text:
    West Chicago Street Railway Company v. C. M. Mileham.
    Gen. No. 13,618.
    1. Declaration—when charges negligence generally. A declaration charges negligence generally where it avers that the “defendant then and there, by its servants, agents and employes, so carelessly, recklessly, wilfully, negligently,” drove and managed its car that “by and. through the negligence * * * of the defendant, through its said servants,” the plaintiff was injured.
    2. Negligence—when doctrine res ipsa loquitur applies. The doctrine of res ipsa loquitur applies as between a passenger and carrier where there is evidence tending to show that the cause of the injury complained of was the negligent operation of the carrier’s car.
    3. Verdict—when not excessive. A verdict for $1,500 is not excessive where there is evidence tending to show that as a result of the accident in question, the plaintiff suffered from a fracture of some of his ribs, that some of the bones of his feet were broken, and that his ankle and the calf of his leg were bruised and swollen, etc.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed January 28, 1908.
    Statement by the Court. This is an action to recover for personal injuries. The declaration charges that plaintiff—appellee here—was a passenger upon an electric street car operated by defendant on Fifth avenue, Chicago, and that while exercising all due care and diligence on his part, the defendant, “by its servants, agents and employes, so carelessly, recklessly, wilfully, negligently and improperly drove and managed” said car that by and through such negligence and mismanagement of defendant through its said employes, the plaintiff, while in the exercise of all due care and caution himself, was “thrown with great force and violence off from said car to and upon the ground,” receiving the injuries complained of. The cause was submitted to a jury and a verdict returned finding defendant guilty and assessing plaintiff’s damages at $2,000, from which plaintiff remitted $500. Judgment was entered for $1,500, from which defendant appeals.
    John A. Rose and Albert M. Cross, for appellant; W. W. Gurley, of counsel.
    Newman, Northrup, Levinson & Becker and Chester E. Cleveland, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

The cause of the accident was a collision between the electric car upon which appellee was a passenger and a truck wagon loaded with flour. It is contended in behalf of appellant that the car was running at a moderate and safe rate of speed, but that the truck wagon “cut into its path when the car was so close at hand that it was impossible for the motorman to stop the car and prevent the accident,” although he made every effort so to do. The accident occurred about eight o ’clock in the morning of the twenty-ninth day of June. The car was an open car with an aisle down its center and seats for two persons on each side of the aisle. Appellee was occupying a seat next to the aisle. The portion of the same seat next to the side of the car was occupied by a woman. The car had turned off from Twelfth street to go east to Fifth avenue, and was going down the decline from Twelfth street toward Taylor street. A truck drawn by two horses and heavily loaded was proceeding slowly down Taylor street in a direction leading across the street car tracks on Fifth avenue, in front of the advancing car. The truck crossed the westward of the two tracks and had so far crossed the east track before the car reached it that only the rear end of the wagon was struck. There is evidence tending to show that the car was proceeding down the decline from Twelfth street to where Taylor street crosses Fifth avenue at a rapid rate of speed. The motorman testifies that he first saw the wagon crossing the track about fifty feet away and he then made every effort to stop the car, which he says could be done on such rails in about sixty-five feet. He had delayed too long, however, to prevent the collision. We think the evidence sustains the verdict of the jury as to appellant’s negligent operation of the car. Certainly the motorman could reasonably anticipate, if he had been looking ahead in the exercise of due care, that there was probable danger of collision with a wagon which was proceeding in an easterly direction at the intersection of Fifth avenue with a cross street with an evident intention to cross in front of his car over the railway tracks, such intention having been 'manifested so long before his car came within fifty feet of it that the wagon had actually crossed the westward of the two tracks on Fifth avenue and was in the act of crossing the. other track upon which the car was approaching when the motorman says he first saw it. It was clearly his duty to have his car under such control under these circumstances as to enable him to avoid a collision. So far as we are able to discover, there is nothing in the evidence tending to support appellant’s theory that the “truck wagon cut into” the path of the car when the latter “was so close at hand that it was impossible for the motorman to stop the car and prevent the accident.” The situation of the wagon when struck by the car, struck at its rear end, strongly tends to refute such contention. A heavily loaded wagon going slowly, as the evidence tends to show this was, could scarcely have gotten so nearly over the tracks before being hit by the rapidly moving-car if it had suddenly “cut into” the way of the car, as appellant’s counsel suggest. There is evidence tending to show that the car was moving down hill at a high rate of speed when approaching the place of accident. There is evidence to the effect that in the effort to stop the car when the collision was imminent, the brake was applied with great and apparently unusual force, indicating- a rapid rate of speed at the time, which it was then too late tu check in time to avoid the collision.

It is urged, however, that appellee was injured by reason <?f his own negligent act, in that he was not thrown from the car, as he says he was, by the force of the collision suddenly checking the forward movement of the car, but that he deliberately jumped from the car. The appellee testifies that when he saw the wagon he rose up, as did others, and was thrown out on to the street pavement when the car struck the heavily loaded wagon. The conductor of the car, on the other hand, states that he saw plaintiff stand up and that he jumped over the inside rail after the collision had occurred, after the car had come to a stand, and after the conductor had called to him, “Don’t jump now; it is all over with.” The conductor is not corroborated in this by any other of the witnesses. That appellee claimed to be injured at that time and place, is apparent from the evidence of the conductor, a witness in behalf of appellant. That he was in fact so injured, there is evidence tending to show. As to the manner in which he received the injuries, there is a conflict between his testimony and that of the conductor of the car. That question of fact has been decided by the jury in favor of appellee, and no reason appears which would justify us in disturbing the finding.

It is argued, however, on the part of appellant, that there can be no recovery on any theory of negligence of the defendant generally, because the declaration charges specifically that the car was negligently operated by the servants of defendant who were in charge of it, and does not charge the defendant generally with negligence; that under such a declaration the doctrine of res ipsa loquitur does not apply and there is no presumption of negligence against defendant in favor of the injured passenger; that under a declaration charging only specific negligence, the plaintiff, in order to recover, must prove the negligence charged by a preponderance of the evidence, that the presumption of negligence is absent in this case and the negligence charged, in the declaration is not proved. The argument seems to be that the wagon was not under control of the appellant, that the accident was caused in part by the action of a third person over whom the carrier had no control. No one, we imagine, will dispute the doctrine that “if the declaration only alleges particular acts of negligence, the plaintiff is confined to the proof of the specific negligence averred.” C. U. T. Co. v. Leonard, 126 Ill. App. 189, citing W. C. R. R. Co. v. Martin, 154 Ill. 523, and C. & E. I. R. R. Co. v. Driscoll, 176 Ill. 330. This contention is elaborately argued, but unfortunately for appellant it is based upon an incorrect assumption. We find no basis in the declaration for the claim that it does not contain a sufficiently general charge of negligence against the defendant. It is averred that the ‘ ‘ defendant then ana there, by its said servants, agents and employes, so carelessly, recklessly, wilfully, negligently” drove and managed its car that “by and through the negligence * * * of the defendant, through its said servants,” appellee was injured. This is a charge of negligence on the part of the defendant. The fact that it is also charged that the negligent acts were committed by the defendant through its servants, does not change the nature of the charge. There is, however, evidence tending to prove the specific charge of negligence precisely as made. We are not aware of any way in which a corporation can operate its street cars except through its officers, employes and agents. What is said in Chicago City Ry. Co. v. Jennings, 157 Ill. 274-278-9, is in point. In that case the contention was that such a declaration was vague, indefinite and too general in its averments. Here it is said to be too specific. We regard the declaration as sufficiently general in its charge of negligence against the defendant, but in any event there is evidence supporting the specific averments amply sufficient to justify the verdict.

As to appellant’s second proposition, that the doctrine of presumptive negligence does not apply in favor of a passenger where some third person or agency over which the carrier has no control contributes to the accident, we fail to see its application in the case at bar. Here it is alleged and there is evidence tending to show that the cause of the injury complained of was negligent operation of the car, a cause entirely within the carrier’s control. Chicago Union Traction Co. v. Mee, 218 Ill. 9-14-15, cited by appellant’s counsel, is a case showing a state of facts very different from the case at bar.

It is said the damages are excessive. Appellee was confined to his bed for about a month. There is evidence tending to show that he suffered from the fracture of some of his ribs, that some bones of his foot were broken, and that his ankle and the calf of his leg were bruised and swollen. His physician testifies that in his opinion there was a rupture of the sheaths and some of the muscles in the leg at the time of the injury, and that at a later period, after apparent recovery from the injury, appellee had suffered from what the doctor thinks was a breaking, of the old adhesions, causing the leg to be very much swollen and sore, and 'crippling appellee for a week or two. As a result of the fracture of the ribs appellee had an attack of pleurisy, and he still suffers occasionally from a swelling and pain in that leg when on his feet for a considerable length of time. In view of all the evidence, we are unable to concur in appellant’s contention that the verdict is excessive.

It is urged that the first two instructions given in appellee’s behalf were erroneous, in not limiting the negligence for which appellant would be liable to that charged in the declaration. Examination of the instructions referred to does not support the objection. We discover nothing in them which in any way tends to indicate any ground of recovery not charged in the declaration. The first of the said instructions does in terms refer to the specific negligence charged in the declaration, and both instructions, in fact, if not in terms, limit the jury to the negligence therein charged. Appellee was entitled to have the jury instructed in accordance with his theory of the case so far as it was supported by the evidence and the law applicable. See Chicago City Ry. Co. v. Nelson, 215 Ill. 436-443, as to the objection that the words of an instruction are “not qualified by any reference to the allegations of the declaration.” We have examined the objections urged at great length by appellant’s counsel to these and other instructions given by the court. It is not necessary and would not be profitable to follow counsel in such discussion. The objections urged are, for the most part, extremely technical. We discover no material and certainly no prejudicial error in the court’s action in the respects complained of.

