text:
    Peter Fox et al., trading as The Peter Fox Sons Company, Defendants in Error, v. Chicago & Northwestern Railway Company, Plaintiff in Error.
    Gen. No. 21,101.
    1. Carriers, § 139

      —when evidence sufficient to sustain finding as to damage to fruit by negligence. In an action for damages resulting from delay in transportation of car of cherries, evidence examined and held to sustain finding that damage resulted from negligence of defendant.
    2. Appeal and error, § 1077*—when assignments of cross-errors properly before court on review. Assignments of cross-errors are properly before the court on review though no exceptions to the rulings of the trial court are preserved.
    3. Carriers, § 160*—when shipper electing to ship under uniform bill of lading bound by provisions limiting liability. Where a shipper having option of shipping under the uniform bill of lading or, by paying a higher rate, shipping under carrier’s liability as imposed by common law or State or Federal law, so far as applicable, elects to ship under uniform bill of lading, he is bound by limitations of carrier’s liability contained therein.
    4. Carriers, § 143*-—what damages recoverable under bill of lading limiting liability to bona fide invoice price and freight. Under a bill of lading providing that, “The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid) at the place and time of shipment under this bill of lading,” the liability of the carrier, in case of total loss of shipment through its fault, is limited to the “bona fide invoice price” of the property at the time and place of shipment, plus freight charges, if prepaid; but if the property is damaged through the fault of the carrier, the amount of its liability is the amount of the damage provided the same does not exceed the “bona fide invoice price” of the property at the time and place of shipment.
    5. Appeal and error, § 1810*—when final judgment entered on reversal without remanding. On reversal of a judgment, where all the facts are before the court and a jury trial has been waived, judgment will be entered in the Appellate Court for the amount due without remanding.

      Error to the Municipal Court oí Chicago; the Hon. Edwabd T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and judgment here.
    Opinion filed May 12, 1916.
    Charles A. Vilas and Ira C. Belden, for plaintiff in error; William: G. Wheeler, of counsel.
    Pines & Newmann, for defendants in error; Alvin E. Stein, of counsel.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Defendants in error (plaintiffs) recovered a judgment in the Municipal Court of Chicago against the plaintiff in error (defendant) for $105, damages occasioned by the delay in transporting a car of cherries from Sturgeon Bay, Wisconsin, to Chicago, to reverse which the defendant prosecutes this writ of error, and the plaintiffs have assigned cross-errors.

The facts are these: On Friday, July 26, 1912, about 9:30 o ’clock a. m., the defendant received at Green Bay Junction, Wisconsin, from the Green Bay and Western Railroad Company a car of cherries to be delivered by the defendant to the plaintiffs in Chicago. After the defendant received the car, its first train carrying perishable freight left North Green Bay for Chicago at 1 o’clock p. m. This train was not scheduled to stop at Green Bay Junction. The defendant also operated a switching train which carried perishable freight from Green Bay Junction to North Green Bay, a distance of three miles, where it could be picked up and brought to Chicago by the regular trains carrying perishable freight. The car in question remained at Green Bay Junction from 9:30 a. m. to 5:30 or 6:00 o’clock p. m. of the same day, and was there picked up by a slow freight train and brought to Chicago. The usual time required for this train in making the trip to Chicago was about thirty-three hours, while the usual time for trains carrying perishable freight was from seventeen to nineteen hours. If the car had been brought to Chicago by the train carrying perishable freight, it would have arrived about 8:45 a. m. Saturday, but being brought on the slower train, it did not arrive until about 8 o’clock a. m. Sunday, and the cherries could not be moved until Monday. The car contained 630 cases of cherries, which the plaintiffs had sold for $1.75 per case. As they were unable to deliver them on Saturday, and could not do so until Monday, some of the cherries had become damaged and were sold at the fair market price, as follows: 255 cases, $1.75; 177 cases $1.60; 198 cases, $1.20.

There was evidence which tends to show that the damage to the cherries was caused by the delay in shipment, and that the car was not properly iced. The defendant contends that it was in no way negligent in transporting the car; that it properly iced the same; that the bill of lading under which the cherries were shipped expressly provided that the defendant was not bound to transport the car on any particular train, or in time for any particular market, or otherwise than with reasonable dispatch, unless by specific agreement, and that there was no such specific agreement. The question is not whether the defendant was required to transport the cherries by a particular train, or deliver them in time for any particular market, but whether due diligence was used to transport them with reasonable dispatch and whether the car was properly iced. We think that the evidence is sufficient to sustain the finding of the trial court that the cherries were damaged by reason of the negligence of the defendant.

The defendant contends that the court erred in its rulings on the admission of certain evidence. We have carefully considered the objections urged and find the same without merit.

Plaintiffs have assigned cross-errors, and contend that the court did not apply the proper measure of damages. The defendant has moved in this court that the cross-errors be stricken from the record; for the reason that the plaintiffs preserved no exception to the ruling of the court complained of, which motion was reserved to the hearing. The argument -is that exceptions were not properly preserved as required by section 81 of the Practice Act (J. & A. j[ 8618). We think that the cross-errors are properly before us for consideration, and the motion of the defendant will be denied. Miller v. Anderson, 269 Ill. 608.

The cherries were carried subject to the terms and conditions of the uniform bill of lading. Among the conditions printed on the bill of lading is the following: “The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the -freight charges., if prepaid) at the place and time of shipment under this bill of lading, unless a lower value has been represented in writing by the shipper or has been agreed upon or is determined by the classification or tariffs upon which the rate is based, in any of which events such lower value shall be the maximum amount to govern such computation, whether or not such loss or damage occurs from negligence.”

The plaintiffs contend that this provision of the bill of lading “limiting the amount of recovery, to the value of the goods at the point of shipment is against the law, as limiting the carrier’s liability for loss or damage arising from the negligence of the carrier”,; that the proper measure of damages is the difference between the market value of the property at the time and in the condition it should have arrived at its destination, and its fair market value at the time it actually did arrive at its destination, pins the necessary expenses to the shipper caused by the negligence of the carrier.

The defendant contends that the provision above quoted is valid and binding, and therefore the proper method of computing the damages, if any, is, as provided in the bill of lading, to take the invoice price of the cherries at the time of their delivery to the railroad company in Wisconsin, plus the freight charges, and from this total deduct the amount actually received for them when sold in Chicago. This was the view adopted by the trial court. The invoice price of the cherries in Wisconsin was stipulated to be $1.60 per case, or $1,008 for 630 cases. This amount, plus $64 freight charges, makes a total of $1,072. Plaintiff obtained for the cherries in Chicago in their damaged condition $967, which the court deducted from $1,072, leaving a balance of $105, for which amount judgment was entered.

Under the classification of tariffs, filed for the defendant with the Interstate Commerce Commission, it was provided that property not carried subject to the terms of the uniform bill of lading would be carried on the basis of defendant’s liability, limited as provided by common law and by the laws of the United States and of the several States in so far as they should apply, and that the freight rate charged would be ten per cent, higher than the rate charged for property carried under the terms of the uniform bill of lading. The plaintiffs had the option of accepting the limitation of the defendant’s liability and receiving a. reduced rate; or of paying a higher rate, in which event the liability of the defendant would have been that imposed by law. The plaintiffs saw fit to accept the limitation of the defendant’s liability as shown in the provision above quoted, in consideration of which they received the benefit of the reduced rate, and the limitation in question was therefore valid and binding. Adams Exp. Co. v. Croninger, 226 U. S. 491.

