author: Mr. Presiding Justice Holdom

text:
    Adam Schillo Lumber Company v. Joseph Bemben.
    Gen. No. 13,680.
    1. Master and servant—when doctrine of assumed risfo applies. A servant cannot recover for injuries occurring to him from risks known to him or of which knowledge is imputable to him.
    2. Master and servant—when former owes no duty to latter. A master owes no duty to a servant to protect him from hazards encountered in the usual and ordinary method of doing the work at which he is employed, where such hazards are as well known and are as apparent to the servant as to the master.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. William N. G-emmill, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed March 19, 1908.
    O. W. Dynes, for plaintiff in error.
    No appearance by defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Parties will be referred to in this opinion as in the Municipal Court.

Joseph Bemben, the plaintiff, was, at the time of suffering the injury complained of, a laborer in the lumber yard of defendant, engaged, among other things, in piling lumber. On October 8, 1906, while working in defendant’s lumber yard and during a 45-mile-an-hour gale of wind, a stick of lumber from an incompleted pile was blown off by force of the wind and struck plaintiff upon the head, injuring him. A trial in the Municipal Court before judge and jury resulted in a verdict and judgment for $100. This writ of error is prosecuted in pursuance of the provisions of the Municipal Court Act, and the writ having been made a supersedeas by order of this court, the record is before us for review on the errors assigned.

The errors argued for a reversal are substantially that the judgment is contrary to the evidence; that the doctrine of assumed risk is a complete defense, and error in not allowing defendant’s motion to direct a verdict in its favor at the close of all the proofs.

The amended bill of particulars states plaintiff’s cause of action as being for damages for .an injury to his head received while employed by defendant in its lumber yard, and occasioned through the negligence of defendant in allowing a certain board to fall or be blown from a certain pile of lumber, striking plaintiff on the head while performing his duties.

The negligence relied upon as constituting a right of recovery arises from the alleged failure of defendant to so fasten the pile and secure the lumber that none of it would fall off or be blown off.

The evidence demonstrates that when piles of lumber are completed, the custom of the yard is to make them secure by “topping” them off, as it is called, which consists in placing a hood of boards on the top and wiring them down. When secured in this way a board is not liable to be blown from the top. The evidence establishes as a fact that at the time of plaintiff’s injury the board which struck him on the head was blown from an unfinished pile, a pile not ready for the “topping” process.

It is not denied that plaintiff, at the time of his injuries, was engaged in doing work within the scope of his employment, or that the hazards attending such work were not known to him. The fact that in a strong gale of wind boards were liable to blow off lumber piles in course of construction, or in being torn down and therefore not “topped off,” and to fall upon the yard workers, injuring them, was obvious and apparent to every reasonable person, is not disputed. Plaintiff, so knowing, or such knowledge being imputable to him, charges him with having assumed the risk encountered from such obvious dangers. It is likewise true that defendant owed no duty to plaintiff to protect him from injuries incurred from hazards encountered in the usual and ordinary manner of doing the work at which plaintiff was employed, hazards as well known and apparent to plaintiff as to defendant. It was not negligence in defendant not to “top off” the uncompleted pile of lumber from which the board was blown by the gale of wind, striking defendant.

An instructive case, conclusive in its reasoning and analogies upon plaintiff’s rights, is McCormick Harvester Machine Co. v. Zakzewski, 220 Ill., 522. Zakzewski was injured by the falling of a lumber pile covered with ice, adjoining a similar pile, which he was engaged in unstaclcing. The negligence resulted in the falling of the pile was averred to consist in not using cross pieces between the boards in stacking. The Supreme Court held that as the plaintiff had full opportunity of observing the manner in which the pile had been stacked, as a matter of law, he assumed the risk.

It is not open to doubt that the injury to plaintiff was the result of an accident pure and simple over which none of the parties had any power or control, any more so than they could have affected the velocity of the wind or its antics with the lumber piles in the yard. One of the witnesses testified that the wind was of hurricane force, that it swooped down and picked up everything.

The Municipal Court erred in not directing a verdict for defendant, as requested, as the evidence, with all reasonable inferences to be drawn therefrom, failed to establish any actionable negligence attributable to defendant. As said in the Zakzewski case, supra. “The peremptory instruction offered at the close of all the evidence should have been given.”

For the errors indicated the judgment of the Municipal Court is reversed.

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Robert C. Campbell et al v. Gertrude Heuer.
    Gen. No. 13,698.
    1. Municipal Court—when finding of, not disturbed. The finding of the Municipal Court will not he set aside on review unless it is against the greater weight of the evidence.
    2. Family expense—what is within meaning of statute. The wages of a domestic servant is a family expense for which both husband and wife are liable.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 19, 1908.
    Louis T. Obb, for plaintiffs in error.
    Fío appearance by defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Gertrude Heuer was brought from Germany to work as a domestic in the Campbell family at Chicago. From the evidence it appears there was an agreement or understanding with the parents of Gertrude Heuer that sufficient money should be saved out of Gertrude Heuer’s wages by Mrs. Campbell to pay her expenses on the return journey to Germany. After the sums retained from the wages amounted to $100 a dispute arose about the money between the parties, Gertrude Heuer demanding payment of it to herself. Mrs. Campbell says the importunities of Gertrude Heuer so annoyed her that she applied to the German consul for advice as to her duty. The counsel of .an attorney was sought, and after Mrs. Campbell stated Miss Heuer’s age to him he advised that the $100 be paid to Gertrude Heuer.

That Mrs. Campbell owed the $100 is not denied. But she claims to have paid the money to Gertrude Heuer, which the latter denies. Mrs. Campbell produces several accounts, also a number of receipts, in none of which, however, appears any reference to the $100 in dispute. It is insisted that the receipt of May first, 1906, when $8.75 was paid, and which reads, “I received payment to date,” is conclusive as a full and final settlement. In the circumstances of this case we do not think this receipt entitled to such a construction. The Campbells have undertaken to state the account between them and Gertrude Heuer. This they have satisfactorily accomplished, except as to the $100 in dispute. Their defense as to this amount is an" affirmative one, which they have failed to sustain by a preponderance of the evidence. This the law requires them to do to make such defense available. We are unable to say that the judgment of the trial court is against the greater weight of the evidence, and consequently are not at liberty to disturb the finding of the Municipal Court.

We hold that the wages of a domestic servant is a family expense, for which hoth husband and wife are liable under section 15, chapter 68, R. S. Ill.; Hudson v. King, 23 Ill. App., 118.

There being no reversible error in this record, the judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Bernard H. Scheftels et al. v. Oscar Heine.
    Gen. No. 13,710.
    Brokers and factors—when authority of agent to hind not established. Held, that the authority of an employee of a stock brokerage firm to bind such firm to make a purchase of stock is not established by the evidence.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 19, 1908.

      Eldbidge & Rose, for plaintiffs in error.
    Isaac O. Goldstixe, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

On the 31st day of December, 1906, at 8 :45 o’clock in the morning, Oscar Heine having no money, but owning 100 shares of Daily West mining stock, concluded to invest in 100 shares of Trinity mining stock. With the intent of accomplishing this purpose, he called up B. H. Scheftels & Co., stock brokers, on the telephone, asking for Cyrus W. George, a general clerk in their employ, and requested that the stock be purchased for his account that day. In answer to a question by George as to payment, Heine stated he had no money, but would put up 100 shares of Daily West mining stock, which the firm could hold for ten days, as the market was advancing, and he would at that time pay $200 on account. George then said he would submit the matter to the firm, and told Heine to call him up again on the telephone at 10 o’clock. George testifies that he had no authority to make a deal of that character except with the approval of the firm; that Heine did not again communicate with him, and that the firm refused to enter into the deal when he submitted it to B. H. Scheftels that morning. Heine rests on the testimony of George to prove the latter’s authority to make the deal for the firm, and George denies that he had such authority generally, but only when acting in such matters under the direction and authority of his employers.

Heine sent on the same day the 100 shares of Daly West mining stock to Scheftels & Co. by registered letter, which on the next business day, January 2, 1907, they returned by mail, with a letter stating they would not “carry the Trinity trade as outlined.” Thereupon Heine, through Gates & Co., bought the Trinity stock on the market at twenty-five and a half cents; the market on the morning of December 31st opening at eighteen and three-quarters cents. The claim is for the difference between the latter price and the price at which Heine bought the stock through Gates & Co. A trial before the court and jury resulted in a verdict and judgment for $625.

The conclusions to which we have arrived are based upon the merits of the case as shown by the proofs.

The errors assigned are the overruling of the motion for a new trial and in rendering judgment upon the verdict.