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

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Chicago City Railway Company v. John Martincic.
    Gen. No. 13,651.
    1. Ordinance—how to he construed. An ordinance, if possible, is to be so construed as to give it some validity and effect.
    2. Obdinance—providing for protection of machinery, construed. An ordinance designed to protect workmen in places where machinery is employed from injury from such machinery has no application to a room where there is no machinery, and where the workmen could not possibly come in contact with machinery.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Axel Chytbatjs, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Reversed and remanded.
    Opinion filed January 28, 1908.
    William J. Hynes, S. S. Page and C. LeRoy Brown, for appellant.
    David K. Tone and H. M. Ashton, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

John Martincic, appellee, recovered a judgment in the Superior Court against appellant in an action on the case for personal injuries. Appellee was a laborer in the employ of appellant. On November 26, 1903, he went into ^the coal crusher room of appellant on the northeast corner of Twenty-first and Dearborn streets, for the purpose of shoveling coal into a coal crusher, under orders of appellant’s foreman, as he claims, and stepped into a hole in the floor leading down into the crusher, about three feet below the floor, and was severely injured.

The original declaration, containing one count, was filed November 25, 1904. October 14, 1905, two additional countó were filed.

The first count averred the ownership and operation by defendant of a street railway in Chicago and of a power house situated near Twentieth and State streets. It then averred that defendant had in connection with said house a certain building used for the purpose of receiving coal and crushing the same; that in said coal building there was an opening in the floor about three feet square, and that below said floor and within said opening was a coal crusher consisting of a rapidly revolving cylinder or machine, which crushed the coal that was dumped into said hole; that said coal crusher was near the center of said room, and was within a distance of, to wit, twelve feet from the door of said building; that defendant dumped large quantities of coal upon the floor of said building and near said hole, which coal was shoveled by hand into the crusher; that said opening in the floor beneath which the crusher was revolving was unguarded and unprotected; that' oh November 26, 1903, the plaintiff was a servant of defendant; that by reason of the presence of large quantities of coal dust in the atmosphere, and by reason of the dimness of the light within said room at and near where said crusher was situated, the said coal crusher and opening in the floor above the same were then and there highly dangerous to the lives and safety of persons being and working in the vicinity thereof; that it then and there became and was the duty of defendant to give notice and warning of the presence of said coal hole and said crusher to servants of defendant who were directed to work within said room and near said crusher, in order that said servants might not walk into said coal hole and be injured; that plaintiff did not then and there know, and could not by the exercise of reasdnable care on his part have discovered the fact that said coal crusher and opening in the floor above the same were then and there situated within said room. The count alleges that on November 26, 1903, at, to wit, seven o’clock a. m., the defendant then and there carelessly and negligently ordered and directed plaintiff to go into said room used for crushing coal and then and there shovel "coal in said room, and said defendant then and there carelessly and negligently failed to warn or inform plaintiff of the fact that said crusher was then and there in operation in said room in an unguarded and unprotected manner, and that plaintiff, acting in obedience to the directions of said defendant, and in ignorance of the existence of said unguarded and uncovered coal crusher, then and there walked into said room, and while in the act of going to work for said defendant in shoveling coal, and acting under the directions of said defendant, the plaintiff, while in' the exercise of ordinary care for his own safety, unavoidably stepped into said opening above said coal crusher, and then and there fell into it while it was rapidly revolving, and was so seriously injured as to require the amputation of both legs.

The second count, or the first additional count, omitted many of the allegations contained in the first count. It described the ownership and operation of a railway and power house, the opening in the floor beneath which was the coal crusher, the location of the crusher, the presence of large quantities of coal, and the absence of any guard. It averred the presence of coal dust in the atmosphere and dimness of light in the room, but it did not allege that plaintiff was ignorant of the presence of the coal crusher, or that he was unfamiliar with the conditions, or that such conditions were not discoverable, or that plaintiff was ordered or directed to work in the room. The count alleges that on October 22,1900, and thereafter, a certain ordinance was in full force and effect, which said ordinance was as follows:

“In every factory, workshop or other place or structure where machinery is employed, the belting, shafting, gearing, elevators and every other portion of machinery when so- located as to endanger the lives and limbs of those employed therein while in the discharge of their duties shall be, as far as possible, so covered or guarded as to make them reasonably safe and to prevent injury to such employes.”

The second count then avers that it was possible and practicable so to guard and protect the said opening in said floor as to make said opening reasonably safe to prevent injury to employes, and alleges that the defendant, contrary to said ordinance and in violation of its duty, negligently failed so to cover or guard the said opening in the floor beneath which the said crusher was revolving as to make the same reasonably safe and to prevent injury to employes, and that defendant, in violation of said ordinance, permitted the said opening in the floor of said building to be and remain entirely open, unguarded and uncovered. The count alleges that on November 26, 1903, plaintiff was a servant in the employ of defendant; that the servants of defendant were then and there engaged in shoveling coal from the floor of said building through said opening in said floor and into said crusher, and while plaintiff was then and there walking across the floor of said building and toward the said crusher for the purpose of shoveling coal into said crusher, and in the exercise of ordinary care for his own safety, and in the performance of his duties for defendant as a servant of defendant, and by reason of the negligence of defendant in failing to cover or guard the said opening in the floor of said building beneath which the said crusher was revolving, so as to make the same reasonably safe and to prevent injury to the employes of said defendant, the plaintiff, while in the exercise of ordinary care for his own safety, unavoidably stepped into said opening above said coal crusher and was thereby injured, as described in the first count.

The third count avers the same facts by way of description and inducement as does the second count; it contains no allegation that plaintiff did not know of the conditions, or that he could not have known them, or that they were not obvious and apparent, or that he was not warned of them, or that he did not appreciate the dangers, or that he was misled by any assurances of safety, or that he was misled by any negligent order, or that he was promised that any dangerous conditions would be repaired. It avers that it became and was the duty of defendant to guard and protect the hole in said flooring beneath which said crusher was then and there revolving, so as to prevent the employes of defendant working at or near the coal crusher from falling or walking or stumbling into said hole. The count alleges that defendant did not regard said duty, but negligently failed to erect any guard or railing or protection of any kind around said hole, but left said hole wholly unguarded and unprotected. The count avers that plaintiff “was then and there directed by the said defendant to go into said building in which said crusher was then and there revolving, and to assist the servants of said defendant in handling coal,” and that while plaintiff was then and there walking across the floor of s.aid building in which said crusher was then and there being operated, in the exercise of ordinary care for his own safety, and by reason of the negligence of defendant in failing to guard and protect the hole beneath which said crusher was revolving, plaintiff then and there unavoidably stepped into said opening above said coal crusher, and was injured as alleged in the first count. .

The defendant pleaded not guilty to all the counts.

On the trial appellee 'offered in evidence an ordinance of the city of Chicago adopted October 22, 1900, the first section of which is set out in the first additional count, except the word “practicable” appears in place of the word “possible” averred in that count. The ordinance was admitted by the court over the objection of appellant that it was irrelevant, immaterial and inapplicable to the case. This ruling is assigned as error. The question is also preserved otherwise in the record.

The declaration avers and the evidence shows that the coal crusher was located beneath the floor of the crusher room, and about three feet below the hole or opening in the floor. There is no averment in the first additional count that there was any belting, shafting, gearing, elevators or other portion of machinery located in the crusher room. The proof does not show any; but on the contrary it appears that the crusher and the machinery for applying power to the crusher was all under the floor of the crusher room.

Waiving the question as to the validity of the ordinance, and assuming for the purposes of the argument its validity, we are unable to see that the ordinance has any application to the situation shown by the pleadings and proofs. The intent and purpose of the ordinance, as gathered from its phraseology, is to protect workmen in places where machinery is employed from such machinery, where it is so located as to endanger their lives or limbs while in the discharge of their duties. It is intended to apply to situations where workmen in the discharge of their duties are necessarily in close proximity to machinery, and may come in contact with it while in motion. In the nature of things it can have no application to a room or place, like the crusher room in question, where there was no machinery, and where men engaged in unloading coal, or shoveling coal into the crusher, could not possibly come in contact with machinery, except through the necessary opening in the floor through which coal is put into the crusher. To construe the ordinance in question as applicable to the situation shown by the pleading and proofs in this case, would make it unreasonable and void as an arbitrary infringement upon personal and property rights. It should not be so construed.

The ordinance being, as we think, inapplicable to the situation presented by the record, it is not material for us to consider or pass upon the question of its validity, which is argued at length in the briefs. That question is not necessarily before us for decision.

If the ordinance is inapplicable to the case, it has no place in the pleadings or the evidence. The averment of the ordinance in the second or first additional count was surplusage, and its admission in evidence was reversible error. It tended to confuse the issues before the jury, and its admission prejudiced the appellant’s case.

As the error in the admission of evidence necessitates a reversal of the judgment and a remanding of the case for another trial, we do not deem it necessary to discuss the instructions which are criticised in argument further than to say that in our opinion the question of assumption of risk is in the case, and that no instruction is proper which, in terms or in effect, takes from the jury that question of fact.

