text:
    Rose Lapin, Appellee, v. Northwestern Elevated Railroad Company et al., Appellants.
    Gen. No. 15,526.
    1. Negligence—when lack of ownership <md control cannot be urged as defense. Ownership and operation is admitted in the absence of traverse of the allegations of the declaration in that regard.
    2. Passenger and carrier—when latter liable on account of injury sustained upon station platform. Held, under the evidence in this case, that the defendant company was liable where the injury resulted by reason of the slipping upon a banana peel, the principle applied being that the carrier was bound to the exercise of the highest degree of care, skill and diligence for the safety of the passenger consistent with the mode of conveyance employed.
    3. Passenger and carrier—when relation established. A party upon the platform of an elevated railroad station with the knowledge of the company that he intends to take a train, is a passenger when approaching the train to board it.
    4. Instructions-—when singling out employees will not reverse. If an instruction is vicious in that it singles out employees of the defendant company it will not reverse where instructions have been given at the instance of the company containing a like vice.
    Action in case for personal injuries. Appeal from the Superior Court of Cook count; the Hon. Marcus Kavanagh, Judge, presid-Court of Cook county; the Hon. Marcus Kavnagh, Judge, presid-
    Affirmed.
    Opinion filed May 31, 1911.
    Clarence A. Knight and William G. Adams, for appellant.

      Brady & Levy, for appellee; C. Stuart Beattie, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This is an appeal from a judgment for $2,000 entered upon a verdict in a "suit brought by the plaintiff below, Bose Lapin, against the appellants, Northwestern Elevated Bail-road Company, and Metropolitan West Side Elevated Bail-way Company, for the recovery of damages resulting from a fall caused by slipping upon a banana peel lying on one of the elevated railroad platforms, at State and Lake streets, Chicago.

The cause was tried upon the amended declaration filed July 21, 1908, in each of the counts of which it was alleged that both defendants operated an elevated railroad and possessed and maintained in connection therewith a certain platform station for the use of passengers in boarding or alighting from the' cars running upon the railroad.

The evidence shows that the plaintiff, Bose Lapin, with two friends had entered the elevated station at State and Lake streets for the purpose of taking a Logan Square train of the Metropolitan Elevated Bailroad. After waiting some time a Logan Square train came into the station and the plaintiff and her companions then left the bench on which they had been sitting, and while walking towards the train plaintiff fell, by reason of stepping upon a banana peel, and received the injuries for which suit was brought.

As a ground for reversal of the judgment it is urged that the court erred in refusing to instruct the jury to return a verdict for the appellant, the Northwestern Elevated Bail-road Company. In support of this it is urged that there is not the slightest evidence in the record tending to show that either defendant was liable for the negligence charged in the declaration. It is claimed the-extent of the proof in the case is that the plaintiff had paid her fare to the Metropolitan Company, and while walking across the platform provided for the passengers of the company she stepped and slipped on a banana peel which was lying on the platform, and that it is not shown that the Northwestern Company exercised or attempted to exercise any control of any kind over the platform. We think that under the pleadings and the evidence there is no merit in this contention. The declaration alleges that both defendants operated the elevated railroad and possessed and maintained in connection with it the platform station in question. Under the pleadings in this case there was no traverse of the allegations of the declaration in this regard. The ownership and operation of the road was admitted. McNulta v. Lockridge, 137 Ill. 270; C. & E. I. R. R. Co. v. Schmitz, 211 id. 458.

It is urged that the trial court erred in not setting aside the verdict as contrary to the evidence, for the reason that there is no evidence tending to show that either of the railroad companies had any notice of the presence of the banana peel upon the platform for a sufficient time before the accident to charge the defendants with notice, or that by the exercise of ordinary care and diligence they could have removed the cause of the injury from the platform. We think this contention is also without merit, in view of the care required by carriers of passengers under the rules in this state. It was the duty of appellants to exercise the highest degree of care, skill and diligence for the safety of the plaintiff consistent with the mode of conveyance employed. Lake Street Elevated R. R. Co. v. Burgess, 200 Ill. 630. In N. Y. C. & St. L. R. R. v. Bloomenthal, 160 Ill. 48, it was held that the happening of an accident to a passenger during the course of his transportation raises a presumption that the carrier has been neglectful, and that the burden of rebutting this presumption rests upon the carrier, especially if the injury to the passenger is caused by apparatus wholly under the control of the carrier. That case further holds “that proof that plaintiff was a passenger when the accident happened and that the injury was inflicted, imposed upon the carirer the duty of explaining or accounting for the accident and to prove that it resulted from a cause for which the carrier should not be held responsible.”

It is contended that the trial court erred in giving instructions 1 and 2 requested by the plaintiff and in refusing to give instruction 6, requested by appellants. In our opinion instructions 1 and 2 correctly state the law of this jurisdiction with reference to the duty of a common carrier to its passengers. We think the refused instruction 6, requested by defendants, was properly refused, for the reason that it did not state correctly the degree of care and diligence to be observed by the defendants towards the plaintiff as a passenger. A party upon the platform of an elevated railroad station, with the knowledge of the company that he intends to take a train, is a passenger when approaching the train to board it. Lake Street E. R. R. Co. v. Burgess, supra.

It is contended that the court erred in giving instruction 6 requested by appellee and in refusing to give instruction 2 requested by appellants. Instruction 6 was first passed upon by this court in N. C. Ry. Co. v. Gastka, 27 Ill. App. 518. That case went to the Supreme Court, where the judgment was affirmed. 128 Ill. 613. The same instruction was again before this court in W. C. St. R. R. Co. v. Loftus, 83 Ill. App. 192, and it was there held to be a substantially good instruction.

Instructions 3, 7 and 8, given at the request of plaintiff, are claimed to be erroneous. We think instruction 3 is authorized by Ill. Cent. R. R. Co. v. Cole, 165 Ill. 334. Ins truction number 7 is directed to the credibility of the witnesses and we think the instruction does not contain material error. Instruction number 8 is criticized as bad by appellants, as singling out the defendants’ witnesses, their employees, the purpose being, it is urged, to afford the jury a justification for disregarding the testimony of the employees of defendants, who testified as to the inspection, care and condition of the platform in question. Appellants, however, tendered and the court gave the second instruction asked by the defendants, to the effect, “that while they are the judges of the credibility of the witnesses they have no right to disregard the testimony of an unimpeached witness sworn on behalf the defendants simply because such witness was or is an employee of one of the defendants, but it is the duty of the jury.to consider the testimony of such witnesses in the light of all the evidence, and to determine the credibility of such employees by the same principles and tests by which they determine the credibility of any other witness.” In our opinion appellants cannot complain of the giving of instruction 8, asked by the plaintiff, in view of the fact that they asked, and the court gave, the above quoted instruction. The two instructions together, with the defendants’ instruction regarding the credibility of plaintiff, covered the whole subject of parties and witnesses in this case and left no opportunity for injury to appellants. We find no material error in the refusing of instructions 1, 3 and 5 requested by appellants. We think those instructions were misleading and were properly refused.

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

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Smith

license: Public Domain

text:
    Frederick A. Migely, Appellee, v. Rudolph E. Migely et al., Appellants.
    Gen. No. 15,543.
    1. Fraud—jurisdiction of chancery. Chancery will take jurisdiction to set aside a trust agreement the execution of which was induced by fraudulent representations.
    2. Negotiable instruments—when extension of time of payment ineffective. The extension of the time of payment of a promissory note not based upon a valid consideration and induced by fraudulent representations, is invalid and will be disregarded in a court of equity.
    Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed May 31, 1911.
    Hally Haight, for appellant.

