text:
    Carrie Conrad, Appellee, v. Charles A. Stevens & Brothers, Appellant.
    Gen. No. 21,942.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 683

      -—when evidence sufficient to show failure to provide proper handrails on stairway. Evidence held sufficient to sustain the finding that defendants had failed to provide proper and substantial handrails on the stairway in defendant’s building where plaintiff, an employee, sustained injuries, as required by Rev. St. ch. 48, sec. 104 (J. & A. 1Í 5401), providing that proper and substantial handrails shall be provided on all stairways in factories, mercantile establishments, mills or workshops, etc.
    2. Master and servant—what is not proper handrail on stairway. Where a certain handrailing at the top of a stairway in defendant’s building had been cut away on the outside and the end of an upright supporting a series of shelves "set into the part cut away for about two feet from the top of the stairway, so that it would be impossible to grasp it, although a hand or a portion of it might rest upon it, held that such was not a “proper” handrail within Rev. St. ch. 48, sec. 104 (J. & A. 5401), providing that proper and substantial handrails shall be provided on all stairways in factories, mercantile establishments, mills or workshops, etc.

      Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed May 9, 1917.
    Statement of the Case.
    Action by Carrie Conrad, plaintiff, against Charles A. Stevens & Brothers, defendant, to recover damages for personal injuries sustained by plaintiff’s fall on a stairway in defendant’s building. From a judgment for plaintiff for $2,500, defendant appeals.
    John A. Bloomingston, for appellant.
    Richard J. Finn, for appellee.

      See Illinois Notes Digest, Vois, XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Goodwin

delivered the opinion of the court.

3. Instructions, § 67*—when not erroneous because assuming facts. It is not erroneous to assume, in an instruction, the existence of an uncontroverted fact fully disclosed by the evidence.

4. Appeal and ebbor, § 883*—necessity of abstracting instruction. Where complaint was made on appeal of the modification “of another instruction,” but the instruction itself was not identified or abstracted, held that the court was not constrained to search the record for it.

5. Damages, § 115*—when judgment not excessive. A judgment for $2,500 for personal injuries held not excessive.

6. Appeal and error, § 1752 —when judgment affirmed for insufficiency of abstract. Where appellant’s abstract was stricken from the record as not complying with the rules, and he filed a so-called “additional abstract of record” which merely attempted to supplement the former abstract and was altogether incomplete in itself or with the former, held that affirmance of the judgment was proper.


source: Caselaw Access Project

author: Mr. Justice Goodwin

license: Public Domain

text:
    In the Matter of the Estate of Max M. Hesser, Deceased. Claim of Charles Hueglin et al., Appellees, v. Estate of Max M. Hesser, Appellant.
    Gen. No. 21,953.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Contracts, § 387

      —when evidence is sufficient to show "breach of contract for manufacturing invented article. Evidence held sufficient to sustain finding that deceased’s partner and his executrix refused to perform a contract between the deceased and claimants for the manufacture by claimants of certain forms invented by the deceased, and that the negotiations between the deceased’s partner, his executrix and one of the claimants immediately following the deceased’s death were for the sole purpose of reducing or avoiding claimants’ damages on account of such refusal.
    2. Damases, § 190*—when evidence is sufficient to sustain verdict. Evidence held sufficient to sustain a finding of $1,500 damages for breach of contract.
    Appeal from the Circuit Court of Coók county; the Hon. John P. McGoobty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed May 9, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Claim by Charles Hueglin and others, claimants, against the estate of Max M. Hesser, deceased, for the manufacture by claimants of a certain wire form for holding clothes lines. From a judgment for claimants for $1,500, the administratrix of the estate appeals.
    Zeisler, Friedman & Zeisler, for appellant.
    Walter H. Eckert, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Jennie Chapman, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 21,981.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Negligence, § 209

      —when instruction on voluntary intoxication as contributory negligence is erroneous. An instruction that “while evidence of voluntary intoxication is competent to be considered by the jury in determining whether the person was taking that care of „his safety which a reasonably prudent man or woman, who was sober, would take under the same circumstances, it does not of itself constitute contributory negligence,” held, argumentative and misleading, and as attempting to minimize or destroy the effect of legitimate evidence.
    2. Appeal and ebrob, § 1652*—when error in instruction not

      cured by another instruction. "Where two instructions, one of which was argumentative, misleading and incomplete, as to the consideration by the jury of evidence as to intoxication of a party, were detached and disconnected, held that it could not be assumed that the jury as a matter of fact considered the two together as one instruction so as to cure such improper instruction.

      Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed May 9, 1917.
    Statement of the Case.
    Action by Jennie Chapman, plaintiff, against the Chicago City Railway Company, defendant, to recover damages for personal injuries sustained by plaintiff by being struck by defendant’s street car at a street crossing. From a judgment for plaintiff for $3,500, defendant appeals.
    Franklin B. Hussey and Charles Le Roy Brown, for appellant; John R. Guilliams, of counsel.
    Richard J. Finn, for appellee.

      See Illinois Notes Digest, Vols, XI to. XV. and Cumulative Quarterly, same topic and section number,-

   Mr. Justice Goodwin

delivered the opinion of the court.

3. Appeal and error, § 1316*—when not assumed that jury decided case on another theory. Where the instructions offered on behalf of both parties showed the case was submitted to the jury upon a certain theory, held that the court could not decide the case upon an hypothesis, resting upon surmise and conjecture, that the jury decided the case upon another theory.

4. Instructions, § 18*—lohen fatally erroneous because argumentative and misleading. Where the testimony as to a party’s intoxication was sharply conflicting and the question was of importance, an instruction as to the consideration of such testimony which was argumentative and misleading, held to be fatally erroneous.

O’Connor, P. J., dissenting.


author: Mr. Justice Goodwin Mr. Presiding Justice O’Connor

text:
    Margaret M. Delscamp, Appellee, v. Hahnemann Hospital of the City of Chicago, Appellant.
    Gen. No. 21,995.
    1., Statutes, § 43

      —what is necessary as to classification of enterprises. When the Legislature attempts to subject enterprises to a new sort of liability not known to the common law, and without any affirmative election on the part of the proprietors of such enterprises, the classification should be so clear that all such proprietors will know at once whether they were or were not included.
    2. Workmen’s Compensation Act, § 1*—how construed. Legislation, like the Workmen’s Compensation Act, designed to promote the general welfare of the State, should not he so construed, on the one hand, as to defeat its object and on the other, as to make it a net for the unwary.
    3. Workmen's Compensation Act, § 1*—when business is not extrahazardous. Where defendant’s business was that of maintaining a hospital in a structure containing elevators, high pressure boilers, electric wiring, and apparatus for generating and conducting eléctricity and stairways, subject, together with the building, to the regulatory ordinances of a large city, held that such business was not extrahazardous within the meaning of clause 8, paragraph (b) of section 3 of the Workmen’s Compensation Act of 1913 [Cal. III. St. Supp. 1916, II 5475(3)], declaring occupations, enterprises or businesses to be extrahazardous in which statutory or municipal ordinance regulations may he imposed for the regulating, guarding, use or placing of machinery or appliances, or for the protection or safeguarding of employees or the public therein.
    O’Connor, P. J., dissenting.
    Appeal from the Circuit Court of Cook county; the Hon. William M. Vandeventee, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed May 9, 1917.
    Ashcraft & Ashcraft, for appellant; Charles F. Rathbun, of counsel.
    M. D. Dolan, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Goodwin

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court quashing and dismissing a writ of certiorari to review a proceeding of the Industrial Board which awarded to appellee $3,500 on a claim brought under the Workmen’s Compensation Act of 1913, on account of the death of her husband while in the employ of the appellant.

The record discloses that the deceased was employed by appellant as chief engineer of its hospital, and as such it was his duty to superintend the upkeep and repair of the machinery, heating, ventilation and lighting systems; that he met his death as the result of a fall while coming down the rear stairway from the third floor.

The appellee contends that as the structure used by the appellant contained elevators, high-pressure boilers, electric wiring and apparatus for generating and conducting electricity, and stairways, subject to the regulatory ordinances of the City of Chicago, and as the building itself was subject to the same ordinances, the business or enterprise of appellant came within clause 8, paragraph “b” of section 3 of the Workmen’s Compensation Act of 1913 [Cal. 111. St. Supp. 1916, ([ 5475(3)], and that, therefore, appellant was subject to the terms of the act, although it had not given notice of its election to be bound by it. The section in question is as follows:

“3. (a) In any action to recover damages against an employer, engaged in any of the occupations, enterprises or businesses enumerated in paragraph (b) of this section, who shall elect not to provide and pay compensation to any employee, according to the provisions of this act, it shall not be a defense, that: First, the employee assumed the risks of the employment; second, the injury or death was caused in whole or in part by the negligence of a fellow-servant; or third, the injury or death was proximately caused by the contributory negligence of the employee.
“(b) The provisions of paragraph (a) of this section shall only apply to an employer engaged in any of the following occupations, enterprises or businesses, namely:
“1. The building, maintaining, repairing or demolishing of any structure;
“2. Construction, excavating or electrical work;
“3. Carriage by land qr water and loading or unloading in connection therewith;
“4. The operation of any warehouse or general or terminal store houses;
“5. Mining, surface mining or quarrying;
“6. Any enterprise in which explosive materials are manufactured, handled or used in dangerous quantities;
“7. In any enterprise wherein molten metal, or explosive or injurious gases or vapors, or inflammable vapors or fluids, or corrosive acids, are manufactured, used, generated, stored or conveyed in dangerous quantities;
“8. In any enterprise in which statutory or municipal ordinance regulations are now or shall hereafter be imposed for the regulating, guarding, use or the placing of machinery or appliances, or for the protection and safeguarding of the employees or the public therein; each of which occupations, enterprises or businesses are hereby declared to be extrahazardous. ’ ’

