text:
    Providence Washington Insurance Company, Appellee, v. Western Union Telegraph Company, Appellant.
    Gen. No. 14,894.
    1. Negligence—when telegraph company liable for failure to deliver telegram. If a telegraph company receives and fails to transmit and deliver a telegram by an insurance company to its agent, which on its face shows that it pertains to the cancellation of insurance, the telegraph company is liable for the amount paid by the insurance company in settlement of the policy, a fire having occurred, which policy had such telegram been delivered, would have been cancelled prior to the fire which resulted in the loss.
    2. Evidence—when erroneous admission of parol, will not reverse. If the parol evidence erroneously admitted was merely cumulative and the fact which it tended to prove was otherwise clearly and properly established, a reversal will not be ordered.
    3. Measure of damages—in action for failure to deliver telegram. If as a result of the failure to transmit and deliver a telegram an insurance company was required to pay a fire loss, the proper measure of damages to be awarded such company is the amount of the loss so paid plus interest at five per cent from the date of payment.
    Action ex contractu. Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed February 15, 1910.
    Rehearing denied March 4, 1910.
    Statement Tby the Court. This action ex contractu was brought by the Providence Washington Insurance Company, appellee, against the Western Union Telegraph Company, appellant, to recover damages sustained because of the non-delivery of a telegram.
    The controlling facts of the case are not controverted. The record shows that on December 3, 1901, the plaintiff issued to Prank B. Silk its policy of insurance covering his one-story paper mill and engine and boiler house, located on Wilson street, Newark, Ohio, for $1,000. The policy contained the following-provision :
    “This policy, shall be canceled at any time at the request of the assured, or by the Company by giving five days’ notice of such cancelation.”
    On January 2,1902, the policy was assigned by Silk, with the consent of the plaintiff, to the Newark Paper Company, which had acquired the ownership of the insured property.
    On or about April 29, 1902, Mr. F. W. Ransom, the state agent of the plaintiff, inspected the risk of the Newark Paper Company, and finding it was undesirable he went to the office of defendant at Van Wert, Ohio, and wrote and delivered to its operator the following telegram:
    “Vau Wert, Ohio, April 30, 1902.
    M. J. Reese, Agt.
    Providence Washington Ins. Co.
    Regret must cancel paper mill line. Daily was passed inadvertently.
    F. W. Rahsom.”
    At the time this telegram was delivered to defendant’s operator at Van Wert, Ohio, the full amount charged for its transmission was paid to defendant’s agent by Ransom. The telegram was delivered to the operator at or before 11:30 o’clock in the morning of April 30th, and the testimony shows that had the telegram been sent direct to Newark, Ohio, it would have reached plaintiff’s agent at about 1:30 or two o’clock in the afternoon of April 30th.
    M. J. Beese was then the local agent of plaintiff at Newark, Ohio, and the agent who had written the policy. Beese was in Newark at the time the telegram should have reached Newark, and his office was only, about half a block from defendant’s office and was also very near to the office of the Newark Paper Company.
    The telegram was never transmitted by the defendant to Beese. It was never sent to Newark, Ohio. It went to New York City, New York, addressed merely “Agent of Providence Washington Ins. Co., Newark, Ohio,” and was there delivered to plaintiff’s agent, and finally reached plaintiff’s manager in Chicago through the mails. Beese, however, received a letter from the Chicago office of the plaintiff in the afternoon of May 2,1902, notifying him to cancel the policy. He immediately served notice of cancelation of the policy upon the vice-president and general manager of the Newark Paper Company, and it was agreed that the policy would be canceled under its terms and surrendered to Beese in five days, at which time Beese was to pay the Paper Company the return premium.
    On May 6, 1902, at seven o’clock p. m. the property covered by the policy was destroyed by fire. A claim was made by the Newark Paper Company on plaintiff upon the policy, and plaintiff was compelled to pay on the loss $1,200, for which amount it settled a judgment for $1,636.94 recovered against it in the Common Pleas Court, at Newark, Ohio.
    The case was tried before the court without a jury. The court found the issues for the plaintiff and entered a judgment on its findings for $1,365, being the amount of the payment made by plaintiff with interest thereon at five per cent.
    West, Eckhart & Taylor, for appellant.

      Bates, Harding, Edgerton & Bates, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The record presents no answer to the negligence averred and proved by the plaintiff. Accordingly defendant’s counsel, at the outset of their argument, say: ‘■For the purpose of this argument it will be conceded that appellant did not use reasonable diligence in the transmission and delivery of the telegram in question, and that it thereby failed to fulfill its contract.”

It is contended, however, that such failure did not directly and proximately cause the damage for which plaintiff is seeking to recover in this action, and that consequently the defendant is not liable therefor. It is argued that the-fire of May 6, 1902, was the direct and proximate cause of the loss, and that the fire was in no wise dependent upon, or caused by, the default of defendant.

In support of this position, Morrison v. Davis, 20 Pa. St. 171; Denny v. N. Y. C. R. R. Co., 13 Gray 481; Railroad Co. v. Reeves, 10 Wall. 176; and Hoadley v. Northern Transportation Co., 115 Mass. 304, are cited and relied on. The rule of proximate and remote cause, and of liability broadly laid down in those cases, is not the rule in this and other jurisdictions, where the negligence of the defendant is one of the proximate causes of the damage, as in this case.

In Wald v. P. C. C. & St. L. R. R. Co., 162 Ill. 545, the distinction between this case and the above case is clearly shown. In the Wald case appellant bought a ticket over the appellee’s railroad from Cincinnati to New York by the limited express. He checked his baggage. By the negligence of the railroad company the baggage was not placed upon the limited express train, but it followed on a later train. His baggage was destroyed by the Johnstown flood, after the limited express, on which appellant rode, had passed that point. The railroad company claimed and insisted that the proximate canse of the loss was the flood, and that therefore it was not liable. It was also claimed that the loss was caused by the act of God, which would excuse the company from liability. The Denny case and the Morrison case were cited to establish the same contention which is here made. The court refused to follow those cases, and say, at page 551 of the opinion: “A loss or injury is due to the act of God when it is occasioned exclusively by natural causes, such as could not be prevented by human care, skill and foresight; and where property, committed to a common carrier, is brought by the negligence of the carrier under the operation of natural causes that work its destruction, or is, by the negligence of the carrier, exposed to such cause of loss, the carrier is responsible. ‘It is universally agreed that if the damage is caused by the concurring force of defendant’s negligence and some other cause for which he is not responsible, including the act of God, * * * the defendant is nevertheless responsible if his negligence is one of the proximate causes of the damage.’ (1 Shearman & Redfield on Negligence, 4th ed., Sec. 39.) The doctrine is thus clearly stated by the Supreme Court of Missouri in Wolf v. American Express Co., 43 Mo. 421: ‘The act of God which excuses the carrier must not only be the proximate cause of the loss, but the better opinion is that it must be the sole cause. And where the loss is caused by the act of God, if the negligence of the carrier mingles with it as an active and cooperative cause, he is still responsible.’ ”

The court then says that in line with this principle many authorities hold, where the unnecessary delay of the carrier subjects the goods in his possession to a loss by an act of God which they would not otherwise have met with, that the delay itself is such negligence as will make him liable for the loss, and cites Michigan Central R. Co. v. Curtis, 80 Ill. 324, and cases in New York, West Virginia, New Hampshire, Missouri, Connecticut, California, Massachusetts and Pennsylvania.

The court in the Wald case, page 552, then proceeds to say: “We are inclined to think this is the correct doctrine. There are cases which hold to the contrary—among which are the . leading cases of Denny v. New York Central Railroad Co., 13 Gray, 481, and Morrison v. Davis, 20 Pa. St. 171—upon the ground that such delay, whether justifiable or not, should not be regarded as the proximate, but only as the remote cause of the loss. It will be found, however, upon examination, that most of these cases are cases where mere delay without other negligence brings the property lost within the operation of the natural cause defined to be the act of God. (Am, & Eng. Ency. of Law, 2nd ed., p. 596.) ”

In applying the doctrine, accepted in the Wald case as the correct doctrine, to the facts in that case, the court, at page 254, say: “If the appellee was guilty of negligence in failing to put the trunk upon the right train, it was guilty of negligence which brought the trunk in direct contact with the force known as an act of God.”

And so we see no escape from the conclusion that, under the Wald case, the conceded negligence of the defendant, in failing to transmit and deliver the telegram according to its contract, brought the insurance of the plaintiff under its policy in direct contact with the fire of May 6th and caused the loss to plaintiff as the direct result of defendant’s negligence.

It is urged that a party who has failed to perform his contract is not liable for speculative or uncertain results which might or might not have happened if the contract had been fulfilled. Hnder this proposition an argument in behalf of the appellant is predicated upon the assumption that Reese, the agent of the plaintiff at Newark, would not or could not have served the notice to terminate the insurance on the afternoon of April 30th, or 'in time to have terminated the policy under its provisions before the fire occurred.

