text:
    Emily Sheridan, Plaintiff in Error, v. Chicago & Oak Park Elevated Railroad Company, Defendant in Error.
    Gen. No. 14,887.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight oí the evidence unless clearly and maniiestly so.
    2. Instructions—what not singling out particular evidence. To instruct singly with respect to a particular substantive defense, is not the singling out or selection of a particular fact.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Marcus ICavanaoh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed February 15, 1910.
    Elmer W. Adkinson and James Hibben, for plaintiff in error.
    Clarence A. Knight and William G. Adams, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Mrs. Sheridan, plaintiff below, brought suit against the Elevated Bailroad Company to recover damages for personal injuries sustained by being run into by one of its trains. A trial by jury was had, a verdict for the defendant returned and the trial judge rendered judgment according to the verdict. Mrs. Sheridan prosecutes this writ of error to reverse that judgment.

The occurrence in question took place shortly before two o’clock in the afternoon on September 17, 1903. Plaintiff was walking across the company’s tracks on South boulevard where Euclid avenue runs from the south into that boulevard, in Oak Park, Illinois. South boulevard is a street running east and west, appears to be a street of rather more than ordinary width and the north fourteen to twenty feet thereof are occupied by two tracks of the defendant. East of Fifty-second avenue defendant’s tracks are elevated, but at Fifty-second avenue the tracks of the defendant’s elevated railroad descend to the surface and at the place in question, which is west of Fifty-second avenue, the tracks run upon the surface of the ground. The north track is the west-bound track and the south track is the east-bound track. Euclid avenue does not cross South boulevard and north of that boulevard lies the right of way of the Chicago and North-Western Bailway Company. Within the right of way of the North-Western Bailway Company runs a platform from Oak Park avenue, the next street on the west, to a point opposite Euclid avenue. From this platform two walks lead south, through a fence on the south line of the right of way, across defendant’s tracks respectively at points approximately opposite the east and west sidewalks of Euclid avenue. These walks incline slightly toward the south, because the platform is higher than South boulevard. Mrs. Sheridan came along one of these walks at the time in question, walking south from the platform. She tells us the day was a very clear, bright, sunny day and that she is “long-sighted.” 'There is a square conflict in the evidence whether she came on the east or on the west walk. It appears that on this question the preponderance of the evidence is clearly with the defendant; but, although a telegraph pole stood between the walks which at one point of time must have shut off her view of the approaching train, if she were on the west walk, we regard it as unnecessary to the decision of this ease to determine that question. Oak Park avenue station of the defendant was on the east side of Oak Park avenue. Mrs. Sheridan testified she walked slowly down the walk to within two feet of the opening in the fence where she paused and rested some packages she carried against the east hand rail. This point where she stopped was about two feet north of the north rail of the north track of defendant’s road. While she stood there an east-bound train of defendant pulled out of the Oak Park avenue station and passed her. In the front car of that train she observed and watched a couple of friends until that car had passed Euclid avenue. She further testified that she then looked west to see whether any other car or train was coming and saw none. Then she looked east and saw the east-bound train going on the south track. She was unable to say whether by that time the train had cleared the east side of Euclid avenue, but would say-that the last car was then approximately at the west crossing or a little beyond. She clearly saw the train as a whole as it receded. She then started to cross and was struck by the southwest corner of the front car of a west-bound train, which came from the east on the north track, was knocked down between the two tracks, rendered unconscious and seriously injured.

The motorman of the train testified he first saw plaintiff when his train was about 400 or 500 feet distant and that then she was coming east on the platform. Up to about the point where he first observed her he had been going at full speed, twenty to thirty miles an hour, but about that time he shut off the motor and "began slowing np to make the station stop at Oak Park avenue. He saw plaintiff come walking east slowly, facing toward his train, and turn south on the walk toward the track. He also saw her stop, close to the fence of the North-Western right of way—about eight or ten feet from the place where she was struck. While stopping she looked up in his direction. When she started to cross the tracks his train was within a few feet of her and she started “in a brisk little walk.” He threw his brake “into the emergency” and after striking her his train, consisting of two cars, did not pass her by entirely. When the train stopped she was lying by the side of the rear car between the middle and the rear end thereof. He testified he thought she saw him and therefore did not blow his whistle.

There was no flagman at the crossing and no signal of any kind was given as the train approached.

The approaching west-bound train was unquestionably plainly to be seen by plaintiff, not only before she stopped but also while she walked the few feet, from the place she stopped, out upon the track in front of the train which struck her. Plaintiff’s counsel’s theory is that as plaintiff looked east she failed to distinguish between the receding and the approaching trains. She testified that although the tracks toward the east run in a practically straight line she did not observe the approaching train as she looked east. It is argued on her behalf that by a condition created by defendant she was deceived into a failure to observe the approaching train; that is, because, as shown by the evidence, the front end of the front or motor car is in appearance just the same as the rear end of the last car. The effect produced upon the mind in watching one train going and another approaching, it was testified, is as if one train dissolved into another. The theory and the argument, however, together with the evidence, present nothing but questions of fact. We may assume that defendant was shown to be negligent and nevertheless we fail to see any reason for reversing the judgment. A principal question in the trial was whether plaintiff by negligence on her part contributed to bring about the injury. The verdict must be regarded as a finding by the jury against the plaintiff upon this question. The trial judge approved of the verdict. The evidence, in our opinion, is such as to leave ample room for the jury to arrive at the conclusion that plaintiff failed to exercise the proper degree of care for her own safety and that such failure was a proximate cause of her injury. We have carefully scrutinized the evidence and can arrive at no other result.

The errors charged against the instructions of the court we do not find to be well taken. In instructing as the court did wdth reference to contributory negligence, the court instructed upon a substantive defense.This was not a singling out, or selection, and instrucing upon a particular fact. We find no error requiring a reversal. The judgment of the Superior Court must be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Chytraus

license: Public Domain

text:
    John F. Devine, Administrator, Appellee, v. Torris Wold, Appellant.
    Gen. No. 15,044.
    Appeals and errors—when nothing to revieio. If no errors have been argued and none have been assigned on the common law record, there is nothing to review where the record contains no bill of exceptions.
    Appeal from the Circuit Court of Cook County; the Hon E. W. Clifford, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed February 15, 1910.
    Johan Waage, for appellant.

      Hobart P. Young, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

The plaintiff below, Zimmerman, recovered a judgment against defendant for $500. A motion to strike the bill of exceptions was allowed herein on March 26, 1909. No errors have been argued nor have any been assigned upon the common law record. Consequently, in the absence of a bill of exceptions, the judgment must be affirmed.

Affirmed.


author: Mr. Justice Mack

text:
    Lars Olsen, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 14,509.
    1. Instructions—when great care in giving, should he exercised. If the evidence is Closely conflicting, the greatest care must be exercised in instructing the jury fully and fairly on all the issues; in any event, in not refusing to give proper instructions requested by either side.
    2. Instructions—when refusal to give, not material error. It is not material error for the court to refuse the usual instruction given in personal injury suits cautioning the jury against prejudicial sympathy or different treatment of individuals and corporations, etc.
    3. Instructions—when refusal upon degree of care to he exercised hy motorman, improper. Held, that an instruction which told the jury that the law did not require a motorman to exercise a higher degree of care for the plaintiff than it required the plaintiff to exercise for himself, should have been given, but not affirmatively held that the refusal to give such instruction was reversible error.
    4. Instructions—when refusal as to credibility of employes erroneous. Held, error to refuse to instruct the jury that they had no right to disregard the testimony of a witness simply because he is an employe of either party.
    5. Instructions—when refusal as to anticipation of dangers erroneous. Held, error to refuse to instruct the jury that the defendant traction company need not be on guard against danger not reasonably to be expected, and that the motorman, on the occasion in question in this case, need not have anticipated such danger or regulated his conduct with reference to the conduct of others not reasonably to be anticipated under the circumstances in evidence.
    6. Instructions—when refusal as to definition improper. A tendered instruction containing a correct definition of ordinary care and prudence should not be refused if the court in no other instruction has defined ordinary care and prudence.
    Action in case for personal injury. Error to the Municipal Court of Chicago; the Hon. Mancha Beuggemeyer, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed February 15, 1910.
    Mark E. Guerin and Ferdinand Goss, for plaintiff in error; John A. Harrington, of counsel.
    Francis X. Busch and Frank A. Rockhold, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

As is unfortunately usual in personal injury cases, the evidence in this case is in direct conflict. If plaintiff’s version be correct, he had driven from the west to the east side of Cottage Grove avenue between 27th and 28th streets and was driving on defendant’s north-bound track. He had a clear view of defendant’s south-bound car. When it was 200 feet away from him (he being then 50 feet south and the car 100 feet north of 27th street), he turned his horse toward the northwest, intending to go west on 27th street; defendant’s motorman, who could and should have seen plaintiff’s actions, drove his car across 27th street without any slackening of its fast speed, and struck the wagon, throwing plaintiff off and causing permanent injuries. Plaintiff testified that he had calculated that he could get across the west track if defendant’s south-bound car slowed down.

