author: Mr. Justice Gridley

text:
    Herbert M. Sears, Trustee, Appellee, v. John C. Curtis, Appellant.
    Gen. No. 19,902.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. J. E. Hillskotter, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed November 10, 1914.
    Statement of the Case.
    Motion by John O. Curtis to have a judgment by confession against him in favor of Herbert M. Sears, trustee, opened up and to allow him to plead. From an order denying the motion, Curtis appeals.
    The motion was supported by the affidavit of defendant, a resident of the city-of Chicago. The affidavit, however, was subscribed and sworn to before Eben Lesh, a notary public in and for Huntington county, Indiana, and his signature and official seal were affixed to the document. Also attached thereto were the respective certificates of the clerk and judge of the Huntington Circuit Court to the effect that said Eben Lesh was a notary public duly qualified and authorized under the laws of the State of Indiana to act as such in said Huntington county. The notary did not himself certify that he was authorized to administer oaths in said Huntington county.
    From the lease, which was filed with the narr and cognovit, it appeared that the same was executed on April 15, 1912, and by its terms plaintiff leased the premises to defendant for the term of three years, from May 1, 1912, to April 30, 1915, and defendant covenanted to pay plaintiff, as monthly rent, the sum of one hundred and forty dollars until April 30, 1914, and one hundred and fifty dollars per month thereafter, payable in advance on the first day of every calendar month during said term, and that he would not assign the lease, or let or underlet the premises, without the written consent of the lessor. The lease contained a clause whereby the defendant authorized any attorney of any court or record, on default of any of the covenants of the lease, to confess judgment from time to time in any actions brought by the lessor for any rent which might be then due by the terms of the lease, including thirty dollars attorney’s fees in each ease. On the back of the lease as filed was an indorsement, under the hand and seal of defendant, to the effect that the defendant, as lessee, assigned all his right and interest in and to the lease, from and after May 1, 1913, “unto The Curtis Company, "John C. Curtis, Trustee,” and that in consideration of the consent to this assignment by the lessor he guarantied the performance by said assignee of all the covenants on the part of the lessee mentioned in said lease. There was also an indorsement of the assignee, dated April 19, 1912, to the effect that said assignee assumed and agreed to make all payments from and after May 1, 1912, and to perform all the covenants and conditions of the lease by said lessee to be made and performed. There was also a third indorsement of the same date, signed and sealed by the plaintiff, as lessor, to the effect that he consented to the assignment of the lease to said assignee, “on the express condition, however, that the assignor shall remain liable for the prompt payment of the rent and performance of the covenants on the part of the lessee as therein mentioned, and that no further assignment of said lease or subletting of the premises * * * shall be made without my written consent first had thereto.” ■
    In the affidavit of the defendant, filed in support of his motion that the judgment be opened, etc., it was stated, in substance, that said Curtis. Company was and is a copartnership; that' the company paid all rentals accruing under said lease up to August 1, 1912, that on or about that date the company informed plaintiff that they had abandoned the premises and desired to have the lease cancelled; that plaintiff promised and agreed through said agents and representatives “to do all that could be done to. re-rent said rooms and space”; that said company and affiant relied upon said promise and ceased to use said rooms in order that the same might be so relet; that in violation of said agreement plaintiff made no attempt to relet the premises but permitted the same to remain vacant until the fore part of the month of January, 1913, stating then for the first time that he would not show said rooms while there remained other unrented space in said building; that said rooms were desirable ones and could have been easily rented, and that the company would have been able to let or sublet the rooms had they been allowed so to do, and the loss to them would have been comparatively small; that at the times of the execution of said lease and the assignment of the same, affiant was the trustee and agent of said company; that it was agreed by and between plaintiff, affiant and said company that there should be no liability under said lease except against the trust funds of said company in the hands of affiant, as trustee; that pursuant to said agreement a rider was prepared by plaintiff’s agents and representatives and attached to and made a part of said lease, said rider being made a part of the copy of said lease which was delivered to affiant, but which said rider is not attached to the copy of the lease filed with said narr and cognovit, the same having been detached therefrom; that the word “trustee” used in said rider referred to this affiant as trustee for said Curtis Company; and that said rider so attached to said lease is as follows: “All persons or corporations extending credit to, contracting with or having any claim against the trustee shall look only to the funds and property of the trust for payment under such contract or claim, or for the payment of any debt, damages, judgment or decree, or for any money that may otherwise become due or payable to them from the trustee, so that neither the trustee nor the shareholders, present or future, shall be personally liable therefor.”
    Abstract of the Decision.
    1. Judgment, § 56

      —when affidavit sufficient to require confessed judgment to he opened. On motion to open a judgment by confession entered against a lessee on a warrant of attorney contained in a lease for rent due after the lessee’s assignee of the lease had abandoned the premises, an affidavit in support of the motion which stated facts tending to show that the lessor made no effort to lessen the damages by rerenting the premises, and also stated other facts tending to show that defendant was not individually liable, held to make a showing sufficient to require the court to open the judgment.
    2. Landlord and tenant, § 284

      —duty of lessor to rerent premises. Where leased premises are abandoned before the expiration of the term, it is the duty of the lessor to exercise due diligence in rerenting the premises and thereby lessen the damages.

      Fred A. Dolph, F. L. Salisbury and William H. Gallagher, for appellant.
    Henry M. Hagan, 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 Gridley

delivered the opinion of the court.

3. Affidavits, § 5 —when defects in certificate of notary waived. Where an affidavit in support of a motion to open a judgment by confession was made before a notary public in a certain county in another State, held that the fact that the notary did not certify that he was authorized to administer oaths in said county could not be urged -on appeal where the point was not raised in the court below and both parties and the court treated the affidavit as valid.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois ex rel. Natale D. Angelica, Appellee, v. Carter H. Harrison et al., Appellants.
    Gen. No. 19,915.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed November 10, 1914.
    Rehearing denied November 24, 1914.
    Statement of the Case.
    Petition by the People of the State of Illinois ex rel. Natale D. Angelica for a writ of mandamus, directed to Carter H. Harrison, as mayor of the city of Chicago, Francis D. Connery, as city clerk, and Edward Cohen, as city collector, and to the city of Chicago, a municipal corporation, directing and commanding them to issue to petitioner a license to conduct a dramshop upon the premises known as No. 113 East 25th street, in said city, for a period of six months beginning May 1, 1913. The defendants filed an answer and a hearing was had, and on April 30, 1913, the court adjudged that the writ issue forthwith as prayed. From the judgment, the defendants prayed and perfected this appeal.
    Abstract of the Decision.
    Intoxicating liquors, § 30

