text:
    Frank G. Clark, Appellant, v. Pond Creek Mill & Elevator Company, Defendant. First State Bank of Pond Creek, Oklahoma, Interpleader, Appellee.
    Gen. No. 17,442.

      Attachment—affidavit and other papers are not evidence that plaintiff is a creditor. Where an intervening claimant claims a fund admitted to he due hy a garnishee in a nonresident attachment suit, the plaintiff cannot question the claim without proving 'that he is a creditor, and the affidavit and other papers in the attachment suit are not evidence of such fact.
    Appeal from the Municipal Court of Chicago; the Hon. Chakles N. Goodnow, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 29, 1912.
    Frank F. Beed and Charles A. Williams, for appellant.
    Silber, Isaacs, Silber & Woley, for appellee; Frederick D. Silber, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Appellant brought an action in attachment in the Municipal Court of Chicago against the Pond Creek Mill & Elevator Co. of Oklahoma, alleging the non-residence of the defendant as the basis for the attachment. In the attachment writ the Durand & Kasper Co., a corporation of Chicago, was named as- garnishee and was duly served. A declaration with common counts, copy of the account sued on, and interrogatories to the garnishee were filed. The garnishee answered, setting out various purchases of flour by it from the defendant, on which there was due and unpaid, $6,708.82. Subsequently the First State Bank of Pond Creek, Oklahoma, appellee herein, inter-pleaded, claiming that the amount due from the garnishee had been transferred from the defendant to appellee by giving and crediting drafts drawn by the defendant on the Durand & Kasper Co. to the order of the cashier of the First State Bank, appellee, dated on the same days of shipments of flour to the Durand & Kasper Co., and that thereby the bank became the owner of each draft and the fund to be realized therefrom, and that the entire fund in the hands of the garnishee belonged to the interpleader, the appellee. Appellant filed his answer to the intérplea, denying that the appellee was the owner of or entitled to any part of the funds in the hands of the garnishee. The case was tried by the court without a jury and, after hearing and argument, the court found the issues as to the claim of the intervener to the fund in the hands of the garnishee in favor of the intervening claimant, the First State Bank, appellee, and judgment was entered on the finding. Appellant has appealed from this judgment and asks this court to reverse the same.

We shall refrain from discussing the points ably presented by appellant’s counsel touching the question of priority between appellant and appellee, for the reason that we must sustain the point made by appellee’s counsel, namely, there being no proof that appellant is a creditor of the defendant, he will not be heard to question the claim of the interpleader to the fund. Appellant introduced no evidence upon the trial that the defendant owed him anything. There was no evidence that he was a creditor. The affidavit and other papers in the attachment suit are not evidence of this fact.

In Yost Mfg. Co. v. Alton, 168 Ill. 564, 566, the court said concerning the same situation as is before us: “Appellant introduced no evidence that it was a creditor of the Climax Cycle Company, except the affidavit, bond and other papers in the attachment suit, as before stated. These were not evidence of any indebtedness due the appellant. Without evidence of such an indebtedness the appellant could not raise any question of fraud, it not being shown to be a creditor. (Springer v. Bigford, 160 Ill. 495.) Without evidence, therefore, that appellant was a creditor, and it not being in a position to raise any question of fraud, it was not error in the trial court to instruct the jury, at the close of all the evidence, to find for appellee.” This is the rule recognized and stated in A. D. Juilliard & Co. v. May, 130 Ill. 87, and Springer v. Bigford, 160 Ill. 495, where the court said: “But one important and essential element of such proof was wholly omitted,—that is, that appellant was a creditor of the defendant in the attachment. Appellant was not injured by the alleged fraudulent transfer unless he was a creditor of the vendor, and the court could not find that he was such creditor simply because he had brought an attachment suit.” To the same effect is Campbell & Zell Co. v. Ross, 187 Ill. 553, where the court said: “But we have held that before a plaintiff in the attachment, upon an issue of this character, can question the good faith of the, transfer under which the claimant claims title, he must prove that the relation of debtor and creditor existed between the defendant and himself,—in other words, must prove that the defendant was indebted to him.” And in Clayton v. Clayton, 250 Ill. 433, 439, the court referred to the case of Yost Mfg. Co. v. Alton, supra, as follows: “The attaching creditor there, as here, relied on the affidavit and other papers to establish his indebtedness on an issue being tried between the attaching creditor and a third party who claimed the property by interplea. There being no other evidence that the plaintiff in the attachment was a creditor of the defendant in that proceeding the trial court directed a verdict for the inter-pleader,” and the court proceeds further to quote with approval this decision.

These decisions are decisive of the case before us. The suggestion that the interpleading claimant cannot question the sufficiency of the attachment proceedings, service or levy without specially pleading is not in point. It is not the sufficiency of the attachment proceeding that is questioned, but appellant has failed to prove that which he had the burden of proving—that is, that he was a creditor having a right to contest the claim of an intervening claimant. There is nothing to indicate to this court that the point above discussed was not before the trial court.

For the reason given the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    John Kerins, a minor, by Michael Kerins his next friend, Appellee, v. John Anderson and Bush & Lane Piano Company, Defendants. Appeal of John Anderson.
    Gen. No. 17,464.
    1. Negligence—ditty to boy jumping on wagon. Where a six-year-old hoy jumps on a wagon and slips and falls in front of a wheel in attempting to get off, the driver owes no duty other than not to injure him wantonly or wilfully.
    2. Negligence—when no evidence of wrongful act by wagon driver. Where a six-year-old hoy jumped on a wagon unknown to the driver and slipped and fell in front of a wheel in attempting to get off, there is no evidence of wilful or wanton conduct on the part of the driver, and peremptory instruction should be granted.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Reversed with finding of fact.
    Opinion filed November 29, 1912.
    Henry S. Wilcox, for appellee; Jesse Wilcox, of counsel.
    No appearance for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

John Kerins, a child of six years of age, in December, 1904, met with an accident in attempting to leave a wagon belonging to and driven by the defendant, John Anderson. Suit was brought against Anderson and the Bush & Lane Piano Company. Upon the trial the jury was instructed by the court to find the Bush & Lane Piano Company not guilty, and a verdict of $150 was returned against the defendant, Anderson, and judgment entered thereon, from which Anderson appeals. The appellee does not appear in this court.

It is argued that, admitting the truth of the testimony on behalf of plaintiff, there is no liability of defendant for damages. The wagon was a two-horse piano wagon, and empty; it had a flat bottom, with no sides. Anderson was driving past the school house at Albany and Van Burén streets when some boys (including plaintiff and an older brother) coming from school jumped on the wagon. Anderson paid no attention to them, but turned north on Kedzie avenue, the horses walking all the time. North on Monroe street he started to tfirn his wagon out of the northbound car track to avoid a northbound car, and the boys began to jump off the wagon. Apparently all of them jumped off from the rear except plaintiff, who, attempting to get off at the side, slipped and fell in front of the rear wheels of the wagon, which ran over his leg.

The motorman of the northbound car says that Anderson all the time was looking straight ahead and apparently did not know of the accident until told of it by the motorman. Anderson says that he did not know that the boys were on the wagon, and that the first time he saw plaintiff, John Kerins, was after the accident. As soon as Anderson was told that the child had been hurt he stopped his wagon, picked the boy up, took him to a' doctor’s office nearby and remained with him until the boy’s mother came. John Kerins, the plaintiff, testified, but remembered hardly anything about the occurrence.

As announced in many decisions under like circumstances, the defendant owed no duty to the plaintiff other than not to injure him wantonly or wilfully. Legal liability is based upon the breach of some legal duty, and there is no evidence in this record that would justify a finding that the injury to the plaintiff was the result of any wanton or wilful conduct on the part of the defendant. Belt Ry. Co. of Chicago v. Charters, 123 Ill. App. 322; Hebard v. Mabie, 98 Ill. App. 543; Conlon v. Bailey, 58 Ill. App. 261; Chicago W. D. R. Co. v. Hair, 57 Ill. App. 587; Barry v. Stevens, 206 Mass. 78; Rice v. Buffalo Steel-House Co., 17 App. Div. (N. Y.) 462.

Upon the facts appearing in the record we find that the defendant, Anderson, was not guilty of negligence as charged in the declaration or any count thereof, and that it was error in the trial court in not instructing the jury to that effect. The judgment is reversed and, as there can be no recovery,- judgment for the defendant will be entered in this court.

