text:
    Marion J. Lavery, Appellee, v. Jennie C. Hutchinson, Appellant.
    Gen. No. 14,312.
    1. Dower—when gross sum may he awarded in lieu of. Held, doubtful whether a gross sum may be allowed in lieu of dower without the consent of all parties in interest.
    2. Dower—how right to assignment of, will he enforced. The right to have dower assigned can only be enforced in a court of equity in a proceeding to which all parties in interest are parties.
    Bill for injunction. Appeal from the Circuit Court of Cook County; the Hon. Julian W. Mack, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed February 14, 1908.
    Rehearing denied February 29, 1908.
    Fred. A. Bangs, for appellant.
    Paddock, Furness, Clarkson & Butter, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by one of the defendants from an interlocutory order for a temporary injunction entered upon a bill in which appellee here was complainant.

The bill avers that September 14, 1888, Charles G. Hutchinson conveyed by warranty deed a certain part of a certain lot in Chicago to which complainant has since acquired title in fee by warranty deed from one of Hutchinson’s remote grantees; that in a suit for separate maintenance brought by appellant against said Hutchinson, a decree was entered finding that said Hutchinson and appellant were married in April, 1875, and thereafter lived together as husband and wife; that in January, 1907, a certain railway company began proceedings in the Superior Court of Cook county, under the Eminent Domain Act to ascertain the compensation to be paid for said premises, to which proceedings complainant was made a defendant; that February 27, 1907, said Charles G. Hutchinson died; that September 12, 1907, appellant filed in said proceeding her cross petition, alleging that she was the wife of said Charles Gr. Hutchinson; that he had died and claiming dower in said premises; that before said cross petition was filed complainant had agreed with said railway company that $55,000 was just compensation for said premises; that after the filing of said cross petition complainant agreed with said company that said sum of $55,000 should also stand as just compensation for the dower estate of appellant; that said sum as just compensation was also agreed to by appellant; that it was agreed between said company and complainant that from said sum of $55,000 said company should retain $12,500, and that the same should be put in escrow with the Uorthern Trust Company, with which to provide for the satisfaction of the dower of appellant; that pursuant to said agreement said Trust Company received said sum from said railway company and still holds the same for the purpose of satisfying said estate of dower when the amount thereof shall be legally ascertained and fixed; that an order was entered in said condemnation proceeding, adjudging that appellant was entitled to dower in said real estate, but reserving the question of the value of said dower estate for future consideration.

The court afterwards fixed November 2, 1907, as the day for fixing the value of said dower estate, and November 1 this bill was filed and the order for an injunction entered. The bill also avers that said Charles G. Hutchinson died seized of real estate in Cook county of the value of $130,000, and personal estate of the value of $190,000. The executor of the will of said Charles G. Hutchinson, his heirs, and the legatees and devisees under his will are also made defendants to the bill.

The prayer of the bill is that the value of the dower estate of appellant in said premises may be determined, that said premises and the just compensation standing in lieu thereof may be relieved from any and all charge of said dower, and the amount thereof made a charge upon the lands of which said Hutchinson died seized, or on his personal estate, or on both his- lands and personal estate; that said trust company be ordered to pay to complainant said sum of $12,500; that appellant he enjoined from further prosecuting her cross petition and from further prosecuting her claim for dower otherwise than in said cause.

The order appealed from restrains appellant from further prosecuting her said cross petition in the Superior Court, and from prosecuting her claim except in said cause, and from assigning or conveying her said estate or claim for dower.

Our Dower Act gives to appellant here the right to file a petition in chancery to have her dower assigned against the heirs or devisees of Charles G. Hutchinson and all other persons having any interest in any premises in which she claims dower. It also provides that the heirs “or any other person interested in lands, tenements or hereditaments may also petition the court to have dower assigned to the person entitled thereto”; and it further provides that dower “need not be assigned in each tract separately, hut may be allotted in a body out of one or more tracts of land, when the same can be done without prejudice to the interests of any person interested in the premises.”

The court in the condemnation suit had only the authority conferred by the statute. It had before it only appellant and appellee. The personal representatives and heirs of Charles G. Hutchinson are interested as well as appellant and appellee in the question whether appellant shall be awarded a gross sum as and for her dower in the lands taken by the railway company, for they are bound by the covenants in his deed. In the condemnation suit the court must either award appellant a gross sum, or order that a certain sum be paid her each year as an allowance in lieu of dower, and cause the same to he secured to appellant, either out of the money deposited with the Trust Company or in some other manner. It is, to say the least, doubtful whether a gross sum may be awarded without the consent of all parties in interest. As was said in Bonner v. Peterson, 44 Ill., 255-259, “We can imagine nothing more uncertain than the present value of a widow’s life estate in real estate or in a fund.”

If in the condemnation suit an order shall be made that a gross sum be paid appellant as the value of her dower, such order will not be binding upon the heirs of Charles G. Hutchinson, for they are not parties to that proceeding. If a certain sum is ordered to be paid to her yearly, appellee must sue on their covenants of warranty for each sum so paid.

Upon the facts stated in the bill complainant has, we think, an adequate right, if not inconsistent with the rights of appellant as widow of Charles G. Hutchinson, to have her dower assigned in lands of which her husband died seized. Longshore v. Longshore, 200 Ill., 470; Richmond v. Harris, 102 Ky., 389; Wood v. Keyes, 6 Paige, 478. This right can be enforced only in a court of equity in a proper proceeding to which all the parties in interest are parties. The injunction in effect only restrains appellant from proceeding to enforce her right of dower elsewhere than in a court of equity. If it be conceded that complainant’s right could not have been prejudiced by giving notice of the application, still, in view of the nature and effect of the injunction that was ordered and issued, we do not think that the order appealed from should be reversed for that reason alone.

The order will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Freeman

license: Public Domain

text:
    Chicago Federation of Musicians Local No. 10 v. American Musicians Union of North America et al.
    Gen. No. 13,621.

      Injunction—what violation of, restraining interference with labor organization. An injunction which restrains one labor organization from interfering with the employes of another, is violated by an act which has for its purpose and effect such interference; and the fact that the act in question may have been made under the guise of enforcing the rules and regulations of a voluntary association is not material.
    Contempt proceeding. Appeal from the Circuit Court of Coolc County; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed February 14, 1908.
    Statement by the Court. This is an appeal from a decree of the Circuit Court adjudging appellant, its president and secretary, guilty of contempt. Each of these parties is charged with violation of an injunction which restrained them from interfering with members of the appellee organization, threatening their employers or would-be employers with the hostilty of labor unions and from obstructing them in obtaining or retaining employment as musicians. The order granting said injunction has been affirmed (Docket Number 13,352), and the opinion filed in that cause contains a statement of material facts upon which the decree therein is based.
    Some months after the entry of the injunction order appellees filed a petition in the Circuit Court in which, among other things, it is alleged that appellant, its president and secretary, have hindered, obstructed and interfered with petitioners in the performance of their duties as musicians, that Joseph F. Winkler, president of appellant, and B. C. Dillon, secretary, with others have attempted by threats, intimidation and persuasion to compel employers of petitioners and their associates to refuse to retain petitioners and their assoeiates or any of them in their employ as musicians and are now preventing and attempting in like manner to prevent petitioners and other members of appellees’ organization from obtaining employment as musicians; that to this end said parties are combining and conspiring to restrain and prevent persons employing or desiring to employ petitioners or their fellow associates from so doing, and are so conducting themselves as to intimidate and frighten employers of petitioners and their associates.
    The petition further sets forth that on August 5, 1906, an orchestra composed of members of the American Musicians Union, appellees herein, was employed at the Alhambra Theatre in Chicago assisting the actors therein to present a play called “The Cow Boy Girl”; that one H. E. .Sigman, a member of the appellant Union, was employed at said theatre at that time as musical director of said play, whose duty it was under his contract to travel with and assist said actors in presenting said play; that said Winkler upon August 5th came into said theatre where said orchestra and company were rehearsing and ordered Sigman to leave the theatre, representing that said theatre was employing nonunion musicians who were members of the American Musicians Union; that Winkler was told by Sigman that the com-, pany could not proceed without him and that he, Sigman, must remain. It is alleged that said Winkler thereupon preferred charges against Sigman with the appellant Union and, upon August 7th, the appellant organization by its Secretary Dillon caused notice to be given Sigman to appear before its directors to answer said charges; that Sigman was fined for playing at said theatre and thereby induced to leave his employment at said theatre; all of which it is alleged was done for the wrongful purpose of causing trouble and inconvenience to the managers of the theatre who were employers of members of the petitioners, the American Musicians Union, and to the members of said Union and cause such members to be discharged by the managers of the theatre.
    Affidavits were filed in support of the averments of the petition and upon hearing the appellant, Chicago Federation of Musicians, the said Winlder, its president, and the said Dillon, its secretary, were each adjudged in contempt of court and respectively fined.
    The decree finds that with knowledge of the said injunction then in force, said defendants, the Chicago Federation of Musicians, Joseph F. Winkler, its president, and B. C. Dillon, its secretary, under pretense of enforcing a by-law of the appellant Chicago Federation of Musicians, -which provides that no member shall render services at any function, public or private, except parades of the State militia, unless all bands or orchestras performing at said function are composed of members in good standing of the Chicago Federation of Musicians, hindered and prevented said Sigman from continuing his employment at said theatre for the express purpose of interfering with the employment of members of the petitioners’ organization and in violation of the injunction. It is further found that the acts of appellant were wilfully done with full knowledge of the injunction for the purpose of interfering with the employment of the petitioners, and for the unwarranted purpose of preventing them from freely engaging in their profession as musicians at said theatre. The decree adjudges appellant guilty of contempt for violation of the injunction and imposes a fine of three hundred dollars.
    The court finds as to said Winkler that he aided and abetted, by the coercive means of assessing a fine, in hindering and preventing Sigman from continuing in his said employment and for the express purpose of interfering with the employment of members of complainant organization who composed said orchestra at said theatre, in violation of said injunction. He is accordingly adjudged guilty of contempt and fined the sum of two hundred dollars.
    A like finding is made as to said B. C. Dillon, who is fined fifty dollars.
    Appellant, Winkler, its president, and Dillon, its secretary, prosecute their separate appeals. The facts and the arguments of counsel are substantially alike in each case and what is said in one is in substance applicable to the others.
    Whitfield & Whitfield, for appellant.
    A. C. Allen, for appellees.
   Mr. Justice Freeman