      —when issuance of license cannot he compelled hy mandamus. Action of the mayor of a city in refusing to issue a dramshop license on the ground that the proposed location of the dramshop was in a residential neighborhood, held not such an abuse of discretion on the part of the mayor as to warrant the issuance of a writ of mandamus to compel him to issue the same, it appearing that the buildings in the immediate neighborhood were chiefly used for residential purposes and that the mayor in refusing the license was actuated by the conviction that the best interest of the people in the particular neighborhood demanded that the license be denied.
    It was admitted that certain ordinances set forth in the petition were and had been for some years past-in full force. and effect in said city, and were all of the ordinances which applied to and governed the issuance of dramshop licenses. Said ordinances provided, inter alia, that “the mayor shall grant a license for the keeping of a saloon or dramshop within the city to any person who shall apply to him in writing therefor, and who shall furnish satisfactory evidence of good character.”
    William H. Sexton, for appellants; Joseph F. Grossman, and John E. Foster, of counsel.
    L. H. Craig, for appellee; Gustav H. Wischman, of counsel.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Olaf Egeland et al., Appellees, v. Christian Scheffler and Louise Scheffler, Appellants.
    Gen. No. 19,925.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 10, 1914.
    Statement of the Case.
    Olaf Egeland complainant, filed a bill in equity to foreclose a trust deed given to secure a note of which he was the holder, against Christian Scheffler and Louise Scheffler, Gustaf Gustaffson, as trustee and A. V. Rakowski, as successor in trust. The bill was subsequently dismissed as to the trustee and successor in trust, and they were made additional parties complainant to the bill. Christian Scheffler and Louise Scheffler filed a cross-bill.
    The following statement of facts is adopted from the statement of the case by the court:
    The defendants, Christian Scheffler and Louise Scheffler, wife of Christian, owned a farm in the State of Michigan. Being desirous of exchanging this farm, which was unincumbered, for Chicago property, they acquainted Gustaf Gustaffson of Chicago of their desire by letter. Thereafter Gustaffson met A. V. Rakowski, also of Chicago. Rakowski said he knew of a certain party, Martin Janea, who might exchange his Chicago property for the farm but that he would have to make a trip to Michigan'and examine the farm. It was thereupon agreed between Rakowski and Gustaffson that they would both go to Michigan and see the Schefflers and examine the farm, that Rakowski would act as broker for Janea and Gustaffson as broker for the Schefflers, and that if an exchange of the properties was consummated they would divide equally all commissions received from their respective clients. At their interview with the Schefflers in Michigan it was agreed that Johanna Scheffler, a daughter of the Schefflers, should go to Chicago and examine for them the Janea property, that the farm should be valued at $4500, that if the exchange was made Grustaffson was to get a commission of five per cent, on that amount, or $225, but that, as the Schefflers did not have much ready money, they would pay $50 in cash and the balance, $175, in monthly instalments of $25 until paid. Shortly after this interview, about March 23, 1912, Johanna Scheffler went to Chicago, viewed the Janea property, and employed an attorney, named Krumseig, to examine the title and represent the Schefflers in the transaction. It was found that the Janea property was incumbered by two trust deeds, one in favor of a certain building association and the other in favor of another party for the sum of $600. Johanna Scheffler testified that Rakowski represented to her that the amount of the two incumbrances was about $2,000. Rakowski denied making such a representation-to her or to the Schefflers, and testified that he did not know the exact amount of the debt due to the building association and that he told Miss Scheffler to obtain a statement thereof from said association. It appears that she went several times to the office of the association for such statement, but, as she did not have a certain book, it was refused her. Whether afterwards, and before the consummation of the exchange of properties, she was advised of the amount due said association does not appear, but it does appear that at the time the deeds were passed, the attorney, Krumseig, had in his possession a book of said association regarding said indebtedness. The deeds were passed in the office of Mr. Mack, attorney for Janea, in Chicago, about April 29, 1912. The Schefflers paid Janea $100 and delivered to him their warranty deed conveying the Michigan farm, and Janca and wife delivered to the Schefflers their warranty deed of the Chicago property in question. It was stated in the latter deed that said conveyance was made “subject to án incumbrance secured by trust deed recorded * * * as doc. No. 4330742” (the amount of-the incumbrance was not stated), and “also subject to an incumbrance of $600 secured by trust deed recorded * * * as doc. No. 4343953.” Christian and Louise Scheffler also paid Bakowski the sum of $50, commissions on account, and they signed a judgment note payable to the order of “A. V. Bakowski and Gfustaf Gustaffson” for the sum of $175, payable $25 on the first day of June, 1912, and $25 on the first day of each month thereafter, with interest at six per cent, per annum, payable. monthly on the whole amount of said principal sum remaining from time to time unpaid. The note provided that if any instalment, either of principal or interest, should remain unpaid for thirty days after due, the principal sum or any unpaid balance thereof should, at the option of the legal holder, become immediately due and payable. It was stated in the note that the same was secured by trust deed on real estate in Cook county, Gustaf Gustaffson, trustee. On the same day the Schefflers executed and delivered their trust deed on the property in question to said trustee securing said note. Bakowski was named therein as successor in trust. The trust deed contained the usual covenants and provided for the recovery of a reasonable solicitor’s fee in case of foreclosure proceedings. The said judgment note, as introduced in evidence, bore the following indorsement: “Chicago, May 29, 1912. For one dollar and other good and valuable considerations, the receipt of which we hereby acknowledge, we transfer, assign and set over the within note to Olaf Egeland, and guarantee the payment of same. (Signed) A. V. Rakowski. Gustaf Gustaffson.” Neither the instalment of $25, due June 1, 1912, nor that due July 1,1912, having been paid, Egeland elected to declare the entire principal sum due and payable and, on July 8, 1912, filed his bill to foreclose said trust deed, in the usual form, making Christian and Louise Scheffler, Gustaffson, as trustee, and Rakowski, as successor in trust, parties defendant.
    Abstract of the Decision.
    1. Fraud, § 115

      —where evidence is insufficient to establish. The evidence is held to fail to establish false representations alleged to have been made by a broker as to the amount an incumbrance on certain property such as to defeat foreclosure of a mortgage executed to secure a note given in payment of commissions.
    2. Brokers, § 91

      —what constitutes fraud on the part of a broker. Where it is not shown that a broker knew that his representations were false as to the amount of a trust deed or that the purchasers and makers of a note relied upon them, recovery cannot be defeated in the foreclosure of a trust deed to secure a note given as the broker’s commission.
    3. Appeal and error, § 973

      —what essential to preserve ordinance for review. In order to make available on appeal a city ordinance, making it unlawful for a person to act in the capacity of a broker in the city without a license, it should be introduced in evidence, as the Appellate Court will not take judicial notice of city ordinances.

      The court sustained the amended bill and dismissed the cross-bill of defendants Christian Scheffler and Louise Scheffler, for want of equity, and adjudged that unless said defendants pay to Olaf Egeland within two days the sum of $282.83, with interest from February 3, 1913, together with a solicitor’s fee of $100 and costs of suit, and the master’s fees taxed at $75, the premises in question should be sold. From this decree in favor of the complainant, defendants appeal.
    Alphonse Lefkow, for appellants.
    Levisohn & Levisohn, for appellees.

      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 Gridley

delivered the opinion of the court.

4. Brokers, § 12 —when contracts of unlicensed brokers not invalid. Where a contract for the payment of a commission for the exchange of real estate is made in another State (Michigan), a city ordinance making it unlawful for a person to act in the capacity of a broker in a city within the State (Illinois) has no application such as to render the contract invalid.

5. Bills and notes, § 240 —what constitutes a bona fide purchaser. In a suit to foreclose a trust deed executed to secure a note given in payment for procuring the exchange of real estate, the evidence is held to show that complainant took the note, after inquiry, without notice of any defenses.

6. Brokers, § 62 —when agreement to divide commissions not invalid. In a suit to foreclose a trust deed executed to secure a note given in payment of the brokers’ commissions, the evidence is held to show that the makers knew of the agreement between the brokers to pool or divide commissions received from their respective customers.


text:
    Avery Scale Company, Appellee, v. Gottfried Brewing Company, Appellant.
    Gen. No. 19,937.
    (Not to be reported in full.)
    Appeal from the Municipal,Court of Chicago; the Hon. John R Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed November 10, 1914.
    Statement of the Case.
    The Avery Scale Company, a corporation, brought action in the Municipal Court of Chicago against Gottfried Brewing Company, a corporation, to recover the contract price of an automatic coal scale, a water scale and a grain scale and other merchandise. The scales were guaranteed to work accurately and to keep, an accurate and complete record of the weight of the specified materials passed through them when set up and operated according to printed instructions.
    The principal error assigned was that the finding in favor of the plaintiff for $1,791 was against the weight of the evidence, which was reviewed by the court as follows:
    Plaintiff’s Wisconsin attorney, Mr. Louis G. Boehmrich, was plaintiff’s main witness. He also acted as plaintiff’s attorney upon the trial and examined and cross-examined certain witnesses. He testified that in May, 1912, at the request of plaintiff, he called on Mr. Carl M. Gottfried, secretary and superintendent of defendant, at defendant’s plant in Chicago, and also interviewed defendant’s engineer; that he presented a bill of plaintiff’s account against defendant for the three scales and the merchandise and demanded payment of Mr. .Gottfried; that the latter said that" he had no objection to the amount of the bill, and that both Mr. Gottfried and the engineer said that the coal scale was all right. Mr. Gottfried and the engineer denied making any such statements. * * *
    On behalf of the defendant Mr. Gottfried testified, in substance, that the coal and water scales, from the time they were first installed never worked properly or as guarantied; that various representatives of plaintiff came to defendant’s plant in the endeavor to make them work, but without success; that said scales are of no value; that right after the Christmas holidays in 1911 (which was within forty-five days after said scales had been received), he told a representative of the plaintiff that said scales had proven unsatisfactory and that they had better be removed if they could not be made to work properly; that subsequent to this conversation plaintiff sent various men to defendant’s plant in the endeavor to make said scales work properly, but without success; that in August, 1912, Mr. Boehmrich made a second call on the witness; that it was then agreed that a further test of said scales should be made at a time to be fixed by plaintiff, but that no time for such test was ever fixed by plaintiff, and that subsequently plaintiff commenced the present suit. The testimony of other witnesses for defendant tended to show that the coal scale could never be made to operate but a few hours without a breakdown; that it would not weigh mine run coal or weigh the ashes that came from the grate, and that it was not as accurate as guarantied and was of no value. The testimony of some of defendant’s witnesses also tended to show that the water scales frequently failed to work, that it would not weigh water at a temperature of 220 degrees F., that the valves would not hold tight, that the machine was overrated, that it did not work properly or as accurately as guarantied, and that it was of no value. The testimony of Mr. Gottfried and other of defendant’s witnesses tended to show that the grain scale would not weigh 1,500 bushels per hour, was not as accurate as guarantied, and was of no value to defendant.
    Abstract of the Decision.
    1. Sales, § 271

      —when evidence shows breach of warranty as to working of scales. In an action to recover the contract price of scales and other merchandise, where the weight of the evidence showed that the scales failed to fulfil guaranties as contained in certain written contracts, and that they did not work properly, and that demands were made upon the plaintiff to put them in proper condition and that plaintiff tried to do so but failed and the scales were inaccurate and without value, the evidence was held insufficient to sustain a finding for the plaintiff.

