text:
    John D. Casey, Administrator, Appellee, v. Kelly-Atkinson Construction Company, Appellant.
    Gen. No. 14,187.
    1. Trial—when remarks of counsel not improper. To refer to a particular failure to exercise ordinary care as “almost criminal” is not improper.
    2. Negligence—effect of concurring causes. If the defendant is guilty of negligence without which an accident would not have happened, the fact that it would not have happened except for another intervening cause which was an act of God, or which was a pure accident for which no negligence could he imputed to any one, does not relieve the negligent party from liability.
    3. Negligence—when question to he determined hy jury. Held, that it was for the jury to determine whether it was negligence for the defendant to allow a traveler used in connection with bridge construction to remain unfastened and unsecured on tracks and rails in a locality subject to storms.
    4. Negligence—what (toes not excuse. A custom does not excuse negligence.
    5. Instructions—approved form of, as to liability of master for acts of vice principal. The following instruction upon this subject approved:
    “The court instructs the jury that where a master confers authority upon one of his employes to take charge and control of a certain class of workmen in carrying on some particular ' branch of his business, such employe, in governing and directing the movements of the men under his charge with respect to that branch of the business, is the direct representative of the master, and is not a mere fellow-servant, and all the commands, if any, given by him, within the scope of his authority, are in law the commands of the master, and if he is guilty of a negligent and unskillful exercise of his power and authority over the men under his charge, it is in law the same as though the master itself was guilty of such conduct.”
    6. Verdict—when not excessive. Held, that a verdict for $6,000 rendered in an action for death caused by wrongful act is not excessive where it appeared that the plaintiff’s intestate was at the time of his death a young man who had fulfilled the promises of his boyhood, who had been temperate and industrious, was evidently ambitious and rising in his calling, and who had been the principal support of his mother and younger brothers.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed February 15, 1909.
    Statement by the Court. The judgment appealed from in this cause is for $6,000. It was obtained June 8, 1907, in an action brought in the Superior Court by the administrator of Albert Miller, deceased, against the Kelly-Atkinson Company, a corporation, for causing by negligence the death of his intestate, Miller.
    The original declaration was in two counts, to which a third was afterward added by leave of court. s
    The first count alleges that on July 8, 1905, the defendant was a structural iron contractor and was building a bridge across the Mississippi river at Thebes in Illinois; that it had in its employment a large number of men, among them the deceased, Miller, who was a structural iron worker, earning about four dollars a day; that the defendant used upon the false work in the construction of said bridge, at a great distance above the ground, a movable engine or car called a “traveler,” by means of which the iron and other material used in the construction of the bridge was raised to where it was to be used; that at the time of the accident and prior thereto, on July 8, 1905, there was a high wind blowing; that in consequence if the traveler was not properly and securely fastened, it was liable to start and run along on and fall from the false work, and thereby kill or injure the deceased or other of the defendant’s servants; that all these facts, the defendant knew, or, by the exercise of ordinary care, would have known; that by reason of the premises it was the duty of the defendant to have exercised ordinary care toward so securing or fastening said traveler; that, disregarding this duty, the defendant failed and neglected to fasten and secure the traveler; that the deceased did not know of this; that as a direct result and in consequence of the defendant’s failure and default “said traveler as a result of the high wind then blowing, started to run along and upon and fell from said false work a great distance to the ground, and it then and there struck and knocked deceased, who, as plaintiff alleges, was then and there in the discharge of his duty and exercising ordinary care and caution for his own safety in working upon said false work, a great distance to the ground,” killing him.
    The second count is similar, but the allegation of the defendant’s duty is that it was its duty, through its servants, whom the plaintiff alleges were not fellow-servants of the deceased, to have securely fastened the traveler, etc.
    The third or additional count makes an allegation in these words: “that at the time and place aforesaid the condition of the weather indicated that a high wind was likely and liable to soon be blowing, and that in the event of such a high wind blowing, if said traveler was not properly and securely fastened, as it was not at that time, it was liable to and there was great danger of its starting to run along and upon and falling from said false work, and if it should thus start to run along and upon and fall from said false work, it was likely and liable to injure or kill the deceased or other of the defendant’s servants, all of which facts, the plaintiff alleges, the defendant, through its foreman, * * * knew, or by the exercise of ordinary care in that behalf would have known, and by reason of the premises it was the duty of the defendant, through its said foreman, to have exercised ordinary care toward so securing or fastening said traveler as to prevent it from starting and running upon and falling, * * * but the defendant, through its said foreman, not regarding its duty, * * * negligently failed and neglected to so fasten and secure said traveler, * * * and as a direct result and consequence of the defendant’s said failure and default and of a high wind which plaintiff alleges shortly afterwards started to blow, said traveler * * * started to run upon and along and fall from said false work to the ground,” etc.
    Bach count contained the necessary allegations of representation and of kinship of beneficiaries.
    The defendant corporation pleaded the general issue to the first two counts and the general issue and the statute of limitations to the third count. To the statute of limitations the plaintiff demurred and the demurrer was sustained, whereupon the defendant elected to stand by its said plea. The cause was submitted to a jury, which found a verdict for the plaintiff in the sum of six thousand dollars.
    After a motion for a new trial and a motion in arrest of judgment had been overruled by the court, judgment was entered on the verdict and the defendant appealed.
    In this court the assignments of error cover the reasons alleged in the motion for a hew trial, the denial of said motion, and the denial of the motion in arrest of judgment. They include the proposition that the trial court erred in sustaining the plaintiff’s demurrer to the defendant’s plea of the statute of limitations to the third or additional count of the plaintiff’s declaration; erred in rulings on evidence and on instructions; erred in denying defendant’s motion for a peremptory instruction taking the case from the jury; and erred in not granting a new trial on the ground of the inconsistency of the verdict with the law and the evidence, on the ground that the damages were excessive and on the ground that the plaintiff’s attorneys made improper remarks to the jury. The appellee assigns cross-errors, alleging errors made by the trial court against the appellee in its rulings on evidence and instructions.
    Schuyler, Jamiesou & Ettelson, for appellant; D. J. Schuyler, of counsel.
    James C. McShane, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

In this case, after much consideration of and deliberation over the record, we have determined that the verdict and the judgment based on it should not be disturbed by us. The only question in the case, the answer to which seems to us doubtful, goes to the entire liability of the defendant under the facts proven.

The objections made to the remarks of plaintiff’s counsel to the jury seem to us hypercritical. It was not improper argument to call an alleged want of care “almost criminal,” nor did it warrant the reply which the defendant’s counsel was excited to make. If the allegation of want of ordinary care failed of proof (and that was the question to be tried), the allegation of wrongful action fell with it. If there was want of ordinary and reasonable care on the part of the foreman, it is very far from calling him a “murderer” to say that such want of care was “almost criminal.” No juryman intelligent enough to be a juryman, would have his passions inflamed or his reason led captive by such a remark in an argument.

Nor, under the rules which have been laid down in similar cases in this state, can the verdict be considered excessive if any liability exists. The damages which may be estimated on the removal from his family of a promising boy have been reckoned as high substantially. Here the unfortunate victim of the accident was an exemplary young man, who had fulfilled the promises of his boyhood, who had been temperate and industrious, and evidently ambitious and rising in his calling, and who had been the principal support of his mother and younger brothers.

Complaint is made of the following instruction which was given at the request of the plaintiff:

“The court instructs the jury that if you believe from the evidence that the defendant was guilty of negligence as charged in the declaration, and that such negligence upon its part contributed to the accident in question, and that the accident would not have occurred except for such negligence, if any, upon the part of the defendant, then you are instructed that the fact that the storm spoken of by the witnesses also contributed arid helped to cause or was the principal cause of said accident is not a defense in this suit. ’ ’

Counsel for defendant say that this seems to them to present the doctrine of “comparative negligence,” now repudiated in Illinois. We do not assent to this position. The instruction is based on an entirely different principle. It is that if the defendant was guilty of negligence without which the accident would not have happened, the fact that it would not have happened except for another intervening cause which was an act of God, or which was a pure accident for which no negligence could be imputed to any one, does not relieve the negligent party from liability.

This proposition, we think, is a correct statement of the law. It does not differ in principle from the one applicable to joint tort-feasors as laid down in Cooley on Torts, vol. 1, pp. 226-227.

“When the contributory action of all accomplishes a particular result, it is unimportant "to the party injured that one contributed much to the injury and another little; the one least guilty is liable for all because he aided in accomphshing all. ’ ’ See also: City of Joliet v. Shufeldt, 144 Ill. 403; St. L. B. Co. v. Miller, 138 Ill. 465-476; Siegel, Cooper & Co. v. Trcka, 218 Ill. 559-562; Thompson on Negligence, vol. 1, sec. 68, p. 71.

We do not think that instruction six tendered by the plaintiff and given by the court was erroneous as charged. It is as follows:

“The court instructs the jury that where a master confers authority upon one of his employes to take charge and control of a certain class of workmen in carrying on some particular branch of his business, such employe, in governing and directing the movements of the men under his charge with respect to that branch of the business, is the direct representative of the master, and is not a mere fellow servant, and all the commands, if any, given by him, within the scope of his authority, are in law the commands of the master, and if he is guilty of a negligent and unskillful exercise of his power and authority over the men under his charge, it is in law the same as though the master itself was guilty of such conduct. ”

This instruction was not erroneous. Chicago, R. I. & Pac. Ry. Co. v. Strong, Admr., 228 Ill. 281; Chicago Terminal Transfer R. R. Co. v. Reddick, 230 Ill. 105; Chicago, R I. & Pac. R. R. Co. v. Rathneau, 225 Ill. 284.

