text:
    Rosenbaum Bros. & Company, Appellee, v. Drumm Commission Company, Appellant.
    Gen. No. 17,468.
    1. Appeals and ebeors—briefs. Where appellant files a volume entitled “Statement, Brief and Argument of Appellant,” consisting of 325 pages, in which many of the points are not briefly stated but are long and involved, there is not a compliance with appellate court rule 21.
    2. Election op remedies—what constitutes. In assumpsit for money had and received, pleas that an attachment suit was begun to recover the money in question in which defendant was summoned as garnishee, that the suit was dismissed for want of prosecution and that the institution of such attachment suit constituted an election by plaintiff and estopped him from maintaining assumpsit, are demurrable.
    3. Evidence—pleas held bad on demurrer. An objection to the introduction of evidence to support a plea held bad on demurrer is properly sustained.
    4. Interest—improperly withholding money after demand. Where defendant received a deposit with the understanding that it should be held to abide the result of a contract between plaintiff and a third party, to be returned to plaintiff in the event that the third party should fail to comply with the contract, there being a breach of the contract by the third party, defendant refusing to return the money on demand of plaintiff is liable for interest from the time of refusal.
    5. Interest—assumpsit for money had and received. In determining liability for interest on money wrongfully withheld after demand by rightful owner, it is immaterial that the action is in assumpsit for money had and received when it might have been in trover.

      Appeal from the Superior Court of Cook county; the Hon. Chables A. McDonald, Judge, presiding. Heard in' the Branch Appellate Court at the October term, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed January 9, 1913.
    Rehearing denied January 23, 1913.
    John Gibson Hale, for appellant; Botsford, Deatherage & Creason, of counsel.
    Mayer, Meyer, Austrian & Platt, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On a second trial of this case the jury, on December 21, 1910, returned a verdict finding the issues for appellee (hereinafter called plaintiff) and assessing its damages at the sum of $4,270. On December 31, 1910, the trial court, after overruling a motion for a new trial, entered judgment on the verdict for $4,270 against appellant (hereinafter called defendant), and this appeal is prosecuted to reverse that judgment. Plaintiff’s demand was for $3,000, “for money had and received for the use of the plaintiff,” and for interest thereon from June 26,1902, at the rate of five per cent, per annum. It is evident that the jury included in their verdict the interest claimed.

Counsel for defendant have filed in this court a printed book or volume which is entitled “Statement, Brief and Argument of Appellant.” It is of extraordinary length, consisting of 325 pages. It contains a “Statement of the case” of fifty pages, “Points and Authorities” of ninety-six pages and an “Argument” of 179 pages. Within the division entitled “Points and Authorities” counsel have made 116 points and have cited in all 765 authorities. Many of the points are not briefly stated but are long and involved, and Rule 21 of -the rules of practice of this court has not been complied with, viz.: that the briefs 1 ‘ should contain a short, clear statement of the points and the authorities in support thereof.” The filing- of such a long “Statement, Brief and Argument” entails great and unnecessary additional labor upon the court and does not assist the court in its endeavor to ascertain the controlling points in the case presented, and to reach a just conclusion thereon, and we feel constrained to say that we strongly condemn such a practice.

On the former trial of this case the court, at the close of plaintiff’s evidence, instructed the jury on defendant’s motion, to find the issues for the defendant, which they did, and judgment for the defendant was entered. On appeal to this court the judgment was reversed and the cause remanded. In the opinion of this court, filed January 18, 1909 (146 Ill. App. 229), the main facts of the case as they appeared at the former trial from plaintiff’s evidence, either admitted or offered and refused admission, are fully set forth and need not be repeated here, reference being made to said opinion. It appears from the opinion that on the former trial the trial court announced that, under the law, plaintiff could not recover, even though the evidence showed that the contract, entered into between plaintiff and Washington, had not been complied with on the part of Washington, and that no cattle had been offered or tendered to plaintiff in accordance with the terms of the contract; that it was thereupon stipulated that, instead of asking questions of the various witnesses, the attorney for the plaintiff should make an offer as to what he expected to prove by the witnesses Rosenbaum and Siders, present in court; that thereupon said attorney offered to prove that subsequently to the payment of the $3,000 a representative of defendant had said to Rosenbaum that said money would be refunded to plaintiff if the cattle were not up to contract, that Siders had made a thorough examination of the cattle and that they were not as good as the Hat cattle, but were an inferior grade in size, color and other respects, and that they complied in no respect with the terms of the contract, that plaintiff had not received any of the cattle, that demand had been made on defendant for the return to plaintiff of said $3,000, and that payment of a draft drawn by plaintiff on defendant for said sum had been refused, and that thereupon the trial court, on defendant’s objections, excluded all of the offered evidence except the offer as to said demand being made and as to said draft being refused, and instructed the jury as above stated. In its opinion this court said (p. 236):

“We cannot escape the conclusion that the defendant was, with the understanding of Washington, the plaintiff and itself, a mere depositary of the cash payment of $3,000,'the deposit to abide the result of the contract, with a possible interest in defendant, depending on the performance of the contract of March 12, 1902, by both parties to that contract; but with the duty incumbent on defendant to return the money to the plaintiff, in the event that Washington should fail to comply with the contract. This, also, seems to have been defendant’s understanding, as in its letter of April 18th to the plaintiff, it says: ‘We presume, if the cattle are not delivered according to contract, that the money should be refunded to you, but we should have instructions from Mr. Washington to that effect. ’ We fail to perceive the necessity of Washington’s consent or instruction to a return of the money to the plaintiff, if Washington substantially failed to perform his part of the contract with the plaintiff. In such case he would not be entitled to the money or any part of it, and it is for the defendant, who has the money, to return it. Defendant admits possession of the money, and if Washington has failed to perform his contract, neither he nor defendant has any interest in it, and no sound reason is perceived why it should not be returned to the plaintiff, whose money it is. The defendant does not claim any interest in it., * * * We áre of opinion that the learned judge of the trial court erred in holding that there could be no recovery, even though Washington did not comply with the contract between him and the plaintiff. We understand the cause to have been decided on the sole ground that Washington, and not the defendant, is liable, in the event of Washington’s failure to fulfill his contract. The court excluded offered evidence to prove that Washington did not perform his contract with the plaintiff, so that the question whether he did or not is not before us.”

The evidence admitted on behalf of the plaintiff on the second trial was, so far as the main question discussed in the former opinion of this court is concerned, practically the same as was admitted on the first trial, and evidence on behalf of plaintiff was also admitted tending to show the facts which, at the former trial, plaintiff offered to prove but was not allowed to prove by the rulings of the trial court. Some of the testimony given by plaintiff’s witnesses on the second trial as to certain material facts was contradicted by the testimony of some of defendant’s witnesses, and it was for the jury to determine under all the evidence what the true facts were and render a verdict accordingly.

Counsel for plaintiff contend in effect that the law as laid down in the opinion of this court on the former appeal, as applied to .the facts then before the court as stated in said opinion, is the law of this case, which neither the trial court on a second trial nor this court, on an appeal from the judgment entered on that second trial, has the right to disregard, unless it appears that on said second trial another or different case was made by the evidence; that this court having in its former opinion decided, under the facts proved by plaintiff’s evidence or offered to be proved at the first trial, that defendant was liable to plaintiff if Washington did not perform his contract, it only remained to prove at the second trial, to the satisfaction of the jury, Washington’s failure to so perform his contract, in order to entitle plaintiff to recover; that it was shown by a preponderance of the evidence on said second trial that Washington had failed to perform his contract, and that it is evident from the verdict that the jury reached that conclusion from all the evidence. With these contentions, as applied to the facts of this case, we in the main agree. Delta Bag Co. v. Kearns, 160 Ill. App. 93, 94.

After this court on the former appeal had entered its judgment reversing and remanding the case, defendant sued out a writ of error in the supreme court (case No. 6,584) to reverse that judgment. Counsel for plaintiff there made a motion to dismiss the writ of error on the ground that the said judgment of this court was not reviewable—it not being a final judgment in the ease. On April 9, 1909, the supreme court dismissed the writ of error. On February 24, 1910, after the cause had been redocketed in the superior court, defendant filed two additional pleas to plaintiff’s declaration, setting up in substance that, prior to the commencement of the present action, plaintiff had brought ah attachment suit against Washington to recover the $3,000 here in question and had summoned the defendant as garnishee in that suit, that said attachment suit had been dismissed for want of prosecution and defendant discharged as garnishee, and that the institution of such attachment suit constituted an election of remedy by plaintiff and es-topped plaintiff from maintaining the present action. A demurrer was interposed to these pleas which was sustained by the court. At the trial,- when defendant sought to introduce evidence to sustain said pleas, objection was made to its introduction and the objection sustained by the court. Counsel for defendant assign as error the rulings of the court in sustaining the demurrer and in excluding said evidence. We do not think that the court erred in these rulings. Flower v. Brumbach, 131 Ill. 646; Stier v. Harms, 154 Ill. 476; Chandler v. White, 84 Ill. 435; First Nat. Bank of Crockett v. Barse Live Stock Commission Co., 198 Ill. 232.