We are, however, unable to concur with the contention of either the plaintiffs or the defendant as to the method of computing the amount of damages under the limitation referred to. In our opinion the provision in the bill of lading limits the liability of the defendant, if the property was totally destroyed through the fault of the defendant, to the “bona fide invoice price” of the property at the time and place of shipment, plus freight charges if prepaid. If the property is damaged through the fault of the defendant, the amount of liability is the amount of the damage provided the same does not exceed the “bona fide invoice price” of the property at the time and place of shipment. New York, P. & N. R. Co. v. Peninsula Produce Exchange, 122 Md. 215, affirmed by United States Supreme Court, 240 U. S. 34, 36 Sup. Ct. Rep. 230.

In that case the produce company delivered to the railroad company a carload of strawberries for transportation from Maryland to New York. The shipment reached its destination in good condition, but about six hours later than the customary time of arrival. The price of berries at that time had fallen about 2 or 3 cents per quart below the market price at which the berries would have been sold had the car arrived on schedule time. Suit was brought for the loss. The berries were shipped under the uniform bill of lading which contained the same provision as the one above quoted. In discussing the question of damages, the Maryland Court there said (p. 228): “If the berries had been totally lost or destroyed, recovery would have been restricted to their value at the time and place of shipment. Unless the stipulation in the bill of lading is to be altogether disregarded, the carrier could not justly be charged with a greater loss to the property for delay in transit than would result from an absolute failure of delivery. The value of the berries as received for shipment would therefore seem to be a proper subject for inquiry in the determination of the carrier’s liability. The ordinary measure of recovery would be the ‘ decline in the market value between the time when they could have been sold, if they had been transported with due dispatch, and the time when they were actually sold.’ * * *

‘1 The measure of liability, as already indicated, was the loss of market value, and there was testimony as to the fact and extent of such loss. The offer of proof as to the original value of the berries would not have changed the basis of liability, but would simply have placed a limitation upon the amount of the recovery. ’ ’

In affirming the judgment of the Maryland Court, the Supreme Court of the United States said (p. 40): “As the court of appeals of Maryland said, the ground of the action was ‘the failure to carry with reasonable dispatch, and the loss of marketability is mentioned as the element of damage. ’ That is, the reference to the market said to have been lost was merely for the purpose of calculating damages which were sought solely because of lack of reasonable diligence, and not upon the allegation of any added duty with respect to a particular train or market. * * *

“The instructions, however, permitted the jury to award as damages the amount of the decline in value, due to the delay, at the place of destination, without stating the limitation set forth in the tariff of the plaintiff in error as filed. * * * The condition in the bill of lading and in the filed tariff provided that ‘the amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid) at the place and time of shipment under this bill of lading, unless a lower value has been represented in writing by the shipper or has been agreed upon or is determined by the classification or tariffs upon which the rate is based, in any of which events such lower value shall be the maximum amount to govern such computation, whether or not such loss or damage occurs from negligence. ’ Treating the rate charged for the transportation as based upon assent to this provision, the court of appeals construed the stipulation not as changing the basis of liability, but as limiting the amount of the recovery in any event to the value of the property at the time and place of shipment, no other value having been agreed upon. (Citing Adams Exp. Co. v. Croninger, supra, and other cases.) It appeared from the evidence that the berries were sold in New York City at an average price of 61/2 cents a quart. It was also proved that the decline in value due to the delay was from 2 to 3 cents a quart. * * * The jury gave damages at the rate of 2 cents a quart for 240 crates (7,680 quarts) shipped. The court held that it could not be said, as the defendant contended, that there was no proof of actual damage from the delay; and that, so far as the maximum liability fixed by the filed tariff was concerned, the court was justified in taking the value of the berries at the time and place of shipment as being at least equal to the 2 cents a quart allowed. Upon this point the court of appeals said: ‘It may be judicially assumed that their value at the time and place of shipment was at least equal to the 2 cents per quart which the jury allowed as damages, and in the view we have taken of the case no just purpose would be served in reversing the judgment and subjecting the parties to the expense of a new trial. ’ That is to say, upon the facts as the State court found them to be, the agreed maximum of liability as stipulated was not exceeded. ’ ’

In that case it was expressly held that the provision contained in the bill of lading, which is identical with the one in the case at bar, limited the maximum liability that could be recovered in any case, to the “bona fide invoice price” of the property at the time and place of shipment. To the same effect is the case of J. C. Shaffer & Co. v. Chicago, R. I. & P. Ry. Co., 185 Ill. App. 615, where it was held that the maximum amount that could be recovered against the railroad company for failure to deliver the property was the bona fide invoice price at the time and place of shipment. If we should adopt the view of counsel for the defendant, then a railroad company would never be liable for its negligence in failing to deliver goods within a reasonable time, except where the amount received for the goods in their damaged condition was less than the bona fide invoice price.at the time and place of shipment. Manifestly this would be a strained and unreasonable construction to place upon the provision in the bill of lading.

In the ease at bar, following the rule as to the measure of damage announced by the Maryland Court of Appeals and affirmed by the United States Supreme Court, we find that the 630 cases of cherries were sold in Chicago for $1.75 per case before they were shipped, but on account of the delay, plaintiff was compelled to dispose of them for the following prices: 255 cases, $1.75 per case; 177 cases, $1.60 per case; 198 cases, $1.20 per case, making a total of $967.05. This sum deducted from the amount the plaintiffs should have received for the cherries, $1,102.50, leaves a net loss of $135.45, which amount the plaintiff is entitled to recover.

The judgment must therefore be reversed, but as all the facts are before this court, and as a jury was waived, no reason exists for remanding the cause. A judgment will therefore be entered in this court in favor of the plaintiffs for the amount due, which is $135.45.

Judgment reversed and judgment in this court.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Nick Forte and Pasquale Forte, trading as Nick Forte & Brother, Defendants in Error, v. Simon Cohen, Plaintiff in Error.
    Gen. No. 21,110.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed May 12, 1916.
    Rehearing denied May 24, 1916.
    Statement of the Case.
    Action by Nick Forte and Pasquale Forte, trading as Nick Forte & Brother, plaintiffs, against Simon Cohen, defendant, to recover commissions for sale of real estate. To reverse a judgment in favor of plaintiffs, defendant prosecutes a writ of error.
    The contention of the defendant in the court below was that he sold the property through his own efforts, and that the plaintiffs did not procure the purchaser for the same. The defendant and his wife both testified in his behalf, and during their examination the court refused to allow them to testify as to what was said and done by them directly with the purchaser of the property. The objection was that as the conversations took place out of the presence of the plaintiffs, they were not admissible. The plaintiffs sought to prove that they had procured the purchaser for the property, while the defendant sought to prove that he had obtained the purchaser himself.
    Harry G. Wexler, for plaintiff in error.
    Louis Zimmerman, for defendants in error.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Abstract of the Decision.

1. Brokers, § 85 —when evidence as to negotiations of with purchaser admissible. In an action by brokers against an owner of real estate for commissions for the sale thereof, the defendant may introduce evidence of negotiations by him with the purchaser in support of his defense that the sale was consummated through his efforts and not those of the plaintiffs.