On the other hand, defendant’s version is that though the motorman had seen plaintiff ’s wagon between 27th and 28th, a north-bound car obstructed the view; that the south-bound car was only 30 to 35 feet away when the horse’s head appeared behind this north-bound car, not south of but in 27th street, too near to prevent a collision if plaintiff kept on; that being on half speed, six to seven miles an hour, he did not slow down for the 27th street crossing.

The verdict for plaintiff for $1,000 as rendered, or a verdict for defendant if one had been rendered, based respectively on defendant’s negligence or lack of negligence and on plaintiff’s. observance or failure to observe due care, would, so far as the evidence is concerned, be sustained in this court. In other words, the preponderance on both points, and particularly on the question of plaintiff’s care, is not so clear that this court would, on this ground, have been justified in reversing a judgment based on a verdict for either party.

When the evidence is so conflicting, the greatest care must be exercised in instructing the jury fully and fairly on all the issues; in any event, in not refusing to give proper instructions requested by either side. Failure so to do necessitates a reversal, inasmuch as we should then have to say that the “judgment resulted from substantial errors of said Municipal Court' directly affecting the matters at issue between the parties.” Mun. Court Act, sec. 23, par. 7.

In our judgment, while no error was committed in giving the instructions requested by plaintiff or in refusing certain instructions requested by defendant hereinafter referred to, defendant’s rights were seriously impaired by the refusal to give some of the instructions requested by it.

While the usual instructions in such cases, cautioning the jury against prejudice or sympathy or different treatment of individuals and corporations, directing them not to allow plaintiff anything through mere guess, conjecture or speculation, and advising them of their right to reject the entire testimony of a witness who has wilfully and knowingly sworn falsely to a material point, would, in our opinion, have been eminently proper in this case, we cannot say that the refusal to give them is such material error as to justify a reversal.

Whether the error in refusing to instruct that the law did not require the motorman to exercise a higher degree of care for the plaintiff than it required the plaintiff to exercise for himself, would, of itself, compel a reversal, is more doubtful, although, especially in view of the plaintiff’s own testimony as to his knowledge of the chance he was taking, the instruction should have been given.

In Chicago City Ry. Co. v. Strong, 127 Ill. App. 472, the refusal to give a similar instruction, as well as the refusal to give other proper instructions, was the ground of reversal.

The instruction that the jury had no right to disregard the testimony of a witness simply because he was or is an employe of either party, not only stated a correct legal proposition but, in view of the direct conflict in the testimony between plaintiff and the motorman, was of the utmost importance to defendant.

So too instructions that the company need not be on guard against dangers not reasonably to be expected, and that this motorman on this occasion need not have anticipated such dangers or regulated his conduct with reference to the conduct of others not reasonably to be anticipated under the circumstances in evidence, should have been given, inasmuch as defendant was entitled to have the jury instructed on the law applicable to its theory of the case, namely, that plaintiff suddenly emerged from behind a north-bound car and crossed west when the car that struck him was only 30 or 35 feet away. Chicago Union Traction Co. v. Browdy, 206 Ill. 615. In our judgment this legal principle was not stated in any of the given instructions.

Nowhere did the court define ordinary care and prudence. A tendered instruction containing a correct definition should not have been refused.

For the errors in refusing proper instructions, the judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    American Hide & Leather Company, Defendant in Error v. C. C. Andersen et al., Plaintiffs in Error.
    Gen. No. 14,826.
    1. Chancery—when adequacy of legal remedy cannot he urged. If a defendant though served has suffered himself to he defaulted for want of answer he cannot in the Appellate Court urge the point that the legal remedy was adequate if the case was one not wholly foreign to equity jurisdiction.
    2. Damages—when chancery has jurisdiction to award. Though a court of chancery would have no jurisdiction to decree only payment of damages for past trespasses, yet if it obtain jurisdiction in order to enjoin the repetition of the trespasses, it may determine the damages for past wrongs and decree their payment instead of relegating the parties to a court of law for this relief.
    Bill for injunction. Error to the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed February 15, 1910.
    West, Eckhart & Taylor, for plaintiff in error, C. C. Andersen.
    William M. Lawton, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

The bill of complaint filed herein alleged that complainant was lessee of property under a lease expiring December 31, 1910; that buildings on the premises were destroyed by fire in 1907 and the ruins sold to be removed by January, 1908; that in March, 1908, defendants began depositing rubbish in large quantities on the premises; that they had filled in the lot to a distance of three feet above the level of the surrounding property and covering nearly 65,000 square feet of surface, and that they threatened to continue using the lot as a dumping ground; that defendant Wallace was insolvent and that defendant Andersen had stated to complainant’s agent that he would continue so to use the premises despite any action at law that might be brought against him; that if complainant .attempted to use force to prevent the trespasses the result would be violence, riot and possible bloodshed ; that it had been greatly damaged and that great and irreparable injury would result to it unless defendants were enjoined. The prayer was for an injunction and compensation for damage committed. Both defendants defaulted after personal service, and a decree was rendered finding the facts as alleged in the bill and that complainant had been damaged $1,000 by defendant Andersen’s trespasses, granting an injunction and decreeing that defendant Andersen pay to complainant $1,000 as its just damages.

Andersen sued out a writ of error to reverse the decree. He contends, first, that remedy at law is adequate, and second, that the allegations of the bill are insufficient to sustain the decree.

Inasmuch as defendant, though served, suffered himself to be defaulted for want of answer, and as the case clearly is one not wholly foreign to equity jurisdiction, the defendant cannot in this court urge the point that the legal remedy was adequate. C. C. C. & St. L. Ry. Co. v. Munsell, 192 Ill. 430, at 433; Whalen v. Billings, 104 Ill. App. 281, at 285.

The findings in the decree based on the allegations of the bill and sustained by testimony heard in open court fully justified the relief given. The court found that the trespasses committed had caused complainant $1,000 damages, and that a continuance thereof would result in irreparable damage.

Though a court of equity would have no jurisdiction to decree only payment of damages for past trespasses, yet if it obtain jurisdiction in order to enjoin the repetition of the trespasses, it may determine the damages for past wrongs and decree their payment instead of relegating the parties to a court of law for this relief. Keith v. Henkleman, 173 Ill. 137.

The finding that “the lot was covered to a depth of about four feet over its entire surface” is not inconsistent with the allegations of the bill as above recited. In any event, the damages awarded were not excessive whether the lot was raised three feet or covered to a depth of about four feet.

Affirmed.


text:
    Louis Armstrong, Defendant in Error, v. Dennis Quill et al., Plaintiffs in Error.
    Gen. No. 14,872.
    Scire facias—when judgment rendered upon reversed. A judgment rendered upon a scire facias to add a party to a judgment will he reversed if the evidence does not sustain the same.

      Scire facias. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed February 15, 1910.
    Thatcher, Griffen & Wright and F. L. Fairbank, for plaintiffs in error.
    John W. Creekmur, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

In a suit for goods sold and delivered plaintiff obtained a default judgment against Daniel J. Quill and M. Quill Adams sued jointly with Dennis Quill as co-partners. Service of process was not secured on Dennis Quill. To reverse a judgment subsequently rendered on scire facias against him he sued out a writ of error, and contends that the evidence fails to show that he is jointly liable with his co-defendants.

Dennis Quill had sold his business to his co-defendants, his children, four years prior to the transactions. Proper notice had been given to the trade, and though the name Dennis Quill was retained as the firm name, all of the stationery except a few old stray letterheads, one of which reached plaintiff, indicated clearly that the other two had succeeded to the business. Dennis loaned money to his children and frequently made out checks direct to their creditors, but always handed them to the children for delivery. He selected the goods in question for them because his forty years’ experience enabled him best to pass on the quality needed. There is a conflict in the testimony as to the conversation between him and plaintiff. Assuming, without deciding, that plaintiff’s version is correct, that he had no knowledge of the changes in the business and that he sold the goods solely to Dennis Quill for his own use, he has failed to establish the only case on which his judgment can be upheld. The proof is clear that Dennis Quill was not a member of the firm; it is, in our judgment, equally clear that he was not an ostensible member of the firm. Neither he nor his co-partners were estopped from denying joint liability; he was never held out as a member of the firm.

If plaintiff’s version is correct, he might have had a good claim against Dennis Quill individually; if the latter’s version is correct, he had a good claim against the other two defendants. But he cannot hold Dennis Quill jointly with the others.

