text:
    Henry Grandt, Jr., and Louis Witt, Appellants, v. Chicago, Burlington & Quincy Railroad Company, Appellee.
    Gen. No. 20,914.
    1. Negligence, § 12

      —duty of carrier to anticipate use to which property shipped may be put. When a common carrier knows, or in the exercise of ordinary care should know, that a car contains a poisonous substance known as white lead, and knows or should know that the car .is intended to be used to carry brewery refuse intended as cattle feed, it is its duty to anticipate that the refuse may be fed to cattle.
    2. Action, § 32

      —when action of tort will lie. An action of tort may lie for breach of duty imposed by law independently of contract.
    3. Negligence, § 20

      —when action of tort will lie against carrier for failure to furnish suitable car to third person. An action of tort to recover damages arising out of the failure of a carrier to perform its duty to furnish a suitable car to the consignor of brewery refuse, intended to' be used as cattle feed, lies in behalf of one purchasing such feed from the consignee against such carrier, independently of contract, when his cattle died due to the fact that the feed became contaminated with white lead which was on the floor of the car.
    4. Carriers, § 71

      —when carrier not relieved of duty to furnish suitable car. The fact that the consignor of brewery refuse, intended for cattle feed, agrees with the carrier tó clean a car in which the feed is to be shipped does not relieve the carrier from its duty to furnish a suitable car for such purpose, as the consignor is simply the agent of the carrier.
    5. Negligence, § 79

      —when contributory negligence in not discovering poison in fodder is for jury. It is a question of fact for the jury whether the purchaser of brewery refuse, intended for cattle feed, was in the exercise of ordinary care in failing to take measures to ascertain the nature of a poisonous whitish substance in a railroad car and in the feed, when three other persons besides such purchaser noticed such substance in the feed and on the bottom of the car and bought it from the consignee for the purpose of feeding it to their cattle, and actually fed it to them.
    6. Sales, § 241

      —when rule of caveat emptor inapplicable in action against third person. The rule of caveat emptor does not apply in an action against a carrier, by a purchaser from the consignee for damages for loss of cattle due to the presence of white lead in brewery refuse, intended for cattle feed, as a result of contamination due to an unclean car.
    Appeal from the County Court of Cook county; the Hon. Isaac Hudson, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 6, 1915.
    Statement by the Court. This is an action brought by Henry Grandt, Jr., and Louis Witt, appellants and hereinafter referred to as the plaintiffs, against the Chicago, Burlington & Quincy Railroad Company, appellee and hereinafter referred to as the defendant, to recover damages arising out of a violation of its legal duty imposed upon defendant as a common carrier, to furnish cars suitable for the purpose for which they were to be used, which, in the case at bar, was the transportation of cattle feed. Suit was originally begun against defendant and one James H. Murphy, who will hereinafter be designated as the consignor. Upon the trial below plaintiffs dismissed as to the consignor, and on motion of the defendant at the close of plaintiffs ’ case,- the court instructed the jury to find defendant not guilty, upon which verdict the court entered judgment against the plaintiffs for costs, to reverse which plaintiffs have prosecuted this appeal.
    The amended declaration consisted of five counts which, in substance, charged that on or about the 19th day of September, 1913, defendant owned and operated a railroad in the city of Chicago extending to other places; that Murphy, the consignor, a dealer in dairy feed known as malt grain or brewer’s refuse used as cattle feed, ordered a car from the defendant in which to ship such cattle feed to a dealer at Wheeling, Illinois, to be sold by said dealer to farmers as cattle feed; that defendant, well knowing what use the car was intended for, was duty bound to furnish a clean, wholesome car suitable for the purpose for which it was intended, but, notwithstanding such knowledge and duty, defendant carelessly and negligently furnished a car which contained in the bottom and on the sides a poisonous substance known as white lead, by reason of which the feed loaded in said car became contaminated ; and that the said Murphy, also a party defendant, carelessly and negligently loaded said feed into the car so furnished by the defendant railroad company; that plaintiffs, who had purchased some of the said feed, while in the exercise of due care, fed the-same to their cattle, some of which became sick and died from the effects thereof; and that by reason of the negligence of the defendant aforesaid, plaintiffs sustained damages.
    Defendant filed two pleas; one joining the issues, and one denying the possession and use of the railroad as alleged in the amended declaration. Plaintiffs joined issue on these pleas. On this state of the record, it is unnecessary to set forth the pleas filed by Murphy, the consignor.

      The evidence offered on behalf of the plaintiff showed that Murphy, the consignor, at the time of the -trial (which took place during April, 1914), had been dealing in cattle feed for thirteen years, during which period it had been his custom to ship brewer’s refuse, for cattle feed, over defendant’s lines; that in September, 1913, he contracted to ship a load of such refuse to one Henry Grandt, Sr., at Wheeling, Illinois, and for that purpose, on or about September 19, 1913, ordered a car from defendant; that on or about the said day, the employees of said consignor hauled the brewer’s refuse from the Atlas, National, Garden City and Gambrinus brewing companies to the defendant’s team track at Nineteenth street and Western avenue, for the purpose of loading same into the car for shipment to Wheeling; that when they arrived at defendant’s yards and asked which car had been placed there for use by the consignor, the yard boss designated a certain car for that purpose; that said employees cleaned said car with shovels and brooms, whereupon said refuse was loaded therein. The evidence further showed that the shipment reached Grandt at Wheeling on or about the 21st of September; that said Grandt sold part of the contents thereof to the plaintiffs; that when the various purchasers of said refuse (including the plaintiffs) loaded same from the car into their wagons they noticed a white or greyish substance at the bottom of the car, being from two to four inches thick, some of which had becbme mixed with the said brewer’s refuse; that plaintiffs, not knowing the nature of this whitish substance, and having no reason to suspect that it was harmful, commenced feeding the refuse, in which it was contained, to their cattle on or about the 23rd of September, and that about the 3rd day of October they observed their cattle had become sick, five of which died a short time thereafter; that in the interim the cattle had no other feed; that this substance appeared white and lumpy; that samples of the feed containing this whitish substance taken from the car were analyzed by a chemist, who found that said whitish substance contained a mineral substance known as lead carbonate or white lead, which! was poisonous, and would produce disease, derangement or death if taken in sufficient quantities; that several veterinary surgeons who had made a post mortem examination were of the opinion that the cattle had died from lead poisoning or some poisoning occasioned by eating white lead; that the said refuse, when obtained from the breweries was in good and wholesome condition, free from any poisonous substances; that' the wagons in which it was hauled from the breweries to the car and from the car to plaintiffs’ premises at Wheeling were clean and free from harmful and poisonous substances, as was also the malt box in which the refuse was kept by the plaintiffs; that there was no white lead anywhere on the plaintiffs’ premises where the cattle were fed or herded. Plaintiffs also showed by the three witnesses who testified that they had observed this whitish substance at the bottom of the car and that it had become mixed with the refuse, that their cattle were also fed this refuse.
    Hugo J. Thal, for appellant; Rice, Lowes & O’Neill, of counsel.
    J. A. Connell, for appellee; Chester M. Dawes, of counsel.

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

   Mr. Justice Pam

delivered the opinion of the court.

While the record does not show the argument advanced by defendant in the court below in support of its motion for a directed verdict, yet it is fair to presume that there, as here, it relied in the main on the contention that even though the jury could, from the facts in evidence, reasonably have concluded that the defendant furnished the car containing the white lead, and further, that it knew the purpose for which the car was to be used, yet inasmuch as plaintiffs were not parties to the contract and there was no privity between plaintiffs and the defendant, the former could not be heard to complain of that fact, notwithstanding it was negligent. Plaintiffs, in their contention, do not claim to have been parties to the contract, nor that there was any privity between themselves and the defendant, but insist that as the defendant knew the purpose for which this car was to be used, there was a duty imposed upon it by law, to furnish a car suitable for the said purpose, and that consequently it was liable for its failure to perform such duty, not only to the person with whom it had contracted to furnish said car, but to any person who might be injured because of its failure to perform that duty; that the failure to perform that duty was an original wrongful act which would naturally, in the ordinary course of events, prove injurious tp some other person or persons, for which it would be liable if there was no intervention by any independent agency contributing to the injury.

There is no controversy between the parties that the plaintiffs could not maintain this action by reason of any contract of carriage. The question at issue is the right of plaintiffs to recover for the original wrongful act of the defendant, independently of contract. The principle of law that an action of tort may lie for a breach of duty imposed by law independently of any contract is abundantly supported by authority. In Cooley on Torts (2nd ed.), p. 76, it is said:

“If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which were innocent.”

And again the same author says on page 83:

“There is a maxim that ‘fraud is not purged by circuity, ’ and this is true of any wrongful act.”