The question before the court in this case, therefore, is as to whether appellant was an employer engaged in any of the “occupations, enterprises or businesses” enumerated in paragraph (b) above quoted. Clearly appellant’s sole business was that of maintaining a hospital; in no. way can such an enterprise be said to be extrahazardous as that term has been construed in the case of Uphoff v. Industrial Board of Illinois, 271 Ill. 312 [13 N. C. C. A. 80], where the court said, at page 317:

“It is also plain that the Legislature only intended to include under paragraph (b) any such occupations, enterprises or businesses of the employer when they were properly considered to be ‘ extrahazardous. ’ It is true that the clause in subdivision 8 of said paragraph (b) calling all of these trades, businesses, enterprises or occupations extrahazardous was inserted for the purpose of making clear what was considered extrahazardous, but it is also clear that the Legislature did not intend to include work that everyone knows is not extrahazardous or even hazardous. ’ ’

Ñor does appellant seem to be engaged in an extra-hazardous enterprise merely because it occupies a building suitably large for its needs, and equipped with the apparently usual and customary freight and passenger elevators, system of high-pressure boilers, wiring and electrical apparatus for generating and conducting electricity, and a steam-heating system, although these appliances are, like many others in common, every-day use, subject to municipal regulations. When the Legislature attempts to subject enterprises to a new sort of liability not known to the common law, and without any affirmative election on the part of the employer, it would seem that the classification should be so clear that all employers would know at once whether they were or were not included. It logically follows from this that if the act does not, by its terms, clearly include an enterprise, then the Legislature, according to the ordinary canons of construction, cannot be presumed to have intended that the enterprise should fall within its terms. Any other construction would lead to doubt and uncertainty. While legislation of this kind, designed to promote the general welfare of the State, ought not to be so construed as to defeat its object, yet, on the other hand, it should not be so construed as to make it a net for the unwary.

As we are, therefore, of the opinion that appellant’s business was not estrahazardous within the meaning of the term as defined by our Supreme Court, and is not included within the language of section 3, the judgments of the Circuit Court and the Industrial Board are reversed.

Reversed.

Mr. Presiding Justice O’Connor

dissenting:

This proceeding involves a claim for compensation for the death of appellee’s husband under the Workmen’s Compensation Act of 1913. The proceedings before the Industrial Board resulted in the allowance of compensation to appellee aggregating $3,500, payable in instalments. The evidence disclosed that appellant is a corporation organized not for pecuniary profit, and conducts and operates a hospital in Chicago. Appellee’s husband, William H. Delscamp, was employed by appellant as chief engineer. His duties were to superintend the operation and repair of the heating, lighting, ventilation and plumbing systems of the hospital. About four o’clock p. m., December 16, 1915, he was found lying in an injured and unconscious condition at the foot of the basement stairs in the rear of the hospital. Upon examination it was found that he sustained a fracture of the skull and other injuries, from which he died a few days later.

Appellant contends that it is not subject to the provisions of the Workmen’s Compensation Act, in that the business or occupation which it conducted was not extrahazardous within the meaning of the act, and as it had not given the notice of its election to accept the terms of the act, as provided by section 1, paragraph (a), the Industrial Board was therefore without jurisdiction.

It is conceded that appellant did not give the notice of its election to accept the terms of the act, as provided. The question then is whether the hospital as conducted by appellant was an extrahazardous business as defined in the act. Section 3, paragraph (b) of the Act [Cal. Ill. St. Supp. 1916, fl 5475(3)] enumerates certain occupations, enterprises or businesses which are deemed extrahazardous. Paragraph (b), so far as material, is as follows:

“8. In any enterprise in which statutory or municipal ordinance regulations are now or shall hereafter be imposed for the regulating, guarding, use or the placing of machinery or appliances, or for the protection and safeguarding of the employees or the public therein; each of which occupations, enterprises or businesses are hereby declared to be extrahazardous. ’ ’

In construing subdivision 8 of paragraph (b), the Supreme Court, in the case of Uphoff v. Industrial Board of Illinois, 271 Ill. 312 [13 N. C. C. A. 80], said p. 317:

“It is also plain that the Legislature only intended to include under paragraph (b) any such occupations, enterprises or businesses of the employer when they were properly considered to be ‘extrahazardous.’ It is true that the clause in subdivision 8 of said paragraph (b) calling all of these trades, businesses, enterprises or occupations extrahazardous was inserted for the purpose of making clear what was considered ex-trahazardous, but it is also clear that the Legislature did not intend to include work that everyone knows is not extrahazardous or even hazardous.”

The evidence tends to show that appellant conducts a hospital in the City of Chicago in a seven-story building, which is equipped with freight and passenger elevators; a system of high-pressure boilers in the basement; a system of wiring and electrical apparatus, used for generating and conducting electricity, and a steam-heating system; all of which, as to • installation and operation, are' regulated and controlled by ordinances of the City of Chicago, “for the protection and safeguarding of the employees or the public.” The evidence further tends to show that it is the duty of the deceased to supervise the operation of all these appliances, and that in the performance of his duties he was required to use the freight and passenger elevators from time to time in going to and from the seyeral floors of the hospital; that he had a desk in the basement near the boilers where he could be found when not called by his duties to some other portion of the building. His hours of work were from eight o’clock in the morning until six or seven o’clock in the evening. Sometimes he worked all night, and he was expected to call on Sundays at the hospital. He had worked at the hospital for more than seventeen years. The witness Burt, who was the general superintendent of the hospital for twenty years, testi-' fled that on án occasion when he saw the deceased under the influence of liquor, he told him he must stop drinking; that “I would not feel the confidence to let him take charge of a- hig’h pressure plant because there might he something happen to a lot of sick people; we could not take a chance.”

Section 4 of the Act [Cal. Ill. St. Supp. 1916, If 5475(4)] defines the term “employer” to be “every person, firm, public or private corporation, including hospitals, public service, eleemosynary, religious or charitable corporations or associations,” who have come under the act by notice or otherwise. From this it appears that a hospital, if its business is extrahazardous within the meaning of section 3, paragraph (b) would under section 2 [Cal. Ill. St. Supp. 1916, ft 5475(2)], come within the act without notice. From a careful consideration of this paragraph, and the manner in which the hospital was constructed and operated, I am clearly of the opinion that appellant is subject to the provisions of the act, and that, if the deceased received accidental injuries “arising out of and in the course of the employment,” then under the rule announced in the cases of Suburban Ice Co. v. Industrial Board of Illinois, 274 Ill. 630; Vaughan’s Seed Store v. Simonini, 275 Ill. 477; Marshall v. City of Pekin, 276 Ill. 187, appellee was entitled to recover.

Appellant, however, contends that there was no evidence that the injuries received were accidental, or that they arose out of and in the course of his employment. In support of this contention it is argued that no one saw how the injuries were received, and that the evidence clearly shows that the deceased, at and prior to the time he was injured, was intoxicated, and was not in the discharge of his duties, but was injured as a result of such intoxication.

The evidence tends to show that the deceased had been in the employ of appellant for more than seventeen years; that his duties took him from time to time to all parts of the building; that his desk was in the boiler room in the basement; that the usual method of reaching his desk was by means of the stairway, at the foot of which he was found unconscious; that it was necessary for him in the discharge of his duties to go up and down this stairway several times daily; that about fifteen minutes before he was found he went up the stairs from the boiler room to fix some radiators; that a little later he was seen going down the stairs in the direction of his desk; that the stairway was dark, and immediately thereafter he was found unconscious at the foot of the stairs. There was evidence, however, which tended to show that the deceased had been drinking during the day and was intoxicated; that he was so under the influence of liquor that he could scarcely navigate; that he was seen to stagger towards the stairway. On the other hand, there was evidence tending to show that he was not under the influence of liquor, although he had been drinking some during the day; that he had been on duty all day and was on duty at the time he received the injuries. I think there is evidence to sustain the finding of the Industrial Board that he received accidental injuries arising out of and in the course of his employment, and, in the absence of fraud, both the Circuit Court and this court are bound by such finding. Munn v. Industrial Board of Illinois, 274 Ill. 70 [12 N. C. C. A. 652].


text:
    Mary T. Case and Frances Pirase, Conservatrix, Appellees, v. John E. Case, Appellant.
    Gen. No. 21,998.
    (Not to he reported in full.)
    Abstract of the Decision.
    Divorce, § 110

      —when increase in alimony is not erroneous. Increase of alimony from $30 to $50 a month, held not erroneous, where the latter amount had been paid from 1906 to 1914, and defendant was receiving $45 a week salary, and complainant was an insane person.
    Appeal from the Circuit Court of Cook county; the Hon. J. H. Fornoef, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed May 9, 1917.
    Statement of the Case..
    Bill .by Mary T. Case, an insane person, and Frances Pirase, her conservatrix, complainants, against John B. Case, defendant, for divorce. From an order increasing complainants’ allowance of temporary alimony from $30 to $50 a month, defendant appeals.
    Delavan B. Cole, for appellant.
    Henry R. Baldwin, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Goodwin

delivered the opinion of the court.