The judgment on the scire facias will be reversed.

Reversed.


text:
      John F. Devine, Administrator Appellee, v. Louis Owsley, Receiver, Appellant.
    Gen. No. 14,879.
    Contbibutoby negligence—when person injures upon railway tracks guilty of. A person injured while upon railway tracks is guilty of contributory negligence which bars a recovery if while walking on such tracks he fails to keep vigilant watch by turning back to see or remaining alert to hear the approach of trains.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavanagi-i, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed February 15, 1910.
    Rehearing denied March 4, 1910.
    Clarence A. Knight and Oliver R. Barrett, for appellant.
    J. K. McMahon and John T. Murray, for appellee.
   Mr. Justice Mack

delivered the opinion of the court.

The jury rendered a verdict of guilty in this case and assessed the plaintiff’s damages at $8,000. A remittitur was required by the trial judge, who rendered judgment for $5,000.

That Patrick O’Keefe was killed by defendant’s car is settled; that defendant was guilty of negligence will be assumed. We shall have to consider but one of the many questions raised by appellant, inasmuch as the judgment of this court is necessitated by our opinion thereon.

Was the deceased guilty of contributory negligence? Patrick O’Keefe, aged forty-six, had left Fort Smith, Ark., on January 29, 1907, for Chicago to promote a patent. He had stopped down town at the Brevoort House. The evidence is overwhelming that he was often under the influence of liquor or drugs and was in great financial difficulties. His arms gave every indication of frequent use of hypodermic injections. His wife in a letter to him dated Feb. 5, 1907, expressed the fear that he was drinking and implored bim to desist. His sight and hearing were good.

On February 11,1907, between 10:30 and 11 o ’clock, a cold, dark, moonless night, at or near the intersection of Harrison and Walnut streets, a sparsely settled region in the extreme western outskirts of the city, defendant’s car, traveling west at the rate of twenty miles an hour, struck and killed the deceased. His body was lying just infront of the rear truck, untouched by the wheels. Whether he was walking west in the car tracks, as was testified to by defendant’s witnesses and, in our judgment, as was proven by all the evidence, or was crossing the tracks at Walnut street—a street only in name and distinguishable from the surrounding property only by a path—as claimed by appellee’s counsel, is immaterial. There was no obstruction of any kind on Harrison street or on Walnut street that could have prevented the deceased from seeing the approaching car at least a mile away. The headlight was good, with a nickel reflector. A street lamp at the corner was lighted. Moreover the testimony is clear that the noise of the car was plainly audible for at least half a block away, and that the gong sounded loud and continuously from the time that the car was 75 to 100 feet away from the deceased. There were no other disturbing'noises of any kind. We need not conjecture whether O’Keefe deliberately committed suicide or had so completely drugged himself as to have dulled his power to see or to hear and completely to have dazed him. We cannot, however, find any explanation of his position in relation to the car consistent with the exercise of due care on his part.

Walking in the car tracks, even though the space between the east and west bound tracks was broad and good enough, would not in itself prove contributory negligence, especially where, as here, because there was a sidewalk but for a very short distance and the roadway north and south of the outer tracks was poor, it was customary to walk in or near the tracks. We should not hold that walking west in the west-bound track at night was in itself negligent, because the traveler might well rely on his sense of hearing or on his ability to glance back from time to time. But walking in this track without keeping vigilant watch, by turning back to see or remaining alert to hear is, in our judgment, such contributory negligence as must bar a recovery.

And to attempt to cross a track in such a region at such a time, with the car in full sight and hearing, is even greater negligence.

The judgment will be reversed.

Reversed.


text:
    Margaret Dowd, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 14,898.
    1. Instructions—when present or former employment element in determining credibility of witness. The mere fact of present or former employment of a witness by one of the parties, is not an element in determining his credibility or the weight of his testimony, unless in addition it be shown that he has an interest in the result of the litigation.
    2. Instructions—when refusal upon slight preponderance erroneous. In a close case an instruction on this subject as follows:
    “The court instructs the jury that while, as a matter of law, the burden of proof is upon the plaintiff, and it is for her to prove her case by a preponderance of the evidence, still if the jury find the evidence hearing upon the plaintiff’s case preponderates in her favor, although but slightly, it will be sufficient for the jury to find the issues in her favor, and find a verdict against the defendant,” should be given; the refusal is not reversible error.
    3. Instructions—when cautioning against sympathy erroneous. The use of the word “even” in an instruction telling the jury “that sympathy for the injuries and disabilities of the plaintiff even though you believe they exist,” though erroneous as an expression of doubt on the part of the judge as to the existence of such injuries and diabilities, is not reversible error.

      4. Instructions—when upon exercise of ordinary care erroneous. An instruction which tells the jury that a mere failure on the part of the plaintiff to exercise ordinary care to avoid being injured will bar a recovery, is erroneous; such a failure must have been at or about the time of the accident, at the place of the accident, and of such a character as to have contributed to the injury.
    5. Instructions—when error to instruct for defendant. Where the declaration contains a single count wherein the defendant’s negligence is alleged disjunctively in various forms, the proof of any one of which would sustain a judgment for plaintiff, it is reversible error to instruct the jury to find for the defendant unless the plaintiff proved the defendant guilty of negligence “in the manner charged in the declaration.”
    6. Appeals and errors—lohen recitals of hill of exceptions do not justify inference of clear preponderance in favor of defendant. The Appellate Court is not justified ini concluding that there was such a clear preponderance of the evidence in favor of the defendant as to require a judgment in its favor to be upheld despite serious errors in the instructions, where the bill of exceptions after giving the substance of the directly conflicting testimony of plaintiff and one witness for her and of the defendant’s motorman and conductor, recites that “there were other witnesses to the occurrence called on behalf of the defendant and other witnesses to the injuries on behalf of both parties not herein referred to or abstracted.”
    Action in case for personal injuries. Error to the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed February 15, 1910.
    Henry S. Wilcox, for plaintiff in error; Jesse Wilcox, of counsel.
    John E. Kehoe and Watson J. Ferry, for defendant in error; John R. Harrington, of counsel.
   Mr. Justice Mack

delivered the opinion of the court.

In a personal injury suit, in which the evidence was so conflicting that the determination of the jury as to the preponderance would be upheld by this court, judgment was rendered for defendant on the jury’s verdict.

Hnder these circumstances it was essential that the jury be carefully and properly instructed.

Complaint is made by plaintiff particularly of given instructions, but also of the refusal to give two others requested on her behalf.

The court had, at defendant’s request, instructed the jury that they had the right in weighing plaintiff’s evidence to take into consideration the fact of her interest, but refused to give the following:

“1. The jury are instructed that the fact that any witness in this ease is or has been in the employ of the plaintiff or defendant, if such is the fact, as well as the relation which exists between any witness and either party, if any, in this suit, and any interest the witness rnay have in the result of the suit, if any, may be considered by the jury in determining the weight which ought to be given to the testimony of such witness, or witnesses, taking the same in connection with all the other evidence in the case and the facts and circumstances proved upon the trial.”

The motorman and conductor had testified directly contrary to plaintiff’s witnesses on essential points.

While the Supreme Court held in Donley v. Dougherty, 174 Ill. 582, that the giving of this instruction involved no substantial or reversible error, it has now been determined that the mere fact of present or former employment of a witness by one of the parties, is not an element in determining his credibility or the weight of his testimony unless in addition it be shown that he has an interest in the result of the litigation. Bennett v. Chicago City Ry. Co., 243 Ill. 430, at 433, 439 and 440.

The second refused instruction was as follows:

“The court instructs the jury that while, as a matter of law, the burden of proof is upon the plaintiff, and it is for her to prove her case by a preponderance of the evidence, still if the jury find the evidence bearing upon the plaintiff’s case preponderates in her favor, although but slightly, it will be sufficient for the jury to find the issues in her favor, and find a verdict against the defendant.”

This instruction has been approved as sound in Taylor v. Felsing, 164 Ill. 331, and numerous other cases. The question of whether the refusal to give it in a close case constitutes reversible error does not seem to have been decided. In O’Donnell v. Armour C. H. Works, 111 Ill. App. 516, its refusal did not cause a reversal because “no other verdict could reasonably have been returned.” Moreover, since this decision the Supreme Court has expressly held such an instruction to be good. C. C. Ry. Co. v. Fennimore, 199 Ill. 9.

We cannot find any valid reason for the refusal where, as in this case, the word “preponderance” was not defined to the jury except as it was used at times interchangeably with the phrase “greater weight.”

Plaintiff objects to the word “even” in an instruction “that sympathy for the injuries and disabilities of the plaintiff even if you believe they exist” should have no influence, as an expression of doubt on the part of the judge as to their existence. We cannot assent to defendant’s view that the objection is hypercritical.