The judgment is reversed and the cause is remanded.

Reversed and remanded.


text:
    City of Chicago v. Eraika Carlson.
    Gen. No. 13,674.
    1. Negligence—when condition of sidewalk is question for jury. Held, that it was a question for the jury to determine, whether the city was guilty of negligence where it appeared that from the top of the cement sidewalk in question to the dirt and stone helow, at the south end of it and directly in line with the sidewalk, and in the public street, there was a perpendicular descent or drop of approximately two feet.
    2. Evidence—what incompetent upon examination of medical expert. It is not competent upon the examination of a medical expert to inquire of him with respect to the meaning of terms applicable to an injury of a kind not shown to have been sustained.
    3. Instbuction—upon preponderance of evidence approved. An instruction upon this subject as follows is approved: “If the jury find from the evidence that the plaintiff has made out her case by a preponderance of the evidence, as alleged in the declaration, then the jury should find the defendant guilty.”
    Action in ease for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Abthub H. Chetlain, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Affirmed.
    Opinion filed January 28, 1908.
    Statement by the Court. Appellee recovered a judgment against appellant for $8,000 in an action for the recovery of damages for personal injuries suffered by reason of an alleged defect in a sidewalk upon which appellee fell and was injured November 3, 1904.
    The evidence in the record tends to show that Forty-eighth avenue is a north and south street in the city of Chicago. Huron and Erie streets run east and west, crossing Forty-eighth avenue at right angles. Erie street is the next street south of Huron street. ■
    On November 3, 1904, there was a cement sidewalk seven feet in width on the east side of Forty-eighth avenue, beginning at the southeast corner of Huron street and extending south about seventy-five feet. At the south end of the cement sidewalk and connected with it, a cinder walk, about three feet in width from the curb, extended south for some distance. South of the cement sidewalk, and from the lot line to the cinder walk, there was no sidewalk other than the natural surface of the soil, which, at the south end of the cement sidewalk, was about two feet lower than the cement walk, making at that point, east of the .cinder walk, an abrupt descent or drop of two feet, more or less, from the end of the cement walk. This condition of the sidewalk had existed several months prior to the accident.
    About 10:30 o’clock in the evening of November 3, 1904, appellee and three other women were walking slowly south on the east side of Forty-eighth avenue on this cement sidewalk. The night was dark, and there were no street lights in the immediate vicinity, so that it was impossible to see distinctly. Appellee was walking near the lot line and when she came to the end of the cement sidewalk she fell upon the ground and stones and sustained severe and permanent injuries.
    At the close of plaintiff’s evidence, and again at the close of all the evidence, motions were made by appellant for a directed verdict, and a written instruction was tendered with each motion. The motions were denied and the instructions refused.
    Edward J. Brundage, Corporation Counsel, and John R. Caverly, for appellant; Joseph B. David, of counsel.
    Brandt & Hoffmann, for appellee; Leo V. Roeder, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

It is urged that appellant is not guilty of negligence in constructing or maintaining the sidewalk from which appellee fell, and the case of Healy v. City of Chicago, 131 Ill. App. 183, is cited.

That case relates to a completed sidewalk made of sound plank, firmly fastened in place, but where there was a difference in grade of thirteen inches between two pieces of the walk, which had existed for a year and a half, without sloping boards or a step. The complaint in that case, as in the case of the City of Chicago v. Bixby, 84 Ill. 82, was not that the work in building the walk was improperly or negligently done, but that its design was improper and injudicious. It was held that the courts had no control over the design or plan of the sidewalk, and that the court could not say as a matter of law that the plan itself was so dangerous that its construction was negligence. That is a different question from the one presented here. We find nothing in the record to justify us in holding that the condition of the walk under consideration here was in accordance with any plan or .design of the municipal authorities. The contrary inference only can be drawn from the facts, namely, that it was an incomplete sidewalk, and that the design and plan was to construct a cement sidewalk along the whole block between Huron and Erie streets of the same character and level as the walk north of the place where the accident happened.

City of Chicago v. Norton, 116 Ill. App. 570, involved the question whether a difference of two and one-half to three inches between two adjoining pieces of flagging in a sidewalk was not reasonably safe, and could be deemed evidence from which the fact of negligence in respect thereto might be inferred, and it was held that the sidewalk was reasonably safe and the city was not guilty of negligence. That, we think, was a different question from the one here presented. And the same may be said of Harmes v. City of Chicago, No. 9818 (an unreported.case).

From the top of the cement sidewalk to the dirt and stones below the south end of it and directly in line with the sidewalk, and in the public street, was a perpendicular descent or drop of approximately two feet. If the jury believed from the evidence in the record that this condition in the public street, and in the direct line of travel thereon, was not reasonably safe for persons using the sidewalk in the night-time, they were, in onr opinion, warranted by the evidence in the record in finding that appellant was guilty of negligence in so maintaining the public street without lighting it at this point in the night-time. No guard was placed there of any kind, nor was any incline of plank or dirt maintained leading from the cement sidewalk to the ground below.

Whether appellee was in the exercise of due care for her own safety, and whether the damages awarded by the jury are excessive, are questions on which, under the evidence, the verdict is conclusive.

Errors are assigned upon the rulings of the court in sustaining objections to certain questions propounded to Dr. Hall. The witness was asked: “Doctor, state, if you will, what you mean by gall-stone?” The evidence showed that appellee had never had gall-stones. This was demonstrated by an operation on her gallbladder. There was, therefore, no question of gallstones in the case. The evidence was properly excluded. These remarks apply also to the ruling on the question: “What are the conditions, doctor, that in your opinion would indicate the presence of gallstones ? ’ ’

This witness was asked: “What are those symptoms (referring to symptoms of appendicitis?)” While an objection to this question was sustained, the witness was afterwards permitted to answer fully the question: “What would be the indications of appendicitis?” We think appellant was not injured by the ruling.

We find no reversible error in the examination of Dr. Price.

Complaint is made because the court gave the following instruction at the instance of appellee:

“If the jury find from the evidence that the plaintiff has made out her case by a preponderance of the evidence, as alleged in the declaration, then the jury should find the defendant guilty.”

In U. S. Brewing Co. v. Stoltenberg, Admr., 211 Ill. 531, the court gives a long list of cases in which it has approved this instruction in form and substance.

The record appears to be free of substantial error, and the judgment is affirmed.

Affirmed.


text:
    North American Union v. Ida Trenner.
    Gen. No. 13,686.
    1. Pleading—when informality of plea waived. The conclusion of a plea, though informal, is not material, on review, where the demurrer sustained thereto was general and did not go to the form.
    2. Insubance—effect of incontestable clause. An incontestable clause in a policy of insurance does not preclude the defense of suicide where the suicide clause in the policy is a part of the contract to pay, providing how much shall be due and payable, in the event of death by self-destruction.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1907.
    Reversed and remanded.
    Opinion filed January 28, 1908.
    Robert S. Iles, for appellant; R. E. Hamilton, of counsel.
    LeRoy Hackett, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

Herman W. Trenner was insured in the North American Union, a fraternal benefit society, for the sum of $1,000. July 19, 1905, while he was still a member of the society, he committed suicide, according to the record. Ida .Trenner, appellee, the beneficiary named in the benefit certificate, brought this suit in the Circuit Court and recovered a judgment against appellant for $1,000, and this appeal is prosecuted to reverse the judgment.

In her declaration appellee sets out the benefit certificate as follows:

“Number Dollars.
6247. $1,000.00.
North American Union Benefit Certificate.

This is to certify that Herman W. Trenner is a member of the North American Union, duly admitted to membership in Lake City Council No. 51 thereof, on the 30th day of June, A. D. 1899, and that he is a contributor to the Mortuary Fund and the Reserve Fund of said North American Union, and as such is entitled to all the rights, privileges and benefits, and is charged with all the obligations of such membership.

And Witnesseth: That upon condition that the statements made by said member in his application for membership in said council, the representations and agreements made and subscribed by him in the medical examiner’s blank, and the answers given and certified by him to the Medical Examiner, all of which representations, agreements, statements and answers are hereby acknowledged and declared by him to be warranties, be made a part of this contract, and upon condition that the said member complies in future with the laws, rules and regulations now governing the said North American Union, and the mortuary and reserve funds thereof, or that may hereinafter be enacted to govern the same, all of which said laws, rules and regulations are also made a part of this contract, and "upon said member assenting to and complying with all the conditions herein provided, the North American Union hereby promises and binds itself to' pay out of its mortuary fund to Ida Trenner, his wife, the sum of one thousand dollars, in accordance with and under the provisions and the laws governing the said fund, upon satisfactory proof of the death of said member, and upon the surrender of this certificate, provided that said member is in good standing in this Association at the time of his death, and provided also that this certificate shall not have been previously surrendered by said member, or cancelled, in accordanee with the laws of this Association, and subject also to the following provisions:

Total and Permanent Disability : If said member shall at any time after he has been a member of this Association for a continuous period of three years, become totálly and permanently disabled from following any occupation not prohibited by the laws of this Association, he may, upon satisfactory proof of such total permanent disability, surrender this certificate and receive one-half of the sum herein agreed to be paid in case of his death, which payment shall be a full acquittance of all the obligations of this contract, and shall conclude and terminate all the rights and interests of said member, and the beneficiary or beneficiaries named herein, and acquired by virtue of his membership in said Association.
Annuity: When said member shall have reached the age of seventy years, no further payments of assessments shall be required, and he shall be entitled, at his option, to receive annually from and after his seventieth birthday, as an annuity, a sum equal to one-tenth of the amount agreed to be paid at his death, the aggregate amount of such annual payments shall in no case exceed the mortuary benefit herein agreed to be paid, and shall be charged against such mortuary benefit, and his beneficiary or beneficiaries shall be entitled at his death to receive only the balance due after deducting the sum total of said annual payments so made.
Suicide : Should said member die by his own hand or act, sane or insane, and while he is a member of this association, his beneficiary or beneficiaries shall in such case receive only one-half of the amount herein agreed to be paid as a mortuary benefit.
Expulsion or Default: If said member shall be expelled, or shall fail in his payments to the Mortuary and Reserve Funds, or shall default in any of his agreements, or shall suffer his membership to be terminated from any cause, prior to his death, he shall forfeit to said North American Union all moneys paid in by him on account of his membership in the Association, and he and his beneficiary or beneficiaries shall forfeit all rights acquired by virtue of his said membership, and shall not be entitled to any of the payments herein provided.
Incontestable: This contract shall be incontestable after two years from the date hereof, except for non-payment of dues, assessments, fines or premiums, engaging in prohibited occupations or becoming habitually addicted to the excessive use of intoxicating liquors, opium, or other injurious drugs or substances, contrary to the laws, rules and regulations of the Association, and the agreements of the member.
In Witness Whereoe, the North American Union has hereunto affixed its seal, and caused this certificate and agreement to be signed by its Supreme President and attested and recorded by its Supreme Secretary, at Chicago, Illinois, this 1st day of July, A. D. 1899.
(Signed) Egbert S. Iles,
(Seal) Supreme Pres’t.
(Signed) GK Langhenry,
Supreme Secretary.
We hereby certify that the within named Herman W. Trenner was duly admitted to membership in Lake City Council No. 51, North American Union, on the 30th day of June, A. D. 1899.
(Signed) E. F. Bosenberg,
President.
(Seal) (Signed) Arthur E. Piggott.
Secretary.
I hereby accept this certificate on the conditions hereinabove named and assent thereto and agree to comply therewith.
(Signed) Herman W. Trenner.”

Appellant pleaded the general issue and a special plea. The plaintiff joined issue on the first plea and filed a general demurrer to the special plea, which was sustained by the court, and leave was granted to the defendant to file an amended special plea within five days. Within that time the defendant filed the following special plea:

“Defendant comes and defends the wrong and injury when, etc., for further plea in this behalf, says that plaintiff, because of anything in her declaration, ought not to prevail in her said action against defendant, when it says that in and by the benefit certificate or policy of insurance entered into by defendant and said Herman W. Trenner and upon which plaintiff relies, it is specially provided as follows: ‘ Suicide : Should said member die by his own hand or act, sane or insane, and while a member of this association, his beneficiary or beneficiaries shall in such case receive only one-half of the amount herein agreed to be paid as a mortuary benefit.’ Defendant further says that by said contract so entered into by defendant and Herman Trenner, as alleged in plaintiff’s declaration, and upon which plaintiff relies, it is specially provided and made a condition of membership of defendant that said Herman Trenner should comply with all the laws, rules and regulations governing defendant and the mortuary and reserve funds thereof, then in force at the date of this admission, or that should thereafter be enacted to govern the same; and further specially provided in said contract that all of said laws, rules and regulations of said defendant be and are made a part of said contract of insurance, and do and are and constitute a material part thereof. That said Herman Trenner by express agreement in writing accepted said contract and assented to its conditions and provisions and agreed to comply therewith and signed his acceptance, as will appear by contract set out in plaintiff’s declaration; that laws of defendant, in force at date of admission of said Trenner, and at date of execution of contract to him, provided that if a member of defendant should die by his own hand or act, sane or insanse, his beneficiary or beneficiaries should be entitled to receive only one-half of the amount specified in the certificate of membership or policy of insurance of such member, and that said certificate and contract issued to said Trenner upon which plaintiff relies was executed to said Herman Trenner in pursuance of said laws and in full compliance with the terms thereof, and was so accepted by said Trenner under and in compliance with said laws and according to the strict meaning and intent of said laws, and that in and by said rales and regulations of defendant it is provided that the terms of said contract between the members and defendant shall be stated in the contract or benefit certificate issued to such member and that the terms of said contract between said Herman Trenner and defendant were and are stated therein, and that said terms so stated have not been changed, altered or amended by the laws, usages or regulations of defendant since the execution of said contract on the date of the death of said Herman Trenner, was still in full force and effect according to its terms and conditions.

“Defendant further avers that said Herman Trenner did, after entering into the said contract, to wit: July 19, 1905, while a member of defendant, commit suicide, and did, on, to wit: July 19, 1905, die by his own hand or act, wherefore there became and was due under the terms of the contract $500 payable to plaintiff as beneficiary, which said sum was and is the full amount due plaintiff, and is in full compliance with the terms of said contract and is one-half of the amount contained therein.

“Defendant further avers that before the beginning of this suit and immediately after proofs of death were sent to defendant, defendant' tendered to plaintiff said $500 in full payment of contract of insurance according to its terms and provisions; that plaintiff refused to receive the same; that defendant has ever since remained and is still ready and willing to pay the $500, but that plaintiff has refused to receive the same; that defendant brings said $500 into this court ready to be paid to plaintiff in full satisfaction of said claim if she will accept the same. Defendant puts itself upon the country. ’ ’

To this plea the plaintiff filed a general demurrer which the court sustained. The defendant elected to stand by its plea and the court thereupon assessed the plaintiff’s damages, without a jury being waived, at the sum of $1,000, and entered judgment.

With a plea of the general issue on file, it was manifest error to assess damages by reference to the court, but as counsel for appellant do not present the point in their brief, it is waived.

Error is assigned and argued upon the ruling of the court in sustaining the demurrer to the amended special plea.

By the pleadings the contract, the suicide of the insured, and the tender of one-half of the amount specified in the benefit certificate, namely, $500, in payment of the mortuary benefit thereunder, and the refusal to accept the tender, are admitted. This presents the question,—does the plea set up in substance a good defense to the action? The conclusion of the plea is not formal, but the general demurrer does not go to the form.

The contract of insurance is entire and contains no ambiguous terms or provisions which call for construction or interpretation. The terms and the amounts payable thereunder are definitely and clearly fixed. Appellant contracted to pay out of its mortuary fund to appellee $1,000 in accordance with, and under the provisions of, the laws governing the fund, upon satisfactory proofs of the death of said Herman W. Trenner, providing he was in good standing in the association at the time of his death, and the certificate had not been surrendered or cancelled, subject “to the following provisions. ’ ’ Then follow provisions as to total and permanent disability, an annuity, suicide, expulsion or default, and that the contract would be incontestable after two years from its date.

The provision as to suicide is set out in the declaration, and also in the plea, and provides that “should said member die by his own hand or act, sane or insane, and while he is a member of this association, his beneficiary or beneficiaries shall in such case receive only one-half of the amount herein agreed to be paid as a mortuary benefit. ’ ’ On the admitted fact averred in the plea that Herman W. Trenner, the insured member, died by his own hand or act, considered in connection with the other provisions of the contract, appellee is entitled to receive from appellant $500 and no more.

But it is contended in behalf of appellee that even though Trenner came to his death by suicide, the incontestable clause of the contract applied, and The Royal Circle v. Achterrath, 204 Ill. 549; Grand Legion Selected Knights v. Beaty, 224 id. 346; and Protection League v. McKee, 122 Ill. App. 376, are cited in support of the contention. We think those cases do not apply to the case at bar. The contracts passed upon and construed in those cases are quite different in their provisions from the contract shown in the record. •The suicide clause in the contract before us is a part of the contract to pay, providing how much shall be due and payable under the circumstances named therein. Insisting upon this clause and offering to comply with it, and pay one-half of the amount named in the contract, and tendering the same to appellee, is not contesting the validity of the contract. On the contrary, it is admitting its validity, and is doing all that appellant is required to do to perform and fulfill the contract on its part. Bach and all of the above named provisions following the agreement to pay $1,000 to appellee are modifications of that agreement, and define the rights of the parties in the several contingencies specified therein. The agreement to pay the sum specified to appellee is contingent upon the subsequent conditions, and by express provision is made subject thereto. The incontestable clause does not waive or supersede any of them. It relates to the contract of membership entered into by the insured, and not to the terms of payment provided in the contract.

It follows that the court erred in sustaining the demurrer to the amended special plea,'and for that error the judgment is reversed and the cause is remanded.

Reversed and remanded.


author: Mr. Presiding Justice Holdom

text:
    Electric Vehicle Company v. Fred A. Price.
    Gen. No. 13,613.
    1. Husband and wife—when latter not competent as witness for former. Unless a wife has acted as the agent of her husband, she is not a competent witness in litigation to which he is a party.
    2. Rescission—when must be made. If a machine purchased and delivered under a contract does not conform to contract requirements, rescission by the vendee must be made within a reasonable time after receipt of the machine.
    3. Remedies—where machine delivered is not in accordance with contract. Where a machine is delivered under a contract the remedies of the vendee are (1) rescission within a reasonable time, (2) an action for damages for breach of contract, and (3) recoupment of damages for breach of contract in an action for the purchase price.
    4. Contract—what not competent to vary terms of. It is not competent to vary the terms of a written contract by a showing of contemporaneous agreements and representations.
    5. Verdict—when trial court without power to amend. The trial court has no power after the lapse of the term at which a verdict is returned to amend the same by adding thereto material words.
    6. Instructions—what must not submit to jury. An instruction should not submit to the jury the determination of questions of mixed law and fact.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in this court at the March term, 1907.
    Reversed and remanded.
    Opinion filed February 13, 1908.
    Hoyne, O’Connor. & Irwin, for appellant.
    Judah, Willard, Wolf & Reichmann, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The controversy here relates to a sale by appellant to the appellee of a Columbia Electric Automobile Mark LX Runabout, with top, of standard type, equipped with wooden wheels, pneumatic tires, etc. The price is $975. The contract of sale is in writing, signed by the parties, and contains the terms and conditions of the sale. Two hundred and fifty dollars was paid upon the purchase price when the contract was signed, the balance of the purchase price being payable upon delivery of the vehicle.

