text:
    The People of the State of Illinois, Defendant in Error, v. Clarence A. Samuel, Plaintiff in Error.
    Gen. No. 21,503.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Stklk, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed April 28, 1916.
    Statement of the Case.
    Clarence A. Samuel, defendant, was adjudged to be guilty of contempt of court and sentenced to pay a fine of two hundred dollars, and in default of the payment thereof that he be committed to the county jail, etc. To reverse this judgment, defendant prosecutes this writ of error.

      It appeared that on March 17, 1915, an information, signed and sworn to by Harry J. Berman, an attorney at law at Chicago, was filed in said court. . The informant alleged, in substance, that on March 16, 1915, there was pending before the Honorable John Stelk, one of the associate judges of said court, a certain garnishment proceeding entitled: “Haythorne for use of John Miller v. Chicago & Northwestern Railway Co.”; that on said March 16th the defendant, Samuel, caused to be delivered to one Jesse Phillips, an attorney at law at Chicago, and to be filed in said garnishment suit a certain petition for a change of venue signed by said Samuel, as petitioner, and verified by his affidavit ; that in said petition Samuel alleged that “he was the agent for the plaintiff” in said suit; that he feared that he would not receive a fair and impartial trial if said suit was tried before Judge Stelk, “because said judge is prejudiced against the petitioner,” and that “said prejudice first came to the knowledge of petitioner on or about October 3, 1914”; that Samuel caused said petition to be presented before Judge Stelk, and a motion was then and there made by said Phillips for a change of venue to some other judge of said court, which motion was denied; that Judge Stelk was first elected one of the judges of said court on November 1, 1914, and did not assume the duties of the office until November 7,1914; that Samuel filed the affidavit of garnishee summons on March 1,1915, and that he, by said Phillips as attorney, appeared before Judge Stelk in said garnishment suit on March 6th and March 15,1915, and made motions therein and obtained orders thereon; that Samuel was not acquainted with Judge Stelk prior to the first case which he (Samuel) had in said court, and that no knowledge came to him on or about October 3,1914, that Judge Stelk was prejudiced against him; and that Samuel did not present to the court with said petition any power of attorney authorizing him to appear as agent of the plaintiff in said suit and to pray for a change of venue.
    On March 17, 1915, the information was presented to Judge Stelk and an order was entered that Samuel show cause, if any he had,'within five days why he should not he punished for contempt of court for reasons as set forth in the information, and leave was granted the informant to file interrogatories instantei which Samuel was ruled to answer within five days, and eleven interrogatories were filed.
    On March 22, 1915, Samuel filed an answer, verified by his affidavit, to the rule and to the interrogatories, in which he alleged, in substance, that he was and had been for four years engaged with one Herman Frank in carrying on a general collection business; that about two years prior to March, 1915, John Miller (beneficial plaintiff in the garnishment suit) had placed with' respondent and Frank claims aggregating about $3,000, for collection and with directions to take all lawful steps to that end; that less than thirty days prior to the institution of the garnishment suit Miller called at respondent’s office and directed respondent to bring such suit; that respondent subscribed and swore to the petition for a change of venue on March 16, 19.15, and that at that time “he believed the statements contained in said petition to be true, but that since then he has discovered that the statement in said petition with reference to the time that knowledge of prejudice on the part of said Judge Stelk first came to him is erroneous in that the date thereof is laid to October 3, 1914, whereas the correct date is on or about January 9, 1915,” and that respondent’s error arose from the fact that he was inadvertently misled by certain entries in his office docket; that when the petition was filed respondent believed that such proceedings had been had in the garnishment suit as to cause Judge Stelk to believe that respondent was connected with such suit, and that on account of the vacation by said judge, on or about January 9,1915, of a judgment in the suit of Strelitz v. Walworth, to which respondent had had some relations, respondent believed that said judge had become prejudiced against him at that time, and further believed, on account of the foregoing, that the garnishment suit would not receive an impartial trial if tried before said judge, and that for that reason alone respondent caused said petition to be presented to said judge by said attorney Phillips; and that respondent “has at all times regarded and still does regard said Judge Stelk, and the court by him presided over, with due respect, and has never consciously or otherwise been guilty of any disobedience of the rules and orders of said court, nor lacking in proper demeanor toward it.” The respondent prayed that, having purged himself of contempt with respect to the matters and things set forth in the information, the rule might be discharged.
    It appeared from the stenographic report of the proceedings that the cause came on for hearing before Judge Stelk upon the information, interrogatories and answer, and upon arguments of counsel for the respective parties. No evidence was introduced.
    On April 3, 1915, the court entered the order and judgment in' question. The court found, inter alia, that the allegation in said petition for a change of venue (that the prejudice of the court first came to the knowledge of respondent on or about October 3, 1914) was incorrect and untrue; that said petition was signed and sworn to by respondent on March 16, 1915, and not by the beneficial plaintiff, and that no sufficient reason or excuse has been assigned why it was not signed and sworn to by the beneficial plaintiff; that said petition fails to allege that the court was prejudiced against the beneficial plaintiff; that the motion for the change of venue was presented in behalf of respondent without any direct request or suggestion from the beneficial plaintiff; that on March 6th and March 15th respondent, hy and through his attorney, made motions in said garnishment suit and obtained orders thereon, and that no suggestion was made that respondent believed that the court was prejudiced against respondent; that an inspection of the files and records in the case of Strelitz v. Walworth, mentioned in respondent’s answer, reveals the fact that the judgment in said case was not vacated on January 9th, but upon January 16th, 1915; that the action of respondent in presenting the petition for a change of venue, “which on its face was insufficient,” without even the request or suggestion of the beneficial plaintiff, and the further action of respondent in endeavoring to induce the court to grant such change of venue on a petition not made by the beneficial plaintiff, and alleging the prejudice of the court not against said plaintiff but as against the respondent, and the further action of respondent in making the vacation of a judgment in another suit in which he claims he was interested the only basis for his belief of the court’s prejudice, without disclosing what evidence of prejudice there was, “all caused unnecessary and unwarranted delay and annoyance in court and interfered with the orderly transaction of the business of the court and also tended to belittle and lessen the dignity of the court, and the apparent freedom indulged in by the respondent in signing and swearing to court pleadings without satisfying himself that the contents thereof are true and correct, if left unnoticed and unpunished, will bring the administration of justice and this court into disrepute and contempt”; that said respondent has failed to show cause why he should not be punished for contempt of court, and that the actions and doings of respondent as recited constitute, and respondent is guilty of, a contempt of this court.
    Charles E. Napier and Charles S. McIlvaine, for plaintiff in error.

      Abstract of the Decision.
    . 1. Contempt, § 2

      —when court has power to punish. The courts of record have an inherent power to punish contempts committed in facie curia;.

    2. Contempt, § 1*—how classified. Contempts are either direct, such as are offered to the court while sitting as such and in its presence, or constructive, being offered not in its presence, but tending by their operation to obstruct and embarrass or prevent the due administration of justice.
    3. Contempt, § 1*—how proceedings for punishment classified. Proceedings for contempt are of two classes, those which are criminal in their nature and sometimes called common-law contempts, and those which are intended as purely civil remedies ordinarily arising out of the alleged violation of some order entered in the course of a chancery proceeding.
    4. Contempt—when proceeding to punish for unfounded motion for change of venue criminal. Where the contempt alleged is the making of a motion for change of venue on the ground of prejudice based on untrue affidavits, the proceeding is criminal.
    5. Contempt, § 1*—when proceeding criminal. When the contempt alleged consists of something done or omitted in the presence of the court tending to impede or interrupt its proceedings or lessen its dignity, or out of its presence in disregard or abuse of its process, the proceeding is punitive or criminal, and the penalty is inflicted by way of punishment for the wrongful act and to vindicate the authority and dignity of the People as represented by their judicial tribunals.
    6. Contempt, § 52*—what distinction between procedure in equity and at law. In a contempt proceeding in a court of equity, where the party in contempt has answered the interrogatories, his answer may be contradicted and disproved by affidavits of the adverse party, while in courts of law he may purge himself by oath, and if he clears himself by his answers the complaint is dismissed.
    7. Contempt, § 61*—when answer sufficient to purge. In a proceeding for contempt alleged to have arisen upon a motion for change of venue on the ground of prejudice, answer to respondent examined and held to be sufficient to purge him of the alleged contempt.

      Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

8. Venue, § 21 —when application for change to he signed hy party to record. The application for the change of venue must be made by a party to the record and the petition verified by such party,


source: Caselaw Access Project

author: Mr. Presiding Justice Gridley

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Emanuel Friedlander, Plaintiff in Error.
    Gen. No. 21,703.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Shebidan E. Eby, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed April 28, 1916.
    Statement of the Case.
    Emanuel Friedlander, defendant, was adjudged guilty of contempt of court by a judgment of the Municipal Court and sentenced to confinement in the county jail for thirty days. To reverse this judgment he prosecutes this writ of error.
    A “Statement of Facts,” contained in the transcript of record and certified to by the Honorable Sheridan E. Fry, one of the judges of said court, and the common-law record showed the following facts:
    On September 17, 1914, one Charles Pent was arraigned before Judge Fry on the charge of contributing to the dependency of his child, and on the hearing he was found guilty and sentenced to the House of Correction for one year and ordered to pay for the use of said child the sum of $6 per week, to be released on a recognizance in the sum of $500 signed by him and a surety and approved by the court. On October 2, 1914, Pent was brought from the House of Correction into the court presided over by Judge Fry, and then and there defendant presented himself as a surety on said bond or recognizance and was examined as to his qualifications to act as such surety, and after such examination he was allowed to sign said bond or recognizance as surety and the same was approved by said judge and filed for record, and Pent was released from custody. Thereafter Pent, or others for him, made certain payments of $6 per week and subsequently Pent left the State of Illinois, and no further payments were made by him or by any one for him. On February 27, 1915, without any petition or information being filed, the court entered a rule that defendant (who was then present in court) show cause on March 13, 1915, why he should not be adjudged guilty of contempt of court “because on October 2, 1914, he, the said Emanuel Friedlander, having been duly sworn, did then and there depose and swear and testify wilfully, corruptly and falsely as to matters material to his sufficiency as surety upon the recognizance of one Charles Pent, acknowledged and filed on October 2, 1914, in the case entitled ‘The People, etc. v. Charles Pent,’ now pending in this court.” The order or rule did not state what the particular testimony was which was alleged to be false. On March 13, 1915, defendant was again present in court before Judge Fry, but he did not on that date, or at a subsequent time, file any sworn answer in writing to the rule to show cause, and the hearing on said rule was continued-to March 27,1915, when a partial hearing was had, and the cause was thereafter continued from time to time until July 17, 1915, when the final hearing was had. From said statement of facts it also appears,, inter alia, that on March 27, 1915, the testimony of witnesses other than defendant to said rule was heard by the court; that it was disclosed by certain witnesses that defendant, before he signed said recognizance, had been paid the sum of $100 on his representation that he would procure Pent’s release from confinement; that it was also disclosed that, when defendant was examined in open court on October 2, 1914, as to his qualifications to act as surety on said recognizance, he stated to said Judge Fry, among other things, that he owned stock in a corporation, of which he was sales manager, which stock was worth $10,000, that he owned no real estate, that he was worth over and above all liabilities and exemptions at least $10,000, and that “there were no judgments of record against him unsatisfied of record in the City of Chicago or County of Cook”; that on said hearing on March 27, 1915, certain records of the Municipal Court and other courts of record in Cook county were introduced in evidence showing that on October 2,1914, there were more than seventeen unsatisfied judgments of record in said courts against defendant in favor of various parties; that on said hearing, after the above evidence had been introduced, defendant testified that when he was before Judge Fry on October 2nd “the court asked him what his occupation was and what his financial ability was, and that after he had given this information the court accepted the bond, and that nothing was said to him with reference to judgments pending against him,” and that “the bond was taken by the court without a schedule,” and defendant “denied absolutely that he had made the statement at the time the bond was signed that there were no judgments against him,” and defendant further testified that of said judgments appearing of record against him “the major part were paid though not satisfied of record.” On the date of the final hearing, July 17, 1915, after the court had overruled defendant’s motion that said rule be discharged and the proceedings dismissed, the court entered a final order, finding him “guilty of contempt on rule to show cause” and adjudging him guilty of contempt on said finding and sentencing him to the county jail as aforesaid. In said order the court also found:
    Abstract of the Decision.
    1. Contempt, § 1

      —how proceedings classified. Proceedings for contempt of court are of two classes, those which are criminal in their nature, sometimes called common-law contempts, and those intended as purely civil contempts, which ordinarily arise out of the alleged violation of some order entered in the course of a chancery proceeding.
    2, Contempt, § 1*—when civil and when criminal. Where a contempt consists of something done or omitted in the presence of the court, tending to impede or interrupt its proceedings or lessen its dignity, or out of its presence in disregard or abuse of its process, the proceedings are punitive or criminal, and the penalty is inflicted by way of punishment for the wrongful act and to vindicate the authority and dignity of the People as represented by their judicial tribunals.

      “On October 2, 1914, said Emanuel Friedlander, the defendant in this cause, was present in open court, and while this court was in open session said defendant then and there offered to act as surety for the appearance before this court of one Charles Pent, said Charles Pent then and there being the defendant in this court; and thereupon it became material to the acceptance of said Emanuel Friedlander, as surety aforesaid, to examine and inquire of said Emanuel Friedlander concerning his qualifications to act as surety aforesaid and the sufficiency thereof; and the said Emanuel Friedlander, being so inquired of and examined by the court as aforesaid, did then and there make certain misrepresentations to the court and give the court to understand that no judgments were then and there outstanding against him, the said Emanuel Friedlander, whereas, in truth and in fact, as the said Emanuel Friedlander well knew, certain judgments were then and there outstanding against him.”
    Samuel Friedlander, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

3. Contempt, § 50 —when proceeding for criminal contempt distinctive. On proceedings for criminal contempt, the application for attachment may be made in the original cause and nevertheless the contempt proceeding be a distinct case, criminal in its nature.

4. Contempt—when misrepresentation as to qualifications as surety criminal contempt. Proceedings to punish one for misrepresentation in response to interrogatories of the court as to his qualifications to act as surety on a recognizance are criminal in nature.

5. Contempt, § 56*—what requisite on proceeding for criminal contempt. In proceedings for criminal contempt, it is necessary that respondent be apprised with reasonable certainty, by affidavit, information or rule to show cause, of the nature of the charge against him and of the facts upon which the alleged contempt is predicated, and that he shall have a reasonable opportunity to answer the charge by a written answer under oath.

6. Contempt, § 61*—what proper practice on proceedings for criminal contempt. As a general rule, where contempt proceedings are criminal in their nature, the defendant is tried upon his sworn answer made to the information or affidavit or interrogatories, filed, though he may answer the charge orally under oath in open court.

7. Contempt, § 61*—when answer sufficient to discharge from criminal contempt. If, on proceedings for criminal contempt, defendant by his sworn answer specifically denies the facts upon which the charge is founded, or if he sets up other facts which, if true, are sufficient to acquit him of the charge, then he must be discharged, as his answer presents an issue of fact which cannot be tried by the court in such proceeding.

8. Contempt, § 68*—when opposing testimony not heard. Where a defendant in a proceeding for criminal contempt files a sworn answer specifically denying the facts upon which the charge is founded, opposing testimony will not be heard.

9. Contempt, § 61*—what proper procedure where defendant’s answer fails on criminal proceeding. On a proceeding for criminal contempt, if defendant’s sworn answer proves false, the remedy is by indictment for perjury.

10. Contempt, § 61*—when answer sufficient to discharge on proceeding for criminal contempt. On a proceeding for criminal contempt, based on alleged misrepresentations of defendant as to his qualifications as surety on a recognizance in a pending cause, where defendant orally denies under oath in open court that he made the statements as to his qualification, he sufficiently purges himself of the charge and the rule against him should be discharged.


text:
    Chester C. Moe et al., Appellees, v. Royal Life Insurance Company, Appellant.
    Gen. No. 22,471.
    (Not to be reported in full.)
    Interlocutory appeal from the Superior Court of Cook county; the Hon. Chables M. Foell, Judge, presiding. Heard in the Branch Appellate Court.
    Reversed.
    Opinion filed April 28, 1916.
    Rehearing denied May 11, 1916.
    Statement of the Case.
    Bill by Chester C. Moe, Catharine Davis Moe, Harold Rossiter, Mabel Oehlsen, C. S. Krysinski, Julius Shieffert, Adolph Pearson and Wildon Ohlson, complainants, as stockholders, on behalf of themselves and all other stockholders in said corporation similarly situated, against- the Royal Life Insurance Company, a corporation, and others, defendants, for the appointment of a receiver. From an interlocutory order appointing a receiver without notice, defendant appeals.
    Henry J. Toner, for appellant.
    William McKinley, Homer Ekern, Homer Sullivan, C. W. Armstrong and L. F. Binkley, for appellees.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 350 —when corporation may appeal from order appointing receiver. Where, on a hill by stockholders of a corporation on behalf of themselves and other stockholders against the corporation and its directors and officers, an order is entered appointing a receiver of the corporation pendente lite, the corporation may appeal therefrom.

2. Corporations, § 561*—when interlocutory order appointing receiver pendente lite not reversed for lack of notice. The fact that on a bill by stockholders of a corporation on behalf of themselves and other stockholders against the corporation, its directors and officers an interlocutory order is entered, without notice to the corporation, appointing a receiver for it pendente lite is not ground for reversing the order where it appears that after the appointment of the receiver the defendant company entered its appearance, filed a demurrer to the bill and made a motion to vacate the order, which was denied.

