author: Mr. Presiding Justice Freeman

text:
    John Clifford et al., Appellees, v. George F. Hedrick et al., Appellants.
    Gen. No. 16,559.
    1. Corporations—when equity will not interfere in management. Courts of equity in this state will not take cognizance of, and interfere with, the internal management and disciplinary methods of a foreign corporation or voluntary association where no property right appears to be involved.
    2. Corporations—when act requiring foreign, to he licensed, has no application. The act which requires foreign corporations to obtain a license to authorize them to do business in this state, has no application in a case where relief is sought against such corporation.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in this court at the March term, 1910.
    Interlocutory orders reversed.
    Opinion filed December 1, 1910.
    Statement by the Court. This is an appeal from an interlocutory order granting an injunction and also from an order refusing to dissolve.
    The injunction restrains the defendants, who are directors and constitute the General Executive Board of The Brotherhood of Painters, Decorators and Paperhangers of America—a trade union incorporated under the laws of the State of Indiana, December 7, 1894—
    (a) “from revoking or attempting to revoke the charters of Local Unions Numbers 194, 275, 180, 54, 637 and 584 of the Brotherhood of Painters, Decorators & Paperhangers of America;
    (b) “from representing themselves or holding themselves forth as Scandinavian Painters, Decorators & Paperhangers Union No. 194 of the Brotherhood of Painters, Decorators & Paperhangers of America, or holding themselves forth or representing themselves as Local Unions Numbers 194, 275,180, 54, 273, 637 and 584;
    (c) ’ “from revoking or attempting to revoke or cancel the working cards of the members of said Local Unions,
    (d) “or interfering with or attempting to take possession of any of the moneys, funds or other property of said locals,
    (e) “or aid or abet, or attempt to aid or abettor combine to prevent the said members from obtaining work and employment,
    (f) “from threatening, harassing or annoying said members of said locals,
    (g) “from all acts interfering with the objects and purposes of said locals and their members.”
    It appears from the bill that prior to February 5, 1910, there were in Chicago seventeen local unions of the Brotherhood, all of them organized under the powers conferred upon the corporation by its charter, under the provisions of which the members of these subordinate local unions became “full members of this Association upon the terms and conditions prescribed by the constitution and by-laws. ’ ’ These local unions in accordance with the constitution of the Brotherhood were required to be connected with a District Council composed of delegates from all these local unions, known as the Painters District Council No. 3 of the Brotherhood. In 1909 a controversy arose between certain of these local unions over offices and control in said District Council. As a result several of the local unions withdrew their delegates and seceded from the District Council. This action subjected such locals to a revocation of their charters by the District Council under a provision of the Brotherhood constitution. Appeals from such action were taken to the General Executive Board, of the Brotherhood by the seceding locals and also by the District Council. This executive board heard both appeals and in some respects sustained the local unions, but refused to dissolve the Council as urged by the aggrieved locals. It sustained the Council in its objection to the secession of these locals and ordered the latter to return their delegates who had been withdrawn therefrom to the Council. A further appeal was taken by the locals to the General Assembly of the Brotherhood and the action of the General Executive Board was sustained. Thereupon, the said Executive Board officially ordered the seceding locals to return their delegates to the Council by February 3, 1910, upon pain of having their charters revoked in case of disobedience of the order. Six of the locals refused obedience to the order and thereupon the General Executive Board revoked their charters, and directed the respective Treasurers of these six locals to forward the books, papers and moneys in their possession to the General Secretary-Treasurer of the parent body, in accordance it is claimed with the provisions of the constitution of the order. Thereafter on the 10th of February, 1910, the bill in this case was filed.
    The bill is exhibited by seven complainants who allege they are members in good standing of the Brotherhood, but do not specifically allege that they are members of any of the seceding local unions. They state that defendants have threatened to revoke the membership cards of members of said locals as well as the charters of said unions. The defendants are respectively the President, Vice President, Secretary, Treasurer, members of the Executive Board of the Brotherhood and persons described as “agents and servants of said defendants herein named.” It is alleged that the Brotherhood is affiliated with the American Federation of Labor, an organization composed of various international labor organizations of America, which has an affiliated membership of about two million members; that in accordance with a resolution . of said American Federation of Labor adopted in a convention held in 1907 at Denver, and a provision made for that purpose, the Chicago Federation of Labor has organized a sub-department known as the Building Trades Department of the Federation of Labor, and that at a convention of the local unions composing the Brotherhood, there was adopted a resolution providing for and directing the local unions of the Brotherhood “to affiliate with the building trades department of the American Federation of Labor.” It is further averred that prior to said convention there existed in Chicago said Painters District Council, which was the central body to which the various local unions in Cook county sent their delegates and that there were seventeen locals of the Brotherhood so affiliated with said Council; but that after said action by the American Federation of Labor and the national convention of the Brotherhood, certain local unions of the Brotherhood withdrew their delegates from said Painters District Council and were directed by their membership to affiliate with the Building Trades Department of the American Federation of Labor, which they did. The local unions so withdrawing from the Painters District Council were Local Union No. 194, having a membership of about 2,000; Local Union No. 275, with a membership of about 1,300; No. 180, with -about 600; No. 54, with about 200; No. 273, with about 200; No. 637, with about 205; No. 584, with about 75; making a total membership of 4,580. It is stated that certain local unions dominated by one Martin B. Madden, with a membership of about 2,000 members, have not complied with the laws of the American Federation of Labor or are still affiliated with said alleged Painters District Council.
    The bill further alleges that the officers of said Council have received large sums of money from fees and other sources, paid in by members of the Brotherhood, for which they have failed to account, and complainants pray that an accounting of and for such moneys may be taken.
    It is set forth in detail that members in good standing of the Brotherhood under the constitution of the Brotherhood are entitled to certain death benefits, to participate in the fund created for death and disability benefits, and have paid their dues into the Brotherhood upon that assurance. It is alleged the hill is exhibited in behalf of the great majority of the painters, decorators and paperhangers of Chicago and vicinity affiliated with said Brotherhood, and that these cannot secure employment without a working card certifying to their standing in said Brotherhood; that said local unions above mentioned have established sick benefit funds, separate and apart from the gemeral dues and other charges payable to the general organization, and that said sick benefit fund in said locals amounts to about $1,500, in which fund petitioners and other members in whose behalf the bill is exhibited have an undivided interest under the by-laws of said respective local unions in case of sickness, disability or distress, and that said locals are obligated by their by-laws to pay such sick benefits from the sick fund or general fund of said local unions.
    It is further averred that said local unions have-established a general fund from dues, assessments and other sources of income, which fund does not belong to and is not under the control of the Brotherhood, but is subject to the disposal of said local unions, who use it to assist disabled, distressed, sick and delinquent members, and that said general fund amounts to about $20,000, in which complainants and their associate members have an undivided interest.
    Complainants aver that the defendants herein have wrongfully and illegally conspired to wreck and destroy the local unions above mentioned and that they claim the right to revoke the charters of the latter and take possession of their property and funds in violation of the constitution and laws of the Brotherhood to revoke the membership cards of members of said local unions and compel them to join other organizations and surrender all their right, title and interest, in and to the said general and sick benefit funds.
    It is charged that the defendants have wrongfully combined and confederated together to oppose the resolutions of the American Federation of Labor and of the general convention of the Brotherhood and the Building Trades Department of the American Federation of Labor and to compel said local unions to refrain from conforming to said resolutions, that said conduct is illegal and unlawful and will result in irreparable injury and loss to the members of said local unions; that said defendants have demanded and attempted to revoke the membership cards of the members and the charters of said local unions, which purpose is unlawful and if carried out will result in irreparable loss and injury to petitioners and other members of said locals. It is averred that the Brotherhood has no right, claim or interest in and to said sick benefit and other funds.
    It is further averred that local Union 194 is known under the name of Scandinavian Painters & Decorators Union No. 194 of said Brotherhood, and is located in Chicago; that it has been in existence over fourteen years and has a membership of about two thousand members, and that certain of the defendants are attempting to organize and create a new organization with the same name and number, 'which if done will cause irreparable injury, create great confusion in the delivery of mail and prevent the said regular Scandinavian Painters and Decorators Union from receiving mail and communications intended for it.
    Complainants represent that there is no power or authority in the constitution of the said Brotherhood authorizing or permitting the general Executive Board to revoke the charter of any subordinate local; but that nevertheless the defendants purporting to act as the general Executive Board of said Brotherhood in opposition to and in conflict with the laws of the American Federation of Labor and the resolution of the National Convention of the Brotherhood of the Building Trades Department of the American Federation of Labor in Chicago, propose and are attempting and threaten to revoke the charters of the said locals before mentioned, and to organize other local unions with the same names and numbers. There are other averments which it is we think unnecessary to set forth in detail.
    ■ The answer denies that defendants ever attempted to revoke membership cards, but admits that the general Executive Board did revoke on February 5th the charters of said locals and directed that members thereof if they desired to preserve their beneficial standing could do so by transferring to any of the local unions affiliated with the District Council of Chicago. This action it is claimed by defendants while it revoked the authority under which the aggrieved locals acted, did not destroy nor interfere with the rights of their members as members of the Brotherhood. It is admitted that the Brotherhood is a corporation and a Trade Union with, it is said, seventy thousand members; that at its general convention in Cincinnati in December, 1909, a resolution was adopted providing for an amendment to the constitution of the Brotherhood whereby local unions shall affiliate with the Building Trades Department of the Federation of Labor, but it is averred that this amendment is not yet in force and will not be until adopted by a vote of the Brotherhood, which will not be acted upon until later in the present year; that the said aggrieved local unions in whose behalf the bill of complaint is filed withdrew their delegates from the Painters District Council and affiliated with the Building Trades Department of the American Federation of Labor prior to the meeting of the general convention of the Brotherhood at Cincinnati and prior to the adoption of the resolution providing for submission to the Brotherhood of the amendment; and that they had no power to do this before the confirmation by referendum of the proposed amendment. The answer admits that the local unions in question have established sick benefit funds separate from their general dues to the probable amount of $1,500, but deny that petitioners and other members of said local unions have an undivided right in said fund, and show that by the constitution of the Brotherhood, while complainants have a beneficial interest in said fund, the fund is required to be forwarded to the general Secretary-Treasurer of the Brotherhood because on February 5th the general Executive Board by virtue of the power vested in it by the constitution and charter of the Brotherhood revoked the charters of said local unions, for the reason these latter had seceded from the Painters District Council of Chicago. Defendants state that upon such secession the general Executive Board had no discretion in the matter but were compelled by the ' constitution and by-laws to revoke the charters of such local unions so seceding from said District Council. A copy of the constitution of the Brotherhood is submitted and seems to justify in substance the defendants’ contention. Section 173 provides as follows: “All local unions within the jurisdiction of a ’ District Council must be represented in and shall be governed by the rules of said Council. Refusal to be represented in and remain in the same except for a grievance sustained by the General Executive Board shall be penalized by revocation of charter.”
    Bulkley, Gray & More, for appellant.
    Stedman, Soelke & Shutan, for appellees.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