delivered the opinion of the court.

It is urged in behalf of appellant, the Chicago Federation of Musicians, that its act in fining Sigman was lawful, and was done for the purpose of benefiting its membership, not for the wanton purpose of injuring appellees or their employers, and that tribunals of voluntary organizations have power to discipline their members. The evidence, however, does not sustain the contention that the fine imposed upon Sigman in view of the manner in which it was done was not for the wanton purpose of injuring appellees and their employers, in violation of the injunction. If such was its purpose, then it is not material that appellant may have power to discipline its members, nor that it may have had power to impose upon Sigman the fine in question, at a proper time and in a proper manner. There is evidence not disputed tending to show acts on the part of appellant’s officers and agents which are only explainable on the theory of an ulterior and more far reaching purpose than merely to benefit its own members. It appears that Sigman was employed as musical director for the company which was giving the play called “The Cow Boy Girl” at the Alhambra Theatre, that he was the only person who then had “sufficient knowledge of the play to rehearse the company and act as musical director,” and that interference with him at that time, preventing him from doing the work for which he was employed, would make it impossible for the company to proceed with its performance, and would cause considerable loss. It would cause Sigman to lose his position, but its effect upon his fortunes is not now material. On the 5th of August, while the play in question was being presented, appellant’s president Winkler came into the theatre while the company was engaged in rehearsing and ordered Sigman to leave. It was explained to him by Sigman, who was a member of the American Federation of Musicians with which appellant is connected, that for Sigman to leave would stop the performance. Winkler said to Sigman, “We can’t allow you to play here. This is a non-union house. This house is on the unfair list.” Sigman replied, referring1 to the orchestra employed at the Alhambra Theatre, who are members of the appellee American Musicians Union, “Why, these musicians are union men”; to which Winkler replied, “No they are not,” and then told Sigman, “These people have an injunction to play here.” When told that the play could not go on unless Sigman continued, Winkler replied, “That don’t make any difference, we won’t allow you to play here.” The manager of the theatre states that Winkler said to him, “This man Sigman cannot, play or lead, or direct the music in this house with these other musicians; they don’t belong to the American Federation of Musicians.” The manager said, “They are union men, are they not?” Winkler said, “We don’t recognize them and this man Sigman can’t play here if they play and this house is on the unfair list and we won’t allow him to play here. He knows he can’t play here with these fellows.” Winkler was then told by the manager that without Sigman the presentation of the play which was booked for that afternoon could not go on. Sigman apparently did go on with the play on that occasion, but on the 10th of August following he came to the theatre before the matinee of that day and told the members of the orchestra who were members of the appellee organization that he could not play with them any more, that “They won’t let me. They have fined me twenty dollars and the manager has paid my fine.” At the time Winkler interfered at the theatre there was a delay in the rehearsal of twenty or thirty minutes and the attention of all was directed to Winkler’s presence and interference. This evidence is not denied. It tends to show that Winkler knew of an injunction in favor of appellees ; that his object as an officer and agent of appellant was to compel the operators of the theatre to discharge the members of the orchestra belonging to the American Musicians Union; that to effect this object he endeavored to prevent the play from proceeding, knowing that without Sigman the performance announced for that day could not go on, and that to stop the performance announced would be injurious to the theatre and the company of actors engaged there; that the reason given for his conduct was that the theatre- was on the unfair list because it employed in its orchestra members of the appellee’s organization; that by means of the fine imposed on Sigman, appellant did compel Sigman to abandon his employment; and that the fine was paid not by Sigman but by the manager.

It appears further that subsequently one of the managers and owners of the theatre was called on by several parties, one of whom was president of the Chicago Federation of Labor, another was president of the American Federation of Musicians, and the others were Winkler, president, and Dillon, secretary of the Chicago Federation of Musicians, appellant herein. After a conference which it is not now necessary further to allude to, the visitors left with the threat to put the theatre “on the unfair list” because it employed members of the appellee organization. .

The evidence, we think, establishes beyond controversy that appellant, as well as its officers who have also appealed, were violating the injunction then in force. It is said this is a controversy between opposing union labor organizations and not between a labor union and employees. The principles applicable are the same in either case. ¡Nor does the injunction deprive appellant organization, as its counsel contend that it does, of the power to discipline its own members. The grounds upon which the decree fining appellant for contempt rest, in no way touch upon the power to discipline Sigman or any other member of this or any other labor union for violation of any valid rules of such organizations. The interference and intimidation disclosed by the uncontradicted evidence was and is unlawful and a violation of the injunction. As was said in the opinion of this court upon the original injunction: “The real purpose of such acts was to drive out of business musicians not connected with the union labor organization with which the appellant Federation is affiliated; in other words, those whom it chooses to regard as non-union men.” Acts of this character by appellant cannot be justified under cover of a pretense that they are done merely to discipline its own members, when as here disclosed beyond legitimate controversy, the real purpose of appellant "was to drive appellees out of employment and to this end to injure their employers. In Boutwell v. Marr, 42 Atlantic Rep., 607 (43 L. R. A. 803-805), it rvas said by the Vermont court, “It is clear that the law cannot concede to organizations of this character the powers and immunities claimed for their associations by these defendants and retain its own power to protect the individual citizen in the free enjoyment of his capital or labor.” In the same case it is said: “Without undertaking to designate with precision the lawful limit of organized effort, it may safely be affirmed that when the will of the majority of an organized body, in matters involving the rights of outside parties, is enforced upon its members by means of fines and penalties, the situation is essentially the same as when unity of action is secured amongst unorganized individuals by threats and intimidations.” A fine imposed upon a member of a voluntary organization for purposes of discipline may be perfectly proper and lawhul; but a fine imposed upon such member for the purpose of coercing him into injuring another in person or property or compelling him to do a criminal act would be neither. It would be as said in Toledo A. A. & N. M. Ry. Co. v. Penn. Co. et al., 54 Fed. Rep., 730, “a criminal conspiracy against the laws of their country.” The fact that such fine imposed upon its own members might be entirely lawful and just, when so imposed for a lawful purpose, cannot justify its infliction for a wrongful purpose in violation of a restraining order of court.

Finding no error in the record, the decree of the Circuit Court must be affirmed.

Affirmed.


author: Mr. Justice Freeman :

text:
    B. C. Dillon v. American Musicians Union of North America et al.
    Gen. No. 13,622.
    This case is controlled by the decision in Chicago Federation of Musicians v. American Federation of Musicians, ante, p 65.
    Contempt proceeding. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Wbtoes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed February 14, 1908.
    Whitfield & Whitfield, for appellant.
    A. C. Allen, for appellees.
   Mr. Justice Freeman :

The decree in this case is affirmed for reason stated in our opinion filed in Chicago Federation of Musicians v. American Musicians Union of North America, ante, p. 65.

Affirmed.


author: Mr. Justice Freeman:

text:
    Joseph F. Winkler v. American Musicians Union of North America.
    Gen. No. 13,623.
    This case is controlled by the decision in Chicago Federation of Musicians v. American Federation of Musicians, ante, p. 65.
    Contempt proceeding. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed February 14, 1908.
    Wi-iitfield & Wi-iitfield, for appellant.
    A. O. Allen, for appellees.
   Mr. Justice Freeman:

The decree in this case is affirmed for reasons stated in the opinion of this court filed in Chicago Federation of Musicians v. American Federation of Musicians, ante, p. 65.