The right to recover must rest for its support on direct proof that a contract was made which was binding upon Scheftels & Co. If a contract was made, it was consummated with George, the employee of Scheftels & Co., by a conversation with Heine over the telephone. Before Scheftels & Co. can be bound it must affirmatively appear that George had authority to make the contract. Heine, recognizing this necessity, called George to the witness stand to make the proof. But George testifies positively that he had no right to make such a contract without express authority, and that he had no such authority; that on submitting Heine’s proposition, it was declined. True it is that Heine testifies that George accepted the order and undertook to execute it and buy the Trinity stock, but even were he correct in so stating, that would not be sufficient to bind Scheftels & Co. if in fact George had no such authority. There was no former course of dealing between the parties in other transactions, from which the authority of George might be inferred, because, for aught the record shows to the contrary, the parties do not appear to have had any business dealings prior to the one now under discussion. Scheftels & Co. could not be bound to execute the order, contrary to their will, and as there was no contractual relation between the parties, Scheftels & Co. were not bound to inform Heine of their refusal to execute the order requested through George; so that no significance can be attached to the wording of their letter to Heine returning the Daly West mining stock. They certainly acted with the utmost promptness in so doing. The crucial question of George’s authority, or rather lack of it, is supported by all of the testimony in the record on that subject. George and B. H. Scheftels both testify that George liad no authority to make a deal on credit or to carry trades in stock except with the consent and under the direction of Scheftels & Co., and they both agree that when George made the proposition to Scheftels & Co. it was rejected. The subsequent actions of the parties are all consistent with such contention. The testimony of Heine is insufficient to overcome the jirobative force of this proof. The verdict finds no support in the proof and is contrary to the greater weight of the evidence. Heine failed to establish his claim by a preponderance of the evidence, and so failing, he has not fulfilled the elementary requirement of the law. It therefore follows that the Municipal Court, in failing to grant a new trial and in entering judgment upon the verdict, committed vital error affecting the merits of the case.

For the errors indicated, the judgment of the Municipal Court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


author: Mr. Justice Adams

text:
    West Chicago Park Commissioners v. Henry P. Carmody.
    Gen. No. 13,678.
    1. Contract—what constitutes, as between bidder and park commissioners. The acceptance hy the park commissioners of a definite bid for work made pursuant to advertisement, constitutes a contract.
    2. Contract—what does not excuse performance. Sickness or indisposition does not excuse the performance of a contract.
    3. Penalties and forfeitures—when deposit accompanying bid forfeited. A deposit accompanying a bid duly made to park commissioners and by them accepted becomes forfeited upon the failure or refusal of the bidder to undertake and carry out the contract so made.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed March 19, 1908.

      Statement by the Court. Defendant in error was plaintiff and plaintiff in error was defendant in the trial court, and will he so referred to. January 25, 1906, the West Chicago Park Commissioners, defendant, advertised for bids for the doing of certain work mentioned in the advertisement, the bids to be received until four o’clock p. m., February 2, 1906, each bid to be accompanied with $500 in currency, or a certified check for that amount, on a responsible bank in the city of Chicago. The plaintiff Carmody bid for the work, specifying, as required by the advertisement, the prices at which he would perform each part of the work, and deposited with his bid the sum of $500. Bids were received by the defendant, and when opened and tabulated it was ascertained that plaintiff’s bid was the lowest, when the following letter was addressed to him:
    “West Chicago Park Commissioners,
    Office in Union Park, Chicago.
    February '21, 1906.
    Mr. H. P. Carmody, 1804 W. Harrison St., City.
    Dear Sir: At an adjourned regular meeting of the Board of the West Chicago Parle Commissioners, held February 20, 1906, the entire work of laying two-inch universal cast iron water pipe in Douglas, Garfield, Humboldt and Union Parks, including trenching and back filling, was awarded to you'as per your bid of February 2, 1906. If you will call at this office on Friday, we will have a contract and bond ready. Also bring a signed statement showing your financial condition, and oblige,
    Tours very truly,
    Joseph F. Haas,
    Secretary.”
    Plaintiff produced and put in evidence this letter. The work mentioned in the letter is that on which he bid. The plaintiff, Carmody, testified that in compliance with the letter, he went to defendant’s office on Friday, which was February 23, 1906, at 9:30 o’clock in the morning, and again at 3 :30 o’clock in the afternoon, and was told that the papers were not quite ready, and that he had with him, at that time, this letter:
    “Chicago, February 22, 1906.
    Mr. Joseph Haas, Sect, of West Park Board.
    Dear Sir: In reply to yours of the 21st inst. in regards to my financial conditions, I desire to state that I own property at the corner of St. Louis and Harrison St., which I would not sell for $14,000, also over $8,000 in cash.
    Yours truly,
    Henry P. Carmody.”
    On the next Monday after plaintiff called at defendant’s office, which was February 26, 1906, plaintiff went to Dr. St. John, for medical advice, as he says, and received from him this letter:
    “West Chicago Park Commissioners,
    Chicago;
    B. A. Eckhart, Esq., President.
    Dear Sir: On account of the very recent death of the wife of Henry P. Carmody, his nervous condition is such that I have advised him to discontinue all business for three months from date. I understand he is about signing a contract with your board, which will keep him busy for about three months. In my opinion he should not undertake the work.
    Respectfully yours,
    Leonard St. John, M.D.
    February 26, 1906.”
    February 26, 1906, the third day after plaintiff had called at defendant’s office, as above stated, defendant wrote to plaintiff, addressing him as before, stating that the contract, as per his bid, was ready for execution, and requesting him to call and sign it and furnish bond. February 27, 1906, plaintiff went to West Baden, Indiana. It is apparent from a letter of date February 26, 1906, written by Mamie Carmody, that defendant’s letter of that date was received at plaintiff’s house. Mamie’s letter, addressed to defendant, states that her father requested her to notify defendant that lie had been advised by his doctor to dispense with all business for some time. February 28, 1906, defendant again wrote to plaintiff, notifying him of having addressed him the letter of February 26, 1906, and stating the terms of that letter. The evidence shows that the letter of February 28, 1906, was delivered at plaintiff’s residence. Plaintiff, in a letter of date March 1, 1906, written at West Baden, admits that defendant’s letter of February 28, 1906, had been forwarded to him, and writes, “Having been taken suddenly ill, my physician, Dr. St. John, advised me'to stop work and all business immediately; hence it will be impossible for me to comply with your request.” Plaintiff did not return from West Baden to Chicago for about ten days.
    The defendant, on failure of plaintiff to appear and sign a contract and furnish bond to secure performance of the work, declared plaintiff’s deposit of $500 forfeited, and awarded the contract to the next lowest bidder. The plaintiff testified that in September, 1906, he asked Mr. Eckhart, defendant’s president, for his deposit. The suit was commenced December, 1906. At the close of the evidence defendant moved the court to instruct the jury to find the issues for the defendant, and presented to the court an instruction to that effect, but the court overruled defendant’s motion, and instructed the jury on plaintiff’s motion, to find the issues for the plaintiff and to assess the plaintiff’s damages at the sum of $500, which the jury did, and the court, after overruling defendant’s motions for a new trial and in arrest of judgment, rendered judgment on the verdict.
    Benjamin F. Biciiolson, for plaintiff in error.
    M. D. Dolan and Coburn & Case, for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.

Section 11 of chapter 105 of the statutes, provides in respect to special assessments for the improvements of parks, as follows: “The remainder of the proceedings in respect to such special assessment shall he in accordance with article IX of the act of the General Assembly entitled An act to provide for the incorporation of cities and villages, approved April 10, 1872, and all acts amendatory thereof, so far as the same may be applicable, and all acts provided therein to be performed by the city or village shall also be performed by said park commissioners or park authorities,” etc. Hurd’s Rev. Stat., p. 1468. By section 18 of the same chapter it is provided: “ All the provisions of said article IX in respect to contracts for making any such improvement, and for the letting of such contracts * * * shall each and all be applicable to such proceedings taken by said park commissioners or park authorities.” Ib. p. 1469.

Section 98 of an act entitled “An act concerning local improvements,” in force July 1, 1897, is as follows:

“Wherever authority of law now exists in corporate authorities in this State to levy special assessments or special taxes for local improvements, and for that purpose to use the proceedings or methods provided by article IX of an act entitled An act to provide for the incorporation of cities and villages’; approved April 10, 1872, in force July 1, 1872, such corporate authorities are hereby authorized to make use of the provisions of this act for such purpose, with the same effect and to the same extent as heretofore authorized to use the provisions of said article IX; and any such corporate authorities as may be hereafter authorized by law to levy such special assessments or special taxes, may, whether otherwise expressly authorized thereto or not, make use of the provisions of this act in like manner.” Hurd’s Rev. Stat. 1905, p. 428.

Section 76 of the same act provides: “All proposals or bids offered shall be accompanied by cash or by a check payable to the order of the president of the board of local improvements, in his official capacity, certified by a responsible bank, for an amount which shall not be less than 10 per centum of the aggregate of the proposal”; and section 77 of the act provides: “But if the said bidder fails, neglects or refuses to enter into a contract to perform said work or improvement, as herein provided, then the certified check accompanying his hid, and the amount therein mentioned, shall be declared to be forfeited to said city, village or town, and shall be collected by it and paid into its fund for the repairing and maintenance of like improvements; and any bonds forfeited may be prosecuted, and the amount due thereon collected and paid into said fund.” By the words “enter into a contract” in the provision last quoted, is meant a formal written and signed instrument evidencing the contract.

The plaintiff Carmody, in response to the advertisement by the park commissioners, made a definite bid for the work, and the park commissioners accepted his bid as made. The bid and its acceptance constituted a contract between the parties, and the execution thereafter of a formal written instrument embodying the terms of the contract would not be the contract itself, but merely evidence of it.

In 1 Parsons on Contracts, section 476, 6th ed., the author says: “Thus an offer to sell a certain thing, on certain terms, may he met by the answer, ‘I will take that thing on those terms,’ or by any answer which means this, however it may be expressed; and if the proposition be in the form of a question, as, ‘I will sell you so and so; will you buy?’ the whole of this meaning may be conveyed by the word ‘yes,’ or any other simply affirmative answer. And thus a legal contract is completed.”

