text:
    Albert Hertel, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 21,335.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard, in the Branch Appellate Court at the March term, 1915.
    Affirmed on remittitur.
    Opinion filed March 28, 1916.
    Statement of the Case.
    Action by Albert Hertel, plaintiff, against Chicago City Railway Company, defendant, to recover damages for personal injuries. From a judgment for $4,000 in favor of plaintiff, defendant appeals.
    Hertel, the plaintiff, was a passenger on one of defendant’s cars that in a backward movement collided with a wagon and horses attached to it. He was probably thrown from the car and sustained injuries therefrom.
    The declaration charged that the motorman of the car “wrongfully, improperly and negligently caused the car to be suddenly and quickly started and in a backward direction, and to be operated swiftly in a backward direction” against a certain wagon in the rear of said car.
    The car was an open, light summer car operated by electricity. To avert a collision with a wagon that was suddenly turned in front of it the motorman applied the reverse power thus causing the car to stop and run backward probably about one hundred feet to the point where the collision occurred. The motorman testified that the reason why he could not stop the car in its backward movement was because the reverse lever became stuck so that he could not move it back, and that he failed both to shut off the electric power and to apply the brake after the car started backward.
    The passenger’s principal injury seems to have been the dislocation of his arm which was immediately set. He was laid up in bed for seven weeks when his doctor told him he could go to work and he resumed labor of the same kind in which he had been previously engaged, that of sausage making, and in which he remained at undiminished wages for about a year, when he laid off for four months, claiming that he had pains in his arm and other parts of the body. He consulted no physician, but acting on his own judgment treated himself at home with steam baths. He then went 'back to the work of sausage making for three months. Why he left it does not appear, unless to take the easier work of tying pork loins together at which he" was employed at the time of trial. He then got $12 per week. Prior to the accident he received $18. For a year after the accident his wages were from $20 to $25.

      Abstract of the Decision.
    1. Carriers, § 477

      —when evidence sufficient to sustain finding of negligence in operation of street car. In an action by a street car passenger for damages for injuries sustained while riding on defendant’s car, resulting from a collision with a horse and wagon while such car was running backward und'er reverse power, evidence held sufficient to warrant a finding of negligence, it appearing from the testimony of the motorman that he failed to shut off the electric power and to apply the brake after the car started backward.
    2. Damages, § 115*—when verdict for damages for personal injuries excessive. Verdict for $4,000 damages on account of dislocation of plaintiff’s arm, held, under evidence, to be excessive unless a remittitur of $1,000 was entered, it appearing that there was unsatisfactory evidence of the extent of plaintiff’s injuries and as to how far his permanent health and ability to work were impaired.
    The accident occurred August 20, 1912. He ceased to have medical attendance and resumed work October 28th. The treatment he received from his physician aside from changing the bandage on his arm consisted of rubbing his back with medicine which his wife continued to do for four months. He had not sought nor received medical care since the accident and his physician died before the trial. Medical testimony as to his physical condition was not produced but he gave his own description of his condition. He was apparently an ignorant man with little knowledge of anatomy or the cause of bodily ills.
    Franklin B. Hussey and Watson J. Ferry, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Litzinger, McGurn & Reid, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Barnes

license: Public Domain

text:
    Gennaro Calabrese, Appellee, v. Anton J. Cermak, Bailiff, Appellant.
    Gen. No. 21,341.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 28, 1916.
    Statement of the Case.
    Action in replevin by Gennaro Calabrese, plaintiff, against Anton J. Cermak, bailiff of the Municipal Court, defendant. From a judgment in favor of plaintiff, defendant appeals.
    The suit was tried before the court without a jury. The court found the defendant Cermak g-uilty and the right of possession of the property in question in plaintiff. The property was levied on under a judgment in favor of the Common Sense Company against Calabrese’s brother Vincent. No propositions of law were submitted to the court to be held as such and no question of law was otherwise presented in the récord. The only question considered by the Appellate Court was the sufficiency of the evidence as to the ownership of the property.
    The property levied on consisted of a soda water fountain, a show case, a safe and cash register in a drug store that had been owned and conducted by Vincent for some years. Being indebted to Gennaro he executed a bill of sale to him of the drug stock and fixtures, including said property so levied on, on September 19, 1913. Gennaro took possession on that date and sought to evidence the transaction by recording his bill of sale September 22nd. He hired a party to conduct the store and gave Vincent desk room therein for another line of business. His possession seemed to have been an open one. It was conceded that no notice of the sale was previously given to the Common Sense Company. While such company had received an order from Vincent for goods prior to said sale, it did not deliver them until subsequent thereto, and there was no evidence that established either in law or fact the relationship of creditor and debtor between said company and Vincent prior to said sale.
    Abstract of the Decision.
    Replevin, § 124

      —when evidence sufficient to show ownership in plaintiff. In a replevin action where the property levied on had been turned over to plaintiff by bill of sale, which was recorded, and such property, consisting of a soda fountain, show case, etc., in a drug store, was so given on account of indebtedness of plaintiff’s brother to him and plaintiff’s possession was open, and the judgment creditor on behalf of whom the levy was made did not appear to have been a creditor of plaintiff’s brother prior to the sale, the evidence held sufficient to establish that the transaction in the bill of sale was valid and free from fraud, and that the ownership of the property was in plaintiff.
    Daniel M. Mickey, for appellant.
    No appearance for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    In re Estate of Wolf Freilich, Deceased. Eva Freilich, Individually and as Executrix, Appellant, v. Moses Freilich and Celia Schonfeld, Appellees.
    Gen. No. 21,352.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John McNutt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed March 28, 1916.
    Statement of the Case.
    Appeal from an order in the Circuit Court affirming, in effect, an order of the Probate Court directing Eva Freilich, as executrix of the last will and testament of Wolf Freilich, deceased, to pay out of funds in her hands, to two legatees under the will, $1,500 each, on account of their legacies thereunder. When it was made in the Probate Court it appeared that the executrix had in her hands $14,459.70, that the uncollected accounts of the estate weye deemed worthless and that there were pending claims against the estate amounting to $4,495.10. It also appeared that executrix had not been allowed any compensation for her services as such executrix, nor fees for her counsel. The circuit judge, on the proof before him, estimated that the latter might equal $1,700, and from the showing of record her compensation as executrix might aggregate, on a full statutory allowance, $7,560. The record indicated that her services as executrix extended over a considerable period and involved handling numerous transactions and large sums of money,' aggregating over $125,000, incident to closing out a merchandise business, collecting the accounts and paying the creditors.
    Elijah N. Zoline, for appellant; Morris K, Levinson, of counsel.

