author: Mr. Justice Freeman

text:
    Thomas A. Cantwell, Appellee, v. John P. Harding, Appellant.
    Gen. No. 15,071.

      Deceit—what not defense to action of. In an action for deceit arising from the purchase of corporate stock in which it is alleged that the value of such stock was falsely represented, it is no defense to say that the plaintiff before purchasing such stock should have examined the books of the corporaton which had issued the same, the action not being against the corporation but against a stockholder thereof who was disposing of his certificates.
    Action of deceit. Appeal from the Circuit Court of Cook county; the Hon. P. W. Gallagher, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed May 19, 1910.
    Mather & Hutson, for appellant.
    Mason & Mason and William P. Black, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an appeal from a judgment for $5,000 against appellant- in an action for deceit. The amended declaration consists of two counts. In the first of these the plaintiff avers that on or about December 3, 1904, he purchased of defendant a third of the capital stock of the Titze & Mullen Manufacturing Co., a corporation, and paid therefor $5,000 in cash; that defendant promised him the said corporation was doing a good and large business, was clearing $20,000 a year profits, and that plaintiff could draw $1,800 a year salary as one of the officers of the corporation; that confiding in such promises of defendant, the plaintiff bought from him the said one-third of the stock of said corporation; that defendant deceived and defrauded plaintiff in that the corporation was not doing a good and large business and was not clearing $20,000 a year profit and was not in a position to pay $1,800 a year for salary, but ■ had been insolvent for a long time previous to such promise and had been doing business for a long time, to wit, one year, at a loss, and that in April or May, 1905, a petition in bankruptcy was filed against said corporation and the stock thereby became and was of no value to plaintiff. The second count is practically the same, setting forth said alleged promises, averring that defendant promised plaintiff that if plaintiff purchased the said stock he could draw $1,800 a year for acting as one of the officers of the corporation, with an additional averment that defendant well knew the corporation was not doing a good and large business and was not clearing $20,000 a year profit and was not in position to pay plaintiff such salary.

It is contended in behalf of defendant that in an action for deceit the party complaining of false representations cannot maintain the suit if he is capable of taking care of himself and exercising ordinary prudence in protecting himself, unless the proof shows he exercised such prudence; that plaintiff must prove not only the falsity of the representations but that defendant knew them to be false; that it must appear the false representations were relied upon, that false statements, which are matters of opinion only, are not actionable, that one seeking to rescind must do so promptly, and that there are errors in the instructions. These contentions, except as to alleged errors in the instructions, involve questions of fact. There is evidence tending to show that in 1904 the plaintiff was and had been for many years engaged in the lumber business; that his attention was first called to the stock in question by an advertisement of a “commercial broker” in a daily paper, the material part of which is as follows: ‘‘Manufacturing establishment, established years; clearing $20,000; offers one-third interest, salary $1,800; $5,000 required; strictest investigation;” that calling at the office of the broker at the place the advertisement designated, an appointment was made to meet the defendant; that at an interview following the defendant represented to plaintiff that the corporation in question was making $20,000 a year and that appellee if he bought the defendant’s stock could draw a salary of $1,800 a year; that defendant finally reduced his price to $5,000; that plaintiff asked for and received a statement of the corporation’s assets and liabilities; that he met Mr. Mullen, whose name appears in the name of the corporation; that Mullen told him the corporation was doing a business of about $150,000 a year; that the statement given plaintiff showed a net surplus of $14,238.65; that plaintiff examined the statement at home that evening; that a few days before buying the stock he went with Mullen through the factory; that he was given to understand there were in the neighborhood of forty employes; that plaintiff called on defendant at the latter’s saloon a number of times, and was told by defendant the stock was worth $5,500, that “they were making money there;” that defendant said he had other business and did not want to stay there, that his being in the saloon business affected the corporation’s business in that brewers would not buy saloon fixtures from the concern because defendant would not buy their beer, and that “the stock was making money and he would not sell it only he was in the saloon business and it affected his trade.” Plaintiff testifies he depended on defendant’s statements, that he showed the latter the statement of the corporation referred to and discussed it with him; that he talked with defendant about the surplus of $14,238.65 shown by said statement; that he said to defendant “it looked all right” and that finally, believing defendant’s statement that the corporation was making a profit of $20,000 a year, he closed the purchase with defendant December 2nd or 3rd, 1904.

There is evidence further tending to show that thereafter plaintiff became treasurer of the corporation, taking the place of the defendant, who was treasurer when the plaintiff bought his stock. Plaintiff was also elected a director. The first week after becoming treasurer the corporation was, as he testifies, “short on the payroll” and plaintiff furnished the money to make it up. The same thing happened the next two weeks and it was not long before he found this to be the ordinary condition, until in March following he began to take an active part in the concern and about a month thereafter the company was put into bankruptcy and plaintiff states he was surprised by the appointment of a receiver. The petition in bankruptcy was filed April 5, 1905, and the corporation was adjudged bankrupt April 21st following. A subsequent examination of the books of the bankrupt concern ■showed the corporation had suffered a loss of $4,750 for the eighteen months preceding the purchase by plaintiff of the defendant’s stock in question. Defendant denies making the promises and representations in controversy.

Upon the evidence it was a question of fact for the jury whether the defendant made the statements in question, whether in purchasing the defendant’s stock the plaintiff relied upon or was influenced by the defendant’s alleged representations, and whether he exercised such ordinary care as the law required to guard against the deception of which there is evidence tending to show the plaintiff was the victim.

In Van Horn v. Keenan, 28 Ill. 445-448, it was said that “when a party capable of taking care of his own interests makes a bad or losing bargain, the law will not assist him, unless deceit has been practiced against which ordinary prudence could not protect him.” Whether or not such deceit was practiced was a question of fact upon which the jury’s finding is against the defendant. In an action for false representations “it is not necessary that the false representations should have been the sole or even the predominant motive; it is enough if they had material influence upon the plaintiff, although combined with other motives.” Safford v. Grout, 120 Mass. 20-25. In Dickinson v. Atkins, 100 Ill. App. 401-406, it was said that “to sustain an action for deceit, it must be established that the representations complained of were false; that they related to matters material to the transaction and not solely to promises in futuro; that the defendant making the false representations then knew them to be false and that the plaintiff, exercising ordinary prudence, relied upon them as true and to his injury;” citing cases.• “The fraud and the scienter constitute the grounds of the action” for deceit. Holdom v. Ayer„ 110 Ill. 448-453.

It is urged that plaintiff should have examined the books of the corporation before purchasing the stock. We do not concur in that contention. It is said in Antle v. Sexton, 137 Ill. 410-414, that “To throw a purchaser out of court in such a case upon the plea that he did not avail himself of the means of knowledge open to him, would be offering a premium on fraud and would be destructive to confidence in business transactions.” In the case at bar the books of the corporation were not, so far as appears, offered to plaintiff for examination, and there is no evidence of any intimation or suggestion that he would be permitted to examine them. He was not buying the stock from the corporation, but from a stockholder therein.

The representations in question were not mere expressions of opinion, but statements of what were alleged to be facts, and there is evidence tending to support the contention of plaintiff that the defendant knew them to be false and made them with intent to deceive plaintiff and induce him to buy at a high price stock then practically valueless. The representations were not merely as to the value of the stock itself, which might be deemed a matter of opinion, but as to the assets of the corporation and the extent, volume and earnings of its business, facts which the evidence tends to show must have been within defendant’s knowledge. This is not an action to rescind the contract of sale, and authorities cited by defendant’s counsel on that subject are not in point.

We find no error in the first instruction complained of, to the effect that if the jury believed from the evidence the plaintiff had made out his case as laid in his declaration, they must find in his favor. The declaration stated a cause of action and if sustained by the evidence justified a finding for the plaintiff. But it is urged the averment in the declaration that the defendant promised that if plaintiff purchased the defendant’s stock he could draw $1,800 per year salary for acting as one of the officers of the corporation was not a representation as to a fact then existing; and that the instruction left it to the jury to determine or' conjecture what allegations of the declaration constituted ground of recovery, since the alleged representation referred to was not legally a false representation. The evidence however is open to the construction that the statement as to salary was under the circumstances intended by defendant to be and was not merely an expression of opinion, but in effect a statement of a fact, that the salary of $1,800 was the fixed salary of the office held by defendant as treasurer of the corporation, to which plaintiff would succeed if he became owner of defendant’s third of the stock, to which office plaintiff did in fact succeed. Whether so or not, there is evidence sustaining the material averments of the declaration as to false representations.

We find no material error in the instructions complained of nor in the record and there is evidence tending fully to sustain the averments of the declaration. The judgment of the Circuit Court will therefore be affirmed.

'Affirmed,


source: Caselaw Access Project

license: Public Domain

text:
    Israel Canel, Appellant, v. O. J. Smith, Appellee.
    Gen. No. 15,106.

      Verdicts—when not disturbed. A verdict will net he set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Action on the case. Appeal from the Superior Court of Cook county; the Hon. (Marcus Kavanagh, Judge, presiding. Heard in this court at the. October term, 1908.
    Affirmed.
    Opinion filed May 19, 1910. .
    Mter S. Emrich, for appellant.
    John E. Van Natta, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an action of “trespass on the case.” The declaration charges that defendant with force, and arms broke into and entered plaintiff’s dwelling house and seized and took household furniture belonging to plaintiff, broke and damaged it, threw it into the street and disturbed plaintiff in the peacéful possession of the house. Judgment was entered upon a verdict finding defendant not guilty and plaintiff appeals.

