text:
    In re Estate of Rosina Freund, deceased. Appeal of Ludwig Zentner et al., Appellants, v. Maurice Kozminski, Executor, Appellee.
    Gen. No. 17,026.
    1. Administration—attorney’s fees. In determining what is a reasonable allowance for attorney’s fees the inquiry should be as to the usual charge.
    2. Evidence—competency as to attorney’s fees. Testimony of reputable attorneys as to the reasonable fee, though not based on the usual and customary charge, for attorney’s services is competent.
    3. Attorney’s fees—how reasonableness may be determined. A court may form an independent judgment, based on its own knowledge and the testimony of two reputable attorneys, as to what is a reasonable attorney’s fee though there is no testimony as to what is the usual and customary charge.
    Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed July 9, 1912.

      Richberg & Richberg, for appellants; Donald R. Rochberg and Ralph D. Stevenson, of counsel.
    Simeon Straus and Ira E. Straus, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The question involved in this appeal is the amount of a reasonable allowance for attorney’s fees for the services shown in the record. There is no dispute as ta the services rendered. They were rendered in settling an estate and in sustaining the will of Rosina Freund, deceased, which was attacked by some of her heirs.

It is urged that there is no evidence in the record to support the judgment of the Circuit Court, allowing the executor the amount of $1,750 on account of attorney’s fees, because no competent testimony was given on that subject. The two witnesses, called for the purpose of testifying as to the value of the legal services rendered, did not testify to the usual and customary charge for such services, but, without objection, stated what would be a reasonable allowance therefor. Reynolds v. McMillan, 63 Ill. 46, is cited as stating the rule in this state. The court said in that case:

“In fixing the amount of a reasonable fee, examination should be directed to what is customary for such legal services, where contracts have been made with persons competent to contract, and not what is reasonable, just and proper for the solicitor in the particular case. The inquiry should be, not what an attorney thinks is reasonable, but what is the usual charge.” Metheny v. Bohn, 164 Ill. 495; McMannomy v. C. D. & V. R. R. Co., 167 Ill. 497 and Glynn v. Glynn, 139 Ill. App. 191, are cited in support of the rule above stated. The rule is well settled in this state and should be observed by the court.

The testimony offered in this case of two reputable attorneys as to the reasonable fee for the services rendered, was received by the court without objection as to the form of the questions propounded to the attorneys. Such testimony is competent. But courts are also qualified to form an independent judgment as to proper charges to be made, and it is their duty to do so. McMannomy v. C. D. & V. R. R. Co., supra. We think it follows that while the testimony was based upon what the expert witnesses thought was just and proper, and not upon the usual and customary charge for the same, the testimony was admissible, and the court could form an independent judgment on the issues presented, based upon such testimony and its own knowledge of the value of the services. It follows, we think, that there is evidence in the record supporting the judgment; and it cannot be said that because the testimony was given as to reasonable value without proving what was the customary charge for such legal services, the contention of appellant that there is no evidence in the record to support the judgment is sustained.

While we have the greatest respect for the finding of the Probate Judge in this matter, and while such finding is entitled to great consideration, we cannot say that the finding of. the Circuit Judge in allowing $1,750 for services rendered is so excessive as to call for the interference of this court. The services are given in the record in great detail, and necessarily required a large amount of time and labor, and we are not convinced that the judgment should be reversed upon the ground that the finding of the Circuit Court is excessive. The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice F. A. Smith

license: Public Domain

text:
    Charles Keefe, Appellee, v. Armour & Company, Appellant.
    Gen. No. 17,038.
    1. Master and servant—oil tank car. It is negligence on the part of the owner of an oil tank car to order an employe to test such tank, which is in a weak condition, with air pressure, when there is stearin therein.
    2. Master and servant—assumption of risk. An employe does not assume the risk of dangers known to the employer or which, by the exercise of reasonable care, could have been known by the employer, or which could have been avoided by the employer and which are unknown to the employe.
    3. Master and servant—assumption of risk. Where one employed as a boilermaker is ordered to repair an oil tank, the walls of which are lined with stearin, he does not assume the risk of explosion, resulting from chemical action produced by air pressure used in testing the tank, on the stearin, when he did not know of such risk.
    4. Evidence—admissibility of custom. In an action to recover for injuries sustained as a result of the explosion of an oil tank; while it was being tested, it is not reversible error to permit the plaintiff to introduce evidence as to the customary way to test tanks, where the defendant first introduced the subject on cross-examination and later-produced the same kind of evidence on the defense.
    5. Evidence—expert testimony. A trial judge does not abuse his discretion by permitting expert witnesses to be asked, in a suit to recover for injuries sustained by explosion of an oil tank, whether the application of air into the tank was reasonably safe or not.
    6. Appeal and error—harmless error.' Where a person offering an instruction is not injured by its refusal he cannot assign error thereon.
    7. Instructions—basis on evidence. An instruction on the effect of latent or hidden defects is properly refused where there is no evidence on which to base it.
    Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed July 9, 1912.

      A. R. Urion and A. F. Reichmann, for appellant.
    Johnson & Belasco, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This action was brought by the plaintiff, Charles Keefe, appellee, against defendant, Armour' & Company, appellant, to recover damages for personal injuries sustained by him while in the employ of defendant.

The plaintiff, previous to the injuries sued for. in this action, was in the employ of the defendant for three or four weeks as a boilermaker. The defendant’s foreman, John Burns, on the day of the accident, November 18, 1908, told the plaintiff that there was a car standing out on the track that had lost 400 or 500 pounds of grease when it had last been filled, and ordered plaintiff to go out and work on the tank. Burns further told the plaintiff to go to the tool room and get a hose and rigging for testing tanks, connect it up and put on the air pressure. He also told the plaintiff that he would find a can of soap suds to swab the seams with, and directed him to find out where the leaks were and caulk them up. Thereupon the plaintiff with his helper, Adcock, did as he was ordered. When the air pressure got to thirty-eight pounds, it was shut off. Plaintiff then took a hammer and tested the rivets to find if any were broken. Burns, the foreman, came along about this time and took the hammer from the plaintiff and personally went over the rivets. Burns also examined the indicator on the gauge and learned that there was thirty-eight pounds pressure in the tank, and then told the plaintiff to go ahead and caulk it. While the plaintiff was caulking the seams with a caulking tool in one hand and a hammer in the other, or before he commenced caulking, the head of the tank blew out with a loud report, striking the plaintiff and another employe, one Surma, killing Surma and injuring the plaintiff. The force of the explosion was sufficient to throw the head of the tank against an adjoining box car, knocking it in and thence flying off a distance of 100 or more feet to the top of an elevated structure.

The case was tried on the second and third counts of the original declaration, and the second and third additional counts. The second count of the declaration avers negligence of the defendant in inspecting the tank in question to ascertain whether or not it was reasonably safe to withstand the pressure, and negligence in permitting and allowing air to he pumped into the tank under pressure, while the tank was in an unsafe and dangerous condition, and while the strength of the tank was such that it could not stand the pressure without exploding.

The third count óf the declaration alleges negligence of the defendant in ordering the plaintiff to fill the tank with air at a high pressure while the tank was in an unsafe and dangerous condition and not reasonably strong enough to hold the air pressure.

The second additional count avers negligence of the defendant in placing air in the tank while there were certain gases therein, thereby making the tank unsafe and dangerous and likely to explode.

The negligence averred in the third additional count is that the defendant negligently ordered the plaintiff to use a certain caulking tool to caulk seams in the tank of the car while it was in an unsafe and dangerous condition, and likely to explode from explosive gases contained therein.