Reversed with finding of fact.


author: Mr. Justice Barnes

text:
    Charles H. Allen, Defendant in Error, v. Michael J. Roughan, Plaintiff in Error.
    Gen. No. 17,170.
    1. Municipal court—proceedings at trial to be reviewed, must be preserved in the form required by statute. 'When what purports to be a stenographic report of proceedings had at the trial, is certified to as a “statement of facts,” it cannot be treated as a part of the record, and errors assigned upon it cannot be considered.
    2. Municipal court—affidavit of merits which merely denies generally is not sufficient. Under rule 20 of the Municipal Court an affidavit of merits which merely denies generally the facts alleged in the statement of claim is not sufficient.
    3. Municipal court—where amended affidavit of merits filed. Where an affidavit of' merits is stricken from the files and leave is taken to file an amended one, the defendant is considered to have abided by the action of the court and is bound in the same way as a party who fails to stand by his demurrer at common law.
    4. Pleading—counterclaim properly stricken from the files. Where the counterclaim does not relate to the subject-matter of the cause of action, it is properly stricken from the files.
    5. Municipal court—pleading. Under the simplified procedure of the Municipal Court only the substantial or chief facts necessary to show either a legal cause of action or a legal defense, and the nature of it, need be stated, and evidentiary facts should be omitted.
    Error to the Municipal Court of Chicago; the Hon. Isidore H. Himes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed December 3, 1912.
    J. A. Coleman, for plaintiff in error.
    William T. Dickerman, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

This is a case of the fourth class. Paragraph 6 of Section 23 of the Municipal Court Act provides two methods of preserving for review a record of proceedings had at the trial. One is by a correct statement of the facts appearing upon the trial and of the questions of law involved and of the decisions of the court thereon, and the other is by a correct stenographic report of the proceedings at the trial and correct statement of such other proceedings as the party requesting it may desire to have reviewed. Whichever it is it must be authenticated or attested as such by the judge of that court, otherwise it is not properly a part of the record and cannot be considered. What is presumably a stenographic report of proceedings had at the trial is certified to in this record as a “statement of facts.” It does not set forth a statement of facts nor questions of law. In construing this section in Seehausen, Wehrs & Co. v. Interstate Steel & Iron Co., 150 Ill. App. 179, we said: “That the instrument, incorporated by the clerk into the record, is such statement as the statute requires must not be left to conjecture, presumption or assumption, but must be shown by proper authentication or attestation. * * * We cannot indulge in the presumption that the instrument is what on its face it does not purport to be and what no one asserts it to be.” We have followed the practice of striking similar certificates from the record. See Levy v. Froelich, 172 Ill. App. 170. While this portion of the record may have been intended for a stenographic report, without the judge’s certification to that effect we do not know that it is such, or that it is correct. It clearly is not a statement of facts nor certified to be correct, as required by the statute. Not being in conformity with the statute it cannot be treated as a part of the record and errors assigned upon it cannot be considered.

Considering only such assignments of error as are argued, and not based upon such alleged “statement of facts,” we are first asked to hold that it was error to strike from the files that part of the affidavit of defense which counsel contends answers the office of the plea of general issue. It is enough to say that, under Buie 20 of that court, an affidavit of merits which merely denies generally the facts alleged in the statement of claim is not sufficient.

The other errors assigned may well be considered together. One is to striking the “set-off and counterclaim” from the files; another to striking of the “affidavit of merits and set-off” from the files, and another to entering a default for want of an “affidavit of merits.” While plaintiff does not specifically designate which instrument or instruments he refers to, several of which were stricken from the files, yet as he obtained leave to withdraw all affidavits filed prior to October 13th, he presumably refers in his assignments to the two instruments filed October 13th, and designated respectively as “statement of counterclaim” and “affidavit of merits.” On October 28th an order was entered striking them from the files and granting leave to file “an amended affidavit of merits” in two days. Presumably this meant a new affidavit of merits, as there was nothing left in the record to amend. On November 1st defendant moved for leave to file “an amended affidavit of merits” and the motion was denied, and default taken for want thereof. A so called “certificate of evidence,” for which we find no authority in the Municipal Court Act, contains the proffer of such an affidavit. We cannot consider it.

While no g-rounds are set forth in the record for the court’s striking from the files the “claim of set-off” and the “affidavit of merits” filed October 13th, yet justification in so doing may be found in that the counterclaim did not grow out of the subject-matter of the cause of action, and because the defendant, having taken leave to file an amended affidavit of merits, must be held to have abided by the action of the court in striking his previous affidavits from the files. If it was stricken from the files for insufficiency defendant would be bound in the same way as is the party who fails to stand by his demurrer at common law (Bennett v. Union Cent. Life Ins. Co., 203 Ill. 439); for a motion to strike from the files for insufficiency an affidavit, which answers the purpose of a pleading, performs the office of a demurrer at common law.

We are forced to- observe that the record is rendered more or less obscure and confusing by the indefinite use of the terms employed in the Municipal Court to designate what answer for pleadings, and by the absence of a showing in the record of grounds for the court’s action, thus necessitating much needless labor in examining the record. Several of these affidavits could properly have been stricken from the files both for impertinence and setting forth evidentiary facts. They were in a form that tends to defeat the contemplated purpose of simplified procedure, and that casts an unnecessary burden on a court of review. In cases of the fourth class neither the act nor the rules adopted thereunder, as we understand them, require more than that the substantial or chief facts necessary to show either a legal cause of action or a legal defense, and the nature of it, need be stated. They do not contemplate pleading evidentiary facts. Nearly fifty pages of this record are devoted to a futile attempt apparently to bring to an issue the charge of maliciously converting plaintiff’s property to defendant’s own use; and frequently upon grounds not manifest and left to surmise, several unduly long affidavits were stricken from the files, and at last judgment was entered as by default.

Upon a careful review of the record, however, we are constrained to hold, that whether or not the last affidavit of merits was properly stricken from the files, plaintiff is in no position to complain, having taken leave to, and failed to file another; that the counterclaim did not relate to the subject-matter of the cause of action, and was properly stricken from the files; that judgment by default was, therefore, properly entered; and that the proceedings relating to the trial before the jury were not preserved in the form required by the statute for the consideration of errors assigned thereon. The judgment will, therefore, be affirmed.

Affirmed.


text:
    P. McDonnell, Defendant in Error, v. Fitzpatrick Brothers, Plaintiff in Error.
    Gen. No. 17,457.
    Municipal court—conformity of pleadings and proof. Under rule 17 of the Municipal Court defendant is confined to defenses specifically set out in affidavit of merits, and in an action for veterinary services evidence of malpractice is not admissible where the defense set forth is breach of warranty.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 3, 1912.
    Quin O’Brien and O. A. Arnston, for plaintiff in error,
    Edward J. Hennessy and John F. Bosen, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

This case was tried before the court upon a statement of claim for money due for veterinary services and medicines furnished by plaintiff for certain horses belonging to defendant, and an affidavit of defense which stated‘in substance that defendant permitted the plaintiff to render such services and administer such medicines only because of his representations that such medicines would cure said horses and render them immune from disease for a certain period, and were guaranteed so to do; that such representations were false, and the horses were not cured nor so rendered immune, but took sick and died as a result of the use of the medicines which plaintiff knew or should have known were dangerous. The court found for the plaintiff on these issues, and gave judgment for $200.

Under Bule 17 of the Municipal Court, the defendant was confined to such defenses as were specifically set out in its affidavit of merits. The legal defense such affidavit attempts to set forth is that of a breach of warranty and not malpractice. Taking this view, the court properly ruled that evidence merely tending to show malpractice was irrelevant to the issues formed. But there is little ground for the complaint made of such rulings. While evidence of that character was at times excluded, mostly on cross-examination of plaintiff’s witnesses, the defendant was given full latitude in introducing evidence relating to the character of treatment, the nature of medicines, their probable effect, the condition of the horses, and most that was previously rejected as proof of malpractice. It is unnecessary to review each ruling in detail. The evidence considered and excluded would hardly have warranted a different finding. We have thoroughly examined the whole record and while the court’s rulings were to some extent contradictory we are of the opinion that the judgment is not contrary to the law and the evidence, and did not result from substantial errors affecting the matters at issue between the parties. Par. 7, sec. 23, Municipal Court Act.

The judgment is affirmed.

Affirmed.


text:
    Robert M. Mackie, Appellee, v. Webster Manufacturing Company, Appellant.
    Gen. No. 17,527.
    1. Master and servant—assumed risTc. A servant, by continuing at work at a ladle of molten metal after he knew that an incompetent workman had been ordered to place cold metal in it, does not assume the risk where the circumstances required close attention to his work to prevent the metal from spilling and injuring himself and others.

      2. Master and servant—assumed risTc. A servant does not assume the risk of the master’s negligence.
    3. Master and servant—fellou>servant rule not involved. If the negligence charged and proved is that of the master, the fellow-servant rule is not involved.
    4. Instructions—when referring jury to declaration proper. An instruction in an action for personal injuries is proper, though it refers the jury to the negligence as charged in the declaration, where the declaration avers facts showing that plaintiff cannot be held to have assumed the risk and negatives such assumption hy an averment of the exercise of ordinary care with reference to the alleged negligence.
    5. Master and servant—instructions. Where it is alleged the defendant negligently ordered an incompetent workman to perform an act and that the injury complained of was caused by the incompetent performance thereof, the words, “temporary peril” in an instruction which authorizes recovery under certain circumstances if plaintiff was exposed to a “temporary peril” and if such exposure was negligence, refer to the act complained of and are not misleading.
    6. Instructions—assumption of fact alleged. An instruction is not objectionable which assumes a fact as to which there is no controversy.
    7. Master and servant—instructions. An instruction is not reversible error which may be open to the construction that the jury may find from the evidence alone that the person whose alleged negligence caused the injuries was a fellow-servant, etc., where other instructions stated that the jury must look to the instructions for the law and that they should regard them as a series, and where the facts of the case did not involve the fellow-servant rule.
    8. Evidence—admissibility. Where, in an action for injuries received when scrap iron was dropped into a ladle of molten metal, there is no controversy as to such act, it is not error to permit testimony as to the proper method of putting iron into a ladle.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Mazzini Slusser, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 12, 1912.
    Rehearing denied December 10, 1912.
    John A. Bloomingston, for appellant.
    Fred H. Atwood, Frank B. Pease and Charles O. Loucks, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

The judgment appealed from is for the loss of an eye by appellee while in appellant’s employ. Under the direction of the foreman another employee threw or dropped some cold metal, called sprues, into a ladle of molten metal at which appellee was at work, thereby causing a splash and a spark or piece of metal therefrom to fly into appellee’s eye. The gist of the first two counts of the declaration is that the foreman negligently ordered an inexperienced man to do the act, and that of the third count is that defendant negligently did the act by an inexperienced man without first inserting the end of the cold metal into the molten metal and then allowing it to slip into it.

