author: Mr. Justice Adams

text:
    Valette R. Rockhill, Defendant in Error, v. Congress Hotel Company, Plaintiff in Error.
    Gen. No. 13,897.
    1. Innkeepers—'-when liability arises under section 2 of act. If a safe is provided by an innkeeper (the existence of the safe was assumed for the purpose of this decision) which is not availed of by the guest for the depositing of jewelry, a liability none the less arises for the loss of such jewelry if the same results (as was held in this case) from the negligence of an employe or servant.
    2. Innkeepers—when liability for loss of jeivelry arises. An innkeeper is liable for the loss of jewelry contained in a valise which is delivered to a porter upon the eve of the departure of the guest, which porter has been sent by th“ clerk, at the request of the guest, to receive such baggage.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed June 11, 1908.
    Statement by the Court. It is sought by this writ of error to procure the reversal of a judgment recovered by defendant in error against plaintiff in error for the sum of $585 and costs of suit. The cause was tried by the court, without a jury, on a stipulation of facts by the parties. The facts are as follows: The defendant, the Congress Hotel Company, is an Illinois corporation, its purpose being the conducting of-a hotel. For more than a year prior to April 8, 1907, it had been conducting a hotel, known as the Auditorium Annex, in the city of Chicago. April 8,1907, Mrs. Yalette B. Bockhill, the plaintiff, whose residence was in Fort Wayne in the State of Indiana, came to Chicago, and she, her husband, her mother, her sister and another lady, all from Fort Wayne, and forming one party, became guests at the Auditorium Annex, and rooms were assigned to them. Plaintiff and her husband occupied one room in a suite. On the morning of April 10,1907, plaintiff’s husband left the hotel. April 11, 1907, plaintiff and her party desired to return to their home in Fort Wayne. The party had with them at the hotel two trunks, two hand-bags, a dress suit case and a wooden box. One of the hand-bags belonged to the plaintiff and was of the value of $20, and she had packed in it one silver hand mirror, of the value of $12; one jewel case of the value of $6; one Peridot cross of the value of $45; one locket and chain of the value of $23; two rings of the value of $90 each, one of them being set with three turquoises and surrounded by diamonds, and the other with three opals, surrounded by diamonds; one fresh water pearl ring with matrix of the value of $15, and another fresh water pearl ring of the value of $10; one barette for hair, being of tortoise shell, with gold and pearls, of the value of $17; one etched silver eye-glass case of the value of $18; one pair of eye-glasses of the value of $10; one gold coin purse of the value of $6, which contained $7 in money; one necklace set with brilliants and lapis lazuli, of the value of $15; qne gold brooch, with small diamonds and rubies, of the value of $35; one brooch of lotus flower in gold, with diamonds in center, of the value of $35; one manicure set of the value of $4; one silver button-hook of the value of $2, and a string of coral beads of the value of $125, making a total value of $585.
    Plaintiff then notified a clerk of the defendant that she intended to leave the hotel that day, and to send to her room for her baggage, and she remained in her room till a porter of defendant came for the baggage, which was about nine o ’clock in the morning, and she then told the porter to take out the two trunks, the dress suit case, the wooden box and the two hand-bags, all of which were taken out of the room by the defendant’s porter, in plaintiff’s presence; and plaintiff requested the porter to take the checks for the same to the head porter’s desk, and said that she would go there and get them. Subsequently the plaintiff and two others of her party went to the head porter’s desk for the checks, and the plaintiff was given one check less than the number of pieces of baggage which she had delivered to the porter in her room, and she requested the head porter to give her the other check, and was informed by him that those were the only checks he had. Plaintiff then inspected the several pieces of baggage and found that her own valise, which contained the above mentioned property, was missing, and after considerable search for it, the porter stated that there was a bag missing, and plaintiff, on going to the clerk at the desk of the hotel, was told that diligent search would |>e made for it, and that when found it would be forwarded to her at Fort Wayne, Indiana. Plaintiff has not seen the valise, or any of its contents, since it was delivered to the hotel porter at her room on the morning of April 11,1907. On plaintiff’s return home, April 11, 1907, she informed her husband, Mr. Howell C. Rockhill, of her loss, and he telephoned to the defendant, inquiring whether the lost piece of baggage had been located, and was told that it had not, and April 13, 1907, the defendant telephoned to him that it was exhausting every effort to locate the grip, and would write him soon, since which time Mr. Rock-hill has received no communication from the defendant. Plaintiff made demand on defendant to be reimbursed for her loss, and the demand was refused. The stipulation contains the following:
    “It is further stipulated that The Congress Hotel Company, at the time of the alleged loss of plaintiff’s property, as mentioned in the stipulation herein, had complied fully with all the laws of the State of Illinois, regarding the posting of notices under the so-called ‘Inn-Keepers Act’ of said State of Illinois, and it is further stipulated, that the plaintiff herein at no time gave said hotel company, directly or indirectly, any notice whatsoever that the bag or traveling satchel mentioned in the stipulation herein contained any of the articles shown by said stipulation, and gave to said hotel company no notice, ■ directly or indirectly, of the contents or value of said bag, as set forth in said stipulation. ’ ’
    The defendant demurred to the evidence and the court overruled the demurrer, and thereupon defendant moved the court to render judgment for $66 against the defendant, the same being the value of certain of the articles above mentioned, which motion the court refused, and the court, after passing on certain propositions tendered as propositions of law, found for the plaintiff, assessed her damages at $585, overruled a motion for a new trial and rendered judgment on the finding.
    Goodrich, Vincent & Bradley, for plaintiff in error; Joseph M. Griffen, of counsel.
    W. S. Oppenheim, for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.

Counsel for plaintiff in error rely on the act of 1861, entitled “An Act for the protection of inn-keepers,” which is as follows:

‘ ‘ Sec. 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That hereafter every landlord or keeper of a public inn or hotel in this state, who shall constantly have in his inn or hotel an iron safe, in good order, and suitable for the safe custody of money, jewelry and other valuable articles, belonging to his guests or customers, shall keep posted up conspicuously, in the office, also at the inside of every entrance door of every public, sleeping, bar, reading, sitting and parlor room of his inn or hotel, notices to his guests and customers that they must leave their money, jewelry or other valuables with the landlord, his agent or clerk, for safe keeping, that he may make safe deposit of the same in the place provided for that purpose.

“Sec. 2. That such landlord, hotel or inn keeper as shall comply with the requirements of the first section of this act, shall not be liable for any money, jewelry, or other valuables, of gold, silver or rare and precious stones, that may be lost, if the same is not delivered to said landlord, hotel or inn keeper, his agent or clerk, for deposit, unless such loss shall occur by the hand or through the negligence of the landlord, or by a clerk or servant employed by him in such hotel or inn: Provided, that nothing herein contained shall apply to such amount of money and valuables as is usual, common and prudent for any such guest to retain in his róom or about his person.’’ Hurd’s Rev. Stats. 1905, p. 1154.