There is evidence in plaintiff’s behalf tending to show that he occupied under a written lease a house belonging to defendant; that the house was so damaged by fire occurring August 18, 1906, as to be uninhabitable; that plaintiff and his family moved away; that he left some furniture and other things in the house, and that he had a talk with defendant about two days after the fire, in the course of which defendant “said that he was going to fix the house and that we could stay in the same place.” It appears from uncontradicted evidence that the outside doors of the kitchen, some inside doors, the partition between the kitchen and a rear bedroom, a part of the ceiling of the rooms down stairs, the floors of the two rooms upstairs, and a part of the roof, together with furniture, were burned and injured by water. There is evidence also tending to show that plaintiff told defendant he could not live there; that he asked defendant to help him move his furniture to another place he had secured to live in; that the next morning thereafter defendant brought his two-horse wagon and with the help of plaintiff and the latter’s son loaded plaintiff’s furniture on the wagon and it was taken where plaintiff desired; that the defendant then suggested to plaintiff that they “go back to get the rest of that stuff;” that plaintiff replied that he had not much room where he was moving in and that he would move the rest “after we get cleaned out and in shape to bring it up;” that the articles remaining were damaged by the fire and water; that defendant told plaintiff a carpenter would be there in a few days and he would want plaintiff’s things out of the house and that plaintiff replied he would get them out and said, “if we don’t you can set it out.” The articles were left in the house until the latter part of October, when the workmen came and some of them were taken out and placed against a shed on the premises to which plaintiff had the key. In the meantime anyone could have access to the house, the outside doors of which had been burned or broken in by the firemen.

Subsequently it is claimed plaintiff changed his mind and concluded to endeavor to retain possession. October 16th defendant notified plaintiff in writing that “in order to make the required repairs and improvements in the place it will be necessary for you to remove all your goods from the premises. If you do not comply in ten days the goods will be set in the street.” Upon October 22nd following defendant served another notice demanding immediate possession.

It is the plaintiff’s contention that the evidence shows the lease had not been cancelled, that plaintiff was entitled to possession, and that the verdict is contrary to the evidence. There is evidence tending to show a verbal and actual surrender of the premises by plaintiff. He abandoned the house and uncontradicted evidence tends to show it was not inhabitable in the condition in which the fire left it.

The fire occurred in August. The demand for immediate possession was served October 22nd following. The right of possession is not in controversy except collaterally, but if the jury found, as they might do from the evidence, that plaintiff had thrown up his lease and agreed to abandon the premises, then defendant was not guilty of trespass in taking possession.

The furniture and other things left by plaintiff in the house and alleged to have been put out by defendant could not have been deemed of great value by one who left them in a house open to the rains and to any who might choose to enter without leave or license. There is affirmative evidence tending to show these things had been damaged by the fire, and if plaintiff suffered any other loss or damage in respect to them, the evidence tending to show that such loss occurred by reason of defendant’s acts is by no means convincing. It might have been the result of leaving the articles in an open and abandoned house, as there is evidence tending to show was done, subject to the depredation of boys or any one who chose to enter.

We find nothing in the record to justify interference on our part with the verdict. The judgment therefore will be affirmed.

Affirmed.


author: Mr. Justice Freemah

text:
    The People of the State of Illinois, for use of Edwin J. Zimmer, Appellee, v. Pacific Surety Company, Appellant.
    Gen. No. 15,124.
    . Interest—when allowance appropriate in action ufion surety bond. If -an administrator has been found indebted to an estate and has been ordered to turn over the amount of his indebtedness and fails so to do, in an action against the surety upon the bond of such administrator interest should be allowed from the time of his default.

      Action in debt. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed May 19, 1910.
    Stuart G-. Shepard and Robert R. McCormick, for appellant.
    Charles C. Spekcer, for appellee.
   Mr. Justice Freemah

delivered the opinion of the court.

This is an appeal from a judgment in debt against, the defendant sued as surety on the bond of an administrator.

Edwin J. Zimmer was appointed administrator d& bonis non of the estate of Catherine Halton, deceased. Originally Patrick Halton, husband of Catherine Hal-ton, had been appointed administrator of the estate, which it is said consisted of a claim against the Chicago City Railway Company for wrongfully causing her death. This claim was settled by Patrick Halton as administrator and he received June 5, 1903, the sum of $2,510 from the Railway Company in payment of a judgment against said Company in his favor obtained in an action to recover for negligently causing Catherine Halton’s death. Patrick Halton appears to have converted the money to his own use. He left the country soon afterward, going it is said abroad, where he remained until his death. He was removed as administrator and Zimmer was appointed to succeed him March 25, 1903. Upqn June 27, 1902, the Probate Court of Cook county entered an order finding the sum of $2,510 to be due from said Halton as administrator of the estate and directing him to pay that sum into court on Monday, June 30, 1902. This he failed to do and the present action was afterwards begun in the Superior Court against the defendant, Pacific Surety Company, as surety on Patrick Halton’s bond as administrator. Judgment was entered against defendant for $10,000 debt and $3,166 damages. The amount of damages thus awarded was made up of the principal sum of $2,500 with an allowance of $656 interest. It is contended the allowance of interest is erroneous. This is the only point urged in defendant’s behalf.

We find no error in the allowance of the interest. The liability of Halton as administrator and of defendant as surety on his bond in case of Halton’s refusal or neglect to pay over the money was fixed by the order of the Probate Court entered June 27,1902, at the sum of $2,510, and he was directed to file his account and pay over that sum upon the following Monday, June ■30, 1902. No appeal was taken nor writ of error sued out from that order, and it was and remained in full force and effect from and after the last mentioned date. The statute (R. S. chap. 74, sec. 2) provides for an allowance of interest among other things on all moneys after they became due on any bond, bill, promissory note or other instrument in writing, on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance and on money withheld by an unreasonable and vexatious delay of payment. "Upon June 30, 1902, the amount then found by the court to be owing from defendant’s principal on the bond became due from Hal-ton as administrator, and no reason appears or has been called to our attention why under the statute interest should not be allowed on it from and after the appointment of Zimmer as administrator, March 25, 1903. Moreover, we are of opinion that withholding payment of money “due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance” also covers the present case under the statutes. There was a settlement of the debtor’s account with the estate by the Probate Court, and what is said in Fitzgerald v. Benner, 219 Ill. 485-492, cited by defendant’s counsel, is we think applicable: “It is undoubtedly true that in order to justify interest the claim must be liquidated and it must be shown that the parties figured upon a definite amount as being due and that payment has been vexatiously and unreasonably withheld. ” It is argued that the amount was never liquidated 1 ‘ because ■ Zimmer at all times held to the theory that Halton and his surety were liable for an unliquidated amount approximating $5,000,” on the theory that Halton if sufficiently diligent might have collected $5,000 instead of $2,500. No evidence was introduced nor effort made to sustain such a claim, and the defendant has never offered to pay anything. In this case no demand was necessary. Nevitt v. Woodburn, 160 Ill. 203-214. In Holmes v. Standard Oil Co., 183 Ill. 70-74, interest was allowed on money recovered on a penal bond, and in Salomon v. The People, 191 Ill. 290-295, interest was also allowed.

Finding no error the judgment of the Superior Court is affirmed.

Affirmed.