author: Mr. Justice Taylor

text:
    John G. O’Neil, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Glen. No. 21,695.
    (Not to he reported in full.)
    Error to the Superior Court of Cook county; the Hon. Theodore Bbentaho, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed May 9, 1917.
    Rehearing denied May 24, 1917.
    Statement of the Case.
    Action by John Gr. O’Neil, plaintiff, against the City of Chicago, defendant, to recover for alleged wrongful exclusion by defendant of plaintiff from performance by plaintiff of a certain contract entered into between plaintiff and defendant upon the acceptance by defendant of plaintiff’s bid upon certain work to be performed at Lake View Pumping Station of defendant. From a judgment for defendant, plaintiff brings error.
    Plaintiff was the highest of three bidders on the work in question when the bids were first submitted. Shortly after acceptance of his bid and making of the contract referred to, one of the other bidders instituted suit alleging the contract was illegal and void, as not complying with the statutes requiring competitive bidding, and asking injunction against this plaintiff and defendant. A temporary injunction was issued and later the presiding judge gave an oral opinion directing the entry of a final decree granting a perpetual injunction. Before erltry of such decree this judge died. Thereafter the city readvertised the work and again entered into a contract with plaintiff to do substantially the same work. Such contract was carried out and the work completed by him. Said suit was dismissed by stipulation of the parties.

      Abstract of the Decision.
    1. Municipal cobpobations, § 387*—what is duty of city commissioner as to letting contracts for public worh. Under sections 1611, 1612 and 1626 of the Revised Code of Chicago, 1897, vol. 1, relating to the letting of contracts’for public work, the clear, intention held to be that such contracts shall be let so that nothing is left for the commissioner but to decide who is the lowest responsible bidder for such work, as among bidders equally responsible the work cannot lawfully be awarded to one who is not the lowest bidder.
    2. Municipal cobpobations, § 408

      —when plea by city in action for exclusion from performance of contract 4s erroneous. In an action against a city to recover for refusal by defendant to allow plaintiff tb perform a contract for certain public work entered into between plaintiff as the accepted bidder for such work and defendant, where defendant’s plea failed to aver that either of the refused bidders was a reliable and responsible bidder and simply averred that plaintiff was not the lowest reliable and responsible bidder, which was expressly traversed by plaintiff in his replication, held that such plea was bad and demurrer to such replication was erroneously sustained.
    3. Municipal cobpobations, § 408*—when sufficiency of plan and specifications is question of fact. The sufficiency of a certain plan and specifications to comply with certain city ordinances set up in defendant’s plea requiring that plans and specifications for public works to be constructed on file with the commissioner of public works shall give full and definite information of the precise work to be done, held to be a question of fact which could not be passed upon on review in the absence of further evidence, in an action against a city to recover for defendant’s refusal to allow plaintiff to perform a contract for certain public work entered into between plaintiff and defendant.
    John S. Hummer, Coburn & Bentley and James E. McGrath, for plaintiff in error.
    Samuel A. Ettelson, for defendant in error; Morton S. Cressy, William C. Rigby and Rubens, Fischer, Mosser & Barnum, of counsel.

        See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.

4. Pleading, § 203*—when demurrer to replication carried hack and sustained as demurrer to plea. In an action against a city to recover for defendant’s refusal to allow plaintiff to perform a contract entered into between plaintiff as the accepted bidder for certain public work and defendant, where defendant filed plea setting up certain city ordinances requiring that contracts for public works be awarded to the lowest reliable and responsible bidder and setting up also certain provisions of the specifications for the work that bidders should submit drawings and descriptions as to certain parts of the work, and alleging that such drawings and descriptions were so varied that it was impossible for the commissioner of public works to arrive at a conclusion as to which was the lowest responsible bidder, to which plaintiff filed replication alleging such drawings and descriptions were only working plans required for the purpose of furnishing information as to the bidders’ skill and ability, held that a demurrer to such replication should be carried back and sustained as a demurrer to the plea.

5. Estoppel," § 16*—when hy suit does not arise. Where an oral opinion, only, was rendered and no decree was entered in a suit, held that there was no estoppel upon a party to such suit by reason of the suit.'

6. Estoppel, § 16*—when hy reason of suit arises. There can be no estoppel by reason of a suit until a final decree is entered therein.

7. Estoppel, § 97 —when replication negatives all elements of estoppel hy suit. Where defendant’s plea set up plaintiff’s acquiescence in a certain oral opinion rendered in another suit to which both plaintiff and defendant were parties by the judge presiding therein, that plaintiff made no claim under the "contract sued on but made a new contract with defendant for the same work which he performed and was paid for, and that plaintiff signed a stipulation for dismissal of that suit, to which plea plaintiff filed replication traversing each material averment thereof and set up other facts, held that the replication did not fail to negative all of the elements of estoppel, in an action to recover for defendant’s refusal to allow plaintiff to perform the first contract.


text:
    Dennis K. Lindhout and J. C. K. Lindhout, copartners, trading as Lindhout & Lindhout, Appellants, v. City of Chicago Heights, Appellee.
    Gen. No. 21,791.
    1. Municipal cobpobations—when resolution for employment of attorney ratified at subsequent meetings of council is binding. A resolution of the city council of defendant, a municipal corporation, passed by the affirmative vote of eleven out of fourteen members thereof at an alleged illegal special meeting of the council, the minutes of which, together with such resolution, were presented to and approved by a subsequent regular meeting of the council at which were present the mayor and a majority of the members of the council, and the minutes of which regular meeting were approved by a subsequent regular meeting at which were present the mayor and all but one of the members of the council, held sufficient to bind the defendant to the employment of the plaintiffs as defendant's attorneys as provided in such resolution, and to justify the rendition of legal services by plaintiffs and entitle them to fair and reasonable compensation for such services when rendered.
    2. Municipal cobpobations, § 118

      —whén city is liable for services of attorneys. Where plaintiffs rendered legal services pursuant to request and promise of defendant, a municipal corporation, and defendant accepted and benefited by such services, which were rendered in good faith by plaintiffs, held that defendant could not avoid the obligation to pay for such services.
    3. Municipal cobpobations, § 45*—when city council may employ counsel. Where a proceeding in quo warranto was brought against the members of a board of local improvement created by an ordinance of defendant, a municipal corporation, which was claimed in such proceeding to be invalid, held that the city council of defendant had authority to retain legal counsel to defend it or any of its members against such proceeding.
    4. Municipal cobpobations, § 118*—what constitutes ratification and allowance of claim for attorneys’ fees. Where the judiciary committee of the city council of defendant, a municipal corporation, recommended that a certain suit by plaintiffs against defendant be settled for a certain sum and that a judgment be entered for such sum against defendant in plaintiffs’ favor, and the city council of defendant subsequently passed a resolution empowering and directing the -judiciary committee to have such judgment entered, held that such resolutions recognized defendant’s liability in such suit and constituted a ratification and allowance of plaintiffs’ claim therein.
    5. Municipal corporations, § 126

      —what evidence on behalf of plaintiff is improperly refected, where set-off interposed in action for attorneys’ fees. Evidence offered tending to show that certain amounts paid by defendant, a municipal corporation, to one of the plaintiffs, and claimed as a set-off in an action by plaintiffs to recover for legal services rendered to defendant, were paid pursuant to certain resolutions passed by the board of local improvements and the city council of defendant, and were paid by such plaintiff to certain stenographers and clerks which he, for the defendant, hired to perform certain work on city assessments, and that such plaintiff paid out to such persons for such work a certain amount in excess of the amount of such set-off allowed, held improperly rejected.
    Appeal from the City Court of Chicago Heights; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed May 9, 1917.
    Lindhout & Lindhout, pro se and Francis X. Busch, for appellants.
    Craig A. Hood and Earl E. Smith, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.

This is a suit against the City of Chicago Heights, •for attorney’s fees, for legal services rendered to the City of Chicago Heights by the appellants (hereinafter called plaintiffs'). The claim for compensation for such services was based upon certain resolutions passed by the City Council of the City of Chicago Heights, and certain contracts entered into between the Judiciary Committee of the City Council of the City of Chicago Heights and the plaintiffs.

At the close of all the evidence, the trial judge, on motion of the defendant, struck out all the evidence theretofore offered and received in support of the plaintiffs’ claim, and entered Judgment in favor of the defendant, on a plea of set-off, in the sum of $895.06.

On May 13, 1912, the city council of the defendant city, passed a resolution engaging “the services of said J. C. K. Lindhout to represent the City of Chicago Heights in all legal matters, and to continue to advise with this council at a remuneration to be determined later.”

It is contended by the defendant city that the meeting of the city council on May 13, 1912, at which the resolution of employment was passed, was illegal. The call for the special meeting of May 13, 1912, was at the request of three aldermen of the defendant city, who gave notice that at the meeting there would be taken up and considered (1) resolutions concerning the office of city engineer, and (2) other resolutions and ordinances. The minutes of the meeting that was held on May 13, 1912, recite that the mayor 1 ‘ declared that the meeting was not legal, owing to the fact that the call was not specific enough, and therefore stated that the city council meeting was not in session”; that a motion was then carried to take a recess for thirty minutes; that after a thirty-minute recess the meeting was again called to order; that the mayor stated that he considered the special council meeting adjourned; that one of the aldermen then moved that Alderman Johnston act as chairman of the meeting, which motion was carried; that thirteen of the aldermen of defendant city, out of fourteen (one being ill), were present at the meeting; that at that meeting the resolution was passed employing Lindhout.