It is not possible within appropriate limits to set forth the provisions of the constitution of the Brotherhood nor all the facts which in our judgment support the action of the general Executive Board and tend to show that the complainants were not entitled to the interlocutory order appealed from under the showing made by the respective parties. We are of opinion that the constitution and by-laws of the Brotherhood of which complainants are members control the gov-eminent and administration of its affairs. It is a foreign corporation, a voluntary association of the internal management and discipline of which a court of equity will not take cognizance where no property rights are involved. The complainants do not show that they have any vested right or title to the moneys or property of the local unions in question. It does not appear that the authorities of the Brotherhood have exceeded or abused the powers vested in them by the constitution of the order.

The complainants have failed to show any sufficient reason for disobeying the constituted authorities of the order. Neither the Brotherhood itself nor the. general Executive Board are by the bill made parties defendant. The bill merely seeks to restrain members of that board as individuals from performing the duties of their offices as officials of the Brotherhood. “Courts will not interfere with the management of the internal affairs of a foreign corporation.” Sprague v. The Universal Voting Machine Co., 134 Ill. App. 379. Nor will a court of equity “entertain a bill by a member of a private corporation against the corporation and its officers to restrain them from expelling the complainant for a violation of its rules and bylaws.” Bostedo v. Board of Trade, 227 Ill. 90, and cases there cited. It was held in People v. Order of Foresters, 162 Ill. 78-86, that interference with the disciplinary powers of voluntary organizations whether incorporated or not “will never be justified unless the exercise of the power has been without jurisdiction or marked by gross injustice or unfairness.” No such state of facts appears in the case at bar. Whatever interest the complainants or said locals in question have in the funds of the local unions is merely incidental to their membership of the Brotherhood, and it is difficult to see how the local unions as such can retain such interest when they have ceased by reason of the revocation of their charters to be connected therewith. See Lawson v. Hewel, 50 Pac. Rep. 763; State Council of the Order of United American Mechanics v. Sharp, 38 N. J. Equity, 24; Grand Lodge K. of P. of New Jersey v. Germania Lodge No. 50 et al., 38 Atlantic Rep. 341. In the Sharp case supra it was said that a Widows’ and Orphans’ Fund “was held by them (the defendants) also subject to the trust to pay it over to the State Council in case of the dissolution of the subordinate one.” The same principle applies in the case at bar.

We are of opinion that courts should not, generally speaking, as stated by Judge Gary in Beesley v. Chicago Journeymen Plumbers Association, 44 Ill. App. 278-285, “interfere with the management of labor unions.”

It is to he borne in mind that in this case the defendants are not the Indiana corporation and it is immaterial whether said corporation is or is not authorized to do business in this State. Said corporation is not in this suit seeking any relief. What is said in Supreme Order Iron Hall v. Grigsby, 178 Ill. 57, is not we think applicable to the case at bar.

For the reasons indicated the interlocutory orders appealed from will be reversed.

Interlocutory orders reversed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    John B. DeVoney, Defendant in Error, v. Thomas Gaynor, Plaintiff in Error.
    Gen. No. 16,643.
    Appeals and erbobs—when writ of error dismissed. A writ of error to review a judgment rendered by the Municipal Court will be dismissed if the stenographic report has been stricken, and the errors assigned cannot be considered in the absence of a stenographic report.
    Error to the Municipal Court of Chicago; the Hon. W. H. Dietrich, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Writ of error dismissed.
    Opinion filed November 18, 1910.
    William H. Tatge, for plaintiff in error; Gavin & Mayer, for defendant in error.
   Per Curiam,

A motion of defendant in error to strike the stenographic report of the proceedings from the record has heretofore been sustained. None of the assigned errors can be considered in the absence of a bill of exceptions or such stenographic report.

On motion of defendant in error, the writ of error will therefore be dismissed.

Writ of error dismissed.


author: Mr. Presiding Justice Mack

text:
    City of Chicago, Defendant in Error, v. Mamie Smith, Plaintiff in Error.
    Gen. No. 14,812.

      Jurisdiction—what matters do not affect conviction for violation of ordinance. If the court rendering a judgment of conviction had jurisdiction of the subject-matter and of the parties, it is immaterial (1) that the arrest was without warrant, (2) that the complaint was filed subsequent to the arrest, (3) that the jury waiver was irregularly signed, and (4) that the judgment order in referring to the defendant was irregular in the use of pronouns.
    Action in debt. Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed December 2, 1910.
    J. Gray Lucas, for plaintiff in error.
    George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Presiding Justice Mack

delivered the of the court.

Judgment in debt for $100= was rendered in favor of the city against plaintiff in error for the violation of a city ordinance.

As the Municipal Court had jurisdiction of the subject-matter and the parties, it is immaterial in this proceeding that she was arrested without warrant, that the complaint was subsequently filed, that she spelled her name Mammie instead of Mamie and so signed it to the waiver of jury trial, that the judgment recites that defendant came in Ms own proper person and that in the judgment order the Superintendent of the House of Correction is directed to confine “him her.”

None of these matters in any way affect the jurisdiction of the court and we cannot, on this record which contains no part of the evidence, review the case on its merits.

