author: Mr. Justice Fitch

text:
    Howard H. Wanzer, Administrator, Appellee, v. City of Chicago, Appellant.
    Gen. No. 17,953.
    1. Stbeets AND alleys — habit of negligent driving. Plaintiffs intestate was driving a milk wagon on a dark night and one of the right wheels dropped into a hole over ten inches deep and several feet in diameter, which had been dug by workmen of a paving contractor and left without barricades or lights, and the left wheels passed up on a pile of old macadam pavement, causing the tipping of the wagon and the death of the driver. There were no eyewitnesses to the occurrence, and one of plaintiff’s witnesses testified that he had seen deceased at other times, in going around the corner, standing on the wagon steps and getting his stuff ready for delivery to the next building. There was no evidence that at the time of the accident deceased was in fact riding on the steps or permitting his horse to take his own course, hut several witnesses testified that he was a man of careful habits. Held, that the theory of the defendant City that deceased was riding on the steps is only an inference and, as it is the peculiar province of the jury to draw inferences and conclusions from facts shown, a finding by the jury to the contrary is not clearly and manifestly wrong.
    2. Instructions — hosed on inference — assuming unsupported facts. An instruction based upon an inference regarding a habit of plaintiffs intestate as to riding on the steps of a milk wagon, while proper enough if confined to the evidence and legitimate and proper inferences therefrom, if it contains assumptions of fact unsupported by any evidence, or that such conduct imputed to deceased was in fact the proximate cause of an accident, it invades the province of, and tends to confuse and mislead, the jury.
    3. Damages — death by wrongful act. Where plaintiffs intestate was twenty-three years of age, in good health, married, and by trade a shipbuilder, earning $30 a week when working at his trade, he haying at the time of his death been working temporarily as driver of a milk delivery wagon for $17.50 a week, a verdict for $8,000 damages, though seemingly large, will not he disturbed as excessive.
    Appeal from the Superior Court of Cook county; the Hon. William: K Deveb, Judge, presiding. Heard in the Branch Appellate
    Court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1913.
    Rehearing denied March 27, 1913.
    William H. Sextor and N. L. Piotrowski, for appellant; David R. Levy, of eonnsel.
    Lamborh & GuerNSey and Oreb T. Crissey, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

On August 4, 1906, about 3:30 a. m., residents near the corner of Greenwood avenue and Sixty-second street, in Chicago, were aroused by hearing a crash in the street like the sound of breaking crockery or glassware. Proceeding in the darkness to the place from which the sound came, they came upon an overturned milk wagon, under which, pinned to the ground by the wagon body, was a man lying on his face, with outstretched arms. Raising the top of the wagon, the bystanders drew him out on the grass next to the sidewalk, where it was found that he was dead. He proved to be Edgar A. Ford, the driver of the milk wagon. There was a hole in the street, near the wagon wheels, ten or twelve inches deep and several feet in diameter, from which the dirt and stones of the old macadam pavement had been thrown in a pile to one side, and the wheel tracks indicated that the wagon had just come around the corner and that one of the right wheels had dropped into the hole, while the left wheels were on the pile of dirt and stones, causing the wagon to tip over to the right. It was shown that Sixty-second street was being repaved; that the work of repaving bad progressed from the west towards the east up to Greenwood avenue; that on the afternoon preceding the accident, a hole had been dug in the street by some of the paving contractors’ workmen, preparatory to inserting a plow for the purpose of tearing up that part of the old pavement east of Greenwood avenue, and that they left it in that condition without any barricade or lights. Upon these facts a verdict was returned finding the City of Chicago guilty of negligently causing the death of Ford and assessing appellee’s damages at $8,000, and a judgment was entered on the verdict, from which the City appeals.

It is first urged that the deceased was guilty of contributory negligence. One of the plaintiff’s witnesses testified that deceased had customers on Greenwood avenue, two or three doors south of Sixty-second street, and others on Sixty-second street east of Greenwood avenue, and that in going around the corner from one to the other, the witness had seen him at other times “stand on the steps and get his stuff ready for the building just around the corner.” Appellant’s counsel insists that it must be conclusively presumed from this one statement that at the time of the accident the deceased was standing oh the right hand steps of his wagon in going around the corner and allowing his horse to take its own course; and they then deduce the theory or conclusion that when the right wheel dropped into the hole in the street, the weight of the deceased upon the steps overturned the wagon and crushed him beneath it. There were no eyewitnesses to the occurrence, and several witnesses testified that the deceased was a man of careful habits. There is no evidence that at the time of the accident the deceased was permitting his horse to take its own course, or that he was in fact riding on the steps at that time. When picked up, he was lying on his face with the wagon on his back, and the evidence tends to show that the horse stopped at once when the wagon was overturned and did not drag it along. Under these circumstances, we cannot give to the single statement that the deceased rode on the steps at other times the conclusive effect contended for by appellant’s counsel. Appellant’s theory in this respect is a mere inference, and we think the inference that the deceased jumped, or was thrown, from the wagon, when the wheel dropped into the hole in the street, is quite as strong as the inference drawn by counsel. It was the peculiar province of the jury to draw inferences and conclusions from the facts shown, and we cannot say that their finding in this respect was clearly and manifestly wrong.

It is next urged that the court erred in refusing an instruction offered by appellant. This instruction was based upon the same inference which counsel now seek to draw from the evidence regarding the habit of deceased as to standing upon the steps of the milk wagon. "While such an instruction would be proper enough, if it were confined to the evidence and the legitimate and proper inferences therefrom, the instruction in question contains several assumptions of fact which are unsupported by any evidence, and which would have a tendency to mislead the jury. Taken as a whole, the instruction also assumes that the conduct imputed to the deceased was, in fact, the proximate cause of the accident, and if given would have invaded the province of the jury in that respect. By other instructions the jury were fully advised as to the essential principles of the law applicable to the facts of the case. In our opinion they would only have been confused by giving the instruction in question, and we think there was no error in refusing to give it.

It is also claimed that the verdict is excessive. It was shown that the deceased was twenty-three years old, married and a shipbuilder by trade. He was in good health and when working at his trade he earned as much as $30 a week. The position he held at the time of Ms death was a temporary one, in which, he was earning $17.50 a week. In view of his age, Ms proved condition of health, and his earning capacity, we are not disposed to disturb the verdict, though it may seem to he large.

Finding no reversible error in the’record, the judgment of "the Superior Court will he af&rmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Anna Schumann, Administratix, Appellee, v. Frank H. Mealiff and William E. Mealiff, Appellants.
    Gen. No. 17,967.
    1. MasteR and SERVANT — duty of employer to inspect machinery. Where machinery is likely to get out of order or become unfit for use from wear or decay, a duty to inspect at reasonable intervals rests upon the employer and not upon the employe.
    2. Master and servant — where employe has a right to assume machinery is safe. Where employe has no notice to the contrary, he has a right to assume that his employer has furnished safe machinery, and he is under no primary obligation to investigate and test its fitness and safety.
    3. Master and servant — master cannot delegate duty to inspect so as to relieve himself from responsibility. The master’s duty of exercising reasonable care to provide his servant with reasonably safe machinery and appliances, and his duty to make reasonable and proper inspection from time to time, are positive, primary and personal duties which cannot be delegated so as to relieve him from responsibility for their due performance.
    4. Master and servant — employe does not assume rish by failing ' to test boiler. Where defendant directed plaintiff’s intestate to start to work as engineer without telling him to test the boiler, and there was an official inspection certificate upon the wall, there was an assurance that it was safe to begin work without testing the boiler, and intestate did not assume risk of injury by failing to test for defects when none were apparent.'
    5. Evidence — where conversation is admissible to show hnowl-edge of defective condition of boiler. In an action for death of plaintiff’s intestate, it is proper to permit a witness to relate a conversation with defendants foreman tending to show his knowledge of defective condition of the boiler, and it is immaterial whether conversation occurred before or after the foreman entered defendant’s employ.
    Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1913.
    Fraítk M. Cos and E. J. FelliNgham, for appellants.
    Bowles & Bowles, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