It may be noted here that it does not appear from the stipulation of facts, or otherwise, that the plaintiff in error had in its hotel any iron safe, as provided in section 1 of the act. However, no question as to this is raised by counsel for defendant in error, and we will, therefore, consider the case on the presumption that plaintiff in error had such safe in its hotel. Counsel for plaintiff in error comment on this language in section 2 of the act,—“unless such loss shall occur by the hand or through the negligence of the landlord, or by a clerk or servant employed by him in such hotel or inn”—and say: “It can hardly be contended that it was intended by this section that the guest could entrust his jewelry and valuables to any and all employes, from bootblack or porter up, without notice to anyone in authority, with the expectation and right of holding the unknowing inn-keeper absolutely responsible for the safety of all such property. ’ ’ This language is inapplicable to the facts of the present case. If the defendant in error had deposited the articles in question in the hotel company’s safe, kept for that and like purposes, she certainly would have had the right, and it would have been necessary to withdraw them from the safe and pack them in her valise or bag on the day she intended leaving the hotel. She did pack them, in her valise or bag on the morning of that day, and did not deliver the package in which they were to anyone, “without notice to anyone in authority.” On the contrary, she sent word to the clerk of the hotel “that she intended to leave the hotel that day, and to send up to her room for the baggage,” and a porter was sent up accordingly, and she delivered the baggage to the porter who was sent up for it, and the baggage was lost, whether while in the hands of the porter to whom she delivered it, by the implied authority of plaintiff in error, or at the head porter’s office, does not appear. The loss was, clearly, as we think, within the exception to the innkeeper’s non-liability in section 2 of the act, commencing with the word “unless.” It could not have occurred otherwise than by the negligence of the porter to whom it was delivered by defendant in error, and who was sent to take it out of the room of the defendant in error, or by the negligence of the head porter; and the clerk, the porter to whom defendant in error delivered the baggage, and the head porter were all servants of plaintiff in error.

“An inn or hotel keeper is a guarantor for the good conduct of his household, including those engaged in his service.” Johnson v. Richardson, 17 Ill. 302, 305; Cunningham v. Bucky, 42 W. Va. 671.

Negligence cannot be predicated on the act of defendant in error in delivering the baggage to the hotel company’s servant, sent by the hotel company’s clerk to receive it.

In Bendetson v. French, 46 N. Y. 266, French was the proprietor of a hotel in New York city, in which Bendetson was a guest from October 4th till and including October 8, 1861. On the morning of October 8th he presented to the clerk at the hotel office a box sixteen inches long, ten inches wide and about seven inches high, wrapped in oil cloth and tied with a cord, which contained watches, jewelry and other valuables, and requested the clerk to place the box in the safe for valuables, without notifying the clerk of its contents, when the clerk told him to take the box to his room, saying it would be just as safe there. The plaintiff took the box to his room and put it in his trunk, which he locked, locked the room, gave the key of the room to the clerk, and left the hotel. He returned to the hotel at one o’clock p. m., went to his room, packed his trunk, in which the box then was and safe, and locked the door of his room and gave the key of the room to the clerk, telling him that he intended to leave for Syracuse, where he lived, on the first train. He then left the hotel, but returned in a short time and paid his bill and inquired for his trunk, and on being told that it had not been brought down, he went with a porter to his room for his trunk, and found that the room had been entered, the trunk broken open and the watches and jewelry stolen. The court held that there was a neglect to deposit, the clerk not having been notified of the contents of the box, but said: ‘‘ The statute is very broad in its language, that ‘if such guest shall neglect to deposit, etc., the proprietor shall not be liable for any loss of such money, etc., sustained by such guest, by theft or otherwise.’ This was evidently aimed at losses that should occur by such neglect. It could have no reference to losses at the inn occurring before the guest had the opportunity to make such deposit, or after he had packed his trunk, locked his room, and given notice for immediate departure, etc., delivered up the key of his room to the clerk, to have his trunk brought down. (Stanton v. Leland, 4 E. D. Smith 88.) Had the valuables been in the custody of the clerk in the safe, they must have been delivered to the guest to be packed prior to his departure, and if lost thereafter without the fault of the guest, the landlord would be liable.” Judgment rendered by the trial court for the plaintiff was affirmed. It does not appear from the opinion that the New York statute contained an exception to the innkeeper’s non-liability, as does our statute. The contrary is indicated by the opinion.

In Labold v. Southern Hotel Co., 54 Mo. App. 567, it is held that the hotel company was liable to a guest for the loss of an overcoat which the guest had left in the coat room, in charge of a servant of the company, when he went into the dining room. See, also, Williams v. Moore, 69 Ill. App. 618. We have examined the authorities cited by counsel for plaintiff in error, and do not think them applicable to the facts in this case.

The judgment will be affirmed.

!'Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Charles Krueger, Plaintiff in Error, v. The People of the State of Illinois, Defendant in Error.
    Gen. No. 13,915.
    1. Words and phrases—when “have” equivalent of “had”. Held, that the word “have” used in an indictment returned under the gambling statute was, from the context, the equivalent of “had”.
    2. Pleading—when defect in form of indictment must he availed of. A mere technical or clerical error pertaining to a matter of form must be availed of by motion to quash.
    Proceeding by information. Error to the Municipal Court of Chicago; the Hon. E. K. Walker, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed June 11, 1908.
    Rehearing denied June .22, 1908.
    Edward H. Morris, for plaintiff in error.
    John J. Heart and F. L. Barnett, for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.

An information was filed in the Municipal Court of Chicago in which it is averred as follows:

11 That Charles Krueger, late of the city of Chicago, heretofore, towit: on the 24th day of July, A. D. 1907, at the city of Chicago aforesaid, unlawfully and knowingly have in his possession for the purpose of gaming a certain writing and paper and document representing and being a record of a chance share and interest, in numbers drawn and to be drawn and which papers, writing and documents aforesaid is commonly called policy and in the nature of a bet, wager and insurance upon the drawing and drawn numbers of a public and private lottery in violation of sections 185A, 185B and 1850 of chapter 38 of the Bevised Statutes of this State of Illinois—contrary to the form of the statute in such case made and provided. ’ ’

The defendant pleaded not guilty. The jury found him guilty, and the court, after overruling motions for a new trial and in arrest of judgment, sentenced the defendant to imprisonment in the House of Correction of the city of Chicago for three months, and to pay a fine of $500 and the costs.

The information is filed under section 2 of “An Act for the prevention of Policy playing,” in force July 1, 1905, Hurd’s Rev. Stat. 1905, p. 709, which section is as follows:

“A person who keeps, occupies or uses, or permits to be kept, occupied or used, a place, building, room, table, establishment or apparatus for policy playing or for the sale of what are commonly called ‘lottery policies,’ or who delivers or receives money or other valuable consideration in playing policy, or in aiding in the playing thereof, or what is commonly called a ‘lottery policy,’ or for any writing, paper or document in the nature of a bet, wager or insurance upon the drawing or drawn numbers of any public or private lottery; or who manages or promotes any ‘lottery policy,’ or the game commonly called ‘policy,’ or who shall have in his possession, knowingly, any writing, paper or document, representing or being a record of any chance, share or interest in numbers sold, drawn or to be drawn, or in what is commonly called ‘policy,’ or in the nature of a bet, wager or insurance, upon the drawing or drawn numbers of any public or private lottery; or any paper, print, writing, numbers, device, policy slip, or article of any kind such as is commonly used in carrying on, promoting or playing the game commonly called ‘policy’; or who is the owner, agent, superintendent, janitor or caretaker of any place, building or room where policy playing or the sale of what are commonly called ‘lottery policies,’ is carried on, with his knowledge, or who aids, assists, or abets in any manner, in any of the offenses, acts or matters herein named, shall upon conviction for the first offense be confined in the county jail for not more than one year, or be fined not less than two hundred dollars nor more than one thousand dollars, or both; and upon conviction for the second offense be imprisoned in the penitentiary not less than one year nor more than two years.”