text:
    Max Plutschow, Appellee, v. The Metropolitan West Side Elevated Railway Company, Appellant.
    Gen. No. 15,131.
    Contributory negligen ce—p erson seeking to "board elevated train. Weld, that the plaintiff in this case was guilty of contributory negligence which barred a recovery by attempting to board and in persisting in clinging to a moving car on an elevated railway train after the gates thereon had been closed or were being dosed.
    Baker, J., dissenting.
    Action in case for personal injuries. Appeal from the 'Superior Court of Cook county; the.Hon. Marcus Kavanaqh, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed With finding of facts.
    Opinion filed May 19, 1910.
    Statement by the Court. This is an appeal from a judgment for $1,500 against the defendant in an action for personal injuries.
    The declaration, which contains six counts, avers in substance, first, that the defendant in violation of duty neglected and failed to stop its cars a reasonable length of time at the station to enable plaintiff to board the same with safety, but when plaintiff was in the act of boarding the car and using due care for his own safety defendant caused said car to be suddenly started, throwing defendant against the station platform; and second, that while plaintiff was boarding the defendant’s car the defendant by one of its servants pushed plaintiff with great force arid violence, causing him to be thrown off the car with great violence to and against the platform of the station.
    The accident in question occurred about March 15, 1903, at the defendant’s elevated station at 12th street, Chicago. The first of plaintiff’s witnesses testifies that he was riding in the smoker of the train, consisting of two cars, in connection with which the accident occurred; that he saw a man get on the back platform ■ of the smoker at the 12th street station and another man right behind him getting on, and that just as the last of the two men was getting on the conductor “pushed the gate in front of him and pulled the bell and the car started, and Mr. Man was hanging on the car;” that the conductor “stood right still and didn’t do a thing;” that when the train reached the rail “at the north end of the platform the man was pushed off and fell to the area way below; that the train was stopped and backed up and the man picked up. ” On • cross-examination he says “the man was on, he had one foot on the platform of the ear and then the gate was closed in front of him. It was the right foot. I saw the conductor close the gate against Mr. Plutschow. I did not see it touch him anywhere. The gate was closed. As far as being absolutely closed I cannot say. It was closed for all purposes. * * * The man had his foot over onto the car platform—the right foot. Just had his foot on there, that is all. It might be he had only his toe on. ’ ’ The plaintiff testified in his own behalf that on the evening of March 14, 1903, he had been attending a birthday party, which he left about ten minutes before twelve o ’clock and went to the 12th street station; that a Mr. Hedwick was with him; that Hedwick was in Mexico at the time of the trial; that the two after paying fare went upon the platform of the station and “sat on the bench,” waiting there about fifteen minutes. Plaintiff says: “I saw the car come in. Then I got up off the bench and the car pulled past me and we went to where the car stopped, then Mr. Hedwick gets on and I was right after him- •and just before I stepped on the platform of the car the conductor he runs out one hand and pulls the bell and with the other hand he shuts the gate in my chest. It caught my feet; my right foot I had on the platform of.the car and my left foot about half. My right foot I had right in the car and my left foot was about half and the gate was open about eight inches and I passed inside and Mr. Hedwick he also talked to the conductor to open the gate, and the conductor put his hand in my breast and pushed me back and then the car run fast away and I feel a jab like that (indicating) and then I was all black in my eyes and I fell down below to the ground.” On cross-examination he testifies that he had supper at the party at nine o’clock and “drank three glasses of beer what we call a snip. I drank two at supper and after that I drank two more, and that is all I had. I had not drank anything that afternoon. ’’ ' He further says; “I seen the car coming and we got up to make the train. My friend was about two or three feet ahead of me. He run and I run, too. The train pulls fast in, as fast as it comes to stops. We both ran for the train. Mr. Hedwick gets on the .train and I went to jump on too, and this moment the conductor rings the bell and shut the gate. I got my left feet on the platform of the car and this minute he rings the bell and shuts the gate. My left feet I have half on to it. My left foot and my hand on the gate and I want to push the gate in. The gate was within eight inches of being shut when I got on. The gate was open. When I get on, the gate was open when I had my right foot on and then this minute the conductor he shuts the gate.” He says further: “I got my right foot on. I had got the half of my left foot on. I was in that position when the conductor shoved the gate against me. The gate came against me right here (indicating about the waist line). The train had started up. I can’t tell how far the train had moved at the time the conductor pushed the gate against me. The car was not moving when I started to put my foot on the platform. It was standing still. At this moment he shut the gate, rung the bell and the car is moving on. "When he shut the gate against me I tried to push the gate inside that I get in. The conductor got his hand on my chest and he said ‘Get off’ and pushed me off. Pushed me outside just as the train was starting up. * * * I kept pushing in all the while. My friend was on the platform of the car and he hollered for the conductor and he tried from the inside to open the gate and he couldn’t. I pulled on the outside and the conductor pushed. ‘Go off-’ he said.” This is in substance all the testimony in behalf of the plaintiff so-far as it relates to his attempt to get on the train.
    There is evidence introduced in behalf of" the defendant which tends to show that plaintiff attempted to get on the car after the gates had been closed and the signal for starting given. The conductor of the-train testifies that when the train ’ stopped at 12th street station several persons got off and two or three-got on the cars, that there was no one on the platform when he closed the gates and rang the bell and called out the next station in one coach; that as he turned tecali it in the other coach-he saw the plaintiff having-his hand on the gate and ran and called to him to “let go.” He states that at the time they were about five-feet from the railing on the end of the station platform by which the plaintiff was struck and thrown down entire surface of the ground beneath. The next witness-for the defense was a passenger who testified that “as-the train started a gentleman came up the steps and grabbed hold of the gates and just as the conductor turned around he saw it was too late and he hit the railing, going over; ’ ’ that he saw this man running up the stairway making a run for the train; that the first thing that attracted his attention was when the man was grabbing for the gate; that he “saw the conductor close the gates. When he closed the gate this man was not up to the steps.”
    Another passenger who was in the employ of the American Express Co. and was with the witness last referred to, testified that after the train had stopped and the passengers had got on and after the conductor had closed the gates and “given the bell” and had gone to the smoker and called the next station, the witness and his companion noticed the plaintiff “coming running up alongside the train and grabbed the gates, and by that time the conductor turned around and noticed him, and by being too late the car got to the end of the platform and it forced him over and he dropped below.” He says “there was nobody on the platform at the time except this man;” that the plaintiff “just run from the stairs to get the car as the car was passing along there. He hung to the car, to the gate.” A third passenger testifies that he saw a man behind two other men “running up trying to get aboard the train;” that the last man tried but did not get aboard.
    The plaintiff suffered a broken leg, which although healed has been somewhat shortened and it is alleged he was otherwise injured.
    Addison L. Gardner, for appellant; W. W. Gurley^ of counsel.
    Tatge, Abbott & Keopke and Thomas A. Leach, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

It is contended in behalf of the defendant, first, that the Superior Court erred in not directing a verdict in favor of the defendant at the close of the plaintiff’s evidence; and second, that the verdict is against the weight of the evidence.

As to the first of these contentions defendant insists that the evidence in behalf of the plaintiff shows the accident occurred solely by reason of the negligence of the plaintiff himself.

The testimony in plaintiff’s behalf as to the accident is given by himself and one other witness. This evidence is fully set forth in the foregoing statement.

It is contended by defendant’s counsel that the plaintiff’s evidence tends to show that plaintiff met with the accident by reason of his own negligence in trying to get on the train when the gates were closing, in clinging to the car outside the gate, and that he was brushed off by the railing within about five feet, it is said, after the car started. We deem it unnecessary critically to analyze this evidence to determine whether or not it should be regarded as sufficient to make a prima facie case, since we are compelled to the conclusion that whether so or not, the verdict is not supported by the preponderance of the evidence.

The plaintiff’s statement that he was on the platform at the time the train arrived has no corroboration by any other witness. Three passengers testify to the effect that they saw him running to catch the train and two of them corroborate the conductor, who testifies that he had closed the gates before the plaintiff reached the car. This is consistent with plaintiff’s statement that he and his companion “both ran for the train.” Why they should have run for the train if, when it came up, they had been waiting for its arrival fifteen minutes, the plaintiff does not attempt to explain. If, however, as the preponderating evidence tends to show, plaintiff was late in getting to the station and came running up the stairway and along the station platform as the conductor was closing the gates, and was still some feet away when the gates were actually closed, the statement of the plaintiff himself that he “ran for the train” becomes intelligible. Plaintiff testifies that “the gate was within eight inches of being shut when I got on.” He says the gate came against him at the waist line as he attempted to board the car and that “the train had started up. I can’t tell how far the train had moved at the time the conductor pushed the gate against me.” He thus seems to concede that he was trying to get on a moving train. The conductor testifies that the train made the usual time stop to take on passengers and let them off; that when he closed the gates and rung the bell no one was on the platform, and that after doing this and calling off the next station in one car and when he turned to call it off in the next car he saw plaintiff with his hand on the car gate. As to the charge in the declaration that the conductor pushed the plaintiff off the car, it is not sustained by the evidence. Plaintiff’s evidence tends to show that he put his hand against plaintiff, telling him to get off, while plaintiff apparently might still have done so in safety on the station platform; but the evidence on both sides shows conclusively that it was the rail at the end of the platform which brushed plaintiff off the train. The evidence fails we think to show negligence on the part of the defendant causing the accident and does tend to show clearly that the plaintiff’s injuries were the result of his own negligence in attempting to board and persisting in clinging to a moving car on an elevated railway train after the gates thereon had been closed or were being closed, thus giving full notice that the time for an intending passenger to board the car had passed. The case is not unlike that of Robinson v. Manhattan Ry. Co., 5 Misc. 209 (N. Y.), in which it is said: “The gateman was authorized to act upon the assumption that the intestate when denied entrance into the car would step back on the platform of the station.” In Solomon v. Manhattan Ry. Co., 103 N. Y. 437, it is said: “It is we think the general rule of law, established by the decisions in this and other States,' as claimed by the learned counsel for the respondent, that the boarding or alighting from a moving train is presumably and generally a negligent act per se, and that in order to rebut this presumption and justify the recovery for an injury sustained in getting on or off a moving train, it must appear that the passenger was, by the act of the defendant, put to an election between alternative dangers, or that something was done or said, or that some direction was.given to the passenger by those in charge of the train, or some situation created, which interfered to some extent with his free agency, and was calculated to divert his attention from the danger, and create a confidence that the attempt could be made in safety.”

For the reason indicated the judgment of the Superior Court must be reversed with a finding of facts.

Reversed with finding of facts.

Mr. Justice Baker dissenting.


text:
    Benjamin W. Vinissky, Appellee, v. Israel Lazovsky et al., Appellants.
    Gen. No. 16,626.

    1. Landlord and tenant—what included in demise. The lease of a building for a store and dwelling carries with it the right to the lessee to possess it “in the same manner and with the same beneficial rights” as were then connected with its use and enjoyment. Held, in this case, those rights included the use of a passageway in controversy and an easement therein for all purposes for which it was used by the owner or previous tenant at the time the lease was made.
    2. Injunctions—when lie to protect easement. If a lease of premises includes an easement for light and ingress and egress over a passageway, an injunction will be granted to restrain the owner from improperly closing or obstructing such passageway.
    Bill for injunction. Appeal from Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed May 19, 1910.