      Abstract of the Decision.
    Executors and administrators, § 340*—when order directing payment of legacies premature. Order of Probate Court directing executrix to pay two legacies of $1,500 each, held premature where executrix had not been allowed compensation for her services or fees for her counsel, and it appearing that the funds on hand amounted to $14,459.70, that there were claims pending against the estate aggregating $4,495.10, and that executrix’s compensation, on a full statutory allowance, might aggregate $7,560.
    Newman, Poppenhusen & Stern, for appellees; Edward R. Johnston and Harry Goodman, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    New Columbus Buggy Company, Appellee, v. Empire Express Storage & Van Company, Appellant.
    Gen. No. 21,365.
    1. Replevin, § 47

      —what constitutes sufficient demand for goods. Where a corporation styled “The New Columbus Buggy Company” makes demand for goods in possession of another and fails to designate itself under that style but leaves out, in making such demand, the word “new,” even though such technicality were availing, still where, on making such demand, defendant makes an absolute refusal to deliver the goods except on replevin, plaintiff is excused from the necessity of any further demand before bringing suit.
    2. Municipal Court of Chicago, § 29*—when presumed that rules authorize prosecution of case of first class without declaration. Under the Municipal Court Act, sec. 28, par. 9 (J. & A. If 3340), the Municipal Court of Chicago has power to adopt rules prescribing the same practice in first-class cases as in fourth-class cases; in fourth-class cases a declaration in replevin is not necessary, ■ and indulging the presumption of regularity of procedure and that the court observed its rules, it will be assumed, until the contrary is shown, that they authorized prosecution of a replevin suit in such first-class cases without a declaration.
    3. Replevin, § 123

      —when evidence sufficient to show that sale not dona fide. In an action of replevin for two automobiles held by defendant as local sales agent for plaintiff under a contract to return the cars at a certain date if unsold, evidence held sufficient to sustain a finding that a sale of the cars to a sister-in-law of an officer of defendant was not bona fide.
    • Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 28, 1916.
    Allan A. Gilbert and Charles W. Steifel, for appellant; Edward O. Brown, of counsel.
    Stein, Mayer & Stein, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

This appeal is from a judgment in replevin finding the right to possession of .two electric automobiles in appellee, the plaintiff, and assessing damages for detention thereof against appellant, the defendant.

Under a contract between appellee and the John A. Bender Company, as sales agent, said automobiles had been placed with the latter for sale, and appellant’s defense is that the latter through John A. Bender, its secretary and treasurer, negotiated a sale thereof to one Mrs. Marshall for whom it held them in storage. The question of the right of possession depends entirely on whether the sale was a bona fide transaction, and the court before whom the case was tried without a jury must have held that it was not.

Only two points of law are raised, one relating to the necessity of a demand and the other to the necessity of a declaration. The former need not be considered as the record shows a demand in fact, and, even if it was insufficient, that none was necessary. The point made is that the person making an oral demand of appellant for the goods failed to designate appellee by its precise corporate name because he left out the word “new.” Even though the technicality were availing yet as appellant then and there made an absolute refusal to deliver the goods except on a replevin, appellee was excused from the necessity of any further demand before bringing suit.

The point as to the want of a declaration is that the suit being one of the first class cannot be prosecuted without such pleading. The Municipal Court has the power to adopt rules prescribing the same practice in first-class as in fourth-class cases (Municipal Court Act, sec. 28, par. 9, J. & A. 3340), and in the latter class a case of this character may be prosecuted on the affidavit (Id., sec. 48, J. & A. § 3360). Its rules are not before us but, indulging the presumption of regularity of procedure and that the court observed its rules, we should assume until the contrary is shown that they authorized prosecution of the suit without a declaration. This is not in conflict with Gilman v. Chicago Rys. Co., 268 Ill. 305, which expressly stated (p. 310) that the decision had no application to cases arising under section 48 of said act.

As to the alleged sale relied on for a defense, we think the court was fully justified in questioning the good faith of the parties thereto. Their cross-examination developed so many suspicious and unnatural circumstances as to render the evidence of a sale not reasonably convincing.

The Bender Company was appellee’s local agent. Under the contract it was to return the cars to appellee March 1, 1914, if unsold. On April 7th, appellee called for their return if not sold. April 25th it again wrote said company for returns, and, if the cars were sold, for the proceeds. Later in the month its agent personally called on Bender for information. He refused to give any, and referred the agent to the company’s attorney. A few days previous, on April 21st, Bender had personally negotiated the sale in question. He claimed at the trial that appellant owed his company a balance on account. Their relations were .evidently strained.

The cars were listed tó his company at $3,400. The alleged sale was to his sister-in-law at $2,500. While every formality of a sale was scrupulously observed the extreme care in that respect furnished additional reasons under attending circumstances for suspecting its genuineness. They lived in the same house. Yet claiming no previous conversation with him on the subject, without having owned an automobile, with little if any practical knowledge of one, without inquiry into their merits or values, she at this particular juncture of strained relations steps into the office of her brother-in-law, and without any of the usual preliminaries of a business transaction makes him an offer of $2,500 for the cars which he immediately accepts, and forthwith he becomes her agent in placing them in storage and trying to sell them. We need not follow into their unconvincing explanations of this unusual proceeding. It is true, as claimed by appellant, that mere suspicion will not usually, if ever, justify the rejection of uncontradicted and unimpeached evidence of a satisfactory character. But the circumstances under which a transaction is entered into are frequently more persuasive in their import than the bare acts constituting it. They may of themselves be sufficient to impeach its good faith. Those in this case seemingly possess so many earmarks of a purely artificial transaction as to have rendered the evidence of the sale unsatisfactory and therefore not reasonably convincing to the court. We see no good reason for disturbing its finding. Hence the judgment will be affirmed.

Affirmed.


text:
    White Brass Castings Company, Appellee, v. Automatic Recording Safe Company, Appellant.
    Gen. No. 21,375.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and judgment for appellee for $3,219.93.
    Opinion filed March 28, 1916.
    Rehearing denied April 10, 1916.

      Certiorari denied hy Supreme Court (making opinion final).
    Statement of the Case.
    Action by White Brass Castings Company, plaintiff, against Automatic Recording Safe Company, defendant, for value of merchandise delivered and cash paid out, the amount claimed as due on account being $6,193.92, against which defendant claimed a set-off of over $13,000. From a judgment in favor of plaintiff for $3,519.93, defendant appeals.
    Plaintiff was a manufacturer of castings and defendant was engaged in selling “little household savings banks,” called safes. Under arrangements between them the former manufactured the parts and assembled them, and sent monthly bills for the same, which appear to have been paid regularly for over two years. This appeal brought up for review, the refusal of the court to allow three items of set-off, (1) one for $300, the cost of “fillers” made by plaintiff, and delivered and charged to- defendant against its protest; (2) one for $528.67, the aggregate of an increased price of one-half cent charged on safes made and furnished between October 1, 1912 and January 1, 1914; and (3) one for $10,285.92, being for what defendant called an overcharge for material delivered between April, 1910 and September, 1913.
    Plaintiff at defendant’s request made a written proposition in 1909 to manufacture the parts of the safe at certain specified prices which does not appear to have been acted on, defendant’s secretary testifying that when it became ready to arrange with plaintiff to do its business, the latter raised its price. There was a futile effort to hold plaintiff to its original proposition. The subject of changed prices became a matter of discussion and correspondence, but the goods were billed and accepted at the changed prices up to the close of the parties’ dealings, and were paid for without protest up to the accruing of the account sued on. It is the difference between the prices contained in the proposition of 1909 and said changed prices for the material furnished that constitutes the so-called overcharges in the said third item.
    Abstract of the Decision.
    1. Estoppel, § 65

      —when purchaser of goods estopped to question validity of sale. Where a seller of goods raises prices to the purchaser above those contained in its original written proposition, even though purchaser may have been embarrassed thereby, he may not by way of set-otf in a suit for the value of merchandise delivered, Question the validity of the contract, especially after having given plaintiB orders on the basis of the new prices and having paid for the goods billed according to such prices.
    2. Account stated, § 3*—what constitutes. Where orders are given on the basis of new prices without any binding conditions, and goods are paid for on the basis of such prices, the accounts become stated.
    3. Payment, § 42*—what does not constitute mistake of fact authorizing suit to recover money paid. Where a seller of goods induces the purchaser to accept prices on exaggerated statements of cost of manufacture and materials, but the actual arrangement is for specified prices not based on such cost, it cannot be contended by way of set-off in an action for the value of goods delivered, that there was a mistake of fact whereby the right arose to recover back money paid under such mistake, and an item claimed by defendant for overcharges is properly disallowed, and evidence relating to the cost of material and manufacture properly rejected.

