author: Mr. Justice Duncan

text:
    The Fraternal Tribunes v. John Teutsch et al. On appeal of Charlotte Houle et al., Appellants.
    Gen. No. 16,491.
    1. Fraternal benefit societies—when designation of beneficiary void. If a person designated as beneficiary does not fall within one of the classes permitted to be named as beneficiaries under the statute the designation is void.
    2. Fraternal benefit societies—phrase “legal beneficiary of the deceased member’’ defined. The words “legal heirs of the deceased member,” as used in the statute pertaining to designation of beneficiaries, do not include the widow of the deceased member.

      3. Fraternal benefit societies—extent of rights of beneficiary. The beneficiary in an insurance certificate issued by a mutual benefit society has no vested rights in the contract of mutual benefit insurance during the life of the assured.
    4. Fraternal benefit societies—when designation of beneficiary sufficient. Where no formalities or specific directions are required by the constitution, by-laws or certificate, for directing the payment of the fund in ease the legal beneficiary named in the certificate is dead, any clear definite direction or designation of the beneficiary by the insured to whom he desires the fund to be paid will suffice provided such designated beneficiary is one of a class who can legally receive the fund.
    Interpleader. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 24, 1912.
    Statement by the Court. The Fraternal Tribunes, a fraternal insurance society, filed a bill of inter-pleader in the Circuit Court against John Teutsch ' and Martha Houle, appellees, and Charlotte Houle, Conrad F. Houle, Alma Houle and Anna M. Houle, minors, and John Teutsch, their .guardian, appellants, praying that they be required to answer the bill and settle their adverse claims for the amount due from complainant under a certain benefit certificate issued to one William S. Houle, a deceased member, of said order, June 30, 1900. All of'the defendants answered the bill admitting the same and setting forth their several claims to the fund and replications were filed thereto.
    After the usual orders were entered for the defendants to interplead, complainant deposited with the clerk of the court the sum of $977.50, the amount named in the certificate less $22.50 costs to complainant for filing the bill.
    On the hearing the court found that Martha Houle was the equitable beneficiary of the certificate and decreed that the clerk pay said sum of $977.50 to her, and that the other defendants pay the costs, to reverse which decree this appeal is prosecuted.
    The record discloses that Annie Houle, the wife of said William S. Houle, was named as beneficiary in the original certificate; that she died May 28, 1904, leaving her surviving her said husband, and said Charlotte Houle, Conrad F. Houle and Alma Houle, her children by her said husband; that on June 27,1904, William S. Houle named John Teutsch, “brother-in-law, dependent,” as beneficiary, surrendered the first certificate, and in lieu thereof the society issued another certificate of the same number and amount with “John Teutsch, brother-in-law, dependent,” as beneficiary therein; that, March 6,1905, William S. Houle married Martha Houle, appellee, and one child, Anna M. Houle, was born of said marriage, and that said four minors are his only heirs; that on September 23, 1907, said William S. Houle, being ill and in bed and unable to sit up and write, directed his wife, Martha, to write to Mrs. Faulkner, the then secretary of the Home Tribunal of the Fraternal Tribunes, of which he was a member, the following note:
    “Mrs. Faulkner: I am sick in bed and can’t get out, I want my policy changed to my wife, Martha Houle. EJttie Wehrle, my sister-in-law, is bringing the papers to you. Please let her sign my name to papers as I am too weak to write. She has the money with her.
    Tours truly,
    W. S. Houle,
    M. H.”
    The record further shows that at his direction his •sister-in-law, Kittie Wehrle, took said note and certificate and a two dollar bill with which to pay the fee, to Mrs. Faulkner’s home, but did not find Mrs. Faulkner at home; that she “stood around there fourteen or fifteen minutes, ’ ’ rang the door bell twice, and receiving no response returned with the papers; that he then directed her to stay at home from work and to take the papers back to Mrs. Faulkner the next morning and to have the policy changed, because he was very sick; that on the following morning, September 23, 1907, at one o’clock, the said William S. Houle died; and that many times within six months prior thereto William S. Houle had told Mrs. Faulkner that he intended to change the certificate and make it payable to his wife, Martha, instead of John Teutsch, and that she had pointed .out to him what was necessary to so change it.
    The evidence further discloses that the initials “M. H,” signed to said note are the initials of Martha Houle and signify that she wrote the note for her husband and at his request; that both of said certificates provide that the “Laws, Rules and Regulations of this order now in force or hereafter adopted, be made a part of this contract ’; ’ ’ and that in the event that said member complies with all the laws, rules and regulations and is in good standing at his death, said sum is to be paid to the beneficiary designated. Three bylaws of the order introduced in evidence and in full force in the order provide as follows:
    “ Sec. 160. Applicants shall enter upon their application the name or names of such person or persons as are hereby authorized to whom they desire the benefit to be paid, namely: The wife, husband, heir, child or children, or some one related to him by blood; provided, however, that any member desiring after born children to participate as beneficiaries may so designate without doing so by nainp, subject to further disposal of the benefit as the member may thereafter direct, as permitted by the laws of the order. * * *

    “Sec. 161. Members may at any time when in good standing surrender their benefit certificates and have new ones issued to such beneficiary or beneficiaries allowed by the preceding section as they may direct upon the payment of fifty cents. Such surrender and direction must be made in writing, signed by the member desiring to make such surrender and forwarded under the seal of the home tribunal with the benefit certificate and fee to the Supreme Secretary. But no change of direction shall be valid or have any binding force or effect until the foregoing provision has been complied with and new benefit certificate issued.
    “Sec, 164. In the event of the death of all the beneficiaries selected by the member before the decease of such member, if no other or further disposition thereof be made, a benefit,shall be paid to the legal heirs of the deceased member, and if no person or persons shall be entitled to receive such benefit by the laws of the order, it shall revert to the benefit fund. ’ ’
    William M. Lawton, for appellants.
    Samuel J. Andalman, for appellees.
   Mr. Justice Duncan

delivered the opinion of the court.

The evidence clearly shows that John Teutsch, the beneficiary named in the second certificate did not live with William S. Houle at or before June 27, 1904, but was a married man living with his own family and was not furnished with clothing or means of sustenance of any kind by William S. Houle, and was not a blood relative of said deceased. No contention is here made that the designation of John Teutseh as a beneficiary was legal, and it appearing that he did not fall within any one of the classes permitted to be named as beneficiaries under said Sec. 160, his designation as a'beneficiary was void. Alexander v. Parker, 144 Ill. 355.

The acts of naming Teutseh as a beneficiary and having the second certificate issued naming him as beneficiary being void, there was no change in the beneficiary or further disposal of the benefit, as permitted by the laws of the order prior to September 22, 1907. The real issues for solution in this case then are between Martha Houle, widow, and the four minor children, the heirs of William S. Houle, deceased. It is well settled in this State that the words, “legal heirs of the deceased member,” found in said Sec. 164, do not include the widow, and that the said four minors are the only legal heirs of said deceased. Cauch v. St. L. Mut. L. Ins. Co., 88 Ill. 251; Alexander v. The Northwestern M. A. Ass’n, 126 Ill. 558.

It is also the well settled law that the beneficiary in an insurance certificate issued by a mutual benefit society has no vested rights in the contract of mutual benefit insurance during the life of the assured; and that, the contract being between the society and the member, the latter may change the beneficiary at any time in accordance with the statute, the charter and by-laws of the society and the certificate itself. In the absence of any provision of the statute, by-laws or charter or the certificate of insurance, expressly authorizing or prohibiting a change of beneficiary by the member, the latter has a vested right to make such change, from the character and purpose of the society itself. Delaney v. Delaney, 175 Ill. 187.

What restrictions by said certificate and by-laws were placed upon the right and power of William S'. Houle to appoint or designate a beneficiary to whom said fund-should be paid? The three sections of the by-laws above quoted are the only provisions of the contract in evidence that bear upon this question. Said Sec. 160 simply requires that “applicants shall enter upon their application the name or names of such person or persons as are hereby authorized to whom they desire the benefit to be paid, namely: the wife, husband, heir, child or children, or some one related to him by blood, * * * subject to such further disposal of the benefit as the member may thereafter direct, as permitted by the laws of the order.”

Sec. 161 provides the mode by which a member might change the disposition of the fund from one living beneficiary to another.

Section 164 is intended for the purpose of directing the disposition of the benefit fund in the event of the death of the legal beneficiary named in the certificate prior to the death of the assured and without directions by the latter for the disposition of the fund. Said sections 160 and 164 also recognize the right of the assured, in the case of the death of all designated beneficiaries, to direct the payment of the fund to any one or more of the classes of persons mentioned in said section 160. This clearly appears from the provisions of said two sections, “subject to such further disposal of the benefit as the member may thereafter direct, as . permitted by the laws of the order,” and, “if no other or further disposition thereof be made.” Section 161 only applies when a new certificate is desired naming a new beneficiary instead of a living beneficiary previously named. The last sentence of that section instead of being against this contention rather adds force to it, to wit: “But no change of direction shall be valid or have any binding force or effect until the foregoing provision has been complied with and a new benefit certificate issued.” In this case now before us no legal living beneficiary had been designated by the assured prior to his dictating the above note to Mrs. Faulkner, except his first wife, Annie, who was then dead. Hence, there was no living designated beneficiary to be changed, and in the absence of any further designation by the assured, the fund would be payable to his legal heirs as provided by Section 164. All these by-laws were specially intended to protect the society in paying this fund to any legal living beneficiary named in the certificate after the death of the assured, and to only compel it to investigate the rights of heirs or other designated beneficiaries in case there was no living beneficiary named in the certificate who could legally receive the fund. The foregoing conclusions are sustained by the case of Order of Foresters v. Malloy, 169 Ill. 58, which is very similar in all essentials to the case at bar.