As stated in the language of appellant’s counsel:

“It frequently becomes necessary in the pouring of metal to cool it slightly in order to give it the proper consistency for pouring into the molds and the method of doing the cooling is twofold: one method is to place some scrap iron in the bottom of the empty ladle before it is poured into it; and the other is to take pieces, of iron and slide them over the side of the ladle when it is full of molten iron. There is danger in this latter method because if the cold iron is dropped into the molten iron, it may splash and bum those nearby.”

The first point relied upon for reversal is that the evidence does not support the verdict in that there is no proof that the employee, Kroll, who was given the order and performed the act was inexperienced in doing such work, or that the defendant knew or should have known such fact. The evidence relating to Kroll’s experience was conflicting and somewhat uncertain, but it raised a question of fact for determination by the jury. The trial was some four years after the accident. Kroll testified that he then had been working for defendant seven years; that at the time of the accident he had been working there about four years; that he received his instructions how to do the work from the foreman Anderson about three years after he went to work there. It appears that he was a man of a low degree of intelligence; that although he had been in the country ten years at the time of the trial, he was unable to speak the English language; that the instructions he received consisted merely of the foreman doing the acts and telling him in English “to do it like that.” It does not appear that he was told or knew the danger incident to doing the act improperly, and two or three others who worked nearby him said they had never seen him do it at all. It is evident that either from inexperience or gross carelessness, he performed the act improperly at the time of the accident, and, taking all the evidence together, relating to the time he first did that kind of work, if at all, which according to appellant’s witnesses was not long before the time of the accident, it was a question of fact for the jury to determine whether or not he was an experienced man, and whether or not it was not negligence to order him as an inexperienced man to perform the act in question. Special interrogatories relating to this question were submitted to the jury at the instance of appellant’s counsel and answered adversely to bis contention. We cannot say upon the entire evidence that the question of fact was not properly submitted to the jury, and that their finding was not in accordance with the preponderance of the evidence.

If it was a question of fact for the jury to determine whether Kroll was inexperienced and whether there was negligence in giving him the order or selecting him for such duty, and if the finding of the jury in the affirmative was supported by the evidence, then the questions of whether appellee assumed the risk and whether the act was negligence of a fellow-servant, are largely eliminated from the case.

As to assumed risk, it is contended that appellee continued in his work with knowledge of Kroll’s incompetency. He testified that he heard the order given to Kroll to throw the scrap into the ladle and knew he was not the regular man to do it, but that he did not pay particular attention to him because the ladle was being raised out of the pit to be swung by a crane to the molds, and by reason of some portions of the crane being outuf perpendicular and the ladle not being clear of the pit, he and his partner had to hold it in a certain position which required his attention. He had never spoken to Kroll and had never seen him do the work before. His knowledge of his inexperience or incompetency was apparently altogether negative. However, under the circumstances which required close attention to his own work lest the metal spill out and injure himself or others, we think he was excused in not leaving his position, even had he known of Kroll’s inexperience. Upon a similar state of facts, the court, in Fraser & Chalmers v. Schroeder, 163 Ill. 459, said that the rule that an employee cannot recover where he has knowledge of the incompetency of another, but continues in the service until he is injured through such incompetency, did not apply where the plaintiff had no reason to expect that the incompetent employee would be ordered to perform the duty until the moment he was told to do so and it was impossible for him then to abandon his post, even though he had known of such employee’s want of skill. Except upon the claim of appellee’s knowledge of Kroll’s incompetency, the question of assumed risk does not arise in this ease, the negligence charged being that of the master, acting through the foreman; for the doctrine is well established that the servant does not assume the risk of the master’s own negligence. City of La Salle v. Kostka, 190 Ill. 130; Chicago & G. T. R. Co. v. Spurney, 197 Ill. 471; Pullman Palace Car Co. v. Laack, 143 Ill. 242; John S. Metcalf Co. v. Nystedt, 203 Ill. 333.

What we have already said disposes of the question of negligence by a fellow-servant, for, if the jury found that the negligence was that of the master, as charged in the declaration, then the question of whether plaintiff was injured by the negligence of a fellow-servant does not arise. The fellow-servant rule is not involved where the negligence charged and proven is that of the master. Leonard v. Kinnare, 174 Ill. 532; Cal Hirsch & Sons Iron & Rail Co. v. Coleman, 227 Ill. 149.

It is urged that there was eliminated from certain instructions directing a verdict the question of assumed risk. One instruction told the jury that if they believed from the evidence that the defendant has been guilty of the negligence “charged in the declaration,” and that such negligence caused the injury to the plaintiff, ‘ complained of in the declaration, ’ ’ and that plaintiff was in the exercise of ordinary care, etc., they should find defendant guilty. Another instruction told the jury that if they believed from the evidence that plaintiff was injured by a temporary peril and was exposed to the same by the foreman of the defendant, and that the exposure to such temporary peril was negligence on the part of the defendant as charged in the declaration, and that he was in the exercise of ordinary care, etc., then they should find defendant guilty. This form of instruction in thus referring to the declaration has been frequently criticised; but it has been upheld in cases where there were averments in the declaration which could be construed to negative the assumption of risk by the plaintiff. Such is the case of James S. Kirk & Co. v. Jajko, 224 Ill. 338, and also the case of City of La Salle v. Kostka, supra. In the Kirk case the declaration charged that the defendant ordered the plaintiff to perform work in a negligent and dangerous manner without furnishing him sufficient help; but it also averred ignorance of the danger and that the plaintiff was acting under defendant’s order, and the court held that these averments clearly negatived the assumption of risk by the plaintiff. In the Kostka case, supra, where it was contended that the instruction ignored whether the plaintiff knew the condition of the ditch in which he was injured, it was held that the allegations of due care on his part negatived negligence and, by implication, that he had knowledge of the defects by reason of which he was injured. A similar instruction was complained of in North Chicago St. R. Co. v. Aufmann, 221 Ill. 614, where the declaration charged that plaintiff was acting under immediate direction of the defendant who negligently ordered plaintiff to perform the work by reason of which he was injured, and it was there held that a servant performing dangerous work under the master’s orders does not assume the risk of the danger incident to the work unless the danger is so imminent that no man in the exercise of ordinary care engaged in the work would attempt it, and the instruction was held, in view of these averments, to have been properly given. Upon the same reason we think it may be said that the averments in the declaration in the case at bar are of a state of facts in which an employee would not be held to assume the risk, and that the averment of the exercise of ordinary care for plaintiff’s safety with reference .to. the alleged negligent order, negatived the assumption of risk.

The latter instruction is also complained of because it uses the words, “temporary peril.” That such words clearly refer to the particular act complained of in the declaration, can hardly be questioned and the use of them was not misleading or injurious.

Another instruction is complained of as assuming as a fact that the scrap iron was thrown into the ladle. There was really no conflict of fact upon that point. The testimony as to how the act was performed was all one way, and not disputed. Kroll said he did not know how it was put in on that day. It is also urged that the same instruction is erroneous in that it said if the jury believed from the evidence alone that the person who threw the scrap iron into the ladle was a fellow-servant, etc., and thus told the jury they might ignore the instructions upon fellow-servants. It is not analogous to an instruction leaving out a necessary element of the case. Other instructions were given, telling the jury that they must look solely to the instructions for the law of the case, and find their verdict accordingly, and that they should regard and treat them as one connected body and series. In view of these instructions and that the state of facts in the case are not such as involve the fellow-servant rule, we think there was ho reversible error in giving the instruction. We have examined the other instructions complained of, and find no error in giving them.

It is also complained that there was error in permitting witnesses to answer questions as to whether they knew the proper method of putting scrap iron into a ladle full of molten iron. The answers were not injurious. They simply served to show the usual and safe way of performing the act about which there is no controversy. ■

Finding no reversible error in the case, the judgment will be affirmed.