As the case must be reversed for errors of law and will be remanded for a new trial, we shall confine our review and discussion to those questions sufficient to support the conclusions to which we have arrived.

It seems that Price saw a model of the vehicle, covered by the contract of sale, in an automobile show in Chicago, and made the contract to purchase one through Frank J. Fanning, the Chicago representative of appellant. The contract is dated February 22, 1904, and the machine was delivered in Chicago to appellee in May following. A circular of appellant, descriptive of the vehicle sold, setting forth its mechanism and qualities, and its ability as to speed and endurance under specified conditions, was received in evidence as a part of the contract against the protest of appellant. When appellee took the machine from Fanning, the agent, in May, 1904, he testifies that he told Fanning that he “would not accept it until he tried it to see if it was what he expected to get.” From the day after he took the machine from Fanning he ran it upon the streets of Chicago and its environing suburbs, with short interruptions, until September, when he left it with Fanning for repairs, since which time he has not called for it, but repudiated the contract and refused to comply with it by paying the balance due on the purchase price and receiving the machine.

The machine was sent to the Chicago branch office for repairs several times, and also on the complaint that it did not develop the speed set forth in the circular.

Mrs. Price, the wife of appellee, testified at his instance against the objection of appellant. Her testimony is confined to the manner in which the machine worked and of complaints made to Fanning and conversations had with him about the machine, and of complaints which her husband made in relation to it, and of conversations between Fanning and appellee in her presence.

The jury found the issues for the appellee, and the court in overruling appellant’s motion for a new trial amended the verdict by adding to it a finding in favor of appellee on his plea of set-off for the $250 paid upon the contract, and gave judgment thereon against appellant.

The errors controlling our decision consist in the admission of the so-called circular in evidence, permitting the wife of appellee to testify, in not holding •that the contract in evidence for the sale of the machine was binding upon the-parties, and in amending the verdict of the jury in a matter of substance one month after its rendition, and error in the giving of instructions.

Mrs. Price was clearly incompetent to testify in behalf of her husband, the appellee. In no sense was she the agent of her husband in the transaction. Price made his own contract, signed it with his own name in person, conducted all the negotiations leading up to the making of the contract; he went to appellant’s office and received the machine from its agent, Fanning, returning it several times, making his own complaints. He makes no pretense in his testimony that his wife was his agent in this matter, neither can there be extracted from his or his wife’s evidence any facts which in law would constitute Mrs. Price the agent of her husband. Mrs. Price clearly falls within the inhibition of the statute, and does not bring herself within the exemption clause. R. S. Ill., chap. 51, sec. 5; Robertson v. Brost, 83 Ill. 116; Hayes v. Parmalee, 79 Ill. 563; Poppers v. Wagner, 33 Ill. App. 113.

Mrs. Price is no more qualified to give testimony in this case than was the wife in the case of Robertson v. Brost, supra, where the husband attempted to qualify his wife as a witness in his behalf by constituting her an agent to collect an account for coal already delivered, and thereby enable her to testify as to what the debtor said to her when she presented the account for payment. As the court said in that case, so we say in this—“We are of the opinion the wife should not have been received as a witness at all.” Her testimony must relate to transactions had by her as agent for her husband, in order for her to come within the saving clause of the statute, not as to conversations and admissions made relative to the transaction after the transaction itself has been made and concluded by the husband.

The contract of the parties has this provision:

“All previous communications between the parties hereto, either verbal or written, with reference to the subject-matter of this proposal are hereby abrogated, and this proposal duly accepted and approved constitutes the sole agreement between the parties hereto as to the subject-matter hereof, and no modification of this agreement shall be binding upon the parties hereto, or upon either of them, unless such modification shall be in writing duly accepted by the purchaser and approved by an executive officer of the company. ’ ’

This provision is in effect a statement of the law governing written contracts. This contract being the contract of the parties, their rights, obligations and duties must be admeasured in accordance with its covenants and provisions.

It is not denied that appellee received the kind of machine called for by the contract. If the machine was not according to contract, and appellee sought to repudiate the contract for that reason, then it was incumbent upon him, immediately upon ascertaining that fact, to return the machine to appellant. Under no circumstances could he keep the machine longer than a reasonable time in which to ascertain defects constituting it as variant from the kind of a machine bargained-for in the contract. Beyond this he must be held to have accepted the machine under the contract, and if it was in fact deficient in any material respect from that in the contract bargained for, he must resort to an action for damages as for a breach of contract in this respect, or recoup such damages in an action for the purchase price. Underwood v. Wolf, 131 Ill. 425. By the very terms of the contract all previous or contemporaneous agreements and representations were merged in the contract, and the rights of the parties were by the contract as well as under the law so environed. The circular which contained any statement or representation variant from the terms of the contract or in conflict with any of its provisions, was inadmissible as evidence affecting or in any manner changing the contract rights of the parties. Telluride Power Co. v. Crane, 208 Ill. 218; Schneider v. Sulzer, 212 ibid. 87.

In the case at bar appellee claims, to have bought the machine on the representation that it would be the same in every respect as one which he had seen at the automobile show. If this is the fact, then upon appellee rested the burden of proving that the machine received by him was not according to the sample, and to recoup such damages as he may have sustained by reason of that fact, if it was a fact; not to keep the machine in excess of four months and then return it with a repudiation of the contract in faith of which it was delivered to him.

While it is admitted a court has the power to amend the verdict of a jury in a matter of form, still it is equally as well settled that such a power is denied the court in matters of substance. The trial court one month thereafter,, and at the succeeding term amended the verdict by adding to it these words, “and assess the defendant’s damages at the sum of $250 on his plea of set-off.” This is in itself reversible error. It is idle to contend that such amendment was only formal. It was' the determination by the court of the merits of the cross-action under the plea of set-off. It was not only the form, but the very substance of appellee’s counter claim. It may well be, in the view the learned trial judge took of the law and the instructions given to' the jury, that the jury’s verdict should logically have included a finding for the amount proven under the plea of set-off. But as they did not do so, why they did not is immaterial. Their failure did not clothe the court with the power to usurp the function of the jury and in a summary manner supply the delinquency, if such it was, by amending their verdict. This was an invasion of the constitutional right of appellant to a trial by jury of the claim made against it. As said in Ayer v. City of Chicago, 149 Ill. 262: “When the court set aside the judgment based upon the verdict of the jury, and changed the verdict in the manner already stated at a subsequent term, and in the absence and without the consent of the jury or of appellants, there was a new verdict rendered, not by a jury, but by a court acting without a jury.” These observations are forcibly applicable here and equally conclusive against appellee’s contentions to the contrary. An examination of authorities cited by counsel for appellee, and claimed by them to announce a contrary doctrine, does not show them, in our opinion, susceptible of the construction claimed for them by counsel. The doctrine of the Ayer case is the law of Illinois. No case in this jurisdiction holding to the contrary has been cited, and we assume from counsel’s diligence (of which their brief is cogent proof) for the reason none exist. Our research has failed to disclose any case detracting from or in any particular modifying the ruling in the Ayer case.

We have examined all the instructions urged upon us as being erroneous. We do not agree with counsel in their criticism of the first of appellee’s instructions. They have evidently misinterpreted its force as applied to the facts. Appellant made a prima facie case, within the legal intendment of this instruction, upon proof of the contract and the delivery to appellee of the machine called for by the contract and the amount of the purchase price remaining unpaid. Breach of warranty, if any there was, or that the machine was not the same as the sample from which it was honght, were matters of defense under pleas of recoupment or set-off.

We think the second, third, fourth and fifth instructions possess the infirmities attributed to them by appellant. These errors proceed from the erroneous theory of the defense upon which the cause was submitted to the jury. Mixed questions of law and fact were submitted to the jury under instructions two, three and four. Wallard v. Worthman, 84 Ill. 446. The fifth instruction was erroneous in telling the jury in effect that the agent of appellant could change the terms of the written contract, and that appellee had the right to insist on taking the machine on trial before accepting it. Both of these directions were contrary to appellant’s right under the contract.

For the errors indicated the judgment of the Superior Court is reversed and the cause remanded for a new trial conformable to the views here expressed.