Counsel for defendant objects that the word had should have been used in the information, instead of the word “have,” next after the word “knowingly,” or else that the word did should have been used next after the words “Chicago aforesaid,” and that the information as drafted is fatally defective. The use of the word “have” instead of had is clearly a mere clerical error, and it is evident that past time was intended by the pleader, because the information was filed July 25th, and the time averred under a videlicet is July 24th. We regard the objection as purely technical, which could have been taken advantage of, if at all, by motion to quash, which motion the defendant did not make, but pleaded not guilty and went to trial on the merits. It is now too late to make the objection. Sectil n 9 of Division 11 of the Criminal Code provides: “All exceptions which go merely to the form of an indictment shall be made before trial, and no motion in arrest of judgment shall be sustained, for any matter not affecting the real merits of the offense charged in the indictment.” Hurd’s Rev. Stat. 1905, p. 743. See, also, Curtis v. The People, Breese 256; Brennan v. The People, 110 Ill. 535.

It is further contended that the information is d.efective in substance, in omitting the word sold next after the words “interest in numbers,” so that the reading would be, “interest in numbers sold, drawn and to be drawn.” This objection arises, as we think, from a misconstruction of the statute. The language and punctuation of the statute are: “or who shall have in his possession, knowingly, any writing, paper or document, representing or being a record of any chance, share or interest in numbers sold, drawn or to be drawn, or in what is commonly called policy,” etc. Counsel construes this language as referring exclusively to numbers sold; but we think the section refers not only to numbers sold, but to numbers drawn or to be drawn; that the language is elliptical, and that supplying the understood words, the reading would be, “or who shall have in his possession, knowingly, any writing, paper or document, representing or being a record of any chance, share or interest in numbers sold, or in numbers drawn or to be drawn, or in what is commonly called policy,” etc.

The evidence is that police officers Hardy and Hall went to the defendant’s place, in the city of Chicago, about twelve o’clock noon, July 24, 1907, and found there six persons, the defendant not then being present; that some of the persons present talked about having made a bet that morning; that shortly before one o’clock p. m. the defendant came in and said he was a little late, but everything was all right, and he put his hand in his pocket and drew out certain slips and distributed them to the persons there, other than the officers, when those persons started to leave the place and the officers followed them, arrested them, and took from them the slips which the defendant had given to them. One of each of three kinds of these slips was put in evidence, each slip having numerous numbers on it. Officer Hardy testified that he knew how the game of policy was played, and gave a lengthy explanation of how it is played, and testified that the slips were records of drawings, and it appears from his evidence that a record of the drawings is a necessary part of the game.

We find no error in the giving or refusal of any instruction, or in the record.'

The judgment will be affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    City of Chicago, Appellant, v. William Reid, Jr., Appellee.
    Gen. No. 13,400.
    1. Practice—when newly discovered evidence not ground for new trial. Newly discovered evidence of an impeaching character is not ground for new trial.
    2. Negligence—when sidewalk defectively constructed. It is a question for the jury whether a sidewalk constructed at a distance above the ground is defective and dangerous if unprovided with guard rails. So held in a case where the evidence showed that the particular sidewalk was in constant use by children.
    3. Verdict—when not excessive. A verdict for $2,000 in an action for personal injuries is not excessive where it appears that the plaintiff, a boy of the age of about four years, received as a result of the accident a permanent injury in the nature of a deformity.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in this court at the October term, 1906.
    Affirmed.
    Opinion filed June 11, 1908.
    Statement by the Court. This is an appeal by the City of Chicago from a judgment of the Superior Court against it and in favor of the plaintiff; William Beid, Jr., for $2,000, entered July 19, 1906. The judgment was entered on the verdict of a jury in an action on the case for a personal injury through the negligence of the defendant.
    The declaration originally consisted of two counts, to which, however, two other counts were added by amendment.

      When the first two counts were filed certain persons doing business as Agnew & Co. were co-defendants with the City of Chicago. The suit was discontinued against them before the two additional counts were filed.
    The first count charges that these contractors, Agnew & Co., on October 6, 1901, were engaged in setting certain foundations for the structure of the Metropolitan Elevated Railroad, and for a station thereof, at or near the point where Twenty-first street crosses Kedzie avenue, which streets were public streets under the control of the defendant; that these contractors had placed a plank upon the sidewalk of Kedzie avenue, which sidewalk was in the possession and control of the city; that one end of this plank rested on the ground and the other end upon the sidewalk, extending between six and twelve inches over it; that the city on October 6, 1906, and for a long time prior thereto, knew that the contractors had placed said plank on said sidewalk, and that it had been allowed to remain there for an unreasonable time, or by the exercise cf reasonable care might have known of these things in time to have caused it to be removed; that nevertheless it negligently allowed the plank to remain on the sidewalk, knowing it to be a dangerous obstruction; that in consequence the plaintiff, a child four years old, lawfully passing along said sidewalk with due care and caution for a child of his age, stumbled over the end of said plank which was protruding over said sidewalk, and fell three or four feet to the ground, breaking a leg and suffering other injuries.
    The second count first charges that on the date of the accident the City of Chicago was “maintaining and assuming control” over the sidewalk in question, “which sidewalk aforesaid was at an elevation of from three to four feet above the surface of the ground and had no railing or protection on either side,” in consequence of which it became and was exceedingly dangerous and unsafe for persons passing along and over said walk. It then sets out certain ordinances of the City of Chicago prohibiting obstructions on sidewalks and requiring policemen to endeavor to remove any that may exist, and if not able to do so to report them to the Department of Public Works, which shall remove them.' It then alleges the location of the plank on the sidewalk, the knowledge of the city thereof, the negligence of the city in allowing it to remain there, and the accident of the plaintiff in consequence thereof, substantially as does the first count.
    The first additional or third count of the declaration alleges the control by the city of the sidewalk in question, and that it, at the date of the accident and for a long time prior thereto, negligently maintained the same at an elevation of from three to five feet above the ground, without placing any railing or guard along its edge; that this construction and maintenance were exceedingly dangerous and unsafe, which the City of Chicago knew or should have known; also it alleges that a plank used about the construction of a station for the Metropolitan Elevated Railroad Company had, prior to the date of the accident, been so placed on the sidewalk that the end of the plank projected over the sidewalk about one foot, and that the city negligently, although having notice of this situation, allowed it to remain there; that the plaintiff, as described in the other counts, stumbled over the end of the plank, and “through the negligence of the defendant in permitting said plank to remain upon said sidewalk, and through the negligence of the defendant in failing to erect guards or a railing along the edge of said sidewalk,” the plaintiff fell, etc.
    The second additional or fourth count avers that the described sidewalk was much frequented by the public and by small children passing along and over the same, and that it became and was the duty of the defendant, the City of Chicago, to erect a railing or guard along the side of said walk to prevent the public and especially small children from falling from the same; but that nevertheless the city negligently erected and maintained the sidewalk at an elevation of from three to five feet above the level of the ground, without such guards, which, so constructed and maintained, was exceedingly dangerous; all of which was known to the defendant. The count then describes the accident to the plaintiff as happening from his tripping over the plank which was protruding over the edge of the sidewalk, and charges that “by and through the negligence and carelessness of the defendant, the City of Chicago, in failing to erect a guard or railing along the edge of said sidewalk where the same is elevated above the ground, said plaintiff fell from said sidewalk to the ground, a distance of from three to five feet,” and was injured, etc.
    To all these counts the City of Chicago pleaded the general issue. After the verdict had been rendered, the defendant moved for a new trial, basing the motion partly on an allegation of newly discovered evidence, supported by affidavits of various persons. The motion was denied.
    In this court the appellant has assigned errors, alleging: That the verdict and judgment are contrary to the law and the evidence; that the court erred in not taking the case from the jury by a peremptory instruction in its favor; that the court erred in overruling the motion for a new trial; in entering judgment on- the verdict; in admitting improper evidence for the appellee ; in excluding proper evidence for the appellant; in giving improper instructions asked by the appellee, and in refusing to give proper instructions asked by the appellant; and also in modifying instructions asked by appellant and giving them as modified.
    It also alleges that the damages are excessive, and that the verdict is the result of passion and prejudice.
    Frank D. Ayers, for appellant; Edward C. Fitch and Harry W. Standidge, of counsel.
    McCaskill & Son, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

The decision of this appeal has been delayed much beyond the time at which it would have been made had we not hoped since the submission of the cause and its first consideration by us, for decisive utterances from the Supreme Court on some of the questions discussed by counsel. But the cause pending in the Supreme Court, to which we looked for such help, has been disposed of on a question of jurisdiction without an investigation of its merits or the propositions of law involved in it. We have, therefore, re-investigated the case at bar and reached an unanimous opinion that although in many of its aspects presenting close questions, the judgment should be affirmed.