Nor do we think, in view of the provision of the contract between Washington and plaintiff that the cattle were to be “as good cattle as the Hat cattle owned by Scott & Robinson of' same sex and age—in the opinion of the party of the second part, represented by H. E. Siders,” that the court, in its rulings and in its instructions regarding the binding effect of Siders’ fair judgment as to the cattle, committed error prejudicial to the defendant. 9 Cyc. 617; Dvorak v. Prucha, 156 Ill. App. 514; Reeves & Co. v. Chandler, 113 Ill. App. 167; Goodrich v. Van Nortwick, 43 Ill. 445; Kendall v. West, 196 Ill. 221; Union League Club v. Ice-Machine Co., 204 Ill. 117, 126.

At the request of plaintiff, the court gave to the jury the following instructions:

‘ ‘ The court instructs the jury that if they find from the evidence and under the instructions of the court that plaintiff is entitled to recover, then the plaintiff is entitled to interest at the rate of five per cent, per annum from June 26,1902, to the present date on such sum, if any, as you find from the evidence the plaintiff is entitled to.”

It is contended by counsel for defendant that the giving of this instruction was erroneous in that the record in this case does not disclose such “an unreasonable and vexatious delay of payment” of the $3,000 as, under section 2 of chapter 74 of the Illinois Statutes, warrants the recovery of interest thereon. We were under the impression at first, in the light of the meagre arguments of counsel presented in the original briefs, that plaintiff was not entitled to interest and that the court erred in giving the instruction, but after further consideration, upon rehearing, and in the light of additional arguments of counsel, we have reached a contrary conclusion. The date mentioned in said instruction was the date when defendant refused to pay a draft for $3,000 drawn on it by plaintiff. We think that the present record shows, as was said in the former opinion of this court (146 Ill. App. 237), “that the defendant was, with the understanding of Washington, the plaintiff and itself, a mere depositary of the cash payment of $3,000, the deposit to abide the result of the contract, # * * but with the duty incumbent on defendant to return the money to the plaintiff, in the event that Washington should fail to comply with the contract,” and we further think that the present record discloses that Washington failed to comply with his contract with plaintiff and that, therefore, it was the duty of defendant to return said sum to the plaintiff upon demand. Plaintiff on several occasions demanded its return. On April 16, 1902, plaintiff wrote defendant, “We shall look to you for the refunding of this $3,000,” to which letter defendant replied, April 18, 1902, “We presume if the cattle are not delivered according to contract that this money should be refunded to you.” On April 25, 1902, defendant wrote plaintiff, “He (Washington) has requested and positively directed us not to remit you the $3,000. * * * We have credited Mr. Washington’s debt to us with the $3,000.” This correspondence, together with the refusal of the defendant to honor the draft above mentioned, discloses the fact, as it seems to us, that defendant converted to its own use the $3,000, which in justice and right belonged to plaintiff. This being so, it was proper for the court to instruct the -jury as it did. While it is true that “at common law interest was not recoverable in any case,” and that “its recovery depends entirely upon the statute,” (Schwitters v. Springer, 236 Ill. 271, 275; City of Pekin v. Reynolds, 31 Ill. 529), still “where property has been wrongfully taken or converted into money interest may be recovered.” Schwitters v. Springer, supra; Northern Transp. Co. v. Sellick, 52 Ill. 249; Illinois Cent. R. Co. v. Cobb, Blaisdell & Co., 72 Ill. 148, 153. In Northern Transp. Co. v. Sellick, supra, it was held that if one person has the property of another in his possession, and the owner makes demand of it, and the party in possession, without right, refuses to deliver it, that will constitute a conversion of the property, and that in such case the owner is entitled to interest on the value of the property from the time of the demand and refusal. In Illinois Cent. R. Co. v. Cobb, Blaisdell & Co., supra, it is said: “Where property has been wrongfully taken, or converted into money, and an action of trespass or trover may be maintained, interest may properly be recovered. And this is based upon the statute, which, authorizes interest when there has been an unreasonable and vexatious delay of payment. There can be no difference between the delay of payment of a moneyed demand and one where property has been wrongfully taken, or taken and converted into money or its equivalent—the two rest upon the same principle.” In the present case we think that plaintiff, had it so elected, could have maintained an action in trover against defendant and could have recovered as damages the said sum of $3,000, together with interest thereon from the date of the conversion, and because plaintiff elected to sue in assumpsit for money had and received should not, under the facts of this case, deprive it of interest. Nor is it any hardship on defendant to be required to pay interest on said sum, the use of which it had enjoyed for more than eight years prior to entry of the judgment herein. Elgin, J. & E. Ry. Co. v. Northwestern Nat. Bank, 165 Ill. App. 35, 42.

For the reasons indicated the judgment of the Superior Court of Cook County is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Gridley

license: Public Domain

text:
    Anna Schmidt, Appellee, v. The National Council of the Knights and Ladies of Security, Appellant.
    Gen. No. 17,515.
    1. Fraternal benefit societies—evidence of breach of warranties. A breach of warranties in an application for membership in a fraternal benefit society barring recovery is not shown, though member’s statements were that she was in sound physical and mental condition, that no blood relatives had been afflicted with any hereditary disease, that she had not been confined to the house within five years with illness or constitutional disease, and that she had no menstrual disorder, notwithstanding the evidence of a physician, that she treated her for nervousness and menstrual disorder a short time before the making of the application, contradicted by the mother and sister of the member who stated that the treatment was given some time before and that the member was. in good health at the time of and after the issuance of the certificate, and the evidence of another physician that the member was confined in a hospital with kidney trouble a few months before the application.
    2. Evidence—hospital sheet. In an action on a fraternal benefit society certificate, where it is alleged that the member was a patient in a hospital a short time before the application was made, it is proper to exclude a portion of a hospital sheet alleged to refer to the member which was not identified as in the handwriting of anyone in attendance.
    3. Fraternal benefit societies—insanity of member. A finding two years after an application to a fraternal benefit society in an ex parte proceeding to confine the member in an asylum, that the member was then afflicted with hereditary insanity, but not finding the duration of the disease, is not admissible against the beneficiary on the question of a breach of warranty in a negative answer in the application as to whether any blood relatives had ever been afflicted with insanity.
    Appeal from the County Court of Cook county; the Hon. William C. De Wole, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed January 9, 1913.
    A. W. Fulton, for appellant.
    William G. Bopp and Ernest W. Clark, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On April 15, 1907, the defendant' society executed and delivered its beneficiary certificate to Bertha Schmidt, insuring her life. By the certificate the society agreed to pay to plaintiff, the mother of Bertha Schmidt, upon the latter’s death in good standing, subject to the provisions of the certificate, the sum of $1,000. Bertha Schmidt died on October 18, 1909, and, the society refusing to pay the said $1,000, plaintiff brought suit against it in the county court of Cook county on June 2, 1910. The case was tried before a jury in that court, resulting in a verdict for plaintiff, October 25, 1910, for $952, upon which verdict judgment was entered for said amount and costs against the society, November 4, 1910. The society seeks by this appeal to reverse that judgment.

On April 2, 1907, the insured, then of the age of twenty-two years, unmarried and living in Chicago, made written application for membership in the society and for a beneficiary certificate, in which she certified that she was “in sound physical and mental condition” and “ a fit subject for life insurance,” and in which she warranted the answers given to the questions propounded to her by the medical examiner to be “true and fair,” and in which she agreed that the answers and statements in the application should form the basis of her agreement with the society and constitute a warranty. Among other questions she was asked the following: “Have either of your parents, or any of your uncles, aunts, brothers or sisters or other blood relatives been afflicted with * * * insanity * * * , or any other hereditary disease?” and “Have you had any illness, constitutional disease or injury that has confined you to the house during the past fivé years?” and “Have you ever been subject to or had any of the following disorders or diseases? Answer ‘Yes,’ or ‘No,’ to each: * * * Disease of Brain? * * * Disease of Genital or Hrinary Organs? * * * Insanity?” To all of these questions the applicant answered “No.” The medical examiner of the society, Dr. Isabella Hursen, examined the applicant on April 2, 1907, and on the back of the application in the printed form entitled “Medical Examiner’s Be-port,” said examiner, in answer to the question therein printed, “Has she any menstrual disorder?” wrote in the proper blank the word “No.” Dr. Hursen testified that she thought she asked the applicant that question before she wrote the word “No;” that she examined her heart and found the applicant in good, healthy condition and recommended her for membership. The insured died on October 18,1909, from “exhaustion of acute delirium,” at the county hospital for the insane, at Dunning, Illinois, she having been there confined for a period of about four weeks. At the time of her death all assessments on the certificate had been paid. Dr. Grace Campbell, a witness for the society, testified that during the year 1907 she treated Bertha Schmidt for nervousness and suppressed menstruation on about twelve different occasions, covering a period of about seven weeks, at her office, and that the date of the first treatment, as she remembered it, was March 10, 1907. The mother and sister of the deceased testified that said first treatment was had in the summer of 1907, and that deceased was in good health at the time of, and for several weeks after, the issuance of the certificate. Dr. Alice Conklin, a witness for the society, testified that Bertha Schmidt was admitted August 16,1907, to the Mary Thompson Hospital and that the patient was treated for Mndey trouble. She identified a paper, called the hospital sheet, relating to the patient and said that a portion of the writing thereon was in her handwriting, that another portion was not, and that she did not know who wrote said other portion. The portion of the paper in the handwriting of the witness was admitted by the trial court and the other portion was refused admission. The portion admitted tended to show, inter alia, that the witness had diagnosed the case of the patient as “chronic nephritis.” During the trial, the attorney for the society offered in evidence certified copy of certain proceedings of the county court of Cook county, had on September 24,1909, from which it appeared that a jury found that Bertha Schmidt was insane, and that “the disease is with her hereditary,” and “that her disease is of-duration,” upon which verdict the court adjudged her to be an insane person, and that, pending her admission to a state hospital for the insane, she be committed to the Cook County Insane Asylum. The attorney stated that he offered the certified copy to show that the jury had found that her disease of insanity was “hereditary,” whereas she had stated in her application for insurance that none of her blood relatives had been afflicted with insanity or any other hereditary disease. The trial court refused to admit the certified copy in evidence.

