author: Mr. Justice Baker

text:
    Neal F. Daugherty, Appellant, v. John A Fippinger et al., Appellees.
    Gen. No. 17,132.
    1. Oeeicebs—president de facto. Where the board of village trustees refuse to count the votes and arbitrarily cause a statement to be entered on the record that a certain individual receiving a minority of votes is elected, and he assumes the office, such action is sufficient to make him president de facto under color of right, though not president de jure.

      2. Mandamus—where office is filled by de facto officer. Where an office is already filled by one who is exercising the functions of the office dp. facto and under color of right, mandamus does not lie to ■compel the admission of another claimant nor to determine the disputed question of title to the office.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the June term, 1910.
    Affirmed.
    Opinion filed March 4, 1913.
    James B. Heffernan, for appellant.
    George E. Brannan, for appellees; Ode L. Rankin, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

The Circuit Court sustained the demurrer to the second amended petition for a writ of mandamus, and, petitioner electing to abide, entered judgment for the defendants and the petitioner appealed. The original petition alleged that at the annual election in 1809 of village officers in the Village of Bellewood, petitioner, Fippinger and Abel were candidates for president; that petitioner received 56 votes, Fippinger 44 and Abel 43, and that the returns to the village clerk made by the judges and clerks of election stated the facts; that the president and board of trustees of the village refused to count for petitioner the 56 votes he received and declared the result of the election to be that Fippinger was elected president, and caused a statement to be entered on the records.and journal of the village that Fippinger was elected president; that the clerk issued a certificate of election to Fippinger, who at once assumed the duties of the office of president of the village, etc.

The second amended petition repeats the allegations of the original as to the election and the returns thereof and alleges that the village board adopted a resolution that, “the vote of Neal J. Daugherty for village president be disregarded;” that the board “refused to canvass the returns and to declare the result of said election as shown by said returns and to cause a statement thereof to be entered on its journals,” etc. The allegations of the second amended.petition are not necessarily in conflict with the allegations of the original petition, for the former may be construed to mean, not that the board refused to canvass the returns, declare the result as found by the board and cause a statement thereof to be entered on its journals in accordance with the provisions of the statute, but that the board refused to canvass the returns and to declare the result, as shown by said returns and to cause a statement thereof to be entered on its journal.

We know of no ground on which the action of the board in rejecting the returns of votes for petitioner can be defended or excused. The board had no authority to go behind the returns and arbitrarily refuse to count the votes for petitioner shown by the returns, and Fippinger cannot, in our opinion, be held to be president de jure. But the action of the board was sufficient to make Fippinger president de facto under color of right.

In High on Extraordinary Remedies, sec. 49, it is. said that the rule is established by an overwhelming current of authority that mandamus will not lie to compel the admission of another claimant nor to determine the disputed question of title to an office, where it is already filled by an actual incumbent who is exercising the. functions of the office de facto and under color of right. In French v. Cowan, 79 Me. 426, the rule stated by High is followed and the cases in its support in this country and in England are cited and examined.

We think the demurrer to the petition was properly sustained, and the judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Maude Straus, Appellee, v. Boston Store of Chicago, Appellant.
    Gen. No. 17,117.

      Negligence—defective step. In an action for personal injuries the fact that plaintiff and the person with her at the time of the accident testified that plaintiff’s foot caught in a groove in the first step down in a certain stairway, when the grove is in the second step,- does not affect the right to recover.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Osoab E. Heabd, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 4. 1913.
    Rehearing denied March 10, 1913.
    Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett, of counsel.
    McCaskill & Son, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $850 for personal injuries sustained by plaintiff in falling on a stairway in the store of the defendant. Portions of the Champlain, building were added to the store of the defendant and the floors were not on the same level. From the third floor of the original store a stairway of six steps led to that part of the Champlain building occupied by the defendant. The stairway was ten feet broad, the steps were of iron, with six-inch risers and thirteen-inch tread.

The only count in the declaration necessary to be considered is the first additional count, which avers that the defendant negligently, etc., constructed a groove in one of said steps for a door to run in, so located that it was liable to catch the feet of persons going down the stairway, etc.; that plaintiff, as she was going down said stairs, caught her foot in said groove, fell and was injured, etc.

