text:
    Paul Arens, Appellee, v. Chicago Junction Railway Company, Appellant.
    Gen. No. 15,143.
    1. Contributory negligence—when car inspector not guilty of, as-a matter of law. If a car inspector while performing his duties in the customary manner is injured by cars being kicked back without warning to him, even though he may have known that switching was apt to go on at any time he is not guilty of contributory negligence as a matter of law.
    2. Personal injuries—who not mere licensee. A car inspector engaged in the regular course of business in inspecting cars in the yards of the defendant, held, under the evidence, not a mere licensee, but as being in such yards by the defendant’s invitation.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed January 13, 1911.
    Rehearing denied January 24, 1911.
    Winston, Payne, Strawn & Shaw, for appellants; John D. Black and John C. Slade, of counsel.
    Marvin E. Barnhart, for appellee.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

This is an appeal from a judgment rendered on the verdict of a jury in favor of the appellee for $2,400 for personal injuries sustained by him, while working in appellant’s yards as an inspector of the Pere Marquette Railroad Company.

The principal grounds urged for a reversal of the judgment are: 1st, that appellant was guilty of contributory negligence. 2nd, he was a mere licensee, to whom no duty was owing by defending other than to refrain from willfully and wantonly injuring him.

Appellant also contends that the court erred in refusing certain instructions, and that a failure to ring hells was not, under the evidence, negligence.

1st. As to the contributory negligence. Plaintiff was in the performance of his duties inspecting cars in defendant’s private switch yards. He had begun at the west end of extension track 5, examining the cars from the north side. When' he reached the east end he crossed over and returning west examined them from the south side; then he turned south to the next track, extension track 7, and was pursuing the same course. He had just started to inspect the south side of the cars back to the west. He was at the east end of the car with his left hand holding to the grab iron, both feet on the outside of the rail, his body east of the east end of the car and his right foot close to the rail. He had stboped dbwn to look lengthwise underneath the car, that being the customary and necessary manner of inspection, when the defendant company caused six Pere Marquette cars to be kicked from the west on to this track, these cars striking the string of cars on that track, the east one of which plaintiff was inspecting, with such force as to cause them to be instantly moved about a car length and a half. The plaintiff was knocked down and thrown around in such a way that his right foot was run over and so severely crushed that it had to be amputated at the ankle, leaving a part of the heel and the ankle joint, which is somewhat stiffened.

The evidence shows that plaintiff was performing his work in the customay manner, and if, as he testifies and as the jury were justified in believing, he had no warning that the cars were to be kicked back, even though he knew that switching was apt to go on at any time, we cannot say that the verdict of the jury negativing contributory negligence is so clearly unsupported by the weight of the evidence as to justify a reversal.

2nd. While cars destined for the Pere Marquette road were sent to a T beyond these switch tracks, the evidence clearly establishes that, under some arrangement with defendant, the cars were also delivered on tracks 5 and 7 when, as in this case, the Y was full, and that they were frequently there inspected. It is immaterial whether this was the customary or occasional method, or whether cars other than those of the Pere Marquette were also at times delivered on these two tracks. The evidence warranted the jury in believing that the inspection at these tracks was made in the regular course of business pursuant to the understanding of the two roads. Under these circumstances, plaintiff, while working as inspector for the Pere Marquette, was not a mere licensee, but was there by defendant’s invitation, in the course of defendant’s business as owner and possessor of the premises in which plaintiff’s employer, under a business arrangement, was transacting its own business. The defendant, therefore, owed him a duty to exercise ordinary care.

While the testimony is conflicting as to the custom of ringing a bell so as to warn inspectors, before kicking back cars on these tracks, we cannot say, even after giving full weight to defendant’s argument as to the improbability of ringing a bell for one purpose and one place, and not at another, that the jury were not justified by the preponderance of the evidence in believing plaintiff’s version and in finding the defendant guilty of negligence in failing to give the customary warning.

An instruction limiting defendant’s duty to one expressly authorized "to be on its tracks, was properly refused. An implied authorization arising from the relations of the plaintiff’s employer to the defendant, conferred the same rights and imposed the same obligations as an express authorization.

The other refused instruction was predicated upon plaintiff’s duty to do certain specific acts for self protection, a duty which finds no support in the evidence.

Insofar as these instructions laid down correct principles of law, they were fully covered by other instructions given at defendant’s request.

Affirmed.

Mb. Justice Baldwin took no part in the decision of this case.


source: Caselaw Access Project

author: Mr. Presiding Justice Mack

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Jacob Levin et al., Plaintiffs in Error.
    Gen. No. 15,162.

      Recognizances—who may take in criminal cases. Notwithstanding it may not appear that the crime charged was committed within the territorial jurisdiction of the city of Chicago, a judge of the Municipal Court of Chicago has authority under the Criminal Code to take a recognizance for the appearance of the accused in the proper court.
    Error to the Criminal Court of Cook county; the Hon. George Kersten, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed January 13, 1911.
    Edward H. Morris, for plaintiffs in error.
    John E. W. Wayman, for defendant in error.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

Plaintiffs in error are principal and surety in a recognizance taken by a Judge of the Municipal Court, after commitment to jail, conditioned on appearance' in the Criminal Court. On the call of the case aftér indictment, the recognizance was forfeited for failure to appear, and the judgment of forfeiture was subsequently made absolute after default by both defendants on a scire facias issued out of the Criminal Court and served by reading to one defendant and returned as to the other defendant, “the other within named defendant not found in my county. ’ ’

No brief has been filed on behalf of defendant in error. We have carefully considered the brief of plaintiffs in error and cannot concur in the views therein expressed.

1st. Whether or not the Municipal Court in February, 1907, had jurisdiction in preliminary examinations is immaterial. Under the Criminal Code, R. S., ch. 38, div. III, sec. 6, “any judge” could take a recognizance in the case of a person committed to jail on a criminal charge. While the Municipal Court had no jurisdiction, under the Municipal Court Act, to try a criminal case unless it appeared in the record that the crime was committed in Chicago, a judge of that or any other State court could, under the Criminal Code, take a recognizance for the appearance of the accused in the proper court.

2nd. The charge need not be set out in the recognizance or in the writ with the particularity necessary in an indictment; it is sufficient if it identifies the offense. In our judgment the charge of “harboring a female under 18 years of age in a house of prostitution,” identifies the offense covered by the Act of June 3, 1889, see. 3 (Laws of 1889, p. 112; Hurd R. S., ed. of 1909, p. 763, sec. 57d), at least as fully as do the words, “stealing from the store” of X identify the charge of larceny. Young v. People, 18 Ill. 566. Or the words, “the crime of selling liquor without license,” identify the offense of selling intoxicating liquor in a less quantity than one gallon, not having a license to keep a dramshop. Compton v. People, 86 Ill. 176. Especially is this so on writ of error after default. Compton v. People, supra.

3rd. The return of the sheriff satisfies, in our judgment, the statutory requirement that “in case the person cannot be found by the sheriff, he shall make return of that fact to the court.”

'Affirmed.