3. Corporations, § 563*—when allegations of stockholders’ hill insufficient to warrant appointment of receiver pendente lite. Allegations of a bill by minority stockholders against the corporation, its officers and agents, examined and held insufficient to warrant the entry of an interlocutory order appointing a receiver for the corporation pendente lite.


author: Mr. Justice Barnes

text:
    University Hospital, Defendant in Error, v. John B. DeVoney, Plaintiff in Error.
    Gen. No. 21,175.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed April 28, 1916.
    Statement of the Case.
    Action by University Hospital, a corporation, plaintiff, against John B. DeVoney, defendant, to recover for board and nursing furnished by plaintiff to defendant’s sister. To reverse a judgment in favor of plaintiff for $246, defendant prosecutes this writ of error.
    It appeared that the provision for the board and nursing was originally made by her attending physician, Dr. Harrigan. Dr. Harrigan claimed that he acted at defendant’s request, but defendant denied giving him the authority to arrange therefor. It appeared that later defendant visited the hospital. The cashier and superintendent thereof both testified that he then requested that his sister should not be moved from a private room to the ward and should have special nursing, and said he would pay and be responsible for the bill. He also denied having such a conversation. The cashier also testified that the previous bills had been paid by his checks.
    I. B. Perlman, for plaintiff in error.
    Cameron & Matson, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Contracts, § 387 —when evidence sufficient to support verdict. In an action to recover for board and nursing furnished defendant’s sister, evidence examined and held sufficient to support a verdict for plaintiff.

2. Appeal and error, § 1487*—when admission of evidence harmless error. Error in admitting evidence of statements of one claimed to be defendant’s agent made to plaintiff’s employee to show such agency is harmless where the evidence without was sufficient to support the judgment for plaintiff.


author: Mr.. Justice Barnes

text:
    Loretta T. Dunne, Defendant in Error, v. Patrick Boland, Plaintiff in Error.
    Gen. No. 21,316.
    ■ 1. Automobiles and garages, § 3

      —when evidence insufficient to refute proof of negligence. In an' action against one letting an automobile for injuries to plaintiff, a passenger therein, by the overturning of the automobile, where plaintiff introduces evidence tending to show that the accident was due to the chauffeur’s negligence, such evidence is not refuted by evidence that after the accident a defect was found in the steering gear which was not discoverable by the exercise of reasonable care in the inspection of the car before its use, where there is nothing to show that such defect did not result from the accident and the chauffeur was not called to prove that he had difficulty in steering the car.
    2. Automobiles and garages, § 2*—when one letting car liable for chauffeur’s negligence. One letting an automobile and furnishing a chauffeur for it is a private carrier for hire and liable for the negligence of the chauffeur.
    3. Automobiles and garages, § 2*—when one letting car liable to guests of hirer. One who lets an automobile and furnishes a chauffeur for the purpose of conveying the hirer and his guests enters into a contract of hire for the benefit of the guests as well as the hirer, and owes the same duty to each, without regard to the fact that he does not know the names or number of the guests.
    4. Automobiles and garages, § 3*—when evidence sufficient to

      support verdict. In an action against the owner of an automobile for injuries to one riding as a guest of the hirer, evidence examined and held to support a verdict for plaintiff.
    5. Appeal and ebboe, § 1487

      —when admission of evidence harmless error. Error in admitting hearsay evidence is harmless where there is sufficient competent evidence to support the verdict.
    6. Appeal and ereoe, § 1567*—when refusal to hold propositions of law harmless error. Where a correct application of the law to the facts required the finding and judgment for plaintiff, the refusal of the court to hold as law certain propositions submitted to it by defendant is harmless error.
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Raffebty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed April 28, 1916.
    James B. Ward, for plaintiff in error.
    Jeanette Bates and Alice H. Thompson, for defendant in error.

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

   Mr.. Justice Barnes

‘delivered the opinion of the court.

Defendant in error, on a trial before the court without a jury, recovered judgment for one hundred dollars in a suit brought against plaintiff in error for personal injuries received under the following circumstances:

Boland, the defendant, was an undertaker and furnished for hire conveyances used at funerals conducted by him. On the funeral occasion in question one Fox, a neighbor of the deceased, ordered from defendant an automobile with directions to charge the same to him. Pursuant thereto an automobile with a driver thereof was furnished to Fox, and the same was used to convey Fox and other persons invited by him, including plaintiff, to and from the house, church and place of interment. On the return from the cemetery the automobile struck the rail of a bridge causing it to upset, whereby plaintiff was injured. These facts were undisputed. The only other material question of fact was whether the accident was due to the carelessness and neglect of the driver. On that question the evidence preponderates in favor of plaintiff. The driver, though shown to be within the jurisdiction of the court, was not called to refute strong evidence tending to show that the accident was due wholly to his inattention, carelessness and neglect. Defendant introduced evidence that after the accident a defect was found in the steering gear that was not discoverable by the exercise of reasonable care in the inspection of the automobile before used. But as there is nothing in the record to indicate that such defect may not have resulted from the accident, and as the driver was not called to prove that he had any difficulty in steering the car, it did not refute plaintiff’s proof of negligence.

As to defendant’s legal liability on such a state of facts, we think his position was that of a private carrier for hire, no different from that of a liveryman rendering similar carriage service. Whether he or his chauffeur did the driving makes no difference. It being done for hire he was required, as said in Payne v. Halstead, 44 Ill. App. 97, respecting a liveryman, “to exercise the same measure of skill and care which is applied to a person engaged in any special pursuit in which he undertakes to perform services for others for compensation. Such a one undertakes to possess the skill adequate to the undertaking, and promises to exercise due diligence and care in its performance; but ordinary skill, diligence and prudence are all that the law exacts from him.” We think the evidence discloses not merely a want of ordinary skill, diligence and prudence, but positive neglect and inattention to duty on the part of the driver.

As we view it, the contract for hire was for the benefit of each occupant of the automobile invited by Fox, and imposed the same duty towards each. His right to invite others' was manifestly recognized and consented to. The fact that defendant did not know the names or number of the persons for whom Fox evidently hired the conveyance does not, in our opinion, affect the question of liability. In Harper v. Fay Livery Co., 264 Ill. 463, where the contract of hire was implied from the circumstances of use, a judgment for damages to one of several occupants of a vehicle was upheld.

We think the evidence supports the contract as alleged in the statement of claim, the charge of negligence, and the amount of damages assessed. In view of that conclusion it is unnecessary to consider evidence objected to as hearsay that may well have been disregarded, and whether the court should have held as law certain propositions submitted to it. A correct application of the law to the manifest facts required a finding and judgment for plaintiff.

Affirmed.


text:
    Edith Monblatt, Appellee, v. Ann Elizabeth Young et al., Defendants. First Trust & Savings Bank et al., Appellants.
    Gen. No. 21,395.
    1. Negligence—when representative not liable as such for tort. In an action for personal injuries alleged to have been caused by negligence, one impleaded as trustee and as executor of a last will and testament is not liable for the > tort in such representative capacities.
    2. Appeal and error, § 1772

      —when questions by counsel showing that defendant in personal injury case is insured ground for reversal. In an action to recover for personal injuries alleged to have been caused by defendant’s negligence where plaintiff’s counsel over defendant’s objection, propound to a witness questions calculated and intended to inform the jury that defendant was insured, against liability in the action, such questions not being justified by the conduct of defendant’s counsel, a judgment for plaintiff will be reversed where it was not small and the case was a close one on the facts.
    Appeal from the Circuit Court of Cook County; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the MArch term, 1915.
    Reversed and remanded.
    Opinion filed April 28, 1916.
    Rehearing denied May 11, 1916.
    Zimmerman & Garrett, for appellants.
    James L. Bynum, for appellee; Bernhardt Frank, of counsel.

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

   Mr. Justice Barnes

delivered the opinion of the court.

Appellee brought suit to recover damages for personal injuries alleged to have resulted from negligent operation of an elevator ear .and the negligent construction of it and of the shaft in which it ran, said car being in a building alleged to be in and under the possession, control and management of the defendants. The First Trust & Savings Bank was impleaded as defendant in three different capacities, namely, as an individual and both as trustee and executor of the last will and testament of Otto Young, deceased. A plea of the general issue and a special plea denying operation, possession and control, etc., were filed in behalf of all defendants, and at the close of the evidence there was a directed verdict as to all of them except the bank in its several capacities. No subsequent reference is made in the record to the bank in its capacity as executor, but motions for an instructed verdict for it in each of its other capacities were made and overruled, and the jury returned a verdict of guilty and assessed damages of $5,000 against the bank individually and as trustee. From the judgment entered on the verdict the bank in both capacities has appealed.