Under this instruction the jury were left to determine the question whether or not Brown, who was foreman in charge of the erection, and who says, “My directions were carried out whichever way I said the work was to be done,” was or was not a vice-principal rather than a fellow-servant of the plaintiff’s intestate. We cannot see how any other conclusion on this point than that which inheres in their verdict was possible for them.

We think that there was no reversible error in the refusal of the s'everal instructions tendered by the defendant which were refused. Some were inaccurate and some were covered by others given. We cannot discuss them at length without unduly protracting this opinion.

The defendant’s fifth refused instruction is no less objectionable than that disapproved by the Supreme Court in Evanston v. Richards, 224 Ill. 444.

Nor does an examination of the evidence lead us to the belief that any reversible error crept into the rulings of the trial judge in admitting or excluding evidence.

There is nothing in the evidence to raise any reasonable doubt that the plaintiff’s intestate was killed by the falling of the traveler, nor that he was then in the exercise of all due care for his own safety.

But the serious question in- this case arises on the position taken by the defendant, that the jury should have been peremptorily instructed, after the evidence was all in, to find a verdict of not guilty, and the alternative position that, if such an instruction would not have been justifiable, nevertheless the weight of the evidence was so clearly and manifestly in favor of the defendant that the judgment against it should be reversed without a remandment of the case.

If the contentions of the defendant are good at all, we think they are good to the full length indicated. And we think, moreover, that there are weighty considerations in their favor. Certainly had the jury come to a conclusion contrary from that shown by their verdict, we should not have disturbed it. But are we justified in disturbing the verdict for the plaintiff, rendered under instructions which told the jury that to warrant the plaintiff’s recovery the foreman or vice-principal must have, by the exercise of ordinary care, foreseen the effect of leaving the traveler unsecured and the approach of the wind storm, and had the power to have secured the traveler in the' usual and ordinary way? And under instructions which told them that although they might believe from the evidence that the accident in question was occasioned by the traveler’s being blown from the tracks on the false work, yet if they believed also that said storm was sudden and of such violence and character that the defendant and its employes in charge of said work, by the exercise of ordinary care, could not have foreseen or anticipated the same or the consequences thereof, they must find for the defendant?

These instructions certainly were as favorable to the defendant as it was entitled to. We are not sure, however, but that they were more so.

The negligence of the defendant charged in the first count was substantially that at the time of the accident there was a high wind blowing; that it was the duty of the defendant to have so fastened the traveler that this high wind could not move and overthrow it, and that this precaution was not taken.

The second count does not vary this much; the third, however, puts the charge of negligence on the ground that before the accident the conditions of the weather indicated that “a high wind was likely and liable soon to be blowing;” that by the exercise of ordinary care the defendant would have known this, and it therefore was its duty to so securely fasten said traveler that it should not run and fall, to the injury of the workmen—which duty it failed to perform.

There was evidence tending to show that the wind storm during which the traveler started to run, with the fatal results which ensued, was one which could have been foreseen by the foreman in time to have fastened or tied the traveler to the false work, as it was usually fastened when left for the night. There was, however, evidence to the contrary which seems to us of greater weight,-—evidence that the storm was sudden, that the development from a pleasant day, through gathering clouds to a sudden gale, was not of a nature that would naturally warn one of an unusual danger of the overthrow of the traveler, nor was gradual enough to have given opportunity, between the time when the danger did actually appear imminent and the time of the accident, efficiently to fasten the traveler with the means at hand. But we question whether we are obliged to pass on the weight of this evidence as compared with that which tends to establish the contrary.

The instruction indeed which we have before alluded to (defendant’s instruction VI) tells the jury that the plaintiff, to recover must prove that the foreman saw the approach of the windstorm that blew the traveler from the false work in time to have secured it, and it is to be presumed, therefore, that the jury believed this from the evidence, as well as the other things they were told were necessary to the plaintiff’s recovery.

But we are of opinion that the instruction goes too far, and that under the declaration which in its first two counts says, in substance, that a high wind was blowing at the time of the accident (which is certainly true), and that the traveler was liable to run along and fall from the false work if it was not fastened—which the defendant knew—and that it was therefore the duty of the defendant to keep it fastened and secured, which duty it neglected, to the damage of -the plaintiff, by the death of his intestate,—it was a question for the jury whether it was negligence to allow the traveler to remain unfastened and unsecured on the tracks and rails on which it stood during a sultry summer afternoon, in a locality subject to such storms as came. In other words, it was for the jury to say whether in the exercise of ordinary care the foreman should not have so reasonably anticipated or foreseen that a windstorm might suddenly and naturally arise, endangering the stability of the traveler constructed and situated as it was, as to make it negligence for him to leave it in that condition at the time in question.

The traveler was a large and very open structure, fifty-six feet wide, sixty-six feet long and ninety feet high, and stood upon car wheels under each corner, the wheels resting on a rail track. It stood on false work about seventy feet above the level of the earth. It presented 3,500 square feet to the presence of the wind. It weighed about 120 tons, and with that amount of surface exposed to the wind, standing upon wheels and rails, was it not dangerous to leave it unsecured at any time when it was not in actual motion? It was fastened at night, as the foreman testified, because they knew a wind might come up and wreck it. We do not understand that the traveler had been in motion that day but once. It had been run 300 feet west in the morning. To move it the chains which had fastened it during the night had been removed. When it stopped it was not refastened or secured in any way, except by chucks under the wheels, which proved wholly insufficient to prevent its motion when the wind struck it. There was evidence tending to show that the usual custom was to leave the traveler, during the day time and when it was liable to be called into motion along the track at any time during the day, thus unsecured, except by chucks, and evidence indeed in the nature of expert opinion, that it would be inconsistent with the practicable operation of the traveler to keep it fastened by chains as in the night time, until the actual occasion for moving it came. But the only reason given for this was the time it would require of one man, or the lesser time of more, to make the fastening and to unloose them. There was no reason in the operation of the traveler itself, which was a hoisting apparatus, which did its actual work in a stationary position, and was only movable as derricks are made movable, on occasion when the place of hoisting is to be changed. A custom does not excuse negligence. We are too much in doubt whether it was not the duty of the master, at the expense of this extra time and labor, to keep the traveler fastened up to the time that men were actually moving it; whether this duty was not neglected in this case; whether this did not violate the obligation of furnishing a reasonably safe place and machinery in and with which its men were to work; and whether this negligence, if it were negligence, is not covered by the declaration and supported by evidence competent for the jury;—to feel justified in disturbing this verdict found by the jury and confirmed by the trial court.

The judgment of the Superior Court is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Amy Watkiss, Appellee, v. City of Chicago, Appellant.
    Gen. No. 14,194.
    1. Verdict—when not excessive. Held, that a verdict for $3,500 rendered in an action for personal injuries was not excessive where it appeared that the plaintiff, a young woman, received injuries to the back, to the left ankle and leg and likewise suffered a nervous shock which the evidence tended to show had produced a serious impairment of health.
    2. Evidence—what tends to show injury. The fact that a good condition of health existed immediately before an accident and an impaired condition ensued after the accident, tends to show that the changed condition was the result of the accident complained of.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Abthub H. Chetlain, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed February 15, 1909.
    Edward J. Brundage and John R. Caverly, for appellant; Edward C. Fitch, R. S. Cook and George J. Reker, of counsel.
    George E. Gorman and McGoorty & Pollock, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of the Superior Court for $3,500 in favor of Amy Watkiss, the plaintiff, against the City of Chicago, the defendant. The judgment was on the verdict of a jury in a personal injury case. The plaintiff, who was an unmarried woman, fell or stepped into a hole in a sidewalk December 4, 1904. According to the evidence in the cause she suffered severe injuries from the accident. The jury found in her favor for the amount named, and the only question raised by the appellant here is as to that amount, which is declared excessive for any injuries properly proven.

There is no contention that the accident did not happen nor that the plaintiff was not injured, nor that the city was not liable. But it is said that the only injuries actually proven were bruises, one on her back and others on her left ankle and the calf of her left leg. For these superficial hurts it is obvious that $3,500 would be an excessive award, even had these injuries— which it is hardly conceivable they could have done— kept her in bed for eight weeks. It is conceded that the plaintiff was so confined for eight weeks after the accident.

We are, however, far from agreeing with the contention of the defendant as to what the evidence tends to prove. There was explicit testimony to the fact that up to the very time of the accident the plaintiff was a healthy, strong girl; that her loss of weight and change in general appearance showed a very marked failure in health immediately after that occurrence, which had lasted until the time of the trial; that from a plump, rosy, strong, _ normal girl, she had become a thin, anemic, neurasthenic one, irritable and “droopy.” Medical testimony was not wanting that the nervousness and general debility which accompanied this breaking down of health was due to the accident. Dr. Maguire testified that this was his opinion. Although there was expert evidence introduced for the defendant to show an improbability that the plaintiff’s kidney and uterus had been displaced by the fall, as it was claimed in her behalf, there is on analysis nothing in it all, in our opinion, sufficient to make it apparent that reasonable, impartial, disinterested men might not place as of controlling importance in the case,, outweighing altogether expert opinion, the evidence of the actual appearance and condition of the plaintiff before the accident as compared with those after. Chicago Union Traction Co. v. May, 221 Ill. 530.