In March, 1908, plaintiff’s intestate, a licensed engineer, employed by appellants, met his death in consequence of the explosion of a boiler which he was operating. Appellants were in the business of conducting grain elevators at Kensington, in Chicago, known as elevators A and B. The power which operated the machinery in elevator A was supplied by two boilers and an engine, located in a building adjoining the elevator. These boilers were of the tubular horizontal type, consisting of a cylindrical steel shell, fifteen feet in length and four feet in diameter, encased in a covering of brick and containing a number of tubes. The space between the top of the tubes and the roof of the shell was 19 inches. There was an oval manhole, 11 by 16 inches in size, at the top of each boiler. Two weeks before the accident, the plaintiff’s intestate was employed to operate these boilers and engine. A year or two before that time, he had worked there as a fireman, and when he was again employed by appellants, he was asked if he was a licensed engineer and if he understood the work. Upon receiving an affirmative reply, he was told that appellants desired to start the elevator on the following Monday (this conversation being on Saturday), to which Schumann replied “All right.” On the following Monday, Schumann started the boilers and engine. Hanging on the wall in the engine room at the time he began work was a certificate stating that the boilers had been inspected by the city boiler inspectors in August, 1907, at which time, according to the certificate, a “hammer test” had been made, and the safety valve loaded to allow 75 pounds pressure, and that “said boilers are in a safe condition to be used under the working pressure stated in this certificate for the purposes set forth, without danger to life or property from any imperfections in the same.” The engine was operated continuously at 65 to 75 pounds pressure during the succeeding two weeks. There is some evidence to the effect that on Sunday, two weeks after he began work, Schumann washed and cleaned out the boilers. The next day, Monday, about three o’clock in the afternoon, the explosion occurred. The building in which the boiler was located was wrecked, and the boiler itself was hurled entirely out of the building. An examination of the shell at that time disclosed a rent in the upper part of the shell five or six feet long. Several pieces taken from the edges of this opening were identified and introduced in evidence. ' The thickness of the shell was originally five-sixteenths of an inch. Some of the pieces offered in evidence were less than one-eighth of an inch in thickness, tapering to 1/32 of an inch at the edges, and all were pitted and eaten with rust. It was also shown that the boiler was over twenty years old; that at the date of the last official inspection in August, 1907, the city boiler inspector had notified appellants that on account of the age of the boiler it could not be safely operated with more than 75 pounds of pressure. There was also some testimony to the effect that appellant’s foreman had been told several years prior to the accident that the boilers were weak and defective, and that one engineer had quit work there on that account. The negligence charged in the declaration is the failure on the part of the appellants to use reasonable care to provide a reasonably safe boiler and to inspect tbe same. It was alleged that tbe condition of tbe boiler in question conld have been ascertained by appellants by a reasonably careful inspection, and therefore appellants were chargeable with knowledge of its defective condition; that tbe deceased bad no such knowledge, and bad not equal means of knowledge with appellants. There were two trials, tbe first resulting in a disagreement and tbe second in a verdict for $10,000, from which tbe employers appeal.

While many legal propositions are submitted and discussed in tbe briefs of appellant’s counsel, tbe main question raised is whether tbe duty of inspection devolved upon tbe deceased or upon bis employers, under tbe facts of this case. Appellants’ counsel take tbe position “that there is no specific duty of inspection per se imposed upon either tbe employer or employe,” but that “tbe duty to inspect arises as an incident of tbe duty to exercise ordinary care, and may devolve upon either tbe employer or employe, depending upon tbe facts of tbe particular case.” It is further contended that under tbe facts of this case, tbe duty of inspection and of making such tests as would bave disclosed tbe weakness of the boiler, was a necessary part of tbe engineer’s work, that be assumed tbe risk of injury therefrom by bis contract of employment, and that be was guilty of contributory negligence in failing to make such tests.

In Armour v. Brazeau, 191 Ill. 117, in discussing an instruction concerning tbe question of inspection, tbe court said (p. 125):—

“There is a duty of tbe employer arising out of tbe liability of machinery or appliances to get out of order from time to time or to become unfit for use from wear or from age or decay, and this is tbe duty of inspection as meant by tbe law. While there is no absolute duty to keep appliances in safe condition, there is a duty to use reasonable care to keep them fit, and this duty may require inspection at reasonable intervals and the employment of such tests as will reveal the condition of the machinery or appliances. This duty of inspection rests upon the employer and not upon the employe, and depends upon the character of the machine or appliance, since ordinary care may require an inspection oftener in one case than in another.” (Italics ours.)

Part or all of the same language was quoted with approval in the following cases: Missouri Malleable Iron Co. v. Dillon, 206 Ill. 145, 153; Allan B. Wrisley Co. v. Burke, 203 Ill. 250, 257, and Chicago & E. I. R. Co. v. Snedaker, 223 Ill. 395, 405. In Chicago & E. I. R. Co. v. Hines, 132 Ill. 161, it is said (p. 169):

“The burden of furnishing safe machinery, appliances, surroundings, etc., is upon the master, and while the master is not to be held liable for defects and dangers of which the servant is fully informed, yet the servant is authorised to rely upon the acts of the master in that respect, and is under no primary obligation to investigate anvd test the fitness and safety of the machinery, surroundings, etc., m the absence of notice that there is something wrong in that respect.” (Italics ours.)

In other cases, it is held that the master’s duty of exercising reasonable care to provide his servant with reasonably safe machinery and appliances, and his duty to make reasonable and proper inspection, from time to time, of such machinery and appliances, are positive, “primary and personal” duties, which cannot be delegated so as to relieve him from responsibility for their due performance. Schillinger Bros. Co. v. Smith, 225 Ill. 74; Chicago Union Traction Co. v. Sawusch, 218 Ill. 130, 134; affirming 119 Ill. App. 349, 352; Chicago & E. I. R. Co. v. Kneirim, 152 Ill. 458; Chicago & A. R. Co. v. Maroney, 170 Ill. 520; Baier v. Selke, 211 Ill. 512.

It is insisted, however, that the present ease is an exception to the rule established by the foregoing authorities. It is urged that because the deceased was given full charge of the boiler, his means of knowledge of the defective condition and his opportunities to learn of that condition were equal to those of the appellants’, and for that reason, under the rule announced in Goldie v. Werner, 151 Ill. 551, and followed in many later cases, no recovery can he had by the representatives of the deceased engineer. In a certain very limited sense, it may be true that the deceased had opportunities, by working overtime or on Sundays, equal to those of the appellants, to learn of the defective condition of the boiler; and if there had been anything in the appearance of the boiler to warn him, or lead him to suspect weakness or defects, it may be that a failure on his part to make such tests as would have disclosed the defective condition, would amount to such a want of due care under such circumstances, or such an assumption of the risk, as would defeat a recovery. But there was no such warning. There was nothing in the apparent condition of the boiler to excite his suspicion. It was clearly shown by the evidence that the defects in the boiler were not discernible by careful observation or ordinary visual inspection, and that the only way they could have been discovered was by opening the manhole, crawling inside of the shell and tapping it from the inside with a hammer while lying upon the tubes. There were approximately 189 square feet of inner surface to be thus tapped in order to make such a test a complete one. It is obvious that to do this would require the plant to be shut down and would take considerable time. When the deceased was employed, no hint was given him that anything of this sort was expected of him, and he had no reason to doubt that the boiler was exactly what the official inspector’s certificate, then hanging before his eyes, stated it to be, viz: “In a safe condition to be used without danger to life or property from any imperfections in the same.” Appellants caused that certificate to be issued and placed there. Under the law it was their duty to have such an inspection made. They knew the age of the boiler, the extent to which it had been used, and the care that had previously been given to its operation. Schumann did not know these things, and he had the right to assume, in the absence of notice to the contrary, that appellants had used reasonable care to furnish him with machinery that was reasonably safe for his use. Appellants did not tell him to test the boiler. They told him to “start it up on Monday.” This, together with the official certificate, amounted to an assurance that it was safe to “start it up on Monday” without any test. In Kewanee Boiler Co. v. Erickson, 181 Ill. 549, a boiler maker was sent to make certain repairs on one of a battery of boilers. The foreman of the plant told him that “everything would be ready for him at seven o’clock Sunday morning” to make the repairs. When he arrived, at the appointed time, the boiler was cold, and without further inquiry, he went to work. While thus engaged, a sudden rush of steam came into the boiler and he was injured. To the contention that he assumed the risk because, by the exercise of reasonable care, he might have learned that the steam was not shut off in the other boilers of the battery, the court said (p. 553): “No reason appears why he should have looked for or examined to see if there was danger. * * # He had a right to rely on the assurance * * * that everything would be ready for him at seven o’clock Sunday morning, — the time he was directed to go to work.” The same may be said in this case, viz: that no reason appears why Schumann should have crawled inside the boiler to make a hammer test either before he began his work, or during the two weeks the boiler was in use before it exploded. He had a right to rely on appellants’ direction to start up on Monday morning and the official inspection certificate upon the wall, as at least an implied assurance of safety, in the absence of any notice, warning or hint to the contrary, as well as on the assumption, arising from the legal duty of appellants, that due care had been exercised by them to furnish him a safe boiler. We do not think it can be held as a matter of law, nor found, as a conclusion of fact, under the evidence in this case, that Schumann assumed the risk of injury by failing to test the boiler for defects, when hone was apparent. Nor do we think the jury’s finding that he was not guilty of contributory negligence is contrary to the evidence.

It is also urged that the court erred in permitting a witness to relate a conversation with appellants’ foreman tending to show his knowledge of the defective condition of the boiler. The witness fixed the time at about a year before the accident, and while the foreman denied that he ever had such a conversation with the witness, it was a question of credibility of witnesses whom the jury saw and heard. If true, the conversation was proper, in our opinion, whether it occurred before or after the foreman entered appellants’ employ; for if the foreman knew the condition of the boiler when he was employed by appellants, it was as much his duty then to inform appellants of that fact as if the knowledge first came to him during his employment.