It is contended by counsel for the society that the evidence shows that there was such a breach of warranties contained in the application as bars a recovery and that the verdict is manifestly against the weight of the evidence. With these contentions we cannot agree.

We do not think that the trial court erred in refusing to admit in evidence in its entirety the so-called hospital sheet. The portion identified by the physician in charge as being in her handwriting was admitted, and the other portion, not being identified as being in the handwriting of any one in attendance, was properly excluded. The physician, after endeavoring to refresh her recollection from an examination of the hospital sheet, testified she did not then remember the ease of Bertha Schmidt or what she was treated for.

Nor do we think that the court committed prejudicial error in excluding the certified copy of the proceedings had in the county court on September 24, 1909. These proceedings occurred more than two years after the application was signed and the beneficiary certificate issued. While the jury found that she was then insane and that the disease was hereditary, they did not find by their verdict the duration of the disease. It had already been shown by the testimony of witnesses that she was insane and had been taken to the county insane asylum on that date. We do not think that a mere finding of a jury, that a person was then insane and that “the disease is with her hereditary,” rendered on an ex parte hearing, the purpose of which was to give authority for her confinement in an asylum for the insane and that she be restrained of her liberty, is admissible as against the beneficiary in an insurance certificate on the questions as to whether the “parents, uncles, aunts, brothers or sisters or other blood relatives” of such insane person had ever been afflicted with insanity, and as to whether there had been a breach of warranty contained in the application.

Complaint is made of the refusal of the court to give three of the eleven instructions offered by the society. The court gave to the jury eight of the number. We think that the three refused instructions were properly refused.

The judgment of the county court is affirmed.

Affirmed.