      From a judgment in favor of the plaintiff for $1,791, defendant appeals.
    Miller, Gorham & Wales and Mark R. Sherman, for appellant.
    John S. Hummer, for appellee; James E. McGrath, of counsel.

      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 Gridley

delivered the opinion of the court.

2. Witnesses, § 316 —weight to he given to testimony of attorney in case. Little weight should be given to the testimony of 'a witness who is also the acting attorney for one of the litigants.

3. Appeal and error, § 461 —when a finding is against the weight of the evidence. Where the testimony is conflicting and the evidence of plaintiff is sufficient, when considered alone, to sustain a finding of the trial court in. plaintiff’s favor, the Appellate Court is not bound by such finding, if the same appears to be against the weight of all the evidence.


text:
    Samuel Gruenberger, Appellee, v. Chicago City Railway Company et al., on appeal of Chicago Railways Company, Appellant.
    Gen. No. 19,951.
    (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 October term, 1913.
    Reversed and remanded.
    Opinion filed November 10, 1914.
    Statement of the Case.
    Action by Samuel Gruenberger against the Chicago City Railway Company (hereinafter referred to as City Railway Co.) .and the Chicago Railways Company (hereinafter referred to as Railways Co.) to recover damages for personal injuries. In his second amended declaration, which consisted of one count, plaintiff alleged, in substance, that on November 21, 1910, the City Railway Co. was possessed of and was operating an eastbound electric street' car on 22nd street, Chicago; that plaintiff was a.passenger on said car ;-that certain servants of the City Railway Co. were driving said car in an easterly direction on 22nd street, at or near the intersection of that street with Western avenue; that the Railways Co. was possessed of and was operating another electric street car, running northward on said Western avenue under the management of its servants; that while plaintiff with all due care was riding as such passenger on said eastbound car, the Railways Co. by its servants so carelessly and improperly drove and managed said northbound car, and the City Railway Co. by its servants so carelessly and improperly drove and managed said eastbound car, that, through the negligence of said defendants by their said servants, the said northbound car struck the said eastbound car with great force and violence and plaintiff was thereby thrown from the south side seats of. said eastbound car to the north side seats thereof; and that plaintiff was thereby severely and permanently" injured. To this declaration each defendant filed a plea of the general issue.
    Beyond the proof that a collision occurred there was no testimony in respect to the management and operation of the car of the Chicago Railways Company, at and just prior to the collision. The jury by their verdict found the Chicago Railways Company guilty, but made no finding as to the Chicago City Railway Company. From a judgment for twenty-five hundred dollars entered on the verdict in favor of the plaintiff, the defendant, the Chicago Railways Company, appeals.
    Watson J. Ferry, for appellant; Leonard A. Busby, Warner H. Robinson and Franklin B. Hussey, of counsel.
    Sabath, Levinson & Stafford, for appellee.

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

   Mr. Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1106 —what constitutes an appealable interest. Statement of counsel held not to be sufficient to justify a dismissal on the ground that the codefendant has no interest in the appeal.

2. Carriers, § 482 —when instruction erroneous. In an action for personal injuries sustained while a passenger on a street car operated by one company, through a collision with a car operated by a codefendant company, against the latter of which the jury alone returned a verdict, an instruction tending to give the jury the impression that proof by the plaintiff of the fact of the collision, and that he was guilty of no negligence, made out a prima facie case of negligence on the part of the codefendant company, which it was bound to overcome by competent evidence showing that the accident happened without its negligence, is held erroneous as to such codefendant.

3. Carriers, § 476 —what does not constitute an admission of negligence. A statement of counsel that one of two companies operating street cars assumed the defense of the case because its passenger was injured through a collision, and that he desired the jury to fix the liability, if any, as to which company, does not amount to an admission of negligence.


text:
    John F. Devine, Administrator, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 19,984.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook County; the Hon. Harry M. Waggoner, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed November 10, 1914.
    Statement of the Case.
    John F. Devine, suing as administrator of the estate of Theodore Wallerstedt, deceased, brought an action against the Chicago Railways Company, a corporation, for recovery for the wrongful death of a boy of tender years. Plaintiff’s intestate, Theodore Wallerstedt, a little boy, was struck by a northbound California avenue car, owned and operated by the defendant, Chicago Railways Company, about twenty feet north of the north cross walk of Augusta street, on March 23, 1911, about three o ’clock in the afternoon of that day. The deceased had been standing at the east curb of California avenue, north of said cross walk, with two other little boys. The view of the approaching car was unobstructed. He advanced from the curb towards the east track, on which the northbound cars ran, and when about at the east rail of said track he was struck by said car and carried under the front trucks and killed.
    Plaintiff’s declaration consisted of three counts. The first count averred, in substance, that on said day plaintiff’s intestate was a pedestrian on said California avenue, at or near its intersection with Augusta street, public highways in the city of Chicago, that. while plaintiff’s intestate was in the exercise of ordinary care for his own safety the defendant then and there caused one of its motor or electric cars to be so carelessly and negligently driven, propelled and managed that said car ran into and struck plaintiff’s intestate, causing his death, and that he left him surviving certain heirs (naming them) who have sustained and will sustain great pecuniary loss by reason of his death. The second count was substantially the same as the first, except that the negligence charged was that defendant drove said car at a high and excessive rate of speed. The third count was also substantially the same as the first, except that the negligence charged was that defendant caused no bell or warning of any kind to be rung or sounded. To this declaration the defendant filed a plea of the general issue.
    The following instruction was given by the court at the request of the plaintiff:
    “3. The court further instructs the jury that, if they believe from the evidence, that plaintiff’s intestate, at the time of the accident, was a child between the age of six and seven years, then he could not, because of his tender years, be guilty of, or be charged with carelessness or negligence in respect to the accident in this case, so as to relieve at all any want of due care on the part of the defendant company, so that, if the jury further believe, from the evidence, that the accident, causing the death of plaintiff’s intestate, was due to the want of due and ordinary care by the defendant company, or its servants, as charged in the declaration or some count thereof, then you should find a verdict for the plaintiff, and no want of care by the plaintiff’s intestate will save the defendant from the liability for the accident.”
    Abstract of the Decision.
    1. Negligence, § 96

      —when a child cannot he charged with contributory negligence. A child under seven years of age is deemed incapable of exercising care, and contributory negligence .cannot be imputed to him.
    2. Negligence, § 218

      —when instruction erroneous as assuming

      facts. Where there is no evidence that plaintiff's intestate was “between the age of six and seven years,” or under seven years of age, an instruction assuming that such a fact exists is misleading and erroneous.

      A trial was had before a jury. There was no evidence that the deceased was under seven years of age, and he was referred to by several witnesses merely as a ‘' little boy. ’ ’ The trial resulted in a verdict finding the defendant guilty and assessing plaintiff’s damages at three thousand dollars. A judgment was entered upon the verdict in favor of the plaintiff and defendant appeals from that judgment.
    Philip Rosenthal and Alfred B. Davis, for appellant; John R. Guilliams and Frank L. Kriete, of counsel.
    T. Fred Laramie, for appellee; Andrew J. O’Donnell, of counsel.

      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 Gridley

delivered the opinion of the court.

3. Negligence, § 208 —when instruction erroneous as omitting element of due care. Where several instructions directed a verdict for the plaintiff if the jury found the facts as therein severally stated, but each instruction omitted entirely the element of the exercise of ordinary care by the deceased for his own safety, the instructions were erroneous and the error could not be cured by other instructions.

4. Instructions, § 119 —when instruction erroneous as not based on evidence. An instruction that submits it to the jury to find if a certain fact exists virtually tells them that there is evidence tending to prove such fact, and if there is no evidence tending to prove it the instruction is calculated to mislead the jury and is erroneous.