2. Instruction, § 135*—when party may not complain that instructions not given. Where a party makes no request to the trial court therefor, he cannot complain on review that certain instructions were not given.

3. Instructions, § 126*—when properly refused as abstract. It is not error to refuse to give instructions stating abstract principles of law.


text:
    Nicholas Nudelman, trading as Nudelman & Company, Defendant in Error, v. C. B. Haffenberg, Plaintiff in Error.
    Gen. No. 21,120.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed May 12, 1916.
    Statement of the Case.
    Action by Nicholas Nudelman, trading as Nudelman & Company, plaintiff, against C. B. Haffenberg, defendant, to recover commissions for the sale of real estate. To reverse a judgment for plaintiff on default, defendant prosecutes a writ of error.
    Plaintiff brought an action in the Municipal Court of Chicago to recover of the defendant commission as a real estate broker for procuring a purchaser for certain real estate! The cause came on for trial before a judge and a jury, and after hearing the evidence, the court instructed the jury to find the issues for the defendant. The jury returned their verdict accordingly and judgment was entered thereon. A writ of error was sued out from this court, and the judgment of the Municipal Court was reversed and the cause remanded (185 Ill. App. 91). On the second trial the defendant did not appear. Plaintiff introduced evidence and the jury returned a verdict on which the judgment now before us was entered.
    On October 5, 1914, the defendant entered a motion to vacate the judgment and filed his affidavit in support thereof, which stated in substance that he did not know of the entry of the judgment against him until a few days after it had been entered,' that about June 26, 1914, he was served with notice that the plaintiff would ask that the cause be set for trial at an early date; that afterwards, on the same day, he received a telephone message from some one who purported to repr resent counsel for plaintiff and was informed that he need pay no further attention to the notice, and that he would be again notified before the cause was set for trial; that he paid no further attention to it and received no further notice; that he had a good defense on the merits; that the real estate in question did not belong to him but was the property of the Eagle Sausage Works, a corporation, which was in bankruptcy, and that this was well known to the plaintiff prior to and at the time he obtained a purchaser for the real estate ; that the plaintiff filed his verified petition in the bankruptcy proceeding, claiming his commissions as a real estate broker for making the sale; that in said petition plaintiff stated that the defendant was acting as agent of the Eagle Sausage Works; that plaintiff’s claim for such commission was disallowed in such bankruptcy proceeding. The affidavit further stated that when the defendant entered into the contract for the sale of the real estate, plaintiff knew that the real estate did not belong to the defendant, bnt that the defendant was acting as agent of the Eagle Sausage Works. Plaintiff filed a counter-affidavit in which he admitted that he endeavored to collect his commissions in the bankruptcy proceeding as above stated; that he then •believed under the law that the bankrupt estate was liable for the commissions; that his claim was disallowed in the bankruptcy proceeding; that he afterwards employed counsel who informed him that as the contract was made personally by the defendant and not as agent, the defendant was personally liable. Counsel for plaintiff and their clerks filed affidavits setting up that no one in their office had telephoned that the case would not be set for trial in accordance with the notice served on the defendant; that the case appeared each day on the regular trial call published in the Chicago Daily Law Bulletin from September 11th until September 21st, when it was reached for trial.
    Abstract of the Decision.
    1. Judgment, § 142

      —when judgment hy default set aside. Where a party to a suit fails to be present in the trial and a judgment is entered against him, before the court will set aside the same the defendant must show by his affidavit, first, that he has not been negligent, and second, that he has a meritorious defense.
    2. Judgment, § 132*—when vacation of discretionary with court. The vacation of a judgment is discretionary with the court, and its discretion will be controlled only in case of abuse.
    Sabath, Stafford & Sabath, for plaintiff in error.
    Blum & Blum, for defendant in error.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

3. Judgment, § 160 —when defendant guilty of negligence warranting refusal, to set aside judgment by default. Where a defendant ha^ been notified that the plaintiff would ask that the cause be set for trial and the latter appeared each day for ten days in the regular published trial call, though the defendant received a telephone message on the same day that the notice was received, purporting to come from some one representing counsel for the plaintiff, that he need pay no further attention to the notice, the defendant is guilty of negligence sufficient to justify the trial court in refusing to set aside the judgment on default.

4. Principal and agent, § 169*—when agent personally bound by contract. One entering into a contract for the sale of real estate personally and not as agent is thereby bound personally although he was in fact an agent.

5. Brokers, § 88*—when evidence sufficient to sustain finding that defendant entered into personal contract with broker. In an action to recover commissions for the sale of real estate, evidence examined and held to sustain a finding that the defendant entered into a contract with a broker for such sale in a mann.er binding the defendant personally and not as agent only.

6. Principal and agent, § 169*—when agent having authority to contract personally liable to third person. One undertaking to contract as agent for an individual or corporation but contracting in a manner not binding on his principal is personally liable, and, when sued, cannot exonerate himself from p'ersonal responsibility by showing his authority to bind the one for whom he has undertaken to act.

7. Principal and agent, § 169*—when agent liable as vendor for commissions. The rule that even if a purchaser knows that the party selling is a broker, and there is reason to believe that he is selling for some principal, yet if such broker does not bind his principal by the form of the contract made and does bind himself thereby he may be held to the liability of a vendor, held applicable to the liability of an agent for commissions, under a contract with a broker, for the sale of his principal’s real estate.


text:
    Anderson Computing Scale Company, Defendant in Error, v. Dena Hattenbach, Plaintiff in Error.
    Gen. No. 21,152.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed May 12, 1916.
    Statement of the Case.
    Action by Anderson Computing Scale Company, plaintiff, against Dena Hattenbach, defendant, for goods sold and delivered. To reverse a judgment for plaintiff, defendant prosecutes a writ of error.
    The plaintiff, an Indiana corporation, through its agent in Chicago, sold to the defendant, a resident of Chicago, a machine for slicing meats. The machine was delivered to the defendant and ten dollars paid on account of the purchase price.
    The defense interposed was (1) that there was a breach of warranty, in that the machine would not properly do the work for .which it was intended; and (2) that the plaintiff was a foreign corporation not authorized to do business in this State, and could not therefore maintain this action in the courts of this State.
    The evidence tended to show that the agents of the plaintiff solicited the order of the defendant; that the slicing machine was thereafter delivered to the defendant ; that the defendant informed the plaintiff that the machine was not workable; that plaintiff’s agents thereupon called at the defendant’s place of business for the purpose of remedying the defect; that the machinpi was not then in the defendant’s place of business, and the defendant would not permit the plaintiff’s agents to see it; that afterwards the defendant delivered the machine to an express company with instructions to return it to plaintiff; that the plaintiff would not accept the machine when the same was returned.
    Abstract of the Decision.
    1. Sales, § 388