      Max M. G-rossman, for appellant; H. J. Rosenberg, ■of counsel.
    William Schreider, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an appeal from an interlocutory order denying a motion by defendant for the dissolution of an injunction.

Complainant filed a bill praying among other things that defendants be restrained pending the hearing “from erecting any structure upon the east seven feet of lot 29” in block 4 of Twelfth Street Addition, etc., “or from obstructing, impeding or hindering the complainant from the full and free use of the said east seven feet as a passage way and from building any structure upon the east seven feet which will obstruct •complainant’s right to air and light.” Averments material to the present appeal are that complainant is owner under a written lease of a leasehold interest in the premises in question described in said lease as follows: “the two story brick building known and described as No. 1719 West Twelfth street, store and basement to be used for wholesale and retail cigar and tobacco business, and the six room flat above to be used •only for resident purposes by him, for the term of five years beginning the First day of May, A D. 1909, and ending the Thirtieth day of April, A. D. 1914.” The lessor, defendant Frank J. Smith, at the time the lease was made owned the whole of lot 29 upon which the brick building described in the lease stands. This lot is 31 feet front by 125 feet deep, and the building stands about seven feet from the east line of the lot, leaving a passage way having a width of seven feet and a fraction on the east side of said lot which was occupied by a sidewalk extending to the rear of the lot and, it is charged, afforded ingress and egress to and from the rear entrance of the building. Complainant avers he was assured by the lessor before the lease was executed that this passage way was part and parcel of the leased premises. On the 7th of October, 1909, the lessor sold and conveyed said lot 29 to one Mier Ladon, subject to complainant’s lease, the latter being then in full possession and occupancy of the leased premises. Subsequently on November 23, 1909, said Ladon, who in the meantime, as appears from affidavits, had repaired the sidewalk on the passage way in question, sold and conveyed the said east seven feet of lot 29 to the defendant Israel Lazovsky. The latter it is alleged is the owner of the adjoining lot 30 east of said lot 29 and has prepared plans and specifications and lot contracts for the erection of a building on his said lot 30, which building is planned to cover all of the said seven foot passage way except a space of “three and a half feet from the east wall over the lower windowsill of the windows of the second floor of the building,” leased to and occupied by complainant. Lazovsky in pursuit of his said purpose has already pulled up and removed the wooden sidewalk on the east seven feet in question and has made a “light and air agreement” with said Ladon, as the bill avers, “with intent to defraud complainant of his rights to the use of the east seven feet of said lot.”

The defendant Lazovsky has filed a sworn answer which was used as an affidavit upon the hearing of the motion to dissolve now in controversy. The answer denies that the lease to complainant includes the use of the seven foot passage way in question and states that prior to the service of the notice of the injunction and without notice of any claim of complainant of the right to use said seven feet, said defendant had let contracts and commenced the construction of the building he proposes to erect on his lot and on said passage way and has dug trenches for the foundation, and alleges that if he does not go on and is not now permitted to go on with the erection of the proposed building, he is threatened by his contractors with suits for damages. The record contains other affidavits and testimony and upon the showing made by the bill and affidavits the application to dissolve the injunction complained of was heard.

The complainant’s bill prays a reformation of the lease to include therein specifically as part of the demised premises the seven feet adjoining the building described in the lease, averring that it was the intention of the lessor and himself specifically to include the said seven feet, which intention, by the mistake of the scrivener, was not expressed in the written instrument. Whether complainant is entitled to such reformation or not it is unnecessary now to consider. It is not disputed that at the time of the purchase by Ladon from the original lessor, as well as at the time of the sale by Ladon to Lazovsky, the complainant was in open and public possession of the leased premises. There is also evidence that Ladon bought with actual notice and knowledge of complainant’s claim under the lease to the control and use of the seven feet in question. Open and public use and possession of the leased premises, the presence of the sidewalk extending along the passage way from the front to the rear of the building occupied by complainant, the fence that the lessor testifies 11 extended out there ’ ’ and1 ‘ belonged to the premises” were notice to all parties sufficient at least to put them on inquiry as to the extent and nature of complainant’s rights therein. In Street R. R. Co. v. Morrison, 160 Ill. 288-301, it is said: “On the other hand defendant in error was in actual, open and visible possession of the premises here involved and such possession was constructive notice of all its interests and rights in the premises.” In Coari v. Olsen, 91 Ill. 273-280, it is said: “This court has uniformly held that actual occupancy is equal to the record of the deed or other instrument under which the occupant claims and a purchaser is bound to inquire by what right or title he holds. The purchaser takes the premises subject to that title or interest, whatever it may be.”

It is evident that if the complainant is entitled under his lease to the use and occupancy of the seven foot passage way in dispute, the defendant Lazovsky purchased and holds his title thereto subject to complainant’s rights. Whether complainant is so entitled is the material question here involved. In Taylor on Landlord and Tenant, vol. 1, chapter 5th, page 192, par. 161 (9th ed.), it is said: “In general the grant of a thing passes the incident as well as the principal, ' though the latter only is mentioned, unless there appears an express reservation. Thus the lease of a building passes everything belonging to it or which is essential to its enjoyment. * * * A lease of a ground floor abutting on a yard also belonging to the lessor and forming part of the same tenement carries the right to have the windows looking on the yard remain unobstructed. * * * A garden is parcel of a house and passes without the addition of the word appurtenances. By the grant of a piece of ground a necessary right of way to it over the grantor’s land ■also passes. * * * A lease of a ‘building’ conveys the land under the eaves if owned by the lessor and his erection of a wall there is an eviction. A lease of a ‘store’ includes the land under it and to the middle of a private way in the rear, the fee of which is in the lessor.” In Riddle v. Littlefield, 53 N. H. 503-509, it is said: “Certain words usually employed in a lease as a house, farm, land and the like have if necessary a very wide meaning; and where such general and comprehensive terms are employed all things usually comprehended within the meaning thereof will pass unless the circumstances of the case show very clearly that the intention of the parties was otherwise. 1 Pars. Con. 499.” In Doyle v. Lord, 64 New York, 432-437, the court quotes from Judge Story in United States v. Appleton, 1 Sumner, 492, as follows: “The general rule of law is that where a house or store is conveyed by the owner thereof, everything then belonging to and in use for the house or store as an incident or appurtenance passes by the grant, unless it contains some restriction that the grantee shall possess the house in the manner and with the same beneficial rights as were then in and belonged to it.”

In the case at bar the'lease of the building for a store and dwelling carried with it the right to the lessee to possess it “in the same manner and with the same beneficial rights” as were then connected with its use and enjoyment. These rights included the use of the passage way in controversy and an easement therein for all purposes for which it was used by the owner or previous tenant at the time the lease was made. The evidence as it now stands makes it apparent the passage way was then in use as a means of access.to the rear of the building from the street in front. Windows opened upon it, giving light to the building. These uses were open and apparent. We are of opinion therefore that in the present state of the record the motion to dissolve the temporary injunction was properly denied. The judgment of the Circuit Court will be affirmed.

!'Affirmed.


author: Mr. Presiding Justice Holdom

text:
    Ella Garvey, Appellee, v. The Metropolitan West Side Elevated Railroad Company, Appellant.
    Gen. No. 15,133.
    1. Damages—when mental suffering appropriate element. Mental suffering is a proper element of damages to be considered by the jury when such is directly traceable to the injury suffered as a result of the negligence charged.
    2. Instructions—when authorizing allowance for mental suffering should not he given. Unless the declaration contains an averment of the fact of mental suffering, an instruction authorizing an allowance therefor should not be given, but the error in giving such an instruction in the absence of supporting averment is condoned if the defendant has caused the court to give instructions in which the jury were practically told that any mental distress or suffering for which damages might be awarded must be such as flow from injuries -caused by the accident;' further, that they must not assess any damages for suffering of a mental character which was not connected with the bodily injuries resulting from the accident.
    3. Verdicts—when excessiveness ground for reversal. If the damages are excessive due to an award predicated upon a serious physical ailment which according to the preponderance of the evidence is not directly traceable to the accident in question, a reversal will be awarded.
    Baker, J., dissenting.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Paul McWilliams, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed June 2, 1910.
    Rehearing denied June 16, 1910.
    Addison L. Gardner, for appellant; W. W. Gurley, of counsel.
    Thomas E. Rooney and Ferdinand Goss, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Plaintiff, while a passenger upon a car of defendant in the early morning when travel was much congested and while standing on the back platform of the rear car, suffered a fracture of her right arm and some bruises upon her back, caused by a train following running into the one on which she was riding. In common parlance the accident was caused by “a rear end collision.” The trial in the Circuit Court was a jury trial. The jury returned a verdict finding defendant guilty and assessing plaintiff’s damages at $7,500. After overruling motions for a new trial and in arrest of judgment the court entered a judgment upon the verdict, and from that judgment defendant prosecutes this appeal. Two grounds are argued for reversal: First, that it was error for the court to give to the jury the instruction which it did, at the request of plaintiff; and, second, that the assessment of damages is excessive.

