text:
    James Steven, Appellee, v. Fidelity & Casualty Company of New York, Appellant.
    Gen. No. 17,895.
    1. INSURANCE — employer’s liability. Where an employer’s liability policy based on a schedule of the estimated compensation of employes provides that it does not cover loss from liability for injury or death caused by any person unless his compensation is included in the schedule, and also expressly states that the schedule “covers the wages or salaries of all persons to whom compensation . is paid in the business or trade carried on by the assured at the location mentioned and described in the schedule,” it is not ambiguous, and defendants cannot escape liability on the ground that a pay roll report made eight months after the accident shows that the compensation of the superintendent was not included in such report, though his negligence is alleged to have caused the accident.
    2. Insurance — where premium depends on compensation of all employes. The fact that the compensation paid a certain employe is omitted from the schedule upon which the premium is estimated, and a premium on that compensation is never paid, does not relieve the insurance company from liability though the negligence of such employe cadses the accident, where it appears from the terms of the policy that the insured agrees to pay an additional premium in case the total compensation earned by all employes proves to be more than the amount stated in the schedule.
    8. Insurance — where defense is waived by defending action on which liability is based. Where defendant casualty company, knowing all the facts regarding the accident to plaintiff’s employe, takes charge of the defense for plaintiff, it waives any defense it may have to an action by- plaintiff on the policy.
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed March 6, 1913.
    H. L. Howard, for appellant.
    Miller, Gorham & Wales, for appellee.
   Mr. Justice Fitch

delivered tlie opinion of tlie court.

On a trial before tlie court without a jury, appellee recovered a judgment against appellant for $4,475.67 upon an-employers’ liability insurance policy, which amount appellee had been required to pay in order to satisfy a judgment rendred against him in the Supreme Court of the District of Columbia for damages for negligently causing the death of one of his employes in Washington, D. C. The Casualty Company had taken full charge of the defense of the suit in Washington and when defeated had prosecuted an appeal to the Court of Appeals of the District of Columbia, where the judgment of the lower court was affirmed. The defense made to the present suit in the Municipal Court was that by the terms of the insurance policy appellant is not liable to appellee on account of injuries or death caused by any person whose compensation was not included in the estimated total compensation stated in the policy, and it was claimed that the compensation of the person who caused the accident referred to in the Washington suit was not so included. This, defense involved a construction of the contract sued on, in the light of the facts hereinafter stated. A number of propositions of law were presented to. the trial court by both sides, some of which were marked “held” and others “refused,” from which it appears that the court construed the language of the policy as including the compensation of the employe whose alleged negligence caused the accident, and held further that even if this were not true, appellant had waived any defense it might have had upon that point, by assuming control of the suit brought for the recovery of damages for the negligence of such employe. Appellant contends that both these rulings were erroneous.

The essential facts are not disputed. The policy sued on is dated August 2, 1907. It provides that in consideration of $180 “estimated premium,” and of the statements contained in the “schedule of statements” therein set forth, all of which are warranted to be true “except the statements concerning the number of employes and their compensation, which are estimated,” the appellant company agrees to indemnify appellee (called “the assured”) for a period of twelve months, “against loss from the liability imposed by law upon the assured for damages on account of bodily injuries or death accidentally suffered * * * by any employe of the assured,” while at the place and “during the prosecution of the work described in the schedule,” subject to a number of conditions, which are stated in paragraphs lettered consecutively from A to 0 inclusive. In the “schedule of statements” the kind of work is stated to be “stone setting,” by “steam and hand power;” the place, Washington, I). C.; the “estimated average number of employes, 35;” the “estimated compensation for period of policy, $10,000;” the “premium rate per $100 of compensation, $1.80;” and the “estimated amount of premium, $180.00.” Among the conditions are: (A) that the company’s liability for the death of one person is limited to $5,000; (B) that the policy “does not cover loss from liability for injuries or death to or caused by any person unless his compensation is included in the estimate set forth in the schedule;” (C) that immediate written notice, with full particulars, shall be given by the assured to the company, of the happening of any accident and the presentation of any claim on account thereof; (D) that if any suit is thereafter brought to enforce such a claim, the assured shall immediately forward to the company’s home office every summons as soon as served, and the company will defend such suit in the name and on behalf of the assured; (E) that the assured shall not “interfere in any negotiation for settlement or in any legal proceeding,” but shall aid in securing information and the attendance of witnesses and in effecting settlements and prosecuting appeals; (J) that the premium is based upon the entire compensation earned by the employes of the assured during the period of the policy, whether paid in cash, board, merchandise or other substitute for cash, and if the entire compensation exceeds the sum named in the schedule, the assured shall pay the additional premium earned, while if it is less than that sum, the company will return the unearned premium; and (M) that the company’s auditors shall have the right and opportunity, whenever desired by the company, to examine the books and records of the assured as to the compensation earned by his employes, and that upon the request of the company, the assured shall furnish a written statement of the compensation earned by his employes during any part of the policy-period, and a like statement at the end of the policy-period, covering the full period.

On January 21, 1908, while this policy was in force, an employe named Saunders, working for appellee on a building in Washington, D. C., under the direction of James Steven, Jr., appellee’s son and superintendent, met with an accident which caused his death. Ap-pellee reported the accident to appellant, who investigated the facts fully and obtained the written statements of five or six witnesses. On May 5, 1908, suit was brought against appellee and James Steven, Jr., as partners, by the administratrix of Saunders. Ap-pellee turned over the summons to appellant, who then assumed full control of the case, through its attorneys in Washington. The declaration charged, with several other grounds of recovery, that the accident was caused by a negligent order given by “James Steven, Jr., superintending said job.” In June, 1908, the suit was dismissed as to James Steven, Jr., and an amended declaration was filed, the second count of which alleged that the accident was caused by a stone falling upon Saunders which had become dislodged “under negligent orders and directions from said defendant, Ms agent or superintendent.” The ease was tried, however, in March, 1909, upon a third count filed just before the trial, charging James Steven, Jr., with negligence in giving orders to omit “dowels,” while setting certain stones in a balustrade, whereby one of the stones was insecurely fastened and fell upon Saunders. The “dowels” referred to were small pieces of slate which were usually inserted between and into adjoining blocks of stone in order to bind and hold them in place as part of the balustrade.

Meantime, on April 23,1908, the company requested a “pay-roll report” from appellee. The request was turned over to a time-keeper, who computed the amounts shown'by the pay-rolls to have been paid to employes from the date of the policy to March 6, 1908, and inserted the total in the blank form used for that purpose. It was then signed “James Steven, assured. By James Steven, Jr.,” and sent to the company. This report stated that the entire compensation earned by all of the employes of the assured engaged in the business described in the policy for the period named, including “all persons compensated by the assured in any manner in the said trade or business” was as follows: “Pay-roll, $10,364.15; Estimate, $10,000; (balance) $364.15; Additional premium, $6.55.” On September 29, 1908, an “assistant auditor of pay-rolls,” employed by the company, went to the temporary office of appellee in Washington to verify this report. He was shown the time books, and from them he checked up the amounts paid to employes week by week,' and reported that the total given in the April report was correct. These time books were offered in evidence. They show at the top of the pay-rolls for each week, the name “James Steven, Jr.,” and opposite his name is marked the number of hours he worked each day, but no amount of ■ wages or compensation is entered opposite his name. The total of $10,364.15 appears to be the sum of the wages paid to the employes named m the time hooks other than James Steven, Jr. The latter testified that the reason the amounts earned by him were not given in the time hooks was that he did not receive any fixed salary or compensation for his work, but received his living expenses, which averaged from $15 to $18 per week.

The theory of appellant’s counsel is that “Condition B ” of the policy (which provides that the policy ‘ does not cover loss from liability for injuries or death * * * caused by any person unless his compensation is included in the estimate set forth in the schedule”) exempts appellant from liability for the payment of any judgment rendered against appellee for damages caused by the negligence of James Steven, Jr. This theory assumes that the compensation of Steven, Jr., was not included in the estimate. In support of this view, it is insisted that the “pay-roll report” made by Steven, Jr. on April 23, 1908, followed by evidence of the fact that the total given in that report does not include any compensation paid to him, is conclusive proof that his compensation was not included in the “estimate set forth in the schedule.” There might be some force in this argument if there was any ambiguity in the contract. In the absence of ambiguity, the question of appellant’s liability cannot be determined by a report made by appellee’s son eight months after the contract was entered into, but must be settled by reference to the language of the contract. The policy states in express terms that the estimated compensation given in the schedule “covers the wages or salaries of all persons to whom compensation is paid in the business or trade carried on by the assured at the locations mentioned and described in this schedule.” There is nothing ambiguous about this language. Steven, Jr. was one of the persons to whom compensation was paid in the business carried on by the assured at the location described, and therefore by the terms of the contract his compensation was included in the estimate. To give the report of Steven, Jr. the effect claimed would be not merely to construe the contract, but to change or modify it so as to release appellant from its obligations. There is not the slightest evidence that the report was intended to have that effect and there was no consideration for any .such modification or release. It is true that it was shown that the report was incorrect, but appellant was not thereby in any manner deceived or misled to its prejudice. The report was not made until several months after the accident happened to Saunders, whereby appellant’s liability had become fixed. Appellant did not rely on the report, but sent around an auditor to verify it by an examination of appellee’s books. Those books disclosed to the auditor that the name of Steven, Jr., was the first name on every pay-roll, and that nearly every day the work was going on, he had worked eight hours a day with appellee’s other employes. We are clearly of the opinion that the payroll report cannot be given the effect claimed by appellant.