Nevertheless we do not regard the errors in refusing the one instruction and in giving the other as in themselves sufficient ground for reversal.

The main error relied upon by plaintiff is in the giving of the first instruction tendered by defendant and reading:

“1. The jury are instructed that the plaintiff cannot recover against the defendant in this case, unless they find she has a preponderance of evidence supporting the three following propositions:
“First: That the defendant was guilty of negligence in the manner charged in the declaration, or one of the counts thereof.
“Second: That the plaintiff was injured as a direct result of such negligence.
“Third: That the plaintiff herself exercised ordinary care to avoid being injured.
“Proving one, or even two, of these propositions does not entitle the plaintiff to recover, and unless you find from the evidence under the law, as given in these instructions, that she has sustained all three of these propositions by a preponderance of the evidence, she cannot recover, and your verdict should be not guilty.”

Her objections are threefold:

1st. The declaration consisted of but one count. Therefore the instruction referring to “the declaration or one of the counts thereof” is meaningless.

2nd. In the one count, the charge of negligence was that while plaintiff, a passenger, was about to alight defendant negligently caused the car to be started so as to cause her to be thrown and “that the defendant was guilty of negligence in the general management of said car and was particularly guilty of negligence in failing to stop said oar a reasonable length of time, and was guilty of negligence in failing to stop said car a sufficient length of time at said Justine street to enable the plaintiff to alight in safety, and was guilty of negligence in starting said car when the plaintiff was in the act of alighting, and was guilty of negligence in starting said car in a sudden and violent manner and in starting said car with a jerk, in consequence of all said acts of negligence of said defendant the plaintiff was injured as aforesaid.”

This instruction, in imposing upon her the obligation to prove the defendant guilty of negligence in the manner charged in the declaration and in directing a verdict of not guilty if she failed to do so, compelled her to prove each allegation of negligence, although the proof of one would be sufficient.

3rd. There is no limitation either of time or place or of the contributing influence of a failure by her to exercise ordinary care.

In this instruction the jury are charged that she could not recover if she failed to exercise ordinary care on the occasion in question, and if the jury further find “that such failure was negligence which contributed to the injury.” This might have cured an instruction that, in attempting to define her duty to exercise ordinary care, was not clearly or entirely correctly drawn.

But the instruction objected to went further. It was an express direction to the jury that the plaintiff could not recover in this case unless they should find that she had a preponderance of the evidence that she had exercised ordinary care to avoid being injured, and that unless they so find the verdict should be not guilty. _

_ A direction for a verdict of not guilty must be just as careful to embrace all the facts and conditions essential thereto as one of guilty. And this is equally true whether the direction is based on affirmative proof or on the absence thereof.

The mere failure on the part of plaintiff to exercise ordinary care to avoid being injured would not affect her right of recovery. Such failure must have been at or about the time of the accident, at the place of the accident, and of such a character as to have contributed to the injury.

Defendant asserts that if, in accordance with the clause marked second in this instruction, the jury found the injury to have been the direct result of defendant’s negligence, they necessarily found that plaintiff’s negligence, if any, did not contribute to produce the injury. But the very objection to the instruction is that plaintiff was required not merely to-prove that the injury resulted directly from defendant’s negligence, but also affirmatively that she was in the exercise of due care, and that too without limitation as to time and place and irrespective of whether any negligence of which she might have been guilty, even at the time and place in question, contributed to produce the injury. The law casts no such burden upon the plaintiff.

The bill of exceptions, after giving the substance of the directly conflicting testimony of plaintiff and one witness for her and of the defendant’s motorman and conductor, recites that “there were other witnesses.to the occurrence called on behalf of the defendant and other witnesses to the injuries on behalf of both parties not herein referred to or abstracted.” We cannot conclude from this statement that the preponderance of the evidence was so clearly with the defendant as to require an affirmance of the judgment despite the errors in the instructions.

Reversed and remanded.


text:
    Edward Wolff, Defendant in Error, v. Mary Schillinger, Plaintiff in Error.
    Gen. No. 14,889.

      Liens'—section 3 of Mechanic’s Lien Act construed. A subcontractor is not entitled to a lien against the property of the wife by virtue of the provisions of section 3 of the Mechanic’s Lien Act, because the wife who knew of the principal contract with her husband did not protest in writing against it. A contractor alone is given the right to a lien by this section and he cannot by reason of its provisions maintain a personal action against such wife.
    Mechanic’s lien. Error to the Municipal Court of Chicago the Hon. Frank E. Reed, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed February 15, 1910.
    McCaskill & Son, for plaintiff in error.
    Johf F. Haas, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

Plaintiff’s claim in this case was based solely on section 3 of the Mechanic’s Lien Law. He as subcontractor supplied goods to one with whom defendant’s husband, on his own behalf and not for his wife, had contracted for the erection of a building on defendant’s lot. She knew of the contract and did not protest in writing against it. There is no proof that she had any knowledge of the subcontract.

This section aims to subject a woman’s property to the burden of her husband’s debts under' certain circumstances. If it he constitutional—and somewhat similar provisions have been held invalid in other states—nevertheless its scope cannot be extended by construction or implication.

It is not only in that part of the Act that deals with the rights of original, not subcontractors, but by its express words, it gives a lien only to one acting in pursuance of a contract with the husband. Subcontractors are therefore excluded.

Moreover it gives only a lien on the property; it does not attempt to charge the wife personally. A personal action is therefore inapplicable when the claim is based solely on this statutory provision.

Reversed.


author: Mr. Justice Smith

text:
    George W. Cobb, Appellee, v. Rosetta M. Sparr et al., On appeal of Rosetta M. Sparr, Appellant.
    Gen. No. 14,843.
    1. Partnership—when inactive partner bound. One inactive in the affairs of a partnership concern is hound by what an active partner, who has been entrusted with the care and management of the business, says and does with respect to the conduct and management of such business, and even though the claim is made that the property affected was individual property, yet such inactive partner would be bound if such property related to the firm property and business and if it appears that the proceeds thereof were used for the benefit of the firm.
    2. Partnership—what amounts to ratification. The receiving and retaining of the consideration of the transaction sought to he repudiated, is a ratification of the acts of the agent who effected such transaction.
    3. Instructions—-when slight errors will not reverse. Slight errors will not reverse if the result reached is just.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Thomas B. Lantrt, 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 by the Court. George W. Cobb, appellee, brought this action in assumpsit against Eosetta M. Sparr and Frank Weiss, copartners, defendants, to recover $5,000 as agreed compensation for information, advice and services in connection with the sale of certain real estate in the city of Chicago, owned by the defendants. Defendant Weiss filed a plea of the general issue. The defendant Sparr, in addition to her plea of the general issue, filed a special plea denying joint liability. On the trial of the cause the jury returned a verdict in favor of the plaintiff, assessing his damages at $5,373, being the alleged agreed compensation with interest. Judgment was entered on the verdict. Eosetta M. Sparr alone prosecutes this appeal.
    The material facts shown by the record are that the defendants were owners of the real estate in question, each having a one-half interest therein. They were also copartners under the firm name of Spaar & Weiss, in “the business of manufacturing mouldings and generally in the buying of stock, manufacturing, selling and vending of all sorts of goods and commodities in connection with said business.” As such copartners they were using and occupying the real estate for their business. By the terms of their copartnership they had each contributed an equal amount of property and assets to the capital stock of the firm. Weiss agreed to give his whole time and skill to the management of the business, but Mrs. Sparr was not obligated to render any service to or for the firm beyond such as she might choose to devote of her own free will and accord, but Charles L. Sparr, her son, was to represent and act for her in all firm matters, giving his whole time and skill to the business, and for this he received a stated compensation from the firm, and Weiss also received an equal amount as compensation for his services.
    In the spring of 1906 the defendants desired to sell the real estate occupied by them. Weiss and Charles L. Sparr had been approached by Wyllys Baird, a real estate broker and member of the firm of Baird & Warner, with the object of purchasing the real estate used and occupied by the firm in its business, and negotiations followed. Baird represented that he was buying for a manufacturer in Toledo, Ohio. The negotiations resulted in an oral agreement by which the defendants were to sell their property, including building, ground, and the machinery of the firm to the purchaser, represented by Baird, for $90,000, and the defendants were to pay Baird & Warner a commission of $3,500 for negotiating the sale, and were also to pay rent for the use and occupation of the property from the day of the sale in July to the first of May following.
    At that time it appears that the defendants estimated their machinery as worth $15,000, and the value of the real estate at something over $86,000, and their fixtures which could not be detached from the building at about $3,500. The rental value of the property was about $827 per month.
    While these negotiations were pending, or completed with the exception of signing a contract, W. E. Coulter, who was a broker working in the office of the plaintiff Cobb, where he had been employed for five or six years prior to this time, was informed of the proposed sale by John S. Ford, whose factory was in the neighborhood of the property in question. Coulter told Ford that he thought the price was low, and that he thought he could get Sparr and Weiss a better price. Thereupon Ford, who had known Weiss for many years, telephoned Weiss to come to his office and talk over the sale of the real estate, saying he could get a better price for the property than they had agreed to sell it for. Accordingly, the next day Weiss went to Ford’s office and Coulter was called in. They talked over the sale of the Sparr & Weiss property. Weiss said that the papers had already been prepared for the sale at $90,000 with $3,500 to be paid to Baird & Warner for commissions, and that Charles Sparr, son and representafive of appellant, and general manager of the firm, had the papers in his pocket and was going to Baird & Warner’s office that day to sign them. Coulter told Weiss he could get them $100,000 for the property, without the machinery, and they could reserve the use of the property free to the first of May following; and in view of the fact that he would get them a much larger price they would have to give him $5,000 as his commission. Coulter at this interview gave Weiss a paper, which Weiss calls a guarantee, in which Coulter gave a guarantee of $100,000 for the bare building and ground, and six months rent free. Weiss told Coulter that they would pay him $5,000 if he could secure them the price named by him. Weiss then returned to his office and Sparr did not go to Baird & Warner’s office and sign the contract.
    The day following this interview Charles Sparr and Weiss went to Ford’s office and both Sparr and Weiss agreed with Ford that they would pay Coulter $5,000 commission in view of the fact that they were to get a larger price, and were saving the $3,500 commission to Baird & Warner.
    Two days later Charles Sparr called at the office of plaintiff Cobb and saw Mr. Coulter. During their conversation Coulter gave to Sparr a paper stating in substance: “You will get $100,000 cash, your machinery free and clear, and rent free up to the 1st of May. Stick to this.” The compensation to be paid Coulter was also spoken of in this interview between Sparr and Coulter.
    Sparr and Weiss acted upon information and advice given them by Coulter, refused to close the trade with Baird & Warner at $90,000 and held out for the price of $100,000 and terms proposed by Coulter and finally sold the property on the exact terms and the price proposed by Coulter.
    The defendant Weiss never disputed the obligation to pay the commission of $5,000. The defendant Bosetta M. Sparr claims that she had never authorized the employment of Coulter nor agreed to it in any way, and refused to pay the commission.
    Howard Ames, for appellant; Eugene Clifford, of counsel.
    Thomas Taylor, Jr., and H. S. Lundahl, for appellees; Thomas Taylor, Jr., of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