      —what are remedies of purchaser for breach of warranty. Where there is a sale and delivery of personal property, with an express or an implied warranty, if the property is found to be defective, the purchaser may keep and use the property and sue for damages on a breach of warranty, or. when sued for the price, he may recoup such damages.
    2. Sales, § 389*—when purchaser may recoup damages for breach of warranty. Where there is a warranty of goods sold, without fraud, and they have been accepted and there is no stipulation in the contract that they may be returned, the vendee has no right to annul the contract, without the consent of the vendor, for a breach-of warranty, but where sued for the purchase price, may recoup damages sustained by reason of the breach of warranty.
    3. Sales, § 404*—what is measure of damages for breach of warranty. The measure of damages for breach of warranty is the difference between the value of the article as warranted, and its actual value in its alleged defective condition.
    4. Sales, § 389*—when damages for breach of warranty may not be set off in action for purchase price. In an action for the purchase price of an article, no damages for breach of warranty can be set off in the absence of evidence of the amount thereof.
    It was assumed by the court that there was an implied warranty of the machine and a breach of such warranty.
    Wilson & Mat, for plaintiff in error.
    Baker & Holder, for defendant in error; W. W. •Hoover, of counsel.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

5. Corporations, § 710—what does not constitute doing business within State by foreign corporation. Soliciting of orders in this State by an agent of a foreign corporation is not doing business by such corporation, within the meaning of the statute regulating activities of foreign corporations within the State.


text:
    Robert B. Cochrane and Luman H. Cochrane, trading as Cochrane Brokerage Company, Plaintiffs in Error, v. Chicago Great Western Railroad Company, Defendant in Error.
    Gen. No. 21,160.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed May 12, 1916.
    Statement of the Case.
    Action by Robert B. Cochrane and Lnman H. Cochrane, trading as Cochrane Brokerage Company, plaintiffs, against the Chicago Great Western Railroad Company, a corporation, defendant, to recover for damage to a shipment of pears. To reverse a judgment for defendant, plaintiffs prosecute a writ of error.
    Plaintiffs’ statement of claim alleged, in substance, the shipment of the pears by the plaintiffs over defendant’s road from Kansas City, Missouri, to Marshalltown, Iowa; that the pears were in first-class merchantable condition at the time of shipment; that upon their arrival at destination they were found to be in bad condition arid unmerchantable; and that plaintiffs suffered damages in the sum of $1,000.

      Defendant’s affidavit of merits admitted the shipment of the pears by the plaintiffs over the defendant’s road, but denied that any loss or damage was sustained to the shipment while in the possession, custody or control of the defendant; denied that, at the time of shipment, the pears were in a first-class merchantable condition, and alleged that the same were in a damaged and unmerchantable condition when delivered to defendant for shipment. Defendant further denied that it was indebted to the plaintiffs in any sum or sums whatever, by reason of the matters and things alleged in plaintiffs’ statement of claim.
    The evidence tended to show that the pears, when loaded at Kansas City, were in good condition; that the car in which they were loaded, during the trip to Marshalltown, was not properly ventilated; that when the car arrived at Marshalltown the pears were in a damaged condition; that the amount of damage suffered by the plaintiffs by reason of the'manner in which the pears were transported was $293.55.
    At the close of the plaintiffs’ case, the court found the issues for the defendant on the ground that it was incumbent upon the plaintiffs to produce a bill of lading, or satisfactorily account for its absence. The defendant contended that, as this was an interstate shipment, and governed by the Federal law which required the issuance of a bill of lading, in the absence of proof to the contrary, it will be presumed that a bill of lading was issued when the shipment was delivered to the defendant; and that it was therefore necessary for the plaintiffs to have either produced the bill of lading or satisfactorily accounted for its absence before they could recover.
    Stewart Keed Brown, for plaintiffs in error.

      Abstract of the Decision.
    1. Carriers—when production of hill of lading or accounting therefor unnecessary. In an action for damages to an interstate shipment of fruit caused by defendant carrier’s negligence where the plaintiff bases his claim on an oral contract of shipment, it is not incumbent upon him to produce or account for the absence of a bill of lading before he can recover.
    2. Carriers, § 139

      —when evidence sufficient to establish prima facie case for negligent loss of fruit. In an action for damages to an interstate shipment of fruit caused by defendant carrier’s negligence, evidence examined and held to make out a prima facie case for the plaintiff.
    Winston, Payne, Strawn & Shaw, for defendant in error; John Barton Payne and Frank H. Towner, of counsel.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Barnes

text:
    Peter Hand Brewing Company, Appellee, v. M. H. Schmitz and Andrew Schmitz, Appellants.
    Gen. No. 22,013.
    (Not to he reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1751

      —ialien judgment affirmed for absence of bill of exceptions. Where the errors assigned on appeal relate wholly to matters that can be made to appear only by bill of exceptions and the record does not contain one, a motion to affirm the judgment below will be granted.
    Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed May 23, 1916.
    Statement of the Case.
    . Action hy Peter Hand Brewing Company, a corporation, plaintiff, against M. H. Schmitz and Andrew Schmitz, defendants. From a judgment for plaintiff, defendants appeal.
    J. H. Gíeweke, for appellants.
    Mayer, Meyer, Austrian & Platt, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Peter Hand Brewing Company, Appellee, v. Michael H. Schmitz and Annie J. Schmitz, Appellants.
    Gen. No. 22,014.
    (Not to be reported in full.)
    Abstract of the. Decision.
    Appeal and error, § 1751

      —when judgment affirmed for absence of bill of exceptions. Where the errors assigned on appeal relate wholly to matters .that can be made to appear only by bill of exceptions and the record does not contain one, a motion to affirm the judgment below will be granted.
    Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed May 23, 1916.
    Statement .of the Case.
    Action by Peter Hand Brewing Company, a corporation, plaintiff, against Michael H. Schmitz and Annie J. Schmitz, defendants. From a judgment for plaintiff, defendants appeal.
    J. H. G-eweke, for appellants.
    Mayer, Meyer, Austrian & Platt, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    Pacific Express Company, Appellee, v. Spaulding & Company, Appellant.
    Gen. No. 21,917.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William Fenimobe Coopeb, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed.
    Opinion filed May 29, 1915.
    Rehearing denied June 13, 1916.
    Statement of the Case.
    Action by Pacific Express Company, plaintiff, against Spaulding & Company, defendant, for damages based on alleged fraud and deceit of defendant. From a judgment for plaintiff, defendant appeals.
    Plaintiff, a common carrier, brought suit alleging that defendant delivered to it a parcel for shipment and wrongfully stated its value to be not exceeding $50; that it was consigned to Henry Plaff, of El Paso, Texas; that while in transit it was destroyed, through no fault of plaintiff; that Plaff brought suit against the plaintiff Express Company for the value of the contents of the parcel and had judgment for $538, which on appeal was affirmed, and subsequently the Express Company paid said judgment with interest and costs. It was further alleged that plaintiff, a common carrier, was obligated for a less degree of care during transit for goods valued at $50 or less than for goods of greater value, and because of the value wrongfully placed on said parcel by defendant, plaintiff gave the less degree of care to the parcel, hence its destruction ; that this was fraud and deceit on the part of defendant which caused plaintiff to sustain damages.
    The evidence showed that the shipping clerk for defendant delivered the parcel to plaintiff for shipment and took from plaintiff a receipt; that plaintiff did not ask for any valuation of the goods and no value was given. The printed receipt contained this:

      Abstract of the Decision.
    1. Carriers, § 182

      —when evidence of knowledge of existence of provision in receipt limiting liability to certain sum admissible in action against shipper for fraud. In an action by a carrier, based on fraud and deceit of a shipper in delivering to it for shipment goods of a value greater than $50 without stating the value thereof, to recover damages sustained by the recovery of a judgment against it by the consignee for loss of the shipment, evidence of knowledge by the shipper’s shipping clerk that the receipt for the shipment contained a provision limiting the carrier’s liability to $50, unless the true value exceeding that amount be stated, is admissible.
    2. Carriers, § 134*—who may sue for loss of goods in transit. On delivery to a carrier of a shipment purchased by the consignee he becomes the owner thereof, and alone can recover for loss in transit caused by carrier’s negligence.
    3. Carriers, § 172*—when consignee not bound by restrictions in bill of lading. Without authority from the consignee to do so, the consignor cannot bind the consignee by restrictions in the bill of lading.
    “The said Pacific Express Company shall not be liable for * * *. Nor for any loss or damage to said property exceeding the sum of $50 which sum, or any other sum herein stated, is the value of the property agreed upon as the basis of charges for the service undertaken, and to which the charges are in fact graduated, and the risk of this company limited, unless the just and true value thereof is otherwise herein stated.”
    The shipping Clerk testified he was familiar with the terms of the receipt. There was other evidence offered tending to show knowledge on the part of the defendant of this provision, which evidence the court refused to admit.
    C. C. Collins, for appellant.
    John Gibson. Hale, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

4. Carriers, § 168*—what does not constitute actionable fraud or deceit by consignor. Delivery of shipment to carrier by consignor, without stating the value thereof, though he knows there is a clause in the receipt limiting carrier’s liability to $50 in case a higher value is not given, does not amount to fraud and deceit entitling the carrier to recover damages sustained by recovery of a judgment against it by the consignee for loss of shipment.

5. Judgment, § 502*—when judgment by consignee against carrier for negligence conclusive in action by carrier against consignor. Where a consignee has recovered judgment against a carrier for loss of shipment caused by the latter’s negligence, such carrier cannot recover damages sustained thereby of the consignor based on his fraud and deceit in not stating the true value of the shipment under contract limiting carrier’s liability to a certain amount unless such shipment is valued in excess thereof.


text:
    Fortune Brothers Brewing Company, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 22,045.
    Municipal Court of Chicago, § 13

      —when statement of claim in tort insufficient. A statement of claim in tort in a fourth-class case, which is wholly silent as to the care exercised by plaintiff and gives no facts whatever touching his conduct or position in relation to the accident does not state a cause of action.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed May 29, 1916.
    Thomas J. Young and John J, Poulton, for plaintiff in error.
    Warren D. Bartholomew and Frank L. Kriete, for defendant in error; W. W. Gurley and J. B. Guilliams, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit to recover for damages to its motor truck which was struck by one of defendant’s street cars. The trial court directed the jury to return a verdict of not guilty.

Defendant urges that plaintiff’s amended statement of claim does not state a cause of action, hence there was no proper issue to be submitted to a jury. This was an action in tort of the fourth class in the Municipal Court. The amended statement of claim alleges that the plaintiff claims ‘1 damages caused by said car belonging to defendant running into and striking the motor truck belonging to plaintiff, at or about the corner of 24th street and Cottage Grove avenue in the City of Chicago, on the 6th day of March, A. D. 1913, said car having been so carelessly and negligently driven or managed by defendant, or its servants, as to run at a high and dangerous rate of speed into and upon plaintiff’s motor truck, without stopping at the corner of said streets to take on passengers waiting there, and without giving warning of its approach.” There is no averment of any duty of defendant to plaintiff, no allegation that plaintiff was in the exercise of due care, and no facts alleged from which duty or care can be implied.

“A declaration in an action to recover for injuries received through negligence which does not aver due care on the part of the plaintiff when he was injured, and does not contain any averment in regard to his conduct or the circumstances surrounding him from which due care on his part may be reasonably inferred, does not state a cause of action, and, after the period of limitation fixed by the statute has elapsed, cannot be amended to state a cause of action not subject to the bar of the statute. If a declaration omits to allege any substantial fact which is essential to a right of action and which is not implied in or inferable from the finding of those which are alleged, a verdict for the plaintiff does not cure the defect.” Walters v. City of Ottawa, 240 Ill. 259.

From anything to the contrary appearing in the statement before ns, plaintiff abandoned his truck in the street car track in the nighttime, or recklessly ran headon into the street car. The statement manifestly states no cause of action.

Is this necessary in a statement of claim in a case of this class and kind? We are of the opinion that the Supreme Court has decided that it is. Gillman v. Chicago Rys. Co., 268 Ill. 305. In the opinion the court says: “It is difficult to conceive how it is possible to show a tort done to the plaintiff without disclosing a cause of action”; and as to section 40 of the Municipal Court Act (J. & A. 3352), which provides that in such cases it will not be required “to set forth the cause of action with the particularity required in a declaration at common law,” the court says: “This proviso proceeds on the theory that the statement of claim must show a cause of action. If not, it is useless. * * * The effect of this language is to do away with all objections to the statement of claim which might be made to a declaration by special demurrer and to recognize only objections going to the merits of the case.” And, again, the court says: “The statement of claim was not waived by the failure of the defendant to move for a ¿more specific statement. The statement-stands for a declaration in common law actions. It is essential to sustain the judgment.” We do not find anything to the contrary in the opinion in Enberg v. City of Chicago, 271 Ill. 404. In this case the court said, referring to the Gillman case: “It holds that a statement of the elements of the tort or wrong committed must appear in the statement of claim. ’ ’

In the light of these decisions we hold that a statement of claim in tort in a fourth-class case, which is wholly silent as to the care of plaintiff and gives no facts whatever touching his conduct or position in relation to the accident, does not state a cause of action.

It might also be added that we have examined the evidence in this case and are of the opinion that even under a proper statement of claim plaintiff’s servant driving the motor truck was shown to have been guilty of such contributory negligence as to preclude any recovery from the defendant.

The judgment is affirmed.

Affirmed.


text:
    F. C. Pennington for use of I. V. Edgerton, Defendant in Error, v. Grand Trunk Western Railway Company, Plaintiff in Error.
    Gen. No. 22,061.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed.
    Opinion filed May 29, 1916.
    Statement of the Case.
    Action by F. C. Pennington, for use of I. V. Edger-ton, plaintiff, against Grand Trunk Western Railway Company, defendant, to recover for damages to interstate shipment. To reverse a judgment for plaintiff, defendant prosecutes a writ of error.
    The shipment originated at Mount Pleasant, Michigan. There it was received by the Ann Arbor railroad, which issued its through bill of lading to destination. The Ann Arbor railroad hauled it to Imlay City7, Michigan, there connecting with defendant’s road, which hauled it to Black Rock, New York, and there turned it over to the Delaware, Lackawanna & Western Railway', which transported it to destination, New York City. Plaintiff says that defendant, through its agent at Imlay City, orally agreed to haul the car from that point on a certain train, No. 90, leaving early in the morning, but it failed to do so and hauled it on a later train, thus causing it to arrive at destination too late for a market, with ensuing loss.
    Abstract of the Decision.
    1. Carbiebs, § 188

      —when initial carrier alone liable for damage to or loss of interstate shipment due to delay while in hands of connecting carrier. Under the Carmack Amendment to the Interstate Commerce Act the remedy of a shipper for loss or damage to property delivered to an .initial carrier, which issues its through bill of lading to the shipper for interstate transportation over several lines and which property is delayed while in the hands of a connecting carrier, is against the initial carrier alone and not against the connecting carrier. .
    2. Conflict or laws, § 21*—when Federal decisions govern as liability of carrier for loss of or damage to interstate shipment. As to interstate carrier’s liability for loss or damage to interstate shipment decisions from State courts do not avail as the Carmack Amendment supersedes all regulations and policies of the different States.