It is urged on behalf of appellant that the evidence in the case is insufficient to show that the defendant, appellant, was guilty of actionable negligence, and, in any event, the great preponderance of the evidence is against the theory of negligence upon which plaintiff sought to recover; and that the court, therefore, erred in refusing to take the case from the jury on the motion of defendant at the close of all the evidence. The argument in support of this proposition is that the theory upon which the plaintiff’s case was brought was that a certain amount of soap stock, or stearin, adhered to the inside walls of the tank, and that this gave off and generated a gas under an air pressure of thirty-eight pounds to the square inch, and that that gas was capable of being ignited and exploded by a spark from a caulking tool. Appellant urges that appellee’s case rests upon a spark being ignited by the caulking tool and coming into contact with the gas in the tank formed by the grease, or stearin, adhering to the walls of the tank and caused same to explode. From an examination of the evidence we are of the opinion that this is not a correct conception of the theory of the plaintiff’s case. We do not think that the creation of a spark by the caulking tool and that the spark in some way ignited the gas in the tank is a necessary part of the plaintiff’s case. The evidence shows, in our opinion, that after the tank was filled with air, creating a pressure of thirty-eight pounds to the square inch, this pressure of air upon the grease and stearin in the tank created an explosive gas, which, in addition to the pressure of air caused the tank to explode. We think the evidence abundantly sustains this theory of the case. It is clear from the evidence that the pressure of air alone did not cause the explosion. For a little time after the pressure of thirty-eight pounds had been created and the air pressure shut off, the tank did not explode, although both the plaintiff and Burns, the foreman, were engaged in hammering the rivets. After the air had acted upon the grease and stearin with which the walls of the tank were lined, the explosion occurred. The evidence shows, we think, that the defendant was guilty of negligence in ordering the plaintiff to test the tank with air pressure with stearin in the tank, and while the tank was in a weak and unsafe condition.

A further ground of reversal is urged in that the plaintiff failed to prove that he did not assume the risk of the work in which he was engaged, and that on the contrary the evidence shows that he did assume the risk. With this contention we cannot agree. It is a fundamental proposition that a servant assumes only such risks as are usually incident to his employment and any extraordinary hazards of which he has notice or which by the exercise of his faculties he could have noticed; but he does not assume the risk of danger known to the master or which, by the exercise of reasonable care, could have been known by the master, or which could have been avoided by the master and were unknown to the servant. Mann v. Illinois Central R. R. Co., 236 Ill. 30. The plaintiff knew nothing of the dangerous condition of the tank, neither as it existed physically or because of the stearin and grease with which its walls were lined. The plaintiff was not a chemist; he did not know that the pressure of air upon the substance with which the tank was lined would produce gases or cause an explosion. He had simply been informed that it had leaked when in use. He knew nothing of its structural weakness. The plaintiff had never seen this car before. He was simply ordered by the foreman to get the appliances and connect them up for the purpose of producing air pressure in the tank. After the pressure had reached thirty-eight pounds to the square inch, Burns, the foreman, took a hammer and, together with the plaintiff, swabbed the rivets to ascertain the leaks. Burns saw the indicator on the air pressure gauge, and knew the amount of pressure then in the tank, and directed the plaintiff to go ahead and caulk it. The defendant did know or ought to have known that heated air introduced into the tank lined with stearin and grease at a pressure of thirty-eight pounds to the square inch, would tend to produce explosive gas. In our opinion, the plaintiff did not assume the to him unknown risk and unusual hazard of the result of introducing air into the tank.

It is urged that the court committed reversible error in permitting witnesses to testify as to the customary way to test tanks. Three witnesses were offered by the plaintiff upon that question. The testimony of the witnesses was that the usual and customary way was to fill the tanks with water in order to ascertain the points of leakage.

The record shows that the evidence as to the customary method of testing tanks was first introduced by the defendant in the cross-examination of. the witness Thompson, who was called by the plaintiff. On the cross-examination of the witness Adcock, called by the plaintiff, the same question was gone into by the defendant. Up to that time no attempt had been made by the plaintiff to show the usual and customary way • of testing tanks. Thereupon the plaintiff called Mr. Houlihan, the City Boiler Inspector, who testified that the usual and customary way was the water test, and also the witnesses Conroy and Holland. Upon the close of the plaintiff’s case, and while the defendant was introducing its defense, evidence was introduced as to the custom of testing tanks by the defendants. In our opinion, under these circumstances, the defendant cannot here complain that the court erred in admitting evidence on behalf of the plaintiff where it first introduced the subject on cross-examination, and then produced the same kind of evidence on the defense. The case was mutually tried upon that theory. Spring Valley Coal Co. v. Robizas, 207 Ill. 226; Consolidated Coal Co. v. Haenni, 146 Ill. 614; Funk v. Babbitt, 156 Ill. 408; Illinois Central R. R. Co. v. Prickett, 210 Ill. 140.

In the Prickett case last cited, an engineer was killed by the explosion of the boiler on the engine he was operating. In the course of its opinion, the court said at page 143:

“It was competent for the appellant company to prove the general custom of well regulated and prudently managed railroad companies with reference to the time and manner of making inspections of their engines and boilers. The objection was therefore properly sustained to the question propounded by appellant’s counsel, viz.: ‘What was the usual time of railroad companies for inspecting engines 1 ’ The inquiry should have been limited to the custom of well regulated and prudently managed companies.”

In Illinois Central R. R. Co. v. Sporleder, 199 Ill. 184, it was held proper to show the usual way in which spikes are drawn from a tie and that the usual way was to lift the spikes with a claw-bar, and that when the spike is so imbedded in the tie that the prongs of the claw-bar could not be readily forced under the head of a spike, the wood around the spike should be removed with an adz so that the prongs would firmly take hold of the heck of the spike. To the same effect is the case of Kennedy v. Swift & Company, 234 Ill. 606; Pittsburg Bridge Company v. Walker, 170 Ill. 550, and Franey v. Union Stock Yards Company, 235 Ill. 522. Many other cases are cited in the briefs in support of the introduction of custom, but we think it unnecessary to cite them. In our opinion the court did not err in admitting the testimony.

We do not think that it was an abuse of the discretion on the part of the trial judge to permit expert witnesses to be asked and to answer questions in substance whether the application of air into the tank was reasonably safe or not. While the question may have been bad in form in calling for an opinion upon an ultimate fact, yet had the witness been asked, as he properly might have been, what would the effect be of the introduction of such air pressure under such circumstances he undoubtedly would have answered an explosion. It is plain, therefore, that such a proceeding was unsafe. There was no question in the case but that the tank exploded, and all the facts and circumstances connected with the explosion and preceding it were before the jury. It was still a question for the jury as to whether the defendant was guilty of negligence under the facts shown in the evidence. Stephen v. Duffy, 237 Ill. 549; Davis v. Collieries Co., 232 id. 284; Ardesco Oil Company v. Grilzon, 63 Pa. St. 146; Goddard v. Enzler, 222 Ill. 462; Koshinski v. Illinois Steel Co., 231 Ill. 198; Gundlach v. Schott, 192 Ill. 509.

In our opinion the witnesses who testified as experts were qualified and competent to testify to the opinions expressed by them.

The fourth instruction given at the request of the plaintiff on the question of assuming the risk is criticised by appellant. This instruction is, we think, justified by Mann v. Illinois Central R. R. Co., supra.

Complaint is also made of the third instruction given at the request of the plaintiff, upon the question of the duty of the master to exercise reasonable care to furnish the servant with a reasonably safe place to work. This instruction in our opinion is authorized by Donk Bros. Coal Co. v. Thil, 228 Ill. 233. We do not think it was foreign to the issue in the case or that it was designed or calculated to mislead the jury to the defendant’s prejudice. Schillinger Bros. Co. v. Smith, 225 Ill. 74, is also authority for the instruction.

It is further urged that this instruction was erroneous and prejudicial because one of the questions in the case was whether plaintiff’s fellow-servant, Ad-cock, had been negligent in failing to discover the condition of the interior of the tank and the danger of applying the amount of air pressure adopted. Adcock was not a chemist; he had no reason to know the chemical effect of air pressure upon the stearin and grease in the tank. There is no evidence in the case tending to show that he was guilty of negligence. This, in our opinion, also answers the contention that the court erred in denying defendant’s refused instructions 33, 34 and 35, upon the question of the negligence of Ad-cock as a fellow-servant of the plaintiff.