No formalities or specific directions are made or required by said Section 164, or by any other section of the by-laws in evidence, or by the certificate itself, for directing the payment of the fund by the assured in case the legal beneficiary or beneficiaries named in the certificate are dead. In the absence of any such provisions, any clear, definite direction or designation of. a beneficiary by the assured to whom he desires the fund to be paid will suffice, provided such designated beneficiary is one of a class who can legally receive the fund. 1 Bacon on Benefit Societies, Sec. 308a; Masonic Mut. Ass’n v. Bunch, 109 Mo. 560; Hirschl v. Clark, 81 Ia. 200; Highland v. Highland, 109 Ill. 366.

The said fund was not effects of the deceased which wquld go to his personal representatives, as his property would do. It was merely a benefit fund which his lodge, after his death, were to pay to whom he had directed it to be paid. No particular character of instruments, such as a will, was required, to make the direction of the assured. It could he made by a paper or note signed by the assured, such as the. one in evidence in this case, expressing his intention and directed to the society or its secretary, and without surrender or change of the certificate. Hirschl v. Clark, supra; Highland v. Highland, supra.

The execution of the note or direction of the insured in this case to Mrs. Faulkner was established by a competent witness, and there is no evidence to the contrary. Directing or requesting the society or its secretary to change his policy so as to make it payable to his wife, Martha, should be held to be in legal effect a direction to the society to pay the fund to her after his death. He was acting in view qf the fact that he was likely to die soon, and he did all that he could do at that time to have a new certificate issued payable-to her, which would have, as he well knew, the effect of securing to her the fund after his death. The decree of the Circuit Court is, therefore, affirmed.

Decree affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Horace L. Brand, Appellee, v. Peter Svenson, Appellant.
    Gen. No. 18,469
    1. Injunctions—enforcement of negative covenants. In respect of purely negative eonvenants annexed to or contained in contracts or leases, courts of equity will frequently interpose fey injunction and indirectly enforce special performance thereof fey prohibiting their breach. This remedy is given in many such cases without 'regard to the question of whether ot not substantial injury will ensue and for which, there may be a complete remedy at law.

      2. Injunctions—enforcement of negative covenants. Injunction is the appropriate remedy in nearly all cases where the contract .is negative in form, requiring the parties to refrain from doing certain things, and particularly when the contract and the limitations relate to an interest or a right in real estate.

      3. Injunctions—enforcement of negative covenants. Courts of equity have in a number of instances where an injunction is otherwise proper enjoined acts in violation of implied negative covenants in contracts wherein the express covenants were in form affirmative. It is a general rule, however, that it is necessary to show affirmatively that damages are not an adequate remedy, even though the contract is negative in terms and in substance.
    4. Injunctions—when do not lie to enforce covenant of lease authorizing entry by landlord to malee repairs.. An injunction does not lie at the instance of a landlord to restrain a tenant from interfering with his entering for the purpose of making repairs as provided by the term of the lease, where such lease confers by its terms, rights, which would enable the landlord to obtain a complete remedy by resorting to a court of law.
    Appeal from the Circuit Court of Cook county; the Hon. Adelob J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and injunction dissolved.
    Opinion filed April 24, 1912.
    Statement by the Court. On February 25, 1911, Peter Svenson, appellant, entered into a lease with one Eliza C. Hamill for the renting of certain premises described in the lease, as follows:
    “The store No. 158 Fifth avenue, being the south half as now divided from the center line of posts of the main floor of the building situated and known as Nos. 156-158 Fifth avenue, said building to be known on and after April 1, 1911, as Nos. 24-28 South Fifth avenue, Chicago, to be occupied by lessee for tailor’s trimmings and dry goods and for no other purpose whatever, from the 1st day of May, 1911, for and during and until the 30th day of April, A. D. 1912.”
    Appellant covenanted to pay the sum of $1,200 as rent in monthly installments of $100 on the first day of every month.-
    By the third covenant in the lease he also agreed as follows:
    “To allow lessor and agents free access at all times to premises for purposes of examining or exhibiting same or to make any repairs, additions or alterations of premises or buildings of which they are a part, and to elevators, boilers, machinery and heating apparatus in‘premises or building of which they are a part, which said lessor or agent may see fit to make, * * * .”

      On December 23, 1911, Horace L. Brand, appellee, purchased the building from the original lessor, Eliza C. Hamill. Brand brought an action of forcible detainer against appellant to recover possession of the premises, but on February 13,1912, on call of the cause for trial, took a nomsuit. After various efforts to purchase appellant’s interest in the lease, and being unable to agree with appellant upon any satisfactory terms of purchase, appellee and his agents and contractors and workmen went into the store of appellant for the purpose of putting up temporary partitions and making various alterations in the store, to which appellant immediately protested and refused to allow said work to be done and ordered appellee and his workmen out of the store. Thereupon, on the same day appellee filed his bill in chancery praying an injunction restraining appellant from interfering with the making of such additions and alterations on the premises and in the carrying on of other work in said store, or with his workmen engaged in such work. The bill alleges that the said lessor at the time of the conveying of said premises by her to appellee assigned all rights in said lease to appellee, and •that appellant attorned to him; that the said alterations of the said building consist in enclosing the elevator shaft with a brick wall, installing a standard automatic sprinkler system, replacing the store front with a modern store front, and constructing a new cement sidewalk in front of the premises; and that said improvements are essential and important to prepare the premises for appellee’s publishing business by May 1,1912.
    Upon an application for a temporary injunction the evidence for appellee tended to show that the alterations could be made without inconvenience to appellant further than to deprive him temporarily of about six feet of space in front of his store and a'small area adjacent to the elevator shaft in the rear of the building, and that the alterations were proper and necessary for the installation of his printing business in said premises by May 1, 1912. The court granted a', temporary injunction as prayed, and this appeal is prosecuted by appellant to reverse that interlocutory order.
    Purdy & Burr, for appellant.
    Gregory, Poppenhusen & McNab, for appellee; Edward R. Johnston, of counsel.
   Mr. Justice Duncan

delivered the opinion of the court.

It is argued by appellee’s counsel that the covenant in the lease in question to allow the landlord to enter and make repairs and alterations, while affirmative in form, is negative in substance, as the lessee can only allow the landlord to enter by desisting’from interference with Ms entrance. It is, therefore, insisted that in respect of such covenants the remedy by injunction is synonymous with the remedy of specific performance, and that the same rules aré applicable to each. It is the settled law that in respect of purely express negative covenants annexed to or contained in contracts or leases, courts of equity will frequently interpose by injunction, and indirectly enforce specific performance thereof by proMbiting their breach. This remedy is given in many such cases without regard to the question of whether or not substantial injury will ensue and for wMch there may be a complete remedy at law. When such an express covenant is made, it has been held that the lessee is bound to refrain, and the lessor is not reqmred to submit to the opimons of others as to whether he will or will not suffer substantial injury. Consolidated Coal Co. v. Schmisseur, 135 Ill. 371. It is also said in the same case that cases are much more rare where a court of eqrnty has interfered to prevent the breach of a negative covenant which is implied from a positive stipulation.

There can be no doubt that injunction is the appropriate remedy in nearly all the cases where the contract is negative in form, requiring the parties to refrain from doing certain things, and particularly when the contract and the limitations relate to an interest or a right in real estate. It is also true that courts of equity have in a number of instances, where an injunction is otherwise proper, enjoined acts in violation of implied negative covenants in contracts wherein the express covenants were in form affirmative, as in this case. It is a general rule, however, that it is necessary to show affirmatively that damages are not an adequate remedy, even though the contract is negative in terms and in substance. 22 Cyclopedia of Law and Procedure, 846, and cases cited; 2 High on Injunctions, Secs. 1135 and 1136; Carlson v. Koerner, 226 Ill. 15.

What is said in Carlson v. Koerner, supra, a case very similar to the one at bar, is applicable to and controlling in this case, viz: “The terms here used are not negative and can only become so by implication * * *. There is no negative covenant within the rule laid down by the authorities, and hence equity had no jurisdiction without proof of irreparable injury.” There is no affirmative proof in this record that appellee has sustained irreparable injury, but on the contrary it clearly appears that he has complete and adequate remedies at law. TEe eighth section of said lease provides,.that should the lessee violate any covenants or conditions of the lease that the lessor may at his option without notice to lessee, at once declare the tenancy terminated and that a sum of money equal to the amount of rent which would accrue to the end of the lease shall at the option of the lessor be payable as liquidated damages which lessee agrees to pay at once on the termination of the lease so authorized, the lessee to be entitled in such case to all rents received by the lessor for rental to other tenants during remainder of the term, less expenses, in no case to exceed said liquidated damages, with interest.