author: Mr. Justice Smith

text:
    James Arthur Doyle, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 19,810.
    (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 October term, 1913.
    Reversed and remanded.
    Opinion filed November 10, 1914.
    Statement of the Case.
    Action by James Arthur Doyle, a minor, by his next friend, against Chicago City Railway Co. for personal injuries sustained by plaintiff by being struck by one of defendant’s street cars. Plaintiff recovered a judgment against defendant for four thousand dollars and costs. To reverse the judgment, defendant appeals.
    Defendant urged as ground for reversal that the verdict was against the weight of the evidence and excessive and that the court erred in giving for plaintiff the following instruction:
    “The court instructs you that you are the judges of the credibility of the various witnesses who have testified in the case and of the weight you will give to the testimony of each. In doing this you may take into consideration the interest such witnesses may have in the result of the suit, if any; the relation of the witnesses testifying for either the plaintiff or defendant in that suit; any motive or inducement that may appear from the evidence in the case, if any does appear, that may influence such witness to testify falsely; the opportunities of the several witnesses for knowing the things about which they testify; the reasonableness or unreasonableness of the story told; its probability or improbability; its corroboration or want of corroboration by other credible testimony in the case; the appearance and demeanor of the witnesses while testifying; and from these and from all the facts and circumstances shown by the evidence in the case you are to decide how much weight you will give to the testimony of each witness who has testified in the case. The jury in determining the preponderance of the evidence as to a disputed point in the case are not to determine it alone by the number of witnesses testifying upon the one side or the other of such point, but are also to consider the credibility of the witnesses under the rule laid down above.”
    Defendant’s objection to the instruction was that the plaintiff’s case rested very .largely upon his own testimony; that as to the most material of the disputed points, his testimony was contradicted by his two and defendant’s witnesses, and that more witnesses testified for defendant than for the plaintiff, and that when an instruction attempts to define, preponderance of the evidence and then gives an enumeration of matters proper to be considered by the jury but omits the number of witnesses testifying for and against, it is reversible error.
    Abstract of the Decision.
    Instructions, § 89*—when instruction as to preponderance of evidence prejudicial. The giving of an instruction with reference to determination of the preponderance of the evidence as to a disputed point in the case, which gave an enumeration of matters proper to be considered but omitted the element of the number of witnesses testifying for or against, held reversible error.
    Watson J. Ferry, for appellant; Leonard A. Busby, Warner H. Robinson and Franklin B. Hussey, of counsel.
    Darrow & Baily, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.


text:
    Matilda Moses, Appellee, v. Illinois Commercial Men’s Association, Appellant.
    Gen. No. 19,832.
    1. Insurance, § 895a

      —admissibility of evidenced In an action on a benefit certificate for insurance where the issue was whether the member committed suicide, the testimony of the beneficiary to the effect that she had seen the insured clean his revolver on several occasions prior to his death and that the conditions under which he cleaned it were similar to those existing at the time he was found dead, held material to the issue and properly admissible.
    2. Insurance, § 747

      —when amended by-law of benefit association becomes part of contract. Where the terms of the policy and the application therefor make the provisions of the by-laws then in force and the provisions of all subsequent amendments, alterations and new issues of the by-laws a part of the contract of insurance, such amendments, if reasonable and valid, become a part of the contract.
    3. Insurance, § 747

      —when amendment to by-law of benefit association reasonable. An amendment to a by-law of a benefit association that the association shall not be liable for disability or death of a member resulting from the discharge of firearms, when there is no witness to the discharge of such firearms except the member himself, held to be reasonable and valid and to become a part of the contract of insurance.
    4. Insurance, § 612a

      —burden of proof. In an action on a benefit certificate to recover insurance, the burden of proof rests upon the plaintiff to establish that the assured met an accidental death under conditions imposing liability expressed in the terms of the contract of insurance, notwithstanding the pleas of the defendant of the general issue, setting up suicide and the evidence in support thereof.
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed November 10, 1914.
    Rehearing denied November 24, 1914.
    Statement by the Court. Matilda Moses, appellee, commenced this action to recover on a policy of insurance issued by appellant to Walter Moses, her son, November 6, 1906. The amended declaration avers that Walter Moses became a member of said defendant Association on that date, and it issued to him a policy of insurance which, among other things, provided that there should be payable to Matilda Moses, the plaintiff, mother of Walter Moses, in case of the accidental death of Walter Moses, the sum of $5,000. The policy provided that in case of the death of Walter Moses as the result of bodily injuries received through violent external and accidental means, that sum should be paid to Matilda Moses within ninety days after receipt of proof of the death of Walter Moses; and it further avers that Walter Moses was a member in good standing when he received bodily' injuries through external, violent and accidental means, which, independently of all other causes, resulted in his death on January 9, 1910, and that by reason thereof the plaintiff became entitled to the sum of $5,000, and alleges that proof of the death was furnished the board of directors of the appellant.
    The defendant pleaded the general issue and special pleas setting up the application and by-laws of the Association. The second plea avers the signing and filing with the defendant of a certain application for membership in the defendant Association which said application was made a part of the contract of insurance and contained the following declaration, stating among other things:
    “I do warrant the above statement to be true, and I hereby agree that I will comply with the requirements of the by-laws, and that this declaration shall be the basis of membership between myself and the said Association. I agree that the said Association shall not be liable under its certificate of membership for any injury which may happen to me while under the influence of intoxicating liquors or narcotics, or in consequence thereof, nor for intentional injuries inflicted by myself. * * * ”
    The plea then alleges that the death of Walter Moses was caused by intentional injuries inflicted by himself on himself.
    In its third plea the defendant avers that at the time of the alleged accidental death of said Walter Moses and prior thereto there were in full force and effect and binding upon the said Walter Moses during his lifetime and at the time of the alleged accidental death, and binding upon the plaintiff in this suit, certain by-laws of the Illinois Commercial Men’s Association, the defendant, part of which by-laws is in words and figures as follows, to wit:
    “Article VII, Section 8. This association shall not be liable to any person for any indemnity or benefit for injuries, or death, * * * or injury inflicted by the insured on himself while sane or insane; * * * and this association shall not be liable to any person on account of any member who, while sane or insane, shall take or destroy his own life; * * * nor shall this association be liable to any person on account of the disability or death of any member resulting from the discharge of firearms when there is no witness to the discharge of such firearms except the member himself. * * * ”
    The plea further avers that the death of said Walter Moses was caused by injury inflicted by himself upon himself.
    The fourth plea of the defendant alleges that at the time of the accidental death of the said Walter Moses and prior thereto, there were in full force and effect and binding upon the said Walter Moses during his lifetime and at the time of the alleged accidental death, and binding upon the plaintiff in this suit, certain bylaws of the defendant Association, and quotes the bylaw known as article VII, see. <8, parts of which are set out above in the third plea. The plea then avers that Walter Moses took his own life.
    In the fifth plea it is averred that at the time of the alleged accidental death of Walter Moses, and prior thereto, there were in full force and effect and binding upon said Walter Moses and upon the plaintiff in the suit, certain by-laws of the defendant, namely, article VII, sec. 8, as quoted above, and alleges that Walter Moses destroyed his own life.
    The sixth plea avers that at and prior to the alleged accidental death of Walter Moses there were in full force and effect and binding upon said Walter Moses and upon the plaintiff in this suit, certain by-laws of the defendant, namely, article VII, sec. 8, quoted above, and avers that the death of said Walter Moses resulted from the discharge of firearms and that there was no witness to the discharge of such firearms except the said Walter Moses himself.
    Issue was taken upon the pleas. On the trial, the jury returned a verdict in favor of appellee, Matilda Moses, against the appellant for the sum of $5,000 and interest. A motion for a new trial was denied by the court, and also a motion in arrest of judgment, and judgment was rendered on the verdict for the sum of $5,750.
    The policy of insurance sued on recites, among other things, that in consideration of the application for membership in the defendant Association theretofore executed by Walter Moses, which said application for membership is referred to and made a part of the policy, and which every person accepting or acquiring an interest in the contract thereby adopts as his own, admits and warrants to be full and true and to be the only statements or declarations upon which the contract is made, and in consideration of the admission fee paid, the defendant Association receives the said Walter Moses as a member; and upon the further consideration, and upon the condition of the payment of the annual dues to be paid as provided in the by-laws of the Association, in and for every year during the continuance of the policy; and also upon the further consideration and condition of the payment of all assessments made and assessed upon him as a member of said Association, within the time provided for the payment thereof,—there should be payable to said member, in case of accidental injury not resulting in death, certain specified amounts; and in case of the accidental death of said member, there should be paid to Mrs. Matilda Moses, mother of Walter Moses, if living at the time of such accidental death, otherwise to the legal representatives of said member, within ninety days after the receipt by the said Association of satisfactory proof of death, the sum of $5,000; and any and all such payments or liability to pay shall be and are in accordance with and subject to each and all of the provisions of the by-laws of said Association and of the provisions of any and all amendments, alterations and new issues of said by-laws, which said by-laws are thereby referred to and made a part thereof as fully as if they were recited at length over the signature thereto affixed, and which said amendments, alterations and new issues of said by-laws shall become a part thereof as fully as if they were recited at length over the signatures thereto affixed, as soon as such amendments, alterations or new issues of said by-laws respectively are or may be duly adopted, and the said Walter Moses thereby and by the acceptance thereof agrees to abide and be bound by said by-laws and each of them and by any and all lawful amendments, alterations and new issues thereof or any of them.,
    On the trial the court admitted the testimony of the plaintiff, Matilda Moses, to the effect that she had seen Walter Moses, the insured, clean his revolver on several occasions prior to the date of his death, and that on such occasions he was in the bedroom and had on the bed papers and strips of cloth and that the conditions each time she saw him clean the revolver were similar to those existing at the time he was found dead. She further testified that she first learned of the death of Walter Moses when she returned home about ten o’clock at night; that she and her husband and her daughter entered the house and found Walter Moses in the bedroom off the parlor lying on the bed; that his coat, vest and shirt were on a chair, and he had on his underclothing, trousers and shoes; that his revolver was lying on the bed on the right side; on the left side was a newspaper; the cartridges were on that and a penknife, with which she supposed he had been cleaning the revolver, and a few rags which appeared like, an old handkerchief torn in strips, and were smoky looking; that when he cleaned his revolver, he always put papers on the bed.
    The defendant, to maintain its side of the case, called one Cavenaugh, secretary and treasurer of the Association, who testified that on June 26, 1909, an amendment to article VII, sec. 8, of the by-laws was passed, which was in words and figures as follows:
    “Nor shall this association be liable to any person on account of the disability or death of any member resulting from the discharge of firearms when there is no witness to the discharge of such firearms except the member himself, and in all cases of disability or death resulting from the discharge of firearms the burden of proof in establishing the presence of an eyewitness shall be upon the member or person or persons claiming indemnity.”
    Objection was made to .the introduction of article VII, sec. 8, showing this amendment, but no objection was made to the introduction of article VII, sec. 8, excluding, the amendment, and the by-law was admitted, excluding the amendment above quoted made on June 26, 1909.
    ■ Error is assigned upon these rulings of the court and upon the admission of the testimony of Matilda Moses, also upon the entering of judgment on the verdict for a different amount than that found by the jury without amending or correcting the verdict of the jury.
    James Maher and Ryan & Condon, for appellant; Irvin I. Livingston, of counsel.
    Samuels, Shurtleff & Samuels, 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 Smith