      Dyrenforth, Lee, Chritton & Wiles, for appellant; George A. Chritton, of counsel.
    John C. Farwell, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Walter Speedy, Plaintiff in Error.
    Gen. No. 21,498.
    1. Prostitution, § 3a

      -—when venue properly laid in information. Where an information for pandering designates the State, county and city, where the court exercises its jurisdiction, and in the body thereof, states that the alleged offense was committed “at the City of Chicago” aforesaid, the venue is properly laid.
    2. Prostitution, § 3a*—when place where offense of pandering committed sufficiently designated. In a prosecution for pandering, the particular house in which the offense was committed need not be designated in the information, but it is a matter of proof which could have been limited by a bill of particulars, if asked for.
    3. Prostitution, § 3a*—when information charging pandering sufficient. An information for pandering under Hurd’s Rev. St., 1913, ch. 38, par. 57g (J. & A. f 3863), which charges substantially in the language of the statute that defendant did by means enumerated therein “procure a female inmate for a house of prostitution,” and did cause, etc., “a female person to become an inmate” of such house, and by promises, etc., caused “an inmate * * * to remain therein as such inmate” and did by fraud, etc., procure such a person “to become an inmate of a house of ill fame and to enter a place in which prostitution is allowed and encouraged within the State,” and did “procure a female person to come into this State for the purpose of prostitution,” states several acts, each of which constitutes the offense of pandering, and they are not inconsistent or repugnant, and they may be charged in one count.
    4. Prostitution, § 3a*—when information for pandering not had on account of duplicity. The offense of procuring a female person to come into this State for the purpose of prostitution may constitute a distinct transaction from causing her to enter a house of prostitution or to remain therein, but they may be so connected as to constitute but different phases of one transaction, and there being nothjng on the face of an information charging such several acts, to- show that they were committed at different times or were distinct and separate offenses, the information is not bad on account of duplicity.
    5. Peostitution, § 4

      —when admission of evidence as to bringing prostitute into the State prejudicial error on prosecution for pandering. In a prosecution for pandering where it was charged both that defendant caused a female to enter a house of prostitution and that he induced her to come into the State for the purpose of prostitution, and the evidence tended to show that matters pertaining to her entry took place in the latter part of 1914, but evidence relating to the latter charge was to the effect that defendant sent for her in 1912 to come from another State into this State, held that the evidence indicated two distinct offenses and had no relation to the charge actually relied on, that of causing a female person to enter a house of prostitution, and in view of conflicting testimony, it was calculated to prejudice defendant with the jury, and that the admission of such testimony, over defendant’s objection as to its competency, was reversible error, especially as the time was not within the statute of limitations, the information having been filed in April, 1915.
    Error to the Municipal Court of Chicago; the Hon. John A. Ma-honey, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 28, 1916.
    Rehearing denied April 10, 1916.
    F. L. Barnett, for plaintiff in error.
    Maclay Hoyne, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

Plaintiff in error was convicted in the Municipal Court of Chicago on an information charging him with violating the act relating to pandering. (Hurd’s Rev. St. 1913, ch. 38, par. 57g, J. & A. 3863.) A motion to quash was overruled. The ruling is urged as error (1) because the venue was not properly laid; and (2) because of failure to designate in what house the offense was committed; and (3) because of alleged duplicity.

As the information states in the caption thereof, the State, county and city where the court exercises its jurisdiction, and states in the body thereof that the alleged offense was committed “at the city of Chicago aforesaid,” the venue was properly laid. (Vol. 1, Bish. New Crim. Proc. secs. 377-379.)

It was unnecessary to designate in what particular house the offense was committed. That was a matter of proof which could have been limited by a bill of particulars if asked for.

The information is in one count. It charges substantially in the language of the act that the defendant did by means enumerated therein “procure a female inmate for a house of prostitution” and did cause, etc., “a female person to become an inmate” of such a house, and by promises, etc., caused, etc., “an inmate of a house of prostitution to remain therein as such inmate” and did by fraud, etc., procure such a person “to become an inmate of a house of ill fame and to enter a place in which prostitution is allowed and encouraged within the State,” and did “procure a female person to come into this State for the purpose of prostitution.” These several acts, any one of which constitutes the offense of pandering, may be properly charged in one count, being but different means of committing the same offense and effecting the single act the statute aims to prevent, namely subjection of a female to the life of prostitution. Where there is but one offense which may be committed in different ways, they may in most instances, where not clearly repugnant, be charged in one count, and proof of the offense in any one of the ways will sustain the allegation. (Vol. 1, Bish. New Crim. Proc. sec. 586.)

There is no inconsistency or repugnancy between the several ways so alleged by which the offense may "be committed. We can conceive how procuring a female person to come into this State for the purpose of prostitution might constitute a distinct and separate transaction from causing her to enter a house of prostitution or to remain therein. Nevertheless they might be so connected as to constitute but different phases of one transaction. Together or separately they constitute but one cause of action, are embraced in the same general definition, and are made punishable in the same manner. There being nothing on the face of the information to indicate that the several acts were committed at different times or were distinct and "separate offenses, we do not think the information was bad for duplicity. (Blemer v. People, 76 Ill. 265; State v. Matthews, 42 Vt. 542; Cornell v. State, 104 Wis. 527; United States v. Fero, 18 Fed. 901; State v. Brady, 16 R. I. 51; Nicholas v. State, 23 Tex. App. 317; 22 Cyc. 376.)

But while from the information there does not appear to have been two distinct offenses, the evidence indicated the contrary. It tended to show that the matters pertaining to her entry into a house of prostitution took place in the latter part of 19.14. That relating to the charge of procuring the prosecuting witness to come into this State was to the effect that defendant sent for her in 1912 to come from Tennessee into this State. This testimony was erroneously admitted over defendant’s objection to its competency, as1 the time was not within the period of the statute of limitations, the information having been filed in April, 1915. The testimony on that subject had no relation to the charge actually relied on, that of causing a female person to enter a house of prostitution, and in view of the conflicting testimony on the latter charge was calculated to prejudice defendant with the jury. For aught that can be told the jury may have found defendant guilty of procuring the prosecuting witness to come into this State in 1912 for the purpose of prostitution. We think it was reversible error to admit the evidence. Hence the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Thomas Lyons, Plaintiff in Error.
    Gen. No. 21,624.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 28, 1916.
    Statement of the Case.
    Prosecution by the People of the State of Illinois against Thomas Lyons, defendant, for larceny of a five dollar treasury note of the United States. From a judgment against him, defendant brings error.
    Defendant was charged on information with larceny of “one United States of America Treasury Note of the denomination of five dollars of the value of five dollars.” On trial beforé a jury he was found guilty as charged in the information, on the evidence of the prosecuting witness that the property taken from him was “a five dollar bill,” without further evidence specifying its kind or character, or even whether the hill of that denomination was money of the United States or some other country.
    Louis Greenberg and Thomas H. Mercer, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

      Abstract of the Decision.
    Labceny, § 35

      —when evidence insufficient to sustain charge of larceny of U. S. treasury note. Evidence of prosecuting witness that defendant took “a five dollar bill” from him does not support charge in the information of larceny of “one United States of America Treasury Note of the denomination of five dollars of the value of five dollars”; but there is a failure to prove an essential averment of the declaration.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


author: Mr. Justice McGoorty

text:
    Duane J. Babcock et al., Appellees, v. William C. Regelin et al., Appellants.
    Gen. No. 20,890.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. A. D. Webb, Judge, presiding. - Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed March 28, 1916.
    Statement of the Case.
    Action on the common counts by Duane J. Babcock and Grace Babcock, his wife, plaintiffs, against William C. Regelin and William Jensen, defendants. From a judgment for $426.50 in favor of plaintiffs, defendants appeal.
    T. F. Monahan, for appellants.
    A. G. Dicus, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McGoorty

delivered the opinion of the court.

