text:
    Mary Davis, Appellee, v. Catholic Order of Foresters, Appellant.
    Gen. No. 15,989.
    Fraternal benefit societies—effect of false answers in application. False answers as to health conditions and history if material, regardless of whether they constitute warranties, are a good defense to an action upon a certificate.
    Appeal from the Municipal Court of Chicago; the Hon. Frederick L. Fake, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed with finding of fact.
    Opinion filed October 20, 1911.
    Edward S. Cummings, for appellant.
    John T. Richards, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

This is an appeal from a judgment entered in a suit in the Municipal Court of Chicago, the suit being of the first class. The suit is based upon a benefit certificate issued by the appellant to Charles Davis, the appellee, his mother, being named in the certificate as beneficiary. There was a verdict of the jury finding the issues for the appellee, the plaintiff below, for the sum of $1,075, being the amount specified in the benefit certificate with interest thereon.

As is usual in such cases, the applicant for membership in the appellant society was required to sign an application. In the present instance the application was made a part of the certificate or contract by the following provision:

“The representations and agreements made and subscribed by him in the application and medical examiner’s blanks and the answers given and certified by him to the medical examiner are hereby acknowledged and declared by him to be warranties and to be made á part of this contract.”

The certificate also contains the following acceptance signed hy the applicant:

“I accept this certificate upon the conditions herein-above named and assent thereto and agree to comply therewith. ’ ’

Among the questions of the Medical Examiner and answers of the insured as shown in the application were the following:

“Have you ever had any severe illness or injury or undergone any surgical operation? A. No.
“When, and for what has medical advice been sought within the last three years? A. I had none.
“Have you had any of the following complaints, diseases or symptoms: Abscess of the hip? ■ A. No.
“Have you had any of the following complaints, diseases or symptoms: Open sores? A. No.
“Is there anything to your knowledge or belief in physical condition, family or personal history, or habits tending to shorten your life which is not directly set forth in this application? A. No.”

The appellant filed several pleas, to which a demurrer was interposed by appellee. This demurrer was sustained, and one of the points urged upon us for a reversal of the judgment is the alleged error of the court in sustaining this demurrer. It is unnecessary for us to discuss the questions presented by the demurrer, for the reason that we think the case must be disposed of on other grounds.

The appellant filed six pleas in addition to the general issue and in addition to those to which the demurrer was interposed. To the six pleas a replication was filed by appellee. These pleas in appropriate language set forth the defenses relied upon by the appellant based upon its claim that the answers to the five questions contained in the application, and which have been set forth above, were false and untrue, and that when he signed the application the sáid Charles Davis was not in good health but was afflicted with a disease which would tend to shorten his life; that he knew1 that he was so afflicted, and that the defendant did not know that he was in ill health, etc. The pleas also recite the following portion of the certificate Signed by Charles Davis:

“I do hereby certify and declare that the statements by me made above are each and all true in fact, and I do hereby warrant said statements and each one of them to be true in fact, and I do hereby agree that should any statement so made by me be untrue in fact or should I be suspended or expelled from the order or voluntarily sever my connection with the order, or should any concealment of facts be made by me in this application, that then and in such case I do thereby forfeit the rights of myself and of my beneficiary or beneficiaries, and of any and all other persons whomsoever to any and all benefits and privileges of the order, including all claims and demands by virtue of any benefit certificate that may have been issued to me by said order, and including also all moneys paid by me to said order for any purpose whatsoever.”

It is asserted by appellant that the allegations of these pleas were proven at the trial below and that such proof constituted a complete defense.

It is also asserted by appellant that the contract is a contract of warranty, and that because the answers to the questions were not truthfully made the contract is void. A representation, as distinguished from a warranty, has been defined to be, “a verbal or written statement, made by the assured to the underwriter before the subscription of the policy, as to the existence of some fact or state of facts tending to induce the underwriter more readily to assume the risk, by diminishing the estimate he would otherwise form of it.” Arn. on Ins. 489. “It is a part of the preliminary proceedings which propose the contract; and a warranty is a part of the contract as it has been completed.” Ang. on F. & L. Ins. 178. “A want of truth in the representation is fatal, or not, to the insurance, as it happens to be material or immaterial to the risk undertaken.” Supreme Council v. Beggs, 110 Ill. App. 139.

In our opinion, it is unnecessary to determine whether or not the contract is a warranty, because we regard the representations made in the application as material, and therefore the only question left for discussion is whether or not the appellant has shown the answers to be untrue.

On the part of the appellant the testimony of six witnesses was offered.

Dr. Dick testified that he was house physician and surgeon at the Cook County Hospital in June and July, 1905; that at that time he had been a member of the medical profession about a month, and had been connected with that hospital for about the same length of time; that he made a physical examination of the assured; that he had a tubercular sinus upon and just above the right gluteal fold; that a surgical operation was performed on the assured by Dr. Thomas Davis; that the witness was present at the operation; that the assured was about sixteen years of age, and that the assured afterwards worked in the linen room of the hospital.

Dr. Davis testified that he was connected with the Cook County Hospital in 1905; that he performed an operation on a man named Charles Davis; that the operation was a currettage of a tubercular sinus; that the right gluteal fold is a crease between the muscles of the buttocks; that the operation referred to consisted of a scraping out of the sinus with an instrument something like a spoon, and consisted of scraping out the granulations, which were infected and getting down to the bone, and scraping out the diseased bone; that the disease known as tubercular sinus is chronic; that a tubercular sinus, such as described, is essentially an open sore; that it is always preceded by an abscess of the hip. The witness testified on cross-examination that he did not remember whether he scraped the bone in this particular case; that it could not be determined without some sort of a test whether the wound was tubercular; that the test which he made in the case of Charles Davis consisted of an examination of the sinus and the history of the patient; that he obtained his knowledge of the history of the case from other physicians.

Bertha Dickman testified that she had a talk with Charles Davis, in which he stated he had to go to the Cook County Hospital to have an operation performed ; that after he came back from the hospital he said he felt better; that she saw him walking around, but did not observe that he was lame.

Annie Bruner testified that she had a talk with the assured after he came back from the hospital, in which he said that he underwent three operations at the County Hospital, and that he had consumption of the bone and was incurable. On cross-examination she said: “I never had any trouble with the Davis family, but they did all they could against me, but they never had a good word for people, but I always had a good word for them. I am always friendly to them, but they never was friendly to me. * * * Everybody knew he had consumption of the bone.” She remembered no other part of the conversation.

William Bruner testified that the deceased told him he had a sore and that the deceased’s father wanted to show it to him; that it was not stated what sort of a sore it was; that he put his hand on his side and said the sore was there; that it was a kind of consumption.

Bertha Haight testified that she asked the deceased what he was at the hospital for; that he replied he had been operated on; that he said he had tuberculosis of the hip, and had been operated on at the Cook County Hospital; that the doctors told him he never would live to see nineteen or twenty years; that he said they had scraped the bone; that the deceased was a little lame, but did not have to use a crutch.

The certificate of death gives the cause of death as asthma-valvular disease of the heart, and the duration of the disease ten days, and states that Charles- Davis died on the 11th of October, 1907, at the age of eighteen years and eleven months. Whether the disease of the heart, from which he is said to have died, is attributable in any way to the tubercular trouble does not appear.

The appellee, who was the mother of the assured, testified that she knew nothing about the doctors havipg performed an operation on her son when he was in the Cook County Hospital.

Charles Davis, father of the plaintiff, testified that his son returned from the hospital about the middle of August, 1905; that he went to work the next morning with him. He further testified that he made a physical examination of his son before he went to the hospital; that he saw a red spot and put a flaxseed poultice on it; that he continued the application of the poultices for three or four days, when the injured part broke and his son would not allow him to treat it any further, whereupon he sent his son to the hospital for treatment; that after his son came back from the hospital he worked on the railroad, throwing switches; that he (the father) saw the injured leg and that there was nothing the matter with it; that there was no scar on it of any kind; that it was entirely healed up, and when the place broke some matter came out of it, but not much; that his son continued to work until Christmas and was then laid off; that he afterwards worked at another place, and worked altogether at four or five different places.

M. J. Kill testified that he saw the assured, Charles Davis, nearly every day for almost three years prior to his death; that he walked all right; that witness saw him working for the railroad company, throwing switches; that he appeared to be a “healthy-looking” young fellow; that he never heard of his being in the Cook County Hospital or of his having had an operation.

Maud Ferriter testified that she saw the assured every evening after he came back from the hospital, and that he seemed to be all right.

Lulu Ferriter testified that she visited the assured once at the County Hospital; that after he came back from the hospital she used to play tag with him every night, and that he never appeared lame.