Complaint is made of the admission of evidence concerning the plaintiff’s loss of voice after the accident, because it was not in any way connected by medical testimony with the accident. If we concede that it was not, we cannot see that there could have been injurious error in admitting all the evidence that could be obtained about it, and leaving the jury to judge of the connection. The witness, it is expressly noted in the record, testified in a whisper; the explanation of that, it is plain, was a thing which it was proper to put before the jury; and when it appeared that the witness could not raise her voice to another pitch, the time when she was thus afflicted and the history of it in relation to the occurrence of the accident in question became relevant, and with it the history of the devel-" opment of the ailment. But even were this not so, and medical testimony were necessary to make the evidence about the plaintiff’s loss of voice relevant, it is not wanting, for the defendant’s witnesses agreed that nervousness and hysteria affecting the voice might result from the displacement of internal organs, and the plaintiff’s medical witness furnished evidence competent and relevant to go to the jury, from which they could have found that a displacement of the uterus and kidney resulted from the plaintiff’s fall.

Instructions given to the jury at the request of the defendant warned them that they should allow no damages for any ailments, diseases or injuries which they did not believe from the evidence resulted directly and proximately from the accident in question. These instructions covered generally the propositions more specifically set forth in the refused instruction 19. We do not think the refusal of that instruction, therefore, error.

The jury, we think, may reasonably be supposed to have rendered their verdict with these instructions in mind, and we do not find in its amount the proof, which counsel for defendant sees there, that they came to unreasonable or prejudicial conclusions as to the effect of the accident and the damages suffered by plaintiff thereby.

The judgment of the Superior Court is affirmed.

Affirmed.


author: Mr Justice Brown

text:
    Richard M. Dockrill, Plaintiff in Error, v. R. P. Thompson, Defendant in Error.
    Gen. No. 14,204.

      Fixtures—what not. Held, that the evidence in the record did not justify the Appellate Court in reversing the judgment of the Municipal Court holding that pews, etc., were not fixtures.
    Replevin. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed February 15, 1909.

      Edwy Logan Reeves and Harry A. Tiffany, for plaintiff in error.
    No appearance Tby defendants in error.
   Mr Justice Brown

delivered the opinion of the court.

This case was taken on the brief of plaintiff in error alone, the defendants in error not having entered any appearance in this court. But, nevertheless, we cannot disturb the judgment of the Municipal Court. The action was one of replevin. The only question in the case was whether pews, footstools, cushions and pulpit stands were fixtures appertaining to a church building and so annexed to it that under the circumstances and conditions shown in this case, they passed under a trust deed conveying the land on which the church stood, “and all improvements thereon, together with all the appurtenances thereto belonging.”

The information we get from the record concerning the matters involved is rather meagre on which to determine a question where such fine distinctions have to be drawn as are necessary in the law of fixtures, and we do not think there is enough shown to warrant us in declaring incorrect the decision of the learned judge of the Municipal Court, before whom the case was tried without a jury.

The facts shown are that Dockrill, the plaintiff, sold on contract two vacant lots to the Zion African Methodist Episcopal Church in October, 1898. The Church bought a frame building somewhere and moved it onto the lots. Probably—although this does not appear except by inference—it then also bought and placed in the church the articles that are the subject of this suit. It does not appear with any particularity of what character they were or are, except that the pews were “black walnut” and the footstools “21 feet long.” It does not appear whether any of the articles were, when originally placed in the church building, fastened to it in any way. The church defaulted in its contract payments, and in October, 1900, Dockrill cancelled the contract. Then he gave the Church a lease of the premises, which of course then included the building, the church had placed on the land. The Church paid $100 on account of rent and then defaulted on the lease. However, in November, 1901, the Church, on the expectation of help from a missionary institution, solicited and obtained a deed of the premises, and gave in return notes and a trust deed, which, as above stated, covered, as Dockrill testified, the land and “improvements thereon, together with all the appurtenances thereto belonging.”

Dockrill says that he “believed” when he took the trust deed, that the word appurtenances covered and included “the pews and other fixtures” in the church, and that he “asked for a list of the fixtures, which they gave me, showing pews, foot stools, cushions and pulpits.” Also that he went on the premises at that time and tried “two or three seats or pews, possibly more,” and found they were fastened to the floor with screws and iron clamps. He says he did not try to see if the pulpit was fastened, and did not know how long the seats he tried remained fastened to the floor.

The Church defaulted in the payment of principal and interest, and in March, 1904, Dockrill filed a bill to foreclose the trust deed and obtained a decree for the sale of the mortgaged premises for the full amount of principal, interest and expenditures claimed. The premises were sold under the decree and bought in by Dockrill, to whom a master’s deed was issued July 12, 1907. He obtained peaceful possession of the land and church building, but the minister in charge, Mr. Thompson, the defendant in error, had removed the furniture replevied in this action and stored them with Heck & Co., his co-defendants in error. Thompson says that after September, 1906, when he first obtained knowledge of the church, the pews and pulpits were not fastened to the floor. He does not know whether the pews were so fastened when Dockrill received the trust deed or not.

Although the question involved may be a somewhat close one, we do not think, as we have said, that we have in this record sufficient ground to overthrow the judgment of the Municipal Court even as to the pews, and still less as to the other articles. That judgment is therefore affirmed.

Affirmed.


text:
    State Bank of Chicago, Trustee, Plaintiff in Error, v. Fletcher H. Wheeler, Defendant in Error.
    Gen. No. 14,264.
    1. Landlord and tenant—what actual eviction. When a material portion of demised premises included in a lease is taken away from the tenant an actual eviction takes place by reason of which the landlord loses all right to recover rent under the lease; and this notwithstanding the rent, which was provided for as an entirety, is payable in instalments.
    2. Estoppel—when arises hy verdict. Where a question at issue in the cause has been previously at issue and determined in a like cause between the same parties, an estoppel by verdict arises.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. Mancha Bruggemeyer, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed February 15, 1909.
    Allen G. Mills, for plaintiff in error.
    John Clark Baker, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The first matter to be disposed of in this cause is a motion by the defendant in error, reserved until the hearing,- to strike the bill of exceptions from the files. It is denied. We are not predisposed to dismiss one writ of error because the judgment or order which it attacks is not a final one, and then in effect deny a hearing on another one because that order was so final that a bill of exceptions in the cause filed more than thirty days after its rendition must be stricken from the record; and in this ease no such action is required.

But after consideration of the matter involved in the writ of error, we see no reason for disturbing the judgment.

The defendant in error, Wheeler, in our opinion suffered an eviction in September, 1906, when a material portion of the premises which were included in the lease from the plaintiff in error to him was taken away, not—as after an analysis of the evidence we are forced to conclude—by agents acting without the consent of the lessor, the plaintiff in error, but by the agents of the plaintiff in error with the authority and knowledge of the plaintiff in error. To discuss the evidence to show our reason for this opinion would serve no useful purpose. That being, however, in our view, established by the evidence, it follows in our opinion, as a matter of law in Illinois, that the plaintiff in error lost all rights to recover rent under the covenant in the lease, which was an entirety, although payable in installments

There was no error in allowing the presentation of evidence to prove that the same question at issue in this case had been litigated in another case in a court of competent jurisdiction. The decision of that case might not make this one res adjudicaba, and yet furnish an estoppel by verdict, if the vital issue in this case were necessarily decided in that. The investigation, therefore, of whether there had been such an issue involved was proper and relevant. L. N. A. & C. Ry. Co. v. Carson, 169 Ill. 251; Wright v. Griffey, 147 Ill. 496-500; Rubel v. The Title Guarantee & Trust Co., 199 Ill. 110-114.

It is not necessary, however, that we should discuss this evidence further, for the error in admitting it, if it had been error, would not he prejudicial, since we hold that there was evidence in the case at bar establishing the eviction which we indicated in deciding State Bank v. Wheeler, No. 13511 in this court (not reported), we found there was evidence of in that case.

The objection that the court did not instruct the jury that the plaintiff might recover for an electric light bill, is not well taken. No such instruction was requested, and besides, the defendant correctly says if the bill was a part of the rent, the eviction prevented its recovery; and if it was not, there was no jurisdiction in this action of the claim for it.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    City of Chicago, Appellant, v. Julius Lowenthal, Appellee.
    Gen. No. 14,506.