The tenth section thereof provides that after service of notice or commencement of suit, or final judgment for possession of premises, lessor may receive and collect rent due, and payment thereof shall not affect said notice, suit or judgment. It also further provides that the lessee shall pay all reasonable fees and expenses incurred by lessor in enforcing covenants of the lease, and that all rights and remedies of the lessor under the lease shall be cumulative and none shall be exclusive of any other rights allowed by law.

Under the foregoing provisions it clearly appears that appellee by the action of forcible detainer could have regained possession of the premises for any breach of the covenants, and without losing his right to collect a sum equal to all the rent that would have accrued to the end of the term after regaining such possession. There was, therefore, no equitable grounds shown for the granting of the injunction in this case, and the order of the court appealed from is reversed and the injunction dissolved.

Order reversed and injunction dissolved.


author: Mr. Justice Graves

text:
    Andrew Christensen, Appellee, v. Oscar Daniels Company, Appellant.
    Gen. No. 16,055.
    1. Statute op limitations—when new cause of action not set up. A new cause of action is not set up by an amendment which does not in any way change the averments of the declaration as to the negligence of the defendant.
    2. Instructions—when giving, containing abstract proposition of

      law, will not reverse. An -instruction which contains an abstract proposition of law if given will not reverse unless prejudice appears to have resulted.
    3. Instructions—when conclude with directions. An instruction which d'reets a particular verdict if certain facts are found by the jury must not omit any essential fact or element.
    4. Instructions—predicated upon facts. An instruction should be refused which is not predicated upon any facts in the cause.
    5. Verdict—when esrcessiveness will not reverse. An excessive verdict will not reverse unless it appears to have resulted from passion or prejudice.
    Action in ease for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed on remittitur on rehearing.
    Opinion filed April 24, 1912.
    Rehearing denied May 9, 1912.

      Certiorari denied by Supreme Court (Making opinion final).
    Eddy, Haley & Wetten, for appellant; Charles H. Pegler, of counsel.
    John A. Bloomingston, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court for $5,000 in favor of appellee in a suit for personal injuries alleged to have been sustained by him on July 22,1903. The case has been twice tried. The first judgment was for $2,200. That judgment was reversed by the Appellate Court because of a fatal variance between the proofs and the allegations of the declaration. The opinion of the Appellate Court in that case is reported in Vol. 142 Ill. App. 129. At the beginning of the last trial appellee by leave of court filed an amendment to his' declaration by which he changed the averment that he had tripped on the “cable” to an averment that he tripped on the “drum,”, in other respects the amendment makes no change in the substance of the declaration. To this. amended declaration appellant interposed a plea of the Statute of Limitations. Appellee demurred to this plea, which demurrer was sustained. The action of the court in sustaining that demurrer is urged as one reason why this judgment should be reversed. There was nothing in the amendment that in any way changed the averments of the declaration, as to ° the negligence of appellant, or that set up a new cause of action, and the demurrer was properly sustained. Lee v. Republic Steel Co., 241 Ill. 372; City of Evanston v. Richards, 224 Ill. 444.

The charge in the declaration as amended is, in substance, that after appellant through its vice-principal had ordered appellee to go in between the two drums, connected with an engine used to operate a derrick, and to place a certain cable upon the front or larger drum that was in motion, the rear or smaller drum was, by the order of the foreman and vice-principal ■and without the knowledge of appellee, put in motion, and that when appellee had finished his work between the drums he undertook to step back over the back drum, which he did not know was in motion, and tripped on it, and in attempting to prevent falling he took hold of the cable on the front drum and the end of the first finger on his left hand was caught and taken off at the second joint.

It will be observed that the negligence charged is in ordering the hack drum to be placed in motion while •appellee was between the two drums and without his knowledge. There is no averment that the order to go in between the two drums was a negligent order, or that the place between the two drums was a dangerous place before the rear drum was put in motion, nor after it was placed ,in motion, so long as appellee was performing the duties which he was ordered to perform between the two drums, or that the injury was caused by the motion of the front drum. The inference from the averments seems to be that putting in motion the rear drum rendered dangerous the act of getting out from between the two drums, when appellee’s duties had been performed, and that he was injured while attempting to so get out from between the two drums, because the rear drum was in motion. The only evidence in the record that tends to show that the injury to appellee was caused by the motion of the rear drum is found in the testimony of appellee who after saying that both, drums, when in motion, moved outwards from where appellee was at work, testified, speaking of the cable on the rear drum, “The wire was slack there and when I stepped over, that knocked my foot right away from me and the cable and the drum got tangled in my foot you see and I fell and that’s what I put my hand out for, to defend myself. ’ ’ While this evidence fails to make very clear just what in fact caused appellee to fall* it is, not contradicted, and we think fairly tends to show that the outward motion of the rear drum tripped appellee and caused him to fall. If it be conceded that the fall of appellee was caused by the motion of the rear drum, his right to recover depends on whether the responsibility for starting that drum can be traced to appellant.

The proof tends to show that a squad of men had been engaged in strengthening the boom of a hoisting derrick; that they were about to raise it and get it in position for use; that in doing so it was necessary to wind up on the larger of a pair of drums a cable attached to the boom; that in order to properly wind up the cable it was necessary to pound it up as it wound on the drum, so that the successive wraps of the cable around the drum would rest snugly against each other; that one Anderson was, at least for the purpose of assigning to the men the place where they should work, the foreman of that squad of men, and the vice-principal of appellant; that as such foreman he gave a general order to the men that one of them should pound up the cable on the drum, knowing, as he did so, that it was the custom for the man nearest to the drum to obey the order; that appellee was the man nearest to the drum and that he obeyed the order; that the operation of pounding up the cable on the large drum was usually performed by the person so employed getting in between the two drums and using a hammer, although it was sometimes done by standing outside of the frame holding the drums and using a stick or timber ; that appellee employed the first and usual method; that while appellee was between the drums engaged in performing the duties assigned to him, Anderson signalled the engineer controlling the engine, by which the two drums were operated, to lower the falls or blocks; that in order to do so it was necessary for the engineer to start the smaller or rear drum in motion and it was so started-by him; that appellee having completed the work of pounding up the cable undertook to get out from between the two drums and because of the motion of the rear drum, which he did not know, or have any reason to know, had been started, he tripped or was thrown oft his balance and injured. On this state of the facts and pleadings it was for the jury to say whether Anderson at the time he signalled to the engineer to lower the falls was acting as the vice-principal of appellant or as a fellow servant of appellee. This case has twice been submitted to a jury, and by each verdict the jury found appellant guilty. The negligence alleged in the declaration being in ordering the rear drum that controlled the falls to be started, these verdicts of guilty amounted to a finding that Anderson, in giving that signal, was the vice-principal of appellant, and that the giving of the signal was a negligent order of appellant, and a majority of this court are of the opinion that this court cannot say that such finding is not fairly supported by the evidence.

The second instruction, given on behalf of appellee, is criticised as ah abstract proposition of law; that contested facts are assumed in it to be true; that it is misleading, and that it ignores the question of assumed risk. This instruction might well have been refused as an abstract proposition of law. The giving of such instructions has frequently been criticised and may well be, but it has never been held in this state to constitute reversible error, unless the same is calculated to mislead the jury. An instruction substantially the same as this one was passed upon in West Chicago v. Dwyer, 162 Ill. 482, the court holding it was not subject to this objection. Neither do we think it is subject to any of the objections urged to it in this case.

Appellant’s refused instructions numbers four and six were properly refused. Each directed a verdict and the question as to whether the signal given by Anderson to lower the falls was under the circumstances negligent and the question whether Anderson was a vice-principal of appellant are ignored. If Anderson was such vice-principal and his order to lower the falls was negligent, then appellee could recover even if the negligence of the engineer also contributed to the injury.

Appellant’s refused instruction number five was an attempt to apply the facts in the case to the doctrine of fellow servant and might well have been given, but in view of other instructions given we think its refusal does not constitute reversible error.

Appellant’s refused instruction number seven was properly refused. It announces the rule that .where there are two ways in which the work to be done can be performed, one less dangerous than the other, and the servant voluntarily chooses the more dangerous way, he can not recover. There is no proof that the way appellee chose to do the work was a dangerous way, or that the place into which he went to do the work was a dangerous place, when he chose the way and place in which to do the work, nor that any other way or place, was less dangerous.

Appellant’s refused instruction number eight relates to the question of contributory negligence. This subject was fully covered by other instructions and it was not error to refuse this one.

It is contended that the verdict is so excessive as to show it to be the result of passion and prejudice on the part of the jury. Appellee had the front finger of one of his hands crushed. An attempt to save the finger by sewing it on was made, but blood poisoning set in and the finger was amputated. Blood poisoning extended to and involved the whole hand and part of the arm. An opening was made through the hand to drain from it the poison there accumulated. He was confined to a hospital for some time and was treated by a physician for a considerable time after he left the hospital. During this time he suffered much pain. After such recovery as he was able to make, his hand was left weak and he was unable to pursue the business of structural steel worker, in which he had formerly been engaged and at which he was earning $5.00 per day. He was 52 years old at the time of the injury. Since his injury he has pursued several different kinds of employment, in at least one of which he received a compensation equal to that received by him as structural iron worker.

