text:
    Town of Magnolia, Appellant, v. Mark Kays, Appellee.
    Gen. No. 6,169.
    Judgment, 175

      —what is valid form of judgment for defendant after verdict in ordinary common-law action. The valid form of a judgment for defendant after verdict in an ordinary common-law action is that it is considered by the court that the plaintiff take nothing by his suit and that defendant go hence without day, or other equivalent words, with a judgment for costs and execution therefor.
    Appeal from the County Court of Putnam county; the Hon. Ibving E. Bboaddus, Judge, presiding. Heard in this court at the October term, 1915.
    Appeal dismissed.
    Opinion filed February 8, 1916.
    George W. Hunt, for appellant.
    Henry E. Jacobs and James E. Taylor, for appellee.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

In this suit by the Town of Magnolia against Mark Kays in the County Court of Putnam county to recover a penalty for the obstruction of an alleged private road, the jury found the defendant not guilty and, after the denial of a motion for a new trial, the court entered the following judgment: “Judgment on verdict and against plaintiff. And this cause having been instituted at the relation and upon the complaint of Amos B. Wilson and said Amos B. Wilson having entered himself as surety for costs herein, it is adjudged that said Amos B. Wilson as such surety, pay the costs of this suit.” The Town and Wilson gave a bond upon an appeal to this court.

Is the above a valid and final judgment? We have had occasion to discuss unusual forms of judgments for plaintiffs and for defendants on pleadings, and the conclusions we reached in those cases and the authorities relied upon are sufficiently set forth in Bennett v. Karasik, 164 Ill. App. 362; Ajax-Grieb Rubber Co. v. Gray, 179 Ill. App. 377; and People v. Johnson, 179 Ill. App. 467. Those authorities do not necessarily apply to the present question, which is, what is the proper form for a judgment for a defendant upon a verdict in his favor? Cooley’s Blackstone, book 3, page 399, says that the form is that the defendant go thereof without day, eat inde sine die, that is, without any further continuance or adjournment, the King’s writ commanding his attendance being now fully satisfied. In an appendix to said book 3 are forms of law records, including judgments for defendants that plaintiff take nothing by his writ and that defendant go thereof without day, and the like. 1 Bouvier’s Law Dictionary (4th Ed.) title “Judgment,’’.says that the language of such a judgment is that it is considered by the court that the defendant do go without day, and, under the same title in another place, that, where an issue arises upon a declaration or a peremptory plea and this is decided in favor of the defendant, the judgment is that plaintiff take nothing by his writ and that the defendant go thereof without day. The late edition of the same work states the same thing in somewhat different language. 1 Black on Judgments, sec. 14, says that if the verdict is for the defendant upon the merits, the judgment is nil capiat per breve or per billam, that is, that the plaintiff take nothing by his writ or declaration. In 12 Am. & Eng. Encyc. of Law (1st Ed.) page 61, the same form is announced. The second edition of the same work does not give the form in such a case, but refers to 11 Encyc. of PI. & Pr. 925, where the technical language of such a judgment for defendant is said to be: “It is considered by the court that the plaintiff take nothing by his writ and that the defendant go hence without day.” In 23 Cyc. 670, it is said that where issues of fact have been found by a jury for defendant, the judgment should be that plaintiff take nothing by his writ or declaration. To the same effect is Puterbaugh’s Common Law Pleading and Practice (8th Ed.) 895. In Boggess v. Cox, 48 Mo. 278, the approved form was said to be: “It is by the court considered and adjudged that plaintiff take nothing by his writ and that defendant go thereof without day and recover of the plaintiff his costs.” In People v. Severson, 113 Ill. App. 496, where many authorities are discussed, it is held that the form of a final judgment for defendant on verdict is that it is considered that the plaintiff take nothing by his suit and that the defendant go thereof without day. In Lee v. Yanaway, 52 Ill. App. 23, it was held that the question whether a judgment was final is not to be determined from the mere fact that costs and execution thereof are adjudged against one of the parties, that costs are an incident to a final judgment, but that whether the judgment is final or interlocutory is to be determined from other considerations ; that it must, to be final, terminate and completely dispose of the action. Similar language is used in Wenom v. Fossick, 213 Ill. 70, though the judgment there involved was on demurrer. A judgment for costs may be entered when no final judgment between the parties has been reached. In some of the authorities we have above cited there are expressions indicating that a judgment for costs for defendant makes the judgment final. There are authorities in other jurisdictions to that effect. Best’s Encyc. of Common Law Orders gives many forms which only give the defendant a judgment for costs after verdict in his favor. Notwithstanding the authorities last mentioned, we are of opinion that in this State the valid form of a judgment for defendant after verdict in an ordinary common-law action is that it is considered by the court that the plaintiff take nothing by his suit and that defendant go hence without day, or other equivalent words, with a judgment for costs and execution therefor.

It follows that no final judgment has been entered in this case. The appeal must therefore be dismissed with leave to appellant to withdraw record, abstracts and its briefs.

Appeal dismissed.


source: Caselaw Access Project

author: Mr. Presiding Justice Dibell

license: Public Domain

text:
    Sarah French Miller, Appellee, v. Albert T. Thomas et al., Appellants.
    Gen. No. 6,173.
    1. Damages, § 57

      —what is measure of damages for breach of contract to repurchase unsold land from vendee. Where land is sold by one person to another and a deed to other land and a contract for repurchase of the latter land taken as part payment of the purchase price, under which contract of repurchase the vendor of such latter land agrees to sell it for the vendees for a stipulated price within one year, and, if he fails to do so, to repurchase it at such price, the measure of damages for refusal to repurchase such latter land at the expiration of one year, after tender of a deed, is the contract price.

      2. Assumpsit, § 23

      —when recovery may he had on common counts for money due. Where a contract has been fully executed and nothing remains to be done but to pay the amount specified, a recovery may be had under the common counts for money due.
    3. Pleading, § 161*—when defendant limited to defenses in affidavit of merits. A defendant is confined to the defenses set *up in an affidavit of merits.
    Appeal from the Circuit Court of Peoria county; the Hon. John Ml. Niehaus, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Shelton McGrath and C. W. Heyl, for appellants; Frank J. Quinn, of counsel.
    McRoberts, Morgan & Zevumeeman, for appellee.

      See Illinois Notes Digest, Veis. 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 Dibell

delivered the opinion of the court.

Sarah French Miller sold and conveyed real estate in Peoria to Irene M. Thomas and took' in part payment d deed of certain real estate in Mississippi, together with a contract back from Mrs. Thomas and her husband, Albert V. Thomas, concerning the same land, dated April 25,1913, the body of which was as follows;

“Having sold to Sarah French Miller the property situated in Harrison County, Mississippi, and described as the West Half of the Southwest Quarter of Section Two (2) in Township Six (6) South, of Range Twelve (12) West, I hereby agree and guarantee, as part of the consideration in said sale, to resell* said property for said Sarah French Miller within one year from date hereof, for not less than $1,600.00 to her upon terms of at least one-half cash, balance in one, two and three years, with 6% interest.

“I hereby further covenant and agree, for the consideration above guaranteed, that in case I shall fail to sell said above described land to some third person within said period of one year, at the price aforesaid, I shall then, immediately at the expiration of said period, myself purchase said land from said Sarah French Miller at said price of $1600.00 and upon said terms.

‘1 Said Sarah French Miller shall not be bound to sell at said price, but should she decline a bona fide offer of purchase as hereinbefore provided, or should she decline to sell said land to me at the expiration of said period as above provided, then upon such declination this guaranty shall cease. ’ ’

Mr. and Mrs. Thomas did not resell said land within one year nor did they repurchase the same from her at the end of the year. Mrs. Miller and her husband thereupon executed and acknowledged a warranty deed of said premises to Albert V. Thomas, who was the agent of his wife, and caused the same to be tendered to him, and he refused to receive the deed and refused to pay the money. Then this suit was brought to recover the purchase money, and plaintiff filed a declaration containing the special count, setting out the contract in haec verba, another special count declaring on the instrument according to its legal effect, and the consolidated common counts, to which was attached an affidavit by plaintiff that there was then due her from the defendants under said contract $1,634.66. Defendants filed a plea of nonassumpsit with an affidavit of mérits. The cause was tried by a jury and plaintiff had a verdict for $1,634.66, a motion for a new trial was denied and plaintiff had judgment for that amount and defendants appeal.