text:
    Richard Peterson, Appellee, v. Chicago & Oak Park Elevated Railroad Company, Appellant.
    Gen. No. 17,517.
    1. Master and servant—allegations of duty. After verdict for plaintiff, a count will be held to allege sufficient facts from which a duty on defendant’s part not to drive a car towards plaintiff can be inferred and to set forth a sufficient causal connection between the negligence and the injury, where it alleges that defendant ordered plaintiff to work near a car on an elevated structure and while he was exercising due care defendant negligently ordered a car to be moved towards and against plaintiff, while he was discharging his duties as a servant of defendant, whereby plaintiff was struck by the car and injured.
    2. Master and servant—negation of act of fellow-servant. A count which alleges that plaintiff’s injury was due to the negligence of defendant, a corporation, is not fatally defective after verdict because of failure to state that the injury was not caused by a fellow-servant of plaintiff.
    3. Master and servant—evidence. Evidence held to support a verdict for plaintiff, a switch repairman, in an action for negligence in driving a car on defendant’s elevated railroad against him and brushing him from the structure.
    4. Master and servant—fellow-servants. In an action by a switch repairman against an elevated railroad company for negligence in driving a car against him, held not error to refuse an instruction that as a matter of law the motorman of such car and plaintiff were fellow-servants.
    5. Damages—not excessive. Verdict for §10,000 is not excessive where plaintiff’s wrists were broken, the bones at the lower end of his arms dislocated, his left ankle broken and his right broken or dislocated, and after coming from the hospital the motion of his left hand was limited, the joints in his ankles were very stiff, one foot was turned in and he was bowlegged, all of which conditions were permanent.
    6. New trial—affidavits of jurors to impeach verdict. On motion for new trial after verdict for plaintiff in an action against an elevated railroad company for negligence, affidavits of three jurors that they visited the place of the accident and viewed the structure from below will not be received to impeach their verdict.
    7. Evidence—instructions. In an action for personal injuries it is not improper to instruct the jury that plaintiff is not bound to prove his case beyond a reasonable doubt, but only by a. preponderance of the evidence.
    8. Master and servant — abstract instruction. In an action against an elevated railroad company by a servant for injuries caused by alleged negligence in driving a car against him while he was performing his duties, while it seems that the abstract proposition that the master is under a duty to exercise reasonable care to furnish the servant a reasonably safe place to work should not have been given to the jury, it could not have been misleading where all the grounds of recovery under the declaration were fully explained by other instructions.
    Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed January 9, 1913.
    Samuel S. Page and C. Le Roy Brown, for appellant; R. G. McDonald, of counsel.
    Johnson & Belasco, for appellee; Joel Baker, of counsel.
    Statement of the Case. This is an action for damages for personal injuries brought by Bichard Peterson, appellee and hereinafter called plaintiff, against Chicago & Oak Park Elevated Bailroad Company, a corporation, appellant and hereinafter called defendant. A car on defendant’s elevated railway was unable to move because it had stopped at a place where there was no third rail to supply it with electrical power. Plaintiff was attempting to connect the car with the nearby end of the third rail by means of a ‘light hose” or wire. He was standing near the edge of the elevated structure and the car, moving past him around a curve, brushed him off the structure and he fell to the street below. The jury returned a verdict in favor of plaintiff and assessed his damages at $10,000, upon which verdict the court, on December 10, 1910, entered judgment against the defendant for said amount and costs.
    The declaration consisted of two counts. The first count alleged, in substance, that the defendant controlled, owned and used certain elevated tracks in Chicago and operated divers cars for the carrying of passengers for hire; that on November 5, 1908, plaintiff was working as an employee of defendant under its direction and control, and was upon the elevated structure in the discharge of his duties as a servant of defendant, and that while at all times in the exercise of due care and caution for his own personal safety, the defendant “negligently drove, managed and operated” a certain car, so that said car struck plaintiff and threw him from said elevated structure to the ground, thereby greatly and permanently injuring him. The second count charged that the defendant “ordered and directed the said plaintiff upon a certain place on the structure of the said defendant to work at and near a certain car,” and, while' there and while at all times in the exercise of due care, etc., the defendant “negligently ordered and directed a certain car to be moved toward and upon and against the said plaintiff, while the said plaintiff in the discharge of his duties as a servant of the said defendant was at or near the said tracks upon which the said car was,” thereby causing plaintiff “to be struck by said car with great force and violence to be thrown from said structure to and upon the ground,” thereby greatly and permanently injuring bim.
    The facts are substantially as follows: The main line of defendant’s elevated railway ran east and west on Lake Street in the City of Chicago. There were two tracks. Westbound trains ran on the south track and eastbound trains on the north track. Electricity was supplied by a third rail. The tracks ran across a bridge over the Chicago River. The first north and south street east of the river was Market Street. On Lake Street, east of the bridge, a stub or branch line of the elevated railway left the main tracks and, curving towards the south in approximately a right angle curve, ran south on Market Street as far as Madison Street. On this Market Street branch line the defendant operated a single passenger car called a ‘shuttle” car. This car made regular short trips from Madison Street north on Market Street to Lake Street, and then west on Lake Street, across said bridge, to the first station on the west side of the river, Canal Street. When this car left the Market Street branch it entered upon the south track of the two tracks in Lake Street, crossed the bridge on said south track and returned from Canal Street on the same track. During the time this shuttle car was on said south track between Market Street and Canal Street, defendant’s regular west-bound trains, approaching Market Street from the east in Lake Street, could not proceed west of Market Street. The curved track of the Market Street branch connected with the south track on Lake Street a short distance west of Market Street. Immediately east of said bridge, and between the north and south tracks in Lake Street, was a bridgeman’s shanty, surrounded by a platform made of planking. A little east of the shanty was a kind of a raised platform, and east of said platform and between said north and south tracks was more planking. The east wall of said shanty was about even with the place where the Market Street curved track connected with said south track in Lake 'Street. About one hundred feet east of this place was located a switchman’s “interlocking tower,” which was immediately south of said south track in Lake Street and west of the east line of Market Street. The tower was so located as to command a view of the elevated railroad on both streets.
    Plaintiff was in the employ of defendant as a switch-repairman, was about twenty-one years of age, and prior to the accident had worked for defendant for about eleven ■ months, during which time he had frequently worked on the elevated structure at Market and Lake Streets. It was part of his duties to do any work as directed by towermen or train dispatchers. On the morning of the accident, which occurred on November 5, 1908, about eight o’clock, plaintiff and a coworker, named Currie (who died before the trial), were repairing switches at Market and Lake Streets. Edward O’Neal, variously called “train dispatcher,” “bridgeman” and “bridge tender” was inside the bridgeman’s shanty above mentioned. O’Neal’s duties were to block trains when the bridge was open, to work levers and targets and to signal the bridgeman down below how and when to operate the bridge. Henry Sorg, the towerman, was inside the tower. As towerman he threw the switches and set the signals that directed whether the cars on Lake Street or Market Street should proceed or stop, but O’Neal had authority to stop cars which the towerman had signaled to proceed, and had greater power and authority than the towerman. About the time mentioned, the shuttle car came north on Market Street and started around the curve to proceed west to Canal Street. As it was rounding the curve, O’Neal signaled the car to stop for the reason that there was a through train approaching Market Street on the south track in Lake Street and he desired to give the train the right of way to proceed over the bridge. One Spellman was the motorman and one Slack the conductor of the shuttle car. The name of the motorman of the through train was Arrington and the conductor’s name was Bellman. The shuttle car was a motor car about forty-six feet long. It had two motors, one at each end, each connected by shoes with the third rail. The distance between these shoes on the side of the car was thirty-two feet. Just east of the bridge was a space where there was no third rail, which was called the dead space and which was thirty-three feet six inches long. It was therefore possible for the car to be so stationed that the shoes at each end would be & few inches from the live third rail, and if so situated the car could not be started because neither shoe connected with said third rail. The normal “overhang” of the shuttle car when standing on a straight track was two feet six inches beyond the rail. When the car was going around the curve the maximum overhang at the center of the southside of the car was claimed by the plaintiff to be three feet beyond the rail. Certain witnesses for defendant testified that beyond this maximum overhang of the car when going around the curve, the ties extended twenty inches, and certain photographs and testimony offered by defendant tended to show that when the car was going around said curve a man of about the same size as plaintiff could stand erect on the ties between the ends of the ties and the car. The ends of the ties formed the edge of the elevated structure at this point and at said edge there was no guard rail.
    In response to O’Neal’s signal to stop, Spellman, the motorman, stopped the shuttle car just east of the bridge. The east end of the car was just where the Market Street track began to curve to the south from the main track. O’Neal stepped out of the shanty and told Spellman to “back up.” Spellman testified that he then reversed his motor and “gave her one or two notches,” found that he could not move the car and replied to O’Neal, “I can’t, I am on the dead rail,” meaning thereby that the car had stopped in the space where there was no third rail. O’Neal at once proceeded to look for what he called his “light hose.” This was an insulated wire about five feet long, used to connect the car with the live third rail. Not finding it in its accustomed place, O’Neal called out, “Where is my light hose?” Peterson, the plaintiff, and Currie were standing nearby, and, according to plaintiff’s testimony, O’Neal said to plaintiff, “Get me a light hose,” and plaintiff got one and handed it to O’Neal. Plaintiff further testified that there was a piece of wood on each end of the hose; that O’Neal broke off the piece of wood at one end and said to plaintiff, “Stay with me;” that O’Neal then went to the east end of the shuttle caí* and plaintiff followed him; that O’Neal then attached one end of the hose to the light hose connection in the east platform of the car, that “after he had put that light hose into the light hose connection he put it on the rail, attached it on the third rail,” and that “he said to get over there right outside of the tracks, * * * and hold this hose on the rail. He pointed to the place. I took it over there. He walked across the track. I held the light hose on the rail. Then I heard him holler, ‘back up.’ Then the motor (car) pushed me off. I was standing about two feet from the motor (car) at the time.” On cross-examination plaintiff testified: “When I last saw him (O’Neal) he was on the other side of the tracks—north of the shuttle car. * * * He was right there at the corner of the car. He was facing northwest. * * * I was bent over as he told me. * * * I was south of the car and east of it. I was just about a foot or two from it with the light hose in my hand, and kind of stooped over. * * * After I put the light hose there, it (the car) started in a second, or just about the tick of the clock. * * * The motor (car) came so quick * * * and hit me.” O’Neal testified: “He (plaintiff) took the light hose out of my hand. When he did that it struck me that I would let him handle that part of it, and I proceded to walk west and just then the car moved, * * * started back east and around the curve. I heard Peterson make some sort of an exclamation, and I looked around, and I saw him fall to the sidewalk. * * * After I had put the light hose to the east end of the car, I stepped * * * to the south side of the' car and proceeded to walk west alongside of the car. * * * I did not tell Peterson to put the light hose on the third rail. I did not tell him to stand outside on the rail. * * * It was my intention to speak to the motorman, that is why I started west there, to make arrangements with him to operate the car. * * * I remained on the south side of the track until the car had passed on Market Street. * * * I did not at any time after I placed the light hose in the light hose socket * * * say to the motorman ‘back up.’ I judge the car had moved some seven or eight feet at the time I looked and saw Peterson falling.” Spellman, Arrington, Bellman and Sorg, the towerman, all corroborated O’Neal that when the shuttle car started to move south around the curve O’Neal was standing south of the car, Arrington, Bellman and Sorg, all on the elevated structure about seventy-five feet away from where O’Neal and plaintiff stood, as well as certain persons on the street below the structure, all gave negative testimony to the effect that they did not hear O’Neal give the second order to “back up” just before the shuttle car moved east around the curve and just before plaintiff fell from the structure.
    Spellman, the motorman of the shuttle car, testified that after O’Neal went in search of his light hose, Currie, plaintiff’s coworker, “came around in the front of the motor (car) with a spike maul, to put it between the third rail and the trolley shoe, to plug me off; and I stepped out of my cab and to the front of the motor (car) and said, ‘Don’t do that, Currie, you will burn yourself.’ The motor started and I stepped into the cab.” On cross-examination, he testified: “Mr. O’Neal told me to back up. I don’t know about whether later on he told me to back up. I don’t know that I did get an order to hack up. * * * I must have stopped with the controller in the second notch when I saw Mr. Currie going out there with that spike maul to plug me off. No, I didn’t turn it off entirely; I stepped to the door to tell Mr. Currie not to do that, and with that the motor (car) started back.” No other witness testified to the incident of Spellman’s stepping out of the cab to warn Currie. Slack, the conductor, testified that the shuttle car stopped for about a couple of minutes before it began to back up, that during that period he was on the front platform outside of the car and also inside the car, and that he did not know whether or not Spellman spoke to Currie.
    After the accident plaintiff was taken to St. Luke’s Hospital, where he remained until December 26, 1908. He used crutches until March, 1909. By the fall, both of plaintiff’s wrists were broken and the bones at the lower end of the arms dislocated. Bis left ankle was also broken and his right ankle either broken or dislocated. After the treatment at the hospital it was found that there was a considerable limitation in the movement of plaintiff’s left hand, that the joints in both ankles were very stiff—ankylosis—which interfered with plaintiff’s walking, that one foot turned in, and that he was bowlegged, all of which conditions were permanent. In June, 1909, plaintiff became a helper in a saloon, doing odd jobs, at which work he was engaged at the time of the trial.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

It is first contended by counsel for appellant that the declaration failed to state a cause of action, in that (a) neither count alleged any fact which would raise the duty on the part of defendant not to drive and operate the car toward plaintiff, and (b) neither count alleged that the moving of the car was by reason of the negligence of a servant who was not a fellow-servant of plaintiff, and (c) the second count is defective in that it fails to allege any causal connection between the negligence averred and the injury. Without passing upon the sufficiency of the first count, we are of the opinion that the second count is sufficient to sustain the judgment. “Where there is an entire verdict on several counts, the verdict will not be set aside because the declaration contains a defective count if there are one or more counts sufficient to sustain a verdict.” Bennett v. Chicago City Ry. Co., 243 Ill. 420, 434. We think that the second count alleged sufficient facts from which the duty of defendant, above mentioned, could be inferred after verdict. Sargent Co. v. Baublis, 215 Ill. 428; Grace & Hyde Co. v. Sanborn, 225 Ill. 138, 141. And the count, which alleged that plaintiff’s injury was due to the negligence of the defendant (a corporation), is not-fatally defective after verdict because it failed to state that the injury was not caused by a fellow-servant of plaintiff. Libby, McNeill & Libby v. Scherman, 146 Ill. 540; American Car & Foundry Co. v. Hill, 128 Ill. App. 176; Bennett v. Chicago City Ry. Co., supra; McInerney v. Western Packing & Provision Co., 249 Ill. 240, 243. And we think that such a causal connection between the negligence averred and the injury was alleged as to be sufficient after verdict. Sauter v. Anderson, 110 Ill. App. 574, 576; City of La Salle v. Porterfield, 138 Ill. 114, 120; Sargent Co. v. Baublis, 215 Ill. 428, 434.