Abstract of the Decision.

1. Principal and agent, § 9 —when principal bound by acts of agent. By permitting another to hold himself out to the world as his agent, the principal adopts his acts, and will be held bound to the person who gives credit thereafter to the other in the ca-pacity of his agent.

2. Principal and agent, § 8*—when evidence sufficient to establish agency to collect note and mortgage. In an action to recover the proceeds of a note and mortgage alleged to have been collected by defendants’ agent, evidence held sufficient to sustain a finding that plaintiffs were justified in presuming that defendants’ salesman was authorized to act as agent of defendants in collecting the proceeds of the note and mortgage.

3. Principal and agent, § 246*—tohen existence of agency question for jury. In an action in assumpsit where defendants’ salesman assumed to act as agent of defendants in the matter of collecting the proceeds of a note and mortgage, and one of defendants paid over such proceeds to such salesman, held that it was a question for the jury to determine whether such defendant knew that such proceeds belonged to plaintiffs.

4. ■ Principal and agent, § 223*—when plaintiff relieved of burden of proving joint liability of principal and agent. Where no affidavit is filed in an action of assumpsit denying the joint liability of a principal and an agent for the proceeds of a note and mortgage collected by the agent and no evidence is produced disproving same, under Hurd’s Rev. St., ch. 110, sec. 54 (J. & A. H 8591), plaintiffs are relieved from the burden of proving joint liability in the first instance.

5. Appeal and error, § 1468*—when admission of irrelevant evidence as to authority of agent harmless error. In an action to recover the proceeds of a note and mortgage given as part of the purchase price of land in which the question involved was the authority of a salesman of defendants to act for defendants in collecting such note and mortgage, held that the admission of letters signed by defendants’ salesman and written more than a year prior to the time when the note and mortgage was given by plaintiffs to defendants’ salesman for collection, and which merely related to the sale of the farm, was not prejudicial error.

6. Principal and agent, § 8*—when evidence sufficient to show collection of note and mortgage by agent. In an action to recover the proceeds of a note and mortgage alleged to have been collected by defendants’ agent, evidence held sufficient to establish that the note and mortgage were given to defendants’ agent and that he collected the proceeds thereon, it appearing that such agent admitted that he had received such note and mortgage and that he had sent them to two different hanks for collection.


text:
    The People of the State of Illinois ex rel. Tillie Wolf, Defendant in Error, v. John Zinz, Plaintiff in Error.
    Gen. No. 21,449.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed March 28, 1916.
    Statement of the Case.
    Prosecution by the People of the State of Illinois on the relation of Tillie Wolf against John Zinz, defendant, for bastardy. From a verdict finding defendant the father of the child of relatrix and judgment thereon, defendant bring's error.
    The child was born on December 23,1914. The relatrix testified that she became pregnant during April, 1914; that she had sexual intercourse with defendant on the first Sunday of that month, and about four weeks prior thereto. Defendant testified that for a period of time prior to September 26, 1912, he sustained illicit relations with the relatrix, but did not see her thereafter until May 6, 1914, when he again had sexual intercourse with her. There was evidence tending to corroborate the testimony of relatrix.
    Saltiel & Rossen, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

      Abstract of the Decision.
    1. Bastards, § 22

      —when evidence sufficient to establish case. A prosecution for bastardy is not a criminal proceeding, and it is only necessary to establish such case by a preponderance of the evidence.
    2. Bastards, § 22*—when evidence sufficient to sustain verdict as to parentage of child. On a prosecution for bastardy, evidence held sufficient to sustain the verdict finding defendant father of child of relatrix.
    3. New trial, § 79*—when motion for new trial on ground of newly-discovered evidence properly overruled. Where evidence was known to defendant before the trial and no explanation given by him to explain his failure to offer such evidence during the trial, it is not error to overrule a motion for a new trial on the ground of newly-discovered evidence.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McGoorty

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Annie Jorczik, Defendant in Error, v. George Garines, Plaintiff in Error.
    Gen. No. 21,596.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 28, 1916.
    Statement of the Case.
    Prosecution by the People of the State of Illinois on the relation of Annie Jorczik against George Garines, defendant, for bastardy. From a judgment on verdict finding him the father of the bastard child of relatrix, defendant brings error.

      The relatrix testified on direct examination that she had coition with defendant, on several occasions, commencing June 11, 1914, while employed in a Chinese restaurant conducted by a certain Moy Sing. The defendant was employed as a cook in another restaurant on the first floor of the same building in which Moy Sing’s restaurant was situated, and continued in such employment during the remainder of that year.
    Defendant testified that he first saw complainant the last of July, 1914, and commencing August 2, 1914, that "he accompanied her on three occasions to various places of amusement. Defendant denied that he, at any time, had illicit relations with relatrix. Moy Sing testified that he did not pay any attention as to whether the relatrix entered his employ in June or July, 1914. but, according to his best recollection, it was during the first two weeks of July. Two of defendant’s witnesses, coemployees, one of whom commenced work there June 24, 1914, the other July 23, 1914, testified that they first saw complainant during the last days of July, 1914. Doctor Leonard S. Wood testified that he attended the relatrix during her accouchment, and that the child at birth was a normal child, weighing seven and one-half pounds, who took nourishment and commenced gaining weight from the time of its birth. The doctor further testified that the usual period of gestation is 280 days. There was no evidence offered tending to prove that the birth was premature.
    Thomas E. Swanson, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Irwin N. Walker, of counsel.
   Mr. Justice McGoorty

delivered,the opinion of the court.

Abstract of the Decision.

1. Bastards, § 22*—when evidence insufficient to establish parentage of alleged father. In a prosecution for bastardy where the case of relatrix rested entirely upon her unsupported evidence, held that the evidence preponderated in favor of defendant, it appearing that the first act of intercourse with defendant according to relatrix’s testimony, was 233 days before the birth of the child.

2. Bastards, § 20*-—when burden of proof upon mother to show that child prematurely born. In a bastardy prosecution where the testimony.of relatrix shows that the first act of intercourse with defendant was 233 days before the birth of the child, the burden is upon her to establish by a preponderance of the evidence that the child was of premature birth.


text:
    The People of the State of Illinois ex rel. Tillie Schultz, Defendant in Error, v. Theodore Wunsch, Plaintiff in Error.
    Gen. No. 21,781.
    1. Arrest, § 5

      —when presumed that officer arrested defendant within his jurisdiction. It will be presumed that the police officer executing a warrant for the arrest of defendant in a bastardy prosecution in the Chicago Municipal Court acted strictly within the scope of his authority and within his jurisdiction, and that the defendant was found within the City of Chicago when arrested, as provided in Hurd’s Rev. St., ch. 37, sec. 5Ra (J. & A. If 3364).
    2. Bastards, § 12*—tohen Municipal Court of Chicago jurisdiction of prosecution by nonresident female against nonresident male. The burden of the support of a bastard child should be borne by the putative father and not by the public, and on that ground a nonresident female may prosecute him in the Municipal Court of Chicago, within the jurisdiction of which he was presumably arrested, even though he is also a nonresident and the child was born in New Mexico.
    3. Bastards, § 4*—what is nature of action. A bastardy proceeding is criminal in form, although the proceeding is in effect civil.
    4. Infants, § 36*—when guardian ad litem should not be appointed. A guardian ad litem should not be appointed for a minor defendant in a bastardy proceeding, as such proceeding is criminal in form.
    Error to the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed March 28, 1916.
    Cantwell & Smith, for plaintiff in error.
    Maclay Hoyne, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McGoorty

delivered the opinion of the court.