As to the letter from the city inspector, it was shown that appellants received it and acted upon it. "We think there was no error in admitting a copy on proof of the loss of the original.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice

text:
    Frank Dale, A. G. C. Bierer and Benjamin F. Hegler, Trading as Dale, Bierer & Hegler, Appellees, v. J. S. Keefe, Appellant.
    Gen. No. 17,912.
    1. PRocESS-^cwiawee — where partnership name is used without individual names. Where plaintiffs are described in the statement of claim by their full names, doing business as a certain named partnership, and in the summons by the partnership name only, there is not a material variance.
    2. Peocess — when variance ground for reversal. The fact that plaintiff’s Christian name in the summons is wrong, when it is once rightly alleged in any of the pleadings, does not authorize the reversal of a judgment by default.
    3. Default — where defendant is properly defaulted. Where plaintiffs are described in the statement of claim by their individual names, doing business under a certain partnership name, and in the summons only the partnership name is used, and after a motion to quash the summons is denied defendant refuses to appear instanter as ordered, it is not error to enter judgment by default.
    Appeal from the Municipal Court of Chicago; the Hon. Edwabd A. Dickeb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1913.
    Ernest O. Best, for appellant.
    George D. "WelliNgtoN and Dillard B. Baker, for appellees.
   Mr. Presiding Justice

Gridlev delivered the opinion of the court.

On April 24, 1911, in the Municipal Court of Chicago, an action of the first class was commenced by praecipe by “Frank Dale, A. G. C. Bierer and Benj. F. Hegler, doing business as Dale, Bierer & Hegler, plaintiffs, against J. S. Keefe, defendant.” On the same day plaintiffs filed, in lieu of a declaration, a statement of claim setting forth that their claim was for money dne on two promissory notes, executed by defendant on September 4, 1909, for $2,500 eacb, due respectively on January 1, 1910, and March 1, 1910, with interest at 8% per annum after maturity. It appeared from copies of the two notes, set out in said statement, that each was signed by £< J. S. Keefe” and each was payable to “Dale & Bierer, or order,” and that each was endorsed as follows:

“Pay within to the order of Dale, Bierer & Hegler, a partnership composed of Frank Dale, A. Gr. C. Bierer, Benj. F. Hegler.
Dale & Bierer.”

Accompanying this statement was an affidavit of claim, stating that plaintiffs’ demand was for principal and interest on said two notes and that there was due plaintiffs from defendant, after allowing all just credits, deductions and set-offs, the sum of $5,483.31. In this statement plaintiffs were described, the same as in the praecipe, as “Frank Dale, A. C-. C. Bierer and Benj. F. Hegler, doing business as Dale, Bierer & Hegler.” A writ of summons was issued, directed to the bailiff, commanding him to summon the defendant to appear on May 8, 1911, to answer unto “Dale, Bierer & Hegler a partnership.” The plaintiffs were not designated in the summons by their Christian names. It appears from the return on the summons that the bailiff served the defendant with a copy of the writ and informed him of the contents thereof on May 1,1911. On the return day the defendant filed his special appearance “for the sole and only purpose of this motion, and, without submitting himself to the jurisdiction of this court, moves the court to quash the above return of the writ and to quash the above writ of summons and to dismiss the suit for the reason that said writ * * * does not conform to the statement and affidavit of claim, in that the parties plaintiff in said writ and in said affidavit and statement of claim are different, and not the same parties.” It appears from the transcript of the record that on May 19, 1911, the parties came and the defendant moved that the service of the summons on him he quashed, which motion was overruled by the court; that on plaintiffs ’ motion the defendant was ruled to appear instanter; that thereupon he was called in open court and came not, nor did any one for him, but made default; that thereupon the court, it appearing that the defendant had been duly notified by being personally served with process and of the time he was required to appear and that he was still in default of an appearance, ordered that judgment be entered against him by default for want of an appearance; that thereupon the court found that plaintiffs had filed an affidavit showing the nature of plaintiffs’ demand and the amount due from the defendant, and further found that there was due to plaintiffs the sum of money shown in said affidavit to be due, and assessed plaintiffs’ damages at the sum of $5,483.31; that thereupon the defendant moved the court for a new trial, which motion, after the arguments of counsel, was overruled and judgment was entered against the defendant on the finding. The defendant thereupon prayed and perfected an appeal to this court.

It is to be noticed that the record shows that on said May 19th the “parties' came,” and that after the defendant was ruled to appear instanter and was defaulted for failure so to do and the court made its finding in favor of plaintiffs, the defendant moved for a new trial. This suggests that either the defendant, or his attorney, or both, were actually in court when the defendant was called upon to enter an appearance, and that the defendant refused so to do, evidently preferring to rely upon the technical point of the alleged variance between the writ of summons and the praecipe and statement of claim in the description of the parties plaintiff, rather than offer any defense on the merits. The inference is strong that he had no defense on the merits.

Counsel for defendant here urges that the judgment should be reversed because the variance is a material one. We do not think so. The defendant was not misled thereby. Williams v. Connors, 149 Ill. App. 29, 32; Wilday v. Wight, 71 Ill. 374; Great Northern Hotel Co. v. Farrand & V. Organ Co., 90 Ill. App. 419; Vanmeter v. MeHard, 31 Ill. 257; Rivard v. Gardner, 39 Ill. 125. Counsel argues that the reason for the rule requiring correctness in the names of the parties is that otherwise there would be great difficulty in establishing a plea of former recovery, and that, under the authority of Schmidt v. Thomas, 33 HI. App. 109, where the defendant does not appear, though there be personal service, if the name of the party in the process be such that the law does not recognize it as the name of an individual or corporation, a judgment by default is erroneous. In that case it was claimed that there was a faulty description of one of the defendants in the summons and the judgment. The summons named “Mathias Schmidt and Mrs. Schmidt” as defendants and a judgment by default was rendered against them as named in the summons, while the declaration named them as “Mathias Schmidt and Mrs. Harriet Schmidt.” In this case the defendant was properly named in praecipe, summons and statement of claim and he was served, and judgment rendered against him, and we are not inclined to apply the ruling in the Schmidt case, supra, to this case. We are, on the contrary, inclined to follow the rule, as announced in the case of Sidway v. Marshall, 83 Ill. 438, where it was decided that, by virtue of section 6 of chapter 7 of our statutes (amendments and jeofails), the fact that the plaintiff’s Christian name in the summons is wrong, when it is “ once rightly alleged in any of the pleadings,” will not authorize the reversal of a judgment by default. Furthermore, the reason for the rule requiring correctness in the names of the parties in the process, as above stated by counselt is absent in this case. If a subsequent suit were brought against • the defendant, we think he would have no difficulty in establishing from the record in this suit a plea of former recovery because it appears from the statement of claim that “Dale, Bierer and Hegler, a partnership,” as named in the summons, is “a partnership composed of Frank Dale, A. G. C. Bierer, Benj. F. Hegler,” who were named in the praecipe and the statement of claim as plaintiffs.

The judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Gridley

text:
    F. H. Speich, Trading as F. H. Speich & Company, Appellant, v. Atchison, Topeka & Santa Fe Railway Company, Appellee.
    Gen. No. 17,928.
    1. LIMITATIONS — what constitutes contract in writing. An action against a carrier based on failure to furnish cars after written demand received and retained without objection is, under the Statute of Limitations of California, barred in two years and cannot be maintained at any time within four years as an action upon “contract, obligation or liability, founded upon an instrument in writing.”
    2. Limitations — questions of law. The question of whether the furnishing of cars by a carrier after a written demand amounted to acceptance thereof, taking a cause of action for failure to furnish further cars out of the operation of the two-year clause of the California Statute of Limitations as being founded on an instrument in writing is one of law and need not be submitted to the jury.
    3. Appeals and ERRORS — when plaintiff cannot complain of dismissal. Plaintiff cannot complain that his action should not have been dismissed but that verdict should have been directed for defendant, where the dismissal was more favorable to him than a directed verdict.
    4. Appeals and errors — additional abstract. Motion to strike an additional abstract filed by appellee may be denied though portions thereof are unnecessary, where important parts of the record are referred to therein which are not sufficiently abstracted in the original abstract.
    Appeal from the Municipal Court of Chicago; the Hon. Hejtky C. Beetles, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1913.
    Charles A. Butler, for appellant.
    Robert Dunlap, Lee F. English and James L. Coleman, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On April 20, 1910, appellant, hereinafter called plaintiff, commenced an action of the first class in the Municipal Court of Chicago against appellee, hereinafter called defendant, to recover damages in the sum of $8,932.60, claimed to have been sustained by plaintiff in April and May, 1907, on account of the breach by defendant of an alleged written contract, dated April 17, 1907, in failing to furnish plaintiff certain refrigerator cars at Corona, Riverside county, California. Among other defenses, the defendant contended that the action was barred by lapse of time. At the conclusion of all the evidence, which was heard by a jury, the court, on motion of the defendant, dismissed the suit for the reason that it appeared that the cause of action, if any, arose in the state of California more than two years before the commencement of the action and was barred by the statute of limitations of that state, and, hence, under section 20 of our Limitations Act, the action could not be maintained in this state. Judgment was entered against the plaintiff for costs and plaintiff appealed to this court.