This principle of law was also well set forth in the case of Davidson v. Montgomery Ward & Co., 171 Ill. App. 355. There, as in the case at bar, plaintiff was not a party to the contract and it was therefore contended that he could not sue. In the course of a well-considered opinon, many authorities are cited, among which is the case of Cunningham v. C. R. Pease House Furnishing Co., 74 N. H. 435, in reference to which Mr. Justice Baldwin, the writer of the opinion, said (p. 370):

“This was an action which was brought by a daughter to whose mother the representations were made. The plaintiff’s evidence in the case tended to show that certain manufacturers of a stove blacking advertised it in Nashua, stating that it was for sale by the defendants; the plaintiff’s mother saw the advertisement, called at the defendant’s store and asked a clerk if the blacking they were advertising was intended for stovepipes or for stoves. He replied that it was intended for stoves, and said, ‘The warmer the stove, the better it works. ’ She replied, ‘Won’t that be fine; I can black my stove without letting my fire go out. ’ Belying upon the representations that the blacking could be safely used on a hot stove, the mother bought a can. Two days later, the plaintiff, a member of her mother’s family, used some of the blacking on a hot stove and an explosion resulted, causing the injuries complained of. The plaintiff and her mother were blamelessly ignorant of the fact that the blacking contained naphtha. In the opinion the court says: ‘The defendant’s position is like that of one who “puts destructive * * * materials in situations where they are likely to produce mischief.” Ricker v. Freeman, 50 N. H. 420, 432. Such a person must respond in damages to those who are injured because of his acts, if he either knew or ought to have known that the materials were dangerous and that the persons injured might come in contact with them. Hobbs v. Company, ante [74 N. H.] 116; Scott v. Shepherd, 3 Wils. 403; S. C. 2 W. Bl. 892; Cooley on Torts, 78. (Italics ours.)
“ ‘Although the defendants probably did not have the plaintiff in mind when they sold the blacking to her mother, they knew the mother bought it to use on her stove and that other members of the family were likely to use it, consequently the plaintiff can recover, if her mother could have recovered, had she been injured instead of the plaintiff.’ * * *”

Another case cited was that of Thomas v. Winchester, 6 N. Y. 397, wherein a dealer in drugs sold another druggist a jar of belladonna, labeling it “Extract of Dandelion,” from which the second druggist filled a prescription for ‘ ‘ Extract of Dandelion. ’ ’ The patient took the medicine containing the belladonna, and an action by him against the first seller of the deadly drug was sustained. Therefore, in the case at bar, if there were facts in evidence from which the jury might say or might reasonably infer that defendant knew, or in the exercise of ordinary care should have known, that the car in question contained a poisonous substance known as white lead, and furthermore, knew, or. should have known, the purposes for which said car was to be used, then it was its duty, as a matter; of law, to anticipate the consequences that might naturally and properly follow its act in furnishing such a car for the purposes intended, viz., that anyone buying the refuse might feed same to his live stock. If the jury might further infer from the evidence that plaintiffs, sustained injury from said act on the part of the defendant, by which they were damaged, and that said injury was a natural and probable consequence of such act, then under the principle of law above cited, defendant would be liable for the said injury. After a careful review of the evidence, we are of the opinion that the jury might reasonably have inferred from said evidence that defendant had, or in the exercise of reasonable care should have had, knowledge that the car designated by the defendant in which to ship this cattle feed contained a poisonous substance known as white lead, and that when it designated said ear for use by the plaintiffs, it had, or should have had, knowledge of the purposés for which it was intended. Therefore, as already stated, it was its duty, as a matter of law, to anticipate the consequences that might naturally and properly flow from its act in furnishing such car to the consignor for shipment of the cattle feed. "We are further of the opinion that there was evidence from which the jury might reasonably have inferred that the injury sustained by the plaintiffs, for which damages are sought, was the consequence that the defendant should have anticipated would naturally and probably flow from the act complained of, and furthermore, that there was no evidence of the intervention of an independent agency contributing to said injury.

Defendant cannot shield itself from responsibility by claiming that the plaintiffs were not parties to the contract tinder which this car was furnished, because defendant was charged with the knowledge that not only the person with whom it had contracted might sustain injury, but that any other person who would buy the feed transported in said car would sustain injury. Defendant was a common carrier, charged, under the law of our State, with the duty to furnish suitable cars for the transportation of persons and their property; and plaintiffs, purchasing said cattle feed at Wheeling, had the right to believe that defendant had performed such duty.

Defendant, further contends that the consignor, with whom it had contracted for furnishing the car in question, had taken upon itself the duty of cleaning the car, thereby relieving it of any responsibility in connection therewith. The only evidence to support such contention was that of two employees of the consignor who testified that they always cleaned the cars furnished for cattle feed, and that on the occasion in question they cleaned the car with shovels and brooms. This testimony, however, was not evidence of an agreement on the part of the consignor to clean the car, nor was it conclusive on the question whether or not the car was clean when loaded, but was merely evidence of facts which might have been taken .into consideration by the jury had they been permitted to pass upon the issues. Moreover, even though the consignor had agreed to clean said car, that would not relieve the defendant, as far as the plaintiffs are concerned, of its duty, imposed by law, to furnish a car suitable for the purpose for which it was intended. The act of the consignor in cleaning the car was the act of the defendant. Chicago & A. R. Co. v. Davis, 159 Ill. 53, 58.

Defendant further maintains that plaintiffs had knowledge of the presence of this whitish substance in the bottom of the car and in the cattle feed removed therefrom; that in failing to take measures to ascertain the nature thereof, they were not in the exercise of ordinary care, thereby contributing to the injuries sustained. On this point, taking into consideration the evidence that three persons besides the plaintiffs, who had noticed this whitish substance on the bottom of the car and in the refuse, bought it for the purpose of feeding the same to their cattle, and did so, the question whether or not plaintiffs acted as ordinarily prudent men would have acted under like circumstances, was also one of fact for the jury and not a question of law for the court.

Defendant further contends that, this being an action to recover damages for an injury arising out of the sale of feed for animal consumption, the rule of caveat emptor applies, and that under the facts in evidence the plaintiffs cannot recover. In our view of the issues as heretofore expressed, this contention is without force.

For the reasons hereinabove assigned, we are of the opinion that the issues should have been submitted to the jury, and that the trial court erred in directing a verdict for the defendant. Accordingly, the judgment will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Pam

license: Public Domain

text:
    Frank M. J. Kirn, Appellee, v. Chicago Journal Company, Appellant.
    Gen. No. 20,933.
    1. Master and servant, § 707

      —when question of existence of relation is for the jury. In an action by a policeman, who was riding on a wagon carrying newspapers for a certain daily newspaper publishing company during a strike of drivers for various daily newspapers, for damages for personal injuries sustained as a result of the alleged negligence of the driver in turning to the left to cross in front of an oncoming street ear, held that under the evidence it was a question for the jury whether the driver was the servant of the newspaper publishing company or the servant of a certain delivery company.
    2. Master and servant, § 682

      —sufficiency of evidence as to existence of relation. In an action for damages for personal injuries against a newspaper publishing company by a policeman who was riding on a delivery wagon during a strike of the drivers of various daily newspapers, and who was injured as a result of the alleged negligence of the driver in attempting to cross the street in front of an oncoming street car, evidence held sufficient to sustain a finding that the driver was the servant of the newspaper publishing company, and not of the delivery company.
    3. Pleading, § 458

      —when question of variance is waived. The question of variance between the proof and allegations in a declaration is waived where no objection or motion is made on such question but a motion is made simply to direct a verdict, and for a new trial, and exceptions taken to the overruling of such motions.
    4. Evidence, § 107

      —when telephone conversation is admissible. A telephone conversation is admissible where material and relevant to the issues of a case.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Rehearing denied October 15, 1915.

      Statement by the Court. This is a suit for personal injuries brought by Frank M. J. Kirn, appellee and hereinafter referred to as the plaintiff, against the Chicago Journal Company, appellant and hereinafter designated as the defendant, and the Chicago City Railway. On the trial below, at the close of all the evidence, the court instructed the jury to return a verdict of not guilty as to the Chicago ’ City Railway. The ease was then submitted to the jury, who found defendant guilty, assessing the plaintiff’s damages in the sum of $750. To reverse the judgment entered on this verdict, defendant has prosecuted this appeal.
    Chytraus, Healy & Frost and Edwin White Moore, for appellant.
    Robert L. Stephens, for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.

At the time of the accident there was a strike involving the drivers delivering for various daily papers published in the city of Chicago. Because of the'strike in question, plaintiff, a police officer, while in the performance of his duty as such, was riding upon a wagon which at the time of the accident carried papers of the defendant and the Chicago Daily News. This wagon had printed on its sides the name of the defendant. The driver of the wagon, one Myron, had started out at 2:15 from the barn, which was located at 139-141 West Sixty-third street, and had driven to the Illinois Central Railroad station on East,Sixty-third street, between Washington and Madison avenues and stopped on the south side of the street in the subway under the Illinois Central Railroad tracks, where he left the wagon, returning after a few moments with bundles of newspapers which were to be delivered. The wagon, with Myron on the right-hand side and plaintiff on the left-hand side of the seat, was then driven east on the south side of the street. Just in front of it another wagon was standing close to the curb, whereupon Myron passed it on the left-hand side, his wagon remaining, however, to the south of the south rail of the eastbound track of the Chicago City Railway. He then suddenly turned his horse on to the track as if to turn and go west, and as he started to do this, a car of the Chicago City Railway Company approached from the west ringing its bell, and some one hollered, but before the said Myron could either complete the turn he had started to make, or get off the track, his wagon was struck by the car, causing the-plaintiff to be thrown from the wagon, whereby he sustained the injuries complained of.

Defendant admits in its brief that the accident' was caused by the negligence of either Myron, the driver, or one Kerrigan, motorman of the car that collided with the wagon, thereby absolving plaintiff from any blame in connection with the accident. While defendant, in the course of its argument in support of its various contentions as to why the judgment should be reversed, complains of the action of .the court in instructing the jury to find the Chicago City Railway Company not guilty, no error is predicated thereon.