It is also urged that the court erred in refusing the fortieth instruction asked by the defendant in relation to the structural condition of the tank and the introduction of compressed air therein, and it is urged that if the accident happened simply because of the degree of pressure applied without the explosion of gases, the plaintiff assumed the risk, and could not recover. We cannot agree with the contention of appellant in this respect. Appellant was not injured, in our opinion, by the refusal of the instruction.

Appellant further urges that the court erred in refusing defendant’s forty-fifth instruction to the effect that if the jury believed from the evidence that the sole proximate cause of the breaking of the tank was a latent or hidden defect, which could not have been known to the defendant by the exercise of ordinary care in time to prevent the accident in question, then the plaintiff cannot recover, and the verdict should be not guilty. This instruction was covered by other instructions given for the defendant, notably instruction 15. Furthermore, the instruction is not based on the evidence in the case. The defendant knew that the tank in question was from fifteen to twenty years old, and there was no evidence offered by the defendant of any latent or hidden defect.

The record, we think, is free from reversible error, and the judgment of the trial court is affirmed.

Affirmed.


author: Mr. Justice Barnes

text:
    Frank. H. Perkins, Appellee, v. Sanitary District of Chicago, Appellant.
    Gen. No. 17,021.
    1. Electricity—master and servant. Where a lineman has been injured by an electric shock alleged to have been caused by an uninsulated feed wire coming in contact with a wet pole, it is a question of fact for the jury to determine whether such construction constituted negligence on the part of the defendant.
    2. Telephones—maintenance of feed wires. Where a telephone company is informed by its superintendent of construction that a certain high voltage feed wire is in a dangerous condition, it is culpable negligence to permit it to remain in that condition for four more days.
    3. Master and servant—assumption of risk. Whether a lineman' employed as a “trouble-shooter” assumed the risk attending the faulty construction of a feed wire, on the ground that from the nature of his work he should have observed its condition, is a question for the jury.
    4. Master and servant—contributory negligence. Whether a lineman employed as a “trouble-shooter” is guilty of contributory negligence in climbing a pole without inspecting the construction of a feed wire is a question for the jury.
    5. Master and servant—ordinary and usual risk. The danger attending a loose feed wire coming in contact with a wet pole is not ordinary and usual risk of a “trouble-shooter's” employment, unless he knew of it or was chargeable with knowledge.
    6. Pleading—variance. A count which alleges that a wire was not insulated is supported by evidence which shows that although there was a “weather-proof insulation” it was not “man-proof.”
    7. Pleading—aider by verdict. Though a count, predicated on the duty of an employer to furnish an employe a reasonably safe place to work, does not allege that the employe did not have equal means of knowing the matters of which it is alleged he was ignorant and that the exercise of ordinary care would not have disclosed to him the condition complained of, such defect is cured after verdict where there is evidence tending to substantiate such allegations had they been made.
    8. Instructions—assumption of risk by lineman. An instruction to the effect that if the plaintiff, a lineman, who was injured by an electric shock, by the exercise of reasonable diligence, etc., could have observed and noted the condition of the phase wire with reference to the pole, then he assumed the risk, etc., is not assignable as reversible error because the court added “and the' danger thereof, if any,” after the word “condition.”

      9. Instruction—on preponderance of evidence. It is not error to strike out the words “although but slightly” from an instruction to the effect that if the jury found the evidence bearing upon the material issues preponderated in favor of the defendant, “although but slightly,” the plaintiff could not recover.
    10. Evidence—expert. It is not reversible error to exclude questions that call for expert opinions where the evidence will enable the jury to form an opinion for itself.
    11. Trial—conduct of counsel. The fact that counsel insists upon repeating prejudicial questions after the court has sustained' objections to questions of similar import is not ground for reversal where the court cannot say that such conduct influenced the verdict.
    Appeal from the Superior Court of Cook county; the Hon Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed July 9, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    F. J. Canty, Harry M. McConnell and George W. Miller, for appellant.
    John A. Bloomingston, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

The defendant appealed from a judgment for $18,000 recovered by the plaintiff for personal injuries resulting from an electric shock, which he received while in the employ of defendant, doing repair work on a pole carrying electric wires.

The first two accounts of the declaration rest upon an alleged negligent order, which we do not think the proof sustains; but there was sufficient evidence to support the third and fourth counts, which are predicated upon the duty to furnish the plaintiff a reasonably safe place to work. The third count is based upon an alleged negligence in the failure to insulate certain wires, and the fourth charges that defendant negligently furnished a pole and wires defective, dangerous, uninsulated, loose and otherwise improperly attached. It is with'reference to these last two counts that we shall consider the record.

The errors assigned are: (1) A failure to direct a verdict for defendant claiming that plaintiff assumed the risk under the conditions under which he undertook the work, that he was guilty of contributory negligence, and that the proof failed to support any of the counts; (2) a failure to give a new trial on the grounds that the verdict was against the weight of the evidence, that there was error in the instructions and rulings of the court, and that the conduct of plaintiff’s counsel was improper and prejudicial.

The main question of fact in" controversy was the cause of the shock. To understand the respective theories of the parties with regard thereto, a more or less exact description of plaintiff’s position and surroundings at- the time of the accident is necessary.

Attached to the insulators at the top of the pole in question were three primary wires carrying a current of 12,000 volts, which was conducted therefrom by certain phase or feed wires, so-called, to transformers lower down on the poles, where the current was reduced, and thence carried out on secondary wires to one of defendant’s consumers. About half way down the pole, running north and south, were two pairs of cross arms about five feet long; the distance between the upper and lower pairs was about thirty inches. Attached to the upper and lower arms on the east side of the pole, were three transformers, and to those on the west side, were three fuse boxes, one opposite each transformer. A phase or lead wire left each primary wire about eighteen, inches north of the pole, and carried the current to a lug in the bottom of a fuse box, thence "through a fuse plug, separating said lug from another in the top of the box, and thence through the transformer wire, which connected with the opposite transformer, where the current was reduced as aforesaid. When the fuse plug was removed, or the fuse wires blown, the current terminated at the lower lug, so that, of course, the upper lug and wires beyond it were not electrified.

On the morning of the accident defendant learning that there was trouble with said consumer’s current, sent an employe to the pole in question, who removed the fuse plug in the north fuse box. A few hours later, plaintiff was sent out to make repairs in the transformation. No specific instructions or information was given him, further than that the fuse had been removed, and that the trouble was with the transformer. He took with him new tubes or insulators to replace the old ones in the transformer, and wires to re-connect the fuse box with the transformer. He first went up the east side of the pole where he inserted a new tube and wire into the north transformer, and then up the west side where, at the time of 'the accident as he claims he was scraping or preparing to scrape off the end of said wire that was to be connected in the fuse box.

There was evidence tending to support both defendant’s and plaintiff’s theories of the shock. It was defendant’s theory that plaintiff was not scraping the wire, but that while looking to the ground for a tool he had dropped he in some way carelessly brought his left hand in contact with the live lug in the fuse box, and thus through his own negligence received the shock. The theory of plaintiff was that the phase wire which came down nearest to and across the pole, came in contact with it, through the wind or otherwise, and, as the pole was wet and thus made a more ready conductor, a slight shock was communicated to him, causing him to throw up his arms across the other phase wires, and thus to receive the shock from which he suffered.

Before entering the fuse boxes, the phase wires were tied to the insulators on the west upper cross arm, which were about eighteen inches apart. The wires had some slack, and the one nearest the pole was bent out from it, but was so near that if moved by the wind or otherwise it would strike the pole. The covering of the phase wires gave weatherproof protection only— that is, against weather conditions, but no protection to one handling the wire when heavily charged—that is, the covering did hot insulate the wire in the sense in which insulation is scientifically defined and understood. At the time of the accident plaintiff had fixed his belt to the pole and placed one foot in an iron brace about four and one-half feet below the lower cross arm. He testified that while in such position, leaning back and facing northwest toward the outer feed wires, he held the north transformer wire in his hands and was scraping or about to scrape the covering from the end of it; that as he jerked it he felt a slight shock, and looking up saw a spark from the phase wire across the pole about two or three feet above him; that he threw up his hands across the phase wires, and then received the shock that rendered him unconscious.