      Ordinances—who not required to take out “junk shop” license. A wholesale dealer in old and new metals, rubber and rags, etc., is not required, under the ordinances of the city of Chicago, to take out a junk shop license.
    Action commenced before justice of the peace. Appeal from the Criminal Court of Cook county; the Hon. George A. Dttput, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed February 15, 1909.
    George H. White, for appellant; Henry M. Seligman, of counsel.
    Herman Frank and E. N. Zoline, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an action brought by the city of Chicago for an alleged violation of the junk-shop ordinance, so-called. The appellee is a large dealer, and a dealer in large quantities only—car lots principally—in old and new metals, rubber and rags. He is a wholesale dealer in these commodities, the largest in the city of Chicago. He did not procure a license to keep a “junk shop” or “junk wagon,” because he claimed not to be, in the language of the ordinance in question, ‘ ‘ exercising, carrying on, or engaging in the business of keeping a junk shop, or what is commonly called a junk shop.”

The court below agreed with him, and so do we. The case is not distinguishable from West Side Metal Refining Company v. City of Chicago, 140 Ill. App. 599. We are of the same opinion as when that case was decided.

The judgment of the Criminal Court of Cook county is affirmed.

Affirmed.


author: Mr. Justice Holdom

text:
    The People of the State of Illinois, Defendant in Error, v. Eugene F. Manns, Plaintiff in Error.
    Gen. No. 13,692.
    1. Informations—when charging the obtaining of money by false pretenses insufficient. A conviction for obtaining money by false pretenses will not be sustained where the information contains no averment that the accused made any pretenses, representations or statements to the party from whom the money was so obtained or anyone else, which were either false or true.
    2. Amendments and jeofails—right to authorize amendment of information. It is within the discretion of the court to permit an information filed in the Criminal Court to be amended.
    Prosecution for obtaining money under false pretenses. Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed.
    Opinion filed February 15, 1909.

      J. Gray Lucas, for plaintiff in error.
    John J. Healy and Clifford G. Roe, defendants in error.
   Mr. Justice Holdom

delivered the opinion of the court.

Eugene F. Manns, plaintiff in error, was fined in the Municipal Court in the sum of $200, with costs, under a charge contained in the following amended information:

“John Merriweather, a resident of the city of Chicago, in the State aforesaid, in his own proper person comes now here into court and in the name and by the authority of the People of the State of Illinois gives the court to be informed and understand that Eugene Manns, late of the said City of Chicago, heretofore, to-wit, on the 28th day of January, A. D. 1907, at the City of Chicago • aforesaid, did unlawfully, designedly, falsely and with intent to defraud John Merriweather, that he, the said Eugene F. Manns, was the owner of a certain lunch wagon which he would sell for $230. And that said lunch wagon was clear of all encumbrances and agreed to deliver said wagon at once on payment of $50 and the balance secured by eighteen notes, and being deceived thereby was induced by means thereof to pay over and deliver to the said Eugene F. Manns the sum of $50, when, in truth and in fact, said pretenses were false, and that the defendant, Eugene F. Manns, well knew they were false, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Illinois.

John Merriweather.”

From the imposition of this fine and a judgment for costs Manns prosecutes this writ of error, seeking a reversal. Several assignments of error appear upon the record, and eight reasons for reversal are argued. We will, however, rest content by deciding two of the points made.

The charge was evidently intended to be ‘ ‘ obtaining money by false pretenses.”

The Municipal Court permitted the original information to be amended by substituting in its place the amended information supra. It is contended that the information could no more be amended than an indictment, and consequently the court erred in allowing, the amendment. This contention is without force, for the converse of the proposition is the law. Many authorities so hold. However, Long v. People, 135 Ill. 435, states the rule which controls and marks the distinction between the right to amend an information, but not an indictment. The rule, which has never been varied in this jurisdiction, is thus stated in the Long case supra: “In matters of amendment, an information stands on entirely different grounds from an indictment. The officer by whom the information is presented being always in court, it may be amended upon his application, to any extent which the judge deems to be consistent with orderly conduct of judicial business, with public interest and with private rights. The state’s attorney having the independent right in the first instance to frame the presentment and the power, with leave, to amend it, in like manner as any plaintiff may do.” And so in prosecutions commenced by affidavit, the affidavit is amendable, with like leave of the court. Truitt v. People, 88 Ill. 518.

An examination of the amended information discloses that no offense is imputable from the language used. It utterly fails to support the contention that the amended information charges that Manns obtained money from John Merriweather by false pretenses—■ the offense for which he was convicted and penalized. There is no averment that Manns made any pretenses, representations or statements to Merriweather, or any one else, which were either false or true. To contend to the contrary is a bald assumption, which finds no support in the document itself.

The difficulty is of the State’s own creation. The State’s official who drafted the amended information carelessly omitted to insert the word “represented” between the words “Merriweather” and “that” in the tenth line of the amended information as printed in the Abstract. Simple as it may seem, the omission of that one word destroys the meaning of the whole sentence intended to constitute the charge for which the arrest of Manns was sought, without which it is meaningless, and has no force in law as charging a crime or anything else. The fatally faulty condition of the amended information under which Maims was convicted makes it unnecessary to consider any of the other questions in dispute. The insufficiency of the amended information to support a conviction could be taken advantage of either in a motion in arrest of judgment or in this court on writ of error. This is so elementary in its nature that we refrain from citing supporting authority.

As the amended information charges no offense, the judgment of conviction of Manns thereunder by the Municipal Court is reversed.

Reversed.