It is urged that the bank was not liable for the alleged tort in its representative capacity. The same point was made on demurrer in Parmenter v. Barstow, 22 R. I. 245, 63 L. R. A. 227, and upheld, the court in harmony with other decisions on the subject holding that an action in tort must be against a party personally, but such decisions intimate that there may be reimbursement from the estate or trust fund under proper circumstances. (Deschler v. Franklin, 20 Ohio C. C. 56; McCue v. Finck, 20 Misc. (N. Y.) 506, 46 N. Y. Supp. 242; Ballou v. Farnum, 9 Allen (Mass.) 47.) Because of the rule of personal liability the description of the defendant as trustee has in such cases been deemed merely descriptio personae and treated as surplusage. (Odd Fellows’ Hall Ass’n v. McAllister, 153 Mass. 292, 297; Shepard v. Creamer, 160 Mass. 496; Donohue v. Kendall, 50 N. Y. Super. Ct. 386.) The difficulty, however, of applying that doctrine here is that, as in the McCue case, supra, recovery was sought on the mistaken notion that defendant was a joint tort feasor with itself in its representative capacity. In the McGue case, supra, the difficulty was remedied by amendment of the pleading, but here judgment was entered upon the erroneous verdict. While possibly the error might be regarded as one of mere form,.—the bank being but a single entity in whatever capacity it acted and not being precluded by the judgment against it from seeking indemnity from liability thereon,—and might therefore be cured by the statute of amendments and jeofails, still we need not decide the question for the judgment must be reversed on another ground and the case remanded for a new trial when a similar error may be obviated.

The record discloses that plaintiff’s counsel, on redirect examination of plaintiff’s attending physician, brought out from him the fact that three or four days before the trial he was called to the office of the London Guarantee and Accident Company and that he there discussed the case with two persons, one of whom was attending the trial and was pointed out as sitting at the table (as we infer) with defendants’ attorney. The jury needed no more direct intimation that the casualty company had insured against liability in the suit on trial and that therefore it was the party interested in defending it. And that it was the purpose of the questions by which such facts were elicited to convey such information to the jury cannot upon inspection of the record be doubted. The claim that defendants ’ counsel had openéd the door to such questions is not justified by the record. The absence of any legal ground therefor and the persistence in that line of examination against defendants’ objections and the open charge that.it was for an improper purpose, indicate a deliberate intention to bring the matter before the jury and risk the consequences.

We think that our Supreme Court has plainly indicated that where the purpose to bring out such irrelevant and prejudicial matter before the jury is evident and it is impossible to tell its effect upon the jury, the judgment will be reversed. (McCarthy v. Spring Valley Coal Co., 232 Ill. 473; Mithen v. Jeffery, 259 Ill. 372; Aetitus v. Spring Valley Coal Co., 246 Ill. 32; Eldorado Coal & Coke Co. v. Swan, 227 Ill. 586.) In the McCarthy case, supra, plaintiff’s counsel alluded in a question (“inadvertently,” he claimed) to defendant’s counsel as “attorney of the Aetna Insurance Co.,” and withdrew the question on objection thereto. It was one of the matters for which the case was reversed. In the Mithen and Aetitus cases, supra, similar facts were revealed in the examination of jurors on their voir dire which was condemned as improper where the purpose of it was to inform the jury that that defendant was insured. While in the former case the court did not decide whether it would reverse on that error alone, there being other reversible errors in the case, yet in the latter it said it would not hesitate to reverse under authority of the McCarthy case, supra, where the verdict was large and it was not apparent that the examination of the juror was for the purpose of exercising the right to a peremptory challenge. In the Swan case, supra, the trial court ruled against questions implying that defendant was insured and the verdict was small and the case reasonably clear on the facts. But in the opinion it is said:

“If the amount of the verdict were such as to raise a suspicion in our minds that the jury had been influenced by this misconduct, or if the case were a close one on the facts, we would not hesitate to reverse the judgment for this reason alone.”

As the verdict in the case before us was by no means small and the case might well be deemed a close one on the facts, and as the questions eliciting the improper matter were put with the manifest purpose of getting it before the jury and received the sanction of the courts rulings, we think the matter thus brought out under such circumstances was calculated to be highly prejudicial. As stated in the McCarthy case, supra, we cannot tell the effect it may have had. Hence, as we construe the decisions on this subject above cited, we feel constrained to reverse the judgment and remand the cause.

Reversed and remanded.


text:
    Susie E. Schmidt, Appellee, v. National Life Insurance Company of the United States of America, Appellant.
    Gen. No. 21,406.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hakby M. Htsheb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed April 28, 1916.
    Statement of the Case.
    Action by Susie E. Schmidt, plaintiff, against National Life Insurance Company of the United States of America, defendant, to recover as beneficiary under two accident insurance policies. From a judgment in favor of plaintiff, defendant appeals.
    The defenses relied on were that the policies had lapsed by reason of failure to pay the renewal premium and that the fatal injury resulted from “exposure to unnecessary danger.”
    The policies contained a provision that the insurance thereunder would not cover injuries resulting from ‘ ‘ exposure to unnecessary danger. ’ ’ Each covered loss of life within thirty days from bodily injuries received “while walking on a public highway by being knocked down, struck, run over or otherwise injured by actual contact with any conveyance * * * propelled by steam, electricity,” etc.
    Abstract of the Decision.
    1. Insurance, § 621

      —when parol evidence to contradict receipt for renewal premium inadmissible. In an action to recover on an accident insurance policy, where defendant issued and delivered to the insured a written renewal receipt which stated that it was for value received and that the policy was “continued in force” for the period covering the time of the accident, defendant cannot contradict its effect by parol evidence that delivery of the receipt was conditional on an oral promise to pay the renewal premium and that it was not paid.
    The evidence showed that the assured was struck and knocked down at night by a westbound electric street car in Madison street, Chicago, at or near its intersection with North Campbell avenue while walking south across the former on the west side of the latter, and died within a few hours from the injuries received. An eastbound car was also approaching said avenue at the same time at which he appeared to be looking. The westbound car slackened its speed at the crossing and sounded its gong. As it slowed down the assured either hesitated or stopped for a moment and immediately afterward resumed his way across the tracks still watching the eastbound car. As soon as the motorman of the westbound car observed his hesitation or stop, he released the brakes, turned on the power and went ahead to an almost instantaneous collision.
    L. A. Stebbins, for appellant.
    John S. Huey, for appellee, Albert Gr. Miller, of counsel.

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

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

   Mr. Justice Barnes

delivered the opinion of the court.

2. Insurance, § 686 —when question whether accident caused By exposure to unnecessary danger one of fact. In an action on an accident insurance policy not covering injuries from exposure to unnecessary danger, held that under the circumstances the question as to whether there was such an exposure was one of fact.

3. Insurance—when evidence sufficient to justify verdict. In an action to recover under an accident insurance policy, evidence examined and held sufficient to support the verdict.


text:
    Illinois Surety Company, Defendant in Error, v. David L. Frank, Plaintiff in Error.
    Gen. No. 21,460.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed April 28, 1916.
    Statement of the Case.
    Action by the Illinois Surety Company, a corporation, plaintiff, against David L. Frank, defendant, on two written instruments signed by him, one an application to plaintiff to become surety on a stay bond for a corporation, of which defendant’s brother was secretary, containing an agreement of indemnity to the company, and the other a general bond of indemnity to plaintiff against the same contingencies. At the close of the evidence the court directed a verdict for plaintiff for $2,561.81.
    The defenses pleaded and attempted to be made were that the instruments were signed by defendant in blank and delivered so signed upon conditions not complied with of which plaintiff had notice before delivery. The conditions claimed were that defendant was not to be liable in excess of $40 (the amount of the premium to be paid by the principal to the stay bond for the surety-ship of plaintiff), and that said principal should deposit certain cash to indemnify plaintiff.
    Abstract of the Decision.
    1. Indemnity, § 24

      —when evidence sufficient to support verdict. In an action on an indemnity bond, evidence examined and held to support a verdict for plaintiff.
    2. Indemnity, § 11*—when condition not communicated to one to whom bond given not binding on him. A condition made in a conversation between the signer of an indemnity bond and the person for whom it was signed, limiting the amount for which the signer would be liable, is not binding on the indemnified person where the one on whose behalf the bond was signed was not the agent of the indemnified.
    Both defendant and his brother testified to a conversation between themselves had at the time the latter brought the papers to the former for his signature, intimating some purpose on defendant’s part to limit his liability. There was no proof that defendant’s brother communicated the conversation to plaintiff when he delivered the signed instruments, or at any time.
    Adler & Lederer, for plaintiff in error.
    Moses, Rosenthal & Kennedy, for defendant in error; Joseph W. Moses and Henry Jackson Darby, of counsel.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Antonio Parisi, trading as A. Parisi & Company, Defendant in Error, v. Conrad Heegn, Plaintiff in Error.
    Gen. No. 21,500.
    (Not to toe reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Abitold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 28, 1916.
    Statement of the Case.
    Action by Antonio Parisi, trading as A. Parisi & Company, plaintiff, against Conrad Heegn, defendant. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    It appeared from the statement of claim, in substance, that plaintiff was a real estate broker and at defendant’s request procured a purchaser for certain real estate belonging to defendant, to whom defendant sold the property for $9,600, and that there was due and owing plaintiff $250 as a commission for the sale, according to rates fixed by the Chicago Beal Estate Board.
    Issue wa,s taken in defendant’s affidavit of merits only on the question of the procuring cause of the sale, defendant alleging that plaintiff was not, but another broker was, the procuring cause thereof, and the trial resulted in a verdict and judgment for plaintiff for $237.50.
    Plaintiff’s own undisputed evidence disclosed that there was no such contract as the implied contract sued on, but that there was an express contract that defendant would sell at a price to net him $9,500 and that plaintiff should get his commission or compensation from the purchaser. The defendant also made the same kind of arrangement with the other broker through whom the deal was closed at the price of $9,600 after plaintiff had been negotiating with the same purchaser at the price of $9,750. .The purchaser testified that he saved $150 in buying through the other broker.
    Abstract of the Decision.
    Brokers, § Z%

