text:
    Jacob Pinckovitch, Appellee, v. South Side Elevated Railroad Company, Appellant.
    Gen. No. 24,166.
    1. False imprisonment, § 28

       — when shown that employee had authority to cause plaintiffs arrest. In an action for false imprisonment, evidence held sufficient to sustain a finding that a certain employee of defendant signed the information and caused plaintiff’s arrest and that he acted in the scope of his employment in so doing.
    2. Municipal Court op Chicago, § 14* — when interrogatories and answers are part of record. Interrogatories and answers thereto taken by plaintiff under section 32 of the Municipal Court Act (J. & A. f 3344), when read in the presence and hearing of the jury to supply a defect in proof pointed out by defendant and to meet the court’s ruling on the objection, become a part of the record and proceedings in the case, even though they are not formally tendered in evidence.
    3. False imprisonment, § 30* — when instruction is not misleading. In an action for false imprisonment, alleged to have resulted from the act of defendant’s employee, an instruction by the court of its own motion, that if the jury find from the evidence that such employee did not arrest plaintiff nor cause his arrest and was “not the procuring cause of the arrest,” then they would have no occasion to consider the question of damages, held, when read in connection with the other instructions, not to be misleading.
    Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 1, 1918.
    Rehearing denied July 12, 1918.
    Gardner, Foote & Burns, for appellant; William A. Morrow, of counsel.
    Walter A. Rooney, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

In an action for false imprisonment there was a verdict and judgment for $400 and defendant appeals.

Plaintiff was arrested on a charge of knowingly receiving stolen property of which defendant was the owner, and on a hearing before a committing magistrate was discharged and the prosecution thus ended.

Plaintiff was arrested without a warrant. Following the arrest one John W. Mitchell filed an information charging that plaintiff did unlawfully, etc., buy, receive and aid in concealing 41 pounds of sheet copper of the value of $15, the property of defendant.

Plaintiff was arrested on the street, taken to the police station in a patrol wagon and put in a cell in which he was kept until the next day, when he was released on bail.

At the conclusion of plaintiff’s case defendant moved for an instructed verdict, which was denied, defendant declining to put in any evidence or defense, the case went to the jury on the proofs made by plaintiff.

The whole case hinges on whether Mitchell was acting within the scope of his employment as an agent of defendant when he caused plaintiff’s arrest and made the information charging plaintiff with having received, the property stolen from defendant with knowledge of that fact.

It is also contended that there is no evidence that Mitchell signed the information. An examination of the record convinces us that there was evidence of sufficient probative force from which the jury might reasonably find that Mitchell not only signed the information and caused plaintiff’s arrest, but that in so doing he was acting within the scope of his authority as an agent and employee of defendant.

Defendant insists that interrogatories and the answers thereto taken as provided by section 32 of the Municipal Court Act (J. & A. jf 3344) are not evidence upon the trial unless offered in evidence. Literally this insistence is well taken as matter of law, but such insistence is not supported by the facts before us. On one of plaintiff’s witnesses being asked to state a conversation by Mitchell, who it was claimed was defendant’s agent, counsel for defendant objected on the ground that such agency had not been proven. Thereupon counsel for plaintiff, addressing the court in the presence of the jury, in answering this objection said, “I have asked interrogatories. They are directed against the South Side Elevated Railroad Company and answered by Mr. M. J. Feron, general superintendent of transportation,” and proceeded to read therefrom, in the presence of the court and jury, as follows:

“Interrogatory 1. Did you have in your employ one John W. Mitchell, during the months of January and February, 1917 ? ’ ’

This was answered affirmatively. Then this question and the answer thereto were read:

“Q.. What were the duties of John W. Mitchell, your employee, during the months of January and February? A. The duties of the said John W. Mitchell were to care for and protect the property of the defendant and to assist in the control and regulation of the conduct of the passengers riding upon defendant’s trains and in and about its stations.
‘ ‘Q. Is John W. Mitchell at present in your employ? A. Yes.”

The effect of this testimony is not seriously in dispute but it is contended that because counsel did not use some such words as “I offer these interrogatories and answers in evidence,” or words of like import, that they are not in the case.

We cannot agree to any such contention. These interrogatories and answers were read in the presence and hearing of the jury to supply a defect in proof pointed out by defendant’s counsel and to meet the ruling of the judge on that objection. We think such reading not only placed the matter read before the court and jury, but that the same thereby became a part of the record and proceedings in the case.

The rule contended for by defendant is highly technical and without merit, and if heeded would simply tend to defeat justice instead of promoting it. This proof was as effectually before court and jury as it possibly could have been if formally offered. It was in fact both offered and received and the use of particular words in making the offer was a nonessential. The essential matter was that the court and jury should hear it as evidence, and this they did.

The court gave the jury, among others, without being requested so to do by either party, the following instruction:

“The court instructs the jury that if you find from the evidence in the case that Mitchell did not arrest nor cause the arrest of the plaintiff and that he was not the procuring cause of the arrest, then you will have no occasion to consider the question of damages.”

Defendant insists that this instruction was erroneous because, it contends, it in effect told the jury that Mitchell was not only the agent of defendant, but that he was duly authorized to act for defendant and, if he actually caused the arrest, to bind defendant, and that the use of the words “procuring cause of the arrest” was misleading and confusing to the jury.

We are unable to so consider this instruction. It was not, in our judgment, harmful to defendant, as in the event the jury found that Mitchell was not the procuring cause of the arrest of plaintiff, etc., they would have no occasion to consider the case further. This was, we think, favorable to defendant and did not carry with it any such inference as urged by defendant’s counsel. This instruction must be read in connection with all the others given to the jury; so doing, we find nothing misleading in the instructions as a whole, but on the contrary think that the jury were fairly and correctly instructed upon the law of the case.

The evidence of plaintiff in the case, uncontradicted as it is, is sufficient to sustain the finding of the jury and the award of damages by it made.

There is no error in this record justifying a reversal of the judgment of the Municipal Court, and it is therefore affirmed.'

Affirmed.


source: Caselaw Access Project

author: Mb. Justice Holdom

license: Public Domain

text:
    Mary R. Pike et al., Heirs, Appellants, v. S. Engler, Appellee.
    Gen. No. 24,192.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 1, 1918.
    Statement of the Case.
    Action by Mary R Pike, Eugene S. Pike, William W. Pike and Charles B. Pike, heirs of Eugene S. Pike, deceased, plaintiffs, against S. Engler, defendant, to recover rent. There was judgment by confession under power of attorney in the lease which, on motion supported by affidavits, was opened and on a trial there was a verdict for defendant and a judgment nil capiat, from which plaintiffs appeal.
    Adams, Crews, Bobb & Wescott, for appellants.
    Leon A. Berezniak and Rankin, Dittus & Lesemann, for appellee.

      Abstract of the Decision.
    1. Landlord and tenant, § 325

       — when shown that rent was paid by written agreement waiving rent. In an action to recover rent, evidence held to show that such rent was paid by a written agreement between the parties whereby plaintiff waived the rent in consideration of a release- from defendant of liability for damages for failure of plaintiff to make certain repairs within the time agreed by the lease.
    2. Principal and agent, § 144* — when agent has authority to bind owner by agreement releasing tenant from liability for rent. An agent or manager who acts as such for the owner of an office building, whose name is on the building as such, who had been in the owner’s employ for 10 years, had made the lease to a tenant on behalf of the owner and with whom the tenant transacted all of his business as tenant, has authority to bind the owner by an agreement releasing the tenant from liability for. a part of the rent in consideration of a release of the owner by the tenant from liability for a failure to make certain repairs called for by the lease.

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

   Mb. Justice Holdom

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Isaac E. Glaseman, Appellee, v. Richard W. Farmer Company, Appellant.
    Gen. No. 24,129.
    (Not to he reported in full.)
    ■Appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 1, 1918.
    Statement of the Case.
    Action by Isaac E. Glaseman, plaintiff, against Bichard W. Farmer Company, a corporation, defendant, to recover wages for services rendered while in defondant’s employment. From a judgment for plaintiff for $35, defendant appeals.
    Abstract of the Decision.
    1. Continuance, § 17

       — when denial proper. Where the parties have been waiting all the morning for trial, a refusal to grant one of the parties a continuance of ten or fifteen minutes to bring his witnesses into court is proper.
    2. Master and servant, § 82*- — what evidence is inadmissible in action for services. In an action by an employee against a corporation to recover for services, where plaintiff’s statement that he had been employed by a certain person as head of the corporation, that the latter had agreed to pay him the sum named per week and that he had actually been paid by checks drawn against defendant’s account is uncontradicted, it is not error to exclude evidence of defendant’s bookkeeper as to working arrangements between defendant and the establishment in which plaintiff worked.
    M. L. Carmody, for appellant.
    Robert Edelson, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Mrs. W. N. Manning, Appellee, v. The Tobey Furniture Company, Appellant.
    Gen. No. 24,160.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 1, 1918.
    Statement of the Case.
    Action of the fourth class by Mrs. W. N. Manning, plaintiff, against The Tohey Furniture Company, a corporation, defendant. From a judgment for plaintiff, defendant appeals.
    Abstract of the Decision.
    Appeal and ebbob, § 1752

       — when judgment affirmed for insufficiency of abstract. Where, on appeal, the abstract, in referring to the result of the hearing, merely states: “Verdict of jury. * * * Judgment on the verdict,” without stating the nature of the verdict and judgment, the judgment will be affirmed, pursuant to the rule that the Appellate Court will not search the record for grounds for reversal.
    Meyer Shapiro, for appellant.
    Busch, Libssmann & Roemer, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Frank W. Stewart, Appellee, v. L. Wilson et al. William W. Link, Appellant.
    Gen. No. 24,250.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John Richabdson, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 1, 1918.
    Statement of the Case.
    Replevin by Frank W. Stewart, plaintiff, against L. Wilson et al., defendants. From a judgment for plaintiff, defendant William W. Link appeals.
    Christian C. H. Zillman, for appellant.