author: Mr. Justice Baldwin

text:
    Belle Lesher, Appellant, v. Jacob H. Lesher, Appellee.
    Gen. No. 15,113.
    1. Mabbiage—public policy as to common law marriages. The public policy of this state is against common law marriages.
    2. Marriages—what essential to establish common law. Where the relation between a man and a woman living together is illicit in its commencement, it is presumed to so continue until a chánged relation is proved. Without proof of a subsequent actual marriage, such marriage will not be presumed from continued cohabitation and reputation of the relation between them, which was of illicit origin.
    Bill for separate maintenance. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed January 13, 1911.
    Statement by the Court. In this case appellant filed a hill in January, 1908, against appellee in the Circuit Court of Cook county, praying for a separate maintenance. An answer was filed, denying the marriage, and stating, among other things, that on the 7th day of August, 1907, appellee was lawfully married to one May Charter, with whom he has lived and cohabited, and was then living and cohabiting, as her husband. The answer further stated that the complainant and defendant never sustained the marriage relation toward each other, nor was the subject of marriage between them ever discussed or mentioned during the entire course of their acquaintance, nor did the defendant ever introduce complainant as his wife, nor was he introduced by her as her husband.
    After a full hearing in July, 1908, the court below found for the defendant, and dismissed appellant’s bill for want of equity.
    Appellant does not claim to be the wife of appellee by virtue of any marriage ceremony, but bases her right upon an alleged common law marriage.
    It appears that the parties became acquainted in 1898 or 1899, and almost immediately thereafter be-ban to sustain illicit relations with each other,— rooming and living together in hotels and flats, for several years. And though appellant claims a marriage between hersélf and appellee on the 21st day of September, 1901, yet, to all outward appearance, their relationship remained the same during the entire period from 1898 until 1907. During all of this time, they carefully kept from their relatives and from their friends all knowledge of their relations toward each other, and when, for a few weeks, they lived in the home of a friend and acquaintance of appellee, their sexual relations ceased during the period, notwithstanding the fact that it was some time after the alleged common law marriage had taken place.
    Appellant, while thus living with appellee, had received two anonymous letters, informing her that if she did not discontinue her relations with appellee, the writer would inform her father—a reputable man residing in Minnesota; whereupon, appellant says, she told appellee she would have to do something to square herself with her father. It was then arranged that she would actually marry some man. Afterwards, and some time in the year 1901, she did actually go through a marriage ceremony with one Frank Ellsworth, from whom she proceeded forthwith to secure a collusive divorce, and she continued her former relations with appellee.
    Appellant afterwards visited her father at his home in Minnesota, and while there exhibited to him the marriage certificate, showing her marriage with Ells-worth, and this was done she says so that, when her father heard of her living with appellee, he would suppose it to be the husband shown by the marriage certificate. Appellant claims that while thus visiting her father and her early friends and associates, she received an inspiration to better living, and determined to live thereafter a pure fife; however, upon her return to Chicago she very shortly went hack to the old life with appellee.
    The early acquaintance of the parties was mutually sought by them for the purpose of enjoying lascivious pleasures with each other, and it is practically conceded that these relations continued with mutual satisfaction for several years.
    Appellant claims that a marital agreement was made between her and appellee on the 21st day of September, 1901, by which she became and was thereafter his lawful wife. In describing the alleged agreement she says:
    “Harry said he would settle this marriage question for all time to come. He says we love each other, Nellie, and we will be married, and he asked me if I loved him well enough to take him for a husband, and I said, ‘Yes I do,’ and he said he loved me well enough to take me for his wife, and he would from now on take me for his wife, and I should from now on take him for a husband, and I said ‘Yes,’ and he took me in his arms and kissed me and told me that was a common law marriage, but it was just as legal as any could be.”
    By her statement it appears that this agreement was made in the secrecy of their room with no witnesses present. Appellee positively and unequivocally denies any such agreement or occurrence. In any event it does not appear that there was any change in the conduct of the parties either toward each other or toward the public, following this alleged marriage, but, to all outward appearance their relation was as much that of husband and wife before the alleged marriage as it was afterward. Appellant admits that the marriage was kept secret, but claims that this was done because appellee requested it, saying that he couldn’t explain everything,—that his brother John had something over him, and she made no investigation to determine the truth or falsity of these representations.

      The parties made many trips together, occupying the same apartments at the various hotels and other places, but never registering under their right names. Appellant made several trips during the time they lived together, including one to Alaska, one to Cuba and one to Europe. While on these trips the parties exchanged letters. In none of the letters from appellant to appellee which were shown upon the trial did she make the slightest allusion to the marriage relation. She testified that, in some of his letters to her he did refer to her as his wife, and in some signed himself as her husband, but she did not produce any letters written by him, claiming that she had destroyed them.
    Albert H. Fry and Russell M. Wing, for appellant.
    Elmer D. Brothers, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

The important, and practically the only, question in this case is whether the court below was by the evidence justified in denying appellant’s contention that she was the common law wife of appellee, and in holding that the relations between them were meretricious instead of marital.

We shall not discuss at length the evidence in the case. The alleged agreement, to which appellant testified, is so explicit and precise,—so free from any possible legal criticism because of any deficiency or imperfection in it as to itself raise serious doubts whether any such occurrence took place. The appellee expressly denies it. If the story is untrue, he is the one person who could deny it, for none beside these two were present. Moreover, the reason given by appellant for allowing the alleged marriage to be kept secret does not seem adequate. If that reason existed she could probably have offered some evidence of it other than her unsupported word. In any event, it does not appear that the alleged private marital agreement altered appellant’s situation any in any public way. Whatever their relations to the public and to each other were previously, they continued to be.

Public policy in this State, as evidenced by the opinions of our courts,' as well as by legislation, is opposed to common law marriages. In 1905, the State legislature of Illinois, in the interest of public morals, prohibited common law marriages after that date.

It has long been the law that, where the relation between a man and a woman living together is illicit in its commencement, it is presumed to so continue until a changed relation is proved. Without proof of a subsequent actual marriage, such marriage will not be presumed from continued cohabitation and reputation of the relation between them, which was of illicit origin. Cartwright v. McGown, 121 Ill. 388.

Nor will the law or public policy permit the converting of meretricious relations into the sacred relation of husband and wife. In re Estate of Maher, 204 Ill. 31.

In this case we are satisfied, from a careful consideration of all the evidence, that appellant deliberately assumed meretricious relations with appellee, and that there is an utter failure to establish any changed relationship, or actual marriage between the parties.

We tbiulr it clear, therefore, that the court below was right in entering a decree dismissing the appellant’s bill for want of equity.

The decree is, therefore, affirmed.

Affirmed.


text:
    Cornelius Ryan, Appellant, v. Illinois Telephone Construction Company, Appellant.
    Gen. No. 15,148.
    1. Tbial—when remarks of counsel will not reverse. Held, that while references to insurance companies made in an action on the case for personal injuries were highly improper, yet that under the authority of McCarthy v. Spring Valley Coal Co., 232 Ill. 473, they did not constitute ground for reversal.
    2. Master and servant—when felloio servant rule applies. If an injury results from the carelessness of a fellow-servant, such injury not being contributed to by the negligence of the master, the servant injured cannot recover of the master.
    3. Master and servant—when doctrine of assumed risk applies. A servant who knowingly assumes a position of danger which position for some days previously he had likewise assumed without complaint, if injured in consequence thereof, cannot recover.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed with finding of fact.
    Opinion modified and refiled January 31, 1911.
    Statement by the Court. This is an appeal from a judgment of the Circuit Court of Cook county in favor of appellee for $1,800 for personal injuries sustained by him. The declaration consists of two counts, and charges, in substance, that on the 19th of June, 1902, defendant was engaged in constructing tunnels under the city of Chicago, and employed the plaintiff as a common laborer, in that section of the tunnel or shaft located at Market and Congress streets, Chicago; that it was the defendant’s duty to furnish a reasonably safe place in which plaintiff could perform his duties; that plaintiff was set to work by the foreman or agent of the defendant, who was a superior, and not a fellow servant, of the plaintiff, at escorting loaded cars from the tunnel to the mouth of the shaft, and in so doing was directed by the foreman to ride upon the forward or head end of the dump car; which, with others, was used for carrying dirt and debris out of the tunnel, and ran along upon an incline; that the dump cars were propelled from along the bottom of the tunnel up the incline by a chain device, to which were attached spikes or projections, so arranged that when said cars were loaded they were placed upon the track at the lower end of the incline, and, when the chain device revolved the spikes or projections caught on the axle or rear end of the dump car, by means of which the dump cars were propelled forward and up the incline to where they were to be dumped; that the chain to which these spikes were attached was not kept tight, but was allowed to sag, by reason of which the spikes slipped and dropped down from the axle or slots; that the spikes were not firmly fastened or attached to the dump cars, or any of them, but were allowed to become covered with grease, making them slippery; that said mode of propelling said cars out of the tunnel was necessarily dangerous, and was well known by defendant to be so; but plaintiff had no knowledge of the danger; that it was the custom and habit to have several loaded cars propelled up said incline by said chain device at the same time, thus making the method more dangerous, as the defendant well knew, but as plaintiff did not know; that while carrying out the instructions of the foreman, who was not a fellow servant, plaintiff seated himself upon the forward end of one of the dump cars, going up the incline; that immediately preceding him was another loaded car; and that, through and by the negligence of the defendant in failing to furnish a reasonably safe mode and manner of propelling said dump cars up the incline, and reasonably safe machinery to so propel them, and in failing to furnish the plaintiff a reasonably safe place in which to perform the work, the preceding dump car broke loose, and running downward and backward bumped violently against the plaintiff, breaking his leg and otherwise injuring him.