      -when evidence insufficient to support verdict. In an action by a broker to recover commissions on the sale of real estate, evidence examined and held insufficient to support the verdict
    Albert Schaffner, for plaintiff in error.
    George E. Dawson, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    August Larson, Plaintiff in Error, v. City of Chicago et al., Defendants in Error.
    Gen. No. 21,565.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the February term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 28, 1916.
    Statement of the Case.
    Petition by August Larson, plaintiff, for a writ of mandamus against the City of Chicago, Carter H. Harrison, Mayor, and board of trustees of police pension fund of City of Chicago, defendants. The substance of the petition is set forth in the opinion of the Supreme Court transferring the cause to the Appellate Court, reported in 268 Ill. 61.

      Abstract of the Decision.
    1. Municipal cobpobations, § 143

      —when application must he made for police pension. An application for a pension under section 4 of the Pension Act (J. & A. If 1878) must be made while the applicant is still a member of the police force, else a petition for a writ of mandamus to compel the granting of such pension will be obnoxious to a general demurrer.
    2. Municipal cobpobations, § 143*—when reinstatement prerequisite to granting of pension. Even though a member of the police force has been illegally retired, he cannot be granted a pension under section 4 of the Pension Act (J. &. A. 1878) until he has been reinstated by lawful authority.

      It was stated in that opinion that the only real question is whether the facts well pleaded in the petition of plaintiff for a writ of mandamus—to which a general demurrer was sustained1—against defendants, commanding them to enroll his name as one of the beneficiaries of the police pension fund of the City of Chicago, show that he was entitled at the time he made his application to receive such pension under and by virtue of the provisions of the act providing for such fund, approved April 29,1887, and in force July 1,1887.
    The application for pension was predicated on section 4 of said Act (J. & A. 1878), which provides for retirement from the police force and a pension on account of physical disability received while in the service. It appeared from the petition that the application for such pension was not made to the board of trustees of said fund until after the petitioner’s discharge from the police force.
    A. B. Chilcoat, for plaintiff in error.
    John W. Beckwith, for defendants in error; Joseph F. Grossman, of counsel.

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

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

   Mr. Justice Barnes

delivered the opinion of the court.

3. Municipal corporations, § 143 —when pension board cannot reinstate discharged officer. The police pension board has no power to reinstate a policeman even though his discharge was illegal.


text:
    City of Chicago, Defendant in Error, v. Charles Baker, Plaintiff in Error.
    Gen. No. 21,568.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 28, 1916.
    Statement of the Case.
    Complaint by City of Chicago, plaintiff, against Charles Baker, defendant, charging that he was “known to be a pickpocket and was found lounging in and prowling and loitering about a car and public place, and was unable to give a reasonable excuse for being so found in violation of section 2012 of the Chicago Code of 1911.” To reverse a judgment finding him guilty and imposing a fine, defendant prosecutes this writ of error.
    The only witness called to support the charge was the officer who arrested Baker and his companion, one Albert Johnson, while they were in a passenger car of one of the elevated street railroads of Chicago. The substance of his testimony was that he saw them board the car with other passengers at one station and that he took them off at another simply because he knew them to be pickpockets. He.admitted that he did not see them do anything except to take a seat in the car on each side of another passenger. He said he had their “records,” and thereupon the prosecutor handed up to the judge a paper which the judge read, purporting to contain information of several arrests of said Baker for various offenses and of the result of the proceedings thereon in different jurisdictions, the introduction of which was objected to.
    Abstract of the Decision.
    1. Municipal corporations, § 864

      —when criminal record of accused not admissible. On a prosecution charging defendant with being a pickpocket and loitering about a car and public place in violation of section 2012 of Chicago Code of 1911, a document proffered by the prosecutor to the court, over defendant’s objection purporting to contain information of several arrests of defendant for various offenses and the result of the proceedings thereon in different jurisdictions is not competent.
    2. Municipal corporations, § 867*—when exception to judgment not necessary to review of sufficiency of evidence on writ of error. On a writ of error to reverse a judgment in a prosecution, the fact that there was no exception to the judgment does not prevent the court "from reviewing the error assigned as to the insufficiency of the evidence.
    3. Municipal corporations, § 867*—when absence of ordinance on which complaint based does not prevent review of sufficiency of evidence. On a writ of error to reverse a judgment in a prosecution under a municipal ordinance, the court is not prevented from reviewing the error assigned as to the insufficiency of the evidence by reason of the absence from the record of the ordinance on which the complaint was based, where the trial court took judicial notice of the ordinance and no point was made requiring the reviewing court to consider either its scope or construction.

      Charles E. Erbstein and Charles P. B. Macaulay, for plaintiff in error.
    Samuel A. Ettelson and Harry B. Miller, for defendant in error; Daniel Webster, of counsel.

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

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

   Mr. Justice Barnes

delivered the opinion of the court.

4. Municipal corporations, § 867 —what assumed as to ordinance and complaint where ordinance not in record on reviewing error assigned as to insufficiency of evidence. On a writ of error to review a judgment in a prosecution under a municipal ordinance, where the error assigned is as to the insufficiency of the evidence and the ordinance is not in the record, in the absence of anything to the contrary in the record, the reviewing court will assume that there was an ordinance such as was referred to in the complaint of which the trial court took judicial notice, and that the acts charged in the complaint constituted a violation of the ordinance. '

5. Municipal corporations, § 864*—when evidence insufficient to support verdict. On a prosecution charging one known to be a pickpocket with lounging in and prowling and loitering about a car and public place without being able to give a reasonable excuse in violation of section 2012 of Chicago Code of 1911, evidence examined and held insufficient to support a verdict against defendant.


text:
    City of Chicago, Defendant in Error, v. Albert Johnson, Plaintiff in Error.
    Gen. No. 21,569.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 28, 1916.
    Statement of the Case.
    Complaint by City of Chicago, plaintiff, against Albert Johnson, defendant. The same questions are involved as are decided in the opinion filed.in Gen. No. 21,568, City of Chicago v. Baker, ante, p. 323.
    The complaint is in the same language, based on the same city ordinance, and supported by the same character of proof, as held in the Baker case, supra, to be insufficient to sustain a judgment of conviction.
    Charles E. Erbstein and Charles P. E. Macaulay, for plaintiff in error.
    Samuel A. Ettelson and Harry B. Miller, for defendant in error; Daniel Webster, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Illinois Life Insurance Company, Appellee, v. James H. Prentiss, Appellant.
    Gen. No. 22,454.
    Injunction, § 29

      —when granted to restrain institution of suit in foreign jurisdiction. Allegations of bill to enjoin institution of suit on life insurance policy in another jurisdiction while suit on the same policy pending in Illinois, held sufficient to warrant granting of injunctive relief sought, on the ground that complete relief can be had in the pending proceeding and such further suit would be vexatious and harassing.
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court.
    Affirmed.
    Opinion filed April 28, 1916.
    Frederick A. Brown, Raymond S. Pruitt and Ralph R. Bradley, for appellant; John Gr. McDonald, of counsel.
    Henry W. Price and Hugh T. Martin, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.

This is an appeal from the refusal of the court to dissolve an injunction restraining appellant from instituting a suit on a life insurance policy against appellee in the State of Missouri.

The motion to dissolve was, on the face of the bill, disclosing that a suit between the same parties on the same policy had already been instituted by appellant and was still pending in the Circuit Court of Cook county, and that appellant had threatened to begin another suit on said policy in the State of Missouri with the avowed object of availing himself of the procedure recognized by the Constitution of that State whereby three-fourths or more of the jurors concurring may render a verdict, and with the further object to harass and annoy appellee by such unnecessary litigation and greatly increase the expense and inconvenience of making its defense to the claim.