      Abstract of the Decision.
    1. Replevin, § 123* — when ownership by plaintiff shown. In an action of replevin, evidence held sufficient to support a finding that the property was owned by plaintiff.
    2. Pledges, § 9* — when pledgee acquires no title as against real owner of manufactured article. On replevin, the fact that, under a contract between plaintiff and a manufacturer, plaintiff bought raw material and delivered it to the manufacturer to be manufactured into articles, the cost of the material being charged to the manufacturer and credited on the amount which plaintiff agreed to pay, does not deprive plaintiff of his right of possession of the manufactured article, and one to whom the manufacturer pledged them acquires no title as against plaintiff.
    Haase, Hanley & Howard and John C. Burchard, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice O’Connor

text:
    Edward Girdzus, by John Girdzus, Appellee, v. Simon Van Etten et al., Appellants.
    Gen. No. 23,598.
    1. Municipal corporations, § 1038

       — when evidence sustains verdict for injuries due to building material on sidewalk. In an action to recover for personal injuries alleged to have been received by coming in contact with building material piled on a sidewalk, evidence held sufficient to sustain a verdict for plaintiff.
    2. Witnesses, § 214* — when party is bound by answer to question on cross-examination. If, in cross-examining a witness as to matters outside of the direct examination, counsel for a party is surprised by his answers by reason of their being contrary to a written statement by him on a prior occasion, counsel may ask him particularly about such former statement to refresh his memory or to awaken his conscience, but if the witness denies i: aking such contrary statements, the party its concluded by the answers.
    3. Witnesses, § 278

       — when impeachment as to matters elicited on cross-examination is improper. Where a party cross-examines a witness as to matters not brought out on the direct examination, such testimony must be considered as affirmative testimony offered by the one who elicits it, and the latter cannot impeach the witness as to such matters.
    4. Municipal corporations, § 1038* — who cannot complain of instruction setting forth ordinance on keeping sidewalks unobstructed. In an action against a property owner and a building contractor to recover for personal injuries alleged to have been received at night by reason of the storage of building material on the sidewalk adjacent to property on which the building was being constructed, the defendant contractor cannot complain of an instruction setting forth municipal ordinances, introduced in evidence, which provide that in the construction of a building, a sidewalk not less than 6 feet in width shall at all times be kept unobstructed for passage in front of the property and require the display of red lanterns on materials in streets and alleys, such ordinances being applicable to contractors as well as to property owners.
    5. Appeal and error, § 1547* — when instruction assuming facts is not reversibly erroneous. Even though an instruction is improper because assuming as a fact something which is properly a question for the jury and as tending to mislead, it is not ground for reversal where, under the evidence in the case, it did not work prejudice.
    6. Negligence, § 46* — liability of owner of property for of independent contractor. As a general rule, the owner of property is not liable for the negligence of an independent contractor.
    7. Negligence, § 46* — what is effect of delegating act to independent contractor. Where the doing of an act which one causes to be done casts upon him a duty, he cannot escape responsibility by delegating it to an independent contractor.
    8. Negligence, § 46* — when liability for nonperformance of duty imposed by ordinance or statute may not be evaded. Liability for the nonperformance of a duty imposed upon one by a statute or municipal ordinances cannot be evaded by delegating the work to an independent contractor.
    9. Municipal corporations, § 1038* — when otoner of property is liable for injuries due to storage of building materials on sidewalk. The owner of property on which a building is being eonstructed is liable for the negligence of the building contractor in failing to maintain the sidewalk in a safe condition for use by the public, while used by the contractor for the storing of building materials.
    10. Damages, § 141

       — when not excessive. A verdict of $7,000 for injuries to a 4-year-old boy, resulting in the loss of sight in one eye, is not excessive.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthile, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed July 10, 1918.
    Wilkerson, Cassels & Potter, for appellants Simon and Henry Van Etten; Ralph F. Potter, of counsel.
    Timothy J. Fell, for appellant Catholic Bishop of Chicago; F. O. Floberg, of counsel.
    Jesse Lowenhaupt and Charles C. Spencer, for appellee.

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

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

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Edward Girdzus, a minor, by his next friend, brought suit against Simon Van Etten and Henry Van Etten, doing business as Van Etten Brothers, and the Catholic Bishop of Chicago, a corporation sole, and others, to recover for personal injuries. Before verdict the suit was dismissed as to the defendants, except those above named. There was a verdict and judgment in favor of the plaintiff for $7,000, to reverse which defendants prosecute this appeal.

The record discloses that the Catholic Bishop of Chicago, a corporation sole, was the owner of a piece of vacant real estate located at the southwest comer of 18th street and Union avenue, Chicago, upon which it was desired to erect a church, and for this purpose entered into a written contract with Van Etten Brothers for the masonry work. Other contracts were let for other work to three other parties who were made defendants to the suit but the action was dismissed as to them. The contract provided that the work should be done in accordance with the terms of the contract, plans and specifications and under the supervision of an architect. A permit was issued by the City of Chicago to the owner granting authority to erect the church upon the express condition that the owner conform in all respects to the ordinances of the' city regulating the construction of buildings. A permit, was also issued to the owner to use the street in front of the premises for placing building material during the construction. These permits were obtained for the owner by Van Etten Brothers in accordance with the terms of the written contract between the parties. Under these permits the several contractors used the street and sidewalk adjacent to the property for the piling of brick, scaffold plank and other material to be used in the construction of the church.

On November 10, 1914, about 7 o’clock in the evening, plaintiff, a child about 4 years of age, together with his half sister and half brother, were walking west on the sidewalk adjacent to the property, when a sharp stick of wood which was sticking out from a pile of material on the sidewalk came in contact with plaintiff’s eye, destroying the sight. It was dark at the time, and there was evidence that there were no lights on the material, except at the west end. The material covered a considerable portion of the north side of the sidewalk. The evidence tended to show that the material was in several piles extending from Union avenue on the east back to the alley on the west, a distance of about 140 feet; that there were piles of this material placed there by each of the several contractors. The evidence on behalf of the plaintiff tended to show that the sidewalk was all taken up hv the material, except a space of 2 or 3 feet; that plaintiff’s half sister, a girl about 12 years old, was leading plaintiff by the hand when the accident occurred. The evidence on behalf of the defendants tended to show that there was at least 6 feet of sidewalk space that was not covered; that there were no sticks protruding from the piles of material, and that lights were placed on the material by the watchman employed for that purpose.

The defendants, Van Etten Brothers, contend that the evidence does not show that plaintiff was injured by reason of any material which they had placed on the sidewalk, but on the contrary that it appears from the evidence that there were no sticks in their material; that it consisted of brick, tile and scaffold planks, and that there was no evidence to sustain the verdict as to them. It would serve no useful purpose to analyze the evidence, but we think it was sufficient to sustain the verdict.

Van Etten Brothers next contend that the court erred in refusing to permit them to cross-examine the witness Macas for the purpose of laying grounds for impeaching him. Macas was one of the watchmen, employed by Van Etten Brothers and other contractors, whose duty it was to put lights on the piles of building material, and was called as a witness for the plaintiff. After being examined in chief he was turned over to counsel for defendants for cross-examination. After cross-examining the witness, counsel continued to interrogate him, going into matters which had not been touched upon in the direct examination. No objection was made by counsel for plaintiff that this was improper cross-examination. The answers of the witness on this phase of the examination were unfavorable to the defendants and counsel for Van Etten Brothers sought to show that the witness had made a contrary written statement signed by Sim on a prior occasion. To these questions counsel for plaintiff-,objected on the ground that by going outside of the direct examination defendants had made the witness their own and therefore could not impeach him as to such matters. This objection was sustained.

If counsel were surprised by the answers given for the reason that they were contrary to the prior written statement he would have the right, even if the witness were considered to be testifying on his behalf, to ask him particularly about such former statements, for the purpose 'of refreshing his memory, or awakening his conscience, to cause him to relent and speak the truth if he was lying, but if the witness denied making such former contrary statements, defendants would be concluded by the answers. People v. O’Gara, 271 Ill. 138; People v. Lukoszus, 242 Ill. 101; Chicago City Ry. Co. v. Gregory, 221 Ill. 591; 40 Cyc. 2693, 2697. But counsel was not seeking to probe the conscience of the witness, for he expressly stated, when objection was made, that he desired to lay the foundation for impeachment. And as the cross-examination of the witness was not concerning matters brought out on direct examination, the testimony must be considered as affirmative evidence offered by the defendant, though elicited on cross-examination, and, in these circumstances, the witness could not be impeached by the defendants. Joseph v. Peoria & P. U. Ry. Co., 183 Ill. App. 56, aff’d 265 Ill. 563 [7 N. C. C. A. 1041] ; Moore v. Standard Oil Co. of New York, 155 N. Y. App. Div. 375. The ruling of the trial court was, therefore, correct.