It seems to be also assumed, by counsel for appellant, that the liability of appellant under the policy depends upon the question of fact whether any premium was ever paid by appellee to appellant, based upon an aggregate amount of compensation which included the compensation of Steven, Jr. The liability of appellant does not depend upon that question, but upon the question whether, by the terms of the policy, appellee agreed to páy a premium based upon that amount of compensation. In other words, if it appears from the language of the contract, that the parties intended that appellee should pay an additional premium in case the total compensation actually earned by all his employes, including Steven, Jr., should prove to be more than the amount stated in the schedule, then it is immaterial, so far as the liability of appellant is concerned, whether appellant ever in fact received such additional premium or not. If ap-pellee became liable to appellant for sncb additional premium, appellant thereby became liable to appellee for any loss sustained through the carelessness of Steven, Jr. There is nothing in the language of the contract making the liability of appellant dependent upon the payment in advance of any fixed sum as a premium. On the contrary, the advance payment of $180 is explicitly stated to be an “estimated premium,” based upon an “estimated” aggregate compensation of $10,000, payable, when earned, to an “estimated” number of employes; and all these estimates are, in terms, excepted from the warranty as to statements contained in the “schedule of statements.” Furthermore, by “Condition J” of the policy it is expressly stipulated that if the entire compensation earned by all employes of the assured “exceeds the sum set forth in the schedule” (i. e., the estimated total of $10,000) “the assured shall immediately pay the company the additional premium earned,” and if it is less, “the company will return the unearned premium, when determined.” It is apparent, from these provisions, that appellee thereby incurred a liability to pay to appellant an additional premium at the rate of $1.80 per $100 upon the compensation earned by James Steven, Jr., if it were true, in point of fact, that his compensation had been omitted in making up the estimate of $10,000, and it is equally clear that this was the understanding of the parties at the time the contract was made. In Swedish-American Telephone Co. v. Fidelity & Casualty Co. of New York, 208 Ill. 562, the same appellant brought suit to recover such an additional premium upon a similar policy; and while its right to recover was not directly decided, it was necessarily involved in the decision, which was to the effect that the company had the right to compel the production of the books and papers of the assured in order that they might be examined for the purpose of ascertaining bow much, compensation was paid to the employes of the assured. It follows that since appellant could have recovered from appellee an additional premium based upon the omitted compensation of Steven, Jr. (if it was in fact omitted), it was hound to indemnify appellee against loss caused by the negligence of Steven, Jr., whether it actually received the additional premium or not.

Moreover, appellant knew, or should have known, all the facts regarding the accident to Saunders, the connection of Steven, Jr., therewith, his position with ap-pellee, and that it was claimed in the Saunders suit that the fault was that of Steven, Jr. Having such knowledge, or means of knowledge, appellant waived any defense it might otherwise have had to appellee’s demand, by taking charge of the defense of the Saunders case. Appellant’s counsel concedes that such is the law “when the casualty company knows or in the course of ordinary events should have known, that the case was not covered under the policy.”

We find no prejudicial error in the action of the trial court in marking all of appellant’s propositions of law “refused.” The counter-propositions submitted by appellee were all marked “held.’ ’ In our opinion, they show that the trial court entertained correct views of the law applicable to the facts of the case, and that is the purpose of submitting,such propositions.

The judgment of the Municipal Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Me. Justice Fitch

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Thomas Newbold, Plaintiff in Error.
    Gen. No. 18,623.
    1. Disobdeely house — judgments of convictions of patrons admissible. In a prosecution for keeping a disorderly bouse in violation of ft. S. cb. 38, §57, where transcripts of judgments of convictions, prior to defendant’s arrest, of patrons of bis hotel for patronizing a common, ill-governed and disorderly bouse, together with the complaints and records of the Municipal Court, showing papers filed, writs issued and orders entered in each case, are admitted in evidence, upon defendant’s objection to the testimony of the police officer making such arrests as not the best evidence, the admission of such records is proper as tending to show the character of defendant’s hotel and its guests, and even if improper will not reverse when merely cumulative.
    2. Disorderly house — evidence as to prior events competent. In a prosecution for keeping a disorderly house, evidence as to events occurring in the house while kept by defendant, prior to the time alleged in the information, is competent.
    3. Disorderly house — evidence of lewd conversations competent. In a prosecution for keeping a disorderly house, evidence of a lewd conversation between a man and two girls in defendant’s barroom, even though the conversation was not in the presence of defendant, is admissible to show the character of the women who made the house a stopping place.
    4. INSTRUCTIONS — copy of civil rights act. An instruction substantially a copy of the civil rights act, sections 42i and 42j of the Criminal Code, without explanation or qualification, when misleading under the evidence, is properly refused.
    5. Instructions — calling attention to particular witnesses. An instruction to the effect that greater care should be exercised “in weighing the testimony of informers, detectives and other persons specially employed to hunt up evidence, than that of disinterested witnesses,” because of its obvious assumptions and because it falls within that class of instructions which call attention to particular witnesses, is properly refused.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 6, 1913.

      Joseph B. FlemiNG and Charles S. KhudsoN, for plaintiff in error.
    Maclay Hoyhe, for defendant in error; Zach Hor-heimee, of conns el.
   Me. Justice Fitch

delivered the opinion of the court.

Plaintiff in error was found guilty, by a jury in the Municipal Court, of keeping a disorderly house in violation of section 57, chapter 38 of the Revised Statutes. Upon the trial he admitted that he ran a hotel, restaurant and bar at the place in question, but denied all knowledge of any improper conduct on the part of his guests and patrons, and denied that he leased rooms for immoral purposes. It was proved, however, beyond any reasonable doubt, that immoral practices were common in his hotel, and without reciting the facts, it will suffice to say that we think the verdict was fully justified by the evidence, and should not be disturbed unless prejudical error was committed of such a nature as to deprive the plaintiff in error of some substantial right.

The chief complaint urged is that the trial court admitted in evidence, over the defendant’s objection, five transcripts of judgments in the Municipal Court, showing that prior to defendant’s arrest, five persons were convicted of “patronizing a common, ill-governed and disorderly house” (naming the house in question), and also introduced the complaints and “half-sheets” (records of the Municipal Court), showing the papers filed, writs issued and orders entered in each of said cases. Prior to the admission of these records, a police detective had testified that on a certain night in February, 1912, he, with other officers, had arrested “a number of couples” whom they found in the house, took them to the police station and “booked” them; and defendant’s counsel having objected to the evidence on tlie ground that the records were the best evidence, the State’s Attorney then introduced the records of the convictions of those persons. Evidence as to events occurring in the house while kept by defendant prior to the time alleged in the information was competent (Parker v. People, 94 Ill, App. 648) and we are inclined to hold that the records were also admissible as tending to show the character of the hotel and its guests. State v. Barnard, 64 Mo. 260. But if it be conceded that they were inadmissible and that the court erred in admitting them, we do not think the judgment should be reversed merely on account of that error, for the reason that there was an abundance of other evidence showing the character of the hotel kept by defendant and of its patrons, and hence the evidence of the records was merely cumulative.

Error is also assigned upon the admission in evidence of a lewd conversation between a man and two girls in defendant’s bar room. Such evidence has been held admissible, even though the conversation was not in the presence of the defendant, to show the character of the women who made the house a stopping place. State v. Toombs, 79 Iowa 741.

An instruction which is substantially a copy of a portion of section 42i and 42j of the Criminal Code (commonly called the “civil rights act”) was offered by defendant and refused by the court. Under the evidence in this case, such an instruction would have been misleading if given without explanation or qualification, and it was not error to refuse it as offered. Nor was it error to refuse the offered instruction to the effect that “greater care should be exercised in weighing the testimony of informers, detectives, and other persons specially employed to hunt up evidence than in the case of witnesses who are wholly disinterested,” because of its obvious assumptions, and because it falls within that class of instructions which call attention to particular witnesses. People v. Campbell, 234 Ill. 391; Hronek v. People, 134 Ill. 139.

Several other minor points are urged, tnit we think they are without merit.

Finding no prejudicial error among the errors assigned and discussed, the judgment of the Municipal Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Fitch

text:
    The People of the State of Illinois, Defendant in Error, v. William B. Lloyd, Plaintiff in Error.
    Gen. No. 18,753.
    1. Automobh.es — violation of speed regulations. In a prosecution for violating the Motor Vehicle Act, §10, for driving a motor vehicle upon a public highway at a speed greater than is reasonable or proper, when the police officer malting the arrest testified that he saw the car coming at the rate of about thirty miles an hour and that it ran half a mile in about a minute, and that he did not time the speed by a watch, though the highway was under the control of park commissioners and ran along a lake, there being practically no houses on the other side, a prima facie case that the speed was greater than reasonable and proper in any of the localities mentioned by the statute is made out and unless overcome by competent testimony is sufficient to support the finding of guilty.
    2. Automobiles — statute does not fix speed limit. The Motor Vehicle Act, in providing what “shall be considered prima facie evidence that the person operating a motor vehicle is running it at a rate of speed greater than is reasonable and proper, having regard to the traffic and the use of the way,” in different localities, does not fix any arbitrary speed limit in any locality, but leaves it to the court or jury to say what is a reasonable and proper rate of speed, having regard to the conditions of traffic and the use made of the highway.
    3. Automobiles — prima facie case shifts burden of proof. In a prosecution for violating the Motor Vehicle Act, §10, when it is shown that the rate of speed exceeds the rate specified in the statute, a prima facie case of guilt is made out for the prosecution, and the defendant is then called upon to meet and overcome such prima facie case, the burden of proof thus nassing from party to party as the case progresses, while the burden of establishing the guilt of defendant as charged In the information continues upon the prosecution throughout the trial.
    4. Automobiles — prima facie case. In a prosecution under the Motor Vehicle Act, §10, where a prima facie case under the statute is made out, and defendant offers no evidence to meet it, the prima facie case becomes conclusive and justifies a finding of guilty.
    5. Automobiles — park highways. Where a court takes judicial notice that a park is within the limits of an incorporated city, and there is no evidence that the park commissioners have passed any regulations concerning speed of motor vehicles on highways within their control, as authorized, the state law governs.
    6. Evidence — opinion of nonexpert witness. In the absence of better evidence where the opinions of nonexpert witnesses are the only method of bringing before the court or jury the fact to be proved, such opinions are admissible as to matters of fact coming within their observation which cannot be otherwise described, such as the speed of motor vehicles and trains, apparent age, physical appearance, intoxication, excitement, condition of health and the like.
    Error to the Municipal Court of Chicago; the Hon. John R. Cavekly, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 6, 1913.
    Jacob C. LeBosky, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Malcolm B. Sterrett, of connsel.
   Mr. Justice Fitch

delivered tlie opinion of the court.