On May 20, 1912, at a regular meeting of the city council of the defendant, at which were present the mayor and a majority of the aldermen, the minutes of the special meeting of May 13, 1912, which included the resolution of employment, with the exception of an immaterial amendment, were approved. Also at a regular meeting of the city council of the defendant, held on June 3, 1912, at which were present the mayor and all of the aldermen but one (who was absent on account of illness), the minutes of the meeting of May 20, 1912, were approved.

In the case of City of Shawneetown v. Baker, 85 Ill. 563, the court says: “Without examining that question, we think it is sufficient that, at the regular meeting of the council subsequently held, the minutes of the special meeting were read and approved, which is equivalent to a ratification of what was done at that meeting.”

We are of the opinion that the resolution of the city council of the defendant, passed on May 13, 1912, engaging the services of J. C. K. Lindhout in all legal matters, etc., which was approved by the affirmative vote of eleven out of the fourteen aldermen, and which resolution and the minutes of that meeting were presented to the regular meeting of the city council of the defendant on May 20, 1912, at which were present the mayor and ten aldermen, and were approved, and which resolution was again presented to the regular meeting of the city council of the defendant, held on June 3,1912,- at which were present the mayor and all of the aldermen but one (who was ill), and approved, was sufficient to bind the defendant and to justify the rendition of legal services by the plaintiffs and entitle them, when such services were rendered, to fair and reasonable compensation therefor. Village of Harvey v. Wilson, 78 Ill. App. 544.

Prior to May 20, 1912, a controversy having arisen in regard to certain street improvements, as to whether they should be of asphalt or brick, or other material, and the board of local improvements then consisting of the mayor, the city engineer and the street commissioner, the aldermen of the defendant city undertook to change the ordinances so as to provide for a board of local improvements differently constituted. Accordingly on May 20, 1912, the city council passed, over the veto of the mayor, an ordinance providing for a board of local improvements, consisting of the mayor, the superintendent of streets, and one alderman from each of the seven wards composing the city. Subsequently, in September, 1912, quo warranto proceedings were instituted, which challenged the ordinance creating the new board, and which undertook to oust the members of the new board.

On September 30, 1912, at a special meeting, the city council authorized and instructed the judiciary committee “to employ counsel for the defense in the quo warranto proceedings, and that Horace S. Oakley, of Chicago, be engaged as consulting attorney to said counsel,” and on October 7, 1912, at a regular meeting, the city council of defendant adopted the recommendation of the judiciary committee, which was to the effect “that it engage the services of the law firm of Lindhout & Lindhout (the plaintiffs) and H. S. Oakley, of the law firm of Wood & Oakley, to defend the interests of the City of Chicago Heights in the suit, and to defend the Aldermen and the Board of Local Improvements of the City of Chicago Heights, in the suit of quo warranto proceedings brought against them,” and recommended “that said counsel be paid the usual and customary reasonable attorney fees in such kind of cases, and that the court and litigation expense fund and the fund to pay the legitimate expenses of the city for corporate purposes and not otherwise appropriated for or so much thereof as may be necessary be appropriated to pay for said legal services.”

In regard to legal services, the evidence shows that the plaintiffs rendered approximately a total of one hundred and sixty-three days of service in defending the city and aldermen against the quo warranto proceedings, and in supporting the legality of the ordinance.

It is contended, however, by the defendant city, that the proceedings of the city council of September 30, 1912, and of October 7, 1912, were illegal; also that the legal services rendered did not benefit the defendant, and that the defendant was not interested, either directly or indirectly, in the outcome of the action, and is therefore not liable.

The position of the defendant, however, is entirely untenable. The law will not permit the defendant city to avoid its legitimate obligations. The plaintiffs rendered their services, pursuant to the request and promise of the defendant city, and the defendant accepted and benefited by the plaintiffs’ services, which were rendered in good faith, and there is now no way to avoid liability.

The quo warranto proceedings which were brought against the members of the new board of local improvements were brought against them not because of any lack of personal qualifications, or for any reason that pertained to the members personally and not officially, but because it was claimed and alleged that the ordinance which created those positions was invalid. That the city council of the defendant had authority to retain the plaintiffs to defend it, or any of its members, against a proceeding which undertook to impugn the validity of the ordinance creating the board of local improvements, cannot be considered a matter of doubt.

As to legal services which were rendered by the plaintiffs exclusive of those in the quo warranto proceedings : There was presented to the city council of the defendant, on October 7,1912, and adopted, a resolution which recites that the judiciary committee, to which was referred the settlement of the suit of the plaintiffs against the City of Chicago Heights, “believe that the special committee which determined that $7,500 was a reasonable settlement of the above claim did so after careful investigation, and upon honest and sufficient belief and data,” and the judiciary committee accordingly recommended that the suit be settled for $5,000 and that a judgment be entered against the defendant for that sum, in favor of the plaintiffs. The resolution also gave authority and direction to the city clerk as to the payment of said sum, which resolution was carried by a vote of seven to five.

On October 21,1912, at a regular meeting of the city council of the defendant, another resolution was presented and passed, to the effect that the “judiciary committee be fully empowered and directed to have judgment entered against the city according to the accepted recommendation of said committee, in Lindhout Brothers ’ suit, and to engage legal counsel therefor, if necessary, to represent the city and to carry out these directions.”

We are of the opinion that the. foregoing resolutions constituted a ratification and allowance of the plaintiffs’ claim. That account, which was for legal services outside of those in the quo warranto proceedings, was a debt for which the city was liable, and by the foregoing resolutions it recognized its liability.

The judgment of set-off in the sum of $895.06, which was entered against the plaintiffs, seems to be based upon eight vouchers which were paid to J. C. K. Lindhout, one of the plaintiffs, while he was corporation counsel for the defendant city, at a salary fixed by ordinance. The trial court seems to have acted on the theory that J. O. K. Lindhout had illegally received that amount and that therefore it could be recovered back upon a set-off in an action brought against the city.

The plaintiffs, in defense thereof, offered certain resolutions of the city council of the defendant and of the board of local improvements in an endeavor to show that the amounts so paid were not additional compensation for services, but were in repayment of stenographic and clerical expense in connection with the spreading of the special assessments to which the vouchers related.

We are of the opinion that the evidence offered by the plaintiffs, which tended to prove that the amounts of money claimed by the defendant by way of set-off, were paid to J. C. K. Lindhout, pursuant to certain resolutions of the board of local improvements and the city council, and which tended to show that J. C, K. Lindhout, for the defendant city, hired stenographers and clerks who did the work on certain assessments ; that they were hired for the City of Chicago Heights; that he paid out to those stenographers and clerks over $1,000 in excess of the amount of the defendant’s set-off, and that none of the money went into his own pocket, but went to pay stenographers and clerks for the defendant city, who did clerical work connected with the spreading of the special assessments, was improperly rejected and should have been received in evidence.

For manifest error in striking out the evidence of the plaintiffs’ claim and refusing to admit evidence offered by the plaintiffs in defense of the set-off, the judgment 'is reversed and the cause remanded.

Reversed and remanded.


text:
    William F. Flowers, George Finnegan and Fred C. Caliger, Appellees, v. Grand Lodge of the Brotherhood of Railroad Trainmen, William G. Lee, President, et al., Appellants.
    Gen. No. 21,877.
    1. Insurance, § 719

      —when courts have no jurisdiction over question of removal of member of association. In a suit against the grand lodge of a fraternal beneficial association to enjoin it and its officers and agents from revoking, suspending or canceling the charter of a subordinate lodge or interfering with the membership or office of any member of the subordinate lodge because of any action by it or its members in connection with certain charges made against and trial of one of such members who had been removed by the president of such association from a certain office held by such member, held that the court would have no jurisdiction in such suit over the question of the removal of such member or the controversy between him and the president.
    2. Insurance, § 725*—'when court of equity will take cognisance of action of threatened revocation of charter of subordinate lodge. Where the president of a fraternal beneficial association threatened to revoke the charter of a subordinate lodge of such association which act, if performed, would so imperil the right of the several members of such lodge in the insurance funds of the association that such right might easily be lost, or, from a practical standpoint, be rendered valueless, and would give rise to damages which could not accurately be measured without complicated accounting and a multiplicity of suits, held that a court of equity might properly take cognizance of the matter, notwithstanding the remedies within such association had not been exhausted, where the only remedies provided within the association were mere privileges and not enforceable rights of the members,
    3. Insurance, § 725*—when injunction against revocation of charter of subordinate lodge is properly granted. Where a member of a subordinate lodge of a fraternal beneficial association was tried by such lodge upon a certain charge and acquitted, and the lodge refused to recall its action and find such member guilty when requested so to do by the president of the association, to whom the constitution of the association gave no such power or authority, held that a writ of injunction against the president and the grand lodge of the association restraining him and it from revoking the charter of such subordinate lodge because of such refusal by it, as threatened by him, was properly issued and made permanent.
    4. Insurance, § 723*—when members entitled to equitable relief against acts of association. Where a fraternal beneficial association undertakes to violate its constitution and rules and by doing so injuriously affects the substantive insurance or property rights of its members, they are entitled to seek relief in a court of equity.
    5. Insurance, § 725

      —when bill to restrain revocation of charter of subordinate lodge not prematurely filed. A bill for injunction to restrain the grand lodge of a fraternal beneficial association, its officers and agents, from revoking the charter of a subordinate lodge of the association or interfering with the membership or office of any member of such subordinate lodge, filed without first appealing to such grand lodge under the laws of the association, held not filed prematurely where such grand lodge meets only once in three years, and in the meantime insurance claims might mature and remain unpaid and the beneficiaries suffer should such revocation be made.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court a,t the October term, 1915.
    Affirmed.
    Opinion filed May 9, 1917.
    Charles C. Stilwell, for appellants; E. Jay Pinney, of counsel.
    Quin O’Brien, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court, perpetually restraining the Grand Lodge of the Brotherhood of Railroad Trainmen, its officers and agents (defendants), from taking any action in the way of revoking, suspending or cancelling” the charter of Square Deal Lodge No. 752, and from expelling, or attempting to expel from membership, and in any manner interfering with the membership or office of any member of said lodge, for any action of said lodge, or its members, in connection with certain charges made against, and the trial of one William J. Pinkerton, a member of said subordinate lodge.