      Kruse & Peden and Rot C. Merrick, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

September 27, 1905, Rudolph .E. Migely, Emma Migely, William Migely, Hattie Migely, Jeannette Reuss, Joseph Reuss, Andrew Migely, Catherine Migely and Walter Migely, the brothers and sisters of Frederick A. Migely, appellee, executed and delivered to Frederick A. Migely, a promissory note of $6,000, payable three years after date, with interest at five per cent per annum. On September 27, 1907, the note having by partial payments been reduced to the principal sum of about $3,500, appellee, Frederick A. Migely, deposited it in trust with his brother Rudolph E. Migely, at the same time signing with said Rudolph E. Migely a memorandum of trust, as follows:

“Chicago, Ill., Sept. 27, 1907.
I hereby voluntarily leave in trust with Rudolph E. Migely all my money, property and estate which consists of a note signed by my brothers and sisters, on which there is a balance yet due me of not exceeding $3,500.
I direct that said Rudolph E. Migely shall in no event pay ' me or be obligated to pay me all or any part of said money or property, prior to and until September 27, 1912.
I direct that I shall not be permitted or empowered to encumber in any way said money or property during this period of trust, and it is stipulated that any encumbrance or hypothecation thereof until September 27, 1912, shall be absolutely void.
The reason this trust is made is because I have heretofore been negligent and reckless in the management of my property and money, and have dissipated and squandered the greater part of it through drink and riotous living, and this trust is made therefore for my benefit, at my request, and in my interest, and at my solicitation, so as to put the remaining small part of my estate in such a place that I myself cannot, through any act of mine, impair it or the income thereof, until said September 27, 1912.
The consideration for this trust is that said Rudolph E. Migely will faithfully hold said money and property and keep it invested at a reasonable rate of interest, not exceeding 5 per cent, per annum, and shall, on September 27, 1912, at Merchants’ Loan & Trust Company, Chicago, Ill., turn over and deliver to me all said property and money, with interest accured thereon, less his reasonable costs, expenses and fees; and the further consideration is the foregoing premises and the consequent benefits to me and my property.
Frederick A. Migely. (Seal.)
Witnessed by:
September 27, 1907.
I hereby accept the trust herein provided for and agree to execute and carry out the same to the best of my ability.
Rudolph E. Migely. (Seal.)
Witnessed by:”

On December 4, 1908, appellee, Frederick A. Migely, filed in the Circuit Court of Cook county, Illinois, his bill of complaint, against the makers of the note alleging that on September 27, 1907, Rudolph E. Migely and Joseph Reuss, acting for the makers of the note, represented to him that the makers were unable to pay the note at maturity and would be so for a considerable time, and it was necessary he should extend the time of the payment of the note; that by September 27, 1907, appellee, Frederick A. Migely, had become indebted to Rudolph E. Migely and the Merchants’ Loan & Trust Company, and that Rudolph had paid off the indebtedness, and it was agreed between the parties that a balance of $3,500 remained due on the $6,000 note, after deducting the indebtedness to Rudolph and the Merchants’ Loan & Trust Company; and appellee further alleged that he was induced by said representations to sign and did sign the above mentioned trust memorandum, which left the note in trust with Rudolph, and provided he should not pay appellee any part of it before September 27, 1912, and that appellee should not encumber said money before September 27, 1912, and alleging that said instrument recites that the reason for making it was that appellee had heretofore been neglectful and reckless in the management of his property and had squandered a great part of the same; and that it is further recited in said instrument that Rudolph should hold the money and invest it and on September 27, 1912, turn over to appellee the money with interest accured thereon, less the necessary expenses of administering the trust; and the bill further alleges that it was recited in said instrument that the consideration therefor was the benefits to be accrued therefrom to appellee and his property, and the terms set forth in said instrument. The bill makes the instrument as above set forth an exhibit and a part of the bill. The bill then alleges that during the negotiations recited, in the execution of said instrument appellee was represented by counsel, whom he supposed to be working in his interest, and that appellee paid little attention to the details of said instrument, and procured no copy of it at that time; that he has since learned that counsel purporting to represent him in reality represented and worked for the interest and benefit of Rudolph E. Migely and Joseph Reuss. It is alleged in the bill that the note became due September 27, 1908, and that the balance of about $3,500 thereon remains unpaid and its makers refuse to pay it, alleging as their reason the matters and purpose of said agreement. The bill further alleges that the agreement is void and without consideration; that it was procured from appellee by fraud and misrepresentation, and that it ought to be surrendered and canceled in order that he may collect the money on his note.

The bill further alleges that Rudolph E. Migely has had the note ever since September, 1907, and now holds it, and refuses to deliver it to appellee or allow him to see it, or copy it, or to furnish appellee with a copy thereof.

The bill makes the makers of the note defendants, and prays for an answer without oath, an accounting and decree that the makers pay whatever sum appears to be due appellee on taking the account, and that the defendants be decreed to deliver up the agreement to be canceled, and to deliver to appellee his note, and that the contract be decreed null and void and the note decreed to be the property of appellee free of any claim of defendants.

The bill prays for summons to be issued in several counties, but service was had only on Eudolph E. Migely. Eudolph E. Migely appeared and demurred generally and specially to the bill, on several grounds, which it is not necessary to set out in detail. Appellee subsequently dismissed his suit as to all defendants except Eudolph E. Migely, and a hearing was had on Eebruary 1, 1909, on the demurrer to the bill. The court overruled the demurrer; whereupon, Eudolph E. Migely elected to stand by his demurrer, and the court thereupon entered decree upon the bill, taking it as confessed, finding the facts substantially as set out in the bill and granting the relief prayed for. From this decree Eudolph E. Migely prosecutes this appeal.

In our opinion the bill shows facts entitling the complainant to equitable relief. The facts as stated in the bill were admitted by the demurrer and must be treated on this appeal as having been admitted to be true. The instrument described in the bill was a mere volunteer placing of the note in the hands of the defendant without consideration and it was revocable. We think under the averments of the bill the execution of the trust agreement under which the note was placed in the hands of the defendant Eudolph E. Migely, was procured by fraud and deception, and that the complainant makes out in his bill a clear case of being overreached and fraudulently induced to place his property in the hands of the defendant; that the legal advice which he relied upon in the matter of the execution of said instrument seems to have been given rather in the interest of the defendant than in the interest of the complainant.

The decree ordered the note delivered to the complainant, and declared the trust instrument null and void, and we think it just and equitable and it is therefore affirmed.

Affirmed.


text:
    People of the State of Illinois, ex rel. William D. Voss et al., Defendants in Error, v. Elton Lower et al., Plaintiffs in Error.
    Gen. No. 16,748.
    1. Writ of error—who cannot maintain. A writ of error cannot be maintained by persons who were not parties to the judgment and who are not directly affected thereby.
    2. Dimissals—rights of plaintiffs. Where no counter relief has been asked by defendants a plaintiff may dismiss his suit either in toto or as to certain defendants when he sees fit regardless of any undisposed of pleas or demurrers that may have been filed. .
    3. Mandamus—section 7 of Act construed. By virtue of this section of the Mandamus Act the court is not bound to join any party who may appear and claim to have an interest; the right conferred by statute is discretionary.
    4. Res judicata—when judgment in mandamus not. A judgment in mandamus rendered in a proceeding which related to the civil service, is not res judicata as to the rights of persons not parties to the proceeding.
    Mandamus. Error to the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Writ dismissed.
    Opinion filed May 31, 1911.
    Rehearing denied and opinion modified and refiled June 16, 1911.
    Fyffe & Adcock, for plaintiffs in error.
    Hoyne, O’Connor, Hoyne & Irwin, for defendants in error; Maclay Hoyne and Card J. Appell, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment of the Superior Court of Cook County awarding a peremptory writ of mandamus in accordance with the prayer of an amended petition as amended, filed by William D. Voss, J. Blaney, John J. Gavin and John Q. Beilly, petitioners below and defendants in error here.

The proceedings and judgment in this cause was before this court on the appeal of William Fitzgerald in Voss v. Prentiss, 154 Ill. App. 609. The petition in the cause as amended and as now before this court in this proceeding is set out in the report of the case on that appeal, and it is unnecessary to restate the same or the proceedings in the court below had upon the petition.

The first question presented for consideration in this writ of error is whether the plaintiffs in error have a right to sue out this writ of error to review the judgment of the Superior Court entered February II, 1908.