      It appears that appellee began working for appellant in January, 1902, and continued in its employ until June 19th of that year, the date of the injury. He was employed as a laborer, and his principal duty was to push cars lo’aded with mud or muck from the top of the incline, up which the cars were brought out to the Chicago river, where the contents of the cars were dumped into mud scows.
    When the cars were filled with mud by the miners or excavators they were shoved out through a lock or air-chamber, to the bottom of the incline, which was about one hundred feet long, and ascended at an angle of about forty-five degrees. Upon this incline there were two tracks. The cars were about four feet high, three feet long and two feet wide, with a carrying capacity of about one thousand pounds of mud. These cars were lifted or conveyed to the top by means of an endless chain, working on sprocket wheels at the top and bottom of the incline. Upon this chain were projections called dogs, which stuck up about five or six inches, so that when a car was pushed forward the dog would engage, with its flat surface, the round surface of the axle of the car, and thus convey the cars up the incline to the top. At that point the cars were met by laborers, of which appellee was one, and pushed by hand to the river, where they were dumped on scows, and the cars were then returned down into the tunnel and distributed. These cars were reversible, so that, at times, the back axle was the front, and vice versa, and the axles were about three inches from the ground, and the cars would go up the incline hooked either on the front or rear axle. These cars were loaded by miners, and were some times made much heavier in the rear than in the front by carelessly filling the earth or muck more in the rear than in the front end of the car, so that, when they were being taken up the steep incline of the shaft, they were occasionally tipped over backward, or sideways, and this fact was known to the superintendent, who gave orders to the sub-foreman to send men down from the top of the incline to ride the cars, whenever they were improperly loaded, instead of waiting to have the cars trimmed or “mucked,” as the operation of leveling the load in them was sometimes called.
    Byan, the plaintiff, was an elderly man and therefore was not so often directed to ride the cars up the incline as were the other and younger employes.
    On the night of the accident, some cars having come through the lock, or air-chamber, improperly loaded, appellee was directed to go down and ride them up the incline. He got upon the front end of an ascending car, hanging his feet and legs over the end, to counterbalance, by his weight, the load. His car was preceded by another similarly loaded, which, when it reached the top of the incline, became loose and ran back against him, resulting in serious injuries.
    From the evidence it appears that the accident occurred because the car which ran back upon the plaintiff, while he was riding up one of the cars, was being propelled upward by the dog or spike on the endless chain being placed against its front axle, instead of its rear axle, and that, therefore," the car was not sufficiently carried over the top of the incline, as it would have been had the rear axle instead of the front axle been attached. The evidence further shows that the car was thus attached to the dog or spike at the front instead of the rear axle hy a laborer named Withers.
    John A. Bloomingston, for appellant.
    Robert F. Munsell, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

Appellee bases his right to recover upon the propositions that appellant had not used reasonable care to furnish him with a reasonably safe place in which to perform his labor at the time of the accident; and that it was negligence for appellant to order him to ride up the steep incline, as human ballast, for improperly loaded cars, with knowledge of the fact that preceding cars might run back down the incline; also, that the order being negligent, the danger in obeying it was not so imminent but that a man of ordinary prudence would have incurred it, under all the circumstances.

Appellant contends that the judgment should be reversed, because of the prejudicial statements of counsel at the trial, and evidence .erroneously admitted as to the insurance companies defending the case; also, because the evidence does not sustain the verdict under the pleadings, and because the alleged injury was caused by the negligence of a fellow servant, and in any event, that appellee assumed the risk.

As to the first of these, we think it was highly improper for the attorney of appellee to make the complained of references to insurance companies, and the insinuations as to their relation to the defense of the case. However, in view of all the circumstances, and following the authority of McCarthy v. Spring Valley Coal Co., 232 Ill. 473, we do not regard the action complained of as constituting reversible error.

For a week appellee had been riding these cars in the same manner, and for the same purpose, which he himself says was to keep them from overbalancing backward. He was upon the front end of the car for the purpose of having his weight counterbalance the load, so that the car would not tip backward. He rode up several times during the period he worked that night, and, though he testified that he did this by the direction of the foreman it is pretty evident from the testimony that Eyan was engaged in doing that which was incidental to his work, and which had been done by him repeatedly on that night, and previously.

Appellee appears to have been entirely familiar with the situation and the surroundings. If the car which, by running back upon Eyan, injured him, was improperly attached by the dogi on the endless chain to the front axle, instead of the rear axle, we think the evidence clearly shows that this was due to the carelessness of a workman by the name of Withers, and that Withers was, at the time, a fellow servant with Eyan. Appellee was injured, not because the place in which he was working was not a reasonaby safe place in which to work, but because he knowingly placed himself in a dangerous position by riding up on the front end of the cars, and because a fellow employé caused the car preceding him to be improperly attached to the upward bound chain.

While it seems a hardship that appellee should have received so serious an injury, we do not see how, under the law of this State, he can recover, -under the circumstances shown in this case. This case and others like it emphasize the necessity of some adequate workman’s compensation act, which shall abolish the fellow servant rule, and also that of assumption of risk as now applied, and provide that the financial burden thus created shall be imposed upon the business in which the injuries are suffered, in such manner as they may be insured against.

We think the evidence requires us to reverse the judgment of the court below, and enter judgment here upon a finding of facts.

Reversed with a finding of facts.


author: Mr. Justice Smith

text:
    Alvina H. Williamson, Appellee, v. Grand Trunk Western Railway Company, Appellant.
    Gen. No. 15,321.
    1. Evidence—what competent upon question of injury. A question inquiring as to whether the plaintiff appeared to be hurt immediately after the accident in suit should be allowed to be answered if put to a witness to whom the plaintiff had made complaint of injury immediately following the accident..
    2. Trial—when remarles of court improper. Held,, that it was improper for the court to say “There has been no defense outlined here. We cannot speculate,” but that such remarks did not constitute ground for reversal.
    3. Personal injuries—vohen relation terminates. The relation of carrier and passenger does not terminate until the passenger has alighted from the train and left the place where passengers are discharged; and the duty continues until the passenger has had a reasonable time in which to leave the depot or alighting place.
    Action in case for personal injuries. Appeal from the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed January 13, 1911.
    Kretzinger, Gallagher & Rooney, for appellant.
    C. E. Heckler and Paul Larmer, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

In this action a judgment was entered in the Municipal Court of Chicago in favor of the plaintiff, Alvina H. Williamson, appellee, against the defendant, Grand Trunk Western Railway Company, appellant, for $1,-000 damages for personal injuries to the plaintiff, resulting from alleged- negligence of the defendant.

It appears without controversy that on the evening of February 24, 1908, the plaintiff came from Griffith, Indiana, to her home in Chicago on defendant’s train. She left the train at the Chicago Lawn station of the defendant at about eight o’clock in the evening. It was dark and misty and the station platform was not lighted. After stepping from the train to the platform the plaintiff proceeded to leave the station, carrying several parcels and a grip and hand bag. She had walked but a few feet when she came upon a pile of coal on the platform and fell upon and over it, receiving the injuries sued for. In the darkness she did not see the pile of coal before she fell upon it. The coal had been placed upon the platform about two hours before the plaintiff fell upon it.

On the trial the plaintiff testified that after she fell over the pile of coal she went into the station and said to the agent, Miss Crowe, “I am terribly hurt.” Miss Crowe then went to the coal pile with the plaintiff to see if the plaintiff had lost anything; that they then returned to the station, and the plaintiff went home. The following question was then put to Miss Crowe by defendant’s attorney: “Q. Did Mrs. Williamson appear to' be hurt in any way?” The court sustained an objection 'by plaintiff’s attorney to the question, and the ruling is assigned for error. We think the ruling was erroneous. City of Chicago v. McNally, 227 Ill. 14; Railway Co. v. Bundy, 210 id. 39. But in view of the evidence in the case and the verdict, we think the error was harmless and should not be considered as sufficient ground for reversing the judgment.

Error is also assigned upon improper remarks made by the trial judge during the trial. It is urged that they were prejudicial to appellant.