The main permanent injury complained of is a weakening of the hand so that he cannot hold on to objects as securely as before.

While the verdict was, in our opinion, larger than mere compensation for the injuries received will warrant, we are unable to find any evidence that the jury were influenced by passion and prejudice.

If appellee will, within ten days from this date, file in this court a remittitur of $2,000, the judgment of the court below "will be affirmed for $3,000, otherwise the same will be reversed and remanded.

Affirmed on remittitur.

Affirmed on remittitur (on rehearing).


text:
    John J. Ellsworth et al., Plaintiffs in Error, v. Frank O. Butler, Defendant in Error.
    Gen. No. 16,253
    Appeals and errors—when finding by eowt not distwbed. A finding by the court is given the same effect as the verdict of a jury and will not be set aside as against the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed April 24, 1912.
    Pattison & Shaw, for plaintiffs in error.
    Asa I. Reynolds, for defendant in error; William Elmore Foster, of counsel.
   Mr. Justice Graves

delivered the opinion of the court.

Plaintiffs in error are in the commission business at the Union Stock Yards in Chicago. Defendant in error owns and operates a farm at Hinsdale, near Chicago. On April 1, 1909, a transaction was had between the parties resulting in the shipment of a pair of mares from the stock yards to the defendant in error at Hinsdale. When the horses reached Hinsdale one of them was sick and about two weeks later it died. «, The other horse was returned by defendant in error to plaintiffs in error at the Stock Yards, but they refused to accept it and turned it over to the Stock Yards Company to take care of. Plaintiffs in error claim that they purchased the team for defendant in error from one Cozzins, and paid $600 of their own money therefor. This suit was begun in the Municipal Court to recover the money so paid. The case was tried by the court without a jury and resulted in a finding and judgment for the defendant.

There are no controverted questions of law presented for determination, but plaintiffs in error insist that the manifest weight of the evidence shows that the transaction was an unconditional sale of the horses to defendant in error and defendant in error insists it was a sale on approval after the horses had been tried and inspected by him and found satisfactory. Plaintiffs in error concede that if the transaction was a sale on approval they cannot recover. The determination of controverted questions of fact by a trial court hearing a case without a jury is entitled to the same weight in appellate tribunals as the determination of such questions by a jury, and will only be disturbed when the court can say the finding is manifestly contrary to the weight of the evidence.

No good purpose would be subserved by a lengthy discussion of the evidence in this case. It was conflicting. If the evidence introduced by defendant in error is to be believed, it was sufficient to warrant the finding made. The judge who tried the ease heard all the evidence, and saw the witnesses and observed their demeanor while on the stand, evidently believed the evidence introduced by defendant in error, for after weighing it and passing upon the credibility of the witnesses, he found the issues for the defendant in error, and we are not prepared to say the evidence did not warrant the finding.

The judgment of the court below is, therefore, affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Gridley

text:
    Chicago Title & Trust Company, Trustee, Appellant, v. John Hektor et al., Appellees. Same v. Same. Appeal of Thomas H. Seymour et al.
    Gen. No. 16,433. Gen. No. 16,434.

      Foreclosure:—who not authorized to direct by trustee. One not the owner of a bond secured by a trust deed has no authority to direct a foreclosure by the trustee named in such trust deed for default of the mortgagor.
    Foreclosure. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 25, 1912.

      Certiorari denied by Supreme Court (Making opinion final).
    Henry W. Leman and Frank H. Culver, for appellants,
    Alden, Latham & Young, George Gillette and John D. Hood, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

A bill was filed in the Superior Court of Cook County, October 4, 1906, by Chicago Title and Trust Company, as trustee, to foreclose a trust deed, signed by John Hektor, a bachelor, conveying to it certain real estate as security for eighty bonds, aggregating $20,000, also signed by John Hektor. On January 15, 1910, the court entered a final decree in the cause in, which, among other things, it was adjudged that the said bill ‘ ‘ was prematurely filed, ’ ’ and that the same ‘ ‘ is hereby dismissed for want of equity, but without- prejudice to any suit or suits to be hereafter brought to foreclose the deed of trust set forth in said bill, to which suit or suits this decree shall not be a bar, at the có'S'ts of the complainant.” From this decree two separate appeals were taken to this court, one by complainant, Chicago Title and Trust Company, as trustee, and the other by Thomas H. Seymour and others, certain defendants to said bill. By an appropriate order said appeals were here consolidated for the purpose of the hearing only, and have been so treated by counsel in their arguments.

The bill to foreclose was in the usual form and charged, among other things, that of the issue of eighty bonds those numbered 1 to 11 inclusive had been paid and cancelled; that it was provided in said trust deed that the bonds should pass by delivery, unless registered, that “in case of default for a period of 30 days in making payment of any of said bonds, either of principal or interest, then the. whole of said principal sum secured thereby should at once, without notice * * * , at the option of the holder of any one or more of said bonds then unpaid, become due and payable,” and that upon such default being made it should be lawful for the trustee, and “upon the request in writing of the holder or holders of one or more of the then outstanding bonds it should be the duty of the trustee thereunder immediately, to institute a suit for the foreclosure of said mortgage in any court of competent jurisdiction;” that default had been made for 30 days and more in the payment of bond No. 12, for $100, due August 1,1906, bond No. 13, for $100, due September 1,1906, and by reason thereof “W. L. Barnum, Jr., the owner and holder of said bonds, numbers 12 and 13, * * .* did .declare all of said bonds, secured by said trust deed, immediately due and payable, and did on October 2,1906, in writing, duly notify the complainant herein, * * * of such election and declaration, and did, in writing, apply to complainant to immediately institute suit for the foreclosure of said trust deed, * * * and did duly lodge with said complainant” said bonds. All persons having any interest were made parties defendant to the bill.' The property conveyed by the deed of trust was known as the Eandall apartment building in the city of Chicago.

The main issues presented by the pleadings were as to the ownership of bonds numbered 12 and 13 by William L. Barnum, Jr., as follows: (a) whether said Barnum, on October 2,1906, was the legal owner and holder of said bonds, and (b) whether bond No. 13 had prior to that time been paid. The cause was referred to a master in chancery. The master found, among other things, that before and at the time of the beginning of this suit the defendant, Herbert W. Duncanson, was the owner of bond number 12, that bond No. 13 had not been paid, that said Barnum was, on October 2, 1906, the - legal owner and holder of said bond, No. 13, and that he had the right on said date, as such owner, to declare the whole of said bond issue due and payable, because of the default in the payment of said bond having continued for more than thirty days. After a hearing on exceptions to the master’s report the court announced its decision to the effect that prior to said October 2, 1906, bond No. 13 had been paid, and that on said date said Barnum was not the owner and holder of bonds 12 and 13. These findings were subsequently incorporated in the decree, which, as before stated, adjudged that the bill of complaint was prematurely filed and that the same should be dismissed. Between the time of said announcement by the court and the actual entry of the decree, a motion was made by appellant, Chicago Title and Trust Company, for leave to file an amended and supplemental bill, which motion, after a hearing, was denied by the court.

The record in this case is quite voluminous, as are the printed briefs and arguments of counsel for the respective parties, all of which have been carefully considered by us. The main contention of appellants is that William L. Barnum, Jr., at the time he directed complainant to institute the foreclosure proceedings, was the owner and holder of bond No. 13, which he acquired by purchase from Dr. Otto J. Stein. It appears from the testimony of Dr. Stein that he was the owner and holder of bond No. 13, in question, and also bonds numbered 14 and 15 (which were also in the amount of $100 each); that sometime in September, 1906, he took these bonds to the office of Jennings Beal Estate Loan Company, where said bonds were payable, and personally received the money due on them; that the bonds “were paid’’; that he did not get the money on them until three or four days after he first presented them, and that he does not remember who gave him the money or that he had any dealings with said Barnum. On cross-examination he says that he does not know whether the. bonds were paid or purchased, does not know who supplied the money to take them up, and that the money was paid to him by a person behind the cashier’s window. William L. Barnum, Jr., who claimed to be the owner and holder of bonds numbered 12 and 13, and who was an employe of said Jennings Company, testified on direct examination to the effect that he purchased said bond No. 13 from Dr. Stein prior to October 1,1906, and that at the time he directed complainant to institute the foreclosure proceedings and at the time the bill was filed he was the holder and owner of said bond No. 13. He was subjected to a vigorous cross-examination and Ms entire testimony, taken in connection with the other evidence in the case, is such that in our opinion it was not proven that he was the owner and holder of bond No. 13 on or before October 2, 1906, or at any time, or that he was at any time the owner and holder of bond No.. 12.

Under the facts of tMs case as disclosed from the evidence, and under the law, we are of the ppinion that the chancellor did not err in dismissing the bill. Bennett v. Chandler, 199 Ill. 97. Nor do we think that error was committed in denying the motion for leave to file the amended and supplemental bill. The decree is affirmed.