Affirmed.


text:
    Louis E. Randall, Defendant in Error, v. Hannah Randall, Plaintiff in Error.
    Gen. No. 17,559.
    1. Divorce—what finding sufficient to sustain. A finding in a divorce decree “that subsequently to their inter-marriage the said defendant has committed adultery as charged” is sufficient to sustain it, since the word “adultery” expresses the ultimate fact that was charged and necessary to find.
    2. Divorce—burden of proof. In a suit for divorce the burden of proving condonation rests on defendant unless it appears from complainant’s evidence.
    3. Decrees—findings. It is unnecessary in order to sustain a decree that it contain a. finding on a question not put in issue.
    Divorce. Error to the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed December 3, 1912.
    Alexander H. Heyman and Frank R. Cain, for plaintiff in error.
    Caswell & Healy, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

The assignments of error question the validity of a decree of divorce granted on the ground of adultery. It is contended that the finding in the decree, “that subsequently to their intermarriage the said defendant has committed adultery as charged,” etc., is not a finding of a specific fact, but the statement of a conclusion, and we are cited to the Ohman case, 233 Ill. 632, and the Trenchard case, 245 Ill. 313, as authority. Neither case supports the contention. In each of them, as in the case at bar, the evidence was heard by the court and not preserved in the record, and whether the decree could be sustained depended upon whether the finding of fact therein was sufficient to support it, it being elementary that to support a decree in chancery, the facts justifying it must be preserved in the record in some form. The finding of the decree in the Ohman case, supra, was “that the allegations in said bill contained are true, as therein stated.” Manifestly it was a mere conclusion or inference from evidence not preserved, and was not a finding of specific facts, as was therein held. In the Trenchard case, supra, the finding in the decree was “that the defendant has been guilty of extreme and repeated cruelty, as charged in the complainant’s bill of complaint.” The court said that the bill itself did not state a case of extreme and repeated cruelty within the meaning of the statute, and held that such recital in the decree was wholly insufficient as a finding of facts under the allegations of that bill. It further said that no facts were recited in the decree from which the character of the acts complained of as extreme and repeated cruelty could be determined. But here the decree finds an ultimate fact.

The word “adultery” has a definite meaning, and in itself expresses the ultimate fact that was charged and necessary to find. A general finding of an ultimate fact in a decree is sufficient, and it is not necessary to find minutely all the circumstances tending to sustain the general finding. Koch v. Arnold, 242 Ill. 208.

The complainant alleged in his bill of complaint that he ceased to cohabit with his wife at a certain date, but did not during the time of cohabitation know of the commission of the offenses charged against her. It is contended that it was essential that the decree find as a fact that he did not condone such offenses. That fact was not put in issue as contended. Issue was taken only as to the time they ceased to cohabit, and not on the question as to his knowledge of such offenses. Knowledge would not be presumed from the mere fact of cohabitation so as to require a denial of it. The burden of proving condonation, unless it appeared from complainant’s evidence, rested upon defendant. Hence in the absence of an issue on that question, a finding thereon was unnecessary to sustain the decree, and it will be affirmed.

Affirmed.


text:
    George M. Poe, Defendant in Error, v. Solomon Pevsner, Plaintiff in Error.
    Gen. No. 17,579.
    Parent and child—liability of parent for goods obtained by child. Where a son obtains rings from a dealer, a postal card message sent to the dealer by the father that he had sold the rings and would make it good, establishes the father’s liability, irrespective of a question of the agency of the son in procuring them.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the October, term, 1911.
    Affirmed.
    Opinion filed December 3, 1912.
    Shulman & Shulman, for plaintiff in error; E. N. Zoline, of counsel.
    John K. PrindvhjLE, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

In this case plaintiff recovered a judgment against defendant for the value of two rings delivered to the latter’s son. The sole question argued is that the evidence does not establish the agency of the son to procure them. Inasmuch as it appears from the record that the defendant, a few days after the rings were obtained, sent a postal card to the plaintiff saying, “Tour two rings I sold to Charlie Hertenstein for $350, * * * an'd I will make it good,” he is in no position to claim that he did not authorize his son to get them. This evidence not having been denied it alone justified the court’s finding of liability, and, therefore, the question of agency becomes academic and need not be considered.

The judgment is affirmed.

Affirmed.


text:
    In the Matter of the Petition of Michael J. Roughan, on Appeal of Charles H. Allen, Appellant, v. Michael J. Roughan, Appellee.
    Gen. No. 17,595.

      Execution—when court not issuing capias ad satisfaciendum cannot discharge from arrest. Where a defendant is arrested on a capias ad satisfaciendum issued by the Municipal Court of Chicago on a judgment recovered in such court in an action for which malice is the gist, the County Court of Cook County has no power to discharge defendant from arrest or imprisonment, or jurisdiction to determine, whether the capias was properly issued.
    Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed.
    Opinion filed December 3, 1912.
    William T. Dickermau, for appellant.
    No appearance for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

This was an application for discharge under the insolvency law of the state. Appellee was arrested on a capias ad satisfaciendum issued on a judgment recovered in the Municipal Court of Chicago in an action for malicious and unlawful conversion of money. The record of the case in the Municipal Court, showing that there was an express finding of malice in the verdict on which the judgment was rendered, and the record of the issuance of a writ of error and denial of a writ of supersedeas by this court, were both received in evidence; and while the court expressly found that malice was the gist of the action, it discharged the petitioner from custody upon the ground that such capias could not properly be sued out until after the determination of said writ of error, nor until respondent had exhausted his remedy-upon the bond filed in said cause.

The County Court had no power to release appellee from arrest of imprisonment when it appeared that malice was the gist of the action in which he was so held .(First Nat. Bank of Flora v. Burkett, 101 Ill. 391; in re Murphy, 109 Ill. 31), and, of course, it had no jurisdiction to determine whether the capias was properly issued by the Municipal Court. The proper place and manner of testing that question was in the Municipal Court upon a motion to quash.

The order releasing the petitioner will, therefore, be reversed, and the case is remanded with directions to vacate the order and dismiss the petition.

Reversed and remanded with directions.


author: Mr. Presiding Justice Clark

text:
    Chapman & Smith Company, Appellee, v. Crown Novelty Company, Appellant.
    Gen. No. 17,449.
    1. Appeals and errors—when objection sufficiently complies with rules of court. Where a rule of the Municipal Court of Chicago requires that objections to oral instructions shall be specific, an exception “to the third part of said instructions and to that portion of said instructions concerning attorney’s fees and the set-off,” will bring such questions up for review although the court is unable to determine what is meant by the “third part of said instructions.”
    2. Municipal courts—rules liberally construed. A rule of the Municipal Court of Chicago requiring that objections to oral instructions shall be specific and be made immediately upon the conclusion of the charge and before the jury retires should be given a liberal construction.
    3. Landlord and tenant-j-when instruction on right to recover attorneys’ fees is proper. Where a lease provides that a lessee shall be liable for the lessor’s attorneys’ fees and expense in enforcing the covenants and agreements of the lease, in a suit to recover such fees and for other liabilities, an instruction that if the jury believe that covenants had been broken and that in order to enforce them the plaintiff was obliged to and did employ an attorney and incur expense, then such reasonable costs and attorneys’ fees as the jury believed had been incurred prior to the commencement of the suit might be recovered, is proper where there was evidence that such services were rendered and expense incurred and that a certain amount would be reasonable for attorneys’ fees.
    4. Landlord and tenant—when landlord not liable for flooding. Where a lease provides that the lessor shall not be liable for damage occasioned by leakage, in an action for rent and other liabilities, the defendant cannot recoup for a loss sustained by a flooding of a building where there is no evidence that it was occasioned by the negligence of the lessor.
    5. Landlord and tenant—evidence inadmissible where a lessee seehs to recoup for flooding. Where a lease provides that the lessor shall not be liable for damage occasioned by leakage and the lessee seeks, in an action for rent, to recoup for a loss sustained by flooding, in the absence of proof of negligence by the lessor, it is proper to refuse to permit a witness to answer whether he had “made a list of or was there any” of his goods injured.
    Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed December 3, 1912.
    Rehearing denied December 17, 1912.
    Brown & Navtgato, for appellant; Seymour N. Cohen, of counsel.
    Charles S. Craves, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Chapman & Smith Company, as plaintiff, brought suit against the Crown Novelty Company, as defendant, in the Municipal Court of Chicago upon two leases of space in a manufacturing building in the city of Chicago. The leases provided that the plaintiff furnish steam power to the defendant aggregating 18 horsepower, the payment for this power being included in the monthly rental. The leases further provided that if additional power was required it should be furnished by the plaintiff and paid for by the defendant at the rate of $5.00 per horsepower per month. The leases also contained provisions that if the plaintiff should install an automatic sprinkler system in the building, the defendant would pay to plaintiff two-thirds of the amount saved on its fire insurance premiums. It appears that the sprinkler system was installed.

The claim of the plaintiff, as shown in the statement of claim, was for $1,599, made up of items for the additional steam power (less credit for cash paid on same, $60), $345; $1,000 under the provision with reference to additional rent on account of the installation of the sprinkler system; an item of $200 for attorney’s fees for enforcing’ the covenants and agreements of the leases and prosecuting the suit, and an item of $54 based upon a claim that the defendant had not complied with the provision of the leases by obeying the rules and regulations of the Chicago Board of Underwriters, in that it did not remove certain stock and hangings from the ceiling of the premises and in close proximity to the sprinkler system, which caused, as plaintiff alleges, an increase in plaintiff’s insurance to the amount of $54. There was a trial before the court and a jury, a verdict of $1,000 being rendered. Upon the hearing of the motion for a new trial the court required a remittitur of $158.04, and, upon this being entered, gave judgment in the sum of $841.96, from which judgment this appeal has been perfected.