It is contended on behalf of plaintiffs in error that they were both proper and necessary parties to the petition in the Superior Court because they were vitally interested in the subject-matter of the petition and the judgment rendered. The plaintiffs in error had been appointed from the consolidated list, and it is claimed that if the consolidation of the lists was invalid as held by the Superior Court, their title to their positions 'was directly affected, although there was no prayer in the petition directly affecting the plaintiffs in error, nor does the judgment entered in the cause run against plaintiffs in error or in any wise directly affect them. The prayer of the petition was directed to the individuals composing the Civil Service Commission of the City of Chicago, and the judgment commanded them as members of the board of Civil Service Commissioners to vacate and set aside an order or resolution adopted and entered of record by the Civil Service Commissioners on November 9, 1906, ordering a consolidation of the three separate lists or registers of persons eligible for positions to be filled by promotion to vacancy or vacancies in the offices of desk sergeant, patrol sergeant and detective sergeant of the Police Department of the City of Chicago. The judgment sought to be reviewed by this proceeding, in pursuance of the prayer of the petition, directed the Civil Service Commissioners to certify to the General Superintendent of Police the names of the persons eligible for promotion from each of the said separate lists and registers existing prior to the date of the entry of the order of consolidation, and that the Comptroller not only place the names of the four petitioners on the pay roll, but also such other names as may be certified to him on the list of officers of the Police Department of the City of Chicago. FTo relief was asked against the plaintiffs in error in this proceeding, and no judgment was entered against plaintiffs in error, and it does not appear to us that the judgment directly affects the plaintiffs in error, or either of them, in any particular whatsoever. It does not bind them, as they were not parties to the judgment; and the question is, can these plaintiffs in error, who were not parties to the petition and are not parties to the judgment, and who are not directly affected by the judgment, maintain the present proceeding for the purpose of reversing that judgment.

The plaintiffs in error here are in an anomalous position. They are complaining of a judgment which was not rendered against them, which was entered in a suit that they did not bring or in which they had prayed any relief. If they are still enjoying the offices or positions to which they were appointed it does not appear that they will necessarily be removed or in any wise affected in their positions by the judgment entered against the Civil Service Commissioners, and the Superintendent of Police and Comptroller. Although the plaintiffs in error were made parties to the proceedings below, the suit was dismissed as to them and the judgment of the court was pronounced against the original defendants and commands them to do certain things. Voss v. People, supra. In that case the court said: “The defendants attempted to. be dismissed out of the case by the last order were effectually out of court when the final judgment order was entered. They are not prejudiced because the cause was not formally dismissed as to them in the final judgment.”

The elementary rule is that where no counter relief has been asked by defendants, the plaintiff may dismiss his suit either in toto or as to certian defendants, whenever he sees fit regardless of any undisposed of pleas or demurrers that' may have been filed. If this should result in an erroneous judgment against the remaining defendants, they alone can complain.

It is claimed, however, that by virtue of section 1 of the statute on mandamus, persons not ordinarily defendants may appear before the court and set up any claim, right or interest in the subject-matter and may be made defendants and may be required to answer or demur in the same manner as if they had been made defendants to the original petition. This provision of the statute gives the court a discretion to admit as defendants any persons who may claim a right or interest in the subject-matter of the suit. This discretion is undoubtedly' a reasonable discretion. The court is not bound to order any party joined as defendant who may appear and claim to have an interest, but where no substantial interest in the subject-matter is shown, and the party does not show by -his pleadings that his rights will be directly affected by the judgment of the court. If a party under this section appears and asks to be made a party defendant, but does not exhibit any substantial interest in the subject-matter, and it appears to the court that he has been improvidently joined as a defendant, we think it beyond question that such party may be dismissed out of court.

In Winstanley v. The People, 92 Ill. 402, it was held that this section does not permit any interpleading nor the asking of affirmative relief by parties who have but a remote or theoretical interest in the subject-matter, and that the statute merely contemplates the bringing in of such persons as defendants against whom the writ might properly issue. It is nowhere shown in the proceedings now before the court how any writ could- have been issued against the plaintiffs in error or either of them.

The petitioners, who were only four in number, asked for a writ commanding that they be certified for promotion and appointed to certain positions. Their petition sets forth that there are more than four vacancies in such positions. They can be appointed, therefore, without displacing anybody else. In any event the thirty-four plaintiffs in error could not possibly all be displaced by the appointing of the four petitioners, nor is there any means of knowing from the record before us which ones, if any, would be displaced by such appointments, and which ones, if any, would have any interest in the subject-matter. Some of them would certainly have no such interest, and there is little likelihood that any of the others would have such interest.

The record shows that the plaintiffs in error had satisfactorily passed the examination for detective sergeant, and later had been appointed to sergeancy positions, but as the record further shows that fifty-seven of the sergeancies were detective sergeancies to which petitioners do not claim any right whatever, it does not appear that plaintiffs in error could be in any manner affected by any readjustments in the offices or positions of desk or patrol sergeants incident to the appointment of the petitioners in the proceeding to these positions. It is to be observed that the petition for a mandamus nowhere asks that any examination held by the Civil Service Commissioners be set aside. If Fitzgerald or any of the plaintiffs in error took the examination for detective sergeant or other positions, and were appointed to such positions, there is nothing apparent in the record before us that either Fitzgerald or any of the plaintiffs in error would lose their positions or be otherwise injured by the advancement of the four petitioners to the positions of desk and patrol sergeants. Fitzgerald, .however, no longer complains of the judgment below, he being one of the eleven appointed from the consolidated list, who, together with the City of Chicago and its officials, refused to appear and assign errors, and consequently were severed by an order of this court entered October 14, 1910.

We think it is sufficiently clear that the judgment of the court below was not and is not res adjudicata as to any of the rights of any of the plaintiffs in error, nor does it directly affect or necessarily affect the rights of plaintiffs in error. The mere fact that it commands the appointment of the four petitioners would not necessarily oust any of the plaintiffs in error from the positions which they occupy, nor does the destruction of the consolidated list of appointments, which the judgment commands, necessarily affect the, positions of plaintiffs in error because at the date of the judgment the plaintiffs in error were not in said consolidated list. Plaintiffs in error had already been appointed to their present positions from said list when the judgment complained of was rendered, and consequently their names no longer appeared on that list, nor would they be affected by the judgment ordering its cancellation. The characterization of the attitude of Winstanley by the Supreme Court in Winstanley v. People, supra, expresses very succinctly and clearly the position of the plaintiffs in error with reference to the judgment which they seek to reverse. The court said, “Winstanley appears herein in the attitude of one who insists upon becoming plaintiff in a suit he did not bring, and one who complains of a judgment rendered in a suit to which he was not a party.”

We are of the opinion that the plaintiffs in error are not shown to be in any wise affected by the judgment sought to be reviewed, and they therefore have no right to complain of the judgment. In view of this conclusion it is unnecessary for us to consider and pass upon the other questions raised by the record in this case. The writ of error must be dismissed.

[Writ dismissed.


author: Mr. Justice Baldwin

text:
    Robert D. Sheppard, Appellee, v. Berkshire Life Insurance Company et al., Appellants. On Appeal of Berkshire Life Insurance Company
    Gen. No. 15,445.
    This case is controlled by the decision in Sheppard v. The Berkshire Life Insurance Company, 161 Ill. App. 467.
    Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded with directions.
    Opinion filed May 23, 1911.
    Thoman, Harnwell & Pearsons and Edwin White Moore, for appellant.
    John H. S. Lee, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

The subject matter of the appeal in this case has been fully covered in the opinion filed, this day in the case of Sheppard v. The Berkshire Life Insurance Company et al., (No. 276-15,439), which was the appeal of Curran from the same decree as that from which the Berkshire Life Insurance Company appeals in this case. The two appeals were consolidated for hearing in this court. (See 161 Ill. App. 467.)

For the reasons given in that opinion, the decree appealed from must be reversed and the cause remanded, with instructions to the court below to enter a decree in conformity with the views expressed in said opinion. Costs in this Court to be taxed against appellant.

Reversed and remanded with instructions.


text:
    Carrier-Low Company, Appellee, v. Benjamin Keys, Appellant.
    Gen. No. 15,456.
    Set-off—how must he established. Before a party can be allowed a claim of set-off, he must show with some reasonable degree of certainty what the claim amounts to and the items thereof.
    Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed May 31, 1911.
    Lee & Lee, for appellant.

      Charles S. Knudson, for appellee.
   Mr. Justice Baldwin

delivered the opinion .of the court.