The evidence shows that Eeese was in his office in the city of Newark on the afternoon when the telegram should have been delivered to him; It further appears from the evidence that Eeese’s office was within a very short distance from the Newark office of the defendant; and the property and office of the Newark Paper Company was within a short distance of Eeese’s office. There being no evidence on the subject, it is not to be presumed or conjectured that there was no one in charge of the Paper Company’s business and office, upon whom a notice could be served. We find no basis in the evidence for an inference that, under the circumstances disclosed by the evidence, Eeese would not have acted in obedience to the telegram if it had been delivered to him, or that he could not have served effectively the necessary notice, and we cannot, and the trial court could not, on a mere speculation that he would not or could not have served the notice, indulge in any presumption to that effect. On the other hand, the inference, if any is to be drawn on that point, would be in favor of the agent doing his duty and acting in accordance with the clear directions of his superior in authority, and in the line of his duty. In our opinion the argument in behalf of appellant on this point is without sufficient basis in the evidence.

We think there was no reversible error in admitting the testimony of Eeese to the effect that an action was brought by the Newark Paper Company against the plaintiff in the Court of Common Pleas in Newark; and that the action was to recover for loss under the policy in question. True, it was not the best evidence, but a certified copy of .the judgment recovered in that action was admitted properly in evidence. Competent evidence of a compromise settlement and payment of the judgment was also introduced. The draft made by the special agent to the order of the Newark Paper Co. for $1,200 on the plaintiff, and paid by the plaintiff in settlement of this judgment, was received in evidence. This draft on its face shows that it was given in full settlement of all claims against the plaintiff for loss and damage by fire which occurred on May 6, 1902, to property insured under the policy here involved. In this state of the evidence the admission of the testimony of Reese was harmless error. Moreover, the evidence of the action and judgment was unnecessary to plaintiff’s case.

The fact that the loss occurred and was paid was sufficient without the judgment. The admission of the unnecessary proof could not have affected the finding of the court, and the error was harmless.

In our opinion the evidence shows that the Newark Paper Company had the only paper mill in Newark, and that the policy in question was the only policy that had been issued by Reese covering any paper mill. The telegram, therefore, could have reference only to this policy, and if it had been received by Reese there could have been no doubt or uncertainty in his mind as to the policy which he was directed to cancel. The contents of the telegram were of a character to inform the agent of defendant who received it for transmission that it related to an important business transaction, and it disclosed on its face the nature of the business, so that the operator understood its meaning. We think the defendant company is legally chargeable with damages resulting from its negligence in failing to transmit the message. Postal Telegraph Co. v. Lathrop, 131 Ill. 575; Western Union Tel. Co. v. Crawford, 110 Ala. 460; Telegraph Co. v. Griswold, 37 Ohio State 301.

We think the amount paid by the plaintiff to the Newark Paper Company for the loss under the policy, with interest thereon at five per cent from the date of payment, was the correct measure of damages. There is no controversy of fact in the case. The law of the case is well settled. The liability is clear, and the amount is definite. Under such circumstances we think interest was properly allowed. It was a question for the court sitting as a jury, and we are unable to see any error in the conclusion to which it arrived. Chicago & Northwestern Ry. Co. v. Ames, 40 Ill. 249; Lake S. & M. S. Ry. Co. v. Hochstrim, 67 Ill. App. 514; Northern Trans. Co. v. MeClary, 66 Ill. 233.

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

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Raphael DeHaven, Plaintiff, Defendant in Error, v. United States Brewing Company et al., Defendants, William Tobin et al., Plaintiffs in Error.
    Gen. No. 14,901.
    1. Deam-shop Act—what evidence not incompetent. Held, that notes and chattel mortgages were competent as tending to show the straits to which the family of the intoxicant were reduced.
    2. Evidence—how cause for discharge established. If a person has been discharged and knows the cause of such discharge, he is competent to testify thereto.
    3. Vebdicts—what does not vitiate sealed verdict. It is not error for the court to receive a verdict of a jury even though they may have been allowed to separate after they had signed and sealed it, if when the jury reappeared in court at the hour of its convening, such verdict is read and the jury is polled and acknowledge that such verdict is their verdict.
    Action for damages under Dram-Shop Act. Error to the Muncipal Court of Chicago; the Hon. Habby Olson, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed February 15, 1910.
    John J. Swenie, for plaintiffs in error; T. F. Monahan, of counsel.

      Carl A. Ross, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

Raphael DeHaven, a minor, by his next friend, recovered a judgment against Wiliam Tobin and David McHale, defendants, in the Municipal Court of Chicago for damages under section 9 of the Dram-Shop Act, for $908.33, which the defendants by this writ of error seek to reverse.

From the record it appears that the plaintiff, Raphael DeHaven, was born February 19, 1904, and that he lived with his father and mother and five brothers and sisters in Chicago until the action was brought on September 11,' 1907. During this same period the defendants, plaintiffs in error, conducted two saloons at 748 and 752 Ogden avenue, respectively, about two blocks from plaintiff’s residence. The action was brought originally against four defendants. On the first trial a verdict of not guilty was returned as to two of the defendants, and a verdict of $600 was returned against plaintiffs in error. A new trial was granted as to the plaintiffs in error, and on the second trial the verdict and judgment under review resulted.

By the amended statement of claim filed before the second trial damages were claimed for injury to plaintiff’s person and means of support for three and one-half years through the intoxication of his father, Henry L. DeHaven, caused in whole or in part by intoxicating liquors sold or given to him by the defendants.

The evidence shows that Henry L. DeHaven, the father of the plaintiff, was a capable railroad switch-man during the period covered by the statement of claim, and that he earned in that employment, when he had a position with several railroads, a salary of $100 per month and sometimes more; that during that * period he habitually obtained intoxicating liquors at the saloons of the defendants, sometimes daily for a considerable time, and at other times three or four times a week. He was habitually drunk, and sometimes he was drunk on duty from liquor obtained' in whole or in part from the defendants. He was discharged from the service of several railroads because of his drinking habits, and was compelled to work at other employments at reduced rates of wages.

We think the evidence shows that the defendants knew that Henry L. DeHaven was an habitual drunkard when they sold or gave him intoxicating liquors, and that notices and warnings not to sell him liquors were given to both defendants, to which they gave no heed or attention.

The jury were warranted by the evidence in finding that in consequence directly of the defendants furnishing DeHaven with intoxicating liquors, the plaintiff, as a dependent member of DeHaven’s family, suf- . fered damages in his person and means of support.

We think the verdict is not against the weight of the evidence, nor is it excessive as against either of the defendants. The record shows that two verdicts have been rendered in this case against these defendants. We think a jury could not, as reasonable men, under the law and the evidence, find the issues in favor of the defendants.

It is urged that the court erred in admitting evidence relating to certain documents shown the witnesses Henry L. DeHaven and Mrs. DeHaven and the receipt of money on the papers and what was done with it. The papers themselves do not appear from the record to have been admitted in evidence. They were apparently used by the witnesses to refresh their memories as to the dates of borrowing money by DeHaven and what was done with the money so borrowed. It is claimed that some of the papers were notes and chattel mortgages, and that they were exhibited to the witnesses in the presence of the jury, and that they were influehced against the defendants by the sight of the papers, although they were not read in the hearing of the jury. We find no material-error in the rulings of the court. The evidence was competent on the question of damages, for it tended to show to what condition the family of DeHaven was reduced by his drunkenness, caused in part if not wholly by the liquors sold or given to him by defendants.

The evidence of Henry L. DeHaven to the effect that he was discharged from the service of the Pere Marquette Bail-road because he was drunk on duty, was competent. The objection that it was not the best evidence is not sound. If he knew the reason, he could testify to it as well as the officers of the company. He was in any event no less competent to testify to what was said in discharging him.

We have considered the instructions given to the jury and the objections to them by the defendants, and we are of the opinion that the instructions were in accord with the law of the case. The rights of the defendants were fully protected by the instructions given.

It is contended that the court erred in receiving the verdict because the jury were allowed to separate after they had signed and sealed their verdict and before it was returned into court, without the consent of the parties or leave of court. When the jury reappeared in court, at the hour of convening court, their verdict was read and the jury were polled, and the verdict was then entered of record. In C. C. C. & St. L. Ry. Co. v. Monaghan, 140 Ill. 474, where substantially the same thing occurred, the court held that it was a grave irregularity, but in the absence of proof that any of the jurors had been tampered with, it was not a sufficient ground for a new trial. It does not appear in this case that any of the jurors were improperly approached in any way in regard to their verdict in this case, or that they had conversed with any person about the case during the time they were separated. The court did not err in receiving the verdict or denying the motion for a new trial because of the irregularity.

The judgment is affirmed.

'Affirmed.


author: Mr. Presiding Justice Holdom

text:
    Herman Horstman, Appellee, v. Staver Carriage Company, Appellant.
    Gen. No. 14,940.
    1. Statute oe Limitations—when new cause of action not set up. In an action on the case for personal injuries if the original and amended declaration count upon the same negligence but the amended declaration adds a promise by the master to repair, a new cause of action is not set up.
    2. Verdicts—when upon exercise of ordinary care not disturbed. While it may be admitted that different minds might not agree as to whether the plaintiff was in the exercise of due care, if it cannot be said that the minds of reasonable men cannot agree that he was not in the exercise of such care at the time he was injured, the verdict of the jury will not he disturbed.
    3. Master and "servant—when doctrine of assumed rish does not preclude recovery. If the servant is ordered to do certain work and the machinery furnished by the master for the purpose of doing such work is defective or out of repair and the hazard assumed in obeying the order and doing the work was not so imminent that a person of ordinary prudence would not have incurred it, then the doctrine of assumed risk has no application.
    4. Master and servant—when doctrine of assumed rislc does not apply. While a belt in itself is simple and when not in action harmless, but when in use as an emery wheel, the motive force of which is steam, and out of repair- and defective, it is dangerous to the operator; held, under the evidence in this case, that the doctrine of assumed risk as applied in what are known as the “simple tool” cases, did not obtain.
    5. Master and servant—when promise to repair may be relied on. The law implies a promise to repair will be fulfilled within a reasonable time, during which time the servant has a right to rely on such a promise. In this case it appears there were two promises.
    ■ Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 1, 1910.
    Bulkley, Gray & More, for appellant.
    John W. Ellis and John A. Bloomingston, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Plaintiff sued defendant in an action on the case for personal injuries suffered while working for defendant. The relation of master and servant existed between the parties at the time of the accident. A trial before the Circuit Court with a jury resulted in favor of plaintiff and a judgment upon the jury’s verdict against defendant for $7,500. We are asked to reverse this judgment upon the contentions that the trial court erred in sustaining the demurrer to the plea of the statute of limitations filed to the amended declaration; that plaintiff was not in the exercise of ordinary care at the time he was injured; that plaintiff assumed the risk; that the tool was simple, so that the promise to repair did not suspend the rule of assumed risk; that there was error in instructing the jury, and that the verdict is not supported by the proofs.