1st. The particular vice complained about and said to be inherent in the instruction rests in that part of it authorizing the jury to include in its assessment of damages plaintiff’s “suffering in body and mind resulting from such injuries.” This instruction, as a whole, has been passed upon by the Supreme Court without adverse criticism in cases where the charge in the declaration, supported by evidence, made it applicable; and this court did not disturb the judgment in W. C. S. Ry. Co. v. Dougherty, 110 Ill. App. 204, where an instruction similar in every essential particular to the one in question was objected to. Mental suffering is a proper element of damages to be considered by the jury when such is directly traceable to the injury suffered as a result of the negligence charged. N. C. St. R. R. Co. v. Lehman, 82 Ill. App. 238; C. C. Ry. Co. v. Canevin, 72 ib. 81; Same v. Anderson, 80 ib. 71. To entitle mental suffering to be included as an element of damages in cases of personal injury there must be a suitable averment of the fact of mental suffering in the declaration. While the instruction should not have been given with the direction in it for the jury to take into consideration in assessing damages any mental suffering- traceable to the injuries of plaintiff resulting from the accident, because of the lack of a sufficient averment on which to predicate such assessment, yet defendant waived the infirmity by causing the court to give two instructions in which the jury were practically told that any mental distress or suffering for which damages might be awarded must be such as flow from injuries caused by the accident. They were further told, at the instance of defendant, that they must not assess any damages for suffering of a mental character which was not connected with the bodily injuries resulting from the accident. In this condition of the record the error in this regard must be treated as condoned by defendant, and of which it cannot now avail. Smith v. Edelstein, 92 Ill. App. 38; I. C. R. R. Co. v. Mainer, 84 ib. 92. As the court say in Funk v. Babbitt, 156 Ill. 408: ‘ ‘ This court has decided in numerous cases that a party cannot assign for error a ruling made at his own instance, and has no right to complain of an error in an instruction when like error appears in an instruction given at his request.”

2nd. While there is no doubt of the right of plaintiff to recover damages from defendant for the injuries ■sustained through the negligent operation of defendant’s trains, still such recovery must be limited to such damages as are directly traceable to or flow from the injuries actually occasioned by the accident. A careful examination of the evidence convinces us that the damages awarded are excessive and are not sustained by the evidence. The evidence shows that plaintiff’s right arm was fractured; that it was a simple fracture. Her other injuries were bruises in the back and in the vicinity of the spinal column. The union of the fractured bones was complete within six weeks, the usual time for the healing of similar fractures. The bruises ■disappeared within a short time. There were no other objective symptoms which had any causal connection with any other ills which plaintiff claimed affected her. Plaintiff’s counsel claim in argument that at the time of the accident their client “was a strong, healthy, fine looking, active woman, aged about 45 years, ’ ’ and that she worked as a milliner and dressmaker and as a cook at convenient seasons ;• that at the time of the accident plaintiff weighed 195 pounds and just prior to the trial she had shrunk to 136% pounds; that she has not been, able to work since the accident. Dr. Conley testified that plaintiff is suffering from neurasthenia, a tender shoulder joint, which he says is afflicted “with a dry synovitis,” and that such afflictions are traceable to traumatism; that she is nervous to the point of hysteria; and that such condition is permanent. . Several witnesses testify to the loss of weight and sickly appearance of plaintiff since the accident. The defendant’s medical witnesses deny that plaintiff’s present neurasthenic and nervous condition is traceable to the injuries described or to the shock of the accident. Dr. Peterson, who attended plaintiff directly after the accident and was supplanted by Dr. Conley, found from a physical examination that she was suffering from fatty degeneration of the heart. He testified that such condition would not in the beginning affect her general health, but later would have an effect on the general nervous condition; that the condition of plaintiff’s heart which he found could not arise from any form of violence, and particularly that it could not arise from an accident which broke an arm,' but is a condition of general progress and development. The medical men are, as usual, in irreconcilable conflict as to the cause-of plaintiff’s neurasthenic condition, and while Dr. Conley asserts such condition may be attributable to traumatism, Doctors Peterson, Kohn, Hall and Greenfield are equally positive that it cannot bé so traced. The great preponderance on this crucial question is with defendant. The medical witnesses being of equal repute for professional attainments and of unimpeachable veracity, for aught that appears in the record to the contrary, it will not do to concede that the testimony of one can overcome that of four and constitute the preponderance of proof. . Such a finding would be absurd. Yet that is practically the effect which the jury gave to the testimony of these medical witnesses. It is just as essential and imperative that plaintiff maintain by a preponderance of the evidence that her neurasthenic, nervous and synovitis ailments, from which she claimed to suffer at the time of the trial, are-traceable to traumatism resulting from the accident to her while she was a passenger on defendant’s road, as that the other injuries from which she suffered were so traceable. This measure of proof the law imposed upon plaintiff as an indispensable condition to an award of damages. It seems to us more in keeping* with plain common sense that if plaintiff was immediately before the accident a strong, vigorous, healthy woman, whose body was free from disease and not impregnatéd with poisons, that she would have readily-recovered from the fractured arm and few bruises which immediately resulted from the accident, than to believe that to such injuries are traceable her neurasthenic and other ailments. Certainly the latter theory cannot prevail in the light of the overwhelming medical testimony to the contrary. So far as the verdict awards damages for the neurasthenic, nervous and synovial conditions afflicting plaintiff at the time of the trial, it is excessive. What will be compensation to plaintiff for her broken arm and the bruises on her back, etc., occasioned by the collision of defendant’s trains, upon one of which she was a passenger, is the province of the jury to determine. Such damages are of the character designated as “unliquidated,” and while trial by jury obtains the parties are entitled to have these damages assessed by such a body. For the excessive award of damages the judgment of the Circuit Court is reversed and the cause remanded for a new trial.

Reversed and remanded.

Mr. Justice Baker dissents.


author: Mr. Presiding Justice Holdom Holdom, P. J.,

text:
    Anton Sorenson, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 15,138.
    1. Passenger and carrier—when relation established. A person who has bought and paid for his ticket and is upon a station platform of the carrier about to commence his journey, is a passenger.
    2. Passenger and carrier—obligation of latter to former. It is incumbent upon a carrier to use a high degree of care to prevent a passenger from being injured in attempting to board its cars.
    3. Passenger and carrier—what change of custom as to use of tracks constitutes negligence. Meld, under the evidence, in this case, that the failure to warn a passenger of a change in running trains going north upon tracks usually used by the trains going south, was actionable negligence.
    4. Ordinary cabe—what is. What is due care depends upon environing conditions and sometimes involves custom and knowledge actual or attributable to one or the other of the parties.
    5. Contributory negligence—failure to looh and listen. Failure to look and listen for trains approaching from a direction from which the plaintiff had no reason to anticipate their coming, held, not contributory negligence in view of his relation as passenger and the failure of the carrier to warn him of the change which had been made in the use of the respective tracks.
    Holdom, P. J., dissenting.
    Action in case for personal injuries. Appeal from the Superior court of Cook county; the Hon. Robert W. Weight, Judge, presiding. Heard in this court .at the October term, 1908. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 2, 1910.
    Calhoun, Lyford & Sheean, for appellant; John Gr. Drennan, of counsel.
    James C. McShane, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment for $6,000 entered upon the verdict of a jury assessing that sum as damages for personal injuries suffered by plaintiff through negligence charged against defendant. The usual motions were made for a new trial and in arrest of judgment, to the overruling of which exceptions were duly preserved.

The declaration consists of one count, to which defendant pleaded not guilty. There is no serious complaint that the declaration is not sufficient to sustain a recovery, if the proofs fasten a liability upon defendant for the negligence charged. Without adverting at •any length to the averments of the declaration, we will rest content with stating that the negligence charged against defendant was a failure on its part to warn •plaintiff that the train he was about to take going north was, contrary to the usual manner of operating trains, to come to the station platform upon the regular southbound track; that such failure to warn plaintiff led him, in reliance upon the customary method of running-such train, to unwittingly step upon the south-bound track on which the train was proceeding north, causing" him to be struck by its engine and so injured that his-right leg had to be amputated. The evidence discloses, without contradiction, that plaintiff lived at West Harvey in Chicago, and was about to take a train of defendant at its 147th street station to go to his work at Pullman. He bought a ticket for the journey and the-night being cold he alternated between the platform,, looking for the coming of the train, and the station, in which to warm himself. On account of the derailment, of a train at Biverdale, a point on defendant’s road north of 147th street, it was temporarily operating its-north-bound trains on the south-bound track. Plaintiff was in the habit pf using defendant’s trains in going between his home at West Harvey and his work at. Pullman, and was informed as to the custom of defendant in running its trains. Plaintiff, while standing on the west platform and looking south, saw a light which he took for an approaching train and the one he-intended to take to Pullman. He then walked north on the west platform about seventy fe.et, so that he-might be in a position when the train stopped to board the forward car, which was a “smoker,” because he-was smoking. He walked slowly and did not again look to the south, but stepped on the west track, the-south-bound track, and was struck by the north-bound1 train running on the south-bound track. While he-heard the train approaching he did not look for it, but. assuming that it was running along on the track next: east of the west track, which was the track on which; trains travelling to the north usually ran, kept unhaltingly on his way. To that time he had never known of a north-bound' train running on the south-bound track.

At the close of plaintiff’s proofs defendant moved for an instructed verdict, which being denied, it excepted. This action of the court is assigned for error, as also the actions of the court in overruling defendant’s motion for a new trial and in its rulings on instructions.