Affirmed.


text:
    Will J. Block Amusement Company et al. v. Paul T. Case.
    Gen. No. 13,628.
    Appeals and errors—what essential to jurisdiction of appeal taken from justice of peace. The transcript of the justice is essential to the jurisdiction of the Circuit Court to hear and determine an appeal taken from such justice.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Reversed and remanded.
    Opinion filed February 14, 1908.
    Statement "by the Court. Appellee recovered a judgment for $56.50 in the Circuit Court on an appeal from the judgment of a justice of the peace. When such appeal ivas taken an appeal bond in the usual form was filed in the office of the Clerk of the Circuit Court which recites in substance that appellants are held and firmly bound to appellee in the penal sum of $100, the condition being that whereas appellee recovered a judgment before the justice against appellants for the sum of $56.00 and appellants have appealed to the Circuit Court from such judgment, if appellants shall prosecute the appeal with effect or otherwise pay the judgment the obligation shall be void. Thereupon a writ of supersedeas issued to the justice, which was returned by the sheriff duly served on the justice. Appellee thereafter entered his appearance, and subsequently the cause went to trial in the Circuit Court, and judgment was entered against appellants, from which the latter prosecute this appeal.
    Harry J. Lurie, for appellants; Herman Frank, of counsel.

      Theodore G. Case, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

As ground for reversal it is urged that the court had no jurisdiction to proceed with the trial in the absence of a transcript of the proceedings before the justice. The objection is well taken. No transcript appears in the record nor is it claimed that any was ever filed. The statute provides that the justice shall return all the papers “and a transcript of his docket in the case to the clerk of the court to which the appeal is taken, with a certificate under his hand that said transcript and papers contain a full and perfect statement of all the proceedings before him.” R. S., chapter 79, section 115. Without such a transcript the Circuit Court had no jurisdiction of the subject-matter and, even though it had jurisdiction of the parties, was without authority to enter judgment until there was a transcript on file. Such has been the law in this State for many years (Reed v. Driscoll, 84 Ill., 96—98) and the statute still requires the justice on appeal from his judgment to return such transcript to the Clerk of the Circuit Court. “Proceedings in the Circuit Court are based on the transcript and it has uniformly been held that without a transcript of the proceedings before the justice the Circuit Court has no jurisdiction of the subject-matter.” Demilly v. Grosrenaud, 201 Ill., 272—274. That the Circuit Court was without jurisdiction of the subject-matter “was an objection that could not be waived.” Idem. It was therefore unnecessary for appellants in that case to raise the objection in said Circuit Court. In Jarrett v. Phillips, 90 Ill., 237, there was an objection that the transcript “was not filed ten days before the commencement of the term of court to which the appeal was taken,” and it was held that the failure to file the transcript in the time required by the statute was not essential to the jurisdiction and could be waived, the transcript apparently having been on file when the parties voluntarily submitted to trial. Otherwise it is said the court would have had no jurisdiction under the decision in Hayward v. Ramsey, 74 III., 372. In Hanchett v. Williams, 24 Ill. App., 56-58, cited by appellee, the objection was “to the insufficiency of the transcript,” not that there was no transcript as in the case at bar. There is a concluding sentence in that opinion to the effect that where the parties appear and try the cause on the merits without objection “the court will have jurisdiction without a transcript.” This is to be read in the light of the facts in that case. Otherwise it would be mere dictum and erroneous. We are unable to concur with what is said in Schmitt v. Hines Lumber Co., 124 Ill. App., 319—322, in view of what is said in Demilly v. Grosrenaud, supra.

The judgment of the Circuit Court must be reversed and the cause remanded.

Reversed and remanded.


text:
    James H. Eckels et al., Receivers, v. Oluf Edison.
    Gen. No. 13,662.
    1. Pleading—what waives question of misjoinder. Held, that the admissions with respect to ownership and operation set forth in the opinion, made in open court, operated to waive all questions of misjoinder, consisting in the joinder of a corporation and its receivers in a declaration charging negligence resulting from alleged joint ownership and operation.
    2. Verdict—when not disturbed as against the evidence. A verdict will not he set aside on review as against the weight of the evidence where there is direct and irreconcilable conflict in the testimony and the Appellate Court cannot after a consideration say that the jury were not warranted in rendering the verdict which they did.
    3. Verdict—when not excessive. A verdict in an action for personal injuries for $10,000 is not excessive where it appears that as the result of the accident in question the plaintiff lost his left leg above the knee, was required to submit to two surgical operations, and was at the time of such accident of the age of about forty-nine years.

      Action, in case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed February 14, 1908.
    John A. Rose and Albert II. Cross, for appellants; W. W. Gurley, of counsel.
    David K. Tone and H. M. Ashton, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an appeal from a judgment rendered against the defendants in the Superior Court of Cook county in an action brought by appellee to recover for personal injuries. The accident occurred November 5, 1901, on Milwaukee avenue, Chicago, at a point near its intersection with Paulina street, where a Milwaukee avenue train by which the injury was inflicted had stopped to receive passengers. The declaration consists of three counts and the defendants mentioned therein are the Chicago West Division Railway Company, the West Chicago Street Railroad Company, the alleged receivers of the West Chicago Street Railroad Company and receivers also of the Union Traction Company. It appears therefore, as stated by appellants’ attorneys, that the suit is brought against two corporations and two sets of receivers. A plea of general issue was filed on the part of the West Chicago Street Railroad Company, and by stipulation it was ordered that said plea stand as the plea of all the defendants.

Appellants’ first contention is that there was a misjoinder of parties defendant, fatal on motion in arrest, and that the court erred in overruling the motions in arrest of judgment interposed by the West Chicago Street Railroad Company as a corporation, by the receivers of the same company and by all the defendants. It is apparently conceded that the plea of general issue admits the capacity in which the defendants are sued and also admits the allegations in the declaration -as to ownership and possession of the railway train causing the accident. McNulta v. Lockridge, 137 Ill., 270; Chicago Union Traction Company v. John Jerka, 227 Ill., 95. The various counts of the declaration aver that “all of the defendants to this suit were possessed of and using and operating as common carriers of passengers a certain line of street railroad extending along Milwaukee avenue,” that they “were owners of and were possessed of, using and operating” the said line, that they were “propelling a train of cars” and that plaintiff when injured was “about to get on one of the cars of the said defendants” for the purpose of being transported along the line of said road. There is an averment also that the said receivers of the West Chicago Street Railroad Company were duly appointed, qualified and acting as receivers of all the property of that defendant company. It is urged that the question presented is, what is the legal effect of the allegations referred to; that the plea of general issue does not admit legal conclusions, that the declaration does not state a cause of action against the West Chicago Company, that it attempts to charge as a joint tort of the West Chicago Company a corporation and of its receivers that which in law cannot possibly be a joint tort and that both these conditions are fatal on motion in arrest of judgment. These contentions are argued elaborately and at great length. It may be deemed improbable that “receivers of all the property” of a street railroad company were operating its road through, by or with the corporation itself or that they were given authority so to do by the court which appointed them. The declaration nevertheless avers that they all were operating the road, whether physically or constructively, and however strange and apparently anomalous such allegations may be, it is claimed by appellee’s attorneys that they were admitted to be true in behalf of these defendants at the trial; that “we have here a solemn stipulation of the parties, entered into in open court, waiving all questions as to the proper joinder of parties and agreeing that the only question to be left for the jury was the one as to the liability of the appellants for the accident in question.” The admissions referred to are as follows:

“Mr. Tone: And this suit is brought against the receivers of the Union Traction Company and the receivers of the West Chicago. 'I think the evidence in this case will show the franchise under which—I may ask here, will there be any dispute about the liability of these different companies for whatever was done there—will you require us to subpoena your company to produce—

Mr. Baily: Well, I won’t put it in your language—I will say to you, Mr. Tone, that we will admit whatever the facts are, and I understand as to that the receivers were operating a train of cars in connection with which it is claimed this accident took place at the time and place of the accident.

Mr. Tone: And also, I presume, you will admit that the Chicago West Division Railway Company had the franchise under which they were operating ?

Mr. Baily: I understand that.

Mr. Tone: And that the Chicago West Division Railway Company executed a lease of them to the West Chicago Street Railroad Company, which was in force at the time of this accident?

Mr. Baily: Yes, I won’t make any question about that.

Mr. Tone: And that the West Chicago Street Railroad Company executed a lease to the Chicago Union Traction Company of the lines where this accident happened which was in force at the time of the accident ?

Mr. Baily: Yes, I admit the facts as to operation and as to ownership as set up in the declaration. Whatever that is, I admit those facts; I do not admit what the legal conclusion of the facts may be, but I admit the facts.

Mr. Tone: That the corporations owned and operated as set up in the declaration ?

Mr. Baily:' Yes, in other words—

Mr. Tone: You deny the liability, of course?

Mr. Baily: Yes.

Mr. Tone: All I was going to say to the jury—what you and I agree on—namely, that the defendants were operating this road on Milwaukee avenue at the time of the accident, but you deny any liability for this accident, I just want to get that clear to the jury.