The plaintiff testified that her heel caught in a groove or something in the first step down, and that not knowing that her heel was caught, she took another step, overbalanced, fell to the foot of the stairs and was injured. G-ussie Clemens, who was with her, testified that there was a groove in the first step down, that plaintiff tripped on that step and fell.

There was a groove in the second step from the top, two or three inches out from the back edge of the step. From the evidence the jury might properly find that the groove was Y shaped, an inch and a half broad at the top and an inch deep. The overwhelming weight of the evidence is that there was no groove in the first step down, and consequently that the plaintiff and Miss Clemens were mistaken when they testified that there was a groove in the first step. Conceding that they were mistaken and there was no groove in the first step, but there was one in the second, we do not think that plaintiff’s right to recover was thereby affected. It is wholly immaterial whether her foot was caught in the first step down or the second, and in case of such an accident plaintiff and her witness might well be mistaken as to whether her foot was caught in the first step down or the second. The questions for the jury were whether the defendant was guilty of negligence in constructing and maintaining a stairway in one of the steps of which was such a groove as the evidence shows was in the second step down of the stairway in question, and whether plaintiff’s foot was caught in such groove and she thereby was caused to fall, andthefurther question whether plaintiff was in the exercise of reasonable care. We cannot say that the jury might not properly find each of these questions in favor of the contention of the plaintiff, and therefore cannot' say that the verdict was against the evidence.

Finding no error in the record, the judgment of the Superior Court is affirmed.

Affirmed.


text:
    Frank Kaeseberg, Appellee, v. N. Clifford Ricker et al., Appellants.
    Gen. No. 17,031.
    1. Architects—citation of hoard of examiners. The citation, served on a licensed architect ordering him to appear before the State Board of Examiners of Architects to defend against a showing that he was guilty of dishonest practices may he considered as containing the charges and specifications against him.
    2. Architects—dishonest practices. An alleged dishonest act by an architect in placing his official seal on plans for a building merely to enable the contractor or owner to obtain a permit for the erection of the building does not constitute “dishonest practices” within the statute giving the State Board of Examiners of Architects power to revoke licenses for such practices, since it was not intended that a license might be revoked for a single dishonest act.
    3. Architects—when alleged act not dishonest. The alleged act of an architect in placing his official seal on plans for a building merely to enable the contractor or owner to obtain a permit to erect the building is not a “dishonest practice” within the meaning of the statute authorizing the- revocation of licenses of architects by the State Board of Examiners of Architects for such practices, where there is no allegation of an intent to defraud, or that such architect was not familiar with the plans, or that they were not made under his supervision.
    Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed March 4, 1913.
    Rehearing denied March 17, 1913.
    Pope, Hoig, Fuller & Nichols, for appellants.
    Dunn & Hayes, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

This was a common law writ of certiorari issued by the Superior Court to quash the proceedings of the State Board of Examiners of Architects revoking the license of petitioner Kaeseberg. The statute creating said Board empowers it to grant licenses to persons to practice architecture, which shall remain in force until revoked as therein provided, and further provides that, “Any license so granted may be revoked by unanimous vote of the State Board of Examiners of Architects for gross incompetency or recklessness in the construction of buildings or for dishonest practices on the part of the holder thereof; but before any license shall be revoked such holder shall be entitled to at least twenty days’ notice of the charge against him and of the time and place of hearing, etc.” This section specifies the causes for which licenses may be revoked, and they cannot be revoked for any other cause.

The following was the citation served on Kaeseberg :