Van Etten Brothers further contend that the court erred in giving instruction 3. This instruction set up two ordinances of the City of Chicago, introduced in evidence, one of which provided that during the progress of the construction of a building a sidewalk not less than 6 feet in width should at all times be kept open and unobstructed for the purpose of passage in front of the property; and the other ordinance required that red lanterns be displayed at night on every pile of material in a street or alley; and told the jury that these ordinances were binding on all persons in the city. It is argued that this instruction was wrong because it stated an abstract proposition of law, and for the further reason, as we understand counsel, that it conveyed to the jury the impression that under the circumstances the ordinance applied to Van Etten Brothers, when, as a matter of fact, it is said the ordinances did not apply to them. We see no reason why the ordinances did not apply to Van Etten Brothers ras well as the owner of the property, for no one could obstruct the sidewalk in a manner prohibited by the ordinances nor omit to place lights on the piles of material, without violating the ordinances. Moreover, the contract entered into by these defendants with the owner of the premises for the construction of the mason work expressly required Van Etten Brothers to observe all provisions of the ordinances of the city. We think the ordinances clearly applied to Van Etten Brothers, and that the instruction was applicable to the facts in the case and was not reversible error because it stated an abstract proposition of law.

The defendant owner contends that the court committed reversible error in giving to the jury instruction 4. By this instruction the jury were told as a matter of law that the ordinances of the City of Chicago placed the responsibility on the owner of keeping not less than 6 feet of the sidewalk unobstructed, and also of displaying red lanterns during the night on the piles of material in the streets; that the owner would in no way be relieved of the responsibility by reason of the fact that contracts were made with other persons in doing the work, even though the evidence shows that the obstructions were placed on the sidewalk by other persons. It is said that this instruction is erroneous in assuming that the owner was in possession and that it further assumes there were obstructions upon the sidewalk, which was controverted. We think the instruction is wrong in assuming an obstruction on the sidewalk, as this was a question to be submitted to the jury. It might also be misleading in stating that the ordinance placed the responsibility upon the owner, and from a reading of the whole instruction there is an assumption that the verdict should be against the owner in any event, and were this a close case the judgment would have to be reversed. But as no complaint is made to this instruction by Van Etten Brothers, and as we hold that the owner was liable for the acts of Van Etten Brothers, and as the jury were fully instructed as to the duties and liabilities of Van Etten Brothers, it did not prejudice the rights of the owner. It is also said that this instruction is wrong because the owner is not liable for the negligence of Van Etten Brothers, for the reason that the latter were independent contractors, and had full charge and control of the work; that they had furnished the material, were competent and skilful contractors, selected their own employees and were not under the direction or control of the owner in the construction of the work.

In support of this the case of Scammon v. City of Chicago, 25 Ill. 424; Pioneer Fireproof Const. Co. v. Hansen, 176 Ill. 100; Geist v. Rothschild & Co., 90 Ill. App. 324, and Pfau v. Williamson, 63 Ill. 16, are. cited. It is a general rule of law that the owner of property is not liable for the negligence of the servants of an independent contractor. In the Scammon ease, supra, it was held that the owner of premises upon which an independent contractor was constructing a building was not liable for the negligence of the contractor’s servants in failing to properly protect an opening in the sidewalk. The court there said (439): “The contractors did not pretend to derive any power from appellants (owners), to place materials in the street, but on the contrary, applied to and obtained permission from the city.” In the instant case permission to obstruct the sidewalk was given to the owner, and it was only by virtue of this authority that Van Etten Brothers were authorized to place material upon it. There is an exception to the g*eneral rule above stated. A person causing something to be done, the doing of which easts upon kim a duty, cannot escape responsibility by delegating it to an independent contractor. If the duty is imposed upon one by statute or municipal ordinance, liability cannot be escaped by delegating the work to an independent contractor. 26 Cyc. 1562; Boyd v. Chicago & N. W. Ry. Co., 217 Ill. 332; Chicago Economic Fuel Gas Co. v. Myers, 168 Ill. 139; North Chicago St. R. Co. v. Dudgeon, 184 Ill. 477; 1 Shearman and Redfield on Negligence, sec. 176; Kepperly v. Ramsden, 83 Ill. 354; Downey v. Low, 22 N. Y. App. Div. 460; Moore & Savage v. Kopplin, — Tex. Civ. App. —, 135 S. W. 1033; Darmstaetter v. Moynahan, 27 Mich. 188.

In the Boyd case, supra, the court said (339): “Where work to be done in a street necessarily obstructs and renders it dangerous, the one for whom the work is done cannot avert liability for negligence in doing it by proving that he let the work to a contractor. ’ ’

In Shearman and Bedfield on Negligence, supra, it is said: “Neither can any one escape from the burden of an obligation imposed upon him by law, by engaging for its performance by a contractor. Whatever he is bound to do, must be done; and though he may have a remedy against his contractor for the failure of the latter to discharge his duty, strangers to the contract are still at liberty to enforce the rights conferred upon them by law, without noticing the contract. * * * And where one obtained a license from a city to incumber its street, in order to perform certain work, which he thereupon let to a contractor, he could not shield himself by such contract from liability for the abuse of the license by the contractor, amounting to a nuisance.”

Under these authorities, we are of the opinion that in the instant case the owner of the premises was liable for the negligence of Van Etten Brothers’ employees in failing to maintain the sidewalk in a safe condition for the passage of the public.

Complaint is also made of the giving of instruction No. 1. We think this complaint entirely without merit.

Both defendants contend that the judgment is excessive, and that, in these circumstances, questions put by the court to the physician as to whether the injury would impair plaintiff’s other eye were prejudicial. We have carefully considered the amount of the verdict and are of the opinion that it cannot be considered excessive. De Fillippi v. Spring Valley Coal Co., 202 Ill. App. 61; Delohery v. Quinlan, 210 Ill. App. 321. The judgment of the Circuit Court of Cook county is affirmed.

Affirmed.


text:
    Edward Girdzus, by John Girdzus, Appellee, v. Simon Van Etten et al., Appellants.
    Gen. No. 23,764.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed July 10, 1918.
    Statement of the Case.
    Action for personal injuries by Edward Girdzus, a minor, by John Girdzus, his next friend, plaintiff, against Simon Van Etten, Henry Van Etten and Catholic Bishop of Chicago, defendants. The decision herein is controlled by that in Girdzus v. Van Etten, ante, p. 524.
    Wilkerson, Cassels & Potter, for appellants Simon and Henry Van Etten; Ralph F. Potter, of counsel.
    Timothy J. Fell, for appellant Catholic Bishop of Chicago; F. O. Floberg, of counsel.
    Jesse Lowenhaupt and Charles C. Spencer, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Paul Brauer, Administrator, Appellee, v. Henry D. Laughlin, Appellant.
    Gen. No. 23,673.
    1. Appeal and ebbob, § 1820

      - — when Circuit Court has jurisdiction of case transferred to law side upon reversal and remandment. The Circuit Court, when it has jurisdiction of the parties and subject-matters, has jurisdiction of a cause which, on an appeal from its decree, has been reversed and remanded by the Supreme Court, on the ground that equity had no jurisdiction and has been reinstated and transferred to the law side, without regard to whether section 40 of the Practice Act (J. & A. If 8577) applies to the cause.
    2. Statutes, § 243* — when given prospective effect. As a general rule a statute will be given a prospective rather than a retrospective effect in construing it, unless the legislature’s intention that it have a retrospective effect is clearly apparent.
    3. Statutes, § 245* — when not given prospective effect. The general rule that statutes are to be prospectively rather than retrospectively construed is subject to an exception when the statute is remedial and affects practice and procedure only.
    4. Courts, § 138

       — what was purpose of statute permitting transfer of case to proper side of court. In enacting section 40 of the Practice Act (J. & A. If 8577), the purpose of the legislature was to remedy the evil arising from the rule that one commencing his suit on the wrong side of the court cannot afterwards transfer it to the other side.
    5. Statutes — when given retrospective effect. Section 40 of the Practice Act (J. & A. jf 8577) relating to transfer of case commenced on wrong side of court to proper side, applied to litigation existing at the time it became effective.
    6. Appeal and error, § 1820* — what need not he alleged in declaration in case transferred from equity to law side after reversal and remandment. Where, on an appeal to the Supreme Court, it has been decided that complainant misconceived his remedy and that equity had no jurisdiction and the cause is reversed and remanded to the Circuit Court and reinstated and transferred to the law side of the court, it is not necessary that plaintiff allege in his declaration the various steps taken in the transfer of the case.
    7. Appeal and error, § 1820* — when failure to make profert of letters of administration in trial of case transferred to law side upon reversal and remandment is not ground for reversal. Where, pending an appeal from a decree of the Circuit Court, complainant dies and her administrator is substituted and, on the decree being reversed and- remanded, the cause is reinstated and transferred to the law side of the Circuit Court and a declaration consisting of the common counts and an account stated is filed, and afterwards the plaintiff’s death is suggested and her administrator substituted, the fact that no profert is made of the letters of administration of the estate is not ground for reversal.
    8. Limitation oe actions, § 55* — when statute cannot he interposed. Where a suit in equity, which was commenced within the statute of limitations, is, on appeal to the Supreme Court, reversed on the ground that the remedy had been misconceived and is remanded and is thereupon reinstated on plaintiff’s motion and transferred to the law side and a declaration filed, the statute of limitations cannot be interposed in the action at law.
    9. Evidence, § 458* — what constitutes substantial identity of parties in action at law and in suit in chancery. On a bill in chancery in the Circuit Court against several defendants, a decree was entered for complainant against one defendant and was dismissed as to the others, and, pending an appeal by such defendant, complainant died and her administrator was substituted, the Supreme Court reversed and remanded the cause and it was reinstated in the Circuit Court and transferred to the law side and, thereafter, plaintiff filed a declaration making the defendant against whom the decree was entered defendant. It was held that there was a substantial identity of parties in the action at law and the suit in chancery.
    10. Evidence, § 458