Mr. Baily: All right.”

It is argued in behalf of appellants that in this colloquy “counsel for defendants admitted the facts stated in the declaration but refused to admit any conclusions.” The final admissions were, however, “that the defendants were operating this road on Milwaukee avenue at the time of the accident,” which is what the declaration, avers. Under ordinary circumstances such an admission would mean that all the defendants were operating the road when the accident occurred, and that there was therefore no misjoinder of parties defendant. It is claimed that whether so admitted by the terms of the phraseology employed or not the facts was nevertheless impossible, and that the admission therefore must be deemed erroneous or meaningless and should be entirely disregarded. Whatever view may be taken, however, of the language of the admission, it clearly waives every objection on the ground of misjoinder. In Eckels v. Muttschall, 230 Ill., 462-466, a case in which a similar admission was made, the Supreme Court in affirming the judgment of this court said: “The declaration declared against the West Chicago Street Railroad Company and the receivers of the Union Traction Company jointly and the defendants had an opportunity in replying to the interrogatory propounded to counsel by the court, to state whether they had any objection as to the manner in which the defendants had been sued, and instead of raising the question of misjoinder now sought to be raised, counsel for the defendants acquiesced in the statement of the court that the plaintiff had brought his suit against the right defendants. We think therefore the defendants after the trial had proceeded to verdict and final judgment can not in a court of review in the face of such admission raise the question of misjoinder of parties by a motion in arrest of judgment.”

It is urged further that the trial court erred in overruling the peremptory instructions requested by the two corporations, the West Division Company and West Chicago Company, defendants, at the close of plaintiff’s evidence, and at the close of all the evidence, as well as in overruling their motions for a new trial. The West Division Company was, it is said, the original company which obtained from the city the franchise under which the railroad was operated; that it leased its property to the West Chicago. Company and the latter leased the same property to the Union Traction Company. It is argued that while if the said lessees had been in actual physical possession, the lessor, the West Division Company, would be liable for the negligent act of either of the said lessees, that the road was not in the possession of either of said lessees, but of their receivers; and hence it is urged there was no evidence justifying'the verdict and judgment against the lessees, since they are not liable for the torts of their receivers. What has been said above, however, as to the effect of the admissions referred to makes it unnecessary to follow counsel in the discussion of these objections.

It is urged the verdict is not supported by the evidence. It is contended the plaintiff was drunk, that he undertook to get upon a moving train while in that condition, and that his own contributory negligence and not the negligence of the defendants, caused the accident. These contentions are argued at great length, appellants’ review of the evidence covering fifty-six pages and discussing the matter exhaustively. The accident occurred about eleven o’clock on" the night of November 5, 1904. Appellee’s theory is that the car by which he was injured came to a stop at the intersection of Paulina street with Milwaukee avenue; that the plaintiff walked at an ordinary gait from the curb on Paulina street to the foremost car of the train; that he had a package in his right hand; that he caught hold of the railing of the rear end of the front car—being the grip car—with his left hand and put one foot on the steps of said car, that he was in the act of getting on when said car started forward suddenly with a jerk, throwing plaintiff between the first and second cars, and that the second car ran over him, inflicting injuries which made amputation of his left leg necessary. There are a number of witnesses whose testimony tends to sustain these contentions, and there are as many called in behalf of appellants whose testimony tends to show either that the plaintiff ran from the curb and caught hold of the railing of the car after the car had started, and that he was thrown between the cars, or that in running up to the train he got in between the first and second cars. The contention that appellee was drunk is denied by him, and the evidence to the contrary is by no means conclusive. There is direct and irreconcilable conflict in the testimony as to how the accident occurred, and after careful consideration we find no sufficient reason warranting interference with the verdict of the jury, sustained as it is by the judgment of the trial court.

It is urged the damages are excessive. Appellee has lost his left leg above the knee. He suffered two surgical operations. He was forty-nine years of age at the time of the accident. It is impossible to measure with accuracy the pecuniary compensation adequate for a permanent injury of this character. The expenses of living have been increasing of recent years and the earning power of money diminishing. A verdict and judgment in a suit for personal injuries allowing excessive damages ought not to be permitted to stand, but in the present case our conclusion is that the judgment is not so manifestly excessive as to warrant interference.

The judgment of the Superior Court must therefore be affirmed.

Affirmed.


author: Mr. Justice Smith

text:
    Mary J. Rafter v. Chicago City Railway Company.
    Gen. No. 13,531.
    1. Argument of counsel—what not within legitimate scope of. It is not within the right of counsel to urge a jury to predicate its verdict upon what the jurors may know outside of the evidence.
    2. Evidence—conclusions of witnesses not competent. The testimony of a witness as follows, is not competent: “He said that if
    Mrs. Rafter had done as he told her to, the accident would not have happened,” notwithstanding the statement may have been made in the presence and hearing of the plaintiff who remained silent.
    Action in case for personal injuries. Writ of error to the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed February 14, 1908.

      J. A. Bloomingston, forJ plaintiff in error; Castle, Williams, Long & Castle, of counsel.
    Wm. J. Hynes, James G. Condon and Watson J. Berry, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

Plaintiff in error brought this action against defendant in error to recover for injuries sustained on or about October 10, 1902. The declaration, consisting of three counts, avers in the first count that the defendant in error operated a certain electric car at the corner of Sixty-seventh street and Wentworth avenue in the city of Chicago; that it was the duty of the defendant in error to exercise care and diligence in the management of the car and that it failed in this behalf and carelessly and negligently ran its car into the plaintiff in error, who was crossing Wentworth avenue in the exercise of all due care for her own safety, and injured her.

The second count avers that defendant in error failed in its duty to ring a bell or otherwise give warning to the plaintiff in error. The third count avers that defendant in error ran its car over the street intersection at an unreasonable rate of speed.

Issues were formed on the declaration by a plea of general issue. On the trial the jury returned a verdict of not guilty, and judgment was entered on the verdict.

It appears from the evidence that about 6:30 in the evening on October 10, 1902, plaintiff in error, a lady past sixty years of age, accompanied by Mr. McGuffin, was walking east on Sixty-seventh street. When she reached a point about a half block west of Wentworth avenue, Mr. McGuffin left Mrs. Baiter and walked ahead of her for the purpose of hailing a northbound car on Wentworth avenue, if one should be approaching. Mr. McGuffin passed safely over the Wentworth avenue tracks and hailed a north-bound car which stopped on the north side of Sixty-seventh street. Mrs. Rafter proceeded to the southwest corner of Sixty-seventh street and Wentworth avenue. She there stepped from tlic curb and proceeded in a northeasterly direction toward the northeast corner of the street intersection. As she stepped from the curb she says she looked north for an approaching south-bound car, but did not see any car, and as she came to the west rail of the south-bound track, she again looked to the north, but saw nothing, she says. She continued across the south-bound track in the direction of the north-bound car which was waiting; and when she was nearly across the track a south-bound car struck her and threw her to the ground. She says no bell was rung or other warning given of the approach of the car.

From the testimony of other witnesses it appears that the south-bound car was lighted and the gong was sounded; that when the car passed the north cross-walk it was going about seven miles an hour. The motorman testifies that he first saw Mrs. Rafter when she stepped from the curb, and that his car was then at the north cross-walk. He was then ringing his bell, the power having been turned off seventy-five feet north of the north cross-walk; and he applied the brakes at once; his car was going about two miles an hour "when it struck Mrs. Rafter, and it went twelve or fifteen feet after striking her. When the car stopped she was lying on the ground under the front step.

Two grounds only are urged for the reversal of the judgment: First, that the court erred in rulings on evidence, and second, in prohibiting counsel from arguing proper matter to the jury.

The second reason assigned by counsel for reversing the judgment is without merit, in our opinion. Counsel for plaintiff in error in his argument to the jury said: “If the car "went, at the lowest estimate, from the middle of the street to a point ten or fifteen feet from the other curb— call it ten or twelve feet if you like—if that car was going as slowly as that motorman said it was going at the time this accident occurred, you know and I know that that car would have been stopped instantly. You know how those cars are stopped; you know7 it would not take—”

Objection was made that counsel had the right to argue upon the evidence, not upon what he or any juror knew; and the court sustained the objection, .restricting counsel to the evidence. The ruling was not erroneous. That jurors may test the truth and the weight of the evidence by their knowledge and experience is settled, but their verdict must be based on the evidence, not on what they know outside of the evidence.

The witness Haddon, called by the defendant in error, testified to having a conversation with Mr. McGuffin in the drug store on the corner of Wentworth avenue and Sixty-seventh street on the evening of October 10, 1902, after the accident, in the presence of Mrs. Rafter. He was then asked: “Q. Did Mr. McGuffin say to you at that time in her presence that—speaking of Mrs. Rafter that if she had done as he had told her, the accident would not have happened?” The question was objected to on the ground that it was “not competent, and not binding on Mrs. Rafter, and not tending to illustrate any conditions in this case.”