delivered the opinion of the court.

Appellant’s pleas presented the issue as to whether or not the deceased, Walter Moses, committed suicide. On that issue the testimony of Matilda Moses was material and was properly admitted.

The court excluded the amendment to article VII, sec. 8, of appellant’s by-laws, adopted June 26, 1909. This ruling is assigned for error.

By the terms of the policy and the application therefor, each and all of the provisions of the by-laws of appellant then in force, and all the provisions of any and all amendments, alterations and new issues of the by-laws subsequently adopted, became a part of the contract of insurance, and Walter Moses, the deceased, and any and all beneficiaries thereunder were bound by such amendments, if reasonable and valid, as fully as if the same were recited at length over the signatures to the application and policy. Supreme Lodge K. of P. v. Kutscher, 179 Ill. 340; Same v. Trebbe, 179 Ill. 348; Clarke v. Illinois Commercial Men’s Association, 180 Ill. App. 300.

No objection was made to the proof offered as to the adoption of the amendment of June 26,1909. The question then is as to the reasonableness of the amendment, for it was regularly adopted, and, if reasonable, must be considered as a part of the contract of insurance.

The material part of the amendment is the following: “Nor shall this association be liable to any person on account of the disability or death of any member resulting from the discharge of firearms when there is no witness to the discharge of such firearms except the member himself.” The remainder of the amendment relates to the burden of proof in establishing the.presence of an eyewitness, and simply expresses the rule of law applicable to proof of the fact. It adds nothing to the effect of the part above quoted, for the burden of proof in this State, as elsewhere, rests with the plaintiff to establish that the assured met an accidental death under conditions imposing liability expressed in the terms of the contract of insurance, notwithstanding the pleas of the defendant of the general issue, setting up suicide, and the evidence in support thereof. Fidelity & Casualty Co. of New York v. Weise, 182 Ill. 496. It was indispensable under the first part of the by-law for the plaintiff to prove an accidental death resulting from the discharge of the firearm and that there was an eyewitness to the discharge other than the assured. This was a condition precedent to the creation of a liability under the first part of the amendment of the by-law, even if the amendment had not specifically so provided. It follows, therefore, that the amendment does not establish a new rule of evidence and is not obnoxious to that objection.

In Roeh v. Business Men’s Protective Ass’n. of Des Moines, 145 N. W. Rep. 479, the same provision in legal effect of a by-law was before the Supreme Court of Iowa on the same objections to its validity urged to this by-law, namely, that it was contrary to public policy, because it undertook to make a rule of evidence and interfered with orderly procedure in courts of justice. The by-law was upheld by that court and recovery was denied. In speaking of the objects or purposes of the by-law that Court said it was clear. “It was to remove the presumption of accident arising from death as a result of a gunshot wound, and to require eyewitnesses of the event in order to establish liability on the part of the insurer. Not only is the beneficiary to prove the operating cause of death, as that it ‘was from a gunshot wound, but he must prove by eyewitnesses of the event that the gun was accidentally discharged. It is not enough that he prove that it might have been so committed. His proof must be stronger than that, and fairly preponderate in favor of the proposition that the gun was accidentally discharged.”

As pointed out in the Roeh case, sufra, contracts relating to procedure have been repeatedly sustained, such as a provision in an insurance policy limiting the time in which an action may be brought on the policy different from the statute of limitations, Peoria Marine & Fire Ins. Co. v. Whitehill, 25 Ill. 466, and Riddlesvarger v. Hartford Ins. Co., 7 Wall. (U. S.) 386; a provision with reference to a requirement for furnishing written proofs of loss (Kelly v. Supreme Council Cath. Mut. Ben. Ass’n., 46 App. Div. (N. Y.) 79); a provision waiving a jury trial. (Columbia Bank v. Okely, 4 Wheat. (U. S.) 235).

We have reached the conclusion that the amendment of the by-laws adopted June 26, 1909, was reasonable, not against public policy, and was valid, and constituted a part of the contract sued on. As such, it was material and the court erred in excluding it. If the amendment was a good and valid provision of the by-laws, the plaintiff failed to make out a case under the policy. The judgment of the trial court is reversed and the cause is remanded.

Reversed and remanded.


text:
    The People of the State of Illinois ex rel. Robinson, Appellee, v. Knight et al., Appellants.
    Gen. No. 19,854.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 10, 1914.
    Statement of the Case.
    Petition by the People of the State of Illinois ex rel. Robinson against Robert Knight and Henry Ericsson, as deputy commissioner of buildings and commissioner of buildings of the city of Chicago, and Lola Menn, for a writ of mandamus to compel defendants to revoke a permit issued for the erection of a theater building owned by the defendant Menn and to stop the work on said building and not to issue a new permit until certain structural parts of the building are removed and have been replaced by structural parts as required by the ordinances of the city of Chicago.
    The original petition made Knight the sole defendant and a general demurrer to such petition was sustained. The petition was then amended making Ericsson and Menn parties defendant. An order was thereafter entered requiring the defendant Knight to answer the petition, as amended, within five days. To the petition, as amended, the respondents, Ericsson and Menn, filed general and special demurrers, and an order was entered setting aside the order requiring Robert Knight to answer, and granting him leave to join in the general and special demurrer of Henry Ericsson.
    After argument on the above mentioned demurrers was had, but before the ruling was made thereon, the relator moved the court for leave to again amend his petition instanter, which motion was allowed, and the petition was amended by striking out such words in the petition as made certain of the allegations therein upon information and belief. Attorneys for respondents thereupon asked the court for leave to file instanter general and special demurrers to the petition as amended by the court to contain further grounds of special demurrer, which leave was denied. The court thereupon, over objection of the attorneys for respondents, overruled their demurrers to the petition as amended, and ruled the respondents to answer the petition within eight days. On the morning following this order, the respondents Henry Ericsson and Robert Knight, due notice having been given, again moved the court for leave to file instanter a joint and several, general and special demurrer to the petition, "a copy of which demurrer was presented to the court and set out additional grounds for a special demurrer. The court denied the motion. Thereafter, at the expiration of the rule, the court entered a default judgment against respondents Ericsson and Knight for failure to answer the amended petition within the. time ordered by the court, respondents having interposed a motion in arrest of judgment. To reverse the judgment, defendants appeal.
    Abstract of the Decision.
    1. Mandamus, § 150

      —matters not raised by demurrer to petition. Want of sufficient verification of a petition for mandamus cannot be raised by demurrer.
    2. Pleading, § 167

      —matters which cannot be reached by demurrer. Neither the want of an affidavit or verification to a pleading nor the sufficiency of the verification is ground for demurrer; the proper mode to raise the question is by motion to strike the pleading from the files.
    3. Pleading, § 198

      —effect of demurrer. A demurrer admits the truth of the material averments which are well pleaded and thus supplies the want of a verification of the .pleading where it is required.
    4. Mandamus, § 149

      —necessity of verification of petition. Since the passage of the Act of 1874 relating to mandamus, J. & A. ¶¶ 7330 et seq., a verification of the petition is unnecessary.
    5. Mandamus, § 37

      —what constitutes ministerial acts. Where the duty of a public officer is purely ministerial and not judicial or discretionary, mandamus will lie to compel performance.
    6. Mandamus, § 54

      —when acts required of building commissioner are ministerial. Where an ordinance makes it the duty of a commissioner of buildings, in cases of violation of building ordinances, to give notice, and in case the notice is not heeded to'tear down the building and to revoke the building permit, held that the acts required to be performed are ministerial acts.