Although plaintiff was not on board the cars of defendant at the- time of being injured, still he was a passenger to all intents and purposes, sufficiently so to impose. upon defendant the duty to exercise the highest degree of care for his safety. He had bought and paid for his ticket and was therefore lawfully upon the station premises, the place from which he was to commence his journey. These facts .constituted him a passenger. I. C. R. R. Co. v. Treat, 179 Ill. 576. Such relationship continues until the passenger has made his journey, safely alighted from the car and made his exit from the carrier’s place of disembarkment to the public highway. C. T. R. R. Co. v. Schmelling, 197 ib. 619. The evidence therefore establishes the fact that at the time of the accident the relation of the parties to each other was that of carrier and passenger. It was therefore incumbent upon defendant to use a high degree of care to prevent plaintiff from being injured in attempting to board its cars. The instructions, therefore, which announced in varying forms such duty were not subject to the objections made to them by defendant.

"Whether plaintiff was in the exercise of due care for his own safety at and immediately prior to the time of the accident was one of fact for the jury to determine. What is due care depends upon environing conditions and sometimes involves custom and knowledge actual or attributable to one or the other of the parties. Therefore in the instant case it was for the jury, in determining the question of due care on the part of plaintiff, to take into consideration his knowledge of defendant’s custom in operating its trains upon certain tracks, and whether in relying thereon he was injured, or that in failing to take other precautions for his safety negligence was imputable to Mm.. With these facts in mind and the further undisputed fact that defendant did not warn plaintiff of the change in running its trains to the north on the south-bound track, the court could not say as a matter of law that plaintiff was not in the exercise of due care, for, as said in N. C. St. R. R. Co. v. Irwin, 202 Ill. 345, “But whether he had the right to rely solely upon his knowledge of the custom and to omit other precautions and yet be deemed in the exercise of ordinary care, was a question of fact to be determined by the jury upon consideration of all the testimony bearing upon the point.” N. C. St. R. R. Co. v. Kaspers, 186 ib. 246; C. C. Ry. Co. v. Lowitz, 218 ib. 24. The denial of defendant’s motion to instruct a verdict was not error.

It is argued that the court below erred in denying defendant’s motion for a new trial because the verdict is not sustained by the evidence.

The right to recovery, if it exists, rests solely upon the theory, supported by the proof, that failure to warn plaintiff of the change in running the trains going north to the tracks usually used by trains going south, was actionable negligence. There is .comparatively little dispute as to the crucial facts supporting this theory. It is proven by the evidence that plaintiff was and had been for some time previous to the accident a regular patron of defendant’s cars in going to and from Pullman, boarding the north-bound trains at the place of the accident; that he knew the rails upon which the trains were run; that to meet the exigency of conditions arising from a train being derailed north of the 147th street station of defendant, it caused the north-bound train* wMch struck plaintiff, to be run upon the track customarily used for trains running in an opposite direction; that plaintiff relied upon his knowledge of the custom in regulating his movements, and with knowledge of the approach of the train paid no attention to the fact of what direction or upon what set of rails it was running. He knew it was coming toward the station; he heard it; he did not look, but rested in the security of the custom that its point of arrival was the track next east of the west track. It is contended consequently, in effect, that plaintiff in view of these facts and under all the circumstances in evidence was in the exercise of due care, and that the failure of defendant to warn plaintiff of changed conditions was negligence, and that failure to look or listen for the approach of the train was not, under these circumstances, want of due care on plaintiff’s part. C. C. Ry. Co. v. Fennimore, 199 Ill. 9.

The question here under discussion is not free from difficulty. Failure to look and listen for the approach of trains, the alighting from and boarding a moving car, have been held by our Supreme Court, in certain circumstances, not to impute to a passenger so acting • want of due care. A contrary doctrine has been pronounced in Massachusetts and in the Federal Court. In Chaffee v. B. & L. Ry. Co., 104 Mass. 108, the court say: “A person who attempts to cross a railroad track under any circumstances can hardly be in the exercise of due care unless he takes reasonable precaution to assure himself by actual observation that there are no approaching cars upon it.” In Southern Rys. Co. v. Smith, 86 Fed. 292, the court held that the railway company was guilty of such negligence as fixed its liability, providing the plaintiff was in the exercise of due care at the time he was injured. Smith, while crossing the railroad tracks to take a train, was injured by a train going in the opposite direction at a high rate of speed striking him, of the approach of which Smith was neither warned nor made aware; but bis failure to use his faculties to discover the condition was held to inhibit his right to recover. On the other hand, Elliott on Railroads, sec. 1157, vol. 3, states the doctrine thus: ■“Although not originally under obligation to do so, if the company has maintained a flagman at a particular crossing for a lonsc time and his presence is notorious, travelers have within limits a right to assume, when he is absent, that no train is approaching, and his absence or permanent removal without notice to the public is evidence of negligence”. Sustaining this dicta of Elliott is Ernest v. H. R. R. R. Co., 39 N. Y. 61, and Casey v. Same, 78. ib. 518. In the Ernest case the court say: “The company, for their own convenience, may elect to place a flagman at certain crossings, and, by establishing a practice of that kind they make a law binding upon themselves.

“Where, by such voluntary and continued practice, it has become notoriously public that a flagman is placed at such crossing to give notice of the approach of trains, then to withdraw such flagman without notice may become an act upon the part of the company for which they would be liable. ’ ’

We hold as a matter of law that the jury might.properly find from the evidentiary facts above recited, that failure of defendant to warn or notify plaintiff of the change in the running of its north-bound train was negligence, and that such negligence was the proximate cause of the injury suffered by plaintiff, in compensation for which the jury might award damages.

A careful examination of the instruction challenged by defendant does not disclose any infirmity calling for a reversal of the judgment. No instruction given was calculated to divert the attention of the jury from the theory of defendant’s liability as above declared; nor was any instruction proffered by defendant and refused by the court hurtful to defendant, as none of them stated any proposition of law in harmony with such theory.

Finding the record free from reversible error, the judgment of the Superior Court is affirmed.

Affirmed.

Holdom, P. J.,

dissenting. The undisputed fact that plaintiff was consciously aware of the approach of the train and made no effort to inform himself on which track it was proceeding, when the slightest glance would have revealed its location, in my judgment fastens upon plaintiff negligence proximately causing the accident, and that the negligence of defendant in not warning plaintiff of the change in running the train, while a contributing cause, was not the proximate cause of the accident. The assumption by plaintiff ■ that the custom of running the train would not be varied was unwarranted, and his so assuming constituted want of due care on his part for his own safety.


text:
    The People of the State of Illinois, ex rel. James P. Kearns, Appellant, v. Fred A. Busse, Mayor, Appellee.
    Gen. No. 15,146.
    1. Dram-shops—when consent of voters condition precedent to license. If an ordinance requires that a petition signed by certain voters shall be a condition precedent to the granting of a license, the fact that the application for a license is in the nature of an application for the renewal or extension of a previous license is immaterial. The petition is none the less essential.
    2. Ordinances—when contemporaneous construction does not affect. Contemporaneous construction by municipal officers cannot be resorted to where such ordinance is plain and free from ambiguity. A construction or interpretation of the ordinance involved contrary to the principles announced in the adjudicated decisions, by administrative officers, being wrong, will not be held to be right because long persisted in. =>
    . Mandamus. Appeal from the Circuit Court of Cook county; the Hon Georoe A. Carpenter, Judge, presiding. Heard in court at the October term, 1908. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 2, 1910.
    John" F. Gaviu, for appellant."
    Edward J. Bruudage and William K. Otis, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The relator filed his petition praying for the writ of mandamus commanding the respondent, the Mayor of Chicago, to issue to relator a license to operate a saloon for the sale of intoxicating liquors at 2499 West Lake street in the city of Chicago. To this petition respondent filed a general demurrer. The learned trial judge, after hearing arguments of counsel for the respective parties, sustained the demurrer and relator electing to abide by his petition, it was dismissed and a judgment rendered against him for costs. From this judgment relator prosecutes this appeal.

It appears from the averments of the petition that relator had conducted a saloon in the town of Cicero since the year 1888, and that since 1899 Ms saloon was located at 2499 West Lake street in the town of Cicero; that in 1899 the town of Cicero was annexed to the city of Chicago, since which time it has formed a portion of that municipality; that in 1874 the town of Cicero passed an ordinance regulating the licensing of saloons for the sale of malt, vinous, spirituous, and other intoxicating liquors; that the section of such ordinance involved in this contest reads as follows:

“No application for a license to sell or give away fermented, malt, vinous or intoxicating liquor shall be granted unless the same shall be accompanied by a petition praying that a license to sell liquors may be granted to the applicant, stating the exact locality where theoapplicant proposes to sell liquor, signed by a majority of the legal voters residing within one-half of a mile of the proposed place where the liquors are to be sold.”

This ordinance it is admitted has been in force since its passage and was in force at the time relator petitioned for the license sought to be procured by force of this mandamus proceeding. It also appears that after annexation the yearly license fee was increased from $500 to $1,000. Eelator makes the following averment in his petition: “Petitioner alleges that he is entitled under the law to a renewal of his license for the year commencing May 1, 1908, by the payment of the license fee provided by the ordinance of the city of Chicago without filing a petition signed by a majority of the legal voters residing within one-half mile of his place of business and upon filing bonds required by law.” Delator complied with all the provisions of the ordinance, saving only that he did not file the petition signed by a majority of the legal voters residing within the territory as required by the ordinance.