An eye observer of the accident saw the spark at about the same place, and plaintiff was further corroborated by evidence that at about the same spot was a burn in the pole, though the evidence was conflicting upon this point. But - the evidence tended in various ways to support plaintiff’s theory that the shock resulted from a contact of the pole with the phase wire nearest to it, that such wire was not insulated, and that had it been attached" to an insulator on a pin in the pole before fastening it to the cross arm, as was subsequently done, an accident in the manner indicated would have been averted. •

That said feed wire was uninsulated, as we understand the term, and in close proximity to the pole, were undisputed facts. Where, under such circumstances, a feed wire carrying such heavy voltage is likely to come in contact with the pole, ordinary precáution against danger would seem to require that the wire be either insulated or fastened in such a manner as not to touch the pole, especially as employes were manifestly liable to be sent there to fix the transformers or fuse boxes. It became a question of fact for the jury, therefore, to determine from the evidence whether such construction constituted negligence, especially with the evidence before it that the defendant’s chief operator and superintendent of the 12,000 volt construction knew four days before the accident that it was dangerous, and said “It must be fixed; it is in bad shape. ’ ’ After such actual notice, it was culpable negligence for defendant to permit it to remain so long in that condition. Ill. Term. R. R. Co. v. Thompson, 210 Ill. 226, and cases cited.

But it is contended that as plaintiff was an experienced lineman, employed as a ‘ ‘trouble-shooter’ ’—that is, to ascertain the nature of trouble on defendant’s lines, he should have observed the conditions and construction of those feed wires, and was. thus chargeable with notice of the danger, assumed the risk of it, and was guilty of contributory negligence in climbing the pole without inspecting the construction relating to them.

Whether danger from such a source was an ordinary incident of his employment, the risk of which he assumed, or one of which he would have had notice by the exercise of ordinary care, or whether the nature of his employment required that he should have inspected that part of the construction on the occasion in question, or whether he was guilty of contributory negligence in not making such inspection, were all questions of fact upon which there was sufficient evidence to justify submission of the case to the jury and a verdict adverse to defendant. “The risks assumed .by a servant are such only as cannot be obviated by the master’s employment of reasonable measures of precaution.” Ill. Term. R. R. Co. v. Thompson, supra; Chi. & G. T. Ry. Co. v. Spurney, 197 Ill. 471.

Defendant’s negligence to remedy the defective construction was not an ordinary and usual risk of plaintiff’s employment unless he knew of it or was chargeable with knowledge. Klofski v. B. & Supply Co., 235 Ill. 146. The evidence was that he was never there before and had no knowledge of it. The record would not warrant holding him chargeable with knowledge as a matter of law.

Defendant had actual notice of this particular danger and plaintiff did not. He was sent there to fix a transformer, not to repair defective construction. He had no reason to anticipate danger therefrom while performing the work he was sent to do. There was no danger in working at the transformer while the fuse plug was out. The nearest electric point to which he was working was the lower lug in the fuse box, of which he was in no danger if he did not put his hand in the box. He knew that the phase wires above him were electrified, and that • by ordinary construction they came down to the insulators on the cross arm above him, but he also knew that his work that morning did not involve touching or inspecting them. Adopting the language in the Thompson case, supra, “Appellee had a right to presume that reasonable care had been used to make the place where he was to do his work reasonably safe for that purpose. He could not be held to watchfulness and precautions made necessary by the negligence of defendant, and growing out of a danger for which the appellant was responsible, and of which he had no knowledge.” See also Himrod Coal Co. v. Clark, 197 Ill. 514.

At defendant’s request the court submitted to the jury the following special interrogatory: “Could the plaintiff, Perkins, by the exercise of reasonable and ordinary care and watchfulness on his part have avoided the injury on the occasion in question?” To which the jury answered, “No.” They were thus required to pass specially upon the questions of notice , and contributory negligence, which were properly submitted to them.

We do not think the court erred in not directing a verdict for defendant. The character of the evidence was such as to render the questions of risk and contributory negligence questions of fact and not of law.

As to the contention that plaintiff failed to make out a case under any count of his declaration, it is our opinion the evidence tended to support both the third and fourth counts. It is contended that the proof failed to show that the wire, as alleged in the third count, was not insulated—that it merely showed that the insulation was defective. In testifying as to the covering of the wire, the witnesses used the expressions that it was ‘ ‘slight insulation,’ “weather-proof insulation,” “not man-proof insulation.” Manifestly the term “insulation” as thus used was not used in its scientific sense, but rather as synonymous with the word “protection.” The definition of the verb “insulate” in connection with electricity is to separate from other bodies by the interposition of a non-conductor (Cent. Diet.); to prevent the transfer to or from of electricity or heat by the interposition of a nonconductor (Webst. Dict. Unab.). It is in this sense the declaration must be considered, and the evidence showed that the covering of the wires was not a nonconductor.

As to the fourth count, it is urged that it was incumbent upon the plaintiff to prove what the count, under the rules of good pleading, should have alleged —namely, that he did not have equal means of knowing the matters of which it is alleged he was ignorant, and that the exercise of ordinary care would not have disclosed to him the condition complained of.

The failure of the declaration to make such averments was cured after verdict, the evidence tending to - substantiate them. Sargent Co. v. Baublis, 215 Ill. 428.

As to the instructions it is first complained that the court erred in modifying an instruction tendered by the defendant, which in substance told the jury that if they believed that plaintiff, by the exercise of reasonable diligence, etc., could have observed and noted the condition of the phase wire with reference to the pole, then he assumed the risk, etc. The court added after the word ‘1 condition, ’ ’ the words ‘ ‘ and the danger thereof, if any.” The contention is that the jury were thus told that even though he noted the condition, but did not appreciate the danger of it, which a man of his experience would have known, then he did not assume the risk. We cannot think the instruction was calculated to mislead the jury into such a fine distinction, or that there is reversible error in such modification.

It is also claimed that it was error for the court to strike out from another instruction, given at defendant’s request, the words “although but slightly.” The instruction was to the effect that if the jury found the evidence bearing upon the material issues preponderated in favor of the defendant, ‘£ although but slightly, ’ ’ plaintiff could not recover, and the verdict should be not guilty. While that form of instruction has been used and approved, it is not error so to modify it. The jury could not have misunderstood what preponderance meant, for it was told in another instruction that if the “preponderance or greater weight of the evidence” was in favor of the defendant, it should find the defendant not guilty. It added nothing to the statement of the law or the meaning of the instruction to qualify it with the argumentative expression, “although but slightly;” these words were not so much calculated to enlighten the jury upon the meaning of preponderance, as to intimate a view of the court as to where the weight of the testimony lay.

Without discussing severally the other instructions tendered by defendant and refused, it is sufficient to say that we are of the opinion that numbers 35 and 36 required the court to state as law what were matters of fact, and that the others were sufficiently covered by other instructions.

Error is claimed in the court’s refusal to permit the witness Wallace to answer the questions whether the phase wire was loose enough so that it could be blown against the pole, and whether the wire, as he found it the next morning, was close enough to the pole to touch it. Even if the questions should have been allowed, yet in view of the fact that other evidence was admitted, tending to support defendant’s contention that the wire was heavy and hung some six inches from the pole, we do not think that it was reversible error to sustain the objections. The distance of the wire from the pole was testified to by several witnesses, and the character of it was shown by a specimen received as an exhibit in the case. Under such circumstances, the question merely called for an expert opinion on what the evidence enabled the jury to form an opinion for itself, namely, whether the wind would blow a wire of certain size and weight against a pole a certain distance away from it.

We have carefully reviewed the record pertaining to alleged improper remarks of plaintiff’s counsel, and do not deem them of such a prejudicial character as to have affected the judgment of the jury.