Affirmed.


text:
    John F. Devine, Administrator, Appellee, v. Armour & Company, Appellant.
    Gen. No. 15,046.
    1. Child labob law—section 6 construed. Section 6 of the child labor law which provides that “no child under the age of sixteen g?iaU be employed or permitted or suffered to work” has no application unless an employment has actually and legally taken place; a license is not the equivalent of an employment.
    2. Child labob law—section 6 repealed. Section 6 of the act of 1897 is repealed by sections 11 and 15 of the act of May 15, 1903.
    3. Negligence-—question of what attractive nuisance determined. The question of what is or is not an attractive nuisance is ordinarily a question of fact for the jury to determine.
    4. Negligence—what not attractive nuisance. The owner of a dilapidated house cannot he held to a duty to prevent children from coming on the premises to gather wood by tearing it down, especially in the absence of any proof that children without express permission were in the habit of indulging in such practices.
    5. Negligence—duty of owner of building towards licensees. Towards licensees whether adults or minors the .owner owes only a negative duty not to set traps, but no positive duty to exercise care either as to keeping his buildings in repair or to carry on any work that may be done thereon in a careful manner.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Geobge A. Dupuy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed December 2, 1910.
    A. R. Urion and A. F. Reichmann, for appellant.
    B. J. Wellman, for appellee.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

This is an appeal from a judgment recovered for injuries causing the death of Benard Allen, a lad of thirteen years. The direct cause of death was the injury sustained by Allen through the collapse of an old frame building which he and others were destroying for the purpose of taking and carrying away the wood.

Shortly before the'accident defendant had acquired the property with a number of dilapidated buildings thereon. Desiring to erect business buildings on the land, defendant had, on the day before the accident, contracted with a wrecking company for the removal of the old buildings in consideration of the salvage to be obtained therefrom. On the day of the accident, however, one Brown, an employe of defendant, gave leave to decedent and others, men,t women and children, at their solicitation, to enter the premises and to take away the kindling wood from it. They rushed in and proceeded to demolish the structure so rapidly and with such lack of wrecking skill that within fifteen to twenty minutes it suddenly collapsed, falling on the decedent.

While the declaration contains four counts the court withdrew the third count, over plaintiff’s objection, from the consideration of the jury. Cross errors are assigned on this action of the court. The third count was based on the violation of the Child Labor Law and charged that Allen had been employed by defendant in an extra hazardous occupation.

While section 6 of the Act of June 9, 1897, the Child Labor Law, provides that “no child under the age of sixteen shall be employed or permitted or suffered to work” at an extra hazardous employment, the words “permitted or suffered to work” must be limited to such permission and sufferance in the course of an employment, inasmuch as the title of the Act is “An Act to regulate the Employment of Children.” If therefore Brown either had no authority to employ Allen or did not in fact employ him there was no employment and the Act has no application. While defendant, if it had not already made the contract with the wrecking company, might have obtained a benefit from the destruction of the building, it is clear that neither Brown nor the people who engaged in the work regarded the transaction as in the nature of an employment. Unlike the arrangement between defendant and the wrecking company, neither Brown nor decedent and his companions either expressly or impliedly proposed to the other that the work should be done in consideration of the salvage or the salvage given in consideration for the work. The people desired wood; Brown told them that they might take it. While they would have to tear and carry it away in order to obtain that which they wanted, the use of it for kindling, the one was not intended by either party as the consideration for the other. At the best, they were given a license to destroy; but they were not employed therefor. There was in our judgment no employment.

Moreover in our opinion section 6 of the Act of 1897 is repealed by sections 11 and 15 of the Act of May 15,1903. Hurd B. S. 1909, pp. 1079 and 1080.

The court, therefore, did not err in withdrawing this count. The first count charges that defendant desired the building wrecked for its own benefit; that it knew that wrecking such a dilapidated building required special skill but that skilled labor would have cost more than the salvage; that defendant was bound not to allow decedent or others unskilled and ignorant of the dangers of wrecking to enter the building for the purpose of wrecking it in consideration of the salvage; that by permission of defendant they did so enter; and that because of the dangerous condition and because defendant allowed it to be wrecked by unskilled persons it collapsed. The second count is in substance similar to the first except that it charges that defendant’s duty was not to “invite, request, hire, or employ” unskilled persons and that it negligently “invited, requested, hired and employed” them. The fourth count after charging, as do the other counts, that the building was in a neighborhood thickly settled with poor people and small children, “who usually and customarily gather wood for fire wherever allowed and permitted to do so,” alleges that the building in its then condition with old wood on, in and about it, constituted a dangerous and unsafe attraction to small children; that defendant negligently failed to remove the dangerous attraction or make it secure or warn the people of the dangers, and because thereof decedent was allured to the dangerous attraction to get wood.

If there be any substantial difference between the first and second counts, the first may be said to be based upon a mere permission given to the people, whilst the second is based upon a hiring. As herein-before stated, the proof failed, in our judgment, to show a hiring, and even if the count stated a good cause of action the proof totally failed to support the allegation.

The fourth count is based on the principle of attractions dangerous to children to whom, even if trespassers and intermeddlers, the owner owes a duty to exercise care that they be not injured. Assuming that the count states a good cause of action despite the fact that it alleges that children enter such premises to carry away wood only when expressly permitted to do so, and fails to charge that such permission was granted, the allegation of a dangerous attraction has not, in our judgment, been proven.

While the question of what is or is not such an attraction is ordinarily a question for the jury (Stollery v. C. S. Ry. Co., 243 Ill. 290), in this case not the slightest evidence has been offered in support of the allegation. On the contrary, it is perfectly clear that the house itself even in its dilapidated condition would not have attracted the children and that they would not, but for the express permission given, have entered thereon.

While the doctrine of the turntable cases is not limited in this State to those nuisances which are automatically dangerous to children seeking merely amusement, nevertheless the owner of a dilapidated house cannot be held to a duty to prevent children from coming on the premises to gather wood by tearing it down, especially in the absence of any proof that children, without express permission, were in the habit of indulging in such practices.

There is moreover no proof which would justify a jury in finding (what is however not alleged in the count) that the building constituted a dangerous áttraction even to children to whom permission to enter had been given. If the house ever became a dangerous attraction it was only while and because it was in the process of demolition. This count however is based on the claim that the house, because of its dilapidated condition, not a house in process of demolition, had become a dangerous allurement to the decedent.

If the first count, which alleges that decedent with others tore down the building in a negligent manner, can be sustained at all, it must be on the theory that the force of this allegation is counteracted by the further allegation of decedent’s age and ignorance that the work was being done negligently, and on the further theory that a special duty was owing to decedent because of his age. Unless defendant’s duty to such a minor is different from that to an adult, no cause of action is stated, inasmuch as the decedent was, at the best, a mere licensee who came upon the premises solely for his own profit. Towards licensees however, whether adults or minors, the owner owes only a negative duty not to set traps, but no positive duty to exercise care either as to keeping his buildings in repair or to carry on any work that may be done thereon in a careful manner. The exception to this rule is the case of a dangerous attraction; the duty in respect thereto is, however, not dependent upon the license. Even an infant trespasser, in case of a dangerous attraction, has rights greater than those of an adult licensee.

This first count however is not based upon the allurement of a child by a dangerous attraction; and if it were, the evidence, in our judgment, would not sustain the charge. While such a building in process of destruction may be dangerous, the danger is not hidden from a child of decedent’s age, while disclosed to an adult. This lad was not a mere baby. He was at least up to the average of his age. He knew as well as an adult that such a building in such condition and under such handling must fall. There is no evidence to support the allegation ot his ignorance. The defendant therefore is not liable even if Brown was its agent for the purpose of giving permission to tear down the building.

We are of the opinion however that the evidence in the case demonstrates that he had no such authority either actual or apparent.

The judgment must therefore be reversed.

Reversed.


text:
    Dominick Owens, Appellee, v. Chicago Telephone Company, Appellant.
    Gen. No. 15,059.