text:
    Catherine G. Scheiber, Appellee, v. The Protected Home Circle, Appellant.
    Gen. No. 14,191.
    1. Fraterna!, benefit societies—what does not excuse non-payment of dues. The insanity of a member does not excuse non-payment of dues so as to keep alive a certificate issued by virtue of his membership.
    2. Fraternal benefit societies-—when suspension without notice for non-payment of dues valid. A suspension-without notice for nonpayment of dues is valid if authorized by the constitution and bylaws of the society; and provisions providing therefor, forming a part of the contract between the society and the member, are binding upon all parties and no officers of the society have power to waive the same.
    3. Fbatebnai. benefit societies—when reinstatement of suspended, member not effective. A suspension lawfully made for nonpayment of dues is not lifted by the mere payment of the delinquent dues where the constitution and by-laws of the order, forming a part of the contract, provide for a formal application for reinstatement, the payment of a re-instatement fee, and the action of the society upon such application, it appearing that the society proceeded strictly in accordance with its constitution and by-laws, made no promises and was guilty of no deceptive practices.
    4. Fbatebnai, benefit societies—what reasonable time for mailing monthly paper to members. If a fraternal benefit society publishes a monthly paper containing information to members, in the absence of a designated time when such paper should be sent to its members the law requires that the same shall be mailed within a reasonable time. Seld, that the fourth day of the month of the paper’s publication fulfilled such requirement of the law.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed February 15, 1909.
    Rehearing denied February 25, 1909.
    Statement by the Court. George S. Scheiber died October 30, 1906. On August 1, 1902, he became a member of the defendant Society and received from it a benefit certificate payable to plaintiff, his wife, at his death, for $1,000. Premiums were payable monthly on the first day of each month following the date of the certificate, and were to be made within thirty days after becoming due. Upon failure to pay any premium within thirty days of becoming due, it is provided in the certificate that “this benefit certificate shall be null and void and cannot be thereafter revived, except upon the filling out of and acceptance by said Supreme Secretary of a reinstatement blank furnished by the Supreme Circle.” The payment of the $1,000 benefit is predicated upon the member being in good standing at the time of his death. The certificate was issued ‘ ‘ subject to Art. XI, Sec. 10, printed on the back hereof, and all other provisions of said constitution and laws.” Sec. 2, Art. XI of the defendant’s constitution provided that “for any neglect or failure to make such payments within the month for which they become due and payable, they shall stand suspended from the Order without notice and without any action on the part of the Supreme or local Circle.” Section 9 provides “that a certificate may be revived within three months after suspension by becoming reinstated in the circle from which he was suspended by payment in full of dues and monthly payments unpaid, and filling out and signing, according to its terms, the blank furnished by the Supreme Circle and the payment of 25 cents, be fully reinstated as a beneficiary member upon the books of the Supreme Circle, provided that said statement will warrant his reinstatement.”
    The cause was tried before the court sitting without a jury, upon a stipulation of facts and witnesses examined orally by both parties.
    It is conceded by the foregoing stipulation that defendant is a “fraternal beneficial society,” existing in virtue of the laws of Pennsylvania, and has subordinate lodges known as “Circles” in Chicago; that George S. Scheiber was admitted to the Society and became a member of Protected Home Circle No. 507 August 1, 1902, and received the beneficial certificate set out in the declaration, and died on the date above firstly mentioned. In the month of June, 1906, and until the death of Scheiber a certain constitution and by-laws above reférred to in part, were in force and are set out in extenso in the stipulation. Among them is a provision for suspension for non-payment of dues as aforesaidly stated, as also the method of reviving a lapsed certificate; also this provision, viz.: “The P. H. C. Gazette is hereby constituted the official paper of the order, and the notice of monthly payments and dues contained therein shall be considered the legal notice of monthly payments and dues, and the accountant shall not be required to send any other notice”; and “that all blanks used by a local, grand, or the Supreme Circle, shall be furnished by the Supreme Circle, and all rules and regulations printed thereon shall he of binding authority, whether specifically mentioned herein or not.” The stipulation also concedes as a fact that in the month of June, 1906, George S. Scheiber’s office address was 1338 Sheffield avenue, Chicago, and that to that address, between the first and fourth of June, 1906, there was mailed to Scheiber, postage prepaid, from Sharon, Pennsylvania, a copy of the P. H. C. Gazette, in which a notice of monthly payment of dues was printed, with the names of the members from whom payment was due, and that among them appeared the name of George S. Scheiber. The notice contained the following paragraph: “The receipt of this paper is not an acknowledgment by the Supreme Circle that the member is in good standing. If your last monthly payment or dues is not paid, your benefit certificate is null and void. W. S. Palmer, Supreme Secretary. ’ ’ Further, that neither Scheiber nor any one for him paid the monthly payment due for the month of June, 1906, under the laws of the order, until after July 1, 1906, or thereafter the monthly payments for August, September and October, 1906, and that the facts concerning payments for June and July, 1906, on behalf of Scheiber are not covered by the stipulation of facts. Plaintiff testified that in response to a postal card she received from Lou Rothschild, the accountant of the local circle, on which it was stated that Scheiber was suspended for non-payment of dues, she, on July 9, 1906, called on and paid to Rothschild the monthly payments for June and July assessments and twenty-five cents for reinstatement. On June 27, 1906, Scheiber was adjudged insane, but this fact was not communicated to Rothschild, the accountant, or to any other officer of the defendant, until after his death. Rothschild did not have in his possession July 9, 1906, any reinstatement blank, and he so informed plaintiff, at the same time telling her he would obtain some from the home office at Sharon and send one for the signature of Scheiber. This he did on July 14,1906. The letter to Scheiber in which the reinstatement blank was enclosed contained the following instruction: “Kindly fill it out and have it signed by two witnesses.” Plaintiff introduced the letter, the reinstatement form and the receipt for June and July payments and the reinstatement fee in evidence. In the reinstatement form this appears: “Having been suspended from the Protective Home Circle, I hereby request to be reinstated therein, and as conditions thereto, I herewith tender the amount required under the rules of the Order and submit the following as full and complete answers to the test questions, with agreement duly subscribed to.” This reinstatement form was neither executed nor returned by Scheiber, or any one for him, to defendant or to the local circle. The receipt for June and July payments and reinstatement fee contained this clause: “This receipt is given with the distinct understanding that it does not reinstate the individual and that the amount will be returned if not reinstated at the Supreme office. The applicant is not in good standing, nor in any way beneficial, or the beneficiary entitled to benefits until he is reinstated before the Supreme Secretary.” While plaintiff claims the payments and reinstatement fee were received by Rothschild, the local accountant, with the understanding that Scheiber was thereby reinstated, this is denied by Rothschild. Plaintiff made no further attempt to have her husband reinstated between July 9th and the date of his death, neither were any further steps taken until plaintiff, after her husband’s death, made a tender of the August, September and October payments. Rothschild denies that he sent notice of Scheiber’s suspension on a postal card, as testified by plaintiff, who also testified that she had lost the postal card, but did notify Scheiber of his suspension by letter of date July 6, 1906, which plaintiff brought to him on July 9, 1906, when she visited him and made the payments above recited, and that he kept the letter, and defendant offered it and it was received in evidence. That letter reads: “Bro. Gr. S. Scheiber, M. D. You are hereby notified of your suspension from the Protected Home Circle for non-payment of monthly payment for month of June, 1906, per Sec. 5, Art. 13, of Constitution. We are sorry indeed to lose your name, and hope you may soon be reinstated. Tours in S. E. F. & P. Lou H. Bothschild, Accountant.”
    Bothschild, as accountant, on July 9, 1906, sent his monthly report to the 'Supreme Secretary, in which Scheiber was mentioned as suspended for non-payment of monthly dues, stating that the last payment made was for May, 1906. The money paid by plaintiff was sent to the Supreme Secretary at Sharon, and by him retained, awaiting the arrival of reinstatement blank. As it did not arrive, the Supreme Secretary subsequently returned the money to Bothschild, the accountant of the local circle, who had it in his possession at the time of Scheiber’s death. When plaintiff called upon Bothschild in October after her husband’s death, he told her that he held the money subject to her order.
    The finding of the trial court was for the amount of the benefit certificate in plaintiff’s favor, and a judgment entered thereon against defendant, from which it prosecutes this appeal, seeking a reversal.
    J., A. McLaughry and Edmund S. Cummings, for appellant.
    O’Donnell, Dillon & Toolen, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

Two contentions are presented by this appeal. Defendant’s contention is that George S. Scheiber was not a member of its society at the time of his death, nor since June, 1906; while plaintiff contends, and the court below held, that the notice of suspension was not sufficient to operate as a forfeiture of all claims under the benefit certificate issued to Scheiber by defendant.

The court held as a proposition of law that the insanity of Scheiber “did not relieve him from a compliance with the rules and regulations of the defendant society, relating to the reinstatement of suspended members.” That such is the law is not disputed. Sec. 295 Niblack on Benefit Societies, 2nd ed.; Noel v. Modern Woodmen, 61 Ill. App. 597; A. O. U. W. v. Jesse, 50 ibid. 101. Neither will insanity excuse the non-payment of dues and assessments so as to operate to keep an insurance certificate in force while the insured is insane. Insanity does not relieve the insured from any obligation imposed by the terms of his insurance certificate, with the sole exception of personal attendance in complying with requisite conditions, that may be done by another for him.

The testimony in the record affirmatively establishes that Scheiber was supended from all benefit under his beneficial certificate for non-payment of the June, 1906, monthly payment, and that such suspension was'" brought about in the manner provided by the constitution and by-laws of the order, which constitution and by-laws formed a part of the terms and conditions under which the certificate was issued to Scheiber. By the express terms of the certificate, as well as the constitution and by-laws of the order, which were also made a part of the conditions of the certificate, a suspension for non-payment of monthly payments or any other infraction of the conditions upon which the certificate was issued, could be brought about without notice. Notice of any kind or character was by the terms of the contract dispensed with. The constitution and by-laws of the order were binding alike upon all the parties to the benefit certificate. Defendant and the member and all those claiming under him cannot escape the binding force of their contract, for in faith of its conditions it was made and accepted. No officer of defendant had the power or authority to waive the performance of any of its binding terms. It is clear • that no action on the part of defendant or its officers can be construed to have caused any misunderstanding on the part of plaintiff or Scheiber (if he was able to understand at all, and if by reason of his lunacy he was unable so to do, it is his and plaintiff’s misfortune, from the results of which the law will not excuse him) as to Scheiber’s being suspended for the non-payment of the June 1906 payment. By the testimony of plaintiff she concedes she had notice of her husband’s suspension from the accountant of the local circle in a written communication of July 6, 1906, in response to which she endeavored to procure a reinstatement. The letter, the reinstatement form and the receipt for the money which she paid the local accountant in an effort to procure a reinstatement and offered by her in evidence, all conclusively show that the suspension was complete, and that there could be no reinstatement except on compliance by Scheiber with the constitution and by-laws of the order relating thereto. The presumption that any rule was relaxed or held in abeyance is rebutted by plaintiff’s own proof. From the inception to the denouement defendant proceeded in all its actions in strict compliance with the constitution and by-laws and the terms of the. contract, which were binding upon all the parties to it. It would seem that all effort to reinstate Scheiber was abandoned after July 9,1906, for nothing further was done by Scheiber or by any one for bim until after his death. Mo attempt was made to pay either the August, September or October monthly payments, from which admitted fact it seems illogical to contend that plaintiff believed her husband’s certificate had been reinstated, for from her own evidence she must be presumed to have known that suspension would again occur for failure to make these monthly payments within the time agreed. Mor is it pretended that plaintiff was told anything or given any information or made any promise by defendant or any of its officers which would have raised any assumption in her mind that the succeeding payments would be dispensed with. Mor has plaintiff given any excuse for not notifying defendant that her husband had been adjudged to be insane; for had she communicated this fact to defendant, the matter of reinstatement might have been arranged, if defendant had the power to arrange that matter without the personal attention of plaintiff’s insane husband. As she produced upon the trial the form of reinstatement, letter and receipt sent by Bothschild, the accountant, to Scheiber, it must be assumed as proven that they reached Scheiber’s address in dne course of mail. It has been held that the receipt of an application for reinstatement by a delinquent member of a fraternal benefit society establishes knowledge of such member’s suspension, and that such suspension was lawfully brought about. Grand Lodge v. Cressey, 47 Ill. App. 616; Hansen v. Grand Lodge, 140 Ill. 301. Such suspended member can only' be reinstated in accordance with the laws and constitution of the society relating to reinstatement. National Council v. Dillon, 212 Ill. 325. The payment of the June and July payments and reinstatement fee, and their receipt by the local accountant, in no way had the effect of reinstating Scheiber or of relieving him from doing those things made necessary by the rules of the order as prerequisite to reinstatement. Neither did the receipt of the money operate as a waiver by the defendant of the necessity of Scheiber complying with the conditions established for reinstating a suspended member. Modern Woodmen of America v. Hicks, 109 Ill. App. 32; Northwestern Life Ins. Co. v. Amerman, 119 Ill. 329; McLaughlin v. Supreme Council, 184 Mass. 298.