Affirmed.


text:
    Albert Hopp, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,513.
    1. Appeals and errors—when rulings upon evidence will not reverse. The improper admission or exclusion of evidence will not effect a reversal if no prejudice appears to have resulted.
    2. Instructions—when upon credibility of witnesses, etc., proper. An instruction upon this subject is not erroneous which informs the jury in substance that they are the judges of the credibility of the witnesses, that they are not bound to regard the evidence as evenly balanced merely by a count of the witnesses, but that in determining such questions they have a right to consider the appearances of the witnesses while on the stand, their manner of testifying, their apparent candor and fairness, their intelligence or the lack of it, and all other surrounding circumstances appearing on the trial.
    3. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Action, in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 24, 1912.
    James Maher and Watson J. Ferry, for appellant.
    Stein, Mayer & Stein, for appellee; Harry M. Rosenblum, of counsel.
   Mr. Justice Graves

delivered the opinion of the court.

A judgment was recovered by appellee in the Superior Court of Cook county against appellant for the sum of $2000 for damages received by appellee while attempting to board a street car of appellant running south on Halsted street and near to the intersection of that street and 47th street. We are asked to reverse this judgment because of certain claimed errors in the rulings of the court on the admission of evidence, and the refusing of an instruction, and because the judgment is not supported, by a preponderance of the evidence.

We have carefully examined the record, and find no reversible error in rulings of the court on the admission of evidence. The evidence excluded, on objection of appellee, was immaterial, and that admitted over the objection of appellant, could in no way have changed the verdict.

The instruction complained of, given at the instance of appellee, informed the jurors, in substance, that they were the judges of the credibility of the witnesses ; that the jury were not bound to regard the evidence as evenly balanced merely by a count of the witnesses, but that in determining such questions the jury had a right to consider the appearances of the witnesses while on the stand, their manner of testifying, their apparent candor and fairness, their intelligence or the lack of it, and all the other surrounding circumstances appearing on the trial. A verdict is not directed by this instruction, and instructions in substantially the same words have been time and again approved by the courts of this State. Chenoweth v. Burr, 242 Ill. 312, and cases there cited, and in North Chicago St. Ry. Co. v. Wellner, 206 Ill. 272, the identical instruction here complained of was approved.

Counsel for appellant with much earnestness has urged that the verdict is not supported by the evidence, and has pointed out numerous instances where a sharp conflict exists between the witnesses who have testified for the respective parties. A thorough examination of this evidence convinces us that it cannot be reconciled. One side is right and the other is wrong on the facts. The right of appellee to recover depends on whose witnesses are to be believed. The jury who heard these witnesses testify and had the opportunity of observing their demeanor on the stand and of judging of their candor and fairness, and whose duty it was to judge of the credit each was entitled to, and in the end to weigh it all, found the issues for appellee, and we have no right to set their finding aside unless we can say it was manifestly wrong. This we are not prepared to do.

Finding no reason why this judgment should be reversed, the same is affirmed.

Affirmed.


author: Mr. Justice McSurely

text:
    In re Estate of Frank Athenstadt, deceased Doyle Bros., Plaintiffs in Error, v. Mary M. Bartelme, Administratrix, Defendant in Error.
    Gen. No. 16,415.
    1. Contracts—what does not preclude defense of gambling consideration. The defense that the consideration for a note was gambling in character representing transactions in grain cannot be defeated by showing that the payee in conducting such transactions was merely acting as the agent of the maker.
    2. Gambling—when transactions in grain are. If it is understood between the parties to a transaction in grain that there shall be no actual receipts or deliveries but only a settlement upon differences in price there can be no liability of one to the other.
    Contested claim in court of probate. Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 24, 1912.
    D. Moncrieffe Kirton, for plaintiffs in error.
    Frank Wentworth Swett, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

This case arises out of a claim filed by Doyle Bros., hereinafter called claimants, in the Probate Court of Cook County on a promissory note for $1,600, payable to claimants and executed by one Frank Atbenstadt, hereinafter called defendant, who died October 1,1906.

The claim came on for hearing before the judge of the Probate Court, and after hearing was disallowed and dismissed by said court. Claimants appealed to the Circuit Court where, upon trial, a verdict for claimants was rendered by the jury for $874. A new trial being granted by the court, the case was tried before his Honor Judge Windes of the Circuit Court, a jury having been waived. The court upon this trial found the issues for the Estate of Frank Atbenstadt and entered judgment against the claimants for costs. The present writ of error is sued out to reverse the judgment so entered.

The defense is that said note was given in pursuance of a gambling transaction and that therefore said transaction is invalid, and the note, being given without consideration, is void. The note is dated January 22, 1904, payable one year thereafter, with interest at six per cent, per annum. The defendant was a barber by trade, and was actively engaged at his trade during the entire two years from 1902 to 1904, when the grain transactions making up the consideration of the note were entered into. During this time William J. Doyle, senior member of the claimant firm, continually visited the barber shop of said defendant and was shaved by him. The defendant began his dealings with claimants in January, 1902, and did business with them until about the time or shortly after the date of the note which was given in settlement of accounts up to the date thereof. William Doyle’s testimony is that “the consideration of the note was for money on grain that he bought and sold; the differences on the price of grain that he bought and sold.” The mote is made up of such differences. During these two years the defendant went through the form of buying 334,000 bushels of wheat from claimants, and sold the same amount. After he had bought and then sold the same amount, Doyle Bros, rendered him a statement showing the differences. No statements were ever rendered for the purchases themselves, but only after the same amount which had been purchased was sold. During the two years defendant paid claimants margins from time to time to cover a part of these differences. These payments were made in small items of five and ten dollars. Doyle testifies, referring to defendant: “He was dealing in margins. He never took any of this grain on delivery; simply bought on margins; that is the theory on which we dealt with him.” Not a bushel of the 334,000 bushels of wheat was ever delivered or received by either party.

The trial court made two findings of fact: First, that Frank Athenstadt “was financially unable to purchase and pay for the grain shown by the evidence to have been contracted for by him with the claimants, Doyle Brothers, and that under all the circumstances of this case, this inability to pay for said grain by said Athenstadt was known to the claimant, Doyle Brothers.” And second, “that neither Frank Athenstadt nor Doyle Brothers intended to purchase and deliver, and to sell and deliver, the grain shown by the evidence to have been bought and sold by them respectively.”

We are of the opinion that from the direct testimony of William Doyle, and from all the circumstances surrounding the parties to this transaction, the trial court was-clearly justified in making these findings of fact. ,

In Jamieson v. Wallace, 167 Ill. 388 (396), the Supreme Court, after referring to a large number of authorities, said: “An examination of the authorities above referred to will show, that the intention of the parties may be determined from a variety of circumstances. Among these circumstances, besides the mode of dealing between the parties, is the pecuniary ability of the party purchasing. If the purchaser of a party, as ordered through a broker, are larger in amount than he is able to pay for, it is a strong circumstance indicating that there was no intention of receiving the property, but rather an intention to settle the difference between the market price and the contract "price. Such an intention may be also inferred where the party, making the purchase, never calls upon the party, ordering the purchase, for the purchase money, but only for margins. It makes no difference, whether the real intention is formally expressed in words or not, if the facts and circumstances in proof show, that it was the real understanding, that there should be no actual purchase and no delivery or acceptance of the property involved in the contract, but merely an adjustment of damages upon differences.”

It is claimed by plaintiffs in error that claimants, .while making contracts with the defendant for the purchases and sales in question, were acting for certain firms on the Board of Trade, and the intention of such firms with respect to receipts and deliveries of grain must be shown, and in the absence of any showing it will be presumed that actual receipts and deliveries were intended. We do not believe this to be the law applicable to this case; but the correct rule is as announced in Weare Commission Co. v. The People, 209 Ill. 528 (542), which is as follows: “Plaintiff in error cannot relieve itself of responsibility upon the ground that it acted merely as agent for its customers in these unlawful transactions. In Pearce v. Foote, 113 Ill. 228, we said: ‘There is and can be no such thing as agency in the perpetration of crimes or misdemeanors, or, indeed, in the doing of any unlawful act. All persons actively participating are principals. ’ ‘If parties to speculative dealings intend merely to gamble in the rise and fall of prices, and the broker is privy to the unlawful design of the parties, and brings them together for the very purpose of entering into an illegal agreement, he is particeps criminis.'’ (8 Am. & Eng. Ency. of Laws, —1st ed.—pp. 1011, 1012).”

Even though the contracts might be entirely valid as between the claimants and the firms on the Board of Trade, because of having been entered into in accordance with the rules of the Board prohibiting gambling transactions, nevertheless between the claimants and the defendant the validity of such contracts depends upon the mutual intent of claimants and defendant. If it was understood between themselves that there should be no actual receipts or deliveries of grain, but only a settlement upon differences in price, there can be no liability of one to the other. (See Weare Commission. Co. v. The People, supra.)

In our opinion the trial court correctly found this note to have been given for no valid consideration, and its judgment will be affirmed.

Affirmed.


text:
    Sarah Hanisch, Appellee, v. North American Union, Appellant.
    Gen. No. 16,439.