Defendant first contends that the court erred in refusing to hold as a matter of law that Myron was not the servant of the defendant at the time of the accident, and, in urging this contention, relies upon the following principle of law: “Where a driver for a horse and wagon is hired from anyone who has him in his general employ and has the power to discharge him, the employer and not the hirer is liable for the driver’s negligence.” Defendant claims that the evidence shows that the driver Myron was in the general employ of the Chicago Delivery Company alone; that said company alone had the authority to discharge him; that the only control defendant had over said Myron was to give directions as to when and where deliveries were to be made; that at the time of the accident said Chicago Delivery Company was, as to the defendant, an independent contractor for the delivery of its newspapers in the city of Chicago. Defendant therefore argues that under the principle of law heretofore stated it was not liable for the driver’s negligence. Plaintiff contends, however, that there was no proof of the existence of the alleged Chicago Delivery Company; that, moreover, if there was, the said Chicago Delivery Company was but an agent for all newspapers. in Chicago in securing drivers during the strike; that the control of the said Chicago Delivery Company was in the various newspapers including the defendant, and that the defendant had the right to discharge'the driver, Myron, or any other driver it had secured through the Chicago Delivery Company. In considering these various contentions, it becomes necessary to review the, facts having a bearing thereon. Prior to the strike the Chicago Journal, defendant herein, delivered its papers, independently of any other company publishing and delivering newspapers, through one Pierce who had a contract for the delivery of newspapers, but who, during the strike, refused to have, and did not have, anything to do with furnishing the drivers, but continued to furnish wagons and horses. After the strike, deliveries of all afternoon papers were made from one wagon. One of the depots for delivery was a barn located at 139-141 West Sixty-third street, whence deliveries were made of all newspapers for that section of the city, at the time of the accident. Plaintiff placed upon the stand one Claude Draper, who stated that in May, 1912, he had charge of deliveries at the aforesaid barn; that he had business dealings with defendant at that time only through its drivers; that at this barn there was a representative of the defendant by the name of Kirby, who directed the drivers as to their routes and gave them their route slips; that he (Draper) received his pay from the contractor, Pierce; that on May 23rd he talked with a representative of the defendant, whom he called Eckstein, but whose name the evidence shows was Eckstrom, concerning the drivers; and when asked what that conversation was, answered: “Well, he would send me the drivers; he told me that if the drivers were not satisfactory to send them back to him and he would replace them with better drivers”; that Myron was sent out to him on the day of the accident with a note from Eckstrom directing that he ¿Myron) be given a wagon that morning; that he (Draper) had nothing to do with paying these drivers; that he never had anything to do with the pay slips; that Eckstrom stated that “when a man didn’t suit to send them to him, he would pay them off. ’ ’ Draper further testified that after the accident he talked with Eckstrom about the injury the horse had received in said accident, and Eckstrom wanted to know how badly the horse was hurt, and upon being told the horse would be laid up about six weeks, Eckstrom told him to leave the horse where it was until it was ready for work again, and to send the bill to him and he would settle. These conversations, testified to by Draper, were had with Eckstrom over the telephone. Plaintiff also called Eck= strom, who testified that at the time of the accident he was circulation manager of the defendant; that Pierce refused to have anything to do with furnishing the drivers during the strike; that that matter was turned over to the Chicago Delivery Company who, in that regard, was acting for all the papers. He stated further, that many times during the strike he was in telephone communication with the barn at Sixty-third street and may or may not have talked with a man by the name of Draper; that an employee of the defendant by the name of Kirby was at the barns all day, whose duty it was to send drivers out on their various routes; that if notified by Kirby that a driver had not appeared, he would call up the Chicago Delivery Company’s office and get another driver. When asked who the Chicago Delivery Company was, he stated:

“I don’t know who they are, except they were organized at that time to take care of the Chicago newspapers.
“Q. How long did they stay in existence? A. How long were they in existence?
“Q. .Yes. A. They came in existence, I think, the first or the second week of the strike.”
Eckstrom was then further cross-examined as follows:
1 ‘ Q. Did the Chicago Journal Company, the defendant in this case, on the 23rd of May, 1912, have in its employ a driver named Myron? A. They did.
“Q. The .Chicago Journal? A. The Chicago Journal? .
“Q. Yes. A. A man named Myron on the joint delivery had been in Woodlawn. He was on one of Pierce’s wagons.
“Q. In whose employment was he? A. He was paid by the Chicago Delivery Company.
“Q. Who hired him? A. Mr. Taylor, I think, hired him.
“Q. Who was Mr. Taylor? A. He was manager, or director, I don’t know which, of the Chicago Delivery Company.
"Q. He had nothing to do with the Chicago Journal Company? A. Excepting to supply us with drivers.
“Q. Taylor hired all the drivers? A. Practically all of ours.
“Q. And the Chicago Delivery Company paid those men their salaries? A. Yes, they were paid—what we did was this, in order to secure the money for these men tin their pay morning, we paid them, and then our pay-roll went over to the Chicago Delivery Company and I presume the Chicago Delivery Company was reimbursed.”

As we read the foregoing evidence, it does not present a situation such as is set forth in the various cases cited by defendant in support of its contention, viz.: Chicago Hydraulic Press Brick Co. v. Campbell, 116 Ill. App. 322, and Foster v. Wadsworth-Howland Co., 168 Ill. 514, and in a later case not cited by counsel, viz., Connolly v. People’s Gas Light & Coke Co., 260 Ill. 162, in each of which cases the alleged independent contractors had furnished, in some instances horses, wagons and drivers, and in others horses and drivers, and there was no question but that the person so furnishing the equipment was one entirely separate and apart, having no connection with the business of the person with whom it had contracted to do the teaming and delivering. In the ease at bar, plaintiff made out a prima facie case by showing that the wagon, which was in charge of Myron on the day of the accident, bore the name “Chicago Journal.” The evidence showed that it was operated for delivering papers published by the defendant. This was at least prima facie evidence of the possession and control of the wagon by the defendant. East St. Louis Connecting Ry. Co. v. Altgen, 210 Ill. 213; Pittsburgh, Ft. W. & C. Ry. Co. v. Callaghan, 157 Ill. 406. We realize that defendant contends that plaintiff was not content with simply showing those facts, but also showed that the said Myron was furnished by the Chicago Delivery Company; and that the said Chicago Delivery Company was independent of the defendant and that he was furnished under a contract with the Chicago Delivery Company. While there was some categorical evidence by Eckstrom, the acknowledged employee of the defendant, that the Chicago Delivery Company did furnish the drivers, yet neither the court nor the jury were compelled to accept that statement as conclusive on the question whether or not the Chicago Delivery Company was in fact an independent contractor. They had the right to take into consideration the further facts that the Chicago Delivery Company was organized to furnish drivers during the strike for all the newspapers; that its offices were located in the building of one of the newspapers; that Eckstrom did not know who the Chicago Delivery Company was, save that a man named Taylor was its general manager or director; that the said Eckstrom had told the man in charge of wagons and horses for Pierce at the barn on Sixty-third street, that if drivers sent out by him were not satisfactory, he would replace them with better drivers; that all he had to do if a man did not suit him, was to send him back and he would pay him off; the fact that these men were paid by defendant; and that Myron was put to work upon the direct request, in writing, of Eckstrom. The court and jury might well have concluded from the conversation between Eckstrom and Draper that Draper’s act in sending back a driver was equivalent to a discharge of the driver, and that when Eckstrom stated that he would pay them off and send better drivers, that he, Eckstrom, had the power to discharge the drivers. From all of the evidence the court and jury might further have reasonably concluded that the Chicago Delivery Company was not an independent contractor, but merely an agency representing the various newspapers in securing drivers during the emergency created by the strike. Defendant produced no employee or officer of the so-called Chicago Delivery Company, nor evidence of a single transaction of any original hiring of or of final payments to drivers alleged to have been furnished by said Chicago Delivery Company. Clearly, under this evidence, the court could not say, as a matter of law, that the said Myron, at the time of the accident, was the employee of an independent contractor, but it rightfully placed before the jury the question whether the said Myron was an employee of the defendant or of an independent contractor. Plaintiff’s evidence was prima facie sufficient to prove the fact that the said wagon, at the time of the accident, was in possession and control of the defendant, and we cannot say that there was proof of facts in the record sufficient to overcome this prima facie case.. Defendant had it within its power, if there was a written contract between it, and the Chicago Delivery Company, to produce same, also to produce the officers and employees of that company to show what its business was or how it was conducted; having failed therein, defendant cannot now fairly complain of the jury’s finding on the issues, nor of the court’s action in refusing to direct a verdict in its favor.