“March 25th, 1909.
Mr. Frank Kaeseberg,
764 Sheffield Avenue.
Chicago, Illinois.
Dear Sir : By order of the Legal Committee of the Illinois State Board of Examiners of Architects, and by authority granted by law to said Board, you are hereby cited to appear before the Illinois State Board of Examiners of Architects on Friday, the 16th day of April, 1909, at 11 o’clock in the forenoon of that day at its Board Booms 1112 Chamber of Commerce Building in the City of Chicago, then and there to answer to and defend yourself against such evidence as may be presented, showing you guilty of dishonest practices by the holder of a license to practice the profession of architecture in the State of Illinois. The evidence to be presented will have special reference to your conduct in placing your oficial seal on the plans for a building to be erected at the northeast corner of 71st Street and Stewart Avenue; also bounded on one side by the right of way of the Chicago, Bock Island & Pacific B. B.; said plans having been made by one Edward Shank residing at 2734 Forest Avenue, and doing business at 108 LaSalle Street in the City of Chicago or by some person in his employ or acting under his direction. Said plans were offered to the Commissioner of Buildings of the City of Chicago for approval between March 16th and March 19th, 1909, and were rejected by the Commissioner of Buildings because they had not been made by a licensed architect and were returned to said Commissioner of Buildings on the following day bearing the seal of Frank Kaeseberg, licensed architect; also bearing the name of Edward Shank imprinted in the blue prints which were offered for approval; the purpose for which the seal of said Kaeseberg was placed thereon being to enable the Shank Company, Contractors, or Harvey T. Weeks, Jr., said to be the owner of the said land upon which said building is to be erected, to obtain a permit from the Building Commissioner for the erection of said building.
You will have the privilege to be heard in person or by counsel in open public trial, and will be entitled to the subpoenas of the Board for your witnesses as provided in Section 10 of the act, by which this Board is constituted.
By order of the Legal Committee.
(Signed) Peter B. Wight, Secretary.”

Considering this citation as appellant contends it should be considered, as containing the charges and specifications, the question is presented whether the conduct with which Kaeseberg was thereby charged can be held to be “dishonest practices” on his part within the meaning of the words as used in the statute. The dictionary definition of “practices” is, “Asucesssion of acts of a similar kind or in a like employment;” of “practice” is, “Frequent, repeated or customary action; a succession of acts of a similar kind.” In granting to the Board power to revoke a license for “dishonest practices,” we cannot think that it was the intention of the Legislature to grant to the Board power to revoke a license for a single dishonest act. The only act with which Kaeseberg was charged by the citation was that he placed his official seal on certain plans made by Edward Shank or some one in his employ, which were presented to the Building Commissioner of °Chicago to obtain a permit for the erection of the building.

We do not think that the acts which Kaeseberg was by the citation alleged to have committed can be held to be “dishonest practices” within the meaning of the statute, first, because the commission of a single act does not amount to or constitute “practices” or “practice,” and the allegation that a person committed a single act is not sufficient to support a charge that he is guilty of specified “practices” or “practice;” and, second, because the acts and conduct with which Kaeseberg was charged are not sufficient to show that his act in putting his seal on the plans in question was a “dishonest” act. There is no allegation of any intent to defraud or deceive, or that Kaeseberg was not entirely familiar with the plans in question, ox that the same were not made under his supervision, and we are unable to see in the facts alleged any indication that he was dishonest.

At the hearing the Superior Court held that the order revoking the license should be set aside and entered an order quashing and setting aside the order of the Board revoking said license, and in that result we are disposed to concur. The judgment will therefore be affirmed.

Affirmed.


text:
    Walter L. Schumacher, minor, by William J. McCarty, his next friend, Appellee, v. Ariel Meinrath, Appellant.
    Gen. No. 16,973.
    1. Automobiles—excessive speed. In a suit by a minor alleging that an automobile had been driven negligently and at a speed greater than one mile in four minutes through the residence portion of a city, and exceeding one mile in six minutes through a closely built up business portion, contrary to the statute providing that such speed shall be prima facie evidence that the speed is greater than reasonable, where plaintiff’s view was obstructed by a wagon crossing a street in the same direction as plaintiff, and defendant’s chauffeur, not being able to stop his car because of the street being wet, increased the speed so as to avoid collision with the wagon by passing in front of the team, and struck plaintiff, and where the jury might properly find that the car had approached at a speed exceeding fifteen miles per hour through such business district, the defendant is guilty of negligence both under and independent of statute.
    2. Automobiles—where particular accident not foreseen. In an action for negligent driving of an automobile, it is not material that the particular injury could not reasonably have been foreseen if at the time of the happening it might reasonably have been foreseen that an injury to some one might result from negligent or fast driving.
    3. Automobiles—business district on only one side of highway. Michigan avenue, west of Grant Park, in the City of Chicago, is a highway through a closely built up business portion of the city, under the statute regulating automobiles.
    Appeal from the Superior Court of Cook county; the Hon. Geobge W. Patton, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 4, 1913.
    Fred D. Jackson and Bull & Johnson, for appellant.
    Johnson & Belasco, for appellee; Joel Baker, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