Defendant employed plaintiff as a machinist. He was a machinist of considerable experience and had worked for defendant several years. He worked as a “polisher and grinder,” and at the time of breaking his arm was engaged in polishing a canopy top iron, which was forked shaped. The “polishing” was accomplished by placing the material to be polished in contact with the surface of a belt smeared with “emery” stretched over pulleys about five feet apart and caused to revolve over the pulleys, which furnished sufficient friction to polish whatever material was placed upon the emery side or top of the belt. Such arrangement is called an “emery wheel.” The belt is formed by splicing the ends and fastening them together with glue or cement. In the belt in question the lap over was about four inches. The lap ran against the pulley, the splice being underneath. The accident resulted from the end of the lap, which was loose, catching into the fork of the canopy iron which plaintiff was polishing, throwing his arm upwards and breaking it. Three or four days before the accident the attention of the foreman was called to the loose lap by plaintiff, who told him “that the belt had to be fixed, that he might get hurt.” The foreman told him to go to the straw boss, whose duty it was to fix it. The belt was taken to the straw boss, but it was “emeried” the same night, without being fixed. On the morning of the accident the foreman said to plaintiff, “You have got to make five sets of canopy top irons right away,” and he replied, “It is pretty hard to make them on them rotten belts,” to which the foreman replied, “I. will fix them up. They have got to be made and they have got to go on the job.” This conversation occurred about seven in the morning, the injury happening at about eleven o ’clock thereafter. There were several emery belts in use that morning, the one with the defective lap being used last. It was while working with the latter that the arm of plaintiff was broken. Ordinarily the breaking of an arm is not a very serious matter, but unfortunately for all concerned in this case, plaintiff’s arm will not unite at the break notwithstanding skilled treatment has been applied in an effort to bring about a union of the severed parts. This misfortune renders the arm useless. The belt was safe to operate in the polishing of any implement which could be manipulated wholly on top of or above the belt, but the canopy iron, owing to its forked construction, could not be polished without the under prong of the iron being kept beneath the belt. The loose lap caught in the crotch of the fork-shaped canopy iron, causing the injury to plaintiff.

The original and amended declaration count upon the same negligence to which the injury is attributable, but in the amended declaration there is added a promise by the master to repair. This is said to state a new cause of action, which is barred by the limitation statute. This precise point was decided contrary to such contention in Swift v. Madden, 165 Ill. 41, where it was averred in the original declaration that the injury resulted from the failure of the master to keep the machinery in repair, and that the unsafe condition was unknown to plaintiff; and in an amended count, after averring the same negligence as in the original declaration, interpolated the additional averment of notice of defect to the master and his promise to repair. This was held to be the restatement in a .different form of the same actionable negligence. The court say: “From the reading of the first count of the declaration in connection with the first additional count, it is apparent that both state and rely upon the same wrongful act of the defendant—its negligence in failing to keep in repair machinery in its factory where the plaintiff was required by his employment to labor. We think it plain that the cause of. action set out in the additional count was the same as set up in the original declaration.” The court properly sustained plaintiff’s demurrer to defendant’s plea of the statute of limitations.

Whether plaintiff was in the exercise of due care for his own safety at the time he was injured was one of fact for the jury to decide. With their finding on this branch of the case we see no reason to disagree. It is not for us to interpose our judgment on this question of fact against that of the jury unless we can say that their finding is contrary to the manifest weight of the evidence. While it may be admitted that different minds might not agree that plaintiff was in the exercise of due care, it cannot be said that the minds of reasonable men would agree that he was not in the exercise of such care at the time he was injured.. Nor can we say that the jury’s determination of that fact is against the manifest weight of the evidence.

To the contention that the doctrine of assumed risk is a bar to plaintiff’s right to recover it is argued that the order of the master to do the work which was dangerous because of defective machinery, furnished to do such work, relieves the case from the operation of the doctrine of assumed risk. If plaintiff was ordered to do the,work, as claimed, and the machinery furnished for the purpose of doing such work was defective or out of repair, and the hazard assumed in obeying the order and doing the work was not so imminent that a person of ordinary prudence would not have incurred the risk, then the doctrine of assumed risk has no application. Such questions are of fact to be determined by the jury from the proofs. In Offutt v. World’s Columbian Exposition, 175 Ill. 472, the court in defining the doctrine as applicable to an “order case,” said: “The rule is that where the servant is injured while obeying the orders of his master to perform work in a dangerous manner, the master is liable unless the danger is so imminent that a man of ordinary prudence would not incur it.” And in Springfield v. Parks, 222 ibid. 355, it is said: “ And the question whether the execution of the order of the foreman was attended with such danger that a man of ordinary prudence, having the knowledge of the situation which appellee had, would have incurred the danger by going upon the swing board, was one of fact for the jury. * * * Negligence and contributory negligence are questions of fact, and unless the facts are uncontroverted and all reasonable minds would readily agree as to the conclusion to be drawn from the admitted facts, those questions are questions to be submitted to the jury as questions of fact, and not to be decided as questions of law by the court.” That the order given plaintiff was what is sometimes denominated a “rush order” clearly appears. The canopy irons were wanted as quickly as they could possibly be polished by plaintiff and he was so informed. He remonstrated at first and called attention to the danger in doing the work with the defective belt, and was urged to continue and a promise made to repair. But counsel for appellant argue that plaintiff’s complaint was that the belt was “rotten” and that it is clear that the belt was not rotten, but was defective in having a loose lap. This is true, but we will take notice of slang phrases which obtain in these times in all walks of life, and not do violence to apparent intention by indulging a literal interpretation of the words used, when such interpretation would do violence to the plain meaning intended by the use of words when taken in the connection in which they were used. In stigmatizing the belt as “rotten” plaintiff plainly intended to convey the idea that it was his opinion that the loose lap was a menace and danger to himself in the polishing of the canopy irons. There were several belts used by plaintiff the morning of the accident, the defective one causing the accident being used last when no other belts were available for use with sufficient emery on the surface to polish the irons. This fact in itself may have had great weight with the jury in demonstrating the due care of plaintiff. The defective belt being used only as a last resort and when all the other belts at his disposal had been rendered by use no longer available to do the work, was proof fairly tending to establish due care. This may have convinced the jury that plaintiff was a careful workman and had avoided danger as long as he could and had only incurred the danger at the last moment and when no other alternative was at hand, and in the belief that he could safely do his work as urged by the foreman, without incurring the risk of being injured. While a promise to repair was made several days prior to the accident, still such promise was on the day of the accident renewed, and although no time was fixed for fulfillment, the law implied that the promised repairs would be made within a reasonable time, during which the workman had a right to rely on such promise. A continuance in the employment during such reasonable time is not negligence. Swift v. Madden, supra. We cannot see that Gunning v. LaPointe, 212 Ill. 274, is in conflict with the foregoing statement of the law, but rather, from the reasoning, may be regarded as supporting authority. In the Gunning case the workman continued his employment after the lapse of a reasonable time from the making of the promise to repair and “without exacting or receiving a further promise to repair.” The saving element of a new promise, absent from the Gunning case, is present in the case at bar.

The contention that this case falls within the doctrine of the “simple tool” cases is without force. The belt in itself is indeed simple and, when not in action, harmless. But when in use as an emery wheel, the motive force of which is steam, and out of repair and defective, it is, as demonstrated in this case, dangerous to the operator. Furthermore the belt itself, though harmless it may be, yet, taking into consideration the uses to which such belt may be put, its operar tion may become highly dangerous. It was safe for use in polishing any sort of material wholly manipulated upon its surface, but dangerous for use in polishing apparatus of a forked nature, such as “canopy irons.” The cases of Riley v. Am. Steel & Wire Co., 129 Ill. App. 123, International Packing Co. v. Kretowicz, 119 ibid. 488, Dauchy Iron Works v. Nevin, 130 Ill. 473, Bowen v. Chicago & Northwestern Ry. Co., 117 Ill. App. 9, Kistner v. Am. Steel Foundries Co., 233 Ill. 35, Webster v. Nisbett, 205 Ill. 273, and kindred cases, are inapplicable to the facts of this case. See footnote to Vanderpool v. Partridge, 13 L. R. A. (New Series) 668, for a full citation of authorities on this point. The instruction complained of has been upheld in its essential features in W. Chicago Street Ry. Co. v. Johnson, 180 Ill. 287. Were this otherwise, we cannot see that the added words, which it is insisted constitute error, adversely affected the rights of defendant.