The contention of the plaintiff in this case is twofold. It is that the city has the duty of keeping its sidewalks free from dangerous obstructions (it being conceded, of course, that this duty is dependent on the knowledge of the obstruction by the city or the opportunity and obligation to acquire such knowledge), and that it has also the duty of constructing and maintaining guard rails on its sidewalks when their edges are so far above the ground that they would be dangerous otherwise. Both these duties, it is said, were neglected.

The first count of the declaration is based on the first contention entirely; the second and third counts upon both. These two counts allege both duties and the concurrent violation of both by the defendant, resulting in the accident. The fourth count is based on the second contention alone.

It is urged by the defendant that the verdict was against the weight of the evidence. This position, however, involves the assumption, to be hereafter noticed, that the fourth count of the declaration did not state a cause of action—in other words, that it was not a question for the jury whether the absence of guard rails made the sidewalk dangerous, and was by itself negligence which was the proximate cause of the accident. On this assumption the counsel for the defendant says: “The question of appellant’s negligence, therefore, hinges on the alleged protrusion of the plank upon the edge of the sidewalk. On this point we think the evidence far short of a preponderance.” He also says: “We submit that even the alleged accident is not established by a preponderance of-the evidence.” The meaning of this last remark is not that the child who is plaintiff here did not break his leg on the afternoon of October 6, 1901, but that it is not satisfactorily proved that he did it by falling off the sidewalk.

It is the theory of the defendant, as we understand it, that the plaintiff’s fall was from the plank mentioned in the declaration, and not from the sidewalk; that instead of stumbling over the plank and in consequence falling off the unguarded elevated sidewalk, he was trying to get on the plank between the sidewalk and the street, while his sister was playing on it, and so fell. Of this it seems sufficient to say that the question how the accident occurred was for the jury, and that the jury were instructed that in order to find for the plaintiff they must believe that “the plaintiff while passing along and over said sidewalk stumbled and fell over a plank sticking up on the side of said walk. ” We see no sufficient reason to reverse or even criticise their finding in this respect.

The only eye-witness of the accident who testified was the boy’s sister, Mary Beid, and she says: “I was walking with my brother from my home. We were just out for a walk. * * * We were walking along and he had hold of my hand; presently he let go and tripped over the board that was extending from the terrace over the sidewalk. He tripped over a plank. The plank was about eighteen inches wide and about two inches thick. It stuck about a foot above the walk. The other end of the Foard was down on the ground. * * * At the time he fell over the board he let go of my hand.

* * * When he fell over the board he fell on the ground.” Cross-examination failed to shake her in this story, but counsel for defendant urge that it produced evidence tending to show that she told a different story to the foreman of the contractors mentioned in the declaration, three or four months after the accident; that she then said that she “was on the plank jumping on it and causing it to spring up and down, and that her little brother, in trying to get on to the plank, slipped and fell over it, and fell into the vacant lot.” This was impeaching, but not conflicting or controverting testimony. Its weight was to be determined by the jury in considering what it was their especial function to consider—the credibility of the witness Mary Eeid. We must suppose they did so.

It seems to be not an inappropriate place here to note that the alleged newly discovered evidence was of the same nature, but of a greatly inferior kind. It was not controverting evidence of anything, but only that Mrs. Eeid, the mother of the plaintiff, had told a man on the day after the accident that her son had fallen from the plank while attempting to walk down the same, and that the injury was his own fault and no one else was to blame for it. As nobody pretends that Mrs. Eeid saw the accident, and she must be presumed to have heard the story of it from the boy and his sister, the evidence, if it could be made under legal rules competent and admissible at all—which would seem impossible—would only tend to discredit the girl’s testimony, not to establish anything else independently. The court committed no error in ignoring this alleged cause for a new trial. .

On the matter, however, of the protrusion of the plank over the edge of "the sidewalk, so as to make a dangerous obstruction, and its having been there a sufficient time to impute knowledge of that obstruction to the city, "there is in a sense a conflict of evidence which leaves it doubtful just how far the board over which the plaintiff is said to have stumbled extended over the sidewalk and how long it had been there and. who put it there. But notwithstanding this, there was evidence enough that the plank was placed there by the contractors for the Metropolitan Elevated Eailroad Company and used by them in the course of their work, and had constituted an obstruction on the sidewalk for a sufficient time to impute notice therefrom to the city, to warrant the jury, if they believed it, in so finding the fact to be. We could not disturb the verdict of the jury, even if it necessarily rested on such a finding as possible or even probable, as it might seem to us that the board in question had been used in play by children in the vicinity and pulled up and down with relation to the sidewalk, at their pleasure.

Again, whether the obstruction, if the jury believed it to have existed, was in itself a dangerous obstruction to one like the plaintiff—too young to be guilty of negligence—was a question for the jury; so that even if we accepted the hypothesis of the defendant’s counsel that the absence of guard rails or other protection on the edge of this elevated sidewalk, and the control and maintenance of it in that condition by the city, could not render the city liable- in this action, we could not see justification for a reversal of this judgment on the weight of the evidence. But, as a matter of fact, we do not and cannot accept that hypothesis, and it certainly was not on that hypothesis that the cause was submitted to the jury by the trial judge in the Superior Court.

The jury were instructed by him, in the first given instruction, that they were to determine whether the defendant was guilty of the negligence charged in any one of the counts of the declaration. The fourth count alleged the negligence to be only the erection and maintenance of a sidewalk much frequented by children and at an elevation of from three to five feet above the level of the ground, without guard rails, so that it was dangerous, and the question whether this was true was left to the jury, and thus they were, in effect, instructed that if they believed from the evidence that it was true, they should find for the plaintiff.

In the second instruction given the alleged stumbling over a plank by the plaintiff was mentioned incidentally as preliminary to the fall, but negligence was not mentioned in connection with the plank. The jury were -told that if they believed that the plaintiff “fell from the sidewalk to the ground by reason of a failure” (of the defendant) “to erect guard rails or protection,” they should find the defendant guilty. The claim of the plaintiff is by this made to rest on the failure to provide protection for the sidewalk, elevated as it was above the ground. That the theory of this instruction was adopted by the court below is in reality, the chief objection of the defendant to the conduct of the trial, and its chief reliance for a reversal of the judgment.

There is no dispute about the height of the sidewalk from the ground. All the witnesses practically place it at from three and one-half to four feet. Nor is it disputed that it had been constructed for a good while and maintained in that condition, nor that many children were in the habit of using it and playing about it.

On this state of facts the following instruction was given to the jury, being the second one hereinbefore alluded to:

“The court instructs the jury that if you believe from the evidence that the sidewalk where the accident is said to have occurred had been erected by the defendant at an elevation of several feet above the surface of the ground without any guard rails or protection of any kind on either side of said walk, and had been maintained in that condition up to the time of the accident in question, and if you believe from the evidence that said sidewalk, by reason thereof, was dangerous and unsafe, and exposed the public to dangers through some mishap or accident which might reasonably be expected to follow as an incident to the use of said sidewalk in such condition; and if you further believe from the evidence that the plaintiff, while passing along and over said sidewalk, stumbled and fell over a plank sticking up on the side of said walk and fell from the sidewalk to the ground, by reason of a failure to erect guard rails or protection, and sustained the injuries alleged in his declaration, then you will find the defendant guilty.”