      Defendant requested-the court to hold as a proposition of law that:
    “Under the Carmack Amendment to the Interstate Commerce Act the remedy of a shipper for loss or damage to property delivered to an initial carrier, which issues its through bill of lading to the shipper for interstate transportation over several lines and which property is delayed while in the hands of a connecting carrier, is against the initial carrier alone and not against the connecting carrier. ’ ’
    The court marked this “Refused.”
    Kretzinger & Kretzinger and L. L. Smith, for plaintiff in error.
    Walter H. Eckert, for defendant in error.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

3. Carriers, § 198 —when affidavit of defense by connecting carrier sufficiently alleges sole liability of initial carrier. In an action against a connecting interstate carrier for damage to shipment shipped under a through bill of lading, an affidavit of defense averring that the damages, “if any, are not chargeable in any way to the defendant,” is sufficient to raise the point that the Carmack Amendment has superseded all regulations and policies of the different States in regard to interstate carrier’s liability, and such action must be brought against the initial carrier.


text:
    Albert L. von Degens, Plaintiff in Error, v. Lillian von Degens, Defendant in Error.
    Gen. No. 22,074.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed May 29, 1916.
    Statement of the Case.
    Bill for divorce by Albert L. von Degens, complainant, against Lillian von Degens, defendant. To reverse an order dismissing the bill for want of equity, the complainant prosecutes a writ of error.
    Complainant filed his bill of complaint asking for a divorce from his wife on the ground that she had been guilty of extreme and repeated cruelty towards him. Upon hearing he testified as to the alleged acts of cruelty, and was corroborated to a certain extent by the testimony of his two sons. After hearing the court ordered the bill dismissed for want of equity.

      Abstract of the Decision.
    Divorce, § 12

      —when husband not entitled to divorce on ground of extreme cruelty. Where a husband asks for a divorce from his wife upon the ground of extreme and repeated cruelty, he must make out a clear case; and it is not sufficient for him to show slight acts of violence on her part towards him so long as there is no reason to suppose that he cannot protect himself by a proper exercise of his marital powers.
    William: A. Jennings, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Joseph Maslo by Stanislaw Maslo, Defendant in Error, v. Franciszka Matyasik, Plaintiff in Error.
    Gen. No. 22,279.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John A. Ma-honey, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed May 29, 1916.
    Statement of the Case.
    Action by Joseph Maslo, by Stanislaw Maslo, his next friend, plaintiff, against Franciszka Matyasik, defendant, for damages for personal injuries to the plaintiff, alleged to have resulted from his being struck by a brick thrown by the defendant. To reverse a judgment for plaintiff for four hundred dollars, defendant prosecutes a writ of error.
    The plaintiff, a boy six years of age, was struck on the head by a brick alleged to have been thrown by the defendant. A witness testified positively that he saw the defendant throw the brick striking the child, and there was evidence tending to corroborate his story, including the testimony of one witness as to an admission by the defendant. Defendant testified denying that she threw the missile, and was supported by the testimony of a son, who stated that when other boys were throwing bricks at him he threw the brick and by mistake struck plaintiff.
    Abstract of the Decision.
    1. Assault and battery, § 14

      —when evidence sufficient to sustain verdict. In an action for damages for personal injuries caused by a brick alleged to have been thrown at the plaintiff by the defendant, evidence held sufficient to sustain a verdict for the plaintiff.
    2. Witnesses, § 298*—when question touching general reputation ,of witness improper in form. Question, touching the general reputation of a witness, as to "whether he will tell the truth or not,” held improper in form.
    3. Witnesses, § 278*—when questions put to witness for purposes of impeachment improper. Questions tending to develop that a witness had made statements contrary to his testimony on the stand are improper where such witness is not given an opportunity to affirm or deny making of such statements.
    4. Assault and battery, § 22*—when verdict for injuries to child, not excessive. Verdict for four hundred dollars awarded a six-year-old boy for injuries sustained by being struck by a brick thrown by the defendant, held not excessive where the plaintiff suffered a cut on the head one inch in length which required stitches, and a condition of shock with resulting impairment of the nervous system.

      The physicians testified as to the infliction of a cut on the head about an inch in length which required stitches. There was other evidence tending to show a condition of shock, with resulting impairment of the child’s nervous system.
    Joseph E. Burees and Maximilian J. St. George, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Baker

text:
    F. Thomas Malecki, Defendant in Error, v. Julius N. Heldman, Plaintiff in Error.
    Gen. No. 21,602.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. New-comes, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed May 29, 1916.
    Statement of the Case.
    Action in the Municipal Court of Chicago by F. Thomas Malecki, plaintiff, against Julius N. Heldman, defendant, for services rendered the defendant by the plaintiff. To reverse a judgment for $105 for plaintiff, defendant prosecutes a writ of error.
    Plaintiff testified that defendant employed him to work for the Central Trust Company in a case in which defendant represented certain creditors of the Woolen Mills Company, a bankrupt, and the Trust Company was receiver of the bankrupt, and promised to pay him $5 per day out of his own pocket for such services. Defendant testified that he did not employ plaintiff nor promise to pay him any sum whatever out of his own pocket. The clerk’s record showed a verdict for plaintiff for $105 entered February 25, 1915; that the defendant moved the court for a new trial and after several postponements the motion was heard and denied May 1,1915.

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 27

      —when question not preserved by bill oj exceptions or stenographic report not reviewed. The reviewing court will not investigate whether the evidence sustains the verdict where it is not shown by bill of exceptions or stenographic report that a motion for a new trial was made and overruled and an exception taken thereto.
    2. Municipal Court of Chicago, § 28*—when objections to instructions not considered on review. The reviewing court cannot consider objections to instructions where no objection was made to them in the trial court nor any instruction asked for by plaintiff in error and refused.
    Simon La Grou, for plaintiff in error.
    George L. Schein and Leo H. Hoffman, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. John J. Lynch and A. Cochrane (Petitioners), Appellee, v. William Hale Thompson, Mayor (Respondent), Appellant.
    Gen. No. 21,767.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed May 29, 1916.
    Statement of the Case.
    Mandamus proceedings by the People of the State of Illinois ex rel. John J. Lynch and A. Cochrane, petitioners, against William Hale Thompson, mayor of Chicago, respondent, to compel issuance of a dram shop license to petitioners. From an order directing the issuance of a license, the respondent appeals.
    Abstract of the Decision.
    1. Intoxicating liquors, § 28