It will be noticed that Dr. Dick testified that Dr. Davis performed an operation. Dr. Davis himself, after testifying that he performed an operation, stated on cross-examination that he did not remember whether he scraped the bone in this particular case; that in some instances an open sore, such as the in-’ sured had, heals rapidly after the scraping process. If that was the result in this case it would account for the fact that the father, when he examined the leg, regarded it as healed.

The undisputed testimony in the case therefore is that the assured had had an open sore; that he had had a severe illness, and that he had undergone a surgical operation. It also tends to show that within two years of the date of the application for membership the assured had a tubercular affection, described as a tubercular sinus, upon and just above the right gluteal fold. The testimony of Dr. Davis, too, is undisputed, that the disease known as tubercular sinus is chronic, and that “tubercular sinus is essentially an open sore,” and is always preceded by an abscess of the hip; that the open sore often heals when the bone beneath it is scraped.

The testimony of Bertha Dickman, Annie Bruner and Bertha Haight, all to the effect that the deceased told them he had gone to the hospital and had there been operated on, tends strongly to substantiate the testimony of Dr. Dick and Dr. Davis that such operation had been performed. It is true that by her cross-examination the testimony of Annie Bruner is somewhat weakened, as showing that the Davis family was not friendly to her, but there is nothing in the record to impeach or weaken in any way the testimony of Bertha Dickman and Bertha Haight.

From the testimony in this case, we are irresistibly drawn to the conclusion that the assured gave false answers in his application, in stating substantially that he had never undergone a surgical operation; that he never had had an abscess of the hip or an open sore, and that he had not taken medical advice within three years. It has been held that the statement in an application that the applicant had never had heart disease was a material representation, and if false would avoid the policy (Continental Life Ins. Co. v. Rogers, 119 Ill. 474; Metropolitan Life Ins. Co. v. Moravec, 214 Ill. 186). It has also been held that a material misrepresentation, whether made intentionally and knowingly or through mistake and in good faith, will avoid the policy (United States Fidelity Co. v. First National Bank, 233 Ill. 475).

It is unnecessary to prolong this opinion. We are satisfied from the record that no reasonable mind, uninfluenced by passion or prejudice, would come to any other conclusion than that the answers to the questions contained in the application, heretofore mentioned, which application was made a part of the certificate, were false. Therefore the certificate became void and the appellee secured no rights thereunder.

The judgment will be reversed with a finding of fact.

Reversed with finding of fact.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    William H. Haskell, Plaintiff in Error, v. Dwight H. Perkins, Defendant in Error.
    Gen. No. 15,830.
    1. Slandeb and libel—how question of actionable character determined. Whether or not words and writings are actionable per se, is a question for the court and not for the jury.

      2. Slandeb and libel—how question of privilege determined. The question whether words and writings are privileged is a question for the court and not for the jury.
    3. Slandeb and libel—what communications are privileged. All communications, either verbal or written, passing between public officials pertaining to their duties, and in the conduct of the public business, are of necessity absolutely privileged.
    4. Slander and libel—what not publication. The repetition of privileged communications at the reguest of the attorney and representative of the party charging libel, is not a publication which will confer a right of action.
    Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 20, 1911.
    Statement I>y the Court. An action for slander and libel was instituted by William H. Haskell, plaintiff in error, in the Municipal Court of Chicago against Dwight H. Perkins, defendant in error, who was architect for the Board of Education of the City of Chicago. The statement of claim filed by the plaintiff in substance sets forth that at the time of the publication of the libel therein referred to, the plaintiff was an employe of the Board of Education as superintendent of construction, being particularly assigned to the superintending of painting and varnishing. The defendant Perkins at and during the same time was architect for the Board of Education, and was head of the department in which the plaintiff worked. While they were so employed the defendant Perkins prepared and filed with the Building and Grounds Committee of the Board of Education a written specification of charges wherein he, Perkins, charged the plaintiff with insubordination in his employment; the acceptance of work not properly done and not in accordance with the specifications furnished by Perkins, permitting varnish to be used which was not in accordance with instructions furnished by Perkins; and accepting work done by contractors which was not up to specifications, and contrary to the instructions issued to the plaintiff by the defendant Perkins. Perkins also charged the plaintiff Haskell with specific and general incompetency; that the defendant was not suited either by experience or training to fill the position that he occupied; that Haskell had pronounced work as being complete, and as having received two or more coats of varnish in accordance with the specification when as a matter of fact it had received but one.
    The plaintiff, Haskell, alleged that such specifications and charges at the time they were made and filed were false, and that Perkins knew them to be false at the time he prepared and filed the same, and that the specifications and charges were drawn and filed' with malicious motive for the purpose of causing the plaintiff, Haskell, to be discharged from his position, and as a result thereof, Haskell was discharged.
    Haskell further alleged that he had been a contracting painter for many years in Chicago and deservedly enjoyed a reputation of being an experienced and competent painter and superintendent, and that he was as a matter of fact an experienced and competent painter, and that the charges so made greatly injured him in his business.
    The plaintiff also set up in his statement of claim, that on or about the tenth day of December, 1907, the defendant, Perkins, with intent to injure the plaintiff and bring him into public scandal and disgrace, and to cause him to be discharged from his position as superintendent, and with intent to injure his reputation as a citizen and as an experienced painter, and actuated by motives of revenge and malice, in the presence and hearing of divers persons spoke and published of and concerning the plaintiff, and of and concerning the matters and premises aforesaid, the false and scandalous and malicious and defamatory words, that is to say: “Clayton II. Marks says, that if there is a grafter on the Board of Education, it is old Bill Haskell,” meaning and intending thereby to charge the plaintiff of being guilty of improper conduct in his position, and that he had been guilty of what is commonly known as grafting.
    On the trial, the plaintiff testified in substance that he had been a painter in the city of Chicago thirty or forty years; he had been in the employ of the Board of Education about eleven years, and his duties were those of general superintendent of painting and construction, and showing that the specifications furnished by the architect were carried out by the contractors; to his knowledge no one ever complained in regard to his work as a painter or otherwise until charges were prepared and filed by the defendant, Perkins, as stated. In September, 1907, he received a letter from the defendant Perkins asking him to call, and in compliance with the letter the plaintiff called upon the defendant, and the defendant said that he had concluded to separate him, the plaintiff, from the service, and asked the plaintiff whether he preferred to resign or stand trial. The plaintiff then stated to him that he didn’t know whaf charges he could have against him, to which the defendant replied that he, Perkins, was confident they could not do business and “he had to go;” that the defendant didn’t need specific charges to secure the separation of the plaintiff from his position; that he had seen eleven members of the Board and they had agreed to let the plaintiff go. The plaintiff then stated that before resigning he wanted to consult some friends in regard to what he should do. Shortly after-wards the plaintiff saw the defendant and-told him that he had concluded not to resign, and that he, Perkins, could prefer his charges. To this the defendant Perkins replied, “Ton will then oblige me to recommend your suspension to the president of the Board.” Subsequently the plaintiff received another letter from the defendant wherein the -defendant stated that he had been authorized by the president of the Board of Education to suspend the plaintiff from the service for incompetency and insubordination pending an investigation. Thereafter, the plaintiff had a conversation with the defendant wherein the plaintiff stated to the defendant that the defendant knew that he could not substantiate the charges, and completed the interview by requesting more specific charges, and when and where he was incompetent and insubordinate. The plaintiff was told by the defendant that he would file specific charges, and that the plaintiff could call upon the Building and Grounds Committee for them. The plaintiff subsequently called upon the Building and Grounds Committee of the Board of Education and procured a copy of the written charges. The defendant was then called as a witness by the plaintiff and identified Exhibit “D” as the written charges which he prepared and filed with the Building and Grounds Committee of the Board of Education, which charges are set forth in the plaintiff’s statement of claim. The plaintiff then offered in evidence Exhibit “D”, and offered to prove in connection with it that the said charges mentioned in Exhibit “D” were false, and that the defendant knew they were false at the time he prepared and filed them with the Building and Grounds Committee; and offered to produce testimony tending to show that the defendant was actuated by malice in the preparation and filing of the charges. The trial court sustained an objection to the offer of Exhibit “D” and also to the offer of the testimony in connection with it.
    The plaintiff and the witness A. S. Trade, his attorney, testified that the defendant told Trade in the office of the defendant that “Clayton H. Marks said that if there ever was a grafter on the Board of Education, it was old Bill Haskell.” Clayton H. Marks, the party referred to in the above statement, then testified that he never at any time made such a statement to the defendant Perkins or anything of that nature. In connection with the testimony concerning the above spoken words, and also in connection with the written charges, the plaintiff offered testimony tending to prove that the defendant had formed a hatred and dislike for the plaintiff and that he had on several occasions manifested it by acts he had done or caused to be done.
    The defendant Perkins upon taking the stand in his own behalf testified to numerous conversations with the plaintiff prior to the suspension, wherein he told the plaintiff he was convinced they could not agree, and that for the good of the service he had determined to suspend him; that he, Perkins, stated to Haskell that he was not satisfied with his work, and that his previous instructions had not been carried out to his satisfaction; that he had been waiting for three months to get the matters corrected. The plaintiff sought to prove on cross-examination when defendant Perkins first discovered plaintiff was not doing his work properly, and Haskell had refused to obey the defendant’s instructions, and where and when Mr. Haskell had accepted work not according to specifications, and his personal knowledge of the facts mentioned in conversations between them. To this line of cross-examination the court sustained objections made by counsel for the defendant, on the ground that it involved a retrial of the charges before the Board of Education.
    At the close of all the evidence the defendant made a motion to instruct the jury to find the defendant not guilty. This motion was granted and the jury were instructed accordingly.
    Seitz, Bryan & Wilber, for plaintiff in error.
    Frank Hamlin and Angus Roy Shannon, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The principal contentions of the plaintiff based on errors assigned are: First, that the court erred in refusing to admit the charges and specifications prepared and filed by the defendant, and that such charges were false and the defendant knew they were false at the time he prepared and filed them, and that he was actuated by malice in preparing and filing the charges. Second, that the court erred in restricting the cross-examination of the defendant. Third, that the court erred in directing a verdict for the defendant.