It is claimed by the appellant that this instruction is bad, and on this claim rests, as we have said, the chief objection to the judgment.

Counsel say that the instruction “is bad because it permits the jury to review the discretion legally vested in the city in deciding to build a sidewalk without guards or railings. It is conceded that the sidewalk was sound and well constructed; the negligence charged is that the city did not include railings in its plan of construction of this piece of sidewalk. It is the alleged defect in the plan of sidewalk adopted, and not the defective execution of the plan, that is charged as negligence.”

Several cases are cited and discussed by appellant in support of the proposition that this was erroneous, because, counsel say: “Where power is conferred upon a municipal corporation to make local improvements, its exercise is gwsi-judicial or discretionary, and for a failure to act or an erroneous estimate of the public needs a civil action cannot be maintained against it.”

• The same cases were cited and discussed by us in Healy v. The City of Chicago, 131 Ill. App. 183, in which, under the criticism of a strong dissent from Mr. Justice Adams, the majority of the court held—repudiating the principle of a previous decision of this court and giving great force to the argument ab inconvenienti—that the jury were only entitled to pass on the liability of a city for an accident resulting from an accepted method of construction of a sidewalk, when as a matter of law the court could say that the accepted method of construction was dangerous.

But this doctrine was applied in that case merely to a want of strictly equal elevation between connecting sidewalks, and was so applied, as we said, because “for various reasons reaching far back into the history of Chicago the sidewalks of Chicago are not all on the same level, even on the same street or on the same side of the street. The city has allowed these sidewalks with slight differences of level between respective lots to remain and has accepted as sufficient well constructed sidewalks adjoining each other but not on a level. ’ ’

We still adhere to the doctrine of the Healy case with reference to the state of facts there disclosed, although in view of the division of the court in that case and the criticism which some of the opinions of other tribunals on which it is largely based have received from our Supreme Court (City of Chicago v. Seben, 165 Ill. 371), we regret that the Supreme Court did not have the opportunity to review the same. But in the Seben case (supra) the Supreme Court say: “The rule should not be construed so as to relieve the city from liability when the plan devised, if put in operation, leaves the city’s streets in a dangerous condition for public use. Legislative authority only relieves municipal corporations which make public improvements from responsibility for the necessary and usual results of a proper exercise of the powers conferred upon them. But the necessary and usual results of the proper exercise of such powers do not include such negligent and unskillful performance of the work as exposes travelers upon the public streets to unusual dangers. In the case at bar the declaration does not charge that the plan of the public improvement was defective, but it charges that the city neglected to keep the crossing of the two streets named in the declaration in good repair. * * * The refused instructions * * * ignored the doctrine that where the city has adopted a plan and created an existing condition in a street in pursuance thereof, if that condition renders the street unsafe, the city must go farther and perform the duty cast upon it, growing out of the statute, to exercise ordinary care to make the street thus encumbered with the product of its plan reasonably safe for public travel. For this reason the court committed no error in refusing the instructions asked by the city.”

We think that the matter of unguarded sides of a sidewalk at some particular place four feet or so from the ground, may be more properly considered to come within the term “defective construction” than “defective design.” It is but a half completed structure for the purpose for which it is designed, as much so as though every other board were missing. Even if it were a matter of design, rather than of construction, it could be, we think, properly pronounced by the court unsafe, as a matter of law.

But it is needless either to show that the principle on which we must decide this case is consistent with the doctrine announced in the Healy case supra, or to point out how much this case differs from that in its facts and may be distinguished in the rules of law applicable, for unlike the question of inequalities in adjacent sidewalks, on which we had only the previous opinions of our own court, and not those of the Supreme Court, to guide us, this matter of the absence of rail protection in elevated sidewalks has been passed on by the Supreme Court.

In a case where a municipality made a passageway to a bridge several feet above the ground, the court said: “We have no hesitation in saying that the city was grossly derelict in its duty in the construction of the passageway in question without having sufficient guards for the protection of travelers.” The City of Joliet v. Verley, 35 Ill. 58-64.

In the Village of Carterville v. Cook, 29 Ill. App. 495-500, the Appellate Court for the Fourth District used this language: “While it is not the duty of the municipal corporation in all cases where it raises its sidewalk above the adjacent ground to guard each side with railing or other barriers to prevent pedestrians from accidentally falling off, and the omission to provide such protection is not always negligence per se, creating liability, yet in cases analogous to the case at bar, where it is apparent that such protection is required to render the sidewalk reasonably safe for school children daily using the same, and to prevent the occurrence of an accident which is likely some time to happen if such protection is not furnished, it has been held to be gross negligence on the part of the corporation to omit the duty to erect railings or other guards on the side of the walk adequate for the protection from the danger of falling therefrom of persons traveling thereon and exercising ordinary care and caution.”

The facts in this Carterville case were that a boy of fifteen years of age was passing along a much used public sidewalk at a point where it was elevated about six feet above the ground, and by reason of the inadvertent or negligent shoving of another boy against him, was jostled or pushed from the sidewalk and injured. The Supreme Court, in affirming the judgment of the Circuit and Appellate Courts in.his favor, said that they concurred fully in the views expressed in the opinion of the Appellate Court which we have quoted above.

We must hold that the law was not incorrectly laid down to the jury, to the disadvantage of the defendant, in the instructions which were given in the case at bar, nor that the refusal complained of, of two offered by the defendant, was erroneous.

The fourth and sixth instructions tendered by the defendant told the jury that appellant’s negligence must have proximately caused the injury to entitle the plaintiff to recover; and we agree with the counsel for plaintiff in the position that in view of the decision in Village of Carterville v. Cook, 129 Ill. 152, where the concurrent negligence of a third party was an element, the first refused instruction tendered by defendant would have been “misleading unless an accurate definition of proximate cause were given.”

Tn view of what we have held was the law of Illinois, the second refused instruction should not have been given. The rule about the obligation as to railings is too broadly stated.

We are inclined to think the admission of sections 1846 and 1856 of the revised ordinances of the city was erroneous, but it was by no means a fatal error. It could have done no harm.

We do not think the damages so high as to be excessive and to show passion and prejudice.

The testimony of the boy’s mother and of the attending physician, as we read it, tends to prove a deformity as the result of the accident, or at the very least an aggravation of a pre-existing deformity—that is, a permanent injury—besides the very considerable suffering which he underwent. The medical testimony for the defendant even did not contradict this.

The judgment of the Superior Court will be affirmed.

Affirmed.


text:
    Edward Hines Lumber Company, Defendant in Error, v. Albin Anderson et al., Plaintiffs in Error.
    Gen. No. 13,850.
    Negotiable instruments—when verbal acceptance of bill of exchange not within Statute of Frauds. A verbal acceptance of a bill of exchange is valid and not within the Statute of Frauds even though the acceptor had no funds in his possession belonging to the drawer.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed June 11, 1908.
    Castle, Williams, Long & Castle, for plaintiff in error.
    Gilbert & Gilbert, for defendant in error; A. 1ST. Waterman, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

This is a writ of error sued out to reverse a judgmént of the Municipal Court of Chicago for $193.29 in favor of the Edward Hines Lumber Company against Albin Anderson and Paul Schulte jointly. Schulte,' who obtained a stay order and supersedeas, is seeking a reversal of the judgment. It was rendered against him as the acceptor of the following draft or inland bill of exchange:

“Paul Schulte, Esq., City;

Dear Sir: Please pay to the order of the Edward Hines Lumber Co. the sum of $193.29, being in full for all lumber delivered to your building, 1014 Wesley Avenue, and charge same to my account.

