text:
    Hubbard Marx, Defendant in Error, v. Chicago Daily News Company and Henry Pierson and Charles B. Pierson, trading as S. N. Pierson & Sons, Plaintiffs in Error.
    Gen. No. 20,397.
    1. Municipal Court op Chicago, § 13

      —what is nature of affidavit of merits. An affidavit of merits filed in the Municipal Court serves all the purposes of a plea, and it is not necessary that a plaintiff prove any fact that in such affidavit of merits is admitted to he true.
    2. Roads and bridges, § 228

      —when violation of ordinance not proximate cause. The violation of an ordinance prohibiting the stopping of a vehicle with its left side to the curb is not the proximate contributory cause of an injury to a horse" attached to a wagon drawn up in such manner, where the horse was injured by another horse which, with a wagon attached, had gotten beyond control and had run into such horse after having turned from a cross street at a rapid pace.
    3. Negligence, § 49

      —what are elements of proximate cause. To constitute proximate cause the injury must he the natural and" probable consequence of the negligence, and he of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Matz, Fisher & Boyden, for plaintiffs in error.
    Daniel L. Madden, for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

The plaintiff, Hubbard Marx, recovered a judgment in the Municipal Court against the Chicago Daily News Company, Henry Pierson and Charles B. Pierson, defendants, for $91.50, for damages to the plaintiff’s horse and wagon, caused by the alleged negligence of defendants in “running their horse and wagon into the horse and wagon of the plaintiff,” upon a public street in the city of Chicago.

The plaintiff is an oil peddler, and was peddling oil to customers along Dearborn street soath of Twenty-second street. He came up from the south, and just before the accident had crossed from the east side of the street to the west side, stopping at the west curb, facing north, in front of a customer’s place. A horse drawing a wagon filled with newspapers, and driven by an employee of the news company, came from the east along Twenty-second street, turned south-west into Dearborn street, going at a gallop, and ran into the plaintiff’s horse with such force that it was seriously injured and the horse attached to the newspaper wagon was killed. The driver of the horse that was killed admitted that his horse was running away, and that in order to stop the horse, he “yanked” and “sawed” on the lines and “ran him up against the curbstonethat the cause of the runaway was the breaking of a trace and the “holdback” strap of the harness; that the horse had often run away, and at least once before from a similar cause. A city ordinance was introduced in evidence, which provides that “no vehicle shall stop with its left side to the curb. ’ ’

Upon this state of facts, the defendants insist that there is nothing in the record to show that the Piersons were in any way responsible for the accident. The plaintiff’s statement of claim avers that his claim is for damages “caused through the negligence of the defendants, their agents and servants, in running their horse and wagon into the horse and wagon of the plaintiffs,” etc. The defendants filed an affidavit of merits, which states that “the defense of the defendants to said suit is as follows: That the defendant, the Chicago Daily News Company, did not, by its agents and servants, nor did the defendants, Henry Pierson and Charles B. Pierson, carelessly or negligently conduct or drive their horse and wagon, as alleged in plaintiff’s statement of claim; but on the contrary, conducted and drove said horse and ivagon with all due care and caution; furthermore, that if defendants' horse and wagon came in contact with plaintiff’s horse and wagon, as alleg’ed in plaintiff’s statement of claim herein, said collision was caused by the plaintiff’s own fault and lack of care, ’ ’ etc. It will be noticed that in this statement of their defense, the defendants not only do not deny the allegation that it was “their” horse that ran into the plaintiff’s horse, but they aver that they “conducted and drove said horse and wagon.” The present contention of defendants-’ therefore raises the question whether it was necessary for the plaintiff to prove that the runaway horse was in the possession and control of the defendants at the time of the accident, when the affidavit of defense shows affirmatively that such was the fact.

There is no statute which gives to an affidavit of defense filed in the Municipal Court the force and effect of a plea filed in the Circuit or Superior Court. But if such an affidavit is filed, whether it is filed voluntarily, or in compliance with some general or special rule of the Municipal Court, it serves all the purposes of a plea, and we can see no reason' why the plaintiff should thereafter be required to prove any fact that is therein admitted to be true. The statement that the defendants “conducted and drove” the horse that ran into the plaintiff’s horse and wagon, amounts to an admission that the horse was in their possession and control, and it is axiomatic that facts admitted do not have to be proved. We are, therefore, of the opinion that the point made is not well taken.

It is also urged that the plaintiff was guilty of contributory negligence, because at the time of the accident, his wagon was. standing “with its left side to (he curb,” in violation of the city ordinance above mentioned. Defendants’ counsel concede that the rule which makes the proved violation of a city ordinance prima facie evidence of negligence does not preclude a recovery in this case, unless it also appears from the evidence that such violation proximately contributed to cause the injury complained of. In Seith v. Commonwealth Elec. Co., 241 Ill. 252, there is a very full and complete explanation of what is meant by the term “proximate cause.” It is there said: “To constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence. It is not necessary that the person guilty of a negligent act or omission might have foreseen the precise form of the injury, but when it occurs it must appear that it was a natural and probable consequence of his negligence. If the negligence does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the two are not concurrent and the existence of the condition is not the proximate cause of the injury. * * * The test is whether the party guilty of the first act-or omission might reasonably have anticipated the intervening cause as a natural and probable consequence of his own negligence, and if so, the connection is not broken; but if the act of the third person which is the immediate cause of the injury is such as in the exercise of reasonable diligence would not be anticipated and the third person is not under the control of the one guilty of the first act or omission, the connection is broken and the first act or omission is not the proximate cause of the injury.”

The question whether the plaintiff’s violation of the city ordinance was a proximate contributing cause of the injury in question depends, therefore, upon the question whether the plaintiff, in stopping his wagon “with its left side to the curb,” ought reasonably to have anticipated, as a natural and probable consequence of his negligence in that respect, that his horse and wagon might be run into and injured by another horse and wagon over which he had no control. We think the latter question must be answered in the negative. Doubtless the plaintiff might reasonably have anticipated that, as a natural consequence of his act, his horse might be injured by others passing southward on the west side of the street in the usual and customary manner; but we think it cannot be held as a matter of law, nor found as a conclusion of fact, that a reasonably prudent man, situated as the plaintiff was, just before the accident, would have anticipated that as a natural consequence of his negligent act, the defendants’ horse would run away and collide with the horse at the curb. Such an occurrence is'unusual, extraordinary and not reasonably to be expected. If the plaintiff had turned his horse and wagon around, he would not have been guilty of any violation of the ordinance ; but this would not have removed the cause of the accident, nor prevénted the collision. Possibly Ms horse might not have been so seriously injured in such case, but that is pure conjecture.