Being of the opinion that the record is free from reversible error, the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    John Weinlander, Appellee, v. Charles F. Volkman, Appellant.
    Gen. No. 14,953.
    1. Evidence—what tends to show customary charge. Notwithstanding the plaintiff suing for physician’s fees testified that all physicians do not charge the same fee, yet a verdict for such plaintiff will be sustained if he has further testified that the charges made by him were the usual and customary rate charged by physicians for like services in the locality where the same were rendered.
    2. Tbiai—when remarks of counsel will not reverse.' Notwithstanding remarks of counsel may be improper they will not reverse if induced by the action of the complaining party.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthile, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 1, 1910.
    Frank M. Cox and R. J. Fellingham, for appellant.
    Cameron & Matson, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This action was originally instituted before a Cook county justice of the peace and tried on appeal to the Circuit Court de novo before the court with a jury, and this appeal is prosecuted from a judgment of the Circuit Court for $200 rendered on the verdict of a jury in favor of plaintiff and against defendant.

Plaintiff is a physician practicing his profession in Chicago. About April 20, 1903, one Burt Free, at the time in the employ of defendant, was physically injured and plaintiff treated him then and subsequently for his injuries. Plaintiff contends that defendant agreed, in a conversation over the telephone, to pay him for services rendered Free, and that in faith of such promise the services for which compensation is sought in this suit were rendered. That the parties conversed over the telephone is not denied, but defendant insists that the promise to pay for services rendered Burt Free related solely to the employment of a nurse and did not extend to the payment of physician’s services as claimed.

It is first insisted that the promise to pay plaintiff is not proven by the greater weight of the evidence; secondly, it is claimed that the value of such services was not proven by competent evidence; and, third, that the trial court erroneously admitted evidence that defendant .carried an insurance policy with the Travellers Insurance Company.

While the evidence as to the promise of defendant to pay is not as clear and satisfactory as it might be wished, still there is sufficient evidence which would warrant the jury in concluding that the promise was made as detailed by plaintiff. Defendant admits a conversation with plaintiff over the telephone in relation to the care of his employe, Burt Free, and while he insists such conversation related solely to providing a nurse for Free, it is not at all unreasonable that an arrangement should at the same time have been made for medical attendance. The jury might well believe that the promise to pay included plaintiff’s services as detailed by him, especially having in mind the fact that plaintiff is in some essential particulars corroborated by defendant. Then again, defendant told plaintiff that he carried insurance in the Travellers Company and would be compensated for expenses incurred in caring for Burt Free. Acting upon such intimation plaintiff at first made out his bill to defendant and the company. We think the promise was sufficiently established by the proofs and that the determination of this fact by the jury ought not to be disturbed.

Plaintiff’s testimony as to the value of the services rendered we think clearly fulfils the legal requirement that it must be the usual, customary and ordinary fee charged by physicians in Chicago for services of that character. Plaintiff did testify that all physicians do not charge the same fees, but ordinarily they did, and that the fees, according to the rate rendered in the bill, supported by the testimony of plaintiff, was the usual and customary rate charged by physicians for like services in Chicago. The question of the trial judge, and the answer of plaintiff thereto, cleared up any doubt which might be inferable from plaintiff’s testimony as it stood prior to such answer.

If there was any error in referring to the Travellers Insurance Company in the trial of the case, a full and sufficient corrective rests in the fact that defendant, through his witness Snow, brought the whole matter to the attention of the jury. Snow made it appear that the Travellers Insurance Company insured defendant. He introduced in evidence the bill rendered by plaintiff to his company and defendant, as well as plaintiff’s letter to Snow, in which the Travellers Company is referred to. This case is unlike Eldorado Coal Co. v. Swan, 227 Ill. 586. In case supra the plaintiff’s counsel injected in his remarks to the jury reference to the defendant being insured against the claim in suit; while in the instant case defendant, through his own witness, brought the whole matter to the attention of the jury. If he was prejudiced thereby, the law does not permit him to avail of errors of his own creation.

The judgment of the Circuit Court is right. It is therefore affirmed.

Affirmed.


text:
    The N. K. Fairbank Company, Appellee, v. City of Chicago, Appellant.
    Gen. No. 14,961.
    1. Ordinances—for regulating supply of water construed. Ordinances of a city regulating and governing its supply of water to-citizens, constitute such rules and regulations which are not only binding upon the city, but in faith of which the consumer will be presumed to have entered into such relationship with the city, and such ordinances held alike binding upon each.
    2. Ordinances—what does not affect construction. Contemporaneous construction by the water department of a city of the right to a refund under similar or like cases to the one before the court, is immaterial and will in no wise affect the pending litigation.
    3. Ordinances—how remedial construed. An ordinance remedial in its nature' should be so construed as to give effect to its intent and purpose.
    4. Ordinances—when abrogate common law rule with respect to voluntary payment. Held, that by virtue of the ordinance in question in this case, payments by a citizen for water rates, though voluntary, might be recovered if under the evidence it appeared that the amount charged to such citizen and paid by him was excessive.
    5. Statute of Limitations—when five-year period applies. In an action against a city to recover excessive water rate charged by it and paid by a citizen, which action is sustainable by virtue of the existence of a special ordinance, held, that such ordinance, of itself, did not render the contractual relation existing between the city and the citizen written in character, and that, therefore, the five-year period of limitation was applicable.
    6. Interest—when not recoverable. Excessive water rates voluntarily paid by a citizen to a city where recoverable by virtue of a special ordinance, do not justify an allowance of interest where the return of such money has not been vexatiously withheld.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 1, 1910.
    Edward J. Brundage, for appellant; Clarence N. Boord and George M. Bagby, of counsel.

      Oliver & Mecartney and Vail & Vette, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The Municipal Court of Chicago rendered a judgment against defendant and in favor of plaintiff for $5,432.65, upon a claim for overpayment of water taxes by plaintiff, which defendant refused to refund upon demand. The cause was tried before the court by submission of the parties. The recovery was limited to overpayments made within five years, upon the theory that the five year limitation Act was a bar to recovery for payments made prior thereto. Defendant appeals, contending that there is no liability to refund, and plaintiff assigns cross-errors, contending that the contract under which the excess money was paid was in writing, and that the ten and not the five year statute of limitations is invokable as a bar.

The evidence rests mainly in an agreed statement of facts, from which it appears that plaintiff for many years operated a plant of considerable extent, comprising several buildings, situate on Wentworth avenue between Eighteenth and Twentieth streets in Chicago; that for more than thirty years defendant supplied water to said premises through meters which measured the volume of water supplied. From 1897 five meters were used, and from June, 1905, six meters. All the buildings constituting the plant of plaintiff were under one management. Some of them immediately adjoin each other, being separated only by a fire wall, others being connected by overhead passageways so that they may all be readily traversed by walking from one to the other without touching the ground. All the buildings are connected by electric light wiring and heat and power to all are conveyed from centrally located boilers. Each is dependent on the other and together the buildings constitute a unit for operation. Such was the situation from 1898 to 1905. During that time and to June, 1905, the water department of defendant rendered plaintiff, each month, three bills for water shown by five meters to have been supplied, and after the latter date four bills for water supplied according to the readings of six meters. Water rates ranging from four to ten cents per 1,000 gallons on measured service from January 1, 1898, to January 1, 1907, are then set out; also the following city ordinances, viz:

“For each 1,000 gallons of water used on each independent premises, measured and regulated by meter up to not exceeding 165,000 gallons per month, ten cents per 1,000 gallons. For each 1,000 gallons measured in like manner, in excess of 165,000 gallons per month, eight cents for each 1,000 gallons.”

This section was in force during the time covered by the payments in controversy, except as to rates, which were changed from time to time, as appears from the schedule of rates above referred to. Section 2422 was in force July 1, 1905, and reads:

“Several Meters on one Premises—Readings to,, be Grouped. Where the water supply to any one business enterprise, or to any building, structure or premises used or operated by one person or corporation or by a single business enterprise is controlled by two or more water meters, the aggregate readings of such meters shall be taken and the charge made for water supplied through same shall be at the same rate as if such water supply had been supplied through .one meter. ’ ’

It is agreed that if the readings of the meters had been grouped in accord with section 2422 supra from January 1, 1898, to January 1, 1906, and bills rendered accordingly, the aggregate of such bills would have been reduced $11,635.75. Such bills were all paid at maturity and overpaid to the above amount, which is the amount claimed by plaintiff with interest; that plaintiff did not know until January, 1906, that it was entitled to have meter readings grouped, or that it had been overcharged by the city; that plaintiff presented its claim for such overcharge to the city through its superintendent of water August 9,1906, who caused the several items of claim to be checked up and verified with the books of his department, and found the same substantially correct with the exception of $65.93, that is, mathematically correct, not that the claim was well founded as a matter of law. The water superintendent recommended (which the commissioner of public works approved) that overpayments made since July 1, 1905, amounting to $873.05, be paid and disallowed as to the balance. This report found its way ultimately to a sub-committee of the finance committee of the common council, which on January 17, 1907, referred the whole matter to the corporation counsel for his. opinion as to the liability of the city. That officer defends and evidently reserved his views on the questions presented for that purpose.