This is an appeal from a judgment of the Municipal Court in favor of appellee' for $919.55 and costs.

The plaintiff is a corporation, engaged in the manufacturing of paper cartons or boxes, which it claims to have sold and delivered to the defendant. The declaration contained the common counts, and the affidavit of claims was for goods, wares and merchandise sold and delivered, amounting to the sum of $1,051.19.

Appellant is the inventor of a patent paper carton or box, used in shipping eggs. These cartons or boxes he did not manufacture, but made a contract with appellee to manufacture for him at a specified price. During the period from 1905 down to August, 1908, the time of the beginning of this suit, appellant placed large orders from time to time with appellee for the delivery of specific quantities of these boxes at his Chicago place of business. Appellant solicited orders for the cartons from his customers, which orders he himself filled. As appellant received the goods, he made payments from time to time upon account, but his account during the entire period was never balanced. Upon the trial, it was conceded that, after crediting the various payments by appellant there would be due to appellee a balance of $1,051.19, except that appellant claimed to be entitled to an off-set for cartage, express.paid by him, defective goods supplied, and shortage in quantities claimed to be delivered. These various items of set-off appellant claimed would aggregate considerably more than the total amount of the claim of appellee against him.'

From the testimony it appears that, though appellant claims items of set-off under the previous enumeration during the entire period of their business arrangement, yet at no time had he either charged against appellee upon his books any specific amounts by way of damage or shortage or had he at any time claimed from it any specific amount.

The testimony shows that, on various occasions, when he was asked for money, he stated to appellee that he had some claims against it for expressage, shortage, etc., and that he would come and see about it. Appellant having conceded the correctness of the claim of appellee, made such proofs as he could concerning his various items of set-off before the jury, and the jury allowed the set-off in the amount of $141.64.

We have carefully read the entire evidence, and do not find from the whole testimony any such definiteness and conclusiveness as would justify us in interfering with the verdict of the jury. That appellant was entitled to a set-off in some amount is probable; that he may have been entitled to more than the jury allowed him, if he had been able sufficiently to prove his set-off, is also probable, but upon the testimony actually adduced, we do not think we should disturb the verdict of the jury.

In a somewhat similar case the Supreme Court said: “The evidence given on the part of appellants was entirely too uncertain and indefinite to form the basis of an allowance by way of recoupment or set-off. Neither Mr. Martin, the president, nor Mr. Brownlee, the superintendent, of appellant, was able to give the number of wheels returned or the cost of the repairs. Before a party can be allowed a claim of set-off, he must show with some reasonable degree of certainty what the claim amounts to and the items thereof.” Martin & Co. v. Roehm, 92 Ill. App. 87.

We think it apparent that appellant desired to avoid any controversy with the appellee over the matter of his set-off, which would in any way interfere with their business relations. He regarded as very much to his interest that they should continue to manufacture his cartons or boxes, and he may have allowed many items to pass which, had his attitude and method 'been different, might have properly formed the basis of a very substantial claim of set-off.

No questions of law are presented to us for consideration. The amount of set-off to which appellant was entitled is purely a question of fact, and from a careful examination of the testimony we are not able to say that the verdict does not do substantial justice to appellant, upon the evidence submitted. The judgment will, therefore, be affirmed.

‘Affirmed.


text:
    People of the State of Illinois, ex rel. United Theatres Company, Appellee, v. Fred A. Busse, as Mayor, etc., et al., Appellants.
    Gen. No. 15,461.

      License—when mayor not authorized to refuse, to place of amusement. Merely because of its location in close proximity to a church which had long been there situated, the mayor has no power to refuse to grant a license to a place of amusement of the moving picture class so-called.
    Mandamus. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed May 31, 1911.
    Statement by the Court. This is a petition in the Superior Court of Cook county for a writ of mandamus to compel the defendants to issue licenses to the relator, the United Theatres Company, to carry on and conduct a moving picture entertainment on the premises at Nos. 4739—4741 South Ash-land avenue in the city of Chicago, for a period of one year, upon the tender and payment by relator of the license fee required by ordinance. The Superior Court entered an order awarding the mandamus, from which order defendants appealed to this court.
    The amended petition alleges that the relator is a corporation existing under the laws of Illinois and authorized to conduct an amusement and theatrical business; that it had expended over $13,000 in fitting up certain premises at 4739— 4741 South Ashland avenue, of which premises it was the lessee; that it had made application in writing to Fred A. Busse, mayor, and Ernest J. Magerstadt, city collector of the city of Chicago, for a license to conduct such business on the aforesaid premises; that the application had been referred to and approved by the city electrician and fire marshal; that relator had complied with all the requirements of the city ordinances governing the issuance of said license, but that the said mayor and city collector arbitrarily refused to grant the same. The relator then prays for a writ of mandamus to compel the mayor and city collector to issue the license.
    The ordinances governing the issuance of licenses for amusement entertainments of this class are set out in the petition, and are as follows:
    Chapter 6, Section 99, of the City Ordinances:
    “Fifteenth Class: When in any room, place, premises, or part thereof, any entertainment is carried on, conducted or engaged in, (whether such place be a saloon, or grocery or other place) of the kind commonly known as a mutoscope parlor, penny arcade, or other place where entertainment is furnished through or by one or more automatic moving picture devices or other similar devices, such entertainments shall belong to and be known as entertainments of the fifteenth class.”
    Chapter 6, Section 101, of the City Ordinances reads:

      "Application for License—Mayor may Refuse—Gause for Refusal. Any person or corporation desiring to produce, present, conduct or offer for gain or profit any of the entertainments, exhibitions, or performances mentioned in any of the sixteen classes specified in this chapter, at any place within the city, other than within a duly licensed place as hereinafter provided for, shall make application to the mayor in writing, setting out the full name of the applicant, a description of the kind and class of entertainment he or it intends to offer, and the place at which it is desired to produce, present, conduct or offer such entertainment, exhibition, or performance. Upon the payment by such applicant to the city collector of the license fee hereinafter specified for the particular class of entertainment such applicant desires a license for the production or presentation of, the city clerk shall issue to such applicant a license authorizing him to conduct, produce, present, or offer the class of entertainment specified in such license, at the place described in such application and for the period of time specified in such license; provided, however, that if the place at which it is desired to offer such entertainment he not a fit or proper place and not conducted or maintained in accordance with the provisions of the ordinances of the city governing or controlling such places, or if the entertainment desired to be produced or offered be of an immoral or dangerous character, or if the persons making application for a license be not of good moral character, the mayor may refuse to approve such application <md no license shall he issued by the city clerk except upon the approval of the application therefor by the mayor.”
    The amended answer admits the incorporation of the relator; that it is the lessee of the premises; that it has expended money in fitting up the premises; that the city ordinances are as set forth in the petition; that the relator has made application for a license and tendered the license fee in the proper amount; and admits that the mayor and city collector have refused to grant the license.
    The answer denies that the relator has complied with all of the city ordinances; and that the action of the defendants is wrongful; but avers that it was within the power of the mayor to deny an application for a license when the location of the place selected is not a proper place; that the reason in this casé for refusing the license was on account of the proximity of the place to St. Eose of Lima’s Church, it being within 118 feet on the same side of the street; that the pastor of said Church had protested in writing against the establishment of a place of amusement so near the church; and that the mayor believing he was conserving the best interests of the city, had refused and still refuses to grant the license to the relator to conduct a place of amusement in said premises.
    A general demurrer was filed to this answer, and, on hearing, the demurrer was sustained, with leave to defendants to amend. The defendants excepted to this ruling, and elected to stand by their answer, whereupon judgment was entered awarding the writ of mandamus as prayed in the- petition. The defendants then prayed an appeal to this court.
    Appellants assign as error (1) that the court erred in sustaining the demurrer of the relator to the amended answer of the appellants; and (2) that the court erred in awarding the writ of mandamus requiring the appellants to issue and deliver the license prayed for in the petition.
    Delator contends that the mayor was not justified in refusing to grant a license for a place of amusement on the premises on the ground of its propinquity to a church, because the words of the ordinance “fit and proper,” referred to the inherent character and condition of the neighborhood and not to its location; also that appellants in their answer and amended answer do not deny the allegation in the petition that the place was “fit and proper,” and therefore admit it, and the mandamus was properly issued; also if the ordinance can be construed to authorize the mayor to refuse a license for an amusement concern on account of its location, then the ordinance in that regard is invalid.
    Edward J. Brundage and Oscar H. Olsen, for appellants.
    Herman Frank, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

In this case appellants stand upon their contention that “the sole question at issue in this case” is, whether the action of the mayor, in refusing to grant the license in. question, for the reason set forth in the amended answer for appellants, that the proposed place of amusement is on the same side of the street and within 118 feet of a church which had been established for thirty years at that point, constituted a proper exercise, by such officer, of the discretion expressly vested in him by the ordinance of the city, or whether such action was an .abuse of such discretion. Accordingly, the question directly presented for our decision is whether the phrase in the ordinance “fit and proper place,” has, or should have, reference to the physical location of the place at a given street number.