The court overruled the objection and the witness answered : “A. He said that if Mrs. Rafter had done as he told her to, the accident would not have happened, and that she was to blame herself for what happened.”

Thereupon counsel for plaintiff in error moved to strike out the whole answer. The court struck out the latter part of the answer and allowed the first part to stand. This ruling was properly excepted to.

The conclusion of Mr. McGuffin, that if Mrs. Rafter had done as he told her the accident would not have happened, was not competent or material. Mrs. Rafter was not bound by McGuffin’s conclusion upon the subject, and was not called upon to deny it or pay any attention to it. Her silence, therefore, when such a conclusion or opinion was expressed in her presence and hearing was not the admission of a fact by her, and cannot be competent on that ground, as urged by counsel for defendant in error. Furthermore, it was a mere conclusion upon a subject regarding which McGuffin was not competent or qualified to give an opinion or conclusion. It was for the jury alone to form conclusions upon the facts in evidence, under the instructions of the court. It does not seem to he necessary to cite authorities upon the proposition, but Saunders v. City & Suburban R. Co., 99 Tenn. (15 Pickle), 130; and Lane v. Bryant, 9 Gray, 245, are in point, and the reasons given in the opinions in those cases are conclusive. The admission of the evidence was material and harmful error.

For this error the judgment must be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Smith Mr. Presiding Justice Baker:

text:
    The Metropolitan West Side Elevated Railway Company v. Fannie Sutherland.
    Gen. No. 13,681.
    1. Passenger and carrier—when relation of, does not exist. One who boards the car of a traction company under the impression that the car of another company is being boarded, having at the time no purpose or intention of being carried as a passenger, does not become a passenger in law.
    2. Personal injuries—extent of obligation due to mere licensee. A traction company owes to a mere licensee no duty other than not wilfully or wantonly to inflict an injury.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed.
    Opinion filed February 14, 1908.
    Statement by the Court. On December 21, 1906, Fannie Sutherland, defendant in error, brought suit against the plaintiff in error in the Municipal Court of Chicago, alleging in her bill of particulars “damages for bruises, shock, dislocation of shoulder and loss of time and expense caused by negligence of the said defendant in starting train before plaintiff had time to get off, and thereby throwing said plaintiff on the fifteenth day of May, 1905, in the city of Chicago and State of Illinois, to the damage of said plaintiff of one thousand dollars.” A trial by jury resulted in a verdict in favor of the plaintiff for $535, upon which judgment was entered February 27, 1907. A writ of error was issued out of this court and made a supersedeas.
    The evidence in the record tends to show that Fannie Sutherland, a lady of about sixty years of age, in company with her daughter, Belle Sutherland, on May 15, 1905, had been shopping in the down-town business district of the city. Between five and six o’clock in the afternoon they went to the elevated loop station at Van Burén and Dearborn streets for the purpose of taking a south side elevated railroad train to their home. ¡Mrs. Sutherland, having formerly lived in Michigan, was unacquainted with the city. Her daughter had lived on the south side of the city for over a year, and had traveled on the south side elevated trains as often as once a week, and was acquainted with the movements of the trains, and knew the part of the platform at which they stopped. She knew that the west side trains were accustomed to stop at the other or east end of the platform to discharge and receive passengers, but she had never ridden on the trains of plaintiff in error, nor had she seen them stop at the part of the platform assigned to the south side trains. She had never seen the gate dividing the east end or half of the platform from the west half shut back to allow passengers to move from one part of the platform to the other, nor did she know that a platform man stood on the platform to call out the trains as they arrived at the station.
    The daughter bought tickets entitling them to transportation on the south side elevated railroad, at the ticket booth of that company at the station, and the mother and daughter passed through the gate of the ticket seller of the south side elevated road and thence to the right out upon the station platform. As they stepped upon the platform of the station, a Metropolitan West Side Elevated Railroad train, consisting of five cars, came into the station. Plaintiff and her daughter stepped upon the front platform of the fifth car of the train, the plaintiff preceding her daughter. In reply to a question by the daughter the train guard, stationed between the fourth and fifth cars, told them that the train was a Metropolitan West Side train. Thereupon the daughter stepped off the train and her mother followed. The train had started and was in motion when the mother stepped off, and she was thrown upon the platform and received the injuries for which it is sought to recover damages. The train was not started upon any signal by the guard, but was started upon a signal by the station platform man, after he had observed that all the people desiring to enter the train had done so.
    The station platform at the station in question is divided in the center by a gate extending from the station house to the edge of the platform, except in what are known as the “rush hours” of traffic morning and evening. During these “rush hours” this dividing gate is swung back against the station house, in order to permit all of the cars of the longer trains run at those hours to be brought to the platform, thus facilitating egress from and ingress to the trains. The gate was swung back against the station house at the time Mrs. Sutherland and her daughter boarded plaintiff in error’s train, the rear car of which, as it stood at the platform, was opposite that part of the -platform usually assigned to the use of the south side train.
    At the close of the plaintiff’s case the defendant moved the court to instruct the jury to find the defendant not guilty. This motion ivas denied by the court-. At the close of all the evidence in the case defendant renewed the motion, and it was again denied.
    Addison L. Gardner, for plaintiff in error; W. W. Gurley, of counsel.
    E. 0. Ratiieon, for defendant in error; Kruse & Peden, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The question of the liability of plaintiff in error for the injuries received by defendant in error turns upon the duty which it owed to her, and whether or not it neglected that duty. If defendant in error was a passenger on the car- of plaintiff in error, then the duty of the latter to her “involved the use of the utmost care and diligence which can be bestowed by common skill and foresight.” C., B. & Q. R. R. Co. v. Mehlsack, 131 Ill., 61. If on the other hand defendant in error was a mere stranger to plaintiff in error, the duty of plaintiff in error rested merely upon grounds of humanity and respect for the rights of others, and required it to so perform its transportation service as not wantonly or carelessly to be an aggressor towards her. C., B. & Q. R. R. Co. v. Mehlsack, supra.

The evidence clearly and without controversy shows that defendant in error was not a passenger on the car of plaintiff in error. She had purchased a ticket for transportation on the south side elevated railroad train, and had no intention, desire or right to board the train of plaintiff in error, the destination of which was to a different part of the city from her home where she was intending to go. She was on the car of plaintiff in error by her own or her daughter’s mistake, and with no purpose or intention of being carried as a passenger. She was not received by plaintiff in error as a passenger, and was not under its control and entitled to its care as a passenger. C. & E. I. R. R. Co. v. Jennings, 190 Ill., 478; I. C. R. R. Co. v. O’Keefe, 168 id., 115; N. C. S. R. R. Co. v. Williams, 140 id., 275, 288.

Upon the undisputed facts shown in the evidence defendant in error was a stranger to plaintiff in error and a mere licensee on its car, and its obligation, as stated above, rested “upon grounds of .general humanity and respect for the rights of others,” and required that it should not wantonly or wilfully inflict an injury upon her. North Chicago St. Ry. Co. v. Thurston, 43 Ill. App., 587, and authorities there cited.

In our opinion, the evidence in this case fails to show that plaintiff in error wantonly or wilfully inflicted any injury upon defendant in error, or that it was guilty of gross negligence. It is not claimed or pretended that defendant in error was wilfully injured. Was there, then, wantonness, a reckless disregard of the rights of defendant in error, or a manifestation of indifference to her safety % We think not. She and her daughter were conversing as they stepped upon the car. They did not notice the color of the train, which was different from the color of the south side trains, until they were informed by the guard on the platform that it was a west side train, when the daughter looked up and saw for the first time, as she stood on the platform, that it was a west side train. Thereupon the daughter stepped off the car platform. In the meantime the station platform man, having observed that no passengers were getting off or on the train, gave the signal to start to the motorman of the train. As defendant in error was stepping off the car the train started forward and she was thrown upon the station platform.

In these facts we find no evidence of negligence on the part of plaintiff in error or its servants.

It follows that the motion of plaintiff in error to instruct the jury to find the defendant not guilty should have been sustained and the jury so instructed.

As there was no failure on the part of plaintiff in error to observe its duty to defendant in error, there can be no recovery in this case, and the judgment is reversed with a finding of fact.

Reversed, with finding of fact.

Mr. Presiding Justice Baker:

I dissent from the reasoning, but agree to the conclusion.


author: Mr. Presiding Justice. Baker

text:
    Metropolitan West Side Elevated Railway Company v. Szczepan Kowalski.
    Gen. No. 13,682.
    1. Negligence—when question of, for jury. Whether it is negligence for a traction car to turn a curve at a rapid rate of speed is a question of fact for the jury.
    2. Contributory negligence—when question of fact for jury. Whether it is contributory negligence for one, pursuant to custom, to ride upon the platform of a traction car, is a question of fact to be determined by the jury.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. YZilliam N. G-emmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed March 6, 1908.
    Addison L. Gardner, for plaintiff in error; W. W. Gurley, of counsel.
    Royal W. Irwin and Frank W. Koraleski, for defendant in error.
   Mr. Presiding Justice. Baker

delivered the opinion of the court.