During the time covered by this controversy the following city ordinance was in force:

“Sec. 2453. Refund on Duplicate or Overpayments. In cases of duplicate payments, overpayments, payments on wrong property, or any payment occasioning the necessity of a refund, it shall be the duty of the assessor of the bureau of water to certify to the cause of such refund, which when endorsed by the superintendent of water and approved by the commissioner of public works shall be paid by the comptroller. Provided, refunds shall be paid only to the person who made the payment on account of which such refund is made or to his duly authorized agent, and who presents the receipted bill showing such payment. # * * >>

The superintendent of the water department testified that it was the practice of the department to refund all payments in excess of ordinance rates, whether paid under mistake of law or fact, or whether under protest or not. Such payments included some made for failure to group meter readings without reference to the finance committee or the council, but under authority of section 2453 supra. The assistant chief clerk, while admitting some refunds were made during his six years of service with the department, testified that they were all made in virtue of special orders passed by the council.

In the operation of water works the city of Chicago acts in its.private and not governmental capacity. Wagner v. City of Rock Island, 146 Ill. 139. The power so to do is expressly conferred by the Cities and Villages Statute.

The ordinances of the city regulating and governing its supply of water to citizens constitute such rules and regulations which are not only binding upon the city, but in faith of which the consumer will be presumed to have entered into such relationship with the city and such ordinances held to be alike binding upon each. But for section 2453 of the water ordinance supra we should be constrained to hold that the payments made by plaintiff from month to month for its water supply were voluntary payments, and that payments made.for overcharges of water supplied, however numerous they may have been, could not be recovered back in an action at law. Section supra imposes no condition upon the right to demand and receive a refund. Nothing appears in the ordinance concerning sums voluntarily paid or paid under protest, but it confers the right, unconditionally, to have any sums paid in error refunded. The language used is, “In cases of duplicate payments, overpayments, payments on wrong property, or any cases occasioning the necessity of a refund, it shall be the duty of the assessor of the bureau of water to certify to the cause of such refund, which when endorsed by the superintendent of water and approved by the commissioner of public works shall be paid by the comptroller.” Under the stipulated facts found in the record, and giving to the words used in the ordinance their reasonable and rational interpretation and meaning, it would seem clear that plaintiff has brought itself within the remedial clause of the ordinance. With this ordinance in view, the plaintiff did not pay all the demands of the city for water at its peril, but had a right to rely on the same for an adjustment of any errors or mistakes of the city at any period of time within the running of such limitation statute which may be held to operate as a bar. This ordinance being remedial in its nature and essence, though in derogation of the common law, should be so construed as to give effect to its intent and purpose. We therefore conclude that a reasonable and rational interpretation of section 2453 supra requires us to hold that the common law rule as to voluntary payments was, as applied to payments made by plaintiff for water supplied under bills rendered by defendant, abrogated. Nor are we impressed with the contention that the logical effect of the ordinance was to confer judicial powers upon ministerial officers. Whether the right existed for a refund in no way rested upon judicial determination or raised a question of law for solution by any ministerial officer, but such right, if it existed, was to be ascertained from a mathematical calculation to be gathered from the account books kept by and in the possession of the city itself, and not from any extrinsic or countervailing proof. Such is demonstrated by the result arrived at and determined by the city in the instant case. While for convenience plaintiff rendered a statement of its claim to the city, with exact data, such a statement was simply a recitation and recapitulation of the bills rendered by the city to plaintiff and the amounts paid by the plaintiff to the city, all of which was verified by the water department from its own books of account.

The right of plaintiff to have the reading of its meters grouped and the payment for its consumption of water restricted in accord with the ordinance rate, applicable from time to time to the maximum volume so shown, did not rest on any condition precedent to be performed by the consumer, but was a right given to it by the ordinance, section 2422 supra. There is no room for construction of the language used in this section; the provision granting such right is free from ambiguity and means just exactly what it says and no more. It provides that “ * * * the aggregate readings of such meters shall be taken and the charge made for water supplied through same shall be at the same rate as if such water supply had been supplied through one meter.” Under this section no demand was necessary to avail of the right so plainly conferred. Under the stipulation of fact in this case no question can arise as to plaintiff’s coming within the terms of this section or its right to avail of its provision, because it is agreed that but one business enterprise of plaintiff was conducted upon the premises supplied with water for which overpayments are sought to be recovered. Contemporaneous construction by the water department of the right to a refund under similar or like cases we do not think has any effect upon the rights of the parties. If the position of the city had theretofore been as hostile to other claimants for a refund as to the claimant in the case at bar, such attitude would have been abortive to defeat the plain right conferred by the ordinance. Furthermore, the city was chargeable with knowledge of the fact that plaintiff was entitled to have its meters readings grouped in charging for water service because of the confessed known fact that the premises supplied with water through such meters constituted and were but a single business enterprise of plaintiff.

Under the agreed facts in this record we hold that plaintiff was entitled to a refund, as a matter of law, for each excess payment at the time the same was made; that the contract between the parties was not in writing; that the ordinance did not create such a contractual relationship between the city and the water consumer, and that therefore the five year limitation statute applies and the ruling of the trial judge in so limiting the right of recovery was without error. From this holding it follows that the cross-errors of plaintiff are not well assigned.

It is not contended that the overcharges sued for were paid under duress, or that any exigency existed for making them saving plaintiff’s lack of knowledge of the ordinance. Neither can it be said that the amount rightfully due was vexatiously withheld or wrongfully exacted without just right or claim. There was and still is a conflict between the parties as to the amount recoverable, even were the right to recover conceded. The case of Chicago v. N. W. Mutual Life Ins Co., 218 Ill. 40, is inapplicable, because in that case the city threatened to shut off the supply of water unless payment was at once made; while here there was no controversy at the time of making any of the payments, but simply a mistake on the part of plaintiff as to its right under the ordinance, for which mistake of plaintiff the city cannot, in our judgment, be penalized.

The judgment of the Municipal Court being without error is affirmed.

Affirmed.


text:
    Burton Fonner, Appellee, v. Nicholas Stamatakos et al., Appellants.
    Gen. No. 14,973.
    1. Contributory negligence—when minor not guilty of. While the actions of a minor in one of mature years might be held as amounting to contributory negligence, yet it may not be so held with respect to such minor, the question being one for the jury to determine.
    2. Instructions—when refusal of correct will not reverse. However correct the principles of law stated in instructions refused may have been, a reversal will not be awarded if the merits were not affected by the refusal of such instructions.
    3. New trial—when newly discovered evidence does not justify. Newly discovered evidence will not justify the granting of a new trial if it is cumulative in character and if it does not appear that due diligence prior to the trial was exercised with respect to obtaining it.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Best M. Smith, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 1, 1910.
    E. W. Austin, for appellants.
    Morse Ives and H. E. Wynekoop, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Burton Fonner when about ten years of age and on the 8th day of May, 1906, was injured by coming-in contact with a team of horses drawing a wagon driven by an employe of defendants. On the assumption that the accident to this boy occurred through the negligence of defendants’ driver, this action was brought by his next friend to recover compensatory damages. A trial before the court and a jury resulted in a verdict in favor of plaintiff for $800 and a judgment thereon less a remittitur of $300, and defendants have brought the record to this court on appeal, seeking our review and asking a reversal. A motion to instruction a verdict in favor of defendants was made at the close of plaintiff’s proofs and renewed at the close of all the proofs, and each motion was denied and exceptions taken. A motion for a new trial was made and overruled, after remittitur. After judgment defendants, within the term, made another motion for a new trial on the ground of newly discovered evidence supported by several affidavits. This motion was also denied and exceptions to both rulings preserved.

While defendants have made twenty-four assignments ' of error upon the record, they restrict their argument thereon to the following;

“1st. The refusal of the court to direct the jury to return a verdict for the defendants.

' 2nd. The refusal of the court to give the instructions of the defendants, being Nos. 191, 195, 196 and 198 of the defendants’ requests.

3rd. The refusal of the court to set aside the verdict and grant a new trial.”

Errors not argued are waived. We shall therefore confine our decision within the compass of the foregoing recitals.