      Negligence—physical contact essential to liability. In an action to recover for personal injuries occasioned by the negligent insulation of electric wires with a consequent attraction of lightning, it is essential that the physical contact -with the lightning, rather than mere shock as a result thereof, be shown to establish liability.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richaed W. Clifeoed, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed December 2, 1910.
    Rehearing denied December 16, 1910.
    Holt, Wheeler & Sidley, for appellants.
    Alfred T. Johnson and McGoorty & Pollock, for appellee.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

Appellee recovered a judgment of $2,600 for alleged permanent injuries sustained by him when three and a half years of age.

His mother with her four children, one younger and two older than plaintiff, were in a room of their home during a heavy thunder and lightning storm. A flash was seen, also some smoke. Plaintiff, who was on the floor, became unconscious, and a clock and looking-glass on the wall were broken.

We may assume for the purposes of this decision that by the negligence of defendant in leaving two wires one and one-half inches apart, without proper insulation or safety devices, after disconnecting a telephone instrument in the house, it facilitated electrical disturbances during the lightning storm and that thereby the lightning flash was produced. We may further assume that plaintiff has suffered from S.t. Vitus dance as the result of the day’s occurrences.

But to render the defendant liable under the law of this State it is conceded that the burden is on the plaintiff to prove that the injury was produced by a shock due to the impact of some outside force and not to the shock of the nervous system caused solely by the fright or fear. In other words, plaintiff concedes that the burden is on him to show that he was struck by the lightning, not merely that a flash of lightning passing between the two telephone wires and out of the room frightened him into insensibility and consequent nervous disease. Braun v. Craven, 175 Ill. 401.

Whether under the given conditions the lightning, if in fact it came into the room through the defendant’s wire, could have been diffused throughout the room and could therefore have struck plaintiff, or whether, entering through one wire it must have leaped directly over to the opposite wire, the end of which showed a slight fusing effect, was eminently a question to be decided by scientific inquiry and evidence. Only one expert witness was produced to testify on this point. His qualifications are clear, his lack of interest is shown, and there is no reason, presented in this record, to doubt either his ability or his truthfulness. He testifies clearly and unequivocally that under the conditions presented by the evidence the lightning, if thus introduced (and if not so introduced defendant would not be liable at all) could not have diffused itself through- the room so as to strike the boy, but that, on the contrary, it must have leaped directly from the end of the one to the end of the other wire and then passed out again; that the flash was produced by the leaping from wire to wire and the smoke by the fusing of the end of the wire.

Under this evidence it was impossible for the lightning, if introduced over defendant’s wires, to have caused the break in the clock and the mirror. The fact that they were broken at this time may be explained by the jar to the house itself caused either by the same or some other stroke of lightning. It cannot, however, particularly when coupled with the fact that no marks or bruises were at any time observable on plaintiff, justify the jury, in view of the uncontradicted expert evidence on a technical scientific proposition, in finding for the plaintiff. His injuries if they in fact were caused at this time, were due not to the shock of a lightning stroke hut to the fear produced in him when he observed the flash of lightning.

The judgment must therefore be reversed with a finding that defendant is not guilty.

jReversed.


text:
    James H. Prouty, Administrator, Appellant, v. City of Chicago, Appellee.
    Gen. No. 15,072.
    1. Statutory law—canons of construction. A statute primarily in its nature designed to protect municipal corporations from trumped-up claims, should be literally construed in favor of such corporations so sought to be protected.
    2. Notices—law concerning personal injuries construed. This law which requires notice to municipal corporations of personal injuries sustained, etc., applies to a right of action arising from death caused by wrongful act.
    3. Statute oe limitations—when new cause of action set up. In an action by an administrator for death caused by the wrongful act of a municipal corporation an amended count sets up a new cause of action which differs from the original count in that it sets up for the first time the serving of the notice required by statute.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed December 2, 1910.
    Chytraus, J., dissenting.
    George E. Gorman, James A. Brady and Brady, Barnum & Rutledge, for appellant.
    Edward J. Brundage and John R. Caverly, for appellee; Edward C. Fitch, of counsel.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

This is a suit brought by the administrator of one Doyle on behalf of his widow and next of kin for negligence producing injuries on October 27, 1906, which caused his death on the same day. The original declaration was filed November 21,1906. On April 17, 1908, an amended declaration was filed, to which the city pleaded the statute of limitations. A demurrer thereto was overruled,- the suit dismissed and judgment for costs rendered against the plaintiff, who prosecutes this appeal. The additional counts contained the additional allegation of the service of notice by plaintiff upon the city on November 13, 1906, in accordance with section 2 of the Act of May 13, 1905. Hurd R. S. 1909, p. 1248.

The questions raised are: 1st. Is such an allegation essential—that is, is such a suit by an administrator a suit “for damages on account of any personal injuries” within the meaning of the statute? 2nd. If it is, does the amendment supplying this defect state a new cause of action so as to be barred if filed more than one year after the death?

If the first question is answered in the affirmative, the second is also answered affirmatively by the Supreme Court in Walters v. City of Ottawa, 240 Ill. 259, an authority binding upon this court. An affirmative answer to the first question necessarily follows, in our judgment, from the decision of the Supreme Court in Mooney v. City, 239 Ill. 414, following Crane v. C. & W. I. R. R. Co., 233 Ill. 259, wherein the courts held that a suit by an administrator under the Act of 1853 is not a suit on a new cause of action, that is that the death is not the cause of action, but that it is a suit on the same cause of action that the deceased had, for the wrongful act, neglect or default, although with a different measure of damages. See too, Devine v. Healy, 241 Ill. 34.

If the suit by the administrator is on the identical cause of action that the deceased had, and if the latter’s cause of action was one for personal injuries, the logical, and we think the correct, construction of the statute as to notice is, that it applies as well to the administrator’s suit as to one that the injured person might have brought in his lifetime; that both are suits for damages on account of personal injuries.

Moreover every reason that can be urged in favor of changing the common law by adding the statutory ■ requirement of notice before suit, applies as well to the one as to the other proceeding.

Section 1 of this Act changes the period of limitations from two years to one year from the time of the injuries for an action by one “for injuries to his person.” This section, it is true, has no application to a suit by an administrator, for such a suit is not for injuries to the plaintiff’s person. It was however unnecessary to enact a new limitation law for such actions inasmuch as the Act of 1903 had limited the time for an administrator’s suit to one year from death. But the fact that section 1 does not relate to an administrator’s suit is no ground, in our judgment, for narrowing the natural meaning of the phrase —“personal injuries”-—used in section 2 and for making it synonymous with “injuries to plaintiff’s person. ’ ’

Nor can we find any justification for interpreting section 2 so as to require notice in actions by a father or husband for loss of services due to personal injuries to a child or wife, which cause of action accrues at the moment of injury, and not in actions by an administrator for personal injuries causing death, inasmuch as section 2, while clearly contemplating that the person injured may be a different person from the plaintiff, also contemplates that the cause of action in some cases, may accrue at a time different from that of the injury.

This statute is remedial in its nature. It aims to protect municipal corporations from trumped up claims by requiring prompt notice of the particulars of the accident and the means of verifying them. It should be literally construed in favor of the municipal corporations which it aims to protect. The same dangers exist whether the one claiming to have been injured lives or dies. Inasmuch as the title of the act and the language of section 2 are both broad enough to comprehend both classes of cases, and as the mischief aimed to be avoided exists in both cases, we are of the opinion that it was the duty of the administrator in this case to have given the notice within six months after his appointment. Crapo v. City of Syracuse, 183 N. Y. 395.

Inasmuch as the giving of 'the notice was not pleaded in apt time, we are constrained under the decision in the Walters case (supra) to hold that the trial court did not err in overruling the demurrer to defendant’s plea of the statute of limitations.

Affirmed.

Mr. Justice Chateaus dissents.


text:
    Thom Express and Storage Company, Appellee, v. Kemper Brothers Company, Appellant.
    Gen. No. 15,086.
    1. Contracts—burden of proof to establish. The burden is upon the plaintiff relying upon a contract as his basis of recovery to establish by a preponderance of the evidence the terms thereof.
    2. Evidence—what does not establish preponderance. A preponderance is not established by the testimony of one witness directly contradicted by two at least equally credible witnesses, one of whom was called by the plaintiff itself.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed December 2, 1910.