      William H. Sexton, for appellants Robert Knight and Henry Ericsson; Loring R. Hoover, of counsel.
    Jacob C. LeBosky and Elijah N. Zoline, for appellant Lola Menn.
    Henry R. Baldwin, 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 Smith

delivered the opinion of the court.

7. Mandamus, § 54 —when ordinance does not make acts to building commissioner discretionary. The mere fact that a commissioner of buildings is required by ordinance to determine whether or not certain facts exist which, by the provisions of the ordinance, require him to act, does not make the act which he is to perform discretionary.


text:
    Mame B. Parry, Appellant, v. Henry Edward Parry, Appellee.
    Gen. No. 19,878.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 10, 1914.
    Statement of the Case.
    Bill by Mame B. Parry against Henry Edward Parry for divorce, charging several acts of extreme and repeated cruelty and using indecent and profane language in complainant’s presence and in the presence of her friends. The evidence was heard in open court by the chancellor and only questions of fact were involved, and the court found the issues in favor of defendant on conflicting evidence and dismissed the bill. To reverse the decree, complainant appeals.
    Ellis & Lewis, for appellant.
    J. D. Welsh and Alden, Latham & Young, for appellee.

      Abstract of the Decision.
    1. Divorce, § 47

      —when finding for defendant not contrary to the evidence. On bill filed by wife for divorce on the grounds of extreme and repeated cruelty, a finding in favor of defendant held not contrary to the preponderance of the evidence.
    2. Trial, § 77

      —when exclusion of rebuttal evidence not erroneous. Action of court in excluding testimony "offered on rebuttal and relating to the main case made by the bill, held not an abuse of court’s discretion.

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

   Mr. Justice Smith

delivered the opinion of the court.


text:
    William H. McFarland, Appellee, v. George W. Jackson, Incorporated, and William H. Lotts, Appellants.
    Gen. No. 19,889.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 10, 1914.
    Rehearing denied November 24, 1914.
    Statement of the Case.
    Action by William H. McFarland against George W. Jackson, Incorporated, and William H. Lotts, for personal injuries. The plaintiff prior to and at the time of the accident, on or about February 25, 1911, was working for George W. Jackson, Incorporated, under the direction of the other defendant as foreman for the corporation.
    The declaration contains three counts. Each count alleged that the defendants were moving a beam of a ton in weight by means of two dollies, or rollers, which were adapted to move the beam lengthwise and not sidewise. The first count alleged defendants employed an unsafe method of moving dolly and beam sidewise by causing another servant to pry and move the dolly and said beam with a crowbar, which caused the girder to tip and fall on plaintiff’s foot. The second count alleged that the defendant, George W. Jackson, Incorporated, by its foreman, Lotts, gave a dangerous and unsafe order to another servant to move the dolly and the beam sidewise, which the other servant did, and the beam was caused to tip and fall upon plaintiff’s foot. The third count alleged the selection and execution by defendants of a dangerous and unsafe method of moving the dolly and beam sidewise and failure to warn the plaintiff of the danger. The other necessary allegations of due care on the part of plaintiff, of knowledge on the part of defendants, of no knowledge on the part of the plaintiff and. no equal means of knowing, and that defendant Lotts was not a fellow-servant, and other necessary averments are contained in all the counts. Defendants filed the general issue to the declaration.
    The plaintiff, was a structural steel and iron worker, thirty-nine years old. Defendant, George W. Jackson, Incorporated, was doing some work under and upon the elevated railroad at Franklin and Van Buren streets, Chicago, Illinois. The elevated structure was overhead and there were street cars running in Van Buren street at the time. There was a continuous roar from the elevated trains and an almost continuous stream of teams passing back and forth in Franklin street. Working with the plaintiff, all under the direction of defendant Lotts, were Lembach, Kramer, Greichen (spoken of in the record as “Greshen”) and Kennedy. Lotts told the men to go to the southwest corner of Van Burén and Franklin streets, where the beam in question was lying, and move it to the southeast comer of the same streets. It was an I-beam, thirty-four feet long, two feet deep and had two flanges 7" wide. The web between the flanges was ⅝" thick and the beam weighed 3,400 pounds.
    Two dollies were used in moving the I-beam, over the street. Each “dolly” consisted of a square wooden frame of square strips of wood four inches by four inches, two feet long; on top of this frame or base, which was thirty-four inches across its outside dimension and sixteen inches across its inside dimension, was placed a cast-iron roller about fifteen inches long, six inches in diameter, and fastened to the wooden frame by means of a rod run through the roller. The top of the roller, when used as a “standing” dolly, was ten inches from the ground and the beam placed on the roller, was one of the seven-inch flanges for its bearing surface, was thirty-four inches at its top flange from the ground. If the beam were exactly in the center of the dolly roller there would be about five inches on either side between the edge of the flange and the edge of the roller.
    These dollies were denominated either “running” dollies or “standing” dollies, according to the manner in which they were used. If the roller was placed on the ground with the frame up, the dolly traveled with the load placed on it like a caster under a table being moved, and was called a “running” dolly. If the dolly was placed frame on ground, with roller up and the load was pushed or rolled across it, the frame remained still and did not move at all, and when thus used was called a “standing” dolly.
    The surface of the intersection of the streets was paved with granite blocks and was uneven and very rough, and the dollies were used as “standing” dollies because the pavement was too rough to run the dollies over it.
    When Lotts gave the order above mentioned, the five men bore down on one end of the beam, which was on a loading block, and put a standing dolly under the beam. After it was pushed ahead north, another standing dolly was put under the beam. In order to point the beam towards the southeast comer of the intersection, the beam was pushed forward until it rested at its center on one dolly and the. other dolly was moved forward and placed towards the southeast, and the beam was steadied and straightened as it went forward by a crowbar placed with its point inside the square dolly frame perpendicularly against the beam. No prying was used in this operation. The beam was got to the southeast corner so that it lay northwest and southeast. At the southeast corner stood two piles of cribbing about ten feet apart, with a steel column supporting the elevated road between them. This cribbing consisting of short timbers, ■ one pair superimposed crosswise at the ends upon another pair, and so on, up to the top, forming temporary piers to support weight. The west pile of cribbing was in Van Burén street, right at the curb corner, and the other about ten feet east thereof in the same street. The beam was to go between the west cribbing and the steel column. The beam having been pushed northeasterly as far as was desired was then pivoted on a dolly, and was then swung around so that the end that had been pointing southwesterly was pointed southeasterly. This movement swung the beam probably a quarter of the way around. The beam was then moved southeasterly by taking out the rear dolly and putting it under the forward end of the beam as the movement progressed. The progress of the beam was blocked by the west cribbing. Defendant Lotts was personally supervising this work, and saw where the beam was headed, and that the south end must go further to the east in order to go between the west cribbing and the steel column. At this state of affairs, the 'beam rested on the two dollies. One was about five feet from the south end of the beam and the other north of the middle. Kennedy was on the east side of the beam at the south end. Greichen was standing at the north end at the east side. Lembach stood at the north, or center, dolly on the west side of the beam with a crowbar in his hand. Lotts stood about two feet from Lembach on the west side of the beam between Lembach and the north end of the beam and obstructed plaintiff’s view. Kramer was north of Lotts on the west side of the beam. Plaintiff was standing at the north end of the beam west of Greichen. Lotts told Lembach to pry the dolly and beam over to the east. Lembach attempted to insert his bar under the dolly frame and it did not take hold. He tried again and secured a hold; the dolly moved about an inch and a half, and the square edge of the dolly frame caught against a granite block. At this time the east side of the bottom flange of the beam was about two inches from the east edge of the dolly roller, the beam being east of the center of the dolly four or five inches. The west side of the dolly had been slightly raised by this movement, and the momentum and sudden stopping of the dolly by the unevenness of the pavement caused the beam to slip off the east side of the middle dolly, and, as its south end was bearing on a dolly roller, it ran back fifteen to eighteen inches north and the north end of .the beam fell upon and crushed McFarland’s foot into the groove of the street car rail. Neither Greichen nor McFarland heard Lotts give the order to Lembach; neither saw clearly what Lembach was doing. There was the roar of city traffic in the air, including the noise of the elevated railroad.
    John A. Bloomingston, for appellants; Foreman, Levin & Robertson, of counsel.
    Aaron R. Eppstein, 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 Smith

delivered the opinion of the court.

Abstract of the Decision.

1. Judgment, § 247 —when the record may he corrected to show the granting of a new trial. Where at a prior trial the jury returned a verdict against one defendant and was silent as to a co-defendant, and the trial judge granted the first defendant’s motion for a new trial and the plaintiff’s motion for a new trial as to the codefendant, and the minute clerk afterwards drew his pen through the entry in the law record as to the ruling on plaintiff’s motion for a new trial as to the codefendant, at the request of the clerk of the attorney for the defendants without any authority of any kind and without any order of court, the court had full power -to correct the record after the term and to make it speak the truth nunc pro tunc, as the cause had never been disposed of by final judgment as to either defendant and was still pending before the court, and the court did not err in refusing to dismiss the cause as to such codefendant.