It is provided by the California statute of limitations that “an action upon any contract, obligation or liability, founded upon an instrument in writing” shall be commenced within four years, and that “an action upon a contract, obligation or liability, not founded upon an instrument of writing,” shall be commenced within two years. It appeared that plaintiff had resided in Riverside county, California, continuously from several years prior to April, 1907, until after the commencement of this suit, and that for six years prior to April, 1907, he was there engaged in the business of packing and shipping oranges and lemons. It further appeared that defendant was a Kansas corporation, doing business in California, had complied with the requirements of the California Code as to the appointment of agents in that state upon whom service of process might be had, and that at all times between January, 1907, and the date of the commencement of this suit, had business agents in said Riverside county.

On April 17, 1907, the plaintiff wrote the following letter to the general freight agent of defendant at Los Angeles, and mailed copies of the same to two local agents of defendant, which were, received by the respective addressees in due course of mail:

“April 17 th, 1907.
Mr. W. Gr. BarNwell,
General Freight Agent, A. T. & S. F. Ry.,
Los Angeles, Calif.
Dear Sir:—

Enclosed herewith please find the estimates of Mr. S. A. Crawford and Mr. H. A. Prizer, of the Oranges and Lemons (mostly Navel Oranges) owned and controlled by us at Corona, which it is very essential for us to pick and ship without any further delay. "We contracted to take this fruit off the trees at a specified time, which has very nearly expired, and our failure to comply with the terms of contracts is liable to cause us loss and trouble.

This, therefore, is our demand on the A. T. & S. F. Ry. to place for us at the Corona Packing Company’s packing house at Corona (which is our usual loading place) five refrigerator cars every two days for the next twenty-five days, to be loaded with Oranges and Lemons for shipments to points on their line, and in the event of their failure to furnish ns with the above specified and required number of cars, we shall hold the A. T. & S. F. Ry. liable for all loss and damage by droppage, decay, market conditions or any other cause, occasioned by our inability to ship the fruit owing to your failure to furnish cars.

We are, and have been able to make deliveries of this fruit to your Company, and have previously made demands upon you for cars. However, from the attached affidavits of two disinterested and thoroughly reliable persons, you will note that the fruit is beginning to deteriorate, and that it is absolutely necessary to move same within the specified time.

Very truly yours,
F. H. Speich & Co.,
By
CC to W. R. Dowler W. L. Brown.”

The facts leading up to the writing of the above letter, as disclosed from the evidence, are substantially as follows: In the spring of 1907, the defendant was handling an unusually large volume of freight over its lines. Much building and other material was being carried for reconstruction purposes to San Francisco because of the earthquake in that city in 1906. This, combined with other unexpected causes, brought about a condition of freight congestion and a shortage of refrigerator cars in southern California for the loading of fruit during the spring of 1907. It was the practice of defendant, through its agents in southern California, each year, in advance of the citrus fruit shipping season, to make an estimate of the number of carloads of fruit which would probably be offered for shipment, so that the necessary equipment might be supplied for the handling of the crop. These estimates were made by the general freight agent of defendant from inspection of the orchards and from information received from shippers, growers and agents. The shipping season was from November 1st to October 31st of the following year. The estimate made for the season of 1906-7 was 27,000 cars and the actual shipments were 27,493 carloads of citrus fruits carried by all lines, of which defendant carried more than one-half. The defendant had arranged to supply a sufficient number of cars for the season of 1906-7 to satisfy the ordinary demand of shippers when that demand was distributed in' the ordinary manner. The car shortage was called to the attention of plaintiff and other shippers of citrus fruits by defendant’s agents early in the year 1907, and plaintiff and other shippers were notified that orders for cars could not be filled on demand and that defendant could not furnish all cars ordered. There was evidence tending to show that during the month of February plaintiff ordered at Corona either one or two cars a day and received during that month 21 cars; that during March he ordered a total of 37 cars and received 19 cars; that during April he ordered 32 ears and received 27 cars; that during May he ordered 36 cars and received 24 cars; and that after plaintiff wrote said letter of April 17th, he made orders for cars during April and during May. The demand or order for cars as made in said letter of April 17th by plaintiff was not accepted, orally or in writing, by defendant. The letter, demand or order, or notice to hold defendant liable in damages for failure to furnish the cars mentioned therein, whatever it may be called, was seemingly ignored by defendant.

It is contended by counsel for defendant that there is no duty resting upon a common carrier to furnish upon demand all the cars which any shipper may name, without regard to the circumstances and the rights of other shippers, that a common earner is only required to furnish reasonable and ordinary facilities for the transportation of freight and such as will meet the ordinary demands of business, and that a railroad company is not bound to provide in advance for or anticipate extraordinary occasions-of an unusual influx of freight to the road. Galena & C. U. R. Co. v. Rae, 18 Ill. 488; Wilbert v. New York, etc., R. Co., 12 N. Y. 245. Counsel for plaintiff admits this, hut contends that damages resulting from the breach hy a railroad company of an express written contract to furnish cars at a specified time are recoverable in an action on the contract. Counsel for plaintiff further contends that, in this case, the mailing of the letter of plaintiff of April 17th and its receipt hy the defendant without expressly disagreeing to or repudiating^ the same, accompanied hy certain acts of the defendant as shown by this record, constituted a written contract hy which the defendant hound itself to furnish the cars as demanded in said letter. Counsel for plaintiff also admits that, if an action could not have been maintained in the state of California on April 20, 1910, because of the statute of limitations of that state and by reason of the lapse of time, the present action cannot be maintained in this state. The question, therefore, is whether or not the present action, as disclosed from this very voluminous record, could have been maintained on April 20, 1910, in California.

After a careful examination of the record and the briefs and arguments of counsel, and after examining the several decisions of the Supreme Court of California, construing the statute of limitations of that state, which were introduced in evidence on the trial, we have reached the conclusion that the court was right, under the facts of this Case, in holding that the present action could not be maintained. In other words, we are of the opinion that the present action is not, in the meaning of the California statute, an action upon a contract, obligation or liability, founded upon an instrument in writing. Chipman v. Morrill, 20 Cal. 131; Piller v. Southern Pac. R. Co., 52 Cal. 42; Wood v. Currey, 57 Cal. 208; Lattin v. Gillette, 95 Cal. 317; McCarthy v. Mt. Tecarte Land & Water Co., 111 Cal. 328; Thomas v. Pacific Beach Co., 115 Cal. 136; Patterson v. Doe, 130 Cal. 333; Scrivner v. Woodward, 139 Cal. 314. See also, Knight v. St. Louis, I. M. & S. Ry. Co., 141 Ill. 110, 115, Wood v. Williams, 142 Ill. 269, 275-277; Conductors’ Mut. Aid & Benefit Ass’n v. Loomis, 142 El. 560, 567; Kingman v. Davis, 63 Neb. 578. Counsel for plaintiff cites the cases of Memory v. Niepert, 131 El. 623, and Northman v. Deters, 206 Ill. 159, but we think that the facts in those cases are plainly distinguishable from the facts of the present case. “Statutes of limitation are statutes of repose. * * * They are designed to afford security from stale demands, when, from lapse of time, death of witnesses, failure of memory, loss of vouchers, and other causes, the true state of the transactions may be incapable of explanation and the rights of the parties cannot be satisfactorily investigated.” Davis v. Munie, 235 Ill. 620.

Counsel for plaintiff urges that the court erred in not submitting to the jury the question as to whether the furnishing of cars by defendant to plaintiff after the receipt by defendant of said letter of April 17th amounted to an acceptance by defendant of the demand for cars contained therein, and argues that, if the jury so found, such acceptance, under the Memory case, supra, would take the case out of the California statute of limitations. We cannot agree with counsel. We think that under the facts of this case, and under the California statute as construed by the Supreme Court of that state, under section 20 of the Limitation Act of this state, it was a question of law for the court whether the action could be maintained. 25 Cyc. 1437. Counsel also urges that, even though this question was one of ,law, the court erred in dismissing the suit, and that proper practice required the court to instruct the jury to bring in a verdict for the defendant. Plaintiff was not injured by the court adopting the former rather than the latter course. The action taken was more favorable to plaintiff than would have been a directed verdict, and plaintiff cannot complain. Amos v. Sinnott, 5 Ill. (4 Scam.) 440, 448; section 22, Municipal Court Act.

After ibis appeal had been perfected in this court, counsel for defendant here filed a written motion that the suit be dismissed, contending that the action, as shown from the evidence, was in fact one in tort for more than $1,000, rather than on a contract, express or implied, and that, therefore, the Municipal Court, under section 2 of the Municipal Court Act, had no jurisdiction. The decision on this motion was reserved! to the hearing, but in view of the foregoing, it is unnecessary for us to pass upon the motion.