      Christian Meier and Paul C. Meier, for appellant.
    Defrees, Buckingham, Ritter & Campbell, for appellee; Dorrance Dibell Snapp, of counsel.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

Defendant company agreed with one C. M. Thom to buy in property at a receiver’s sale under bankruptcy proceedings against Thom and to resell to a company to be formed by Thom. After the receiver’s sale and the subsequent incorporation of plaintiff company, defendant renewed the original offer to plaintiff company which claims that it accepted it by resolution of its directors communicated to defendant. There is however a conflict as to the terms. Thom testifies that plaintiff was not to pay attorney fees and that there were no other conditions. Kemper, whom plaintiff first called as its own witness, and defendant’s attorney who conducted the negotiations, directly contradict Thom’s testimony. There are no circumstances surrounding the transaction which would lend additional weight to either side. The burden was on the plaintiff to establish the terms of the contract and its compliance therewith. This it has failed to do. A preponderance is not established by the testimony of one witness, directly contradicted by two at least equally credible witnesses, one of whom was called by the plaintiff itself.

As there is no suggestion that plaintiff was ever ready and willing or offered to perform its obligations under the terms of the contract established by the preponderance of the evidence, as in fact it refused so to do when demand was made upon it by defendant, it cannot now hold defendant liable for a breach of contract because, subsequently to the demand and refusal, defendant disposed of the goods.

The judgment in favor of plaintiff must therefore be reversed.

Reversed.


text:
    Catherine Goldring, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,096.

      Verdicts—when not disturbed as against the evidence. If the jury are justified in crediting the witnesses of the prevailing party and their evidence tends to sustain a correct legal theory of recovery, the verdict rendered will not be disturbed in the absence'of errors of law having intervened.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed December 2, 1910.
    Benjamin F. Richolson and Ferdinand Goss, for appellant; John R. Harrington, of counsel.
    Edward R. Litzinger, for appellee.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

This is an appeal from a judgment for $500 for injuries which plaintiff, a passenger on defendant’s car, claims she sustained by reason of defendant’s negligence in suddenly starting the car while she was in the act of alighting. The conflict in the evidence is as to whether the accident occurred before or after the car had come to a stop. Under proper instructions, the jury has determined this conflict in her favor. She is corroborated in her version by two witnesses while defendant’s version that she stepped from the car while it was in motion and before it had stopped is supported by three witnesses.

On a careful consideration of the entire evidence we cannot hold that the jury were not justified in crediting the plaintiff’s witnesses and in determining that she had sustained the burden of establishing her case by a preponderance of the evidence. '

There were no direct physical injuries produced by the fall but within a day thereafter plaintiff had a recurrence of exopthalmic goitre, which she had had in severe form a year before, but the effects of which had practically disappeared prior to the accident though she was not entirely normal. While defend- ■ ant’s expert witness testified that a fall could not produce such a recurrence, the jury were justified under the evidence in believing plaintiff’s physician that the shock resulting from the fall could, in view of plaintiff’s condition, be the cause of the recurrence -and in finding that it was the cause in this case.

The judgment will be affirmed.

Affirmed.


text:
    George Gliebas, Appellee, v. Spring Valley Coal Company, Appellant.
    Gen. No. 15,103.
    1. Mines and miners—what an assumed risk for lohich operator not liable. An injury resulting to a miner from a fall of coal from the face of the vein not occasioned by the act of the operator or resulting from the non-performance by him of any of his statutory or common law obligations, will not impose liability upon him, the risk of injury from such a cause being an assumed risk.
    2. Verdicts—when set aside as against the evidence. A verdict clearly and manifestly against the weight of the evidence will be set aside on review.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed December 2, 1910.
    Mastin & Sherlock and Frank Crozier, for appellant.
    Johnson, Belasco & McCabe, for appellee.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

A judgment was rendered in favor of plaintiff on the verdict of a jury for $821 for injuries sustained by him in a coal mine accident. The basis of his claim was the alleged willful violation of the statutory duty to provide when demanded, “a sufficient supply of props delivered at the usual place for the securing of the roof by the miners. ” R. S. ch. 93, sec. 16.

Plaintiff contended that he had made a proper demand and that defendant had willfully failed to comply therewith; and that as a result of the failure to obtain the props, he was unable to strengthen the roof which gave way, falling on him and causing severe injuries.

To succeed under these pleadings in this cause plaintiff must prove each of these allegations by a preponderance of the evidence.

Defendant claims that none of them has been thus sustained; that no demand was made; that in any event there was a full supply of props on hand; that the injury was due, not to a fall of rocks from the roof, to strengthen which the props are used, but to a fall of coal from the face of the vein. If it was so caused, then there would be no liability not only because props would be useless to prevent it, but also because such an accident is one of the assumed risks and not within the scope of the statute.

In view of the conclusions reached by us, it is unnecessary to consider any of the errors assigned by appellant other than the main one that the preponderance of the evidence fails to support plaintiff’s claims.

The evidence shows that in mining operations in this state a shaft is sunk into the ground to the seam of coal. Through this shaft is operated a cage for the purpose of hoisting coal from the mine, and as a means of ingress and egress for the miners. From the bottom of the shaft radiate entries, in mining parlance called the main or straight entries. From these entries other entries lead off to the working places which are called rooms. Along these entries are laid tracks on wMch are operated small cars having a capacity of something like two tons. In mining, the miners cnt in under the seam, pulling the dirt and rock from under the coal, so that it is “squeezed” down by the weight above, which causes it to fall, sometimes catching the miner. After the coal is removed the miner then removes about half a foot to a foot of loose rock from the roof. As the work progresses the miner supports the roof as he goes along with props provided for that purpose. The vein at the working place is referred to as the face of the coal and in this room was four feet thick.

On November 3, 1903, plaintiff was caught by a fall, either of coal from the face or of rock from the roof, and sustained the injuries complained of. All the witnesses for both parties agree that there was a fall of coal. But plaintiff contends that in addition to the fall of coal there was a fall of rock from the roof. In this he is corroborated in a measure by two but clearly contradicted by four witnesses. Nobody saw the coal or rock as it fell. The fall of coal could not have come from the roof. It could only come from the face of the vein, as this is the only place that had any coal. The roof is soapstone rock.

Where then lies the truth? We must examine the surrounding circumstances. According to the testimony of the plaintiff he was bending over, with a shovel in his hand, when the fall came right out of the roof on top of him. The fall was estimated by the witnesses as being about three to four cars, and according to the plaintiff that entire fall came right on top of his back. The only injury however that he sustained was a simple fracture of one leg below the knee, together with an injury to one toe on the same foot.

A careful consideration of the evidence compels us to assent to defendant’s argument that plaintiff’s version of the accident is improbable. A man in a stooping position, receiving on his back a fall of several tons of rock, -would in all probability sustain some injury to his back and to his head. It would be a most remarkable thing if he should escape such injury. Moreover, Stevenson, who was no longer in defendant’s employ at the time of the trial and who working in the same room the day after the accident and later, found the roof then in good condition, testified that plaintiff, whom he claims to have found not under the rocks but seated on a chunk of coal, told him that the coal had broken his leg.

No evidence was offered in rebuttal denying that plaintiff had made such a statement.

The preponderance of the evidence is against plaintiff’s contention that a fall of rock from the unsupported roof caused the injury. Moreover, in our judgment the clear preponderance of the evidence is that there was an abundance of props on hand. While the plaintiff is supported, by one "witness in his testimony that he demanded props on Tuesday, the morning of the accident, a demand denied by the defendant’s witness, no evidence is offered as to what disposition was made of the 30 or 40 props testified to have been delivered on the preceding Saturday. Inasmuch as plaintiff himself testifies that he had demanded props several days before as well as on the day of the accident, but does not, in rebuttal, deny that these had been delivered on Saturday, we should not disregard the testimony thereof, if we were disposed to concur, as we are not, in counsel’s contention that it is improbable.