      —when issuance of dramshop license within discretion of authorized officer. The issuance of dramshop licenses is a matter of discretion of the officer authorized thereto by the statute.
    2. Intoxicating liquors, § 28*—when discretion of authorized officer in refusing to issue dramshop license not interfered with. In the absence of fraud or arbitrary exercise of discretion by officer authorized to issue dramshop licenses, the courts will not interfere with his exercise of discretion in refusing to issue a license.
    3. Intoxicating liquors, § 30*—when order directing issuance of dramshop license reversed on appeal. Where the term for which a dramshop license has been ordered issued has expired before the hearing on appeal, such order will be reversed.
    The order was entered August 16, 1915, and the term for which the license was applied for ran from May 1 to October 31, • 1915, and expired before the hearing of the appeal.
    .Samuel A. Ettelson, for appellant; Boy S. GIaskill, of counsel.
    William Gr. Anderson and L. A. Newby, for ap.pellee.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Albert E. Wilson, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 22,025.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavakagh, Judge, presiding. Heard in this court at the October term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed May 29, 1916.
    Rehearing denied June 13, 1916.
    Statement of the Case.
    Action by Albert E. Wilson, administrator of the estate of William White Wilson, deceased, plaintiff, against the Chicago City Railway Company, defendant, for damages sustained by deceased’s widow, heirs and next of kin, by reason of his death through the alleged negligence of the defendant. From a judgment for plaintiff for $3,000, defendant appeals.
    Defendant operated on 43rd street a double track electric street railway and also one on Cottage Grove avenue. A train came from the west on the south side of 43rd street and stopped west of the cross-walk to discharge passengers. The deceased was first seen on the southeast corner. He stepped down from the curb and started to cross to the north side of 43rd street. A car was going north on the east track in Cottage Grove avenue and reached the crossing in advance of the car on 43rd street. In crossing the track on 43rd street deceased was struck by the eastbound car on that street and killed.
    The distance from building line to building line in Cottage Grove avenue is about eighty, feet and the sidewalk is about thirty feet wide. The distance from the south curb of 43rd street to the first rail of the track in that street is about ten feet. The car that struck Mr. Wilson was what is known as a single track summer car.

      There was evidence tending to show that the motorman first looked north and then looked south. The eastbound car crossed the northbound Cottage Grove avenue track close behind the northbound car on that track. There was evidence that the progress of deceased across the eastbound track in 43rd street was impeded by a westbound car or other vehicle, and that deceased attempted to go back to the south to escape the eastbound car, but that because of the. rate of speed of that car and because the motorman was looking north he did not see the deceased until it was too late to stop the car and avoid striking him.
    The causes of the action set forth in the declaration are: That defendant was carelessly, etc., running one of its cars in 43rd street, at its intersection with Cottage Grove avenue; that while plaintiff’s intestate in the exercise of due care and caution for his own safety was crossing 43rd street on the east side of Cottage Grove avenue, he was struck by defendant’s car and so injured that he died. The negligence charged in the second count is in carelessly and negligently driving the car across the intersection without ringing a bell or giving any warning. The negligence charged in the third count is driving the car across the intersection at a speed of fifteen miles an hour without ringing a bell or sounding a warning. The negligence charged in the fourth count is running the car at a speed of fifteen miles an hour. The negligence charged in the fifth count is that while driving the car across the intersection the motorman was not looking out for pedestrians who might be crossing. The negligence charged in the sixth count is in wilfully, wantonly, and with gross negligence driving the car against plaintiff’s intestate.
    John E. Kehoe and Watson J. Ferry, for appellant; W. W. Gurley and J. E. Guilliams, of counsel.

      Abstract of the Decision.
    1. Street railboads, § 135

      —when contributory negligence of pedestrian about to cross track for jury. What constitutes negligence or want of due care on the part of one about to cross a street car track, at a street intersection, is usually a question of fact for the jury.
    2. Street railroads, § 131*—what constitutes prima facie case in action for death of pedestrian at street crossing. In an action for death caused by the deceased being run over at a street crossing by the defendant’s street car, a prima facie case is made out where the evidence fails to show that a bell was rung or gong sounded, and shows that the car was running at an improper rate of speed.
    3. Street railboads, § 133*—when negligence in operation question for jury. Where, in an action for death of plaintiff’s intestate caused by his being run over at a street crossing by the defendant’s street car, the evidence is conflicting as to whether a bell was rung or gong sounded by defendant’s servants, and as to the speed of the car, such questions are for the jury, and their verdict will not be disturbed on appeal.
    Albert E. Wilson and Guerin & Barrett, for appellee.

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

   Mr. Justice Baker

delivered the opinion of the court.


author: Me. Justice Baker

text:
    Bessie McConnell, Appellee, v. Chicago Railways Company and Herbert Hinchliffe, trading as H. Hinchliffe Teaming Company, Appellants.
    Gen. No. 22,056.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed May 29, 1916.
    Rehearing denied June 13, 1916.
    Statement of the Case.
    Action by Bessie McConnell, plaintiff, against Chicago Railways Company and Herbert Hinchliffe, trading as H. Hinchliffe Teaming Company, defendants, for damages for personal injury. From a judgment for $9,000 for plaintiff, defendants appeal.
    The defendant Railways Company operated a street railway in Madison street. A westbound street car on the north track of the railway stopped to discharge and receive passengers, with the front end of the car at or near the east line of Halsted street. Plaintiff started to cross Madison street from the southeast comer of Halsted and Madison streets, and when she reached the center of the eastbound track saw a westbound car of defendant coming to a stop. After the car had stopped she walked in front of the car and then east alongside of it to about the center of the car; she then saw a team coming towards her, which was then twenty-five or thirty feet east of the rear end of the car. The entrance to the car was at the rear end, and she walked to the rear vestibule and started to get on. She testified that she placed her right foot on the step, took hold of the iron stanchion at the outer end of the rail which divided the rear platform, stepped on the platform with her left foot, when the car started with a jerk and she was thrown backward into the street. Two teams of defendant Hinehliife were going west north of the north rail of the track on which the car ran. The front team was driven by Sibley, who was not called as a witness, and the rear one was driven by Forrest Hinehliife, a brother of defendant Hinehliife. Fie testified that plaintiff was twenty or twenty-five feet in front of the hind wheels of Sibley’s wagon when she fell, and that the wagon could not have run over her leg. Opposed to this testimony is the testimony of Silver and Taylor that they saw the hind wheel of the wagon run over plaintiff’s leg, and the testimony of the surgeon that both bones of the right leg were broken and the left leg injured. One count of the declaration is as follows:
    “Plaintiff further avers that while standing at said intersection as aforesaid, one of the defendant’s Chicago Railways Company’s cars stopped at said intersection, for the purpose of receiving and discharging passengers, and while so doing, the defendant Chicago Railways Company negligently and carelessly started said car, and the defendant Herbert T. Hinehliife by his servants, then and there in charge of said horses and wagon, negligently and carelessly drove, operated and managed said horses and wagon, so as to cause same to collide with plaintiff.
    “Plaintiff further avers that she was then and thereby severely, dangerously and permanently injured,” etc.1
    As amended the last paragraph commences as fiollows:
    “Plaintiff further avers that she was then and thereby as a result of the negligence of said defendants and each of them as above alleged, severely, dangerously and permanently injured both internally and exterr nally.”
    Joseph D. Ryan and Frank L. Kriete, for appellant Chicago Railways Company; W. W. G-urley and J. R. G-uilmams, of counsel.