While other questions are argued, the only one calling for our determination is the necessity or not of relator’s filing the petition signed by the voters provided by the ordinance. The relator having previously filed such petition when former licenses were procured, the question arises whether on an application for a license in the nature of a renewal, that part of the ordinance must be again complied with as a condition precedent to the granting of a new license.

The selling of liquor is a lawful business in Chicago when, and only when, the seller is licensed to conduct such business. Without such license the business is unlawful. The operation of a saloon is controlled in the city of Chicago by certain ordinances enacted in virtue of the exercise of the police power delegated to the municipality by the State. The right rests in the city either to suppress or regulate the traffic in intoxicating liquors. Such is the effect of the decision in The People etc. v. Cregier, Mayor, etc., 138 Ill. 401, where the court say, in speaking of the saloon business: “The right therefore to engage in this business and to be protected by law in its prosecution can no longer' be claimed as a common law right, but is a right which can be exercised only in the manner and in the terms which the statute prescribes. The refusal to license deprives no man of any personal or property right, but merely deprives him of a privilege which it is in the discretion of the municipal authorities to grant or withhold. It also follows that to adopt the policy of prohibition requires no affirmative act on the part of the authorities authorized to provide for granting licenses. Mere non-action on their part of itself results in prohibition. ’ ’ Wall v. Allen, 244 ib. 456.

The power of the municipality over the liquor traffic is complete, and its action in its regulation conclusive. It is clear from the Cregier case supra that failure on the part of the municipality to enact any licensing ordinance would result in establishing prohibition,within the municipal limits. A repeal of existing ordinances without the enacting of any others on that subject would bring about a similar result. Nevertheless where licensing ordinances exist and an applicant for a license has complied with all their essential provisions, such applicant would not only be entitled to demand a license, but on failure to obtain the same from the properly- constituted authorities to compel the issuance 'of such license by appropriate mandamus proceedings. The filing of the petition containing the consent of a majority of the voters residing within the half mile limit provided for by the ordinance is a condition-which relator must comply with before he is in a position to demand a license. This is an essential ■condition which cannot be dispensed with. The meaning of this provision is plain and applies to every application for a license, whether sought for new premises or for a place formerly licensed as a saloon. The reason for the enforcement of such provision is not hard to discern. The voters resident within such lim-' its may, between the time of granting a license and an application for a new one, have materially changed, so that a majority of the voters within the territorial limit may be opposed to the granting of a license and unwilling to yield their consent that the saloon be further continued in business. As sometimes happens, the manner of conducting such saloon during the preceding year may have become obnoxious to a majority of such voters, and they may be desirous of having it suppressed. The ordinance in question clothes them with the power to prevent its further operation, and they have the privilege of availing of the right thus conferred.

It is urged with much confidence by counsel for appellant that the contemporaneous construction of this ordinance by administration officers is controlling and binding upon the courts. Such construction put upon the ordinance limited the necessity of obtaining the voters’ consent to the first application for a license, and did not extend to any subsequent application for a license on premises already established under a license where such consents had been primarily obtained. Such contention, we think, is fallacious and contrary to legal precedent. Contemporaneous construction by such officers cannot be resorted to where such ordinance is plain and free from ambiguity. As said in Jarrot v. Jarrot, 2 Gilm. 1, “If it could be said that the language of the constitution was clear and free from any doubt, a contrary legislative and administrative construction would have no weight.” And as again said in Burke v. Snively, 208 Ill. 328, “It is a primary rule that the meaning of a constitutional provision is to be ascertained from the language employed therein, and that it is only when ambiguity is found and the meaning is doubtful that the extrinsic aid of practical construction given by other departments of the State is to be resorted to.” In U. S. v. Graham, 110 U. S. 219, the Federal Supreme Court said of a law which it considered lacking ambiguity: “Such being the case,-it matters not what the practice of the department may have been or how long it continued, for it can only be resorted to in aid of interpretation, and it is not allowable to interpret what has no need of interpretation. If there were ambiguity or doubt, then such practice began so early and continued so long would be in the highest degree persuasive if not absolutely controlling in its effects.” A construction against the plain meaning of a law as expressed by its terms is never indulged, not even in aid of justice or right or to avoid an absurdity.

The court say in State Board of Health v. Boss, 191 Ill. 87, “When the language of a statute is clear and plain there is no reason for construction, and we are not at liberty to speculate upon what was the intention of the legislature.” Martin v. Swift, 120 ib. 488; Ottawa Gas Light Co. v. Downey, 127 ib. 201; C. M. & St. Paul R. R. Co. v. Dumser, 109 ib. 402; Springfield v. Edwards, 84 ib. 626.

The following language of the court in Beardstown v. Virginia, 76 Ill. 34, is pertinent and controlling in the case under consideration: “It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. Statutes and contracts should be read and understood according to the natural and most obvious import of the language, without resorting to subtle or forced construction for the purpose of either limiting or extending their operation.”

A construction or interpretation of the ordinance involved contrary to the principles announced in the decisions cited, by administrative officers, being wrong, cannot be held to be right because long persisted in. The erroneous conduct of such officers is of no controlling force and cannot be availed of to influence our decision or persuade us to depart from the settled canons of construction.

No case cited in support of counsel’s theory of the' binding force of the construction of the ordinance in question by the officers administering it can be said to hold any doctrine contrary to that announced in the cases referred to and quoted from in this opinion. The ultimate result reached in each case is reconcilable with the doctrine so uniformly pronounced and adhered to by our Supreme Court whenever official interpretation of the constitution or statutes has been violative of the plain meaning of the words used to express the intent and where the language in which such intention is couched is free from ambiguity. And ordinances of a city are municipal statutes.

The relator having failed to comply with that provision of the ordinance above cited was not entitled to receive a license for the continued operation of his saloon. The petition not stating a case entitling relator to a license to further operate his saloon, the de-. murrer thereto was properly sustained, and the judgment of the Circuit Court dismissing the petition at the cost of relator is affirmed.

Affirmed.


text:
    Sallie M. Thomas, Appellant, v. Morris S. Thomas, Appellee.
    Gen. No. 16,042.
    1. Divorce—when cross-hiTl germane. A cross-bill is germane to an original bill charging desertion which does not pray for divorce but which does seek the custody of the children of the marriage upon the ground of the desertion of the complainant charged in such cross-bill.
    2. Divorce—jurisdiction as to awarding custody of children. A court of chancery by assuming jurisdiction of a proceeding for divorce becomes vested with power to make such distribution of the children of the marriage as may be for their best interests. The custody of such children may be awarded to either or neither of the parents.
    3. Divorce—jurisdiction over children irrespective of entry of decree of annulment. Notwithstanding the complainant in a divorce proceeding abandons her bill and the defendant though entitled to a decree refuses to accept one, the court has jurisdiction to award the custody of the children of the marriage to such defendant.
    Divorce. Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in court at the October term, 1909.
    Affirmed.
    Opinion filed June 2, 1910.
    Follansbee, McConnell & Follansbee, for appellant.

      C. C. Poppenhusen and Joseph L. McNab, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is a cause matrimonial, in which the wife sought a divorce from her husband on the grounds of desertion. After filing her bill the wife fled the jurisdiction of the court, taking with her one of the two sons, the fruit of the mismated union, named Carr M. While the wife has been traced to various places in this country and beyond seas to the oriental city of Yokohama, the record is silent as to her whereabouts and that of the boy, Carr M., at the time of the entry of the decree from which the wife prosecutes this appeal. After answering the bill, in which all charges of desertion were denied, the appellee husband interposed a cross-bill charging his wife, the appellant, with desertion, and not wishing a decree of divorce, did not pray for that relief, but desiring to have awarded to him the ■custody of the two children of the marriage, prayed for their custody and that the boy, Carr M., be returned to the jurisdiction of the court and delivered to him. To this cross-bill appellant answered the charge ■of desertion and demurred to-the remaining part, which prayed for the custody of the children. This demurrer was overruled and the cross-bill taken as confessed. The cause being reached on the trial calendar all the parties appeared by their counsel, appellant not appearing in person, although appellee did. Counsel for appellant thereupon moved the court to dismiss the original bill, but appellee- objecting the motion was denied. The cause then proceeded to trial upon the averment of the cross-bill, and notwithstanding the cross-bill had been taken as confessed on the part of appellant, she was permitted to and did offer all the evidence her counsel desired or was able to offer. Nothing proffered as proof by appellant’s counsel'in behalf of their absent client was refused. After a patient hearing and giving counsel for appellant every opportunity to present their client’s case under the pleadings, the learned chancellor ordered appellant to return the child, Carr M., to appellee within thirty days. Appellant not complying with this order, the court after the lapse of thirty days from its entry proceeded to a final decree, dismissing appellant’s hill for want of prosecution, finding categorically every averment of the cross-bill of appellee to be true as charged, adjudging him to be a fit and proper person to have the care and custody of the children of the marriage, Benjamin M. and Carr M. Thomas, and awarding them to him, and enjoining appellant from in any manner interfering with their custody by appellee until the further order of the court. However, the court retained jurisdiction of the cause for the purpose of disposing of all questions arising from the failure of appellant to return Carr M. Thomas to his father within thirty days from May 13, 1909, the date of the entry of that order.