Dr. Russell, plaintiff’s physician, testified that he had made a physical examination of the plaintiff, including an examination of the rectum, and that the neurasthenic condition which he found would always affect her more or less. And on cross-examination the witness testified: “Piles are dilation of the veins around the lower part of the rectum, and these veins are dilated. Piles are a very ordinary thing.” Then the following took place: “Q. Would piles with loss of blood cause a neurasthenic condition? A. It is-not apt to; it might. Q. Would piles, doctor, cause constipation? The Court: Oh, I do not think we will go into that. Mr. Heckler: He has not said she has had piles at all. The Court: There has been no defense outlined here. We cannot speculate.” Exception was taken to this remark of the court. In our opinion the remark was improper, but it is not reversible error.

The appellant took exception to and now urges objections to the charge of the court to the jury. The parts of the charge to the jury objected to are contained in the following paragraph:

“The defendant in this case is what is known in law as a common carrier—a carrier of passengers— and the law places upon such a corporation a duty, of using more than ordinary care for the protection of its passengers. A common carrier of passengers is not an insurer of its passengers, as a common carrier of freight is. They do not undertake that they will not cause or permit any accident to one of their passengers. But they do undertake, and the law places upon them the obligation of using the highest degree of care, skill and prudence which human foresight and ingenuity can provide for the safety of their passengers, consistent with the ordinary operation of their road; and this duty applies to passengers, not only while they are upon the train, and getting upon the train, and getting off the train, but it also applies to passengers while they are upon the depot grounds after they have disembarked from the train and within such a reasonable time as would enable them to leave the train. A passenger disembarking from the train has a reasonable time within which to leave the premises of the railroad company; and if before that reasonable time has expired the passenger is injured, because of the failure of the railroad company to exercise the highest degree of care, skill and prudence which human foresight and ingenuity could devise for their protection, then the passenger is entitled to recover, provided she herself was in the exercise of ordinary care for her own safety.”

Appellant’s first objection to the charge is that it authorizes a recovery upon a theory not alleged in the declaration.

The negligence averred in the declaration is that the defendant (appellant) did not provide plaintiff with reasonably safe depot facilities and means of alighting from defendant’s train at Chicago Lawn, and did not provide the plaintiff with reasonably safe passageways and exits from the station; but on the contrary thereof so carelessly and negligently controlled, managed and maintained its depot and station platform as to permit and allow the same where passengers were discharged from its trains to be encumbered and obstructed by a large pile of coal, and neglected to provide its station platform and depot facilities with proper and reasonably sufficient lights to enable its passengers to safely leave the station grounds.

We think the declaration and the evidence furnish no basis for the instruction.

It is also urged that the charge is erroneous, in that it states the law to be that the defendant was required to use the highest degree of care consistent with the practical operation of the road, and that this rule is not applicable to this case; and further, that the charge is erroneous in requiring appellant to use a higher degree of care than the plaintiff averred in her declaration, or was required to use with reference to a passenger after the passenger had alighted from the train, and the train had passed from the station. It is contended that the duty of a carrier in relation to its station platform is to exercise ordinary care and not the “highest degree of care, skill and prudence which human foresight and ingenuity could devise for their (passengers) safety,” as charged by the court; that while the degree of care to be exercised by the carrier with respect to its tracks and running machinery is correctly stated in the charge, a less degree of care is required with reference to the approaches to the cars, such as platforms, halls, stairways, and the like; or in other words, the only duty appellant owed to appellee at the time of the accident was that of ordinary care for her safety.

Several cases in other jurisdictions are cited, which apparently support appellant’s contention, but we think the rule in this State is that the relation of carrier and passenger does not terminate until the passenger has alighted from the train and left the place where passengers are discharged; and the duty continues until the passenger has had a reasonable time in which to leave the depot or alighting place. “It is its (carrier’s) duty not only to exercise a high degree of care while the passenger is on the train, but also to use the highest degree of care and skill, reasonably practical, in providing the passenger a safe passage from the train.” Railroad Company v. Schmelling, 197 Ill. 619; I. C. R. R. Co. v. Treat, 179 id. 576; Elliot on Railroads, sec. 1592; Railway Company v. Reese, 93 Ill. App. 657; Toledo, etc., Railroad Company v. Stevenson, 122 Ill. App. 654.

We think the charge of the court is applicable to the facts of the case, and that it states the law correctly with respect to the degree of care appellant was bound to exercise toward appellee at the time of her injury.

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

Affirmed.


text:
    James Mastorakos, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 15,333.

      Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed January 13, 1911.
    Charles J. Gould and Ferdinand Goss, for plaintiff in error.
    E. F. Dunne and D. P. Murphy, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

No question of law is raised on this record. The main contention of plaintiff in error is that the verdict is against the manifest weight of the evidence.

From an examination of the evidence we think the question of liability is a very close one. Sitting as jurors we probably should have resolved the question adversely to the defendant in error. That question turns mainly upon the credence to be given to the witnesses testifying on behalf of the respective parties. The evidence is conflicting. The testimony of the witnesses called by defendant in error, if believed, tends to establish negligence on the part of plaintiff in error which caused the injury to defendant in error. On the other hand, the testimony of the witnesses called by the plaintiff in error tends to show that at the moment the horse attached to the wagon on which defendant in error was riding fell on or near the track upon which plaintiff in error’s car was running, the car was too near the horse to he stopped before it struck the horse and caused the injury. The witnesses were before the jury, who had the opportunity to see them and their manner of testifying. The judge and jury in the court below had superior advantages for the determination of the truth and the» detection of falsehood over this court, sitting as a court of review. Calvert v. Carpenter, 96 Ill. 63. We cannot say from a mere examination of the record that the verdict is manifestly and clearly against the weight of the evidence.

The judgment is therefore affirmed.

Affirmed.


text:
    Peter Pappas, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 15,334.
    New teial—when newly discovered evidence constitutes ground for. If the newly discovered evidence is material and not cumulative nor impeaching in character and no lack of diligence in obtaining it is shown, a new trial should be awarded.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed January 13, 1911.
    Charles J. Gould and Ferdinand Goss, for plaintiff in error.
    E. F. Dunne and D. P. Murphy, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The defendant in error recovered a judgment in the Municipal Court of Chicago for injuries to personal property alleged to have been sustained through negligence of the plaintiff in error in the operation of a street car, which ran into and against a team and wagon of the defendant in error in the city of Chicago.

The evidence was conflicting on the question of negligence, and the decision upon it turns mainly upon the credence to be given to the witnesses testifying on behalf of the respective parties.

One of the grounds urged in the court below by plaintiff in error in support of its motion for a new trial, was that of newly discovered evidence set forth in the affidavit of Charles J. Could, which was filed and presented to the court on the hearing of the motion.

From this affidavit it appears that after the trial of the case had been completed, another case in which one Mastorakos was plaintiff against plaintiff in error, brought to recover damages for negligence causing personal injuries growing out of the same accident was brought on for trial, and in the trial it developed that Ceorge W. Tessman, one of defendant in error’s principal witnesses, was the same person who gave the name of “C. Finucane” to the conductor of the car at the time of the accident; and further, that Tess-man was actually in the employ of plaintiff in error on the morning of the accident in question, and was known at the barn of plaintiff in error as “GL Finucane;” that his wife called at the barn and gave the name of “Mrs. Finucane.” It also appeared at the trial of the Mastorakos case, from the testimony of two barn superintendents, that Tessman was discharged from the employ of plaintiff in error several days after the accident in this case.

From this affidavit it appears that Tessman admitted in his testimony in the Mastorakos case that he had testified untruthfully in the trial of the Pappas case when he stated in effect that he, Tessman, was not the same person who signed the name of Gr. Finn-cane to the card given to the conductor after the accident, and that he never went by or under the name of Finucane.

It is also clear that he misled plaintiff in error and the court and jury in the trial now before us into believing that G-. Finucane, whose name was given at the time of the accident, was also present at the time of the accident under review, and that the witness was another person than Tessman, and thus prevented plaintiff in error from showing that Tessman was actually in the employ of plaintiff in error at the time of the accident in question under the name of Finucane, and that he was discharged by plaintiff in error several days after the accident.