More serious, however, is the contention that counsel for plaintiff insisted upon repeating prejudicial questions after the court had sustained objections to questions of similar import. While some of such questions were improper and the conduct of counsel in putting them, after warning from the court’s ruling of their impropriety, rendered him justly subject to criticism if not censure, yet we are unable to say that they were of such a prejudicial nature as to have influenced the verdict.

We find no error sufficiently serious to call for a reversal of the case, and the judgment of the court below is affirmed.

Affirmed.


text:
    John F. Devine, Administrator, Appellee, v. Modern Woodmen of America, Appellant.
    Gen. No. 17,070.
    1. Benefit certotoate—when no recovery thereon. Where an-intoxicated person is shot in a drunken brawl there can be no recovery on a benefit certificate which provided that if death resulted directly or indirectly from intemperance the certificate should become void.
    2. Aefibmative defense—when verdict should he directed thereon. Where evidence supporting an affirmative defense is unimpeached and uncontradicted, motion to direct verdict for defendant should be granted.
    Appeal from the Circuit Court of Cook county; the Hon. A. H. Fbost, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed.
    Opinion filed July 9, 1912.
    Truman Plantz, George G. Perrin and A. W. Fulton, for appellant.
    S. S. Jonas, for appellee; L. C. Cooper, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

This action was brought to recover of appellant the amount of a benefit certificate issued by it to one Rudolph Cerny.

Two of the pleas set up a violation of a by-law of appellant, to the effect that if the death of any member of the society should result directly or indirectly from the intemperate use of intoxicating liquors, then the benefit certificate held by him should become and be absolutely null and void.

Said Cerny was shot and killed by one Cermak during a quarrel between them. That it was his second quarrel that afternoon, that on both occasions he was intoxicated and the aggressor, and that just prior to the fatal shot he had grabbed Cermak by the throat and was shot while following the latter into his own house, were uncontradicted facts testified to by both Cermak and his wife, the only witnesses of the occurrence and the incidental matters preceding it, called to testify. In rebuttal several witnesses, who had not seen said Cerny for eleven weeks before his death, testified that while they had frequently seen him drink beer, they never saw him intoxicated.

Such negative testimony had no tendency to contradict the testimony as to Cerny’s conduct and condition at the time of his death and the occurrences connected therewith.

In the absence of any testimony tending to impeach appellant’s witnesses or to contradict their positive evidence in support of such affirmative defense, we think the motion, made at the close of the evidence, to direct a verdict for appellant, should have been granted. Balsewicz v. C. B. & Q. R. R. Co., 240 Ill. 238.

Even had the case been properly submitted to the jury on the theory that they were the judges of the credibility of appellant’s witnesses, yet there was nothing in the record to justify the jury in rejecting their testimony. As stated in Larson v. GHos, 235 Ill. 584, “where the testimony of a witness is uncontradicted, either by positive testimony or by circumstances, either intrinsic or extrinsic, and the witness is not impeached, the testimony cannot be rejected even by a jury.”

There can be no recovery upon the evidence in this record, and therefore the judgment is reversed.

Reversed.


author: Mr. Presiding Justice Clark

text:
    R. Heger Malt & Brewing Co., Appellee, v. George J. Cooke Co., Appellant.
    Gen. No. 17,083.

      Sales—damages for non-delivery. In an action to recover the price of malt delivered under a contract, where the buyer refused to accept future shipments under the contract because the quality was_ not as represented, he cannot claim a verdict for plaintiff was against the manifest weight of the evidence because but a small part of a set-off was allowed, where such set-off was based mainly on the excess of the market price over the contract price on the , undelivered malt some time after defendant refused to accept it and where it further appeared that the period during which deliveries could have-been made would not expire, for several more months.
    Appeal from the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910..
    Affirmed.
    Opinion filed July 23, 1912.
    Harry A. Daugherty, for appellant; Robert J. Folonie, of counsel.
    Thomas W. Reilly, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

On February 23, 1909, the appellee agreed to sell and the appellant agreed to purchase 10,000 bushels of malt at sixty-eight cents per bushel, delivery to be made prior to September 1, 1909. A carload, consisting of about 2,188 bushels, was shipped on Feb- ' ruary 26, 1909, and received by the appellant about the first of March. Appellant found fault with the malt, claiming that it was not equal to the sample which had been furnished it prior to the making of the contract; that it took two or three hours longer to brew than it should, and that it did not yield within 8 or 10 per cent, of standard malt. A second ear was shipped about March 15, 1909, and the appellant after taking from the car 220 bushels, declined to accept the rest, and it was subsequently sold by the appellee to other parties. The contract provided that payment should be made thirty days after the receipt of each carload shipment. There was considerable correspondence between the parties as to settlement, on May 17th appellee writing appellant requesting a remittance of $1,637.40, being the value of the malt theretofore delivered at the contract price. To this letter the appellant responded on May 20, 1909, with an inquiry as to what appellee proposed to do as to delivering the balance of the order. On June 24th following the appellant sent appellee a check for $248, claiming as an off-set $1,388.60, which amount was made up of alleged loss of wages in brewing $23.52, loss of yield $226.28, and for the excess of purchase price on 7,592 bushels of malt at fifteen cents, being $1,138.80. The appellee declined to accept the check and brought suit for the full amount of its claim. There was a trial before the court and a jury, and a verdict rendered by the jury in the sum of $900.29, upon which judgment was entered.

We are asked to reverse the judgment on the ground that it is against the manifest weight of the evidence. The contention of the appellant is that the record shows indisputably that the malt furnished was not of the same character of the sample and would not produce more extract than ordinary malt or standard malt, which it is claimed was one of the conditions of the purchase. We have carefully read the evidence in the case and are unable to agree in this contention. If the recovery had been for the full amount claimed by the appellee, we do not think that under the proof as appears in the record it would have been so erroneous as to require a reversal of the judgment. However, the appellee made no motion for a new trial and has not assigned cross errors.

In March, 1909, when it would appear from the record the price of malt had not advanced, the appellant, upon its refusal to accept what was tendered by the appellee, could have purchased the same in the open market without loss. Later, however, the price appears to have advanced, and then the appellant, while refusing to pay for what had already been delivered, insisted that the appellee deliver the balance called for by the contract. In our opinion it was not then incumbent upon the appellee to comply with this demand. The appellant instead of attempting to make a settlement in March held the matter open until June, and then claimed that the market price of such malt as was called for by the contract having advanced, the appellee was indebted to it for such alleged difference between the contract price and the market price in addition to the other alleged damages Jieretofore referred to. It is to be noted that the contract did not call for a full delivery by the appellee until September 1st. It is possible that between June and September the market price dropped. It is our opinion, therefore, that the claim of set-off and recoupment was not based upon the proper measure of damages, even on the theory of the appellant.

We think no injustice has been done the appellant by the judgment rendered, and the same will therefore be affirmed.

Affirmed.


text:
    Mrs. Mary Wiese, Plaintiff in Error, v. Mrs. Dora Meissner, sued as Mrs. Richard E. Meissner, Defendant in Error.
    Gen. No. 17,149.
    1. Municipal Court—rule 26 construed. Municipal Court rule 26, providing that if the party filing a statement of claim or affidavit is relying on a cause of action or defense “clearly unfounded in law” the court may order it stricken out and dismiss or enter judgment accordingly, will he construed to mean that if the statement does not set out a cause of action or if the affidavit of the defendant does not set forth facts constituting a legal defense they may be stricken from the files.
    2. Municipal Court—rule 26 construed. The object of Municipal Court rule 26, providing that a statement of claim or defense based on a cause of action “clearly unfounded in law” may be stricken from the files, evidently is to have a motion to strike out perform the office of a demurrer at common law.
    3. Municipal Court—what slight departure from- rule 26 should not reverse. Though an order dismissing a suit for want of sufficient statement does not strictly conform to Municipal Court rule 26, providing that a statement may he stricken if cause of action “clearly unfounded in law” is relied on, such informality should not reverse.
    4. Slander—when declaration alleging demurrable. A common-law declaration containing no allegation of a publication of alleged slander would be demurrable.
    5. Municipal Court—when allegation of publication of slander sufficient. On action in the Municipal Court for slander, the statement as to publication is sufficient where it is alleged that the words were spoken “in the presence of divers persons.”
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed July 23, 1912.
    Hermann P. Haase, for plaintiff in error.
    August Marx and August R. Marx, for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This action was brought in the Municipal Court of Chicago as a case of the fourth class in tort. The amended statement of claim recites that “Plaintiff’s claim is for damages on account of certain false and slanderous words uttered by the defendant, in the presence of divers persons, on or about the fifteenth day of February, 1910, of and concerning the plaintiff, then and now a married woman, as follows.” Then follow a number of allegations of statements alleged to have been made by the defendant, which need not be set forth in this opinion. The conclusion of the amended statement is as follows: “meaning and intending thereby to charge that the plaintiff had been and was guilty of the crime of adultery, to the damage of the plaintiff in the sum of $1,000, and therefore the plaintiff brings this suit.”