The record shows without controversy that the specifications of charges were prepared and filed by the defendant Perkins in his official capacity as architect of the Board of Education of the City of Chicago, and as head of the department in which the plaintiff was employed, in strict accordance with his official duties, and that the specifications of charges were not delivered by him to the plaintiff Haskell, but to the duly constituted and authorized committee of the Board of Education. The defendant Perkins refused to deliver the specifications to Haskell and referred him to the committee, and Haskell secured a copy from the committee.

The question whether or not words and writings are actionable per se, and the question whether or not they are privileged are both questions for the court and not for the jury. Roby v. Murphy, 27 Ill. App. 394; Gerald v. Inter Ocean Pub. Co., 90 id. 205; Young v. Lindstrom, 115 id. 239. It is well settled that all communications either verbal or written passing between public officials pertaining to their duties, and in the conduct of the public business, are of necessity absolutely privileged. This includes secondary evidence of their contents and testimony given, motions and pleadings and affidavits filed in trials. These matters cannot be made the basis of recovery in a slander or libel suit. Spalding v. Vilas, 161 U. S. 483; McDavitt v. Boyer, 169 Ill. 475; Young v. Lindstrom, supra. In our opinion the trial of the plaintiff Haskell by the Board of Education was in the nature of a judicial proceeding by the only body authorized by law to pass upon the competency and conduct of Haskell in his position in the public service, and the question whether or not he should continue to hold such position. Brenan v. People, 176 Ill. 620; McCormick v. Burt, 95 id. 263; The People v. City of Chicago, 227 id. 445.

Assuming all the evidence in the record offered for the purpose of showing malice on the part of the defendant Perkins, with all reasonable intendments and inferences therefrom to be true, we do not find that it tends to show malice on the part of Perkins. We are of the opinion therefore that the preferring of the charges and the trial of those charges by the Board of Education did not form the legal ground for a recovery in the action under review, and the court did not err in excluding the evidence and directing a verdict as to those matters.

As to the alleged slander it may well be questioned whether the words charged in the amended bill of particulars, namely, that “Clayton H. Marks, who previous to the time aforesaid had been a member of the Board of Education of the City of Chicago, Illinois, says that if there is a grafter on the Board of Education it is old Bill Haskell, meaning the plaintiff,” impute a crime and are actionable per se. Some authorities hold they are actionable. But passing that question which we do not find it necessary to decide, the record shows that the words were spoken to the attorney and representative of the plaintiff Haskell, alone as Perkins supposed, at the request of the attorney. Perkins requested plaintiff to leave the room so that he might talk with his attorney privately. Haskell went out of the room but left the door ajar and listened to what was said to his attorney. The attorney of the plaintiff had called upon the defendant for the purpose of discussing the subject-matter which had been the subject of conversation between plaintiff and defendant, and specifically requested information from the defendant as to any charge or complaint made pertaining to the honesty or efficiency of the plaintiff in the discharge of the duties of his position. The words were spoken on this occasion in compliance with such request. The attorney and representative of the plaintiff upon hearing the words alleged to have been spoken stated that he did not believe them. Under such circumstances the repetition by defendant of what had been said on that subject by another did not constitute a publication of the words alleged to have been spoken, and would not of itself constitute such legal injury as to give rise to an action. Heller v. Howard, 11 Ill. App. 554; Railroad v. Delaney, 102 Tenn. 289; Haynes v. Leland, 29 Me. 233. This construction necessarily disposes of the alleged erroneous rulings on evidence, for it makes it unnecessary to consider them.

It follows from what we have said that there was no question of fact in the case to he submitted to the jury and the court did not err, therefore, in directing a verdict.

The judgment is affirmed.

Affirmed.


text:
    Ludwig Grudzinski, Administrator, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 15,871.
    1. Evidence—when witness incompetent as to question of speed. Notwithstanding a witness may testify that he has ridden upon street cars for twenty years, if he further says that he has had no experience in judging the speed of street cars, he is not competent to testify upon the question of speed.
    2. Instructions—effect of repetitions and arguments. If a long and unnecessary series of instructions be given containing mere repetitions amounting to an argument, a reversal will be awarded if the verdict was clearly the result thereof.
    3. Instructions—must he predicated upon evidence. An instruction which contains an assumption not supported by the evidence in the case, is properly refused.
    Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Cook county; the Hon. E. M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 20, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    N. L. Piotrowski and Cyrus J. Wood, for plaintiff in error.
    Franklin B. Hussey and Watson J. Ferry, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

An action was brought under the statute to recover damages for the benefit of the widow and next of kin of John Czyrynikiewicz for his death, alleged to have been caused by one of the street cars of Chicago City Bailway Company in Archer avenue between Butler and Wallace streets in Chicago. The trial of the cause resulted in a verdict and judgment in favor of the defendant.

Plaintiff in error (plaintiff below) seeks in this proceeding to reverse the judgment on the grounds, (1) that the trial court excluded proper evidence offered on behalf of the plaintiff in error; (2) the verdict is against the law and the weight of the evidence; (3) the trial court erred in giving to the jury, at the request of the defendant in error, improper instructions and in refusing to give proper instructions requested by the plaintiff in error; and (4) the verdict is the re-suit of passion and prejudice.

The declaration is in two counts. The negligence averred in the first count is that while the deceased was walking in Archer avenue near its intersection with Wallace street, with due care for his personal safety, the defendant in error carelessly and negligently drove and operated its car so that it ran against deceased and threw him to the ground and so injured him that he died on the same day.

The negligence, averred in the second count is that while deceased was one of a procession, and proceeding on foot in Archer avenue near Wallace street, the defendant in error carelessly and negligently propelled its electric car so that the deceased was struck by it and injured so that he died on the same day.

The evidence in the record discloses that the injury happened on October 25, 1903, about 10 o’clock in the forenoon. It was Sunday, and there was a procession of church societies. The procession had reached Archer avenue and halted with the right of the line near Stewart avenue. There is some lack of unanimity among the witnesses as to what was done after the halt. Some of the witnesses testified that the procession remained in two lines, one on the southerly side of the street car tracks and one on the northerly side of the tracks, while other witnesses said that the command had been given to disband, and the procession had broken up, and its members were scattered along the street on both sides of the’ tracks and on the tracks and the sidewalks.

Six witnesses were produced at the trial to establish the case for the plaintiff in error. Bach witness confined himself to the statement that he heard no bell, gong or signal. Only one expressed any opinion as to the speed of the car just before and at the time of the accident. No two of the witnesses agreed as to the. position of the deceased" with reference to the car tracks in which the car was traveling just before the accident. The testimony of several of the witnesses was contradictory with reference to the above mentioned matters, and differed widely as to the material facts from their testimony on a former trial of the case. Some of the plaintiff’s witnesses testified that before the deceased was struck he was standing clear of the rails of the track on which the car was traveling, while others testified he was standing on its north rail. No witness said he was struck by the fender or forward end or corner of the car, but on the contrary that those parts of the car passed him and he was struck by either the hand rail or some portion of the car in its rear.

The theory of the defendant in error was that the speed of the car was about four miles an hour just before and at the time plaintiff in error was struck, and that the bell was continuously sounded, and that the motorman had one hand on the controller and one hand on the brake; that the forward end of the car passed the deceased, and that he either fell or ran against the side of the car which was brought to a full stop within a very few feet after the plaintiff in error was struck. This was supported by the testimony of three witnesses.