Reversed and remanded.


text:
    Michael J. Cahill et al. v. Alice Wier Printy, Administratrix, et al.
    Gen. No. 13,624.
    1. Abstract—when not in compliance with rule. An abstract does not comply with the rules of court which merely mentions the fact that objections and exceptions were interposed to a master’s report, but fails to set forth what such objections or exceptions were or what disposition was made thereof.
    2. Book account—when not competent. Entries contained in a memorandum book are not competent where it does not appear that the book was kept or used in any regular course of business or that the entries were made in chronological order or that such entries were contemporaneous with the items entered.
    Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honor®, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed February 13, 1908.
    Dickinson, Morrison & Rost, for appellants.
    Charles W. Taylor, A. S. Robertson and Philip S. Brown, for appellees.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from a decree under a bill to foreclose a trust deed in the nature of a mortgage of certain real estate situate in the city of Chicago. The trust deed secured two notes of appellant, Michael J. Cahill, each payable to his own order and indorsed by him in blank, one for the sum of $2,387, delivered to and held by Mary McElroy at the time of her death, and the other for $75, delivered to and held by J. Frank Tyrrell at the time of his death. The holders of both notes died before the filing of the bill. The estate of J. Frank Tyrrell, through Catherine Burns, its administratrix, came into the cause by petition, asking permission of the court to participate in the proceeds oí a sale of the mortgaged premises to the extent of the amount due upon the $75 note. Copeland and Byan were made parties under an averment that they claimed some interest in the mortgaged premises accruing subsequent to the lien of the trust deed, and that such interest, if any, is held by them in subordination to the lien of the trust deed for the payment of the indebtedness evidenced by the two notes in the bill and trust deed described.

The answers of Cahill and Copeland admit the material averments of the bill, including the execution and delivery of the trust deed and the notes therein described, but Cahill sets up that Mrs. McElroy, at the time of her death, was indebted to him in a large sum of money for his personal service and attention to her and her business affairs and for disbursements made in her behalf, and seeks to offset such claims against the note for $2,387, forming an asset of her estate. Cahill also filed a cross-hill, setting ont the same matters contained in his answer. The canse was referred to a master in chancery, with directions to take the proofs, and report his conclusions upon the facts and the law. The parties submitted their proofs before the master and he made in due time his report to the chancellor, after overruling objections thereto, and the court confirmed the master’s report and entered a decree of foreclosure upon the original bill for the amount found due, with costs, and dismissed for want of equity Cahill’s cross-bill. So far as we are able to gather from the abstract and briefs of appellants on file, the errors assigned and argued, challenge the correctness of the decree in the following particulars: First, in not allowing the counter-claim of Cahill, and in excluding from the record the evidence thereof given before the master; and, second, that in the taxing of stenographers’ fees as part of the costs, and also the statutory fee of the master for taking and transcribing the evidence, there is a double taxation of costs.

The following portion of the master’s report appears in the abstract:

“I further find that all the evidence offered by said defendants, Michael J. Cahill and Earl Copeland, was incompetent, irrelevant and immaterial, because the demands of said defendant, Michael J. Cahill, against said complainant’s intestate, Mary E. A. McElroy (if any such demands ever existed, and there is no competent evidence as to such demands), were wholly of. an equitable nature, unconnected with the debt evidenced by said promissory note and trust deed (Complainant’s Exhibits 1 and 2), and cannot be set off against said debt, and because all the evidence offered to support such demands is in the nature of hearsay evidence and is unworthy of belief.
“In regard to the alleged account between the defendant Michael J. Cahill and the said Mary E. A. McElroy, contained in the book marked Defendants’ Exhibit 1, of November 23,1906,1 find from an inspection of the same that it is entirely unworthy of belief or any credence whatsoever, the various items, although differing in dates, apparently were written at one time, in pencil, and by the same person.”

On the threshold of our labors in review we are confronted with an alleged abstract of the record which is glaringly a gross violation of the requirements of the rules of this court in relation to the manner of its preparation. There is no coherency of detail in it. It is disjointed, unconnected, discursive and wholly unintelligible as an abstract, and leads nowhere but to confusion. An understandable case cannot be extracted from this abstract. It is a veritable jungle of incoherent extracts made from the pleadings and proofs. To illustrate: The basic rights of the parties rest in the terms and covenants of the trust deed, but not one of the covenants is even shadowed forth in the abstract. None of the exhibits are abstracted. The alleged book account, in reliance on the verities of which Cahill’s whole defense is founded, while referred to, is in no sense abstracted. No succinct or intelligent statement of this book account can be found anywhere in the abstract. The so-called ‘Recapitulation Summary” falls far short of meeting such requirement. The abstract before us does not even serve the purpose of a chronologically correct index to the record. It also violates all precedent and practice in italicizing and putting in ‘small caps.” such matter as counsel indicate bear more particularly in favor of their contentions. Such palpable ignoring of the rules of this court prescribing the method to be followed in the preparation of abstracts cannot receive our sanction, even by indirection, which would be inferable from our ignoring the breach. The Supreme Court, as well as this court, has frequently admonished counsel who have been derelict in this regard. The Supreme Court Say in City Electric Railway Co. v. Jones, 161 Ill. 47: “Everything upon which error is assigned must appear in the abstract.” In Gibler v. City of Mattoon, 167 Ill. 18, it is said: “It is the duty of parties bringing cases here for review to prepare and file complete abstracts of the record, in accordance with the rules, and such abstracts as we can safely rely upon. It is not our duty to perform this work of counsel, which, in detail, as to them, is inconsiderable, but when imposed upon us, in the aggregate, extremely burdensome. It is not meant to be said that the record is voluminous in this case, or that the abstract is deficient in other respects not mentioned, but the rule is the same in all cases and should, not be relaxed.” The court, in disposing of this ease, grounded its decision on the fact that the errors assigned did not appear upon the abstract, and say: “The point is raised by defendant in error that under the assignment of errors as made and from the record as abstracted no error which would authorize a reversal appears, and this point must be sustained.” These observations are of equal application to the record as abstracted in the case at bar, and fully as controlling. The finding of the master set out in the abstract is amply sufficient to support the decree, in the absence of anything found in the abstract tending to impeach it.

What is relied upon as error must be set out in the abstract, and alleged errors not based upon anything appearing in the abstract of record will not be considered by the court. Harper v. Dixon, 70 Ill. App. 136; Shively v. Hettinger, 67 ibid. 278; Leverenz v. Elder, 65 ibid. 80; Wabash R. R. v. Smith, Adm’x, 58 ibid. 419; Joliet Steel Co. v. Call, 42 ibid. 41; Bangs v. Paullin, 37 ibid. 465; Mueller v. Newell, 29 ibid. 192.

The court will not search the record to find out what the abstract ought to show. Farson v. Hutchins, 62 Ill. App. 439; Heidenbluch v. Rudolph, 50 ibid. 242; Allison v. Allison, 34 ibid. 385.

As said in Spain v. Thomas, 49 ibid. 249, “We have no right to waive the enforcement of these rules” (relating to abstracts) “as a matter of favor in any case, without granting the same indulgence in other cases, and thus effectually suspending the operation of the rules altogether. The Supreme Court in Lancaster et al. v. The W. & S. W. Ry. Co., 132 Ill. 492, hold that such rules, when established, have the force of law and are obligatory upon the court itself as well as upon the parties, and must be administered according to their terms while they remain in force.” Many other decisions to the same purport might be readily quoted; they are numerous and of uniform character, but those cited are sufficient.

The abstract simply mentions that objections and exceptions were filed to the master’s report2 but fails to set forth what the objections or exceptions were, or what disposition the chancellor made of the exceptions. No reversal of a decree can be allowed wñere the abstract fails to disclose the tenor "of the exceptions and the disposition of them by the court.

In Singer v. Steele, 125 Ill. 426, the court say: “The practice is, when a party is dissatisfied with the finding of the master in chancery, he shall make distinct exceptions, so the court can readily understand what matters are at issue between the parties; otherwise it will be understood the party acquiesces in the conclusions and findings of the master.” If he fails to except in the trial court, he cannot do so in a court of review. Such court cannot pass upon exceptions in ignorance of what they are. Failing to appear in the abstract, the court will not search the record in an effort to find them. Foster v. Van Ostem, 72 Ill. App. 307.

Notwithstanding the abstract fails to contain any matter of proof supporting the errors assigned and argued, we will briefly note the merits of the matters urged as constituting error.

Waiving the question of whether or not an open account, such as Cahill’s, could be set off in a proceeding of this character, in which the transaction involved in the bill is admitted and the genuineness of tlfe securities in that hill sought to be enforced unchalleneged, in what does Cahill’s claim rest!

First, an alleged account book, kept in a sporadic way, each item being written in lead pencil by Cahill. No other account in the book; not used in any regular business; not kept in chronological order as to date; made up in a sporadic manner and never exhibited to Mrs. McElroy, and in some respects the items are not only ridiculous but preposterous, such as an item for “14 gross of toilet soap, $280,” under date of October 29, 1902; another item, under date of November 19,1905, “Cemetery flowers for her mother’s, husband’s and son’s graves upon frequent occasions, $110 ”; “ Miscellaneous provisions, etc., for more than three years, $714.09”; “Time acting as her agent for about three years from three to four hours per day at 50c, $1550.” Not a syllable of competent evidence in support of any of these items is found in the record.

' Cahill is clearly disqualified to testify in relation to them, and the testimony of the other witnesses is limited to seeing Mrs. McElroy and Cahill together at infrequent and widely separated intervals, and of casual attentions paid by him to her, and some payments made for meals in a restaurant, of which meals they both partook, and some discursive talks with Mrs. McElroy in relation to what Cahill was doing for her.

It is also said Cahill gave Mrs. McElroy a duplicate note for $2,387 on the representation that the original was lost. This duplicate was not forthcoming, but the original was produced in evidence before the master. How the existence of a duplicate note can affect the right of recovery on the original after its maturity in the absence of proof of payment, we are unable to perceive. If any payments were made upon the debt and indorsed upon the duplicate note, the burden of so proving was upon Cahill. This he failed to do.