In 7 Eng. & Am. Ency., 2d ed., p. 125, this language is used: “All express executory contracts resolve themselves, upon analysis, into an offer by one of the parties and an acceptance of that offer by the other. The act of acceptance closes the contract, and ordinarily nothing further is required to make the obligations effective. Eo especial formalities are required.”

In Garfielde v. United States, 93 U. S., 242, the United States advertised for proposals for carrying mails. Garfielde made a proposal which the Government accepted, in reference to which the court said: “The Court of Claims holds that the proposal on the part of Garfielde, and the acceptanee of the proposal by the department, created a contract of the same force and effect as if a formal contract had been written out and signed by the parties. Many authorities are cited to sustain the proposition. We believe it to be sound, and that it should be so held in the present case.”

Plaintiff was notified by the specifications for the work, which he signed, and by the statute, that in order for his bid to be considered, it was necessary for it to be accompanied with $500 in money, or a certified cheek for that sum, and he must be presumed to have had knowledge of the law that, if he failed, neglected or refused to enter into a formal contract for the performance of the work, his money would be forfeited. He certainly failed and neglected so to do, and the excuses which he gives for so failing and neglecting are of the most flimsy character. When he called at the defendant’s office February 23, 1906, he does not even show that he was even ready to receive the written contract from the defendant had it been ready. The specifications which he signed require a bond with surety satisfactory to the defendant, for $5,000, guaranteeing the satisfactory completion of the contract within the time limit, and indemnifying the board against any loss or damage which might or could result by or through the carrying out of the contract. Manifestly, he was not entitled to receive a formal contract, executed by the defendant, until he should furnish such bond. Yet, so far as appears from the evidence, he had not such bond with him when he visited defendant’s office February 23rd, nor did he at that time, or any time, offer any surety, in case the defendant was to draft the bond. February 24th vras Saturday and February 25th Sunday, and on February 26th, the day when defendant wrote plaintiff that the contract and bond were ready to be executed, he procured a letter from a physician stating that he was in a very nervous condition and that he, the physician, had advised him to discontinue all business for three months, and February 27th he left for West Baden, Indiana, where he says he remained for ten or twelve days. He never went to defendant’s office again. Our impression from the evidence is, that plaintiff, for some reason best known to himself, desired to relieve himself of the responsibility cast on him by the acceptance of his bid, and perhaps this was worth $500 to him. The contract was let to the next lowest bidder, whose bid exceeded plaintiff’s $1,010, so that defendant lost at least $510 by plaintiff’s default. The plaintiff clearly forfeited the $500 which he deposited with the defendant, and the court erred in sustaining plaintiff’s motion to instruct the jury to find for him, and in overruling defendant’s motion to instruct the jury to find for it.

The judgment will be reversed.

Reversed.


text:
    Title Guaranty & Trust Company of Scranton v. The People, for use of Consolidated Adjustment Company.
    Gen. No. 13,694.
    Official bonds—when surety of constable not liable. A surety upon the official bond of a constable is not liable for the failure of such constable to turn over money unless it appears that such constable received the money in question in his official capacity. Held, that the evidence in this case did not show that the constable had so received such money.
    Action of debt. Error to the Municipal Court of Chicago; the Hon. Mancha Beuggemeyer, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 19, 1908.
    Stedman & Soelke and Shaeofeer & Shaeeber, for plaintiff in error.
    James 3VÍ. Guthrie and Delavan B. Golb, for defendants in error.
   Mr. Justice Adams

delivered the opinion of the court.

This was a suit on the official bond of A. H. Patek, as constable, on which bond plaintiff in error was surety. The suit was against plaintiff in error and A. H. Patek. The summons was served on plaintiff in error, but returned not found as to Patek. The cause was tried by the court, without a jury, and judgment in the usual form was rendered against plaintiff in error for debt $3,000, damages $125.90.

G. M. Shaever, president of the Consolidated Adjustment Co., testified substantially as follows: The Consolidated Adjustment Company received for collection a claim of Olson & Veerhausen against Ben linville for the sum of $78, and turned over the same for collection to A. H. Patek, who was a member of the firm of Bernard Loeff & Co., which firm -was engaged in making collections. Patek brought suit on the claim and, subsequently, started garnishment proceedings before a justice of the peace.

Joseph A. Linville testified that Patek called on him in April, 1904, and told him that he had a claim against his son, Ben Linville, in favor of Olson & Veerhausen, and again, in May, 1905, called on him and told him that he had obtained judgment against his son and asked him to pay the same. In June, 1905, a judgment was rendered against him, Joseph A. Linville, by a justice of the peace, and Patek then told him that he would send a constable to make a levy unless he would pay the judgment, and July 26, 1905, Joseph Hoof came to his place of business and told him he was a constable, and had an execution against him in favor of Olson & Veerhausen for $106 and costs; that lie had been sent there by A. H. Patek, and would have to levy unless he paid, and started to remove his property, with the assistance of three men, whereupon he told him to leave the property where it was, and paid the said Hoof $125.90, and took his receipt for same. The receipt of Joseph Hoof for the $125.90, of date July 26, 1905, is in the record.

It was admitted on the trial that Patek was elected a constable in and for Cook county April 4, 1901, and gave bond in the usual sum, with B. Loeff and M. Quales as sureties, and that, April 3, 1905, when his term of office expired, he was re-elected and gave bond, with the Title Guaranty & Trust Company of Scranton, Pennsylvania, as surety, which is the bond sued on.

The defendant introduced no evidence. The court found for defendant in error, overruled plaintiff in error’s motion for a new trial, and rendered judgment as above stated.

Among the objections made by plaintiff in error is that there is no evidence that Patek actually received the money paid by Joseph A. Linville to Joseph Hoof. Counsel for the defendant in error rely on section 1 of article 14, chapter-79 of the statutes, which is as follows: “Justices of the peace and constables are authorized, and it is hereby made their duty, to receive the money on all notes and demands which may have been placed in their hands for suit or collection, and upon judgment rendered by such justices.” Hurd’s Statutes of 1905, p. 1290. The argument is that Patek being a constable in July, 1905, when Joseph A. Lin-ville paid the money to Joseph Hoof, Patek, if he received the money, is liable on his official bond and so is plaintiff in error, and that it is a legitimate inference, from the evidence, that he did receive the money from Hoof. It is plain from the language of section 14, that Patek must have received the money as constable, in order to make him and the surety on his official bond liable, and this is impliedly conceded by counsel for defendant in error. It is thoroughly settled by numerous decisions that the liability of a surety is stricti juris. In City of Sterling v. Wolf, 163 Ill., 467, the court say: “The rule has been announced by this court in almost numberless cases, that the undertaking of a surety is strictly construed, and may not be extended by implication or construction; that he cannot be held beyond the express terms of his undertaking. The liability is stricti juris.” Conceding that plaintiff in error would be liable as surety on Patek’s official-bond if Patek received the money, it is clearly not liable if he did not receive it. In that case Hoof, if a constable, and the sureties on his official bond might be liable, but not plaintiff in error.

The testimony of Joseph Linville that Patek told him he would send a constable to make a levy, and that Hoof told him Patek had sent him, is mere hearsay as against plaintiff in error. We do not concur in the view that it is a legitimate inference from the evidence that Hoof paid over the money to Patek. There is no evidence even that Hoof was a constable, or that he had an execution, except his own say-so to Joseph A. Linville, which is certainly not evidence as against plaintiff in error. Assuming that Hoof was a constable, held an execution and collected the money, his official duty was to pay the money to the plaintiff in the execution. How, then, can it he presumed that he paid it to Patek?

For the reason that there is no evidence that Patek received the money paid by Joseph A. Linville to Joseph Hoof, the judgment will he reversed and the cause remanded.

Reversed and remanded.


text:
    West Side Hospital of Chicago v. Emil Eiger et al.
    Gen. No. 13,708.
    1. Principal and agent—when latter may hind former, though acting without authority. If the principal by his conduct permits an agent to impose upon a third party, such third party may recover upon the basis of the apparent authority of the agent.
    2. Verdict—when set aside on review. A verdict clearly against the preponderance of the evidence will be set aside on review.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and judgment here.
    Opinion filed March 19, 1908.
    Frank F. Tollkuehn, for plaintiff in error.
    Adler, & Ledebee, for defendants in error.
   Mr. Justice Adams

delivered the opinion of the court.

Plaintiff in error sued the defendants in error, Emil, Joseph and Oscar Eiger, doing business as E. Eiger & Bros., for hospital treatment and board. The cause ivas tried by the court, without a jury, and the court found the issues for the plaintiff and assessed the plaintiff’s damages at the sum of $20 and costs, and rendered judgment accordingly, and the plaintiff, claiming that the sum assessed as damages is less than it is entitled to, sued out this writ of error.