Tours truly,

Chicago, June 22, 1906. Albín Anderson.” '

It is not claimed that Schulte accepted this instrument in writing, but it is alleged that he promised Anderson before it was drawn that he would pay it if drawn and delivered to the representative of the • Edward Hines Lumber Company; and also that after it was drawn and in the possession and ownership of the Edward Hines Lumber Company, he promised the representative of that company he would pay it. These promises and each of them, it is claimed, made bim an acceptor of the draft.

Mr. Schulte denied that he had ever made these promises, but there was testimony before the trial judge (the case was tried without a jury) that he did, and on that point we must take the decision of the court below as final. There certainly is no clear preponderance of the evidence against it.

The testimony of Mr. Schulte was that at the time of the alleged promises he did not owe Anderson anything. Mr. Anderson was called by the plaintiff as a witness in rebuttal, and asked whether Schulte owed bim anything, but the question was objected to and ruled out. We assume therefore, in passing on this case, that Schulte was not indebted to Anderson. There is no evidence, however, that the Lumber Company knew this, and it is undisputed that Anderson owed the Hines Lumber Company the amount mentioned in the order, and practically at least undisputed that the indebtedness was for lumber bought by Anderson from the Hines Lumber Company and put by him into Schulte’s building.

On transactions arising after July 1, 1907, when the táking effect in Illinois of the Negotiable Instruments Act happily assimilated our law of mercantile paper with that of the other great commercial states, no such question as is involved here can arise. That act by its 131st section provides that all acceptances must be in writing and signed by the drawee. But by the law of Illinois applicable to negotiable paper made prior to that date, verbal acceptances were as valid as written ones.

A forcible and able argument is made by counsel for the plaintiff in error that this statement is not true without qualification. He claims that a distinction can and should be drawn between the cases in which this doctrine has been laid down and the present, in this: that in those cases it did not appear, as it does in this, that the acceptor had no funds of the drawer in his hands at the time of the acceptance.

A written accommodation acceptance would be valid and enforceable, it is conceded, but a verbal accommodation acceptance has never beén declared so, it is said, although it is also conceded that^in Illinois a verbal acceptance is valid when it is for value; that is, when the drawee has funds of the drawer in his hands, of which the draft works an assignment, or when the drawee parts with something valuable on the faith of itj t

In other cases, however, it is insisted that a verbal acceptance is a plain promise to pay the debt of another, and within the Statute of Frauds. Several cases in other jurisdictions are cited to us, in which the opinions bear out this contention. Thus, the Supreme Court of Iowa, in In re Walton v. Mandeville et al., 56 Iowa 597, lends it countenance; but the force of the opinion is weakened for us by the fact that in support of its doctrine it cites cases from states where no verbal acceptance of negotiable paper is valid, and declares that “An acceptor by verbal acceptance does not become a party to the paper, certainly not in any such sense as he would by written acceptance.” We understand the doctrine in Illinois before the Negotiable Instrument Act to have been the reverse of this. It is not necessary to cite the other cases in Illinois, although there are several, that support the doctrine of Nelson v. First National Bank of Chicago, 48 Ill. 36. In that case the law of Illinois was laid down by Mr. Justice Lawrence as to oral acceptances of existent and non-existent bills, so that it cannot be mistaken. He declares that “a parol promise to accept or pay a non-existing bill is no more within our Statute of Frauds than would be a similar promise to pay an existing bill, and clearly neither is within the statute, for such a promise * * * is an original promise to the purchaser, not merely a promise for the .debt of another. Such a promise gains no additional validity or obligation from being in writing. It is merely susceptible of clearer proof. ’ ’

This language lends no countenance to the distinction here insisted on, but rather would imply that the statement of Daniel on Negotiable Instruments, sec. 567 (5th edition), that such a distinction is immaterial, is correct. Even if a dictum so far as the precise point here raised goes, it is a judicial dictum which we must respect.

Daniel, we think, in the section referred to states the correct doctrine for us to apply, when, quoting from Throop on Verbal Agreements, he says: “Contracts, the construction, validity and evidence, of which depend upon so much of the law merchant as the common law recognizes, or the provisions of some other statute, are exceptions to the operation of * * * the Statute of Frauds;” and when he says, referring to Chitty: “A standard author considers a bill o£ exchange as a preferable form of security, on the ground that the Statute of Frauds does not apply to it, and such is the general understanding, as we believe, of the commercial world,” and adds that the numerous cases which have held a verbal acceptance or promise to accept as binding, are generally based upon the open assertion or tacit acknowledgement of this theory.

We must hold that the Statute of Frauds does not apply to the acceptance by the plaintiff in error of the order in question, even though it be assumed that he had no funds in his hands and did .not alter his position on the faith of the bill. But we are far from certain that we ought to assume the last proposition. Mr. Anderson had built a house for Mr. Schulte. He had bought lumber from the Hines Lumber Company and placed it in that house. The statute gives the materialman a lien and provides means and methods by which it .may be enforced under certain conditions. To take a negotiable instrument in payment for the material, prima facie releases the lien. It is true we have no proof in the record that the necessary conditions had been fulfilled under which alone the Lumber Company could enforce its lien, but we are not satisfied that if the case turned on that question, we should not be obliged to hold that prima facie the plaintiff had shown a consideration for the acceptance in its change of relation to the property on which the lumber was used.

As to the joint judgment, we think it was. justified under section 2 of the Act of June 4, 1895, concerning negotiable instruments.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    International Hotel Company, Defendant in Error, v. Annie F. Flynn, Plaintiff in Error.
    Gen. No. 13,855.
    1. Appellate practice—effect of failure to file complete abstract. An abstract should be sufficient to enable the court to pass upon the questions involved without reference to the record, and a failure to file such an abstract is ground for a pro forma affirmance.
    2. Joint and several obligation—when particular instrument is. Bonds containing covenants to pay the obligees certain damages that might be awarded to them or “to any one or more of them, jointly or severally,” are joint and likewise several as to each obligee and consequently may be made the basis of a suit by one obligee to whom damages was separately awarded.
    Action of debt. Error to the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed June 11, 1908.
    John A. Irrmann, for plaintiff in error.
    G-oldzier, Rodgers & Froehlich, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The court in this case is of the opinion that the abstract filed fails to comply with the rule which requires that it shall be “complete,” and that it shall be sufficient fully to present every error and exception relied on. The principal insistence of the plaintiff in error in this case is on a non-joinder of parties who should be plaintiffs under the terms of the bonds sued on, and on the improper joining of two instruments in one declaration. And yet the bonds themselves, which we must refer to in determining the questions arising in the proceeding—copies of which appear attached to the declaration in the record—are not abstracted., A mere reference to them is made, and the only means we have of knowing their contents is the abstract of the body of the declaration and the record itself. The former is not sufficient for our purpose, and the pressure of business on us is too great to make it proper that we should break the rule of the courts of review in Illinois and search the record to find what the printed abstract ought to present to us.

We feel that in itself the failure of plaintiff in error to file a sufficient abstract in this case of the instruments sued on is justification for affirming the judgment of the court below.

But in the face of this feeling the record has been examined.