2. Master and servant, § 173 -—when a master adopts an unsafe method of work. Where a first count alleged the negligent adoption of an unsafe method by defendants to move sidewise both a dolly and a beam by prying it over with a lever or crowbar, and a second count alleged a negligent order given by a foreman codefendant, and a third count alleged that defendants failed to warn plaintiff of the fact of the sidewise movement and of the danger, the evidence is held to support a finding by the jury that the method adopted was unsafe and negligent, the testimony of the rough condition of the street being admissible under the averments of the different counts.

3. Master and servant, § 627 —when opinion evidence as to safety of a method adopdted is incompetent. Direct evidence of the opinion of witnesses suggested by defendants as necessary to whether a method adopted to move sidewise a dolly and a beam over a rough street, by prying it over with a lever or crowbar, was incompetent as being a clear invasion of the province of the jury.

4. Master and servant, § 178 —when master negligent in adopting unsafe method of work. Where a codefendant foreman selected a method of moving a dolly and a beam over a rough street and he knew all the conditions existing and the danger attendant upon such a method and the positions of the men including the plaintiff, the jury were warranted in finding that the method adopted was dangerous and negligent, that the order given by the codefendant was negligently given, that the codefendant represented the other defendant, a corporation, and that plaintiff did not hear or know of the order and was not warned by the codefendant foreman.

5. Master and servant, § 375 —rule as to assumption of risk. For the application of the principle of assumption of risk, the employee must have knowledge of the danger to which he is subjected.

6. Master and servant, § 304 —risks not assumed. The servant does not assume risks arising from the master’s negligence.

7. Negligence, § 74 —when one is not bound to anticipate negligence in another. The law does not impose a duty upon one to anticipate negligence in others, and the presumption of law is that every person will perform the duty enjoined by law or imposed by contract.

8. Master and servant, § 739 —when assumption of risk is question for the jury. The question of assumption of risk by an employee is one of fact for the jury, whose finding will not be disturbed, where the evidence does not call for a different conclusion.

9. Master and servant, § 777 —when instruction on proximate cause not misleading. An instruction to the effect that where the master is guilty of negligence, proximately causing an injury to a servant and without which the injury would not have occurred, it is immaterial, so far as the servant’s right to recover is concerned, if the negligence of a fellow-servant, if any, combined with the negligence of the master, if any, to produce or proximately contribute to the servant’s injury, held not erroneous as an abstract proposition, since there was but one injury and the jury could not have been misled.

10. Pleading, § 28 —necessity of pleading evidentiary facts. Evidentiary facts need not be pleaded in order to be admissible in evidence.

11. Master and servant, § 376 —admissibility of evidence. Held proper to show that no other beams had been moved sidewise by prying over the dolly and beam prior to the accident, as bearing upon an employee’s lack of notice of the negligent method of the work and indicating that he did not assume the risk arising from the method adopted.

12. Trial, § 223 --when the presence of a party’s family is not erroneous. In an action for personal injuries, the presence at the trial of plaintiff’s wife and son, who were excluded when objection was made,- held^ not to have affected the result of the trial such as to require a reversal.

13. Damages, § 241 —when a verdict will not be disturbed as excessive. In the absence of a showing of passion or prejudice, a verdict for four thousand dollars held not excessive in an action for personal injuries, since there is no hard and fast rule by which such damages can be measured.


text:
    James Hannan and Amos W. Martin, Executors, Appellees, v. Joseph Biggio, Appellant.
    Gen. No. 19,905.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment, § 80

      —how delay in applying for vacation of may he explained. A proper showing may be made by aflidavits to account for delay in making application to vacate or stay proceedings under a judgment entered by confession.
    2. Judgment, § 66

      —when refusal to vacate constitutes error. Where a note was executed in blank for an amount alleged to be due on a prior note on which the maker was surety, and upon an agreement that the amount due on the prior note at the date of the note sued on should be inserted by plaintiffs’ testate, and the maker relied upon deceased to insert the amount due on the prior note and the evidence tended to show that the pre-exising note had been fully paid, the court erred in refusing to vacate a judgment entered by confession or to stay proceedings with leave to make a defense on the merits.

      Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed November 10, 1914.
    Statement of the Case.
    On March 25, 1913, James Hannan and Amos W. Martin, as executors of the estate of James Kenan, deceased, entered a judgment by confession on a note against Joseph Biggio. On April 14, 1913, the first day of the April term of the County Court, the defendant made application to vacate the judgment.
    The court overruled a motion to vacate the judgment entered by it by confession, and refused to stay the proceedings under the judgment until trial could be had on the merits. From this order in favor of plaintiffs’ testate, defendant appeals.
    John T. Byrnes, for appellant.
    Edward H. S. Martin, for appellees

      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 Smith

delivered the opinion of the court.

3. Judgment, § 65 —grounds for vacating. A judgment entered by confession on a note should be vacated if it appears that there was no consideration for the note in question.


author: Mr. Presiding Justice Fitch

text:
    Charles Bruhl, Appellee, v. William J. Anderson, Appellant.
    Gen. No. 19,861.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.
    Statement of the Case.
    Charles Bruhl, plaintiff, brought action against William J. Anderson, defendant, to recover for personal injuries sustained by him on May 11, 1912, when, in endeavoring to'cross a public street in the city of Chicago he was struck by defendant’s automobile. Plaintiff charged the negligent driving of the automobile at a high rate of speed. The place of the accident was a residential district of the city of Chicago.
    From a judgment for seventy-five hundred dollars in favor of plaintiff, defendant appeals.
    The evidence showed, without contradiction, that the accident happened about eight o’clock in the evening; that at that time it was dark, was raining hard and there was a high wind; that the pavement on Washington boulevard is an asphalt pavement fifty feet in width; that just before the accident, plaintiff was walking north on the west sidewalk on 41st avenue with an umbrella over his head; that as he reached the end of the sidewalk at the curbstone on the south side of the boulevard pavement, he hesitated a moment, raised his umbrella, looked in both directions, “saw nothing,” and then started across at a “trot,” or fast walk, holding his umbrella down over his head and shoulders; that at that moment, defendant’s automobile, with two headlights and two oil lamps burning, came along the boulevard from the west at a rate of speed estimated by defendant’s witnesses at from twenty-five to thirty-five miles an hour, and by plaintiff’s witnesses at from thirteen to fifteen miles an hour; that as the automobile approached the intersection, the chauffeur saw plaintiff walking across, called out: “Hey, there,” turned the front wheels to the north and applied the emergency brakes. The sudden locking of the rear wheels caused the automobile to “skid” around towards the south, and it “skidded” across the street intersection, turning • completely around, and finally came to a stop, facing southeast, at or near the curbstone at the northeast corner. As it whirled around, the right fender hit appellee, throwing him to the pavement. He fell on his back, face upward, and as the fender passed over him he took hold of it with both hands and held on until the automobile came to a stop. When he was pulled from under the machine his back was broken. The distance from the south curbstone to the point where appellee was struck by the automobile was approximately twenty-five feet, and while plaintiff was crossing this space at a fast walk or trot, the automobile traveled at least one hundred feet, if not twice or three times that far.

      Abstract of the Decision.
    1. Automobiles and garages, § 2

      —when negligence of pedestrian is question for jury. Where a pedestrian in crossing a street in a blinding rain storm looked up the intersecting street but failed to see a fast approaching automobile or to distinguish its lights from other street lights, the question of contributory negligence raised an issue for the jury, whose finding of the absence of such will not he disturbed.
    2. Automobiles and garages, § 2

      —when failure of pedestrian to see approaching automobile does not constitute negligence. A pedestrian’s failure to see an automobile approaching in a blinding and tempestuous rain storm, with its lights difficult to distinguish from street lights, or even his failure to look at all, held not to constitute contributory negligence as a matter of law, under the circumstances of the instant case.
    3. Automobiles and garages, § 2

      —when proof of unlawful speed constitutes prima facie case. Under the Motor Vehicle Act of 1911, §§ 10, 17, J. & A. ¶¶ 10010, 10017, proof that a pedestrian was injured by defendant’s automobile, on a public street in a residential portion of the city, while the automobile was being operated at a speed in excess of fifteen miles an hour, made out a prima facie case of negligence on the part of defendant.
    Miller, Gorham & Wales, for appellant.
    Ansel M. Lasley and Frank A. Lasley, for appellee.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Stanislow Schneider by Otto Olson, Appellee, v. Otto Nowack, Appellant.
    Gen. No. 19,876.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John A. Dowdall, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.
    Rehearing denied and additional opinion filed December 31, 1914.