The only question to he decided is one of fact, viz.: whether or not the plaintiff is entitled to a larger sum as damages, and this depends on the evidence. Case number 13,109, E. L. Heintz v. Emil Eiger et al., post, p. 651, was consolidated with this case for hearing, and heard on the same abstracts and briefs. The evidence is substantially the same in the two cases, which will explain the otherwise apparent awkwardness of referring to evidence applying solely to the Heintz case. E. L. Heintz testified that he was a licensed practicing physician, and that, September 1, 1906, the telephone nurse at the West Side Hospital called up, by telephone, E. Eiger & Bros., and witness asked “Is this E. Eiger & Co. ?” and was answered “Yes,” and the witness said: “I have just examined a man who says he was hurt in your factory,” when the person who answered said, “Wait a minute, you want Mr. E. Eiger,” and witness held the wire a minute, when another voice said, “Hello,” the witness asked, “Is this Mr. Eiger ?” and he said yes, and witness said lie was Dr. Heintz, at the West Side Hospital, and had just examined a Mr. Fishman, who said he was injured at Eigers’ factory, when Eiger asked how badly Fishman was injured, and witness said that both his arms were badly crushed, and Eiger asked him how long he would have to be in the hospital, and witness said that he did not then know, that they would have to wait developments,- and farther said, “Mr. Eiger, Mr. Fishman says that you will be responsible for the hospital bill and for my bill.” Mr. Eiger said, “Yes, I will,” and that witness then treated Fishman. The witness testified that he treated Fishman during September and October, and into November, and that the total charge for his services was $131, and that the same was the fair and reasonable value of his services.

Louise Howell testified that she was telephone nurse at the West Side Hospital, and September 1, 1906, Fishman came there with a fellow employee, and she, as is usual in such cases, called up E. Eiger & Bros, and asked to speak to E. Eiger himself, and the person who answered the ’phone told her to hold the wire, when another voice answered, and she asked if it was Mr. E. Eiger, and was answered yes, and she told him of his employee being at the hospital and of Dr. Iieintz attending him, and asked if he would be responsible for the hospital bill and Dr. Heintz’s bill, and he said yes, to go ahead with the case, that they would be responsible for all the bills in connection with Fishman’s illness. Witness further testified, that after she had the conversation above-mentioned she reported the conversation to Dr. Iieintz, who subsequently requested her to call up E. Eiger & Bros, again, which she did, and said Dr. Heintz wants to speak to you.

Louise Swing, bookkeeper and clerk of plaintiff in error, testified that Fishman was at the hospital nine weeks and five days at $10 per week, and $2 for a gold plate, in all $99.50. Witness also identified a letter, which was put in evidence and is as follows:

“Chicago, Nov. 30, 1906.

West Side Hospital, City.

Gentlemen: Tour bill for Mr. B. Fishman received, which we herewith return. When you called us up by telephone, you stated that will remain in hospital from one to two weeks, and that you would charge $10 per week, to which we agreed to pay, but we do not intend to pay you for the rest of the time he was there, as we did not authorize you to keep him as long as that.

Tours very truly,

E. Eiger. & Bros.”

(The foregoing is an exact copy of the letter.)

Witness testified that $23 had been tendered by the defendant on the hospital bill, and that sum was tendered in open court and deposited with the clerk. She further testified that one statement of the amount due the West Side Hospital was sent to the defendants October 31, 1906, in reference to which no answer was returned, and that another was sent November 19, 1906, and both statements were returned by defendants November 20, 1906.

Emil Eiger testified, that he had no such conversation as was testified to by Dr. Heintz; that Emil Sellstrom, his bookkeeper came to his office and. told him that Fishman was at the hospital, and witness sent him back to the telephone to ask how long Fishman ivas going to stay there and Sellstrom so asked and returned to witness and said Fishman was going to stay there one week, and that the charge ivas $10 per week, and he authorized him to answer that they would pay $10. Witness admitted that he had received a statement showing Dr. Heintz’s bill to be, he thought $180, and the hospital bill $99.50, and that he returned it with a statement that he would pay for two weeks. Emil Sellstrom testified that he had only one conversation with some person, at the West Side Hospital; that a lady called up and said Fishman was there, and asked if they would stand the expense, and he asked her to wait a moment and went to E. Eiger, who told him to find out the costs and the nature of the injury, and witness telephoned back and asked how long the man would be in the hospital, and she said “Wait a minute, I will ask the doctor,” and that the gentleman came to the ’phone and witness asked him, and he said a week, and he said wait a minute, and witness spoke to Mr. Eiger again, and he said, “All right, if it is a week, say all right,” and witness went back to the ’phone and said, “Yes, we will stand a week.”

Doctor Heintz testified in rebuttal that he made no such answer as testified by Sellstrom, viz.: that it would require Fishman’s staying in the hospital only a week; that his answer was that he did not know; that they would have to await developments in the case.

The evidence shows that Fishman was in the defendants’ employ and was injured in their factory, and was taken to the hospital by another employee of defendants, who worked on the same floor with Fishman in the factory, and that this was in the daytime, when the workman would not be likely to leave' the factory to take the injured man to the hospital without leave or direction from his employers. Sellstrom does not specifically deny the conversation testified to by Dr. Heintz, nor ivas he specifically asked whether he had such conversation. lie merely denies it by implication, viz.: by stating the conversation which he had and testifying that it was the only conversation which he had with any one at the hospital.

The defendants do not stand on the agreement testified to by E. Eiger and Sellstrom, namely, that defendants were only to be responsible for the hospital bill for one week, at the rate of $10 per week. In their letter of November 20, 1906, they say: “You stated that, will remain in hospital from one to two weeks, and that you would charge $10 per week, to which we agreed to pay.” This is directly contrary to the evidence of E. Eiger and Sellstrom, that the communication on the telephone was that Eishman was to stay in the hospital only one week, and that the agreement was only for $10 for one week; add to which that the defendants tendered $20 and costs in open court, on the trial. Dr. Heintz testified that he said to the person with whom he talked, by telephone, “Mr. Fishman says that you will be responsible for the hospital bill and for my bill.” The hospital not being a charitable institution, it is probable that if Fishman, a workman, who earned his daily bread by his daily labor, and, presumably, was not oversupplied with money, would have gone to the county hospital, if the expense of going to the hospital in question wras to fall on him.

Fishman has not been produced as a witness, nor has his absence been accounted for. We think the testimony of Dr. Ileintz and Hiss Louise Howell much more probable and credible than that of E. Eiger and Emil Sellstrom. The doctor’s evidence is to the effect that both of Fishman’s fore arms were badly crushed. That this was true is not denied, and, if true, it is much more probable that Dr. Heintz said over the telephone that he did not then know how long the patient would have to stay in the hospital; that he would have to await the developments of the case, than for him to say that he would have to stay a week. The event proved that the doctor would have been greatly mistaken had he said only a week.

Emil Eiger has no personal knowledge. of the communications from Doctor Ileintz and Miss Louise Howell over the telephone, or of Sellstrom’s communication to them. He merely knows what Sellstrom told him. This is clear from his testimony. Therefore there are two witnesses as to the telephone communications—Dr. Heintz and Miss Louise Howell—both of whom had personal knowledge, and who testified that it was stated by the person telephoning from defendants’ office that the defendants would be responsible for the hospital bill and Dr. Heintz’s bill, as against the testimony of Sellstrom, who, as before stated, denies their testimony only by implication. When Fishman was taken to the hospital, plaintiff and Dr. Heintz promptly inquired whether the defendants would be responsible for his hospital and physician’s bills, and if they had been informed that defendants would only be responsible for the hospital bill for one week, it is so improbable as to verge on the impossible, that plaintiff thereafter would have furnished Fishman with board, lodging and hospital attendance for nearly ten weeks, and that Doctor Heintz would have attended and treated him professionally for that length of time, especially in the absence of evidence that either plaintiff’s officers or Doctor Heintz became suddenly non compos mentis.

Emil Eiger, when informed by Sellstrom that he was wanted at the telephone, and what for, authorized Sellstrom to represent him and answer the question whether the defendants would be responsible for Fishman’s hospital and physician’s bills, and Sellstrom, as the preponderance of the evidence shows, answered that they would. The plaintiff and Dr. Heintz relied on this answer, and, in good faith, acted on it, and defendants are estopped to deny it. “If any innocent party is to suffer, it shall fall upon him who enables the supposed agent, under his authority, to impose on others. And it is upon this principle that the principal may frequently be bound to third persons for acts of the agent in violation of his express private instructions, although the agent himself would be liable to his principal for the breach.” Doan v. Duncan, 17 Ill., 272, 275; Noble v. Nugent, 89 ib., 522, 524.

The judgment will be reversed and judgment will be entered here in favor of plaintiff in error and against defendants in error for the sum of $99.50 and the costs of this court.

Reversed and judgment here.


text:
    E. L. Heintz v. E. Eiger et al.
    Gen. No. 13,709.
    This case is controlled by the decision in West Side Hospital of Chicago v. Eiger, ante, p. 645.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Cottkell, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and judgment here.
    Opinion filed March 19, 1908.
    Frark F. Tolliiuehr, for plaintiff in error.
    Adler, & Lederer, for defendants in error.
   Mr. Justice Adams

delivered the opinion of the court.

The plaintiff in error sued defendants in error for treatment of and attendance on one Fishman, an employee of defendants, who was injured at their factory and was taken by one of their employees to the West Side Hospital of Chicago, plaintiff claiming that the defendants, at the time Fish-man was taken to the hospital, agreed to pay for plaintiff’s treatment of him. Plaintiff proved his treatment of Fish-man and that the fair and reasonable value of his services was $131, and there was no evidence to the contrary.