The plaintiff in error was found guilty in the Municipal Court of violating section 10 of the Motor Vehicle Act. The case was tried by the court without a jury, and the evidence showed, without contradiction, that plaintiff in error was arrested while driving an automobile along Sheridan road, between Grace street and Hawthorne place; that at this point Sheridan road runs along the shore of Lake Michigan, and that there are practically no houses on. the west side of it between the streets named; that it is under the control and jurisdiction of the Lincoln Park Commissioners; that there is a bridle path on the lake side of the driveway and that the main driveway is used chiefly.by automobiles; that at the time of the arrest the only other traffic on the street consisted of four automobiles on the main driveway, a cart on the bridle path and a number of persons walking on the sidewalk. The police officer who made the arrest testified that the distance from Hawthorne place to Grace street is about half a mile; that standing at Hawthorne place, he saw the automobile of plaintiff in error coming towards him at a rate of about thirty miles an hour; that he was stationed there for the purpose of watching automobiles on Sheridan road, had been a police officer four years, and that it was his business as such officer, to observe the speed of vehicles; that on that morning he had counted 416 automobiles which passed there in one hour; that it took plaintiff in error about a minute to run from Grace street to Hawthorne place, but that he did not time him by looking at a watch. Defendant testified that he had the machine under perfect control; that when hailed by the policeman, he stopped it in a space of 30 or 40 feet; that he had driven the machine seven years and understood its operation perfectly; that he could have stopped the car at any time so as to 'avoid collision with any person or vehicle upon the road. He did not testify how fast he was going at the time of his arrest. The judgment entered finds the defendant guilty “of the criminal offense of driving a motor vehicle upon a public highway at a speed greater than is reasonable and proper, having regard to the traffic and the use of the way.”

Section 10 of the Motor Vehicle Law begins as follows: “No person shall drive a motor vehicle or motor bicycle upon any public highway in this state at a speed greater than is reasonable and proper, having regard to the traffic and the use of the way or so as to endanger the life or limb or injure the property of any person.” Then follows a provision stating what rates of speed shall be considered prima facie evidence that the person operating a motor vehicle is running it at a rate of speed greater than is reasonable and proper, having regard to the traffic and the use of the way. The rates of speed thus specified are, in substance, as follows: In the business portions of a city, ten miles an hour; in the residence portions, fifteen miles an hour; “outside of the closely built-up portions and the residence portions, ’ ’ twenty miles an hour; “outside of the limits of an incorporated city, town or village,” twenty-five miles an hour; and going around a corner or curve in a highway where an operator’s view of the road traffic is obstructed, six miles an hour.

Defendant’s counsel contends in this court, in substance, as follows: (1) that the statute fixes no speed limits, but merely makes certain specified rates of speed prima facie evidence of what is reasonable and proper in different localities, and therefore what is in fact reasonable and proper speed depends upon the circumstances of each case, so that in some instances a rate of speed exceeding any of the rates mentioned in the statute would not be a violation of the statute; (2) that section 10 of the Motor Vehicle Act has no application to territory contained within a public park; (3) that it only applies when the driver of the motor vehicle exceeds the rate of speed therein mentioned “in one of the four different localities mentioned in said section 10,” and (4) that the information is defective in not stating whether the defendant violated the ten mile rate, fifteen mile rate, twenty mile rate, or twenty-five mile rate of speed, and in not stating what kind of a neighborhood he was in at the time of the alleged violation.

We do not deem it necessary to discuss each of these propositions in its turn. We are inclined to agree with counsel that the statute does not fix any arbitrary or fixed speed limit in any locality, bnt leaves-it to the conrt or jury to say what'is a reasonable and proper rate of speed, having regard to the conditions of traffic and the nse made of the highway; and if the evidence shows that a motor vehicle, when passing through a particular locality, is going at a greater rate of speed than the rate specified for that locality, the statute merely makes that fact prima facie evidence that the person operating the machine is running it at a rate of speed greater than is reasonable and proper under the circumstances. We are also inclined to agree with counsel that the burden of proof to show that fact is upon the prosecution. But the phrase “burden of proof” has two meanings. As a matter of law, the burden of proof is upon the prosecution to prove the guilt of the defendant upon the whole evidence. As a matter of proof, when it is shown that the rate of speed exceeds the rate specified in the statute, a prima facie case of guilt is made out for the prosecution, and the defendant is then called upon to meet and overcome such prima facie ease; and this is often spoken of as the burden of proof. That is, in the sense of the necessity of producing evidence to meet a prima facie case, the burden of proof passes from party to party as the case progresses, while the burden of establishing the guilt of the defendant, as charged in the information, continues upon the prosecution throughout the trial. If a prima facie case is made out by the prosecution, and the defendant offers no evidence to meet it, then the prima facie case becomes conclusive, and justifies a finding of guilty. Vischer v. Northwestern El. R. Co., 256 Ill. 572, 578; Chicago Union Traction Co. v. Mee, 218 Ill. 9; Egbers v. Egbers, 177 Ill. 82. In this case, the only evidence as to the rate of speed was that of the police officer to the effect that defendant was going at the rate of thirty miles an hour, which fact, by the terms of the statute, is prima facie evi-denee that the rate of speed was greater than was reasonable and proper, whether defendant was then driving npon a public highway in the city, or £ £ outside of the limits” of the city. It was, prima facie, a greater rate of speed than was permissible upon a public highway in any locality mentioned in the statute. Hence, it was incumbent upon the defendant to meet and overcome by competent evidence, the prima facie case thus made out for the prosecution. Not having done so, the prima facie case was sufficient to support the finding of guilty. We see nothing in the case of Commonwealth v. Cassidy, 209 Mass. 24, cited by counsel, that is opposed to this reasoning, when considered in the light of the facts here involved.

It is urged that the police officer’s statement that defendant was driving at the rate of thirty miles an hour is not evidence of that fact; that he merely stated an opinion. It frequently happens that in the absence of better evidence, opinions of witnesses are admissible, and in many cases such evidence is the only method of bringing before a court or jury the fact required to be proved. In such cases non-expert witnesses may state their opinions as to matters of fact coming within their observation and which cannot be otherwise described, such as the speed of trains, apparent age, physical appearance, intoxication, excitement, condition of health, and the like, and such opinions are received as evidence of the facts stated. Chicago, B. & Q. R. Co. v. Gunderson, 174 Ill. 495; City of Chicago v. McNally, 227 Ill. 18; Greinke v. Chicago City Ry. Co., 234 Ill. 564; Illinois Cent. R. Co. v. Prickett, 210 Ill. 140. Moreover, the officer stated that defendant drove half a mile in a minute of time, which bears out his opinion as to the speed.

The contention that because Sheridan road is under the jurisdiction of the Lincoln Park Commissioners, it is therefore not within any of the localities mentioned in section 10 of' the Motor Vehicle Act, is ingenious and plausible, but we are of tbe opinion tbat it is not tenable. Courts are required to take judicial notice of tbe limits of incorporated towns and cities, and we, therefore, judicially know tbat tbe portion of Sheridan road in question is witbin tbe corporate limits of tbe City of Chicago. There was no evidence tbat tbe Lincoln Park Commissioners have passed any “ordinances, rules or regulations” concerning tbe speed of motor vehicles upon streets witbin their control, as they are authorized to do by section 12 of tbe Motor Vehicle Act, and we cannot take judicial notice tbat they have ever assumed to exercise tbat power. In the absence of any such showing, tbe state law governs.

As to tbe alleged defects in tbe information, it does not appear tbat such defects were pointed out in tbe trial court, and, therefore, they cannot be urged in this court. If defendant bad. desired a more particular specification of tbe place where it was claimed tbe violation of tbe statute bad occurred, or of tbe rate of speed which was claimed to have been exceeded, be should have asked for it in tbe trial court.

For tbe reasons indicated, tbe judgment of tbe Municipal Court will be affirmed.

Affirmed.


author: Mr. Presiding Justice Gridley

text:
    Reed Manufacturing Company, Appellee, v. John M. Foley, Appellant.
    Gen. No. 17,860.
    Municipal cotjbt — affidavit of merits. Where defendant in a municipal court case files a verified plea that plaintiff is a foreign corporation doing business in this state without a license, and such issue is found against him, he should be permitted to file an amended affidavit of merits showing that he is not indebted to plaintiff.

      Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 6, 1913.
    E. H. Arnold, for appellant; A. N. Waterman, of counsel.
    Jesse G. Henderson and Kai P. Hammer, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Appellee, plaintiff below, commenced an action of the first class in the Municipal Court of Chicago against appellant, defendant below, to recover the value of certain merchandise which it claimed had been sold and delivered to defendant at the latter’s request. Following rule 15 of said court, plaintiff, in lieu of a declaration, filed a statement of claim, supported by affidavit, claiming that there was due it from defendant the sum of $1,189.51. The defendant filed a verified plea in which he alleged, in substance, that plaintiff was a foreign corporation for profit and had not complied with the provisions of the statutes of this state regulating the admission of such corporations to do business in this state, and that therefore plaintiff could not maintain the action. Subsequently, on motion of the defendant, the court granted him leave to file an “amended affidavit of merits” instcmter, and he filed an “amended plea,” verified by affidavit, setting forth in different language substantially the same defense as in the former plea, namely, that plaintiff was a foreign corporation, etc., and could not maintain its action.