Appellants contend that the measure of damages in such a case is the difference between the contract price and the fair market value, and that as the proof is that this land is worth $1,600, only nominal damages could be recovered. In Gray v. Meek, 101 Ill. App. 463, and 199 Ill. 136, it was held that said rule was not applicable to such a case. There Gray, as the agent of Meek, had the exclusive right by contract to sell certain lots for one year at certain prices, and if any lots remained unsold at the end of one year, Gray was to buy such remaining lots and Meek was to sell them to him at the above prices. Afterwards there was a written extension of the contract. Certain lots remained unsold and Meek sued Gray, first, for certain moneys withheld on lots which had been sold and, second, for the agreed price for the lots remaining unsold. Gray set up that the true measure of damages was the -difference between the agreed price and the fair market value. This contention was held not tenable. Meek recovered the entire consideration for the lots not sold. The payments were in instalments and no tender of a deed had been pleaded and there was no sufficient proof of a tender. The court held that Meek could recover all the instalments except the last, but could not recover the last instalment because he had not pleaded and proved tender of a deed. He entered a remittitur in the Supreme Court for the amount of the last instalment and the , judgment was affirmed as to the balance. It is argued here that the case does not apply, because there presumably Gray had possession. It will be seen, Iioayever, by reading the contract as set out in the Appellate Court opinion, that Gray was not to exercise any right of OAvnership or have any interest in the real estate by reason of that agreement. This case of Gray v. Meek has never been overruled so far as we are advised, and is therefore controlling on the right to recover.

Appellants contend that the special counts declare for damages and not for the money due under the contract, and therefore only nominal damages could be recovered. If there is any defect in the conclusion of these special counts, which we do not concede, yet the common counts sought a recovery for money due. This contract had been wholly executed and nothing remained to be done bnt to pay the amount specified. In such a case a recovery may be had under the common counts. Bauer v. Hindley, 222 Ill. 319. Appellants contend that if they are liable to pay this $1,600, they are only liable by the terms of the contract to pay $800 at the end of the year and the balance at one, two and three years with six per cent, interest. The year ended April 24, 1914, and the suit was begun July 28, 1914, and appellants contend that therefore only $800 could be recovered in this suit. Appellee contends that the true construction of the contract is that the whole sum was due her at the end of the year. Assuming that appellants are right as to the time within which they could pay, still they cannot avail of this defense in the present condition of the pleadings. Appellee filed with her declaration an affidavit showing the nature of her demand and the amount claimed to be due her. In such case section 55 of the Practice Act (J. & A. 8592) required defendants, in order to avoid a default, to state that they verily believed that they had a good defense upon the merits to the whole or a portion of the plaintiff’s demand, and if a portion, specifying the amount, and specifying the nature of such defense. Albert V. Thomas filed an affidavit with the plea of the defendants in which he stated that in making such affidavit he was acting for himself and as agent for Irene Thomas; that he verily believed that defendants had a good defense upon the merits to the whole of the plaintiff’s demand, and that the nature of the defense was that plaintiff did not tender a deed to the premises referred to, but offered to deliver some sort of a writing provided defendants would pay the plaintiff $1,600, and that plaintiff has never offered or been willing to deed to defendants said premises according to the terms of the writing, and that plaintiff has not suffered any damages on account of any failure or refusal of the defendants. Under Allen v. Watt, 69 Ill. 655; Haggard v. Smith, 71 Ill. 226; Mayberry v. Van Horn, 83 Ill. 289; Henry v. Meriam & Morgan Paraffine Co., 83 Ill. 461; and Kadison v. Fortune Bros. Brewing Co., 163 Ill. App. 276, appellants were confined to the defenses set up in said affidavit. The defense that appellee had not suffered any damages has already been disposed of. The remaining defense was that there was no tender of a deed. The tender of the deed was duly shown. Although the last instalment might not have been due when that tender was made, yet appellee could not demand the whole amount without tendering the deed. The affidavit did not set up that some of the instalments were not due, but only that the deed was not tendered in accordance with the contract. Defendants did not offer to pay $800, and they did not set up the affidavit that only $800 was due. The deed was tendered and was offered in evidence, and the only defense so set up was not maintained.

The judgment is therefore affirmed.

Affirmed.

Mr. Justice Niehaus took no part.


author: Mu.. Presiding Justice Dibell

text:
    Mary E. Douvia, Appellee, v. City of Ottawa, Appellant.
    Gen. No. 6,189.
    1. Municipal corporations, § 985

      —when duty of city to protect public against excavations in street. It is the duty of a city to protect the public against an excavation made in a public street by a contractor.
    2. Municipal corporations, § 990*—when city must take notice of excavation in streets. A city must take notice of an excavation in a street made by a contractor.
    3. Municipal corporations, § 1107*—when sufficiency of barriers and lights about excavation made by contractor in streets question for jury. In an action against a city for damages for personal injuries sustained as a result of driving at night into an excavation made in a public street by a contractor, where it appeared that the lights were burning two hours before the accident but that they were not burning shortly before the accident, and that the lamps when lighted after the accident either would not burn or would go out immediately, held that it was a question for the jury whether the barriers and lights were sufficient.
    4. Damages, § 116*—when verdict for personal injuries not excessive. A verdict for $3,000 in favor of a woman who previously to an accident had been in good health and had never employed a physician, and who was badly bruised as a result of the accident, contracted pneumonia, and never regained her former condition of health, held not excessive.
    5. Trial, § 91*—when objections to form of questions insufficient. Objections to the form of questions claimed to invade the province of the jury are insufficient when general in character.
    6. Appeal and error, § 1507*—when overruling of objections to form of questions invading province of jury harmless error. The overruling of objections to the form of questions claimed to invade the province of the jury is harmless error where the jury could not have found otherwise if the questions had not been asked.
    7. Instructions, § 151*—when refusal of instructions covered in charge not erroneous. It is not error to refuse proffered instructions sufficiently covered in the general charge.
    8. Instructions, § 18*—when misleading instructions properly refused. Instructions which are calculated to mislead the jury are properly refused.

      9. Negligence, § 237

      —when instruction properly modified. In an action for damages for personal injuries negligently caused, an instruction held properly modified by changing the expression “the cause of the accident” to "the proximate cause of the accident.”
    10. Municipal corporations, § 1100*—when instruction in action for personal injuries on sufficiency of lights about excavation properly modified. In an action against a city for damages for personal injuries sustained as a result of driving into an excavation in a street at night which was insufficiently guarded and lighted, a requested instruction that would have relieved defendant from liability upon its placing at the excavation two or three red lanterns, without regard to their power or efficiency, held properly modified by the insertion of the words “and were a sufficient and adequate warning of the ditch and its position on said street.”
    11. Instructions, § 105*—when requested instruction giving form of verdict proper. A requested instruction giving a form of verdict if the jury found for the party proffering it, held proper.
    12. Appeal and error, § 1712*—when error in refusal of instruction waived by failure to argue assignment. Any error in the refusal of a proffered instruction is waived where such question, although assigned for error, is not argued.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Rehearing denied April 6, 1916.
    Taylor Strawn, for appellant; McDougall & Chapman, of counsel.
    Duncan & O’Conor and Butters & Clark, for appellee.

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

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

   Mu.. Presiding Justice Dibell

delivered the opinion of the court.