After appellant had filed a printed abstract of the record in this court, appellee filed an additional printed abstract of many pages. Counsel for appellant in his printed brief and argument in reply to the brief and argument of counsel for appellee, referred to certain pages of said additional abstract. Subsequently, appellant filed a written motion to strike the additional abstract from the files. While, in our opinion, certain portions of the additional abstract were unnecessary for a full understanding of the questions presented for decision, important parts of the record were therein referred to which had not been sufficiently abstracted in the original abstract. The motion to strike will be denied.

For the reasons indicated the judgment of the Municipal Court will be affirmed.

Affirmed. ,


author: Me. Presiding Justice Gridley

text:
    Frank J. Grutza, Trustee, Appellee, v. Original Quartz Hill Gold Mining Company, Appellant.
    Gen. No. 17,946.
    1. Costs — bond by nonresident. In an action by a nonresident, where defendant first calls attention to plaintiff’s failure to file a bond for costs after plaintiff has concluded his opening statement, refusal to dismiss or continue the action if plaintiff agrees to file such bond prior to the close of the case, is not error.
    2. Municipal court — amendment of affidavit of claim. Under the Municipal Court Act, §§ 46, 22, it is not error to allow the original affidavit of claim to be stricken and an amended affidavit filed instanter after plaintiff has made his opening statement, where the amended statement is substantially the same as the original except as to the amount sworn to be due.
    3. Municipal court — stipulation of facts. Motion to strike a stipulation of facts which was entered into before the statement of claim was amended is properly denied where the amended statement is in substance the same as the original except as to the amount claimed.
    4. Municipal court — sufficiency of amended statement of claim. An objection to the sufficiency of an amended statement of claim is not well founded where, except as to the amount claimed, it is substantially the same as the original statement to which defendant filed an affidavit of merits, and where it sufficiently advises defendant as to the case he is called upon to defend.
    Appeal from the Municipal Court of Chicago; the Hon. Henry C. Ward, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1913.
    George Remus, for appellant.
    Carl Strover, for appellee.
   Me. Presiding Justice Gridley

delivered the opinion of the court.

This is an appeal from a judgment of the Municipal Court of Chicago, rendered February 28, 1911, in favor of the plaintiff below, for the sum of $3,244.72. Plaintiff’s evidence was heard before the court without a jury, at the conclusion of which the defendant elected not to introduce any evidence. Plaintiff’s claim was “for dividends declared on 621 shares of defendant’s capital stock and unlawfully withheld by defendant from plaintiff, the lawful holder of said stock, together with legal interest thereon.”

The action was one of the first-class and was commenced on August 20, 1910. The affidavit, accompanying plaintiff’s original statement of claim, was signed by plaintiff and sworn to before a notary public of Milwaukee county, Wisconsin, and set forth that there was due from the defendant the sum of $2,838. Although plaintiff was a non-resident of this state, he did not file a bond for costs at the time of beginning suit. On August 29th, the defendant entered its appearance and by its treasurer filed an affidavit of merits, setting forth that the nature of its defense was that “plaintiff is not the lawful holder and owner of the stock * * * and is not entitled to the dividends on said stock.” On November 11th, on motion of plaintiff, this affidavit was ordered stricken from the files and leave was given defendant to file an amended affidavit. On November 16th, the defendant by its attorney filed an amended affidavit stating that ‘ ‘ one Albert G-rutza is and has been for five years the owner of a one-half interest in the 621 shares of stock, * * * and there is due and owing to him the dividends on said stock for the past five years, and that the amount of said dividends * * * amounts to more than the sum of $2,838. * * * The basis on which said claim to one-half ownership in said stock is founded is a partnership interest in same.” It is to be noticed that in this affidavit of merits the capacity in which the plaintiff sued, namely, as trustee of the estate of William J. Grutza, deceased, is not challenged. The case was called for trial on February 28, 1911 — both parties appearing. After plaintiff’s attorney had concluded his opening statement, defendant for the first time called the court’s attention to the fact that plaintiff was a non-resident of the state and had not filed a bond for costs and moved that the suit be dismissed for that reason, or at least that the case be continued. The court ruled that if plaintiff would file a cost bond prior to the close of the case he would neither dismiss the suit nor grant a continuance. This plaintiff agreed to do and filed a cost bond the same day, prior to the conclusion of the case. The court did not err in so ruling. Randolph v. Emerick, 13 Ill. 345; Dunning v. Dunning, 37 Ill. 306; Baltimore & O. S. W. R. Co. v. Keck, 185 Ill. 400, 405.

Defendant’s attorney then moved, inasmuch as it appeared from plaintiff’s affidavit of claim that there was no certificate attached that the notary was authorized to administer oaths in Milwaukee county, Wisconsin, that said affidavit be stricken from the files. Plaintiff’s attorney asked leave to file an amended statement and affidavit of claim instanter, stating that he had ascertained that the amount stated in the original affidavit to be due from defendant was less than what was in fact due. The court ruled that the original affidavit be stricken and that plaintiff be allowed to file an amended statement of claim instanter, which was done. The amended statement of claim was substantially the same as the original statement, except as to the amount sworn to be due, which was stated to be $3,105 and interest We do not think that the court erred, as contended by counsel for defendant, in allowing the amended statement of claim, together with the affidavit of claim attached thereto, to be filed. Sections 46 and 22, Municipal Court Act.

Plaintiff’s attorney then read to the court a stipulation as to certain facts, pertinent to the issues in the case, which had been signed by the attorneys of the respective parties on January 6, 1911, whereupon defendant’s attorney moved that this stipulation of facts be not considered and be stricken from the files, and for the reason that it had been drawn up and agreed to with reference to plaintiff’s original statement of claim and was not now applicable to plaintiff’s statement of claim as amended. Defendant’s attorney also objected to tbe amended statement of claim as being too indefinite and insufficient upon which to base any action. The court ruled, inasmuch as the amended statement of claim was in substance the same as the original statement, except as to the amount claimed to be due from defendant, to which original statement the defendant had filed an affidavit of merits, and sufficiently advised defendant as to the case it was called upon to defend, that the objection to the sufficiency of plaintiff’s statement of claim was not well founded, and that the motion of defendant that the stipulation of facts be no.t considered and be stricken from the files would be denied. We are unable to perceive any error in these rulings.

The material facts as- disclosed from plaintiff’s evidence are, briefly, as follows: The deceased William J. G-rutza was a resident of Milwaukee, Wisconsin; he died testate on August 20,' 1901, and letters testamentary were issued to the executor named in his will. Among the deceased’s papers were found 18 unin-dorsed certificates of stock in defendant company, aggregating 620 shares, each certificate running to “Bev. W. Grutza” and one unindorsed certificate for one share running to Teofil LandowsM. Each certificate bore the corporate seal of defendant and what purported to be the signatures of the president or vice-president and secretary of the company at the respective dates of the certificates. One witness testified that the signatures of the secretary were the genuine signatures of that official. These certificates were delivered to said executor and the stock represented by them was inventoried as a part of the deceased’s personal estate. Subsequently, by decree of the Circuit Court of Milwaukee county, Wisconsin, it was ordered that the estate pf said deceased be administered as a trust estate, and plaintiff, Frank J. G-rutza, was appointed and qualified as trustee, and said certificates were delivered to him and said stock became a part of said trust estate. It was shown that four separate dividends had been declared on the capital stock of the defendant, since the death of William J. Grutza, and that the proportionate amount of each dividend had been paid on said 620 shares of stock; that a dividend had been declared by defendant on October 12, 1909, of $3 per share; that another dividend had been declared on June 10, 1910, of $2 per share; that payment of these two dividends on said 620 shares had not been made to plaintiff; that plaintiff had demanded payment of defendant on said shares of the October, 1909, dividend prior to December 25, 1909, but that such payment was refused; that plaintiff had made demand of defendant for payment on said shares of the June, 1910, dividend prior to July 25, 1910, but payment was refused; that the sum due on said shares for the October, 1909, dividend amounted to $1,860, and for the June, 1910, dividend to $1,240.

When plaintiff rested his ease, defendant’s attorney demurred to the evidence on several grounds then stated, and moved the court to dismiss the action. The court denied the motion, and, the defendant electing not to put in any evidence, found the issues in favor of plaintiff and assessed plaintiff’s damages at the sum of $3,244.72. It appears that the court allowed plaintiff the said sum of $1,860 for the unpaid dividend declared in October, 1909, and interest thereon from December 25, 1909, to the day of the trial, February 28, 1911, at the rate of 5% per annum, and the said sum of $1,240 for the unpaid dividend declared in June, 1910, together with interest thereon at the same rate from July 25, 1910, to the day of the trial. Judgment was entered on the finding.

Counsel for defendant here contends that the finding and judgment are against the law and the evidence. We have carefully considered the evidence and the various points made by counsel in support of Ms contention, and, without further discussion, we deem it sufficient to say that in our opinion the finding and judgment are fully sustained by the evidence and by the law. The judgment is accordingly affirmed.