First. Whether the court should, at either time when so moved by defendants, have instructed a verdict in their favor, depends upon the condition of the evidence in the record at the several times the motions were made. That the horses drawing the wagon were proceeding to the east on Walnut street, Chicago, toward Lincoln street, and that plaintiff was going in an opposite direction on a bicycle much too large for him at the time the accident happened, are facts patent from every viewpoint of the proofs. At the close of plaintiff’s proofs the collision and resulting injury had been substantially proven as alleged in the declaration. If the jury believed such testimony, plaintiff was entitled to a verdict. From such testimony reasonable minds could not be said to agree that the accident did not result from the negligence of defendants’ driver, so as to present a question of law for the court and not of fact for the jury. Consequently, the determination of the fact deducible from such evidence was for the jury. When such motion was again made at the close of all the proofs, it still remained for the jury to say whether the preponderance of evidence was with the plaintiff, or, failing of such preponderance, defendants were entitled to a verdict in their favor. It is not for the trial judge to determine on which side the evidence preponderates where there is a sharp conflict in the evidence, such as clearly appears in this record. Where the weight of the evidence rests for solution upon the credibility of the witnesses, their intelligence or lack of it, as the case may be, bias or prejudice, if any appears, interest or lack of it, if such also may be gathered from the proofs, opportunity of knowing about the matters testified to, where such is manifest from the appearance and testimony of the several witnesses, then a case is made requiring the court to submit it to the jury. The trial judge had no alternative but to decline to instruct the jury to return the verdict asked. The testimony is far from satisfactory, but it is not for this court to register its judgment in opposition to the finding of the jury unless it can say that the verdict is manifestly against the weight of the evidence. The verdict of a jury in a case of sharp conflict in the evidence of the witnesses, such as the one before us, must of necessity rest largely upon the impression the several witnesses make upon the minds of the jurors by their appearance upon the witness stand, their intelligence and honesty of purpose and opportunity of knowing about the matters concerning which they give their testimony. This personal equation is denied us, and we cannot say from the record that the verdict of the jury is not supported by a preponderance of the proof. In this case some of the witnesses were summoned by both sides. Some of them made contradictory statements and one immature lad confessed to having said, for the purpose of ending an interview with one of the attorneys who approached him on the matter, “any old thing” that came into his head. Notwithstanding this admission, the jury may have believed, as they probably did, that this lad did not tell the truth on the trial. Then again the driver, while testifying in chief that he was driving on the right hand or south side of Walnut street, admitted on cross-examination that he was driving in the middle of the street. This contradiction may have weakened the force of his whole evidence in the minds of the jury. Whatever the relative positions of the parties may have been in the street at and immediately preceding the accident, is of little consequence, the ultimate question for the jury to decide being whether the accident resulted from the negligence of the driver and whether such negligence was the proximate cause of the injuries suffered by plaintiff. While the actions of plaintiff in one of mature years might be held lacking in due care, it may not be so held in a boy of the tender years of plaintiff. The jury may, as we think they evidently did, have believed that defendants’ driver observed plaintiff when he was 75 or 80 feet away from his team and in ample time to have avoided the accident in the exercise of due care, and that the proximate cause of the accident was the negligence of the driver in not so doing. The case of Star Brewery Co. v. Hauck, Admr., 222 Ill. 348, was similar to the one now under consideration, in that the deceased was a boy of about the same age as plaintiff; and the Supreme Court said in affirming 126 Ill. App. 608, sustaining a judgment against the defendant, “that even though a person’s own negligence exposed him to risk, if the proximate cause of his injury was the result of the defendant’s failing to use ordinary care to avoid injuring him after becoming aware of his danger, the defendant would be liable.”

Second. An examination of all the instructions given to the jury impresses us as having fairly and sufficiently informed them upon every material principle of law applicable to the proofs, and that however correct the principles of law stated in the instructions refused may have been, the merits of the defense were not affected by their refusal.

Third. There was no valid reason suggested in the motion or appearing from the affidavits submitted why, after judgment, defendants should have been awarded a new trial. The evidence disclosed was cumulative in its character and, with the exercise of due diligence, could have been as readily obtained within the two years between the happening of the accident and the time of the trial as it was within a few days after the judgment was finally entered.

There is no reversible error in this record; consequently the judgment of the Superior Court is affirmed.

Affirmed.


text:
    John C. Fetzer, Appellant, v. Frederick W. Clark et al., Appellees.
    Gen. No. 16,142.

      Dismissal—when proper upon ground of abandonment. If it appears that a pending bill in chancery is predicated upon the same facts and seeks the same relief as intervening petitions filed in another pending cause, it is appropriate for the court to require the complainant to elect as to which remedy he will pursue, and even though such complainant decline to make such election, if by conduct he appears to have elected to proceed under such intervening petitions, a dismissal of the bill of complaint is proper upon the ground of abandonment.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in this court at the October term, 1909.
    Dismissed.
    Opinion filed March 1, 1910.
    Elbridge Hanecy and Arthur B. Weight, for appellant.
    Wilson, Moore & McIlvaine, for certain appellees.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This cause comes before the court at this time on the motion of appellees to dismiss the appeal. The bill in this appeal is virtually in all essential particulars of averment and prayer for relief identical with the intervening petitions, so-called, in cases general numbers 16,143 and 16,144, in which opinions are this day filed dimissing the appeals. (Post, pp. 154, 168.) All three were filed at the same time.

Upon discovering that the bill in this case and the two intervening petitions above referred to sought the same relief upon identically the same facts and against the same parties in each case, the chancellor required appellant to elect whether he would proceed under the intervening petitions or the bill. Appellant 'declined to elect as requested, but did in fact proceed under the intervening petitions to dismissal after a full hearing. The court found that appellant “had proceeded under the said document in the nature of an intervening petition to press for and assert his rights to intervene in each of said two causes * * * and to become a party thereto, and the court therefore in that case found, and in this case doth now find and adjudge that the action of the said Fetzer in pressing for and demanding to be admitted as a party to said litigation under his said petition in each of said two cases, amounted to and was an election by the said Fetzer to pursue the said petitions and each of them, in lieu of the bill of complaint in this present cause, and constituted and was an abandonment of this present bill of complaint.” The chancellor thereupon, on his own motion, dismissed the bill. Appellant obtained and prosecutes this appeal.

The requirement of the chancellor that appellant elect was a reasonable one, for if appellant could succeed under the intervening petitions and the bill, he would not have obtained any practical relief differing from either. If the court indulged in such a work of supererogation as to enter three decrees, the one under the bill would vest no right or confer no benefit not accorded in the decrees in the cases in which the intervening petitions were filed. We are unable to gather from appellant’s brief that any really substantial matter or claim present in one is absent in the others. But as we have already decided, appellant has no interest or claim to litigate in either case and makes none either by his bill or intervening petitions. While appellant did not in words elect which remedy he would pursue, by his acts he most effectually did so elect, and by proceeding under the intervening petitions in the eye of the law he abandoned his bill, as the chancellor rightly held. Simpson v. Ham, 78 Ill. 203.

For the foregoing reasons and others appearing in the opinion in Bayley et al. v. Clark et al., general number 16,143, filed herewith, post p. 154, the motion to dismiss is allowed and the appeal is accordingly dismissed.

Appeal dismissed.


text:
    Edwin F. Bayley et al., Trustees, v. Frederick W. Clark et al., Appellees. On the Appeal of John C. Fetzer, Appellant.
    Gen. No. 16,143.
    1. Parties—who not entitled to appear. Where a person is not a party to a cause he has no right to come into the same in any manner save by the*- express permission of the court evidenced by an order of record. Ifhuch a person file a petition in a pending cause it may properly be stricken from the files by the chancellor of his own motion or by the chancellor upon the motion of any party to the cause so invaded with such alien documents.
    2. Parties—who not entitled to become. If a petition tendered or filed shows no interest personal to the petitioner in the subject-matter of the litigation it is properly stricken from the files.
    3. Interpleaders—who not entitled to intervene. A party entirely naked of any interest or claim in the subject-matter of pending chancery litigation has no right to intervene therein.
    ■ 4. Appeals and errors—when granting of prayer for appeal improper. A party who has sought to intrude himself into litigation and who has no interest or direct claim of interest in the subject-matter thereof, has no right to appeal from an order striking his pleadings or pretended pleadings from the files, and an order granting a right of appeal is erroneous and the perfected appeal will be dismissed.
    5. Trusts—who cannot compel performance of obligations. A person without interest in the subject-matter of pending litigation and without interest in the subject-matter of a trust, has no standing to compel the trustees of such trust involved in such litigation, to perform what are or are claimed to be the obligations of such trust. '
    Intervening petition. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in this court at the October term, 1909.
    Dismissed.
    Opinion filed March 1, 1910.

      Elbridge Hanecy, for appellant and of counsel.
    Wilson, Moore & McIlvaine, for certain appellees.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

All the appellees join in a motion to dismiss the appeal in this case, and in the succeeding case general number 16144. (Post, p. 168.) As both cases are identical; except as to some formal parties, and all the interests involved are substantially the same in each and the reasons for the disposition of one are equally cogent in the determination of the other, this opinion must be regarded as stating both cases and the reasons for our conclusion in each.

Jonathan Clark in his lifetime obtained three long time leases from the respective fee owners of real estate on State street, each being for 40 feet and combined making a frontage on State street of 120 feet, adjoining on the south the Leiter building situate on the southeast corner of State street and Jackson boulevard, Chicago. The total ground rent payable under these three leases is $9,000 per annum, plus all municipal and other taxes chargeable against the land during the term. The rental thus fixed continues during the whole term. Jonathan Clark died testate February 5, 1902. Much litigation was projected by some of the heirs at law in an endeavor to nullify the testamentary disposition made by Clark of his property. The interested parties however finally arranged a settlement of their differences, the will and codicil of Clark were established and Hill added as one of the trustees under the will with Bayley and Clark in the place of a third person who retired. The north 80 feet of said 120 feet are part of the trust estate vested in Bayley, Clark and Hill as trustees. The south 40 feet was in the litigation above mentioned in Alice Clark, the widow of Jonathan Clark, she having renounced the provisions made for her in her husband’s will. Thereafter Alice Clark conveyed that 40 feet and all her interest in her husband’s estate to Frederick W. Clark and her remaining living children on certain trusts in such conveyance set out, and her action in that regard was ratified by decree. The corpus of the Jonathan Clark estate and such accretions thereto which may under the terms of the trust created by the testator and the decree of settlement become a part of such corpus, is not to be distributed until the youngest of his surviving children has been dead twenty years, and then distributed between the grandchildren who may then be in life and the descendants of such of them as may then be dead per stirpes.

Jonathan Clark in his lifetime executed a lease of the whole 120 feet to Rothschild & Company for a term of 15 years and 2 months, ending April 11, 1911, under which Rothschild & Company are now in possession.