       — when evidence given in chancery proceeding is admissible on second trial of case transferred to law side. Where, on appeal to the Supreme Court, a decree of the Circuit Court is reversed on the ground that plaintiff misconceived his remedy and is remanded, and is reinstated and transferred to the law side, the subject-matter and transactions involved being the same and the parties and evidence substantially the same in the chancery suit as in the action at law, evidence given on the chancery proceeding is properly admitted in the action at law, no complaint being made that ample opportunity for cross-examination of the witnesses was not given in the chancery suit.
    11. Witnesses, § 195* — what memorandum may be used to refresh memory. Whether a memorandum used by a witness for refreshing his memory was made by the witness or by some one else is immaterial.
    12. Witnesses, § 195* — when not improperly allowed to refresh memory from memorandum. It is not ground for reversal that a witness was permitted to refresh her recollection by using a memorandum which was in the nature of an index to enable the witness to refer to the books involved in the case.
    13. Appeal and error, § 1733*- — when ruling on evidence is law of case on second appeal. The ruling on a former appeal as to the competency of the testimony of a witness is the law of the case on the second appeal with regard to the competency on the second trial of testimony of such witness which is substantially the same as on the first trial.
    14. Assumpsit, Action of, § 89* — when advancement of money and promise of payment shown. In an action for money had and received, the evidence held sufficient to show that money advanced by plaintiff’s intestate to defendant was advanced by her for the purchase of certain stock and that he agreed to pay the money to her.
    15. Equity, § 322* — when answer is admissible in evidence. Where a chancery decree of the Circuit Court is reversed by the Supreme Court on the ground that equity had no jurisdiction and the cause is remanded and it is reinstated on complainant’s motion and transferred to the law side, defendant’s answer in the chaneery, which is a part of the files in the case and was made on behalf of defendant to the very matters in controversy, may be read in evidence in the action at law, even though there is no proof that the signature to the answer was that of defendant and though answer under oath was waived in the bill and an amended answer was subsequently filed.
    16. Interest, § 80

       — when instruction on right to recover is proper. In an action for money had and received, where it is not disputed that there was an express agreement on defendant’s part to pay some one 6 per cent, on an amount which he admitted owing some person or corporation, it is not error to give, at plaintiff’s request, an instruction that if the jury find for plaintiff and find that defendant agreed to pay 6 per cent, interest, they shall include interest at this rate on the amount they find due.
    17. Usury, § 2* — what constitutes. Usury is the taking or contracting for more than the lawful rate of interest for the loan of money.
    18. Usury, § 46* — necessity of pleading. Where one who agreed orally to pay 6 per cent, interest on money loaned him does not, in an action to recover such loan, plead usury, he may be required in the verdict against him to pay the rate of interest which he agreed to pay.
    19. Instructions, § 137* — when refusal of instruction is not ground for reversal. It is not ground for reversal that, in an action for money had and received, the court refused to give an instruction to the jury to disregard certain items, where such an instruction would have been inconsistent with defendant’s admission as to the amount he owed some one and the evidence is sufficient to support a finding that whatever he owed was owed to plaintiff, and also supports a finding in plaintiff’s favor as to the items in question.
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 10, 1918.
    Fred B. Silsbee and Granville W. Browning, for appellant.
    William C. Rigby and Rolla B. Longenecker, for appellee.

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

      sen Illinois Notes Digest, Vols. XJ 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.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal Henry D. Laughlin seeks to reverse a judgment entered against him in an action of assumpsit for $49,034.48. The record discloses that Sarah Eden, now deceased, on April 22, 1901, filed her bill of complaint against Laughlin and others, claiming a one-half interest in certain stock of the Northern Hotel Company, purchased in the name of Laughlin. The suit was heard and a decree entered finding that Mrs. Eden had not established her claim of ownership in the stock, but that she was entitled to an accounting for money advanced by her to Laughlin, and it was decreed that Laughlin repay to her such sum. The bill was dismissed as to the other defendants. Mrs. Eden died in the meantime and Paul Brauer, the administrator of her estate, was substituted. Laughlin appealed to this court, where the decree was affirmed. Laughlin v. Brauer, 138 Ill. App. 524. A further appeal was prosecuted to the Supreme Court, where the judgment of this court and the decree of the Circuit Court were reversed and the 'cause remanded. (Brauer v. Laughlin, 235 Ill. 265), on the sole ground that equity had no jurisdiction, since Mrs. Eden had failed to establish her claim to the stock, and it was there held that the defendant was entitled to a trial by jury. The cause was reinstated on motion of plaintiff, and was transferred to the law side of the court. Subsequently, January 9, 1912, plaintiff filed the common counts for money had and received, and an account stated, to which defendant, on January 16, 1912, filed a plea of the general issue. January 26, 1912, plaintiff filed a bill of particulars in accordance with an order entered. May 4, 1912, by leave of court, defendant filed a plea of the statute of limitations. On May 11,1912, plaintiff’s demurrer to this plea was sustained. On May 17,1917, the case came on for trial before the court and jury, and on May 22, 1917, the defendant made a motion in writing to strike the declaration, filed in January, 1912, from the files. The motion was denied. On the same day he also asked leave to withdraw the plea of the general issue, which was also denied, and thereupon defendant moved the court for leave to file additional pleas of the statute of limitations instanter, which was allowed and the pleas filed. To these pleas plaintiff demurred ore terms. Whereupon defendant moved that the demurrer be carried back to the declaration, which motion was denied, and thereupon the demurrer to the pleas was sustained. A full statement of the facts is set forth in the former opinion of this court and will not be here repeated.

Defendant contends that the trial court was without jurisdiction of the subject-matter, for the reasons, as stated by his counsel, that the declaration filed January 9, 1912, was a new suit and was not filed as an amendment to the bill; that the declaration, which was afterwards amended, did not state a cause of action, and that it was improperly transferred to the law side of the court, for the reason that section 40 of the Practice Act of 1907 (J. & A. If 8577) did not apply to suits pending prior to the time that law became effective. Manifestly the jurisdiction of the court is in no way involved, for the court which has unlimited jurisdiction in all cases of law and chancery, had jurisdiction of the subject-matter, and of the parties, and this too even if section 40 of the Practice Act did not apply to the case.

It is earnestly contended that section 40 does not apply for the reason that this suit was commenced April 22, 1901, while section 40 did not become a law until July 1, 1907; that it is a general rule that a statute will be construed to be prospective and not retrospective in its operation, unless it clearly appears that the legislature intended it to have a retrospective effect, and that such was not the intention of the legislature in enacting section 40. While the general rule is as stated, there is an exception to it when the statute in question is remedial and affects only the practice and procedure. Chicago & W. I. R. Co. v. Guthrie, 192 Ill. 579. Section 40 (J. & A. ft 8577) provides:

“If the party commencing any civil suit or proceeding shall have misconceived his remedy, he may be permitted, in the discretion of the court, and on payment of all accrued costs and such clerk’s advance fees as are required for the commencement of the suit in the proper form, by proper amendments, in the same proceeding, to transfer the suit, if at law, to chancery, and if in chancery, to the law docket of the court: and when so transferred, the suit shall proceed as though originally commenced on such side of the court.”

Prior to the enactment of this section, where a party had commenced his suit on the wrong side of the court, he could not afterwards transfer it to the other side (Lullman v. Barrett, 18 Ill. App. 573), and clearly the intention of the legislature was to remedy this evil. In the Guthrie case, supra, which was a proceeding under the Eminent Domain Act, the statute, after the commencement of the suit, was amended, and it was there contended that this amendment should not be given a retroactive effect. The court there said (581): “Such amendment merely affects the method of procedure — the remedy — and the law is well settled that there can be no vested right in any particular remedy or method of procedure, and that while the general rule is that statutes will not be so construed as to give them a retrospective operation unless it clearly appears that such was the legislative intention, still, when the change merely affects the remedy or the law of procedure, all rights of action will be enforceable under the new procedure, without regard to whether they accrued before or after such change in the law, and without regard to whether suit had been instituted or not, unless there is a saving clause as to existing litigation.” In section 40 there is no saving clause as to existing litigation, and as it affects the remedy only, we think it applied to the instant ease and authorized the change to the law side of the court.