In March, 1908, plaintiff, then sixteen years old, in crossing Michigan avenue on the line of the sidewalk on the north side of Van Burén street, when near the east side of the avenue was struck by an automobile of defendant and injured. In an action on the case to recover for such injuries, the first count of the declaration alleges that the defendant, by his servant, so negligently drove and managed his automobile as to cause it to strike plaintiff. The second count alleges that said avenue, at the place where, etc., was a pub-lie highway passing through the residence portion of the city of Chicago; that the defendant operated his car at a speed greater than one mile in four minutes, contrary to the statute, etc., by reason whereof, etc. The third count alleges that said, avenue, at the place where, etc., was a public highway passing through a closely built up business portion of the city of Chicago; that defendant operated his car at a speed greater than One mile in six minutes, contrary, etc., by reason whereof, etc. The statute- provides that if the rate of speed of a motor vehicle operated on a public highway, “where the same passes through the closely built up business portions of any incorporated city, etc., exceeds ten miles an hour, or if . the rate of speed of any motor vehicle operated on any public highway where the same passes through the residence portions of any incorporated city, etc., exceeds fifteen miles an hour * * * such rate of speed shall be prima facie evidence that the person operating such motor vehicle, etc., is running at a rate of speed greater than is reasonable, having regard to the traffic and the ■ use of the way, or so as to endanger the life, limb or to injure the property of another person.” Hurd’s Stat. (1911) 2044-5.

Plaintiff when injured was going east across the avenue. A South Park dirt wagon was crossing in the same direction to go up an incline on the east side of the avenue into Grant Park, and plaintiff was walking north of the wagon, which obstructed his view of a vehicle coming from the south. The automobile was going north on the east side of the avenue. From the evidence the jury might properly find that the speed of the car as it approached Van Burén street exceeded fifteen miles per hour; that the driver of the car increased its speed and attempted to cross in front of the team, and the car would have struck the team had not its driver suddenly stopped his team and swung his horses to the north; that plaintiff in ignorance that a car was approaching from the south, proceeded on Ms way and just as he passed beyond the horses was struck and injured. The evidence shows that the west side of Michigan avenue for several blocks north and south of Van Bnren street was solidly built up with business buildings from four to fifteen stories high; that east of the avenue for approximately half a mile each way was Grant Park, in which there was but one building, the Art Institute. The rule of the South Park Commissioners prohibited all traffic vehicles from going north or south in the avenue. The chauffeur of defendant had been a chauffeur for five ■years and must have known that the dirt wagon would proceed across the avenue. He attempted to justify his conduct by testifying that the street was wet and he could not stop his car, and that he expected the dirt wagon to turn into the avenue and proceed either north or south. We think that the jury might properly find that MicMgan avenue at Van Burén street was a highway through a closely built up business portion of Chicago,’^although Grant Park was immediately east of the avenue and that the running of the car at the speed it was run, under the circumstances shown by the evidence, constituted and was negligence, both under the statute and independent of the statute) The fact that the street was wet affords no excuse to the chauffeur, for its condition was known to him as well when he first saw the dirt wagon as when he determined to pass in front of it. Chicago City Ry. Co. v. Schmidt, 217 Ill. 396.

It is not material that the particular injury could not reasonably have been foreseen, if at the time of the happening it might reasonably have been foreseen that an injury to some one might result from the negligent act. Illinois Cent. R. Co. v. Siler, 229 Ill 390.

We do not think that the contention that the plaintiff was guilty of contributory negligence is sustained by the evidence.

We find no error in the rulings of the court on the instructions.