While no notice of suspension or non-payment of any moneys due or assessed was required to be given members, yet by the custom and practice of defendant a notice of dues and payments was printed each month in the official organ of the society, the “Protected Home Circle G-azette.” The June 1906 number of this paper contained a notice to all members that their monthly payments and dues for June, 1906, were due and must be paid to the accountant of the Circle before the last day of the month. In the list of names in this notice Scheiber’s appeared. A copy of this Gazette, it was provided, should be sent to all members, although no specific date in the month on which the paper should be sent was provided for. As will be seen from the recitation of fact preceding this opinion, a copy of the June paper was sent to Scheiber, directed to him at his business address, about the sending of which there is no contradiction. Lacking any designated time when such paper should be sent to the members, the law required that the same should be mailed within a reasonable time. The fourth day of the month of the paper’s publication fulfils such requirement of the law. It was therefore sent within a reasonable time. Hamilton v. Scully, 118 Ill. 192. If the contention that Scheiber was entitled to notice of the payment due for June was tenable (which we do not think it is), then the mailing of the defendant’s paper containing the notice of payments due for June, 1906, was sufficient and is binding as notice to Scheiber of the amount due, for a failure to pay which he was lawfully suspended.

"When Scheiber died he was not a member of defendant society; he had been lawfully suspended from membership for failure to make the June, 1906, payment; his membership certificate then became forfeited, and plaintiff has no right or claim thereunder.

The judgment of the Municipal Court is erroneous, and it is reversed, and as plaintiff has no cause of action against defendant in virtue of the membership certificate in suit, the cause will not be remanded.

Reversed.


text:
    Adam Lauth, Appellee, v. Chicago Union Traction Company, Appellant.
    Gen. No. 14,203.
    1. Vebdict—when not disturbed for excessiveness. The assessment of damages is primarily the burden and duty of the jury and unless a court of review can say from all the evidence in the record that the assessment of damages is so clearly in excess of the injuries proven as resulting from the negligence charged, the judgment entered thereon will not be disturbed.
    2. Vebdict—when remittitur will cure excessive verdict. Where a verdict is apparently excessive, still if a remittitur of a sufficient amount be made, satisfying the mind of the trial judge, and seemingly to the reviewing court a complete curative of the excessive finding, a judgment on the excessive verdict, less the sum remitted, will not be disturbed.
    3. Vebdict—presumption arising from large remittitur. While it is undoubtedly true that a remittitur of a large sum from a verdict may tend to raise a suspicion that passion or prejudice was present in the minds of the jury and controlled their finding, yet such suspicion is not conclusive that the element of prejudice or passion did in fact exist in the minds of the jury or influenced them in making their award of damages.
    4. Verdict—when not excessive. Held, that a verdict of $12,500, reduced from $20,000 by remittitur of $7,500, rendered in an action on the case for personal injuries, is not excessive where it appeared that the injuries of the plaintiff consisted in part of a tearing of the external lateral ligament of the knee which resulted in synovitis of the knee joint and a stiffness and limitation of motion in that joint; the developing within eight days of the accident of an inguinal hernia in both groins which twice became strangulated with danger of recurring strangulation.
    5. Evidence—when, as to extent of injury, not mere speculation. Held, that where a hernia has been shown with a resulting strangulation upon several occasions, it is not incompetent as mere speculation to introduce evidence tending to show the likelihood of future strangulation.
    6. Instructions—when modification of, as to credibility of plaintiff, not improper. Held, that it was not error for the trial judge to insert in an instruction upon the subject of the credit to be given to the testimony of the plaintiff, the following language: “The jury have no right to discredit his testimony from caprice or merely because he is the plaintiff.”

      Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barses, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed February 15, 1909.
    John A. Rose, Albert M. Cross and Frank L. Kriete, for appellant; W. W. Gurley, of counsel.
    John F. Waters, for appellee; Joel Baker, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This cause has been twice determined in favor of plaintiff for personal injuries resulting to him through the negligence of defendant in the operation of its car, which came into collision with a buggy in which plaintiff was, at the time, riding. The first verdict was for $15,000, on which a judgment followed. The Branch Appellate Court affirmed this judgment upon a remittitur of $5,000. Defendant took the cause for further review to the Supreme Court of this State, and there the judgment was reversed in toto for the intemperate and prejudicial remarks indulged in by plaintiff’s counsel in his closing address to the jury. Vide 216 Ill. 176. Another trial before the court and jury resulted in a verdict for plaintiff and an award of damages in the sum of $20,000. Upon a remittitur of $7,500 from the amount of this verdict a judgment was recorded for $12,500, in an attempt to reverse which this appeal is prosecuted by defendant.

In the face of these two verdicts, defendant does not seriously contest its guilt of the negligence charged in the declaration. Neither does it challenge the validity of the pleadings. But appellant makes this statement in its brief, viz.: “There is a rule of law that where the evidence is close and the merits are in doubt, and where there is an irreconcilable Conflict of evidence, the rulings on instructions and evidence must be strictly accurate. The Appellate Court will closely scrutinize such rulings and will reverse the judgment for any inaccuracy which may have operated to the prejudice of the losing party.” We are not inclined to disagree with the accuracy of this statement.

Defendant urges in argument: First, that the.damages awarded hy the verdict are so excessive as not to be cured by the remittitur. Second, that the prognostication that strangulated hernia is liable to follow from plaintiff’s ruptures, is speculative, and the evidence concerning it in the record erroneously admitted. Third, that the modification of defendant’s seventh instruction was reversible error.

First. The assessment of damages is primarily the burden and duty of the jury, and unless the court of review can say from all the evidence in the record, that the assessment of damages is so clearly in excess of the injuries proven as resulting from the negligence charged, the judgment rendered thereon will not be disturbed. And where a verdict is apparently excessive, still if a remittitur of a sufficient amount be made, satisfying the mind of the trial judge, and seemingly to the reviewing court a complete curative of the excessive finding, a judgment on the excessive verdict, less the sum remitted, will not be disturbed. While it is undoubtedly true that the remittitur of so large a sum as $7,500 from the- verdict may tend to raise a suspicion that passion or prejudice were present in the minds of the jury and controlled their finding, yet such suspicion is not conclusive that the element of prejudice or passion did in fact exist in the minds of the jury or influenced them in making their award of damages. Judgments rendered on remittiturs of $6,000 from a verdict of $21,000, and a like sum from a verdict of $9,00p, were sustained in C. & E. I. R. R. v. Cleminger, 77 Ill. App. 186, and Cicero & Proviso St. Ry. v. Brown, 89 ibid. 318. In the Cleminger case supra the court say: “Where no error appears in the proceedings of the trial, where the evidence supports the verdict for the larger part of the amount awarded, and it cannot be said that the amount of the verdict in itself indicates any improper motive on the part of the jury, it would seem a hardship to remand the appellee to the delay and expense of another trial.” And as said by the court in the Brown case, supra, so we say here: “The claim of appellant that the verdict was so excessive as to show passion and prejudice on the part of the jury, and that it is not cured by the remittitur, is not, in our opinion, tenable under the facts shown in the record. ’

What was said in the opinion in Hirsch v. Traction Company, 146 Ill. App. 501, has equal force and application to the case at bar: “In no event can we reverse on this ground unless it is apparent the whole, of the evidence of plaintiff considered standing alone, without reference to the countervailing proofs of defendants, is sufficient to support the judgment for the amount for which it was ultimately entered. Nor are we at liberty to say, from the fact that plaintiff remitted so large a portion of the verdict, that the presumption of prejudice or passion arises.”

The proofs of plaintiff establish the fact that he suffered severe and painful and permanent physical injuries as the result of the negligence charged, of which two juries have found the defendant to be guilty. These injuries consisted in part of a tearing of the external lateral ligament of the knee, which resulted in synovitis of the knee joint and a stiffness and limitation of motion in that joint; the developing within eight days of the accident of an inguinal hernia in both groins, which twice became strangulated, with danger of recurring strangulation. The conditions of strangulated hernia are alarming and at times result in death, and are liable to terminate fatally at any recurrence unless promptly relieved. For the hernia plaintiff continually wears a truss. Plaintiff is nervous and his mind affected as a result of his injuries,, the mental disturbance being designated by the medical term “cerebrasthenia.” We are not permitted, even were we so inclined, to interpose onr opinion in opposition to that of the jury and the trial judge, and decide to be excessive the damages finally adjudged for such serious physical conditions as resulted from the injuries inflicted through defendant’s negligent act.

Second. The admission of medical testimony that strangulated hernia was liable to occur from the double rupture suffered by the plaintiff as the result of the injuries brought about through defendant’s negligence is erroneous, defendant argues. This case, however, differs radically from those cited by counsel in support of its contention. Were this case akin to those so cited, the point would be well made. In the cases cited there had been no symptoms of strangulation, so that the supposition that such a condition might occur in the future, was mere conjecture and speculation. But in the .case at bar we have proof of several conditions of strangulation and the prognostication was as to whether a recurrence was reasonably to be expected, and what consequences might follow such recurrence. A condition of recurrence of the difficulties which actually happened were proper subjects of inquiry, and when established by proof satisfactory to the jury, was proper to be taken into consideration by them in measuring plaintiff’s damages. A careful reading of the evidence on this branch of the case satisfies us that it established as a fact that the condition of strangulation is reasonably to be expected in the future. In Chicago v. Gillett, 108 Ill. App. 455, it was held that the danger of a hernia becoming strangulated was an element proper for the consideration of the jury in assessing damages. Chicago City Ry. v. Willard, opinion filed March 5, 1907, not reported; P. F. W. & C. R. R. v. Moore, 110 Ill. App. 304. In the latter case the court say: “The opinions of physicians and surgeons may be admitted to show the probable future consequences of the injury, when the consequences anticipated are such as, in the ordinary course of events, may reasonably be expected to happen and are not merely speculative or possible. It is permissble for the surgeons to prove the probable-effects of an injury.”