It is further contended that the verdict is manifestly against the weight of the evidence in that the overwhelming preponderance of the evidence is that plaintiff was not ordered by O’Neal to apply the light hose to the third rail about the time he did apply it and that O’Neal did not order the shuttle car to be started back about that time. Whether or not these orders were given were questions of fact for the jury to pass upon, and we cannot say, under all the facts and circumstances of this case, that the verdict is manifestly against the weight of the evidence.

It is also contended that the evidence clearly shows that the accident was the result of the negligent act of Spellman, the motorman, in leaving the controller, with the reverse applied, in the first or second notch, when he left Ms cab to warn Currie not to connect the tMrd rail with the west trolley shoe by means of a spike maul, as Spellman says Currie started to do; that when plaintiff applied the light hose to the tMrd rail at the east end of the shuttle car tMs negligent act of Spellman resulted in the car moving east toward and against plaintiff; that Spellman and plaintiff were fellow-servants in that they were directly cooperating in the particular business then in hand, namely, moving the car off the dead space, and that therefore, plaintiff cannot recover. After a careful consideration we cannot say that the evidence clearly shows that the accident was caused by the alleged negligent act of Spellman. If plaintiff’s statement is true that after O’Neal had connected the light hose with the car O’Neal “put it on the rail, attached it' to the third rail,” the car would then have instantly moved toward the east, if Spellman’s ' controller had been then open one or two notches with the reverse applied, but the car did not then move, and not until after O’Neal had given the light hose to plaintiff and had told plaintiff to hold the hose to the tMrd rail, and had walked away and, as plaintiff testified, had said “back up.”

In view of all the evidence in this case and the decisions of our supreme court, such as Bennett v. Chicago City Ry. Co., 243 Ill. 420, 428, we are of the opinion that the trial court did not err in refusing to give to the jury defendant’s instruction (asked at the close of the hearing of the testimony and before other instructions were presented by defendant) to the effect that “as a matter of law the motorman Spellman and the plaintiff Peterson were fellow-servants.”

We cannot agree with counsel that the evidence clearly shows that plaintiff was himself negligent (a) in prematurely applying the light hose to the third rail, and (b) in failing to take such precautions as would have prevented bis being brushed off the elevated structure by the passage of the car. Neither can we agree with the contentions that plaintiff’s counsel was guilty of such misconduct as warrants a reversal of the judgment, and that the verdict is excessive.

In support of defendant’s motion for a new trial in the court below, defendant read and filed the affidavits of three of the jurors to the effect that during the progress of the trial they visited the scene of the accident and viewed the elevated structure from the street below. It is contended that this was such misconduct on the part of the jurors as warranted a new trial of the case, and that the court erred in refusing to grant a new trial on this account. We cannot agree with the contention. Affidavits of jurors will not be received to impeach their verdict. Heldmaier v. Rehor, 188 Ill. 458; Wyckoff v. Chicago City Ry. Co., 234 Ill. 613.

It is urged that the trial court erred in giving to the jury instruction No. 1 offered by plaintiff, as follows: “The court instructs the jury that the plaintiff is not bound to prove Ms case beyond a reasonable doubt but is merely bound to prove it by a preponderance of the evidence.” The giving of this instruction has been held not to be error in the following cases: Chicago City Ry. Co. v. Nelson, 215 Ill. 436, 443; Chicago Consol. Traction Co. v. Schritter, 222 Ill. 364, 367; Pierson v. Lyon & Healy, 243 Ill. 370, 373; Gurnea v. Baltimore & Ohio R. Co., 157 Ill. App. 331, 338.

It is also urged that the court erred in giving instruction No. 2 to the jury, offered by plaintiff, as follows: “It is the duty of the master to exercise reasonable care to furnish the servant a reasonably safe place to work.” It is argued that while the abstract proposition of law announced in this instruction is correct, it had no application to the issues of the case, as charged in the declaration, and that the instruction was calculated to mislead the jury. We are inclined to the opinion that the instruction should not have been given, but do not think that the giving of it could have misled the jury. The grounds alone upon which plaintiff could recover under his declaration were fully explained to the jury by other instructions offered by the defendant and given. In view of the giving of instructions Nos. 19, 20 and 37 offered by defendant, we do not think that prejudicial error was committed by the giving of the instruction complained of.

It is also urged that the giving of instruction No. 5. offered by plaintiff as to estimation of damages, was error. In view of the decision in Thompson v. Northern Hotel Co., 256 Ill. 77, and of the giving by the court of instruction No. 33, as modified, offered by defendant, we do not think the court erred in this particular.

Nor do we think that the court erred in refusing to give certain instructions offered by the defendant, as contended by counsel.

The judgment of the superior court is affirmed.

Affirmed.


text:
    Annie Heidenreich, by Frank Heidenreich, her next friend, Appellee, v. David F. Bremner, Jr. et al., Appellants.
    Gen. No. 17,524.
    1. Highways—injury to child at crossing. Where evidence that a thirteen-year-old child was not running while crossing a street at a busy corner, heard no noise and did not hear nor see an approaching team that was running fast until too late to avoid being knocked down, is contradicted by evidence that the team was slowed down as it approached the crossing, that the driver was looking straight ahead and that the track was clear, and that the child suddenly attempted to cross without looking and collided with a man, resulting in her being knocked against the horses, a verdict for the child will be sustained.
    2. Highways—when injured person’s exercise of care is for the jury. Where a thirteen-year-old child was not running, heard no noise and did not hear nor see an approaching team that was running fast until too late to avoid being knocked down, whether the child was exercising reasonable care for her safety at the time of the accident is a question for the jury.
    3. Master and servant—evidence of ownership of wagon driven liy employee. Evidence by the driver of a wagon that ran over a girl that at the time of the accident the defendants did business as “B- Brothers,” that he was working for them or was paid by them, that the horses and wagons belonged to them, that he gave a policeman a printed sales slip bearing the name “B—■— Bros.,” with evidence by defendants’ attorney that they were partners at the time of the accident, and evidence that the wagon bore the sign “B- Brothers,” establishes that defendants owned and controlled the horse and wagon.
    4. Evidence—speed of horse. To establish how fast a horse and wagon were going, nonexpert witnesses may testify that “that they were going at á fair speed,” “the horses were going at a pretty fast gait,” “the horses were just running” and “the horses were running fast.”
    5. Damages—when instruction on child’s loss of earnings is proper. Where an action is brought for injuries sustained by a child, an instruction permitting the jury to consider the effect of the injury upon plaintiff’s ability or disability in the future to work or to attend to affairs generally is not erroneous as permitting the jury to take into consideration plaintiff’s ability to work and to earn compensation during her minority, where the suit was brought in the name of the father as next friend.
    6. Damages—when not excessive. Where a wagon passes over the leg of a female child in perfect health and fractures it so that it becomes deformed and considerably shorter than the other leg, and the lameness and deformity are permanent, and the lameness will become more aggravated with time, a verdict for $7,500 is not excessive.
    7. Appeals and errors—harmless error. Where counts are by amendment superseded by other counts and both parties have instructions granted that refer to the negligence charged in the declaration, it is not prejudicial to refuse an instruction offered by the defendant requiring the jury to disregard the superseded counts.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed January 9, 1913.

      Bubton & Kannally, for appellants.
    Quin O’Brien, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an action brought by Annie Heidenreich, by her father as next friend, to recover damages for personal injuries sustained by her on April 25, 1907, at which time she was thirteen years of age. The accident happened about seven o’clock in the evening, at the corner of Center Avenue and Eighteenth Street in the City of Chicago. Plaintiff claimed that she was knocked down and run over on a street crossing by the horses and wagon owned by appellants, hereinafter called defendants. Plaintiff first sued David F. Bremner, Jr., James R. Bremner, Vincent A. Bremner, and John B. Bremner, as copartners, doing business as Bremner Brothers, but after verdict and before judgment the action was - dismissed as to Vincent A. Bremner. The jury assessed plaintiff’s damages at $7,500, upon which verdict the court entered judgment against the defendants, January 7, 1911. This appeal is prosecuted to reverse that judgment.

The evidence introduced on behalf of plaintiff tended to show that, at the time aforesaid, the horses and wagon of defendants were being driven north in Center Avenue, the wheels of the wagon tracking in the east street car track on that street; that the horses “were running fast” as they approached the busy comer of Center Avenue and Eighteenth Street; that the comer was well lighted and a band of street musicians were playing there at the time; that plaintiff started to walk east on the south cross walk across Center Avenue; that while she was crossing the east track she was knocked down by the east horse and the two east wheels of the wagon passed over, her left leg; that the leg was fractured in several places and is now deformed and considerably shorter than the right leg; that the lameness and deformity are permanent; that the lameness will become more aggravated with time; and that prior to the time of the accident she was a strong, healthy girl, attending school daily, and had none of the injuries, disabilities or deformities complained of. Plaintiff testified that while going east on said cross walk she was not running, that she heard no noise, that she did not hear or see the team until it was about four feet away from her, and that she was unable then to get out of the way of the team.