One of plaintiff’s ribs was broken, another dislocated from the cartilage, and he sustained other injuries. The evidence for the plaintiff tends to show that from the time of his injury, but not before, he has had a cough; that he is pale, anaemic and has lost weight. A physician called by plaintiff testified that he apparently had incipient tuberculosis and that it could result from his injury. A physician called by the defendant testified that in his opinion there was no connection between the injury and the incipient tuberculosis at the time of the tnai. We think that on the evidence the question whether plaintiff’s condition at the time of the trial was the result of the injury for which he sued, was a question for the jury, on which their verdict must be held conclusive, and that if his then condition was the result of his injury, the damages given by the jury cannot be held excessive.

The record is, we think, free from error and the judgment of the Superior Court is affirmed.

Affirmed.


text:
    Mary Mayzels, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,959.
    1. Carriers—stopping car where dangerous to alight. In an action for injuries sustained by plaintiff in falling while alighting at nighttime from a car which had been stopped on a temporary track, before the exit step was opposite to a platform used during repairs, where the step was twenty-eight inches above the pavement, the jury might properly find the failure to move the car so as to place the exit alongside such platform before permitting passengers to alight constituted negligence, and that plaintiff was not guilty of contributory negligence.
    2. Evidence—location of car after accident. Where no testimony has been given or is promised that a car had not been moved after an accident and before a witness saw it, a question of such witness, where the car was when he saw it, is properly refused.

      3. Instructions—referring to entire declaration when some counts not proved. Where there is no evidence to support certain counts in the declaration, the giving of an instruction stating, “as alleged in the declaration,” is not error, as the defendant may ask for a charge defining the issues under the counts.
    4. Instructions—erroneous hut not misleading. Error in instructing a jury, when they are not believed to have been misled thereby, is not reversible.
    5. Carriers—instructions. Instructions given to the jury on the facts in this case, as to duties and liabilities of street railroad companies held proper.
    6. Damages—not excessive. $3,000 damages to a woman who sustained a broken leg, was confined to her bed for two months, wore a plaster cast for two months more, and has not entirely recover d, will not be set aside as excessive.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 4, 1913.
    Franklin B. Hussey and Watson J. Ferry, for appellant ; Leonard A. Busby, of counsel.
    Cruice & Langille, for appellee; Daniel L. Cruice, A. S. Langille and O. J. C. Wray, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff, a passenger in a street car of the defendant running north in Wabash avenue, fell and was injured in alighting from the car at 12th street. In an action on the case against defendant on the ground that she fell because of the negligence of defendant, plaintiff had judgment for $3,000 and defendant appealed. Because of certain repairs to its tracks in the vicinity of 12th street defendant had constructed and at the time of the accident was using temporary tracks made of rails placed on ties laid on the pavement of the avenue. The east rail of the east track was two feet west of the curb line of the avenue. In the space between the east rail and the east curb line planks closely fitted together were laid for a distance of sixty feet north from the north curb line of 12th street, making a platform on which passengers on north-bound cars, which were intended to stop at the north side of 12th street, could step in alighting from a car. This platform was level with the rails and with the curb. The ties were about eight inches thick and the fails three inches high, making the distance from the top of the rail to the pavement eleven inches. The height of the lower step of the car from the rails was seventeen inches. The height of the lower step of the car from the pavement was therefore .twenty-eight inches. Plaintiff was a passenger on a north-bound car running on the east track and notified the conductor that she wished to stop at 12th street. The rear platform of the car, over which plaintiff attempted to leave the car, was five and a half feet long, divided into two parts by a curved rail. The entrance to the car was back of the rail and forty inches wide. The exit was next to the Body of the car and Was a little over two feet wide. There was an upright rod at the outer end of the curved rail extending from the floor to the roof, and a rod or bar attached to the end of the car for passengers to take hold of in alighting from the car. As the car approached 12th street the conductor gave the signal to stop and the car was stopped. The place where it was stopped, with reference to the south end of the paltform, is one of the controverted questions in the case. We think that from the evidence the jury might properly find that when the car was stopped the whole of the rear platform of the car was south of the planking or platform; that just before the car stopped the conductor told plaintiff that this was 12th street and to get off there; that at the place where the car was stopped there was nothing for plaintiff’s foot to step or rest on above the pavement, which was twenty-eight inches below the step of the car; that when the car stopped the conductor opened the exit door and plaintiff passed through it onto the rear platform and thence down to the lower step of the car, holding to the handle bar at the rear of the car with her left hand and holding in her right an umbrella and pocketbook; that she then stepped down with one foot and when it did not reach the ground so soon as she expected, she attempted to get back on the car by pulling herself up, but was unable to do so or to support herself longer by her hand and was compelled to let go her hold on the handle bar and fell to the pavement, and was injured.