Theodore Wunsch, defendant (plaintiff in error), was found by the court, trial by jury having been waived, to be the father of the bastard child of which the relatrix, an unmarried woman, was delivered on September 10,1913, and judgment entered on the finding.

Defendant seeks to reverse the judgment because the relatrix and the defendant were nonresidents of Illinois. Relatrix testified that she became impregnated at Cedar Rapids, Iowa, as the result of coition with defendant, in December 1912, and that the child was born in New Mexico, September 10, 1913.

This prosecution was commenced in the Municipal Court under chapter 37, sec. 50a, page 743, Hurd’s Rev. St. 1913 (J. & A. If 3364), which is in part as follows:

“Whenever an unmarried woman, who shall be pregnant or delivered of a child, which by law would be deemed a bastard, shall file in the Municipal Court, if she be pregnant, or so delivered in the city of Chicago or the person accused be foimd in said city of Chicago, her complaint in writing under oath or affirmation accusing a person of being the father of such child, the court shall order a warrant to issue against the person so accused and cause him to be brought forthwith before the court.”

The bastardy warrant issued by the Municipal Court of Chicago showed this return:

' ‘ Executed this writ by arresting the within named Theodore Wunsch, and bringing his body into court this 9th day of August, A. D. 1915.
Thos. H. Ward,
Police officer and ex officio Bailiff.”

This court will presume that the officer executing this warrant acted strictly within the scope of his authority and within his jurisdiction, and that the defendant was found within the City of Chicago when arrested. People v. Michael, 189 Ill. App. 495, 500.

In the instant case the child was begotten and delivered outside of the State of Illinois and both of the parties were nonresidents at the time of the prosecution in question. The statute contains no express limitation of the kind insisted upon. This statute was enacted in the interest of the public, having, however, as its main purpose, to compel the father of a bastard child to bear part of the burden of its support. A nonresident female may prosecute the putative father in the courts of this State. Kolbe v. People, 85 Ill. 336; Mings v. People, 111 Ill. 98. The fact that the child was bom in New Mexico does not exempt the defendant from liability, as the burden of its support should be borne by the putative father and not by the public.

It is also urged that the judgment should be reversed because no guardian ad litem was appointed by the court. In such a case as this, the public has such an interest in the prosecution and the support of the child as to declare or treat the offense as a misdemeanor, and thus enforce the judgment by imprisonment until the order is complied with precisely as in cases of fines recovered for misdemeanors, or similar offenses against the public. Holcomb v. People, 79 Ill. 409, 416. This is a statutory proceeding. There is nothing in the statute or common law, in conformity with which criminal trials are had in this State, requiring a different procedure when the defendant is a minor from that in other cases. Courts will always be careful to protect the substantial rights of infants in criminal as well as civil cases, but guardians ad litem are not appointed for such defendants in criminal cases and the procedure is the same whether the defendants are infants or adults. Cutter v. People, 184 Ill. 395, 396. In the instant case, so far as the arrest and trial are concerned, the form is criminal, though the proceeding is in effect civil, and therefore it was neither necessary nor proper for the court to appoint a guardian ad litem for defendant. The defendant, who was nineteen years old at the time of the trial, did not deny that he was the father of the child.

The Municipal Court clearly had jurisdiction of the persons and the subject-matter, and no prejudicial error having been committed, the judgment of the Municipal Court will be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice McSurely

text:
    Ellen L. Norton, Defendant in Error, v. W. J. Peer, Plaintiff in Error.
    Gen. No. 20,771.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La Bay, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed.
    Opinion filed April 10, 1916.
    Statement of the Case.
    Action by Ellen L. Norton, plaintiff, against W. J. Peer, defendant, in forcible detainer to recover possession of a barn. From a judgment in favor of plaintiff, defendant brings error.
    Plaintiff was the owner of a lot on which was a residence, No. 4352 Calumet avenue, and a barn. For some years she had occupied the entire premises as her home. In January, 1914, she made a written lease to defendant of premises described therein as “House known as 4352 Calumet Ave.,” the term to commence May 1,1914, and expire April 30, 1916. Several weeks before the term began, defendant obtained from plaintiff permission to take immediate possession of the barn, and plaintiff removed her electric car therefrom and delivered the barn keys to defendant, who thereafter occupied it with his motor car. It also appeared that at the request of plaintiff’s agent the defendant paid an additional insurance premium which was required on account of the occupancy of the barn with a gasoline car. There were also provisions in the lease which indicated that all the buildings on the lot were included in the demised premises.
    Abstract of the Decision.
    Landlord and tenant, § 34

      —when lease of designated house construed as Including barn on premises. In an action of forcible detainer by a landlord against a tenant to recover possession of a barn, evidence held sufficient to establish that it was the understanding between lessor and lessee that the premises demised should include the entire lot with all the buildings thereon, the court taking the character of the neighborhood into consideration, and it appearing that the premises were described in the lease as a house known as a certain street number, that defendant obtained permission from plaintiff to take immediate possession of the barn thereon several days before the term began, that plaintiff removed her electric car from it, that defendant occupied it with his gasoline car, and that defendant paid an additional insurance premium required on account of the presence of a gasoline car in the barn.
    William Friedman, for plaintiff in error.

      No appearance for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Clara C. Hendrickson, Defendant in Error, v. Oscar R. Hendrickson, Plaintiff in Error.
    Gen. No. 21,455.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 10, 1916.
    Rehearing denied April 24, 1916.
    Statement of the Case.
    Action by Clara C. Hendrickson, plaintiff, against Oscar R. Hendrickson, defendant, on a judgment note signed by defendant. From a judgment for $334.08 on such note in favor of plaintiff, defendant brings error.
    The making of the note by defendant, who was plaintiff’s husband, and the delivery to her was not denied. Defendant contended that plaintiff was in ill health, and upon her saying “that she wanted something to protect her for her funeral expenses,” he gave the note to her “to pacify her.” On the other hand, plaintiff testified that the consideration for the. note was money which she had loaned to the defendant. Her testimony was that she received no allowance from her husband for personal expenses, and during their married life she had worked for a time in a laundry, had kept roomers, that she had received from a daughter payment for board and washing, and that she kept an account of her own moneys in the State Bank of Chicago; that it was from her own money thus accumulated that she made the advances to her husband, who borrowed the money for the purpose of buying a lot. It also appeared that when she was married she had something over $200 of her own. The husband, testifying, did not deny that he received this money from his wife, and the evidence showed that the amount of the note represented only a portion of the advances made by plaintiff to defendant.
    Abstract of the Decision.
    1. Husband and wm:, § 207