We are of opinion, after such examination, that the objections of the plaintiff in error to the judgment are not well taken. The bonds sued on contained covenants to pay the obligees certain damages that might be awarded to the obligees or “to any one or more of them jointly or severally.” The bonds might have been drawn still more precisely and artificially to express the intention that they should be several obligations so far as the covenantees were concerned, but the meaning is very clear, and we think that the covenant was several as to each obligee and could be sued on, as it has been, by one of the obligees to whom damages were separately awarded. St. Louis, Alton & R. I. R. R. Co. v. Coultas, 33 Ill. 189.

Nor do we think that the declaring in one count on the two bonds was error—certainly not error which, after default and judgment, can be raised on a writ of error like this.

A similar declaration on six promissory notes in one count was sustained in Godfrey v. Buekmaster, 1 Scammon, 447, in which the court said in approval of the form used:

“In our system of practice it is of infinite importance to introduce precision and conciseness, and whatever tends to dispense with prolixity and useless recapitulation should be encouraged”—a warning which has not always been attended to in our practice since that time. ' The case has been often referred to and never overruled.

The judgment of the Superior Court is affirmed.

Affirmed.


text:
    The People, Defendant in Error, v. Paul Zito et al., Plaintiffs in Error.
    Gen. No. 13,873.

      Evidence—when cross-examination unduly restricted. In a prosecution for the illegal sale of cocaine, it is error for the trial judge to restrict the defendants’ counsel in his cross-examination of a chemist who has testified to an analysis of the proprietary medicine alleged td have been sold and by so doing prevent him from showing the processes by which such chemist reached his conclusion.
    Action in debt. Error to the Municipal Court of Chicago; the Hon. Judson F. Gomo, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed June 11, 1908.
    William Schbeider, for plaintiffs in error,
    E. I. Frankhauser, for defendants in error.
   Mr. Justice Brown

delivered the opinion of the-court.

The judgment which it is sought here to reverse on writ of error was rendered by the Municipal Court on the verdict of a jury which found the plaintiffs in error, Frank and Paul Zito, guilty of selling cocaine in violation of sections 32 A and 32 B. of chapter 91 of the Laws of the State of Illinois, and fixed the penalty at a fine of one hundred dollars.

There are some questions raised by this record which have been decided by us in favor of the People, in another writ of error sued out by the same parties to reverse another judgment of the same nature. 140 Ill. App. 611.

But we cannot allow this conviction and judgment to stand. The charge against the defendants was selling cocaine. The sale proven was of a package of Dr. Gray’s Catarrh Powder, an alleged proprietary medicinal preparation. An analytical chemist was placed on the stand by the people, to prove that his analysis of the contents of the package sold showed that it contained cocaine. He testified that he found cocaine in the contents mixed with other substances. The counsel for defendant then undertook to cross-examine him, asking him first how he came to that opinion. Thereupon the court said to the witness: “You need not describe the process.” Counsel for defendant said, “I believe I am entitled to go into the process. ’ ’ The court: ‘ ‘ Save your exception; ask another question.” Then counsel asked the witness whether the proportion of cocaine to other substances was over' 50 per cent. Objection to that question was sustained by the court. Counsel then said to the court: “I wish the permission of the court to ask the chemist particularly the amount of his examination so as to determine whether he is capable from such examination, to find the presence of the cocaine.” This colloquy followed:

“The Court: Do you state as an attorney that you would know when he got through?

Counsel: I certainly would know whether he would know or not.

The Court: Have you a chemist here?

Counsel: No.”

Whereupon the court refused to allow counsel to go into the cross-examination he proposed.

Undoubtedly very wide discretion, as the counsel for the people urge, is given to a trial judge' in limiting and controlling cross-examinations. But this matter, which the defendants’ counsel wished to inquire into, was the very gist and kernel of the case against them, and practically no cross-examination whatever was allowed. No lawyer would have been doing tiis duty to his clients who did not in such a case attempt it, and we are at a loss to understand why the right to it was denied. Of all witnesses experts are those of whom the most searching cross-e'xamination should be permitted.

If this ruling of the Municipal Court is an error “in respect to a matter of practice therein,”, it falls within the proviso of the eighth paragraph of section 23 of the Municipal Court Act, which allows us to grant relief from any error of the Municipal Court in respect to a matter of practice therein in any case where in our opinion such relief is necessary to prevent a failure of justice.

We do not think the defendants had a fair trial, and we reverse the judgment against both and each of the defendants and remand the cause to the Municipal Court.

Reversed and remanded.


text:
    Miriam T. Cragg, Appellant, v. Salmon O. Levinson, Appellee.
    Gen. No. 13,888.
    1. Injunctions—when do not lie to restrain trespass. A court of equity has no jurisdiction to enjoin a trespass, even where repeated trespasses have been committed and their continuance is threatened, against a single complainant by a single defendant, unless the defendant is shown to be insolvent. (Various prior decisions being discussed and considered at length.)
    2. Appellate pbactice—effect given to dictum. A judicial dictum of the Supreme Court will not he disregarded hy the Appellate Court but will be treated with respect as a deliberate expression of opinion.
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed June 11, 1908.
    West, Eckhart & Taylor, for appellant.
    Rosenthal & Hamill, for appellee; Charles Goodman, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of Cook county in chancery, sustaining a demurrer to the appellant’s bill of complaint and, on her electing to abide by said bill, dismissing said bill for want of equity.

The bill was filed April 1, 1907. It alleges that on June 21, 1906, the Hartford Fire Insurance Company erected a fence on the north fifty feet of the south seventy feet of lots three and four, block eleven, in Cleaverville, in the city of Chicago and county of Cook, very close to the north boundary line of the same, and immediately thereafter, on the same day, conveyed by deed the said premises, of which it was seized in fee simple, to George L. Gragg, the husband of the complainant, who, with complainant, took possession of the same for a residence; that on June 22, 1906, certain persons, among whom was one Rosen as leader, “trespassed upon the said premises, * * * tore down and destroyed all or a large part of the above mentioned fence, * * * and that said acts caused” the complainant “great alarm, mental anguish and disquiet;” that Rosen was in the employ of a firm of lawyers, of which the defendant is a member, and that the trespass was done at'the request, instigation or procurement of the defendant; that on,the day before, June 21, 1906, one Becker, acting for the defendant Levinson, threatened, in the presence of several witnesses, to tear down the said fence or any fence built in its place as fast as it could be put up, unless an irregular portion of said premises at 4053 Lake avenue should be sold to the said defendant for $250; that it was in pursuance of said threat that the said acts of destruction of June 22, 1906, were committed; that on June 24, 1906, George L. Gragg conveyed the described premises to one Atherton and the said Atherton conveyed them to the complainant, Miriam T. Gragg, who is now the owner in fee simple of said - premises, which are situated at 4053 Lake avenue; that on or about September 7,1906, a gang of unknown persons, acting at the procurement of the defendant and as his agents, trespassed on the premises of complainant; that the said Eosen appeared and assumed charge of said gang; that the said gang persisted in their acts of trespass and violence despite warnings and appeals informing them that the complainant was very ill on the premises and might be greatly injured by the noise and confusion resulting from the acts of trespass; that on September 14, 1906, said Eosen, accompanied by one McCall and others, again trespassed on the premises of the complainant, at the procurement of Levinson, and that Levinson has often trespassed on said premises by driving an automobile across a strip of the complainant’s, premises at and near the line where they meet .the defendant’s premises; that said defendant, as the complainaht is informed and believes, threatens and intends to continue to commit or repeat the commission of the acts of trespass in driving an automobile over the strip in question and tearing down any fence that may be built near the boundary line where- said fence would interfere with the trespass on the strip in question by an automobile; that if not enjoined therefrom, the defendant will do said acts and carry into effect said threats, to the grievous wrong of the complainant and the irreparable injury of her property in that said acts if continued will have a tendency (a) to destroy and obliterate the boundaries of said premises; (b) to greatly diminish the rental and market value of said premises; (c) to gain, for the defendant a prescriptive right or easement in favor of his premises, ultimately imposing a permanent burden or servitude upon the premises of the complainant, or, in the alternative, force her to institute many suits at law; (d) to prevent the complainant from using a strip of her said premises near the defendant’s premises, either for a safe walk or for adornment of her premises by growing grass, etc. Such forced loss of the use of part of the complainant’s premises would be an injury for which recoverable damages would in no sense adequately compensate her; that if the defendant is not restrained by injunction, he will continue the acts of trespass before described, which will be to the disturbance of the public peace and the peril of the complainant, and that this will be a public nuisance, injuring the public, but mostly the complainant; that the complainant’s remedies at law are totally inadequate to secure to her the quiet and peaceable use and enjoyment of her premises against the said acts of trespass and violence of the defendant; that the complainant delayed bringing her bill only on account of illness, aggravated by the excitement caused by defendant’s acts; that the complainant “brings her bill for no other purpose whatsoever than to seek protection that she may use her premises in quiet and safety.”