Other objections are also made to the transfer of the case. These objections point out what are claimed to be irregularities. Among these it is contended that neither the declaration filed in 1912 nor the amendment filed in 1917 stated a cause of action, because there was no profert made of the letters of administration of the estate of Sarah Eden, and no allegation that plaintiff had misconceived his remedy in the chancery suit. It was obvious from the opinion of the Supreme Court that it had been judicially determined that plaintiff had misconceived his remedy, and we think it was unnecessary to allege in the declaration the various steps taken in the transfer of the case. The declaration consisted of the common counts and an account stated, and afterwards the death of Mrs. Eden was suggested and her administrator substituted by way of amendment. We think none of these objections would warrant a reversal of the case.

Since we hold that the case was properly transferred to the law side of the court, it is obvious that the pleas of the statute of limitations could not be interposed.

Complaint is made of the ruling of the court permitting the testimony of William S. Eden and Mrs. Eden, which was given in the chancery suit, to be read on the trial, for the reason that neither the parties nor the issues in the two cases were the same, and that the depositions were not identified on the trial. It is perfectly obvious from the record that the depositions received in evidence were the ones taken on the former trial in the chancery suit. In fact counsel for defendant at least tacitly admitted that they were, so there is no merit in the contention that they were not properly identified. Nor do we think there is merit in the other points made, for it is clear that the same subject-matter was involved in the two cases, and the parties were substantially the same. In the chancery suit Mrs. Eden was seeking to recover from defendant a one-half interest in certain stock. Her bill was afterwards amended, seeking to recover the money which she had advanced him for the purchase of the stock. In that case Laughlin and others were made defendants, but all of them except Laughlin were dismissed out of the case. In the instant case plaintiff seeks to recover the same money that was involved in the chancery suit. The same advances are claimed, involving the identical transactions; in fact the evidence in both cases is substantially the same. No complaint is made that in the chancery suit ample opportunity was not given the defendant to cross-examine the two witnesses, and we think it clear, therefore, that the evidence given on the former trial was properly admitted. Mclnturff v. Insurance Co. of North America, 248 Ill. 92; London Guarantee & Accident Co. v. American Cereal Co., 251 Ill. 123.

It is also urged that the court improperly permitted the witness Jane B. Sullivan to refer to a memorandum for the purpose of refreshing her recollection, “which memorandum, the evidence shows, was not prepared by her from her own personal knowledge and recollection of the transactions in question, and was not prepared by her from books of original entry, or from books of account competent as evidence in the case.” Of course, it would be immaterial whether the witness or some one else made the memorandum if it was used only for the purpose of refreshing her recollection. From the record it appears that the memorandum was more in the nature of an index to enable the witness to refer to the books. This same witness testified in the chancery suit, which testimony we held on the former appeal was competent. She gave substantially the same testimony on the trial of the instant case, and since we held on the former appeal that the testimony of this witness was competent, that holding is the law of the ease on this appeal. Moreover we think there was no valid objection to this testimony.

It is also urged that there was no privity of contract between Mrs. Eden and the defendant Laughlin; that he promised to pay the money advanced to him to the persons from whom it came; that no such promise was made to Mrs. Eden, and that therefore her administrator could not recover, except on the theory of a novation, which was not proven. We think there was sufficient evidence to warrant the jury in finding that the money advanced was advanced by Mrs. Eden for the purchase of the stock of Laughlin and that he agreed to pay the same to her. The method in which the account was kept upon the books was fully explained by the evidence.

It is also contended that it was error to permit counsel for plaintiff to read in evidence parts of the original answer filed by defendant in the chancery suit. It was objected that it was incompetent and immaterial, as it was not a part of the suit at law, and that there was no proof that the signature to the answer was that of the defendant; that the answer was not under oath, as answer under oath was waived in the bill, and that afterwards an amended answer was filed. We think none of these objections can be maintained. The answer was a part of the files in the case, and made on behalf of th¿ defendant to the very matters in controversy, and we see no reason why the admissions in the answer could not be brought to the attention of the jury. Robbins v. Butler, 24 Ill. 387.

Complaint is made of the giving of an instruction submitted on behalf of the plaintiff, which told the jury that if they found for the plaintiff, and if they found from the evidence that the defendant agreed to pay interest at 6 per cent, per annum, they should include interest, at this rate on the amount they found due. It is said that this instruction is misleading, and a hypercritical analysis of the different phrases and clauses of the instruction is made, which it would serve no useful purpose to set forth here. Upon a careful reading of the instruction, while it might be subject to some of the objections made, yet we think it was not at all misleading. It is also contended that the instruction is wrong in authorizing the inclusion of any interest in the verdict, and it is said to be further erroneous in authorizing interest at 6 per cent. The defendant himself testified and admitted that he owed some person or corporation more than $19,000, upon which he agreed to pay interest at the rate of 6 per cent., and he offered to pay the same to the party entitled to receive it. It is argued, as we understand it, that no interest could be recovered for the reason that there is no claim that the payment of the money was withheld by any unreasonable or vexations delay, and even if there were such claim no more than 5 per cent, could legally be allowed. We think the question of whether there was an unreasonable delay is immaterial, as it is in no way involved. It was undisputed that there was an express agreement to pay 6 per cent. But it is said that interest at 6 per cent, is not recoverable in Illinois under the statute, unless the agreement to pay such rate is in writing; that there was no such writing in this case, but that the promise, if any, was oral. On the other hand, plaintiff contends that the answer of the defendant in the chancery suit was a sufficient writing to comply with the statute. In the view we take of the point it will be unnecessary to pass on plaintiff’s contention. Interest is a creature of statute, and in this State section 1 of chapter 74, Rev. St. (J. & A. ft 6690) authorizes interest at the rate of 5 per cent, where the agreement is oral. Section 2 of the same Act (J. & A. 6691) allows interest at the rate of 5 per cent, after the money becomes due, where no rate has been agreed upon, and section 4 (J. & A. U 6693) provides that in all written contracts, it shall be lawful for the parties to stipulate or agree that 7 per cent, per annum or any less sum shall be taken and paid. Section 6 (J. & A. If 6695) provides that any agreement made for a greater rate than 7 per cent, shall constitute usury, and in such case no interest can be recovered, and section 7 provides that the defense of usury shall not be allowed unless specially pleaded. Section 1, prior to July 1, 1891, authorized interest at the rate of 6 per cent., and it was held .in the case of Friend, v. Engel, 43 Ill. App. 386, that a higher rate than 6 per cent, could be stipulated for only in written contracts. See also, Edler v. Uchtmann, 10 Ill. App. 488, and Farmer v. Mitchell, 128 Ill. App. 297. Usury signifies the taking or contracting for more than the lawful rate of interest for the loan of money. Bowman v. Meely, 151 Ill. 37. If, therefore, we assume that the agreement by the defendant to pay 6 per cent, was oral, the contract would at most be usurious, and such defense must be pleaded as required by statute. But no such defense is made, and there is, therefore, no reason why the defendant should not be required to pay the rate of interest which he agreed upon, viz., 6 per cent., which is the amount included in the verdict.

Complaint is also made of the allowance of certain items in the bill of particulars, which defendant claims should not have been included in the judgment. Of course, as the verdict is general, we cannot tell what particular items were allowed by the jury. In this connection defendant’s counsel also says that the principal amount claimed in the bill of particulars is $24,261.83. The items mentioned in the bill of particulars which defendant contends the jury should have been instructed to disregard aggregate about $10,500. If this is deducted from the sum claimed in the bill of particulars, it would leave a balance of about $13,500. Manifestly, therefore, counsel’s contention that the jury should have been instructed to disregard approximately $10,500 is inconsistent with defendant’s own admission, for he admits that he owes some one $19,900, and as we think the evidence warranted the jury in finding that whatever sum the defendant owed was to Mrs. Eden or her administrator, it is obvious that many of counsel’s objections are untenable. Moreover, we think the evidence was sufficient to warrant the jury in finding in favor of plaintiff as to the several items, for the evidence as to each item is substantially the same — the same system of bookkeeping and the entire scheme as to the different items was the same, which the evidence tends to show was carried out at the suggestion of the defendant.

The judgment of the Circuit Court of Cook county is affirmed.

Affirmed,


text:
    Frank Lopata, Appellee, v. John Jaros, Appellant.
    Gen. No. 23,909.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Edwabd T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed July 10, 1918.
    Statement of the Case.
    Action by Frank Lopata, plaintiff, against John Jaros, defendant, to recover a balance claimed to be due for goods sold and delivered. From a judgment for plaintiff for $480.86, defendant appeals.
    Edward J. Herdlicka, for appellant.