The evidence introduced on behalf of the defendants tended to show that the driver of said team, one Fitzgerald, while driving fast south of Eighteenth Street, had slowed down the speed of the team to about two and one-half or three miles an hour, as he approached said south cross walk, because of the switch in the car track just south of said cross walk; that he was looking straight ahead at the time and the track was clear in front of him; that plaintiff suddenly started to walk west across Center Avenue without looking either to the north or to the south; that as she “dashed” into the north-bound track she collided with a man crossing in the opposite direction, and that she was knocked against the horses, whereby the horses became frightened and “pranced;” that he could not stop the horses until the wagon had passed over plaintiff’s leg, and that the wagon was twenty feet to the north before he got them under control. The testimony of some of plaintiff’s witnesses was to the effect that after the wagon ran over plaintiff they were still running and were not stopped until they reached the north cross walk or beyond. The driver further testified that at the time of the accident the defendants did business as Bremner Brothers; that he was working for them and was paid by them; that the horses and wagon belonged to them, and that after the accident he gave a policeman a printed sales slip bearing the name “Bremner Bros.” The attorney for defendants testified that the defendants had been a partnership prior to their incorporation about May 24, 1907. Other witnesses testified that the wagon in question bore the sign “Bremner Brothers.”

We are unable to agree with the contention of counsel for defendants that the verdict is manifestly against the weight of the evidence. Nor can we agree with the contention that plaintiff failed to prove by sufficient evidence that at and prior to the time of the accident she was exercising reasonable care for her own safety. Under the evidence this was a question for the jury.

Counsel for defendants further contend that plaintiff failed to establish by sufficient evidence that defendants at the time of the accident were the owners and in control of the horses and wagon. While defendants filed a special plea denying such ownership, we are of the opinion that said ownership and control, under the evidence in this case, was sufficiently established. Foster v. Wadsworth-Howland Co., 168 Ill. 514, 517; Consolidated Coal Co. of St. Louis v. Bruce, 150 Ill. 449, 452.

Counsel further contend that the court erred in refusing to give two instructions offered by defendants at the conclusion of all the evidence, to the effect that the jury disregard the first and second counts of the declaration filed February 15, 1909, and that they disregard the first and second counts of the amended counts filed January 31, 1910. The original declaration, filed February 15, 1909, consisted of two counts, to which defendants interposed a special demurrer. On January 31,1910, plaintiff took leave to file “additional” counts, and on that day filed two “amended” counts. During the trial of the case, at the close of plaintiff’s evidence, plaintiff obtained leave to file additional counts, and filed two counts which she also designated as “amended” counts. Counsel for defendants argue that, hy filing the two amended counts of January 31, 1910, plaintiff abandoned the two counts filed February 15, 1909; that when, during the trial, plaintiff filed two amended counts, the two counts of January 31, 1910, were also abandoned; that the counts filed on February 15, 1909, and on January 31, 1910, were “out of the case;” that defendants had a right to have the court instruct the jury to disregard them, and that the refusal of the court so to do constituted prejudicial error. Counsel for plaintiff admits in his written argument that said counts of February 15,1909, and January 31,1910, may properly be considered as being out of the case (Maegerlein v. City of Chicago, 141 Ill. App. 414, 417, aff’d 237 Ill. 159), but contends that it was not error of the court to refuse to give the instructions asked. Counsel for defendants argue that, inasmuch as several of the instructions offered by the plaintiff and given by the court to the jury referred to the “declaration,” the jury might reasonably infer that they were to consider the negligence of the defendants as charged in the counts which have been superseded by the counts filed during the trial. In some of the instructions, offered by the defendants and given by the court, reference is made to the negligence “charged in the declaration,” and, in view of the decision in Slack v. Harris, 200 Ill. 96, 115, we do not think that the trial court committed error prejudicial to the defendants in refusing to instruct the jury to disregard the counts referred to.

Complaint is made to the giving of instructions Nos. 2, 7 and 10 at the request of plaintiff. .We do not think that the court erred in giving these instructions.

Complaint is also made to the giving of instruction No. 6, offered by plaintiff, in which the jury were instructed that “in estimating the plaintiff’s damages, it will be proper for the jury to consider the effect, if any, of said injury upon the plaintiff’s ability or disability in the future to work or to attend to her affairs generally, if the evidence shows these will he so affected in the future.” It is argued that the instruction was erroneous in that it permitted the jury to take into consideration the ability of plaintiff to work and to earn compensation during the period between the time of the accident and the time of obtaining her majority. While it is generally the law that “the pecuniary loss in earning power during the minority of the plaintiff could not properly be included in the damages assessed, because it would be the loss of the plaintiff’s parent and not of the plaintiff ” (Chicago City R. Co. v. Schaefer, 121 Ill. App. 334, 349; Western Union Tel. Co. v. Woods, 88 Ill. App. 375, 384), we do not think the giving of the instructions was error where, as in this case, the suit was brought in the name of the father as next friend. American Car & Foundry Co. v. Hill, 226 Ill. 227, 236; Ballentine v. Illinois Cent. R. Co., 157 Ill. App. 295, 306.

We are also of the opinion that no prejudicial error was committed in the refusal by the court to give instructions Nos. 11 and 33 offered by the defendants.

The contention is also made that the trial court erred in allowing certain witnesses, called by the plaintiff, to testify as to how fast the horses and wagon were going, one witness testifying that “they were going at a fair speed,” another that “the horses were going at a pretty fast gait,” another that “the horses were just running,” and another that “the horses were running fast.” We do not think that there is merit in the contention. “One not an expert may testify as to speed of a railroad train or other vehicles, and state his opinion, based upon observation of the vehicle while in motion.” Johnson v. Coey, 142 Ill. App. 147, 153; Overtoom v. Chicago & E. I. R. Co., 181 Ill. 323, 327; Chicago City R. Co. v. Bundy, 210 Ill. 39, 45.

And we cannot agree with the contention that the damages awarded by the jury are excessive, in view of all the evidence.

For the reasons indicated, the judgment of the circuit court is affirmed.

Affirmed.