Complaint is made that the master illegally charged for taking and transcribing the testimony, because a stenographer was employed to and in fact did both take and transcribe the testimony. The record shows the payment of stenographers ’ fees was made in accord with the written stipulation of the parties. In this stipulation there is no agreement by the master to waive his right to receive the fees allowed for like services by statute. Counsel in urging this objection evidently misconceive the scope of the stipulation to which they were parties.

There is nothing in this record calling for our review which upon examination discloses any reversible error, and the decree of the Circuit Court is therefore affirmed.

Affirmed.


text:
    I. W. Brown v. John S. Kennedy.
    Gen. No. 13,630.

      Exceptions—what not sufficient by way of. Recitals of the clerk contained in the common law record of the fact that exceptions were taken are not sufficient. The bill of exceptions containing such exceptions is essential.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Axel Chateaus, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed February 13, 1908.
    M. L. Thackaberry, for appellant.
    Matthews & Matthews, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment of the Superior Court on the verdict of a jury for $189.61.

The overruling of appellant’s motions for a new trial and in arrest of judgment, and in entering judgment upon the verdict, and in the giving and refusal of instructions, are assigned on the record for error. We find no exceptions embodied in the bill of exceptions to the action of the trial court on either of these motions. In the common law record it is recited that exceptions were taken to these rulings of the court. That, however, is not sufficient to present the actions of the court challenged as errors for review. Steefy v. The People, 130 Ill. 98, is conclusive of the status of appellant on this appeal. There the court say, after a discussion of the merits: “But aside from this view, the bill of exceptions fails to show any exception taken by the defendant to the ruling of the Circuit Court, either in giving, refusing or modifying instructions, or in overruling defendant’s motion for a new trial or his motion in arrest of judgment. It is true that the clerk recites in the record that exception was taken to the overruling of such motions; but it has been so repeatedly held that exceptions to the ruling of the court cannot be preserved in that way, that the citation of authority would seem unnecessary. Such exceptions, if taken, must be preserved in a bill of exceptions, if it is desired to have them made parts of the record. No exceptions having been taken to the order overruling the motion for a new trial, the defendant is in no position to question the sufficiency of the evidence to sustain the verdict.” For a like failure to incorporate in the bill of exceptions any exception to the rulings of the court upon instructions, it was held their correctness could not be questioned in review.

The record, for the foregoing reasons, presenting no question calling for our review, the judgment of the Superior Court is affirmed.

Affirmed.


author: Mr. Justice Adams

text:
    Eagle Fire Insurance Company v. John Spry Lumber Company.
    Gen. No. 13,616.
    1. Jurisdiction—when court of law without. A court of law is without jurisdiction to reform or correct a written instrument.
    2. Contbacts—how enforced in courts of la/w. In a court of law the parties will be held bound by their written contract, the words of which will be taken in their ordinary acceptation, and what the words mean will be held to be conclusive of the intention of the parties.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Willabd M. McEwen, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed February 13, 1908.
    Beach & Brown, for appellant.
    Adams & Froehlich, for appellee.
   Mr. Justice Adams

delivered the opinion of the court.,

Appellee sued appellant on a policy of insurance, which contains the following:

“The Eagle Fire Company of New York in consideration of the stipulations herein named and of Thirty-six and 90/100 Dollars premium does insure the John Spry Lumber Company for the term of One Year from the 24th day of January, 1905, at noon, to the 24th day of January, 1906, at noon, against all direct loss or damage by fire, except as hereinafter provided, to' an amount not exceeding One Thousand Dollars to the following described property while located and contained and described herein, and not elsewhere, to-wit:
“John Spry Lumber Company.
$1000.00—On Lumber, lath, shingles, pickets, posts, timber, or other merchandise, not more hazardous, their own or held by them in trust, or on commission, or sold but not delivered, all contained in their yard, or in buildings, sheds, or cars on track in said yard, situated on. the East side of Ashland Avenue, extending- north from the West Branch of the South Branch of the Chicago River, Chicago, Illinois.

Other insurance permitted until required.

Warranted by the assured that streets shall be kept clear of lumber; that piles of lumber shall not exceed 35 feet in height; and that a clear space of 65 feet shall be maintained between lumber and mill and addition on south.”

Then follow customary provisions, in respect to which no question is made.

The testimony is in the usual form in such cases as this, and its sufficiency is not questioned. The defendant pleaded the general issue unverified. The parties waived trial by jury and submitted the cause to the court for trial. The court found the issues for the plaintiff and assessed its damages at the sum of $768.09, and entered'judgment for that sum and costs. It is not claimed by the defendant that the evidence is not amply sufficient to sustain the judgment. The claim of the defendant is that it is not liable on the policy. It is contended by defendant’s counsel that the defendant’s intention was to insure only the property in that part of the plaintiff’s yard north of the clear space of sixty-five feet, which was maintained by the plaintiff, in accordance with the terms of the policy, which property was not destroyed by the fire which occurred October 6, 1905. The property destroyed by that fire was in the yard described in the policy, and was south of the sixty-five feet space. It is not contended that the last property was not included in the description of property in the policy, nor is it contended that the plaintiff procured the execution of the policy by fraud. The sole contention, as above stated, is that the defendant intended to insure only the property north of the sixty-five feet space. In other words, that the writing of a policy which includes all property in defendant’s yard of the kinds described in the policy was a mistake. The defendant introduced evidence which its counsel claim tends to prove the mistake. To discuss this evidence would be a mere waste of time, for the reason that a court of law has no jurisdiction to correct mistakes in written contracts. In a law court the parties will be held bound by the written contract, the words of which will be taken in their ordinary acceptation, and what the words mean will be held to be conclusive of the intention of the parties. “In the construction of contracts the intention of the parties, to be ascertained from the words employed, the connection in which they are used and the subject-matter in reference to which the parties are contracting, must control, and 'courts are powerless to interpolate terms and conditions into the contract to which the minds of the parties have not given consent.” Hayes v. O’Brien, 149 Ill. 403, 414. “When the language employed is unequivocal, although the parties may have failed to express their real intention, there being no room for construction, the legal effect of the instrument will be enforced as written. Intention of the parties is not to be determined from previous understandings or agreements, but must be ascertained from the instrument itself, which they execute as their final agreement; otherwise written evidence of an agreement would amount to nothing.” Clark v. Mallory, 185 Ill. 227, 232.

The policy in question is plain, unambiguous and unequivocal, and clearly includes in unmistakable terms the property lost by the fire of October 6,1905.

The judgment will be affirmed.

Affirmed.


text:
    William S. Reed v. Robert C. Light.
    Gen. No. 13,629.
    1. Transcript op record—when objection to, insufficient. An objection to the transcript of a judgment rendered in a sister state, predicated upon the ground of incompleteness, is insufficient in the absence of specification of what is omitted.

      2. Jurisdiction—when appears from transcript of judgment. Jurisdiction of a court to render a judgment against the defendant is sufficiently shown by the transcript thereof where such transcript contains an appearance by the defendant.
    Action in debt. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed February 13, 1908.
    Charles F. Davies and Francis M. Lowes, for appellant.
    Peckham, Packard, ApMadoc & Walsh, for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

Appellee sued appellant in debt on a judgment of the Superior Court of Marion county, Indiana, for $20,000. The declaration is in the usual form, and its sufficiency is not questioned. The appellant pleaded nil debet, nul tiel record, and a special plea averring that the defendant was allowed an appeal from the Indiana judgment and perfected the same, and that the cause was then pending on appeal in the Indiana Appellate Court. The appellee took issue on the plea of nil debet, traversed the plea of nul tiel record, and traversed the plea that the Indiana cause was pending on appeal in the Appellate- Court of that state. The cause was tried by the court, without a jury, by agreement of the parties. Appellee put in evidence a transcript of the proceedings in the Indiana court, certified by the clerk of that court, under the seal of the court, to be a true and complete copy of said proceedings, with the certificate of the presiding judge, also under the seal of the court, that the certificate of the clerk was in due form of law, and that the clerk signing such certificate was, at the time of making and signing the same, clerk of the Superior Court of Marion county, Indiana, and that his signature to the certifieate was genuine; also a certificate of the clerk, under the seal of the court, that the judge who signed the aforesaid certificate was, at the time of signing the same, the duly qualified and commissioned presiding judge of the court, according to the law of Indiana.

The appellant offered no evidence. The court found the issues for the appellee, and rendered judgment for appellee for the sum of $20,413.89, which sum includes interest.

Appellant’s counsel contend that the transcript of the Indiana judgment should not have been admitted in evidence, because it is not properly authenticated. The objection of counsel made in the trial court to the admission in evidence of the transcript is as follows:

“Counsel for defendant objected to the introduction of the alleged instrument on the ground that it was incompetent and irrelevant, and on the further ground that no copy of it had been filed in said cause ten days before the first day of the present term of court, as by statute required, and on the further ground that the said alleged instrument did not show any valid or binding judgment against the defendant, William S. Reed; that said instrument was not a true, full and complete copy of the record in the case in which said record was entitled; that the certificate thereto was informal and incomplete, and that said instrument was not a properly exemplified copy of any judgment against the defendant Reed.”