It appears from the bill of exceptions that when the cause was called for trial before the court without a jury, the attorneys for both parties stated that they were ready for trial; that plaintiff’s attorney then. stated that as defendant had not filed an affidavit of merits alleging that he had a good defense on the merits to the whole of plaintiff’s claim the claim was admitted, and that the harden of proving the facts set np in defendant’s amended plea as a defense to the action was on the defendant; that defendant’s attorney then stated that he had supposed at the time he filed the plea and the amended plea, and until a few minutes ago, that, if on the trial of the issue made by defendant’s amended plea the court should find against the defendant on that issue, defendant would then he allowed to file an amended affidavit of merits and that a trial of the case would then be had on the merits as to the amount due, if anything, to plaintiff; that the court ruled that any and all defenses must be set out in the affidavit of merits and all issues tried at the same time; that defendant’s attorney then stated that defendant had a complete defense on the merits to the whole of plaintiff’s claim, and moved the court that defendant be allowed to file an amended affidavit of merits to that effect; that the court overruled defendant’s motion and ordered that the cause proceed to trial immediately, and ruled that the one issue to be tried was the issue presented by defendant’s amended plea, and that the burden of proof as to that issue was on the defendant, and that, if defendant failed to make a prima facie case under said amended plea, plaintiff would be entitled to a judgment for the amount as stated in its affidavit of claim; that thereupon it was stipulated that “plaintiff was and is a foreign corporation organized for profit, is not a railroad company, nor in the insurance, banking or money loaning business, * that plaintiff has not conformed with the requirements of the statute of this state for foreign corporations doing business in this state, and that the sole issue to be tried * * * is whether or not plaintiff * * * has been doing business in this state in violation of said statute;” that thereupon the defendant and a witness named Dowling testified, and certain documentary evidence was introduced on behalf of defendant; that the court, on motion of plaintiff, held that defendant had not made out a sufficient prima facie case that plaintiff had been “doing business” in this state in violation of the statute and found the issues for the plaintiff and assessed plaintiff’s damages at said sum of $1,189.51, and subsequently entered judgment upon the finding.

It is urged by counsel for the defendant that the court erred (1) in holding that defendant had not shown, prima facie, that plaintiff had been doing business in this state in violation of the statute, and (2) in refusing to allow defendant to file an amended affidavit of merits and to introduce evidence in support of his contention that he was not indebted to plaintiff in any sum whatsoever.

After a careful examination of the record and the briefs and arguments of the respective counsel, we have reached the conclusion that the judgment in this case should be reversed and the cause remanded for a new trial. We refrain therefore from a discussion of the evidence introduced by defendant in support of the allegations contained in his amended plea. Suffice it to say that we are of the opinion that the court was not warranted in holding that plaintiff had not been doing business in this state in violation of-the statute. The evidence offered by the defendant disclosed certain facts which, uncontradicted, tended to support the allegations of defendant’s plea.

We are also of the opinion that under the circumstances the trial court erred in refusing to allow defendant to file an amended affidavit of merits, as requested by defendant, and in refusing to give defendant an opportunity of showing, if he could, that he was not indebted to plaintiff. Misch v. McAlpine, 78 Ill. 507; Bemis v. Homer, 145 Ill. 567; Merchants’ Nat. Ins. Co. v. Pearce, 84 Ill. App. 255; Northwestern Mut. Life Ins. Co. v. Richardson, 130 Ill. App. 205.

The judgment of the Municipal Court is reversed and the cause remanded.

Reversed and remanded.


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    George W. McGowan, Appellee, v. City of Chicago, Appellant.
    Gen. No. 17,645.

      MaKdamus — reinstatement of police sergeant. Where a petition for a writ of mandamus to he restored to the rank of police sergeant is filed ten years after reduction from such rank, laches bars right to the writ, and indefinite promises of reinstatement and threats of discharge in case of suit are not sufficient excuse.
    Appeal from the Circuit Court of Cook county; the Hon. Adeloe J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed March 6, 1913.
    William H. Sexton, for appellant; Charles M. Haet, of counsel.
    E. G-. Dicus, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On March 31, 1908, appellee filed his petition in the Circuit Court of Cook county for a writ of mandamus to compel appellant “to forthwith place the name of your petitioner on the roster of police officers as sergeant, and upon the police payroll of said City of Chicago as sergeant, to the end that he may at once enter upon the performance of his duties as sergeant, with the same right to continue in the performance thereof and receive salary therefor as he had to continue in the performance thereof and receive salary therefor, prior to his unlawful reduction in rank on March 18, 1898, subject to the laws, rules and ordinances pertaining to sergeants of police of the City of Chicago.”

The petition alleged that the City of Chicago had been a municipal corporation for more than twenty years, and that the legislature of Illinois in 1863 created the offices of sergeants of police and patrolmen of the City of Chicago; that on April 18, 1881, the City, by ordinance, created the department of police, which embraces the superintendent of police, and such number of. lieutenants, sergeants and patrolmen as have been appointed or may be prescribed by ordinance; that for every year thereafter the City has, by its annual appropriation bill, provided by ordinance for sixty sergeants of police; that on December 15, 1884, petitioner was appointed a police patrolman, and on June 2, 1895, was appointed police sergeant by the superintendent of police, by and with the consent of the mayor and city council, and remained such sergeant until March 18, 1898; that during all said time there was, and still is, in force an ordinance of said City providing that the superintendent of police shall have power to remove from the police force any police patrolman, and, with the concurrence of the mayor, he may remove or reduce in rank any officer or member of said department; that on March 18, 1898, the superintendent of police, without the concurrence of the mayor, reduced or pretended to reduce in rank petitioner from the rank of sergeant to the rank of patrolman; that said reduction in rank was illegal and void, because of the fact that it was made without the concurrence of the mayor; that thereafter petitioner made demand upon the City, and upon the superintendent of police and the mayor, to restore his name to the roster of police officers as sergeant, to the end that he might perform the duties of sergeant; that thereupon petitioner was notified by said superintendent that if he persisted in his demand to be reinstated as sergeant, and brought suit for that purpose, he, said superintendent, would discharge petitioner from the police force as a patrolman, which threat petitioner believed said superintendent would carry out; that shortly thereafter petitioner again asked to be reinstated as sergeant and said superintendent and the mayor told petitioner to delay awhile and when the smoke of battle had blown away petitioner would be reinstated as sergeant, but that if petitioner insisted upon Ms reinstatement, or broug’ht suit to be reinstated be would be discharged from the police force entirely; that on account of these threats and statements, made by said superintendent and the mayor, petitioner had delayed filing a mandamus suit for his reinstatement; that petitioner has made demand upon the City that his name be restored to the roster of police officers as sergeant, and to the police pay roll as sergeant, but that the City has refused and still refuses to comply with his reasonable and lawful demand.

To this petition the City filed a demurrer, which was overruled, and on April 12, 1911, the court ordered that a writ of mandamus issue, as prayed. The City prayed and perfected an appeal to tMs court. On December 12, 1911, appellee filed in this court a verified plea of release of errors, to which plea the City filed a replication, and to which replication appellee demurred. By order of this court (see opinion filed January 23, 1913) appellee’s demurrer to the replication of the City was carried back to the plea of release of errors and said plea adjudged insufficient. Leave was given appellee, if he so desired, to join in error and file his brief and argument on or before February 5, 1913. Appellee filed a joinder in error on February 3, 1913, but did not file any brief and argument, and the ease was taken on the brief of appellant on February 13, 1913.

We are of the opinion that the demurrer of the City to the petition should have been sustained. Several reasons might be given for this conclusion but we shall mention but one. The petition discloses that petitioner was reduced in rank from the position of sergeant to that of patrolman on March 18, 1898, but the petition was not filed until March 31, 1908 — a period of more than ten years, and we tMnk that petitioner was guilty of such laches in filing the petition as bars his right to the writ. Kenneally v. City of Chicago, 220 Ill. 485; Schultheis v. City of Chicago, 240 Ill. 167; Preston v. City of Chicago, 246 Ill. 26; O’Neill v. City of Chicago, 175 Ill. App. 435. The petitioner seeks to excuse this long delay in filing his petition by alleging that shortly after his said reduction in rank he made two demands upon the mayor and said superintendent for reinstatement as sergeant, the second demand following shortly after the first, and that an indefinite promise of reinstatement was once made and certain threats of discharge from the force were at both times made. The contention seemingly is that the alleged promise was such as warranted the petitioner in relying upon the same and that the threats amounted to duress. In onr opinion the alleged promise was not one upon which petitioner could rely and does not excuse the long delay in filing the petition. City of Chicago v. Fraser, 60 Ill. App. 404. Nor were the alleged threats a sufficient excuse. Eberstein v. Willets, 134 Ill. 101; Hintz v. Hintz, 222 Ill. 248; Kerting v. Hilton, 152 Ill. 658, 663; Rendleman v. Rendleman, 156 Ill. 568.

The judgment is reversed and the cause is remanded with directions to the Circuit Court to sustain the demurrer.

Reversed and remanded with directions.


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    N. H. Phillips, Appellee, v. Brownell Improvement Company, Appellant.
    Gen. No. 17,891.
    1. INSTRUCTIONS — when error not cured. Error in giving instructions which are peremptory and direct a verdict, but do not embrace all the elements necessary to recovery, is not cured by the giving of other instructions.
    2. Master and servant — when instructions directing verdict erroneous. Where the assumption of risli relied on by defendant is not negatived in each count of the declaration, it is reversible error to give instructions which direct a verdict and refer to the declaration in its entirety, hut do not mention the defense of assumption of risk.
    Appeal from the Superior Court of Cook county; the Hon. George W. Patton, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 6, 1913.
    F. J. Canty, Harry M. McCoNNell and George W. Miller, for appellant.
    Ammen, Streyckmans & JoyNer, Edward Maher and Bernhardt Frank, for appellee.
   Mr. Presiding Justice Gridley

delivered tlie opinion of the court.