The bill sets forth that appellee had refused to pay the policy because of suicide by the insured and false warranties and representations in procuring the policy, among them that his father never had the disease or ailment of insanity whereas, the bill avers, he was afflicted therewith and was confined and died in the State asylum for the insane at Kankakee, Illinois. It further appears from the bill that Cook county, Illinois, is the place where the contract was entered into, where appellee has its principal office, where appellant resides, where the insured lived and committed suicide, where his estate is being administered, where, as may well be inferred, most, if not all, documentary evidence pertaining to the contract and matters of defense, and the necessary witnesses thereto may be found, and, hence, where the production of the documents and personal attendance of the witnesses may be secured by the court’s process. It would appear, therefore, that there is no impediment to complete justice to both parties in this jurisdiction where appellant had already begun suit, and that his purpose of instituting suit in Missouri is not because any legitimate reason exists for not proceeding with the case here nor because any special facility for presenting the merits of it exists there, but mainly because he desires to avail himself of the supposed advantage of the Missouri procedure. But such a course of conduct under such circumstances tends to harass and oppress the appellee. It would not only be required to defend two suits for the same cause of action in two different jurisdictions and be put to the unnecessary inconvenience and expense of carrying proofs and witnesses several hundred miles to a foreign jurisdiction or attempt to present its evidence by depositions, but would thus be forced away from the jurisdiction of its residence and where the witnesses to the matters in controversy apparently reside and their attendance in court may be compelled^ to a jurisdiction where, by reason of the inability to compel the attendance of said witnesses, it may be unable to present its defenses upon their merits. We can, for instance, conceive of much embarrassment and disadvantage that would attend presenting the outlined defenses in another State so far as they depend on the production of evidence from said insane asylum or the coroner’s office of Cook county.

Upon very similar facts this method of equitable relief has been approved both in this country and England. In the English court of chancery such relief has been granted on the broad ground that the institution of foreign proceedings when complete relief can be had where the litigation is pending will be regarded “as a vexatious harassing of the opposite party,” as said by the lord chancellor in the case of Carron Iron Co. v. McClaren, 5 Clarke’s Cases, H. of Lords, July 1855, where there was a full discussion of the subject. Upon the same principle relief was granted in Field v. Holbrook, 3 Abb. Pr. (N. Y.) 377, where the English cases are reviewed. In Webster v. Columbian Nat. Life Ins. Co., 116 N. Y. Supp. 404 (affirmed in 196 N. Y. 523), the court said: ‘ ‘ The plaintiff, being a resident of this State and having first brought action in its court, ought not to be compelled to go to another forum to maintain her rights concerning the precise matter in litigation here.” The same relief was granted much on the same principle in Old Dominion Copper Mining & Smelting Co. n. Bigelow, 203 Mass. 159, in Monumental Sav. Ass’n. v. Fentress, 125 Fed. 812, in Locomobile Co. v. American Bridge Co., 80 App. Div. 44, 80 N. Y. Supp. 288, and in Kittle v. Kittle, 8 Daly (N. Y.) 72. In Freick v. Hinkly, 122 Minn. 24, the court reversing an order for injunction nevertheless recognized the same principle and said: “Had suit been brought in Minnesota in advance of the New Jersey suit, it might perhaps furnish a basis for an injunction.” And proceedings in a foreign jurisdiction were restrained in Von Bernuth v. Von Bernuth, (76 N. J. Eq. 177), 73 Atl. 1049, and in Standard Roller Bearing Co. v. Crucible Steel Co., 71 N. J. Eq. 61, mainly on the ground that they would be vexatious and harassing to defendants therein. While these several cases have some distinguishing features, yet we thin!? the present case comes within the principle recognized by each.

Appellee lays much stress on the claim that if required to defend in Missouri it would be deprived of the right guarantied to citizens of this State. We are not impressed with the force of the argument on this contention. But because of the views already expressed which call for affirmance of the lower court’s action, we need not consider it.

Affirmed.


author: Mr. Justice McGoorty

text:
    Anderson & Lind Manufacturing Company, Appellant, v. Carpenters’ District Council of Chicago et al., Defendants. John Metz et al., Appellees.
    Gen. No. 20,809.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed in part, reversed in part, and remanded with directions.
    Opinion filed April 28, 1916.
    Statement of the Case.
    Bill in equity by the Anderson & Lind Manufacturing Company, complainant, against the United Brqtherhood of Carpenters & Joiners of America, the Carpenters’ District of Chicago, and a number of their officers, agents and members, defendants, charging them with conspiring to compel and 'coerce complainant to unionize or organize its shop, and to establish and maintain, in order to aid them in securing such result, an illegal boycott against complainant and the product of its mill.
    This is an appeal to reverse that part of the decree entered in this case which directs the dissolution of a temporary injunction, and the dismissal of complainant’s amended bill of complaint as to John Metz, Daniel Galvin, Abe Weinstein, Joseph Morava, Oscar Olson, Alex Jeschke and the United Brotherhood of Carpenters & Joiners of America. The decree makes perpetual such temporary injunction as to the other defendants, in whose behalf no appeal has been perfected by any party in interest.
    Edmund W. Fboehlich, for appellant.
    Fabkeil & Thompson, for appellees.

      Abstract of the Decision.
    1. Conspiracy, § 16

      —when temporary injunction properly dissolved. On a bill to enjoin a national organization, its local subordinate bodies and certain officers and agents of the latter from unlawfully injuring complainant’s business, a temporary injunction against the national organization will be dissolved where there is nothing to show that any wrongful acts were ratified or authorized by the national organization.
    2. Conspiracy, § 16*—when temporary injunction against interference with business properly made permanent. On a bill to enjoin a national organization, its local subordinate agencies and the agents and officers of the latter from conspiring to interfere with the complainant’s business by threats, intimidation, boycott and similar illegal acts, a temporary injunction against such officers and agents should be made permanent as to such of the officers and agents as participated in the illegal acts, but not against an agent who merely stated to a witness that complainant should unionize its shop, without any threat or intimidation on his part.

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

   Mr. Justice McGoorty

delivered the opinion of the court.


text:
    Edward R. Bacon, Appellant, v. Otto E. Reichelt, Appellee.
    Gen. No. 26,865.
    1. Assumpsit, § 89

      —when evidence insufficient to support verdict. In an action of assumpsit, evidence examined and held insufficient to support the verdict.
    2. Attachment—when instruction as to conveyance of property properly given. Where plaintiff’s affidavit for attachment in aid in an action of assumpsit for money alleged to have been embezzled, alleges that defendant had within two years last past fraudulently disposed of his property so as to hinder and delay creditors, it is not error to instruct that if the jury find from the evidence that a certain conveyance was made for the sole purpose of securing the grantee upon his obligation as a bondsman for defendant, such conveyance cannot be considered by them as evidence in support j£ plaintiff’s case upon the attachment issue, even though they may believe from the evidence that such property was purchased with money stolen from plaintiff.
    3. Appeal and error, § 1672