Finding no reversible error in the record, the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Fitch

license: Public Domain

text:
    Alexander J. Thomson, Plaintiff in Error, v. T. Suranoski, Defendant in Error.
    Gen. No. 20,404.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed June 17, 1915.
    Abstract of the Decision.
    Bills and notes, § 56

      —what not a defense. The mere fact that a person who gives a note to a college for tuition for his son, whenever his son shall attend the college, changes his mind does not constitute a defense to the note even though it is in the hands of an indorsee who is not a bona fide holder for value.
    Statement of the Case.
    Action by Alexander Thomson against T. Suranoski upon a promissory note signed by the latter, payable to the order of the South Chicago Business College, which note was indorsed, without recourse, to the order of J. J. Moser, and by Moser to the order of the plaintiff. From a judgment for defendant, plaintiff appeals.
    J. J. Moser, for plaintiff in. error.
    Frank Foster, for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Louis H. Feldman, Plaintiff in Error.
    Gen. No. 20,418.
    (Not to he reported in full.)
    Error to the Criminal Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed June 17, 1915.
    Statement of the Case.
    . Prosecution by the People of the State of Illinois against Louis H. Feldman for receiving stolen property. From a judgment of guilty, defendant appeals.
    The only witness who testified to facts of any importance was the alleged accomplice, Mike Stenzen. He testified in substance, as follows: That he was a tailor and was employed in the “stock room” of a wholesale clothier named Strauss; that he knew the defendant, who with his three brothers, kept a dry-goods and clothing store on Twelfth street, near Halsted, in Chicago; that on the last Sunday in June, 1913, he went to Feldman’s store with a friend, who was “going to the old country,” to buy the latter a suit of clothes; that defendant waited on them; that “during the buying,” Stenzen told the defendant that he was a tailor and worked in the stock room “over at Strauss’;” that defendant then took him aside and said to him: “Can’t you bring me some goods? I could pay you and you could make extra money, besides your wages; ’ ’ that defendant also said that he would pay “$3 for each suit;” that Stenzen “didn’t promise to bring him,” but went home thinking about it, and on Sunday, July 13, 1913, he stole from the stock room seven yards of blue serge, in two pieces of three and one-half yards each, worth $3.50 or $4 a yard; that he took these pieces to the store of Feldman Brothers, where he met the defendant, who said: “Youbrought something? Come in;” that defendant took him into the cutting room on the second floor, where they met the defendant’s brother, Morris Feldman; that after talking a moment with his brother, the defendant said: “Give me the package,” opened it and looked at the goods; that Morris Feldman said: “How much do you want;” that Stenzen replied: “Louis Feldman, he offered me $3 for each three and a half yard;” that Morris replied: “I won’t pay $3 for three yards and a half, because I know the goods is stolen;” that finally they paid him $5 for the seven yards, or $2.50 for each suit; that on July 31, 1913, he stole another piece of blue serge of the same size—three and a half yards—worth $3 a yard, from the cutting room of Strauss, and sold it to the defendant for $3; that in each of these cases, the defendant paid him by check; that when he and the defendant were arrested, on August 5, 1913, the police officers asked the defendant if he knew Stenzen, and defendant replied that he never saw him before, whereupon Stenzen told the officers to look at defendant’s check books, which they did and found the stubs of two checks for $3 each, payable to Stenzen. The other two witnesses called by the State merely testified that when defendant was arrested, he at first denied any acquaintance with Stenzen, but when shown the stubs in the check book, admitted (as one witness testified) that he “might have bought goods from him,” or (as the other testified) that he “might have paid him those checks. ’ ’
    The evidence of these three witnesses constituted the whole case for the prosecution. The defendant called eighteen witnesses, of whom eight testified that defendant had always borne a good reputation. The defendant testified positively that he never saw Stenzen until the day he was arrested; that he never had acquaintance with Stenzen, and that Stenzen had never sold him any goods. The defendant’s brother Morris Feldman, testified that he was the buyer for the firm of Feldman Brothers; that he bought the goods in question from Stenzen; that Stenzen introduced himself as a jobber, presenting his business card which was offered in evidence, and which read: “M. Stenzen, Jobber in Woolens & Tailors Trimmings, 822 E. 63rd Street, Chicago;” that Stenzen represented that he had for sale three bolts of cloth, containing one hundred and forty or one hundred and fifty yards in all, of which he had a sample with him, containing a little over three yards; that the cloth was worth $1.40 to $1.50 a yard, subject to a discount of “ten per cent, thirty days;” that the defendant, Louis Feldman, was not present at the time; that he (Morris) agreed to buy the cloth at $1.22% per yard and Stenzen agreed to deliver the same in two days; that he also bought the sample for $3; that a piece of that size is worth less than in the bolt; that he directed the cashier to give Stenzen a check for the $3, which was done, whereupon Stenzen asked for the money, and it was given Trim upon his indorsing the check. The testimony of Morris Feldman as to the business card and the check was fully corroborated by the cashier. The evidence of the other witnesses tended to contradict Stenzen’s evidence in several minor details.
    Abstract of the Decision.
    1. Cbiminal law, § 174

      —what weight given testimony of accomplice. A conviction may be sustained upon the unsupported testimony of an accomplice, but such evidence is of doubtful integrity, and must be received with extreme caution.

      Daniel L. Cruice and A. S. Langille, for plaintiff in error; Daniel L. Cruice, of counsel.
    Maclay Hoyne, for defendant in error.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

2. Receiving stolen goods, § 9 —when conviction not sustained. The guilt of a defendant who had been charged with receiving stolen property, held not to have been established beyond a reasonable doubt.


text:
    H. Wold, Defendant in Error, v. Pilsen Foundry & Iron Works, Plaintiff in Error.
    Gen. No. 20,431.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Rehearing denied July 3, 1915.
    Statement of the Case.
    Action by H. Wold against Pilsen Foundry & Iron Works to recover damages to the personal property of the plaintiff caused by the collapse of an unfinished building, for which defendant had the contract for the iron work, hut had sublet the same.
    The roof of the building, which had only one story, was constructed of iron trusses and cement, the trusses resting upon the walls of the building. There was evidence tending to prove that the walls were defectively designed and constructed, were not of sufficient thickness to hold up the roof, and that just before the iron trusses were placed in position, the walls were so much out of plumb that it was necessary to " shore up” the same. The defendant furnished the iron for the trusses, and sublet to another contractor the work of putting them in place. This work was done as provided by the plans and specifications, and was finished about ten days before the accident. On the day before the accident, however, it was discovered that one of the trasses was bent or “kinked” at the top, and the architect notified the defendant that it must be straightened at once. Defendant sent two of its own men to the building for that purpose. The men worked about two hours, and loosened certain of the “tie rods” and tightened others, and put in two new “tie rods” to hold the bent truss in its proper position. A few minutes after this was done, the whole building collapsed, the north, south and west walls falling outward, and the roof falling to the ground, so that a horse belonging to the-plaintiff was killed by the falling roof, and some of his personal property destroyed. Several expert witnesses testified that, in their opinion, the collapse of the buildinging was due not only to defects in the design, in the construction and in the workmanship upon the walls, but also to the fact that just before the accident one of the trusses was moved by defendant’s workmen. One of such witnesses testified that the movement of the bent truss was a “contributing factor” in the collapse of the building. The architect testified that, in his opinion, the cause of the falling of the building was the loosening of the tie rods on the bent truss. In addition to this proof as to the causes of the accident, there was evidence tending to prove that the removal of such tie rods weakened the whole roof structure, and that the act of defendant’s workmen in removing the same, under the circumstances shown in this case, was an act of negligence on the part of defendant without which the accident would not have occurred. There was some evidence, also, tending to prove that defendant’s workmen used a block and tackle in their work, and that the use of such means of straightening the roof truss, under the circumstances in evidence, was an act of negligence proximately contributing to cause the accident.
    George H. Mason, for plaintiff in error.
    Joel C. Carlson, for defendant in error.