The two bills in which Fetzer is striving to intervene were brought respectively by the trustees of the Jonathan Clark trust and the trustees of the Alice Clark trust against all persons in interest, to settle the authority of the trustees to conclude an arrangement with Rothschild & Company for a sub-lease of said 120 feet for substantially the remaining term of the original three leases. All parties sui juris had agreed upon terms and favored the consummation of the tentative agreement. To settle doubts arising as to the authority of the trustees to make such proposed leases under the Clark will, the opinion and, if necessary, the authority of the chancery court was sought. There were minors interested and they were made parties to the suits and were within the jurisdiction of the court and properly represented. The estate of Jonathan Clark could not command the means with which to improve the leasehold property with necessary modern improvements to make the same remunerative. It was therefore deemed best to make leases to Rothschild & Company, the present tenants, at what was agreed by all the parties interested to be a fair rental. That rental is $84,000 a year pins every charge saving only the original $9,000 ground rent, thereby netting the two sets of trustees $75,000 annually. In addition to such rentals Rothschild & Company agree to erect a ten story modernly constructed building covering the whole of the leasehold premises, which when erected shall stand as security for the rental charge. These bills were filed February 5, 1909, and issues joined thereon by appropriate answers and replications thereto being filed by March 22, 1909, and on the following day the default of several non-answering defendants, upon whom process of summons had been duly served, was entered. The causes then stood for- hearing and such hearing was entered upon March 30, 1909, and continued with several adjournments intervening until May 4, 1909.

On May 15, 1909, appellant, John C. Fetzer, without applying for or obtaining leave of court so to do, filed in each of said causes his affidavit, setting forth a desire to become the lessee in the place and stead of Rothschild & Company and offering an advanced annual rental of $4,000 for each 40 feet, making together a total advance of $12,000 of annual rent for the whole 120 feet over the rental expected from Rothschild & Company; that on May 4, 1909, he had made such offer in writing to the trustees of the Jonathan and Alice Clark trusts; that he did not succeed in interesting either them or any of the attorneys for the parties or the guardians of the minors; that they all seemed fixed in the purpose of carrying out the offer made by Rothschild & Company and the tentative arrangement entered into in faith of such offer; that the rental value of the 120 feet is much more than the rental offered by. Rothschild & Company and of the value offered by him; that “the whole situation seems to be that in the suit brought by the Alice Clark trustees, as also in the suit brought by the trustees of the estate of Jonathan Clark, there is a present existing understanding and effort made by all concerned to carry out the Rothschild & Company sale without reference to the value of said property, or whether more money or better terms can be obtained than as presented to this court in this proceeding for its authorization and approval.”

On May 26, 1909, Fetzer, without any application to the court for leave so to do, filed in each of said causes an intervening petition, in which is reiterated the matters and charges set out in his affidavits and considerable of the history connected with the Jonathan Clark leases, his will and the litigation which followed its probate, renews the offer for leases made in his affidavits and tendered to the trustees, and avers that it is not for the best interests of the parties, and particularly the minor beneficiaries, who are the wards of the court, that the court sanction the arrangement made with Bothschild & Company by the trustees with the approval of the adults cestui que trustants. He charges that the trustees have conspired and confederated with Bothschild & Company to sell the leaseholds to them for less than their market value and to that end have kept the negotiations and dealings secret for the avowed purpose of preventing others from bidding for or becoming interested in such leases. He also charges misconduct on the part of one of the attorneys representing the trustees and the minors, and particularly that such attorney is in fact working for and in the employ of Bothschild & Company. He asks the court to refuse its assent to the Bothschild & Company arrangement and to award the leases to him upon his bid, etc. He prays that he may be allowed to intervene and participate in all proceedings to be had before the court. Fetzer further asks that his petitions be treated “as a petition, or as an intervening petition or as an answer and cross-bill in said cases, or as an original bill,” and prays for summons against B'othschild & Company and for an injunction against all parties to restrain them from carrying out the arrangements made with Bothschild & Company.

Before deciding appellees’ motion to strike the affidavit and intervening petition of Fetzer from the files, the court proceeded upon the theory that these documents were in the nature of an application to intervene in the cause, and treated Fetzer as amicus curice and proceeded to make a thorough investigation as to the verity of the charges made, more particularly upon the question of whether the parties were practicing a deception upon the court and acting inequitably. Fetzer was given a free hand in presenting his case and was allowed every latitude. A large amount of evidence was adduced and none proffered in behalf of Fetzer was excluded. A patient hearing was accorded and every point made carefully and laboriously considered by the chancellor. The record thus made is of considerable magnitude, and while much of it is irrevelant to the question presented for our decision, we have examined with care all the matter interpolated into the record and found in the abstract notwithstanding most of it is not covered by the certificate of evidence and is therefore not legally entitled to our review.

In the order appealed from the chancellor found that said Fetzer had no interest whatever in the subject-matter involved in the bill of complaint in which said intervening petition was filed, or in the relief sought thereby or in the property described in the bill, and that said Fetzer is not a proper party to the proceeding, and that the' petition and affidavit were filed without leave or permission of the court, and ordered that the intervening petition filed by Fetzer be stricken from the files and that the prayer of Fetzer to be allowed to intervene and become a party to said cause be denied. “And it further appearing to the Court that on May 15, 1909, without leave of court said John C. Fetzer caused to be filed among the papers of this cause an affidavit signed and sworn to by him, and the complainants having moved the court to strike the said affidavit from the files, the court doth now order and direct that the said affidavit be and it is hereby stricken from the files of this court.”

From the foregoing order, against the objection and protest of appellees, Fetzer was allowed an appeal to this court. At the same time the chancellor entered an order upon investigation of the charges of fraud treated as made by Fetzer as amicus curies, wherein, among other things, appear the following recitations and findings:

“And the court having heard all the evidence produced by the said Fetzer, or in his behalf in support of said charges, and the evidence of the said Fetzer when called as a witness, and the said evidence of said Arthur B. Wright, also certain affidavits and other evidence produced by the complainants in said cause, and having heard the counsel for said Fetzer, and also counsel for the parties to the said cause in argument to the full extent that they desired to be heard, respectively, said hearing consuming a large portion of the day of each of the days following: May 31st, June 15th, June 16th, June 18th and June 21st, and having become fully informed concerning the merits of the said charges, now finds and adjudges in respect thereto as follows:
“The evidence introduced on said hearing has wholly failed to show that the said charges or any of them are true, either in fact or in substance; but, on the contrary, the court finds from the evidence taken on said investigation that there is no proof, nor shadow of proof, of any fraud or wrongdoing, or of any disregard of the rights of their beneficiaries because of the action of the trustees in negotiating the leases referred to in said affidavit and petition, or because of the action of the trustees in causing proceedings to be brought to ratify the said transaction, if it should be deemed necéssary in negotiating the said, leases; that there is not the shadow of proof that the said trustees did not believe that the said leases were in every respect proper and to the interest of their beneficiaries or that they were not acting in complete good faith and as careful business men at the time they entered into negotiations with said Bothschild & Company; nor any shadow of proof that they did not believe the said negotiations were in the interest of the beneficiaries of said trust at the time they entered into such negotiations, or at the time they caused the bill to be filed, or at the present time.
“The court expressly finds, as an affirmative fact, from the evidence taken on said investigations, that the said trustees in all respects exercised complete good faith in respect to all and singular the matters mentioned in the said petition of said Fetzer, and due diligence in the interest and for the benefit of their said trusts and the parties interested therein; and that there is not the shadow of proof that the said trustees have in any way whatever conspired, connived or confederated with the said Bothschild & Company or any other person or persons, to sell leasehold estates at less than the market value thereof, or to keep secret the fact that said Bothschild & Company had bid thereon.
“And the court further finds from the evidence on said investigation that it is not true that any agreed case was made up, or ever had been made up, for this court to pass upon which was in any way collusive or in fraud of the wards of the court or any other person whomsoever.
“And the court finds from the evidence that it is not true that the trustees of said estate were trying, or have ever tried, to induce this court to aid in carrying out a secret contract made by the said trustees and said Bothschild & Company; or that the arrangements of said trustees made in fact with said Bothschild & Company, the approval of which was asked of the court, was in any way detrimental or injurious to said trust estate, or to the minors, or other persons interested therein, but the court specifically finds the contrary to be true.”

The court also in this order exonerated Arthur N. Cox from all charges of improper conduct made by Fetzer. From the latter order Fetzer prayed an appeal to this court, which was denied. The questions, therefore, calling for our decision on this motion are:

1st. Did Fetzer have the right to file, of his own volition, the affidavit and intervening petition which the court struck from the files ?

2nd. Has Fetzer any right to intervene, or any interest which entitles him in any form to become a party to appellees’ bills?

3rd. Is the order appealable?

And incidentally has Fetzer as amicus curies any right to further meddle in the litigation either in the trial court or here on appeal to review the chancellor’s determination on the hearing accorded?