The assignments of error call in question the charge, the action of the court in admitting and refusing to admit, testimony, and the verdict of the jury as being against the weight of the evidence.

Rule 8 of the Municipal Court requires that objections to the giving or refusing of oral instructions to the jury be specific and be made immediately upon the conclusion of the charge and before the jury retires. The bill of exceptions contains the charge of the court, and immediately thereafter appears the following language: “To the third part of said instructions and to that portion of said instructions concerning attorney’s fees and to the portion of said instructions regarding the set-off of the defendant the defendant by its counsel then and there duly excepted.” We are unable to determine what is meant by “the third part of said instructions.” We do not think that the rule should be narrowly construed, and, therefore, treat the exception to the. portion of the charge regarding attorney’s fees and the portion regarding the set-off of the defendant as properly bringing the questions before us for review.

The court instructed the jury that if they believed from the evidence that the defendant had not kept or performed all the covenants and agreements of the leases, and that in order to enforce the covenants and agreements the plaintiff was obliged to and did employ an attorney and incurred expense in and about enforcing the conditions and covenants of said leases, then the plaintiff was entitled to recover from the defendant such reasonable costs and attorney’s fees and expense as the jury believed from the evidence the plaintiff had incurred prior to the time of the commencement of the suit. There was testimony tending to show that such services were rendered and that expense was incurred, and that $100 would be reasonable for attorney’s fees. We think the charge in this respect was as favorable to the defendant as it could expect in view of the provisions of the leases.

As to the recoupment, the record shows that in its affidavit of defense the defendant set forth in much detail certain damages that it claimed to have sustained by reason of the alleged negligence of the plaintiff, which resulted in the flooding of the building with water in May and June, 1910, the total amount of set-off being stated in the affidavit of defense to be $936.61. The court instructed the jury that by the terms of the leases “it was provided that the plaintiff should not be liable for any damage done or occasioned by leakage, or running of any cistern, tank, wash-stand or drain pipe in or about the premises,” and that therefore the defendant could not have a set-off against the plaintiff “in any sum or sums alleged to have been sustained or suffered by reason of the alleged bursting or leaking or running of any tank, wash-stand or any damage occasioned by water upon or about said building or premises.” Counsel for defendant say in the brief that if the overflow in question occurred through accident or through the act of any third party, the clause in the leases referred to would protect the landlord from liability, but they contend “that where the overflow is the result of the deliberate negligence of the landlord, that said clause is no defense and a recovery can be had for such damages as may be shown.” Counsel do not refer to any testimony tending to show negligence on the part of the plaintiff.

Our attention has been called to a question asked of one of the witnesses for the defendant, as follows: “Now, Mr. Silverman, on the 31st day of May did you make any list of or was there any of your goods injured in any way?” The court refused to allow the question to be answered. As no proof of negligence on the part of the plaintiff had been offered, the ruling was proper.

A large part of the brief is devoted to a discussion of the question of additional rent, based upon the “excess horsepower,” and as to what is a proper construction of the leases with reference thereto. The court was not asked by either of the parties to construe the leases in the charge to the jury. The testimony as to the amount of additional horsepower is conflicting. The same observations may be made as to the question of the amount of additional rent allowed, based upon the saving in insurance premiums by reason of the installation of the sprinkler system. It was a matter within the province of the jury to determine as to what amount should be allowed on each of these two items.

The verdict was much less than the amount claimed by the plaintiff. The court required a remittitur, and after a careful examination of the record we are unable to say that the defendant was not accorded its full rights. The judgment will therefore be affirmed.

Affirmed.


text:
    Harvey F. Fetzer, Defendant in Error, v. Noel Construction Company and Armored Concrete Construction Company, Plaintiffs in Error.
    Gen. No. 17,546.
    1. Master and servant—when company working for general contractor is not an independent contractor. Where the general contractor for a building contracts to pay a concrete construction company a certain per cent, for superintending the work to be performed under the contract, and additional compensation if the cost of the labor, material, etc., is less than a certain amount, such company is the agent or servant of the contractor and not an independent contractor.
    2. Master and servant—duty owing 6y contractor to servants of other contractors. A contractor whose servants are engaged upon work about which the servants of another contractor are also engaged owes the duty of ordinary care in prosecuting his work in such a way as not negligently to injure the servants of the other.

      Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Arthur DeSelm, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 3, 1912.
    H. L. Howard, for plaintiffs in error.
    Joseph R. Fahy and Steere, Williams & Steere, for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

In this case, which was one for the recovery of damages for personal injury, there was a trial before the court without a jury and a finding and judgment of $500 against both defendants. It is argued that the judgment as against the Noel Company should be reversed because the person charged with the negligent act was an employee of the Armored Company. With respect to the judgment as against the Armored Company it is argued that the damage alleged in the statement of claim was not shown, and that Armored Company was not shown by competent evidence to be guilty of actionable negligence.

The contract between the Armored Company and the Noel Company was introduced in evidence, and we think a fair construction of it to be that the Armored Company was to act as superintendent for the Noel Company. The compensation to be paid, as shown by the contract, was 10% “for the superintending of the work to be performed hereunder.” There was also to be paid as additional compensation if the cost of the labor, material, etc., proved to be less than $125,000, such additional compensation being an amount equal to. 25% of the saving.

A workman, who at the time of the accident was apparently in the employ of the Armored Company, placed a plank across the iron beams in shaft No. 11, which was done in order to enable a laborer to proceed with certain work being done in that shaft. The evidence tends to show that this plank was allowed to extend into shaft No. 10. As to whether or not notice was given to the defendant in error is a matter of dispute.

The defendant in error was employed upon what was known as car No. 10, putting cams on it. Finding it necessary to go to the first floor to get a cap-screw, he, with other employees of the Otis Elevator Company, started in the car to go down. The car struck the end of the plank, which the defendant in error testified was projecting into shaft No. 10 two or three inches. He further testified that he had gone up in the elevator past the tenth floor, where the accident happened, about five minutes previously. It was apparently during these five minutes that the plank was placed in its position in shaft No. 11.

As to the relation existing between the Noel Company and the Armored Company, the case is not unlike Chicago Economic Fuel-Gas Co. v. Myers, 168 Ill. 139, and Linquist v. Hodges, 248 Ill. 491. We think that the evidence fairly tended to prove that the relation of independent contractor did not exist, but rather that the Armored Company was the agent or servant of the Noel Company. Under these circumstances the Noel Company would be liable for the negligence of a servant of the Armored Company. It would seem that the defendant in error was an employee of the Otis Elevator Company, and was assisting in installing the elevators in the building then in course of erection by the Noel Company, which was the general contractor, the building being the City Hall in the city of Chicago. The law is well settled that a contractor whose servants are engaged upon work about which the servants of another contractor are also engaged, owes the duty of ordinary care in prosecuting his work in such a way as not negligently to injure the servants of the other. Variety Mfg. Co. v. Landaker, 227 Ill. 22, affirming 129 Ill. App. 630.

After a careful reading of the record we are unable to say that the finding was manifestly against the weight of the evidence. The judgment will therefore be affirmed.

¡Affirmed.


text:
    Charles Gassmann, Plaintiff in Error, v. John Hetzel, Defendant in Error.
    Gen. No. 17,569.
    1. Limitations—statement of a new cause of action. Where the original declaration in one count charged that while plaintiff had his hand under a screw of a sausage machine defendant’s foreman negligently started the machinery, thus causing the injury, and in a second count, filed after the period of limitations, the negligence charged was in starting the machine while plaintiff was in the position as stated in the first count, alleging as the cause of starting that defendant had permitted machine to be operated while the forks of the belt shifter were out of repair, a new cause of action is not stated and the statute of limitations is no defense.
    2. Limitations—statement of new cause of action. Where the original declaration in one count charged that while plaintiff had his hand under a screw of a sausage machine defendant’s foreman negligently started the machinery, thus causing the injury, and in the second count, filed after the period of limitations, the negligence charged was that a negligent order was given by the foreman of the defendant to the plaintiff, a new cause of action is stated to which the statute of limitations is a good defense.
    Action in case for personal injuries. Error to the Circuit Gourt of Cook county; the Hon. Thomas G. Winces, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed December 3, 1912.
    R. Wilson More and Fred B. Hovey, for plaintiff in error.
    Lackner, Butz & Miller, for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

The writ of error in this case brings up for review a judgment entered in the Circuit Court of Cook county in favor of the defendant in error upon a verdict directed by the court.