Defendant further contends that the court erred in not directing a verdict for it, on the ground that the declaration alleged that the driver was negligent in not getting his wagon off the track, while the only act of negligence which the evidence tended to prove was, that the horse was driven on the track in front of an approaching car; that therefore the negligence proven was at variance with the negligence as charged in the declaration, and that such variance between the proof and the allegations was fatal to a recovery, because the rule is well established that the plaintiff cannot recover upon proof of an act of negligence different from that alleged in the declaration. That such is the law we have no doubt, but the question of variance, unless raised in apt time, is waived. In all the cases cited by defendant, the objection to such evidence was made in apt time. However, in the case at bar, no objection on this ground was made to the introduction of the evidence at the time it was offered, nor was there a motion made to instruct the jury to find for the defendant because of such variance. Defendant does not claim, in its brief, to have raised any objection or made any motion because of the variance now complained of; it merely concludes its argument upon that point by saying that at the close of the plaintiff’s case and at the close of all the evidence, appellants submitted a motion to direct a verdict, and also that said motion was denied and that exceptions were taken to the rulings on said motions as well as on the motion for a new trial. The defendant having failed to predicate an objection or base any motion upon the question of variance, it has clearly, under the decisions of this court and our Supreme Court, waived all questions of variance. Chicago City Ry. Co. v. Phillips, 138 Ill. App. 438; City of Chicago v. Bork, 227 Ill. 60; Lake Shore & M. S. Ry. Co. v. Ward, 135 Ill. 511.

Defendant complains of the 16th instruction given on behalf of the plaintiff. The main objection against this instruction is that the court submitted to the jury the question whether or not Myron ;was 'the' servant of the defendant, instead of holding as a matter of law that he was not its servant. We have already held that the court did not err in its ruling. While defendant, in the course of its argument, sets forth several other reasons why this instruction is bad, we, however, believe that it correctly stated fhe law, under the facts in the case, and that defendant’s contention in regard thereto is not well taken.

. Defendant also complains of the ruling of the court in admitting in evidence and submitting to the jury the telephone conversation testified to by' Draper. Under the rule as laid down in Godair v. Ham Nat. Bank, 225 Ill. 572, the telephone conversation was admissible if material and relevant to the issues. That we have so regarded it is evident by our reference thereto in passing upon the first contention of the defendant.

Finding no reversible error, the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    In re Petition of R. O. Witzke, Appellant, v. Frederic Greer, Appellee.
    Gen. No. 20,948.
    (Not to be reported in full.)
    Appeal from the County Court of Cook County; the Hon. John E. Owens, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Petition by E. O. Witzke against Frederic Greer for release from arrest under the Insolvent Debtors’ Act (J. & A. ¶¶ 6198-6250 inc.), petitioner having been arrested for failure to satisfy a writ of capias ad satisfaciendum after judgment against him in an action of trover. From a judgment denying the petition, the petitioner appeals.
    On November 5,1913, a writ of replevin was issued from the Municipal Court of Chicago on behalf of Frederic Greer, appellee, and against A. E. Armstrong and E. O. Witzke, the latter being the appellant,-for the recovery of an automobile. The property not being recovered, on November 20th, in the same action, ^plaintiff filed a statement of claim in the usual and customary form used in an action of trover, alleging damages in the sum of $275.
    To this statement of claim defendant filed an affidavit of merits, setting forth, in substance, that he became the purchaser of the said automobile at a public sale held by the bailiff of the Municipal Court of Chicago under a writ of execution issued by the said Municipal Court. Upon the conclusion of the trial, plaintiff presented a motion in writing to instruct the jury to find the issues in his favor, accompanied with the following instruction:
    “The court instructs the "jury to find the defendant guilty and assess the plaintiff’s damages at the sum of two hundred and seventy-five dollars ($275) in trover.”
    The court, however, refused to direct a verdict in that form, but gave the jury the following form of verdict with directions to sign same:
    “We, the jury, find the defendants, H. E. Armstrong and E. O. Witzke, guilty of having maliciously, wilfully and intentionally, and with intent to injure and defraud the plaintiff converted to defendants’ own use, the_ goods and chattels of the plaintiff and assess the plaintiff’s damages at the sum of two hundred and seventy-five dollars ($275),”
    which was returned by the jury and judgment rendered thereon by the court. Said judgment and costs not having been paid, a capias ad satisfaciendum was issued and served upon the defendant. Upon his .failure to satisfy the writ, defendant was taken into custody. On the same day he filed his petition for release from such arrest, under the Insolvent Debtors’ Act (J. & A. ¶¶ 6198 et seq.), and was released on a bond conditioned upon his appearance on the hearing of said petition. On the hearing before the court all the papers in the original replevin suit were produced, viz.: The affidavit, writ and bond, plaintiff’s statement of claim, defendant’s affidavit of merits, the motion for a directed verdict presented by the plaintiff, the form of verdict as set out in said motion, also the verdict returned by the jury at the direction of the court, and the judgment issued thereon. Upon this state of the record defendant asked the discharge of the defendant on his petition, insisting that malice was not the gist of plaintiff’s action. Plaintiff maintained the contrary, insisting that trover is an unlawful conversion of property and that the verdict of the jury found defendant guilty of having maliciously, wilfully and with -intent to injure and defraud the plaintiff, converted to his own use the goods and chattels of the plaintiff, and that judgment having been rendered thereon, said judgment was res adjudícala on the question whether malice is or is not the gist of the action. The court held that malice was the gist of the action, and upon that ground remanded defendant to the custody of the sheriff.
    C. A. Fitch, for appellant.
    McInerney, Power & Byrnes, for appellee.

      Abstract' of the Decision.
    1. Execution, § 295*—how question of malice determined. The question whether malice is the gist of an action so as to entitle a debtor who has been arrested for failure to satisfy a writ of capias ad satisfaciendum to a release from imprisonment upon petition under the Insolvent Debtors’ Act (J. & A. ¶¶ 6198-6250 inc.), must be. determined from the face of the record when the record affords the means of such determination.
    2. Judgment, § 454*—when question as to malice res adjudicata. If it appears from the pleadings in an action that malice was the gist of the action, the doctrine of res adjudicata applies as to the question whether or not malice was or was not the gist of the action.
    3. Trover and convebsion, § 7*—what is gist of the action. The gist of an action in trover is the conversion of the property.
    4. Trover and convebsion, § 37*—what proof essential. All that need be shown in a count sounding in trover is the ownership of the property in the plaintiff, that it came into the possession of the defendant, and that the defendant converted it to his own use.
    5. Execution, § 294*—when release of judgment debtor in trover proper. A judgment debtor who has been arrested upon a capias ad satisfaciendum after failure to pay a judgment in an action in the Municipal Court is entitled, upon petition under the Insolvent Debtors’ Act (J. & A. ¶¶ 6198-6250 inc.), to be released from custody where the statement of claim clearly shows that the action is one of trover, since malice is not the “gist” of such an action.
    6. Execution, § 295*—when verdict cannot supply malice. The verdict in an action in the Municipal Court cannot supply the element of malice or fraud unless they appear in the statement of claim either expressly or impliedly.
   Mr. Justice Pam

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Frederick H. Case, Plaintiff, v. Emerson-Brantingham Company, Defendant. Emerson-Brantingham Company, Appellant, v. George A. Donnelly, Intervening Petitioner, Appellee.
    Gen. No. 20,326.
    Attorney and client, § 119

      —how amount of attorney's fee computed on settlement direct with client. An agreement between an attorney and bis client provided that the client would pay the attorney for his services in a certain matter a sum of money “equal to one-half of whatever amount is received as damages out of said claim.” It was held that on a direct settlement between the parties of the claim to which the agreement related the attorney was entitled to receive from the defendant an amount equal to one-half of the amount for which the defendant had Settled with the client, not an amount equal to that which the client had been paid. Following Czecziotka v. Hammond Glue Co., 185 Ill. App. 559.
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.
    Heard in this court at the March term, 1914.
    Reversed and judgment here.
    Opinion filed December 21, 1914.
    Ralph F. Potter, for appellant.
    Rankin, Howard & Donnelly, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

This is a claim for an attorney’s lien where the defendant made a settlement direct with the plaintiff, the attorney’s client.' Plaintiff agreed with his counsel “to pay me (the attorney) for said services a sum of money equal to one-half of whatever amount is received as damages out of said claim or cause of action.” The amount which defendant paid plaintiff was $160. Defendant tendered the attorney $80, which was refused, the attorney claiming that he was entitled to $160. The trial court held with the attorney, and judgment for $160 was entered.

This court has heretofore construed a contract similar to this in the case entitled Czecziotka v. Hammond Glue Co., 185 Ill. App. 559, and we are not persuaded by the able argument of counsel either that that decision was erroneous or that this case can be distinguished- from that. Applying what we there said to the facts now before- us, if the plaintiff, Case, after receiving $160 from defendant had offered to pay his attorney the amount he had agreed to pay him, namely, “one-half of whatever amount is received,” clearly the attorney would not be entitled to more than $80 from Ms client. How then can it be said that should Case fail to pay his attorney this amount, the defendant, who, under the statute, thereupon became burdened with Case’s promise, is obligated for double this amount? That this cannot be so seems to us self-evident. The amount of the liability of defendant in this case is determined by the amount of the liability of the plaintiff to his attorney.

We hold that the judgment was erroneous, but as the error in the judgment affects only the amount, judgment will be entered here against appellant for $80, costs here to be paid by appellee.