The cause was tried by the court, without a jury, and the court found the issues for the defendants and rendered judgment against the plaintiff for costs. This cause was consolidated for hearing with the cause general number 13,708, West Side Hospital of Chicago v. Emil Eiger et al., ante, p. 645, and the two causes were heard on the same abstracts and briefs, the evidence in the causes being substantially the same. The evidence is set forth, in substance, in cause number 13,708, decided at the present term, and need not be repeated here. Our conclusion, for reasons stated in our opinion in cause number 13,708, is that the finding; of the trial court is manifestly contrary to the weight of the evidence. The judgment of the trial court will be reversed and judgment will be entered here, in favor of plaintiff in error and against defendants in error, for the sum of $131 and costs of this court.

Reversed and judgment here.


text:
    Van Buren Storage & Van Company v. Sarah H. Mann.
    Gen. No. 13,715.
    1. Bailments—what equivalent to receipt under Warehouse Act. A receipt for merchandise delivered to a warehouseman, even though sought to be made a contract by being signed by both parties, is none the less a receipt within the meaning of the Warehouse Act.
    2. Bailments—effect of section 10 of Warehouse Act. The limitations in a warehouse receipt, as, for instance, exemptions from liability if articles delivered are not listed and reduction of liability if value thereof is not stated, are void by virtue of section 10 of the Warehouse Act.
    3. Bailments—when sale hy warehouseman illegal. A sale by a warehouseman of stored merchandise for nonpayment of storage charges is void unless made pursuant to the statute with respect to unclaimed property.
    Action for damages to personal property. Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantby, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 19, 1908.
    Thomas A. Leach, for plaintiff in error.
    E. M. Seymour, for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.

The claim of defendant in error, plaintiff below, as set forth in her bill of particulars, is for damages, for failure of plaintiff in error, defendant below, to deliver to her certain personal property which she had delivered to plaintiff in error for storage. A receipt of date May 25, 1904, was given hy the defendant, the Van Buren Storage & Van Co., to the plaintiff, for certain household furniture, which receipt contains a list of the property. The receipt is headed “Warehouse Receipt and Contract,” is signed hy both parties and contains certain provisions which, so far as may he necessary, will hereafter he referred to. The case was tried hy the court, without a jury, and the court found the issues for the plaintiff, assessed the damages at the sum of $338.45, and rendered judgment on the finding.

The evidence is contained in a “Statement of Facts” signed hy the presiding judge of the trial court. It appears from this statement that there were certain articles delivered to defendant for storage, which, hy reason of oversight or inadvertence, were omitted from the list of articles in the warehouse receipt.

The court certifies that, on the trial, the defendant’s counsel made the following objections:

“The defendant, hy its counsel, objected to the introduction of all of this oral testimony relating to articles not enumerated in the contract on the ground that the ‘ warehouse receipt and contract being under seal cannot be altered, added to or varied by oral testimony.’ The warehouse receipt and contract especially provides ‘that the bailor hold the bailee harmless and not liable for the loss or damage to said goods, by the acts of burglars, the elements, fire, heat, wind, water, or the acts of God, riots or the enemies of the government, or rattage, moths, loss or damage by breakage to or from the warehouse, nor for the contents of bundles, packages, boxes, barrels, baskets, tranks, valises, or any other articles the contents of which are unknown to bailee, unless said contents are itemized and listed hereon.’ And the defendant, hy its counsel, objected for the further reason that the ‘warehouse receipt and contract’ provides, ‘That the bailor release these goods to the value of $5 per hundredweight, unless the actual value is herein stated,’ and the defendant, by its counsel, objected for the further reason that a ‘warehouseman’s receipt is' the contract of the parties as to the very property stored/ and the defendant, by its counsel, objected for the further reason that a warehouse receipt is the contract of the parties, and parol evidence to change its terms is inadmissible, and the court overruled all of said objections, to which ruling of the court and the introduction of such oral testimony the defendant, by its attorney, duly excepted.”

Counsel for the company makes substantially the same objections here. The warehouse act contemplates that ware-housemen shall give receipts for property stored with them, and the document in question cannot be treated otherwise than as a receipt.

Section 10 of the act provides as follows: “No warehouseman in this State shall insert in any receipt issued by him any language in anywise limiting or modifying his liabilities or responsibility, as imposed by the laws of this State.” Hurd’s Rev. Stat. 1905, p. 1503. There can be no question that, by the law of this State, a warehouseman or warehouse conqiany is bound to use ordinary care to safely keep property stored with him or it, and to return it to the party producing a receipt therefor, and offering to pay all legal charges. We regard the insertion in the receipt in question of the provisions relied on by counsel for the company as limitations of the company’s liability under the law of this State, and cannot sustain the objections made to the evidence. We concur in the rulings of the trial court.

The plaintiff called at the defendant’s warehouse November 15, 1904. She had not, up to that time, paid any money for storage, and in a conversation with defendant’s manager she told him that she could not then take the goods out of storage, and he said, “Any time you get ready you may take them out, and it will be all right.” The goods were ample security for storage charges.

The defendant caused to be published in a newspaper, in Chicago, December 12, 1904, a notice that the goods would be sold at public auction at nine o’clock a. m., December 28, 1904, at 308 West Van Buren street, Chicago, Illinois, to pay storage charges. Ho bidders appeared, and December 31, 1904, it sold privately to dealers in second hand furniture a number of the articles stored with it by the plaintiff. This the defendant had no right to do. It did not proceed under or in accordance with the statute in respect to unclaimed property, and it is not claimed that it did.

In Head v. Becklenberg, 116 Ill. App., 576, it was held that that statute had no application to a case like the present.

The company’s remedy was to retain the property till payment of its proper charges. Low v. Martin, 18 Ill., 286. It could not, itself, enforce its lien, either by public or private sale, but only by judicial authority. The assessment of the plaintiff’s damages is sustained by the evidence. The judgment will be affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    Chicago City Railway Company v. Nellie Casey.
    Gen. No. 13,654.
    1. Negligence—when collision result of. Held, that the collision, in question in this case which occurred at a railroad crossing between a traction car and a steam engine, was the result of the negligence of the traction company, that such company was bound to so run its cars at such crossings as to avoid collisions, and to take notice of the conditions of its tracks and exercise care accordingly.
    2. Evidence—what testimony of medical expert competent. A physician who is a nerve specialist may properly be permitted to testify that his patient showed great “nervousness—tremors and quivering of her body,” or apparently involuntary wincings and cries.
    Action in case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Theodobe Bbentano, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed March 19, 1908.
    Statement by the Court. This appeal is from a judgment of the Superior Court in favor of appellee, who was plaintiff below, against the appellant, which was defendant below, The judgment was rendered on the verdict of a jury in an action on the case for personal injuries. It was for $4,500.
    The declaration charged that the plaintiff on August 1, 1904, was a passenger on a car of the defendant going north in Centre avenue, and that the defendant rán said street car in which the plaintiff was riding through certain lowered g’ates at the intersection of said Centre avenue with a steam railway track (breaking the gates), on to the steam car tracks, where the street car was struck by an approaching train and thrown from the tracks; that in consequence the plaintiff was knocked down from said street car upon her head and her body and head were bruised and injured, and she was internally hurt, suffered from hemorrhages of the mouth and ears, and was disabled in body and mind.
    To this declaration the defendant pleaded not guilty.
    At the close of the evidence for the plaintiff, and again at the close of all the evidence, the defendant asked for a peremptory instruction, which was denied.
    After the verdict a motion for a new trial and a motion in arrest of judgment were made and overruled.
    The assignments of error in this court which have been argued allege that the verdict and judgment are against the law and evidence; that the court erred in rulings on the admission and exclusion of evidence, and that improper instructions were given to the jury at the request of the appellee, and proper instructions requested by the defendant were refused.
    William J. Hynes, John E. Keiiob and Watson J.. Eerey, for appellant.
    O. S. O’Meara, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

The plaintiff on August 1, 1904, was about eleven years and a half old. She lived with her mother, who was a widow, on Justine street, in the southwestern section of Chicago, just north of Forty-ninth street. She was a school girl, but this was vacation time. On the day in question she had been visiting a friend of her mother and of the family, who lived on Centre avenue near 53rd street. Justine street is seven blocks west of Centre avenue. The little girl, at about five o’clock in the afternoon, to go home took, on Centre avenue near 53rd street, a street car which turned east on 51st street, and rode north in that car to 51st street, where she transferred herself to another car of the defendant corporation which ran north on Centre avenue to 47th street, and then back to 53rd street. The running of this car in this way seems to have been a temporary routing’ arrangement, owing to changes in the tracks. The intention of the child rvas to transfer again on 47th street to a westbound car running by Justine street.

On boarding the car at 51st- street she seated herself in the second seat from the front, on the west side of the car, facing south. When the car reached 49th street the gates of the railway crossing of the Grand Trunk Railway Company were down. The gates fell across Centre avenue on the north and south side of the railway tracks. Each gate consisted of two wooden bars, which were lowered when trains were passing or about to pass, and were raised when the crossing was clear. They were operated by a watchman or crossing-keeper, by a mechanism in a tower west of the street railway tracks, and between the two steam railway tracks.

The car on which plaintiff was riding was electrically driven by an overhead trolley wire. It did not stop before the lowered gate, but drove through it, breaking it down, and reaching the Grand Trunk track, where it was struck by an engine slowly backing toward the west. The forward trucks of the car were knocked off the track some feet to the west.

The plaintiff, according to her own testimony, was “knocked from the right side of the car” (her right side— the west side of the car) “to the left, and then knocked back to the right and out into the street,” and seriously injured, as will be hereafter described.