      Abstract of the Decision.
    1, Negligence, § 11

      —when concurrent liability of another no defense. It is no defense to an action for damages to personal property, of another, incurred as a result of the falling of an unfinished building, that persons other than the defendant, -who had the contract for the iron work only, may have been equally liable with the defendant for negligently causing the injury complained of.
    2. Negligence, § 34

      —when negligence shown in fall of wall. Evidence in an action for damages against a contractor for injuries sustained as a result of the falling of an unfinished building, alleged to have been due to defective steel work, examined and held to establish negligence upon the part of such contractor.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    M. E. Sutker, Defendant in Error, v. United States Tent & Awning Company, Plaintiff in Error.
    Gen. No. 20,433.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Fred C. Hill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Action by M. E. Sutker against the United States Tent & Awning Company to recover for the amount alleged to be due plaintiff for electrical work and materials furnished to the defendant, partly on a written contract and partly on oral contracts.
    From a judgment for plaintiff, defendant appeals.
    Litzinger, McGurn & Reid, for plaintiff in error; Leonard C. Reid, of counsel.

      Abstract of the Decision.
    Assumpsit, action of, § 66

      —when evidence sustains recovery. Evidence in an action to recover for electrical work done and materials furnished to defendant, partly on a written contract and partly on oral contracts, held sufficient to sustain a verdict for plaintiff.
    Rittenhouse & Beilman, for defendant in error; John J. Beilman, of counsel.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Gustav E. Beerly, Administrator, Defendant in Error, v. Globe Indemnity Company of New York, Plaintiff in Error.
    Gen. No. 20,469.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Rehearing denied July 3, 1915.
    Statement of the Case.
    Action by Gustav E. Beerly, administrator of the estate of Anna Zabelle Gurinian, deceased, against the Globe Indemnity Company , of New York, a corporation, upon an alleged compromise agreement for the payment of damages for the death of deceased.
    From a judgment for plaintiff, defendant appeals.
    The deceased met her death by being run over by an automobile bolonging to one Herman Mollner, who carried an insurance policy issued by the Globe Indemnity Company, in which that company agreed to indemnify Mollner “against loss from the liability imposed by law upon the assured for damages as a result of the ownership, maintenance or use” of his automobile, “on account of bodily injuries, including death, at any time resulting therefrom, accidentally suffered or alleged to have been suffered by any person or persons.” By - other provisions of the policy, the indemnity company agreed to make such investigation of accidents, and to undertake such negotiations or make such settlements “of any claims made,” as the company might deem advisable, and to defend all suits brought against Mollner, “even if groundless,” in the name and on behalf of the insured.
    During the year following the accident, negotiations for a settlement of the plaintiff’s claim against Mollner were had between the administrator and C. S. Watson, the “superintendent of the western claim department” of the defendant company. The plaintiff testified that on November 17,1913, as a result of such negotiations, Watson offered, on behalf of the indemnity company, to pay him $875 in settlement of his claim, and that he then and there accepted the offer. Watson testified that he never offered the plaintiff more than $750; that he intimated the company might pay $875, but that plaintiff demanded $1,000, and that no agreement was reached. No suit against Mollner was brought by the plaintiff, and a few days after the one-year-statute of limitations had run, Watson called the plaintiff by telephone and told him that as no suit had been brought within a year, the company withdrew its offer and declined to pay anything. Thereupon, this suit was brought to recover the amount which the plaintiff claimed the defendant agreed to pay.
    Zimmerman, Myers and Garrett, for plaintiff in error.

      Abstract of the Decision.
    1. Compbomise and settlement, § 16

      —when evidence shows agreement to compromise. Evidence in an action by the administrator of the estate of one who was killed by being run over by an automobile, against an indemnity insurance company on an alleged settlement made by the superintendent of one of its division claim departments, the administrator claiming that an agreement for settlement was made and the superintendent denying that any agreement was reached, held to sustain a finding that such agreement was made.
    2. Compbomise and settlement, § 5

      —when consideration sufficient to support promise. The compromise of a doubtful right, where there is neither actual nor constructive fraud, and the parties act in good faith, in sufficient consideration to support a promise although the one party may have really had no claim.
    3. Compbomise and settlement, § 4

      —when superintendent of claim department has authority. ■ Where a superintendent of a division of the claim department of an indemnity company is clothed with apparent authority to settle any claim covered by its insurance policies, the company is liable upon a compromise agreement effected by him.
    John B. Heinemann, for defendant in error; Lewis Rinaker, of counsel.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Teresa Scola and Beatrice Scola, Defendants in Error, v. Luigi Scola, Plaintiff in Error.
    Gen. No. 20,482.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville. Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.

      Statement of the Case.
    Action in attachment by Teresa and Beatrice Scola against Luigi Scola. From a judgment for plaintiff, defendant appeals.
    On the next day after this judgment was entered, the defendant appeared in court by counsel and moved to vacate the judgment, and it was then ordered that the judgment be opened, and that leave be given to the defendant “to make his defense,” the judgment to stand as security. At the same time, on defendant’s motion, it was ordered, “that the plaintiffs file a statement of claim herein” within five days. In response to this rule, the plaintiffs filed a “bill of particulars,” stating, in substance, that the “amount claimed by them was for money earned by one of the plaintiffs, Beatrice Scola, and her sister,” which money was “handed by plaintiffs to their mother, Teresa Scola, every week or every pay day for safe-keeping;” that said Teresa Scola kept it on her person until she became paralyzed, “about two years ago,” when it was decided to place the money in a safe deposit vault, of which the defendant, who is the husband of Teresa Scola, “kept the keys;” that said defendant has been unable to work for twelve years, and has been supported by his daughters; that on April 14, 1913, defendant went to the safe deposit box and took the money, “which was the property of his daughters,” amounting to $2,500, and, without the knowledge of his family, deposited $1,900 thereof with Parisi, with instructions to send it to Italy, forwarded $300 himself to Italy, and used the remainder to buy his steamship ticket to Italy, and “for exchange into Italian currency;” that after defendant’s departure, “plaintiffs learned about his scheme, and notified Mr. Parisi that the money which he had in his possession was their money,” and that they would hold him liable for the same.
    Brown & Navigato, for plaintiff in error.

      Abstract of the Decision.
    1. Pleading, § 334

      —when hill of particulars not a pleading. A bill of particulars, not attached to a declaration or statement of a claim, but filed afterwards in compliance with a rule entered upon the plaintiffs to file such a bill, is not a pleading.
    2. Appeal and ebbob, § 747

      —when hiil of particulars not part of record. A bill of particulars filed in compliance with a rule to file such bill, and not mentioned in a bill of exceptions, is not a part of the record.
    3. Appeal and ebbob, § 1593

      —when statement of claim cured hy finding and judgment. Where no objection to a statement of claim is made until after judgment, and such statement of claim contains terms sufficiently general to include, by fair and reasonable intendment, any matter necessary to be proved, and without proof of which no finding or judgment could have been entered, the want of an express averment of such matter in the pleading is cured by the finding and judgment.
    4. Municipal Goubt oe Chicago, § 13

      —when statement of claim sufficient. A statement of claim in attachment action held to contain terms sufficiently general to include, by fair and reasonable intendment, an averment that the money taken by the defendant belonged to the plaintiffs at the time of suit.
    5. Appeal and ebbob, § 1303