      Abstract of the Decision.
    Saxes, § 329

       — when evidence supports verdict in action for balance of purchase price. In an action to recover a balance claimed to be due for goods sold and delivered, evidence held sufficient to support a verdict for plaintiff.
    Ryan & Lewis, for appellee.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Calista Pierce, Appellee, v. Eugene G. Pierce et al., Appellants.
    Gen. No. 24,382.
    (Not to he reported in full.)
    Interlocutory appeal from the Superior Court of Cook county; the Hon. Denis E. Suxxivan, Judge, presiding. Heard in the Branch Appellate Court.
    Affirmed.
    Opinion filed July 10, 1918.
    Statement of the Case.
    Bill by Calista Pierce, complainant, against Eugene G. Pierce, Mary P. Goodison, George Allan Goodison, her husband, George B. Williams and Charles Hudson, defendants, to set aside an oral contract for the transfer of -certain personalty and for a temporary injunction to restrain defendants from transferring, assigning, incumbering or disposing of certain shares of stock and from receiving dividends thereon, and also for the appointment of a receiver to take and hold such stock pending a hearing. From an order appointing the receiver and directing defendants to turn over the stock to him, defendants Pierce and Williams appeal.
    Abstract of the Decision.
    1. Motions, § 11

       — when failure to comply with rule as to notice of is immaterial. An order appointing a temporary receiver, entered in a matter of emergency, will not be reversed because the rule of the Superior Court requiring that where no attorney or solicitor has appeared of record, notice shall be given the opposite party 24 hours before the hearing of the motion, and that the notice be written, was not complied with, where it appears that defendants were represented by counsel on the application for the appointment of the receiver.
    2. Motions, § 11* — what is essential to dispensing with rule as to notice of. To warrant the dispensing with the 24-hour notice of motions required by the Superior Court rules, it is not necessary that there be a finding of record by the trial judge that the matter is one of emergency.
    3. Receivebs, § 3* — when order appointing temporary not disturbed. It is no ground for reversing an order appointing a temporary receiver of property, the sale or incumbering of which has been enjoined, that the persons enjoined are responsible persons and will not be presumed to intend a violation of the injunction.
    4. Injunction, § 189* — when bill presents prima facie case for against transfer or incumbering' of corporate stock. A prima facie case is stated by a bill to restrain the transfer'or incumbering of certain shares of stock in a business corporation by allegations that complainant inherited the business from her deceased husband, which she afterwards incorporated; that she transferred the certificates of stock to certain of the defendants in consideration of thei^ oral promise to allow complainant sufficient money to support herself during her lifetime; that such defendants further agreed not to transfer any of the stock during her lifetime; that in violation of this agreement a certain defendant transferred some of the stock and threatened to transfer more of it, and refused complainant the support promised, although demanded by her.

      Charles Hudson, for appellants.
    Mayer, Meyer, Austrian & Platt, for appellee.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

5. ' Injunction, § 174* — when corporation not necessary party defendant. On a bill to enjoin certain persons from transferring or incumbering shares of corporate stock alleged to belong to defendants and for the appointment of a temporary receiver to take charge of the stock, to which the stockholders and officers of the corporation are made defendants, the corporation is not a necessary party so as to make a failure to join it a ground for the reversal of the order appointing the receiver.

6. Receivers, § 3* — when appointment is proper. The appointment of a receiver to take charge of personalty and maintain its status quo pending the decision of the court upon a bill which has been brought to enjoin the transfer or incumbering of the property is proper.


author: Mr. Justice Taylor

text:
    John J. O’Connor, Appellee, v. Maryland Motor Car Insurance Company, Appellant.
    Gen. No. 23,569.
    1. Automobiles and garages, § 7

       — when recovery may he had on automobile theft insurance policy after finding and tender of automobile. Where an automobile insurance policy provides that the loss shall be payable sixty days after notice, proof of loss, etc., an insured whose car is stolen may recover thereunder where he complies with the provisions of the policy as to notice, proof of loss, etc., although the car is subsequently found and tendered him by the insurer, where it was found more than sixty days after the giving of notice and proof of loss, notwithstanding the policy also provides that it shall be optional with the insurer “to repair, rebuild or replace the property lost or damaged with other of like kind and quality within a reasonable time, on giving notice, within thirty days after the receipt of the sworn statement of loss herein required, of its intention so to do; but there can be no abandonment to this Company of the property described.”

      2. Insurance, § 120

       — how contract construed in case of doubt. In case of doubt, an insurance contract is to be construed in favor of the insured rather than of the insurer.
    3. Insurance, § 171* — when assignment without insurer’s consent does not avoid policy. The provision in an insurance policy that it should be void if assigned except with the insurer’s assent cannot operate to defeat a policy assigned by the insured after the loss for which recovery under the policy is sought had taken place.
    Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Pry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed July 10, 1918.
    Robert J. Folonie, for appellant.
    Adler, Lederer & Beck, for appellee.

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

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

   Mr. Justice Taylor

delivered the opinion of the court.

The plaintiff, John J. O’Connor, having lost an automobile, upon which he had a theft policy in the defendant company, brought suit and, pursuant to a directed verdict, recovered a judgment in the sum of $1,375 and costs. From that judgment this appeal is taken.

The suit was begun on February 21,1917. The statement of claim recited that the automobile was stolen September 10, 1916; that notice of the theft was given to the defendant on September 11, 1916, and proof of loss waived by the defendant; that under the terms of the policy the sum of $1,375 became due on November 10,1916, and that the plaintiff claimed interest thereon at the rate of 5 per cent, per annum from December 10, 1916. The defendant, in its affidavit of merits, recited that the ‘1 automobile in plaintiff’s statement of claim mentioned was not on September 10, 1916, lost to the plaintiff by theft; * * * that said insured automobile was recovered before commencement of this suit, in about November, 1916”; that it was placed by the police in a garage in Chicago, but that the plaintiff refused to receive it “stating that he would not take it because he had bought another automobile and did not want this one ’ ’; that the plaintiff assigned his policy to Louis Oeyler Company in violation of the terms of the policy; that the automobile is not lost and that the plaintiff has failed to comply with the provisions and conditions of the policy.

On April 6, 1916, the plaintiff, being the owner of a Hudson automobile, took out a policy of insurance for $1,375 in the Maryland Motor Car Insurance Company, being the defendant company. The policy, among other things, insured the plaintiff from March 31, 1916, to March 31, 1917, for $1,375 “against loss or damage by theft, robbery or pilferage. ’ ’ The policy contained the following: “In the event of loss or damage under this policy, this Company shall be liable only for the actual cost of repairing or, if necessary, replacing the parts damaged or destroyed. It shall be optional with this Company to repair, rebuild or replace the property lost or damaged with other of like kind and quality within a reasonable time, on giving notice, within thirty days after the receipt of the sworn statement of loss herein required, of its intention so to do; but there can be no abandonment to this Company of the property described.” The policy also provided that the loss, if any, should “be payable sixty days after” certain notice, proof of loss, etc.

On September 10, 1916, plaintiff’s automobile, which was left standing at the northwest corner of Randolph and La Salle streets, Chicago, was stolen. The automobile was found by the police on November 13, 1916, and placed in the United Oarage in charge of the city custodian. On November 15, 1916, the plaintiff went to the United Oarage and identified the automobile as being his, the one that was lost. The front and rear bumpers and searchlight were missing. The wheels were painted white and “the car had a generally disordered appearance.” On September 11, 191.6, the plaintiff notified one Claypool, an employee of one Brennan, a representative of the defendant company, of the loss. On September 12, 1916, plaintiff received a letter from one C. D. Greene that he, the latter, had been advised of the theft and was taking steps, through the different police departments, to try to find it, and that he represented “the Maryland Motor Car Insurance Company on losses” of that character. On November 17, 1916, one Brennan, also a representative of the defendant company, wrote to the defendant at Baltimore, Maryland, in part, as follows: “On or about September 10th this car was stolen from a place near La Salle & Washington Streets. He reported the claim to us immediately, and we, in turn reported it to Mr. Greene, our adjuster. We could at that time have taken a Proof of Loss from Mr. O’Connor, but did not do so until we attempted to secure his car. I understand that you gave a reward for the return of the car. I considered that his notifying us was the same as a Proof of Loss. When the sixty days were up, he demanded his money in payment of the loss. The car was not found at that time, but it was two or three days after. The car is now available but the assured refuses to accept the car, as in the meantime he has bought a car. * * * Although, the car is now available to be turned over to claimant, it was not found until the sixty days were up as provided in the policy and I do "not consider the fact that he did not sign a Proof of Loss as a defense, because he notified us immediately as soon as the car was stolen and we could have secured a Proof of Loss at that time. Our presenting him, the car at the present time does not fulfil the terms of the insurance, and he will not accept it. We recommend as agents of the Company that this Company pay the amount of insurance and accept the stolen car as salvage. I think it business policy to do this and we cannot satisfy the assured otherwise.”

Meanwhile, the plaintiff had made a demand in writing for the amount of the loss. The plaintiff bought a new car on September 15, 1916, and indorsed his policy of insurance in the defendant company as follows: “My interest in this policy is hereby assigned to the Louis Geyler Company.” The assignment was made according to the testimony of the plaintiff “as collateral on a note for $1,375.00, in partial payment of the new car. ’ ’ The evidence shows that Brennan and Claypool, representatives of the defendant company, stated that there was no objection to the claim of the plaintiff that his loss had been established and he would get his money. At the close of all the evidence, on a motion of the plaintiff, the court directed a verdict in the sum of $1,375, and, upon the verdict being returned, judgment was accordingly entered.

The automobile was stolen September 10,1916. Sufficient proof of loss was made on the next day. On November 13, 1916, the automobile was found by the police officers, and on November 15, 1916, the plaintiff received information that it was found and was offered the automobile, but refused to accept it. The policy of insurance provided indemnity in case of theft and that the loss should be payable sixty days after notice, proof of loss, etc.