Tessman’s testimony at the trial under review was important. He stated that he was riding on the front platform of the car in a position where he was able to see and did see all the circumstances leading up to and surrounding the accident out of which the case under review grew; and in effect that the car was far enough away from the team when the horse stumbled and fell to enable the motorman to stop it before it reached the team, and that no effort was made to stop the car.

We are of the opinion that the court erred in denying the motion for a new trial upon the facts shown, for it was of great importance to plaintiff in error to have the facts subsequently developed before the jury in the trial under review, in order that they might consider them in connection with the very material facts testified to by the witness.

The judgment is therefore reversed and the cause is remanded for a new trial.

Reversed and remanded.


text:
    James Dubois, Defendant in Error, v. M. S. Greenbaum, Plaintiff in Error.
    Gen. No. 15,350.
    Municipal Court—lohen judgment 6y way of default proper. If the defendant’s affidavit of merits is stricken and properly so as setting up no defense, a judgment as upon a default without a trial beforé a jury, is proper.
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed on remittitur.
    Opinion filed January 13, 1911.
    William Friedman and Alphonse Lefkow, for plaintiff in error.
    Nathaniel A. Stern, for defendant in error; Menz I. Rosenbaum and Louis M. Cahn, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

James Dubois brought an action of the fourth class in the Municipal Court against plaintiff in error Greenbaum to recover the value of two barrels of whiskey which the plaintiff in error failed and refused to deliver to the defendant in error upon his request, and for $100 paid by the defendant in error to the plaintiff in error for the purpose of paying the government tax on the whiskey. An affidavit of claim was filed by the defendant in error, plaintiff in the action. Plaintiff in error, defendant, entered his appearance in the cause, and demanded a trial by jury. Subsequently plaintiff in error obtained leave of court to file an affidavit of merits, and filed such an affidavit on January 22, 1909. Four days later, on motion of the defendant in error the court struck the affidavit of merits from the files, and gave plaintiff in error five days in which to file an amended affidavit of merits. On February 1, 1909, plaintiff in error filed an amended affidavit of merits as follows:

“M. S. Greenbaum makes oath and says that he is the defendant in the above entitled cause, and that he verily believes that he has a good defense to this suit, upon the merits, to the whole of the plaintiff’s demand.
“Affiant further says that the defense of the defendant to said suit is as follows:
“ ‘That the two barrels of whiskey referred to in the plaintiff’s statement of claim were part of a lot of five barrels produced by defendant as a distiller and stored in the defendant’s distillery bonded warehouse No. 9, Seventh District of Kentucky, and for which defendant issued his original warehouse receipt No. 5555, a copy of which warehouse reecipt is hereto annexed; that said warehouse receipt having become the property of the plaintiff was forwarded by plaintiff to defendant with his request to withdraw the said two barrels from the aforesaid bonded warehouse; that the said distillery bonded warehouse No. 9, was on the 5th day of August, 1908, destroyed by fire with all its contents and among others the whiskey belonging to plaintiff and contained in the aforesaid warehouse receipt; that said warehouse receipt among other conditions recites: ‘Loss or damage by fire, the elements, accident, and natural decay of goods at owner’s risk;’ that on the said 5th day of August at the time of the destruction of the said warehouse by fire, the plaintiff was the owner of said whiskey; and that the defendant was, therefore, not responsible for its loss by fire.’
“For a further defense affiant says that Section 3251 Revised Statutes of the United States provides that: ‘Every proprietor or possessor of, and every person in any manner interested in the use of, any still, distillery or distilling apparatus, shall be jointly and severally liable for the taxes imposed by law on the distilled spirits produced therefrom;’ and that within one month after the production of the whiskey in the above mentioned warehouse receipt recited, to wit, in the month of May, 1903, the defendant entered into an obligation with proper sureties to the United States of America, ‘that he will well and truly pay, unto the collector of internal revenue for the Seventh District of Kentucky, the amount of tax on the said whiskey at the rate imposed by act of Congress of August 28, 1894, Section 3251 Revised Statutes of the United States, to wit, $1.10 per gallon; and that immediately upon the destruction of the distillery warehouse aforesaid, with its contents, the defendant and his sureties became liable to the United States of America for the tax on the bonded spirits stored and destroyed in the said distillery warehouse, of which the aforesaid two barrels claimed by the plaintiff were part, and for the tax payment of which plaintiff paid to defendant one hundred ($100) dollars referred to in plaintiff’s statement of claim.
“Affiant further states that the warehouse receipt by means of which plaintiff acquired the whiskey in question provides that: ‘ The owner of the whiskey under this receipt, in accepting it agrees to furnish the money to pay all taxes when the same become due;’ and that the one hundred ($100) dollars in question is now held by defendant to apply his liability to the United States of America under his bond as aforesaid, this being approximately the amount of the tax due.”

A few days later plaintiff obtained leave of court to file a statement of counter claim, and filed it instanter. The statement was as follows:

“Defendant’s claim is for the sum of $609.60, which has accrued to defendant in the following manner, to wit:
“Defendant being the owner of United States bonded distillery warehouse No. 9, Seventh District of Kentucky, issued to plaintiff three certain warehouse receipts, now in the possession of plaintiff; that in and by the terms of the aforesaid warehouse receipts the plaintiff became liable for and agreed to pay the United States government tax upon the whiskey described in said warehouse receipts and also storage charges thereon from the first day of May, A. D. 1907; that by act of Congress defendant is liable for said government tax; that on, to wit, the 5th day of August, A. D. 1908, the whiskey described in said warehouse receipts was destroyed by fire; that under the act of Congress the said U. S. government tax thereupon became due and payable; that therefore there is due and owing defendant from plaintiff:
“16 months storage on 12 barrels of whiskey, from May 1, 1907, to August 5, 1908, at five cents per barrel per month, amounting to the sum of........................$ 9.60
“And also United States government tax of $1.10 per gallon on the said whiskey, amounting to the sum of................ 600.00
$609.60”

On February 6, 1909, on motion of defendant in error, the court struck from its files the amended affidavit of merits, and entered a judgment by default against plaintiff in error; and reference being had to the court to assess damages the court assessed damages against plaintiff in error for $168.

Error is assigned here on the ruling of the court striking plaintiff in error’s amended affidavit and entering a judgment by default for want of an affidavit of merits, and for not submitting the cause to a jury for trial on the issues.

The amended affidavit of merits did not set up a defense to the action. It did not state that the taxes on the whiskey were ever paid by the plaintiff in error to the Government. It did not deny the fact shown by the affidavit of claims of the defendant in error that plaintiff in error had been paid $100 by defendant in error to be used in paying the government tax. Upon the request to deliver the whiskey to defendant in error, accompanied as it was with the payment to plaintiff in error of an amount sufficient to pay and discharge the Government tax, plaintiff in error was bound under his contract to pay the tax and deliver the whiskey. This he refused to do, and also refused to account for the $100 so paid him. If the plaintiff in error had complied with his contract and delivered the whiskey upon the request of defendant in error the whiskey would not have been destroyed.

It is urged in behalf of plaintiff in error that he had a right to a trial by jury of the issues joined. The court ruled that the affidavit of merits filed by plaintiff in error was insufficient and struck it from the files of the case, and that under the practice of the court the plaintiff was entitled to a judgment by default for want of an affidavit of merits. Under section 19 of the Municipal Court Act that court is the sole judge of its rules of practice and its decisions in respect thereto shall not be subject to review, unless in the • opinion of the Supreme Court • or Appellate Court such relief is necessary to prevent a failure of justice. In this case we think substantial justice has been done between the parties, except that plaintiff in error under the set-off ought to have been permitted to prove his storage charges. The judgment is therefore affirmed provided the defendant in error shall within ten days remit in writing the sum of $9.60, the storage charge claimed by plaintiff in error from the judgment. If the remittitur is not made the judgment will be reversed and the cause remanded for a new trial. The costs of this case shall be taxed against plaintiff in error.