The authentication of the transcript is as required by the act of Congress, and is sufficient. Horner v. Spelman, 78 Ill. 206, citing Ducommun v. Hysinger, 14 ib. 249. The objection in the trial court, “that the said alleged instrument did not show any valid or binding judgment against the defendant,” is contradicted by the transcript itself. The record shows the verdict of the jury in these words: “We, the jury, find for the plaintiff and assess his damages in the sum of $20,000, twenty thousand dollars,” and shows the judgment of the court in these words: “It is therefore considered, ordered and adjudged by the court that the plaintiff have and recover of and from the defendant herein the sum of twenty thousand ($20,000) dollars, together with his costs herein laid out and expended, taxed at....................................dollars.” We think, also, the objection was too general, as also was the next one, namely, that the said instrument was not a true, full and complete copy of the record in the case, in which said record was entitled. The transcript of the proceedings in the Indiana court was the only evidence before the court when the objection was made, so that if anything was omitted from the transcript, the omission could only be evidenced or indicated by the transcript itself. The transcript occupies about thirty-two typewritten pages of the record before us, and it was not the duty of the court to search through the transcript for the purpose of ascertaining whether anything properly belonging to the record was omitted. If there are in the transcript any indications that parts of the record proper are omitted from it, it was incumbent on appellant’s attorneys to call the court’s attention specifically to such indications. This they failed to do, and the court did not err in overruling the objection.

In Johnson v. Holloway, 82 Ill. 334, it was objected that the transcript of the proceedings before a justice of the peace was incomplete, because there was no copy of the summons or the return thereof in it. The court, referring to the objection in the trial court, say: “The objection was general and no specific grounds were stated. Had the ground now urged been pointed out when the transcript was offered in evidence, there can scarcely be a doubt but the summons, or a copy of it, could and would have been produced, thus showing complete jurisdiction to render the judgment. A party should not be permitted to reserve such objections to be raised for the first time in this court, ’ ’ etc.

Appellant’s counsel contend that it does not appear from the transcript that the Superior Court of Marion county, Indiana, had jurisdiction, and that it was incumbent on appellee to prove that it had. " It appears from the transcript that the appellant appeared in the cause in the Superior Court and denied the averments in appellee’s complaint, so there can be no question that the court had jurisdiction of the parties, and there is nothing in the transcript showing that appellant ever called in question the jurisdiction of the court. On the contrary, by appearing generally, pleading and participating in the trial, he acted on the hypothesis that the court had jurisdiction. It is argued that jurisdiction cannot be presumed, but the contrary seems to be the law in this state. In Rendleman v. Rendleman, 118 Ill. 257, a transcript of the proceedings of the District Court of Kansas was in evidence, in respect to which the court say: “It is also objected that it does not affirmatively appear, from the record offered in evidence, or otherwise, that the District Court of Kansas had jurisdiction of the subject-matter of the suit, and that for that reason the defendant is not to be affected in this proceeding by the adjudication in that court. We do not concur in this view. The record in question is authenticated in strict conformity with the act of Congress, and there is nothing upon the face of it, or otherwise, to indicate a want of such jurisdiction. The suit, as appears from the record, was entirely regular, and according to the usual course of judicial proceedings in such cases. Such being the case, we must presume that the District Court of Kansas possessed the powers which it assumed to exercise. This view, while it may not be in accord with some of the earlier cases on the subject, is believed to be sustained by the current of recent decisions, and by the most approved text-writers. Abbott on Trial Evidence, 545; Freeman on Judgments, 565; 4 Wait’s Actions and Defenses, 193; Rae v. Hulbert, 17 Ill. 572.”

It appears from the transcript that the Indiana court is a court of record, having a clerk and seal, and that its jurisdiction is commensurate with the county. We cannot sustain any of appellant’s contentions.

Counsel for appellee urge that the appeal was taken for delay, and that the judgment should be affirmed with damages. We are of that opinion, and the judgment will be affirmed with one per cent, of $20,413.89, the amount of the judgment, or $204.13, as damages for delay.

Affirmed with damages.


text:
    Charles Volkman et al. v. John McMullen.
    Gen. No. 13,646.
    1. Master and servant—what does not establish due care of former. The due care of a master is not necessarily established by a showing that the methods employed by him were the “usual, «ordinary and customary means employed” in performing the kind of work in question.
    2. Instructions—need not repeat. It is not error to refuse a correct instruction if the contents thereof are substantially contained in another instruction given.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthiix, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed February 13, 1908.
    Horton, Brown & Miller, for appellants.
    J. A. Bloomingston, for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

Appellee recovered judgment against appellants for $3,000 in an action in case, for personal injury claimed to have been occasioned by the negligence of appellants. The only questions argued by appellants ’ counsel are alleged errors in the refusal of instructions. It is contended that the court erred in ref using to give, at appellants’ request, each of the following instructions, which, for convenience, will be referred to numerically, as marked:

1. “The jury are instructed that in deciding what are the facts in this case, they are to be governed solely by the evidence introduced before them in the trial of the case, and not by any previous knowledge, if they should have any about such facts, nor by any facts coming to their knowledge before or at the time of the trial of this case, and not introduced in evidence before them.” ’

2. “Ton are instructed that it is your bounden duty, under the law, in arriving at your verdict, to disregard all feelings of sympathy or sentiment, if any you have, and to find your verdict under the law as laid down by the court and the evidence of the witnesses upon the witness stand, and you must not take into consideration the financial standing of the parties to this suit, in arriving at your verdict.”

3; “Ton are further instructed that the law as given in these instructions is the law of the case, and you must follow the same whether you think the law is right or not.”

4. “You are further instructed that an employer is not bound to use the safest and best means of prosecuting his work, and if you believe from the • evidence in this case that the means employed by the defendants in this case of raising the beam in question were the usual, ordinary and customary means employed by structural iron contractors in similar cases and under similar circumstances, then you are instructed that the defendants exercised such reasonable care as the law imposed upon them.”

5. “Before there can be a recovery in this case the plaintiff must make out his case by a preponderance of the evidence, and you have no right to guess at how the injury to plaintiff occurred, nor to find the defendant guilty on surmise or conjecture, no matter how plausible such surmise or conjecture may be.”

Instructions 1, 2 and 3 are substantially included in the following instructions given at appellants’ request :

• “The jury are instructed that.in considering and deciding this case, they must look solely to the evidence for the facts, and to the instructions of the court for the law in this case, and find your verdict accordingly, without any reference to whom is plaintiff or who is defendant, and without any prejudice or favor whatsoever.”
“The jury are instructed that the power to decide what evidence is admissible and what evidence is not admissible, is vested in the court, and is a question of law. After evidence has been admitted, it is for the jury to then determine and pass upon its character, credibility and value, and the jury are instructed that all reference to evidence in these instructions means only such evidence as the court has admitted in the case. Evidence offered, but excluded by the court, is not entitled to and must not receive any consideration from the jury,” etc.

We do not think the court erred in refusing instruction 4. The question at issue was whether the appellants were negligent as averred in the declaration, and the “usual, ordinary and customary means employed by structural iron contractors, in similar cases,” may have been negligent means.

In C., R. I. & P. R. Co. v. Clark, 108 Ill. 113, one of the issues was whether the appellee’s intestate, who was killed in coupling cars, exercised ordinary care. The court say: “It is next urged that the trial court erred in admitting evidence as to the usual mode of coupling and uncoupling cars at that switch. One of the issues being tried was, whether deceased pérformed his duty with such negligence as to preclude a recovery. He was bound to use care, or no recovery can be had, and what others did or were in the habit of doing did not tend to prove that issue. Such a course may have been careless, or even reckless, and if so, it did not justify him in omitting the observance of care. We therefore think that such evidence did not tend to prove care on the part of deceased, and the court erred in its admission.” The ruling is the same in other jurisdictions. Hill v. Winsor, 118 Mass. 251, 259; Hill v. P. & R. R’d Co., 55 Me. 438, 444-5; Sew-all’s Falls Bridge v. Fisk & Norcross, 23 N. H. 171, 179; Crocker v. Schureman, 7 Mo. App. 358; Hibler v. McCartney, 31 Ala. 501, 508; Hamilton v. DesMoines Valley R. R. Co., 36 Ia. 31, 37.

Instruction five is covered by other instructions given at the request of appellants. The declaration contains only two counts. The court gave an instruction as to each count, stating the allegations in the count, and instructing the jury that each of the allegations “must be proven by the plaintiff by a preponderance of the evidence, and you are instructed that if you believe from the evidence that the plaintiff has failed to prove each and every of said allegations by a preponderance of the evidence, he cannot recover.” The court also, at appellants’ request, gave this instruction:

“The jury are instructed that the burden of proving negligence rests upon the party alleging it, and where a person charges negligence on the part of another as a cause of action, he must prove the negligence by a preponderance of the evidence.
And in this case, if the evidence fails to preponderate in favor of the plaintiff, is evenly balanced or preponderates in favor of the defendant, or if you cannot tell on which side the preponderance is, then the plaintiff cannot recover, and you must find the defendant not guilty.”

Appellants asked twenty-eight instructions, twenty of which the court gave, and it would seem that twenty instructions in a case like the present, in which the issues are so few and simple, should be sufficient to cover every phase of the case. It is not contended that the verdict is not supported by the greater weight of the evidence, or that substantial justice has not been done, the argument of appellants’ counsel being limited, as before stated, to rulings on instructions. Errors assigned but not argued are waived. Gordon v. Commissioners of Highways, 169 Ill. 510.

The judgment will be affirmed.

Affirmed.