We have carefully considered not only the abstract but the entire record and regrettable as is such an accident and injury to plaintiff, we cannot concur in the judgment of the lower court, under which defendant, contrary to what seems to us the clear weight of the evidence, is made responsible therefor. The judgment must be reversed.

Reversed.


text:
    William Hurley, Appellee, v. City of Chicago, Appellant.
    Gen. No. 15,109.
    1. Appeals and errors—when absence of evidence to support count cannot be availed of. If no motion to direct a verdict upon a particular count not sustained by any evidence is made, a general verdict will not be disturbed if the evidence sustains any count in the declaration.
    2. Appeals and errors—when motion in arrest does not lie. A motion in arrest does not reach the question of the sufficiency of the evidence to sustain a particular count of the declaration.
    3. Pleading—how propriety of joinder of counts determined. Whether or not causes of action are properly joined depends not upon proof of the allegations contained therein but on the allegations themselves.
    Action in case for personal injuries. .Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed December 2, 1910.
    Edward J. Brundage and John R. Caverly, for appellant; Robert W. Dunn, of counsel.
    John C. King and James D. Power, for appellee.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

After filing a declaration in May, 1904, in a suit against the city for negligence causing injuries alleged to have been sustained in August, 1903, additional counts were filed, in October, 1904, based on other negligence of the defendant causing injuries alleged to have been sustained in March, 1900, when plaintiff was six years of age.

Evidence on behalf of plaintiff, though controverted, tends to prove that the injuries, which resulted in his becoming a humpback by localizing in his spine tubercular germs, which theretofore had had no apparent effect on Ms health,- were sustained in March, 1900, and were due to defendant’s negligence. Plaintiff’s version of the first accident is, that while he was playing on a high wooden sidewalk and leaning against a post which had formerly supported the railing along the inner edge of the walk, he was pushed by one of the other boys and, because of the absence of the railing, fell to the lot, some four feet below, striking his back on a stone. The city’s negligence consisted in failing, for a period of several months, to repair a torn down railing wMch had formerly adjoined the walk, thereby rendering the sidewalk dangerous, particularly to children.

While the jury might have found against the plaintiff because of the conflict on some points in the evidence, on a careful consideration thereof we are of the opinion that the verdict is not against the weight of the evidence.

No sufficient evidence of negligence in 1903 was introduced, and if requested the court should have directed a verdict for defendant on the original counts. But no motion therefor was made.

Defendant complains, however, that certain instructions, while stating correct principles of law, could not have been applicable to the second accident and that perchance the jury found against the plaintiff on the first accident and, misapplying the instructions, erroneously found for him on the second accident. The instructions complained of, however, not only were correct in themselves, but they so plainly referred to the conditions of the first accident that the jury, in our judgment, could not have misapplied them.

Moreover, practically the entire evidence in the case was directed to the first accident; it was tried as if the original counts had been withdrawn. That defendant itself was of tMs view is evidenced by an instruction given at its request, in which the jury were directed, in ease they found certain facts in respect to the first accident in defendant’s favor, to find the defendant not guilty. The direction for defendant in that event, which was not merely as to the additional counts but as to the entire case, would have been clearly erroneous if the parties and the court had considered that the question of the second accident was still in the case.

Defendant further complains that its motion in arrest of judgment was overruled. It based the motion, not on any defect in any of the counts, or on any original misjoinder of actions, but on its contention that when the original counts are not sustained by the evidence it becomes apparent that there has been a misjoinder of counts, a joinder of false claims with good claims. The case of Chittick v. Town of Lake, 43 Ill. App. 632, cited by defendant, is no authority for this contention. In that case each count was held bad not only as unsupported by the evidence, but as failing to state a good cause of action.

Whether or not causes of action are properly joined depends, not on the proof of the allegations contained therein, but on the allegations themselves. The counts in this action on the case, each stating a good cause of action against the same defendant and by the same plaintiff, were properly joined.

A motion for an instruction in its favor on the original counts, and not a motion in arrest of judgment, was the proper method of securing the relief which defendant desired. In the absence of such a motion a general verdict will be upheld if the evidence sustains any count in the declaration.

The judgment in this case must therefore be affirmed.

Affirmed.


text:
    Nyberg Automobile Works, Defendant in Error, v. H. A. Devaux et al., Plaintiffs in Error.
    Gen. No. 15,211.
    1. Trial—power of court to reopen case. It is within the discretion of the trial court to permit a party to introduce additional evidence after he has rested his case and no abuse of discretion is shown where the court permitted an oversight to be corrected.
    2. Instructions—when province of jury not invaded. A statement by the court to the jury of the amount calculated by a witness as due upon a note in suit is not error where the court would have been justified in primarily directing a verdict.
    Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed December 2, 1910.
    Prentiss, Putney, Meek & Solberg, for plaintiffs in error; G. P. Sayers, of counsel.
    Charles Daniels and Sumner C. Palmer, for defendant in error.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

While in this case defendants were defaulted for want of an affidavit of defense to a suit on promissory notes, nevertheless the jury were sworn to try all the issues, and the defendants had full opportunity to make any defense that they had. They participated in the jury trial. The justice of the judgment based on defendants’ notes is too clear for discussion. That the court allowed plaintiff to introduce the notes in evidence after it had rested its case and defendants had asked an instruction in their favor is no ground for reversal. There was clearly no abuse of judicial discretion in thus correcting an oversight.

If requested, the court should and would have directed a verdict for plaintiff for the amount found due. There was therefore no error in the court stating to the jury the amount that had been calculated by a witness and testified to by him.

Affirmed.


text:
    Frank Schoenfeldt, Plaintiff in Error, v. Henry Reineck, Defendant in Error.
    Gen. No. 15,215.

      Verdicts—when not disturbed as against the evidence. A verdict will not he set aside as against the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed December 2, 1910.
    Rehearing denied December 16, 1910.
    Howard E. Leach, for plaintiff in error.
    Sullivan & Jarrett, for defendant in error.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

Plaintiff sued for $75 on an alleged agreement to pay for extras. Defendant denied the agreement and counterclaimed for $22.94 for groceries supplied. A jury was waived; and judgment was rendered in favor of defendant for $22.94 on findings by the court.

No question is raised as to the counterclaim.

Plaintiff was architect and contractor. He was paid in full the contract price for a small building. In digging for the foundation it was found that a neighbor’s house projected on defendant’s ground which plaintiff claimed necessitated a change in the plans; that he told defendant this would cost $75 of which he would stand $25 if the defendant would pay $50 and that defendant agreed. Defendant claims that he never so agreed bnt told plaintiff he could have the damages which plaintiff said could be gotten from the neighbor.

While plaintiff is supported by two and defendant by only one witness, we cannot say that the evidence so clearly preponderates in plaintiff’s favor as to justify a reversal.

Affirmed.


text:
    F. A. Bingham, Plaintiff in Error, v. Joshua L. Jones, Defendant in Error.
    Gen. No. 15,237.

      Verdicts—when not disturbed as against the evidence. A verdict' will not be set aside as against the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed December 2, 1910.
    F. A. Bingham, plaintiff in error, pro se.

    Michael Feinberg, for defendant in error.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

Plaintiff claims to have loaned money to the defendant and to have performed legal services for him. His testimony is in part supported by that of his stenographer. It is directly contradicted by defendant who claims that all the money was advanced in part payment for certain shares of a corporation of which plaintiff was a director, and defendant the principal share holder and that the legal services, too, were for the corporation.

The surrounding circumstances support defendant. A jury believed him; the trial judge concurred, and we cannot find that the preponderance of the evidence is against their conclusion.

If we had considered only the abstract in this case we might have reached a contrary conclusion. The record however gives a different impression from that conveyed by the totally inadequate abstract. .

Affirmed.


text:
    John Stabel, Defendant in Error, v. Thomas Raymond, Plaintiff in Error.
    Gen. No. 15,774.
    Appeals and errors—effect of striking till of exceptions. If the bill of exceptions is stricken and the errors assigned are predicated only upon matters contained therein, an affirmance will be ordered.
    Error to Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed December 23, 1910.
    L. C. Cooper, for plaintiff in error.
    Tolman, Redfield & Sexton, for defendant in error.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

The bill of exceptions having been stricken from the record, the errors assigned therein cannot be considered. The judgment is therefore affirmed.