Upon a study and consideration of the evidence we think the verdict and judgment are fully supported by the weight of the evidence.

It is contended that the court erred in excluding the testimony of Derdzinsld as to the speed of the car. He was asked if he could tell the rate of speed a street car was going and if he had any experience in that regard, and answered, “No, I have had no experience.” He was asked again to tell the court what experience he had in judging the rate of speed of street cars, and answered: “Well I have had no experience at all in that line.” He had observed street cars running in Chicago, he testified, and had ridden on them every day for twenty years, and during that time had not judged the rate of speed. ■ He was then asked, “In your opinion, how fast was that car going when you first saw it?” The witness was not permitted to answer the question. We think the witness was not competent to answer the question, and that the ruling was correct. While a person need not be an expert to testify as to the speed of a street car, he is not competent to testify to what he does not know, and with reference to which he has had no experience.

Errors are assigned upon the giving of thirty-two instructions requested by the defendant in error, constituting a lengthy and involved series, and containing many repetitions. We have had occasion to criticise courts for giving, and counsel for requesting so many instructions in this class of cases where the issues are simple and no occasion exists for giving such an extraordinary number of instructions. The practice naturally grows out of our unfortunate method of instructing juries in writing, using instructions tendered by the parties, but it is to be condemned nevertheless on many grounds frequently mentioned by courts of review. We have with great weariness and some impatience examined this long series of instructions with the result that we find no reversible error therein. They amount to an argument, and in a case where it shall appear that the argument of the court had resulted clearly in a verdict which would not otherwise have been rendered, we shall not hesitate to reverse on that ground. This, however, is not such a case. We cannot take the time to discuss in detail the many objections made to the instructions for it would require the space of a large pamphlet in which to do it fully and with clearness. Counsel for defendant in error have found it necessary to occupy thirty-two pages of their printed brief in answering the objections. We must content ourselves by saying that the specific objections made in argument are not well founded.

Plaintiff in error urges that the trial court erred in refusing instruction marked “B”. The instruction is a long one, and in one of its clauses it involves an assumption that the motorman of the car did not give the deceased “an opportunity to avoid the danger by the exercise of such presence of mind and of such ordinary care as would be expected of a man of ordinary coolness and prudence, under such circumstances as were surrounding him,” for which there is no support in the evidence. It was therefore misleading. In other respects the instruction is a statement of the converse proposition embodied in defendant’s instruction No. 28. It was not error to refuse to repeat the same propositions of law applicable to certain facts given at the instance of one party by stating the same facts and the law conversely. The refusal of the instruction did not harm plaintiff in error.

The judgment is affirmed.

'Affirmed.


text:
    John F. Devine, Administrator, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 15,893.

      Instructions—when peremptory properly given. In an action on the ease for personal injuries a peremptory instruction is properly given where the evidence establishes beyond controversy that the defendant was not guilty of the negligence charged.
    Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 20, 1911.
    Statement by the- Court. An action was brought by the public administrator as administrator of the estate of Peter Gentleman, deceased, against the Chicago City Railway Company for negligently injuring the person of the deceased by crushing him between two street cars upon the tracks of the street railway operated by it, located on Clark street near the corner of Washington street, Chicago, and that such injuries resulted in and were the cause of the death of the deceased.
    The evidence showed that the street car company had two street car tracks on Clark street at Washington street where the lines terminated; that the cars reached that point in their travel north, and were then turned back and sent south. The east track was the north-bound track, and the west track the south-bound track. Several switches were operated for the purpose of distributing the cars upon the two tracks before they were sent south upon their return trips. The southernmost of the three switch tracks shown was operated by a hand switch which was rarely used, and is not involved in this case. The middle, and northernmost switch tracks were in constant use. On the south end of the switch track in question, that is the middle switch of the three, at its junction with the north-bound track was a lever switch operated by a man stationed there, who by working a lever sent the cars either to the east or the west track as was deemed advisable. The north end of this cross-over at its junction with the south-bound track was formed by an automatic switch which operated only for shunting cars going north into the west track after they had been sent in that direction by the lever switch. It required no man to be stationed there. The effective part of this switch consisted of a steel tongue opening north on the east rail of the west track together with a spring. The office of the spring was to replace the tongue after it had been pried open by the wheels of the cars passing to the west track. When the tongue was forced open it formed a diagonal track from the east to the west track. When the tongue was in its normal condition it was pressed close to the east rail of the west track by a spring, forming an unbroken track south on the west track of the road. When the north-bound cars had been sent over the middle switch track just described to the west track, they continued north until they got to the end of the line at Washington street, from which point they started south again on the west track. When the north-bound cars were not sent over the middle switch by the hand lever at the south end thereof, they continued north on the east track to the end of the line at Washington street, and starting south, they were automatically switched by a switch similar to the one above described at the north end of the north switch track, and shunted over to the west track.
    All of the cars were supplied with two iron fenders, adjustable, so as to be let down at that end of the car facing the direction in which it moved, and hooked and fastened up at the rear end of the car. When cars neared the terminus the fenders at the north end were fastened and chained up against the car, and the fenders on the south end of each car were released and let down. During the rush hours when cars were passing in and out of the two termini or pockets as they were called, at intervals of about ten seconds, fender boys were employed, whose business it was to hook up the fenders at the north end of each car and release them at the south end. The deceased was a fender boy. On October 18,1901, he was adjusting the fender of a Wentworth avenue car which had just reached the terminus on the east track, and was standing still awaiting its turn to get into the pocket so as to be switched to the west or south-bound track. In doing this work, he was standing on a ledge outside of the north end of the car. He was facing nearly south or east. He had lifted the fender and was in the act of fastening it. At that moment another Wentworth avenue car on the west track moved south. When it passed over the tongue of the automatic switch, which should have been flush with the rails so as to permit this car to move south on the west track, the tongue was not closed but open, and thereby the south-bound car was thrown upon the east track and collided with the standing car, crushing the deceased between them.
    Concededly the evidence shows that the probable cause of the displacement of the tongue of the automatic switch was a piece of bagging or gunny sack which appeared to be wedged into the switch, preventing its automatic closing. This was dug out after the collision by means of an iron rod by one of the inspectors.
    The deceased was seriously injured, sustaining a fracture of the pelvic hone and a rupture of the bladder. He was operated on by surgeons several times. The final operation was in April, 1903, which consisted in an attempt to close up the opening or fistula which had been made for the discharge of the urine and pus, and carry the urine through its natural course. The operation was not successful and he died in the early part of 1904.
    Upon the close of the plaintiff’s testimony, the defendant requested an instruction directing the jury to find the issues for the defendant. The motion was sustained and the jury were instructed accordingly. The jury returned a verdict as directed. A motion for a new trial was made and overruled and judgment was entered in favor of the defendant. This writ of error is prosecuted to reverse the judgment.
    Goldzier, Rodgers & Froehlich, for plaintiff in error.
    B. F. Richolson and Watson J. Ferry, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The main question presented by the record under review is whether or not the trial court erred in directing a verdict at the close of the testimony offered by the plaintiff. The solution of this question involves, among other questions, a consideration of the evidence offered for the purpose of determining whether it supports or tends to support the averments of negligence made in the declaration or any count thereof.

The declaration contained ten counts, but the first,fifth, sixth and seventh were withdrawn. The negligence averred in the remaining counts is that the defendant permitted the switch to be and remain open and unlocked, whereby a south-bound car was propelled against a north-bound car; that the defendant provided an unfit and unsuitable switch; that the switch was permitted to be and remain in bad repair so that it did not lock; that the switch was defective in its operation so that it did not lock; and that the defendant failed to properly inspect the switch:

Upon an examination and consideration of the evidence and testimony offered, including the deposition of deceased in another case, we are of the opinion that it does not tend to support the allegations of negligence made in any of the counts of the declaration. The testimony does not tend to prove that the switch was unfit or unsuitable, or that it was in bad repair, or that it was defective in its operation, or that the defendant railway company failed to properly inspect it, or that the defendant permitted it to remain open and unlocked. As stated by counsel for plaintiff in error in their brief and argument filed in this proceeding, the evidence shows as the probable cause of the displacement of the tongue of the automatic switch a piece of bagging or gunny sack which appeared to be wedged into the switch. This was dug out of the switch after the accident by one of the defendant’s inspectors by means of an iron rod. It further appears from the evidence that when the piece of bagging was removed the switch worked perfectly. The switch worked perfectly a few seconds before the accident. The car just preceding the one which caused the collision passed over the switch, and continued on the west or south-bound track about ten seconds before the accident. This shows that the switch worked perfectly at that time. The only legitimate inference from these facts shown by the plaintiff’s evidence is that in some way the piece of bagging became wedged into the switch within about ten seconds of the time of the accident, and prevented the switch from closing automatically, and that the switch did not fail to act because of any defect or because of disrepair. By the testimony of the deceased taken in another case, and introduced by the plaintiff in error in the case under review, it appeared that he had been working as fender man at this place for a year "before this occurrence, and that the cars had “been going along there every few seconds about that hour, passing over the switch; there was never anything the matter with it before that time;” and that he did not remember of any accident before the one here in question on that switch. Plaintiff’s witness Conlon, the motorman on the car on which plaintiff was injured, testified that cars were dispatched from the pockets north of the switch and proceeded south about every ten seconds, and, “I had seen a car going south across the switch just before the car came that hit mine, and went out apparently without any hitch or difficulty at all,” and that he had not at any time prior to that trip on that day noticed anything amiss with the switch; and as far as he had observed it worked all right up to the time of the accident. He had no trouble with it, and saw no one else have any. This witness also testified that supervisor Jones was there to see that there were no blockades and to pass the cars out of the pockets as quickly as possible; also, to see that every man did his work, and that the traffic was kept moving. The witness testified that Jones would clean out the switches and see if anything was wrong with them. The witness said he saw another employe of the company working from Thirty-first street to "Washington street, who carried an oil can and a hook for lifting and cleaning switches and oiling them, but he could not say how often he worked over the territory. This witness also spoke of another man who carried a broom with a spear on the end of it with which he cleaned out the dirt that lodged in the switch. This man came generally in the forenoon and the afternoon. This testimony was corroborated by plaintiff’s witnesses Curtin, Foley and Wagner.

It thus affirmatively appears from the testimony of the plaintiff’s witnesses (and of course their testimony was not disputed by the defense) that the track and switches of the defendant were in perfect condition and working order within a few seconds of the accident, and that the track and switches were inspected and cleaned two or three times each day; and that, therefore, instead of establishing the negligence of the defendant alleged in the declaration, the evidence established without controversy that the defendant was not guilty of the alleged negligence. The trial judge was thus afforded justifiable ground for directing a verdict. Belt Ry. Co. v. Skszypsczak, 225 Ill. 242; Libby v. Cook, 222 id. 209.

Having reached the conclusion indicated above on the main question of liability, it is unnecessary for us to discuss the question whether the evidence shows that the deceased was in the exercise of ordinary care for his own safety, or the question whether the injuries complained of were the cause of the death of Beter Gentleman.

The judgment is aErmed.

Affirmed.


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    Joseph Enright, Appellant, v. Chicago City Railway Company, Appellee.
    Gen. No. 15,953.
    1. Negligence—when doctrine res ipsa loquitur not invoiced. If the several counts of the declaration contain charges of specific acts of negligence the doctrine of res ispsa loquitur is not invoked.
    2. Negligence—extent of doctrine res ipsa loquitur. The presumption of negligence which results from the application of the doctrine res ipsa loquitur is rebuttable and may be overcome by proof.
    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 October term, 1909.
    Affirmed.
    Opinion filed October 20, 1911.
    Statement by the Court. This is an appeal from a judgment rendered by the Circuit Court of Cook

      county, in favor of the Chicago City Bailway Company, and against Joseph Enright, for costs. The litigation grew out of the following state of facts:
    The defendant is engaged in operating a certain electric street railway along and upon Clark street, in the city of Chicago, Cook county, Illinois, and the plaintiff on the 22nd day of June, 1907, boarded a south-bound Clark street electric car at Monroe street, paid his fare as a passenger and stood near the motor-, man on the front platform of the car. The car proceeded south in Clark street to a point about 200 feet north of Polk street. At that time there was a wagon about seventy-five feet in advance of the car and the motorman rang the gong as a warning to the driver of the wagon of the car’s approach, at the same time throwing off the power. The wagon pulled clear of the track and the motorman thereupon threw on the power full force and immediately thereafter a fuse on the car exploded or blew out. The explosion or blowing out of the fuse was accompanied by considerable noise and was followed by flame and smoke which seemed to come into the front platform of the car. Enright, who up to that time, was on the front platform of the car, followed the example of others on the front platform and crowded into the car. Prom that point on, Enright’s recollection of what occurred is blank until he found himself in the ambulance in which he was being taken home. But what did occur, according to the undisputed testimony, was this: Enright rushed through the front door into the car, threw a little boy, who was looking out of the window, off the seat to the floor, and crawled through the window into the window of a north-bound car which was passing. It is undisputed that both cars were in motion while « Enright was going from the south-bound and entering into the north-bound car. In making this hasty change from the south-bound to the north-bound car, Enright sustained bruises and contusions on various parts of his body and limbs and a fracture of the right arm at the elbow joint which has resulted in weakening and disabling the right arm and causing permanent stiffness of the elbow joint. The case was submitted to a jury, and the trial resulted in a verdict of not guilty, upon which verdict judgment was entered; and the plaintiff prosecutes this appeal from the judgment and seeks a reversal upon the sole ground that the court erred in giving to the jury certain instructions asked by the defendant.
    George E. Gorman, for appellant.
    John E. Kehoe and Watson J. Ferry, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The declaration contains five counts. The first alleges that appellee neglected its duty as a carrier of passengers and permitted the machinery, appliances and electric devices used by it in the management and operation of the car to be and remain old, worn out and insufficient for the uses to which they were put, and that by reason thereof certain of the electric devices or appliances blew out and exploded while the car was in motion. The negligence averred in the second count is that a fuse of a south-bound car burned out and exploded setting fire to portions of the car, and that appellee negligently operated a north-bound car close to the south-bound car and beyond it while passengers from the south-bound car were scrambling to get out of the same. The third count avers that appellee permitted the wires, circuits and appliances of the car to become charged with electricity beyond their capacity to retain the electrical current causing a fuse to explode. The fourth count alleges generally that appellee was guilty of negligence in the management and operation of its power house, by means of which a greater volume of electricity than the wires in the car were designed to carry was transmitted to the car on which plaintiff was a passenger, resulting in the blowing out of the fuse. The fifth count alleges that the servant of the defendant so managed and operated the car as to permit a large volume of electricity to be suddenly and violently thrown upon the machinery of the car thereby causing an explosion of the fuse. All of the counts set up the relation of carrier and passenger and injuries as the result of the explosion of the fuse. The second and fifth counts also aver that the plaintiff, by reason of the fright and confusion resulting from the blowing out of the fuse, and the fire, smoke and panic among the passengers, was rendered incapable of exercising reasonable care.

Appellee pleaded the general issue.

Appellant contends that the doctrine of res ipsa loquitur is applicable to the case, and that the court erred in giving to the jury at the request of the defendant, appellee, instructions which ignore that doctrine.

From the statement given above of the. negligence averred in the several counts of the declaration it appears that a specific act of negligence is averred in each count. It is clear therefore that the action was not founded upon the theory of presumptive negligence. The record shows that the case was not tried and submitted to the jury on that theory. On the contrary, instead of contenting himself with proof that appellant was a passenger on one of appellee’s cars, had paid his fare, was in the exercise of ordinary care for his own safety, and that while he was a passenger and so acting, he was injured, under circumstances showing negligence, he attempted to prove the specific acts of negligence alleged in the declaration. Hence an instruction based on the theory of presumptive negligence would seem to have no application to the case made by the pleadings and proofs, and should not have been given. Barnes v. Danville St. Ry. Co., 235 Ill. 566, 575. In West Chicago St. R. R. Co. v. Martin, 154 Ill. 523, a similar situation as to averments and proof was presented, and an instruction on the theory of presumptive negligence was given. It was held the instruction should not have been given because it was not applicable to the ease.

Appellant points to the third and fifteenth instructions as ignoring the doctrine of presumptive negligence and therefore erroneous. The third instruction is as follows:

“3. The court instructs the jury that the plaintiff in this case has filed a declaration consisting of a number of counts, in each of which it is charged in some form that the defendant street railway company was guilty of negligence either in the management and operation or in the equipment of its cars, or in the operation of its power plant and street ear business.
“This is a necessary allegation of said declaration. The suit of the plaintiff is based upon the allegation that the defendant street railway company was guilty of negligence in some form which caused or proximately contributed to cause the injury in question.
“If, .after fairly considering all the evidence in the case, the jury believe from a fair consideration of such evidence that the blowing out of the fuse in question was a pure accident which happened without any negligence on the part of the street car company or any of its employes, then under the law the plaintiff is not entitled to recover and you should find the defendant not guilty. ’ ’

The instruction is criticised on the ground that it casts upon the plaintiff the burden of proving negligence as charged in the declaration; that the jury under the instruction might believe that appellee was not negligent because of the blowing out of the fuse, but that if they knew the blowing out of the fuse raised a presumption of negligence, and that in determining the question of such negligence they had a right to weigh that presumption with all the other evidence in the case they might have reached a different conclusion. A second criticism is made that the instruction not only disregards the right of the jury to weigh the presumption raised against appellee by the explosion of the fuse, but they were directed to disregard any such presumption, or rather, that no such presumption existed, and that the burden was on appellant to establish the negligence charged in the declaration.