      —when evidence presumed to sustain judgment. In the absence of any bill of exceptions containing the evidence heard by the trial court, it will be presumed, upon appeal or error, that the evidence was sufficient to sustain the judgment.
    Cairoli Gigliotti, for defendants in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    David Geliebter and Samuel Woskow, trading as Geliebter & Woskow, Defendants in Error, v. First National Bank of Chicago, Plaintiff in Error.
    Gen. No. 20,197.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Chabi.es A. Whxiams, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Action by David Geliebter and Samuel Woskow, trading as Geliebter & Woskow against the First National Bank of Chicago upon checks certified by the defendant. From a judgment for plaintiffs, defendant appeals.
    Jacob Doppelt entered into two contracts for the purchase of real estate from one Busnak, each of which contracts recited that the purchaser had deposited with Geliebter & Woskow the sum of three hundred dollars as earnest money, to be held by them for the mutual benefit of the parties concerned, and that if the purchaser should fail to perform his part of the contract, such earnest money should be retained by the vendor as liquidated damages. Doppelt gave the two checks in question to Geliebter & Woskow instead of money, and they presented the checks to the bank. The bank certified them, but refused to pay them because payment had been stopped by Doppelt. . Geliebter & Woskow then brought suit against the bank, whereupon Doppelt filed his bill in equity in the Superior Court to enjoin the collection of the checks, making the bank, Busnak, Geliebter and Woskow parties defendant thereto. A temporary injunction was issued restraining the payees of the checks from further prosecuting their suit, and after answers were filed and a hearing had before a master, a decree was entered in accordance with the prayer of the bill, from which decree Geliebter & Woskow prosecuted an appeal to the Appellate Court of this district. The Appellate Court reversed and remanded said decree, with directions to dismiss the bill for want of equity. Doppelt v. Geliebter, 173 Ill. App. 634. The bill was so dismissed, and thereupon this suit was brought. The Appellate Court held that Doppelt, without any sufficient excuse, failed to perform his part of either of said contracts, and for that reason the earnest money alleged by the contracts to have been deposited with Geliebter & Woskow had become forfeited as liquidated damages.
    Abstract of the Decision.
    1. Judgment, § 513

      —when question res adjudicata. The question as to whether the act of one holding as escrow, checks given in the course of the making of contracts for the purchase of real estate as earnest money, in getting them certified, was a fraud upon the ground that the delivery of them was conditional and that there was an understanding between the maker and the escrow holders that they should be held by the escrow holders without being certified or cashed, in lieu of money, is res judicata where the Appellate Court had already decided in an action by the maker against the other party to the contract the bank, and the escrow holders to enjoin collection of the checks, that the maker, without sufficient excuse, failed to perform his part of the contract, and for that reason the earnest money deposited with the escrow had been forfeited as liquidated damages.
    2. Escbows, § 1

      —what is duty of holder as to checks. It is the duty of an escrow holder to collect the money due upon checks deposited with him as money, and hold the proceeds, instead of the checks.

      Thompson, Clark & Stevenson, for plaintiff in error.
    Mather & Hutson, for defendants in error; William A. Sheehan, of counsel.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

3. Escrows, § 1 —what unnecessary to prove in action by holder. It is not necessary that an escrow holder, who is suing a bank upon certified checks deposited with such escrow holder as earnest money, in'lieu of the actual cash, in the course of the making of a contract for the sale of real estate, aver and prove a consideration, as a prima facie case is made out by offering the checks in evidence and proving the signatures.

4. Escrows, § 12 —who has burden of proving failure of eonsideration. The burden lies upon the defendant, in an action by an escrow holder against a bank upon certified checks, to establish want or failure of consideration by competent evidence.

5. Escrows, § 1 —when evidence shows consideration. A consideration for the giving of checks deposited with plaintiffs as escrow holders and subsequently certified by defendant bank, held established by a contract for the sale of real estate, reciting that the purchaser had deposited with the escrow holder a certain sum as earnest money to be held for the mutual benefit of both parties concerned, and that, if the purchaser should fail to perform his agreement, such earnest money should be retained by the vendor as liquidated damages, in the absence of evidence tending to prove a subsequent failure of consideration.


author: Mr. Presiding Justice Pitch

text:
    John T. Byrnes, Administrator, Appellee, v. Solomon Zemoan, Appellant.
    Gen. No. 20,510.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gem mill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Action by John T. Byrnes, as administrator of the estate of Daniel Byrnes, deceased, against Solomon Zemoan for attorney’s fees alleged to have been earned by the plaintiff’s intestate. The defendant filed an affidavit of merits, stating that the services had been paid for during the lifetime of the deceased, and also that the deceased was indebted to the defendant for money loaned. On May 5, 1914, the case was called for trial in the absence of the defendant and a judgment rendered against him for the amount claimed. The next day the defendant moved to vacate the judgment and, in support of his motion, filed several affidavits, showing that defendant had a meritorious defense to the plaintiff’s claim; and also stating, in substance, that before the opening of court on the day the judgment was rendered, the defendant and a man from the office of the defendant’s attorney went to the court room and told the clerk of the court that defendant’s attorney was actually engaged in the trial of a case in another court of record and would be so engaged all that day. The affidavits also showed that defendant’s attorney was in fact so engaged all that day. The defendant asked the clerk whether it would be necessary for him to remain, to which the clerk replied in the negative, saying that the case would be passed if reached for trial on that day. The motion to vacate was denied and the defendant brings error.
    Abstract of the Decision.
    Judgment, § 2&&

      —w7ien vacated because of absence of defendant and Ms counsel. Where, before the opening of court on the day set for the trial of a case in the Municipal Court of the city of Chicago, the defendant informed the clerk that his attorney was actually engaged in the trial of a cause in a court of record and was told by the clerk that he need not remain as his case would be passed when called, but instead a judgment was rendered for the plaintiff in the absence of the defendant or his counsel, held that the judgment should have been vacated on the defendant’s showing of the facts and filing an affidavit of merits.

      Daniel S. Wentworth, C. A. Coolidge and David B. Maloney, for appellant.
    John T. Byrnes, for appellee.

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

   Mr. Presiding Justice Pitch

delivered the opinion of the court.


text:
    S. J. Ostrowski, Plaintiff in Error, v. Annie Czarnik, Defendant in Error.
    Gen. No. 20,603.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Fred C. Him, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Rehearing denied July 3, 1915.
    Statement of the Case.
    Action by S. J. Ostrowski against Annie Czarnik to recover a commission for procuring a purchaser for real estate. Judgment was rendered for the defendant, and the plaintiff brings error.
    The evidence showed that while the property in question was listed with the plaintiff, he was not the exclusive agent, but that other brokers were also endeavoring to effect a sale; that in February, 1914, the property was sold by the defendant to Mr. and Mrs. John Polcyn jointly. The defendant testified that the sale was made “from the outside,” meaning through brokers other than the plaintiff; that in January, 1914, an employee of the plaintiff took Mrs. Polcyn to see defendant’s property, but they did not at that time see the defendant; that the plaintiff then notified the defendant personally and by two letters, one in English and the other in Polish, that the property had been submitted to Mrs. Polcyn. One of the letters stated that the plaintiff showed Mrs. Polcyn only the “outside” of the property, and that she “refused to step inside.” The plaintiff’s employee testified that Mrs Polcyn told him she had seen the property before, and the defendant testified that Mrs. Polcyn had been introduced to her by another real estate man in December, 1913. There was no evidence tending to prove that the visit of Mrs. Polcyn to defendant’s premises, in company with the plaintiff’s employee, either brought about or had anything to do with bringing about the sale that was finally made.
    Abstract of the Decision.
    1. Brokers, § 37