About 9:30 p. m. of April 2, 1913, appellee was riding west on Jefferson street in the City of Ottawa in a single seated top buggy, drawn by a span of horses driven by a young man of her acquaintance who was sitting at her right hand. She was being driven from the center of Ottawa to her home in the western part. A high wind was blowing, accompanied by thunder and lightning, and the night was very dark. At a certain place in Jefferson street a trench had been dug from the north curb line to the center of the street for a sewer to connect with a school building north of the street, and also for a water main. The witnesses differ some as to the width and depth of the excavation, but it is sufficient to state here that it was probably six or seven feet deep and about four feet wide. Some barriers had been placed about the opening, and three red lanterns had been placed there at five o’clock that afternoon. The red lights were not burning at 9:30 p. m. and there was no street lamp near, and the driver of the team did not see the excavation, but drove into it. The horses went into the ditch and in some way turned to the north, so that they were in line with the ditch, and when the accident was over they were both on the same side of the buggy tongue. Appellee went down between the horses with her head near their feet. She was taken out unconscious and removed to a neighboring house and from there to a hospital, and proved to be seriously injured, and had pneumonia as a result of the exposure. She brought this suit against the city to recover damages for her injuries, and upon a trial had a verdict and a judgment for $3,000, from which the city prosecutes this appeal.

The legal principles fixing the duty of a city to protect the public against such an excavation, whether dug by the city or by a contractor, and requiring the city to take notice of such an excavation in its streets, are laid down in City of Chicago v. Gallagher, 44 Ill. 295; City of Springfield v. LeClaire, 49 Ill. 476; City of Chicago v. Johnson, 53 Ill. 91; City of Sterling v. Thomas, 60 Ill. 264; City of Chicago v. Brophy, 79 Ill. 277. The principal defense of the city is that at five o’clock that night two laborers, Nick Kozwich and Marcus Yakowich, placed' barriers around the excavation and lighted and put up three red lanterns, which were burning well when they left, and that thereby the whole duty of the city to the public for that night had been performed, and therefore the city is not liable to appellee. About 7:15 that evening a witness passed in sight of that place and saw that there were two red lights burning. Some little time before the accident two men passed near the excavation and saw that no lights were burning. There were no lights burning as appellee reached this place. After the accident several people came there, including one or more officers of the city, and an effort was made by more than one person to relight the lanterns, and it was found that they would not burn, or would go out almost immediately. The lanterns were intact. This evidence tended to show either that the lanterns were not properly supplied with the right kind of oil, or that the wicks were defective. The city could have caused the lamps to be preserved and presented in evidence, but this was not done. Manifestly, appellee was in no condition to examine or preserve the lanterns. The jury were the judges whether sufficient barriers had been erected or sufficient lights had been provided to protect the public on that stormy night. We see no reason to disturb the conclusion of the jury that the city is liable.

It is contended that the damages are excessive. Appellee up to that time was in good health. She had never required the services of a physician. She was very badly bruised. She had pneumonia as the result of the exposure, and had never recovered her former condition of health. Without stating minutely her physical condition from that time on, as detailed in the evidence, we think it sufficient to say that we do not feel warranted in disturbing the award of the jury.

Certain questions were put to a physician, who attended appellee after the injury and who also testified as an expert, which appellant contends left to the witness the very questions which the jury were to decide. In the main the objections were not well founded, but it is an answer to them all that the objections in the trial court were general only and did not call attention to the definite form of the questions, which could and would, no doubt, have been-modified, if the point had been called to the attention of court and counsel. Moreover the jury could not have found otherwise if these questions had not been asked, nor were the answers particularly specific. For example, the physician was asked if certain conditions in his opinion were permanent. He did not reply that they were, but in effect that it was difficult to tell; they might or they might not be. We are of opinion that no reversible error is shown by the abstract in this case on that subject.

The court gave two instructions requested by plaintiff, both relating to the measure of damages. It is not claimed there is any defect in them. The court gave without modification seventeen instructions requested by appellant and modified two instructions requested by appellant and refused nine. Of the refused instructions, we think it sufficient to say that those which stated correct rules of law were sufficiently embodied in the given instructions, and some of them stated the responsibility of the city less strongly than the foregoing authorities required. Some of them were so worded that they were calculated to mislead the jury. The ninth instruction changed the expression “The cause of the accident” to “the proximate cause of the accident.” We approve of that modification. The third instruction requested by defendant would have relieved appellant of liability upon its placing at the ditch in question that night two or three red lanterns, without regard to the power and efficiency of those lanterns. The court modified this by inserting the words, “and were a sufficient and adequate warning of the ditch and its position on said street.” The authorities above cited, in our opinion, justified that requirement.. Instruction No. 30, requested by appellant and refused, gave a form of ver- ' diet if the jury found for the defendant. It should have been given. The bill of exceptions certifies that it contains all the instructions and it cpntains no instruction for either party as to the form of the verdict, but the verdict which was returned shows that the jury were able to form a verdict, and we cannot believe that if they had wished to return a verdict for the defendant, they would have been unable to form it. Moreover, though the refusal of this instruction is assigned for error, it is not argued and it is therefore waived.

We find no reversible error in the record, and the judgment is therefore affirmed.

Affirmed.


text:
    Frances Mertel, Defendant in Error, v. Charles F. Walter, Plaintiff in Error.
    Gen. No. 6,191.
    (Not to he reported in full.)
    Error to the Circuit Court of La Salle county; the Hon. Edgab Eldeedge, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Rehearing denied April 6,1916.
    Statement of the Case.
    Action by Frances Mertel, plaintiff, against Charles F. Walter, defendant, to recover earnest money paid in pursuance of an alleged contract for the purchase of real estate, which was finally abandoned. From a judgment for plaintiff, defendant brings error.
    Charles Helmig and Butters & Clark, for plaintiff in error.

      Abstract of the Decision.
    1. Contracts, § 205

      —when question of what constitutes for court. The question whether all the letters relative to the sale and purchase of real estate constitute a complete contract is for the court.
    2. Contracts, § 44*—when there is no meeting of minds so as to constitute. There is no meeting of the minds of parties to negotiations for the purchase of real estate so as to constitute a contract where an offer to purchase by letter accompanied by a payment of a certain sum' is met by the introduction of new conditions which are not accepted by the purchaser, and the latter also in a subsequent letter introduces new conditions which the vendor does not accept, but requests a verbal conference, which is agreed to by the purchaser, but the latter, without the holding of any conference, demands the return of the earnest money.
    Scanlan & Massieon, for defendant in error.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.


text:
    Mary E. Stauber, Appellee, v. Leo Stauber et al., Appellants.
    Gen. No. 6,194.
    1. Venue, § 14

      —when petition for change of filed in apt time. Under Hurd’s Rev. St. ch. 146, secs. 6, 7 (J. & A. HIT 11492, 11493), a petition for change of venue on account of prejudice of judges filed at the first term at which a summons is returnable and less than ten days after the information upon which the application is based comes to the petitioner is in apt time.
    2. Venue, § 12*—who is not a defendant who must consent to change of. A person named as defendant but who has not been served with summons and who has not entered an appearance is not a defendant whose consent is necessary to a change of venue under Hurd’s Rev. St. sec. 9 (J. & A. | 11495), requiring the consent of all defendants where there are two or- more defendants.

      3. Venue, § 24*—when granting change of is imperative. Where a proper application for change of venue is made, the granting thereof is imperative, and not discretionary with the court.
    4. Appeal and error, § 1772*—when refusal of change of venue ground, for reversal. The refusal of a proper application for change of venue is ground for reversal.
    5. Venue, § 31a*—what is effect of proper application for change. Where a proper application for change of venue is made, questions which arise after the improper denial of the motion for change of venue are not proper to be considered by the court.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed February 8, 1916.
    Butters & Clark, for appellants.
    Boys, Osborn & Griggs, for appellee.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

This is an action of debt brought in the Circuit Court of La Salle county by Mary E. Stauber against Leo Stauber, the principal, and four sureties upon a bond given to secure the payment of instalments of alimony in a divorce case, and which is the bond referred to in Stauber v. Stauber, 168 Ill. App. 179. Leo Stauber filed a petition for a change of venue from two of the three judges of that circuit and it was heard and denied by one of said two judges, who thereafter heard all further proceedings in the case terminating in a judgment for plaintiff, from which all defendants who were in court prosecute this appeal. The first question is whether the petition for a change of venue was properly denied.

