that about half an hour later, he became nauseated, and went into the bathroom, but returned to his bedroom a few minutes later; that about six o’clock in the evening, he came out, partly dressed, went to the kitchen, where he chatted with the woman for an hour and a half; that he said he felt better, and thought he would go to his farm; that later he came out of his bedroom dressed and with his hat and overcoat on, smoking a cigar; that he sat down and talked for another half hour, and then, saying that he felt “shaky,” returned to his bedroom, undressed and went to bed; that during the night he grew worse, and in the morning two physicians were called, but they were unable to arouse him, and he died about eleven o’clock Sunday evening; that an autopsy was had, and the doctors making it certified “that the findings were consistent with morphine poisoning,” and “that no other cause of death was found.” It was stipulated in the record, however, “that the deceased died from án overdose of morphine.”
    Abstract of the Decision.
    1. Insurance, § 745

      —when by-laws part of contract. In an action to recover on a policy of insurance on the life of one who died from an overdose of morphine self-administered, where the policy makes the by-laws and application a part of the contract, it is not only necessary that the beneficiary show that the death was “accidental,” as provided by the terms of the policy, but also that it fell within the provision of the by-laws limiting the insurer’s liability to death caused by “external, violent or accidental means,” and not within the exceptions in the by-laws and application relieving the insurer from liability, where death was caused by the “intentional or unintentional taking of poison,” or while deceased was under the influence of any narcotic.
    2. Insurance, § 419

      —what agency of accidental death. A death which is the result of an accident, or is unnatural implies an external and violent agency as its cause.
    3. Insurance, § 419

      —what constitutes accidental death. An accidental death is one which is undesigned or unintended, the word “accidental” being, in such connection, the antithesis of “intentional.”
    4. Insurance, § 419

      —when death accidental. In an action to recover on a policy of insurance which provided for the payment of an indemnity upon the “accidental death” of insured, where the evidence shows that insured died from an overdose of morphine self-administered, that morphine in small quantities is not poisonous but only when taken in excess, and that his taking of the overdose was unintentional, held that the death was “accidental.”

      From a judgment for defendant, plaintiff appeals.
    Bartlett & Chamberlain and Beach & Beach, for appellant.
    Ryan & Condon, for appellee; Irvin I. Livingston, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

5. Insurance, § 419 —when death by poison is by accidental means. Where a certificate of insurance provided for payment of a prescribed indemnity in case of death caused by “external, violent and accidental means,” held that a death due to an overdose of morphine, taken by insured without intent to cause death thereby, was within the meaning of the words quoted.

6. Insurance, § 419 —when evidence sufficient to show accidental death. Evidence in an action to recover on an insurance policy on the life of one who died from an overdose of morphine self-administered, examined and held to show that deceased did not intentionally take a poisonous amount, but either acted in ignorance of the effects of morphine in general, or because he did not know that such an amount would affect him injuriously.

7. Insurance, § 419 —when death by morphine defeats recovery. In an action to recover on a certificate of insurance, where it was stipulated that insured’s death was due to “an overdose of morphine," and where it appeared that morphine was a narcotic, an overdose of which was poisonous, and that at the time of death insured was under the influence thereof, held that such stipulation precluded plaintiff from recovering, it appearing that the application for such insurance, signed by plaintiff, expressly excepted, as grounds of liability of defendant thereunder, such injuries as insured might receive “while under the influence of * * * narcotics, or in consequence thereof, * * * nor from intentional or unintentional taking of poison,” such stipulation being necessarily construed as an admission that insured’s death was due to a poisonous dose of morphine.


text:
    Samuel Rothbart, Appellee, v. Marshall Field & Company, Appellant.
    Gen. No. 20,905.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Louis Bernreuter, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Action by Samuel Rothbart against Marshall Field & Company to recover damages for personal injuries. At the trial the defendant moved for a directed verdict at the close of the plaintiffs evidence, and also at the close of all the evidence. Both motions were denied and proper exceptions taken. . A verdict for five hundred dollars was rendered and judgment being entered thereon, defendant appeals.
    Abstract of the Decision.
    1. Appeal and error, § 1392

      —what question is presented 5y assignment of error. An assignment of error in denying a motion for a directed verdict presents the question whether there is in the record any evidence fairly tending to prove the material averments of the declaration.
    2. Trial, § 192

      —when denial of directed verdict is error. In an action for personal injuries sustained by a servant while riding on top of a heavily loaded wagon, where the declaration alleged that the plaintiff was struck by a viaduct, held that there was no evidence fairly tending to support such declaration, and a denial of a motion to find a verdict for the defendant was error.
    3. Master and servant, § 665

      —when admission of evidence as to cause of injury is erroneous. In an action for personal injuries sustained by a servant while riding on top of a heavily loaded wagon, a denial of a motion to exclude statements of the plaintiff that he was hit by a viaduct was error, when it appeared that such statements were mere inferences or conclusions.
    4. Master and servant, § 721