      —when broker entitled to compensation. Where real estate was listed with several brokers, one of them cannot recover compensation if it does not appear that he was the first to call the purchaser’s attention to the property, or that his efforts contributed to the consummation of the sale.
    2. Brokers, § 77

      —when variance between pleading and proof in action for compensation. A broker cannot recover compensation for a sale of real estate by a client to Mr. and Mrs. John Polcyn jointly, upon an averment of a sale to John Polcyn, a purchaser procured by the plaintiff, where the evidence did not show that the latter ever introduced the purchaser to the defendant, or that Mrs. Polcyn, to whom the plaintiff showed the property, acted as her husband’s agent.
    3. Estoppbi,, § 52

      —when liability for broker’s compensation created by admissions. A property owner held not estopped from denying that the plaintiff was the procuring cause of a sale of real estate, by saying “all right’’ when informed by a person whom he did not know was an employee of the plaintiff, that he would have to pay the latter a commission.
    R. F. Welzant and David B. Maloney, for plaintiff in error; Daniel S. Wentworth, of counsel.
    Albert H. Meads, for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Alex Scigliano, Plaintiff in Error.
    Gen. No. 20,697.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Chables A. Williams, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Alex Scigliano was informed against and convicted in the -Municipal Court of a wilful and malicious assault with a deadly weapon with intent to inflict a bodily injury upon one Francisco Bitonda, from which the defendant prosecutes a writ of error.
    It appeared that the defendant was arrested and taken into court -on June 30, 1914, when an information was filed against him, substantially in the language of the statute; that he signed a written waiver of a jury trial, pleaded not guilty to the information, and was at once tried and found guilty. He subsequently made a motion to vacate the judgment on the ground of newly-discovered evidence, which was denied.
    The defendant was represented in court by counsel. Before he waived a jury he was advised as to his right to a jury trial. The court heard the testimony of witnesses and arguments of counsel before conviction and judgment. The motion to vacate was supported by an affidavit of the prosecuting witness, stating that on account of misunderstanding or of ignorance on his part, he failed to state to the court certain circumstances which might have had a great weight before the court; that the facts are that he and the defendant were old friends; that defendant kept a grocery store, and the witness had been one of defendant’s customers, but had ceased buying from him; that this created some bad feeling, which was so aggravated by the gossip of other persons that each came to believe the other was criticising him; that on June 28,1914, while the witness was passing in front of defendant’s store, defendant called him and began to ask a question; that the witness was excited, and failed to answer, but placed his hand in his hip pocket to get his pipe and proceed on his way, when the defendant, acting under the impression that the witness was getting his pistol, struck the witness with a knife, causing a slight wound. There were also two affidavits of bystanders who briefly state that they witnessed this hip-pocket incident.
    Abstract of the Decision.
    1. Criminal law, § 506

      —when judgment presumed sustained by evidence. In the absence of the evidence from a bill of exceptions, it will be presumed that it fully justified the-finding of the trial court.
    2. Criminal law, § 357

      —when judgment will not be vacated for newly-discovered evidence. A motion to vacate a judgment of conviction in a criminal proceeding, on the ground of newly-discovered evidence, held properly denied, where it did not appear that the defendant did not have knowledge of the existence and materiality of such evidence at the time of his trial.
    3. Criminal law, § 409

      —when sufficiency of information open to review. An objection to the form of and signature to an information will not be reviewed on writ of error in the absence of a motion to quash or in arrest of judgment.
    4. Criminal law, § 189

      —when arrest and trial on same day not erroneous. Where a person, who was represented by counsel, was arrested, arraigned, tried and convicted on the same day of a malicious assault with a deadly weapon, the record held not to show that he did not have a fair trial, that he was denied the fullest opportunity to present his defense, or that he was deprived of any substantial right.
    Cairoli Gigliotti, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


author: Mr. Justice Pam

text:
    Victor Electric Company, Plaintiff in Error, v. Charles Miller, Defendant in Error.
    Gen. No. 19,199.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh: J. Keabks, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Action in the Municipal Court of Chicago brought by the Victor Electric Company against Charles Miller to recover the price of an electric beer pump which the plaintiff alleged the defendant purchased from it under a contract. On a trial before the court without a jury, judgment was rendered in favor of the defendant and against the plaintiff for costs, to reverse which, plaintiff has sued out a writ of error. The contract sued on was as follows:
    “July 3d, 1912.
    Victor Electric Co.,
    Chicago, Ill.
    Gentlemen:
    Please send me, via Chicago, Ill., the following:
    One Automatic Electric Beer Pump for which I agree to pay you the sum of ninety dollars on or before Sept. 2nd, 1912 from time current is in.
    It is further agreed that the title to the above described goods shall remain in Victor Electric Company until purchase price has been fully paid as agreed, and in case of default in payment for thirty days, vendor shall have the right to repossess itself of said goods.
    Charles Miller, 5800 Ashland Ave.”
    The affidavit of merits filed by defendant set forth that plaintiff agreed to deliver and completely install the beer pump on or before July 3, 1912, but that it made no effort to do so until August 15th thereafter; and that on July 15th the defendant notified the plaintiff that because of its failure to install the pump, the defendant had no use of it and requested its removal.
    The evidence showed that the pump was delivered July 9th, when the defendant signed a memorandum acknowledging its receipt in good order, and making a payment of ten dollars thereon; that at the time the pump was sold there was no wiring in the premises of defendant to which to connect the pump; that a few days after the delivery of the pump, defendant called up about connecting the pump and was asked whether the wiring to carry the current had been inspected, to which defendant replied in the negative; whereupon he was told by plaintiff that inspection was necessary, to which defendant replied ‘ ‘ All rig-ht, ’ ’ that he would inform plaintiff when the inspector had passed upon the work; that prior to the time of this conversation, plaintiff had called up the Commonwealth Edison Company to see whether or not any service "had been given the defendant; that it had never been notified that the defendant’s place had been wired for current or that an inspection had been made.
    The defendant was the only witness in his behalf, and he testified that after the contract was signed, plaintiff’s representative promised that he would attend to everything and have the pump in running-order within a week at the longest; that he talked with the representative of the plaintiff two weeks after-wards and was told that an inspection would have to be made before the pump could be set up; that the last conversation he had with any representative of plaintiff took place on the first of August; that while the Commonwealth Edison Company was to put the current into the building, plaintiff was to attend to having it done; that about August 10th defendant purchased a pump from another company, and that he thereafter signed a contract with the Commonwealth Edison Company for the installation of electric current.

      Abstract of the Decision.
    1. Evidence, § 352

      —when contract so ambiguous as to permit parol explanation of terms. A contract for the purchase and installation of an electric beer pump, held not so ambiguous as to permit it to be shown by parol that the seller was to attend to putting electricity into the vendee’s place of business.
    2. Sales, § 329

      —sufficiency of evidence to justify judgment for defendant in action for price of chattel. A judgment in favor of the defendant in an action to recover the price of an electric beer pump to be placed in the defendant’s place of business, because of the vendor’s failure to have electric current installed therein, held not sustained by the weight of the evidence.
    Frederick B. Hovey, for plaintiff in error.
    Eugene Huss and Victor E. Rehm, for defendant in error.