Reversed and judgment here.


author: Mr. Presiding Justice Scanlan

text:
    Warren Sales Company for use of Warren Boat Company, Appellee, v. J. L. Shaw, Appellant.
    Gen. No. 20,659.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 15, 1915.
    Rehearing denied November 5, 1915.
    Statement of the Case.
    Action of the first class in the Municipal Court of Chicago by Warren Sales Company for the use of Warren Boat Company, a corporation, against J. L. Shaw, defendant, to recover $1,450, balance alleged to be due under a contract for the manufacture and delivery of a hydroplane, and also for the sum of $240.66, for other goods sold and delivered. Defendant filed an affidavit of merits denying that plaintiff made and delivered the hydroplane as per contract and denying that there was due from defendant to plaintiff $1,450 or any other sum of money, and alleging that plaintiff was indebted to defendant for failure to deliver the hydroplane on May 1,1913, as provided in the contract, ~ and that by reason of such failure defendant was entitled to recover from plaintiff the sum of $5 per day “as provided in the contract.” Defendant also filed a “statement and affidavit of claim on set-off,” the items of which aggregated $1,772.61. To this plaintiff filed an affidavit of merits. The case was tried by the court without a jury, and the issues were found against defendant and plaintiff’s damages were assessed at the sum of $1,152.71. A motion for a new trial was overruled and judgment was entered on the verdict. From this judgment, defendant appeals.
    Abstract of the Decision.
    1. Appeal and error, §482

      —when record does not present question of law for review. Where, on appeal from a judgment of the Municipal Court of Chicago in an action of the first class tried without a jury, no complaint is made as to any ruling of that court on any question of pleadings nor upon the admission or exclusion of evidence, nor upon any matter arising during the course'of the trial, and no written propositions of law were submitted to the court, the record presents no question of law for the consideration of the Appellate Court.
    2. Appeal and error, § 1410

      —when finding not against weight of evidence. Evidence on appeal from judgment by Municipal Court for plaintiff in action of first class, considered and held that finding of trial court was not manifestly against weight of evidence.
    Ela, Grover & March, for appellant; Frank R. Grover, of counsel.
    William A. Jennings, for appellee.

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    S. Adrian Scheltes, Appellee, v. Thomas M. Hunter, Appellant.
    Gen. No. 20,836.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 15, 1915.
    Rehearing denied October 26, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Replevin by S. Adrian Scheltes, trustee, plaintiff, against Thomas M. Hunter, bailiff, defendant. On submission of the case, by agreement, to the court without a jury, the court found defendant guilty and that plaintiff was entitled to possession of the property, and assessed plaintiff’s damages at one cent. A motion for new trial was overruled, and from judgment entered on the finding, defendant appeals.
    The evidence shows that on December 30,1911, Nate Schatz, who was engaged in the clothing business in the city of Chicago, under the name and style of “Bart Clothing Company,” executed and delivered to S. A. Scheltes, as trustee, a certain deed of trust purporting to be an assignment for the benefit of the creditors of Schatz. The deed conveyed to the trustee all his merchandise, furniture and fixtures, cash, bills and accounts receivable, and other property owned by him in connection with the said business. At the time of the execution, Schatz was owing a large amount of money, practically all of it to eleven creditors, one of whom was Rose, Rogers and Rose, a corporation, that held a claim amounting to $2,649.06, and the deed was executed in pursuance of an arrangement made at a meeting of certain of the creditors of Schatz, and was ratified and assented to by ten of the said eleven creditors.!™There was a conflict in the evidence as to whether Rose, Rogers and Rose ratified and assented! to the assignment. Immediately after the execution of® the said deed, the trustee took possession of the property conveyed and appears to have conducted the business from that time until the date of the trial. On May 4,1912, Rose, Rogers and Rose recovered a judgment against the said Schatz, in the Municipal Court of Chicago, in the sum of $2,671. Execution was issued on this judgment and placed in the hands of Thomas M. Hunter, the bailiff of said court, who, on or about June 4, 1912, seized 400 suits of men’s clothing in the hands of the said trustee.
    The declaration consists of the usual counts in replevin. The defendant filed two pleas; the first averring that the property replevined was the property of Nathan Schatz and not of the plaintiff, the second averring justification of the seizure as bailiff of the said court under a writ of execution in full force and effect, issued by the said court on the said judgment in favor of Rose, Rogers and Rose. To these pleas the plaintiff filed a replication.
    The defendant contended “that the alleged assignment for the benefit of creditors is void because it tends to hinder, delay and defraud creditors. Being void, no title, to any property of Schatz passed to Scheltes, the plaintiff in this replevin action”; that the goods seized by the defendant as bailiff of the Municipal Court were in fact the goods of Schatz, and that the trial court erred in rendering' judgment in favor of the plaintiff. The defendant further contended that “the plaintiff did not establish an estoppel by a preponderance of the evidence.”
    The plaintiff contended: “1. The deed of trust was not made to hinder, delay and defraud creditors, and was not fraudulent or void. 2. A preponderance of the evidence clearly establishes that the deed of trust was made with the full knowledge and acquiescence of Róse, Rogers and Rose, and, therefore, was and is •binding upon them. 3. The goods seized by the bailiff under the execution were goods purchased by S. Adrian Sckeltes, as trustee, and were not subject to seizure under execution against Nate Schatz, the original assignor, even though the original conveyance to the trustee were fraudulent and void.”
    Abstract of the Decision.
    1. Fraudulent conveyances, §155

      —when valid inter partes. A conveyance made to defraud creditors is valid inter partes.

    2. Fraudulent conveyances, § 180

      —when voidable. Even as to creditors who are not parties to an assignment and who do not assent to its being made, a fraudulent assignment is not void but only voidable.
    3. Assignments fob benefit of creditors, § 32

      —when assenting creditor cannot attach assignment. A creditor who has full knowledge of the making of an assignment for the benefit of creditors and acquiesces therein is bound by the assignment and cannot attack- it as a fraudulent conveyance, such assignment being neither void nor voidable as to him.

      The defendant contended that even if it be conceded that Rose, Rogers and Rose, with full knowledge of the assignment, acquiesced therein, nevertheless, the conveyance is absolutely void because “it permitted the trustee to carry on the business; it authorized him to purchase new merchandise and render the trust estate liable for any loss or profit that would he made out of the new merchandise; it authorized him to pay all expenses incurred by him in the conduct of the business irrespective of whether the expenses were necessary or not; it absolutely required the trustee to employ Schatz and pay him $50 per week; it required the trustee to pay premiums on the life insurance taken out on the life of Schatz; it authorized the trustee to make sales of goods on credit; it limited the liability of the trustee.”
    G. L. Wire, for appellant.
    Musgrave, Oppenheim & Lee, for appellee.

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

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

4. Assignments fob benefit of creditors, § 32 —when evidence sufficient to show valid assignment. In a replevin suit to recover property alleged to have been assigned for the benefit of creditors, evidence examined and held sufficient to show that the assignment had been made with the knowledge and acquiescence of the defendant in replevin.


author: Mr. Justice Fitch

text:
    James G. Trainer and William O. Trainer, Appellants, v. Alfred L. Baker, Appellee.
    Gen. No. 19,296.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 15, 1915.
    Rehearing denied November 16, 1915.
    Statement of the Case.
    Action by James G. Trainer and William O. Trainer, copartners, plaintiffs, against Alfred L. Baker, defend-' ant, to recover $22,500 claimed to be due plaintiffs for services as real estate brokers in selling certain property. There were two trials in the Superior Court, a verdict for plaintiffs for $17,500 being returned in the first, and a verdict for defendant being returned in the second. From a judgment on the second verdict, plaintiffs appeal.
    There was evidence tending to prove that'in 1907 plaintiffs were authorized in an interview had by one of them with defendant to offer the property for sale to any person whom they might think would buy, for the price of $1,000,000, and that a commission of two and one-half per cent, upon that price would be paid them, if they “found a purchaser for the property.” There was also evidence tending to prove that plaintiffs submitted the property to several prospective purchasers, one of whom was Leon Handel; that plaintiff James G-. Trainer learned from Hr. Handel that he would be willing to pay $1,000,000 for the whole property, including an outstanding leasehold estate for which the tenant was demanding $150,000; that thereupon said Trainer asked defendant if he would he willing to sell the property for $850,000, subject to the lease, which defendant declined to do; that this reply was reported to Mr. Handel, who then suggested that he would be willing to buy if defendant would take back a mortgage on the property at a low rate of interest for part of the purchase price, but this was also refused by defendant, who said that he “wanted to sell it for cash,” and that plaintiffs “might be able to borrow the money from somebody at a low rate of interest”,; that Handel then said that as the holiday season was approaching, he was “pretty busy” and would do nothing further until after the first of the year, when he “would take it up” again; that Trainer saw Handel again in January, 1908, but the latter would not make any better offer than he had made; that Handel thereafter went to California and was gone until Hay, 1908, leaving word with Trainer to let him (Handel) know at Santa Barbara, California, if, in the meantime, defendant would consent to accept his offer of $1,000,000 for the whole property; that during Handel’s absence, Trainer succeeded in getting the tenant to reduce his price to $137,500 for the leasehold interest; that upon Handel’s return to Chicago in May, the matter was again discussed with him, but without any result; that in September or October, 1908, Trainer again called on Handel, but Handel then said that “he did not know whether he would be in a position to buy anything for some time,” and that consequently he was “not interested at the present time”; that in the meantime, however, Handel had also been negotiating with a broker named Strauss, who had agreed with Handel to divide his commissions with Handel’s son-in-law, who was also in the real estate business; that in October or November, 1908, Handel telephoned to another broker named Bacheldor, who had also talked with him about the property, and authorized Bacheldor to negotiate with defendant for the purchase of the property, agreeing to pay Bacheldor a commission of $10,000, on condition that half of it should be paid to Mr. Handel’s son-in-law; that as the result of Bacheldor’s negotiations, a written contract of sale was entered into between defendant and Handel, in January, 1909, by the terms of which Handel agreed to pay $900,000 for the property, subject to the existing lease, and to pay a commission to Bacheldor, and also agreed to save defendant harmless “from any and all claims for commissions arising out of the shle of said premises,” and to defend any suit- that might be brought to recover any such commissions.
    The court, at the request of defendant, instructed the jury “that this is a suit between James G-. Trainer and William O. Trainer on the one .side and Alfred L. Baker on the other and between no one else, and that this is not a suit against Leon Handel, ’ ’ and that ‘ ‘ The question simply is whether defendant Baker is liable under the evidence and the instructions of the court to the plaintiffs in this case: You should not, therefore, overlook this fact nor find a verdict against defendant Baker simply because Leon Handel agreed with defendant and his cotrustees to indemnify and hold them harmless from any and all claims for commission arising out of the sale of the property in question in this case to said Leon Handel; nor simply because of the fact that defendant and said trustee paid no commission for the sale of said property; nor simply because of the fact, if you find it to be a fact from the evidence, that Handel paid, or agreed to pay, $10,000 as commission, one-half to E. A. Bachelddr and one-half to Joseph Wineman.”