On October 28,1912, W. Gr. Lee, the president of the Brotherhood, notified Pinkerton, who was the legislative representative of Square Deal Lodge No. 752, that on account of his disobedience of the rules of the Brotherhood, under the terms of section 154 of the constitution, in that he had circulated among lodges and members of the Brotherhood, communications pertaining to the then pending Federal Workmen’s Compensation Law, which reflected improperly upon the conduct of President Lee and the president of the American Federation of Labor, and others, that he was removed. At the same time Square Deal Lodge No. 752 was also notified. On November 11, 1912, the subordinate lodge notified President Lee that they would contest the removal of Pinkerton, and recognize him until the action of the president could be overruled. Subsequently, on November 19th, President Lee notified the subordinate lodge that it was in his power to declare the lodge defunct if it failed to elect a successor to legislative representative, Pinkerton. On December 20,1912, President Lee notified the lodge to proceed to try Pinkerton, on account of his alleged violation of article 154 of the constitution. Pursuant thereto, and in accordance with President Lee’s order, charges were preferred and a trial had, and upon the report of the Trial Committee, which. unanimously acquitted Pinkerton, being presented to the subordinate lodge, it was on February 9, 1913, approved by a vote of forty to one.

On February 7, 1913, President Lee wrote to the vice president, A. F. Whitney, who had been delegated to represent the defendants in prosecuting the Pinkerton case, as follows:

“It is my understanding that you will attend the next meeting of Lodge No. 752, at which the Trial Committee’s report will be presented, and if Pinkerton should be exonerated, as he probably will, because I am of the opinion the Trial Committee was discriminately selected, I wish you to see to it that some brother appeals to this office immediately, as provided in the Constitution. It is not my intention to permit Pinkerton to escape punishment for the flagrant violation of the Constitution referred to in the charges, and in all probability it will be necessary to close Lodge No. 752, which I will have no hesitancy in doing unless they enforce the law.”

On February 17, 1913, President Lee wrote to the officers and members of Square Deal Lodge No. 752, that unless the latter on Sunday, February 23, 1913, rescind the action taken at its meeting held February 9,1913, in refusing to find Pinkerton guilty, '‘and does find brother Pinkerton guilty of said charges, and declares Tiim expelled from the Brotherhood of Eailroad Trainmen, the undersigned, as President of the Grand Lodge, will at once proceed to cite the lodge to show cause why its charter should not be revoked for failure to do so.”

At the next meeting of the subordinate lodge, ¡held on February 23, 1913, the lodge instructed the secretary to advise President Lee that it could not abide by his order to rescind the action Of February 9, 1913; that it refused to act on the ground that it was contrary to section 145 of the constitution.

On February '24, 1913, President Lee wrote to the officers of the Square Deal Lodge No. 752, giving them notice to show cause on or before Friday, February 28, 1913, why the charter of the lodge should not be suspended or revoked, as provided for iii section 42 of the constitution of the Grand Lodge.

On February 26, 1913, the bill of complaint in this cause was filed by William F. Flowers, George Finnegan and Fred C. Caliger, on behalf of themselves and all of the members of Square Deal Lodge No. 752, having been duly appointed a committee for such purpose by the unanimous vote of Square Deal Lodge No. 752, at a meeting held February 23, 1913.

The bill of complaint was answered, a replication filed, and the cause referred to a master, who on October 23, 1914, reported that inasmuch as a large proportion of the members of Square Deal Lodge participate in the insurance features of the Brotherhood, and as President Lee stated as a witness that if the injunction had not been issued against him he would have forfeited the charter of Square Deal Lodge, the latter was entitled to an injunction restraining the forfeiture of the charter of Square Deal Lodge, to prevent the members of Square Deal Lodge from being deprived of certain insurance rights. All of the exceptions of the defendants to the master’s report were overruled, and the report approved and confirmed, and subsequently a decree was entered making permanent and perpetual the injunction theretofore granted in this cause. The decree perpetually enjoins the Grand Lodge and its officers from interfering with the membership or office of any member of Square Deal Lodge No. 752, by reason of anything pertaining to or growing out of the charges made against and the trial of Pinkerton.

The evidence shows that the Brotherhood of Bail-road Trainmen is a labor organization and conducts a fraternal insurance business, paying death and disability amounts, in accordance with its constitution and general rules.

The justice or injustice of the removal of Pinkerton as legislative representative is not a matter which the court, in this cause, may investigate, or of which it may take jurisdiction. The court here cannot adjudicate concerning the controversy between President ’'Lee, on the one hand, and Pinkerton on the other, over the Brantley Workingmen’s Compensation Act. Brotherhood of Railway Trainmen v. Greaser, 108 Ill. App. 598.

The critical question here is whether the threatened revocation of the charter of Square Deal Lodge No. 752 imperils the property rights of the members of that subordinate lodge.

It is contended by appellant that the court may not take 'jurisdiction until the appellees have sufficiently exhausted their remedies within the Brotherhood.

The claim of the appellees is that the injunction of the court is necessary to protect their insurance rights; that without the injunction the appellants will destroy the insurance rights of the individual members of the subordinate lodge. The 184 members of the subordinate lodge hold beneficiary certificates (aggregating $250,000) entitling each of them, or their beneficiaries, to various sums of money ranging from $500 to $1,500 in the event of the disability or death of the member insured. Insurance assessments which have been paid in by the complainants and other members of the Brotherhood of Railroad Trainmen have accumulated so that there is now in the treasury of the Grand Lodge a guarantee fund of over two million dollars. Each of the members of the subordinate lodge who has kept up his insurance has a substantive property right in that fund. If the charter of the subordinate lodge is revoked, as threatened and it is admitted by President Lee in his testimony that he would have revoked it had it not been for the injunction, then the right of each of the members of the subordinate lodge in the general fund is not only threatened, but so imperiled that it may easily become lost, or, from a practical standpoint; valueless. Appellees have asked that the appellants be enjoined from revoking the charter and from expelling or suspending any mepiber of the subordinate lodge, by reason of anything connected with the Pinkerton matter.

Appellant, in its brief, states “that the only insurance is in the form of a written contract between the Grand Lodge and each individual member of the order, by which the Grand Lodge promises to pay to the insured member, or his beneficiary, a specified sum, provided the member pays specified assessments ’ ’ and complies with the constitution and by-laws of the defendant. And the answer of each appellee to that is, having in mind the attitude of the president of the defendant Brotherhood, and his power, and what has transpired in conjunction with the Pinkerton matter, the court ought to enjoin the threatened revocation of their charter in order that their insurance rights may remain secure. Appellant claims that the contracts of insurance which the members of the subordinate lodg'e own will, to use the language of appellant’s brief, “remain unaffected by the revocation of the charter of Lodge No. 752.” The difficulty seems to be in determining how (under the constitution and rules) the insurance rights of a former member of a defunct subordinate lodge (assuming its charter revoked) may be preserved, so that, without any fault on his part, neither he nor his beneficiaries may lose their rights.

Appellant contends that if the charter of Square Deal Lodge were revoked, President Lee could do one of two things: First, grant the members dispensations if they requested it, which would enable them to apply to some other lodge for admission (although such other lodge would have the right to reject their application); or second, transfer them upon their application to other lodges. It is to be observed, however, that the “dispensation” and “transfer” are not rights which the former members of a defunct lodge can enforce, but seem to be privileges only to be granted at the caprice, perhaps, of the president. It does not seem reasonable to allow the property rights of such members to be subjected to such uncertainty, especially without evidence of fault on their part.

Appellants contend that even if the appellees would suffer damages as the result of the proposed action of the appellant Lee, it would, at most, give rise to an action at law. Wq are, however, of the opinion that the proposed threat, if carried out, would have given 'rise to damages which could not accurately be measured without complicated accountings and a multiplicity of suits, and that the case was, in consequence, one of which a court of equity might properly take cognizance. The question, then, squarely arises as to whether the proposed action of the appellant Lee would have been lawful, for, if unlawful, it presented a proper case for the action of a court of chancery. There is no doubt but what an organization such as the Brotherhood in question clearly has the right to make reasonable regulations governing the conduct of its members, and subordinate lodges, and in a proper case remove a member or revoke the charter of a subordinate lodge. In the present case, the appellant Lee threatened to revoke the charter of a subordinate lodge on account of its refusal to find Pinkerton guilty of certain charges upon which he had been tried and acquitted. In other words, the action threatened by Lee was the arbitrary revocation of a charter of a lodge on account of its failure to do his bidding. A careful examination of the Brotherhood’s constitution fails to show that any such tyrannical authority has been invested or attempted to be invested in the president of the organization. The question of whether a rule conferring such autocratic authority upon an officer could be sustained as reasonable, in view of the unfortunate consequences which would naturally follow from its enforcement, is not properly before us, and we base our decision upon the fact that the trial of Pinkerton was a matter over which the subordinate lodge had jurisdiction, and there was no authority given to the president of the organization to discipline the lodge on account of the conclusions which it might reach in the matter.