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

   Mr. Justice Pam

delivered the opinion of the court.


author: Mr. Justice Pam delivered

text:
    Natalie Stacey and John James Stacey, minor, by Natalie Stacey, Plaintiffs in Error, v. Max Robbin et al., Defendants in Error.
    Gen. No. 19,672.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed June 17, 1915.
    Statement of the Case.
    An action was brought by Natalie Stacey and John James Stacey, a minor, by his mother and next friend, Natalie Stacey, against Max Robbin, Albert B. Joyner, William Sullivan, Walter Gf. Mueller and Jacob Frank, under section 9 of the Dramshop Act (J. & A. ff 4609.)

      A general demurrer was filed to the declaration by William Sullivan, and general and special demurrers were filed by Walter G. Mueller, Jacob Frank and Max Bobbin. Defendant Joyner filed a plea of the general issue and notice of the special defense that he was not the owner or in control of the premises mentioned in the declaration, or in possesion or control of the premises in which the defendants or either of them conducted a dramshop. The court entered an order finding that the plaintiffs’ declaration did not state a cause of action, and gave leave to file an amended one; and also ordered that the demurrers stand as demurrers to the amended declaration. On the filing of the second declaration, the court found that it did not state a cause of action, and entered judgment in favor of the demurring defendants and against the plaintiffs for costs. Whereupon the plaintiffs sued out a writ of error.
    The amended declaration stated that:
    “On to wit: December 2, 1911, in Cook county, Illinois, defendant Max Bobbin, conducted a dramshop in a building owned by defendant Albert B. Joyner, who knowingly permitted a dramshop to be conducted in said property; that the defendant William Sullivan conducted a dramshop on said date in Cook county, Illinois; that the defendant Walter G. Mueller on said date in Cook county, Illinois, conducted a dramshop in property owned by the defendant Jacob Franks, who knowingly permitted said dramshop to be conducted. That the plaintiffs are the wife and minor son of John James Stacey, and that prior to the date above mentioned he supported and maintained them. That on the date mentioned the defendants, Max Bobbin, William Sullivan and Walter G. Mueller, did sell and give intoxicating liquors to the said John James Stacey, which liquors in whole or in part caused him to be and become intoxicated, and in consequence of such intoxication said John James Stacey did on said date then and there kill and murder one Hattie Kaufman, and that in consequence of the commission of said crime said John James Stacey was indicted by the grand jury of Cook county, Illinois, and upon such indictment was tried, convicted and sentenced to the penitentiary for and during the period of twenty-five years, and is now serving said term of imprisonment and that by reason of the premises the plaintiffs have sustained damages in the sum of thirty thousand dollars, and that by virtue of the statute a cause of action has accrued to them to have and demand of the defendants said damages. ’ ’
    Abstract of the Decision.
    1. Intoxicating liquors, § 228

      —intoxication as proximate cause of injury from imprisonment of husband for crime committed while drunks. The intoxication of a man held, in an action under section 9 of the Dramshop Act (J. & A. If 4609) against those selling and furnishing him intoxicating liquor, to be the proximate cause of the damages sustained by his wife and children from his imprisonment for a crime committed while drunk.
    2. Intoxicating liquors, § 168

      —when civil damage act strictly construed. The entire Dramshop Act must be strictly construed since it is penal in character.
    3. Intoxicating liquors, § 172

      —when person may recover under civil damage act. A person seeking to recover under section 9 of the Dramshop Act (J. & A. j[ 4609) for injuries caused by the sale or furnishing of intoxicating liquors to another, must bring himself clearly within the terms of the section.
    4. Intoxicating liquors, § 202

      —when declaration sufficient in action under civil damage act. A declaration in an action under section 9 of the Dramshop Act (J. & A. If 4609), which does not allege an injury to the person, property or means of support of either of the plaintiffs, does not state a cause of action.

      Frame P. Drenner, for plaintiffs in error; Edward A. Mechling and Hayden N. Bell, of counsel.
    Brady & Rutledge, for defendants in error Walter G. Mueller and Jacob Frank; James A. Brady, of counsel.
    E. F. Mastersom, for defendant in error William Sullivan.

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

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

   Mr. Justice Pam delivered

the opinion of the court.

5. Intoxicating liquors, § 202 —when declaration sufficient in action under civil damage act against property owner. A declaration in an action under section 9 of the Dramshop Act (J. & A. If 4609) by a wife and" children against the keepers of saloons and the owners of the property where the business was conducted, to recover for injuries sustained from the sale of intoxicating liquor to a husband and father, does not state a cause of action against the property owners where it does not allege that liquor was sold or given the husband in the property or buildings owned by either of the other defendants.


text:
    Oscar Chase, Defendant in Error, v. Frank S. Bodge and Frank Foster, Plaintiffs in Error.
    Gen. No. 20,078.
    (Not to Ibe reported in full.)
    Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Suit brought by Oscar Chase in the Municipal Court of Chicago against Frank S. Bodge and Frank Foster to recover damages for the wrongful suing out of a writ of attachment against the plaintiff by defendant Bodge. On a trial before the court without a jury, judgment for $25.48 was entered for the plaintiff, to reverse which the defendant sued out a writ of error.
    The defendant Bodge brought an attachment suit in the Municipal Court of Chicago against the plaintiff. The attachment bond was signed by Frank Foster, as surety. In the attachment suit the Elgin, Joliet & Eastern Bailway Company was served as garnishee, and as a result of the garnishment, the railway company refused to pay plaintiff the wages due him. The plaintiff consulted Mr. A. E. Eppstein, an attorney. The evidence showed that Mr. Eppstein spent several hours in consultation with plaintiff regarding the attachment suit; that the attachment suit was transferred from the second to the first district; that on August 19, 1913, plaintiff’s attorney entered his appearance in the attachment suit and asked that the case be set for immediate hearing; that an affidavit of merits was prepared and filed; that upon the trial of the case, counsel for plaintiff asked that the attachment issue be tried first, and independently of the assumpsit issue, which the court denied and ordered the trial to proceed as to both issues; that after plaintiff was put on the stand in the attachment suit under section 33 of the Municipal Court Act (J. & A. jf 3345), his attorney moved to quash the attachment; that the attorney for defendant Bodge also moved to quash the attachment, and that the court granted the motion. The court then proceeded tb try the assumpsit issue. Bodge’s testimony was objected to because it was at variance with his statement of claim, and leave was granted to file an amended statement, and the cause was continued. The evidence further showed that $25 was a reasonable charge for the services rendered by Mr. Eppstein in the attachment suit; that the item of forty-five cents was for expenses in and about securing a transfer of the case from the second to the first district.
    What disposition was made of the assumpsit issue does not appear save that leave was given to file an amended statement of claim, and the cause continued.
    Frank Foster, for plaintiffs in error.
    No appearance for defendant in error.

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

   Mr. Justice Pam

delivered the opinion of the court.

Abstract of the Decision.

1. Attachment, § 356 —when damages awarded in action for wrongful attachment sustained by evidence. The amount of damages awarded the plaintiff in an action on an attachment bond for the wrongful suing out of a writ of attachment, held warranted by the evidence.