The plaintiff was injured in the sausage factory of the defendant. The original declaration, which was in one count, filed May 6, 1.904, charged that while the plaintiff had his hand under the worm or screw of a sausage machine, the defendant’s foreman negligently and carelessly started the machinery, thus causing the injury. On October 26, 1909, after a partial hearing of the case before a jury, on motion of the plaintiff the jury was discharged and the plaintiff allowed to amend his declaration. Thereupon three additional counts were filed. To the first of these a demurrer was sustained, and that count is not before us for consideration. In the second additional count the negligence charged was in starting the machine while the plaintiff was in the position as stated in the first count, the cause of the starting being alleged to be that the defendant had permitted the machine to be operated while the forks of the belt shifter were out of repair, and this condition of affairs was known to the defendant but not to the plaintiff. The third additional count charges that a negligent order was given by the foreman to' the plaintiff. To these two additional counts the defendant pleaded the general issue and the statute of limitations. On March 15, 1910, a demurrer theretofore filed by the plaintiff to the plea of the statute of limitations was sustained. Thereafter, on October 3, 1910, the second trial was begun. At the opening of the case the defendant moved the court to set aside the order sustaining the demurrer of the plaintiff to the defendant’s plea of the statute of limitations to the second and third additional counts and that the demurrer be overruled. After the testimony had been taken an order was entered as prayed and the case was submitted to the jury upon the original declaration only. Thereafter the jury was discharged because of their inability to agree upon a verdict. Four days later by consent of the parties the case was reopened, the jury recalled and the court instructed the jury to find a verdict of not guilty, which was done and judgment entered.

The first question argued in the case is as to whether or not the second and third additional counts to the declaration stated a new cause of action. In our opinion the second additional count does not set out a new cause of action, because it is predicated upon the same negligence as the original declaration, that is, the negligent starting of the machine (Lee v. Republic Iron & Steel Co., 241 Ill. 372, and cases cited), and proceeds to allege that this was at a time when the forks and guides were out of repair and in such condition as to permit the belts to shift from the loose to the tight pulley. The third additional count, on the other hand, presents a new and different cause of action, namely, in charging that a negligent order was' given by the foreman of the defendant to plaintiff; and therefore the plea of the statute of limitations was an answer, and as to that count was not demurrable. Counsel for the parties agree that if the case of Swift & Co. v. Foster, 163 Ill. 50, is the law, the third count of the declaration should also be allowed to stand. This decision, however, was rendered by a divided court, and seems to have been disregarded, if not disaffirmed in many cases. Chicago & A. R. Co. v. Scanlan, 170 Ill. 106; Illinois Cent. R. Co. v. Campbell, 170 Ill. 163; Chicago City R. Co. v. Leach, 182 Ill. 359; Wabash R. Co. v. Bhymer, 214 Ill. 579; Gillmore v. City of Chicago, 224 Ill. 490.

As to the second contention of the defendant, namely, that no cause of action was made by the plaintiff upon any one of the counts of the declaration, it is sufficient to say that we have carefully examined the record, and are of the opinion that the case should have been submitted to the jury under proper instructions.

The judgment will be reversed and the cause remanded. f

Reversed and remanded.


text:
    Ernest J. Magerstadt for use of A. J. McMahon, Plaintiff in Error, v. The First National Bank of Chicago and the Fidelity & Deposit Company of Maryland, Defendant in Error.
    Gen. No. 17,577.

      Corporations—authority to execute mortgage. In an action upon a replevin bond, where defendant in mitigation of damages as permitted under the statute introduces in evidence a chattel mortgage by which he claims ownership to the property, having received from the mortgagor, a corporation, at the time the mortgage was executed, a certificate that the president was duly authorized to execute it, there being no disaffirmance, it cannot be contended that the mortgage is void.
    Error to the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 3, 1912.
    Myer S. Emrich, for plaintiff in error.
    Orville Peckham and Edward Eagle Brown, for defendants in error; John Nash Ott, of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

In this case judgment was entered in favor of the plaintiff in error and against the defendant in error, in debt, the suit being upon a bond given in replevin and the judgment being for $4,000 and damages assessed at one cent. It appears that judgment had been recovered against the Wragg Teaming Company by the City of Chicago for rent. Execution was issued on the judgment and certain property sold by the officer to A. J. McMahon, the usee of the plaintiff in error, for the sum of $250. Included in the sale to McMahon was certain property claimed by the First National Bank of Chicago to be covered by a chattel mortgage given "by the Wragg Teaming* Company to it to secure the payment of a note for $2,000. Thereupon a suit in replevin was brought by the bank against McMahon for the property so claimed. This suit was not tried on its merits, but was dismissed on motion of the defendant’s attorney for want of prosecution. Thereupon the suit with which we are now concerned was brought. There was a trial before the court without a jury.

The defendant, in mitigation of damages, as permitted under the statute, introduced in evidence the chattel mortgage heretofore referred to and claimed ownership of the property covered thereby. The trial court reached the conclusion that the mortgage was a valid subsisting lien, and made a finding and gave judgment as heretofore stated.

We are asked to reverse the judgment on the ground that the chattel mortgage upon which the bank bases its defense was void. This contention it is claimed finds support in the fact that Mrs. Wragg, who was the owner of most of the capital stock of the company and who was a director of the company, was not present at the meeting of the directors authorizing the giving of the mortgage and received no notice of the holding of the meeting. Mrs. Wragg testified that the officers of the company consisted of her husband, who was the president, herself, vice-president, and her son William, secretary, and that so far as she knew the three composed the board of directors, that she herself did not participate in any of the active business of the company. Plaintiff further offered to prove by her that she had made diligent search for the books of record or minutes of the corporation but had been unable to find them, and that she believed the books of record had been placed in an iron safe of the company and sold to someone, whose name she did not know. The court did not allow the proof to be adduced. The record further shows that prior to the making of the chattel mortgage the bank was furnished with a certificate signed by the secretary of the company, with the seal of the company attached, in which it was recited that at a meeting of the board held on April 5, 1900, the president was authorized to make the note of the company for $2,000, payable six months after date to the order of the bank, with interest at six per cent., to execute a mortgage upon the chattel property of the company to secure the note, and to pledge the note to the bank as security for indebtedness with the bank then existing or thereafter created, etc. The mortgage, which was introduced in evidence, appears to have been executed in due form, properly acknowledged and recorded. The record further shows that at the time the sale of the property was had on the execution upon the rent judgment the Wragg Company was indebted to the bank; that demand was made upon McMahon for the property after the latter obtained possession of it, and that the suit in replevin was then brought. It further shows that the indebtedness secured by the mortgage was created in the usual course of business; that the mortgagee having allowed the judgment for rent to be taken against it and the property sold on execution issued upon that judgment, the mortgagee was authorized by the insecurity clause of the mortgage to declare the whole amount due and to foreclose the same, and that the mortgagee had dealt in good faith with the mortgagor.

In the case of Ashley Wire Co. v. Illinois Steel Co., 164 Ill. 149, the court had before it a case involving the foreclosure of a mortgage, and it was there held that the defense that a meeting of the directors of a corporation at which a mortgage of its property was made was held under an irregular notice and at an unauthorized place is not available in a suit to foreclose the mortgage, where no action has been taken in disaffirmance of the proceedings at the meeting or in repudiation of the note or mortgage, and that irregularities in the meeting of a corporation at which a mortgage is executed do not affect the mortgagee dealing in good faith with the company, but such mortgagee has the right to assume that the provisions of the bylaws have been complied with.

In our opinion the bank was in position at the time the sale was made to McMahon to foreclose its chattel mortgage, and the Wragg Company had no defense which could properly have been interposed in such foreclosure proceedings. Certainly McMahon is in no better position in this suit than would be the Wragg Company in a suit of foreclosure. The chattel mort°gage having been properly executed and properly recorded, he had full legal notice of its existence at the time he made his purchase, and the purchase so made by him was subject to the lien thereby created.

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

Affirmed.


text:
    John D. Hayes, Plaintiff in Error, v. Arthur H. Page and Miles S. Macon, partners as The Page Manufacturing Company, Defendants in Error.
    Gen. No. 17,605.
    1. Municipal courts—sufficiency of statement. Neither the Municipal Court Act nor the rules of court require more than that a simple statement of plaintiff’s right of action be made, and it is not required that evidentiary facts be pleaded.
    2. Municipal courts—statement of claim of fraud. A statement of claim in the Municipal Court of Chicago, setting out in detail that plaintiff by contract was given exclusive sale rights in a certain territory of a device to be attached to cash registers, that he advanced a certain sum on the purchase of a number of the machines upon the false and fraudulent representation that the device would fit all cash registers, when in fact it would fit but a few, whereby plaintiff was unable to sell machines which were delivered to him, that the defendant agreed to a rescission of the contract, but would not return the money although the return of the machines was offered, is sufficient, and if the suit had been brought in another court of record, the amount would be recoverable under the money counts of a common-law declaration.
    3. Actions—what facts constitute a cause of action. Facts constituting a cause of action are those facts which the evidence upon the trial will prove, and not the evidence which will be required to prove the existence of such facts.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed December 3, 1912.
    Thomas J. Young, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

The one question of law involved is certified in the “statement of facts” to he: “Does the More Specific Statement of Claim upon its face, state such a case as would be’ sufficient in law to enable the plaintiff to recover from the defendants 1 Which question of law was decided by the court adversely to the plaintiff.” The statement of claim is as follows:

“John D. Hayes, being first duly sworn, on oath states that he is the plaintiff in the above entitled cause; that his claim is for the sum of $475, cash advanced to the defendants by the plaintiff, on or about the 20th day of December, A. D. 1910, in pursuance of the terms of a written contract entered into between the plaintiff and defendants on the same day, in and by the terms of which contract the plaintiff was given the exclusive right and privilege to sell and handle a certain device called The Page Trade Increaser to be attached and operated upon and in connection with Cash Eegisters, said exclusive right and privilege to embrace all the territory known as the County of Cook in the State of Illinois and to be for a period of 60 days from the date of said contract; and also in and by the terms of said contract the plaintiff was to advance to the defendants the sum of $500 to be applied as a part payment upon 200 of said machines or devices at the rate of $Í2.50 each, said machines to be purchased within a period of 30 days; that in and by the terms of said contract the party of the first part warranted and guaranteed said machines to be in perfect working order and to remain so for a period of one year; that the plaintiff was led and induced to sign said contract and to advance said snm of $500 by certain false and fraud' ulent representations made by the defendant Arthur H. Page, to the plaintiff, before the execution of said contract, to the effect that the said machines would fit and operate upon and work in connection with all Cash Registers in use in the city of Chicago and county of Cook, with the exception of Cash Registers worked by electricity, and could be attached and operated upon such- Cash Registers without mutilation or injury to the Cash Register; which representation was false and fraudulently made by said defendant to the plaintiff, whereby the plaintiff was led and induced to sign said contract and did advance said sum of $500; that defendants afterwards delivered to the plaintiff 30 of said devices, and that the plaintiff tried to sell the same in the territory granted to him in and by the terms of said contract; but that plaintiff was unable to sell said devices for the reason, that said devices would not fit and operate upon Cash Registers as represented by the said defendant Page, but would only fit and operate upon one certain type of Cash Registers, which type of Cash Registers represents a very small and insignificant percentage of the Cash Registers in use in the City of Chicago and County of Cook, to-wit: about ten per cent., and because of said defective working order of said device the plaintiff was unable to successfully place and sell said devices upon the market in the territory granted him; that the plaintiff was only able to sell two of said machines, and did sell two of said machines to owners of the last named type of Cash Registers, leaving 28 of said machines on the hands of the plaintiff, which devices, because of the fact that they would not fit and operate upon the Cash Registers in general use in said territory, could not be sold or disposed of by the plaintiff, without great loss to himself; that because of said false representations and other false representations on the part of said defendant, whereby the plaintiff was so misled to enter into said contract, and because of the violation by the defendant of his said contract wherein the defendant warranted and guaranteed the said device to be in perfect working order, the plaintiff, on, to-wit, the 25th day of January notified the defendant, Arthur H. Page, one of the partners of The Page Manufacturing Company, that he intended to and would then rescind said contract, and the said Arthur H. Page then and there agreed to the same, and the said plaintiff then and there demanded of the said defendant the return of the money paid by the plaintiff on said contract less the sum of $25 being the price of the said two machines sold by the plaintiff, and offered to return to the defendants all the remaining devices or machines then remaining unsold on the plaintiff’s hands; and thereafter, to-wit, on the 10th day of February, A. D. 1911, this plaintiff caused to he served upon the defendants, Arthur H. Page and Miles S. Macon, a written notice or demand, wherein the plaintiff demanded of the defendants the sum of $475 and offered to return to the defendants all machines then on his hands unsold, which demand and offer was refused by the defendants; and the plaintiff is now and will at all times hereafter be ready and willing to return said machines to the defendants and hereby tenders the same to the defendants in this court.”

This statement of facts was stricken from the files and the suit dismissed at plaintiff’s cost.

We think the question as to the sufficiency of the statement should he answered in the affirmative. We agree with the plaintiff in error that if the suit had been brought in one of the other courts of record of the slate the amount would be recoverable under the money counts of a common law declaration. In the case of First Nat. Bank of Springfield v. Gatton, 172 Ill. 625, it was held that assumpsit for money had and received may be maintained whenever the defendant has obtained money belonging to the plaintiff which in equity and good conscience he has no right to retain, as in such case the law implies a promise to pay. If the more specific statement is to be criticised in any way, it is that it contains more than is necessary rather than less.

The purpose of the Municipal Court Act, so far as practice and procedure are concerned, is to simplify them and not to make them more complex. Neither the statute nor the rules of court require more than that a simple statement of plaintiff’s right of action be made. It is not necessary that evidentiary facts be pleaded, as too frequently appears, to have been required in cases that have come before us. Pacts constituting a cause of action are those facts which the evidence upon the trial will prove, and not the evidence which will be required to prove the existence of such facts. Bouvier’s Law Dictionary 749.

The judgment of the Municipal Court is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice F. A. Smith

text:
    Florence E. Lillis, Defendant in Error, v. The King Richardson Company, Plaintiff in Error.
    Gen. No. 17,567.
    Master and servant—when wrongfully discharged employee not estopped from proving employment. An employee was summoned without previous notice or warning into the private office of her employer and in the presence of four or five men asked whether she worked by the week and what was due her. She replied that she was paid by the week and that a certain sum was due her, and was paid the amount due, signing a receipt in full payment of all claims to date. As she was passing out of the door she was discharged without warning and without cause. Held, in an action for wrongful discharge, that a failure to assert the contract of employment at the time of discharge did not estop plaintiff from proving her employment.

      Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 3, 1912.
    Boyle, Mott & Haight, for plaintiff in error.
    Alder, Latham & Young, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The defendant in error, plaintiff below, brought her action in the Municipal Court of Chicago against plaintiff in error, The King Richardson Company, for damages for wrongful discharge from the employment of the defendant below. The only question presented by the record is,—did the facts as they appear in .the record and the law authorize the finding and judgment?

The only point argued in the briefs bearing upon this question is that the plaintiff below was precluded from proving her employment by the plaintiff in error, defendant below, because she did not assert her contract when she was discharged.

In our opinion, there is no question of estoppel involved in the case. The defendant in error was not bound to state to the plaintiff in error, when she was wrongfully discharged, her contract with the plaintiff in error under the circumstances under which she was discharged. She was not asked to state it and did not assume to state what the plaintiff in error was supposed to know as fully as the defendant in error; that is, they were chargeable with the knowledge of the existing contract between the parties as fully and as completely as the defendant in error. They summoned the defendant in error, without previous notice, discussion or warning, into the private office of the plaintiff in error, and, in the presence of four or five gentlemen, asked her whether she worked by the week and how much was due her; to this she answered that she was paid by the week and that $20 was due. Thereupon the salary due was paid her, and she signed a receipt in full payment of all claims to date. Thereupon, without warning and without cause, she was told, as she was passing out of the door of the room, that her services were no longer required. Under such circumstances, the contention that there is an estoppel in pais is without merit.

Upon a review of the evidence, we are of the opinion that the facts and the law justified the finding and judgment. The judgment is affirmed.

Affirmed.


text:
    Charles Hunner, Plaintiff in Error, v. Evening American Publishing Company, Defendant in Error.
    Gen. No. 17,573.
    1. Libel and slander—ordinary construction, should be given article. In interpreting the language of an article to determine whether or not it is libelous, no different construction should be placed upon it than men of ordinary affairs would give it.
    2. Libel and slander—article need not technically charge crime. It is not necessary that an article or publication shall technically charge a crime if the language used induces readers reasonably to believe that a crime or wrong has been committed.
    3. Libel and slander—when publication charges adultery. Where a newspaper publishes an article regarding the divorces in an “auto set” in a city, and falsely states that plaintiff was divorced by his wife, who named women in her bill, the publication charges adultery and is libelous per se.

    4. Libel and slander—effect of publication charging adultery. When a publication charges adultery it is libelous per se, and no colloquium, inducement, or innuendo is necessary.
    Action for libel. Error to the Superior Court of Cook county; the Hon. William H. McStjrely, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed December 3, 1912.

      Johnson & Belasco and Alschuler, Putnam & James, for plaintiff in error.
    Roy D. Keehn, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The question presented by this writ of error is whether the court erred in sustaining the plea of the statute of limitations to the third amended declaration filed by the plaintiff in error.

Plaintiff in error, Charles Hunner, brought an action for libel against defendant' in error, based upon an article published on the 15th day of June, 1909, in defendant’s newspaper of general circulation in the city of Chicago, and State of Illinois. The original declaration was filed on December 4, 1909, and contained two counts. The first count, after alleging plaintiff’s business, and that he was in good standing in the community, proceeds as follows:

“And the plaintiff avers as a statement of extrinsic facts bearing upon the grievances hereinafter mentioned and complained of that on, to-wit, the 8th day of June, 1908, he caused to be filed in the City Court of Aurora in said state a certain bill for divorce against his then wife, one Marjorie Hunner, in and by which said bill for divorce, he charged the said Marjorie Hunner with being guilty of desertion for more than two years, and that afterwards, on the 11th day of June, 1908, the said defendant filed her answer to said bill in said court, denying said charges of desertion and that therein on the 11th day of June, 1908, the said case coming on to be heard upon the said bill of complaint and the answer thereto and upon the testimony of witnesses heard in open court, the court entered its decree in said case finding the issues therein for the complainant, who is plaintiff herein, and ordering the marriage theretofore existing between this plaintiff and his said former wife, dissolved;” etc.