Being of the opinion, as we are, that President Lee, under the constitution and rules of the organization, did not have the right to revoke the charter of Square Deal Lodge No. 752 because it refused to rescind its action of February 9, 1913, when by a vote of forty to one it found Pinkerton not guilty, and that a revocation of its charter would seriously imperil the insurance rights of its members, the writ of injunction was properly issued and made permanent. Where an organization, such as the defendant, undertakes to violate its constitution and rules, and by doing so injuriously affects the substantive insurance or property rights of its members, they are then entitled to seek relief in a court of equity.

It is claimed, also, that the bill of complaint is filed prematurely, inasmuch as the appellees did not appeal to the Grand Lodge. Such an appeal, however, to a tribunal at whose head is the president, and which tribunal only meets once in three years, is not a reasonable remedy, when meanwhile insurance claims may mature and remain unpaid and the beneficiaries suffer. The appellant has undertaken to distinguish the case of Golden Star Lodge No. 1 v. Watterson, 158 Mich. 696, and in some ways it is distinguishable. However, it very strongly supports the principles contended for by appellee and which are applicable and especially pertinent to the facts in the case at bar.

We are, therefore, of the opinion that the decree of the chancellor should be affirmed.

Affirmed.


text:
    Elias Hollenbach and Martha Hollenbach, Appellees, v. Ellen A. Hardin et al., Appellants.
    Gen. No. 21,906.
    (Not to he reported in full.)
    Abstract of the Decision.
    Master and servant, § 1

      —when relation does not exist. Where the owner of a certain safe hired a certain licensed expressman to move the safe from the premises of a third party, and in doing so the expressman acted independently of the owner and according to his own notions and such methods as he thought best, and with his own assistants, held that there was no relation of master and servant between the owner and the expressman, and the former would not he liable for the latter’s negligence or trespass upon such third party.
    Appeal from the Superior Court of Cook county; the Hon. Mazzini Slttsser, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed May 9, 1917.
    Statement of the Case.
    Action by Elias Hollenbach and Martha Hollenbach, plaintiffs, against Ellen A. Hardin, Patrick K. Hardin and F. W. Leland, defendants, to recover for damages done to plaintiffs ’ premises in taking a safe therefrom. From a judgment for plaintiffs for one hundred dollars, defendants appeal.
    Wickett, Walker & Wegg, for appellants, Ellen A. Hardin and Patrick K. Hardin.
    Rankin, Howard & Donnelly, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Marcella Wistafka, by Elizabeth Wistafka, Appellee, v. Peter M. Grotowski and Clemenz Blonder, Appellants.
    Gen. No. 21,945.
    1. Animals, § 39*—when unnecessary to prove scienter in action for injuries by dog. In a cause of action for plaintiff being bitten by defendant’s dog, based upon defendant’s violation of a city ordinance requiring a dog running at large to be muzzled as distinguished from the corfimon-law action for negligence, held that it would not be necessary to allege or prove defendant’s scienter.
    2. Animals, § 48*—when instruction properly refused as based on wrong theory in action for injuries by dog. An instruction, in an action to recover damages for plaintiff being bitten by defendant’s unmuzzled dog, based upon defendant’s violation of a city ordinance requiring all dogs to be muzzled, which was based upon a theory that it was necessary to allege and prove defendant’s scienter, held properly refused.
    3. Evidence, § 458

      —when evidence on former trial is inadmissible. Evidence on a former trial under an issue involving scienter on the part of defendant, held properly rejected in an action for injuries by a dog, where scienter on defendant’s part was not an issue.
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed May 9, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    P. R. Boylan and Harry H. Felgar, for appellants.
    Julius Limbach, for appellee; George F. Ort, of counsel.

      See Illinois Notes Digest, Vola, XI to XV. aud Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.

This is an appeal by the defendant, from a judgment in a suit brought by a minor, by her next friend, for damages which were alleged to be the result of the defendant permitting a dog owned or kept by him to run at large, in the city, without being muzzled, in violation of a city ordinance. The case has been tried three times and a verdict rendered in favor of the plaintiff in each instance.

On June 18, 1909, Marcella Wistafka, at that time a child about nine years of age, was bitten by a dog, which was unleashed and unmuzzled, while she was crossing some vacant lots on her way to school, and subsequently, by her next friend, she brought suit for personal injury. The amended, declaration,- upon which the case was tried, avers that on June 18, 1909, the defendant owned and controlled and kept a certain dog, in the City of Chicago; that there was in force in the City of 'Chicago an ordinance which provided, inter alia, that “no person shall cause or permit any dog owned or kept by him to run at large * * * unless such dog shall be securely muzzled,” etc., that “the owner or keeper of a dog who shall suffer such a dog to run at large at any time, in violation of the ordinance, shall be fined, ’ ’ etc.; that the defendant permitted the dog, unmuzzled, to run at large in a public place, and while the minor was exercising due care, said dog attacked and bit her, whereby she has been permanently injured.'

The defendant filed a plea of the general issue. The case was tried before a jury, and after the evidence was all in, the plaintiff withdrew the two additional counts, which alleged scienter on the part of the defendant, leaving one count (as above set forth) charging a violation of the city ordinance, as the proximate cause. There had been a former trial in which a judgment had been rendered against the defendant in the sum of five hundred dollars, which was appealed to this court and reversed and remanded, on the ground that the proof failed sufficiently to show that the dog belonged to the defendant. [187 Ill. App. 285.] When the case was redocketed and retried, it was, upon the count in the amended declaration, based upon a violation of the city ordinance.

It is claimed by the defendant: (1) that there was no allegation and proof of scienter; (2) that the court erred in not inspecting the certificate of evidence used in the Appellate Court in the former trial; (3) that the court erred in refusing to give instruction number four for the defendant, and giving instruction number six for the plaintiff.

As to the first contention: We are of the opinion that in a cause of action, such as this, based on the violation of the ordinance as distinguished from the well-known common-law action for negligence, it is not necessary to allege or prove scienter on the part of the defendant. Behrle v. Hust, 199 Ill. App. 437.

In United States Brewing Co. v. Stoltenberg, 211 Ill. 531, Mr. Justice Magruder said: “Inasmuch, therefore, as the City Council of Chicago had the power to pass the ordinance (referring to a speed ordinance)', set up in the additional count and introduced in evidence in the case at bar, such ordinance has the force and effect of a statute. Its violation constitutes a prima facie case of negligence, if such violation caused the injury, which resulted in the death of the deceased.” Likewise, in H. Channon Co. v. Hahn, 189 Ill. 28, the court said: “A breach of this ordinance as alleged in different counts of the declaration was clearly established by the proof, and this constituted a prima facie case of negligence, if the violation of the municipal law caused or contributed to the personal injury received by the appellee.” Cada v. The Fair, 187 Ill. App. 111. In the latter case, the sale of a toy firearm to a minor, in violation of an ordinance, was stated to be sufficient to give rise to a cause of action for injuries received, providing it was alleged in the declaration that the minor was in the exercise of due care. Thé ordinance in question, in the present case, gives rise perforce to new civil obligations, and if the violation of such an ordinance is the proximate cause of a personal injury, an action for damages may be maintained. It could make no difference whether the defendant knew the propensities and habits of the dog, because the law, that is the ordinance, provided that when off the defendant’s place it must be muzzled or under leash. If he had complied with the ordinance the minor would not have been bitten by the dog, even though the defendant had no knowledge of the dangerous nature of the dog. The plaintiff was entitled to assume that the defendant would comply with the ordinance. The obligations which the ordinance imposed upon the defendant, a breach of which proximately resulted in the injury to the minor, did not exist at common law. That the plaintiff may recover, where the violation of an ordinance is the proximate cause of the injury, is an illustration of the elasticity and reasonableness of the law, which adjusts and applies itself to new rights and new obligations. At common law without scienter, the owner of a dog might be blameless, but under the ordinance whether he knows or not he may be liable. Knowledge of the habits of the dog is entirely negligible. He is not blameless if he does not know the habits of the dog and yet violates the ordinance. Since the ordinance in question was passed, dogs are allowed to go unmuzzled or unleashed only at their owner’s peril. In the extreme case of feres natures, knowledge on the part of the owner is conclusively presumed, and therefore no question of scienter arises. In the instant case, that of a domestic animal, knowledge is not conclusively presumed, but by reason of the ordinance is rejected as a subject of defense. The gist of the action at common law is keeping a vicious animal with knowledge; that of the present action, permitting the animal to go at large, unmuzzled or unleashed.

The instruction, number four, which the defendant claims was erroneously refused, was based upon the theory of scienter and therefore was properly refused. The instruction, number six, which was given and objected to by the defendant, is a correct statement of the law in the case and so was properly given.