author: Mr. Justice Fitch

text:
    Jennie M. O’Brien, Appellant, v. Rose D. Rittman et al., Appellees.
    Gen. No. 17,439.
    1. Fraterna! societies—rules are "binding on members. By the act of joining a fraternal benefit association, a member impliedly agrees to be bound by its constitution, rules and by-laws.
    2. Fraterna! societies—expelled members must exhaust remedies within the order. Where the constitution and by-laws of a fraternal society provide for the trial of members before a certain tribunal with a right to appeal to a higher tribunal, a member claiming to have been wrongfully expelled cannot maintain a suit to enjoin the society from refusing further to recognize or treat him as a member or to compel by mandamus the restoration of his privileges as a member until he has exhausted all the remedies provided by the rules and laws of the society.
    3. Fraterna! society—remedy of expelled member charging libel is at law. Where a member, before exhausting his remedies within the society, seeks to enjoin a fraternal society and its tribunal from carrying into effect its edict of expulsion, and alleges that the tribunal did not act in good faith and is about to make the void expulsion the pretext for publishing a libelous report of proceedings in the official paper of the society, if the report is libelous the remedy is not in equity but at law.
    4. Fraterna! societies—when failure of expelled member to appeal is not excused. Where a member expelled from a fraternal society does not appeal to a higher tribunal as provided by the constitution and by-laws, and on a bill for an injunction alleges that because of the delay an appeal would amount to a denial of justice, in the absence of a showing that delay will deprive complainant of any of her rights, it will be presumed that if she were successful on appeal, she would be fully restored to all her rights, including any that might be lost pending the hearing.
    5. Fraterna! societies—when expelled member is not affected by prejudice of member of tribunal. Where a member of a fraternal order is expelled for violating the rules of the order in having a violent altercation with an officer at a meeting, the fact that such, officer was a member of the trial tribunal and on appeal would have the appointing of the higher reviewing tribunal is not a ground for enjoining the society from carrying out its edict of expulsion or of excusing a failure to take an appeal to such higher tribunal as provided by the constitution and by-laws.
    6. Pbatbbwal societies—remedy of expelled member is at law. Where a member of a fraternal society is expelled for violation of its rules, the remedy of the member is at law and not by an injunction to restrain the society and its directors from carrying into effect its edict of explusion.
    Appeal from the Circuit Court of Cook county; the How. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed January 9, 1913.
    Rehearing denied January 23, 1913.
    Francis A. McDonnell and Frank L. Fowler, for appellant.
    Richard W. Clifford and I. T. Greenacre, for appellees.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a decree of the circuit court dissolving a preliminary injunction and dismissing appellant’s bill of complaint. The case was heard upon the bill, the answers and a number of affidavits. It appears from these documents that for several years prior to the time of filing her bill of complaint, appellant was a member of a fraternal insurance society known as the Women’s Catholic Order of Foresters, which is one of the defendants to the bill; that the appellees, other than the society itself, constitute the board of directors or trustees, who are known as the High Court, and are entrusted with the management of the society, under the rules and regulations adopted by the “triennial session,” a convention composed of the High Court and representatives elected by the various subordinate courts or lodges of said society; that for several years appellant has been the financial secretary of one of the subordinate courts, and was paid sixty dollars a year for her services as such; that she was also chief clerk to the High Secretary of the order (who is her sister) and received a salary of nine hundred dollars a year for her services as such clerk, under a written contract covering a period ending in September, 1911; that she also holds a life insurance certificate for $1,000, issued to her by the society, upon condition that she comply with the laws, rules and regulations of the order; that at the last meeting of the ■ “triennial session” held in Detroit, in September, 1908, a ballot was taken for the election of a High Chief Banger, an officer corresponding to that of president in other corporations; that appellee, Bose D. Bittman, received four hundred votes and Elizabeth Bodgers 399 votes; that the latter gave notice of a contest; that said Bose D. Bittman at once took possession of the office and retained counsel to protect her rights; that such counsel rendered certain services in connection with a quo warranto proceeding instituted by Elizabeth Bodgers, and presented a bill to the society for $2,792 for fees in that matter, which was approved and ordered paid by the High Court, against the protest of the High Secretary, who, on the advice of other counsel, refused to draw or attest any voucher for the payment of said bill; that said High Secretary, though elected at the same time as said Bose D. Bittman, was on the same ticket with Elizabeth Bodgers and was very loyal to her; that out of these facts strife and dissension arose in the High Court, and it is charged in the bill of complaint (though denied by the answers, except the answer of the High Secretary) that the appellee, Bose D. Bittman, “began a system of persecution and palpable oppression of the said High Secretary, seeking to compel her resignation,” by interfering with her work, intercepting correspondence, removing her telephone, and by divers other like means set out at great length in the bill of complaint; that these differences culminated in appellant’s creating a disturbance in one of the meetings of the High Court, held in June, 1909, which disturbance is alleged by appellant to have consisted merely in her entering the room while a meeting was in progress, and leading out her sister, the High Secretary, who was crying and “suffering from the persecution which for five days had been practiced against her,” saying at the same time to the presiding officer (appellee, Rose D. Rittman), “You must not persecute my sister;” while on the other hand, it is alleged by all the answers, except that of the High Secretary, that appellant not only thus entered the room and led her sister out by the arm, but that she physically assaulted the High Chief Ranger; that as a result of such disturbance, formal charges were preferred against appellant and she was given a trial before the High Court, found guilty of violating the rules of the order, and sentenced to be expelled; whereupon appellant filed her bill of complaint, seeking to enjoin the society and its High Court from carrying into effect its edict of expulsion. It is alleged in the bill that the trial, and all proceedings connected therewith, were void for want of jurisdiction, and were characterized by manifest prejudice and gross unfairness; that the charges were unfounded in fact, and that appellant was entitled to a trial in any event, according to the rules of the order, by a jury of twelve in her own subordinate court. It appears, however, from the copy of the constitution and by-laws in evidence, that one of the provisions thereof expressly authorizes the High Court to try any member of the society for an alleged infraction of the rules.

It is' also alleged that the by-laws require a two-thirds vote of the High Court to expel a member; that the High Court consisted of eleven members, and while eight of these voted for the expulsion, one of the eight was appellee Rittman, who was personally interested and that without her vote, the necessary two-thirds could not have been obtained to a verdict of guilty. The constitution and by-laws also provide for an appeal to the triennial session of the order, and it is alleged in the answers, and supported by affidavits, that no such appeal was taken by appellant within the sixty days fixed by the by-laws for giving notice of such appeal. The bill also mentions this provision for an appeal, but avers that such an appeal would be of no avail to her, because of the alleged fact that the committee which would try the case on appeal would be the ‘1 creature by appointment” of the High Chief Banger, Bose D. Bittman. Hpon filing the bill and sundry affidavits submitted therewith, a temporary injunction was ordered. After the filing of the answers and a number of affidavits in support thereof, this injunction was dissolved. A petition for a change of venue on account of the alleged prejudice of the judge was then presented, which was denied and the bill of complaint was thereupon dismissed for want of equity.

It appears from the evidence that the appellee society is organized as a fraternal benefit association— a corporation not for profit. In Illinois, the rule is well established that by the act of joining such an association, a member impliedly agrees to be bound by its constitution, rules and by-laws. If a specified body of members is thereby given the power to hear and determine disputed questions concerning any matter covered by such laws or rules, with a right of appeal to a higher tribunal within the organization, the member impliedly agrees to resort to such remedies before bringing an action in court. Hence it is uniformly held that in such cases, a member who claims he has been wrongfully, expelled cannot maintain a suit to enjoin the society or association from refusing further to recognize or treat him as a member thereof, or to compel, by mandamus, the restoration of his privileges of membership, until he has exhausted all the remedies provided by the rules and laws of the society. People v. Women’s Catholic Order of Foresters, 162 Ill. 78; People v. Grand Lodge Knights of Pythias, 166 Ill. 71; Pitcher v. Board of Trade, 121 Ill. 412; Pacaud v. Waite, 218 Ill. 138; Allen v. Chicago Undertakers’ Ass’n, 232 Ill. 458.

In People v. Women’s Catholic Order of Foresters, supra, it is also said (p. 84): “There is a distinction between the question of the validity of the expulsion when it is set up as a defense to an action upon a benefit certificate or other contract, and the question of the validity of the expulsion when restoration to the privileges of the society is sought' to be secured through the writ of mandamus or other procedure. In the former case, it is sufficient for the beneficiary to show, that the judgment of expulsion was invalid, without further showing the exhaustion of all remedies within the order or society for the purpose of having the judgment vacated. * * * In the latter case, it must appear that the remedy provided by the rules of the society for the review of the judgment complained of was resorted to.”

In Pacaud v. Waite, supra, a sum of money had been deposited in a bank as margins upon contracts between two members of the Board of Trade of Chicago providing for the future delivery of a certain quantity of oats at certain prices, and as the result of an alleged “corner” in oats the market price of oats advanced far beyond the stipulated prices. Thereupon the sellers filed a bill seeking to enjoin the buyer from collecting the margins in accordance with the rules of the Board of Trade, offering to pay the difference between the contract prices and the actual prices at the time the contracts matured as distinguished from the alleged fictitious prices caused by the alleged “corner.” The lower court granted the injunction, but on appeal, the supreme court reversed this decision and remanded the cause with directions to dismiss the bill, upon the ground that the rules of the Board of Trade, which the complainants agreed to abide by when they became members thereof, required such disputes to be submitted to a committee of the board. It was there contended that a distinction should be made between cases involving only the right to discipline a member of such an organization and cases involving the property rights of the member. The court held, however, that no such distinction exists; that the agreement of a member to submit disputes to the decision of a committee is valid and enforceable according to its terms, whether property rights are involved or not, on the same principle that upholds and enforces agreements in building contracts which provide that payment shall only be made on architect’s certificates, or agreements for arbitration in fire insurance contracts, and the like.

In Pitcher v. Board of Trade, supra, it was held that where a member is expelled after a trial conducted in accordance with the rules of the association, the sentence of expulsion is conclusive upon him, and this decision was cited and the same principle followed in Pacaud v. Waite, supra.

Appellant’s counsel seek to avoid the application of these principles to the facts of this case by contending that an exception exists or should be made here because of the averments in the bill to the effect that appellant was entitled to be tried by a jury selected from her own subordinate court, that appellees have not acted in good faith, but are about to “make a void expulsion the pretext” for publishing a libelous letter in the official paper of the society, and that the provision of the by-laws for an appeal to the triennial session is unreasonable and amounts to a denial of justice because of the delay and the improbability of a fair hearing before a committee of the convention appointed by the High Chief Ranger.

As above stated the by-laws offered in evidence contain an express provision for such a trial as was had before the High Court. The publication referred to seems to be only a report of those proceedings. If the report be libelous, the remedy would not be in equity but at law. As to the alleged delay involved in the remedy by appeal, it does not appear from the bill or affidavits that mere delay will necessarily or probably deprive appellant of any of her alleged rights. In the absence of such a showing, it must be presumed that if she were successful on appeal, she would be fully restored to all her rights, including any that might be lost pending the hearing of the appeal. It is alleged in the answers (which are supported by affidavits) that at the last convention of the order, a number of similar appeals were heard, and that the Committee on Appeals, after such hearings, “ reinstated in good standing in said order persons who had been expelled therefrom by the decision of the High Court.” It cannot be assumed that a different result would have followed in appellant’s case, if she had given due notice of an appeal and had proved that she was entitled to a reversal of the decision of the High Court. As to the alleged prejudice and disqualification of part of her triers, the same contentions were made in Pitcher v. Board of Trade, supra, and in Green v. Board of Trade, 174 Ill. 585, and were there held untenable under circumstances akin to the facts in this case.