Affirmed.


text:
    E. F. Ringer, Appellee, v. William C. VanGilder, Appellant.
    Gen. No. 16,474.
    Appeals and ebbobs—effect of striking biTl of exceptions. If the bill of exceptions is stricken and the errors assigned are predicated only upon matters contained therein, an affirmance will be ordered.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed December 23, 1910.
    Beach & Beach and Charles C. Spencer, for appellant.
    White, Mabie & Conkey, for appellee.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

The bill of exceptions having been stricken from the record, the errors assigned therein cannot be considered. The judgment is therefore affirmed.

Affirmed.


text:
    Christopher Strassheim, Sheriff, Defendant in Error, v. A. H. Palmer et al., Plaintiffs in Error.
    Gen. No. 16,830.
    Appeals and ebbobs—effect of striking bill of exceptions. If the bill of exceptions is stricken and the errors assigned are predicated Only upon matters contained therein, an affirmance will be ordered.
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed December 23, 1910.
    Marshall Solberg, for plaintiff in error.
    Cameron & Matson, for defendant in error.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

The bill of exceptions having been stricken from the record, the errors assigned therein cannot be considered. The judgment is therefore affirmed.

Affirmed.


author: Mr. Justice Smith

text:
    James H. Craw, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,153.
    1. Verdicts—when not disturbed as against the evidence. If the jury saw and heard the witnesses a verdict will not be set aside as against the evidence unless manifestly against its weight.
    2. Contributory negligence—what not as a matter of law. To board a moving street car is not contributory negligence as a matter of law.
    3. Evidence—when competency of proof of ordinance not raised. The competency of evidence offered to establish the existence of an ordinance is not raised in the absence of a specific objection.
    4. Personal injuries—what evidence competent to establish. A person injured may be permitted to state his feeling or sensation after an accident; also, a witness may be allowed to give testimony as to mistakes which such injured person made in his work after his accident; also, the family physician and the plaintiff’s son may be allowed to give evidence as to his appearance, conduct, health and disposition before his accident and changes therein after the accident.
    5. Appeals and errors—when admission of erroneous evidence will' not reverse. Even though erroneous evidence which bears upon the question of damages has been admitted, a reversal will not be ordered unless the verdict is excessive.
    6. Instructions—lohen though marked given considered as refused. An instruction marked given which was not actually read to the jury and which was not given to them upon the submission of the cause is to be "considered as refused.
    7. Instructions—when refusal will not reverse. Refusal to give a correct instruction will not reverse if its contents are substantially contained in another instruction given.
    8. Instructions—when refusal of correct will not reverse. The refusal of a correct instruction which bears upon the question of damages and the burden of proof with respect thereto if refused will not reverse if the verdict rendered was not excessive.
    9. Instructions—propriety of underscoring words. The practice of underscoring words and phrases in instructions is bad but will not reverse where the underscoring is contained in a general instruction not involving specific facts and appears to have been for the benefit rather than to the detriment of the complaining party.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Harry Higbee, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed October 21, 1910.
    Rehearing denied November 29, 1910.
    Statement by the Court. The plaintiff, James EL Craw, recovered a judgment for $2,500 against the Chicago City Railway Company, the defendant, for damages for personal injuries claimed to have been sustained by him while attempting to board one of appellant’s cars at or near the intersection of Archer avenue and Butler street, in the City of Chicago, November 14, 1904.
    The declaration is in seven counts, but, during the trial the fourth, fifth and sixth counts were dismissed.
    The negligence averred in the first count is that the defendant’s servants so negligently and carelessly caused its car to be started at a high and dangerous rate of speed, in Archer avenue at the intersection of Butler street, when the plaintiff was in the act of becoming a passenger thereon that by reason thereof the plaintiff was thrown with great force and violence from the car to the ground.
    The second count avers that the defendant wholly neglected to slacken the speed and stop the car and keep the same in a .stationary position although signaled so to do by the plaintiff who desired to become a passenger, but kept the car moving, and suddenly and violently started it with great force and violence while the plaintiff was in the act of getting upon the car.
    The third count avers that knowing the plaintiff desired to become a passenger the servants of the defendant slackened the speed of the car'at the street intersections and thereby induced the plaintiff to believe that the speed of the car would be still further slackened and the car stopped until he could get on the car, and then while he was stepping upon the car, suddenly started the.car with great force at a high and dangerous rate of speed.
    The seventh count sets out an ordinance of the city of Chicago with reference to the stopping of street cars to receive and let off passengers at certain places and the violation of the ordinance.
    At the close of the evidence, the defendant moved the court to instruct the jury for the defendant, which motion the court overruled.
    B. F. Richolson and Watson J. Ferry, for appellant.
    R. Wilson More and Orpheus A. Harding, for appellee; Frank L. Childs, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

It is not controverted in the evidence that the plaintiff attempted to get on the front platform of the car while it was in motion, and that he was thrown down and injured. It is not controverted that the plaintiff and a number of his fellow workmen were on the northwest corner of Archer avenue and Butler street, the plaintiff being some thirty or more feet west of the west line of Butler street when he made the attempt to board the car. Whether the plaintiff signaled the motorman to stop as the car approached Butler street from the northeast; whether in recognition of the signal the motorman turned off the power and slackened the speed of the car as it approached and crossed Butler street for the purpose of permitting plaintiff to enter the car, or the speed of twelve to fifteen miles an hour was kept up until plaintiff was thrown down; whether the car was moving at the rate of three and a half or four miles an hour or upwards of twelve miles an hour just before or at the time plaintiff attempted to board it; whether at the time the plaintiff was attempting to board the car which was then moving slowly, it was suddenly started forward with great force after its speed had been slackened for the purpose of stopping and taking on passengers, are- all controverted questions in the evidence. These questions bear directly upon the question of liability, and their solution one way or the other determines that question. The jury resolved them in favor of the plaintiff, and the question before us is whether the verdict is so manifestly wrong upon the evidence that it must be set aside.

The testimony of the plaintiff and his witnesses, Zeller, Hartman, Lynd, Merigold, Johnson, Haldman, Beckert, Beam and Harper who were employes with the plaintiff of Hansell, Elcock & 'Company, tends to show that they had left their place of employment to go to their homes and were at or near the street crossing in question for the purpose of there taking a street car; that they observed the car approaching and several of them signaled the motorman to stop; that they saw him turn off the power east of Butler street, and they observed that the car slackened its speed until it was going only about four miles an hour when it reached the northwest corner of the streets; that the plaintiff put his foot out to step on the front platform and attempted to take hold of the handle bars with both hands; that the car made a sudden start ahead just at that time and the plaintiff was thrown to the ground and partially under the car. These witnesses vary somewhat in their ways of expressing what occurred, but the substance of their testimony is as stated above.

The contentions and theory of the defendant, on the other hand, is that a congestion of cars had been produced at the railroad crossing east of Canal street by a blockade of - the street by passing trains; and that the car .in question being the first one going in a southwesterly direction, proceeded over the railroad tracks and along Archer avenue at the usual rate of speed which was somewhat slackened at Canal street on account of a switch; that between Canal and Butler streets it moved rapidly and continued without slackening in speed across Butler street until after plaintiff attempted to board it, when it was then brought to a stop about twenty-five feet beyond where plaintiff was lying; that the car was thus operated because of a rule and custom that where a string of cars for any reason had been grouped together, as in this instance, the first car in the line proceeded without stopping to take on passengers until a sufficient space had been made for the passage of the others in the line, and that the conductor had given the motorman the signal not to stop before they reached Butler street, and there was no intention to stop at Butler street and the car was running at the rate of twelve or fifteen miles an hour when plaintiff attempted to board it.

These facts are testified to by Fieldstack, the conductor, O’Meara and Huntington and Cotharin, passengers on the front platform of the car, Mrs. Graff, a passenger, and Owens, the motorman, but at the time of the trial a police officer of the city. Owens says he did not turn off the power as he approached Butler street or while crossing it and did not apply the brake or slacken the speed of the car until after he heard the plaintiff strike against the car when he attempted to board it.