This is an action for damages for personal injuries sustained by appellee, a carpenter, hereinafter referred to as plaintiff, while in the employ of appellant, hereinafter referred to as defendant. At the time of the accident, October 23,1908, plaintiff was working on a scaffold underneath a bridge in close proximity to two wires heavily charged with electricity, and, his right arm probably coming in contact with one of the wires, he received burns and fell to the ground, sustaining other injuries by reason of the fall. A verdict for $4,500 was returned by the jury in his favor, judgment was entered against defendant for that amount and costs, and this appeal is prosecuted to reverse that judgment.

The facts are, substantially, as follows: The defendant was engaged in constructing concrete abutments and concrete flooring in this and other bridges of the Gary and Western Bailway Company (hereinafter called the railroad). This bridge was erected to enable the railroad to pass over the right of way, tracks, and trolley wires of the Chicago, Lake Shore and South Bend Bailway Company (hereinafter called the interurban). The bridge “ran a little northeast to southwest,” and the interurban “ran almost due east and west” under the bridge. The bridge was about 60 feet long and between 28 and 30 feet wide from girder to girder. There were two girders, set on edge, 60 to 65 feet long and 8 feet deep, which rested upon the concrete abutments at each end. Between and connecting these two girders were I-beams, which were each about 18 or 19 inches up and down from flange to flange and which were between 12 and 13 inches apart from web to web. False flooring, consisting of planks, had been placed, by plaintiff and other workmen, about ten days before the accident, lengthwise on the under side of the upper flange of these I-beams and braced with boards and sticks resting on the upper side of the lower flange of these I-beams. These braces were put in about 30 or 32 inches apart. Over the steel and false flooring a concrete floor had been laid, and after the concrete had sufficiently hardened it was necessary to remove the false flooring. Portions of this false flooring had been removed, prior to the accident, by plaintiff and a fellow workman named Emery, from a swinging scaffold, up to about four feet from the single track of the interurban underneath the bridge. Six or seven feet east of the bridge and on the south side of said single track of the interurban there was a wooden trolley pole, and about 166 feet from it, west of the bridge, there was a similar pole. From each of these poles an iron arm extended out over the interurban track, which arms supported a one-half inch “messenger cable.” This cable had a sag in it between the poles, and underneath it was a one-half inch copper trolley wire, which was piilled straight, and which was connected with or hung from the messenger cable by means of pieces of galvanized iron, called “clips,” about 12 feet apart. The clips were of varying lengths — those nearest the poles being 23 inches long, others being shorter, according to the sag in the cable. The clip half way between the poles was the shortest, being 5 inches long. There was no insulation between the clips and either the trolley wire or the messenger cable, so that all carried the same current, about 6,600 volts, when the interurban was being operated. The fact that there was no insulation -between these wires could be seen from the ground. Plaintiff testified: “Street cars were running along that street car track. * * * It was a trolley line. I saw that and knew it. * * * I saw those wires there. * * * Both of them were naked so far as I know. * * * I could stand on the ground and see those wires and their condition.” There was a porcelain insulator at the end of each arm where the messenger cable was attached, which also could be seen from the ground. Both the cable and the trolley wire ran under the bridge and there was no connection between either of them and the bridge.

Plaintiff was about fifty years of age, and had been employed by defendant as a carpenter for about two and a half years, working on bridges near Gary, Indiana. At one time he had worked for the Chicago City Railway Company as a motorman, running electric cars operated by means of trolley wires. On the afternoon of the accident Carrick, the foreman in charge of the work, told plaintiff and Emery to get the “carpenter’s horses” and tear out the remaining false flooring. Carrick said: “You two go up and tear out that false flooring while Mr. Kimball and I watch for the cars.” Two wooden horses about 16 feet high were procured and each placed across the interurban track about 16 feet apart, and on these horses a 16-foot plank was laid, south of the trolley wire. Plaintiff and Emery got up on this plank and began to remove some of the false flooring. Before doing so, plaintiff asked Carrick if there was time to take the boards out before a car came along. Carrick consulted a time table and said there was “close to an hour.” The plank was about 5 feet below the lower surface of tlie steel wort of the bridge. After taking out two boards of tbe false flooring, they slid tbe plank along on tbe top of tbe borses, nearer to tbe center of tbe track, and botb men stood on tbe plank facing eacb other and were from about 5 to 8 inches south of tbe cable and trolley wires. Plaintiff’s right side was towards tbe wires. Tbe cable or top wire was about even with plaintiff’s hip, and tbe trolley wire where be was standing was from 8 to 10 inches below tbe cable wire. Emery bad taken out bis end of tbe third board and plaintiff was engaged in hammering out tbe braces at bis end of tbe board with bis right band, steadying himself by bolding on to one of tbe I-beams of the bridge above with bis left band. While plaintiff was so engaged, some part of bis body came in contact with one or botb of tbe wires and a “flash came from bis left band.” No witness seemed to be able to say exactly bow be came in contact with tbe wire or wires. Plaintiff testified:

“I knew at that time that there bad to be an electrical current in one of those wires at least, in order to operate those cars. * * * I knew that tbe trolley wire was charged. I have beard that copper, steel and iron could become charged with electricity. * * * I supposed at that time that tbe lower wire was the one that was charged with electricity. * * * I had been bolding on to tbe I-beam with my band and bad struck this brace a couple of licks before I lost consciousness. * * * Tbe last I remember I struck a glancing blow. I was standing up pounding this brace, when tbe board loosened at the bottom, my arm slipped * * * and came down in contact with that cable. * * I did not see my arm touch tbe wire. I felt nothing. I know my arm bit tbe wire because tbe burn on my arm shows it. I couldn’t have struck tbe trolley wire; that is an impossibility. I am reasoning that I must have bit tbe cable. * * * While I bad ahold of tbe steel I-beam with my left band I watched myself to see that I did not come in contact with tbe trolley wire, because I presumed that tbe trolley wire was dangerous.”

Immediately after the flash, plaintiff reeled and fell from the plank to the ground- — a distance of about 16 feet — where there were rocks and timbers. When his fellow-workmen reached him he was unconscious. He was taken first to G-ary, where a physician attended him, and afterwards to his home, where he received further medical attention. He did not recover consciousness until about 10 o’clock in the evening. It was found that he was burned on the right forearm between the elbow and wrist, also on the palm of his left hand; he sustained severe bruises and was otherwise injured. He. was confined to his bed for about one month, and was unable to walk without the aid of a cane for about eight months.

Counsel for defendant urge that the judgment is erroneous because (1) plaintiff assumed the risk, (2) defendant was not guilty of negligence, (3) the court erred in refusing to admit in evidence a written statement signed by a witness for plaintiff and which was offered for the purpose of impeachment, and (4) the court erred in giving and refusing to give certain instructions.

After careful examination of the record and the briefs and arguments of the respective counsel, we have reached the conclusion that there should be a new trial of this case, because of the giving by the court to the jury of certain instructions, offered by plaintiff, which we think constituted prejudicial error. We will refrain from a discussion of the other points made by defendant’s counsel.

Instructions Nos. 4 and 11, offered by plaintiff and given were as follows:

“4. And the court further instructs the jury that if they believe from the evidence that the plaintiff was injured, as alleged in plaintiff’s declaration, while he was in the exercise of ordinary care, and if they further believe that his injury was caused by the negligence of the defendant, as charged in the declaration, then, under the law, it becomes the duty of the jury to find a verdict in favor of the plaintiff.”

“11. And yon are further instructed, as a matter of law, that if you find from the evidence that the defendant has been guilty of negligence, as alleged in the declaration, and that such negligence caused the injury to the plaintiff, complained of in the declaration, and that before and at the time of such injury the plaintiff was in the exercise of ordinary care for his personal safety, then your verdict should be for the plaintiff.”

The point is made that these instructions ignore the question of assumption of the risk by plaintiff, which was one of the chief defenses in this case. Each instruction is peremptory and directs a verdict. Instructions of this kind should embrace all the elements necessary to a recovery. Herdman-Harrison Milling Co. v. Spehr, 145 Ill. 329; Illinois Terra Cotta Lumber Co. v. Hanley, 214 Ill. 243; Montgomery Coal Co. v. Barringer, 218 Ill. 327, 336. And the error is not cured by the giving of other instructions. Montgomery Coal Co. v. Barringer, supra; Cromer v. Borders Coal Co., 246 Ill. 451. The case went to the jury on all three counts of the declaration. We fail to find in the first count any allegations negativing, either expressly or by implication, the assumption of risk by plaintiff. Nor do we find any allegations in the second and third counts expressly negativing such assumption of risk, and it is questionable whether either count does so by implication. The instructions referred to the declaration in its entirety, and, in the absence of a negation of the assumption of risk by plaintiff in each and every count, the giving of the instructions constituted reversible error. Swengel v. Illinois T. V. Coal Co., 154 Ill. App. 409, 415; Cantwell v. Harding, 249 Ill. 354, 357; Illinois Terra Cotta Lumber Co. v. Hanley, supra; Cromer v. Borders Coal Co., supra.

We are also of the opinion that the court erred, in view of the evidence in this case, in giving to the jury instruction No. 8, offered by plaintiff. Illinois Cent. R. Co. v. Fitzpatrick, 227 Ill. 478, 482; Browne v. Siegel, Cooper & Co., 191 Ill. 226, 233; Klofski v. Railroad Supply Co., 235 Ill. 146, 156; Kath v. East St. L. Suburban Ry. Co., 232 Ill. 126, 132.