      —what is question for jury. The question of the relation of fellow-servants is ordinarily for the jury.
    Frank P. Leffingwell and Robert J. Folonie, for appellant.
    A. H. Ranes and H. Blaisdell, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.


text:
    In re Estate of Lizzie La Page, on appeal of John La Page, Appellant, v. John F. Devine, Administrator, et al., Appellees.
    Gen. No. 20,916.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Adelob J. Petit, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Appeal from an order of distribution in the matter of the estate of Lizzie La Page, deceased, by John La Page, the defendant being John F. Devine, administrator of the estate of such Lizzie La Page.
    The cause in which such decree was entered had been heard by Judge Petit of the Circuit Court, in November, 1913, and at the conclusion of the hearing he took the case under advisement, saying that when he had reached a conclusion, he would notify counsel of that fact. At some time between one and three o’clock in the afternoon of April 17,1914, Judge Petit’s minute clerk, by direction of the judge, telephoned to the offices of counsel on both sides that the court would render a decision on the following day, Saturday; and before four o’clock of the same day, counsel for defendants caused a notice, to the effect that at ten o’clock on Saturday they would ask the court to enter findings and judgment in favor of defendants, and a copy of the findings and decree, which were after-wards entered, to be served upon appellant’s counsel, Herman Welk, by delivering the same to a stenographer employed by him and then in charge of his office in Chicago. It appears, however, that Mr. Welk did not personally receive word of either the telephone communication of the minute clerk or the formal notice given by defendants’ counsel until the Monday following (after the term had expired), for the reason that before either of such notices was given on Friday afternoon he had been called to his home in Lemont by the illness of his wife, and remained there all Saturday and Sunday. The telephone message was received at his office on Friday afternoon by a real estate broker who had an office in the same suite, and the other notice was received, as above stated, by Mr. Welk’s stenographer; but so far as the record shows, neither the real estate broker nor the stenographer made any attempt to notify Mr. Welk that such notices had come to them, until he returned to his office on Monday, April 20,1914. Thereupon he made a motion to set aside and vacate the decree entered on April 18, 1914, filing with his notice of such motion the affidavits of himself and of the stenographer as to the facts of which they had knowledge. When this motion to vacate was called up before Judge Petit, on April 21, 1914, oral statements on both sides were evidently made by counsel, and also by the court, and the clerk of the court, as to what had occured on Friday and Saturday. The bill of exceptions shows that after the affidavits and oral statements of defendants’ counsel had been heard, the court ordered that such oral statements ‘ ‘ should be incorporated in affidavits and presented afterwards nunc pro tunc as of April 21,1914, to form a part of the bill of exceptions” (which was in fact done, and the same filed on May 15, 1914), and then overruled the motion to vacate the decree. From this ruling, or order, John La Page appeals.
    Herman Welk and Irwin & Stampfli, for appellant; Frederic C. Ellis, Charles C. Spencer and Jesse Wilcox, of counsel.
    F. F. & J. V. Norcross and Adams & Winnen, for appellees; McDuffee & Keenan and William Mulvaney, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

Abstract of the Decision.

1. Courts, § 31 —what is effect of rule of court. A rule of the Circuit Court requiring notice of a motion to be served upon the opposite party or his attorney of record, “before 4 p. m. of the business day next preceding the day mentioned in the notice for calling up, either personally or by leaving a copy thereof at his office with some person in charge thereof on his behalf,” plainly provides that service is sufficient if a copy of the notice is left in apt time with some employee in charge of the office of the attorney to whom the notice is directed.

2. Judgment, § 272 —when motion in nature of error coram noltis is not mailahle. A decision of the Circuit Court construing one of its rules, if erroneous, is erroneous as to an error of law, and such decision cannot be corrected upon a motion in the nature of a writ of error coram nohis.

3. Courts, § 34 —what is attorney’s duty as to rules of court. Attorneys at law are bound to take notice of the rules of court.

4. Judgment, § 236 —when judgment should he entered. The practice of entering a final judgment or decree on the last day of the term, in the absence of council, is not to be commended, but a judgment so entered is not for that reason alone erroneous.