(1) It is argued that said petition was not filed in apt time. Sections 6 and 7 of the statute in relation to changes of venue (J. & A. ^ 1492, 1493) provide that no such application after the first term shall be allowed unless the applicant gives the opposite party ten days’ previous notice, except where the causes have come to the knowledge of the applicant less than ten days before making the application; and that no such change shall be granted after the first term at which the party might have been heard, unless certain other things shall have been shown. This suit was begun September 22, 1913, and the summons was returnable on the first day of the October term, 1913, which was the second Monday, or October 13,1913. On October 14th, the defendants, except Katherine Conness, filed a demurrer to the bill. On December 20th said demurrer was set to be heard on December 29, 1913. On December 27, 1913, at said October term, Leo Stauber filed his petition for a change of venue from said two judges and filed therewith the consent of certain defendants, and the court on the same day heard and denied the same. A bill of exceptions was taken, setting forth the proceedings relating to the change of venue. It is not questioned but that the petition is in due form. All the proceedings relating to the change of venue were at the first term, at the term to which the summons was returnable. The case was then pending on a demurrer to the declaration. The petition stated that the knowledge of the prejudice of the judges had come to the petitioner since December 20, 1913, and less than ten days before the filing of the petition. We fail to see why, under the statute referred to, the application was not in apt time. In that respect it contained more than the statute required.

(2) Section 9 of the statute referred to (J. & A. !f 11495) provides that where there are two or more plaintiffs or defendants, a change of venue shall not be granted except with the consent of all the parties, plaintiffs or defendants as the case may be. The defendant, Katherine Conness, did not consent to the application for a change of venue. It is argued that for that reason the change was properly denied. Katherine Conness was not served with summons. She did not enter her appearance. She was not before the court. No proceeding in the cause could bind her. Was her consent necessary to the application of Leo Stauber for a change of venue? In Hitt v. Allen, 13 Ill. 592, one defendant had been defaulted. Thereafter the other defendant applied for a change of venue and did not have the consent of the defaulted defendant. It was held that the statute requiring all defendants to join in the application must be understood as applying only to those defendants between whom and the plaintiff a cause is pending wherein a trial is to be had. In Donahue v. Egan, 85 Ill. App. 20, a judgment by-confession had been entered against two defendants and afterwards one of them got leave to plead and did plead to the declaration. Thereafter he asked a change of venue. His codefendant objected to the change of venue and the application was refused. We there held that the defendant who was objecting was not a party to the trial between the plaintiff and the other defendant, and that therefore his consent or objection was not material, and that it was reversible error to refuse the change of venue. In 40 Cyc. 146, it is said that in a petition by one or more defendants for a change of venue, it is not necessary to join those defendants who have not been served and who have not appeared. In Myerhoff v. Tinslar, 175 Ill. App. 29, where one of several defendants was not served and did not appear, we held that the word “defendants” in the verdict and in the judgment was confined in its application to those who by their own act or by the act of the law had been made the subjects of jurisdiction. We there cited a number of authorities so holding. We therefore hold that a person who hqd been named as a defendant but who had never been served with summons nor entered an appearance was not a defendant whose consent was necessary under the statute. . '

(3) It is argued that no error afterwards intervened to the prejudice of appellants and that therefore this judgment should not be reversed, even if it was error to deny a change of venue. Goodwin v. Goodwin, 65 Ill. 497, is cited in support of this contention. We are unable to find that that case has ever since been cited upon this subject by the Supreme Court. The contrary doctrine has frequently been announced in this State. In Clark v. People, 2 Ill. (1 Scam.) 117, the Supreme Court said that when the accused brought himself within the requirements of the statute for a changó of' venue, the obligation of the court to allow it is imperative and admits of the exercise of no discretion. In Walsh v. Ray, 38 Ill. 31, it was held that when the1 re- • quirements of the statute for a change of venue have been observed, the mandate of the statute is peremptory, and the court must grant the change. In Knickerbocker Ins. Co. v. Tolman, 80 Ill. 106, decided since Goodwin v. Goodwin, supra, the court used language very applicable to appellee’s contention here. A change of venue requested by defendant had been refused. The court held that the petition and notice conformed strictly to the statute and that the granting of the change was not discretionary and that the court erred in not allowing it. The case had been tried in the court below and resulted in a judgment against defendant, and the appellee, insisted’ that the defense had no merit. The court said that even if that were true, the right to a change of venue was secured to the party by the statute, and it must be obeyed/: The. court further said: “If a reversal in this case works, a hard- ■ ship, appellees, should, have ■ permitted; the change of venue to be made without opposition. They saw the petition and notice, and must have known that they were strictly in conformity to the statute, and entitled appellant to a change of venue. Hence they have contributed to produce the hardship of which they now complain. Counsel must have known that it was error to refuse the motion, and hence should have yielded to the change of .venue, but, failing to do so, he cannot urge us to relieve him against the error he has procured in the record.” In the recent case of Feigen v. Shaeffer, 256 Ill. 493, the court reversed the case for failure to grant a change of venue and declined to consider the other errors assigned. This seems to mean that if the other errors were not well assigned, still a reversal must be granted because of the denial of the change of venue. The court there held that on a proper application, the change must be granted. Glos v. Garrett, 219 Ill. 208; Miehle Printing Press & Manufacturing Co. v. Arkulas, 131 Ill. App. 461. The argument that no other error intervened is accompanied by the admission that the judgment is for substantially too large an amount. The appellee offers to cure this by remittitur. We are of opinion that the refusal of the change of venue was a denial of a substantial right, and that the questions which arose after the change of venue was denied should be submitted to a judge from whom a change of venue was not asked. It is true that applications for changes of venue often appear unjust to the judge against whom they are made and appear to him to be made in fact for delay only. If any remedy is required, however, it must be sought in the Legislature.

For the failure to grant a change of venue, the judgment is reversed and the cause remanded, with directions to grant the change of venue and to rescind all orders made after the petition for the change of venue was filed.

Reversed and remanded with directions.


text:
    W. H. Coffey, Public Administrator, Appellee, v. Della Mann, Administratrix, Appellant.
    Gen. No. 6,202.
    1. Domicile—when evidence sufficient to show residence in another State. Evidence held sufficient to sustain a finding that a decedent was a resident of another State, where his family lived, and not of Illinois, where he died and had been engaged in transacting considerable business.
    2. Executors and administrators, § 30

      —when creditor not entitled to preference in administration. Under the Administration Act, sec. 18 (J. & A. If 66), a creditor is not entitled to preference in administration of the estate of a nonresident over the public administrator, but the public administrator is preferred to all except the widow, husband and next of kin resident in this State.
    Appeal from the Circuit Court of Knox county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    B. E. McLaughlin and Marsh & Martin, for appellant.
    Fletcher Carney, James W. Carney and Sig. B. Nelson, for appellee; Chester I. Long, of counsel.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Leslie C. Roberts died intestate at Galesburg, Knox county, Illinois, on March 10, 1915, leaving surviving him as his sole heirs at law his wife, Eunice Roberts, and an invalid son, Henry Roberts, both of whom lived in Wichita, Kansas, and’leaving in Hlinois a deposit in a bank in Galesburg and an automobile. The next day after his death Della Mann, claiming to be a creditor, took out letters of administration upon the estate of deceased in the County Court of Knox county. On March 19, 1915, W. H. Coffey, public administrator of Knox county, filed a petition in said County Court alleging that Roberts was a resident of Wichita, Kansas, and asking that the letters to Della Mann be revoked and that letters be issued to him as the public administrator. The County Court heard and denied said petition. Coffey appealed to the Circuit Court, where, upon a hearing, the letters to Della Mann were revoke'd and Coffey as public administrator was appointed to administer said estate. This is an appeal by Della Mann from that order.