In an action in the Municipal Court to recover damages for personal injuries, which plaintiff alleged that he received by being thrown from a car of defendant on which he was a passenger, “ by reason of defendant’s negligently managing and operating same,” plaintiff had judgment for $750, to reverse which the defendant prosecutes this writ of error.

As to the evidentiary facts there is in this case no substantial controversy. Defendant operated over its own right of way, and not in a public street, an electric surface railway from Fifty-second avenue, where the tracks of its elevated road came down to the ground, to Desplaines avenue, a distance of two and a half miles, and through passengers were transferred from a car on the elevated to the car on the surface road, and vice versa, without an additional fare. There were eight stations on said surface road. Going east there was a curve to the right just west of Fifty-second avenue, with a radius of about 500 feet, around which a car, might run at a speed of forty miles per hour without danger of overturning or leaving the track. Plaintiff became a passenger on said surface car at Desplaines avenue, intending to go to the city over said surface road, and stood upon the rear platform smoking up to the time of the accident. The conductor knew that he was standing upon the platform and testified that he did not allow smoking in the car, hut allowed passengers to smoke on the rear platform.

In view of this testimony it is immaterial whether plaintiff went upon the platform voluntarily when he first boarded the car, as the conductor testified, or was directed by the conductor to go on the platform, because he had fish and fish nets, as plaintiff testified, and it is also immaterial whether he could either see or read the notice on the rear door of the car that, “Passengers must not stand on the rear platform of the cars.” He was on the rear platform with the knowledge and consent of the conductor and in accordance with the custom that passengers who wished to smoke might ride on that platform, and the case is not affected by the notice which the jury might, from the evidence, find was treated by the defendant as abandoned.

Plaintiff estimated the speed of the car at the curve at twenty miles per hour; the conductor estimated it at eighteen to twenty miles per hour.

That when a car going at eighteen to twenty miles an hour strikes a-curve there is a swaying of the car and a tendency to throw a person standing on the platform from the car, is not disputed. Plaintiff testified that he was by such motion of the car thrown from the platform. Kominski, a witness called by plaintiff, testified that he was sitting on a seat in the car and that when the car struck the curve he nearly, fell off his seat. The question of defendant’s negligence does not depend upon the question whether the car might go around the curve at eighteen or twenty miles per hour without danger of overturning or leaving the track, but upon the question whether it might be run at that speed without danger to the passengers on the car.

Whether the defendant, knowing that plaintiff was standing upon the rear platform, was guilty of negligence in running the car around the curve at eighteen or twenty miles per hour was, we think, a question of fact for the jury, on which their verdict must be held conclusive.

The principal contention of plaintiff in error is, that the defendant in standing upon the platform, not holding on to anything and knowing, as he testified that he did, every curve in the track, was guilty of contributory negligence. It is conceded by the plaintiff in error that it is not negligence per se for a passenger to stand on the platform of a street railway car, and by the defendant in error, that it is negligence per se for a passenger to stand upon the platform of an ordinary steam railway car. Riding upon the platform of an ordinary steam railroad car has been held negligence, not alone because of the speed of the train, but also because passengers are not permitted to ride upon the platform of such cars. Here, as has been said, passengers were permitted to ride upon the rear platform to smoke, and in view of such custom and permission, we think that the question whether the plaintiff was guilty of contributory negligence in riding upon the platform was also a question of fact for the jury upon which their verdict must be held conclusive.

The judgment of the Municipal Court will be affirmed.

Affirmed.


author: Mr. Presiding Justice Baker

text:
    Hine Brothers Company v. Maybelle M. Adams.
    Gen. No. 13,747.
    1. Record—what part of, without incorporation in hill of exceptions. An appearance,- without incorporation in the bill of exceptions, becomes part of the record proper.
    2. Default—when entry of, erroneous. In an action of the fifth class instituted in the Municipal Court a default is erroneous if entered as against a defendant who has filed his appearance in writing before the return day of the summons.
    Action in case. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 6, 1908.
    R. J. Folonie and George Priestling, for plaintiff in error.
    War. A. Jennings, for defendant in error.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

In an action of the fifth class brought in the Municipal Court to recover damages to the person and chattels of the plaintiff through the alleged negligence of the defendant, the defendant by its attorneys entered its appearance before the return day of the summons. On the return day, the record shows that the parties appeared and the cause was continued to February 25, 1907, and assigned to the jury calendar. On that day the record shows that the parties again appeared and the cause was further continued to March 26, 1907, at 9 :30 a. m. On that day, on motion of plaintiff, the defendant was ruled to appear instanter, and failing to appear the court ordered, “that judgment be entered against said defendant by default.” A jury was then called and sworn to assess plaintiff’s damages, and having heard the evidence, returned the following verdict: “We, the jury, find the defendant guilty and assess the plaintiff’s damages at $250,” and judgment was at once rendered on the verdict. After-wards, the defendant moved to set aside the judgment, but the motion was denied and the defendant prosecutes this Avrit of error.

All that the defendant Avas required to do to entitle it to a trial upon the merits was to enter its appearance in writing before the return day, and that Avas done. The contention of the defendant in error that the written appearance is not a part of the record cannot be sustained. The appearance became a part of the record by the mere act of filing.

It is only in case a defendant fails to appear that the plaintiff is entitled to a “judgment as in case of default,” under section 43 of the Municipal Court Act. By the provisions of section 48 of that act, no written pleadings are required in the class of cases to AA'hich this case belongs, “excepting such as are required by law in similar cases before justices of the peace.” In similar cases before justices of the peace, the defendant is presumed to have pleaded all pleas necessary to the defense. Williams v. Corbet, 28 Ill., 262.

The defendant, though not present, was entitled to have the cause submitted to the jury upon the merits. This was not done, for the jury was only sworn to assess damages. Their finding of guilty was irregular, for they were not sworn to try the issues hut only to assess damages. The court, we think, erred in entering judgment by default and swearing the jury to assess plaintiff’s damages, and for that error the judgment will he reversed and the cause remanded.

Reversed, and remanded.


text:
    Towarzystwa Litewsko Polskiego Ostrobramy, W. Chicago, Illinois, v. Stanislaw Barczaitis.
    Gen. No. 13,757.
    1. Record—what part of, without incorporation in hill of exceptions. An appearance becomes a part of the record proper by the mere act of filing it.
    2. Default—appropriate form of, where defendant fails to plead. Where the defendant has entered an appearance, but has failed to plead,, the proper form of judgment is by nil dicit and not by default.
    3. Assessment of damages—when defendant entitled to notice of. A defendant, having entered his appearance, is entitled to notice of the proceeding to assess damages, and it is reversible error to proceed to assess damages without notice to him.
    Assumpsit. Writ of error to the Superior Court of Cook County; the Hon. Axel Ciiytraus, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 6, 1908.
    Statement by the Court. In an action of assumpsit by the defendant in error against the plaintiff in error to recover sick benefits, brought in the Superior Court to the February term 1906, the summons was served more than ten days before the return day. The transcript shows that February 5, the. first day of the February term, a written appearance of the defendant, by attorney, was filed in the cause in the Clerk’s office. February 7, on motion of plaintiff the default of the defendant for failure to appear was entered of record with judgment upon said default, that plaintiff ought to recover of the defendant his damages, etc., an assessment of damages by the court at $535, and final judgment against the defendant for said sum and costs. The same day, the defendant filed its verified plea. March 2, a day of said February term, the defendant entered its motion to set aside the default and judgment, the court continued the motion to the March term and at that term denied the motion.
    Johnson, Belasco & McCabe, for appellant.
    Henry IN. Stoltenberg, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

Defendant in error contends that the appearance in writing contained in the transcript, and thereby shown to have been filed two days before the.default and judgment, is not a part of the record proper, and such appearance not having been made a part of the record by the bill of exceptions, the record fails to show an appearance by the defendant. In support of this contention are cited Van Cott v. Sprague, 5 Ill. App., 99, and Schmidt v. Skelly, 9 id., 532. In neither of those cases was the question whetlier an appearance was part of the record proper involved.

Thompson v. Emmert, 15 Ill., 415, was an action upon a Pennsylvania judgment against Nelson, Emmert and Campbell. The record offered in evidence showed that Nelson only had been served with process, but that an attorney entered a general appearance for Emmert and Campbell, and it was said, p. 416: “Was Emmert bound by the judgment in Pennsylvania? According to the decisions in this court the record afforded conclusive evidence that his appearance was entered by an attorney.” We think that the appearance became a part of the record proper by the mere act of filing it.

The default of the defendant for failing to appear was irregular. Where the defendant has entered an appearance, but has failed to plead, the proper form of judgment is by nil ¿Licit and not by default. But for this irregularity alone the judgment should not be reversed.