      Insurance—effect pf incontestable clause. Held, under the facts in this ease that a policy which recited that it was incontestable was not subject to the defense that the insured came to his death while violating the criminal laws, and that the averments in a plea by which the annulment of such clause was sought to be set up were mere conclusions of the pleader..
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, .Judge, presiding. Heard in the Branch Appellate •Court at the March term, 1910.
    Affirmed.
    Opinion filed April 25, 1912.
    R. E. Hamilton, for appellant.
    Beach & Beach, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

The appellee, Sara Hanisch, hereinafter called the plaintiff, was the beneficiary in the benefit certificate wherein the appellant, North American Union, hereinafter called the defendant, undertook, for certain considerations, in the event of the death of Frank Hanisch, the husband of plaintiff, to pay her the sum of $2,000. Her husband having died, and the defendant refusing to pay, she brought suit to recover the amount named in the benefit certificate.

To her declaration a plea of the general issue and two special pleas were filed. Demurrers were filed to the special pleas .and sustained, and the defendant electing to stand by said special pleas, a trial was had by a jury. No evidence was offered on behalf of the defendant. The jury returned a verdict for the plaintiff and judgment was entered thereon.

The defendant contends that the court erred in sustaining the demurrers to the two special pleas. The defense sought to be presented by the two special .pleas is, in brief, that Frank Hanisch came to his death while and because he was committing an assault and battery, and he therefore came within that provision of defendant’s laws which says that “Should a member * * * meet death while in the act of or in consequence of violating the criminal laws of any state or municipality, his membership in the order shall ipso facto on the happening of any or either of such events be annulled, and the benefit certificate of such member shall be null and void and the beneficiary shall not be entitled to receive any payments thereunder. ’ ’

For the purposes of this decision it .may be conceded, that the facts as to the alleged assault and battery are sufficiently pleaded, which facts if proven (and if there were no other point in the case) would be a complete defense. But in the laws of the defendant, and also in its benefit certificate, is what is called an “incontestable clause,” which is as follows:

“The benefit certificate of a member, after two years from the date hereof shall be incontestable on the part of this order except for the non-payment of dues, assessments, fines or premiums, engaging in prohibited occupations, or becoming habitually addicted to the excessive use of intoxicating liquors, opium, or other injurious drugs or substances contrary to the laws, rules and regulations of this order and the agreements of the member.”

This clause is part of the contract of the parties, and it is clear that if this clause were in full force and effect at the time of the death of Frank Hanisch, which was nearly six years after the date of the certificate, the manner of his death, as specially pleaded, was immaterial and was therefore no defense. In other words, the policy was incontestable except for the causes named in this clause, and none of these causes is alleged by the pleas. This plea seeks, however, to avoid the effect of this incontestable clause by alleging that “said law was annulled by striking the same out of the laws of defendant.” That is to say, the bare statement of the pleader is that this important provision of the contract was annulled by striking the same out. There is no other averment in the plea touching the alleged annulling of this clause. There is an abundance of authority for holding, as we do, this to be a mere conclusion of the pleader' and obnoxious to a demurrer. Cox v. Mt. Olive & Staunton Coal Co., 127 Ill. App. 24; Boynton v. Benwick, 46 Ill. 280; Greig v. Bussell, 115 Ill. 483; Fish v. McCann, 205 Ill. 179; Stone v. Kellogg, 165 Ill. 192; Gray v. National Benefit Ass’n, Ill Ind. 531. The demurrer to this plea having been properly sustained, it followed that the incontestable clause was to be considered as in force. It was therefore proper to sustain the demurrer to the plea setting forth the mam ner in which Frank Hanisch came to his death. It therefore followed that under the pleading and the evidence the only verdict returnable was the one which the jury returned, and the judgment will be affirmed.

Affirmed.


text:
    Minna B. Armstrong, Appellant, v. Wesley Hospital, Appellee.
    Gen. No. 16,456.

      Contracts—when charitable institution liable for breach. If a charitable institution is guilty of a breach of contract recovery may be had against it.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed April 25, 1912.
    Rehearing denied May 9, 1912.
    William A. Adams, for appellant; Victor C. Winnen, of counsel.
    Morse Ives and H. B. Bale, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

The Wesley Hospital, hereinafter called the defendant, undertook for a consideration of $20, paid in advance by Minna B. Armstrong, hereinafter called plaintiff, to give her certain accommodations and services in the hospital. Plaintiff claims that the services which defendant undertook and promised to give were not given. She brought suit in assumpsit, claiming damages for breach of contract.

At the trial, upon the conclusion of the evidence, counsel for defendant moved the court to “instruct the jury to find the defendant not guilty- on the ground that the defendant is a charitable institution, organized not for profit, and as such not liable for injury caused by the negligence of its servants.” The court thereupon granted said motion and instructed the jury to find the defendant not guilty, and judgment was entered on such verdict.

The trial court was evidently following the rule announced in Parks v. Northwestern University, 218 Ill. 381, where the Supreme Court held the university not subject to the doctrine of respondeat superior for the delinquencies of its agents. The facts disclosed in the opinion touching the character of the university as a charitable institution are much the same as appear here concerning the character of the defendant in the case at bar. The court said that an institution like' the university, “though a private and not a public corporation, being a purely charitable institution, is not answerable for the negligent acts of its employees, is held but with little diversity of opinion.” This rule could be supported by a long list of citations of decisions in many states. However, in the university case and other like eases the suit was an action on the case for personal injuries, while the case at bar is trespass on the case upon promises. The declaration is in assumpsit, not in tort. It sets up a contract between the parties, wherein for a consideration of $20 paid to the defendant the latter undertook and promised to do certain things, and it further alleges that the defendant failed to perform its promises.

Justice would certainly suggest that if these allegav tions are true, plaintiff is entitled to recover in assumpsit at least the money paid by her to defendant, and possibly whatever damages for the breach of the contract may be capable of exact proof, although we express no opinion as to the measure of damages, that question not being before us in this case.

The only case to which our attention is called that appears to be parallel to the case at bar is Ward v. St. Vincent’s Hospital, 57 New York Supp. 784. The facts, pleadings and proceedings in that case are almost identical with those in the case before us. In the New York case the trial court instructed the jury to find for the defendant, but the court, in reversing, states that it does so on the ground that the action is to recover damages for the breach of a contract, and not an action in tort, and also holds that the question of the breach of a contract was for the jury to determine. We do not wish to be understood as indicating any opinion one way or another concerning what was said in the New York case touching the measure of damages. We believe, however, that the New York court is correct in noting the difference between the rule in an action to recover for personal injuries occasioned by negligence of an employe of a charitable institution, and an action to recover for the breach of a contract.

In our opinion the trial court in the case before us erred in treating this case as an action in tort instead of an action in assumpsit, and we hold that the jury should have,/been permitted to pass upon the facts as alleged in the declaration.

The judgment is therefore reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Daniel K. Pearsons et al. v. William Jarvis Jones et al. Carl V. Wisner, Appellant, v. Henry W. Leman, Appellee.
    Gen. No. 16,471.
    . 1. Contempts—when criminal in character. Misconduct of an at-' torney during the taking of testimony before a master in chancery constitutes a criminal rather than a civil contempt.
    2. Contempts—how criminal contempts reviewed. The proceedings had in a prosecution for a criminal contempt can only be reviewed by writ of error.
    3. Contempts—how criminal should he prosecuted. Criminal con-tempts should be prosecuted in the name of and by the people.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas Gr. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Dismissed.
    Opinion filed April 25, 1912.
    William R. Moss, for appellant.
    No appearance for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Carl V. Wisner, an attorney at law practicing at this bar, seeks by an appeal to have this court review the action of the chancellor in finding him guilty of contempt and imposing punishment therefor. The finding of the court was made upon a showing by certificates of a master in chancery touching the conduct of the attorney, Wisner, during the taking of testimony before the master, and upon the answers of Wisner seeking to justify his conduct.

The alleged contempt consisted solely of the misconduct of the attorney during the taking of testimony before the master. It therefore is a criminal rather than a civil contempt. In The People v. Diedrich, 141 Ill. 665 (669), the court said:

“Prosecutions for contempt are of two kinds. When instituted for the purpose of punishing a person for misconduct in the presence of the court, or with respect to its authority or dignity, it is criminal in its nature. When put upon foot for the purpose of affording relief between parties to a cause in chancery it is civil—sometimes called remedial. Numerous authorities could be cited in support of this distinction, but the decisions of this court leave no doubt on the subject.”

This being true, it follows, in our opinion, that this matter is not properly before us by an appeal in the case in which the contempt is alleged to have been committed during the taking of testimony. The case before us is entitled “Daniel K. Pearsons et al. vs. William Jarvis Jones et al.,” with the additional title of “ Carl V. Wisner, Appellant, vs. Henry W. Leman, Appellee.” Leman does not appear here, and the record discloses him to have been a witness who testified before the master. He could not properly appear here as a party. Neither does anyone else appear as appellee., and indeed We can conceive of no one who could properly appear in this court as appellee in this cause. The proper opposing party is The People, and this court can only review the action of the trial court When such action is brought here by writ of error, after proper notice to the representative of The People.

In Rawson v. Rawson, 35 Ill. App. 505 (508), the late Judge Moran, speaking for the court, said: “Where the punishment is inflated for an offense offered to the dignity of the court, as for words or acts in the presence of the court insulting to the judge or in violation of the proper order, and decorum of the court room, there the people come to demand judgment and punishment, and there the order and all the proceedings should be in their name.”