The principal question litigated is whether Roberts was a resident of Illinois or of Kansas. The proofs introduced by the public administrator showed that Roberts owned a house in Wichita which he maintained and in which his wife and son resided. A brother of Mrs. Roberts, living for very many years in Galena, Illinois, testified that twenty-three years ago he visited the family in Wichita and that Roberts then lived there with his wife and son, and that he had never heard of any separation between them. A banker at Galesburg testified that Roberts always spoke of Wichita, Kansas, as his home; that Roberts kept a deposit in a bank in Galesburg, but that most of his banking business was done at Wichita, Kansas. A lawyer of Galesburg, who had done, considerable business for Roberts, testified that Roberts gave him his address as Wichita, Kansas, and whenever he wrote to him when Roberts was not at Galesburg, he addressed bim at • Wichita, Kansas. He testified that Roberts directed bim. to bring a suit against a certain party and he told Roberts that he would probably be compelled to give a bond for costs and Roberts said he knew that. The witness started the suit, the defense made an application to compel Roberts to give a bond for costs, based on an affidavit that Roberts was a nonresident of the State of Illinois; that Roberts did give such bond and that on the trial of that case, only three or four months before Roberts died, he testified that he lived in Wichita, Kansas. The attorney for the defendant in that case testified that some two years or more before that time, he met Roberts on a train in the west and Roberts told him that he lived in Wichita. The agent for the Santa Fe Railway in Galesburg testified that he had met Roberts and his wife at the station in Wichita; that at times Roberts purchased a ticket at Galesburg for Wichita and generally said that he was going home; that not many months before his death he bought a ticket for Carrolton, Missouri, and said that he was going to stop there on his way home. Just three months before he died he entered into a contract for the erection of two cottages in Galesburg and therein described himself as “L. C. Roberts of Wichita, Kan.” Some intimation having been made of domestic trouble between Roberts and his wife, the petitioner introduced in evidence a number of letters, written by Roberts to his wife from Galesburg during the last two months of his life, the signatures to which were proven. In those letters he told his wife in detail various transactions he was having in various parts of Hfinois, expressed interest in the health of his wdfe and son, stated the condition of his own physical ailments, urged his wife to go to a dressmaker and get work of that kind done before spring, expressed satisfaction later that she had done as he suggested, told how he had fixed the water pipes in the house to prevent their freezing; and in several of them said that if he could complete a certain important business deal, he should be home very soon'. The letters contained several references to his coming home soon. These letters and some other evidence show that he was engaged in the business of dealing in Illinois and Kansas lands. The proof introduced by Della Mann is that she and her sister, Sadie Mann, and their mother had lived in Galesburg fourteen years; that before that, they had met Roberts at Canton, Illinois; that ever since they had been in Galesburg, Roberts had made his home at their place, having come there to board through their brother, who was a warm friend of Roberts, personally and in a business way; that whenever Roberts was away from Galesburg, he wrote to Della Mann, and generally said he was coming home; that from 1910 ununtil his death he repeatedly said that he was going to build a modem home in Galesburg and was going to make Galesburg his home; that his last visit to Wichita was the latter part of December, 1914, and the fore part of January, 1915, and that on his return he told them that he was not going to Wichita any more on account of the treatment he had received there. This testimony came fi’om Della Mann and her sister. They also testified that in the early part of 1915, a young lawyer in Galesburg was a candidate for an office; that Roberts said he was going to register and vote for him ; that Roberts was absent from Galesburg on the first registration day and died before the second registration day. They testified that Roberts spent from half to three-fourths of his time in Galesburg. Della Mann filed a claim against the estate for board, room, washing and mending from March 7, 1910, to March 7, 1915, at $7 per week, less $210 paid thereon, and also for $50 money loaned, and for certain telephone tolls, in the total amount of $1,662.36. At one time Roberts had a stock of goods in Galesburg which he had taken on a trade and he signed a schedule of it for taxation in which he was described as “of the City of Gales-burg, Knox county, Illinois.” Roberts was taken very ill at the Mann home on March 9,1915, and a physician was called who took him to a hospital and performed an operation upon him. The physician had never met Roberts before that morning. On the way to the'hospital the doctor asked Roberts where he resided, and he answered, “in Galesburg, Illinois,” and the doctor asked him if he wanted any one to be notified if anything happened to him and he said: “Miss Mann,” and that it was his home at the house from which he had just been taken and that he had made his home in G-alesburg about fourteen years. On the day he died, according to the testimony of Miss Mann arid her sister, he dictated a telegram to his wife about business matters for fear that some one else would have notified his wife of his illness and she might come on. The foregoing is the substance of the evidence on the subject of residence, and without discussing the degree of credence to be accorded to the various parts of the testimony, we think it sufficient to say that in our opinion the Circuit Court correctly decided that Roberts was a resident of Wichita, Kansas.

Appellant «contends that if Roberts was a nonresident of this State, still a creditor is entitled to preference in administration over the public administrator. In Rosenthal v. Prussing, 108 Ill. 128, decided in 1883, it was held that a creditor of a nonresident intestate is entitled to preference over the public administrator. Section 18 of the Administration Act then in force (J. & A. ff 66) contained the following provision: “In all cases where the intestate is a nonresident, or without a widow, next of kin, or creditors in this State, but leaves property within the State, administration shall be granted to the public administrator of the proper county.” The Supreme Court there held that while the literal reading of that sentence gave the preference to the public administrator, yet upon consideration of sections 46 and 48 of the Administration Act (J. & A. ffff95, 97) and certain sections of the earlier statute of “Wills,” the word “or,” in the part of the statute above quoted, should be read “and” and, so read, creditors were given the preference over the public administrator. In 1905, section 18 of the Administration Act was amended in several respects (J. & A. ff 66), and among other things the clause above quoted was amended to read as follows: “In all cases where the intestate is a non-resident, and in all cases where there is no widow, husband or next of kin entitled to a distributive share in the estate of such intestate, who at the time of the death of said decedent is a bona fide resident of this State, administration shall be granted to the public administrator.” In Krome v. Halbert, 263 Ill. 172, where a resident heir at law of a nonresident deceased was contending with the public administrator for administration of property in this State, Rosenthal v. Prussing, supra, was approved as applied to that case, under this statute as amended. Undoubtedly the paragraph last above quoted does give the preference of administration to the next of kin over the public administrator, and Rosenthal v. Prussing, supra, is applicable to such a case. But the amendment has excluded the word “creditors” and therefore they are no longer preferred, and under section 18 as it now reads, in case of a nonresident intestate, the public administrator is preferred to all except the widow, husband and next of kin, resident in this State. Therefore the order of the court below was in accordance with the statute, and it is therefore affirmed.

Affirmed.


text:
    P. J. Millett, Defendant in Error, v. D. J. McDonald, Plaintiff in Error.
    Gen. No. 6,211.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bills and notes, 372

      —when variance exists between special count on note and proof. There is a variance between a special count on a lost promissory note and the proof where such special count does not allege that the note is payable at any particular place, and proof deduced, on cross-examination of the plaintiff, that the note was payable at a specific place.
    2. Assumpsit, action of—what is object of common counts. The object of the common counts is to protect a plaintiff against some accidental variance.
    3. Assumpsit, action of, § 34

      —when recovery may be had on common counts on notes. A recovery may be had on the common counts in an action on lost promissory notes, although there is some accidental variance in the description of the notes sued on in the special count, where the existence of the notes is proven, the signature of the maker, the payment of the consideration and the loss of the notes before maturity.

      Error to the Circuit Court of Kane county; the Hon. Clinton F: Irwin, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Statement of the Case.
    Action by P. J. Millett, plaintiff, against D. J. McDonald, defendant, to recover on three lost promissory notes. From a judgment ■ for plaintiff, defendant brings writ of error.
    J. O. Murphy and E. L. Lyon, for plaintiff in error.
    John M. Raymond and John K. Newhall, for defendant in error; Robert S. Egan, 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. Presiding Justice Dibell

delivered the opinion of the court.

4. Instructions, § 151*—when requested instruction covered in charge properly refused. A requested instruction covered in the general charge is properly refused.

5. Partnership, § 52*—when evidence insufficient to show formation of partnership. In an action on three lost promissory notes alleged by defendant to have been advanced in a partnership transaction, evidence held insufficient to establish a partnership.