Appellant’s contention is that the verdict is against the manifest weight of the evidence, because of the inherent improbability and unreasonableness of the testimony, and because plaintiff’s injuries were the result cf his own negligence in attempting to board the car while it was in rapid motion.

Upon a careful consideration of the evidence we cannot say that there is inherent improbability and unreasonableness in the testimony of the plaintiff’s witnesses. The car might have been handled in the manner testified to by the witnesses. It was a question of fact for the jury, and the great preponderance of the evidence seems to be in favor of its conclusion on that question. The jury saw and heard the witnesses, and unless its verdict is manifestly against the weight of the evidence we cannot under the law disturb it, when, as in this case, it does not appear to be the result of prejudice, passion or some improper motive.

The well settled rule in this state as to contributory negligence in getting on a street car while it is in motion differs from the rule in Pennsylvania and possibly other jurisdictions where it is held to be negligence per se (Powelson v. United Traction Co., 204 Pa. 474; Hunterson v. Union Traction Co., 55 Atl. 543). In the leading case in this state, Cicero Street Ry. Co. v. Meixner, 160 Ill. 320, it was held at page 325: “The rule as applicable to steam railways is relaxed when applied to horse cars or street railways. (Terre Haute etc. Railroad Co. v. Buck, 96 Ind. 346; Sloner v. Pennsylvania Co., 98 id. 384). Beach on Contributory Negligence (Sec. 90) says: £It is well settled that it is not contributory negligence per se for one to alight from or to board a moving street car, and here again we find the severity of the rule as applicable to steam railways essentially relaxed.’ Booth on Street'Railway Law (Sec. 336) lays down the same rule in the following language: ‘Although the act of boarding a car while in motion is always attended with some risks, the rules applicable to persons entering cars operated by steam are not usually applied with the same strictness to street railways operated by horse power. It is a general rule, established by numerous decisions, that if a person who has free use of his faculties and limbs has given proper notice of his desire to be taken up, and the speed of the car has been slackened in the usual manner, it is not negligence per se to attempt to get on while it is moving slowly, and that if a person is injured under such circumstances the question of his contributory negligence is ordinarily one of fact for the jury.’ ”

The court then says that this doctrine is established in nearly all of the states where the question has arisen, and cites among other cases, Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232, where the above stated rule was held applicable to a case where the motive power of the car was a cable. The court then took up the question involved in the case as to whether the rule was applicable where the motive power of the car was electricity, and held that it was applicable.

The above case has been followed by numerous cases in this state holding under similar circumstances that whether the plaintiff was guilty of want of ordinary care was for the jury. West Chicago St. R. R. Co. v. Torpe, 187 Ill. 610; North Chicago St. R. Co. v. Wiswell, 168 id. 613; Springfield Con. R. Co. v. Hoeffner, 175 id. 634; Union Traction Co. v. Lundahl, 215 id. 289. We think the court properly submitted the question to the jury as a question of fact.

The main controversy on the trial was over the rate of speed at which the car was moving at the time the plaintiff attempted to board it. A large number of witnesses testified on behalf of the plaintiff that the car was moving slowly, while a number testified on behalf of the defendant that it was moving very rapidly and at full speed. That question was for the jury to decide upon the evidence before them, and we cannot say that their verdict was against the manifest weight of the evidence.

Error is assigned upon the admission in evidence of the ordinance of the city of Chicago set out in the seventh count of the declaration. It is urged that courts do not take judicial notice of the existence of city ordinances and that no sufficient proof was made of the existence of the ordinance by the introduction of a printed pamphlet or book purporting to be published by authority of the city council, or a properly authenticated copy of the ordinance.

The only objection made to the introduction of the ordinance at the time it was offered was: “Assuming it to be correct, I object to its going in evidence; it does not apply. There is nothing compulsory about it; they are not obliged to stop under all conditions. If he has a case he has it separately from the ordinance.” This objection did not raise the point now urged. From an examination of the record we cannot ascertain the nature of the evidence offered to prove the ordinance. It may have been the best evidence known to the law.

It is urged that the court erred in permitting the plaintiff to state his feeling or sensation after the accident when he came in contact with or near street cars. We find no error in the court’s rulings. Nor do we see any error in admitting the testimony of the witness Smith as to the mistakes which the plaintiff made in his work after the accident.

We think it was not reversible error to admit the evidence of the family physician, and the plaintiff’s son, as to the plaintiff’s appearance and conduct, health and disposition, and changes therein after the accident. The evidence bore only upon the question of damages, and unless the amount of the verdict is excessive no substantial injury resulted.

The first instruction given at the request of the plaintiff is based in part upon the finding of the jury that the plaintiff signaled to the motorman of the car in question to stop for the purpose of receiving him as a passenger. It is urged that there is no evidence in the record that plaintiff made any such signal, and therefore the instruction is erroneous, having no basis in the evidence.

The plaintiff did not testify that he signaled the motorman, and the latter testified he did not see the plaintiff, but, the evidence shows that there were a large number of persons standing on the corner with plaintiff, and that several of them signaled the car to stop; that the motorman turned off the power and reduced the speed of the car as if to stop it for the purpose of receiving passengers. In our opinion this evidence furnished a sufficient basis for the instruction. This evidence also disposes of the objection made to the sixth instruction given at the request of the plaintiff.

The record shows that the defendant requested the court to give the following instruction:

“The jury are instructed that with respect to the alleged ailments and disabilities claimed for the plaintiff in this case, the burden of proof is upon the plaintiff in that respect, as it is with respect to the question of liability, to show by a preponderance of the evidence not only that such ailments really exist or have existed, but also that such ailments and disabilities are the result of the occurrence in question, and the burden of proof is not upon the defendant to show that such ailments do proceed or arise from any other cause. The jury are further instructed that they have no right to guess or conjecture that any ailment complained of is the result of this occurrence. The jury are not to understand from this instruction that the court intends to intimate that the plaintiff has such disabilities as is claimed, or that the defendant is or is not in any manner liable, or to intimate any opinion upon that or any other question of fact in this case.”

The court marked the instruction “given,” but through inadvertence of the court it was placed among the refused instructions, and was not read to the jury.

The instruction must be considered as refused in legal effect, for it was neither read to the jury nor given to them when the case was submitted.

The instruction treats of the alleged ailments and disabilities of the plaintiff claimed to be the result of the accident, and the burden of proof with respect to them. The instruction was a proper one and should have been given. We think, however, that so far as the burden of proof is concerned, other instructions given at the request of the defendant, and notably instruction 41 which we discuss later, cover the question of the burden of proof. In its ultimate effect and purpose the instruction bears upon the question of damages to be awarded by the ¡jury, and considering the amount of the verdict, as we shall see later, we do not think the defendant suffered material harm from the mistake of the court in placing the instruction among the refused instructions and failing to read it to the jury.

Counsel for defendant requested the court to give the following instruction:

“The court instructs you that it is the law in this case that if the evidence preponderates in favor of the defendant,
Or, if the evidence fails to preponderate in favor of the plaintiff as against the defendant,
Or, if the evidence is evenly balanced as between the contention of the plaintiff and the defendant,
Then, in either case, the plaintiff cannot recover against the defendant.”

The court refused to submit it as asked, but amended the second paragraph by underscoring the word “preponderate,” and the third paragraph by underscoring the words “evenly balanced” and gave it as amended.

The practice of underscoring instructions, or using display type or italics has been condemned. Wright v. Brosseau, 73 Ill. 381; Hagenow v. The People, 188 id. 545; Elwood v. C. C. Ry. Co., 90 Ill. App. 397. But this was merely a general instruction not involving specific facts, and therefore, was not of a character to injure the defendant. Furthermore, it was requested by the defendant, and we cannot see how it can complain of the emphasis given by the underscoring. It was not reversible error in this case.

Upon a consideration of the injuries shown by the evidence we cannot regard the verdict and judgment as grossly excessive. There being no reversible error in the record, in our opinion, thé judgment is affirmed.

Affirmed.