Affirmed.


author: Mr. Presiding Justice Smith

text:
    Wladislaw Franczak, Plaintiff in Error, v. Anton Plotzki, Defendant in Error.
    Gen. No. 16,645.
    1. Malicious pbosecution — probable cause question for the jury. In malicious prosecution for causing plaintiffs arrest for breach of the peace, the jury are not to determine plaintiffs guilt, but whether defendant instituted the prosecution without probable cause and with malice.
    2. Evidence — on issues of probable cause anti malice. In malicious prosecution for causing plaintiffs arrest for breach of the peace, testimony to prove illicit relations between the plaintiff and defendant’s wife is admissible upon the issues of probable cause and malice.
    3. Malicious pbosecution — probable cause. In malicious prosecution probable cause means “reasonable ground of suspicion supported by facts or circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged.”
    Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed March 24, 1913.
    Edward W. Cullen, for plaintiff in error.
    Edward J. Adler, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The defendant caused the plaintiff’s arrest, charging him with a violation of Section 1454 of the 1905 Municipal Code of Chicago, which in part is as follows :

“All persons who shall make, aid, countenance or assist in making any diversion tending to a breach of the peace within the limits of the city shall be deemed guilty of disorderly conduct, and upon conviction therof shall be severally subject to a fine of not less than one dollar nor more than two hundred dollars.”

On a hearing before a Judge of the Municipal Court of Chicago the plaintiff was discharged. The plaintiff then brought an action against the defendant for malicious prosecution. On a trial thereof the jury found the defendant not guilty. The Court denied plaintiff’s motion for a new trial and entered a judgment of nil capiat and for costs against the plaintiff, and to reverse same he sued out this writ of error.

The only error urged by the plaintiff is that the court admitted testimony of witnesses, over the plaintiff’s objection, that tended to prove illicit relations between the plaintiff and defendant’s wife. It is argued that the said testimony did not tend to prove disorderly conduct by the plaintiff in that it was not conduct that disturbed the peace and quiet of the community. The defendant, prior to swearing to the complaint on which the warrant was issued for the plaintiff’s arrest, was informed of the plaintiff’s conduct with the defendant’s wife, about which the witnesses testified, and acting on the said information caused the said arrest. The question for the jury was, not the plaintiff’s guilt, but did the defendant institute said prosecution without probable cause and with malice. “By probable cause is meant, reasonable ground of suspicion supported by facts or circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged.” Neufeld v. Rodeminski, 144 Ill. 83.

"We think the said testimony competent upon both issues — probable cause and malice.

The judgment is affirmed.

Affirmed.


author: Mr. Presidihg Justice Smith

text:
    John Winter, Plaintiff in Error, v. Fred W. Meier, Defendant in Error.
    Gen. No. 17,167.
    1. Statute of limitations — suit on award. A suit on an award filed within two years is within the statute of limitations.
    2. Arbitration — right to sue on award. Where a case pending in the appellate court on writ of error is submitted to arbitrators who make an award in favor of plaintiff, and the court without notice of the award enters judgment for defendant, plaintiff does not abandon his right to sue on the award by filing a petition for rehearing.
    3. Arbitration — where party refuses to pay award. Where there is a common-law submission of a controversy to arbitrators and defendant refuses to pay the amount awarded, plaintiff has a right of action on the award.
    4. Arbitration — where plaintiff sues on award. The general rule that under a statutory submission only the court agreed upon is authorized to enter judgment on the award does not apply under a common-law submission where defendant is sued on the award.
    5. Arbitration — not confined to legal procedure. Where a submission to arbitrators is general they are not confined to legal procedure or legal principles.
    6. Arbitration — award based on moral grounds. An award is enforceable at law though based on moral grounds.
    Error to the Municipal Court of Chicago; the Hon. Isidore H. Himes, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and judgment here.
    Opinion filed March 24, 1913.
    William Daniel Johnson, for plaintiff in error.
    HortoN, Wickett, Miller & Meier, for defendant in error.
   Mr. Presidihg Justice Smith

delivered the opinion of the conrt.

The plaintiff, here, the plaintiff in error, brought a suit against the defendant, here the defendant in error, in the Municipal Conrt of Chicago, wherein the court found the issues for the plaintiff and assessed his damages therein at $444.95 and entered judgment against the defendant therefor. The defendant sued ont a writ of error in this Court to reverse said judgment, and this court in an opinion filed November 22, 1909, and reported in 151 Ill. App. 572, reversed the said judgment and entered judgment here for the defendant. On November 25, 1908, while the said writ of error was pending' and undecided in this court, the said parties entered into an agreement in writing to arbitrate the matters in controversy in said cause, as follows:

“Whereas, there exists a controversy between John Winter and Fred W. Meier in relation to diverse matters; and
“Whereas, the said John Winter has brought a suit against the said Fred W. Meier in reference thereto, and did in the Municipal Court of Chicago recover judgment against said Fred W. Meier, which said matter is now pending in the Appellate Court of Illinois for the First District on writ of error sued out, which matter now remains undetermined.
“Now, therefore, we, the undersigned, John Winter and Fred W. Meier, do hereby mutually covenant and agree to and with each other to submit all and all matters of actions, causes of action, suits, controversies, claims and demand whatsoever now pending, existing or held by and between us to Jos. G-oers, John Stuben-rauch, Bruno Babe, Wm. Mnenstermann, Wm. Grroth, as arbitrators who, or any three of whom, shall arbitrate, order, adjudge and determine of and concerning the same, and we do mutually covenant and agree to and with each other that the award to be made by said arbitrators or any three of them shall be in all things by ns and each of us and by the executors, administrators and assigns of us and each of us, well and truly kept, observed and performed; provided, however, that such award shall be made in writing under the hands of said arbitrators or any three of them ready to be delivered to us on or before the first day of February, A. D. 1909.
“And it is further agreed that the award of said arbitrators or any three of them shall be made a judgment of the Appellate Conrt of the First District of Illinois.
“Witness onr hands and seals this 25th day of November, A. D. 1908.
(Signed) JohN Winter (Seal)
(Signed) F. W. Meier (Seal)
‘£ Signed and sealed in presence of Wm. HeiNe A. F. BeNNEgarbe.”

On November 25, 1908, the said five arbitrators met and heard the evidence submitted by both parties, and thereafter, December 4, 1908, rendered an award in writing, signed by all the arbitrators, the material portions of which, so far as the questions here presented are concerned, are as follows:

“The undersigned * * * do hereby certify that we did on the 25th day of November, 1908, at a hearing held on that date, weigh conscientiously all complaints and defenses brought before us. * * * Therefore, we decide by unanimous vote that there is due to John Winter from Fred W. Meier the sum of $441.34. Said sum is calculated and figured up to December 1st, 1908. * # * We are convinced that in case John Winter did with his own hand sign said writing, it was so signed by him under the impression that he was giving a receipt for that part of the debt paid him on that day — and not with the intention of releasing said Fred W. Meier from the whole debt * #

The said award was not brought to the attention of the Appellate Court in the cause there pending where the same matters were in controversy, and a judgment was there entered for the defendant. Some months thereafter, the defendant refusing to pay the sum found by the arbitrators in the award to be paid the plaintiff by the defendant, the plaintiff brought suit on the said award in the Municipal Court. The cause was submitted to the court without a jury and on a hearing the court found the issues for the defendant and entered a judgment nil capiat and to reverse said judgment the plaintiff sued out this writ of error.

The matters in controversy between the parties were at the time of the submission involved in a suit pending in this court. No order of submission was entered therein as required in a statutory submission, and it is not contended by either party that this court, being a court of review with no original jurisdiction, could have properly entered such an order or have entered judgment in the cause upon the said award. It is evident that the said submission was not under the statute, but a general submission under the common law. The defendant refusing to pay the amount awarded against him, the plaintiff had a right of action on the award. Morse on Arbitration and Award, 575.

The defendant insists that the judgment should be sustained on the ground that the Municipal Court had no jurisdiction because of the clause in the submission providing that the award should be made a judgment of the Appellate Court in a case then pending; that the award was void upon its face because a moral obligation is not enforcible at law, and that the award was abandoned by the plaintiff.

In support of the contention that the Municipal Court had no jurisdiction of the cause, the defendant cites cases arising from statutory submissions. It is a general rule that where, under the statute, the parties are allowed to name the court to which the award shall be returned, the court agreed upon is the only one authorized to enter judgment upon the award. This rule has no application to the case at bar. There was no application to the court named by the parties to enter judgment upon the said award, but a suit was begun against the defendant, based upon the said award.

The argument that the award was void upon its face because a moral obligation is not enforcible at law, is based upon the following recital in the award:

“We do further certify tha.t all matters of proof submitted to us by both the complaining party and the respondent have been weighed by us according to their moral effect in the light of the "Word of G-od, and accordingly give the following decision:”

It is claimed by the defendant that it thns appears that the arbitrators did not give legal effect to the proofs submitted to them but decided the same wholly according to the moral effect thereof, and found that morally instead of legally the defendant was indebted to the plaintiff.