      —when evidence sufficient as basis ■for action by wife against husband on judgment note. In an action on judgment note by a wife against her husband alleged to have been given for advances, held under all the evidence that plaintiff was entitled to maintain her action.
    2. Husband and wm:, § 207*—when uñfe may sue husband on contract. Under Hurd’s Rev. St., ch. 68, secs. 1, 8 (J. & A. 6138, 6145), in force July 1, 1874, a husband or wife may sue the other on all contracts except for services rendered to each other.
    Albert H. Fry, for plaintiff in error.
    No appearance for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Lila McDermott et al., Heirs, Defendants in Error, v. Donald K. Hoops, Plaintiff in Error.
    Gen. No. 21,552.
    (Not to be reported in full.)
    Abstract of the Decision.
    I. Executors and administrators, § 124

      —when heirs of deceased lessor may bring action for rent. After the decease of lessor his real estate passes to her heirs and thereafter they are entitled to bring suit for the rent, and suit need not be brought by the administrator.
    2. Witnesses, § 1127*—when party may not testify as to transactions with deceased person against heirs. In an action for rent by the heirs of deceased lessor, where it is conceded by plaintiffs that if defendant were present he would testify to the poor condition of the heating apparatus in the house and to other matters set out in his affidavit of defense, under the statute on evidence and depositions, Hurd’s Rev. St., ch. 51, sec. 2 (J. & A. If 5519), held that he would not be permitted to testify to such facts occurring before the death of lessor.
    Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding. Heard in this court at the October term, 2915.
    Affirmed.
    Opinion filed April 10, 1916.
    Rehearing denied April 24, 1916.
    Statement of the Case.
    Action by Lila McDermott et al., heirs at law of Hannah M. Conroy, deceased, against Donald K. Hoops, defendant, for rent of premises under a written lease between deceased and defendant. From a judgment for two hundred dollars in favor of plaintiffs, defendant brings error.
    Thompson & Hubbard, for plaintiff in error.
    H. P. Tuchscherer, for defendants in error.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Anton Klaus et al., Defendants in Error, v. J. H. Flick Construction Company, Plaintiff in Error.
    Gen. No. 21,572.
    1. Fraud, § 115

      —when evidence sufficient to show fraud in procuring contract. In an action for wages by laborers, held under the evidence that contract interposed, as a defense was procured by fraud, it appearing that plaintiffs had been in this country only a short time, were ignorant of English, and that they had signed a contract which made them subcontractors, and which they thought was a receipt for rubber boots.
    2. Master and servant, § 65*—when servant may recover value of services. Where a contract of employment is invalid because it was obtained by fraud, the servant is entitled to recover the reasonable value of his labor.
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 10, 1916.
    Rehearing denied April 24, 1916.
    Eddy, Wetten & Pegler, for plaintiff in error; Jasper F. Rommel, of counsel.
    Charles P. Schwartz and H. J. Friedman, for defendants in error.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number,

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiffs, eight in number, brought suit for the value of their services as laborers while employed by defendant. Upon trial the jury returned a verdict against defendant for $325, upon which judgment was entered. Defendant seeks to have this judgment reversed. No briefs have been filed or arguments made in this court on behalf of plaintiffs.

The defendant is engaged in general railroad contracting. At the time in question it was engaged in grading the right of way of the Chicago, Milwaukee & St. Paul Railway Company in Wisconsin. Through an employment agency in Chicago plaintiffs were sent to the place of this work. Before commencing work these laborers were asked to sign a contract, which apparently was signed by each of them. This contract is now interposed as a defense. We have inspected the original contract as it appears in the record. It fills a page of legal cap and is typewritten in half space. There are also interlineations and insertions made with pen and ink in various places. It has been difficult for this court to understand parts of it, or even to read all of some of its provisions. In its general scheme it seems to be an attempt to fix upon each laborer the- character of a subcontractor, with conditions that he should receive no pay for his work until' the engineer of the Railway Company should in writing approve the work of all the so-called subcontractors. It also contemplates that from the laborers’ pay should be deducted rent of cars, track and tools, and these must be returned in as good condition as when furnished, and if not the laborers were to be charged for their full value. There is also a provision written with pen and ink which is not wholly legible, but it seems to obligate the laborers to assume the cost of constructing a camp and open roads, and other work done before they arrived at this place.

These laborers were born in foreign countries, most if not all in Bohemia. They had been in this country only a short time, and worked as hand laborers at track work. They were ignorant of English. Some of them testified that when the contract was presented they were told that it was a receipt for rubber boots which were given them. None of them understood what in fact they were signing.

From these facts, with other circumstances, the jury were at liberty to conclude that the signing of the contract was procured by fraud. From the verdict it is evident that the jury were of that opinion, and with this conclusion this court without hesitation is in accord. The mere statement of the facts impels to this conclusion. The contract, procured by fraud in fact, is invalid, and therefore falls from the case.

Objections are made to the rulings of the court upon the introduction of testimony and to the instructions to the jury, but errors in this respect, if any, are not of sufficient importance to require a reversal. Other points urged by counsel for defendant do not persuade us.

Plaintiffs were entitled to recover the reasonable value of their labor. The evidence justifies the amount returned by the verdict. The judgment is right and is affirmed.

Affirmed.


text:
    William F. Schuman, Plaintiff in Error, v. Chicago Railways Company, Defendant in Error.
    Gen. No. 21,652.
    (Not to fee reported in full.)
    Error to the Circuit Court of Cook county; the Hon. John A. Dowdall, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 10, 1916.
    Statement of the Case.
    Action by William F. Schuman, plaintiff, against Chicago Railways Company, defendant, on account of injuries sustained by Mm through the suddeu starting of one of defendant’s cars when he was alighting, whereby he was injured. From a judgment in favor of defendant, plaintiff brings error.

      Abstract of the Decision.
    1. Carriers, § 476

      —when evidence sufficient to sustain finding that street railroad not guilty of negligence in suddenly starting car. In an action by a street car passenger for damages for personal injuries alleged to be due to the starting of one of defendant’s cars while plaintiff was attempting to alight therefrom, evidence held sufficient to sustain a finding that defendant was not guilty of negligence, there being abundant evidence that the car made only one stop for plaintiff to alight and remained standing until some time after the accident occurred.
    2. Appeal and error, § 1241*—when party may not complain that instruction inapplicable to issues. A party to an action cannot complain that an instruction on contributory negligence, given at the request of the adverse party, is inapplicable to the issues on the ground that there is no negligence in the case, where the court gave another instruction on such subject at his request.
    G. M. Peters, for plaintiff in error.
    Charles L. Mahony and Frank L. Kriete, for defendant in error; W. W. Gurley and J. R. Guilliams, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Anna Kleinschrodt, Defendant in Error, v. John Hancock Mutual Life Insurance Company, Plaintiff in Error.
    Gen. No. 21,700.
    ' Insurance, — when provision of policy limiting the amount of total insurance recoverable on life of child valid. A provision in a life insurance policy limiting the right of recovery on all policies on the life of a child to a specified sum, presumably only enough to adequately cover expenses of the last illness and burial, held valid so as to prevent recovery on such a policy where the beneficiaries had already recovered on other policies a sum equal to the amount limited by the policy.
    Error to the Municipal Court of Chicago; the Hon. Arthur J. Gray, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and judgment here.
    Opinion filed April 10, 1916.
    Charles H. Burras, for plaintiff in error.
    Litzinger, McGurn & Reid, for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff was the beneficiary named in a policy for $125 issued by the defendant upon the life of Violet English, a child fifteen years of age. Plaintiff was no kin of the insured. Upon trial the court gave plaintiff judgment for $125.