We do not regard either of these criticisms as well grounded for the reason above given, that the action was neither founded by the negligence charged in the declaration, nor was it tried and submitted by appellant to the jury upon the theory of presumptive negligence.

It is urged that this instruction undertakes to explain to the jury the charges of negligence in the declaration, but does not explain and make clear to the jury the various acts of negligence charged, while at the same time it misrepresents the charges of negligence and is misleading. We do not think the instruction is obnoxious to this criticism. The instruction criticised in Hirsch & Sons Iron & Rail Co. v. Coleman, 227 Ill. 149, attempted to recite the allegations of the declaration and did not do so correctly. The instruction under review makes no such attempt. It simply says that in each count it is charged in some form that the defendant street railway company was guilty of negligence, either in the management .and operation or in the equipment of its cars, or in the operation of its power plant and street car business. It further told the jury that the suit of the plaintiff is based upon the allegation that the defendant was guilty of negligence in some form which caused or approximately contributed to cause the injury in question. The attention of the jury is thus directed to the charges of negligence in the declaration in a general way, and does this correctly. We find nothing misleading in the instruction."

The fifteenth instruction is as follows:

“15. It is not every accident that makes a railroad company liable for damages to a person injured on one of its cars. If the accident is unavoidable in so far as the defendant is concerned, then no liability attaches. The plaintiff has charged in his declaration in this case that the accident happened through the negligence of the defendant Company in the management and operation of its street car business. This is a material allegation of the declaration, and if from a consideration of all the evidence bearing upon the question of liability in this case you believe that the accident happened, not through the negligence of the defendant as so charged in the declaration, or either of the counts thereof, but that it happened through other causes and without negligence in that regard on behalf of the defendant or its servants, then no liability is incurred, and it is the duty of the jury to return a verdict of not guilty.”

It is claimed that this instruction is vulnerable to the same objections made to instruction three, which we think have been sufficiently answered, and the answer need not be repeated. As to the objection to the instruction that it ignored the doctrine of presumptive negligence applicable to the case because of the blowing out of the fuse, there was evidence given by the motorman and shop foreman of appellee, which showed that the accident happened through no negligence of appellee as charged in the declaration or either of its counts, but that it was the result of an accident beyond the power of appellee to foresee or guard against by the exercise of the high degree of care required of a carrier for a passenger. This instruction is based on the theory of appellee advanced and supported by this evidence, namely, that if the jury should find by a preponderance of the evidence that the accident happened through other causes, and without negligence in that regard on behalf of appellee, or its servants, then no liability existed. If the case had been declared on in the declaration and tried and submitted on the principle of res ipsa loquitur, and an instruction asked by appellant and given by the court applying that doctrine, still, the evidence offered by appellee was sufficient to rebut the presumption of negligence, for that presumption, not being of the conclusive class, readily yields to evidence even though it be slight. Garner v. Chicago Consolidated Traction Co., 150 Ill. App. 149. We cannot hold that appellant is justified in complaining that the instructions asked by appellee did not submit the case to the jury on the theory of presumptive negligence, although he made no request for an instruction on that theory.

It is urged that instruction numbered four, given at' the request of appellee, is in conflict with the second instruction given at the request of appellant. We are unable to see any conflict in these instructions. C. U. T. Co. v. Chugren, 209 Ill. 429; South Chicago City Ry. Co. v. Kinnare, 216 id. 451; Dickson v. Swift Co., 238 id. 62. Nor do we think the instruction was misleading in this case. '

Instructions requested by appellee and given, numbered respectively 7th, 13th, 15th, 16th and 17th, are objected to because they are repetitions. We do not agree with this contention. We are not of the opinion that the judgment should be reversed on that ground.

We think the verdict and judgment are right and free from reversible error, and the judgment is affirmed.

Affirmed.


text:
    David Cohen, Appellee, v. William Schimberg, Appellant.
    Gen. No. 15,963.
    1. Appeals and ebeobs—effect of finding Try chancellor. All presumptions will be Indulged In favor of the findings of fact by a chancellor, especially where he has seen and heard the witnesses.
    2. Specific pebformance—when granted. Held, that it was proper for the court to order the assignment of a lease which was part of the contract by which the defendant sought to establish the complainant in the saloon business, payment being made by the complainant in installments.
    Bill for specific performance. Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 20, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    John F. Clare and Weinberg & Noxon, for appellant.
    Seymour N. Cohen, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The bill in this case was filed to enforce the specific performance of an agreement alleged to have been made between David Cohen, complainant, and William Schimberg, defendant. The agreement alleged in the bill is that William Schimberg agreed to furnish Cohen with a complete stock of wines, liquors and cigars and a set of saloon fixtures to be used by Cohen in conducting a retail saloon business; that out of the receipts of said business Cohen agreed to pay for the same in periodical installments until the indebtedness so created had been fully satisfied.

It is also alleged in the bill that it was agreed between the parties that a lease of suitable premises should be obtained for conducting the business, that the lease should be the sole and exclusive property of Cohen, but that it should run to Schimberg as security for the indebtedness of Cohen, and that when the indebtedness had been fully paid, Schimberg should assign the lease to Cohen. The bill further alleges a lease was obtained; that Schimberg did furnish Cohen with a complete saloon outfit; that Cohen fully paid Schimberg for the same, but that Schimberg has not assigned to Cohen the lease of the premises as he agreed. The relief asked is that Schimberg be compelled to assign to Cohen the lease of the premises. *

The answer of Schimberg alleges that he had secured the lease in question before any agreement with Cohen; that after the lease was secured, an agreement was made with Cohen whereby Schimberg agreed to furnish a complete saloon outfit to Cohen, Cohen to pay for same out of receipts, of the business and after the indebtedness had been discharged Cohen should remain in the premises as the tenant of Schimberg while he purchased his wines and liquors from Schimberg, who was engaged in the wholesale and retail liquoi business. The answer also denies that the lease ever was the property of Cohen or that Schimberg ever agreed to assign it to Cohen, and alleges that the lease always was and is the sole and exclusive property of Schimberg; that after the indebtedness had been fully paid, Cohen remained in the premises for a long period and regularly paid his rent to Schimberg for the same until November, 1908, when Cohen refused to purchase any more goods from Schimberg and refused to pay his rent; that thereupon Schimberg began proceedings to dispossess Cohen and was prosecuting the same until he was enjoined.

A few days after the bill was filed a temporary injunction was granted restraining Schimberg from prosecuting his forcible entry and detainer suit.

The agreement alleged and sought to be enforced was an oral agreement. The chancellor after a hearing found the issues for the complainant and entered a decree that the contract alleged be specifically performed.

The grounds urged for a reversal of the decree are that specific performance of a contract will only be enforced where the terms are clear, certain, unambiguous and either admitted by the pleadings or proven with a reasonable degree of certainty; and second, in bills for specific performance there must be no substantial variance between the contract alleged and the contract proved. The final contention is that the decree is not supported by the evidence.

The defendant in his answer admitted the making of the agreement in substance as set out in the bill of complaint, and testified to by the complainant and his witnesses, except in a few unimportant particulars and that the ownership of the lease was not included in the agreement. The only serions contention in the case, therefore, is as to the ownership of the lease of the premises as between the complainant and defendant.

In support of his bill the complainant testified to the agreement set up in the bill, namely, that the defendant agreed to furnish him with a set of fixtures, a stock of goods and everything necessary for the business; that complainant was to run the business, and pay over to the defendant the receipts of the business weekly, retaining sufficient for his living expenses, and when complainant had everything paid up defendant was to turn over everything to the complainant, and have no interest in the place whatever.

It appears without controversy that after the agreement was made the defendant procured the lease in question from the owner of the premises running to himself as lessee, and delivered to the complainant a complete stock of goods and the fixtures in the premises. He also secured a government liquor license and a city of Chicago saloon license in his own name for the carrying on of a retail liquor store and business in the premises, and defendant’s name was placed outside of the premises. The complainant then took possession of the premises, and with the assistance of his wife conducted the business, and turned over the receipts thereof weekly to the defendant, retaining sufficient for his living expenses as provided in the agreement, for a period of about one year and a half, during which period the defendant took all the money received in the business and paid all the bills incurred in carrying it on. In thus transacting their business, the defendant on the first of each month rendered statements to the complainant which showed the payments made by the complainant on account of the business during the preceding month, the disbursements made by the defendant for the business and the balance remaining unpaid by the complainant from time to time to the defendant until February 20, 1907, when the statement showed that the indebtedness of the complainant to the defendant was fully paid. These statements were offered in evidence hy the complainant and appear in the record. From them and from the testimony of both parties to the controversy it appears that the rent of the premises during the eighteen months prior to February 20, 1907, was paid to Fogelstad by the defendant and the defendant charged the complainant for the rent in the monthly statements in the same manner as all other charges were made, and the rent receipts were turned over to complainant.