2. Attachment, § 356 —when evidence shows that damages awarded for wrongful attachment was for attorney’s fees in attachment suit. The evidence held to show, in an action on an attachment bond for the wrongful suing out of a writ of attachment, that the damages awarded the plaintiff were for the services of his attorney in the attachment suit.


text:
    J. H. Doherty, Defendant in Error, v. Grand Trunk Western Railway Company, Plaintiff in Error.
    Gen. No. 20,106.
    (Not to be reported in full.)
    Error to the Municipal Court of ■ Chicago; the Hon. Habby M. Fisheb, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed June 17, 1915.
    Statement of the Case.
    Action by J. H. Doherty against the Grand Trunk Western Railway Company for the value of a suit case and its contents which had been checked as baggage. From a judgment for plaintiff, defendant appeals.
    There was but one witness, the plaintiff himself. He testified that he was a traveling man for the Can-field Manufacturing Company; that it was his duty to place goods on consignment and go around and collect afterwards; that in connection with such duties he carried with him watches, diamonds, etc., which were given away by him as premiums on the collections; that on October 18, 1912, while at Belding, Michigan, on business, he purchased a ticket of the Pere Marquette Railroad for Saranac, Michigan; that the Pere Marquette Railroad runs on to Ionia, where connection is made with the Grand Trunk for Saranac; that the ticket, however, was for a continuous passage; that on said ticket, he checked his suit case to Saranac, and paid the baggage man of the Pere Marquette Railroad ten cents to cover transfer at Ionia from the Pere Marquette to the Grand Trunk railway. Plaintiff testified that he saw his suit case at Ionia on one of the trucks of the Grand Trunk, at the time he changed cars there; that when he arrived at Saranac, he went up town to attend to his business, and on the same evening left Saranac, forgetting his suit case. He left Saranac that same evening for Lowell. The next day, while at Lowell, he said he wrote to the baggage master at Saranac with reference to his suit case. He further testified that the value of the suit case and contents was $107.25. Among the items making up the total, were eight watches valued at $4 each, one diamond ring valued at $4.50, and one diamond stud valued at $4.50, which plaintiff further testified were the property of the Can-field Manufacturing Company, and were carried by him for the purpose of distribution as premiums upon collections made by him.
    Abstract of the Decision.
    1. Carbters, § 555

      —when evidence shows delivery and acceptance of baggage. Evidence in an action by a passenger against a connecting railroad to recover damages for the loss of baggage while in the hands of such connecting railroad, the passenger having bought a ticket from one railroad over its lines to a point on another railroad, and having checked his baggage through to his destination at the initial point, held sufficient to establish a delivery to the first railroad and an acceptance thereof by the second railroad.

      Kretzinger & Kretzinger and L. L. Smith for plaintiff in error.
    Morris Schaeffer and Morris K. Levinson, for defendant in error.

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

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

   Mr. Justice Pam

delivered the opinion of the court.

2. Cabbiers, § 555 —what is relation of'initial carrier to connecting carrier. A railroad company which sells a ticket for continuous passage over its line to a point on a connecting line, and accepts baggage to he shipped to such ultimate destination, is the agent of the second railroad.

3. Carriers, § 545 —what is liability for baggage. A railroad company is the insurer of the baggage of a passenger so long as the relation of common carrier exists.

4. Carriers, § 552 —when liability as insurer of baggage terminated. The liability of a common carrier as an insurer Of the baggage of a passenger exists until its arrival and discharge at its destination, and until the owner has had reasonable time and opportunity to claim and take it away.

5. Carriers, § 552 —what is a reasonable time to claim baggage. A passenger does not claim his baggage within a reasonable time after its arrival where he delays making an effort to secure it until twenty-four hours after its arrival.

6. Carriers, § 554 —lohat is liability for loss of baggage not promptly called for. A common carrier is liable only as a warehouseman where the owner of baggage delays claiming it for an unreasonable length of time, and its only duty is to hold the baggage until called for.

7. Troves and conversion, § i —iohat essential to conversion. In order to constitute a conversion, a demand must first he made for goods.

8. Carriers, § 559 —right of commercial traveler to sue for loss of employer’s baggage. A commercial traveler, who is carrying as baggage, articles of merchandise belonging to his employer, and which he has in his possession for the purpose of delivery to customers of his employer, cannot recover for the loss of such articles in an action against a common carrier for the loss of baggage.


text:
    E. J. Benjamin, Defendant in Error, v. D. D. D. Company, Plaintiff in Error.
    Gen. No. 80,142.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.
    Abstract of the Decision.
    1. Appeal and ebkob, § 1414

      —when findings not disturbed. Where the trial court, in a trial without a jury, has seen and heard all of the witnesses, the findings of such court upon mere questions ji fact, when the testimony is conflicting, will not be disturbed on appeal unless such findings are clearly and manifestly against the veight of evidence.
    2. Master and servant, § 50

      —when evidence fails to show promise to give references before employment. Evidence in an action by a traveling salesman against a wholesale house for breach of a contract of employment, held to sustain a finding that the salesman did not make any representations to his employers that he would furnish references as to his being of good and steady habits as a prerequisite to his employment.
    Statement of the Case.
    Action by E. J. Benjamin against D. D. D. Company for damages sustained by plaintiff as a result of the breach of a contract of employment entered into between plaintiff and defendant. From a judgment for plaintiff, defendant appeals.
    Enos W. Shaw and Ninian H. Welch, for plaintiff in error.
    Vail & Vette, for defendant in error.

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

   Mr. Justice Pam

delivered the opinion of the court.


text:
    Ernest H. Jennings, trading as Jennings Brothers, Defendant in Error, v. Baltimore & Ohio Railroad Company, Plaintiff in Error.
    Gen. No. 20,154.
    1. Carriers, § 121

      —sufficiency of evidence to show negligence in freezing of goods. Evidence in an action hy a shipper against a carrier for damages for loss incurred as a result of several carloads of apples being frozen while in transit, held to establish a prima facie case of negligence.
    2. Carriers, § 121

      —what does not overcome prima facie case of negligence in freezing of goods. Where a prima facie case of negligence is made out, in an action by a shipper against a carrier for damages for loss incurred as a result of fruit being frozen while in transit, by proof that the fruit was in good condition when loaded and in bad condition when reaching a certain point on the carrier’s line, such presumption of negligence is not overcome by proof that there was no delay in handling the cars while in transit, and that the weather was extremely cold at the time of loading, and before and after loading.
    3. Carriers, § 130

      —when shipper not negligent in shipping fruit in cold weather. The act of a shipper in shipping fruit during freezing weather does not constitute negligence even though he does not ask the carrier to heat the cars while in transit, where he heats the cars at the time they are loaded, papers them, places shavings on the floor and papers the doors upon the outside, and there is no provision in the bill of lading requiring the shipper to furnish stoves for heating while in transit and the shipper is not asked to assume the risk of- freezing in transit.
    4. Carriers, § 121

      —what is duty of carrier as to fruit shipped in cold weather. It is the duty of a carrier accepting fruit in freezing weather to provide all suitable means of transportation and to exercise the degree of care which the nature of the property requires, especially where the shipper is not required by the bill of lading to furnish stoves for heating nor to assume the risk of freezing in transit.
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed June 17, 1915.