It is again objected that the form of hypothetical question asked some of the medical witnesses is improper. But we cannot concede this claim. What the court said in Traction Co. v. Roberts, 229 Ill. 484, is decisive of the objection against defendant. It said this: “It is entirely immaterial whether the witness testified that the injury was the cause of the condition, or that the injury was sufficient to cause the condition or might have caused it. In any event the testimony was merely the opinion of the witness, given, as such, upon a state of facts assumed to be true. It still remained for the jury to determine the facts, and the opinion was nevertheless an opinion only, whether it states what did cause the condition or what might cause it. The question may be asked in either form.” Traction Co. v. Roberts, 131 Ill. App. 476.

Third. The fault attempted to be pointed out in instruction seven does not appear to be inherent in it. The instruction was good as tendered, and after change by the trial judge by inserting the words “the jury have no right to discredit his testimony from caprice or merely because he is the .plaintiff,” was equally vulnerable to legal objection. It might have been given in either form.

In conclusion we are satisfied that there has been a fair and impartial trial of this cause, conformable to well-established methods of legal procedure obtaining in like cases. We appreciate the suspicions of defendant’s counsel engendered from the fact that Lauth was and had been for many years previous to the time he met the accident in question a promoter in the prosecution of suits for personal injuries in the courts of Cook county; that he both sought the cases and aided in choosing lawyers to prosecute them, and actively participated in preparing such cases for trial, more particularly in interviewing witnesses whose testimony was favorable to the several causes which he espoused. Still, we are unable to find anything in this record to justify a suspicion that Lauth has not proven a meritorious cause of action against defendant, or that he was not badly, painfully and permanently injured in the accident which happened to him as the result of the negligence charged and proven against defendant. Two juries have with unanimity so determined, and with the judgment appealed from entered on the last verdict, less the remittitur, we find no legal cause to interefere.

The judgment of the Superior Court is affirmed.

Affirmed.


author: Me. Justice Holdom

text:
    John Cerny et al., Plaintiffs in Error, v. Sesterska Podporujici Jednota, Defendant in Error.
    Gen. No. 14,209.
    This case is controlled by the decision in Cerny v. Jednota Cesky Dam, ante, p. 518.
    Action of contract. Error to the Municipal Court of Chicago; the Hon. Chables N. Gooditow, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed February 15, 1909.
    Rehearing denied March 4, 1909.
    John W. Jedlan, for plaintiff in error.
    No appearance by defendant in error.
   Me. Justice Holdom

delivered the opinion of the court.

This cause was tried in the Municipal Court without the intervention of a jury, upon the testimony of witnesses heard orally and the following stipulation of facts:

“It is hereby stipulated and agreed by and between all the parties to the above entitled cause that on January 14, A. D. 1906, the Sesterska Podporujici Jednota was a fraternal beneficiary association organized and existing under the laws of the State of Ohio; that the statutes of Ohio governing said society and applicable to the cause read as follows:

“Chapter 10, section 3630: ‘ * * * A company may be organized * * * for the payment of stipulated sums of money to the families, heirs, executors, administrators or assigns of the deceased members of such company or association, as the member may direct in such manner as may be provided in the bylaws * * * ’.

“That on the 15th day of March, A. D. 1907, Katerina Hubiclca, then being a member of Sbor Devin No. 26, a subordinate lodge of said society, governed by the same laws and by-laws, in good standing and entitled to the benefit of gaid society, died, leaving her surviving John Cerny and Anna Borovansky, her only half-brother and sister, plaintiffs in the above entitled cause, who are above the age of twenty-one years.

“That on the 14th day of January, 1906, a benefit certificate for $500 was issued by the said society under the hands of the officers of said subordinate lodge, to said Katerina Hubicka, making death benefits payable to Joseph and Mary Cunat; that Mary Cunat was at the time of issuance of said death benefit certificate a first cousin to said Katerina Hubicka. ’ ’

The trial judge found the issues for the defendant in error, upon which a judgment of nil capiat was rendered, in an effort to reverse which the plaintiffs have brought the record before us for review.

The questions of law and fact presented by the record under consideration are substantially the same in every material particular as presented in case general number 14,208, entitled in the name of the same plaintiffs against Jednota Cesky Dam. Both actions are brought by plaintiffs upon benefit certificates as heirs at law of the member of the defendant organization; the amount of the benefit in each certificate being payable to “Joseph and Mary Cunat,” to whom the defendant in each case paid the amount due, after the death of Katerina Hubicka, with knowledge of plaintiff’s claim.

The opinion filed in case Glen. No. 14, 208, ante, p. 518, decides all the questions, both of fact and law, pertinent to our decision in this case, and we therefore, without repeating, adopt it as our .opinion here and as being decisive of the interests here involved.

For the reasons stated in our opinion in case Gfen. No. 14,208, the judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Theresa Byers, lately known as Mrs. T. R. Creak, for use of John E. Wright, Plaintiff in Error, v. Illinois Trust & Savings Bank, Garnishee, and James C. Byers, adverse claimant, Defendants in Error.
    Gen. No. 14,260.
    1. Garnishment—character of proceeding. A garnishee proceeding although brought on the law side of the court is a statutory one and in its nature equitable. Rules of an equitable nature obtain in arriving at a conclusion upon which the decision rests.
    2. Garnishment—when interplea determined in favor of husband of debtor. Meld, from the evidence in this case that the money in the hands of the garnishee belonged to the husband of •the judgment debtor and was not subject to be reached by garnishment process.
    Garnishment. Error to the Municipal Court of • Chicago; the Hon. John C. Scovel, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed February 15, 1909.

      Horace C. Bennett and Enoch Harpole, for plaintiff in error.
    William F. Thomas and George Scheiber, for defendants in error.
   Mr. Justice Holdom

delivered the opinion of the court.

James C. Byers married Mrs. T. B. Creak, a widow, on August 17,1907. The widow Creak on May 2,1907, suffered John E. Wright to recover against her a judgment for $49 and costs of suit. This judgment remained unsatisfied at the time of her marriage to Byers. On October 14, 1907, this proceeding of garnishment was commenced in the Municipal Court against Theresa Byers, formerly Creak, to subject the money on deposit in her name with the Illinois Trust & Savings Bank to the payment of Wright’s judgment for $49. At the time of the service of process on the Bank there was to her credit in two savings accounts, the sum of $455 in one, and $11.03 in her former name of Creak in the other. James O. Byers, the husband, appeared in the proceeding and claimed that all of the $455 to the credit of his wife in her account as Theresa Byers was his money, in which his wife had no interest. After a hearing before the trial judge, a jury having been waived, the claim of James C. Byers was sustained and a judgment rendered against the Bank for the use of Wright for $11.03, the amount on deposit belonging to Mrs. Byers formerly Creak. From this finding and judgment Wright prosecutes this writ of error.

The undisputed facts in relation to the $455 deposit in the Bank in the name of Mrs. Byers are, that at the time of Byers’ marriage to Mrs. Creak he had on deposit in the Bank of Montreal the sum of $480; that on August 24, 1907, he withdrew the $480 from the Bank of Montreal, with the intention of using the same in the purchase of real estate, hut did not carry out that intention. On August 26, 1907, he gave Mrs. Byers the $480 for the purpose of having her deposit it in the Bank in his own name. Mrs. Byers went to the garnishee Bank and endeavored to open with it a savings account in her husband’s name. . This, she was informed, she could not do in the absence of her husband, and it was thereupon suggested to her that she could put the money in the Bank in her own name in a separate account from the one she already had, and that her husband could attend later and have the account changed to his own name. She followed this suggestion and a new account was opened in her name and the $480 deposited. On September 16, 1907, Mrs. Byers drew from the account $200, which her husband paid upon a contract of purchase of real estate in his own name. On September 24, 1907, James O. Byers had $175 which he had obtained for work done by him, which he gave to his wife, who took it to the Bank and deposited it in the account which she opened on August 26, 1907. This left a balance in that account of $455. Byers was a carpenter, and being busy did not wish to lose the time from his work necessary to visit the Bank, which was some distance from his business, intending, however, to do so at a more convenient season and change the account to his own name, in accord with the suggestion made by the Bank’s representative at the time his wife deposited his $480.

The dispute between the parties presents for determination the question whether the $455 in Bank in Mrs. Byers ’ name, was her money or the money of her husband, who claims it.