It appears that at a meeting of all the arbitrators both parties appeared and submitted all their evidence and were fully heard. The arbitrators took the matter under advisement and subsequently made said ■ award and mailed a copy thereof to both parties. We think the facts, all taken together, do not justify defendant’s conclusion that the award was made in disregard of legal principles, and entirely upon moral grounds. Assuming, however, that his position in this respect is correct, we do not think the award is void. The submission was general and did not confine the arbitrators to legal procedure or legal principles. On such a submission, Morse on Arbitration and Award, to which we refer for an interesting discussion of the point, on page 217 says: “I conceive that in this country the general rule must be admitted to be established, to the effect that arbitrators are at liberty voluntarily and deliberately to disregard the strict principles of law, and to decide according to their general views of what is right, just and conscientious in the case.” The author on the same page quotes from Judge Story: “The reasonable rule seems to be that the referees are not bound to award upon the mere dry principles of law applicable to the case before them. They may decide upon principles of equity and good conscience and may make their award ex aequo et bono.”

That the award was abandoned by the plaintiff is • contended upon two grounds: . First, that it was nearly two years after the same was made before suit was begun thereon, and, Second, the plaintiff filed a petition for a rehearing in the Appellate Conrt in the said case reported in 151 Ill. App. 572. We think neither ground tenable. The suit was brought within the Statute of Limitations. While the submission might he -held to he an abandonment of the case then pending in this conrt, we cannot agree that the filing of a petition for a rehearing therein was an abandonment of plaintiff’s right of action then existing on the said award, for the action based upon the award was a distinct and different cause of action from that then pending in this court.

The only evidence introduced in the trial of the suit upon the award was documentary evidence showing the proceedings in the prior suit in the Municipal Court, the writ of error in this court, the judgments therein and the petition for a rehearing in this court.

For the reasons indicated we are of the opinion the same was not a bar to the action upon the award, and the plaintiff was entitled to recover therein. The judgment is reversed and judgment is here entered for the plaintiff for $441.34 with interest thereon at the rate of five per centum per annum from December 1, 1908.

Reversed and judgment here.


author: Mr. PresidiNg Justice Smith

text:
    Matthew G. Rodisch and John W. Moore, for use of Estate of Levi Moore, Deceased, Plaintiffs in Error, v. Aaron C. Koethe et al., Defendants in Error.
    Gen. No. 17,186.
    1. Penalties — nature of action for. A suit, tliougli civil in form, brought to recover penalties for offenses against the laws of the state, is a criminal case within the meaning of the Constitution.
    2. Criminal law — calling defendant. In a suit to recover penalties, a request that defendant he sworn disturbs his free choice and is calculated to harm him.

      3. Municipal court act — cross-examination of defendant in suit for •penalties. The Municipal Court Act, § 33, providing for calling defendant for cross-examination, is not applicable in suit to recover penalties for offenses against the laws of the state.
    4. Wills — failure to file. Where the probating of a second will is set aside by decree of court, failure to file the first will until such time does not impose liability under R. S. ch. 148, § 12.
    Error to the Municipal Court of Chicago; the Hon. William H. Dieterich, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed March 24, 1913.
    Eastmah & White and Ralph R. Hawxhurst, for plaintiffs in error; C. Yah Auer Smith, of counsel.
    Warren B. WilsoN, for defendants in error.
   Mr. PresidiNg Justice Smith

delivered the opinion of the court.

The plaintiffs, here the plaintiffs in error, brought a suit against the defendants', here the defendants in error, to recover a penalty of twenty dollars per month for fifty months, under section 12 of chap. 148, Wills, of the Rev. Stat., for wrongfully withholding a certain will and codicil. On a hearing before the court without a jury the court found for the defendants and, entering judgment thereon, the plaintiffs sued out this writ of error.

The evidence shows that Levi Moore made a will March 20, 1900, and a codicil thereto Aug. 21, 1902, hereinafter designated the first will. On December 12, 1903, he made another will, in which he appointed the defendant Aaron 0. Koethe executor. Mr. Moore died on May 3, 1906, and on May 21, 19Q6, the will, dated December 12, 1903, which will he hereafter designated the second will, was filed in the Probate Court of Cook county and duly proven and admitted to probate July 30, 1906. On July 23, 1907, a bill was filed in the Circuit Court of Cook county, the nature of which does not appear in the Abstract of the Record, hut it is said by counsel in their briefs it was to set aside said sec-orid will, and on May 25, 1910, a decree was entered therein finding the said second will was not the last will and testament of the said Moore, and setting aside the order probating same on the ground that Koethe’s wife was a witness thereto under the authority of Fearn v. Postlethwaite, 240 Ill. 626. Thereupon, June 1, 1910, the said first will was presented and filed in the Probate Court. On July 29, 1910, the plaintiffs brought this action.

The plaintiffs offered in evidence on the trial the answers of William and Edward Eowlett filed in the said cause in the Circuit Court, wherein Mr. Pendarvis was the solicitor for the said Eowlett, and on objection thereto the same were excluded. The statements contained therein were in no way material to the issues in the case at bar, nor were they competent evidence against Mr. Pendarvis or other of the defendants. The plaintiffs also offered the answer of the defendant Koethe filed in the said Chancery suit in the Circuit Court, which was also excluded. This would have been competent evidence as against the defendant Koethe had it contained anything material to the issues here presented, which it did not. The said answers were therefore properly excluded.

The plaintiffs complain of the ruling of the court in sustaining the defendants’ objection to plaintiffs calling the defendants for cross-examination under section 33 of the Municipal Court Act. The ruling of the court was correct. The said provision of section 33 is not applicable to this action. Where the suit, though civil in form, is brought to recover penalties for alleged offenses against the laws of the State, they are criminal cases within the meaning of the Constitution. Robson v. Doyle, 191 Ill. 566; 30 Am. & Eng. Ency. of Law (2nd Ed.) p. 1159, and cases there cited. In United States v. Kimball, 117 Fed. Eep. 156, p. 160, is stated the law as we view it: “To demand or request that he (the defendant) be sworn is an attempt to choose for him, which constrains his acceptance and coerces Mm to make public choice in the presence of the jury. This would he misconduct on the part of the prosecution, intended and calculated to harm the defendant, disturb his free choice, and prejudice the jury in case of declination. This protection relates solely to a defendant.”

There is no competent evidence shown in the abstract tending to show that the defendants or any of them other than Koethe had in his or their possession and withheld the said first will. The evidence did show that the said Koethe had the possession and custody thereof and did not file same in the Probate Court until June 1, 1910.

The second will was by the adjudication in the Probate Court the last will and testament of the said Moore until the decree of the Circuit Court was entered May 25, 1910, to the contrary. Chicago Title & Trust Co. v. Brown, 183 Ill. 42. Immediately after the said decree the said first will was filed in the Probate Court. Under such circumstances we are of the opinion Koethe was not liable in an action to recover a penalty under the statute in question.

The other questions argued are without merit and need not be mentioned.

The judgment is affirmed.

Affirmed.


author: Mr. Presidirg Justice Smith

text:
    Chicago Telephone Company, Appellee, v. Charles J. Wolf, Individually, etc., and Village of Melrose Park, Appellants.
    Gen. No. 17,219.
    1. Costs — settlement with third, party. Where complainant in a bill makes an adjustment with a third person not a party, he is liable for costs on dismissal on his own motion.
    2. Costs — when defendant liable. Where defendant by his own act renders prosecution of bill needless, he is liable for costs on dismissal by complainant.

      Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed March 24, 1913.
    Felix J. Gripper, for appellants; AloNzo M. Gripper, of counsel.
    Holt, Wheeler & Sidley, for appellee.
   Mr. Presidirg Justice Smith

delivered the opinion of the court.

The appellee filed a hill in the Circuit Court averring in substance that it was a corporation authorized to erect, maintain and operate lines, wires and cables in Cook county and elsewhere for the purpose of furnishing’ telephonic communication and service; that under and by virtue of certain ordinances, describing same, of the Village of Melrose Park, it was then and there operating telephone lines, etc., describing its said business in said village somewhat in detail; that any interruption thereof would cause appellee great loss, etc.; that one Charles Wunnecke was consulting with the appellee in regard to arrangements whereby certain of appellee’s wires would be raised to permit the said Wunnecke to move a house thereunder, and while so consulting with the appellee the appellants notified the appellee to remove certain of its said wires so that said Wunnecke might move his house through same, and that if appellee did not so move said wires within twenty-four hours after the receipt of said notice, the appellant would cut the said wires; that said appellants would so cut the said wires unless restrained therefrom, and prayed that the said appellants be enjoined “from breaking, molesting, interrupting, damaging or in any way interfering with any of said complainant’s lines or wires in the Village of Mel-rose Park.” An injunction was issued without notice, in accordance with the prayer of the bill. The appellants appeared and filed a general demurrer and made a motion to dissolve the injunction for want of equity appearing on tlie face of tlie bill. The chancellor overruled the demurrer and denied the motion to dissolve and the appellants elected to stand by their said demurrer and motion. Thereafter the appellee suggested, by way of a supplemental bill, that since the issuance of the said temporary injunction all matters relating to the removal of said house had been adjusted to the satisfaction of the appellee and the said Wunneeke, and that there was then no controversy in reference thereto, and moved the court to dismiss said bill at the costs of the appellants. The said motion was allowed and from the order dismissing the said bill of appellants’ costs this appeal is prosecuted.