      Statement by the Court. This is a suit brought in the Municipal Court of Chicago by Ernest H. Jennings, doing business as Jennings Brothers, defendant in error, hereinafter referred to as the plaintiff, against the Baltimore & Ohio Railroad Company, a corporation, plaintiff in error, hereinafter referred to as the defendant, to recover for loss and damage to three carloads of apples delivered for shipment over defendant’s line to New York City.
    The statement of claim sets forth that on, to wit: January 13, 1912, when said apples were loaded on said cars for shipment to New York City, they were in first-class merchantable condition and free from frost; that these apples were destined for export to England; that when the apples arrived in New York City they were in such a badly damaged and frozen condition that they could not be transported any further and were therefore sold in New York City at their fair cash market value; that the damage thereby sustained by plaintiff was in the sum of $992.66.
    The affidavit of merits sets up the following defenses :
    (1) “That said apples were not in first-class merchantable condition and free from frost at the time that same were delivered to the defendant for shipment, as claimed by the plaintiff.
    (2) “That the loss and damage for which plaintiff seeks to recover herein resulted from the inherent nature of the apples, for which this defendant is not and could not be responsible.
    (3) “That the plaintiff was not damaged in the sum of $992.66, as claimed by it in its said statement of claim.”
    Upon the trial of the case before the court without a jury, the issues were found for the plaintiff and plaintiff’s damages assessed in the sum of $992.66, for which amount judgment was entered, to reverse which this writ of error has been sued out.
    Calhoun, Lyford & Sheean, for plaintiff in error.

      Harry S. Ditchburne, for defendant in error.

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

   Mr. Justice Pam

delivered the opinion of the court. Plaintiff’s evidence showed that the apples before being loaded into the cars of the defendant were in storage with the C. L. Eobinson Ice & Storage Company at Charlestown, W. Va.; that the said company acted on behalf of plaintiff in the loading of the cars and in delivering them to the defendant for shipment; that at the request of the representative of the Eobinson Company, cars were delivered at the siding used by that company for loading at its warehouse, to wit, on Friday, January 12th; that the weather at this time was cold, and that before loading on January 13th, the cars were papered on the inside, and shavings placed on the floor; that during the time the cars were being loaded stoves were kept going both in the warehouse and in the cars; that the loading was finished some time before eight o’clock Saturday evening and the cars closed; that at this time the apples were in first-class merchantable condition and free from frost; that on Saturday evening, about eight o’clock, defendant executed and delivered bills of lading for the three cars for shipment to New York City; that the cars did not leave during that night; that on Sunday morning the cars were opened and the temperature of the cars taken; that while this was being done, stoves were placed in the cars; that they were then closed, and the doors papered on the outside; that at this time the apples were in first-class merchantable condition and free from frost; that some time Sunday afternoon after two o’clock the cars left Charlestown for their intended destination, New York City; that upon arrival at New York City they were examined and found to be in a badly frozen condition; that in that condition they could not be transported further for export to. England as was intended; that they were sold in New York City at a fair cash market value in their then condition, resulting in a loss to the plaintiff of $992.66.

Defendant introduced in evidence the testimony of the trainmen who handled the cars during their transit from Charlestown to New York, and defendant maintains that this evidence showed there was no delay or mistake in the handling of the cars while in transit; also evidence that at the time of loading and just before, and for several days thereafter, the weather at Charlestown and vicinity was extremely cold, the thermometer registering several degrees below zero.

The evidence offered on behalf of the plaintiff, in our opinion, fairly tended to show that the apples were in good condition when they were delivered to defendant for shipment and that they were in a frozen condition when they arrived at New York City. It is therefore clear that the plaintiff made out a prima facie case of negligence, and that it devolved on the defendant to overcome this presumption.

While defendant does not argue against this principle of law, it, however, insists that there are three exceptions, viz.: (1) The act of God or the public enemy; (2) losses due to the acts of the shipper himself; and (3) those due to the inherent nature of the goods themselves.

Defendant admits that the loss was not due to the act of God or the public enemy, but insists that it was due both to the act of the shipper and the inherent nature of the goods; contending, first, that the weather being extremely cold, the act of the shipper, in offering the apples for transit in that state of the weather, constituted negligence. In urging this contention, it comments on the fact that the plaintiff realized the danger of shipping during freezing weather, by heating the cars during the time they were loaded, papering them, placing shavings on the floor, papering the doors on the outside, yet offered them for shipment without requesting the defendant to heat the cars. We look upon these acts of the shipper as showing the exercise of a degree of care commensurate with the existing weather' conditions at the time of loading and delivery for shipment. The fact that no request was made on the defendant to heat the cars does not subject plaintiff to a charge of negligence.

Defendant, when accepting these cars for shipment, did not' impose any conditions in its bill of lading requiring plaintiff to furnish stoves for heating while in transit, nor did it ask the shipper to assume the risk of the apples freezing in transit. It was the duty of the defendant, under its contract of carriage, to provide all suitable means of transportation and to exercise that degree of care which the nature of the property required. Ruddell v. Baltimore & O. R. Co., 175 Ill. App. 456; Wing v. New York & E. R. Co., 1 Hilt. (N. Y.) 235; Wolf v. American Exp. Co., 43 Mo. 421.

Defendant further contends that the loss or damage occurred because of the inherent nature of the goods. This defense presupposes, however, that the carrier has performed its duty to carry the goods safely to their destination. The evidence offered on behalf of the defendant merely showed that there was no delay in the shipment or any mishap during the transit. There was no evidence offered by defendant to show that it took any steps to prevent the freezing of the apples accepted by it for transit, nor was there anything in its testimony to advise the court as to what care these apples had while carried in its train or while standing at stations; nor what care they received at their destination and before delivery. As has been well said by Mr. Justice Bunn, speaking on behalf of the Supreme Court of Minnesota, in the case of B. Pressley Co. v. Illinois Cent. R. Co., 117 Minn. 399, wherein the facts were almost identical and wherein the evidence on the defense was substantially as in the case at bar:

“Unless we are prepared to hold that damag'e by frost while in transit is something that the carrier owes no duty to attempt to prevent, we can hardly sustain the contention that the evidence shows that defendants used due care. It is not necessary to point out what defendants could have done to save the loss of the holly. They offered no evidence of any effort in that direction. We think there was an entire failure to rebut the presumption of negligence that arose.”

So in the case at bar, we are of the opinion that defendant has failed to rebut the presumption of negligence made out by plaintiff’s evidence.

While the case of Swetland v. Boston & A. R. Co., 102 Mass. 276, supports the contention of the defendant that it is not liable for freezing unless the evidence shows a negligent act on its part, such as delay, improper handling of its equipment, yet this decision is against the weight of authority. The law is well settled that a common carrier must anticipate and guard against all natural consequences that may occur during transportation. One of these is the liability of apples to freeze during cold weather.

Nor are the foregoing views inconsistent with McGrow v. Baltimore & O. R. Co., 18 W. Va. 361, which holds that the inherent nature of the goods shipped is a defense to the common carrier, provided it has used foresight, diligence and care to protect the property from damage and loss.

Defendant further contends that the court erred in refusing to admit in evidence its exhibit “B”, being an extract from official classification No. 37. We agree with plaintiff when he argues that there was nothing in the evidence which made it material or controlling, and therefore the court properly excluded same from consideration in determining the issues in the case.

The amount of the judgment was not in question either at the trial or in the briefs and arguments submitted to this court.

Finding no reversible error, the judgment of the Municipal Court will be affirmed.

Affirmed.