The record of the evidence taken at the former trial, which was offered for the inspection of the trial judge, whatever that may mean, was properly rejected as the issues concerning which that evidence was offered originally involved scienter and, therefore, were not the same as those in the case at bar.

As there was ample evidence to support the verdict of the jury, both as to liability and amount, and as there are no material errors in the record, the judgment is affirmed.

Affirmed.


text:
    Sam Diamond, Appellee, v. Max Goldstein and Sarah Goldstein, Appellants.
    Gen. No. 22,027.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Keabns, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed May 9, 1917.
    Rehearing denied May 22, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Sam Diamond, plaintiff, against Max Goldstein and Sarah Goldstein, defendants, to recover “for unlawfully, fraudulently and maliciously converting and appropriating to their own use the property of the plaintiff,” consisting of certain furs and dress goods, valued at $1,500. From a judgment for plaintiff for $1,672.55, on remittitur of $75, defendants appeal.

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 8

      —when statement of claim is in conversion giving court jurisdiction. The use of the words “unlawfully, fraudulently and maliciously” in a statement of claim in the Municipal Court for “unlawfully, fraudulently and maliciously converting certain property” of the plaintiff, held not to change the nature of the charge against the defendants or affect the jurisdiction of the Municipal Court in such action for conversion of the property.
    2. Trover and conversion, § 39*—what evidence is sufficient to show conversion of purchased stolen property. Testimony of a thief that the property stolen by him from the plaintiff was listed by the thief’s partner and that he had everything on the list shown to the defendants, charged with conversion of plaintiff’s property stolen from him, when defendants bought such property, held sufficient identification and enumeration of the property to justify the jury in concluding what property belonging to the plaintiff was actually received and converted by defendants.
    3. Trover and conversion, § 38*—when evidence as to value of goods is properly admitted. In an action to recover for conversion by defendants of certain furs belonging to plaintiff, where a witness was asked if he had computed the fair, reasonable market value “of all these furs,” to which he answered he had, and also answered a subsequent question, over objection overruled, as to the amount, held that the objection was not well founded, as the evidence showed that both parties must have known exactly to what furs reference was made.
    4. Trover and conversion, § 39*—when plaintiff only required to establish case by preponderance of evidence. Where a statement of claim charged defendants with “unlawfully, fraudulently and maliciously converting certain property” of the plaintiff, held that the words used did not necessarily charge a crime, and plaintiff was required to establish the material issues in such claim only by a preponderance of the evidence.
    B. M. Shaffner, for appellants.
    Maurice Alschuler, for appellee; Menz I. Rosenbaum, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Chicago & Vicinity Hungarian Benevolent Society, Appellee, v. Chicago & Suburb Hungarian Aid Society (Defendant). Alphonse Lefkow, Appellant.
    Gen. No. 22,442.

      (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed.
    Opinion filed May 9, 1917.
    Statement of the Case.
    Bill by Chicago .& Vicinity Hungarian Benevolent Society, a corporation, complainant, against Chicago & Suburb Hungarian Aid Society, a corporation, defendant, for review of a certain prior suit wherein decree was entered providing that the clerk of court should pay to Alphonse Lefkow $500 for his reason- 0 able attorney’s fees and certain costs and in satisfaction of a certain judgment, and $116.33 additional out of certain funds in the hands of said clerk, charging that said Lefkow was guilty of fraud in so providing in said decree and in obtaining said sums. From an order adjudging said.Lefkow guilty of contempt of ' court for failure to pay over said sums to the clerk of court as required by prior order of the court, said Lefkow appeals.
    Frank H. Culver and Irene M. Lefkow, for appellant.
    Charles R. Whitman, for appellee.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, game topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.

Abstract of the Decision.

1. Equity, § 451*—what constitutes a consent decree. A decree entered upon examination and approval by a master in chancery and to have the “O. K.” thereon of the solicitors of both parties to the suit, held to be a consent decree.

2. Contempt, § 68 —when chancellor may consider whole record. In a contempt proceeding, where the conduct of a solicitor of record is in question, a chancellor has authority to consider the? whole record before him.

3. Equity, § 556*—what decree not set aside on Hll of review'. A consent decree is not subject to be set aside on bill of review.

4. Equity, § 574*—when bill of review is not demurrable. A bill of review charging only errors apparent on the face of the decree sought to be reviewed is not demurrable.

5. Equity'—tv.kera answer to bill of review should not be stricken. If a bill of review sufficiently charged fraud in obtaining the decree sought to be reviewed, defendant’s answer, filed without leave, in justification of the charge should not be stricken from the record and be denied a hearing thereon.

6. Equity, § 582*—what relief may be granted on bill to review consent decree. On a bill to review a consent decree and answer to the bill, held that the chancellor would be authorized only to revise the terms of such decree and not to order payment of money to a third person, as the clerk of the court.

7. Contempt, § 31*—when order to pay money is not basis for order of. An order upon a bill to review a certain consent decree to a party to pay to the clerk of the court, to await the disposition of the bill, a certain sum paid to such party under such decree, held no basis for an order of contempt upon such party for failure to pay such sum.

O’Connor, P. J., specially concurring.


author: Mr. Presiding Justice Barnes

text:
    Robert H. Ingersoll et al., Appellees, v. Joseph Brown & Company, Appellant.
    Gen. No. 22,349.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Fraud, § 19

      —what is not actionable. The making of a promise with intent at the time not to perform it does not constitute a fraud and is not actionable.
    2. Trover and conversion, § 31*—when proof of demand and refusal essential. Where plaintiffs refused to ship to defendant certain goods ordered by defendant until a balance due on a bill for goods previously shipped to defendant was paid, and defendant promised to send a check for such balance that night but did not, and the goods were afterwards sent and delivered to defendant, against whom on the following day an involuntary petition in bankruptcy was filed, held that an action in trover based upon such facts as constituting fraudulent and wrongful possession, because, as claimed, defendant obtained the goods without intending to fulfil its promise to pay for them, would not lie without proof of demand and refusal, and motion for an instructed verdict for defendant should have been allowed.

      Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed May 10, 1917.
    Statement of the Case.
    Action by Robert H. IngersoII and others, plaintiffs, against Joseph Brown & Company, defendant, in trover, with the conventional form of count and a count adding to the averment of defendant’s knowledge that the property was plaintiffs’, that defendant “contriving and fraudulently intending craftily and subtly to deceive and defraud the plaintiffs, hath not yet delivered,” etc. From a judgment for plaintiffs, defendant appeals.
    Hebel & Haft, for appellant.
    Henry W. Leman, for appellees; Frank H. Culver, of counsel.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

3. Trover and conversion, § 31 -—when notice of election to rescind conditional contract of sale of goods and demand for return is essential. No right of action, in trover for goods sold and delivered upon condition that a certain balance due on a bill for other goods be paid, would accrue without notice by plaintiffs of their election to rescind the contract and a demand for the return of the goods, upon defendant’s failure to make such payment.


author: Mr. Justice Dever

text:
    John J. Gormley, Appellee, v. Anna Vydarena et al., trading as Lederer Brothers (Defendants). Rudolph Lederer and Samuel Lederer, Appellants.
    Gen. No. 22,775.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed May 21, 1917.
    Statement of the Case.
    Bill by John J. Gormley, complainant, against Anna Vydarena, Paul Vydarena, and Rudolph Lederer and Samuel Lederer, trading as Lederer Brothers, defendants, to apply property standing in the name of the defendant Samuel Lederer to the satisfaction of a judgment for $5,050 recovered by complainant against the defendant Anna Vydarena. From a decree ordering the defendants to pay to complainant $5,013, with interest, and costs within ten days or to surrender and deliver to a certain master in chancery of the court and transfer to said master all title, right and interest had or claimed by the defendant Samuel Lederer in and to a certain certificate of purchase to the property in question, defendants Eudolph Lederer and Samuel Lederer appeal.
    Abstract of the Decision.
    1. Creditors’ suit, § 56*—when evidence is sufficient to show fraudulent procurement of loan and use of proceeds. Evidence held sufficient to show that certain of the defendants, the judgment debtor and her husband, obtained possession of complainant’s money deliberately and by the use of grossest fraud, that they did not obtain a loan of money from the other defendants for the purpose of enabling them to get possession of the certificate of purchase of certain real estate in question, and that they in fact used complainant’s money to-procure the certificate.
    2. Creditors’ suit, § 56

      —when evidence is sufficient to show fraudulent assignment of certificate of purchase' of real estate. Evidence held sufficient to warrant the finding that the assignment of a certificate of purchase of certain real estate in question by the judgment debtor defendant to another defendant was done for the purpose of defrauding the debtor’s creditors and in particular the complainant, and was without consideration in a creditor’s bill on such judgment.
    3. Equity, § 313*—what evidence is sufficient to overcome allegation of sworn answer. The allegations of defendants’ sworn answer which, directly met the allegations of the bill, held overcome by the testimony of two witnesses or the equivalent thereof. 4. Equity, § 303*-—who has burden of proof as to new matter alleged in answer. The burden of proof of new matter alleged in an answer to a bill, held to be upon the defendant.

      Sabath, Stafford & Sabath, for appellants; Charles B. Stafford, of counsel.
    McMahon & Cheney, for appellee; Frank L. Cheney, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dever

delivered the opinion of the court.