The negligence alleged in the fourth additional count is that when the car was stopped at or near the intersection of 12th street and Wabash avenue its rear entrance was not opposite or adjacent to the platform, approach and place to alight, but was away from, off and not opposite said platform; that when appellee was required to alight it was dark and in the absence of proper light she could not see and discover that such entrance was not opposite and adjacent to the platform, and while getting off she fell upon the ground and away from and off of said platform. That alleged in the fifth additional count is that the car was stopped with its rear entrance not opposite or adjacent to the platform; that when it came to a standstill that she and others might alight,. appellant’s servants announced the station and place to alight; that it was dark and, in the absence of proper light she could not see that the rear end of the car was not opposite the platform and in getting off fell to the ground away from the platform. That alleged in the seventh additional count is that on the arrival of the car at 12th street and at the platform it was carelessly and negligently stopped away from and not opposite the platform; that when she was required to alight it was dark, and, in the absence of proper light she did not and could not discover that fact, and while, with due care, she was getting off and on the ground she fell and swayed from and off the platform.

We think that from the evidence the jury might also properly find that the defendant was guilty of the negligence alleged in the declaration. While it may not he possible for a motorman to always stop his car at the precise place he intends to stop it, it is always possible, after the stop is made, to move the car forward or backward, and we think the jury might properly find that the care the defendant was bound to take of its passengers required the defendant, when the car was stopped, to observe and know that the car had been stopped before the step provided for use in leaving the car was alongside of the platform and to move the car forward until the step was alongside of the platform before passengers were invited or even permitted to leave the car by such step, and that the failure to do so constituted and was negligence. We also think that the jury might properly find that the plaintiff was not guilty of contributory negligence. The accident happened at ten o’clock at night, and while there were lights we cannot say that the failure of plaintiff to observe that the distance between the step and the pavement was so great that she could not reach the pavement with one foot while the other was on the step, was negligence. The contention of appellant that the trial court erred in refusing to grant a new trial on the ground that the verdict was contrary to the evidence, cannot on the evidence in this record be sustained.

Appellant complains of only one ruling on evidence. Plaintiff, after her injury, was taken to a drug store and afterward to a doctor’s office. Bindell, the first witness called by the defendant, testified that he did not see plaintiff fall; that when he got there they were carrying her upstairs to the doctor. He was asked where the rear end of the car was with reference to the north line of 12th street when he saw it, and the court sustained plaintiff’s objection to the question. Up to that time no testimony that the car was not moved between the time of the accident and the time plaintiff was taken to the doctor’s office had been givén and there was no offer or promise to show that it had not been moved. Such testimony was given afterwards, but the witness was not recalled. We think that in view of the evidence given before the question was asked, the objection to the question was properly sustained.

The appellant further contends that the giving of each of the following instructions for the plaintiff was error:

“25. You are instructed that if you believe from the evidence that the defendant stopped its trains for passengers to alight at 12th street and Wabash avenue, in the city of Chicago, at a place which was unsafe and dangerous for passengers to alight, and that the plaintiff was told or encouraged to get off at such place, and while so doing she was injured, then the defendant would be liable and the verdict should be for the plaintiff, if she did not contribute to the accident by want of ordinary care or by failure to observe ordinary care.
27. You are instructed that it is the duty of a carrier of passengers to provide and keep the landing places and platforms used by it for discharging passengers from its vehicles and all passageways leading to and from such places in a reasonable and safe condition for the purposes intended; and for any violation of its duty in this respect, which entails injury upon a passenger, without fault on his part, the carrier will be answerable in damages.
28. You are instructed that a carrier of passengers is bound to exercise the highest degree of care for the safety of its passengers, reasonably consistent with the practical operation of the road and the character and mode of the conveyance adopted; if you believe from the evidence that the plaintiff became a passenger of the defendant, and that the defendant did not exercise the degree of care and caution for the safety of the plaintiff as stated herein, and the plaintiff was injured, as alleged in the declaration, because of the failure of the defendant to exercise the degree of care and caution required as stated herein, and if you further believe that the plaintiff was in the exercise of reasonable care for her own safety at the time of the injury, then you should find the defendant guilty.
29. You are instructed that if you believe from the evidence that the plaintiff, Mary Mayzels, was in the exercise of ordinary care for her own safety, and was injured by the negligence of the defendant, Chicago City Railway Company, so charged in the declaration, then you should find the defendant guilty. ’ ’