By the 58th clause of section 1 of article 5, chapter 24, of the act relating to Cities, Villages and Towns, prescribing the powers of the city council, power is conferred upon the city council to “regulate places of amusement.”

Clause 95 of the same section and act has been recently before our Supreme Court in the case of People v. Busse, 240 Ill. 338. By that clause, the city council is given power “to tax, license and regulate second-hand and junk stores,” etc. Under the authority thus conferred, the city council provided, by section 692 of its Municipal Code, as amended July 13, 1908, that “it shall not be lawful for any person or corporation * * * to locate, build, construct or maintain on any street' or alley in the city, any building or place used for a junk shop or yard without the written consent of a majority of the property owners in which said junk shop or- yard is sought to be built, constructed or maintained.” There was thus clearly presented to the Supreme Court the question whether, the charter power conferred upon the city to regulate junk shops, enabled the city to determine their location, and the court held squarely against the contention of the city, and decided that it did not.

The Supreme Court has, also, recently held that the business of conducting a theatre is a private business, and that “in respect of the power of the legislature to tax or license it, the business of conducting a theatre is in no different condition from any other business. The legislature may impose a tax upon, or require a license fee, for the exercise of any avocation. The legislature has the same authority over a theatrical business as over any other private business and no more.” People v. Steele, 231 Ill. 340 (344),

However commendable the purpose of the Mayor may have been in attempting to prevent the location of this place of amusement in such close proximity to a church long established, we cannot construe the lang’uage of the ordinance in such a manner as to effectuate this purpose of the mayor, without violating the law, as laid down by our Supreme Court.

There being no other question involved in the case, and being of the opinion that the court below did not err in awarding a peremptory writ of mandamus, its action will, therefore, be affirmed.

Affirmed.


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    Anastasia Quinn, Appellee, v. North American Union, Appellant.
    Gen. No. 15,472.
    1. Fraternal benefit societies—what constitutes contract of insurance. The contract of insurance between the parties consists of the benefit certificate, the laws of the society and the application.
    2. Fraternal benefit societies—presumption as to notice of by-laws. The members of a fraternal benefit society are conclusively presumed to have notice of and be bound by its by-laws.
    3. Fraternal benefit societies—effect of proofs of loss showing death while engaged in prohibited occupation. If a plaintiff suing upon a benefit certificate puts in evidence proofs of loss which show that death resulted to the insured while engaged in a prohibited occupation, it is proper for the court to act upon such showing and instruct the jury accordingly.
    4. Fraternal benefit societies—when engagement in prohibited occupation precludes recovery. If the insured contrary to the terms of the contract with the society engages in a prohibited occupation and while engaged therein meets death, no recovery upon the certificate will be sustained.
    5. Fraternal benetit societies—when limitations of liability with respect to occupations not unreasonable. Fraternal benefit societies have a right to limit their insurance to persons not engaged in hazardous or extrahazardous employments. Held, in this case, that the limitation against engaging in the occupation of railroad switchman etc., was not unreasonable.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Albert M. Rose, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and finding here.
    Opinion filed May 31, 1911.

      Statement by the Court.; Anastasia Quinn (appellee) recovered a judgment for $2,000 against the Worth American Union (appellant) in the Circuit Court of Cook County, upon a benefit cértificate issued by that organization to one Frank A. Quinn, the deceased husband of appellee.
    The declaration consists of but one count, based upon the benefit certificate in question, and alleges that Quinn died while he was a member, in good standing, of that organization.
    Appellant filed a plea of general issue, and also filed a special plea, in which it was alleged that, as á condition of accepting Quinn as a member of the organization, it was expressly provided that he should comply with all its laws, rules and regulations,^—that being made a material part of the contract; that the laws of the Association, during the entire time of his membership, provided that if Quinn should at any time become engaged in the occupation of a railroad switchman, or railroad hrakeman on freight trains, his membership should thereby and therein terminate, and all rights, interests, etc., should be forfeited and absolutely terminated without proceedings for expulsion or otherwise.
    It was further alleged in this special plea that the laws of appellant, at the date of the certificate, and continuously until the date of the death of Quinn, expressly forbade any member engaging in the occupation of railroad switchman, or railroad brakeman on freight trains, and that, after he became a member of the organization, and in violation of the agreement on his part, and of the laws, rules and usages of the organization, he entered into and .became engaged in the occupation of a railroad brakeman on freight trains, and that his death was occasioned while he was employed and engaged in said occupation; that by reason thereof his membership became terminated before his death.
    A jury trial was had, resulting in a verdict for appellee, upon which, after overruling a motion for a new trial, the court entered judgment January 9, 1909.- Appellant assigns as error improper instructions given on behalf of the plaintiff, and improper refusal of instructions asked on its behalf, and error in overruling its motion for new trial, and further that the verdict and judgment are each clearly against the law and the evidence.
    R. E. Hamilton, for appellant.
    D. G. Ramsay and I. W. Foltz, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

The benefit certificate sued on was dated August 23, 1905. In his written examination and his application for membership in the organization, Quinn stated that his occupation was that of a foreman in a foundry. By the terms of the beneficiary certificate, this application was made a part of the contract. In it, it was further expressly represented and declared that he was not then engaged in any of the following occupations or employments: “Bailroad switchman, brakeman, on freight trains, yard master,” and various other occupations, generally deemed hazardous. And he added the following, “Should I become addicted, or actively engaged in any of the above enumerated occupations or employments, my so doing shall forfeit and absolutely terminate thereafter, all rights, interests, benefits, or privileges of myself, my family, heirs, dependents or beneficiaries, without proceedings for expulsion, or otherwise, on the part of said association.”

On the trial, plaintiff made her case by offering the benefit certificate in question, also the written examination and application of the deceased signed by him and by the medical examiner, dated August 6, 1905; the application for membership dated July 28, 1905, signed by the deceased; a pamphlet book designated as “Constitution and Laws of the North American Union;” proofs of death of the deceased, consisting of several documents, the first being a certificate mentioning the written designation or appointment by the president of the local council of three of its members to constitute a committee “to report to the council its findings, together with all facts relating to the death of said Francis A. Quinn;” (2) written report, signed by the three members of the committee,—addressed to the president, officers and members of the council, and containing the recital, “that his death was caused by accident switching cars Penn. Oo.,” on the 8th day of April, 1906.

As further portions of the so-called proofs of death, there were submitted to the jury the several affidavits of D. J. O’Brien, H. J. Kennally, and J. H. Bracks, respectively, they being members of the committee which made the foregoing report.

In the affidavit of D. J. O’Brien, it was stated that “the said F. A. Qninn, deceased, at the time of and immediately preceding his said death, was engaged in the occupation of switching cars in the Penn. Ry. Co.,” * * * “and the duties of his employment were switching, and that he is reputed to have died from switching,” and that he had been engaged in the occupation of “Foreman & switching about three months.”

Kennally’s affidavit said that the said F. A. Quinn, deceased, “at the time and immediately preceding his said death, was engaged in the occupation of switching cars in the Penn. Ry. Co.” * * * “and the duties of his employment were switching cars,” * * * and preceding his death he had been engaged as “foreman & Switching for about three months.”

The affidavit of Bracks stated: “That the said F. A. Qninn, deceased, at the time of and immediately preceding his said death was enaged in the occupation of switching cars in the Penn. Ry. Co.” * * * “and the duties of his employment were switching,” etc.