6. Set-off and recoupment, § 40*—when evidence insufficient to establish right of set-off. In an action on lost promissory notes, evidence on behalf of defendant which was contradicted by plaintiff, held insufficient to establish a right of set-off.

7. Evidence, § 134*—when use of copies of letters without laying foundation on cross-examination improper. It is improper to use carbon copies of letters from plaintiff to defendant for cross-examination of defendant after demand of the originals from the defendant and his failure to produce them, over objection, without first laying a proper foundation by showing that they are in fact true carbon copies of letters which were written and mailed by plaintiff to defendant, and introducing them in evidence.

8. Appeal and error, § 1470*—when use on cross-examination of copies of letters toithout laying foundation harmless error. The use of carbon copies of letters from plaintiff to defendant upon cross-examination of defendant, after demand of the originals from the defendant and his failure to produce them, without laying proper foundation for their admission in evidence is harmless error where the necessary proof is afterwards made for their admission in evidence.


text:
    Caroline Erickson, Appellee, v. Martin Svete et al., Appellants.
    Gen. No. 6,215.
    1. Pleading, § 432

      —when averment laid under videlicet need not be exactly proved. Where a date is laid under a videlicet in counts in a declaration, the plaintiff in an action under the Civil Damage Act, sec. 9 (J. & A. If 4609), to recover damages for loss to her means of support because of the death of her husband from the use of intoxicating liquors sold by defendants, is not confined by such counts to proof of sales of liquor on such date.
    2. Intoxicating liquors, § 228*—when evidence sufficient to sustain finding that deceased died as a result of habitual intoxication. In an action by a wife under the Civil Damage Act, sec. 9 (J. & A. If 4609), to recover damages for loss to her means of support because of the death of her husband, alleged to be due to the use of intoxicating liquor sold by defendants to decedent, evidence held sufficient to sustain a finding that decedent died as a result of habitual intoxication.
    3. Intoxicating liquors, § 229*—when evidence sufficient to show loss to means of support of wife. In an action by a wife under the Civil Damage Act, sec. 9 (J. & A. If 4609), to recover damages for loss to her means of support because of the death of her husband from the use of intoxicating liquor sold by defendants, proof that the husband died from the use of intoxicating liquor, especially when accompanied by further proof that plaintiff was dependent upon decedent, held sufficient to show loss to her means of support.
    4. Intoxicating liquors, § 181*—when furnishing of money to husband to buy liquor no bar to right of recovery by wife for loss to her means of support. The fact that a wife furnishes money to her husband with which to buy liquor does not bar her right of recovery for loss to her means of support due to his habitual intoxication and death from the use of such liquor, in an action under the Civil Damage Act, sec. 9 (J. & A. If 4609), but may be used in mitigation of damages.
    5. Appeal and error, § 1245*—when party objecting to evidence may not complain that fact not proved. Where a party prevents proof by his objection or procures its exclusion, he cannot object that a fact is not proved.
    6. Intoxicating liquors, § 225*—where evidence sufficient to show that wife not precluded from recovery of damages for loss to

      means of support. In an action by a wife under the Civil Damage Act, sec. 9 (J. & A. 4609), to recover damages for loss to her means. of support due to the habitual intoxication and death of her husband caused by the use of liquor furnished by defendants, evidence held sufficient to sustain a finding that plaintiff had done nothing which barred her from the recovery of damages.
    7. Intoxicating liquors, § 246

      —when furnishing of money to husband with which to purchase, considered only in mitigation of damages. The furnishing by a wife of money to her husband to buy liquor may be considered only in mitigation of damages, in an action for damages for loss to her means of support, under the Civil Damage Act, sec. 9 (J. & A. If 4609).
    Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Martin C. Decker and George W. Field, for appellants.
    R. J. Dady and A. V. Smith, for appellee.

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On January 18,1914, Peter Erickson died. On September 10, 1914, his widow, Caroline Erickson, began this suit against certain saloon keepers under section 9 of the Dramshop Act (J. & A. 14609). By additional summons and amended declaration this became a suit against Martin Svete and Frances Svete, his wife, and John Walente and Rosalie Walente, his wife. The men were saloon keepers, and it was alleged that each wife owned the building where her husband’s saloon was conducted and knew of and assented to its use for that purpose. It turned out during the trial that during the period in question Mrs. Svete did own the building wherein her husband conducted a saloon and that Mrs. Walente did not own the building in which her husband conducted a saloon. Thereupon the suit was dismissed as to Mrs. Walente. The first and second counts of the declaration charge that the defendants Svete and Walente sold intoxicating liquor to Erickson on January 18, 1914, and thereby produced his intoxication and caused Ms death, and it is argued that under these counts there could only be proof of sales of liquor on that day. The record shows, though the abstract does not, that said date was laid under a videlicet and therefore appellee was not confined by those counts to proof of sales on that particular date. Rose v. Mutual Life Ins. Co., 144 Ill. App. 434. The third and fourth counts charged that the defendants gave and sold intoxicating liquor to Erickson during the period of nearly five years preceding Ms death and thereby caused him to become habitually intoxicated, and that he thereby wasted and squandered Ms property and became greatly impoverished and degraded in mind and body, and in consequence of said habitual intoxication came to his death. The jury returned a verdict finding the defendants guilty and assessing plaintiff’s actual damages at $1,500 and her exemplary damages at $500, and assessing $750 against Walente, $750 against Svete and $500 against Frances Svete. The court thereupon in writing instructed the jury that they could not find a verdict in several amounts against different defendants, but that their verdict, if any, should be for a lump sum against all defendants found guilty, and they then retired and returned a verdict assessing appellee’s damages at $2,000. On a motion for a new trial, at the suggestion of the court, appellee entered a remittitur of $500. Motions for a new trial and in arrest of judgment were denied, and there was a judgment against defendants for $1,500 and costs. Svete and wife prosecute this appeal therefrom, and contend that the evidence shows that Erickson did not die as a result of intoxication; that there is no proof that appellee was injured in person or property or means of support in consequence of the intoxication of her husband; and that appellee procured and furnished liquor to her husband and the doctrine of contributory negligence precludes a recovery by her.

Deceased was fifty-two years old at his death and his wife was sixty-four or sixty-five years old. He was a wire drawer in a wire mill and worked nights. When they were first married he did not drink at all. He then drank slightly and moderately. For the last five years of his life he drank very heavily. He was accustomed to come home in the morning with a pail of beer and a bottle of whisky, which he consumed, and frequently got a second allowance during the day. He was often drunk, especially Saturday nights and Sundays. Sometimes he was sent home by the man over him because he was so drunk that he was unfit to work. Sometimes he was required to lay off for a week in order to sober up. The physicians who made a post mortem found his heart, kidneys, liver and spleen very much enlarged. They testified that he died of chronic alcoholism. On the day of his death he came home at four o’clock in the morning, complaining that he was ill, and slept until seven o’clock and then went out and got beer and whisky and drank it, slept a while longer, went and got liquor again and drank it, and died in bed at one o ’clock in the afternoon. Walente testified that Erickson had only drank in his saloon three or four times, and the last time was more than six months before he died. There were numerous witnesses who swore to seeing Erickson get liquor in that saloon at various times, and ■ several of the witnesses testified to seeing him drinking liquor there the month before he died. Svete and wife testified that he had obtained liquor in their saloon almost daily for the preceding five years and often more than once a day. The jury could not have found otherwise than that he died as a result of habitual intoxication ánd chronic alcoholism.

Betting v. Hobbett, 142 Ill. 72, and cases there cited, show that the jury are authorized to infer loss to plaintiff’s means of support from proof of the husband’s death alone. Moreover, appellee here proved her husband’s employment and wages and that a certain portion thereof he gave to her with which to run the household. She was an old woman and obviously dependent upon her husband for support.