It is urged that as a matter of fact the record fails to show (1) that the plaintiff Cobh performed any services or had any connection with the transaction resulting in the sale of defendants’ property, and (2) that appellant assented to any employment of Coulter or Cobb or agreed to pay them or either of them the commission sued for.

As to the first of these contentions, the evidence shows that the plaintiff is a real estate broker in Chicago and that W. E. Coulter is one of the brokers who work in and from his office on the usual brokerage basis, doing business for the office and getting his commission out of the business transacted and closed by them; that Cobb gives Coulter a certain per centum of the commissions earned from the business brought into the office by him. Coulter had been employed in this manner five or six years prior to 1906, and was so employed while engaged in assisting in the sale of defendants’ property. The evidence tends to show that Cobb was advised of what Coulter was doing in this sale at the time, and that Coulter reported to Cobb in regard to the transaction. In our opinion the evidence is sufficient to justify the finding of the jury on this question.

On the question of the employment of Coulter by the firm of Sparr & Weiss to give advice and services as claimed, the evidence, we think, leaves no reasonable ground of doubt. The evidence clearly preponderates in favor of the plaintiff on this question. It is not claimed that appellant personally took any part in the transaction. The evidence shows that she did not, and it shows further that the only specific authority given to her son by appellant, in relation to the sale of the real estate, aside from his general authority to represent her in firm matters, was to go to the office of Baird & Warner and sign the contract already prepared for a sale of the property for $90,000. On this state of facts it is contended on behalf of appellant that the authority of one partner to bind his copartners extends only to acts within the scope of the business for the carrying on of which the copartnership was formed, and hence she was not bound by Weiss’ action or by her son’s action in the matter of the sale of the real estate owned by her.

With the general principle of law invoked we do not disagree. Its application to the facts of this case, however, does not command our assent for reasons which will appear later.

It clearly appears from the evidence that appellant was not bound to and did not give any of her time to the partnership business. By the articles of copartnership she was relieved from that, and her son Charles Sparr was made her representative and “acted for her in all firm matters.” For this service he was paid $25 per week by the firm; and Weiss was paid the same salary. The intention of the copartners to substitute Charles Sparr for appellant in the conduct and management of the firm business is made clear by the copartnership agreement. Appellant must therefore be bound by what her agent and representative said and did in the conduct and management of the business and property of the firm.

While the real estate was owned by appellant and Weiss the articles of copartnership contemplated, and indeed expressly provided, that its business was to be carried on in the property, and the use of the property by the firm for its business was clearly contemplated and intended by the owners and copartners. In pursuance of that intention the firm had been and was in the actual occupation of the premises at the time of the negotiations and sale thereof here involved. Indeed, it may be that this real estate was for all practical purposes, and in equity if not in law, the property of the firm, though it is not necessary in this case for us to pass on that question. By the terms of the partnership agreement, each of the partners contributed to the firm the entire property and assets of the former firm, composed of A. Sparr and Frank Weiss, estimated at $135,699, with liabilities of $42,220.52 which were assumed by the new firm. Whether or not the real estate was included in this estimate is a matter of inference. In consequence of this situation, and of the proposed sale of the property for $90,000 to Baird & Warner or their purchaser, three things of considerable importance to the firm were involved, namely: the payment of rent by the firm until the following May, the sale of the machinery of the firm involved in the Baird & Warner proposition, and the interruption or close of the firm business in consequence of the sale of the firm machinery and the real estate. Clearly, Charles Sparr had authority to act in all matters involving the business or interests of the firm, and when by his action and that of Weiss he obtained the use of the property for the firm until the following May, and eliminated from the proposed sale of the real estate the firm machinery, thus saving it to the firm, he was acting in the interest of the firm and for its benefit, ■ and his acts and Weiss’ acts were valid and binding upon the firm. They were enabled to accomplish this and at the same time secure a larger price for the real estate, by the knowledge, advice and services of Coulter, who was retained and employed for that purpose. Furthermore, as a result of procuring the larger price for the real estate, $15,000 of the $100,000 was set apart to pay incidental expenses and obligations of the firm. The firm thus secured the rent of the premises until the following May, retained its machinery, and received $15,000 in cash as the direct result of the knowledge, advice and services for which they agreed •to pay $5,000. Where the real estate which is claimed to be the individual property of the members of a firm, is so clearly related to firm property and business as this real estate was, and the proceeds of it, as well as the property itself, were used for the benefit of the firm, the authority of Weiss, as a member of the firm, and of Charles Sparr as the general manager of the firm and representative of appellant, was sufficient, in our opinion, to bind appellant to the contract sued on in this case.

Appellant testified that she knew the property was sold for $100,000 and that she received her share of it; that she knew nothing about the machinery whether it was sold or not, but left every thing to her son, who acted for her in everything; that she knew nothing of the negotiation or sale of the property for $90,000. We find it difficult to believe that she knew nothing about the machinery as to whether it was sold or not, or that she knew nothing of the negotiation for the sale of the property at $90,000. The jury, doubtless, found the same difficulty. On the contrary, we think she knew all about the material features of the transaction, and the course of negotiations which led the defendants to suspend the proposed sale at $90,000 and stand out for the terms suggested by Coulter. And when appellant received her share of the $100,000 she knew exactly and fully how it was secured and by what agency, and was fully informed of all the material facts. The receiving and retaining of the consideration for the property was a ratification of the acts of her agent in her behalf.

Upon a review of the evidence we are satisfied that the verdict and judgment are amply sustained by it, and that the judgment below is just and right.