Affirmed on remittitur.


author: Mr. Presiding Justice Baker

text:
    William Routt, Trustee, v. Charles S. Newman et al. Charlotte M. L. Newman, Appellee, v. Charles S. Newman, Appellant.
    Gen. No. 15,387.
    1. Trusts—conditions of bequest of income. Held, that the words “during the continuance of the trust” left the bequest of the income to run until stopped by the termination of the trust.
    2. Trusts—when share of income vests not in personal representative but in next of hin. If a beneficiary in a will dies at an age incapable in law of contracting debts his share of an income to which he was entitled, at his death vests not in his personal representative but in his next of kin.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 23, 1911.
    Angus Roy Shannon, for appellant.
    Dyrenforth, Lee, Chritton and Wiles, for appellee; George A. Chritton and Stuart D. Walling, of counsel.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

Caroline Newman died March 14,1893, leaving a will, by which she devised certain real estate to William Boutt in trust for the following uses and purposes:

“First, a. For the purpose of keeping said lands and tenements and stores well rented; to make reasonable repairs upon the same; to pay promptly all taxes and assessments thereon; to reasonably insure against damage by fire; to pay over all remaining rents and income in cash as follows, to-wit: One-fourth of said remaining income into the hands of my said son, Harvey B. Newman, in person; one-fourth of said remaining income into the hands of my said son, Benjamin L. Newman, in person; one-fourth of said remaining income into the hands of my said son Charles S: Newman in person and one-fourth of said remaining income into the hands of my said son Henry J. Newman in person, and the said remaining income is not to be paid upon any written or verbal order nor upon any assignment or transfer by either or any of my said sons, Harvey B. Newman, Benjamin L. Newman, Charles S. Newman and Henry J. Newman.
“Second, b. Upon the decease of either or any of' my said sons during the continuance of this trust his share of the remaining income shall go to the child or children of his body during the continuance of this trust, and in case said son leaves him surviving no lawful child or children of his body then one-half of his said share shall go to his surviving widow during her lifetime during the continuance of said trust and the other half of his said share shall go equally among my surviving sons during the continuance of said trust. And in case said son leaves him surviving no lawful child or children of his body and no widow then_ his share shall be divided equally among my surviving sons during the continuance of said trust. Any person under the terms of this said trust who shall become the recipient of the said remaining income or any portion thereof shall have same paid to him, her or them in cash and in person into their hands and not to be paid upon any written or verbal order, nor upon any assignment or transfer by any such person.
“Third, c. This trust is to continue.until all my said sons will have become deceased and then to cease and be determined.
“Fourth, d. At the termination of this said trust the said lands and buildings thereon shall vest in the heirs of my body then living per stirpes. And in default of such heirs to vest according to the laws of the State of Illinois now in force.”

The testatrix left her surviving her four sons mentioned in the will. Of these Harvey E. died in 1897, leaving neither child nor widow; Henry J. died in 1903, leaving appellee, his widow, and Eichard W. Newman, their son, and Benjamin L. died in 1906, leaving Ida Hale Newman, his widow, but no child. Under the provisions of the will, after the death of Harvey B. Newman each of his brothers became entitled to four-twelfths of the income; on the death of Henry J. Newman his share of the income went to his son, Bichard W., and on the death of Benjamin L. Newman one-half of his share of the income went to his widow and the other half to Charles S. Newman, his only surviving brother.

Eoutt, the trustee, filed a bill ashing to be relieved from his duties as trustee and for the appointment of a new trustee. Bichard W. Newman, a defendant to the bill, filed his answer, and also a cross-bill. He died November 5, 1907, at the age of sixteen, leaving his mother, the appellee, his only heir at law and next of kin. She filed a supplemental cross-bill against Eontt, as trustee, Charles S. and Ida Hale Newman, defendants, alleging the facts above stated and claiming that she, as the sole heir and next of kin of her deceased son, was entitled to the share of the income to which he was entitled at the time of his death. She afterwards amended her supplemental cross-bill by making herself complainant as administratrix of the estate of her son, as well as in her own right as his heir at law and next of kin. The defendants demurred to the supplemental cross-bill as amended. These demurrers were overruled, and the defendants electing to stand by their demurrers, the bill was taken as confessed. The decree finds the facts substantially as above stated; directs that Eoutt as trustee account to Charlotte M. L. Newman for four-twelfths of said income; that he pay to her all that portion of the income to which Bichard W. Newman was entitled at the time of his death and to which he would continue to be entitled if living, such payments to continue until the termination of the trust. From this decree Charles S. Newman appealed.

The will of Caroline Newman provides that: “Upon the decease of either or any of my said sons during the continuance of this trust his share of the remaining income shall go to the child or children of his body during the continuance of this trust, and in case said son leaves him surviving no lawful child or children of his body, then one-half of Ms said share . shall go to his surviving widow and the other half of Ms said share shall go equally among my surviving sons during the continuance of said trust. * * * This trust is to continue until all of my said sons will have become deceased, and then to cease and be determined.” Henry J. Newman at Ms death was entitled to four-twelfths of the income of the trust estate, and his share, by the terms of the will,- went to Bichard W. Newman, his only child, “during the continuance of the trust.” We think that on the death of Bichard W. Newman the right to his share of the income to which he was entitled at his death passed to his legal representative; that the words, “during the continuance of the trust” plainly leaves such bequest of the income to run on until stopped by the termination of the trust. Savery v. Dyer, Ambler, 139; Jones v. Randall, 1 Jac. & Walker 100; Bryan v. Twigg, 3 Eq. Cases, 432; Bryan v. Twigg, 3 Chan. Appeal Cases 182; Morgan v. Williams, 66 How. Prac. 139.

It is true that the cases above cited, except Morgan v. Williams, were cases of annuities, but so far as the question here presented is concerned we think there is no substantial difference between a bequest of an annuity during the life or lives of another or others, and the bequest of income of trust property during such life or lives. Kelly v. Casey, 17 N. Y. Supp. 86, is not in conflict with the cases above cited. In the opinion in that case it was said: “If the second and third-paragraphs of the will, which are as follows: ‘Secondly. I give and bequeath to my sister, Catharine Casey, an annual income of two hundred dollars during the life of my wife Ann Casey. Thirdly. I give and bequeath to my said wife all of the remainder of the income of my estate, real and personal,’ stood entirely alone, then the legacy of $200 directed by the testator to be paid to his sister Catharine would continue and be payable to her executors during the lifetime of his widow, Ann Casey. The cases of Savery v. Dyer, Ambler 139, and of Morgan v. Williams, 66 How. Prac. 139, are authorities directly supporting this conclusion.” There were, in the opinion of the majority of the court, other provisions in the will which excluded the intention that the annuity should continue after the death of the sister.

But for the fact that Bichard W. Newman died in his minority, at an age incapable in law of contracting debts, the share of the income to which he was entitled at his death should be paid to his legal representative, but because of that fact his share of the income vested immediately in his mother, his next of kin. Lynch v. Rotan, 39 Ill. 14; McCleary v. Menke, 109 id. 294.

The chancellor properly overruled the demurrers to the supplemental cross-bill as amended, the decree is in accordance with the intention of the testatrix as expressed in her will and is affirmed.

Affirmed.


text:
    Paul Tiemer, Appellee, v. M. Zeidman, Appellant.
    Gen. No. 15,477.
    1. Measure op damages—in action for breach of warranty as to' quality. Where no contract arrangement was made as to the place of delivery of merchandise, the measure of damages in case of a breach of the warranty for quality is the difference between the value of the merchandise as warranted and the actual value thereof at the time and place of delivery.
    2. Measure op damages—in action for breach of warranty as to quality. If merchandise was bought to he shipped abroad, and this was known to the vendor when he sold the merchandise, then the vendee’s measure of damages is the difference between the value of the merchandise as warranted and its actual value at the place and for the purpose contemplated.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. .
    Heard in this court at the March term, 1909.
    Reversed and remanded.
    Opinion filed January 23, 1911.
    Schuyler, Jamieson & Ettelson, for appellant.
    Henry W. Leman and Frank H. Culver, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

Defendant, doing business in Chicago, sold by sample to the plaintiff, doing business in New York, a carload of hog’s hair (20,000 lbs.), to be delivered f. o. b. Chicago; The contract was by correspondence, and its construction is for the court. The court properly instructed the jury that the defendant warranted that the quality of the hair in the carload should be strictly the same and equal to the quality of the hair in the sample bales delivered by defendant to the plaintiff. In assumpsit for a breach of the warranty, plaintiff had judgment for $560, and the defendant appealed.