Several witnesses testified that appellee on various occasions had come to the saloon and obtained beer or whisky for her husband and taken it home to him. She denied this, but admitted that she had given him money out of his earnings with which to buy beer and whisky, and she undertook to tell that she did it because she was afraid of her life; that he had threatened to kill and would kill her if she did not comply, and she sought to prove by others that he was extremely ugly to his wife when she sought to interfere with his drinking. The court sustained objections by appellants to most of this class of testimony and excluded a part of it, and yet instructed the jury at the request of appellants that though the evidence established the case charged by appellee, yet if they found from the evidence that appellee procured and furnished intoxicating liquor to her husband, which materially assisted to form his habit of intoxication or to keep up his habit of intoxication, then she could not recover, unless the jury believed that she procured and furnished such liquor for her husband while she stood in fear of receiving physical injury from him if she refused to do so. There is some evidence still left in the record that deceased was a man of violent temper, and that appellee was governed by fear of him in whatever she may have done in the way of bringing liquor to the house during the last five years of his life. But, where a party prevents proof by his objection, or procures its exclusion, he cannot object that such a 'fact is not proved. Hahl v. Brooks, 213 Ill. 134; Hepler v. People, 226 Ill. 275; Owen v. Crumbaugh, 228 Ill. 380. Therefore, this case must be treated as if appellee made the proof which she sought to make, if said instruction stated the law correctly. But we understand the law in this State to be that, in such a case, conduct of the wife sanctioning the use of liquor by her husband does not bar her from a suit against those who have sold him liquor and procured his habitual intoxication and death, and loss thereby to her means of support, but may be used in mitigation of damages. Hackett v. Smelsley, 77 Ill. 109; Earp v. Lilly, 217 Ill. 582; Leverenz v. Stevens, 124 Ill. App. 401. Appellee testified that she went to Svete and Walente and requested them not to sell liquor to her husband and that they each promised not to do it. They testified that she told them that when he had the money she was willing they should sell him the liquor. She denied this and testified that what she said was that when he went into a saloon and ordered liquor and had the money to pay for it, she could not prevent it. We are of opinion that the jury were warranted in finding that appellee had done nothing which barred her from recovering damages.

As the judgment should not be reversed for any cause set up in appellant’s brief, it is therefore affirmed, and the cost of the additional abstract will be taxed against appellants.

Judgment affirmed.


text:
    Jewel Tea Company, Appellee, v. A. T. Petersen, Appellant.
    Gen. No. 6,220.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Injunction, § 169

      —when order for issuance of temporary injunction valid. The fact that a prayer for a temporary injunction is in a paragraph preceding the prayer for a summons instead of in such latter paragraph does not render an order for the issue of a temporary injunction invalid.
    2. Injunction, § 385*—when order requiring injunction bond with security approved ~by cleric harmless error. The fact that an order for a temporary injunction provides for an injunction bond with security to be approved by the clerk of the court instead of ' by the court, as is required by statute, does not constitute reversible error, as the obligors cannot escape liability on such ground.
    3. Injunction—when temporary injunction properly granted on answer. On a bill for a temporary injunction to restrain defendant from engaging in the same business as complainant in violation of an employment contract, held that an injunction was properly granted after answer filed, where a copy of the contract was attached to the hill and defendant did not deny that it was a true copy, and admitted the making of the contract, that it was terminated, and that he had gone into the same business and sought to trade with customers of the company, all of which was in violation of the contract.

      Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Statement of the Case.
    Bill by Jewel Tea Company, complainant, to enjoin A. T. Petersen, defendant, from entering into the same business as that of complainant in violation of a contract of employment. From an order granting a temporary injunction, defendant appeals.
    John B. King and Leo Gr. Hana, for appellant.
    Kirk & Shurtleff, for appellee.

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

4. Contracts, § 285 —what does not constitute abandonment of contract not to engage in same business. Where a contract of employment with a grocery company selling direct to consumers by wagons provides that the servant is employed not only to take orders for and deliver teas, etc., but also “to perform such other duties as the party of the first part may from time to time specify and require of him,” the fact that the duties of the servant are changed during the term of employment from that of wagon man and route agent to office duties in a-branch office does not constitute an abandonment of other terms of the contract not to engage in the same business for a certain period.

5. Injunction, § 159*—when bill to enjoin defendant from engaging in same business in violation of contract does not allege rescission of contract. On a bill for a temporary injunction to restrain defendant from engaging in the same business as complainant in violation of a written contract of employment, allegations in the bill that on a certain date, in consideration of a certain sum paid by complainant to defendant and accepted by him as payment for one week’s salary in advance, the contract of employment was then terminated by mutual agreement, when construed with other allegations in the bill, held to mean that defendant’s employment was mutually terminated and that the written contract was not abrogated.

6. Estoppel, § 47*—when employer not estopped to assert equitable rights by injunction against employee engaging in same business in violation of contract. An employer is not precluded from asserting equitable rights by injunction under a written contract of employment, whereby the employee agrees not to engage in the same business during or upon termination of the employment, by neglecting to pay to the employee an additional month’s pay upon discharge as provided by the contract, where the employee did not ask for such additional pay.

7. Injunction, § 80*—when temporary injunction proper to prevent violation of contract not to engage in same business. A temporary injunction lies to prevent a former employee of a grocery company from engaging in the same business in violation of the terms of his contract of employment, where the damages which such violation will inflict upon the company are practically impossible of ascertainment.


author: Mr. Justice Carnes

text:
    Margaret E. Hindle by Charles N. Hindle, Appellee, v. City of Joliet, Appellant. John W. D’Arcy, Appellee.
    Gen. No. 6,154.
    1. Municipal corporations, § 1107

      —when existence of visible crack in top of slab of stone constituting part of sidewalk before accident question for jury. In an action against a city for damages for personal injuries caused by the breaking of a large slab of limestone in a sidewalk over a coal basement, held, under conflicting evidence, that it was a question for the jury whether a visible crack existed in the top of the slab a few days before the accident.
    2. Municipal corporations, § 1023*—■when charged with notice of probable latent defects in sidewalk. A city which uses limestone quarried in the locality of a character known to frequently have curly and blind seams, which cannot be detected until they come to the surface, is charged with notice that concealed curly seams are likely to exist in such limestone and that if such a seam was in a stone it would probably result in the breaking of the stone.
    3. Municipal corporations, § 1107*—when question of exercise of ordinary care in supporting stone used in sidewalk for jury. Where a city used a limestone rock which was over eight feet long, six feet wide and seven or eight inches thick, unsupported, except at the edges, in a sidewalk over a coal cellar, and a manhole one foot in diameter was placed in such stone, and the stone was of a character known to frequently have concealed curly seams which would cause the breaking thereof when they came to the surface, and there was a great amount of public travel over such sidewalk and another similar stone had been found broken in the same walk shortly before the accident, held that it was a question for the jury in an action for damages for personal injuries to a pedestrian who was precipitated into the cellar because of the sudden breaking of the stone whether the city was in the exercise of ordinary care in permitting the stone to rest with such a support.
    4. Municipal corporations, § 994*—what degree of care required of as to condition of sidewalks. A city must use reasonable care to keep its sidewalks in a reasonably safe condition.
    5. Negligence, § 191*—when question of law. Negligence is a question of law only when the facts are so clear as to lead to but one reasonable conclusion.

      6. Negligence, § 198

      —when ordinary care question of law. Ordinary care is not a question of law unless the facts will lead to hut one reasonable conclusion.
    7. Municipal corporations, § 1006*—how sidewalks may be constructed. Municipalities may construct their sidewalks with as many different kinds of materials and in as many different ways as they please without interference by the courts provided they keep them reasonably safe.
    8. Appeal and error, § 1410*—when verdict not disturbed as unsupported by evidence. A verdict will not be disturbed as being unsupported by the evidence unless it is against the manifest weight of evidence.
    9. Municipal corporations, § 1087*—when evidence as to nature of material and manner of construction of walk admissible in action for personal injuries resulting from defects. In an action against a city for damages for personal injuries to a pedestrian who was precipitated into a coal cellar under a sidewalk as the result of the breaking of a large unsupported limestone rock over such cellar, held that evidence that rock of such a character was known to have latent defects or seams, and that there was no center wall or support under the stone, was admissible.
    10. Municipal corporations, § 1100*—when refusal of requested instruction that failure to place support under sidewalk not negligence, proper. In an action against a city by a pedestrian for damages for personal injuries sustained as a result of being precipitated in a coal cellar under a sidewalk, as the result of the breaking of a large unsupported stone in the walk over such cellar, a requested instruction that the failure to have a center wall or support under the stone was not of itself negligence, held correctly refused.
    11. Municipal corporations, § 993*—how stone in walk must be supported. A stone constituting a part of a walk may be supported in any manner provided it is reasonably safe.
    12. Instructions, § 151*—when requested instructions covered by given instructions properly refused. Requested instructions which are fully covered by given instructions are properly refused.
    Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed February 8, 1916.
    , Edward R. Nadelhoffer, for appellant.
    Snapp, Heise & Snapp, for appellee Margaret E. Hindle.