The automobile having been found at a time more than sixty days after proof of loss, the question arises whether the plaintiff may recover. The suit was not brought until more than three months after the -finding of the automobile. Inasmuch as the policy provided that “the sum for which this company is liable pursuant to this policy, shall be payable sixty days after the notice,” etc., and as the automobile was not found prior to sixty days after the proof of loss, it is the claim of the plaintiff that his right to recover arose immediately on the expiration of the sixty days after the notice and proof of loss and was not divested when the automobile was found a few days later. No parallel case has been cited, but we have been referred to certain cases involving the construction of marine insurance policies. It is the claim of the appellant that, as the automobile was subsequently found, and at the time of the institution of the suit existed in specie, and as the policy contained the words “but there can be no abandonment to this company of the property described,” and as the object of the policy is indemnity and as the plaintiff’s action must be founded on the nature of his damnification as it really is at the time action is brought, no recovery can be had for total loss. It must be borne in mind that the policy in question insures against fire as well as theft, and an examination of the context of the word “abandonment” discloses that the insured has provided that “in the event of loss or damage” it should be “liable only for the actual cost of repairing or, if necessary, replacing the parts damaged or destroyed.” That it should be optional on the part of the insured “to repair, rebuild or replace the property lost or damaged with other of like kind and quality within a reasonable time, on giving notice * * * of its intention so to do.” Following the foregoing occur the words “but there can be- no abandonment to this Company of the property described.” Evidently that provision of the policy refers only to property which may be repaired, rebuilt or replaced. It may be that, under the terms of the policy, the insurer was entitled, upon giving notice within thirty days after receipt of certain information to the insured, to “replace the property lost.” However, a careful analysis of the text of the policy, pertinent to the subject of abandonment, leads us to the conclusion that it does not apply to the circumstances of this case. It may well be argued that, if the insured is bound to take the property whenever it is found, even though after the sixty days, then it is not true, as expressly stated in the policy, that the amount of liability ‘ ‘ shall be payable sixty days after the notice, ’ ’ etc. Of course the two obligations, the one on the insured to take the property when found and the other on the insurer to pay within sixty days after notice, are inconsistent — each excludes the other. As to the reason why the rights of the insured should be considered as fixed and inviolable, the language of Mr. Justice Caton in Norton v. Lexington Fire, Life & Marine Ins. Co., 16 Ill. 235, 246, which was a case which involved the subject of abandonment, is as follows: “ It is right that the assured should know with certainty what his rights are, and that when his claim has once become fixed to a legal demand for money, he may make his calculations upon that state of affairs, and not be liable to have such legal claim for money defeated by subsequent tender of the property insured. ’ ’ The case is not entirely free-from doubt. Completely satisfactory interpretation of the words of the policy is difficult. As, however, in case of doubt the contract is to be construed rather more favorably to the insured than the insurer, we are of the opinion that the judgment is correct. It is claimed by the defendant that as the policy provided that if any part of it should be assigned except by consent of the defendant, the policy would become void, and as the plaintiff on September 15, 1916, assigned his interest in the policy to Louis Geyler Company, that it is void and there can be no recovery. However, no objection was made at the trial that the plaintiff was not the proper party to sue. Under the circumstances, the loss having taken place before the assignment and the policy not then being rendered void, we know of no rule of law which prevents the plaintiff from maintaining suit.

Finding no error in the record, the judgment is affirmed.

Affirmed.


text:
    Stresenreuter Brothers, Appellee, v. Henry A. Knott, Appellant.
    Gen. No. 23,590.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Building and construction contracts, § 103

      - — when evidence supports verdict on note given in payment for work. In an action to recover on a promissory note given in payment for work performed under a building contract, evidence examined and held sufficient to support a judgment for plaintiff.
    2. Building and construction contracts, § 97* — when evidence is admissible to show that departure from terms was sanctioned. Where, by their conduct, the parties to a building contract waive a provision therein that authority to depart from its terms shall be in writing, in an action to recover on a note given in payment for work done under the contract, evidence offered by plaintiff to show that the departure from the terms was with the sanction of defendant’s proper representative is admissible.
    3. Building and construction contracts, § 83* — what is not condition precedent to suit by contractor on note. Where a promissory note is given in payment of work done under a building contract, it is not necessary that the question of the damages, which the maker of the note claims to have suffered by reason of a deviation from the plans, be referred to the architect for determination before the contractor can bring suit on the note.

      Appeal from the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed July 10, 1918.
    Statement of the Case.
    Action by Stresenreuter Brothers, a corporation, plaintiff, against Henry A. Knott, defendant, to recover on a promissory note. From a judgment for plaintiff for $1,996.91, defendant appeals.
    A. M. Cross, for appellant.
    C. W. Greenfield, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Edward Smorawski, by Theodoria Smorawski, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 23,768.
    1. Appeal and ebbor, § 1411

       — when judgment not disturbed. In an action to recover for personal injuries, where the evidence, though conflicting, is sufficient to support the verdict, a judgment for plaintiff will not be interfered with.
    2. Carriers — what care required to protect child found riding on steps of street car. Where the conductor of a street car sees a child less than 7 years old riding on the step, he must endeavor reasonably to protect him against his own indiscretion.
    3. Cabbiebs — when evidence supports verdict for injuries received by child found riding on street car while attempting to alight. Evidence that the conductor of a street car, on seeing plaintiff, a child under 7 years of age, standing- on the step of the car as it was moving, stamped his foot and ordered plaintiff to get off, whereupon plaintiff attempted to alight and, in so doing, fell and was injured, is sufficient to support a verdict for plaintiff.
    4. Damages, § 120* — when not excessive. A verdict of $2,000 is not excessive where the injuries received were a contusion of the head, stunning plaintiff, and abrasions and contusions of the knees and elbow, and will result in plaintiff having a wryneck.
    Appeal from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed July 10, 1918.
    C. L. Mahony and Watson J. Ferry, for appellant; W. W. Gurley and John R. Guilliams, of counsel.

      S. P. Douthart and Fred C. Smith, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

Edward Smorawski, a minor, having been injured by falling from a street car, brought suit, by his next friend (hereinafter called plaintiff), against the defendant, the Chicago City Railway Company. The cause was tried twice. At the first trial the plaintiff recovered a verdict which, on motion for a new trial, was set aside. At the second trial plaintiff recovered a verdict and judgment for the sum of $2,000. This appeal is taken therefrom.

The plaintiff, at the time of the accident, Sunday, July 12, 1914, was a child between 6 and 7 years of age who lived with his parents at 4750 Racine avenue, Chicago. During the week preceding the accident he had been at his uncle’s in the town of Pullman and, on the day of the accident, accompanied by his uncle, about 11 o’clock in the forenoon, returned to his home, 4750 Racine avenue. The uncle shortly afterwards, about 3 o’clock in the afternoon, started back to his home in Pullman. The testimony of the plaintiff is that some time the same afternoon he started to go back to Pullman to see his uncle and went to the intersection of Racine avenue and 47th street to board a southbound car for that purpose. There is some conflict in the evidence as to the time when the plaintiff boarded the street car and when the accident occurred. The variance is from 4 o’clock in the afternoon up to 7 o’clock in the evening. The plaintiff boarded the street car at 47th street and Racine avenue. A number of people got on practically at the same time that he did. He says that he got on the back part of the step and when the car started held on with his hands. When asked whether the conductor did anything, he answered: “Yes, he stamped his feet and say, ‘Get off’ and I got scared and fell off. When the conductor stamped Ms foot he was about 3% feet from me and was looMng at me. The car was going pretty fast when I fell off. ’ ’ ■ He further testified that, although he had three cents in his pocket at the time, he thought he “would get on free.”

Shortly after the car started plaintiff fell off and was injured. Plaintiff’s theory of the accident and why it occurred is supported by the testimony of two witnesses who claim to have viewed it from the sidewalk in front of number 4724 Bacine avenue, where one of them — Mrs. Kwiatkowski — resided. The testimony of the latter is that at about four o’clock while she was on the sidewalk in front of her home she saw the plaintiff standing on the back part of the car step holding on with Ms hands, that the car was just passing where she was; that he had one hand on one grab iron and one on another; that he was facing the conductor; that the conductor stamped his foot and said, ‘ ‘ Get off” and after the car had gone a short distance, the plaintiff dropped down. The witness Helen Malokowski, who lived about the fourth house from the plaintiff’s home, testified that she saw the conductor “stamp Ms foot at the boy to get off; that the plaintiff was on the bottom step and had a hold of the grab irons; that she had heard the conductor say to him ‘get off’; that after the car had gone about a length and a half the plaintiff fell off.” On the other hand, the witness Bates, who got on the car at Bacine and 47th street, testified that he saw the plaintiff standing on the car step where the exit was; that he did not remember that he heard the conductor say anything to the boy and that he did not hear any noise from the conductor stamping his foot; that he does not remember that he looked at the conductor’s feet. Likewise, the witness Bates, son of the former witness, testified that he got on the car at 47th and Bacine with his father, two sisters-in-law and Ms mother; that he saw plaintiff get on the exit entrance, on the body end; that he had hold of one rail with both hands; that he did not hear the conductor say to him “get off” nor anything of that ldnd; that the conductor, so far as he saw, did not stamp his foot at him. The witness Frank Archer testified that he saw the plaintiff on the step of the car holding the rail which is attached to the body of the car with one hand; that he did not hear the conductor say to him “get off” or anything of that kind nor did he see the conductor stamp his feet at him; that he was not looking at the conductor’s feet at any time. The witness Ebermeir testified that he saw the plaintiff on the step with his hand on the body handle but did not hear the conductor say “get off” and did not hear or see the conductor stamp his feet; that “he did not see whether he moved or didn’t move his feet.” The conductor Curran testified that when he first saw the boy he was standing on the step at the exit next to the body of the car; that when he saw him there he reached for the bell to ring for a stop at the next corner, and “as I did he jumped off and I gave three bells”; that he did not say to the boy to “get off” nor stamp his foot.