In what has been said above, we have endeavored to cover fully the points raised, in view of the very earnest contentions of counsel. We might well have based our conclusion in this case, however, upon the simpler doctrine so clearly stated in Bostedo v. Board of Trade, 227 Ill. 90, viz.: that ‘1 a court of equity will not 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 by-laws, and that the remedy of such member, if any there is, is in a court of law.” The same rule was repeated in Allen v. Chicago Undertakers’ Ass’n, 232 Ill. 458, citing a number of authorities, and must now be regarded as fully settled.

The decree of the circuit court will be affirmed.

Decree affirmed.

Mr. Justice McSurely, having heard part of the quo warranto proceedings referred to in the foregoing opinion, took no part in the decision of this case.


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    Andrew Rost, Jr., Administrator, Plaintiff in Error, v. The Parker Washington Company, Defendant in Error.
    Gen. No. 17,551.
    1. Instbuctions—directing verdict. It is a well settled rule that where there is no evidence, or but a scintilla of evidence tending to prove the material averments of the declaration, a verdict should be directed for the defendant, yet when there is evidence from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find that all the material averments have been proved, the case should go to the jury.
    2. Negligence—places attractive to children. As a general rule the law does not require that premises be kept in safe. condition for the benefit of trespassers, yet there is an exception in favor of young children where the things causing the injury have been left unguarded and are of an attractive character such as appeals to their curiosity and instincts.
    3. Negligence—when error to direct a verdict. In an action for the death of a child caused by falling into a river while playing on a sand pile on the premises of defendant, it is error to direct a verdict for defendant where there is evidence that children were permitted by the defendant’s watchman to play on the premises, that there was a thickly populated district near and also a street along the premises, and the sand pile was so situated that a fall from it would naturally cause a fall into the river.
    Error to the Superior Court of Cook county; the Hon. George A. Carpenter, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed January 9, 1913.

      F. W. Jaros, for plaintiff in error.
    McArdle & McArdle, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

This writ of error brings up for review a judgment for the defendant, entered upon a directed verdict. The instruction to find the defendant not guilty was given at the close of the plaintiff’s evidence in an action brought under the statute for wrongfully causing the death of plaintiff’s intestate, a boy ten and one-half years of age. The theory of the declaration is that defendant maintained an “attractive nuisance” on its premises, near to a public street in a populous neighborhood, in the shape of a huge sand pile located so close to the bank of the Chicago River that while the boy was playing on the same with other boys, as they were accustomed and had been permitted to do, he tripped, fell and rolled into the river and was drowned.

It is claimed by defendant in error that there can be no liability in this case because, it is said, the sand pile was not located near a public street, nor in a populous neighborhood; that a sand pile, in itself, is not dangerous, and that the evidence shows that the boy was not attracted by it but by the river, and that in any event, the deceased and his parents were guilty of contributory negligence.

After a careful study of the evidence in the light of these contentions, we think there is some evidence at least which, if believed by the jury, fairly tends to prove the following state of facts. The accident occurred in July, 1906. The defendant’s place of business or plant is located between the Chicago River and an elevated embankment about three hundred feet away, flanked by stone retaining walls, upon which run the tracks of the Chicago & Northwestern Railway, and between two streets, known as Dix Street and Lessing Street in Chicago. When the tracks of the railroad were elevated, the parts of both Dix Street and Lessing Street which lie between the embankment and the river were made stub ends by the construction of the embankment across both streets. There was another street, however, at that time, running parallel to the embankment, about midway between the embankment and the river, and this street led to Sangamon Street, which is the next street beyond Lessing Street. A viaduct or subway was constructed on Sangamon Street, permitting the passage of teams and vehicles under the tracks of the railroad and into the space between the railroad embankment and the river. This street, parallel to the embankment, is called Cornell Street by some of the witnesses and Dix Street by others. Defendant’s wagons entered its premises by driving under the viaduct above mentioned into Cornell Street, and thence directly into its plant. There was a switch track in Cornell Street leading from defendant’s plant along the center of Cornell Street to and beyond Sangamon Street and a wagon road on either side of the switch track. On one side of this street there was also a sidewalk leading to defendant’s plant. A claim is made by counsel for defendant in error that that portion of the stub end street known as Dix Street, running alongside of defendant’s plant from the embankment to the river, had been vacated, but this claim rests entirely upon the evidence of a blue print contained in the record, which is supposed to be a copy of a map offered in evidence by the plaintiff upon the trial. An examination of this blue print discloses the fact that it is a photographic copy of a map which was made in April, 1909, several years after the accident and several months after the trial. Hence, it is clear that this blue print was inserted in the record by mistake, and is not a copy of the. map used upon the trial. At the time of the accident there was a pile of sand “as large as a small house,” twenty or thirty feet wide and of considerable height, alongside of defendant’s yard and in the stub end of Dix Street. One end of this sand pile was close to the river bank which, at this point, is composed of piling rising four feet above the water. The sand pile could be seen from Sangamon Street, and it appears that boys living in the neighborhood which, beyond the embankment is a very thickly populated district, were in the habit of playing in the sand, without objection on the part of defendant. On Sunday, July 15, 1906, about two o ’clock in the afternoon, the plaintiff’s intestate was playing with four other boys in a puddle of water under the Sangamon Street viaduct. One of them proposed to go over to defendant’s yard to play “tag.” They walked down Cornell Street, following some wagons into the yard, which was not fenced or enclosed in any manner, and started to play on and about the sand pile. Defendant’s watchman saw them enter the premises but offered no objection. On the contrary, there is some evidence that he asked one of the boys to get a pail of beer for him and the boy did so. The boy, Parot, was “it” in the boys’ game, and while running on top of the sand pile towards the river he stumbled, fell on the sand, rolled down the side to the dock and thence into the river. It appears that deceased had been attending school for two years and a half before his death, but was still in the “baby class,” and was not as bright as boys of his age usually are.

Upon a motion for a directed verdict, the rule is well settled that-“if there is no evidence, or but a scintilla of evidence, tending to prove the material averments of the declaration, the jury should be directed to return a verdict for the defendant. If however, there is in the record evidence from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find that all the material averments of the declaration have been proven, the case should go to the jury.” Libby, McNeill & Libby v. Cook, 222 Ill. 207, 212.

In City of Pekin v. McMahon, 154 Ill. 141, it was held, that while, as a general rule, the law does not require the owner of land to keep his premises in safe condition for the benefit of trespassers or those who come upon them' without invitation, either express or implied, yet there is an exception to this rule in favor of young children “if the things causing the injury have been left exposed and unguarded, and are of such a character as to be an attraction to the child, appealing to his childish curiosity and instincts.”

In Stollery v. Cicero & Proviso St. Ry. Co., 243 Ill. 290, it was said: “Under the decisions of this state unguarded premises supplied with dangerous attractions are regarded as holding out an implied invitation to children, which will make the owner of the premises liable for injuries to them even though the children be technical trespassers. Whether or not such premises are attractive to children is a question for the jury. City of Pekin v. McMahon, 154 Ill. 141; Siddall v. Jansen, 168 Ill. 43; True & True Co. v. Woda, 201 Ill. 315.” To the same effect are Linnberg v. City of Rock Island, 136 Ill. App. 495; s. c., 157 Ill. App. 527; Lake Erie & W. R. Co. v. Klinkrath, 130 Ill. App. 322, rev’d 227 Ill. 439. The exception.thus stated has been qualified, however, in some of the cases to this extent; that the attraction must be upon premises adjacent to a public street or other public place where children of tender years may rightfully go, and the situation must be such as to charge the owner of the premises with knowledge of the danger to children if left unguarded or unprotected. St. Louis, V. & T. H. R. Co. v. Bell, 81 Ill. 76; Hanna v. Iowa Cent. R. Co., 129 Ill. App. 134; Grauslis v. Kellyville Coal Co., 127 Ill. App. 311; Heimann v. Kinnare, 190 Ill. 156.

To the contention that there is nothing dangerous per se in a sand pile and that, therefore, it is not, in and of itself, an attractive nuisance, it is enough to say that if this be conceded, yet when the sand pile is placed so near to the bank of a river that a fall from the sand pile would naturally cause a child to fall into the water, it must be regarded as dangerous, and that the danger therefrom is such that it should reasonably be anticipated and guarded against by the owner of premises located adjacent to a public street. At all events, these are questions of fact for the jury to determine.

For the reasons indicated, we are of the opinion that the court erred in giving the peremptory instruction. The judgment of the circuit court will therefore be reversed and the cause remanded for a new trial.

Reversed md remanded.