August 8, 1905, defendant sent to plaintiff three bales of hair as a sample. September 13 plaintiff by letter asked defendant for an offer of a 30,000 lbs. car of hair, quality same as sample. September 15, defendant by letter offered to furnish plaintiff 20,000 lbs., same quality as sample, at 5c a pound f. o. b. Chicago. September 19 plaintiff wrote defendant that he had cabled defendant’s offer “to our friends abroad and will let you know in a few days.” September 27 plaintiff accepted defendant’s offer. Plaintiff sent the sample bales of hair to Weingreen at Hamburg, and by correspondence by cable sold the hair bought of plaintiff to Weingreen by said sample at 6 cents per lb. f. o. b. New York. November 4 defendant shipped the hair to plaintiff, drew a draft for $1,-169.65, the purchase price, with bill of lading attached, and plaintiff paid the draft. Plaintiff shipped the lifiir to Weingreen at Hamburg, drew a draft for the purchase price, with bill of lading attached, and Weingreen paid the draft. After the hair was received Weingreen claimed that it was inferior to the sample, and made a claim on plaintiff because of such inferiority for .3,350 marks. This claim was afterwards reduced to 2,700 marks and was then paid by plaintiff to Weingreen.

Had nothing been said between the parties as to the place where the hair contracted for was to be sent, the measure of damages in case of a breach of the warranty would have been the difference between the value of the hair as warranted and the actual value of the hair delivered at the time and place of delivery. Wheelock v. Berkely, 138 Ill. 153. If this rule is applicable in this case, the judgment must be reversed, because there is no evidence in the record to sustain the award of damages. Evidence of the price paid for the warranted hair in Chicago was admissible as tending to show the value of the hair as warranted, but there is no evidence to show the actual value in Chicago of the hair delivered. There is evidence that the hair delivered, upon examination and comparison with the sample bales at Hamburg, was found to be greatly inferior to the hair in the sample bales, and in value fifty per cent, less than the hair in the sample bales. There is no evidence tending to show that the condition of the hair was liable to be affected by the carriage from Chicago to Hamburg, and evidence of its condition in Hamburg was admissible as tending to show its condition when delivered to the plaintiff in Chicago, but evidence that its value at Hamburg was a certain per cent, less than the hair in the sample bales is not evidence tending to prove the actual value in Chicago of the hair delivered.

There was evidence tending to show that the hair was not bought for the domestic market, but was bought to be shipped abroad, and that this was known to the defendant when he sold the hair. If the hair was bought to be shipped abroad, and this was known to the defendant when he sold the hair, then plaintiff’s measure of damages was the difference between the value of the hair as warranted and its actual value at the place and for the purpose contemplated. Bridge v. Wain, 1 Stark, 504; Converse v. Burrows, 2 Minn. 191; Camden Oil Co. v. Schlens, 59 Md. 31; 2 Sutherland Dam. 425; 2 Sedgwick Dam. sec. 762.

If on the evidence it can he said that the shipment of the hair to Hamburg for sale there was within the contemplation of the parties, and the rule of damages last above stated applicable to the facts of this case, the judgment must be reversed, because there is no evidence of the value in Hamburg either of the hair in the sample bales or of the hair delivered to Weingreen, but only evidence that the value of the hair delivered was fifty per cent, less than the value of the hair in the sample bales. Evidence of the price paid by Weingreen to the plaintiff for the hair as warranted delivered f. o. b. in New York, was not evidence tending to show the value of the hair as warranted in Hamburg.

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

Reversed cmd remanded.


text:
    Peter C. McArdle, Appellant, v. Civil Service Commission of Chicago, Appellee.
    Gen. No. 15,482.
    1. Cebtiokabi—what essential to justify writ. To justify issuing a writ of certiorari good cause must be shown by the petition, since the writ is not a writ of right; and if it appears to the court, after issuing the writ, that it has been improvidently issued, it should be quashed and the petition dismissed.
    2. Cektiobabi—when quashing of writ justified. The quashing of a writ of certiorari is justified in the discretion of the court if it appears from the petition for the writ that no damage or injury resulted or might have resulted to the petitioner from the decision Which it was sought to review.

      Certiorari. Appeal from the Circuit Court of Cook county; the Hon. R. W. Clifford, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 23, 1911.
    McArdle & McArdle and John A. Watson, for appellant.

      Edward J. Brundage and Clyde L. Day, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the petitioner from a judgment of the Circuit Court quashing a writ of certiorari and dismissing the petition.

It appears from the petition for the writ that the decision of the defendant sought to be quashed and set aside was rendered on the hearing of certain charges in writing against petitioner, a cement tester in the Bureau of Engineering, Department of Public Works of the city of Chicago, made by the Commissioner of Public Works; that the petitioner filed objections in writing to the sufficiency of said charges, but wag required to and did go to trial on said charges, and that the trial resulted in the following decision by the Civil Service Commission:

“Upon investigation of within charges; that a notice stating the time when and the place where this investigation was to be held together with a copy of the charges therein, was duly served on the said P. C. McArdle more than five days prior to this investigation; and the said P. C. McArdle appeared in person, and was also represented by attorney. Whereupon the witnesses were sworn and their evidence was heard by the Commission.
“And we further find from the evidence that the said P. C. McArdle is guilty as charged in the foregoing charges; but we find that the facts as shown do not warrant the discharge of the said P. C. McArdle from the service of the city, and it is ordered that the matter be referred to the Commissioner of Public Works for action.”

To justify issuing a writ of certiorari good cause must be shown by the petition, since the writ is not a writ of right; and if it appears to the court, after issuing the writ, that it has been improvidently issued, it should be quashed and the petition dismissed. Chicago v. Condell, 224 Ill. 595.

In People v. Leavitt, 41 Mich. 470, it was held that where a man had been tried and convicted of the violation of a city ordinance and had voluntarily paid the fine, a reversal on certiorari could not benefit him, and the writ therefore would not lie to review the proceedings. The decision in that case is based on the rule that certiorari does not lie where it does not appear that the petitioner has some substantial interest and may suffer some injury if the court does not interfere. In the present case, while petitioner was found guilty of the charges made against him, there was a finding that the facts shown did not warrant his discharge from the service of the city, and it appears from the petition that petitioner was not discharged, but was in the service of the city when he filed his petition.

We think that the Circuit Court might, in its discretion, properly quash the writ on the ground that the petition did not show that any damage or injury had resulted or might result to the petitioner from the decision which it was sought by the writ to quash and vacate, and the judgment is affirmed. ■

Affirmed.


text:
    Mary F. Coolahan, Appellee, v. Marshall Field & Company, Appellant.
    Gen. No. 15,490.
    1. Instructions—approved form in action for false imprisonment. The following instruction upon this subject is approved:
    "The court instructs the jury that in order to sustain a charge of false imprisonment it is not necessary for the plaintiff to show that the defendant used violence or laid hands upon her or shut her up in jail or prison; but it is sufficient to show that the defendant at any time or place in any manner restrained the plaintiff of her liberty or detained her in any manner from going where she wished or doing what she wished, provided this was done without legal authority, as explained in these instructions."
    2. Instructions—how to he construed. Instructions are to be regarded as a series and the omissions of one may be supplied by the contents of another.

      3. Instbxjctions—when in action for false imprisonment not erroneous. Held, that the Instruction complained of in this ease did not justify the jury in fastening liability upon the defendant for unauthorized acts.
    Trespass. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 23, 1911.
    Rehearing denied February 6, 1911.
    Frank P. Leffingwell, for appellant.
    Gilbert & Gilbert, for appellee; Lynden Evans, of counsel.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

In trespass for arrest and false imprisonment plaintiff had judgment for $750, and the defendant appealed. Plaintiff and Mrs. Smith were arrested in the basement salesroom of the defendant’s store by Anson L. Mc-Callum, who was not in the service of, or in any way connected with, the defendant. He took them to the first floor of the store and called his brother, W. W. McCallum, who was an usher or floor walker in the service of the defendant. As to what occurred after W. W. McCallum responded to the call of his brother, the testimony is conflicting. The testimony for the plaintiff tended to show that Anson McCallum said to his brother that he had a couple of women who had stolen a handkerchief in the basement, and said, “Ton take this one (the plaintiff) and I will take the other;” that W. W. McCallum took plaintiff by the arm and accompanied by his brother and Mrs. Smith went to the office of Michael P. Ford, an assistant superintendent; that they were taken in to Ford’s office, where Ford was sitting at a desk, the door closed, and there in the presence of Ford and W. W. McCallum, Anson McCallum searched the plaintiff; that after they had been in the room some time, Ford and W. W. McCallum left the room; that Anson McCallum was called out and soon returned, said a mistake had been made, and plaintiff and Mrs. Smith then left the room.