A garnishee proceeding, although brought on the law side of the court, is a statutory one and in its nature equitable. Buies of an equitable nature obtain in arriving at a conclusion upon which a decision rests. It is quite apparent that Wright, who sues out the writ of garnishment in virtue of his judgment against the widow Creak, now the wife of James C. Byers, can have no greater title to the money sought to he garnisheed than would Wright’s judgment debtor. This.is an inflexible rule, which is never relaxed unless, by the action of the parties, the plaintiff has been induced to part with his property in faith of the surface appearances being the true condition. Nonotuck Silk Co. v. Levy, 75 Ill. App. 55. Here Wright procured his judgment before the marriage of Mr. and Mrs. Byers. At no time is it pretended that Byers gave his money in the Bank of Montreal to his wife for her own use. Her possession of it was as his agent only and for a temporary convenience. The very fact that $200 drawn by Mrs. Byers was used toward the payment of real estate contracted to be bought in her husband’s name, lends strong corroboration to Byers’ claim. On no theory under the facts in proof could Mrs. Byers claim ownership of the money. It was the money of Byers and in law he has not done anything which will operate to divest him of its ownership. He did not give the money to his wife, or any part of it. What he did was to entrust it to her keeping for security as his agent until a time convenient for him to attend on the Bank and arrange to open an account in his own name.

Hank v. Van Ingen, 196 Ill. 20, cited by counsel for Wright to sustain their contention that when the wife deposits money of her husband in bank to her own credit, with his knowledge, that it becomes subject to garnishment at the instance of such wife’s creditors. But this case does not so decide. Neither does it announce any such doctrine. That was a creditor’s bill to reach the property of the husband conveyed to the wife in fraud of the rights of creditors of the husband existing at the time of the transfer of the property sought to be subjected to the payment of such creditors’ claims. Nor is this case akin to People v. State Bank, 36 Hun (N. Y.) 607. In the State Bank case the husband gave the money in bank to his wife to please. her. As between husband and wife that consideration was a good one, sufficient to vest her with such title to the money that against her protest put it beyond recall by the husband. As far back as Sender v. Ridgeway, 49 Ill. 522, it was held in a garnishee proceeding that it was competent to prove whether the money due under a promissory note, payable to the wife, was not in fact the property of the husband. Under the authority of Hair, use., etc., v. The Northwestern National Bank, 50 Ill. App. 211, the Bank in this case would have been authorized to pay $455 to Byers upon his making claim for it, he being the principal to whom the money belonged, and his wife having deposited it in the Bank in her own name as agent of her husband. In the Hair case, supra, this court say: “It has from time immemorial been to some extent customary for agents to do in their own name the business of principals; in such case the principal, when discovered, may be sued and held as such, or he may voluntarily come forward and claim the benefit of the' contracts made and business done by the agent. Meachem on Agency, Secs. 695, 696, 701, 769.”

The judgment of the Municipal Court being right is affirmed.

Afirmed.


text:
    William Hayes, Plaintiff in Error, v. The People of the State of Illinois, Defendant in Error.
    Gen. No. 14,332.
    1. Assault atto battery—when ejection does not constitute. After a person on private premises has raised a disturbance and been requested to leave, he may be lawfully ejected from such place and no assault is committed if no unnecessary force is employed in such ejectment.
    2. Criminal law—extent of application of rule to prove beyond a reasonable doubt. The rule in regard to reasonable doubt applies to all offenses of every degree, whether greater or lesser, and it is the right of the accused, under a well-founded doubt of his guilt, to have a verdict of acquittal.
    Prosecution for assault and battery. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed.
    Opinion filed February 15, 1909.
    Sears, Meagher & Whitney, for plaintiff in error; Frederick A. Freeark, of counsel.
    John J. Heady, for defendant in error; Willett H. Cornwell, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

The plaintiff in error, Hayes, was arrested on a so-called “John Doe” warrant, charging him with committing an assault and battery upon the person of one C. Goodman, and upon a trial before a judge of the Municipal Court of Chicago, without the intervention of a jury, a trial by jury having been waived, was found guilty and fined $15 and condemned to pay the costs of the prosecution. From this judgment Hayes seeks a review of the record in this court and a reversal of the judgment of conviction.

Hayes, at the time of the alleged assault and battery, was a special policeman, wearing a “star” and clothed in the garb of a city police officer, in the employ of the People’s Gas Light & Coke Company, on duty at its office at the corner of Twelfth Street and Blue Island avenue. Goodman was a consumer of gas of the Gas Company, and at the time in question was at its office, above mentioned, for the purpose of paying a bill for gas which he owed to the Gas Company. On his appearance at the office there was a line of people seeking to discharge their indebtedness to the Company, and Hayes was there to see that each person on arrival took an appropriate place in the line and to preserve order. Goodman said he was in a great hurry and wanted to pay his bill at once and get away without the delay necessarily following his taking his place in the line. He thereupon spoke to Hayes and asked him to let him pay his bill at once. Hayes told him he could not do so, but must take his place in the line and be treated as all the rest of the persons then present were treated; that all persons were entitled to equal privileges. Goodman was abusive to Hayes, and reluctantly took his place in the line, and during his progress toward the paying window was quarrelsome in his conduct and language toward Hayes. When he finally arrived at the paying window he renewed his complaint of Hayes to the receiving teller, and kept up a conversation with Hayes and threatened to report him and get his job from him. After paying his bill he lingered at the window, talking in a quarrelsome way all the time, and upon being informed by both Hayes and the receiving teller that he must cease making a disturbance and go away about his business, he still persisted in continuing his disorderly conduct, refusing to go away. Hayes threatened to put Goodman out unless he departed peacefully. On further refusal Hayes attempted to remove him. Goodman resisted by clutching hold of the window, and when Hayes forcibly removed Goodman to the door, he grabbed it, and Hayes thereupon thrust him through it into the street. In the tussle Goodman’s head was knocked against the door, bruising it. Goodman then swore out the warrant under which Hayes was arrested and fined.

We have examined the evidence in this record with care, and are convinced that the greater weight of the evidence sustained the facts of the occurrence substantially as above stated. We find nothing to be reprobated in the conduct of Hayes in this affair. He was simply enforcing an orderly regulation necessary to the conduct of his employer’s business at that place. Every request he made of Goodman was reasonable, and we can find no excuse for the glaringly disorderly conduct of Goodman. It was Goodman who was in bad temper, not Hayes. It was Goodman who was disorderly, not Hayes. It is Goodman’s conduct which was reprehensible, and not Hayes’. Goodman was in fault from the beginning to the end. His actions were inexcusable. All the force used by Hayes in removing Goodman from the window and finally putting him out of the store into the street, was made necessary by Goodman’s continued resistance. Hayes used no more force in lawfully removing Goodman than was essential to accomplish that end. Goodman was engaged in unwarrantably creating a disturbance upon the Gas Company’s premises, tending to a breach of the peace, and as a peace officer, in the preservation of order, it became the duty of Hayes to remove him and to use, in so doing, all necessary force. He was not, however, justified in using any more force than was actually essential to effect Goodman’s removal and the evidence in its entirety fails to show that Hayes was guilty of the use of any excessive force. If Goodman had been peaceably inclined, he would have left without engaging in a scuffle, for his rights, if wrongfully evicted, would have been as fully preserved by going out at the command of Hayes, accompanied by a threat to enforce such command, as by resisting the efforts made to remove him.

The case of Woodman v. Howell, 45 Ill. 367, is, we think, controlling of the case at bar. While the Woodman case was one for damages for a trespass vi et armis, its principles are equally applicable to a criminal action for assault and battery. In the Woodman case the employe put the plaintiff out of the premises of his employer by the use of such force as was made necessary to expel him, after a request that he leave, and the Supreme Court held that he was justified in so doing and was not answerable for any damages not resulting from the use of excessive force. Commonwealth v. Clark, 43 Mass. 23, is to a like effect.

At the close of the evidence, and after the infliction of a fine of $25, the State’s representative who conducted the prosecution, seemingly convinced from the proofs, as we are, that no case had been made. out warranting a conviction of Hayes, moved the court to vacate the judgment, but on intimation from the presiding judge that he would not entertain it, withdrew the motion, whereupon the judge reduced the fine to $15. What influenced the judge to refrain from entertaining the State’s motion, we are unable to discover. Neither can we understand the logical processes by which he reached the conclusion he did. That the court was at least in doubt as to the guilt of Hayes is, we think, made evident from the fact that he immediately reduced the fine from $25 to $15. If the trial court had a reasonable doubt as to Hayes ’ guilt, it was its duty to resolve it in favor of Hayes. It is the law that every person on trial for an offense which may be punished by imprisonment, must be adjudged guilty from the proofs, beyond a reasonable doubt. Moore’s Criminal Law, 809.

For non-payment of the fine imposed Hayes could be imprisoned in the House of Correction until he had worked it out at the rate of $1.50 a day. Moore states the rule thus: ‘ ‘The rule in regard to a-reasonable doubt applies to all offenses of every degree, whether greater or lesser, and it is the right of the accused, under a well-founded doubt of his guilt, to have a verdict of acquittal. The jury have no discretion about it. Reins v. People, 30 Ill. 257; Stuart v. People, 73 ibid. 20; Marlatt v. People, 104 ibid. 364; Price v. People, 109 ibid. 109.

The judgment of conviction by the Municipal Court being erroneous, is reversed.

Reversed.