The original statement of claim was held not to be sufficient. The plaintiff filed one or more amended statements, and finally the one to which reference has been made. After the last amended statement was filed the court sustained a motion of the defendant to dismiss the suit for want of a sufficient statement, and a judgment for costs was rendered against the plaintiff. This judgment we are asked to reverse.

It is first insisted that in actions of the fourth class the Municipal Court has not power to dismiss the case for want of a proper statement. The case of Edgerton v. C. R. I. & P. Ry. Co., 240 Ill. 311, is cited as authority upon this proposition. In that case the Supreme Court held that in suits where no written pleadings are required, the same rule will govern as controls the form of action before justices of the peace and that the party suing need not even name his action, or if misnamed that fact will not affect his rights if upon hearing the evidence it appears he is entitled to recover, and the court has jurisdiction of the defendant and the subject-matter of the litigation. We should regard this decision as controlling upon us in this case were it not for the fact that under the statute the Municipal Court has authority to establish rules, and has done so. By Buie 26 it is provided that if it appears that the party filing a statement of claim or affidavit is relying upon a cause of action or defense that is clearly unfounded in law, the court may order the same stricken out, and the action to be dismissed or judgment to be entered accordingly, as may be just. It is impossible to conceive of a cause of action “clearly unfounded in law.” In order that the rule in this respect may not be treated as meaningless, we assume that the idea meant to be conveyed was that when the court finds that the statement of claim does not set out a cause of action an order may be entered striking the statement from the files, and that where the affidavit required to be made by the defendant does not set forth facts which would in law constitute a defense it may be stricken from the files. The object of the rule evidently is to have a motion to strike out perform the same office as would a demurrer under the common law practice. The order entered by the court was not strictly in conformity with the rule, in that it did not, as required by the rule, strike out the statement of claim. In our opinion, however, this informality should not cause a reversal. The words used with the innuendoes and colloquiums, if proven, would, in our opinion, clearly establish the charge of slander, and were actionable per se. Iles v. Swank, 202 Ill. 453; Spolek Denni Hlasatel v. Hoffman, 204 Ill. 532.

It is insisted by the defendant in error that the words not being alleged to have been spoken in the hearing of a third person, the statement is insufficient inasmuch as that fact must be shown in order to constitute a publication. Undoubtedly a common law declaration which did not have this allegation would be demurrable. Frank v. Kaminsky, 109 Ill. 26. Section 40 of the act creating the Municipal Court, however, provides that in an action of tort the statement “shall consist of a brief statement of the nature of the tort and such further information as will.reasonably inform, the defendant of the nature of the case he is called upon to defend, but nothing herein contained shall be construed to require the statement of claim in any action for a tort to set forth the cause of action with the particularity required in the declaration at common law.”

If the words were spoken in the presence of divers persons, it would be a fair presumption that it was in their hearing, and whether or not they were heard by them would be developed by the testimony. We think the statement sufficient, and that the court erred in entering the order dismissing the suit and in entering judgment for costs against the plaintiff. The plaintiff was deprived of a hearing on the merits of a claim sufficiently stated, and thus an injustice was done which under the statute it is our duty to correct.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Christopher Strassheim for use of M. Obstfeld, Isadore Obstfeld and Mrs. M. Obstfeld, Plaintiff in Error, v. Perfect Knitting Mills and Joseph Marschak, Defendants in Error.
    Gen. No. 17,172.
    1. Replevin—action on tone. On action on a replevin bond, where no showing was made that judgment was entered in the replevin action in favor of those for whom the action is brought, abuse of discretion is not shown in denying a motion to reopen to admit a certified copy of the judgment and record of the Appellate Court in a certain appeal from the Circuit Court, since assuming that the appeal was from a judgment in the replevin suit in question the introduction of the record would not have been sufficient.
    2. Replevin—action on tone. Where no showing is made in an action on a replevin bond that judgment was entered in the replevin action in favor of those for whose benefit the action is brought, on motion to reopen to admit the judgment in the replevin suit the proper offer would be to admit a certified copy of the Circuit Court judgment and the Appellate Court order, if any, affirming such judgment.
    Action on a replevin bond. Error to the Municipal Court of Chicago; the Hon. Max Eberhabdt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed July 23, 1912.
    Brady & Levy, for plaintiff in error; Josiah Burnham, of counsel.
    Alfred E. Barr, for defendants in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This suit was brought upon a replevin bond. At the close of the plaintiff’s case it apeared that no proof had been made that a judgment in the replevin suit had been entered in favor of the parties for whose use the present action was brought. The plaintiff in error made a motion that the case be reopened in order that proof of the bond might be made, but the motion was denied for the reason that the record showed that a certified copy of the bond had been admitted in evidence by agreement. An inspection of the record develops that such was the fact. The plaintiff in error further moved that the case be reopened in order that a certified copy of the judgment and the record of the Appellate Court “in the appeal from the Circuit Court of Cook county in the case of the Perfect Knitting Mills v. M. Obstfeld et al.” might be offered in evidence. This motion was denied.

It is insisted by the plaintiff in error that the court abused its discretion in so denying the motion. .The record in the case before us does not contain a copy of the record of the case in the Appellate Court referred to. The offer made was not sufficiently clear to enable us to say that the record sought to be introduced would have been sufficient to have allowed a judgment in the case before us properly to have been entered in favor of plaintiff in error, even if no defense had been interposed by the defendants in error. We have no means of knowing that it involved the subject matter of the present suit. The proper offer would have been that of a certified copy of the judgment of the Circuit Court and the order of the Appellate Court, if there was such an order, affirming such judgment of the Circuit Court. If it be assumed that the appeal was from a judgment entered in the Circuit Court in the replevin suit in favor of the plaintiff in error, the introduction of the record filed in the Appellate Court would not then have been sufficient. It was not the proper way to prove the fact that judgment had been entered in the Circuit Court, and there would still be lacking proof of affirmance of the judgment in the Appellate Court.

The defendants claimed a set-off for goods claimed to have been sold and delivered to the usees of the plaintiff in error. It is unnecessary for us to determine whether proof of such set-off was properly admitted in the case, as upon the record there could have been no judgment rightfully entered against the defendants in error, if there had been no such proof of set-off.

We find no error in the record such as should cause a reversal of the judgment, and the same is therefore affirmed.

Affirmed nunc pro tunc as of April 20,1912.


text:
    People of the State of Illinois, Defendant in Error, v. Joseph Peterson, Plaintiff in Error.
    Gen. No. 18,255.
    Criminal law—contributing to delinquency of female child. A conviction of knowingly and wilfully contributing to the delinquency of a female child under age of seventeen years, on hearing without a jury will be reversed where the state’s evidence shows that the child was not a delinquent and where the record contains nothing to show guilt of the offense charged.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jb., Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded with directions.
    Opinion filed July 23, 1912.
    Frank Foster, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

The plaintiff in error was convicted of the offense of knowingly and wilfully contributing to the delinquency of a female child under the age of 17 years, the case being heard by the court without a jury. The evidence offered on behalf of the state shows that the child is not a delinquent. The mother of the child, as well as other witnesses, testified that she had never been anything other than a good and virtuous girl. It is admitted that the plaintiff in error, while under the influence of liquor, improperly conducted himself towards the child, but there is nothing in the record to show that he was guilty of the offense charged in the complaint.