Among the many cases cited by counsel, and the many which we have examined in the books, we do not find a single one where a criminal contempt was reviewed by an appellate court upon appeal.

We do not pass upon the merits of this matter or upon the many points discussed by counsel, for the reason, as above indicated, that we hold this cause is not properly before us and that in our opinion the appeal should be dismissed.

Appeal dismissed.


text:
    David B. Clarkson, Appellant, v. The Book Supply Company et al., Appellees.
    Gen. No. 16,487.
    1. Slander and libel—how question of libelous character of publication determined. It is for the court to decide whether a publication is reasonably capable of the meaning ascribed to it in the innuendo.
    2. Slander and libel—when publication not libelous. Where the plaintiff is not referred to, it is not libelous for a competitor to advertise using sueh phrases as “there is no intent to mislead,” “we do not make impossible reductions from boosted prices,” etc.
    3. Slander and libel—construction of alleged libelous words. In construing an alleged libelous publication the meaning of words is not to be extended beyond their natural and ordinary meaning.
    Trespass on the case. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanaugh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 25, 1912.
    Herman Frank, for appellant.
    Baldwin & Barnes, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal by David B. Clarkson, hereinafter called plaintiff, from a judgment- of the trial court which sustained a demurrer to plaintiff’s amended declaration in an action in trespass on the case, for the alleged publication by The Book Supply Company, a corporation, and Blsbery W. Reynolds, hereinafter called defendants, of alleged libelous statements of and concerning the plaintiff.

The parties are apparently competitors in the book selling business, and plaintiff in his amended declaration alleges that he has advertised extensively throughout the United States, using the phrases “Millions of Books, Thousands of Titles.,” and “A Train Load of Books,” “Books at the price of Paper and Printing,” and “Bankrupt Book Bargains,” as tending to show the number of books dealt in by him and the low prices at which he sold the same.

The colloquium in the declaration sets up the composition and publication by the defendants of an advertising pamphlet entitled “Catalogue of Books,” and that the same was circulated in great numbers in the city of Chicago, etc.; that in said pamphlet were certain sentences, amounting to libelous matter, charging the plaintiff with dishonesty in his business and causing plaintiff to be regarded as one who does not deal in a large number of books and who does not sell his books cheaply.

An examination of the amended declaration discloses that defendants did not publish in the pamphlet aforesaid the phrases “Millions of Books,” etc., above recited, and it is not alleged that these particular phrases were so published by defendants. The particular matter, therefore, which it is alleged is libelous, consists of the following sentences appearing in the “Catalogue of Books:”

“There is no intent to mislead, exaggerate or appeal to the selfish desire for gain through the imaginary misfortunes of others.
We do not make impossible reductions from boosted, fictitious publishers’ prices.
We do not advertise books at the price of paper and printing because it would not be true, and
We do not advertise bindings free because that would not be true. ’ ’

By the innuendo of plaintiff’s amended declaration it is alleged that by the publication of these sentences the defendants meant and thereby falsely charged that the plaintiff carried on his business with methods contrary to those methods described in said sentences above quoted, and that persons reading such sentences would so understand, and that they were so made with intent to injure the plaintiff in his business.

It is for the court to decide whether a publication is reasonably capable of the meaning ascribed to it in the innuendo. Herrick v. Tribune Company, 108 Ill. App. 244; Gerald v. Inter Ocean Publishing Co., 90 id. 205; McDonald v. Lord & Thomas, 27 id. 111; Bihler v. Cockley, 18 id. 496; Hays v. Mather, 15 id. 30. The question then is, was the trial court right in holding these words not capable of a libelous meaning? We are of the opinion that it was ..and that it ruled correctly in sustaining the demurrer to the amended declaration. We fail to see how the words complained of can possibly be stretched so as to be held defamatory of the plaintiff. To do so would subject any merchant advertising articles for sale as “genuine” or “well made” to an action for libel by other merchants, on the ground that the advertiser intended to charge them with selling articles which were imitations and poorly made. To do so would be to enlarge the meaning of words far beyond their natural and ordinary meaning and to give them a meaning beyond that of which they are reasonably capable. McLaughlin v. Fisher, 136 Ill. 111; Patterson v. Edwards, 2 Gilman 720; Finnell v. Walker, 48 Ill. App. 331; Brown v. Burnett, 10 Ill. App. 279.

The judgment of the trial court was right, and it will therefore be affirmed.

Affirmed.


text:
    Charles F. Forster, Appellee, v. Fruin & Walker Company et al., Appellants.
    Gen. No. 18,494.

      Injunctions—when proper to maintain status quo. In a bill charging that certain directors and officers of a corporation are misappropriating the earnings of the company by paying themselves large salaries it is proper for the court in the exercise of a sound discretion to grant an injunction which has for its purpose and effect the maintenance of the status quo until the subject-matter of the litigation shall be determined.
    Bill for injunction. Interlocutory appeal from the Superior Court of Cook coun'ty; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed April 25, 1912.
    Rehearing denied May 9, 1912.

      Harris F. Williams, for appellants; Eldon M. Votaw, of counsel.
    Shepard, McCormick & Thomason, for appellee; Perry S. Patterson, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from an interlocutory injunction. Charles F. Forster, the complainant, appellee here, filed a hill in the Superior Court, alleging, in brief, that he was one of four stockholders in the Fruin & Walker Co., a corporation, the defendant company, and that the other three stockholders, who were its only directors and officers, were misappropriating the earnings of the company by paying themselves large salaries. The complainant prayed for an injunction restraining the company from paying these salaries, for an accounting, a restoration to the corporation of the moneys so appropriated, and for other relief. To this an answer was filed by the defendants, and upon notice and after argument the chancellor entered the interlocutory order in question. By this order the defendants, Fruin & Walker Company and John L. Fruin, were directed to “cease and refrain from paying any compensation whatsoever, whether by way of money, check, note or otherwise, to the defendant, John L. Fruin, or any of its officers or directors, or any of or either of them, as salary or salaries for services rendered to the defendant, Fruin & Walker Company, until the further order of this court.”

We purposely refrain from any extended statement of the facts as they appear from the record, and from any statement of the considerations leading to our conclusion, for the reason that such statements might be construed as indicating an opinion as to the merits of the controversy, and this we wash to avoid. We content ourselves with quoting at length from Bixler v. Summerfield, 195 Ill. 147 (150) :

“In Green v. Hedenberg, 159 Ill. 489, we said (p. 493): ‘It is well settled in this State, that, where the officers of a corporation wrongfully deal with its property to the injury of stockholders, the latter may maintain a bill against the company and its officers for relief against such misappropriation. ’ If, as is alleged in substance in the bill, the stock held by the appellant was impaired in value by a misappropriation of the corporate funds, there is no good reason why the appellant might not, as might any other stockholder, maintain his bill for relief. Such misconduct of the corporate officers may be no cause for a dissolution of the corporation at the suit of a minority stockholder. (Waterbury v. Merchants’ Union Express Co. 50 Barb. 157; Belmont v. Erie Railway Co. 52 id. 637; 2 Cook on Corp.—4th ed.—sec. 629, note 5.) But where the board of directors of a corporation ‘vote large pay to themselves, evidently in bad faith, and with a view to depriving the corporation of more than a reasonable proportion of its net earnings, a dissenting stockholder may file a bill in equity to have the amount recovered back. ’ (2 Cook on Corp.—4th ed.—sec. 657, and cases cited in notes.) If one family, holding the majority of the stock of a corporation, vote away the corporate profits for salaries, the minority may call upon a court of equity to remedy the fraud. (Ibid.; Sellers v. Phoenix Iron Co. 13 Fed. Bep. 20).”

As to the interlocutory injunction before us, we cite and adopt as applicable here, the language used in the opinion in West Side Hospital v. Steele, 124 Ill. App. 534 (543):

“The court having jurisdiction in equity, as we think, to hear and determine the case presented by the bill, the next question is, did the court improperly exercise its discretionary power in granting the temporary orders appealed from.

The rule governing us on this question is that unless it clearly appears that the court below improperly exercised its discretionary powers in issuing the injunction pendente lite the order should be affirmed. New Ohio W. C. Co. v. Coal Belt Ry. Co., 116 App., 153; High on Injunctions (4th ed.), sec. 1696; New Music Hall Co. v. Orpheon Music Hall, 100 Ill. App. 278.”

We think the showing before the court was sufficient to justify it in entering the temporary order. It had merely the effect of holding matters in statu quo until the final disposition of the case, and in so doing we find no abuse of the discretionary powers of the chancellor. The order is affirmed.

Affirmed.


author: Mr. Justice Fitch

text:
    Lillian Cowen, Appellee, v. Story & Clark Piano Company, Appellant.
    Gen. No. 16,437.
    1. Pleading—when declaration sufficient after verdict. If a declaration defectively states a good cause of action it will be sufficient after verdict. Held, in this case, that the failure to allege facts giving rise to the duty charged as having been violated was a defect which should have been raised by demurrer but not having been raised was cured after verdict.
    2. Negligence—failure to provide fire escape. If a'person is lawfully upon the premises of another and is injured in consequence of the failure to provide a fire escape such person may recover.
    3. Pibe Escapes—duty of lessee to provide. Held, that the lessee defendant in this case was liable for personal injuries suffered through the failure to construct and maintain a suitable fire escape as provided by statute notwithstanding no notice had been served upon him to construct such a fire escape.
    4. Constitutional law—when questions waived. By appealing to the appellate court the question as to whether a statute is void for uncertainty is waived.
    Action* in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. William H. McSubely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.