There was further offered a page of the collector’s cash book of the council to- which the deceased belonged, showing the payment by Quinn of the monthly premium and council dues, in the month of April, 1906.

There was also offered the verdict of the coroner’s jury, which was apparently in regular form, and in which it was recited that the deceased came to his death on the 8th day of April, 1906, on the tracks of the P. F. W. & C. Ry. Co., near Forty-eighth street, from shock and injuries received by being crushed between engine beam of engine Ho. 7340 and gondola car, said engine was staking from north end of track Ho. 8 at above mentioned point on said April 8th, “while deceased was in discharge of his duties as a yard brakeman for the P. F. W. & C. Ry. Co., said engine and car owned and operated by the P. F. W. & C. Ry. Co.”

There was also admitted the certificate of the undertaker, upon the back of which was the following endorsement by Robert S. lies, Supreme President of the Order:

“May 15, ’06. Proof shows that deceased was engaged in prohibited occupation, and met his death in such occupation. Insurance forfeited thereby. lies.”

In addition to the foregoing, the plaintiff herself testified, that she was the plaintiff and the wife of the deceased, and the same person designated in the benefit certificate. She further testified that her husband had worked for the American Steel Foundry at Indiana Harbor, and she said: “It was about three months before his death that he worked there.”

This constituted the evidence on behalf of the plaintiff, and at this point the defendant moved the court to give a peremptory instruction in its favor. This motion the court denied, upon the ground that, in the opinion of the trial judge, the evidence and the coroner’s findings, while they had been properly admitted to show the fact of the death, were not offered for the purpose of showing the manner, but the fact, of his death, and further, that the plaintiff was not concluded upon the question as to how the deceased came to his death by the documents offered. The court, in finally passing upon the motion said: “I cannot entertain this motion now,” to which action defendant excepted. However, by its subsequent procedure, appellant waived its right to here insist upon its rights under that motion.

Thereupon, the defendant put in its testimony,—the first witness called by it being William J. Quinn, a brother of the deceased, from whom, as well as from Patrick Hanrahan (also called as a witness), no important testimony was adduced.

One Peter ¡Finer was called and testified that he was a yard brakeman for the Pennsylvania Railroad Company; that he knew Frank Quinn, also known as Francis A. Quinn; that he met his death on the 8th of April, 1906. He says, “I was braking trains; had charge of braking up trains. Quinn was with me. I do not remember exactly who the other fellow was. There were generally three of us on the job. There was one more that was there. At least I think so. There should have been. We were braking up trains that would come from different roads. There were trains that would come from the Q., or the ¡Northwestern, or the St. Paul. I mean freight trains. * * * We had a track of cars to pull over from south of Fifty-seventy street. We were going to pull them north of Fifty-first and put them on another track,—about 30 or 33 cars. Mr. Quinn was following the engine; that is, he was supposed to take the engine around, and when he got these cars on the engine, he would bring them back again.”

Upon cross-examination the witness stated, that he did not know for what purpose Quinn was engaged by the railroad company. “In railroad service they have what are called freight train brakemen. Their line of work is different from the rest. I am a yard brakeman. At the time Quinn was injured he was staking a freight car. My line of work as yard brakeman is different from freight brakeman.”

Upon redirect examination, he said: “I was working with Frank A. Quinn at 1 o’clock in the morning until the time of the accident. During the day we worked between Forty-seventh and Fifty-first streets on the same kind of work. We were switching cars all that day—why, not exactly switching all that time.”

Under recross-examination, he was asked by counsel for appellee:

“Q. The counsel referred to switching. The man was not employed as switchman? A. ¡Not classed as switchman.
Q. In handling cars in the railroad there are different classes of men who perform different duties, such as passenger brakeman, freight brakeman, yard brakeman, etc., are there not? A. Yes, sir; there are passenger, freight and yard.”

One George H. Dow was then called as a witness and testified as to the details of the accident resulting in the death, and said:

“We were handling what they called gondolas, flat cars and box cars. We get all kinds in the freight yard. We were not handling a train. We were not all handling box cars at the time of the accident.
“Q. At the time of the accident and death, how many cars did you have coupled together ? A. Hot over thirty-five.
Q. Probably thirty-five ? A. The tracks won’t hold any more than that. I was working for Mr. Quinn since 7 o’clock that morning.”
One M. F. Nagel, a locomotive engineer for the Pennsylvania Railway Company, then testified as to the details of the accident, and that he had been acquainted with Mr. Quinn since about the first of the year when witness was firing on the ice tracks, and that at the time of the accident Quinn was carrying the signals to the engineer “to back up, or go ahead, or stop, whatever he wants done.”
Witness testified on cross-examination that he didn’t remember whether he was pulling out a train of cars. “There was a number of cars,” but “there is no train in the yard.”
“Q. And no' road engine or caboose ? A. Ho, sir.
Q. Ho caboose ? A. Ho, just freight cars; that is all.”

Following the testimony of this witness, the defense introduced certified copy of the finding of the coroner’s inquisition. The original had been received as a part of the plaintiff’s case, and when this certified copy was offered objection was made by appellee, who sought to limit the purpose for which it should be offered, but appellant insisted that it was offered for all purposes, and it was so admitted.

We have thus fully set out the important parts of the testimony offered in order that it may all be considered together in passing upon the controlling question in this case.

It is contended on behalf of appellant that the contract between the parties consists of the benefit certificate of membership sued on in this case,—the laws of the Society,—and the application and certificate signed by the deceased, and that all should be considered together. >

We think this contention is clearly sustained by the authorities: Lehman v. Clark, 174 Ill. 286; Alexander v. Parker, 144 Ill. 358; Wallace v. Madden, 168 Ill. 366; Lahey v. Ancient Order of Hibernians, 54 Ill. App. 108; Home Ins. Co. v. Favorite, 46 Ill. 263.

It is doubtless true also, that the members of a mutual benefit society like appellant are conclusively presumed to have notice of and be bound by its by-laws. See Benes v. Knights & Ladies of Honor, 231 Ill. 139. In this case, at least, it clearly appears that the deceased was fully aware of the conditions which would violate his certificate. i

This Society has long been governed by laws which provide that persons who are engaged in the certain designated occupations are not considered suitable risks, and are ineligible for membership in the order, to wit: “Railroad switchmen, brakemen, except those who are employed on passenger trains, yard masters,” etc., and it is further provided that “any member of the order who shall, after obtaining membership therein, become engaged in or pursue any business or employment enumerated in section 2 (railroad switch-men, etc.), * * * shall stand suspended from the order by operation of law, without notice! and forfeit all interest in the Mortuary and Reserve Funds from and after the date of engaging in such prohibited business,” and we cannot say that these laws impose unreasonable or unjust conditions upon its members.

These laws, when taken in conjunction with the written certificate and application signed by deceased, under the proofs in this case, clearly constitute a defense on the part of the appellant. The coroner’s inquisition, and the several affidavits, and the report of the committee were admissible in evidence, and having been admitted on behalf of the plaintiff as a part of her case, were properly before the court and jury jpr all purposes; find tliough the recitals therein as to the manner in which deceased came to his death are not conclusive upon appellee, nevertheless, as she offered no other evidence upon the point, the court should, at the close of the plaintiff’s case, have given the peremptory instructions requested by defendant.

The Supreme Court, in speaking of certain documentary evidence before the trial court, said: “It was introduced as evidence, and like any other testimony, must be considered in all its parts, and effect must be given to all it proves or tends to prove.” N. A. Fire Ins. Co. v. Zaenger, 63 Ill. 464-7. See also, Cont. Ins. Co. v. Hulman & Cox, 92 Ill. 145.

We think it clear, from the evidence offered by the plaintiff, which included.the report and affidavits of the members of the committee and the coroner’s finding, even without the oral testimony offered on behalf of the defendant, from which we have above quoted quite fully, that the deceased had violated the conditions of his policy, and was in fact engaged at the time of his death, and had been for some time previously, in a prohibited employment, both as railroad switchman, and as a railroad brakeman on freight trains, as these terms are generally understood, and as they were used in the contract between the deceased and appellant, and, therefore, that the verdict and judgment cannot stand. There was no proof tending to show that the words in the application, benefit certificate, etc., were used in any restricted or technical sense, and we are compelled to construe them in their ordinary sense and application. Thus construed and applied, we think the case plain.