First. It is unquestionably the law that no person can of his own volition intrude himself into an action either on the law or equity side of the court. This is so, regardless of the fact that he may ultimately demonstrate that he has such an interest in the litigation or its subject-matter as to permit him, on craving leave, to become a party on either side of the cause, or to intervene by petition to establish such interest. But where he is not a party to the cause, he has no right to come into the cause in any manner save by the express permission of the court, evidenced by an order of record. Certainly until such authority is procured it is violative of every known precedent and principle of procedure to place upon the" files of a cause either an appearance, affidavit or pleadings of any kind. Moreover counsel for appellant do not seriously contend to the contrary. Therefore the affidavit and petition of Fetzer having been filed by him without leave of the court so to do first being obtained, the chancellor was fully justified, aside from any other consideration, in striking them from the files, either without being moved to do so or upon the motion of any party to the cause so invaded with such alien documents.

Second. Fetzer makes no claim of interest in the subject-matter of the litigation or in any of the parties to it. By no ruling or action of the court, primary, intermediary or final, can he be affected in the slightest degree. By no fact stated in his affidavit or averment found in his petition does he disclose any interest personal to himself in the leaseholds the subject-matter of the litigation between the parties to such litigation. Nor is there any pretense on his part that he has any interest of any kind. The position of Fetzer would seem, from the averments of his petition, when analyzed, to be that the rentals contemplated to be paid by Eothschild & Company under a tentative agreement made with the owners of the senior leasehold estate, are less than the market rate and not as much as can be procured from others, or that Fetzer is willing to offer, and that therefore he should be afforded, by the court, in this proceeding, an opportunity to gratify his wishes by diverting the course of the litigation desired by the parties and to stop the carrying out of the agreement contemplated with Eothschild & Company, and to have the court offer the property generally to the public by soliciting bids or at public sale; that Fetzer shall, by his counsel, be permitted to divert all existing arrangements from the orderly and satisfactory manner arranged by the parties in interest and to adopt a course in harmony with the desires and wishes of Fetzer and incidentally for his profit. However sincere and morally ethical Fetzer’s intentions may be, in his endeavor to force himself into this litigation, which is none of his concern, we regard it as untenable to set such a precedent, unheard of in the annals of judicial procedure and which would be subversive of the inherent right of every, individual to manage his own affairs in his own way and without the interference of strangers. Were the law otherwise, who would be free in his property right and business affairs from the intermeddler, wise or otherwise, who might insist, as in this case, in assuming to direct what he might regard as the better method of disposing of another’s property, however objectionable such method might be to the one vitally interested as owner 1 Surely no one can be in earnest in attempting to pursue such a course. But counsel urge that because Fetzer is willing to pay more for the leaseholds or procure third parties to pay more therefor than the owners are willing to accept from Rothschild & Company, that fact gives Fetzer a standing in the litigation by becoming a party to it, although in just what way did not seem so very plain to either Fetzer or his counsel when the attempt was made to intervene. This is evident from the petition, which prays that it may be regarded as “a petition, or as an intervening petition, or as an answer or cross-bill in said cause, or as an original bill.” This prayer amply foreshadows the dire straits which the learned counsel must have realized confronted him when he sought to get into this litigation upon the averments of such á pleading.

We have carefully examined the brief of appellant’s counsel filed in opposition to the motion to dismiss, as well as the brief filed in support of the errors assigned for a reversal of the order of dismissal by the Circuit Court, also the authorities cited. However we fail to discover among the cases cited one analogous to the case before us either on fact or principle. In no case cited was the party intervening naked of any interest or claim. Wherever the court entertained jurisdiction, the moving reason was a substantial interest of the person who sought the protection of the court for such interest. What has the reasoning of the court in Blake v. Blake, 80 Ill. 523, when it said: “It is apprehended there can be no decree against a party-that will work a deprivation of his property or liberty, from which no appeal or writ of error will lie” to do with this case? Such principle, although abstract, states the law; but to make it concrete and operative in any other cáse it must be applied to the facts ■ of such other case. It-> certainly has no pertinency to the facts found here. Fetzer has neither property nor liberty at stake in this litigation nothing of which the court could deprive him.

There is no collateral controversy settled here, as in Association v. Smith, 169 Ill. 264. Fetzer has no interest in the controversy whatever, collateral or otherwise. Gumbel v. Pitkin, 113 U. S. 545, has no bearing. Ghimbel had rights. Fetzer has none. Carsamajor v. Strode, 1 Sim. & Stu. 381; Anderson v. Foulke, Har. & G. 346; Delaplane v. Lawrence, 10 Page 604; Blossom v. Milwaukee etc. Ry. Co., 1 Wallace 615, and numerous other cases cited in appellants briefs arose in foreclosure proceedings, where the persons asking the aid of the court had become interested in the subject-matter of the suit as bidders at a sale under a decree, or where such person had been brought into the cause to compel him to carry out a contract made in virtue of the court’s decree. Fetzer has made no bid or offer under any decree or order of the court. He is asking the court to let him bid and thereby become interested. If the court had heeded his request, which it might in certain circumstances have done, and a question should be raised in relation to such bid, or flowing from the action of the court in dealing with him in an attempt to enforce a compliance with such bid, then there would be a right to appeal.

In Derrick v. Lamar Ins. Co., 74 Ill. 404, the court did not limit the right to an appeal to one who was a party “provided he has an interest in the question which may be affected by the decree or order appealed from.”

Quigley v. Breckenridge, 180 Ill. 627, was the case of a bidder at a partition sale, who had been given leave to defend in the court below and thereby became a party to the suit and was therefore entitled to appeal. Fetzer is not and never has been a party to the original cause. In all the cases cited, both in American and British courts, wherever the right to appeal has been accorded, such right has been predicated on the party having an interest in the litigation or the property involved in the cause.

Assuming, contrary to the fact, that the intervening petition and affidavit of Fetzer were lawfully before the court for its consideration and judgment, still as they failed to disclose any interest or right in Fetzer to obtrude himself into the cause, the action of the chancellor in striking them from the files was the only course open. No other disposition of the matter could have been sustained. Rosenberg v. Stern, 177 Ill. 437; Wightman v. Yaryan, 217 ib. 371. In the Wightman case supra the Supreme Court held that the interest entitling’ a person to intervene in an equity cause must be created by a claim or lien upon the property, or some part of it, in suit, of such an immediate character that the intervenor will gain or lose by the direct operation of the decree. As Fetzer can neither gain nor lose anything by any decree entered in the court below, the fundamental principle conferring the right to intervene is, under the Wightman case, lacking, so that the right to intervene does not exist. To the like effect is Day v. Bullen, 127 Ill. App. 155.

Third. As Fetzer has no interest in the litigation or the subject of it, as we have heretofore indicated, he certainly has no right to appeal. People ex rel. Dunham v. McCormick, 201 Ill. 310; Strong v. Peters, 212 ib. 282. Where an appeal is prosecuted or writ of error sued out by one having no interest in the litigation and therefore no right to a review of the trial court’s judgment or decree, a motion to dismiss in this court was held to be a proper course of procedure, and this court’s action in dismissing a writ of error sued out by a stranger was upheld in Scott v. Great Western Coal Co., 223 Ill. 271. Such is the trend of authority in many other cases.

Fetzer had no right to appeal, and the order allowing the appeal was erroneous. The motion to dismiss is a proper method to dispose of this appeal, for as appellant had no standing in the litigation in the Circuit Court, none was conferred by erroneously granting an appeal which this court has no right to entertain.

The other questions argued as to the duty of the trustees or of the court to coerce the trustees to perform such duty, are not, in the view we take of appellant’s attitude and standing, incumbent upon us to decide on this appeal.

Finally, the chancellor treated Fetzer as amicus curies and proceeded to hear at length all the proofs supporting averments and sworn statements made by Fetzer, which tended to cast any doubt upon the integrity of the actions of the interested parties and whether the court was being deceived. The chancellor found that none of the charges made by Fetzer were sustained and exonerated all concerned from any taint or suspicion of guilt of the charges made. On the contrary, after such hearings, the court in effect held that all the evidence considered and the relations and interests of all the parties being taken into account, the proposed lease to Bothschild & Company was for the best interests of all the beneficiaries under the trusts, and that in the peculiar situation of the propérty and the conditions of the original ground leases to Jonathan Clark, that to follow the course pursued by Fetzer might jeopardize and imperil the whole estate held by the trustees and possibly ultimately result in its loss; and that not to sanction the carrying out of such understanding with Bothschild & Company would be violative of honest, upright, fair dealing. The chancellor having disposed of Fetzer’s complaints and charges as amicus curies, his right to remain in the case and further press his charges ceased. We think that the doctrine announced in 9 Ene. P. & L., 725-6, that “An amicus curies has no control over the suit and no right to institute proceedings therein, nor. has he the right to bring the case from one court to another or from a single judge to a full court, by exceptions, appeal or writ of error” is sound law.

The motion to dismiss the appeal of Fetzer is allowed and the appeal is dismissed.

Appeal dismissed.


text:
    Frederick W. Clark et al., Trustees, v. Dorothy S. Clark et al., Appellees, On the Appeal of John C. Fetzer, Appellant.
    Gen. No. 16,144.
    This case is controlled by the decision in Bayley v. Clark, ante, p. 154.
    Intervening petition. Appeal from the Circuit Court of Cook county; the Hon. Juman W. Mack, Judge, presiding.
    Heard in this court at the October term, 1909.
    Dismissed.
    Opinion filed March 1, 1910.
    Elbridge Hanecy, and Arthur B. Wright, for appellant.
    Wilson, Moore & McIlvaine, for certain appellees.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

For the reasons set forth in case general number 16,143 in an opinion this day filed (ante, p. 154), the motion to dismiss the appeal is allowed and the appeal is dismissed.

Appeal dismissed.