      The fifth and eighth instructions given on behalf of defendant told the jury generally that before they could find for the plaintiffs, they “must find and believe” from the evidence “that Leon Handel was induced to buy the property in question in this case by and through the efforts of plaintiffs, and that plaintiffs were the efficient and procuring cause of said sale being made to said Handel, and that their work, in fact, caused the said Leon Handel to purchase said property, and that without their efforts and work, he would not have purchased the same.” Following this general statement, the instructions go on to say that it is not sufficient for the plaintiffs to show that they called Handel’s attention to the property, gave him the price and description, and tried to sell it to him before he bought it, but that the plaintiffs “must go further and prove by a preponderance or greater weight of the evidence, that they were the direct and procuring cause of the purchase of said property by said Leon Handel. ’ ’
    By the fourth instruction given on behalf of defendant, the jury were told that if they find from the evidence “that defendant agreed to pay to plaintiffs a real estate commission of two and one-half per cent., in case they found a purchaser, and completed and consummated a sale of the property in question in this case to such purchasers; and you further find from the evidence that plaintiffs did not consummate and complete the sale of the property in question in this case to the purchaser thereof, Leon Handel* then and in the event you find the foregoing from the evidence, plaintiffs cannot recover in this case, even though you may find from the evidence that they endeavored to sell said property to said Handel, and communicated to defendant the fact that they were endeavoring so to do.”
    There was some evidence tending to prove that after the plaintiffs had begun negotiations with Handel, and had succeeded in inducing him to consider the property favorably, the sale was consummated and completed by him through another broker for the purpose of obtaining a personal advantage, or a lower price, by making it appear that plaintiffs were not entitled to a commission, and that defendant knew that such was the fact.
    Abstract of the Decision.
    1. Instructions, § 81

      —when instruction singling out particular facts improper. An instruction which singles out particular facts and gives them undue prominence has a tendency to mislead and confuse the jury and is improper.
    2. Instructions, § 48

      —when instruction as to weight and effect of evidence improper. In an action by brokers to recover commissions on the sale of real estate, an instruction which states that it is not sufficient for the plaintiffs to show that they called the purchaser’s attention to the property, gave him the price and description and tried to sell it to the purchaser before he bought it, but that plaintiffs “must go further and prove by a preponderance or greater weight of the evidence that they were the direct and procuring cause of the purchase of said property” by the purchaser is objectionable, in that it singles out isolated facts, telling the jury that such facts are not enough to prove the issue, invades the province of the jury and is argumentative and misleading.

      The fourteenth instruction, in its first three paragraphs, purports to set forth all the facts constituting the basis of the plaintiff’s claim, and then adds, in a fourth paragraph, the following: “The jury are instructed that even though you may find the foregoing facts from the evidence, nevertheless,'plaintiffs cannot recover in this case unless you believe from the preponderance or greater weight of the evidence, the burden of proof being upon plaintiffs, that they were the direct and procuring cause of the purchase of said property by said Leon Handel. ’ ’
    Lee D. Mathias and Charles H. Robinson, for appellants.
    Judah, Willard, Wolf & Reichman, for appellee.

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

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

   Mr. Justice Fitch

delivered the opinion of the court.

3. Instructions, § 133 —when omission of reference to theory of cause improper. An instruction which omits all reference to a theory of the facts which, in truth, would entitle plaintiffs to recover is erroneous.

4. Instructions, § 48 —when instruction on facts improper. In an action by brokers to recover commissions on the sale of real estate, an instruction which contains a repeated inference amounting to an assertion that the facts enumerated therein are not in themselves sufficient to prove that plaintiffs were in fact the procuring cause of the sale, which was the principal issue in the case, is erroneous.

5. Trial, § 124 —when argument of counsel improper. Evidence examined and held that statements made by counsel in his argument to the jury were of such character as to arouse the passion and prejudice of the jury, the effect of which was not removed by the action of the court in finally sustaining an objection.

6. Trial, § 128 —when argument of counsel improper. It is improper for counsel in argument to the jury to state facts which are not in evidence, and especially to fortify such statements by personal asseveration as to their truth.


text:
    John F. Devine, Administrator, Appellee, v. Eli Pfaelzer, Appellant.
    Gen. No. 20,975.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 15, 1915.
    Rehearing denied November 1, 1915.
    Modified opinion filed December 22, 1915.
    Statement of the Case.
    Action by John F. Devine, administrator of the estate of Philip Fitzpatrick, deceased, plaintiff, against Eli Pfaelzer, defendant, to recover damages for the death of plaintiff’s intestate. From a judgment for plaintiff, defendant appeals.
    The evidence shows that defendant left his horse and buggy standing at the curb on Calumet avenue, near Forty-seventh street, in the city of Chicago. The horse ran away, going east on Forty-seventh street to St. Lawrence avenue, and then north. Fitzpatrick was standing in front of a building on the west side of St. Lawrence avenue near Forty-sixth street, and attempted to stop the runaway, but was thrown to the ground, and injured so seriously that he died the next morning. The evidence on behalf of defendant tended to prove that when he left the horse and buggy on Calumet avenue, he attached a heavy strap and twenty-five pound weight to the horse’s bit; that some children were playing “horse” on the sidewalk and gave a signal to start; that the horse started off, dragging the weight, then began to run and broke the strap, and that a piece of the strap was dangling from the bit when the horse was finally stopped. On the other hand, two of plaintiff’s witnesses, who saw the accident from a window of a building on St. Lawrence avenue, testified that at the time of the accident there was no strap hanging from the horse’s head except the reins which were wrapped around the whip in the buggy. An ordinance of the city of Chicago was introduced in evidence, which prescribes a penalty for leaving in any public street of the city, a horse to which any vehicle is attached, “without securely fastening such horse.” There was also evidence that St. Lawrence avenue is in “a populous section” of the city, with residence buildings on both sides of the street.
    It further appeared from the evidence that just before the accident, Fitzpatrick was standing with a man and woman on the sidewalk when the runaway approached; that no other persons were in sight upon the street in the direction in which the horse was going; that Fitzpatrick and the other man ran into the street to stop the horse; that they stood about eight feet apart, one on each side of the apparent path of the runaway, Fitzpatrick two or three feet behind the other man; that as the horse approached, the first man waved his arms, and the horse swerved and ran into Fitzpatrick and knocked him down.
    Abstract of the Decision.
    1. Negligence, § 185

      —when evidence establishes prima facie case. In an action against the owner of a horse' to recover for the death of plaintiff’s intestate caused by being struck by such horse while it was running away, evidence that the horse was running away unattended in a public street of a city together with the introduction of an ordinance of the city prohibiting the leaving in any street a horse to which a vehicle is attached without securely fastening the horse, establishes a prima facie ease of negligence on defendant’s part.
    2. Negligence, §76

      —whether risking life to save another contributory negligence. The rule that a person has the right to risk his own life in an effort to save the life of another without being chargeable with contributory negligence is limited to cases where the attending circumstances and conditions are such as to afford a reasonable basis for the belief that it is necessary to take such a risk in order to save another from personal injury or death.
    3. Negligence, § 188

      —when eviden&e sufficient to show contributory negligence. Evidence, in an action to recover for death of-plaintiff’s intestate through being knocked down by a runaway horse while trying to stop it, examined and held sufficient to support a finding that deceased was guilty of contributory negligence.
    ON MOTION TO AMEND JUDGMENT.
    4. Appeal and error, § 1806

      —when remanding order struck out. Where, on an action to recover for the death of plaintiff’s intestate, plaintiff recovers judgment which, on appeal, is reversed and remanded, the reversal being solely on the ground that the intestate was guilty of contributory negligence as a matter of, law, and thereafter plaintiff files in the Appellate Court a motion to strike out the remanding portion of the order and, in support of the motion, admits of record that he would be unable to prove on any further trial that intestate “was in the exercise of ordinary care for his own safety either before or at the time of his injuries, besides, or in addition to the facts or circumstances, which were proven at the last trial of the cause,” the remanding part of the order will be struck without regard to whether or not the other party consents thereto.