About the time of the complete payment by the complainant to the defendant, complainant requested the defendant to deliver the lease to him. Defendant then said that he did not know where it was, and told the complainant to see him about it some other time. Subsequently complainant spoke to the defendant about the lease several times and was met with the same reply each time. Finally complainant insisted upon having the lease turned over to him, and the defendant then refused to comply with his demand.

Complainant’s testimony is corroborated by the testimony of his wife, who was present when the agreement was made, and by the testimony of Fogelstad, the landlord.

The case thus made by the complainant was opposed by the testimony of the defendant to the effect that he agreed to furnish the complainant with the fixtures and a stock of goods, and the complainant was to pay for them as soon as he could, and should buy all his wines and liquors of the defendant; and that nothing was said about the lease, and he never agreed to turn it over to the complainant.

Upon a consideration of the allegations of the bill and the evidence we find no substantial variance between the case made by the bill, and that made by the proofs. In our opinion the proof supports each and every allegation of the bill. The weight of the evidence was for the chancellor who had the witnesses before him, and all presumptions will be indulged in favor of his findings, especially when he saw and heard, as he did in this case, the witnesses deliver their testimony. We think also that the probabilities of the controversy over the lease, when the conceded facts and circumstances are considered, strongly tend to support the contention of complainant that the ownership of the lease was to be in him as well as the property and business when he had completed payment for the fixtures and property in accordance with the terms of the contract. The decree is fully supported by the evidence and it is affirmed.

Affirmed.


author: Mr. Presiding Justice Baume

text:
    Everett G. Eberhart, Defendant in Error, v. James Foster, Plaintiff in Error.
    Gen. No. 15,839.
    1. Municipal Coubt—what cures defect in statement of claim. A defective affidavit to a statement of claim is cured by the action of the defendant in asking time within which to file an affidavit of merits.
    2. Municipal Court—when objection to statement of claim comes too late. An objection to a statement of claim comes too late if first made on appeal.
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 25, 1911.
    Rehearing denied November 1, 1911.
    Louis Greenberg, for plaintiff in error.
    Byron W. Wight, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This writ of error questions the propriety of a judgment against plaintiff in error for $459.50, as damages, entered in the Municipal Court in an action upon an appeal bond in the sum of $600. After service of summons, the entry of appearance of plaintiff in error was filed in writing, and a demand was therein made for a trial by jury. The statement of claim of defendant in error purported to be verified by his affidavit sworn to before C. H. Looing, a notary public in and for the county of St. Joseph, State of Indiana. Plaintiff in error, upon his motion, was allowed ten days in which to file an affidavit of merits of his defense, and was thereafter defaulted for his failure to file such affidavit. Thereupon the court proceeded to hear the evidence without a jury and assessed the damages and entered judgment against plaintiff in error, as heretofore stated.

It is insisted that, as the notary public, before whom the affidavit attached to the statement of claim purports to have been made, failed to certify he was authorized to administer oaths under the laws of the State of Indiana, the court below was powerless to compel plaintiff in error to file an affidavit of merits and to enter a default against him for his failure to file such affidavit.

Plaintiff in error, as the record discloses, was, on July 27, 1909, upon his own motion given leave to file an affidavit of merits within ten days, and we think must thereby be held to have impliedly conceded the sufficiency of. the affidavit filed by defendant in error with his statement of claim. However this may be, plaintiff in error, having interposed no objection in the court below to the sufficiency of the affidavit, cannot raise the question for the first time in this court. Prout v. Lomer, 79 Ill. 331; Archer v. Claflin, 31 Ill. 306; Commercial Nat. Bank v. Payne, 161 Ill. 316.

Plaintiff in error having filed his entry of appearance wherein he demanded a jury trial, the case was placed upon the jury calendar, and in any proceedings thereafter to be had involving a hearing upon the merits, or the assessment of damages merely, he was entitled to a jury.

The proper procedure in a case like the one at bar was had in Koch v. Dickinson, 152 Ill. App. 413.

For the error in not requiring the damages to be assessed by a jury the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Frank G. Clark, Defendant in Error, v. Mid-Kansas Milling Company, Plaintiff in Error.
    Gen. No. 15,878.
    1. Evidence—what not essential to competency of proof of custom. If a custom be general, knowledge thereof is not essential, as a person entering into a contract in the ordinary course of business is presumed to have done so in reference to any existing general usage or custom relating to such business.
    2. Appeals and ebrobs—when absence of evidence cannot be urged. If waiver of particular proof has been made the party so waiving cannot urge the absence of proof so waived.
    3. Sales—what establishes ability to pay. Ability upon the part of the purchaser to pay for merchandise ordered is established by the purchaser subsequently going into the market and making a like purchase at an advance in price.
    Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 25, 1911.
    Clark & Clark, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Defendant in error instituted his suit in attachment in the Municipal Court against plaintiff in error, a Kansas corporation, upon a claim for damages alleged to have accrued to defendant in error by reason of the failure of plaintiff in error to deliver a car of flour according to sample, whereby defendant in error was obliged to purchase other flour in the market at an advance in cost of $200 over the contract price. A trial by the court without a jury resulted in a; finding and judgment against plaintiff in error for $200, to reverse which judgment this writ of error is prosecuted.

On March 27,1909, defendant in error received from plaintiff in error a communication as follows:

“We are sending mail sample of our 95% straight of which we have 250 bbls., packed in 141 lb. jutes. Please quote us your best price prompt shipment.”

' On March 29th, defendant in error wrote to plaintiff in error as follows:

“I have your favor of the 27th, also sample of 95%. The flour is not as strong as some of the 95% Patent coming in here, I will however give you $4.80 per barrel delivered in Chicago in plain 141 lb. jute sacks, arrival draft terms. If you can accept kindly wire.”

Upon receipt of the offer on March 31st, plaintiff in error wired its acceptance to defendant in error, and shipped a car of flour which arrived in Chicago on April 7th following.

Defendant in error refused to accept the flour, claiming it was unsound, and so notified plaintiff in error by wire on April 7th. The latter wired on April 8th that the flour shipped was exactly as sample sent, and requested defendant in error to protect draft. Defendant in error then wrote to plaintiff in error as follows :

“This confirms my wire to you that your car of flour had arrived and inspects unsound, and asking you to advise disposition. I am now in receipt of your wire that flour was shipped exactly like sample and asking me to protect draft. I am very much surprised at your taking this position as evidently you know the flour was unsound when you shipped it.
“I regret exceedingly that the flour did not come ir sound as it would have found ready sale, however you can readily understand that I cannot accept this car of unsound flour on contract particularly at any such price when I bought sound flour and I want flour like what I bought.
“Your draft was made sight and protested yesterday. I tried to get the bank to hold the draft but they declined evidently under your instructions. This was a needless expense, as had the flour been all right your draft would have been paid but being all wrong I would not pay it under any circumstances.
“I do not think this flour as unsound as it is would bring over $4.25 to $4.30 jute Chicago.”

On April 9th defendant in error wired plaintiff in error as follows:

“You must ship car sound flour on contract, or will be compelled to buy against it and charge you difference. Advise.”

Defendant in error received no reply to his last wire and on April 10th he purchased 250 barrels of flour at an advance of eighty cents a barrel to supply his customers. •

It is first insisted that the trial court improperly admitted evidence of a custom to the effect that a ear of flour offered for sale by sample is understood to be sound unless otherwise specified. In one or two instances, when evidence of such a custom was sought to be offered, the only objection interposed was that plaintiff in error was not shown to have had any familiarity with it. If the custom in question had any relevancy to the case, evidence of its existence was not improperly admitted over the objection of plaintiff in error. In Steidtman v. Joseph Lay Co., 234 Ill. 84, it was held that a person entering into a contract in the ordinary course of business is presumed to have done so in reference to any existing general usage or custom relating to such business; and that this is so whether he knew of the custom or not. In Samuels v. Oliver, 130 Ill. 73, it was held that a person dealing at a particlar market must be taken to have dealt according to the known general custom and usage of that market.

We are unable to appreciate the relevancy of the custom in question to the facts in this case, but the admission of evidence as to such custom was not harmful to plaintiff in error, because the evidence discloses that the flour shipped by plaintiff in error did not conform to the sample, in this, that a large portion of it was unsound—milled from musty wheat—and was wet, while the sample was sound and dry.