      —when omission in plea waived. Failure of plaintiff to call the trial court’s attention to an omission in the plea rendering it obnoxious to a general demurrer constitutes a waiver of such omission.
    Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed April 28, 1916.
    Statement by the Court. This is an action in assumpsit brought in the Circuit Court of Cook county by Edward R Bacon, appellant, against Otto E. Reichelt, appellee, in connection with which suit was issued a writ of attachment in aid, levied upon certain property of defendant (appellee). There was a trial by jury which resulted in a verdict and judgment for plaintiff for $640 on the assumpsit issue, but against him on the attachment issue, and the writ of attachment was dismissed.
    Plaintiff was engaged in the grain commission business in Chicago. Defendant, who had been continuously in the employ of plaintiff for about twenty-five years, and who during that period had advanced in salary and position from bookkeeper to manager of plaintiff’s office, terminated such employment April 16, 1912, by a letter received by plaintiff on said date, upon his return to Chicago from eastern cities, wherein defendant confessed to embezzling $640 of plaintiff’s money during the latter’s absence.
    Plaintiff’s evidence tends to show that defendant during 1910,1911 and 1912, respectively, while in plaintiff’s employ through a series of forgeries and embezzlements, most of which occurred at times when plaintiff was absent from Chicago, misappropriated and applied to his own use $24,329.60 from plaintiff. The taking of snch sum was admitted by defendant upon the trial, who claimed, however, that such amount represented unpaid salary owing him by plaintiff; that during 1902 or 1903 defendant declined a proffered partnership in plaintiff’s business, because the latter’s financial condition was unsatisfactory; that, thereupon, plaintiff increased defendant’s salary from $1,800 to $5,000 a year; that for a period of eight or nine years following, defendant had only drawn on account of such salary, about $2,000 each year. Defendant further testified that at the time his salary was fixed at $5,000 a year, Lamson Brothers were giving financial aid to plaintiff; that defendant during such period prepared and presented to plaintiff a statement showing the trne condition of the latter’s business, which statement was changed by plaintiff so that it purported to show that he owed Lamson Brothers $75,000 instead of $145,000. At that time, plaintiff in referring to Lam-son Brothers, told defendant that the latter “would have to cover up the difference”; that plaintiff otherwise increased the purported assets and decreased the purported liabilities thereon shown, and instructed defendant to thereafter prepare such statements accordingly; that plaintiff further instructed defendant to make entries in plaintiff’s books in snch manner as would indicate that the cost of running plaintiff’s business was much less than the actual cost thereof, and show that defendant’s salary was only $2,400 a year, and that the money paid defendant in excess of such sums should be run through the grain account; to place locks upon plaintiff’s books of entry to prevent discovery of such deception, and that thereafter such books were locked by defendant, who admitted, however, that, except as to his salary, plaintiff’s books were kept correctly by him. An examination of plaintiff’s books during May or June, 1912, after defendant’s employment ceased, did not disclose any false entry therein pertaining to the cost of running plaintiff’s business, other than the alleged false entries as to defendant’s salary. All of the entries in plaintiff’s books were made by defendant, and all checks were supposed to be signed by plaintiff, whose account with the' Bank of Montreal varied from $1,000 to $200,000 a day, and had exceeded $300,000 in a single day. Defendant had no authority at any time to sign checks for plaintiff.
    The method used by defendant in obtaining money in excess of $2,400 a year, his purported salary as shown by plaintiff’s books, may be illustrated by the following instance: According to an entry made by defendant upon plaintiff’s books, a check was purported to have been issued in the course of plaintiff’s business to W. A. Fraser & Company, for $3,104.10. The check actually drawn to the order of that firm was for $3.50. Of the amount appearing upon the books to have been paid to W. A. Fraser & Company, $2,864.16 was used by Reichelt to buy bonds for his own use and benefit. By similar methods defendant obtained from plaintiff $13,809 during 1911, and $7,420 from January 2nd, to April 13th, inclusive, 1912. Defendant claims that all checks thus issued were signed by plaintiff, sometimes in blank; “that the stub-book was in his (plaintiff’s) hands all day long;” that plaintiff had access to all of the books and that the moneys thus obtained by defendant were so obtained with plaintiff’s knowledge, authority and consent, and intended to apply on defendant’s additional salary. Such knowledge, authority or intent was denied by plaintiff.
    Defendant further testified that he kept no record of moneys in excess of $200 per month thus obtained by him, but that record of same was kept by plaintiff. The checks upon which defendant obtained such moneys were the only checks of plaintiff’s that were missing at the time of the trial. Checks issued next preceding and immediately following the checks above referred to were found intact by the auditor who made the examination of plaintiff’s books, shortly after defendant’s employment ceased. During the period of 1910, 1911 and 1912, defendant purchased with the moneys thus acquired, bonds, diamonds, an automobile and a residence in Maywood which he occupied as his home, and maintained a son in Harvard University at a cost of $1,000 a year. During these years plaintiff frequently visited defendant’s home and had knowledge, generally, of defendant’s style and manner of living. Plaintiff testified, however, that he had been told by defendant, which the latter denies, that during such period defendant had been given money by a wealthy relative.
    Plaintiff contends that the verdict is against the manifest weight of the evidence; that the court erred in instructing the jury on the attachment issue, that the judgment should be reversed and the cause remanded for a new trial of both issues.
    Moses, Rosenthal & Kennedy, for appellant; Walter Bachrach and Sigmund W. David, of counsel.
    Simon La Grou, for appellee; Emory D. Frazier, of counsel.

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

   Mr. Justice McGoorty

delivered the opinion of the court.

We are of the opinion that the verdict in this case is against the manifest weight of the evidence. Following defendant’s confession to plaintiff that he wrongfully took $640 of plaintiff’s money, defendant was convicted in the Criminal Court of Cook county of embezzling money from plaintiff, and sentenced to the penitentiary. Defendant’s testimony that plaintiff increased defendant’s salary from $1,800 to $5,000 a year is unsupported by any other direct evidence. Although defendant testified that owing to plaintiff’s poor financial condition he waited for several years before demanding or receiving such additional compensation, the evidence does not show such improvement in plaintiff’s financial condition as would even tend to explain why defendant was enabled to rightfully obtain from plaintiff $24,329.60 within a period of less than two years, commencing May 5, 1910.

It seems highly improbable that plaintiff, whose daily banking transactions varied from $1,000 to $200,000 a day, would falsify his books for the sole purpose of concealing from his creditors an added expense of $3,000 a year. There is no evidence in this record that Lamson Brothers were ever deceived by any entry made in plaintiff’s books, or denied access to same. It has not been shown by any evidence how plaintiff’s alleged representation to Lamson Brothers, that plaintiff owed the latter $70,000 less than the amount actually owing, deceived or could have deceived said firm. So far as the evidence discloses, it may be reasonably inferred that only plaintiff was deceived by defendant’s false entries in plaintiff’s books. Considering the further fact that defendant had been duly adjudged guilty of embezzling plaintiff’s money, that most of the money taken by him was during plaintiff’s absence in some distant city, that the checks upon which defendant obtained such moneys are the only checks which are missing, it is evident that the verdict is against the manifest weight of the evidence.

It is also contended that the court erred in instructing the jury as follows:

“The court instructs the jury that if they find from the evidence herein that the conveyance or conveyances to John W. Barker in question were made for the sole purpose of securing said Barker upon his obligation as a bondsman for said defendant Reichelt, then the court instructs the jury that such conveyance or conveyances cannot be considered by them as evidence in support of the plaintiff’s case upon the attachment issue herein, even though you may believe from the evidence in the case that the property so conveyed was purchased with moneys stolen from Bacon by the defendant.”

Plaintiff’s affidavit for attachment alleged, inter alia, that defendant had “within two years last past fraudulently * * * disposed of his property, so as to hinder and delay his creditors.” In our opinion, the court did not err in giving such instruction. In Murry Nelson & Co. v. Leiter, 93 Ill. App. 176, 180, the court said: “Our Supreme Court has construed the attachment act as applying only in cases where the debtor has committed a fraud in fact, in doing the act found fault with, as contradistinguished from a legal or constructive fraud. They have, in decided cases, held that it is ‘not enough that the effect of the deed was to delay creditors, but it must have been executed with that purpose and intent,’ and that ‘granting writs of attachment in cases where only legal or constructive fraud is shown is outside of the general scheme and purpose of the attachment law.’ Weare Commission Co. v. Druley, 156 Ill. 25.” Even if such instruction were held to be erroneous, the giving of same could not have constituted prejudicial error, as it was the duty of the jury, under the evidence, to find the attachment issues in favor of the defendant.

The plea or traverse of defendant to plaintiff’s affidavit of attachment filed June 19, .1912, denied that within two years last past defendant fraudulently concealed or disposed of his property, etc. It is obvious that the period from May 14,1912, the date upon which plaintiff’s affidavit of attachment was filed, to June 19, 1912, is not covered by defendant’s plea. While such plea would have been obnoxious to a general demurrer, the failure of plaintiff’s counsel to call the attention of the trial court specifically to this question constituted a waiver of the omission complained of by plaintiff, in defendant’s plea. Devine v. Chicago City Ry. Co., 237 Ill. 278, 280; First Nat. Bank of El Paso v. Miller, 235 Ill. 135, 139.

For the reasons herein stated, the judgment of the Circuit Court is reversed and the cause remanded for a new trial on the assumpsit issues only.

Judgment reversed and cause remanded.


text:
    D. C. Booth, Appellee, v. Fred C. Bell et al., Appellants.
    Gen. No. 20,919.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gkmmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed April 28, 1916.
    Statement of the Case.
    Action by D. C. Booth, plaintiff, against Fred C. Bell, T. W. Magill, Gr. B. Bell and Averill Tilden, trading as H. O. Stone & Company, defendants. The case was tried before the court without a jury on an agreed statement of facts, the court finding the issues for plaintiff, and assessed his damages at the sum of $1,100, overruled motion of defendants for a new trial and arrest of judgment, and rendered judgment on the finding. From this judgment, defendants appeal.
    The evidence showed that plaintiff, residing in South Dakota, was the owner of a flat building in Chicago, subject to an incumbrance of $1,100, which became due and payable on May 1, 1914. The defendants received a letter from plaintiff bearing date of September 6, 1913, requesting them to find a purchaser for said property and to inform him how much they could probably sell the equity for, and what their commissions would be; that there was a mortgage of $1,100 on the property with interest at six per cent.; that he would rather sell the equity for cash than to continue renting. Plaintiff also in such letter asked defendants to obtain tenants for and manage said property for plaintiff. Defendants replied thereto, consenting to act as his agents and manage said property and added the following:
    “In regard to the sale of the property, our Mr. Johnson will write you * * * as soon as he looks at the property.”
    On September 27, 1913, plaintiff called at the office of defendants in Chicago and upon inquiry was then informed by Johnson, one of the defendants'’ employees, that in his opinion plaintiff’s property was worth $3,500. On November 25, 1913, defendants received a letter from plaintiff as follows:
    “Will you kindly advise me if there is any prospect for sale of the four flat building at 3124 Clybourn Avenue within a few weeks. I accepted' the valuation placed upon it by your Mr. Johnson with the expectation of a quick sale and if possible to do so I would be pleased to make a sale soon. ’ ’
    Defendants replied to said letter assuring plaintiff that they would do everything possible to sell plaintiff’s property. On or about February 1, 1914, a certain Himmelfarb offered defendants $2,500 for a good title, free and clear of all incumbrances, for the real estate in question, and to pay defendants commissions for making said sale. On February 3, 1914, plaintiff received from defendants the following telegram:
    “Can get twenty-five hundred dollars net cash for Clybourn Avenue property. Wire.”
    On February 4, 1914, defendants received the following telegram from plaintiff.
    “Will accept twenty-five hundred dollars net cash for Clybourn Avenue property.”
    Upon receipt of the last mentioned telegram, defendants proceeded to make sale upon the terms of Himmelfarb’s offer, and plaintiff, thereupon, received the following letter from defendants, dated February 10, 1914:
    “We have closed contract of sale on your property at 3124 Clybourn Avenue at a price of $2,500.00 net to you, as per our telegram.
    “This, of course, is made with the understanding you will pay for a continuation of abstract down to date showing good title and you will also have to pay the taxes for last year, which of course are gone by. ’ ’
    Plaintiff also received from defendants the statutory form of warranty deed, which recited a consideration of $10 and other good and valuable consideration, the terms of which deed conveyed and warranted to Himmelfarb the real estate in question, subject to' a trust deed due May 1, 1914, and all taxes and special assessments levied for the year 1913, which deed was duly signed and acknowledged by plaintiff and his wife, returned to defendants and filed for record in Cook county, Illinois, on March 7, 1914.
    The defendants deducted from the proceeds of1 the sale $1,121.10, the amount of the indebtedness secured by trust deed on said property, together with other charges. Plaintiff received from defendants a letter dated March 9, 1914, as follows:
    “Enclosed you will find our check for $1,288.12, together with statement showing the figures in the closing of the sale of your property, at 3124 Clybourn Avenue. ’ ’
    Upon receipt of such letter, plaintiff sent defendants the following telegram:
    “Letter and check received entirely unsatisfactory. Wired my lawyers to begin immediate action in case you refuse to comply with your written and telegraphic offer. Check returned.”
    On April X, 1914, the parties hereto stipulated that said check had been tendered and the tender refused, and that plaintiff might use and cash same without prejudice.