      John A. Bloomingston, for appellant.
    James C. McShane, for appellee.

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

   Mr. Justice Fitch

delivered the opinion of the court.


text:
    Charles Husche, Jr., Appellee, v. Chicago Iron & Metal Company, Appellant.
    Gen. No. 20,959.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 15, 1915.
    Statement of the Case.
    Conversion by Charles Husche, Jr., plaintiff, against Chicago Iron & Metal Company, a corporation, defendant. From a judgment by the court without a jury for plaintiff for $1,175, defendant appeals.
    The evidence shows that in February, 1911, a fire occurred at the place of business of one A. L. Dawson, a dealer in secondhand machinery, by which the greater part of the machinery5 there located was so damaged as to render it unfit for further use as such. Plaintiff contended that such machinery was sold by Dawson to the defendant, a dealer in scrap iron, having two yards, known respectively as Halsted street and Lake street yards; that at the time of the fire, he had on consignment with the said Dawson a lot of secondhand laundry machinery which had been placed in merchantable condition by Dawson; that the fire rendered necessary the removal of the machinery from Dawson’s premises; that defendant, in the course of the negotiations for the purchase from Dawson of what the defendant designated as “machinery cast scrap,” agreed to permit the said laundry machinery to be stored in its Lake street yard without reward; that in accordance with said agreement, said laundry machinery was taken to the yard of the defendant; that thereafter defendant refused to return it on demand and converted same to its own use.
    Defendant contended that plaintiff did not show that this property ever came into its possession; further, that as to said property, even though it came into its possession, it was a bailee without reward, and the plaintiff failed to show by a preponderance of the evidence that the property was lost through the gross negligence of the defendant; and, finally, that the property in question was part of the property purchased from the said Dawson, and for which it had paid.
    On behalf of the plaintiff, the testimony showed that shortly after the fire, Dawson called at defendant’s place of business for the purpose of selling the machinery which had been rendered unfit for further use as such, and that he talked with one Santowsky, president of the defendant, who afterwards called at Dawson’s premises; that Dawson showed him what he had for sale; that they discussed and arrived at terms of sale; that the sale was confirmed by letter from defendant to Dawson, a carbon copy of which was introduced in evidence and reads as follows:
    “Phones: Monroe 156. Yards: 817-819 W. Lake St.
    Monroe 4251. 732-734 W. Lake St.
    Orders by mail or phone promptly attended to.
    Chicago Iron & Metal Co. Incorporated.
    Wholesale Dealers in Scrap Iron and Metals, Second-Hand Machinery.
    209-211-213 N. Halsted St.
    Office: 213 N. Halsted St.

      Chicago, Mar. 11,1911.
    Mr. A. L. Dawson, Chicago.
    Dear Sir:
    We hereby confirm purchase of all machinery cast scrap contained in building located number 217 N. Desplaines St. at $11.00 per net ton. We enclose our check for $50.00 to apply on account.
    Very truly yours. ’ ’
    Plaintiffs evidence also shows that while the property sold was being taken away from Dawson’s place of business, the said Dawson stated to Santowsky that there was certain laundry machinery there which would have to be removed; that he would like to find some place to leave it until he could make arrangements to dispose of it; that thereupon Santowsky stated that he might store same in defendant’s yard, without any charge; that thereupon defendant hauled this laundry machinery to its Lake street yard, for which hauling, a charge was made and paid by said Dawson; that in endeavoring to dispose of the property, he (Dawson) had occasion to call at defendant’s yard five or six weeks afterwards, and saw the' laundry machinery there; that thereafter he occasionally saw the property in the defendant’s yard; that on a later occasion, within a year from the time it was moved there, he again visited the yard of the defendant but could not find the property; that thereafter he endeavored to see Santowsky but was unable, to do so, but succeeded in seeing the bookkeeper, who stated he knew nothing about it; that thereupon letters were written on behalf of the plaintiff, asking information with reference to the property and requesting its return; that no answer was made or any explanation given as to its whereabouts or disposition; that the reasonable fair cash market value of said property was about $1,175.
    On behalf of the defendant, Santowsky denied having had any conversation with Dawson relative to the storage by defendant of the machinery in question. There was further testimony that all the machinery that was delivered either at its Lake street or at its Halsted street yard was part bf the property purchased under the above letter, and had been paid for; that said laun-' dry machinery, even though it was intact and usable, was considered as machinery cast scrap; furthermore, that no money was paid defendant for hauling the laundry machinery to its Lake street yard. While Santowsky denied having had a conversation with Dawson relative to the storage of this laundry machinery, he admitted that in a conversation with the said Dawson at the time of the negotiations that led up to the agreement embodied in the letter aforesaid, he (Dawson) stated: “All the machines that is there that have any good, we will take away, the rest we can pick out.” There was no evidence on the part of the defendant as to the value of the property in question.
    Abstract of the Decision.
    Trover and conversion, § 39

      —when evidence sufficient to support verdict. Evidence in action for conversion of laundry machinery examined and held sufficient to support verdict.
    Bernard Margolis, for appellant.
    George E. Dawson, for appellee.

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

   Mr. Justice Pam

delivered the opinion of the court.


author: Mr. Presiding Justice Pam

text:
    Chalmers Motor Company of Illinois, Appellee, v. Edgar F. Seney, Appellant.
    Gen. No. 20,979.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed with statutory damages.
    Opinion filed October 15, 1915.

      Statement of the Case.
    Action by the Chalmers Motor Company of Illinois, a corporation, plaintiff, against Edgar F. Seney, defendant, to recover the balance due on a promissory note for $1,376, dated May 17,1913, signed by defendant and payable to the plaintiff, due six months after date. To the amended statement of claim an affidavit of merits was filed on May 26,1914. This was stricken from the files and leave granted the defendant to file an amended affidavit of merits, which was done June 4th. On June 10th the court, on motion of the plaintiff, struck the amended affidavit of merits from the files and defendant was defaulted for want of a sufficient affidavit of merits, whereupon the court assessed plaintiff’s damages in the sum of $1,205.22, for which the court entered judgment; to reverse which defendant has prosecuted this appeal.
    Said amended statement of claim set forth that on April 23, 1913, plaintiff and defendant entered into a written contract for the sale and purchase of an automobile and certain accessories, said contract being in the form of a letter and acceptance and was as follows:
    “April 23,1913.
    Mr. Edgar F. Seney, 111 W. Monroe St., Chicago, Ill.
    Dear Sir:
    We propose to deliver to you F. O. B. cars Detroit:
    One 1913 Chalmers Six Cylinder 4 passenger Torpedo type, gray touring car, duplicate of one shown you today, for the net sum of. $2400.00
    Plus freight to Chicago.................... 20.00
    Nobby treads on rear at extra cost of........ 26.30
    One extra Nobby tread tire and tub........... 52.50
    One tire cover for tire...................... 3.50
    Monogram as selected to be put on gratis.
    Total...............................$2502.30

      We accept your 1912 ‘36’ car complete with, tire, tubes, tools and all accessories, except clock, in good operative condition, as at present equipped, in part payment at $1,126.30. The balance to be paid in six monthly installments of equal amounts, to be dated from date of delivery of car. Said balance to be evidenced by notes bearing interest at six per cent. Delivery to be made on or about May 1st.
    We to have winter top.
    Respectfully submitted,
    Chalmers Motor Co. of Illinois. .
    Charles E. Gregory, Manager.
    This proposal accepted this 23rd day of April, 1913.
    Edgar F. Seney.”
    Plaintiff further stated that in May, 1913, the automobile described in said written contract was delivered to the defendant, and that during the same month defendant signed a promissory note for the balance due plaintiff in accordance with the terms of the contract; that subsequently, and prior to, December 15, 1913, plaintiff performed work for and furnished materials to the defendant for use on said automobile, to the value of $296; that prior to December 15, 1913, defendant complained to plaintiff concerning the condition of said automobile and the charge made by plaintiff for the work done and material furnished as aforesaid; that on December 15, 1913, defendant entered into an agreement in writing concerning payment of the note and the charges for said work and material. This agreement was as follows:
    “Dee. 15, 1913.
    Mr. Edgar F. Seney, 111 W. Monroe St., Chicago, Ill.
    Dear Sir:
    Responding to your proposal of even date, offering a plan of settlement of your open account and promissory note, it will be agreeable to us to extend payment of your note and account as follows:
    You are to pay us $500.00 this month to be applied in settlement of your open account in amount $296.00, less credit notation made by the writer on statement which you have in your possession, the balance of said $500.00 to be endorsed on promissory note, in amount $1,376.00, dated May 17, 1913. You are also to pay $500.00 on promissory note in January, 1914, and the balance due on said promissory note is to be paid in February, 1914.
    Respectfully submitted,
    Chalmers Motor Co. op III.,
    Chas. E. Gregory,
    General Manager.
    This proposal accepted this December, 1913. .............day of
    Edgar F. Seney.”
    The statement continued, that the credit notation referred to in said agreement was a credit of $24.11, leaving a balance due on the open account referred to in the terms of the agreement of $271.89; that on January 10, 1914, defendant paid plaintiff on said open account $271.89, and $228.11 on the amount due on said note; that no other payments were made by defendant, and that there was then due plaintiff the sum of $1,205.22 on said note.
    The amended affidavit of merits filed by defendant did not deny the making of either the original contract under date of April 23rd or the agreement of December 15th, but alleged that plaintiff, under the original agreement, warranted the car to be first class in every respect, but that said car did not come up to said alleged warranty but was of inferior grade and did not run as warranted by plaintiff; that thereupon defendant returned the automobile to plaintiff, who agreed to repair same and put it in first-class condition; that on or about the 15th of December, when plaintiff presented its bill for repairs to said machine, defendant objected, and thereupon it was agreed by and between the parties that if defendant would pay $500, $271.89 to be applied for labor and material, and $228.11 on account of note sued on, plaintiff would guaranty and warrant that defendant would have no further trouble with said car and that same would be in good and perfect condition; that thereupon defendant entered into the agreement of December 15th; that plaintiff, however, did not fulfil said warranty, and that therefore said automobile was of far inferior grade, and that defendant thereby was entitled to a recoupment from plaintiff for the amount still due on said note.
    Abstract of the Decision.
    1. Sales, § 244