We have carefully reviewed the instructions given by the court and the alleged errors made therein. As we have said above, the result reached in this case is in our opinion just. Slight errors in instructions in such a case should not cause a reversal. Henrietta Coal Co. v. Martin, 122 Ill. App. 354; Boys v. Bernhard M. Co., 138 id. 88. We find no errors in the instructions which could have affected the conclusions of the jury on the merits of the controversy. The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Calixte Robidoux et al., Defendants in Error, v. Charles Baltz et al., Plaintiffs in Error.
    Gen. No. 14,850.
    1. Set-oet—what not proper subject of. Unliquidated damages which, do not grow out of the contract sued on are not proper by way of set-off.
    2. Contbacts—when severable. If several distinct deliveries are provided by a contract to be made and the price to be paid by the other party for each of such deliveries is specifically provided for by such contract, such contract is severable:
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed February 15, 1910.
    Phillip Koehler and Ossian Cameron, for plaintiffs in error.
    Hoyne, O’Connor, Hoyne & Irwin, for defendants in error; John O’Connor and Carl J. Appell, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiffs, Robidoux & Parenteau, recovered a judgment in the Municipal Court of Chicago for $201.60 against the defendants Baltz & Diederichs for cheese sold and delivered. The cheese was shipped by the plaintiffs on July 27, 1907, on the order of defendants, given prior to that date, and was received by the defendants on or about August 6, 1907. Defendants admitted on the trial that they received the cheese and that $201.60 was the correct price for it. The defense attempted to be set up under a plea of set-off was for damages for a breach of contract on the part of plaintiffs in failing to ship a carload of cheese to the defendants. The first statement of this claim sent to the plaintiffs by the defendants under date of October 11, 1907, claimed damages for non-delivery of cheese sold September 2, 1907. This statement was introduced in evidence by the defendants on the trial without modification or qualification. In the same statement they acknowledge receipt of the cheese, the price of which is sued for, on August 19th preceding. But later on the trial, the defendants shifted their ground of defense and claimed the same amount of damages on the same quantity of cheese claimed to have been sold to them by the plaintiffs on July 27, 1907. This claim is based on a letter received by the defendants from the plaintiffs bearing the last mentioned date. This letter appears to have been lost about the time of the preparation of the case for trial by the defendants.' It appears to be the only letter missing in the entire correspondence between the parties. The contents of this letter were practically the main matters of dispute on the trial. The letter was sent by plaintiffs to defendants in the same enclosure with the bill for the shipment of July 27, 1907. The defendants testified that it contained an offer to sell 350 to 400 boxes of cheese at 11% cents a pound, while Homer Parenteau, a' son of one of the plaintiffs who conducted the correspondence of plaintiffs, in his deposition ‘read in the case testified that the letter specified neither price nor quantity, but that they would sell them cheese at the market price and would stand the rise or fall of the market.

The trial court disallowed the set-off and rendered judgment for the plaintiffs..

Upon a careful review of the evidence we find no reason for disturbing the judgment of .the Municipal Court. We think it is supported by the evidence, oral and written, and it is in accordance with the law.

If the cheese was ordered and sold on September 2, 1907, as stated in defendants’ statement dated October 11, 1907, or if the contract of sale was made in the lost letter of July 27, 1907, which enclosed the bill for the cheese already shipped and for the price of which the suit was brought, the defendants’ claim in its set-off is for unliquidated damages which did not grow out of the contract sued on and are not proper subject of set-off. Higbie v. Rust, 211 Ill. 333; Clause v. Bullock P. P. Co., 118 id. 612.

If the cheese which the plaintiffs failed to ship, and forming the basis of the plea of set-off, was to be delivered under the same contract by which the cheese the price of which is sued for by plaintiffs, was delivered, the contract was, in our opinion, a severable contract, because the part to be performed by the plaintiffs consisted of several distinct and separate items, and the price to be paid by the defendants was apportioned to each item to be performed. Under the authorities this makes it a severable contract. Burt v. Garden City Sand Co., 141 Ill. App. 603, affirmed in 237 Ill. 473; Keeler v. Clifford, 165 Ill. 544; Bank of Antigo v. Union Trust Co., 149 id. 343; Dobbins v. Higgins, 78 id. 440. On failure of defendants to pay for the cheese delivered when payment was due, plaintiffs had a right to cancel the contract and refuse to deliver any more goods under it. This was done in the letter to defendants dated September 2, 1907. This view of the contract would defeat defendants’ claim.

We find no error in the record and the judgment is affirmed.

Affirmed.


text:
    James Ferris Scott, Defendant in Error, v. Peabody Coal Company, Plaintiff in Error.
    Gen. No. 14,864.
    1. Master and servant—when former not liable to third party for acts of servant. If a servant employed by a master in the driving of a coal wagon has been instructed not to permit boys to ride with him on such wagon and he violates such instructions and the boy riding upon such wagon is injured, the master is not liable.
    2. Negligence—what not attractive nuisance. Held, that a coal wagon in active use is not an attractive nuisance so as to render the owner thereof liable for an injury to a boy who is permitted to ride thereon contrary to specific instructions by the master.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed February 15, 1910.
    Statement by the Court. This writ of error is prosecuted to reverse a judgment of the Municipal Court of Chicago for $600 entered on a verdict of a jury in favor of the plaintiff, James Ferris Scott, a minor, defendant in error here, against the defendant, Peabody Coal Company, plaintiff in error, in an action for personal injuries.
    In the forenoon of July 23, 1907, the plaintiff, a boy about nine years old, was sent by Ms mother, Lucia Scott, to the coal yard of the defendant at 59th street and Stewart avenne, Chicago, with the lunch of George Sparks, a coal shoveler employed by the defendant. Sparks boarded with Mrs. Scott. When the plaintiff arrived at the coal yard, Sparks asked him, “Do you want to ride home?” and plaintiff said, “Yes.” Sparks then told the plaintiff to ask the driver of a wagon to let him ride, and the plaintiff answered that he did not want to ask him. Sparks then asked a driver,' Anthony Hughes, to give the plaintiff a ride home. Hughes told the plaintiff to go to the corner of the street and wait until he came along and then he would let him get on the wagon. The plaintiff thereupon left the coal yard and went to the corner about a block away, and waited for the driver to come with the load of coal. When the driver came along, he asked plaintiff how far he wanted to go, and on being told, said to plaintiff, ‘ ‘ Get on the back of the wagon.” There was another man on the wagon named Vaughn who was not in the employ of the defendant company. Vaughn had been to the coal yard to seek employment. Failing to obtain employment, he intended to go with the driver'to help him unload the coal. When the plaintiff went from the sidewalk to the wagon, which was running in the street car tracks, Vaughn walked over the load of coal to the rear end of the wagon for the purpose of assisting the plaintiff to get on the wagon. Getting down on .his knees he reached down to the plaintiff to take his hand. Plaintiff took hold of a bar running across the rear end of the wagon and endeavored to get on the wagon, the team being still going at a walk.
    The plaintiff testified as follows: “When I started to get on the wagon, the man held down his arm to me to pull me up. He grabbed hold of my hand and was pulling me over the wagon. Then after he had pulled me up a little higher I said, ‘No sir, I can’t get up. Leave me down.’ Then he said, ‘Oh no; you can get up,’ and he wouldn’t let go my hand. Then my foot got caught; I think it was in between the hub.” On cross-examination he said, “My foot was swinging under the wagon just before it got caught or hurt. I don’t know what my foot got caught in.”
    Vaughn testified as follows: “I reached down to help him on, and I tried, but missed his hand. ’ ’
    After plaintiff’s ankle was injured he in some way dropped to the ground in the rear of the wagon, was either carried or hopped over to the sidewalk. He was taken to a drug store and then to a hospital. He was seriously injured.
    It appears without controversy that at the time Sparks asked the driver to permit plaintiff to ride on the wagon, no one connected with the defendant company was present, nor was any one connected with the defendant present at the time the plaintiff attempted to get on the wagon. The driver had been told by the witness Gorman, the superintendent of the office and yard, and also by the barn boss of the defendant, to let nobody ride on the wagon. The defendant was in the. business of buying, selling and delivering coal; and Hughes, the driver, was employed to drive a coal wagon through the streets of the city of Chicago, and had no authority to accommodate passengers of any kind under any conditions.
    H. L. Howard, for plaintiff in error.
    McGoorty & Pollock, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The fundamental question presented by the record is that of liability. The evidence shows without controversy that the action of the driver, Hughes, in inviting or permitting the plaintiff to ride on the wagon he was driving was entirely outside of, and beyond the scope of the business of the defendant, and the employment of the driver. The defendant had not permitted its drivers to allow, boys to ride on its wagons. On the contrary all drivers of coal wagons, and Hughes personally, had been forbidden to do that tiling. So far as the record, shows this was the first time any attempt had been made to violate this injunction to the drivers of defendant’s wagons; and no notice of any custom or practice on the part of its drivers had been brought home to the defendant, if any such practice existed. Allowing the plaintiff to climb up on the rear end of the wagon while it was in motion was likewise entirely outside of the employment of the driver, and outside the scope of the business of the defendant, and contrary to orders. It is not claimed that the defendant had any notice or knowledge of the act of Hughes. The only inference from Hughes ’ direction to plaintiff to go to the corner and wait for him there, instead of permitting him to get on the wagon before it left the yard, is, that there was an attempt to conceal from defendant’s knowledge the fact that plaintiff was to be permitted to ride on the wagon. If Hughes was negligent in allowing plaintiff to attempt to mount the wagon while it was in motion, it was not only not the act of defendant, but it was without the knowledge of the defendant, and a part of the concealment of the servant of his violation of express orders. There is, therefore, no circumstance or fact in the case which takes it out of the general rule, so often announced and applied in this kind of cases, that the master is not to be held to respond for the negligent acts of the servant done outside of the scope of the master’s business and the servant’s employment. Brewing & Malting Co. v. Huggins, 96 Ill. App. 144. “An act done by a servant while engaged in his master’s work, but not done as a means or for the purpose of performing that work, is not to be deemed an act of the master.” Bowler v. O’Connell et al., 38 N. E. Rep. 498; Driscoll v. Scanlon, 43 N. E. Rep. 100; Chicago T. T. R. Co. v. Schiavone, 216 Ill. 275; Chicago, M. & St. Paul Ry. Co. v. West, 125 Ill. 320; Chicago R. I. & P. Ry. Co. v. Moran, 129 Ill. App. 38; Chicago City Ry. Co. v. Cooper, 128 id. 528; Chicago R. I. & P. Ry. Co. v. Brackman, 78 id. 151; Flower v. Pennsylvania R. Co., 69 Pa. St. 210.