      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 Carnes

delivered tlie opinion of the court.

Margaret E. Hindle, a girl about fifteen years old, was on the sidewalk on the south side of Van Burén street in the business portion of the City of Joliet on the evening of May 28, 1912, when a large flagstone broke under her and she fell into an area way about seven feet deep. She was seriously and permanently injured. This action was brought against the City of Joliet and one D’Arcy, the owner of the adjacent premises, to recover for that injury. A jury found a verdict against the city for $6,000 upon which judgment was entered. The city prosecutes this appeal.

The plaintiff was rightfully at the place and in the exercise of ordinary care. It is not claimed that the verdict is excessive. Appellant’s main contention is that the defect in the stone was hidden and latent and could not have been discovered in the exercise of ordinary care.

It appears without controversy, that the sidewalk at and near that place was constructed of slabs of Joliet limestone laid side by side. The stone which broke was eight feet seven inches long, six feet wide, and seven or eight inches thick, and had been in that place about thirty-five years. The upper surface was worn smooth by travel. There was a manhole in the stone about one foot in diameter covered by an iron plate. The stone extended from the curb to within about four feet of the building, and was supported only by a stone wall fifteen inches thick on the street side and a brick wall twelve inches thick on the building side. The area way under the stone could be reached from the basement under the building, and until a short time before the accident by an outside stairway. It was used for storing coal. The line of break in the stone ran directly through the manhole and was in the half of the flagstone adjacent to the street. It was Joliet limestone quarried in and about that city where it existed in layers of different thicknesses. It is a well-known defect in that kind of limestone that it has1 ‘ seams ’ ’ which are usually vertical. One kind known as curly seams and blind seams meaning that they zigzag through the stone and there are no means of detecting them unless they come to the surface. Seams do not exist in all Joliet limestone, but they are quite likely to be found in it. An experienced witness said: ‘ ‘ There are seams in Joliet limestone that cannot be readily seen. * # * It is pretty hard to get acquainted with Joliet limestone in regard to seams. You don’t know when they are coming. I never got acquainted with them yet. In my experience I have discovered quite a number of them. You cannot always see them.” The effect is to weaken the stone and it eventually breaks because not strong enough to hold under a strain.

This stone had a curly seam which could not be detected from the upper surface. It extended the full length of the stone and from the bottom to a quarter of an inch or less from the top. It broke and separated along that seam. It could perhaps have been detected by a careful examination from the under side, but probably would not have been seen in any ordinary inspection. Employees of the city inspected this walk a few weeks before the accident; took off all the manhole covers and examined the stone around the manhole, but did not go under the walk. They discovered no defect but they were not especially looking for that kind of a defect. D’Arcy, the owner of the building, examined the walk shortly before the accident, discovering no defect in this stone. There was at that time a similar stone near by in the walk which was broken. There was no area way under it and' it could not fall. It was repaired. Two witnesses for appellee testified that several days before the accident they noticed a crack in the stone which afterwards broke and occasioned the injury. They describe the crack corresponding to the break in question and say it was a crack that could then readily be seen and that the stone had a rocking motion under the feet. It is stoutly contended by appellant that these witnesses are mistaken; that it was the other broken stone near by that they were speaking about. The city introduced witnesses who testified that there was no visible crack in the top of this stone before it finally broke, witnesses who were in a position to know if there had been one. It left a fair question for the jury whether there had been a visible crack in the stone several days before the accident. There is no question that the city was charged with notice that concealed curly seams were likely to exist in a slab of Joliet limestone of this kind and character, and if such a seam was there it would probably sometime result in the breaking of the stone, as happened in this case. It was also charged with notice that the stone extended over this area way with no support except at the sides; also that a similar stone near by had broken. If the plaintiff’s two witnesses above mentioned are to be believed, there had been an open visible crack in the stone long enough so that the city was charged with notice of that, which would leave no question as to its liability. If they are not to be believed, it was a question for the jury whether, considering the known character of the stone, the great amount of public travel at that place and that a similar stone in the same walk had lately broken, the city was in the exercise of ordinary care in permitting that stone to rest with that support, in that place, with the liability that it might break and occasion great loss and injury. It is not so much a question whether it should have discovered the seam as whether it should have guarded against the danger of an undiscoverable defect that it had notice might exist.

There is little ground for controversy about the law governing these facts. Appellant cites many authorities to the effect that a city is only bound to exercise reasonable care to keep the sidewalk in a reasonably safe condition; that it is not an insurer against accidents or bound under the law to keep its sidewalks absolutely safe or absolutely perfect; that it is not liable for latent and unseen defects in its sidewalks not discoverable by the exercise of ordinary care; that it is only bound to remedy defects that can be detected by the exercise of ordinary care, and only bound to use reasonable care to see that its sidewalks are in a reasonably safe condition; that it must have either actual or constructive notice of a defect in a sidewalk before it may become liable. These are long established propositions of law and mean little, if anything, more than that the city must use reasonable care to keep its walks in a reasonably safe condition, and nothing more is required of it. Counsel cite numerous cases where certain acts or omissions have been held by the courts to amount to due care or negligence on the part of a city. Such cases show what different courts in passing upon the facts have held as a matter of fact, not as matter of law, constitute due care or negligence. Ordinary care and negligence are not questions of law unless the facts are so dear as to lead to but one reasonable conclusion. A given method of construction, maintenance and inspection of walks might be ordinary care under one condition and negligence under another. A walk might be so built that little inspection would be required, and another walk so built and located that constant inspection would be called for in the exercise of ordinary care. Appellant’s counsel well say the jury has no right to review the discretion of the city authorities in adopting a plan of construction of sidewalks. It is also true that the courts have no such power. Municipalities may construct their sidewalks with many different kinds of material and in many different ways free from interference by courts or juries provided they keep them reasonably safe. But whatever the material or method of construction the city is bound to exercise reasonable care in view of the construction to keep the walk in repair. It must exercise reasonable diligence to ascertain and guard against the varying defects and dangers incident to each kind of construction, or, failing to do so, it will become liable for injuries resulting. Whether in this case the city was guilty of negligence was a question of fact for the determination of the jury, subject to the control of the trial court and reversal in this court if, in our opinion, the conclusion of the jury was manifestly against the weight of the evidence. We are not of the opinion that the verdict was manifestly against the weight of the evidence, therefore we are not warranted in disturbing it.

Appellant argues that the court erred in allowing evidence to go to the jury that Joliet limestone flags may have latent defects, or seams, and in allowing evidence that there was no center wall or support under the stone, and in refusing an instruction that the failure to have such center wall or support was not of itself negligence. We find no error in these respects. It was necessary for the jury to know of what and in what manner the walk was constructed, and to know, either from common knowledge or from evidence of experienced witnesses, the nature of the material of which it was built. The instruction was properly refused because it was not for the court to inform the jury as ■ matter of law what method of construction or maintenance was or was not negligence. There can be no law that says in what manner a stone in a walk shall be supported further than to say it must be reasonably safe. Complaint is also made of the refusal of other instructions offered by appellant, but in so far as they were material they were fully covered by given instructions. The principles of law controlling this case are elementary. The jury were fully and fairly instructed thereon.

We find no error in the record, therefore the judgment is affirmed.

Affirmed.