The count then alleges that the defendant well knowing the premises, but wickedly and maliciously intending to injure the plaintiff and to bring him into public scandal and disgrace, published the following malicious and defamatory matter:

“Aurora Auto Set Decrees Bring Wedding.

“Mrs. Margaret Hunner, former wife of Charles (meaning plaintiff), a wealthy lumber merchant, became the bride of W. H. Holmes, vice president of the Fox River Butter Company,, to-day. The bride and bridegroom belong to the exclusive society set of Aurora.

“This wedding is the last of the series in Aurora which has caused much gossip in the last two years. There has been several divorces and remarriages in the younger set as the result of romantic automobile rides.

“The Holmes wedding took place at the home of Charles Shearman, 6422 Normal Avenue. The ceremony was performed by Rev. Henry Hepburn of the Buena Park Presbyterian Church.

“Mrs. Hunner (meaning the former wife of plaintiff) was divorced two years ago, naming women in her bill (meaning to charge that said Mrs. Hunner filed a bill and secured a divorce from the plaintiff, her bill charging plaintiff with being guilty of adultery.)

“At about the same time as the Hunner divorce Mrs. Holmes, a society member, obtained a divorce, making similar charges. She later married W. F. Ferris, who a few months before was divorced by the daughter of W. D. Simpson, a wealthy Aurora manufacturer and politician. Mrs. Ferris charged Ferris was too friendly with other women. Mrs. Ferris also was married soon after the divorce.

“The latest bridal couple departed for the east on their honeymoon.”

The second count differs from the first in omitting the innuendo, the charge being, “Mrs. Hunner (meaning the former wife of plaintiff) was divorced two years ago, naming women in her bill.”

To this declaration a general and special demurrer was interposed and overruled, but subsequently the demurrer was sustained.

On October 6, 1910, an amendment was filed intended to correct the declaration in accordance with the rulings of the court on demurrer, and a demurrer was sustained to the declaration as amended.

On November 22, 1910, a second amended declaration was filed to which a general and special demurrer was sustained. Finally, on June 3, 1911, a third amended declaration was filed. The gist of the innuendo in the original and third amended declarations is the same,—that it was meant to charge in the declaration that Mr. Hunner, during his married life with Mrs. Margaret Hunner, was guilty of adultery. The record shows that all of the amendments to the original declaration were filed subsequent to the time of the running of the statute of limitations. To the third amended declaration the defendant filed the general issue and a plea of the statute of limitations. This plea, upon demurrer, was sustained by the court, and the court entered a judgment in accordance with that conclusion.

It is conceded to be the law that if the first declaration states a cause of action and an amendment thereto states the same cause of action, the statute of limitations will not be a bar to the amendment. Bahr v. National Safe Deposit Co., 234 Ill. 101; Chicago City R. Co. v. Hackendahl, 188 Ill. 300; North Chicago St. R. Co. v. Aufmann, 221 Ill. 614. If then the original declaration stated a good cause of action as set forth in the amendment thereto, the court erred in overruling the demurrer to the plea of the statute of limitations.

In interpreting the language of an article to determine whether or not it is libelous, no different construction should he placed upon it than men of ordinary affairs would give it. It is not necessary that an article or publication shall technically charge a crime. If the language used induces readers reasonably to believe that a crime or wrong has been committed, the article is libelous. People v. Fuller, 238 Ill. 116; Ransom v. McCurley, 140 Ill. 626; Schmisseur v. Kreilich, 92 Ill. 347.

Beading the article set out in the original declaration thus construed, we think the article charges the plaintiff in error, Charles Hunner, with adultery. When a publication charges adultery it is libelous per se, and no colloquium, inducement or innuendo are necessary. Spencer v. McMasters, 16 Ill. 404; Jacksonville Journal Co. v. Beymer, 42 Ill. App. 443; Elam v. Badger, 23 Ill. 445. As to the purpose and office of the innuendo and the inducement or colloquium see McLaughlin v. Fisher, 136 Ill. 111.

In our opinion, under the foregoing authorities, both counts of the original declaration were good. We think the libel was actionable per se as it charged the plaintiff with adultery. The allegation is that it was published by the defendant of and concerning the plaintiff, and that it was false. All the facts necessary to allege were set forth in the. original declaration. In our opinion, the court erred in overruling the demurrer to the plea of the statute of limitations, and the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Louis Szappanos, Defendant in Error, v. W. P. Nelson Company, Plaintiff in Error.
    Gen. No. 17,584.
    1. Master and servant—when painter standing on open box cannot recover. A painter working on a ladder scaffold could not reach quite high enough and obtained from the foreman a so-called box or cleat formed by nailing three pieces of board together leaving one side open, which was not to be used to stand upon. The foreman learning plaintiff was to so use it cautioned him against such use and said that he would furpish something else, as did his working partner, but he stood on it and it separated and he fell. Held, the foreman was in the exercise .of reasonable care for plaintiff’s safety and a judgment for plaintiff would not be sustained.

      2. Master and servant—when painter standing on open 60s assumes rish. Where a painter working on a ladder scaffold stands on a so-called box or cleat, a simple contrivance formed by nailing three pieces of board together leaving one side open, and the box separates and he falls, he assumes the risk, the accident falling within the rule of the cases involving the use of simple tools.
    Error to the Municipal Court of Chicago; the Hon. John R. Cavebly, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed with finding of fact.
    Opinion filed December 3, 1912.
    F. J. Canty and J. C. M. Clow, for plaintiff in error.
    Stedman & Soelke, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Defendant in error, Szappanos, brought an action for personal injuries against plaintiff in error in the Municipal Court of Chicago. While working for plaintiff in error, the defendant in error fell from a scaffold to the floor below, a distance of from ten to twelve feet, and sprained his ankle.

The evidence shows that defendant in error was one of a gang of painters in the employ of the plaintiff in error, doing a painting job on a building. These painters were working under the supervision of Foreman McCabe. At the time of the accident the workmen were- on the top floor of the building, painting the sashes of the skylight. The men worked in pairs —two men on a scaffold. The scaffold is called a “ladder scaffold;” that is, it was made by supporting boards on the rungs of ladders, and the workmen stood on the boards. At the time of the accident, one end of the scaffold was supported by resting on an iron or steel beam which formed a part of the building. As a means of adjusting the height of the scaffold, when the beams of the building were utilized, the foreman made certain boxes’ or cleats as the witnesses called them, which, at the proper point in the progress of the work, the men would put over the steel beams and in this way adjust the scaffold to a higher point. The cross section of the steel beam resembled the letter “ T ” inverted; that is, the flange or flat side was placed downward, leaving the middle stem projecting upward. The so-called box or cleat was formed by nailing three pieces of boards together, leaving one side open. These when in use were placed over the steel beam so that the boards, nailed at right angles, would slip over the steel beam, one of the boards or pieces, extending down each side of the beam; that is, the cleat or box would straddle the stem of the beam, and the sides of the box or cleat would rest on the flanges of the beam. Upon the cleat so placed the boards of the scaffold were placed.

Defendant in error and his partner, who was working with him on the same scaffold, were engaged in painting the sash of a skylight, beginning at the bottom. When the work had progressed to a certain point, the defendant in error discovered that he could not quite reach the top of the sash of the skylight, standing on the scaffold as it was then placed. He asked the foreman, McCabe, to hand bim one of the boxes or cleats which was lying on the floor nearby. McCabe handed him the box or cleat, and when he did so he asked the defendant in error what he was going to do with it, and defendant in error replied, “I am going to stand on it.” The foreman said, “Wait now, don’t do that, and I will make you one or hand you something else.” Anderson, the defendant in error’s partner, and called as a witness by defendant in error, also cautioned him against standing upon the cleat or box before he was injured. The cleat or box was placed by the defendant in error on the plank scaffold, and while standing on it the sides spread and the defendant in error fell from the scaffold and was injured.

In our opinion the evidence shows that the plaintiff in error was in the exercise of reasonable care for the defendant in error’s safety. Defendant in error was cautioned against using the appliance to stand upon both by the foreman when the cleat or box was handed to him, and afterwards by Anderson, his partner ; but the defendant in error gave no heed or attention to the advice of either the workman or the foreman. The testimony of McCabe and Anderson is in substantial agreement., Defendant in error denies in his testimony that McCabe, the foreman, told him not to use the cleat or box to stand upon. He does not, however, deny the testimony of Anderson either to the effect that the foreman told him not to use the cleat or box or that he, Anderson, cautioned him against using it. We think the evidence fails to show any negligence on the part of the plaintiff in error.

In our opinion, the defendant in error assumed the risk of the injury which he sustained. The box or cleat which he was using was a simple and crude contrivance, designed to be used for another purpose, and its construction was obvious to the defendant in error at a glance. The case falls within the rule of the cases involving the use of simple tools. Kistner v. American Steel Foundries, 233 Ill. 35; Webster Mfg. Co. v. Nisbett, 205 Ill. 273; International Packing Co. v. Kretowicz, 119 Ill. App. 488.

We are clearly of the opinion that upon the facts shown in the record the law did not warrant a recovery in the case. The judgment is reversed with a finding of fact.

Reversed with finding of fact.