The contentions that instructions 25 and 28 limited the exercise of care by the plaintiff to the time of the injury, irrespective of her conduct in placing herself in a position to be injured, canont be sustained. The language of both instructions includes the whole occurrence. Knox v. American R. M. Corp., 236 Ill. 437; Krieger v. Aurora E. & C. R. Co., 242 Ill. 544. Appel-. lant further contends that it was error to give instructions 28 and 29 because there is no evidence to support certain counts of the declaration. It has been often held in this state that it was not error to give such instructions. Chicago City Ry. Co. v. Foster, 226 Ill. 288, and cases there cited. In this case, as in the Foster case, no instructions were asked by appellant defining or explaining the issues under the averments of the declaration or any count thereof. An objection urged to instruction 25 is, that it in effect told the jury that if plaintiff did not contribute to her injury by want of ordinary care she might recover, although she was not required to alight at the point where the car stopped and the place where she attempted to alight was so sufficiently lighted that she might have seen that it was dangerous to. alight at such place. The averments of the declaration do not mean that the plaintiff was required against her will to alight from the car. She averred and testified that she intended to leave the car at 12th street and that the conductor saw that the car was at 12th street. If by the exercise of ordinary care she could have seen that it was unsafe and dangerous for her to alight from the car where it stopped, then, in attempting to alight from the car at that place, she was not exercising ordinary care; but the instruction in question only authorized a verdict for the plaintiff if “she did not contribute to the accident by want of ordinary care or by failure to observe reasonable care.” We do not think that instruction 27 should have been given. Plaintiff was injured, according to her contention, not because the platform was not in a reasonably safe condition, but because the ear was stopped before it reached the platform provided for passengers to' alight on; but we do not think that the jury were misled by the instruction or that the judgment should be reversed because it was given.

The evidence for the plaintiff tends to show that the fibula was fractured near the ankle, that the astragalus was injured and the muscles and tendons near the point of fracture torn apart; that she had not fully recovered from her injuries at the time of trial; that she was still lame and suffered pain as the result of her injury; that she was confined to her bed. two months and afterwards wore a plaster cast nearly two months. The evidence for the defendant tends to show that no bone was fractured. We cannot say that the jury might not take as true the testimony of plaintiff and her witnesses as to the nature, extent and results of her injuries, nor that if they did so, that the damages awarded her are excessive.

The record is, we think, free from reversible error and the judgment is affirmed.

Affirmed.


text:
    Mary E. Ross, Appellee, v. Frank H. Ross, Appellant.
    Gen. No. 16,954.
    1. Sep abate maintenance—temporary alimony. An order to pay temporary alimony must be based on a showing that the husband’s financial ability and circumstances are such that he can pay the amount ordered.
    2. Sep abate maintenance—temporary alimony. Where a bill for separate maintenance alleges that defendant is possessed of property worth $100,000, with an annual income of at least $10,000, and states no evidentiary facts to support the conclusion, and the affidavits of defendant state that he has no property, that there are numerous judgments against him and that he has no income except what he earns as a real estate agent, which does not exceed $40 per month, there is not a sufficient showing to support an order that defendant pay $50 per month temporary alimony.
    Appeal from the Circuit Court of Cook county; the Hon. Chables M. Walker, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed March 4, 1913.
    Stedman & Soelke, for appellant.
    No appearance for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

Appellee as complainant filed her sworn bill in the Circuit Court for separate maintenance against the appellant; on her motion the court ordered that defendant pay her fifty dollars per month as temporary alimony, and from that order defendant appealed.