W. W. McCallum testified that his brother said to him that he had a couple of women who had stolen a handkerchief in the basement, and asked where he would find the department to which such persons were taken; that witness told him Mr. Ford’s office, which he knew was the office where they took persons that were stealing in the store; that he walked in front of his brother to the railing, around the office, but did not go into the office and did not touch the plaintiff.

Ford testified that he was standing in the outer office when the McCallums and the women came to the office; that he opened the gate in the railing, Anson McCallum went through into the private office and the two women followed him; that Anson McCallum said, “This woman, or one of these women, has taken a handkerchief;” that he immediately went out into the outer office, sent for W. W. McCallum, and learning that the other man was not connected with the house, went back into the private office and said, “Ladies, this is a matter that Marshall Field & Co. have nothing to do with; ’ ’ that the women continued talking to Anson McCallum until he told them that he wanted to use the office for another purpose. He also testified that, “I had the looking after theft; that was all in my care.”

It is contended that the court erred in giving certain instructions for the plaintiff and in refusing one asked by the defendant. This is instruction 1:

“The court instructs the jury that in order to sustain a charge of false imprisonment, it is not necessary for the plaintiff to show that the defendant used violence or laid hands upon her or shut her up in jail or prison; but it is sufficient to show that the defendant at any time or place in any manner restrained the plaintiff of her liberty or detained her in any manner from going where she wished or doing what she wished, provided this was done without legal authority, as explained in these instructions.”

It is a sufficient answer to the objection made to this instruction that it was given in Hawk v. Ridgway, 33 Ill. 473, and there held free from objection.

This is plaintiffs instruction 2:

“The court instructs the jury that if they believe from the evidence that the defendant, by its agent or agents, on the 22nd day of December, A. D. 1902, took the plaintiff into its custody and there kept her, and led her through its store to a private room, and there searched and accused her of stealing a handkerchief, as charged in the. plaintiff’s declaration, then they will find for'the plaintiff and assess, the plaintiff’s damages at such sum as they believe from the evidence will compensate the plaintiff for injuries she may have suffered, if any, from the aforesaid acts of the defendant.”

It is contended that this instruction was held erroneous in I. C. R. R. Co. v. King, 179 Ill. 91. This is the instruction given in that case: “The court instructs you that if you believe, from the evidence, that the injury complained of was wantonly and willfully inflicted, as charged in the declaration, then the plaintiff will be entitled to recover, although you may believe, from the evidence, that plaintiff was guilty of some negligence.” It was held erroneous because it omitted the requirement that the brakeman was acting within the line of his duty and the scope of his employment. Plaintiff’s instruction 2 told the jury that if the defendant did certain acts, then the jury should find for the plaintiff, etc. The instruction in the King case told the jury that “if the injury complained of was wantonly and willfully inflicted as charged in the declaration,” the plaintiff was entitled to recover, etc.

Defendant’s instruction 13 told the jury that if some servant of the plaintiff did assault or arrest the plaintiff, plaintiff was not entitled to a verdict if the jury believed from the evidence that such servant in making-such assault or arrest, “was not acting within the general scope of his employment.” We think that, taking this instruction in connection with plaintiff’s instruction 2, the defendant has no just cause to. complain of the instruction in question.

Plaintiff’s instruction 3 is not, in our opinion, subject to the objection that it assumes that the defendant did arrest the plaintiff.

What has been said as to the plaintiff’s instruction 2 disposes of the objection to plaintiff’s instructions 4, 5 and 6, in each of which the jury were told that if “the defendant” did certain acts, then, etc.

This is the instruction that it is contended that the court erred in refusing to give for defendant:

‘' The jury are instructed that the plaintiff cannot in any event recover a verdict which shall be based upon anything that was said or done to her while she was in the store of Marshall Field and Company on the day in question, and before she arrived at the office of Mr. Ford.”

The court instructed the jury that they should not consider anything that was said or done to the plaintiff while she was in the basement of defendant’s store or going from the basement to the first floor. Appellant contends that the acts done by W. W. McCallum did not amount to an assault, arrest or false imprisonment, as alleged in the declaration, and therefore the court erred in refusing to give said instruction. Whether the acts of W. W. McCallum did or did not amount to an assault, arrest or false imprisonment of the plaintiff, and whether in committing such acts he was acting within the line of his duty and scope of his employment, were, we think, on the evidence, questions of fact for the jury, and not of law for the court. Field v. Kane, 99 Ill. App. 1.

Appellant further contends that the evidence does not show that plaintiff was assaulted, arrested or detained against her will by any authorized agent or servant of the defendant, and therefore a verdict of not guilty should have been directed, or at least that the judgment should be reversed on the ground that it is against the evidence. There is no evidence tending to show that plaintiff had committed any crime, and if, therefore, she was arrested or imprisoned, it was without legal authority. From the evidence the jury might properly find that W. W. McCallum, the usher or floor walker of the defendant, on being informed that the plaintiff had stolen a handkerchief from the defendant, designated as the place to which she should be taken the office of Ford, which he knew was the place where they took people that were stealing in the store; that he assisted in taking plaintiff to said office and took hold of her arm. If he touched her for the purpose of compelling her to go with him, that was an assault, an arrest, and if against her will he took her to that office, thereby restraining her of her liberty, that was an imprisonment. As to Ford, the jury might properly find that he was in charge and control of a room in defendant’s store where they took people that were stealing in the store; that while he was present in said office, plaintiff was brought into the office, the statement made that she had stolen a handkerchief, and that there in his presence she was searched by Anson Mc-Callum. The jury found specially in answer to interrogatories that W. W. McCallum arrested the plaintiff, but such finding is not conclusive on the question whether Ford was also guilty of falsely imprisoning her.

In our opinion the damages awarded cannot be held so excessive as to justify a reversal of the judgment.

We think that the evidence is sufficient to warrant and support the verdict, and that the court did not err either in refusing to direct a verdict for the defendant or in overruling defendant’s motion for a new trial, and the judgment will be affirmed.

Affirmed.


text:
    Wiley W. Mills, Administrator, Appellee, v. The City of Chicago, Appellant.
    Gen. No. 15,496.

      Instructions—when in action for death caused by wrongful act erroneous. An instruction upon the question of damages in such an action is erroneous if it does not limit the jury to damages to the pecuniary loss sustained to the next of kin.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. James Craig, Judge, presiding.
    Heard in this court at the March term, 1909. Reversed.
    Opinion filed January 23, 1911.
    Rehearing denied February 6, 1911.
    Edward J. Brundage and John R. Caverly, for appellant; James E. Purnell, of counsel.
    Wiley W. Mills, Walter S. Garr, Ross C. Hall and William H. Holly, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

In an action on the case for wrongful death plaintiff had judgment for $7,500 and the defendant appealed. The only instruction given on the subject of damages was this instruction, given for the plaintiff:

“If you find the defendant guilty, then the plaintiff is entitled to recover such damages as will compensate deceased’s wife and children for whatever damages they have sustained on account of his death. And in estimating such damages, in case you find the defendant guilty, you may take into consideration the age of the said Otto Winter at the time of his decease, his business capacity, disposition to labor and habits of living, in so far as the same are shown by the evicLghcg. ? *

In P. C. C. & St. L. Ry. Co. v. Gates, 137 Ill. App. 309, the court instructed the jury that they might make an estimate of the damages “from the facts and circumstances in proof and by considering them in connection with their own knowledge, observation and experience in the business affairs of life.” The instruction was held erroneous because it did not limit the damages to the pecuniary loss sustained by the next of kin of plaintiff’s intestate. In the opinion the reasons for the conclusion reached are stated and the authorities cited. We see no reason to change or modify the views so expressed.

The instruction in question does not limit the damages to the pecuniary loss sustained by the wife and children of the deceased, and appellant in this case, as in that, assigned as ground for new trial and as error, that the damages were excessive.

We think that the giving of said instruction was reversible error, and for such error the judgment will be reversed.

Reversed.