      —when incorporation of warranty in written contract essential. A warranty must be incorporated in a written contract of sale in order to be a part thereof.
    2. Contracts, § 389

      —when question whether instrument in suit a contract one of law. In an action on a contract claimed to be contained in correspondence between the parties, it is for the court to determine, in passing upon a motion to strike defendant’s amended affidavit of merits setting up a parol warranty, whether or not the letter alleged to contain the contract and the acceptance thereon constituted a written contract and, if so, whether it fully expressed the agreement between the parties.
    3. Contracts, § 51

      —when instrument constitutes contract[. In an action on a contract claimed to be contained in a letter and the acceptance thereon, the letter and acceptance held to show a complete legal obligation without' any uncertainty or ambiguity as to the obligation or extent of the engagement, and to contain the whole agreement of the parties.
    Adams, Crews, Bobb & Wescott, for appellant.
    Garnett & Garnett, for appellee; Cyrus L. Garnett, of counsel.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.

4. Sales, § 244 —when, affidavit setting up warranty properly stricken. In an action on a written contract which contains no warranty, a motion to strike an amended affidavit of merits, the only issue presented by which is as to whether or not plaintiff had entered into a warranty, is properly allowed.

• 5. Damages, § 227 —when motion for assessment by jury made too late. A motion, in an action on a contract, to have the damages assessed by the jury is too late when not made until after the court had assessed plaintiff’s damages and entered judgment.

6. Costs, § 67 —when damages allowed for vexatious appeal. Evidence examined and held to show that an appeal was prosecuted merely for delay, and ten per cent, damages allowed.


author: Per Curiam.

text:
    Carl Christensen, Appellee, v. R. W. Bartelmann Company, Appellant.
    Gen. No. 21,943.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 25

      —when Appellate Court without jurisdiction of appeal from Circuit Court in action under Compensation Act. The Appellate Court has not jurisdiction of an appeal from a judgment of the Circuit Court rendered in an action under the Workmen’s Compensation Act of 1911 (J. & A. ¶ 5449 et seq.). Following Lavin v. Wells Bros. Co., No. 20,799, 195 Ill. App. ??.

      Appeal from the Circuit Court of Cook county; the Hon. C. H. Bowles, Judge, presiding.
    Heard in this court at the October term, 1914.
    Appeal dismissed.
    Opinion filed October 25, 1915.
    Statement of the Case.
    Motion to dismiss an appeal by defendant from the judgment of the Circuit Court in a proceeding by Carl Christensen, plaintiff, against R. W. Bartelmann Company, defendant, in a proceeding under the Illinois Workmen’s Compensation Act of 1911 (J. & A. ¶ 5449 et seq.), for lack of jurisdiction.
    J. A. Bloomingston, for appellant.
    J. J. Sonsteby, for appellee.

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

   Per Curiam.


author: Mr. Presiding Justice McSurely

text:
    Frank Nelson, Defendant in Error, v. Albert Miller and E. Percy Miller, trading as Albert Miller & Company, Plaintiffs in Error.
    Gen. No. 20,062.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 1, 1915.
    Statement of the Case.
    Action by Frank Nelson, plaintiff, against Albert Miller and E. Percy Miller, copartners, trading as Albert Miller & Company, defendants, to recover the purchase price of three cars of hay sold by plaintiff to defendants. The defenses set up were that the quality was not as represented and unreasonable delay in making the shipment. Defendants also claimed as a set-off damages by reason of delay in the shipment.
    Plaintiff introduced evidence, which was uncontradicted, showing that a representative of defendants, who were engaged in business in Chicago, spent “a couple of hours” on top of the hay examining it at plaintiff’s ranch near Potomac, Montana, examined it all and then told plaintiff he would purchase it. Plaintiff also showed that he was under no obligation as to delivery beyond loading the hay at Potomac. Defendants placed no witnesses on the stand and asked no questions of any of them.
    The jury, under instructions of the court, returned a verdict for plaintiff in the amount of $259.77, and against defendants’ set-off. To reverse the judgment entered thereon, defendants prosecute this writ of error.

      Abstract of the Decision.
    1. Sales, § 279

      —when misrepresentation as to quality of goods not a defense. Where the purchaser of goods inspected the goods and thereafter agreed to purchase them, he cannot set up a failure of quality as a defense to an action for the purchase price.
    2. Sales, § 199

      —when delay in delivery not a defense. Where the evidence shows that the seller of goods was under no obligation as to delivery beyond loading the goods at the place, delay in hauling the goods to the purchaser after they were loaded is not a defense to an action for the purchase price.
    3. Trial, § 68

      —what insufficient offer of proof. The engaging by counsel in a discussion with the court without placing any witnesses on the stand or questioning any does not constitute an offer of evidence.
    4. Trial, § 68

      —what not a refusal to admit evidence. Remarks of the court in a discussion with counsel do not constitute a refusal to admit evidence where no witnesses are questioned and none placed on the stand.
    5. Appeal and error, § 1420

      —when error without prejudice. On appeal, in an action to recover the purchase price of cars of hay, a difference in the weights of the bales in the cars is not a ground for reversal where the trial court accepted the weights claimed by defendants and instructed the jury to return a verdict on that basis.
    W. Knox Haynes and Michael Feinberg, for plaintiffs in error.
    Baker & Holder, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    John F. Devine, Administrator, Plaintiff in Error, v. Chicago & Western Indiana Railroad Company and Belt Railway Company of Chicago, Defendants in Error.
    Gen. No. 20,375.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed November 1, 1915.

      Statement of the Case.
    Trespass on the case by John F. Devine, administrator of the estate of Vladislaw Paszkowsky, deceased, plaintiff, against Chicago & Western Indiana Railroad Company and the Belt Railway Company of Chicago, defendants, alleging that defendants, by their servants, with force and arms, assaulted plaintiff’s intestate, causing his death. The jury returned a verdict finding defendants not guilty, on which verdict the court entered judgment. To reverse this judgment, plaintiff prosecutes this writ of error.
    The defendants entered a special plea son assault demesne and the plaintiff a replication de injuria absque tali causa.

    The testimony tended to show that in the evening of February 14, 1905, Wirsing, a special policeman, employed about their tracks by defendants, and two other special policemen saw two men stealing coal from cars on defendants ’ tracks. The officers followed them and Wirsing overtook the two men, who were carrying the stolen coal in sacks. One of the men was plaintiff, who is described as the “big man.” While there is some slight conflict in the testimony, Wirsing’s story in the main is uncontradicted. He says that he showed his star to these two men and demanded the return of the coal but they dropped their sacks and “tackled” him. He says that he had offered no violence to them up to that time. Wirsing drew a revolver and fired in the air, as he says, to attract the attention of the other two officers. His story of the affair from that point, in substance, is as follows:
    ‘ ‘ With that the big man broke away from me and ran into what I afterwards found to be his yard. I fought the little man into his yard, where we were met by the big man. The big man had an ax and threw it at me, striking the fence. In the meantime the little man backed away from me and disappeared and my time was taken up with the larger man of the two. He ran into the shed and got a shovel, and I went into the shed after him and tried to get the shovel away from him, at the same time telling him to ‘drop that.’ I fired another shot into the fence, thinking thereby to make him drop it. About a few minutes after that we kept on struggling and he attacked me with the shovel and he struck me in the right hand. I had the revolver in my hand pointed directly at him when he struck me on the hand. It exploded and the shot struck him on the knee. After that he rallied and drove me into the alley.”
    Abstract of the Decision.
    L Action on the case, § 1

      —when evidence sufficient to support verdict. Evidence in action of trespass on the case to recover for death of plaintiff’s decedent by assault by defendants’ servants, examined and held to support verdict for defendants.
    On cross-examination the witness said that plaintiff struck him several times with the shovel, and also “he struck the gun. When the gun went off I was not trying to fire the gun at all. ’ ’ Other witnesses gave testimony tending to corroborate Wirsing, and it seems to have been proven beyond serious doubt that the firing of the revolver was simultaneous with the blow on the hand in which it was held from the shovel wielded by plaintiff. From the facts in evidence we would have little trouble in concluding that the actual firing of the shot was not the intentional act of defendants’ servant, but was accidental as regards them.
    Arthur C. Bachrach and Brundage, Landon & Holt, for plaintiff in error.
    C. G. Austin and Beverly W. Howe, for defendants in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Appeal and error, § 1526 —when ruling of court harmless error. Ruling of court upon instructions examined and held, harmless error. Baker, J., dissenting.