The defendant, having entered its appearance, was entitled to notice of the proceeding to assess damages, and it was reversible error to proceed to assess damages without notice to it. American Mail Order Co. v. Marsh, 118 Ill. App., 248, and cases there cited;

The contention of the defendant in error that it will be presumed that such-notice was given cannot be sustained. Such notice could not have been given prior to March 7, for no judgment by default or by nil dicit had then been entered. The entry of judgment recites the default of the defendant for failure to appear “wherefore the plaintiff ought to recover his damages, etc., and thereupon reference is had to the court to assess plaintiff’s damages, and the court now here, after hearing etc., assesses plaintiff’s damages at, etc.,” and then follows the consideratum est all in a single order.

For the error indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    E. M. Sperbeck v. The People of the State of Illinois.
    Gen. No. 13,762.
    False pretenses—when conviction for obtaining money under, cannot be sustained. The information in this case is construed and the proof held not to sustain a conviction of obtaining money-under false pretenses.
    Prosecution for obtaining money under false pretenses. Writ of error to the Municipal Court of Chicago; the Hon. Fred L. Fake, Jr., Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 6, 1908.

      statement lby the Court. To an information filed in the municipal Court by Albert Schetter, averring that the plaintiff in error, “did unlawfully and falsely represent and pretend Albert Schetter that he would give him employment as a machinist in the Union Pacific Railroad shops on payment of ten ($10) dollars he also further stated that he as an employment agent was authorized by the said railroad to hire men.
    “And so affiant, relying on the said fake statement and being deceived thereby, was induced by reason thereof to pay over and deliver to the said E. M. Sperbeck the sum of ten ($10) dollars in lawful money of the United States of America, the said E. M. Sperbeck "well knowing the said false representations to be false, with intent then and there to cheat and defraud,” etc.
    The defendant pleaded not guilty. A jury was waived and the trial by the court resulted in a finding- of guilty and a judgment that defendant pay a fine of $250, and be imprisoned in the county jail one day, to reverse which judgment this writ of error is prosecuted. As to the representations made by the defendant to the prosecutor, the only evidence was the testimony of the prosecutor for the People, and the testimony of the defendant in his own behalf. The prosecutor testified in chief as follows:
    “I know E. M. Sperbeck and have known him since about December 16 or 17, 1906. He runs an employment agency. I went into his office looking’ for work. I asked him whether he could give me work as a machinist in the railroad shops. He told me that upon the payment of one dollar ($1) down and the further payment of nine dollars ($9), which he claimed was for the tickets, he would give me employment at two dollars ($2) per day at Cheyenne or Granger, Wyoming. He said that he had given employment to a lot of fellows and that if I stayed there sixty days they would pay me back the ten dollars ($10) that I paid in. I did not believe that I would get that money back, but I was out of work and thought it was a pretty good thing. Pie told me that there were four others besides myself going, but when we got to the depot there were only two others. He said the others had backed out, and that we were to go on and a man would meet us at Council Bluffs upon our arrival and give us transportation beyond.”
    On his cross-examination he testified in answer to questions, as follows:
    “Q. What conversation did you have with Mr. Sperbeck regarding the arrangement for transportation, and what did he tell you that he would charge you for securing employment from him?
    A. He told me that I would have to pay him one dollar for his services, the balance, namely, nine dollars would go to the railroad company for fare.
    Q. What representations did Mr. Sperbeck make to you with reference to employment after you got out there ?
    A. He told me that he could place me either in Cheyenne, Wyoming, or Granger, Wyoming, at two dollars per day. That he had sent a lot of people out there and that there would be no trouble at all.”
    The defendant testified as follows:
    “I first met Albert Schetter, the complaining witness, about December 16, or 17, 1906, when he came into my office and stated that he was looking’ for railroad work out west. I told him that I had secured employment for a number of men, and that I thought that I could get work for him on the Union Pacific Railroad. I went over and saw Mr. Williams, the general ticket agent, and asked him whether they could use some laborers. He told me that he would wire their manager and let me know. He after-wards told me that he could place the men and I told Mr. Schetter that I could get him employment at two dollars per day on the Wyoming division of the Union Pacific Railroad.
    Q. Did you state to him that you could give him employment at Cheyenne or Granger ? A. No, sir, I did not. I told him that they needed men on the Wyoming division and that he could perhaps be placed or secure employment at any of the points along said line.”

      Fred A. Bangs, for plaintiff in error.
    John J. IIealy, State’s Attorney, and Clifford G. Bob, for defendant in error.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

The statute on which the charge in this case is based provides that: “Whoever, with intent to cheat or defraud another, designedly by color of any false token or writing, or by any false pretense, obtains the signature of any person to any written instrument or obtains from any person any money, personal property or other valuable thing, shall be fined in any sum not exceeding $2,000 and imprisoned not exceeding one year, and shall be sentenced to restore the property so fraudulently obtained, if it can be restored.”

The information alleges that the defendant, “did unlawfully and falsely represent and pretend Albert Schetter that he would give him employment as a machinist in the Union Pacific Railroad shops, on payment of ten dollars; he also further stated that he as an employment agent was authorized by the said railroad to hire men. And so affiant relying on the said fake statement and being deceived thereby was induced, etc., to-pay over, etc.” This is an averment that the defendant made two distinct statements or representations to the prosecutor: the first that he would give the prosecutor, “employment as a machinist in the Union Pacific Railroad shops on the payment of ten dollars”; the second, that “he, as an enrployment agent was authorized by the said railroad to hire men.” The word “falsely” in the averment applies to the first statement only, and not to the second. If it had been intended to' make the word “falsely” apply to both statements, at the conclusion of the first statement after the word dollars, the word “and” would have been used instead of the words “he also stated.” This view finds confirmation in the language of the next clause of the information: “And so affiant relying upon the said falce statement and being deceived thereby, etc.”

Theives’ slang has no proper place in an information, but whatever may be the meaning of the slang word “fake” as used in the information, the word statement is singular, and but one statement is by the information styled a “fake statement.”

To establish the guilt of the defendant, the evidence must prove beyond a reasonable doubt that the defendant represented or pretended to the prosecutor: “that he would give him employment as a machinist in the Union Pacific shops.” We should hesitate to hold that the testimony of the prosecutor, in chief, if it stood alone, was sufficient to sustain the allegation of the information. He testified that he asked defendant, “whether he could give me employment as a machinist in the railroad shops,” and that defendant said that upon certain conditions, “he would give me employment at two dollars per day at Cheyenne or Granger, Wyoming.” It is, to say the least, doubtful whether the statement, that the prosecutor testified that the defendant made, could in any event be held a statement or representation by the defendant that he would give the prosecutor employment as a machinist, or anything more than a statement or representation that he would give him employment at a certain place, at certain wages, without specifying any particular employment.

But the prosecution was bound to prove not only a representation by the defendant that he would give the prosecutor employment as a machinist, but that he would give him such employment, “in the Union Pacific Railroad shops.” Neither in his testimony in chief nor in his cross examination did the prosecutor testify that the name of the Union Pacific Railroad Company was so much as mentioned in any conversation between him and the defendant. On his cross-examination he testified as follows:

“Q. What representations did Mr. Sperbeck make to you ? A. He told me he was hiring a lot of people to go out west and work on railroads. * * *

Q. What representations did Mr. Sperbeck make to you with reference to employment after you got out there? A. He told me that he could place me either in Cheyenne or Granger, Wyoming, at two dollars per day, that he had sent a lot of people out there and there would he no trouble at all.” This testimony, taken in connection with his testimony in chief, clearly fails to sustain the allegation that defendant represented to the prosecutor, “that he would give him employment as a machinist in the Union Pacific Railroad shops.”

The defendant testified that he did not state to the prosecutor that he could give him employment at Cheyenne or Granger, but independent of this testimony and considering only the testimony of the prosecutor, the evidence does not sustain the information, and the judgment must therefore be reversed and the cause remanded.

Reversed and remanded.


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    American Bicycle Company v. Frederick Oulnd.
    Gen. No. 13,515.
    Res ipsa loquitur—when doctrine of, does not apply. As between master and servant, the doctrine of res ipsa loquitur is inapplicable to a case where there is a reasonable cause to believe from the evidence that the servant himself was the agency which set in motion the cause of the injury complained of.
    Action in case for personal injuries. Error to the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed.
    Opinion filed March 6, 1908.
    Winston, Payne, Strawn & Shaw, for plaintiff in error; Johw Bartow Payne and Walter H. Jacobs, of counsel.
    John W. Byron, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

Defendant in error—plaintiff in the suit—recovered a judgment for personal injuries in the Circuit Court, from which judgment this appeal is prosecuted.