Plaintiff in error is in no position to raise the question that defendant in error failed to show that the flour which was inspected by the Board of Trade inspector and found by him to be unsound, was actually taken from the car. Defendant in error offered a witness to prove that fact, whereupon counsel for plaintiff in error expressly waived such proof.

It is further urged that there is no evidence tending to show that defendant in error was ready, able and willing to receive the car of flour in question and pay for the same, and that in the absence of such proof, a finding for defendant in error cannot be sustained. If defendant in error had been ready and willing to take the car of flour in question, we should, doubtless, have been relieved of the duty of considering the record in this litigation. The ability of defendant in error to pay for the flour, if it had complied with the sample, was not questioned in the court below, and we are of opinion that his ability in that regard was sufficiently evidenced by the" fact that within three days he actually purchased the same quantity of flour at an advance of eighty cents a barrel over the contract price.

When plaintiff in error failed to reply to the wire of defendant in error on April 9th, the latter was justified in purchasing at the market price on April 10th, the like quantity and quality of flour as that contracted for' with plaintiff in error, for the purpose of supplying his customers. The market price of such flour on April 10th, and the price then paid therefor by defendant in error, is shown to have been $5.60 per barrel, being an advance of eighty cents a barrel over the contract price.

There is no substantial error in the record and the judgment is affirmed.

Judgment affirmed.


text:
    Peter Zoric, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,886.
    1. Negligence—overloading car. Held, that the jury did not improperly find that it was negligence for a traction company to overload a car with dirt and for its foreman to direct an employe of such company to ride upon such overloaded car.
    2. Master and servant—when fellow-servant rule will not tar recovery. Where the injury is the result of the combined negligence of the master and of a fellow-servant, a recovery by the servant' will not be barred.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 25, 1911.
    John E. Kehoe and Watson J. Ferry, for appellant.
    Frank A. Rookhold and Francis X. Busch, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant to recover damages for personal injuries. A trial by jury in the Superior Court resulted in a verdict and judgment against appellant for $2,500.

The declaration contains five counts, in each of which it is recited that on October .9, 1907, appellant operated cars propelled by electricity on Center avenue and 47th street; that appellee was employed by appellant as a common laborer in shoveling dirt upon and off certain flat cars which appellant was engaged in hauling on Centér avenue from 55th to 47th streets, and on 47th street. The first count charges that appellant ordered and directed appellee to ride upon a certain car loaded with dirt, for the purpose of assisting to unload the same; that while he was so riding, with all due care and caution for his own safety, appellant so negligently and carelessly ran, managed and operated the car that the dirt was caused to shift and thereby appellee was thrown upon the ground where the wheels of said car ran upon and over him, and one of his legs was so crushed and broken that it was necessarily thereafter amputated. The second count charges that appellant’s foreman directed certain of its servants to load one of its cars with dirt, and so high and in such quantity that there was insufficient room for the servants to safely ride thereon, and there was exceedingly great danger, should such servants get upon it, the dirt would thereby be caused to slip and fall off; that after the car was so loaded the foreman negligently ordered and directed said servants and appellee to get upon it and upon the dirt, and to ride to a certain point to assist in unloading it; that in obedience to such order appellee got upon the dirt and thereupon appellant caused the car to be run to a point on 47th street near Center avenue; that while appellee was in the exercise of due care riding upon the dirt and car, the dirt was caused to shift and slide, and he was caused to fall to the ground, etc. The third count charges that appellant ordered appellee and other of its servants to get on one of its cars loaded with dirt in the night time; that the dirt was loaded so high and in such quantities that there was insufficient room for any of the servants to ride thereon; that appellant’s foreman ordered and directed appellee and the other servants to get upon and ride on top of the dirt on said car; that appellant negligently failed to provide any light upon the car, whereby it was exceedingly dark, and appellee and the other servants were unable to see the position of the dirt or to observe whether it shifted while the car was being operated; that by reason of such negligence, and while said car was being operated and while appellee in the exercise of due care was riding on it, the dirt shifted, appellee was unable to observe the shifting, and was thereby caused to fall, etc. The fourth count alleges the loading of the car and the presence of appellee thereon as in the third count, and charges that appellant negligently caused said car to be run at a speed of twenty-five miles an hour, down an incline under a viaduct and up an incline on the opposite side of the viaduct, and that in consequence thereof the dirt was caused to suddenly and violently shift, and appellee was thrown upon the ground, etc. The fifth count is substantially like the fourth. Each count, as amended, alleges facts which negative the assumption of risk by appellee.

The grounds relied upon by appellant for a reversal of the judgment are that the verdict is not justified by the evidence and that the verdict is against the manifest weight of the evidence.

On the night of October 9, 1907, beginning about 10 o’clock, appellee, together with fourteen or fifteen other laborers, was employed by appellant, under the direction of its foreman, James Mulcahy, in shoveling dirt, stones and debris onto a flat car on appellant’s track in Center avenue near 55th street. The flat car was about thirty feet in length, upon the sides of which, planks eighteen inches in width were hinged at the bottom, so that when the car was unloaded it was not necessary to shovel the material over the planks. A small cabin or apartment was built upon each end of the car, one for the motorman and one for the conductor or trolley man. The loading of the car was completed at about one o ’clock in the morning, and the shovelers were then directed by the foreman to get on the car and ride to 38th place and Halsted street, where it was to be unloaded. The car was then run north on Center avenue to 47th street and thence on the latter street eastward. When the car had reached a point at or near one of the viaducts on Forty-seventh street, where there was a curve and descent in the track, appellee, who was sitting on the load of dirt, fell to the ground and sustained the injuries stated in the declaration.

There is a direct conflict in the evidence as to the quantity of dirt loaded upon the car. Witnesses called on behalf of appellee testified that the load of dirt was unusually large; that the dirt at the sides of the car was several inches higher than the top of the planks, and that in the center of the car the dirt was piled up to a height of from five feet to six and one-half feet above the bottom of the car; that the dirt shifted and fell off the car after the same was loaded and before it was moved. It is uncontroverted that during the time the car was being loaded appellant’s foreman frequently urged the shovelers .to “hurry up”, and that after it was loaded he directed them to get upon the car.

Witnesses for appellant testified that the dirt upon the car made an ordinary sized load; a little more than half a load; about three-quarters of a load; that the top of the load was about three feet above the bottom of the car. A like contrariety exists in the evidence bearing upon the question of the speed at which the car was being operated on Forty-seventh street at the time appellee fell to the ground. A careful consideration of the evidence impels us to the conclusion that upon both of these issues the verdict of the jury was not unwarranted.

Appellee testified that after the car started to run he was afraid to sit on the dirt, because the car was shaking from one side to the other, and the dirt was sliding on each side; that when the car reached the curve in the track, a lot of dirt slid underneath him and he slid down at the same time; that there were some blocks underneath him, to which he was trying to hold fast. Other witnesses called on behalf of appellee corroborated his testimony as to the movements of the car and the sliding of the dirt. That the testimony of appellee, as to the precise manner in which his fall from the car was occasioned, is not corroborated by other witnesses, is of no significance, in view of the fact that the attention of the others on the car was not directed to him until he cried out when he found himself about to fall. Other witnesses did testify to the existence, as a matter of fact, of conditions which gave credence to the testimony of appellee in that regard.

Whether or not appellant was guilty of negligence in the respects charged in the declaration was a question properly submitted to the jury and their verdict upon that issue must, upon this record, be held to be conclusive. The same may be said as to the issues of contributory negligence and assumed risk.

If the injury to appellee had been occasioned solely by the negligence of the motorman in operating the car at an excessive speed at a curve in the track, it would be necessary to consider and determine whether appellee and the motorman were fellow-servants, either as a matter of law or a matter of fact, but such consideration and determination are not essential. It may be conceded that the relation of fellow-servants existed as to appellee and the motorman, without affecting the right of appellee to recover upon this record.

The conduct of appellant’s foreman in permitting the car to be overloaded and in directing appellee to ride thereon, having not improperly been found by the jury to constitute negligence, it is apparent that the injury to appellee resulted from the combined negligence of appellant and the motorman. .In such case appellant is liable, notwithstanding appellee and the motorman may have been fellow-servants. Missouri Malleable Iron Co. v. Dillon, 206 Ill. 145; C. U. T. Co. v. Sawusch, 218 Ill. 130; C. & E. I. R. R. Co. v. Kimmel, 221 Ill. 547; Schillinger v. Smith, 225 Ill. 74; Pittman v. C. & E. I. R. R. Co., 231 Ill. 581.

While the case is close upon the facts, we cannot say the evidence does not justify the verdict returned.

The judgment is affirmed.

Judgment affirmed.