The evidence shows that after the plaintiff fell from the car he was picked up and taken to a step in front of a house in the neighborhood, and shortly afterwards taken to his home. The chief injury which it is claimed plaintiff sustained as a result of the fall from the car is an affection commonly called “wryneck.”

It is contended by the appellant that (1) the verdict is against the manifest weight of the evidence; (2) that the verdict is grossly excessive.

The determination of the facts seems to be chiefly dependent upon the credibility of the witnesses. According to the three witnesses for the appellee the plaintiff was frightened from the car by reason of the conduct of the conductor. On the other hand, the testimony of the five witnesses called by the defendant is, substantially, that, as far as they saw and heard, the plaintiff did not leave the car as the result of fear inspired by anything said or done by the conductor. There are, of course, many slight inconsistencies and discrepancies in the testimony. As we view the record, however, it was a case peculiarly appropriate to the judgment of a jury.

Are we now, from a close and careful analysis of the record, able reasonably to conclude that the jury were wrong? Of course, whom to believe, we do not know — quite certainly, at least — as well as the jury. The evidence for the defendant was a direct negative of that for the plaintiff. It may be said, of course, that the evidence on the part of the plaintiff was that certain actual visible overt acts on the part of the conductor took place, whereas, the evidence on the part of the defendant — with the exception of the conductor’s— was of a negative; that they, the witnesses, did not see or hear certain things, and that, therefore, the testimony on behalf of the plaintiff is more persuasive than that on the part of the defendant and that the discrepancy in the number of witnesses is thus partially balanced. It may be that the conductor stamped his foot and ordered the plaintiff off, and that none of the defendant’s witnesses heard or saw what took place. If such were the fact, then the evidence of all the witnesses — excluding that of the conductor — is true and the verdict entirely justified.

As the plaintiff, at the time of the accident, was less than 7 years of age, and as it was the legal duty of the conductor when he saw the child on the step to endeavor reasonably to protect him against his own indiscretion (Hayes v. Sampsell, 274 Ill. 258),.and as the evidence on the part of the plaintiff — if believed— made out a plain case of negligence on the part of the defendant, and as the evidence for the defendant, in one view of it, at least, was reconcilable, we are of the opinion that the judgment must stand.

It is claimed that the verdict is excessive. The amount $2,000. The evidence as" to the injuries is somewhat confusing. There is no doubt but that the plaintiff was injured by the fall. Immediately after falling he was taken to the steps of a nearby house and then taken home. He was evidently stunned. There is some evidence that for a while he was unconscious. The doctor who attended him the same day that he was injured found him on a table at home “unconscious.” He testified, “He had contusion of his head, especially of the back part of the head, and a little cut on the side of the head, and abrasions and contusions of the elbow and knees, ’ ’ that he cleaned up and bandaged the wounds, applied antiseptic solution and ordered cold applications to the head; that when he left him he was ‘ ‘ semiconscious. ’ ’ The doctor attended him about ten times. It is the claim on behalf of the plaintiff that as a result of the injuries from the fall his neck became crooked; what is commonly known as wry-neck.

There is some confusion in the evidence of the plaintiff, himself, as to the condition of his neck before the fall, but, on the other hand, his mother and father, his aunt and uncle all testified that prior to the fall his neck was all right. The evidence shows that after the fall his neck became crooked and will remain so. In the face of the evidence as to the injuries suffered, we do not feel justified in concluding that the jury erred in fixing the amount of the damages suffered.

As to the declaration, as amended, we think it stated sufficiently the cause of action.

Finding no error in the record, the judgment is affirmed.

Affirmed.


text:
    Louis Mitchell, Appellee, v. Edward Kramer and Maurice Kramer, trading as Kramer Brothers, Appellants.
    Gen. No. 23,894.
    1. Automobiles and oarages, § 3

       — when evidence supports verdict for injuries due to collision between automobile and wagon. In. an action to recover for personal injuries received by a collision between an automobile of defendants turning the corner at a rate of from 5 to 15 miles an hour and a wagon standing at the curb and having a light, evidence held sufficient to support a verdict for plaintiff.
    2. Venue, § 14* — when petition for change of is properly denied because not made in time. A petition by defendant for a change of venue on the ground of the prejudice of the trial judge is properly denied as not having been made in apt time where it appears that the suit was instituted in September, 1914, was dismissed for want of prosecution in November, 1915, the order of dismissal was vacated by stipulation before such judge in March, 1916, and the cause reinstated, the cause came on to be heard in April, 1917, whereupon it was continued, on plaintiff’s motion, to the following day, on which day plaintiff waived trial by jury and defendant petitioned for a change of venue, such petition not stating, however, when defendant first learned of the judge’s prejudice.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed July 10, 1918.
    Grossman & Ferguson, for appellants.
    No appearance for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

The plaintiff, Louis Mitchell, brought suit for personal injuries, and recovered judgment in the sum of $200. This appeal is taken therefrom.

At about 6 o’clock on the evening of February 21, 1913, the plaintiff, a man about 47 years old, who had been employed as a driver for Mitchell & Goldstein for over 16 years, drove a wagon east on the south side of 70th street, between Kimbark avenue and the Illinois Central railroad tracks, and stopped in front of a store of one Ogram. The plaintiff took out some apples and oranges, and after he had been there about one-half hour and had been told by his “boss” that he was ready to go on, the plaintiff, preparatory to driving on, got up on the wagon and sat on the front seat. The horses were facing east, and the wagon along and against the curb. The weather was wet and freezing and vision was difficult. An automobile run by one Vogwill, a chauffeur for Kramer Brothers, the defendants, came around the corner of 70th street headed towards the Illinois Central tracks and, going at from 5 to 15 miles an hour, ran into the wagon, striking it in the middle of the tailboard. As a result, the plaintiff was thrown back from his seat into the wagon and injured. He was then taken home and treated by a physician who found that he was suffering from shock and pain in his back. The doctor visited him eight or ten times between February 21st and February 28,1913. The wages of the plaintiff as driver for Mitchell & Goldstein were $25 a week. There is some slight confusion in the evidence as to whether there was a lighted lamp attached to the rear of the wagon at the time of the collision. However, the testimony of Olson and Ogram and the plaintiff seems to be amply sufficient to justify the conclusion that there was, at the time of the accident, a lighted lantern attached to the rear of the wagon. The cause was tried without a jury and judgment entered in favor of the plaintiff in the sum of $200. No brief has been filed by the plaintiff.

It is claimed by the appellants that the judgment is not supported by the evidence. We are of the opinion, however, that the evidence plainly shows negligence on the part of the defendants; so plainly that a disenssion of the evidence would be entirely superfluous.

It is also claimed by the appellants that they should have been granted a change of venue. The suit was begun on September 23, 1914; the defendants were served September 24, 1914. They filed an appearance on September 28, 1914. On September 29, 1914, an order was entered extending for 5 days the time for filing their affidavit of merits.'

On November 15, 1915, this suit was dismissed for want of prosecntion. On March 30, 1916, before Judge Gemmill, the order of November 15, 1915, dismissing the cause was, pursuant to a stipulation, vacated and the cause reinstated. The record then shows that on April 16, 1917, on motion of the plaintiff — also before Judge Gemmill — an order was entered “that a trial by jury * * * be waived and that this cause be submitted to the court for trial without a jury,” and that afterwards, on April 17, 1917, the defendants again, before Judge Gemmill, moved the court for a change of venue — from Judge Gemmill — and that that motion was, by him, overruled.

On the other hand, the “stenographic report,” signed by Judge Gemmill, recites that “heretofore on, to wit, the 16th day of April, A. D. 1917, at 2 o’clock p. m., * * * the case coming on to be heard before his honor, William N. Gemmill, said cause was peremptorily called for trial and the plaintiff moved the court to continue said cause until the 17th day of April, A. D. 1917, and stated to the court that he would waive trial by a jury; that on the 17th day of April, A. D. 1917, said cause was again called for trial by the court, and the- plaintiff, by his attorney, waived trial by a jury.” That the defendants then moved the court— Judge Gemmill — to grant them a change of venue and presented a petition in support thereof; that the petition recited that they feared they would not receive a fair trial “because the said William N. Gemmill, judge of said court, is prejudiced against them.” The petition did not state when the petitioners first learned that Judge Gemmill was prejudiced against them. Under the circumstances, we are of the opinion that the motion was not in apt time and that the refusal of the motion is no ground for reversal. Finding no error in the record, the judgment is affirmed.

Affirmed.