The propriety of the decree is not disputed by either of the parties, and we do not, therefore, feel called upon to express either our concurrence or disapproval of it.

Appellant states and argues two propositions, viz:

First. That the cross-bill is not germane to the subject-matter of the original bill, and that the court should have sustained the demurrer filed to it.

Second. That the court had no jurisdiction to decree the custody of the children without entering a decree of divorce.

Although we shall strictly confine this opinion to the disposition of the two points above stated, still we are neither unmindful nor inappreciative of the excellence of the briefs submitted by counsel, containing, as they do, a wealth of authority, the result of their diligence, learning and zeal for the cause they each represent. While our disposition might, if indulged, lead us to follow counsel in discussing the numerous authorities to which we have been so interestingly referred, still such task is not imperative to a proper or intelligent disposition of this appeal, and the backward state of the docket inhibits our indulgence in any effort which might savor or appear to be a work of supererogation.

First. We think it axiomatic that whenever a court of chancery takes jurisdiction of a matrimonial cause, the children of such marriage, if there are any, are involved, and their custody, nurture and training are the care and solicitude of the court. Whenever the domestic relations are such that the hearthstone is shattered and the family home destroyed and equity is appealed to to adjust the differences existing between the husband and the wife, the chancellor should always inquire as to the children of the marriage and provide for their welfare and give them to the custody of whichever party it may be for the best interest of the children to be entrusted to; and should, when necessary, go to the extreme of giving them to the custody of a stranger when neither of the parents is a fit or proper person to retain and nurture them. It is the policy of the State to care for the children of the Republic- and to see to it that their best interests are conserved. It will not do for a husband or wife to seek the aid of a court of equity to straighten out domestic tangles and by failing to mention the children of the marriage to the chancellor, as iñ the instant case, deprive such children of the protection of the court and care for their well being and proper bringing up. A court of chancery sitting as a court of divorce will, where necessary in the interest of the children, deliver them from the selfishness of a parent and provide by decree for their best interests, and this it will do even against the protest of both parents in an emergent case. As an example we might suppose that this cause had gone to a hearing on appellant’s bill and appellee had confessed the desertion charged, so that a decree against him must follow. Tet he says to the chancellor, “While I do not love my wife, I do love, most devotedly, my •children, and I cannot bear the thought of being separated from them. My wife is a globe trotter and I can’t run after her all the time. I am domiciled here where my business interests are and where my marriage took place and my children were born. My character is good. I am in every way a fit and proper person to be entrusted with my children. Give them to me so that I may care for and educate them in the city of their birth”. Under such circumstances and conditions the chancellor would be unmindful of his duty if he failed to heed such an appeal and grant the request. That is substantially this case, shorn of the cross-bill, on the assumption of appellee’s willingness to gratify appellant’s desire for a divorce by conniving at her deception of the court as to the truth of the charge of desertion.

Without the statute providing for divorce, none could be granted. Neither can a divorce be procured save for the causes mentioned in the statute. However, when the court obtains jurisdiction in a cause for divorce, it is vested by section 6 of the Act, chapter 40, R. S., with all the attributes of chancery jurisdiction except where otherwise provided by the Act. - By section 13 the court is vested with power over the custody of the children of the marriage pendente lite, and by section 18 of their permanent care and custody by the final decree fixing and disposing of the rights and ■status of all concerned. We therefore hold that the averments of the cross-bill relating to the custody of the children of the marriage were sufficiently germane to the subject-matter of the original bill of appellant for divorce to make such cross-bill invulnerable against ■attack on demurrer.

Second. Whether the court could enter a decree on the cross-bill disposing of the custody of the children -of the marriage without awarding a divorce, because of the fact that appellee did not so pray in his cross-bill, is not altogether free from doubt. The main object of the bill and cross-bill was divorce. Bach charged the other with being guilty of the same offense, which by the divorce statutes supra entitled the innocent party to a decree severing the bonds of matrimony. The custody of the children was an incident and collateral to the divorce prayed. There can be little doubt as to the Superior Court being invested with full equity powers and prerogatives in all equity causes to the same extent as the courts of chancery under the English practice and procedure. But a matrimonial cause was never an adjunct of the jurisdiction of the court of chancery, and is not jurisdictional in that department now under the existent Judicature Act. But in minios it is different; the equity side of the court has been invested with exclusive jurisdiction in matrimonial causes, and the practice and procedure of such courts have been extended to embrace such causes. The point under discussion has not received judicial interpretation in this jurisdiction, and counsel have failed to cite any case directly in point, for the cogent reason, we take it, that their careful research has failed to disclose any such case. Certain it is, that a painstaking search on our part has met with no reward. True it is, there are cases which hold that where a decree of separation is refused the court will decline to pass upon or consider the question of the custody of the children. Such was the holding of the New York Court, and its reason was grounded on the failure of the statute to so provide. But here there is no denial of divorce. Neither was such relief denied on the original bill. The right to a divorce was abandoned by appellant by failure to prosecute, and by appellee by declining to accept a decree. Had the court decided that neither party was entitled to a decree of divorce, then, on well settled principles, each party being without standing in the court of conscience, that court, would leave them in statu quo and grant no relief to either. It seems to .us the rule stated in 9 Am. & Eng. Ency. Law, 867, is in principle strongly in point and helpful to a solution of the question under discussion. The rule is thus stated: “Courts of equity.have power to award the custody to one of the parents where they are separated, but it is doubtful whether such power can be exercised when a divorce is denied. When" such power is given by the statutes the courts act upon the same principles as where a divorce is granted, the aim being to select the best guardian.” Our statute, which provides for the custody of the children of the marriage pendente lite and also for their custody on the entry of a decree of divorce, certainly comes within the character of statutes announced in the rule supra. It is evident that the law making power of this State intended to vest courts of equity with full plenary powers over the children of a marriage involved in a divorce proceeding.. Applying the rule to the condition confronting us in this case, what do we find? 1st. The parents of the children separated. 2nd. A divorce has not been denied to either party, although not granted to either one of them. 3rd. The chancellor has selected appellee as the best person to be the guardian of his children. As to the first proposition there is no controversy. While it is true as to the second proposition that no decree of divorce has been entered in favor of either party, still not for the reason that neither is entitled to a divorce, for appellee certainly was entitled to one if he had consented to take such a decree. It is not disputed that the chancellor in choosing between the parents acted wisely in his choice of appellee as guardian of his children. It is self-evident that wandering around the world is not conducive to the proper bringing up of children. The home is the place to rear children, surrounded as it should be by refinement and the example and control of parents who dwell together in amity and influence and nurture their children in love. A home, according to American ideals, is fixed. Appellee has a home; appellant is a rover and has no home. Appellee is well equipped mentally and financially, and as the father of his children and the possessor of a home in a fixed place in the city of the children’s birth, where friends and relatives also live, is, we think, indisputably the best person to be entrusted with the guardianship of his children. The court in so decreeing acted for the best interests and welfare of the children. Such welfare is the primary concern of a court of chancery and will outweigh every other consideration and claim.

The logical outcome of appellant’s contention would be to relegate appellee to the remedy furnished by habeas corpus to regain the custody of his son Carr M. from his wife. Under the facts in this record, it is not seriously contended that appellee is not entitled to the custody of the absent son, or that the same facts would not procure for appellee such custody in a habeas corpus proceeding. Notwithstanding the Superior court, as an incident of the divorce suit, had power to control the custody of the children of the marriage, yet counsel for appellant in effect contend that because of a failure to procure a decree of divorce the court loses jurisdiction to decree the custody of the children. We are of the opinion that the court having acquired jurisdiction of the parties and incidentally of the children, no necessity exists for recourse to a writ of habeas corpus in an effort to enforce'the right over which such court already has jurisdiction. Moreover, in this ease such procedure would be abortive to bring about the result desired or to enforce the right demanded. Appellant is out of the jurisdiction of the court and her whereabouts is unknown. The child, Carr M., is at some place unknown to appellee, but known to appellant, for wherever he may be it is infer-able from the record that he was placed there at the instance of appellant. It follows that no writ could be served upon her and that no process can reach the boy. Therefore unless the decree as to custody of the children is valid, appellee is without remedy and the law is impotent to afford him that relief which the merits of his cause entitle him to. And should it be held that such decree is invalid, appellee is in danger of losing his son, Benjamin, whom he will retain, not in virtue of the decree of the court, but by the sufferance of his runaway wife.

We are constrained to the opinion that the children of the marriage of the parties to this cause became wards of the court eo instanti when appellant filed her bill for divorce, and that where the interests of such children are vitally at stake, the parents cannot by any action on their part, deprive such children of the protection of the court. That the undisputed facts that appellant had no cause for divorce, had fled the State taking her son Carr with her, that she has secreted Carr and placed him somewhere out of the reach of appellee, that appellant is confessedly a truant wife and appellee is in every essential a proper person to have the custody of his children, that his influence over them and care for them is for their good and their best interests, and that unless he procures such custody and control in force of the decree entered he is. remediless in the matter, make so strong a case of right and justice, based on sufficient jurisdiction, as to impress us with the conviction that the decree is maintainable, and that to hold to the contrary would be trifling with justice, resulting in the denial of an undisputed right and jeopardizing the welfare and life of the children of the Thomas marriage,, who are the wards of the chancery court.

Believing the decree appealed from was within the jurisdiction of the Superior Court to enter, it is affirmed.

'Affirmed.