      Abstract of the Decision.
    1. Cabbiebs, § 476

      —when evidence sufficient to sustain finding that passenger throum from car under wagon by negligent starting of car. In an action for personal injuries, evidence held to justify a finding that the plaintiff was thrown from one defendant’s street cars in front of or alongside of its codefendant’s wagon through the negligent starting of the car and that the plaintiff’s leg was run over and broken by a wheel of the wagon.
    2. Cabbiebs, § 480*—when negligence in starting car question for jury. In an action for personal injuries, questions whether a defendant street car company was negligent in starting its car whereby the plaintiff was thrown to the street and run over by a wagon, held for the jury.
    3. Roads and bbidges, § 240*—when negligence of driver of wagon in running over passenger thrown from street car question for jury. In an action for damages for personal injuries to a passenger who was thrown out of a street car upon its starting and was run over by a passing wagon, the question whether the driver of the wagon was guilty of negligence in running over plaintiff’s leg held to be for the jury.
    4. Pleading, § 453*—when defects are waived. A party having submitted an issue to the jury cannot complain that it is not presented by the pleadings.
    5. Cabbiebs, § 452*—when declaration sufficiently alleges causal connection between negligence of street railroad and accident. In an action for personal injuries, declaration held to sufficiently allege causal connection between the negligence of the defendant street railroad- company and the accident.
    6. Pleading, § 466*—when want of express averments cured by verdict. If a declaration contains terms sufficiently general to include, by fair and reasonable intendment, any matter necessary to be proven and without proof of which the jury could not have given the verdict, the want of an express averment of such matter is cured by the verdict.

      Harry W. Meneley and Sylvester G. Abbott, for appellant Herbert Hinchliife.
    Vincent Gr. Gallagher and Ernest Messner, for appellee.

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

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

   Me. Justice Baker

delivered the opinion of the court.

7. Carriers, § 372 —what is duty of conductor of street car towards boarding passenger. A street car conductor must exercise the highest degree of care and caution to see that an intended passenger in the act of boarding his car is not put in danger by the starting of the car.

8. Roads and bridges, § 231*—what is duty of teams.ter approaching street car from rear to passengers. Upon a teamster approaching from the rear a standing street car rests the duty to see if by driving between the car and the curb he is endangering those attempting to get on or off the car.

9. Appeal and error, § 1533*—when defective instruction not reversibly erroneous. Where a reading of an instruction in its entirety leaves no doubt as to its meaning, the omission of words or the substitution of erroneous ones is not reversible error.

10. Appeal and error, § 1565*—when modification of instruction on credibility of witnesses not reversible error. The substitution of the word “of” for “or” in a charge that the jury might consider the probability or improbability of the truth of the statements of witnesses, held not reversible error.

11. Appeal and error, § 1533*—when omission of word in instruction harmless error. The omission of the word “if” from the charge, “The court instructs the jury that ‘if’ you find for the plaintiff you will then be required to determine the amount of her damages,” held not reversible error.

12. Damages, § 122*—when verdict for injuries to both legs of woman not excessive. Verdict for $9,000 awarded a woman thrown from a street car to the street and run over by a wagon, which broke both bones of one leg and injured the other leg, held not excessive.

13. Carriers, § 476*—when evidence sufficient to show negligence of street car company in starting car and causal connection unth injury. In an action for personal injuries resulting from being thrown from a street car of one defendant and run over by other defendant’s wagon, evidence held to justify a finding of negligence on the part of the street car company and existence of causal connection of the company with the injury.

14. Roads and bridges, § 239*—when evidence sufficient to show negligence of driver of wagon in running over street car passenger and causal connection with injury. In an action for damages for personal injuries resulting from being thrown from a street car as it started, under a wagon approaching the car from the rear, evidence 'held sufficient to show negligence of the driver of the wagon and the existence of causal connection of the driver with the injury.


text:
    The People of the State of Illinois ex rel. Josephine Zebert, Defendant in Error, v. Felix J. Lubin, Plaintiff in Error.
    Gen. No. 22,068.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habby M. Fisheb, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed May 29, 1916.
    Statement of the Case.
    Prosecution for bastardy by the People of the State of Illinois ex rel. Josephine Zebert, plaintiff, against Felix J. Lubin, respondent. To reverse a judgment for plaintiff, respondent prosecutes a writ of error.
    The testimony of the complaining witness was that respondent had intercourse with her at Indiana Harbor December 31, 1913, and also some time before Christmas of the same year at the house of Mrs. Gil-son, where she was employed. Respondent testified that he did not have intercourse with the complaining witness at any time, and the evidence tended to show that he was not at Indiana Harbor at the time the complaining witness testified that he had intercourse with her there. The testimony of Mrs. and Mr. Gilson was that a week or two before Christmas respondent came to their house and they went to a show leaving the respondent and complaining witness alone in the house.
    Two witnesses other than respondent testified to having intercourse with the complaining witness. They were contradicted by her, and it was testified that one of them admitted that his statement was false and that he wanted to help respondent.
    Samuel J. Richman, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

      Abstract of the Decision.
    Bastards, § 22

      —when evidence sufficient to sustain judgment for plaintiff. In a prosecution for bastardy, evidence held sufficient to sustain a judgment for the plaintiff.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    George J. Williams, Plaintiff in Error, v. C. A. Wrigley, Defendant in Error.
    Gen. No. 22,097.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1752

      —when judgment affirmed because of defective abstract. Where grounds for reversal of a judgment relate solely to a written lease which the abstract fails to set out, judgment will be affirmed.
    Error to the Municipal Court of Chicago; the Hon. Joseph P, Rai-febty, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed May 29, 1916.
    Statement of the Case.
    Action by George J. Williams, plaintiff, against C. A. Wrigley, defendant, for rent under a written lease. To reverse a judgment of nil capiat, plaintiff prosecutes a writ of error.
    George J. Williams, pro se.

    C. E. Fergusou, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

2. Appeal and error, § 866*—u>hat are requisites of abstract. An abstract must be full and complete and in accordance with the rules of this court, and the court will not explore the record to find errors to sustain the assignments of error.


text:
    Ladislaw J. Tupy, Defendant in Error, v. Frank Cech and Anna Cech, Plaintiffs in Error.
    Gen. No. 22,100.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed May 29, 1916.
    Statement of the Case.
    Action by Ladislaw J. Tupy, plaintiff, against Frank Cech and Anna Cech, defendants, to recover commissions for the sale of real estate. To reverse a judgment of nil capiat, plaintiff prosecutes a writ of error.
    Plaintiff was corroborated in his testimony by the testimony of Joseph and Mary Kolar, "the purchasers of the real estate, and was contradicted only by the testimony of Frank and Anna Cech.
    Joseph Z. Klenha and Joseph J. Kroupa, for plaintiffs in error.
    Newman, Poppenhusen & Stern, for defendant in error; Charles T. Farson, of counsel.

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

   Mr. Justice Baker

delivered .the opinion of the court.

Abstract of the Decision.

1. Brokers, § 93 —when existence of contract of employment for jury. In an action for commissions for the sale of real estate, question whether the plaintiff had established a contract of employment by the defendants held for the jury, and on the evidence conclusive on appeal.

2. Witnesses, § 253*—when credibility of for jury. Credibility of witnesses is a question for the jury.