Clearly this organization, and others similarly constituted, have a right to limit their insurance to persons not engaged in hazardous or extra hazardous employment, and we do not regard the limitations insisted upon in this case as being unreasonable, and we think any fair and reasonable construction of the testimony in this case clearly compels the conclusion we have reached.

Much might be said in favor of, and little against, the policy of limiting insurance to those who do not engage in extra hazardous employment. It. is manifest that such a course is necessary if the organization is to continue insuring its members,—unless, indeed, the rate he so largely increased as to make it practically prohibitory. But even if the wisdom of the policy were not thus apparent, it was clearly so contracted by the deceased and appellant, and we have no discretion in the matter, but must declare judgment upon the contract as made.

Being thus satisfied that the proofs do not sustain the alleged cause of action, we are compelled to reverse the judgment of the court below, and to enter judgment here against appellee upon a finding of facts.

Reversed, and judgment here.


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    Otto Lietz, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,478.
    1. Passenger and carrier—what not contributory negligence. It is not contributory negligence as a matter of law for a passenger to stand upon a platform of a moving street car even though there is ample room inside the car.
    2. Passenger and carrier—when negligence established. Held, under the evidence, that the verdict finding negligence was justified where a passenger standing upon the platform of a street car was thrown and injured by reason of the lurching of the car in making a switch without slowing down.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge presiding, Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed May 31, 1911.
    James Maher and Ferdinand Gross, for appellant.
    Edward R. Litzinger, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

This action was brought in the Superior Court of Cook county to recover damages for personal injuries sustained "by plaintiff on account of the alleged negligence of defendant street railway company in the operation of one of its cars, while plaintiff was riding on the rear platform of said car.

A jury trial was had which resulted in a verdict for plaintiff for $1,400. The court overruled a motion for a new trial, and entered judgment on the verdict, and defendant appeals to this court.

The declaration contains two counts, the first alleging that on July 24, 1906, the defendant was operating a street railway in Chicago on Western avenue between Archer avenue and Sixty-ninth street; that, while the car was at a standstill at the northern terminus just south of Archer avenue, plaintiff hoarded the car and became a passenger to he carried in a southerly direction; that the car was standing on the easterly or north-bound track, and while plaintiff was using due care for his own safety, the car was operated over a switch to the westerly or south-bound track, and while being so operated, the defendant caused it to he run at a high rate of speed, and when it reached the westerly track, it swung with a jerk, jar and jolt, whereby plaintiff was thrown, from the car into the street and sustained severe injuries.

The second count alleges that defendant was operating a street railway on Western avenue with its northern terminus at Archer avenue; that at said northern terminus there was a switch track connecting the easterly or north-bound and the westerly or south-bound track; that on said day plaintiff became a passenger on one of the cars while it was standing-on the easterly or north-hound track; that after becoming such passenger and while he was standing on the rear platform of the car, defendant carelessly caused the car to run across the switch from the easterly to the westerly track, and when the car reached the westerly track the great speed at which it was going caused the car to swing with a jerk and jolt, as a result of which plaintiff, while using due care for his own safety, was thrown from the car, etc.

Plaintiff himself testifies that, after boarding the platform of the car, his attention was attracted by a conversation between the conductor of this car and another person in regard to a fight which, it was claimed, had taken place on the car ahead; that when the conductor jumped on this car, he gave the signal to go ahead, and walked past plaintiff to the rear of the platform to pull the trolley rope, and thus regulate the upper pressure of the trolley, while making the switch; that plaintiff was standing on the platform in close proximity to the motor-box and steadying himself by holding on to it with one hand; that the car started from the easterly track at about half speed which was quickly increased to nearly full speed as it approached the westerly track; that, as the front trucks of the car entered upon the south-bound track, there was a jolting which caused plaintiff to step forward, and then, when the rear trucks struck the south-bound track, there was a sudden jerk or lurch which threw him bodily from the car platform. This testimony was largely corroborated by a witness, one Huck, called on behalf of plaintiff.

From the testimony it appeared that there was but one passenger in the car, and, accordingly, defendant claims, that there was no necessity for plaintiff to remain on the platform; and contends that he was guilty of contributory negligence in thus remaining on the platform after the car had started. The motorman, Daly, the conductor, Dice, and the passenger within the car, Mrs. Annie Bergman, all testified that, at the time of the accident, the car was not running at a high rate of speed, and that none of them noticed any jolting, lurching or pitching of the car more than would be ordinarily felt when the car was being driven over the switch. The motorman testified that the speed-lever was open only to the first notch, and also that in the trolley wire over the switch there was a space of about 20 feet from which the current or power was cut off by a circuit-breaker. He further testified that, if cars were allowed to run at full speed over the switch, they would, upon striking the southbound track, be derailed.

Appellant seeks a reversal upon the contentions that it W9.S not guilty of negligence, and that the plaintiff was guilty of contributory negligence; and it also contends that the verdict was excessive.

It is appellant’s contention that the conduct of the plaintiff in remaining upon the platform of the car, when there was. ample room inside, constituted such contributory negligence on his part as would prevent a recovery. In this state the law is well settled that it is not negligence per se for a passenger to stand on the platform of a moving street car. That fact, in a case of this kind, must be taken and considered by the jury, with other facts and circumstances as bearing upon the question of contributory negligence, which is essentially a question óf fact for the jury. Under the circumstances detailed in the evidence of plaintiff, we cannot say that the jury were wrong in finding that the acts of plaintiff did not constitute contributory negligence.

It being conceded that appellee was a passenger upon the car in question, the law of this state places upon the carrier a high degree of care for his safety. Indeed, common carriers in this state, in their relations to passengers, are required to exercise the highest degree of care consistent with the proper conduct and management of its business. There can be no reasonable doubt, we think, from the evidence in this case that plaintiff was thrown from the car. It is also evident that the liability to bring about this result would be increased as the speed of the car, in making the switch, was increased. The motonnan admits that he was aware that a certain swinging or lurching of the car would occur as the car was switched from one track to the other, and that knowledge imposed upon him the requirement of moving the car slowly enough to insure the safety of passengers properly upon it. The mere fact that the conductor, who stood upon the same platform with appellee, was not thrown off is by no means conclusive in favor of appellant’s contention. The conductor was accustomed to the lurching of the car at this switch, and knew just when to expect it. In taking hold of the trolley rope when the car struck the westerly track he would be likely to assume a position which would considerably steady him. Flor would the fact that the passenger inside of the car did not observe jolting or lurching more severe than would ordinarily occur be conclusive. Such passenger might well be so engaged in thought or some other occupation as not to observe closely the jolting of the car.

The two questions in this case are whether or not appellant was guilty of negligence in the operation of its car, and whether or not appellee was guilty of contributory negligence and both are questions of fact for the jury. The testimony introduced on behalf of plaintiff if taken alone would he amply sufficient to sustain the verdict, and, while the evidence on behalf of appellant contradicts in many particulars that offered by appellee, yet, in considering the record before us, we must take into account the fact that the jury, in reaching its verdict, and the trial court, in passing upon the motion for a new trial, were in a much better position to pass upon the credibility of the witnesses and the weight to be given their testimony than a court of review can be.

Now can we say that the verdict is excessive ? Taking into account the testimony on behalf of plaintiff as to his former earning capacity, the extent of his injury, and his reduced earning capacity as a result, together with the physical pain and suffering endured, we cannot say that $1,400 constitutes too large a verdict, if the defendant is liable at all.

Having fully considered the evidence, we cannot say that the verdict and judgment of the court below were erroneous, and the judgment will, therefore, be affirmed.

Affirmed.


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    Edward Hoffman, Appellee, v. Chicago Wood & Coal Company, Appellant.
    Gen. No. 15,486.
    1. Master and servant—what not assumed risk. A servant injured while endeavoring to obtain cement from a small pile of bags provided for his use, by the falling upon him of a bag of cement from another pile, will not be barred of a recovery by the doctrine of assumed risk.