Defendant’s counsel in elaborate original and reply arguments insist that the above recited and undisputed facts of the collision, coupled with the evidence presented in behalf of the defendant that the car and its running and stopping appliances were in perfect condition, that there was no defect in the track, that a street sprinkler had recently passed over the street and sprinkled the tracks, and that the speed of the car was six or seven miles an hour, and that the motorman used the brake, but did not stop the car before reaching the gate, make the verdict against the company contrary to the great and clear preponderance of the evidence, and show that the occurrence was “an unavoidable accident, which the highest degree of care, caution and diligence could not have foreseen or guarded against.” .

This proposition, we think, appeals more to the zeal of the advocate than to the deliberation of the judge. That a sprinkling wagon has passed over a city street should, in the last analysis, be considered a sufficient excuse as against a passenger for the defendant’s running a trolley car in perfect mechanical condition, in broad daylight, through a closed grade crossing gate, and in front of a moving steam engine, is not a view of the law of carriers to which we can give assent.

We agree with the Branch Appellate Court: “We think it is the legal duty of appellant to run. its trains at railway crossings in such a manner that they will not collide with each other. The slippery and greasy condition of the track on which the car was running did not change appellant’s duty in this regard. It was bound to know the condition of its track and run its cars accordingly.” Chicago City Railway Company v. Willard, Gen. No. 12,969, an unreported case.

We do not think that it requires the testimony of the flagman, Smith, viewed with so much suspicion by defendant’s counsel, to the effect that the motorman’s attention was distracted to women on the sidewalk as the car approached the gates, to establish a case which renders the defendant liable for any injury to the plaintiff which resulted from this collision. But if that evidence was so necessary, we should not be disposed to treat it as cavalierly as the defendant would have us. The testimony of Mr. Smith certainly reads somewhat confusedly and obscurely (he is said to have understood English only imperfectly), but we see no signs of its being wilfully false, nor indeed anywhere in this case the slightest indication of its being brought on a fraudulent or trumped up claim. As the trial judge very properly said, “Smith may have seen the accident, and yet be unable to describe it intelligently”; and again, “Isn’t his evidence to be weighed by the jury? Of course we had the man on the stand here, we could see what sort of a man he was.”

Defendant, how'ever, argues that if it is liable for the results of the accident, the weight of the evidence is that the plaintiff received no injury—or at least none such as she claimed she received. It would be useless for us to summarize the evidence on this point, for there is nothing whatever that is of any material importance to contradict her own story, that she wras thrown out of the car, that she was bruised and in pain that night, that she remained in bed for a fortnight after that time, that since then she has had for years neurotic pains and hemorrhages, which she never had before, that she was much frightened, and that she w'as attended by Dr. Kirby, the surgeon of the Grand Trunk Koad, and examined afterwards by a very eminent neurologist, Dr. Patrick.

Nor is there any evidence to contradict her mother, whose testimony tended to show a very grave nervous shock to the girl, besides the visible injuries from the accident, and that from a healthy and robust child she had become one of frail and delicate health.

The negative testimony of people who did not see her thrown to the ground, and the fact that she was able to walk or run home from the scene of the accident, furnish no such contradiction.

On the other hand, there are many unimpeached lay witnesses who swear that the plaintiff’s own testimony and that of her mother in relation to her relative condition of health before and after the accident, were true, while it seems quite evident from the medical testimony offered on behalf of the plaintiff, that the plaintiff suffered from the accident a concussion of the brain and a great fright, producing minor epilepsy, which predisposes to major epilepsy. We do not think the medical evidence on the part of the defendant would necessarily have caused a jury of reasonable men to repudiate this conclusion, and we do not think that the objections which are made to the medical evidence for the plaintiff are well taken. It is not necessary to discuss and analyze the rules laid down in various cases in Illinois about the admissibility of medical opinions based in whole or in part on “self-serving physical demonstrations,” because the testimony of Dr. Kirby and Dr. Patrick, both of whom swore they did not examine for the purpose of testifying, is based not on any such things, but on what as physicians in the reasonable discharge of their duties they could see and learn. A physician who is a nerve specialist surely is not prevented by any rule of law from testifying that his patient showed great “nervousness—tremors and quivering of her body,” or apparently involuntary wincings and cries. A rigorous rule was applied to Dr. Patrick when he was told that he must exclude everything learned from the patient.

There is no reversible error in the rulings on evidence or in the instructions. The case was not a close one, in our opinion. The damages do not seem to us excessive, and the judgment of the Superior Court is affirmed.

Affirmed.


text:
    James H. Eckels et al., Receivers, et al., v. Jacob Henning.
    Gen. No. 13,661.
    1. Practice—what not tantamount to dismissal of defendants. The fact that a judgment order runs against the “defendants” in an action for personal injuries and provides for payment in due course of administration, is not tantamount to a dismissal as to all those defendants to the action who were not receivers, where it appears that the verdict was against all the defendants, including those not receivers, and that separate motions for new trial and in arrest of judgment were made on behalf of the several defendants.

      2. Practice—effect of error in judgment. An error in entering judgment against several defendants who cannot be held jointly liable, is one of substance and not of form.
    3. Practice—when joint judgment erroneous. A joint judgment against a corporation defendant and receivers thereof defendants is erroneous. (Eckels et al. v. Farley, 131 Ill. App., 557, explained.)
    4. Practice—what does not waive objection of misjoinder. A misjoinder appearing affirmatively upon the face of the record is not waived by a failure to plead the same or specifically to point it out or specially to urge it either upon the trial or upon the argument of the motion for new trial.
    5. Pleading—when misjoinder need not be pleaded. It is not necessary to plead a misjoinder when the fact thereof affirmatively appears in the record.
    6. Pleading—when declaration does not state cause of action. Held, that the declaration in this case did not state a cause of action against all of the defendants joined, nor separately against the Receivers who are sued.
    7. Appeals and errors—when reversal cannot be as to some defendants only. If a judgment at law is erroneous as to one of the defendants, it is erroneous as a whole and must, as a whole, be reversed.
    Action in case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in this court at the March term, 1907.
    Reversed and remanded.
    Opinion filed March 19, 1908.
    Statement by the Court. This appeal is from a judgment of the Superior Court of Cook county for $5,000 rendered ag'ainst the appellants, defendants below, in favor of the appellee, plaintiff below, in a suit for personal injuries. As the form of the judgment is involved in questions argued in this appeal, we give it literally as it appears in the transcript of the record:
    “Jacob Henning, v. Chicago West Division Railway Co., John C. Fetzer, Marshall E. Sampsell, and James H. Eckels, Receivers of Chicago Union Traction Company, and John C. Fetzer, Henry A. Blair and Marshall E. Sampsell, Receivers of West Chicago Street Railway Company.
    Case.

      “This cause coining on to he heard upon the defendants’ motions heretofore entered herein for a new trial in said cause after arguments of counsel and due deliberation by the court said motion is overruled and a new trial denied, to "which the defendants excepts. Whereupon the defendants enter their motions in arrest of judgment, which motion is also overruled, to which the defendants excepts.
    “Therefore it is considered by the court that the plaintiff do have and recover of and from the defendants his said damages of two thousand dollars in form as aforesaid by the jury assessed together with his costs and charges in this behalf expended and to be in due course of administration as receivers, to which the defendants excepts. Whereupon the defendants having entered their exceptions herein prays an appeal from the judgment of this court to the Appellate Court in and for the first district of Illinois which is allowed upon filing their appeal bond in the sum of fifty-five hundred dollars to be approved by the court and leave given the defendants to file their bill of exceptions herein within thirty days of this date.”
    The especial significance of the form of the judgment springs from the following state of the pleadings and evidence.
    The summons and declaration both make the various parties defendants as they appear in the caption of the judgment order above.
    The declaration has three counts. The first alleged that on August 29, 1904, the defendants were street railroad corporations, and as such the Chicago Union Traction Company by its receivers “were possessed of, operating and using a certain street railroad under and by virtue of a certain contract or lease from the West Chicago Street Railway Company,” and the West Chicago Street Railway Company came into possession of the said street railway tracks and entered into its lease with the Chicago Union Traction Company under a lease or contract which it, the West Chicago Street Railway Company, had prior thereto made with the Chicago West Division Railway Company. It then declares that the defendant the Chicago Union. Traction Company by its servants then and there so carelessly and improperly managed and drove a grip car on the said street railroad that it injured the plaintiff.
    The second count alleges that on said date “the defendants were possessed of a certain street railway system in the city of Chicago,” and “that the defendants were street railroad corporations, and that as such the Chicago Union Traction Company was possessed of, operating and using a certain street railroad.” It then proceeds like the first count with the same allegations concerning the origin of the Chicago Union Traction Company’s possession and operation and concerning its injury to the plaintiff, and then concludes hy averring “that the West Chicago Street Railway Company and the Chicago West Division Railway Company are conjointly liable with the Chicago Union Traction Company under and by virtue of the aforesaid leases and contract made and entered into prior to the aforesaid accident by and between the aforesaid companies and as lessors of the Chicago Union Traction Company.”
    The third count, which was added afterward by leave of court, makes practically the same allegations as the other two, and asserts that the Chicago Union Traction Company “by its receivers” was possessed of, using and operating the railroad on which the accident occurred, and that the Chicago Union Traction Company, by its servants, carelessly and improperly drove the grip car that caused the accident.
    The plea of not guilty was filed separately: First, by John C. Fetzer, James H. Eckels and Marshall E. Sampsell, as receivers of the Chicago Union Traction Company; second, by John C. Fetzer, Henry A. Blair and Marshall E. Sampsell as receivers of West Chicago Street Railroad Company; and third, by the Chicago West Division Railway Company.
    Pleas of the Statute of Limitations to the additional count were successfully demurred to.
    The only evidence connecting the receivers of the Chicago Union Traction Company, or the receivers of the West Chicago Street Railroad Company, with the accident or the operation of the cars, was this:
    After the evidence for the plaintiff was all in, the following’ admission was made by counsel representing the defendants, and standing as it does in the record, without comment or objection, may properly be assumed to have been assented to by the plaintiff and to bind him also:
    “We admit that the Chicago West Division Railway Company had the franchise from the City of Chicago; that it was transferred to the West Chicago Street Railroad Company; that the Union Traction Company leased the rights of the West Chicago Street Railroad Company to operate this road and the cars from June 1, 1899, and that Receivers were appointed by the United States District Oourt for the Chicago Union Traction Company and for the West Chicago Street Railroad Company as contained in these orders.”