5. Appeal and error, § 365 —what is effect of failure to make objection and note exception at proper time. Failure to make objection and note exception at the proper time during the course of a trial, held to operate as a waiver of the right to present the merits of the controversy on appeal.


text:
    Butchers’ Advocate Company, Appellee, v. Autovacuum Refrigerating Company, Appellant.
    Gen. No. 22,778.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and judgment here.
    Opinion filed May 21, 1917.
    Statement of the Case.
    Action by the Butchers’ Advocate Company, a corporation, plaintiff, against the Autovacuum Refrigerating Company, a corporation, defendant, to recover under a contract for advertising. From a judgment for plaintiff for eighty-four dollars, defendant appeals.
    The contract sued on provided:
    ‘ ‘ Chicago, Dec. 21, 1914.
    ‘ ‘ The undersigned hereby authorize the Publisher of The Butchers’ Advocate to insert our advertisement to occupy 5 inches every other week in the Butchers’ Advocate, for three months and thereafter until the publisher has order to discontinue the advertisement for which we agree to pay $6.00 (six dollars) per insertion.
    Autovacuum; Refrigerating Company
    Per W. J. Kelly.”

      Abstract of the Decision.
    1. Evidence, § 138

      —when notice to produce original letter is unnecessary as basis for secondary. Copies of certain letters shown to have been regularly mailed by defendant to plaintiff, held admissible in evidence, notwithstanding no notice was given plaintiff of defendant’s intention to introduce secondary evidence of the contents of such letters or demand made upon plaintiff to produce same in court, it appearing that the letters were not in plaintiff’s possession at the time of trial.
    2. Evidence, § 39*—when presumed that letters were received. A showing that certain letters had been regularly mailed by defendant to plaintiff, held to give rise to a presumption that they had been received.
    3. Contracts, § 193*—when letters subsequently written are not part of contract. Where, after entering into a certain contract with plaintiff for certain advertising, defendant wrote several letters to plaintiff to the effect that it was not ready to or had decided not to advertise, such letters held not part of the contract and not to affect plaintiff’s right of action under the contract.
    4. Contracts, § 384*—when notice of intention not to be bound by contract beyond time limited is shown. Evidence held sufficient to show that plaintiff had notice that defendant did not intend to be bound by the contract of advertising sued on beyond the period fixed therein.
    January 11, 1915, defendant claimed to have mailed plaintiff a certain letter stating it was not ready to deliver certain cuts for the advertisement, and February 3, 1915, a letter that it had decided not to do any advertising just then.
    Maximilian J. St. George, for appellant.
    Elbert C. Ferguson, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic mid section number.

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Emma K. Blanks, Appellee, v. W. H. Mills et al., Appellants.
    Gen. No. 22,781.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment, § 82

      —how affidavit in support of motion to vacate is construed. An affidavit in support of a motion to vacate a judgment by confession is to be construed strictly against the party presenting such affidavit.
    2. Judgment, § 82*—rWhat are essentials of affidavit in support of motion to vacate. An order to vacate a judgment regularly entered in a cause will not be entered unless upon a statement of the facts relied on in the affidavit for the entry of such order; conclusions of the pleader are not sufficient.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthihl, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed May 21, 1917.
    Statement of the Case.
    Action by Emma K. Blanks, plaintiff, against W. H. Mills, Dan Macknett and Frank C. Fishback, defendants, upon a na-rr and cognovit on a lease. From an order denying defendants’ motion to vacate the judgment for four hundred and twenty dollars, taken by confession, defendants appeal.
    Meagher, Whitney, Ricks & Sullivan, for appellants; Fred L. Blackington and W. H. Mills, of counsel.
    Ernest W. Clark, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dever

delivered the opinion of the court.

3. Judgment, § 82 —when affidavit in support of motion to vacate by confession is insufficient. An affidavit filed in support of a motion to vacate a judgment by confession regularly entered stating merely that the lease sued on had been canceled and terminated on a certain date and that the plaintiff had failed and refused to re-rent the premises described in the lease although numerous opportunities for so doing had been offered, held not to unequivocally state facts from which the trial court would be authorized to believe the defendants had a good and meritorious defense to the action.


text:
    Nellie Carlin, Administratrix, Appellee, v. Peerless Gas Light Company, Appellant.
    Gen. No. 22,787.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Joseph H. Pitch, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed May 21, 1917.
    Rehearing denied June 4, 1917.
    Statement of the Case.
    Action by Nellie Carlin, administratrix of the estate of Max Click, deceased, plaintiff, against the Peerless Cas Light Company, a corporation, defendant, to recover for the death of plaintiff’s intestate while in defendant’s employ. From a judgment for plaintiff for $5,000, defendant appeals.
    The declaration alleged that the defendant, Peerless Cas Light Company, a corporation, on April 9, 1903, was engaged in the business of manufacturing burners, mantles, etc.; that in the doing of such business it occupied and used a certain floor or floors of a building in the City of Chicago; that the defendants Ida Hambrook and Adele T. Bassett on said date owned and managed said building; that the building contained a certain elevator shaft, running through and past the different floors of the building; that at the time aforesaid plaintiff’s intestate was employed by the defendant corporation, and that it thereupon became and was the duty of such defendant to provide plaintiff’s intestate, Max Click, with a reasonably safe place in which to work; that it was the duty of the other said defendants to keep and maintain the elevator shaft in question in a reasonably safe condition, so that persons rightfully in and upon the premises would not be injured.
    It was further averred that the defendant corporation in disregard of its duty allowed and permitted a certain large number of boxes, bales or barrels to be piled up in its plant or factory, “so that by reason thereof they became and were dangerous and unsafe”; that the other defendants, owners of the building, negligently permitted the elevator shaft to be unprotected and unguarded at or near the floor of said building occupied by the defendant corporation, and in proximity to which the said barrels, bales or boxes were so piled; that while plaintiff’s intestate was at work for the defendant corporation at the place aforesaid, and in the exercise of due care for his own safety, the said pile of boxes, barrels or bales was caused to and did totter, and some of the said boxes, barrels or bales by reason thereof were caused to and did fall upon plaintiff’s intestate while he, in the exercise of due care, was in the act of getting out of the way of said barrels, boxes or bales, as aforesaid, when he was caused to and did fall down and through said elevator shaft or hoistway to and upon the ground or basement floor, and which said fall was caused by the joint and concurrent negligence of the said defendants”; that by reason of such fall plaintiff’s intestate was killed, etc.

      Abstract of the Decisión.
    1. Master and servant, § 123*—what part of premises need not be kept safé. An employer is under no obligation to a servant to keep in a safe condition that part of his premises where the duties of the servant do not require his presence.
    2. Master and servant, § 535*—“when declaration shows that death of employee occurred at place of employment. The declaration held to sufficiently set forth that the accident which caused the death of plaintiff’s intestate occurred at a place where the deceased was, in the course of his employment, at work for the defendant.
    3. Master and servant, § 699

      —when evidence sufficient to show that employee was properly at place of accident. Evidence held sufficient to warrant the finding that plaintiff’s intestate in the course of his employment for the defendant was properly at the place where the accident resulting in his death happened.
    4. Master and servant, § 127*—when rule that employer not required to keep place safe where conditions are changing has no application. The rule that an employer is not required to keep in a reasonably safe condition a place where a servant is at work where the conditions of such place are constantly changing, as in the construction of a bridge, has no application where an employee’s death was not caused by any changing condition in the prosecution of the work.
    5. Master and servant, § 699*—when evidence insufficient to show that servant had timely warning of movement of boxes. In an action for the death of a servant due to the falling of certain boxes which precipitated him into an unguarded elevator shaft, evidence held insufficient to show that plaintiff’s intestate had warning of the movement of the boxes in time to have avoided them.
    • 6. Master and servant, § 706*—when question whether servant was working at place of accident at time of death is for jury. The question whether plaintiff’s intestate was at and immediately before his fall down an elevator shaft whereby his death occurred, working at the place where the accident happened, Held properly submitted to the jury upon evidence admitted to sustain the theories of both parties to the action.

      Mayer, Meyer, Austrian & Platt, for appellant; Abraham Meyer, of counsel.
    Darrow, Masters & Wilson and J. L. Baily, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dever

delivered the opinion of the court.

7. Witnesses, § 253*—wHen credibility of witness is for jury. Where a statement in writing made by a certain witness shortly after an accident to plaintiff's intestate, resulting in the death of such intestate, tended to contradict in important particulars the testimony of such witness as the only eyewitness of the accident testifying on behalf of the plaintiff, Held that it was the province of the jury to determine the credence to he given such testimony.

8. Masteb and servant, § 782 —wHen instruction properly refused as not in conformity witH evidence. An instruction based upon the finding by the jury that plaintiff’s intestate was at the place where the accident resulting in his death occurred contrary to instructions given him by his forewoman in his employment for defendant, Held properly refused where there was no evidence referred to from which it could be inferred that the deceased had been directed by the forewoman not to be at such place.

9. Death, § 39*—when demurrer to plea of statute of limitations is properly sustained. In an action for the recovery of damages for wrongfully causing the death of plaintiff’s intestate, brought after one year and within two years after such death, where the law in force at the time of such death providing that such actions should be commenced within two years alter the death of the person was amended after the death of plaintiff’s intestate so as to provide that such actions should be brought within one year after the death, Held that a demurrer to defendant’s plea that such action was not brought within one year after the death of plaintiff’s intestate was properly sustained, as the act was not retrospective.