The appearance of the defendant in error has not been entered, presumably for the reason that in the opinion of the state’s attorney' the conviction ought not to be allowed to stand.

The judgment will be reversed and the cause remanded, with directions to the Municipal Court of Chicago to enter an order dismissing the complaint.

Reversed and remanded with directions.


text:
    Margaret Carey, Defendant in Error, v. Augusta Tremont, Plaintiff in Error.
    Gen. No. 17,145.
    1. Landlobd and tenant—eviction. Where an oven in a basement collapses without the fault of the landlord, refusal to permit the tenant to reconstruct it in the rear of the building, as practically a brick structure, ten by twelve feet, is not an eviction.
    2. Landlobd and tenant—eviction. Where it is necessary in constructing a sidewalk to remove a stairway on city property leading into a basement, refusal to reconstruct the stairway is not an eviction when it was necessary to obtain a city permit and extend the stairway through a wall of the building into the basement.
    3. Landlobd and tenant—no eviction if premises are retained. Refusal of a landlord to permit the reconstruction of a collapsed bake oven and to reconstruct a removed stairway cannot be an eviction where the premises are retained by the tenant for a length of time.

      Error to the Muncipal Court of Chicago; the Hon. Edward A. Dickeb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed July 23, 1912.
    George C. Otto, for plaintiff in error.
    Dwight MacKay, for defendant in error; Wharton Plummer, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This writ of error brings before us for review a judgment of the Municipal Court of Chicago in a case of the fourth class, instituted by the defendant in error, Margaret Carey, against the plaintiff in error, Augusta Tremont, to recover an installment of rent on a lease of premises in the city of Chicago. The sole question presented on the record is whether the plaintiff in error, defendant below, was evicted from the premises in question. At the close of the evidence the court instructed the jury to find for the plaintiff.

The contentions in support of the defense of eviction are as follows:

1. That the plaintiff below refused to make and to let the defendant make changes in, and additions to, the leased property, claimed to be indispensably necessary under the law to enable the plaintiff in error to use the property for the only purpose for which, under the terms of the lease, she could use it; and

2. That the plaintiff below, defendant in error, removed and persisted in omitting to restore a material part of the property leased, namely, a flight of stairs, six feet wide, which extended from the front sidewalk into the basement of the premises, and which the defendant needed and used in carrying on her business.

The lease, under which the plaintiff in error occupied the premises, was for a term beginning the first day of May, 1908, and ending the thirtieth day of April, 1913. . Plaintiff in error entered into possession under the lease and continued in possession until January, 1910, paying the January rent on February 4, 1910. The rents for the months of February, March and April, 1910, were not paid and suits were instituted for each month’s rent as it fell due. These suits were consolidated and tried in the Municipal Court of Chicago as one case.

Shortly after the lease commenced a bake oven in the basement collapsed. Plaintiff in error had been using the basement and oven for five years under a prior lease, and the collapse of the bake oven could not be attributed in any way to, or charged against the plaintiff or defendant in error. Mrs. Carey gave her consent to the reconstruction of an oven in the rear of the building, but when she discovered that the oven was to be practically a brick structure, ten by twelve feet, she withdrew her permit, and refused to allow the oven to be constructed. This occurred in May, 1908. The plaintiff in error stayed in the premises and continued to pay rent monthly thereafter until January, 1910—a period of nearly two years. In our opinion, the evidence fails to show an eviction of the plaintiff in error from the property, which is the main contention of the plaintiff in error.

There is, however, a further ground urged as an eviction in that in the construction of a cement sidewalk in front of the premises demised, the defendant in error removed a certain stairs extending from the front sidewalk in the front of the building to the basement of the demised premises. The evidence shows that the building stood upon the street line of the lot. In constructing a cement sidewalk, it appears to have been necessary to remove the stairway leading into the basement. This stairway was not reconstructed after the sidewalk in front of the building was made. The stairs were located on property belonging to the city, and defendant in error could not continue longer tc» occupy the property of the City of Chicago with her stairs. In order to reconstruct the stairs as they were before the sidewalk was made, it would have been necessary for the defendant in error to have obtained a permit from the city to place the stairs in an opening in the sidewalk and extend them through the wall of the building into the basement. In our opinion, the failure to reconstruct the stairs, under the facts and circumstances of the case, did not constitute an eviction of plaintiff in error from the premises, and as a matter of fact, did not evict the plaintiff in error, for she continued to occupy the premises thereafter, as indicated above. There cannot be a retention of demised premises and an eviction at the same túne. The evidence shows that the plaintiff in error retained the premises until she had purchased and erected premises of her own; and, when her own premises and the improvements thereon were ready for occupancy, the plaintiff in error, at her convenience, moved out of the defendant in error’s property and ceased to pay rent.

The court below properly instructed the jury to find the issues for the defendant in error. The judgment is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Thomas Leyhan, Plaintiff in Error.
    Gen. No. 18,170.
    Husband and wife—when evidence insufficient to show wife abandonment. A conviction under the Act of 1903 for abandonment and nonsupport of a wife is not sustained where the husband denies the charge and proves an uncontroverted, distinct and specific offer to provide for his wife, and further proves a sufficient cause for abandonment that is not denied by his wife.

      Error to the Municipal Court of Chicago; the Hon. Charles N. Gooditow, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed July 23, 1912.
    William A. Cunnea, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Upon an information filed by Mary Leyhan, December 1, 1911, in the Municipal Court of Chicago, charging that on October 15, 1911, Thomas Leyhan, plaintiff in error, her husband, having theretofore lived and cohabited with her, wrongfully and unlawfully, and without good cause, abandoned and neglected and refused to maintain and provide for her, the court, entered a judgment that plaintiff in error pay to Mary Leyhan, his wife, for her use, $35 on the first day of each month for one year.

We have examined the evidence in this case with care and are of the opinion that it fails to show that plaintiff in error abandoned his wife and neglected and refused to maintain and provide for her without good cause under the Act of 1903. The evidence in support of the information was given by the complaining witness, Mary Leyhan, and we think her evidence fails to make the case stated in the information under the Act of 1903. The evidence on behalf of the defendant fully and specifically denies that defendant had neglected and refused to maintain and provide for her. On the contrary, it shows a distinct and specific offer by him to provide for her. This is not controverted in the evidence. A sufficient cause of the abandonment is set forth in plaintiff in error’s testimony, and it is not denied by the prosecuting witness.

For the reason that the information is not supported by a preponderance of the evidence, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Massachusetts Bonding & Insurance Company, Defendant in Error, v. H. W. Binnie, Plaintiff in Error.
    Gen. No. 17,191.

      Indemnity—when premium on indemnity dond is earned. Where an ordinance permitting a person to lay a switch track provides that it is to take effect upon its acceptance and the filing of an indemnity bond to the city with the city clerk within a certain time, which is done, the granting of a permit by the city clerk is not a condition precedent to its taking effect, and the refusal of the clerk to grant a permit will not preclude the collection of a premium earned by supplying the bond, the premium being “for the life of the bond.”
    Error to the Municipal Court of Chicago; the Hon. Stephen A. Eosteb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed July 23, 1912.
    William S. Corbin and Erwin R. Lillard, for plaintiff in error.
    Moses, Rosenthal & Kennedy, for defendant in error; Walter Bachrach, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

Defendant in error brought suit to recover a premium for $200, which it claimed it had earned by the exeoution and delivery of a bond indemnifying the City of Chicago against any liability, etc., that might arise in consequence of an ordinance granting plaintiff in error permission to lay and operate a switch track across a certain street. The affidavit of defense made copies of the ordinance, the bond, and a repealing ordinance, parts thereof, and set up in effect that plaintiff in error had complied with the requirements of the ordinance before its repeal, and that the city had refused to grant permission to lay said tracks as provided by the ordinance.