But, in behalf of defendant in error it is contended ' in argument that there are two grounds upon which the responsibility of the defendant for the act of Hughes may be based. First, a wagon and team of horses constitute a dangerous attraction to young children on the street, if operated with a want of reasonable care for their safety. Second, construing the servant’s authority in this case in the most limited way, he nevertheless had authority to drive and to stop driving when he observed or knew any one to be in danger from the progress of the wagon. In support of the first ground, Thompson on Negligence, vol. 1, sec. 25, is cited. It is sufficient to say that the citation is not applicable. In support of the second ground, the Am. & Eng. Enc. of Law (2nd ed.) Vol. 21, p. 474, is cited, where some author, after a discussion of the law of injury to children “by attractive nuisance,” further says: “that with stronger reason where the presence of a child trespasser is actually known to a party, or where such presence would have been known had reasonable care been exercised, there may be liability in negligence for injuries sustained— a doctrine acquiesced in by even the strongest advocates of the rule that there is no duty to trespassers.” The principle of liability in the turn-table cases, and other dangerous machines attractive to children and negligently left exposed, so that children are liable. to come in contact with them, is also sought to be applied to this coal wagon under the circumstances of this case. The maxim sic utere tuo ut alienum non laedas is also urged as expressing the obligation of the defendant to the plaintiff, upon the theory that any duty of the driver Hughes in connection with the wagon which would have devolved upon “his master if he (it) had been driving it personally down the street was delegated to the servant, if not expressly, then by implication of law.”

In our opinion these principles and theories cannot be legally applied to the facts of this case. However greatly we may regret the injury which this poor boy has sustained, and however much we might be inclined to search for some way of compensating him for the injury, we find no warrant in the law for affirming this judgment, whereby the amount of the judgment shall be taken from the defendant and given to the plaintiff for damages for injuries which the defendant did not cause.

The judgment is reversed with a finding of facts.

Reversed.


text:
    The Kenwood Hotel Company, Plaintiff in Error, v. J. H. Hiland, Defendant in Error.
    Gen. No. 14,874.
    Landlobd and tenant—when claim for liquidated damages for holdrover not sustained. The law will not uphold or justify a landlord in inducing a tenant to remain in possession of premises after the expiration of his lease and then enforce against such tenant liquidated damages beyond the rental value of the premises for such withholding of the premises.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed February 15, 1910.
    Statement by the Court. On August 31, 1907, The Kenwood Hotel Company, a corporation, filed its action in the Municipal Court of Chicago against J. H. Hiland, defendant, to recover “rent or liquidated damages for withholding possession of a suite of apartments’’ after defendant’s lease of the same had expired.
    The canse was tried before the court and a jury. The jury returned a verdict in favor of the plaintiff for $131.98. After overruling a motion for a new trial by the plaintiff, judgment was entered on the verdict against the defendant, which the plaintiff by this writ of error seeks to reverse.
    It appears from the record that the defendant Hiland occupied a suite of apartments in a building on Forty-seventh street and Kenwood avenue, Chicago, known as “The Kenwood,” under a written lease from the plaintiff, dated August 3, 1903, for a term ending August 31, 1906, at a monthly rental of $125. By the terms of the lease the lessee covenanted to keep the premises in good repair, and upon the termination of the lease to yield up the premises to the plaintiff in good condition and repair, and, failing so to do, to pay as liquidated damages for the whole time such possession was withheld the sum of $10 per day. By a clause appearing on the back of the lease, permission was given to the defendant to make certain alterations, upon condition that he restore the premises to their former condition at the expiration of the lease, if the lessor should so require.
    Some time in August, 1906, in a conversation in regard to a new lease, the plaintiff, through its manager, Tyson, informed the defendant that the rent would be advanced to $175 per month. Defendant told Tyson that the amount demanded was too much and that he would not pay it. Mr. Tyson replied that under his instructions he could not change the amount without consulting his principals. Defendant Hiland then' wrote to the plaintiff and received a reply. He also appointed his son, Fred S. Hiland, as his agent to negotiate in reference to a renewal of the lease.
    Fred S. Hiland continued the negotiations and offered $150 a month for the premises. Mr. Tyson, to whom the offer was made, said he thought that would be satisfactory, and that he would recommend it, and would take it up with the people he was working for and let Mr. Hiland know. F. S. Hiland inquired of Tyson two or three times in regard to the matter and was informed by Tyson that he had not learned anything, but he expected to hear from his people in a few days. In the last week in August defendant’s son urged Tyson to hurry the matter up so that if no adjustment was made, defendant could look up another apartment and move out. Mr. Tyson promised to do so.
    On September 1, 1906, the plaintiff delivered to the defendant a written demand for immediate possession of the premises. The negotiations continued, however, until along about the first or second week in September, when Mr. Tyson said to defendant’s son that the final conclusion was that the rent would be $175 a month, and the negotiations were then dropped. Defendant moved out of the apartment September 26, 1906.
    The defendant made the alterations specified in the lease, and also certain other alterations for which he claimed he had the consent of plaintiff, but that was disputed on the trial. After vacating the premises the defendant, at his own expense, restored the premises to their former condition in regard to all the alterations made by him. The work of restoration was completed about November 10, 1906.
    When the defendant made the alterations in the premises he arranged with Mr. Borgo, the then manager of plaintiff, to store and care for the material to be removed until it was necessary to use it in the restoration, and the material was delivered to plaintiff. When the restoration was commenced there was some delay in delivering the material to defendant and only a part of the materials was delivered by the plaintiff to the defendant. “The trim, bays and castings and jams were short” and also some doors. Mr. Tyson was asked to furnish them, but refused, and these materials had to be prepared specially. It took nearly two months to get some of the hardware. The work of restoring the alterations specified in the lease, and also the other alterations, was carried along at the same time as one job or piece of work.
    Before the trial of the case was commenced the defendant tendered to the plaintiff $125 as rent for September, $25.30 for meals and incidentals and $5, the amount of costs then assessed in the case, making a total of $155.30, against which a credit of $23.32 is admitted in the plaintiff’s bill of particulars, thus making the net tender $131.98. This was deposited with the clerk of the court for the plaintiff.
    George Ingersoll, for plaintiff in error; Joseph Cummins, of counsel.
    John A. Russell and Carl S. Jefferson, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The jury were instructed that if they believed from the evidence that prior to the expiration of the lease negotiations were entered into between the parties for the extension of the lease, and that plaintiff led defendant to believe that the premises would be leased to him upon terms which he had offered, and that before the negotiations were terminated the lease expired, and that plaintiff then notified defendant that he could not continue to occupy the premises upon the terms which he proposed, then the defendant would have a reasonable time within which to vacate the premises and make the repairs provided in the lease; and if the jury believed from the evidence that the negotiations for the extension of the lease were not completed until the 10th or 15th of September, or whatever- time the jury believed from the evidence they were terminated, then the defendant would have a reasonable time thereafter within which to vacate the premises and make the restorations, and during such reasonable time he would not be subject to the payment of the $10 a day provided in the lease, but he would only be liable for the rental at $125 per month; and what would be a ‘reasonable time under the circumstances after he was notified by the plaintiff that the lease would not be extended, was for the jury to determine under all the evidence in the case.

The court further instructed the jury that after the expiration of such reasonable time from such notification, defendant would be liable to the plaintiff at the rate of $10 per day for all the time, if any, which he occupied the premises, either for living purposes or for restoration.