      Abstract of the Decision.
    Contracts, § 224

      —how the term, “net cash” construed. Where the owner of incumbered property advises a broker that he will take a certain amount “net cash” for the property and the broker informs him that he has a purchaser who will give a certain amount “net cash” therefor which offer the owner accepts, the term is to be construed as meaning that the owner is to receive the amount named clear of anything extraneous, with all deductions made, and the broker cannot deduct from the amount paid the amount of the incumbrance.
    P. H. Bishop, for appellants.
    Ela, Grover & March, for appellee; Frank E. Grover, of counsel.

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

   Mr. Justice McGoorty

delivered the opinion of the court.


text:
    Earl H. Macoy, Appellee, v. James D. Barton, Appellant.
    Gen. No. 20,982.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John K. Pbindiville, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 28, 1916.
    Statement of the Case.
    Action by Earl H. Macoy, plaintiff, against James D. Barton, defendant, to recover a balance alleged to be due plaintiff on defendant’s promissory note for $2,000. A writ of attachment issued in connection with said suit was served on the American Amusement Association, who filed its answer admitting it had become indebted to defendant in the sum of $644.24. The court found the issues as to the attachment issue against defendant and on the merits rendered judgment against defendant for $1,467 and costs, from which defendant appeals.
    The evidence showed that defendant delivered to plaintiff his said promissory note for $2,000 payable six months after date, and at the same time four certain promissory notes, of $1,000 each, executed by A. Wilbur Crane, payable to order of defendant, and by him indorsed, together with a $1,000 certificate of stock of the National Printing •& Engraving Company, attached to each note. Defendant was indebted to said company (of which plaintiff was president, and defendant vice president) and had given to it, to apply on such indebtedness, his promissory note for $13,200, and it was agreed that the proceeds of the first Crane note to become due would be applied on the principal and interest of defendant’s said note for $13,200, which was subsequently done, leaving an unpaid balance owing thereon of $12,998, for which sum defendant gave said company his promissory note in lieu of the original note of $13,200. Defendant testified that when he gave to plaintiff the three Crane notes remaining unpaid he then said to plaintiff: “You can have these for this note of $2,000 if I don’t pay it, and if there is anything left you can apply it on any indebtedness I may owe the National Printing & Engraving Company.” During defendant’s absence in Europe, all of the notes in question were paid to plaintiff, who applied the proceeds of same to the interest and principal of defendant’s promissory note for $12,998 and defendant’s other indebtedness to the National Printing & Engraving Company. Plaintiff testified that the Crane notes were delivered to him by defendant immediately prior to the latter’s departure for Europe, to apply to any contingency that might arise in defendant’s affairs, with directions by defendant to use such notes as plaintiff’s judgment might dictate. Defendant did not deny his indebtedness to said company, but complained of the application by plaintiff of the proceeds of the three Crane notes to such indebtedness, instead of applying such proceeds to the unpaid balance of $1,467 owing plaintiff by defendant on the latter’s said $2,000 note.
    Abstract of the Decision.
    Bills and notes, § 440

      —when evidence sufficient to support judgment. In an action to recover the balance due on a promissory note, evidence examined and held to support a judgment for defendant.
    Leslie H. Whipp, for appellant.
    Thomas S. Hogan and P. F. Murray, for appellee.

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

   Mr. Justice McGoorty

delivered the opinion of the court.


text:
    Maude B. Helm and Evelyn Helm, by Maude B. Helm, Appellants, v. Illinois Commercial Men’s Association, Appellee.
    Gen. No. 21,038.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Jambs C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Rehearing allowed and additional opinion filed June 20, 1916.
    Affirmed.
    Opinion originally filed April 28, 1916.
    Statement of the Case.
    Action by Maude B. Helm and Evelyn Helm, by Maude B. Helm, her next friend, plaintiffs, against Illinois Commercial Men’s Association, defendant, to recover on a policy of insurance on the life of Edgar L. Helm, deceased. From a judgment for defendant upon a trial before the court without a jury, plaintiffs appeal.
    The contract in this case consisted of the application for insurance, the policy issued to the assured and the by-laws of the association. The by-laws offered in evidence by plaintiffs contained the following provision : ‘ ‘ This association shall not be liable to any person for any idemnity or benefit for * * * death * * * resulting from an accident to a member which happened while said member was unnecessarily exposing himself to danger; (or) was not in the exercise of due diligence for his self-protection; * * Plaintiffs’ evidence showed that the deceased was killed while walking along a railroad right of way at a point between Vickers and Walton, Virginia; that there was no public highway between Vickers and Walton, and it was the only practicable way of travel for pedestrians between these two points, and was much traveled by people passing from one point to the other; that deceased was struck by a westbound passenger train, while a freight train was passing the deceased in an easterly direction. The engineer and fireman of the locomotive of the passenger train, who testified in behalf of plaintiffs, were the only witnesses who testified as to the manner in which deceased met his death. The engineer did not see deceased before he was killed. The fireman testified that when he first saw deceased, the latter was walking alongside of the freight train and on the ends of the ties supporting the rails upon which the passenger train was running, and that at that time deceased was about three hundred feet in front of the passenger engine, with his back to the same, facing and walking in the same direction in which the passenger train was going. The accident happened on a long “stiff” curve and the witness was prevented from seeing the deceased sooner because his view was cut off by the freight train.
    Abstract of the Decision.
    Insurance, § 667

      —when evidence insufficient to establish that insured exercised due diligence for his self-protection at time of death by train. In an action on a policy of insurance on the life of a person killed while walking on a railroad track, evidence held insufficient to establish that insured exercised due care for his own safety, within the terms of the policy.
    He testified that it could not have been over five seconds from the time he first saw deceased until the latter was struck; that the east and westbound tracks were about five feet apart; that he had seen people step in safety between these tracks; that a cold wind was blowing at the time; that deceased appeared to be carrying his grip upon his back with his head bent over, and, apparently, had his hands in his pockets.
    Bulkley, More & Tallmadge, for appellants.
    Ryan & Condon, for appellee; Irvin I. Livingston and D. A. Callahan, of counsel.

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

   Mr. Justice McGoorty

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    Kazimier Wroblewski, Defendant in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 21,771.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal corporations, § 126

      —when proof of existence of office and right thereto essential in action for salary. In an action by one against a municipal corporation for salary or wages as patrolman, plaintiff must show the existence of the office of patrolman during the period for which salary is sought, and his legal right to hold it.
    Error to the Municipal Court of Chicago; the Hon. Patrick B. Flanagan, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and judgment here.
    Opinion filed May 1, 1916.
    Statement of the Case.
    Action by Kazimier Wroblewski, plaintiff, against City of Chicago, defendant, to recover wages or salary as a patrolman for the period from May 31, 1910, to December 7, 1910, during which he was suspended and discharged, but reinstated at the latter date. Upon trial by the court he had judgment for $625, to revérse which defendant prosecutes this writ of error.
    Samuel A. Ettelson, for plaintiff in error; Roy S. Gaskill and George A. Curran, of counsel.
    A. D. Gash, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.