    The bill of exceptions then says: "The documents referred to are marked Exhibit A. and Exhibit B., Jan. 8, ’0)”' —but the orders do not appear in the bill of exceptions nor is there anything but the preceding statement implying that they were offered in evidence.
    It is therefore apparent that the record is entirely silent as to the date at which the receivers in question were appointed.
    The bill of exceptions states that at the close of the plaintiff’s evidence “counsel for the defendants, John C. Fetzer James H. Eckels and Marshall E. Sampsell, as receivers of the Chicago Union Traction Company, made and filed” a separate motion to exclude from the jury all the evidence offered on the part of the plaintiff and to find “the defendants, John C. Fetzer, James H. Eckels and Marshall E. Sampsell as receivers of Chicago Union Traction Company not guilty.” This motion and a similar separate one made by the counsel for “John C. Fetzer, Henry A. Blair and Marshall E. Sampsell, as receivers of West Chicago Street Railroad Company,” were denied. A similar motion was made separately also for the Chicago West Division Railway Company, and denied.
    After the defendants’ evidence had been heard, motions to exclude all the evidence and for a peremptory instruction were made separately for the same parties and denied.
    The jury returned the following verdict: “We the jury find the defendants guilty and assess the plaintiff’s damages at the sum of five thousand dollars.”
    Thereupon John C. Fetzer, James H. Eckels and Marshall E. Sampsell, as receivers of the Chicago Union Traction Company, made in writing a separate motion for a new trial. So did John C. Fetzer, Henry A. Blair and Marshall E. Sampsell, as receivers of the West Chicago Street Railroad Company, and so did also the Chicago West Division Railway Company. Each motion contained twenty-four different alleged reasons for the action of the court asked for, among which was the refusal to give the peremptory instruction before alluded to. These motions were denied by the court.
    “Whereupon the defendants and each of them moved the court to arrest judgment on said verdict, but the court denied said motions, to which ruling of the court the defendants and each of them, by their respective counsel, then and there duly excepted.”
    The court then entered the judgment order in the beginning of this statement recited.
    In this court the appellants, the receivers of the Chicago Union Traction Company, the receivers of the West Chicago Street Railroad Company, and the Chicago West Division Railway Company, “jointly and severally” assign twenty-seven errors. They include, with others, the allegations that the verdict was against the law and the evidence; that the court erred in refusing to withdraw the evidence from the jury and give the peremptory instruction asked for by the defendants; that the court erred in overruling each of the motions for a new trial, and that it erred in overruling the motions of defendants and each of them in arrest of judgment, and in entering judgment- on the verdict in favor of plaintiff against defendants and each of them.
    The last two assignments of error are as follows:
    “26. The defendants James H. Eckels and Marshall E. Sampsell, Receivers of the Chicago Union Traction Company, and Henry A. Blair and Marshall E. Sampsell, as Receivers of the West Chicago Street Railroad Company, were improperly joined in this suit with the Chicago West Division Railway Company. A valid judgment could not be entered against said Railway Company, a corporation, and said other defendants as Receivers, the said judgment against the Railway Company being only enforcible by execution, and the judgment against said Receivers being only enforcible in due course of administration. A judgment in an action at law is a unit and must run against all alike. Since the judgment could not run against all the defendants alike, there was a misjoinder, which was fatal on motion in arrest of judgment.
    “27. The Receivers of the West Chicago Street Railroad Company, a corporation, the lessor company, could not in law be liable for the negligence of the Receivers of the Chicago Union Traction Company, a corporation, the lessee company, nor could the Chicago West Division Railway Company, a corporation, be liable for the negligence of either or any of said Receivers. It was fatal error to join said Chicago West Division Railway Company, said Receivers of the Chicago Union Traction Company, and said Receivers of the West Chicago Street Railroad Company, the charge against them being a tort which in law could not be joint.”
    John A. Rose, and Albert M. Cross, for appellants; W. W. Gurley, of counsel.
    Bowles & Bowles, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

If we could see any way open to us, without the disregard of clear rules of law, to consider and decide this cause upon the merits as between the plaintiff and the receivers of the Chicago Union Traction Company, who (although we cannot so inform ourselves from the record because of the absence of the date of the orders appointing them) were undoubtedly operating the car which is alleged to have caused the plaintiffs injury, we should so do.

With the spirit of Judge Freeman’s view implied in West. Chicago Street Railroad Company et al. v. Muttschall, 131 Ill. App., 639, that the defendants ought to call questions of misjoinder and specific objections of want of allegation or proof against any of the defendants to the attention of the trial court, we entirely agree; and from the view expressed in appellants’ argument that such a doctrine implies an unjust favoritism against defendants, we entirely dissent. The object of courts and of law trials is to get at the truth and do justice, or at least to settle disputes, as speedily and exactly as possible—mot to furnish a field for lawyers to play an intellectual game. Therefore, although strict rules are found necessary in the conduct of courts and trials, it is proper that no matters which will delay the final disposition of a case on its merits should be held back or concealed to render futile and nugatory an investigation which has been conducted at large expense to the community. We wish that the defendants had specifically pointed out in the trial court, in this case, those matters which they now discuss and which we deem fatal objections to the judgment involved here. It seems to be conceded that they did not do so, although there is really nothing in the bill of exceptions which shows that the motions for a new trial and in arrest of judgment were not argued and the points in question then distinctly made. But if, through inadvertence or design they were not, it is our duty, nevertheless, to meet the situation as we find it and enforce the rules of law, as we understand them, which are applicable to that situation as it exists.

It is manifest that we have here a judgment indefensible on the merits, if the views which we expressed in Eckels et al. v. Farley, 131 Ill. App., 557, are sound. It is true that we there declined to enter upon the question of the relations of receivers of lessor and lessee companies because it was not necessary, since there a corporation and its own receivers were codefendants. But we pointed out, that the receiver of a railroad was not the agent of the company nor its representative, nor in any sense under its control; that ho was, on the contrary, a person who comes into possession of the equipment and business of the road in inviium, placed there by a court which sequestrates the property for the time being.

It follows that the corporation from which the property has been taken away and which has nothing to do with its management, is not liable for personal injuries resulting from such operation. It follows equally that the railroad lessor of such a corporation (who is held liable under the law of Illinois for the acts of its lessee because of tire fact that the lessee is using the railroad property with its consent and permission—Penn. Co. v. Ellett, 132 Ill., 654) cannot be liable for such personal injuries as result from the operation of the.lessee road by the receivers to whom it has been given adversely to the corporation. And still less, if it be possible, it seems to us, can one set of receivers be held liable for the torts and negligences of another set—each set being appointed in a hostile proceeding to one of the corporations between whom the lease or contract relied on was made.

In this judgment, however, rendered for a personal injury, we have three parties made liable: First, the Chicago West Division Railway Company, which the proof connects with the occurrence that is the subject of the lawsuit as the company which had a “franchise” (by which it is to be presumed a license is meant) in the street, and transferred it to the West Chicago Street Railroad Company, who in turn leased it to the Chicago Union Traction Company; second, the receivers of the West Chicago Street Railroad Company, who are connected with the matter only as officers of the court, appointed adversely to the said West Chicago Street Railroad Company to take possession of its property; and, third, the receivers of the Chicago Union Traction Company, who may be presumed to have been operating the car involved, if the Chicago Union Traction Company itself (which is not a defendant), was not.

All these three sets of defendants were found guilty by the verdict of the jury, for the verdict was a general one against all the defendants alike.

The word “ defendants ” must certainly, in this connection, be held to mean all the defendants named in the summons and in the declaration as such. The trial court so held, for the judgment order is expressly entitled against all the defendants, but if it had not been so, the fact would have been the same.

It is not admissible in this case to adopt the suggestion made by the Branch Appellate Court in the Muttschall case, supra, that the insertion of the clause “and to be ( sic) in due course of administration as receivers” (even if that clause be taken to mean “and to be paid in due course of ádministration as receivers”), was tantamount to a dismissal against the defendant who was not a receiver, viz.: The Chicago West Division Railway Company. The same reasons we gave in the Farley case, supra, are effective here: “The verdict of the jury was against all the defendants. Separate motions for a new trial made by the company, as well as such motions made by the receivers, had been considered and denied, and * * * judgment was entered on the verdict. It would have been error to enter it on that verdict against the receivers alone. This error was not committed. Whatever irregularity or obscurity there may be injected into the judgment by the failure to distinguish as to the inodes of enforcement as against the corporations themselves and their receivers, and as to the funds from which it is to be paid, the insertion of the clause in question did not render the judgment one thus departing from the verdict.”