The plaintiff Oulnd was employed by the defendant conpany in its machine shop and foundry. At the time of the injury he was assisting in placing a die upon its bed under a hammer. This die weighed about 250 pounds. Plaintiff was employed as a heater. It -was his duty to heat metal and hand it to the hammer man whose assistant he was. It was his duty also to assist the hammer man in changing dies as the exigencies of the work required. On this occasion he had been directed to assist one of the hammer men in placing a die under the middle one of three steam hammers located from ten to twenty feet apart.. The hammer man took hold of the left side of the die and plaintiff took hold of the right side. Holding it in this manner, the die was carried toward the place which it was to occupy under the hammer. In order to get close enough to drop the die properly in its bed, plaintiff placed his foot between the base of the machine and the treadle which when pressed upon operated the hammer. There were also two hand levers on the side of the machine nearest to him by which the hammer could be operated. As the die was being placed in position the hammer suddenly descended upon it, inflicting the injuries complained of, and springing back to its place at the top of the machine where it remained. The evidence appears to be undisputed that in thus descending and returning to its position the hammer worked just as it was intended to work when the tread or levers by which it was set in motion should be operated in ordinary course. The plaintiff testifies that he “did not touch any of the springs or treads about that hammer.” Our attention, however, is called to his testimony on cross-examination, where he says, “I do not know whether I touched anything or not. I had to stoop over the tread because I have to come in to the hammer.” This tread or treadle extending across in front of the base of the machine was about six or eight inches high and about an inch from the machine. There is testimony given by plaintiff’s witnesses to the effect that there was no way in which the hammer could be caused to descend as it did on this occasion unless some one touched one of the levers, except by turning off the steam,'which it is not claimed was done in this case. It is not contended that anyone else touched either of these levers, but it is insisted in behalf of the defendant that the evidence as to the position of the plaintiff’s foot at the time and the normal manner in which the hammer descended and returned to its position should be deemed conclusive proof that plaintiff himself inadvertently placed his foot against the tread with sufficient pressure to operate the hammer and was thus the cause of his own injury.

It is contended in behalf of the plaintiff that the hammer which caused the injury was out of order. There is testimony in behalf of plaintiff to the effect that the hammer was “out of repair” before the accident, that “the blows of the hammer were irregular,” that “there were two blows in place of one,” that in descending “the hammer is controlled by guides” and that it “was loose in the guides.” The witness who so testifies states, however, that the irregular blows “never happened except when I pulled the lever”; and we find no evidence -which tends in any degree to show that the alleged defects in the hammer had ever caused it to descend at any time except when the levers were operated in the usual way for the purpose of so causing it to descend.

It is conceded by his counsel that plaintiff “knew what would happen if he put his foot on that treadle and pressed it down to the floor”; and it is insisted that he did not do so, but that the jar of the die when dropped onto the hammer bed may have been the cause of the sudden descent of the hammer. This, however, is, so far as we discover, mere conjecture of counsel without evidence to support it. Of like character is the contention that “there must have been some defect in some part of the hammer that caused it to operate imperfectly.”

Appellee’s counsel urge that the case “meets every requirement for the doctrine of res ipsa loquitur/’ In this we are unable to concur. In Ill. Cent. Ry. Co. v. Swift, 213 Ill., 307—316, it is said that “doctrine only applies, however, where the machine, appliance or other thing from which the injury results is shown to be under the management of the defendant and the accident is such as in the ordinary course of things does not happen if those in control use proper care.” It is evident that the doctrine cannot be applicable in a case where there is any reasonable cause to believe from the evidence that the plaintiff himself may by inadvertent pressure on the treadle have caused the hammer to descend upon the fingers of his hand. In such case “the mere happening of the accident raises no presumption that it was caused by the negligence of the master.” Diamond Glue Company v. Wietzychowski, 227 Ill., 338-342.

Finding no evidence in the record which tends to justify a conclusion that plaintiff ivas injured by reason of negligence on the part of the defendant, the judgment of the Circuit Court must be reversed with a finding of facts.

Reversed with finding of facts.


text:
    Cantrall Co-operative Coal Company v. John S. Level.
    Gen. No. 13,642.
    1. Lease—of mine construed. A lease upon, mining property held to require the payment of royalties upon “screenings” upon the ground that the same was coal of a merchantable quality within the designation of the descriptive words “pea, nut, lump and egg coal” contained in the lease.
    2. Contract—what proper to aid construction of ambiguous. In order to aid in the interpretation of an ambiguous contract, it is proper for the court to consider the interpretation which the parties have by their conduct placed thereon.
    Assumpsit. Appeal from the Superior Court of Cook County; the Hon. Axel Chttraus, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed March 6, 1908.
    Statement hy the Court. This is an action to recover royalties under a coal lease. At the close of all the evidence the court instructed the jury to find the issues for the plaintiff and assess his damages at the sum of $4,527.99. Judgment was entered accordingly.

      Material facts are that appellee leased the right to mine coal underlying real estate in Sangamon county, Illinois, “for and in consideration of the payment of a royalty of three cents per ton, payable monthly for all pea, nut, lump and egg coal mined * * * of a merchantable quality and taken out through said shaft for and during the term of ninety-nine years.”
    The grantees under this lease subsequently conveyed their rights under it to appellant, and the latter entered into possession of the premises on or about August 8, 1891, and has since been continuously engaged in mining coal therefrom, upon which coal it paid royalties until March 1, 1905. After the last mentioned date it made a statement to appellee, dividing’ the coal mined into two classes, one entitled “lump, egg, nut and pea coal,” and the other entitled “screenings.” Prior to March 1, 1905, appellant admits it had paid the agreed royalty on all the coal mined, and it was not until November 20, 1906, that appellant in reply to a request from appellee for a statement mailed one purporting to show the amount of coal mined and removed from the said property, from March 1, 1905, to October 31, 1906, in which statement for the first time the classification between “lump, egg, nut and pea coal” and “screenings” was attempted to he made. That statement showed the number of tons of the first class mined during the time stated to he 140,872 tons and the number of the tons of screenings mined and removed from the premises to be 16,947 tons.
    Hugh L. Buritham, for appellant.
    Louis T. Oer, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

The contention of appellant is that the court erred in directing a verdict in favor of appellee on the ground that under the lease appellant was not obliged to pay for anything hut “pea, nut, lump and egg coal” mined by them, and that “screenings” was not included under any of these designations. There is evidence tending to show that what is called screenings is merchantable coal and was sold by appellant as it sold other coal. This is apparently not disputed. Such coal therefore comes within the description of coal “of a merchantable quality” contained in the lease. The testimony of appellant’s secretary is to the effect that “screening’s are different sizes, inch screenings and one' and one-quarter inch,” and that “coal that passes through one and one-quarter inch screens would be called screenings,” that “pea coal passes through an inch and a quarter screen,” and “is screening’s when it is mixed with other coal”; that “screenings in the trade is pea coal and slack mixed,” that “slack is the finest portion of the coal,” that “you can call it different size screening,” that “what passes through the inch screen some call slack, some call screenings.” It thus appears from evidence introduced in behalf of appellant that what is called “screenings” includes different sizes of coal, some of it one and a quarter inch coal, and some of less size, that what is called pea coal passes through an inch and a quarter screen, and is itself literally screenings, and is called by that term when mixed with other coal. All coal that is passed through screens for the purpose of separating it into different sizes is in a sense screenings in that it passes through a screen. This is true apparently of all the coal described in the lease, unless it be lump coal of the larger sizes. It is, we think, a fair conclusion from all the evidence that whatever coal of a merchantable quality is, as the lease provides, “mined” by appellant is included in the general description of pea, nut, lump and egg’ coal. The lease makes no provision for screening. That is done apparently for appellant’s convenience only.

If, however, there was any reasonable doubt of the correctness of the conclusion stated, it would be obviated in this case by the construction placed on the contract by the parties themselves. Prior to the statement submitted November 20, 1906, showing the coal mined and removed between March 1, 1905, and October 31, 1906, in which ihc distinction between other coal and what is called in tint statement “screenings” was first made, appellant had paid for all coal taken out without distinction and without suggesting any distinction as to coal screened or unscreened. “It is a familiar rule of construction that where the terms of an agreement are in any respect doubtful or uncertain and the parties to it have by their own conduct placed a construction upon it which is reasonable, such construction will be adopted by the courts in the event of litigation -concerning it.” People ex rel. v. Murphy, 119 Ill., 159-166.

It is urged in behalf of appellant that the trial court erred in sustaining objections to certain questions put to a witness in appellant’s behalf as to the reasons why in statements made previous to March, 1905, no distinction had been made as to coal mined, between so-called “screenings” and other coal, and why the distinction was made in the subsequent statement. It is claimed that the purpose was to prove by the witness that the earlier statements made no such distinction by mistake. The testimony was correctly excluded. It may be the circumstances under which the statements in question were made might properly have been testified to as matters of fact, but appellant had no right to introduce testimony for the purpose of “proving a secret and unexpressed intention” or unexpressed purpose other than as indicated by the writings themselves. Brand v. Gallup, 111 Ill., 487—492. It is, we think, clear that appellant made these statements for some years and paid royalties on their showing in pursuance of its understanding and construction of the force and effect of the lease.

Finding no error in the record, the judgment of the Superior Court will be affirmed.

Affirmed.