The prayer of the bill is that the defendant may be enjoined “from doing or in any manner whatsoever inducing others to do the acts in the bill complained of, or any of them, and more especially from driving upon, over or across, or in any manner trespassing upon the said premises of the complainant either with an automobile or with any other vehicle, or in any manner whatsoever, and from interfering with the complainant or her servants or attorneys in any manner whatsoever to prevent them from erecting a fence upon said boundary line or upon said premises of the complainant near said boundary line, and from destroying any fence either in part or in whole, or in any manner whatsoever inducing any other person to destroy any part or all of any fence which the complainant may erect either upon said boundary line or upon her own premises near said boundary line,” and for general relief.

To this bill the defendant filed a general and special demurrer. The special grounds which need notice, however, are all equivalent to an objection which may be made under the general demurrer—that the bill does not state such a case of trespass, actual or threatened, as equity will take jurisdiction of and enjoin.

The sustaining of the demurrer and dismissal of the bill raises, therefore, the question whether this proposition is incorrect.

It is conceded by appellant that in Illinois there are decisions by the Supreme Court which would sustain it. These decisions hold that as a general rule a court of equity has no jurisdiction to enjoin a trespass even where repeated trespasses have been committed and their continuance is threatened against a single complainant by a single defendant, unless the defendant is shown to be insolvent. Commissioners of Highway v. Green, 156 Ill. 504; Harms v. Jacobs, 158 Ill. 505.

It is also conceded by appellants that there are opinions of the same court in other cases containing statements of the same rule, or of some portion thereof. In these cases counsel insist, however, that the statements were not necessary to the decisions and were therefore obiter dicta. Such cases are: Poyer v. Village of Desplaines, 123 Ill. 111; Chicago Public Stock Exchange v. McClaughry, 148 Ill. 372; Chicago General Railway Co. v. C., B. & Q. R. R. Co., 181 Ill. 605; Lloyd v. Catlin Coal Co., 210 Ill. 460; City of Chicago v. C. C. Ry. Co., 222 Ill. 560.

It is manifest in some of these last named cases that if the precise statements alluded to, such as that the danger of multiplicity of suits, is not a sufficient cause for the interference of equity to prevent the repetition of a trespass by the same person, when the threatened injury is capable of measurement in damages, are dicta, they are at least judicial dicta as that phrase is defined in Law v. Grommes, 158 Ill. 492, that is, expressions of opinion upon a point deliberately passed on by the court. * They should certainly be treated by us with respect.

Of the cases, however, of Harms v. Jacobs (supra) and Commissioners of Highways v. Green (supra) it is conceded that they are in point, and that they hold as the gist of their decisions that equity will not enjoin repeated acts of trespass committed and threatened against a single complainant by a single defendant, unless that defendant’s insolvency is shown. The contention that these decisions are not binding on us in this case rests wholly on the opinion of the appellant’s counsel that they were not well-considered, and that they are inconsistent with other and later utterances of the Supreme Court.

The assumption that these cases were ill-considered we cannot make. We see nothing to support it. The opinions in them are not long and they do not cite a multitude of cases. The cases which they do cite are from Illinois, and it is claimed by the appellant’s counsel that they are not directly in point. But the question at issue was fairly met and plainly decided, and in Comm’rs of Highways v. Green the court says the rule announced will be found on examination to be well sustained by text writers and the decisions of the best courts of last resort. We think this is not an overstatement.

The rule which has been generally followed is that stated by Chancellor Kent in Jerome v. Boss, 7 Johnson Chancery, 315. “It is not sufficient” (to warrant the interposition of equity) “that the act be simply per se a trespass, but it must be a case of mischief and of irreparable ruin to the property in the character in which it has been enjoined. In all other cases, the common law remedy is deemed to be adequate and perfectly competent to give compensation as well as to deter and prevent the repetition of the trespass by the exemplary damages which it will inflict.”

The second contention of the appellant, that the Jacobs case and Green case are virtually, although not expressly, overruled by subsequent decisions of our Supreme Court, deserves more serious consideration.

From the standpoint of reason and convenience there is much to say in favor of using the jurisdiction of chancery in cases of quarrels and trespasses between neighbors in such a way that a harassing and annoying series of suits may be prevented, that peace may be preserved and that injuries which, if not irreparable are at least difficult of computation in damages, may be forbidden and avoided, even though all this be done at the expense of forfeiting a jury trial. These considerations were strong enough to lead in 1893 a distinguished judge of the Appellate .Court of the second district to depart, as we think, from the established doctrine which was afterwards more explicitly laid down by our Supreme Court in the cases we are discussing. Stroup v. Chalcraft, 52 Ill. App. 608.

If, therefore, through the examination of the cases cited to us by the appellant’s counsel, we had formed the opinion that the Supreme Court had intended, -in other cases,- to depart at all from the doctrine which they had stated in the Jacobs and. Green cases, we should, even though these cases had not been expressly and by name overruled, have seriously considered whether the rules laid down by Judge Green in Stroup v. Chalcraft were not worthy of adoption by us.

But we cannot come to that opinion. In one case, Village of Itasca v. Schroeder, 182 Ill. 19.2, strongly relied on by appellant as showing that- the Supreme Court had later come to a different conclusion from that which they had announced in Commissioners of Highways v. Green, the latter case is cited with approval. And in the Itasca case and in all the others from the Supreme Court cited to us by the appellant’s counsel, there is an element justifying equitable interference, even though it was intended to adhere strictly to the rule enunciated in the Jacobs and Green cases. Thus where grown trees were to be removed—Village of Itasca v. Schroeder (supra), City of Mt. Carmel v. McClintock, 155 Ill. 608; or where a sidewalk was to be laid out, taking a strip off a man’s dwelling house, City of Joliet v. Werner, 166 Ill. 34; or where there was a removal of soil and excavation and interference with a water supply, Edwards v. Haeger, 180 Ill. 99; or where irreparable injury was threatened by the deflection of a river which would sweep away land, Cobb v. I. & St. L. R. R. Co., 68 Ill. 233; or where incorporeal rights were to be taken away, Field v. Barling, 149 Ill. 556; or a continuing nuisance from a permanent structure was to be anticipated, Wahle v. Reinbach, 76 Ill. 322, Newell v. Sass, 142 Ill. 104; an injunction has been sustained.

But we do not think these cases overrule or modify the strict rule laid down in the Jacobs case and Green case as applicable to a case like the one at bar.

The judgment of the Circuit Court sustaining the demurrer and dismissing the bill is correct and is affirmed.

Affirmed.