The plaintiff does not complain of the instructions, but it is contended that the verdict is contrary to the evidence and the instructions.

We think the jury were warranted by the evidence in finding that the defendant was led to believe, prior to the expiration of the lease, by the negotiations which were entered into, that the premises would be relet to him upon terms which he had offered. The jury were also justified in finding from the evidence that the negotiations continued until some time about, the middle of September following the expiration of the lease when the plaintiff notified defendant that he could not occupy the premises at a rental of $150 per month proposed by him.

The jury evidently found that under the circumstances shown by the evidence, including the fact which was not disputed, that the plaintiff had agreed to store and preserve the materials which were removed either under the provisions of the lease or by the consent of the plaintiffs, and that a portion of such materials was not redelivered for the purpose of restoration, and that there was delay in redelivering that portion which the plaintiff finally produced for that purpose, the defendant was not guilty of any unreasonable delay in the restoration, or in the vacation of the premises after notification by the plaintiff that the lease would not be renewed on the terms proposed by the defendant. If they so found, then under the instructions of the court they could not and did not charge the defendant at the rate of $10 per day from September 1st to November 10th. We find no ground in the evidence for saying that the jury were wrong-in so finding.

The plaintiff, upon the removal of the defendant from the apartment, had the right to re-enter upon the premises and to proceed with the work of restoration, if the defendant was delaying the commencement of that work too long, and to charge the expense of the work to the defendant. We find nothing in the record which justifies the conclusion that the plaintiff either objected to the delay as unreasonable at the time, or took any steps to do the work or hasten its completion. The record is silent on this point, and the jury might infer from this circumstance in connection with the evidence that the defendant, Hiland, acted in good faith in making the restoration, and commenced the work and carried it on with reasonable dispatch; and that the plaintiff caused delay in not producing the material stored with it.

We cannot accede to the contention of plaintiff that the demand for immediate possession served upon the defendant on September 1st terminated in legal effect the negotiations then pending for a renewal of the lease. We do not see that it had any effect whatever. Defendant’s proposition to pay $150 a month was then pending. There had been no response to it. Defendant’s son, after the demand was served, continued to urge an early response to it, and Tyson replied that he was expecting to receive directions in regard to it in a few days. He did not receive and communicate a final answer until about the middle of September. These facts are not disputed in the record. The negotiations, therefore, did not, as a matter of fact, cease and determine on the service of the notice or demand.

Nor can we agree with the contention that the negotiations for a new lease did not affect plaintiff’s rights under the lease, because they resulted in no agreement. Prior to the expiration of the lease a demand was made by the plaintiff on the defendant for an increase rental after the expiration of the lease. Defendant refused to pay the amount demanded, but offered to pay $150 per month. Defendant, as the undisputed evidence shows, was advised by plaintiff’s managér, who was in charge of the hotel and the business of renting apartments therein, that plaintiff would negotiate for a new lease and that the price offered by defendant for a new lease would be satisfactory. No final answer, however, was made by the plaintiff until the middle of September, when the offer of defendant was definitely declined. Defendant was led to believe by the plaintiff, through its manager and the negotiations pending at the time of the expiration of the lease, that his offer would be accepted, and he was induced thereby to remain in possession of the premises beyond the expiration of the lease, and to delay the commencement of restoration work. The law will not uphold or justify a landlord in thus inducing a tenant to remain in possession of premises after the expiration of his lease, and then enforcing against the tenant liquidated damages beyond the rental value of the premises for such withholding of the premises. This would be allowing a landlord to take advantage of his own acts, by means of which his tenant was induced to place himself in a position subjecting him to a penalty for violating a covenant of his lease. While such an act or cause of action on the part of the landlord might not be a defense to an action for possession, it is a defense, in our opinion, to the recovery of any amount beyond the rent reserved in the lease, or the rental value of the premises. The case of Poppers v. Meagher, 148 Ill. 192, relied upon by the plaintiff, is so different in its facts, that the law of that case is not applicable to this case. In that case the landlord did nothing to induce the tenant to hold over, or change his position in any particular. He held over for the purpose of making a sale of his property to the new tenant, if it obtained a lease.

What we have said above applies, we think, to the contention of the plaintiff as to the measure of damages for the use of the premises for the purpose of repairs.

We see no necessary conflict between the instructions of the court and the verdict of the jury. The findings of the jury on the questions of fact involved may have, and doubtless did, lead the jury under the instructions to the conclusion reached.

We are not warranted, upon the evidence in the record, in setting aside the verdict. We think substantial justice has been done in the case.

The motion to strike the bill of exceptions from the record, which was reserved and taken with the case, is overruled.

The judgment is affirmed.

Affirmed.


text:
    Albert C. Banker, Appellee, v. J. Marion Miller et al., Appellants.
    Gen. No. 14,883.
    1.. Trover—what essential to maintain. In order to maintain trover the plaintiff must have a right of property in the chattel converted at the time of the conversion and the actual possession or the right to possession thereof.
    2. Trover—when mortgagor cannot maintain. A mortgagor after default and the taking of possession by the mortgagee has neither title, actual possession or right to possession, such as will enable him to maintain trover.
    Action on the case. 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.
    Reversed with finding of facts.
    Opinion filed February 15, 1910.
    John M. Humphrey, for appellants.
    Howard Ames, for appellee,
   Mr. Justice Smith

delivered the opinion of the court.

Plaintiff, Albert C. Banker, recovered a judgment in the Municipal Court of Chicago against defendants, J. Marion Miller and Nicholas E. Ford, for $750. This appeal is prosecuted by the defendants.

The evidence shows that on December 28, 1907, the plaintiff executed to the defendant Miller his promissory note for $1,000, payable six months after date, and secured the same by a chattel mortgage on property located on the second floor at Nos. 1424 and 1426 Michigan avenue, Chicago. The mortgage contained the usual insecurity clause, providing, among other covenants, that in case the mortgagee or his assigns should feel insecure or unsafe, or in case of diminution, removal or waste, or if the mortgagor sell or attempt to sell, or if any writ should be levied on the property or any part thereof, the note, at the option of the mortgagee or his assigns, should become due and payable, they should have the right to take possession of the property and remove, sell and dispose of the same.

Shortly after the execution of the mortgage the Chicago Wind Shield Company levied an attachment on the property covered by the mortgage for a debt of the mortgagor, and a custodian was put in charge of the property under the attachment.

Miller, the mortgagee, then exercised his option, and declared the debt and note secured by his mortgage due, took possession of the property and put one Durant in charge of it as his custodian. The attachment was subsequently defeated, but a judgment was recovered against Banker. Other actions were instituted against Banker and judgments were rendered against bim in some of them. Banker, the mortgagor, attempted to sell, and sold some of the property. During the time the property was thus held by the mortgagee, Miller, he sold and assigned the note and mortgage for value to defendant Ford.

On March 28,1908, Banker, the mortgagor, executed and delivered to Ford the following instrument:

“I hereby agree to waive notice of sale under a certain chattel mortgage executed by me to J. Marion Miller Dec. 28,1907, and assigned to Nicholas E. Ford, and agree that the sale may be had on the sixth day of April, 1908.”

March 30, 1908, Ford removed the property to a warehouse for storage, and on April 6, 1908, sold it at public auction to the highest bidder. Banker was present at the sale and made no objection or protest. On the contrary he requested certain parties to attend the sale and bid on the property. The net proceeds of the sale were endorsed on the note as a payment, and Banker was notified of that fact.

From a careful examination of the evidence we are of the opinion that there was a good and valuable consideration given by the defendant Miller for the note and mortgage, and that they were executed and delivered by the plaintiff freely and with a full knowl-" edge of all the facts. We think the evidence wholly fails to establish any fraud or conspiracy, as averred in the declaration, in procuring the plaintiff’s execution of those instruments, or in the subsequent foreclosure of the mortgage and sale of the property. Upon the theory, then, that the gist of the action as set out in the amended declaration is fraud and conspiracy in procuring the execution of the note and chattel mortgage, the clear preponderance of the' evidence is against the plaintiff and he cannot recover.

We think, however, the action is in trover for the conversion of goods and chattels, and the plaintiff cannot recover for the reason that in order to maintain trover the plaintiff, as against the defendant, must have a right of property in the chattel converted, at the time of conversion, and the actual. possession, or the right of- possession thereof. Cooley on Torts, 442-443; Owens v. Weedman, 82 Ill. 409; Blaine v. Foster, 33 Ill. App. 297; Frankenthal v. Meyer, 55 id. 405; Alexander v. Meyenberg, 112 id. 223. The plaintiff, after default and the taking of possession by Miller under the mortgage, had neither title or actual possession or the right to possession of the property in question.

The judgment is therefore reversed with a finding of fact.

Reversed.