For tbe reasons indicated tbe judgment of tbe Superior Court is reversed and tbe cause remanded.

Reversed and remanded.


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    The People of the State of Illinois, Defendant in Error, v. William O’Keefe, Plaintiff in Error.
    Gen. No. 18,224.
    1. Criminal law — vagabonds. A finding that defendant is an idle person living without lawful means of support and is known to be a pickpocket, contrary to Hurd’s St. 1911, ch. 38, §270, is supported by the evidence where three police officers testify that defendant is frequently in the company of pickpockets and is known to be a pickpocket, and two of them testify that they have known him for five years but have never known him to be employed, and defendant does not introduce evidence tending to show that he has any lawful means of support.
    2. Criminal law — burden of proof. In a prosecution under Hurd’s St. 1911, ch. 38, §270, on the ground that defendant is an idle person living without lawful means of support and is known to be a pickpocket, it is incumbent on defendant to show, if he can, that he has lawful means of support where the People introduce evidence that he is known to be a pickpocket and that officers who have known him for five years have never known him to be employed.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. WalKER, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 6, 1913.
    W. W. O ’Brien, for plaintiff in error.
    Maclay HoyNE, for defendant in error; Zach Hoe-heimer, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On December 28, 1911, an information was filed in the Municipal Court of Chicago, which informed the court that William O’Keefe, appellant and hereinafter called defendant, on November 28, 1911, at Chicago, “was then and there an idle and dissolute person living without lawful means of employment or support, habitually misspending his time by loitering about public thoroughfares, public buildings, railway depots and street cars, acting in a suspicious manner and is known to be a pickpocket, contrary to the form of the statute,” etc. A capias was issued and the defendant gave bond to appear and subsequently waived a trial by jury, and on January 10, 1912, was found guilty by the court in manner and form as charged in the information and was adjudged guilty of the criminal offense of being a vagabond, on said finding of guilty, and sentenced to confinement at labor in the house of correction for a term of six months. Defendant by this writ seeks to reverse that judgment. Section 270 of chapter 38 (Hurd’s Stat. 1911) provides :

“All persons who are idle and dissolute, and who go about begging; all persons who use any juggling or other unlawful games or plays; * * • # pilferers; * * * persons who are habitually neglectful of their employment or their calling, and do not laivfully provide for themselves, or for the support of their families; and all persons who are idle or dissolute and who neglect all lawful business, and who habitually mis-spend their time by frequenting houses of ill-fame, gaming houses or tippling shops; * * * and all persons who are known to be thieves, burglars or pickpockets, either by their own confession or otherwise, * * * and having no lawful means of support, are habitually found prowling around any steamboat landing, railroad depot, banking institution, broker’s office, place of public amusement, auction room, store, shop or crowded thoroughfare, car or omnibus, or at any public gathering or assembly, or lounging about any court room, private dwelling houses or out-houses, or are found in any house of ill-fame, gambling house or tippling shop, shall be deemed to be and they are declared to be vagabonds.”

Section 271 mates it the duty of the sheriff, bailiff of the Municipal Court of Chicago, constable, etc., to arrest upon warrant, and, if within the City of Chicago, to bring any such vagabond before said Municipal Court for the purpose of examination; and further provides that if he pleads guilty or is found guilty, he may be sentenced to the house of correction for a term of not less than ten days and not exceeding six months, in the discretion of the court.

It is contended by counsel for the defendant- that the finding and judgment are not supported by the evidence. Counsel argues that it was not established by satisfactory evidence that the defendant had “no lawful means of support,” that this is an essential element to be proved in order to support a conviction, and that the burden of proving it was on the People.

Three police officers of the city of Chicago testified on behalf of the People. Thomas McFarland testified that he arrested the defendant without a warrant on a car at three o’clock in the morning on December 24,1911; that defendant was intoxicated at the time and had his hand in somebody’s pocket; that the defendant separated another pickpocket from him (McFarland) and that he then took defendant into custody; that on September 16, 1911, he saw the defendant on a street car in company with two other pickpockets, and that he saw defendant jump off the car and run away and escape, when one of the passengers claimed to have lost one dollar; that he had frequently seen the defendant in the company of pickpockets and thieves and that he knew the defendant to be a pickpocket; that he had known the defendant for five years, had seen him frequently, and never knew him to be employed. On cross-examination McFarland testified that lie did not know whether or not the defendant had any money at the time the warrant in this case was issued, and that he did not know whether or not the defendant was working at or previous to said time. James Dubach testified that he had several times seep the defendant in the company of pickpockets, had known him for five years and had seen him associated with convicted thieves; that he knew defendant to he a pickpocket and had never known him to he employed, hut that he did not know of his own knowledge whether or not the defendant was working on the day the warrant was issued. Joseph Spie-gal testified that he had seen the defendant in the company of pickpockets, and that he knew him to he a pickpocket, hut that he did not know whether or not the defendant was employed previously to or at the time of the issuance of the warrant.

We are of, the opinion that the evidence sufficiently supports the finding and judgment. The evidence showed that the defendant was known to he a pickpocket and had been seen frequently in the company of pickpockets, and two of the witnesses testified that they had known defendant for five years and had never known him to he employed. Although confronted with this evidence, the defendant did not see fit to introduce any evidence tending to show that he had any lawful means of support. If he had such means of support it was a fact peculiarly within the knowledge of the defendant, and, in view of the evidence introduced by the People, we think it was incumbent upon him to show, if he could, that he had lawful means of support. Harbaugh v. City of Monmouth, 74 Ill. 367; Noecker v. People, 91 Ill. 468; Birr v. People, 113 Ill. 645; Kettles v. People, 221 Ill. 221.

The judgment of the Municipal Court is affirmed.

Affirmed.


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    The People of the State of Illinois, Defendant in Error, v. Edward Conboy, Plaintiff in Error.
    Gen. No. 18,692.
    1. Infoematxost — waiver of defects. Where an information is not signed by the informer, and the accompanying affidavit is signed, if its sufficiency is not challenged by a motion to quash, the formal defect is waived.
    2. Criminal law — sentence to house of correction. Independent of agreement between the County of Cook and the City of Chicago, a sentence to the house of correction of the city is authorized by statute.
    3. Criminal law — judgment order — errors. Where an information charges an offense substantially in the language of the statute, and the defendant is found guilty in manner and form as charged, mere grammatical and clerical errors in the judgment order will not invalidate it.
    Error to the Municipal Court of Chicago; the Hon. Isidore H. Himes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 6, 1913.
    Charles J. Herman, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Zaoh Hoe-heimer, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On June 17, 1912, an information was filed in the Municipal Court of Chicago, informing the court that Edward Conboy, plaintiff in error and hereinafter referred to as defendant, on June 15, 1912, at Chicago, “did then and there with a certain instrument commonly called a rock, said rock being a dangerous and deadly weapon, without any considerable provocation whatever, and under circumstances showing an abandoned and malignant heart, unlawfully, wilfully and maliciously make an assault in- and upon one J. M. Dimick, with intent then and there to inflict upon the person of said J. M. Dimick a bodily injury, contrary to the statute,” etc. The instrument was not signed, but immediately underneath the line where the informer’s signature would ordinarily be written was an affidavit, signed' by John M. Dimick, stating that “he has read the foregoing information by h-- subscribed and knows the contents thereof and that said information and the matters and things therein stated are true.”

The record discloses that upon the filing of the information a capias was issued and the defendant arrested. He waivecl a trial by jury, pleaded not guilty, and upon a hearing, at which he was present and represented by counsel, the court found him guilty in maimer and form as charged in the information, and the court adjudged him “guilty of the criminal offense of wilfully and malicious assault with a deadly weopan without any considerable provication and under circumstances showing an abonded and malignant heart and with intent then and there to inflict a bodily injury on said finding of guilty.” The record further discloses that “it appearing to the court that there is an agreement existing between the County of Cook and the City of Chicago, in said county, to receive and keep in the house of correction in said city all persons who may be sentenced or committed thereto by this court, it is * # * ordered * * # that said defendant, Edward Conboy, because of said judgment of guilty, be and he is hereby sentenced to confinement at labor in said house of correction of the City of Chicago, * * * for the term of three months, * * * and that said defendant * * * be further sentenced to pay * * * a fine in the sum of five dollars and also the costs of this suit taxed at nine dollars,” etc. Defendant seeks by this writ of error to reverse the judgment.

It is first contended by counsel for defendant that the judgment is erroneous because the information is defective, the same not being signed by the informer. We think that the contention is without merit. While the information was not signed, the affidavit accompanying the same was signed by Dimick. It does not appear that the sufficiency of the information was at any time or for any reason challenged in the lower court by motion to quash or in any manner. Had its sufficiency been there challenged the information could have been amended. Truitt v. People, 88 Ill. 518; Long v. People, 135 Ill. 435; People v. Greenberg, 172 Ill. App. 360. The formal defect was waived. People v. Greenberg, supra.

It is next contended that because of the recital, above mentioned, in the order of the court sentencing the defendant, as to an agreement existing between the County of Cook and the City of Chicago, and because no such -contract was introduced in evidence, there is no foundation for the recital or finding by the court, and that the “sentence” is without warrant of law and that, therefore, the “judgment” should be reversed. It does not appear from the record before us what evidence was introduced before the court. Furthermore, the sentence to the house of correction is authorized by statute. Hurd’s Rev. Stat. 1911, chap. 38, secs. 168a, 168b, 448.