      Statement of the Case.
    Stanislow Schneider, suing by his next friend, Otto Olson, brought action against Otto Nowack, for personal injuries sustained by working in the latter’s iron works. From a verdict and judgment for a certain sum in favor of the plaintiff, defendant appeals, assigning as error that the verdict is not supported by the evidence.
    The evidence on behalf of plaintiff tended to prove that just before the accident he was called from his workbench by the foreman to assist in riveting a heavy angle iron, one end of which rested upon a riveting iron, or “dolly-bar,” about three feet high, and the other end of which was held up by another workman; that plaintiff used a sledge hammer with which to do the riveting; that after he had hit the rivet once or twice the handle of the hammer broke; that thereupon the foreman ordered him to go under the angle iron to get another hammer lying about six feet away, and that while he was attempting to comply with this order, and was under the angle iron, it turned over and fell upon his left leg, breaking both bones above the ankle. The foreman flatly denied that he gave any such order to plaintiff, and testified that plaintiff crawled under the angle iron without any order or direction to do so, and himself caused the accident by striking against the angle iron with his back while crawling under it.
    The only error assigned subject to review was whether the verdict was supported by a preponderance of the evidence. Defendant insisted there was no evidence to the effect that the foreman directed plaintiff to go under the angle iron, rather than around it, to get the hammer, but plaintiff made a positive statement to that effect, and his statement was corroborated, to some extent, at least, by the workman who was holding one end of the angle iron at the time it fell. There was also evidence that there was reason for haste because the rivet was hot and it was necessary to use the hammer before the rivet had time to cool.
    Abstract of the Decision.
    1. Master and servant, § 806

      —when giving of instruction containing abstract statement of risks assumed, not reversible error. While an instruction purporting to state in abstract form what risks are assumed and what are not assumed by an employee is not in the approved form and of doubtful application to the facts of the case, it is held not to constitute reversible error since it could not have misled the jury.
    2. Appeal and error, § 823

      —how objections to instructions are preserved. In order that an objection to an instruction may be available on appeal, the bill of exceptions should show that the instruction was objected to or that an exception to the action of the court in giving it was preserved in the trial court.
    3. Master and servant, § 216

      —liabiltiy for injury to servant acting under direction of foreman. Where the testimony tended to show that defendant’s foreman directed an employee to go under an angle iron, rather than around it to get a hammer, and while attempting to do so it turned over and fell upon the employee’s leg, breaking both bones above the ankle, the evidence is held sufficient to sustain a verdict against the defendant in favor of the employee for the injuries sustained.
    4. Appeal and error, § 1161

      —when objections not preserved for rehearing. An objection to an instruction cannot be raised for the first time in a petition for a rehearing.
    Leopold Saltiel and Meyer Rossen, for appellant.
    James L. Bynum, for appellee.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Mary A. Garvy, Appellee, v. Dan Baldino and William Tortoriello, Appellants.
    Gen. No. 19,885.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.
    Statement of the Case.
    Action by Mary A. Garvy against Dan Baldino and William Tortoriello, in which, after two general demurrers to plaintiff’s bill had been overruled and the defendants had elected to stand by their demurrers, the bill was taken as confessed, and defendants were ordered to pay to complainant, within ten days, the sum of $2,700, or if not paid within that time to assign and surrender to complainant, as security for the payment thereof, certain notes in their possession, and, in the meantime, they were enjoined from transferring the notes. From a decree in favor of complainant, defendants appeal.
    In substance, the bill charged that complainant, being the owner of certain real estate in Cook county, employed defendant Baldino, who was a real estate broker, to find a buyer for her property for the best obtainable price; that Baldino found a purchaser named Laporte, who agreed to pay $25,200 for the property; that instead of reporting that fact to complainant, Baldino, in violation of his duty as complainant’s agent, and in order to derive a secret profit from the sale of her property, entered into a fraudulent arrangement with the defendant Tortoriello, by which the latter, in consideration of $500 to be paid him by Baldino, agreed to become the ostensible purchaser of the property at the pretended price of $22,500, and then to convey the same to Laporte for $25,200; that in pursuance of such arrangement Baldino falsely and fraudulently represented to complainant that Tortoriello was the real purchaser, and that $22,500 was the highest price obtainable for the property ; that relying upon the representations of Baldino, complainant conveyed the property to Tortoriello, who paid her, ostensibly on his own behalf, but in reality on behalf of Baldino, the sum of $3,500 in easily $500 to Baldino for commissions, and gave his notes secured by trust deed on the property for the remaining $18,500 of the fictitious purchase price of $22,500; that a day or two later, Tortoriello completed the fraudulent transaction by conveying the property to Laporte and his wife for the real consideration of $25,200, thereby obtaining a secret profit of $2,700 in cash and notes, which, in equity and good conscience, belonged to complainant.
    Abstract of the Decision.
    1. Equity, § 213

      —question raised by general demurrer to bill. Where a bill for an accounting, shows that a real estate broker, while acting as the owner’s agent, took advantage of his position of trust to secure to himself a secret and unlawful profit and that a third party knowingly participated in the fraud and received part of the proceeds, held that the only question raised by general demurrers to the bill was whether the remedy of the owner upon the admitted facts is at law or in equity.
    2. Equity, § 224

      —facts admitted on demurrer. A general demurrer to a bill in equity for an accounting admits the charges made in the bill.
    John T. Murray and Frank E. Hayner, for appellants.
    Thomas J. Condon, for appellee; Irvin I. Livingston, of counsel.

      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. Presiding Justice Fitch

delivered the opinion of the court.

3. Trusts, § 78 —when third person may he required to account in equity. A person who actively and knowingly assists a real estate broker in defrauding his principal may be required in equity to account for property which he received, though he occupied no fiduciary relation towards the principal.

4. Jury, § 9 —right to jury trial in equity. Where a court of equity has jurisdiction, a party is not entitled as a matter of right to a jury trial in chancery, and such a trial does not violate any constitutional right of trial by jury.

5. Trust, § 244 —when hill need not allege insolvency of defendants. Where a violation of trust and fraud are charged in a bill and an accounting and an injunction sought, it is not necessary that there be an allegation that defendants are insolvent or financially irresponsible.


text:
    Mathilda A. Ford, Appellee, v. Percy James Ford, Appellant.
    Gen. No. 19,899.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed November 19, 1914.
    Statement of the Case.
    Action was brought by Mathilda A. Ford against Percy James Ford for separate maintenance. A trial before a chancellor resulted in a decree for separate maintenance in favor of the - wife, and defendant appeals.
    Defendant admitted that he had “left home” on December 9, 1912, and the evidence tends to prove that he left with the intention not to return. He testified that when he went away he kept his key and told his wife that he “reserved the right to come and go as he pleased, that he wanted to come back once in a while, and that he would be back the following Sunday for his linen.” He testified further that the immediate cause of his leaving home in this manner was that his wife was continually “nagging” him, by accusing him, without cause, of improper relations with other women. The wife testified, on the other hand, that for a long time before he left home he was in the habit of remaining out at night until a late hour, and sometimes all night; that this habit had been the occasion of frequent quarrels between them; that on two occasions, more than five years prior to the filing of the bill, he had struck her during such quarrels; that these offenses had been forgiven, but that the offense was repeated one night about two weeks prior to the time he left home. Defendant admitted all this except the last offense. He denied that he struck appellee on the last occasion referred to, but admitted, on cross-examination, that he had “pushed her back on the pillow,” and told her to “lie down and go to sleep.”
    Abstract of the Decision.
    1. Husband and wife, § 217

      —what constitutes living apart without wife’s fault. Evidence held sufficient to support a decree for separate maintenance against the husband, although the wife was guilty of “nagging” and participated in quarrels brought about by the husband’s habits and the wife’s suspicions.
    Beach & Beach, for appellant.
    Bluim & Teed and Brundage, Landon & Holt, for appellee; Benson Landon, of counsel.

      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. Presiding Justice Fitch

delivered the opinion of the court.

2. Venue, § 14 —when application for change of venue not made in time. Where a petition for a change of venue is presented to a court after the’ trial of the case has commenced, it is presented too late, so that the trial court does not err in denying it.

3. Appeal and error, § 749 -—how proceedings for change of venue are preserved for review. When a petition for a change of venue in a chancery case is treated and considered as an affidavit, the ruling of the trial court is not saved for review, unless the petition is made part of the record by a certificate of evidence.

4. Husband and wife, § 267 —when a finding that the wife is living apart from her husband for his fault will not be disturbed. In an action for separate maintenance, where the chancellor, witnesses before him, finds the husband’s fault, and not that of the wife, brought about an admitted separation, a reviewing court will not disturb the decree which is supported by the preponderance of the evidence.

5. Husband and wife, § 243 —when allowance for separate maintenance not excessive. Where it appeared that a husband’s salary was one hundred dollars a week and that he had other sources of income, and that while the parties were living together his wife received from him a regular allowance of thirty-five dollars a week for household expenses and that when he left home he made arrangements to pay his wife an allowance of twenty-five dollars a week, he has no just cause of complaint against a decree awarding thirty dollars a week towards the support of his wife and her minor child and allowing her to remain in possession of the family homestead, worth about nine thousand dollars.