In the case at bar, separate motions also in arrest of judgment were made by each set of defendants, and those motions were overruled by the court before the judgment was entered. This certainly is not compatible with an intention to dismiss any of the defendants out of the case. It is to be noted that the Supreme Court, in affirming the judgment of the Appellate Court in the Muttschall case, 230 Ill., 462, does not adopt the theory of a dismissal, but places its decision on the point involved entirely upon the proposition, made in the opinion of the Branch Appellate Court as an alternative, that there had been an affirmative waiver on the part of each of the defendants of the right to raise the point by an admission in .open court that each was liable if anybody was. It is plain the theory of the admission of liability by all and the consequent rightfulness of the judgment against all, and the theory of the constructive dismissal of some of the defendants, making the judgment only against the others, are inconsistent. If one is sound, the other cannot be. The Supreme Court by accepting one repudiated the other.

The discussion of the question whether in the case at bar the objection to the judgment now made was waived by admission in pleading or otherwise in the lower court, we postpone, only to say that wre adhere to the doctrine of the Farley case, swpra, that error in the judgment, if it exists, is not one of form, but of substance. “The distinction between the parties is real and vital. The judgments obtained against a railway corporation and those against its receivers may be charges respectively on very different funds and assets, and it is easy to conceive cases where their final enforcement would place the ultimate loss on very different people.”

The judgment in this case, if there was a liability for the alleged injury to the plaintiff, should, if the pleadings allowed it, have undoubtedly been against the receivers of the Chicago Union Traction Company alone.

Whether the pleadings did so allow it, we will discuss further on. Counsel for appellee, however, strangely misapprehend what seems to us a very plain statement in the Farley case, when they say that we there suggested that we might “affirm the judgment as to some defendants and reverse as to others, or at least enter an order reversing the judgment and remanding the cause with permission to the plaintiff to dismiss as to the companies and enter judgment on the verdict already given against the receivers,” but that we were “not inclined to do that in that case” because we “were not satisfied with the merits of the case.” What we said was that we might, if convinced of the justice of the case against the receivers, properly adopt this course so far as substantial justice went, and that it was adopted by the Supreme Court of Arkansas in Memphis Ry. Co. v. Stringfellow, 44 Ark., 322, but that we were powerless to do so because in this State a well-known rule, firmly held as the law, makes in all cases a judgment at law against several defendants a unit, which can neither be reversed as to some and affirmed as to others, nor reversed with directions to the lower court to re-enter it as on the verdict against some and not against others. To this we cited many cases. It is also strange that counsel should have supposed that the Farley case was reversed by us on its merits and the discussion of the judgment was obiter dictum. The exact reverse was what we intended by our language.

Following the authorities we cited on this point in the Farley case, we must hold that if this* judgment is erroneous as to any of the defendants it is erroneous as a whole and must as a whole be reversed. And although from the record itself it is hard to say that there is evidence in the admission made by Mr. Mahony, at the close of the plaintiff’s case, and apparently acquiesced in and binding the plaintiff also, which shows whether it was the Chicago Union Traction Company itself or the receivership of that company which was operating the car in question on August 29, 1904, it was plainly one or the other, and not both, and as the Chicago Union Traction Company was not a defendant to the suit and the receivers were, we may properly assume that fhe admission, in referring to “these orders” meant orders of a United States Court entered and acted upon before that date. So assuming, it follows from the view of the law which we have given, that unless the pleadings or proceedings show a reason to the contrary, the motion for a peremptory instruction for the defendants, the Chicago West Division Railway Company, should have been granted; that the similar motion for the receivers of the West Chicago Street Railroad Company should have been granted; that a new trial should have been granted to these defendants after the verdict, and that the motions in arrest of judgment on the verdict should have been granted. The motions mentioned for a peremptory instruction and for a new trial should have been granted because there was no evidence tending to show liability except as against the receivers of the Chicago Union Traction Company, and the motions in arrest of judgment should have been granted because the defendants were such as could not have been jointly liable for this alleged tort, nor could properly be joined in a judgment at law of any kind, inasmuch as such judgment must be enforcible in different methods.

Without discussing and distinguishing cases cited by contending counsel here, it is sufficient to say that we have no doubt of the general rule that it is not necessary to plead a misjoinder when the fact of misjoinder appears affirmatively in the record. . It may be taken advantage of by a motion in arrest of judgment. ¡Nor have we any doubt, as a general rule, that a general motion in arrest of judgment, although not containing specific points of objection, preserves for review anything coming properly within the scope of said motion.

We have indicated, however, that the pleadings or proceedings might show a reason to the contrary of this. By this we mean that although such a judgment as the one under discussion must be erroneous, the various defendants might have estopped themselves, by “waiver” or “admission” below, from urging that error in the court of review. Such a reason the Appellate Court and the Supreme Court found in the Muttschall ease, 131 Ill. App., 639, 230 Ill., 462, where the defendants had by their counsel, in the view of the court, jointly and severally affirmatively admitted in open court that the right defendants had been jointly sued. To allow them or either of them afterwards to complain in the court above that the judgment, in the absence of specific objection, had not been arrested, would be, in the opinion of the reviewing courts, to allow a trap set for the trial court to be sprung.

But the decision of the Supreme Court in the Muttschall case is put plainly on an affirmative admission estopping the defendants from further denial. No such matter appears in the case at bar, and although, as we began this opinion by saying, we think that a public-spirited method of trying the cause might well, in the interests of justice, have led, without any want of fidelity to the interests of clients, to specific objections and argument in the court below on the questions here presented, we cannot say that counsel were not within their rights, or that any trap was laid for the court or any estoppel worked against the defendants by the course which they apparently adopted. There is certainly, in a matter like this, a great difference between affirmative speech or action and simple silence or inaction.

But it may be further urged with force that the Supreme Court has in a number of cases (summed up and cited in the Chicago Union Traction Company v. Jerka, 227 Ill., 95) decided that “allegations relating to the ownership of the road and cars are matters of mere inducement, which do not require proof on the part of the plaintiff unless they are denied by a special plea,” and that the appellant in Pennsylvania Co. v. Chapman, 220 Ill., 428, “by filing only- the general issue impliedly conceded that at the time of the alleged injury it was operating the particular line of road mentioned in the declaration, and that the operators in charge of the trains were its servants and employees,” and that therefore the filing of the separate pleas of “not guilty” in the case at bar was an admission that the persons filing them were alike and jointly guilty if any tort as alleged was proved.

Propositions of law in opinions, however, must be considered in relation to the facts in the cases decided, and while the Supreme Court certainly has emphatically said that where there is no special plea, the allegation of the ownership and operation of the cars doing the injury are matters of inducement not put in issue in the case, we are not satisfied that it meant to decide that, if D. sues A., B. and C. jointly for a tort which injures him, and A., B. and C. each separately pleads not guilty, and (the tort being one which in the nature of things the three could not be jointly liable for) the evidence shows that it was committed by A. alone, a verdict and judgment may and indeed should be rendered against A., B. and C. jointly, because the injury has been proven and each person accused of it has pleaded nothing except that he was not guilty.

But if such be the effect of the Supreme Court decision, it would not control this case for reasons not yet alluded to. We have hitherto discussed the case as though the judgment might, if the facts of the occurrence justified it, have been sustained against the receivers of the Chicago Union Traction Company, if the other defendants had been, before the verdict, dismissed from the case. But the truth is, that the declaration states no cause of action whatever against the receivers of the Chicago Union Traction Company or the receivers of the West Chicago Street Railroad Company, although it might be held to state such a cause against the Chicago West Division Railway Company, which is a defendant, and the West Chicago Street Railroad Company and the Chicago Union Traction Company, neither of which was served nor is a defendant, although the latter is so denominated in the body of the declaration several times.

To one bearing in mind the absolute distinction in character and interest between the receivers of a corporation and the corporation itself, this is plain. It is also plain that the pleader entirely lost sight of this distinction and confounded the receivers of a corporation with the officers, servants, agents or representatives of the corporation. From this it came that he has declared, not that the receivers of the Chicago Union Traction Company, but that the Chicago Union Traction Company drove its grip car into plaintiff’s wagon, and only connects the receivers of the Chicago Union Traction Company with the matter by saying that the Chicago Union Traction Company “by its receivers” was possessed of and operating the road, etc.,—a statement which is in itself an absurdity. The receivers of the West Chicago Street Railroad Company are not mentioned at all in the body of the declaration after being named as defendants.

We must hold, therefore, that this declaration does not state a cause of action against the receivers of the Chicago Union Traction Company or against the receivers of the West Chicago Street Railroad Company. If that be true, then the general issues filed by them did not admit allegations which did not exist; and, moreover, the defect was one which could be taken advantage of on the motions for an arrest of judgment. It is a familiar rule of law that while a declaration defectively stating a cause of action is good against a motion in arrest after verdict, one stating a defective cause, or none at all, is not.

We have not examined the merits of this cause against the receivers of the Chicago Union Traction Company for the reason that we cannot see how the judgment in its present form can be sustained. The judgment of the Superior Court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Note. The remanding portion of the judgment in this case was in accordance with a stipulation of the parties vacated in order that an appeal might be taken.