text:
    Theodore Novy, Appellee, v. Louis B. Rysdon Company, Appellant.
    Gen. No. 20,940.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Rehearing denied October 15, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action for damages for personal injuries by Theodore Novy against Louis S. Rysdon Company. It appeared that defendant had a contract to install twenty skylights in the roof of a one-story car barn at Rockford, Illinois. After three of them had been installed by an employee named Malmstrom, defendant, desiring to use Malmstrom’s services elsewhere, directed the plaintiff Novy to go to Rockford and do the remainder of the work. Plaintiff was an experienced sheet metal worker, and the only instructions given him by defendant’s president, Louis Rysdon, who employed him, were to go to Rockford with Malmstrom, who would show him what was to be done. There was evidence tending to prove that defendant delegated to Malmstrom the duty of furnishing to plaintiff suitable hoisting apparatus for his use, and that after it was set up, although Malmstrom said he did not like the way it worked, and that “it did not catch right,” he nevertheless directed plaintiff to use it and “get through as quickly as he could.”
    After Malmstrom left, two laborers used the derrick until about 2:30 in the afternoon, in hoisting the material to the roof. Then they fastened a barrel of putty weighing five hundred pounds to the cable, and attempted to hoist it. When they had raised it about fifteen feet above the ground, they called to plaintiff, who was working at another part of the roof, to “come over and give them a hand.” Plaintiff took hold of one of the drum handles while the laborers held the other. By their combined efforts, the handles were turned several times, when something gave way and plaintiff was thrown from the roof to the ground. He sustained a compound fracture of both bones of the left leg above the ankle, resulting in a stiff ankle and deformed foot, with two and one-half inches shortening of the leg.
    At the trial a judgment of $8,000 was rendered in favor of the plaintiff, and the defendant appeals.
    Ralph F. Potter, for appellant.
    Smejkal, Klenha & Krasa, for appellee; Joseph J. Kroupa, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1411 —when verdict will not be disturbed on appeal. Where the evidence upon questions of pure fact is conflicting, the Appellate Court is not authorized to reverse the finding of the jury and the judgment of the trial court, unless after an examination of all the evidence it appears that the verdict is manifestly contrary to the preponderance of the evidence.

2. Master and servant, § 166 —when servant need not inspect appliances. In the absence of notice that a pawl is defective, a servant has the right to rely upon the inspection of such hoisting apparatus by the representative of the master to whom has been delegated the duty of furnishing the appliance, and such servant is not required to inspect the appliance.

3. Master and servant, § 363 —when servant does not assume rislc of injury. Where evidence in an action for injuries showed that a defective derrick was used successfully for several hours, the danger arising from the use of such derrick was not so obvious that a reasonably prudent person would have refused to use it, and a servant in obeying the direction of the representative of the master to use the apparatus did not assume the risk of injury.

4. Master and servant, § 623 —what evidence as to defective appliance admissible. In an action for injuries to a servant caused by a derrick, where some evidence tended to show that the derrick was in the same condition two days after the accident as at the time, there was no reversible error in permitting a witness to testify as to its condition on such second day.

5. Master and servant, § 777 —when instruction properly refused as misleading. In an action for personal injuries sustained by a servant by reason of a defective derrick, an instruction which might have been understood as announcing the view that it was the duty of the servant to inspect the appliance for defects was properly refused as misleading, as such duty under the evidence was that of the representative of the master.


text:
    Rhoda Lenihan, Administratrix, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 20,952.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Action brought by Rhoda Lenihan, as administratrix of the estate of John Lenihan, deceased, against Chicago Railways Company for negligently causing the death of deceased.
    It appeared that defendant operated a double-track street car line on Western avenue in Chicago, which street runs north and south, and that on a certain day between six and seven o’clock in the morning, John Lenihan was crossing such avenue at the intersection of Polk street. There was some evidence that there was a wind blowing from the south, accompanied by snow and rain, and one of defendant’s street cars, going south on the west track on Western avenue, was approaching the intersection of Polk street, at a speed variously estimated by the witnesses at from seven to twenty miles an hour. Lenihan stepped off the sidewalk at the southeast corner of Polk street and Western avenue, and walked southwesterly towards the sidewalk at the northwest corner of said streets, thereby apparently following the most direct course from one sidewalk to the other. As he reached the west rail of the west car track, he was struck by the street car and killed. Whether he saw or heard the car coming is not known. There was evidence tending to prove that although the motorman saw Lenihan when the latter first started to cross the street, the car being then about one hundred feet away, yet he merely sounded his gong, without applying the brakes, and made no effort to stop the car until Lenihan stepped directly in front of it, about twenty or twenty-five feet away.
    At the trial a judgment of $2,000 was entered in favor of the plaintiff, and the defendant appeals.

      Abstract of the Decision.
    1. Street railroads, § 142

      —when instruction i/n action for injuries to a pedestrian is erroneous. In an action for the death of a pedestrian struck by a street car, an instruction stating that if the jury believed from the evidence that the motorman saw the deceased “in time to have slowed up his car and have prevented said collision,” then it was the absolute duty of the motorman, as a matter of law, to do so, and that his failure to act in that particular manner in this case was such negligence, as a . matter of law, “as would render the defendant liable” in damages, provided the motorman’s failure to so act was the cause of the accident, and that deceased was in the exercise of due care for his own safety is erroneous.
    2. Street railroads, § 64

      —what is duty of operator of street car. It is the duty of a motorman operating a street car to exercise ordinary and reasonable care, under the circumstances, to avoid a collision with a pedestrian at a crossing, and what is ordinary and reasonable care is a question of fact for the jury.
    3. Street railroads, § 141

      —when instruction invades province of jury. In an action for personal injuries to a pedestrian caused by a street car, it is an invasion of the province of the jury to tell them that any particular act or omission is such negligence as will make the defendant liable as a matter of law.
    Charles L. Mahony and Frank L. Kriete, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Samuel B. King, Warwick A. Shaw and Lewis C. Ball, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.