      Affirmed.
    Opinion filed April 25, 1912.
    Rehearing denied May 9, 1912.

      Certiorari denied by Supreme Court (Making opinion final).
    John A. Bloomingston, for appellant.
    Hans Von Reinsperg, Benjamin Levering, H. J. Toner and George E. Gorman, for appellee; Lee D. Mathias, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a judgment for the plaintiff in a personal injury case. The suit was brought originally against appellant ‘and the Lotus Club of Chicago, and a declaration was filed consisting of five counts, all but one of which were dismissed during the trial. The remaining count alleges that on May 1, 1907, appellant was the lessee and occupant of a building, four stories in height, on Wabash avenue, in Chicago, which was not a private residence; that it sublet the second floor to the Lotus Club, who occupied the same as a “noon day rest club, lunch club, lunch room and restaurant;” that appellant negligently failed to provide said building with a metallic fire escape “attached to the outer walls thereof and extending from or suitably near the ground to the uppermost story thereof;” that while the plaintiff was “lawfully on said second floor of said building,” a fire broke out; that plaintiff sought to escape, but because of the aforesaid negligence of defendants, was hindered and prevented from doing so, and while endeavoring with due care to escape she fell from a platform or balcony on said building to the ground and was injured. During the trial the Lotus Club was dismissed, leaving appellant as sole defendant.

The evidence tended to prove the following: the building in question is on the west side of Wabash avenue, and is approximately 50 feet in width and 175 feet in depth. The whole building was leased to appellant by a non-resident owner in 1900, and in 1905 the lease was renewed for a period of five years. By a lease made in 1905 appellant sublet to the Lotus Club the second floor of the building, to be occupied as a “noon day club,” and the second floor was thus used and occupied on May 1,1907. The entrance to the second floor was by a stairway and elevator located in the northeast corner of the building. A small portion of the front part of the second floor was used as a lounging or rest room, which was divided from the lunch room by a railing. The rear portion of the floor was used for a kitchen and was also separated by a railing from the lunch room, which occupied the central and larger part of the floor. In the rear wall of the building were several windows, opening upon an alley. On the alley side of the rear wall and opposite the middle windows therein, was a metallic fire escape, consisting of platforms projecting from the bottom of the windows and a ladder reaching from the top of the building down to a point about three feet below the second floor, or about 15 feet from the ground. A fire broke out in this building about noon on May 1, 1907. Appellee, a patron of the restaurant, was eating at one of the tables in the lunch room at the time. She noticed smoke and flames in the vicinity of the front stairway and elevator. She-started in that direction, saw there was no escape that way and with forty or fifty other persons turned to the rear of the building. She testified that the people were crowded in the rear and that as she passed the kitchen railing she “felt a tongue of fire strike” her and “was sinking down to the floor from the smoke and flame” when someone assisted her to one of the windows, and lifted her tq the window sill, from which she was pushed and fell to the alley below. Her left hip was dislocated and her right hand and face were burned. Upon these facts the jury found a verdict for appellee and assessed her damages at $2,800. A motion for new trial was overruled and judgment entered on the verdict, from which the piano company appeals.

It is first contended that the declaration does not state a cause of action. It is said that no facts are alleged giving rise to a duty on the part of the piano company to protect appellee from the injury she sustained. This objection, if raised by demurrer, would have to be held good. It does not arise on demurrer, however, but after issue joined and a verdict thereon. “On demurrer a declaration is construed against the pleader, but after verdict all intendments and presumptions are in its favor. If a declaration contains terms sufficiently general to include, by fair and reasonable intendment, any matter necessary to be proved, and without proof of which the jury could not have given the verdict, the want of an express averment of such matter is cured by the verdict.” Sargent Co. v. Baublis, 215 Ill. 428, 430. “A verdict will aid a defective statement of a cause of action by supplying facts defectively or imperfectly stated or omitted, which are within the general terms of the declaration, but where no cause of action is stated, the omission is not cured by verdict.” Sargent Co. v. Baublis, supra, 431. To the same effect are O’Rourke v. Sproul, 241 Ill. 576, 579; L. S. & M. S. Ry. Co. v. Enright, 227 Ill. 403; Grace & Hyde Co. v. Sanborn, 225 Ill. 138, 141; Sauter v. Anderson, 110 Ill. App. 574.

Applying this rule to the declaration it will be noted that it states that the second floor of appellant’s building was used by a sub-tenant as a “noon day rest club, lunch room and restaurant,” and while appellee was “lawfully” on that floor, a fire broke out and in seeking to escape therefrom she was injured on account of the failure of appellant to have a fire escape on the building, suitably near the ground. From these allegations it may be fairly and reasonably implied that appellee was upon the premises at the time of the fire, as a patron or guest of the subtenant. If she was there on business with the tenant, she was “lawfully” there. If she was lawfully upon the premises, appellant owed her the duty which the statute imposed upon it, to do her no injury by any negligence in providing such a fire escape as the statute requires. McRickard v. Flint, 114 N. Y. 222, 227. We think the averments of the declaration are sufficient after "verdict to sustain the judgment.

It is urged that the statute imposes no duty upon the lessee of a building to construct and maintain a fire escape until after notice has been served upon him, and in support of this contention the cases of Landgraf v. Kuh, 188 Ill. 484, and Arms v. Ayer, 192 Ill. 601, are cited. In each of those cases a suit was brought against the owner, who contended that the lessee was liable under the statute and not the owner. The Supreme Court held against that contention and held the owner liable; but in neither case is it held that the lessee may not also be liable. On the contrary, the language of the court in the case of Arms v. Ayer, supra, implies that it is the duty of the lessee as well as that of the owner to erect such a fire escape as the statute requires, provided such lessee is in the actual control of the building. The reasoning of the court in both cases seems clearly to lead to that conclusion and the statute under discussion was, so far as the point here involved is concerned, substantially the same as the present statute. We think both cases are authority for the construction that while the owner is primarily liable, yet the lessee who is given possession and control of the whole building, as was the fact in this case, is chargeable with the same duty and liability as the owner. Such was the construction given to a statute very similar to the Illinois statute by the Supreme Court of Missouri in Yall v. Snow, 201 Mo. 511.

Where such a lessee sublets portions of the building to other tenants, he is liable to anyone lawfully on the premises who is injured through a failure to use reasonable care to keep the halls, stairways and other parts used in common reasonably safe. Shoninger v. Mann, 219 Ill. 242. As to the sub-tenants and their customers, and as to the public generally, such a lessee is treated as the owner and by the express terms of the statute is subject to a penalty if he fails to erect a suitable fire escape after notice. The argument of appellant’s counsel that such a notice is necessary before the lessee is charged with any duty to build a fire escape is, in our opinion, completely answered against his contention by the cases of Landgraf v. Kuh, supra, and Arms v. Ayer, supra, and also by the cases of Carrigan v. Stillwell, 97 Me. 247, 252, and Hayes v. Michigan Central R. R. Co., Ill U. S. 228, 240.

The objection that the statute is void for uncertainty in requiring a fire escape to be constructed from the top of a building to the ground “or suitably near the ground” is answered in effect against appellant’s contention in Commonwealth Electric Co. v. Rose, 214 Ill. 545, 560, even if the point can be raised here and has not been waived by an appeal to this court on other grounds, as was held in Houren v. C. M. & St. P. Ry. Co., 236 Ill. 620, 628.

It is further urged that the failure of appellant to construct a suitable fire escape was not the proximate cause of the accident nor of the injuries received by appellee. There was evidence tending to show that forty or fifty people in the restaurant were trying to reach the fire escape at the same time; that for this reason appellee was unable to reach the fire escape and was, therefore, obliged to seek escape from another window; that some of those who did reach the fire escape dropped to the ground in safety, but most of them hung back and remained crowded upon the platform and around the adjacent window until the fire department came with ladders; that while appellee was hurrying with all the others to the rear to escape from the fire, she was burned seriously and in falling from the window she was further injured. Under these circumstances we think it was a question of fact for the jury to determine whether the failure to have a suitable fire escape was or was not the proximate cause.of appellee’s injuries. A similar contention was made in the case of Landgraf v. Kuh, supra, and the reasoning of the court in that case might well be applied to the facts in this case.

Several minor points are raised and discussed by counsel in their briefs and arguments, concerning alleged errors of the court below in the admission of evidence and in the instructions of the court, and as to the amount of damages. We deem it unnecessary to discuss at length these several propositions thus advanced. We have given them careful consideration and we think the trial court, did not commit error in the respects noted.

Upon a consideration of the whole record, we are satisfied that the verdict was right, and that the record contains no prejudicial error. The judgment will, therefore, be affirmed.

Affirmed.

Mr. Justice McSurely having tried’ this case in the court below, took no part in the decision.