There is no question that the appellee had a right to have the bill dismissed on its motion. The only question is in relation to the costs. That the bill was properly dismissed at the appellants’ costs the appel-lee relies on Cicero Lumber Co. v. Town of Cicero, 176 Ill. 9. It is claimed by the appellee that the bill presented facts that entitled it to the relief at the time, and therefore the appellants should pay the costs.. Had the appellants been parties to the settlement or by any act of their own rendered further prosecution of the said suit needless, as in Cicero Lumber Co. v. Town of Cicero, supra, no doubt said authority would be controlling, assuming that the bill stated a good cause of action in equity. Should the rule there announced be extended to a ease where an adjustment of the controversy in litigation is made with a party other than a party to the litigation, as in the case at bar? We are of the opinion that an extension of the rule making it applicable to the case at bar on the facts here shown would be unwise and inequitable.

The decree pf the Circuit Court is reversed and the cause remanded to that court with directions to dismiss the bill at the cost of the appellee, the complainant below.

Reversed cmd remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Harry Miller, Plaintiff in Error.
    Gen. No. 18,136.
    1. Criminal law — information for petit larceny. Under the Municipal Court Act, § 27, an information for larceny alleging that defendant “did feloniously take, steal and carry away the sum of nine dollars lawful money of the United States of America of the value of” does not set forth the offense with sufficient certainty.
    2. Cbiminal law — information construed strictly. An information under the Municipal Court Act, § 27, is construed with the same strictness as an indictment at common law.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fby, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 24, 1913.
    Robert E. Cantwell, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Zach Hopheimer, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This is a writ of error to reverse a judgment of the Municipal Court of Chicago finding the plaintiff in error guilty of petit larceny on a trial before the court without a jury, and sentencing him to six months imprisonment in the House of Correction and to pay a fine of twenty-five dollars.

The information alleged that on November 11, 19.11, the plaintiff in error “did feloniously take, steal and carry away the sum of nine dollars $9.00 lawful money of the United States of America of the value of nine dollars.”

Section 27 of the Municipal Court Act is, in part, as follows: “Every information shall set forth the offense with reasonable certainty, substantially as required in an indictment.” In People v. Weinstein, 255 Ill. 530, the court states: “The same certainty of allegation is required in an information as in an indictment. Parris v. People, 76 Ill. 274; Gould v. People, 89 Ill. 216.” In People v. Hunt, 251 Ill. 446, the allegation that the defendant stole, etc., “$55 of good and lawful money of the United States of America of the value of,” etc., was held had and the judgment therein reversed and the cause remanded.

For many centuries under the common law grand larceny was punishable by death, and in those times the value of the moneys often fluctuated greatly. The result was that the courts, in an attempt to modify the harshness of the law, would construe the charge of larceny very strictly, and thereby many technical rules were established in prosecutions for larceny, and among them was the well known rule announced in People v. Hunt, supra. We might have felt at liberty to modify the said rule in its application to the present times, so different from those which then seemed in justice to demand it, were it not that we now feel hound by the said recent holding of the Supreme Court in the construction of the allegation complained of in the said information.

The other errors urged need not he considered. The judgment is reversed and the cause remanded.

Reversed and rema/nded.


text:
    The People of the State of Illinois, Defendant in Error, v. Eugene Hustion, Plaintiff in Error.
    Gen. No. 18,713.
    1. CRIMINAL i,aw — unlawful sale of cocaine. An information which charges that defendant unlawfully sold cocaine'to a certain person without such person “having in his possession a written prescription signed by a duly' registered physician,” does not state an ojíense, since the statute does not require the purchaser to have possession of the prescription.
    2. Ceimiiíal law — when indictment must negative exceptions. Where a statute making an act criminal includes exceptions in the same clause which creates the offense, it is necessary in the indictment to negative the exceptions so as to show affirmatively that the precise crime defined has been committed.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 24, 1913.
    Archibald E. GueriN and Wallace Streeter, for plaintiff in error.
    Maclay HoyNe, for defendant in error; Zach Hoe-heimer, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff in error was prosecuted in January, 1912, in the Criminal Branch of the Municipal Court of Chicago on an information alleging: “Eugene Hus-' tion, late of the said City of Chicago, heretofore, to-wit, on the 13th day of December, A. D. 1911, at the City of Chicago, aforesaid, did then and there unlawfully and wrongfully sell to Walter A. Bobo a quantity of cocaine without said Walter A. Bobo having in his possession a written prescription signed by a duly registered physician the said Eugene Hustion having been convicted of selling cocaine without a written prescription of a duly registered physician prior to December 1, 1911, in the Municipal Court of Chicago, contrary to the form of the statute in such case made •and provided, and against the peace and dignity of The People of the State of Illinois.”

On a trial before a jury a verdict was returned as follows: “We*, the jury, find the defendant, Eugene Hustion, guilty in manner and form as charged in the information.” A motion for a new trial was denied and plaintiff in error sentenced to pay a fine of $300.00 and costs and committed to the Honse of Correction until paid.

The prosecution of the plaintiff in error was under section 32a, chapter 91, Medicine and Surgery, Hurd’s Rev. Stat. 1911, in part as follows:

“It shall he unlawful for any druggist or other person to retail, sell or give away any cocaine * * * except upon the written prescription of a duly registered physician, which prescription shall contain the name and address of the person for whom prescribed, and the date the same shall have been filled, and shall be permanently retained on file by the person, firm or corporation where the same shall have been filled, and it shall be filled but once, and of it no copy shall be taken by any person, and the original shall at all times be open to the inspection of the prescriber,” etc.

The plaintiff in- error contends that the information stated no offense in that the statute under which he was prosecuted did not require the prescription to be in his possession. The point is well taken. Glenn v. People, 17 Ill. 105; Truitt v. People, 88 Ill. 518. The evidence is not preserved in the record before us and the question presented is, was an offense charged in the information. The counsel for the People argue: “The gist of the offense is the selling without a prescription, or, which comes to the same thing, not having a prescription, or identically the same thing, not having the prescription in possession.” It is very true, as stated, that “the gist of the offense is the selling without a prescription,” but that not having the prescription in possession is “identically the same thing” we are unable to concede. For instance, suppose a duly registered physician had written a prescription for a patient, but for some reason not wishing to give same to the patient, left it with the druggist and thereunder the druggist sold and delivered the cocaine to the patient. It is not to be presumed that under such circumstances a court would hold the druggist guilty of a violation of the said statute. In Beasley v. People, 89 Ill. 571, the court say: “Undoubtedly the general rule is, where an act is made criminal, with exceptions embraced in the same clause of the statute which creates the offense, so as to be descriptive of the offense intended to be punished, it is necessary, in the indictment stating the act had been done, to negative the exceptions so as to show affirmatively the precise crime defined has been committed. ’ ’

It is also urged by counsel for the People that “Every indictment or accusation of the grand jury shall be deemed sufficiently technical which states the offense in the language of the statute creating the offense, or so plainly that the nature of the offense may be easily understood by the jury.” This is well settled law, but the trouble is that the prosecutor, probably with the statute before him, for some reason difficult to understand, inserted an element within the exception not required by the statute.

In our opinion the information stated no offense, and the judgment is reversed and the cause remanded.

'Reversed and remanded.


author: Mr. PrbsidiNG Justice Smith

text:
    The People of the State of Illinois, Defendant in Error, v. Eugene Hustion, Plaintiff in Error.
    Gen. No. 18,714.
    This case is controlled hy the decision in People v. Hustion, No. No. 18, 713, ante, page 293.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. F«nr, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 24, 1913.
    Archibald E. Guerin and "Wallace Streeter, for plaintiff in error.
    Maclav Hoyne, for defendant in error; Zach Hoe-heimer, of counsel.
   Mr. PrbsidiNG Justice Smith

delivered tlie opinion of the court.

This is a writ of error from a judgment in a prosecution on an information substantially the same as set out in People v. Hustion, ante, p. 293, in an opinion handed down of this date. The same objection to the information there made is also urged here. The decision in the said case is controlling here, and the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Eugene Hustion, Plaintiff in Error.
    Gen. No. 18,715.
    This case is controlled hy the decision in People y. Hustion, No. 18,713, ante, page 293.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 24, 1913.
    Archibald E. Guerin and Wallace Streeter, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Zach Hof-heimer, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This is a writ of error from a judgment in a prosecution on an information substantially the same as set out in People v. Hustion, ante, p. 293, in an opinion handed down of this date. The same objection to the information there made - is also urged here. ' The decision in the said case is controlling here, and 'the judgment is reversed and the cause remanded.

Reversed and remanded.