It is lastly contended that the judgment should be reversed because the judgment order is “a jumble of strange and meaningless terms.” While several of the words in the order are misspelled, and a comma after the word “injury” is lacking, we think its meaning is plain, when read in connection with other parts of the record. The information charged the offense of an assault with a deadly weapon substantially in the language of the statute, and the court found the defendant guilty in manner and form as charged in the information. We are of the opinion that the judgment order is sufficient (People v. Murphy, 188 Ill. 144; People v. Pearman, 169 Ill. App. 543; People v. Hummel, 170 Ill. App. 571), and the judgment is affirmed.

Affirmed.


text:
    Lorenz von der Leck, Appellee, v. Baldwin County Colonization Company, Impleaded with Henry C. Bartling, Appellant.
    Gen. No. 19,147.
    1. INJUNCTION — positive verification of material facts necessary. To warrant the issuing of a temporary injunction upon the allegations of a bill of complaint, the verification of its material parts must he positive and not merely upon information and belief.
    2. Injunction — verification of material facts sufficient. A hill of complaint which is sworn to he true except as to allegations made upon information and belief, in which the material allegations are positively made, is sufficiently verified for the issuance of an injunction.
    Appeal from the Circuit Court of Cook county; the Hon. Richaed S. Tuthiix, Judge, presiding. Heard in the Branch Appellate
    Court at the October term, 1912.
    Affirmed.
    Opinion filed March 6, 1913.
    W. J. Lavery, for appellant.
    StedmaN & Soelke, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an appeal from an interlocutory order of the Circuit Court of Cook county, entered November 16, 1912, granting an injunction against appellant. The order was that appellant, its agents, employes and attorneys be enjoined and restrained, until the further order of the court, from foreclosing, selling, encumbering or otherwise disposing of two certain notes and real estate mortgages executed by appellee and Louise von der Leek, described in the amended and supplemental bill of complaint of appellee. The order was entered .on condition that appellee file an injunction bond in the sum of $1,200 to be approved by the court, which bond was so approved and filed.

The original bill was filed September 27, 1912, and sought only to obtain an accounting from appellant and Henry C. Bartling. On November 14, 1912, ap-pellee filed his amended and supplemental bill of complaint in which he prayed, among other things, for a preliminary injunction.

Appellant seeks a reversal of the interlocutory order on the sole ground that the amended and supplemental bill is not properly verified. The affidavit is as follows:

“State op IlliNOis,] County of Cook. 3
Lorenz v. d. Leek first duly sworn on oath deposes and says that he is the complainant, in the original bill of complaint and in this, your petitioner’s supplemental bill; that he has read the original bill herein and the amended bill of complaint, and this, your petitioner’s supplemental bill of complaint and that he knows the contents thereof and that the allegations therein are true of his own knowledge, except wherein stated t.o be upon information and belief, and as to those facts so stated to be upon information and belief your petitioner verily believes them to be true.
LORENZ v. d. Leck. Subscribed and sworn to before me this 9th day of November, A. D. 1912.
Marcus J. ColdeN,
Notary Public.
(Seal)”

“To warrant the issuing of a temporary injunction upon the allegations of a bill of complaint, these allegations must, in their material parts, be verified, and such verification must be positive and not merely upon information and belief.” Crawford-Adsit Co. v. Bell, 95 Ill. App. 427, 428; 2 High on Inj. (4th Ed.), sea 1567; Board of Trade v. Riordan, 94 Ill. App. 298, 309; Port Dearborn Safe Deposit Co. v. Rigdon, 166 Ill. App. 334. Upon examination of the amended and supplemental bill we find that, while some of the allegations are stated to be upon information and belief, the material allegations are positively made. By the above affidavit appellee swears that the allegations of the amended and supplemental bill “are true of his own knowledge, except wherein stated to he upon information and belief, and as to those facts so stated to be upon information and belief yonr petitioner verily believes them to be true.” We are of the opinion that the bill is sufficiently verified. Counsel for appellant cites several cases which he says support his contention. Upon examination of those cases, and other similar ones, we find that the affidavits were held to be defective “in failing to distinguish between matters which were stated upon complainant’s own knowledge and those which were stated on information and belief.” Christian Hospital v. People, 223 Ill. 244, 249; Siegmund v. Ascher, 37 Ill. App. 122; Stirlen v. Neustadt, 50 Ill. App. 378. We do not think that the affidavit to the bill in this ease is defective in this particular. Parish v. Vance, 110 Ill. App. 50, 55; James E. Pepper Distributing Co. v. McLeod, 121 Ill. App. 592, 593.

The order is affirmed.-

Affirmed.


author: Mr. Justice McSurely

text:
    The People of the State of Illinois, Defendant in Error, v. Max Friend, Plaintiff in Error.
    Gen. No. 17,549.
    1. Pkostitution — Teasing premises for. A conviction for “knowingly permitting” leased premises to be used and occupied for the practice of prostitution will be sustained where the testimony is clear that the place was openly and flagrantly so used, so as to compel the conclusion that defendant had knowledge thereof.
    2. Criminal law — information in language of statute sufficient. An information in the language of the statute for permitting leased premises to be used for prostitution is sufficient.

      3. CeimiNAl law — sentence to worJc out fine. A sentence ordering defendant to work out a fine of $100 at the rate of $1.50 a day is proper.
    Error to the Municipal Court of Chicago; the Hon. Judson F. Gomo, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed March 6, 1913.
    Louis GreeNberg, for plaintiff in error.
    Maclay IToyne, for defendant in error; Zach Hof-heimer, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff in error, Mas Friend, was informed against in the Municipal Court for violation of the statute which provides that “Whoever maintains a house of ill fame or place for the practice of prostitution or lewdness * * * and whoever shall lease to another any house, room or other premises * * * for any of the uses or purposes finable under this section, or knowingly permits the same to be so used or'occupied, shall be fined,” etc. Par. 57, chapter 38, Hurd’s Revised Statutes. He was found guilty by a jury, fined $100, and ordered to stand committed to the house of correction until the fine should be worked out at the rate of $1.50 per day.

The points relied upon for a reversal are (1) that the information failed to charge an offense. It is enough to say that the information is in the language of the statute, and therefore sufficient. (2) That the proof does not support the allegations of the informa-mation, with special reference to the allegation that plaintiff in error “knowingly permitted” the premises to be used as a house of ill fame or prostitution. The evidence before the jury was that plaintiff in error owned the premises in question and that he lived next door, and the testimony was clear that the place was so openly and flagrantly used and occupied for the practice of prostitution or lewdness as to compel the conclusion that plaintiff in error had knowledge of the same. (3 and 4) That the sentence that plaintiff in error should work out the fine at the rate of $1.50 a day is improper. But such a sentence is authorized by the statute. Section 168a, Hurd’s Revised Statutes 1911.

We find no error in the record, and the judgment will be affirmed.

Affirmed.


text:
    Augusta Dahlberg, Appellee, v. William Grace, Appellant.
    Gen. No. 17,887.
    1. Malicious prosecution—probable cause. In malicious prosecution, a conviction after a full and fair bearing by a court having jurisdiction of the person and the subject-matter, untainted by fraud, conspiracy to procure conviction by false testimony or subornation, or by any undue or unlawful means, is conclusive evidence of probable cause, but' a conviction procured by a conspiracy to procure conviction by perjury is not conclusive as to probable cause.
    2. Malicious prosecution—acting on attorney's advice. In an action for malicious prosecution, where the defendant consulted an attorney in good standing and gave him all the facts before commencing criminal proceedings and acted upon bis advice, the defendant is not liable.
    3. Malicious prosecution—fraud or perjury. The opinion of a medical witness that red pepper in the eye will destroy the sense of sight is one about which medical witnesses might reasonably differ, and no conclusion of fraud or perjury can be drawn therefrom.
    4. Malicious prosecution—payments to witnesses. Moderate payments to witnesses for their time and luncheon are no indication of fraud or inducement to testify falsely.
    5. Appeals and errors—verdict against weight of testimony. While this court is committed to the doctrine that the jury should be the judges of the facts and the weight of the evidence, yet it Is the duty of the court carefully to review the evidence, and when the verdict is clearly and manifestly against the weight of the evidence, it will so find.
    Appeal from the Superior Court of Cook county; the Hon. John McNutt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed with finding of fact.
    Opinion filed March 6, 1913.
    Jesse Holdom and Bither, Goee & Francis, for appellant; Jesse Holdom, of counsel.
    Schuyler F. Lynn and Francis E. Hinckley, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from a judgment obtained by Augusta Dahlberg, hereinafter called plaintiff, against William Grace, hereinafter called defendant, in an action for malicious prosecution. The jury returned a verdict for $22,500 which, by remittitur, was reduced to $12,500.

Defendant has been engaged as a contractor in business in Chicago for many years, and he and the plaintiff have been neighbors and acquainted with each other for a long time. Defendant at one time built for plaintiff an apartment house,' and serious differences between them arose concerning- the work- of construction. There is some testimony touching upon the relations between the parties, to which it is unnecessary to refer at length. Defendant claims that plaintiff con-. stantly annoyed and harrassed him, by accosting him on the street, coming to his office and making threats to kill him, and that at different times she made charges against him, including the charge of seduction and rape. Defendant had her arrested three or four times, acting under the advice of counsel.

On September 15, 1905, defendant and Ms son, Harvey E. Grace, left their office on Wabash avenue, near 14th. street, Chicago, and crossed the intersection of the two streets, intending to take a street car down town. At this time plaintiff approached them, walking west along 14th street. When they saw plaintiff, defendant and his son crossed 14th street and started toward a neighboring livery stable, wherenpon the plaintiff changed her course, going in the same direction; then they started back towards the nsnal place of taking the car, and plaintiff again followed them, and all three met near the center of 14th street about on the cross walk. When plaintiff was three' or fonr feet from the defendant, the testimony tends to show that she took a small bag of red pepper in powdered form from her satchel, and threw either the bag containing the pepper, or some of the contents first and then the bag with its remaining contents, at the defendant. . While some of the pepper fell on his breast, none of it reached his eyes, although some of it did enter the eye of a bystander who was about ten feet away, and the bag itself, with a quantity of pepper therein, fell to the ground and was secured by defendant’s son. After this incident defendant and his son walked toward the livery barn, while plaintiff started to cross 14th street in the opposite direction, but after-wards returned and caught up with them, struck defendant across the eye with the handle of an umbrella, bruising and blacking the face in the immediate vicinity of the eye, but not injuring the eye in any way or causing any serious permanent injury to the face. Apparently plaintiff followed and made other attempts to strike defendant with the umbrella.