On motion, the affidavit was stricken from the files for insufficiency, and judgment for the amount of the premium was entered by default for want of an affidavit of merits. Under the terms of the application for the bond, the premium was to be “for the life of the bond,” and plaintiff in error contends that the bond was never in force or effect, and hence had no life, because, as he claims, the conditions of the ordinance were not performed and the ordinance, therefore, never went into effect.

The ordinance by its terms was to take effect and be in force from and after its passage and approval provided that a written acceptance of it and the bond were filed with the city clerk within sixty days of the passage thereof.

From the affidavit aforesaid it appears that plaintiff in error within sixty days accepted the ordinance, tendered a bond approved by the mayor as required by the ordinance, and also the annual compensation required thereunder; in fact, it appeared therefrom that he did everything he was required to do, and had only to exercise the rights the ordinance conferred upon him.

The only question, therefore, raised by the affidavit of defense was whether the refusal to grant a permit and the refusal of the city clerk to file the bond then tendered prevented the ordinance from taking effect, and the bond from being in force.

If, as it appears, the ordinance was to take effect upon its acceptance and the filing of the bond as aforesaid, and plaintiff in error accepted the same and tendered a duly approved bond for filing, it was not in the power of the city clerk to suspend the ordinance or prevent it from going into effect, by his refusal to perform the ministerial act of filing the bond, which, under the circumstances, in no wise would affect plaintiff in error’s rights. Nor was the granting of a permit a condition precedent to the ordinance taking effect. In onr opinion, therefore, the ordinance was in effect until repealed, and if plaintiff in error had seen fit to assert his rights thereunder, and had failed to comply with its terms, a recovery could have been had under the bond. Consequently, defendant in error had, on the facts disclosed in the record, earned its premium, and the matters set up in the affidavit constituted no defense to the action. The court, therefore, did not err in striking the affidavit from the files and rendering judgment as by default.

The motion of defendant to strike from the record the affidavit and statement of claim, and affidavit of defense will be denied.

Judgment affirmed.


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    The People of the State of Illinois ex rel. Medora Roberts, Defendant in Error, v. Percy Baker, Plaintiff in Error.
    Gen. No. 17,259.

      Bastardy—appeal. If a judgment in a bastardy case is not against the weight of the evidence it will be sustained.
    Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed July 23, 1912.
    Beauregard F. Moseley, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Zach Hofheimer, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

The only question presented in the record of this case is whether the evidence was sufficient to justify the finding and judgment of the court that the plaintiff in error is the real father of the bastatd child of the relatrix.

After a careful examination of the entire testimony, we are unable to say that such finding was against the weight of the evidence. The judgment will be affirmed.

Affirmed.


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    The People of the State of Illinois, Defendant in Error, v. Louis Cohen, Plaintiff in Error.
    Gen. No. 17,701.
    1. Jury—may Be waived in petit larceny. By virtue of an act in force May 29, 1911, amending section 7 of division 2 of the act in relation to criminal jurisprudence, petit larceny is eliminated as an infamous crime, and the court has jurisdiction to try a case where a jury is waived.
    2. Jury—when statute does not preclude waiver of jury trial. The act in force May 29, 1911, amending section 7 of division 2 of the act in relation to criminal jurisprudence, eliminating petit larceny as an infamous crime permits a petit larceny case to he tried without a jury where the accused was indicted May 18, 1911, and convicted and sentenced June 5, 1911.
    3. Jury—when penalty on second conviction does not affect waiver of jury trial. That a person is punished by imprisonment in the penitentiary on a second conviction of petit larceny does not attach to a first conviction a penalty additional to that of fine and imprisonment, otherwise than in the penitentiary, that will preclude a first offender from waiving a trial by jury.
    4. Jury—-prohibition of imprisonment for nonpayment of money without jury trial does not preclude a waiver. The act of 1893 (Starr & C. vol. 1, p. 1410, par. 631), prohibiting imprisonment for nonpayment of money without a jury trial, cannot be construed to restrict the right to waive a trial by jury to cases punishable by fine only.
    Error to the Criminal Court of Cook county; the Hon. George Kersteet, Judge, presiding. Heard in the Branch Appellate Court at the .October term, 1911.
    Affirmed.
    Opinion filed July 23, 1912.

      Charles E. Erbstein, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Zach Hofheimer, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

The plaintiff in error was convicted of petit larceny, on a trial before the court without the intervention of a jury, trial by which was duly waived.'

Belying upon the case of People v. Russell, 245 Ill. 268, in which it was held that petit larceny being an infamous offense must be prosecuted by indictment, and, therefore, tried before a court and jury, his counsel contends that the court was without jurisdiction to try the case without a jury.

There was evidently a failure to notice that an act in force May 29, 1911, amending section 7 of division two of the act in relation to criminal jurisprudence, eliminated petit larceny from the crimes deemed infamous, and thus placed it in the class of cases which could be prosecuted by information and tried without a jury.

Said act applied to all persons charged with petit larceny who had not been previously convicted and sentenced therefor, and while plaintiff in error was indicted May 18, 1911, he was not convicted and sentenced until June 5, 1911; hence his case was one triable by a court without the intervention of a jury.

It is further contended that inasmuch as a person is punished by imprisonment in the penitentiary on a second conviction of petit larceny, when the first conviction is alleged in the indictment and proven, there attaches to a first conviction a penalty additional to that of fine and imprisonment otherwise than in the penitentiary, and the offense therefore cannot be tried without a jury. There is no force in this contention. The punishment prescribed by statute is simply confinement in the jail or work-house and a fine. Surely one cannot be heard to claim a legal benefit because he may some time in the future commit the same kind of an offense again.

Equally untenable is the contention that the Act of 1893 (Starr & Curtis’s Stats. Vol. 1, P. 1410, Par. 631), restricts the right to waive a trial by jury to a class of cases punishable by fine only. The statute in question admits of no such construction. Sloncen v. People, 58 Ill. App. 315.

The judgment of the Criminal Court is affirmed.

Affirmed).


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    The People of the State of Illinois, Defendant in Error, v. .Morris Beifeld, Plaintiff in Error.
    Gen. No. 17,810.
    Assault and batteey—when force and anger constitute' "battery. Where a person is distributing in front of an amusement park boxes of matches labeled that the park is unfair to organized labor, the taking of the matches from the person’s hand by force and in manifest anger, constitutes not only an assault but a battery within the meaning of the criminal law.
    Error to the -Municipal Court of Chicago; the Hon. Edward A. Diokee, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed July 23, 1912.
    Felsenthal & Beckwith, for plaintiff in error; Walter J. Spengler, of counsel.
    John E. W. Watman, for defendant in error; Zach Hofheimer, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

In this case the plaintiff in error contends that the evidence was insufficient to sustain a conviction of assault and battery, and that in any event it did not prove a battery. The complaining witness, with others, was distributing boxes of matches in the street in front of the premises called the “White City,” in which the plaintiff in error was interested. On these boxes were the words, “White City is unfair to organized labor.” Plaintiff in error and his witnesses undertook to prevent their distribution. He admitted that he took boxes of matches away from the complaining witness, and all of his witnesses testified to the same effect. One said that when he came up, “He grabbed at them and took them away;” another, that, “We walked up and took the matches out of her arm”; another related what happened “after he took the matches away from her.” While it might be implied from her version of the matter that she surrendered the matches on request, and relied upon other alleged acts of violence, yet it was clearly established by plaintiff in error and his witnesses that the matches were taken forcibly and under circumstances which - constituted an assault and battery. Plaintiff in error’s counsel admitted that technically it was an assault, but he urges here that it was not a battery. We think the taking of the matches from complainant’s hand or arm in the manner indicated by the evidence, by force and in manifest anger, constituted not only an assault but a battery within the meaning of the law. Hunt v. People, 53 Ill. App. 111.

The judgment will be affirmed.

Judgment affirmed.