This judgment cannot stand. The policy was issued May 8, 1912, and the insured died the following year. The policy contained a specific provision that the total amount of insurance on the life of the insured, issued upon the application of any other person than the insured, including this policy, and in all other companies and societies, should not under any circumstances exceed $520. In the “table of ages” the limit of insurance was placed at $520; and continuing said policy of insurance further provides:

“If other policies of insurance in this or other companies and societies are in force at the time of death, the amount payable under this policy shall not be greater than the excess of the amount specified in above table, under age at death, over the total amount payable under all other policies by whomsoever issued.
“Should the amount otherwise payable hereunder be reduced through operation of the preceding clause, the Company will refund a proportionate part of the premiums paid hereunder, and if for the same reason, there should be no amount payable hereunder the Company will refund the full amount of premiums paid.”

It was shown by the evidence that on October 16, 1911, the Prudential Insurance Company of America issued its policy of insurance on the life of said Violet English in the sum of $375, in which Anna Kleinschrodt, plaintiff herein, was named beneficiary, and that after the death of said insured the amount of this policy, namely $375, was paid to Anna Kleinschrodt, and that she is the same person who is claiming under the policy in the present case.

It was also shown that on December 13, 1911, this same defendant company, John Hancock Mutual Life Insurance Company, issued another policy on the life of Violet English for the sum of $336, and that said Anna Kleinschrodt was the beneficiary in said policy, although the beneficiary in that policy was subsequently changed to Helena Starr; that the John Hancock Mutual Life Insurance Company paid to Helena Starr upon its prior policy the sum of $145, so that there has been paid upon these two policies the total sum of $520, which is the limit of insurance permitted to be carried upon the insured’s life. Under the provisions of the instant policy no more insurance can be collected.

No good reason appears for not enforcing this provision to limit the amount of insurance; rather reason and judgment support a policy that tends to curb excessive insurance on the life of children. We discern no reason for such insurance to an amount more than is necessary for expenses during the last illness and for burial.

For the reasons above indicated we are of the opinion that there can be no recovery, and the judgment is reversed and judgment of nil capiat will be entered in this court.

Judgment reversed and judgment here.

      See Illinois Notes Digest, VolS. XI to XV, and Cumulative Quarterly, same topic and section number.


text:
    The People of the State of Illinois ex rel. Harry H. Hammerschleg, Defendant in Error, v. City of Chicago et al., Plaintiffs in Error.
    Gen. No. 21,795.
    (Not to he reported in full.)
    Error to the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 10, 1916.
    Statement of the Case.
    Petition for mandamus by the People of the State of Illinois on the relation of Harry H. Hammerschleg against the City of Chicago et al., respondénts. From a judgment in favor of relator, defendants bring error.
    Petitioner filed his amended petition for a writ of mandamus to compel the City of Chicago, the civil service commissioners, the fire marshal and the city comptroller to place his name on the roster of the fire department and upon the fire department pay roll of the City of Chicago as a pipeman, with the right to enter upon Ms duties as pipeman and receive the salary therefor as he had prior to Ms removal from the service on or about July 25, 1908. To this amended petition a general demurrer was filed and overruled. Respondents elected to stand by the demurrer, and judgment was rendered that a writ of mandamus issue.
    Abstract of the Decision.
    1. Mandamus, § 1

      —when will not lie. Mandamus will not issue unless the party applying for it shows a right which is clear and undeniable.
    2. Civil service, § 27*—when petition in mandamus to compel reinstatement of pipeman in fire department insufficient. A petition for mandamus for the reinstatement of petitioner in the office of pipeman in the fire department of the City of Chicago, which alleges the passage of a city ordinance creating such fire department and describes such ordinance in the petition as providing that the fire department shall include “such numbers of * * * pipemen * * * and employees as the city council may by ordinance provide,” is insufficient as such ordinance contemplates a further ordinance by the city establishing the number of pipemen in the fire department, and such latter ordinance should be pleaded.
    3. Civil service, — what does not constitute establishment of an office. The fact that the civil service commission establishes a classification of offices and places of employment does not establish the office itself.
    4. Civil service, § 27*—when petition of mandamus to compel reinstatement of pipeman in fire department insufficient. Where petitioner for mandamus for reinstatement to the office of pipeman in the Chicago fire department alleged his discharge by the chief of such department but failed to allege in what manner the chief did not comply with provisions of the civil service act and civil service rules, providing that original appointments shall be on probation for a period of six months, and that if any probationer, upon fair test, shall be found incompetent or unqualified to perform the duties of the position, the appointing officer shall so certify to the commission, and the head of the department may, with the consent of the commission, discharge him upon assigning in writing his reasons, held that the petition was insufficient.

      Samuel A. Ettelson, for plaintiffs in error; Roy S. Gaskill, of counsel.
    Fulton, Garey & Deutschman, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Matensz Ozech, Appellee, v. International Harvester Company of New Jersey, Appellant.
    Gen. No. 21,822.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 10, 1916.
    Rehearing denied April 24, 1916.
    Statement of the Case.
    Action by Matensz Ozech, plaintiff, against International Harvester Company of New Jersey, defendant, for damages caused by injuries sustained through an explosion in a small foundry connected with defendant’s plant. From a verdict and judgment for $1,250 in favor of plaintiff, defendant appeals.
    The cupola or furnace in the foundry was cylindrical in shape, four feet in diameter, resting on four legs which were about five feet high, standing on a concrete foundation. The upper part of the cupola extended through the roof. The bottom consisted of two semicircular steel doors which when closed were kept to place by two steel props; when closed the contents of the cupola were retained; when open the contents dropped out. The cupola was loaded with alternate layers of iron and coke from a second floor, which was called the charging platform, occasionally the iron in the cupola did not melt to the proper consistency. When this happened it was necessary to open the bottom doors and allow the mass to drop out; otherwise it would grow cold and solidify, and then could not be removed without destroying the cupola.
    Upon this occasion the iron was not sufficiently molten, 1 and the foreman concluded to empty the cupola. As the operation is attended with danger, he first ordered the laborers, including plaintiff, who was on the charging platform, to leave the building, and then directed a man, called the cupola tender, to open the bottom doors. This man, with a long rod, knocked out the props, the doors swung open, and the mass of iron in varying stages of liquefaction, with coke in various stages of combustion, dropped upon the foundation under the cupola. What is described as “a terrific explosion” ensued. Parts of the brick walls of the foundry were demolished and the building practically wrecked. Three men were killed. Plaintiff stated that upon receiving orders to leave the building he went from the charging platform by an elevator and had reached the ground floor and “was hardly able to take a step” when the explosion occurred. He was blown through the doors and underneath a freight car standing about fifteen feet from the building. Some witnesses placed plaintiff just outside the building at the instant of the explosion.
    Plaintiff alleged and introduced evidence tending to prove that the hot contents of the cupola fell into water or on a damp place present around the legs of the cupola, and witnesses testified that this contact of molten iron with water not in sufficient quantity to cover it would cause an explosion. Defendant ascribed the explosion to a rush of gas into a “pocket” formed by a partition and the floor of the charging platform, and the ignition of this gas by the hot metal and the flaming coke. Defendant argued that its explanation was established by the greater weight of the evidence. and therefore plaintiff’s allegations as laid in his declaration had failed of proof, and feenee he could not recover.
    The following instructions requested by defendant were refused:
    “You are further instructed by the court that if you believe from the evidence that the explosion in question was caused by gases formed within the furnace and liberated and ignited at the time the molten metal was dumped upon the ground, and not by reason of the molten metal coming in contact with the water in question, then the plaintiff cannot recover, for the reason that the plaintiff does not claim in his declaration the explosion to have been due to any other cause than the contact of the molten metal with the water. Before the plaintiff can recover he must prove the explosion to have occurred in the manner and for the reasons stated in his declaration and not in any other manner whatever.”
    “You are instructed by the court that before the plaintiff can recover in this case he must prove by a preponderance or greater weight of the evidence that he actually sustained the injuries and disabilities which he has claimed to have sustained, and that siich injuries were the direct and proximate result of an explosion caused by the molten metal from the furnace coming in contact with water alleged to have been on the ground under the furnace; and if you believe from the evidence that the accident or explosion was due to any other cause than said molten metal coming in contact with said water then the plaintiff cannot recover and your verdict must be for the defendant.”
    “You are instructed by the court that before the plaintiff can recover in this case he must prove by a preponderance or greater weight of the evidence that he actually sustained the injuries and disabilities which he has claimed to have sustained, and that such injuries were the direct and proximate result of an explosion caused by the molten metal from the furnace coming in contact with water alleg’ed to have been on the ground under the furnace; and if you believe from the evidence that the accident or explosion was due to any other cause than said molten metal coming in contact with said water then the plaintiff cannot recover and your verdict must be for the defendant.”
    Abstract of the Decision.
    1. Master and servant, § 702