Defendant and his son on the same afternoon went to the office of Dale & Francis, their attorneys, and there consulted with Mr. Francis, who was a lawyer in good standing in Chicago, telling him of the occurrence. They were advised by Mr. Francis to swear out a warrant for the arrest of plaintiff for assault with intent to commit mayhem. The following day defendant and Ms son went to the office of Knight & Brown, practicing attorneys in good standing in the city of CMcago, and there consulted with Judge Brown and Mr. King, a lawyer in the employ of the firm. Defendant and his son told these attorneys of the pepper throwing incident, and of the attack with the umbrella. Judge Brown and Mr. King thereupon advised defendant to swear out a warrant and hive plaintiff arrested for attempted mayhem. Before any warrant was sworn out or arrest made, defendant and Ms son, with Judge Brown, went to the office of the state’s attorney for Cook county, and there consulted the chief assistant prosecuting attorney, Harry Olson, now chief justice of the Municipal Court. They told Judge Olson of the red pepper throwing occurrence and of the attack with the umbrella. Thereupon Judge Olson advised the defendant to swear out a warrant for the arrest of plaintiff before a justice of the peace for assault with intent to commit mayhem. Defendant thereafter appeared before a justice of the peace with Mr. King, one of his attorneys, who prepared the complaint and defendant signed it, in which complaint defendant charged that plaintiff did unlawfully assault the complainant with intent to commit mayhem. Thereafter a hearing was had before the justice of the peace and plaintiff was hound over to the grand jury. At a later date defendant was subpoenaed before the grand jury and testified before that body, and the grand jury indicted plaintiff for maliciously attempting to put out the eyes of defendant by throwing red pepper at him. Subsequently there was a trial had on this indictment in the Criminal Court of Cook county, and plaintiff was found guilty by a jury of the crime of assault with intent to commit mayhem; and after the presiding judge had overruled a motion for a new trial she was sentenced to the state pemtentiary for an indeterminate term under the statute. From this judgment plaintiff took the case to the Supreme Court by writ of error, where the judgment was reversed and the cause remanded. Dahlberg v. People, 225 Ill. 485.

The gist of plaintiff’s declaration was that the defendant by means of false swearing and the procuring of false swearing, procured the indictment aforesaid, and through the improper use of money procured witnesses, and by undue influence prevented plaintiff from having a fair trial in the Criminal Court; and that defendant caused false evidence to be given at the trial, and paid witnesses large sums of money, and large sums of money to investigators and detectives in order to procure false evidence against her on the trial, and thereby prevent her from having a fair trial; and that all this was done falsely and maliciously for the purpose of injuring her, and that the indictment was procured without reasonable and probable cause.

There seems to be no disagreement between counsel as to the law which should control this case with reference to probable cause. The rule is correctly stated in Gilmore v. Mastin, 115 Ill. App. 46 (53), where Mr. Justice Adams, speaking for the court, said:

“"While if seems reasonable to hold that conviction, after a full and fair hearing by a court having juris-dition of the person and subject-matter, untainted by fraud, conspiracy to procure conviction by false testimony, or subornation, or by any undue or unlawful means, should be conclusive evidence of probable cause, it seems unreasonable to hold that a conviction procured by a conspiracy to procure conviction by perjury, and so, in fact, procuring it * * * is conclusive evidence of probable cause,” or, in other words, conviction in a criminal case is conclusive proof of probable cause for instituting the prosecution, unless such conviction was brought about by false or fraudulent testimony or other unlawful means. Thomas v. Muehlmann, 92 Ill. App. 571. Therefore, the question before us is as to what proof was made by plaintiff to support her charges that the conviction in the criminal case was brought abont by false or fraudulent testimony or other unlawful means. . Upon tbe trial in tbe Superior Court tbe plaintiff, to support tbe allegations of ber declaration, placed upon tbe stand tbe defendant, and be was interrogated touching bis conduct with reference to tbe trial in tbe Criminal Court. He stated that be never personally gave any witness for tbe state any money, and never indicated that they should be paid; that no money was ever paid under bis instructions, except that be paid Dr. Allport, an expert, $50 for one day; that be bad employed Knight & Brown as bis attorneys, and. that Mr. King, associated with them, was in tbe court room at tbe timé of tbe criminal trial; that be talked with bis attorneys about tbe facts, and talked with Judge Olson.

Defendant’s son, Harvey E. Grace, testifying on behalf of tbe plaintiff, said that be talked with tbe witnesses prior to their going on tbe witness stand; did not talk with them as to any evidence they would give, but about attending court; that they were served with subpoenas and came to see tbe witness about attending court; that be tried to cause them as little loss of time as possible, in order to avoid taking them from their regular employment; that they were compensated for their time and were paid by a young man in tbe office of tbe William Grace Company; that they were paid about $12.00 apiece; that be gave one of them $2.00 one noon to go and get lunch for tbe three of them; and that no other money was spent at their office; that bis father, tbe defendant, did not use any money in reference to that case that tbe witness knew of; that about $40.00 would cover all of tbe expense of tbe money given tbe witnesses; that Dr. Allport was bis father’s personal doctor, and that bis bill was “for professional services to date;” that be was present at tbe time of tbe occurrence on Wabash avenue and 14th street, and saw what was done.

In this connection it should he noted that the Supreme Court in its opinion in the case of Dahlberg v. People, supra, reversed the case upon the ground that after a review and consideration of the testimony of the medical witnesses on the trial in the Criminal Court, it did not clearly appear that red pepper in the eye would destroy the sight, and therefore would not come within the division of the criminal code defining mayhem as an act done by one who “with malicious intent * * * puts out or destroys an eye.” In the opinion of the Supreme Court, the evidence as to the destructive effect of red pepper in the eye was not sufficient to justify the conviction for the crime of mayhem.

It is sought by counsel for plaintiff to show fraud and perjury in the testimony of Dr. Allport upon the trial in-the Criminal Court, where he testified that in his opinion red pepper in the human eye would destroy the sight. The argument that this testimony was perjury seems to he drawn from the fact that other medical experts testified to the contrary, and also because in. the opinion of counsel for Mrs. Dahlberg the force of Dr. Allport’s testimony was considerably weakened by cross-examination. We are not prepared to hold that the testimony of the medical witness, Dr. Allport, was perjury. It was merely opinion evidence upon circumstances about which medical witnesses might reasonably differ. Hence no conclusion of fraud or perjury can he drawn from anything testified to by him.

We have given nearly all the statements of the witnesses William Grace and his son, touching their conduct with reference to procuring the alleged perjured and false testimony in the criminal trial. As these statements were brought out by plaintiff in support of her case, it might well be held that she was bound by them; but we have searched the record in vain for anything tending to show any unlawful means used by the defendant or bis agents in connection with, the trial of the criminal charge against the plaintiff. Naturally he and his son were interested in the outcome of the case, but not more so than any complaining witness in a criminal cas'e might be. We cannot hold that the very moderate payment to witnesses for their time and for luncheon is any indication of fraud on the part of defendant, or any indication whatever that the witnesses were thereby induced to testify falsely. Counsel for plaintiff have failed to indicate any testimony which might reasonably he held to prove that the conviction in the criminal case was brought about by false and fraudulent testimony, or other unlawful means, and we see nothing of this kind in the record.

A further ground of defense is the rule that where a person before commencing criminal proceedings, consults an attorney in good standing and gives him all the facts, and then acts upon the attorney’s advice, he will not be liable in an action for malicious prosecution. Eoss v. Inniss, 26 Ill. 259. There is no dispute between counsel as to this rule of law, but it seems to be contended by counsel for plaintiff that the evidence shows that defendant did not disclose all the facts to his counsel, in which case reliance upon the advice of an attorney would not avail. Turning, then, to the testimony of the defendant, at this time testifying on behalf of the plaintiff, we find that he says that he told Mr. Francis, the first attorney visited, exactly what had occurred; “I told him everything that had happened;” that he told Judge Brown and Mr. King “all the facts about the occurrence, and nothing but the facts;” that when he advised with Judge Olson, then assistant state’s attorney, he told him “all the facts, everything I knew, for the purpose of getting his advice as to what to do.” To the same effect is the testimony of the son, Harvey Grace, also testifying on behalf of plaintiff, and the testimony of these witnesses is corroborated by the testimony of Mr. Francis and Mr. King and Jndge Olson. Indeed, we are pointed to no testimony whatever tending even slightly to show that the defendant did not tell his attorneys all the facts of the occurrence on September 15, 1905, at Wabash avenue and 14th street. „

This court is committed to the doctrine that the jury should be the judges of the facts and the weight of the evidence. Yet it is the duty of this court to carefully review the evidence, and where we believe that the verdict is clearly and manifestly against the weight of the evidence, then we should so find. In the case at bar we are of the opinion that not only is the verdict against the weight of the evidence, but that there is practically no evidence whatever tending to overcome the prima facie effect of the conviction in the criminal case touching probable cause, neither is there any evidence tending to negative the claim of defendant that he acted as he did upon the advice of his attorneys, after having informed them truthfully of all the facts. In our opinion there can be no recovery by the plaintiff upon the record before us, and the judgment will be reversed.

Reversed with finding of fact.