      2. Instructions—when upon assumed risk cured. If an instruction upon this subject is lacking in a particular element it is cured if that element is supplied by other instructions given.
    3. Appeals and errors—when assignments waived. If the arguments do not point out specifically wherein the error lies, the assignment of error is waived.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon Willard M. McEwen, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed May 31, 1911.
    Certiorari denied by Supreme Court (making opinion final).
    Mather & Hutson, for appellant; Eldridge & Rose, of counsel.
    W. A. Flanegan and John J. Coburn, for appellee; Munson T. Case, of counsel.
   Mr. Justice Baldwin

delivered the opinion of the court.

This action was originally brought by appellee in the Superior Court of Cook county to recover damages for personal injuries claimed to have been sustained by him on account of the alleged negligence of the defendant. Two jury trials have been had, on the first of which the jury failed to agree, and upon the second, the jury found the verdict for the plaintiff for the sum of $5,500. Judgment was entered upon the verdict, and appellant seeks a reversal here, contending that the court below erred in not granting its motion for a new trial, and that the verdict is against the evidence; also that the court below erred in giving plaintiff’s fourth instruction, and in refusing to give others asked by appellant.

Appellant contends that, even though all that plaintiff and his witnesses testified to be admitted, yet plaintiff is not entitled to recover, because his injuries resulted from one of the assumed risks of his employment; that the risk was one known to him, or one which he was conclusively bound to know, and, accordingly, that there was no question of fact for the jury, but a question of law for the court as to the assumed risk, which was raised by its motion in the trial court for a directed verdict in its favor.

The defendant company is in the business of retailing coal and wood from its yards in Chicago, and to better facilitate its business, was laying a cement floor in the yard. Instead of letting the work to a cement contractor, defendant undertook to do the work itself by employing cement workers and laborers, and also one Mudro, a sidewalk contractor, to superintend the cement workers. The work was superintended in fact by Hr. Oesterreicher, president, and Hr. Holler, secretary and treasurer of the defendant company, neither of whom had any previous experience in this kind of work. At noon of the day before the accident they were obliged to lay off the men doing the cement work, because the supply of cement was exhausted. Some time between then and the following morning a carload of cement, containing six hundred bags of one hundred pounds each, was received on the company’s side track, and unloaded in a shed alongside the track. The cement was unloaded and piled in the shed by so-called “coal men,” inexperienced in such' work. The cement in bags was corded or piled, making a pile from six to nine feet in height, and when the pile was completed, it was wholly covered by having thrown over it three pieces of canvas.

Appellee introduced testimony tending to show that, a short distance from the “big pile” of cement, there was a “small pile,” from which he was procuring cement for his use in the work outside of the building. During the forenoon, appellee had carried to his mixing box, some forty feet distant, a sufficient supply of cement to last him during the forenoon, and he claims that it was during the interval after he thus carried out- the cement, and before his going in to get more in the afternoon, that the “coal men” finished unloading the car of cement and covered the pile with the pieces of canvas. Appellee claims that during the whole forenoon he had no occasion to, and did not, observe the method in which the sacks were being piled, and that, when, shortly after 12 o’clock, he went to get a new supply, the large pile was already entirely covered with the canvas, so that, without removing it, the alleged defective piling of the sacks could not be seen. Early in the afternoon, when he was attempting to get more cement for use in his mixing box, a number of bags of cement in the east tier of the “big pile” fell over, carrying with them one of the canvas covers. These fell upon appellee, knocking him down and causing severe and permanent injuries, for which, if defendant was liable, the amount of the verdict was not excessive.

The declaration contained two counts, the first framed upon the theory the appellant had not furnished appellee a reasonably safe place in which to work, while the second count more specifically alleged the duty of appellant to keep the pile of bags of cement in such condition that they would not tilt or fall upon appellee while working by or near them, and alleging that they were improperly piled, and were covered with canvas so that the manner of piling was not observable; (that by reason of the negligence of appellant, by its then servants, who were not fellow-servants of the appellee, in causing to be piled a large numbei of bags of cement in a defective manner, a large number of said bags fell upon appellee, on account of which he sustained divers injuries.)

Appellant conceded that at least four witnesses testified specifically to the fact that there was a “little pile” of bags of cement from which appellee was bringing cement upon his wheelbarrow at the time he was injured by the falling of a part of the “big pile;” but appellant says that such testimony was contradicted by seven witnesses, and is in itself inherently improbable; that 'the purpose of the testimony as to the “little pile” was to give some plausable explanation of the situation sufficient to relieve appellee from his own carelessness; and that, in fact, the accident occurred by reason of appellee’s negligence by attempting to pull out some bags of cement from the lower part of the “big pile,” thereby pulling the cement bags with the canvas covering over upon him.

E"o one actually saw the accident. Plaintiff testifies that, he had not attempted to procure any cement from the large pile, nor in any manner touch it, and that while he was engaged in loading some sacks from the “little pile” upon his wheelbarrow, the large pile, situated two or three feet distant, without warning of any sort, slipped over, and with the canvas covering, fell upon him, totally covering him.

We have carefully gone over the testimony in the case and have reached the conclusion that the court did not err in refusing to take the case from the jury on the motion of the defendant, nor are we able to say that the verdict was manifestly against the weight of the evidence. The fact of the injury was clearly established. The testimony as to its cause was conflicting. In a case of this character, much depends upon the intelligence and evident fairness exhibited by the witnesses. The trial court and the jury had the advantage of observing them as the testimony was given, and we do not find any such preponderance in the evidence in favor of the appellant, as would justify us in setting aside the verdict.

Complaint is made that appellee was not, when injured, in the exercise of due care for his own safety. This was clearly a question of fact for the jury. By their verdict they found that he was, and we cannot say that the evidence does not sustain the finding.

Appellant complains of the fourth instruction given for appellee. This instruction reads as follows:

“The jury are instructed that where an employment is attended with danger, a servant engaging in it assumes the hazard of ordinary perils which are incident to such employment, and if he receives an injury from an accident which is an ordinary peril of the service undertaken by him he cannot recover damages for the injury; hut this applies only to perils or risks ordinarily incident to the service, and not to those which are extraordinary and which did not exist at the time the servant engaged in the master’s business, and which the servant did not subsequently assume, or have notice of.”

It is claimed that this instruction is erroneous, because it does not define for the jury what constitutes an assumed risk, and because it omits an essential clause which should have been added to the instruction, viz: “or which he might have known in the exercise of due care.”

If this instruction is lacking in accuracy, the first instruction given at the request of defendant seems to remove the cause of complaint, for it states that, in order for the plaintiff to recover, he must prove three propositions, namely:

“First. That there existed some defect in the construction of the pile of cement alleged to have fallen upon him on or about November 10, 1906.
Second: That defendant, in the exercise of ordinary care, would have had knowledge of such defect, and,
Third. That the plaintiff did not know of such defect, and did not have equal opportunities with the defendant of knowing of such defect.-
And unless the jury find all three of the above propositions to be sustained by a preponderance of the evidence, they should find the defendant not guilty.”

However, an instruction almost identical in language was sustained by the Supreme Court in Libby, McNeill & Libby v. Sherman, 146 Ill. 540.

Appellant suggests that the court below erred in not giving certain instructions requested by it. Counsel in their brief say:

“We think the court erred in refusing to give the jury on trial of this cause in its behalf instructions marked 25 to 31 inclusive. They contain, as we think, correct statements of defendant’s theories of' its case, and should have been given and read to the jury.”

Counsel for appellant nowhere point out the particulars in which the court erred in refusing these instructions, and, therefore, their correctness is not properly before us for consideration. “It is well settled that objections not relied on in argument must be deemed waived.” Omensky v. Gieske, 125 Ill. App. 77. “It is not enough for counsel to say in his brief that the court erred in giving a specific instruction, etc. * * * but he should show how or in what way the particular ruling of the court was erroneous.” City of Chicago v. Spoor, 91 Ill. App. 472.

At the trial the court below gave to the jury eleven instructions requested by plaintiff (appellee), and thirteen requested by the defendant (appellant), and we think the jury were fairly instructed as to the law of the case.

Finding no reversible error, the judgment will be affirmed.

Affirmed.