      —when evidence sufficient to sustain finding in favor of servant as to cause of explosion in foundry. Where plaintiff in an action for damages for personal injuries claims that an explosion whereby he was injured in defendant’s foundry was caused by the fall of molten metal and coke in combustion from a cupola into water or a damp place under such cupola and defendant claimed that such explosion was not so caused but ascribed it to a rush of gas into a pocket formed by the floor of a charging platform and a partition and the ignition of such gas by the hot metal and flaming cóke, and it appeared that there was conflicting testimony as to the quantity and exact location of water on the ground around or under the cupola, and variant views of witnesses concerning, the respective causal theories of the explosion, evidence held sufficient to sustain a finding that plaintiff had proved his claim as to the cause of explosion.
    2. Master and servant, § 831*—when party bound by finding of jury on requested interrogatory. Where plaintiff alleged and introduced evidence to the effect that the injuries sustained by him in defendant’s foundry were caused by an explosion resulting from the dumping of a cupola containing molten metal and burning coke into water, and where on defendant’s request a special interrogatory was given to the jury whereby they were asked whether the explosion was so caused, to which the jury answered yes, defendant was conclusively bound by this finding, he having made no motion to set it aside, and there being no assignment of error in that regard.
    3. Damages, § 188*—when evidence sufficient to establish personal injuries to servant in foundry. In an action for damages for personal injuries to an employee in a foundry, evidence held sufficient to establish that plaintiff had suffered personal injuries, there being evidence that the explosion was of sufficient force to wreck the building, and medical testimony that plaintiff was suffering from a dilation of the heárt and an injury to the kidneys.

      David A. Orebaugh, for appellant; Edgar A. Bancroft, of counsel.
    S. P. Douthart and Fred C. Smith, for appellee; Louis H. Geiman, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, game topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

4. Damages, § 115 —when verdict for damages for personal injuries not excessive. Injuries sustained by a workman in a foundry explosion resulting from dumping of hot contents of a cupola into water, held to justify a verdict for $1,250, it appearing that considerable shock must have resulted inasmuch as he was only a few feet away from an explosion sufficiently violent to wreck a brick building, that there is testimony of physicians as to the presence of dilation of the heart and injury to the kidneys, even though plaintiff may have affected to be in more physical distress than is warranted by the facts.

5. Master and servant, § 833*—when refusal of instructions harmless error. The refusal to give instructions requested by defendant in an action by a foundry employee for injuries due to an explosion from molten metal striking water when dumped upon the ground, that the jury must find defendant not guilty if they found that molten metal fell into the water and irrespective of the negligent order which caused the cupola of metal to be dumped before plaintiff had time to get out of the building, held harmless error where the jury in answering special interrogatories asked by defendant found that the molten metal fell into the water and caused the explosion.

6. Appeal and error, § 1035*—when improper argument or conduct of counsel not considered on review. Alleged improper argument or conduct of counsel will not be considered in the court of review where defendant does not assign error on such ground.


text:
    John P. Kane, Appellee, v. Indiana Harbor Belt Railroad Company, Appellant.
    Gen. No. 21,869.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 10, 1916.
    Statement of the Case.
    Action by John P. Kane, Plaintiff, against Indiana Harbor Belt Railroad Company, defendant, on account of injuries sustained by plaintiff in a fall from a high platform which he alleged was caused by negligence of defendant in leaving crushed or slush ice on the platform, causing him to slip and fall. From a verdict and judgment for plaintiff, defendant appeals.
    The platform was about 760 feet long and 16 feet wide. It was a ‘' double-decker” with a sheet-iron or tin roof. The upper deck was about 21 feet from the ground. At each end was a cluster of lights, and under instructions these were lighted only when icing cars. Railroad tracks ran parallel to this platform on both sides. Crushed ice was prepared in the ice house, then brought over the platform to the cars and from the upper deck it was placed in cars carrying beef and poultry. One crew under a foreman did the work in daytime, and another crew at nighttime. Orders were given to each crew when the work was finished to clean up all spilled or loose ice. Instructions from the foreman were that whenever there was any slush ice or solid ice spilled on the platform it must be immediately picked up, placed in a full car that might be standing along there; that if there was no full car standing there to throw it into one empty; that if there was no empty car there to shovel it off on the ground, and not to allow it to lay on the platform. In February, 1912, when the accident occurred, plaintiff did clerical work around the ice house, assisted the watchman and assisted the night crew in icing cars. Upon the night of the accident no cars were iced. Plaintiff was assisting the watchman, and in the performance of this duty he walked over the top platform at least three times during the night to pull the night watchman’s clock and at these times he walked along the south side of the platform. On the next trip, which was his last, he walked along the north side, and stepped into slush or crushed ice which had been left there by the day crew. He did not know it was there and on account of the darkness did not see it. It caused him to slip and he fell off the platform down to the railroad track, receiving severe injuries. Only once during the seven years he had worked there had he observed any slush ice left on the platform by the other crew; the instructions to remove this ice had been followed with only one exception for many years.
    Abstract of the Decision.
    1. Master and servant, § 682

      —when evidence sufficient to sustain finding that servant was employed about an ice house and platform used in icing cars. In an action against a railroad company for injuries received by. an assistant watchman as a result of slipping on loose ice on a platform used in loading ice in refrigerator cars, held that the jury could reasonably believe that plaintiff was employed in and about an ice house and icing platform used for icing cars.
    Glennon, Cary, Walker & Howe, for appellant; Sidney C. Murray, of counsel.
    Stedman & Soelke, for appellee.

      See Illinois Notes Digest, Yols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Master and servant, § 689*—when evidence sufficient to sustain finding that presence of ice on platform, used in icing cars unusual. In an action against a railroad company by an assistant watchman who was injured while on a tour of inspection at night as a result of slipping on loose ice on a long and high unlighted platform used in icing refrigerator cars, evidence held sufficient to sustain a finding that the presence of ice on the platform was an unusual and extraordinary occurrence.

3. Master and servant, § 333*—when assistant railroad watchman does not assume risk of injury from ice on platform used in icing cars. An assistant railroad watchman who is making a tour of inspection at night, and in the course of his duties, passes over a high, unlighted platform used in icing refrigerator cars, does not assume the risk incident to the presence of crushed ice at such time, it appearing that such presence of ice is unusual and extraordinary.