The motion was supported only by the sworn bill and in opposition thereto were read affidavits of the defendant. The bill alleged that the defendant was possessed of or entitled to the possession of real and personal estate of the value of one hundred thousand dollars and that his annual income was at least ten thousand dollars. The bill stated no evidentiary fact tending to warrant or support the conclusion stated as to the amount of defendant’s estate or income.

The affidavits of the defendant stated that he was badly injured in a railroad wreck three years before the filing of the bill and since that time had been unable to perform any manual labor; that there were numerous judgments against him in the Municipal Court, and that he had no property, real or personal, and no income except what he earned as a real estate agent in collecting rents, which did not exceed $40 per month.

An order to pay temporary alimony must be based on a showing that the. financial ability and circumstances of the husband are such that he can pay the alimony he is ordered to pay.

We do not think that it appears from the affidavits in this case that the defendant was able to pay the alimony he was ordered to pay, and the order appealed from is therefore reversed.

Order reversed.


text:
    John Connolly, Appellee, v. People’s Gas Light & Coke Company, Appellant.
    Gen. No. 16,942.
    1. Master and servant—relation. Where a driver for one who is under contract to do teaming for a gas company works under the direction of the company but is not subject to general orders from it, he is not its servant but remains the servant of his employer.
    2. Master and servant—where employee becomes servant of another. Where an employer furnishes his employee to another to do certain work and in the performance of such work he is placed under the exclusive control of the one to whom he is furnished, he becomes ,his servant.
    3. Negligence—permitting pipe to be piled near tunnel. Where a teamster delivering gas pipe to defendant gas company piles it near the edge of a tunnel so that defendant’s servant may use the appliance on the back of the wagon for cutting threads, and stumbles on a piece of pipe which falls into the tunnel injuring plaintiff, a workman, the - defendant, while not liable for negligence of the teamster who is not its servant, is under a duty to exercise reasonable care to prevent pipe from falling into the tunnel, and the jury may properly find defendant guilty of negligence in permitting the pipe to be piled in such a place, and that the injury to plaintiff is caused by the combined negligence of defendant and the teamster.
    4. Damages—excessive. An award of $1,000 to a laborer for injuries consisting of a fractured skull, entailing inability to labor for a long time, cannot be held excessive.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Edwakd M. Mangan, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 4, 1913.
    Rehearing denied and opinion modified March 17, 1913.
    Statement by the Court. Appellee Connolly brought his action in the Circuit Court ag’ainst the appellant Gas Company and one Hartwell to recover damages for personal injuries alleged to have been sustained by him through the negligence of the defendants. By a contract in writing between Hartwell and the Gas Company it was agreed that Hartwell should do all the teaming for the Gas Company, furnish teams and drivers satisfactory to the Gas Company, and that the teaming should be done, “in accordance with the directions of the Superintendents of the Company.” Plaintiff was employed in the Van Burén street tunnel, and had occasion to pass in and out of the eastern entrance to the tunnel, which was alongside of a public alley and about twenty feet deep. The Gas Company was putting a gas oven in a building fronting on the alley, and for use in that work Leo Smith, a driver for Hartwell, by direction of the Gas Company, drove a horse hitched to a wagon of Hartwell, on which were appliances for cutting threads on gas pipes and about a dozen pieces of gas pipe, into the alley and stopped near the eastern entrance to the tunnel. To cut threads on the pipes it was necessary that the pipe on the wagon should be unloaded, and Smith took the pipe from the wagon and laid it down in the alley. Plaintiff was injured by a piece of gas pipe falling into the tunnel at its eastern entrance and striking him on the head. The work of threading the pipe and putting it in place was done by Dawson, a gas fitter employed by the Gas Company.
    The second count of the declaration alleges that defendants were engaged in fitting gas pipe in a public alley near the entrance to said tunnel, and that plaintiff was employed in the tunnel near said entrance below and near the place where defendants were working; that defendants negligently, etc., piled a pile of round gas pipe near said entrance, whereby, because of such negligence, a piece of gas pipe was caused to roll and fall into said tunnel and struck and injured plaintiff.
    Before the trial Hartwell paid plaintiff $250 and he dismissed the suit against Hartwell and gave him a covenant not to sue. The jury found the Gas Company guilty and assessed plaintiff’s damages at $2,854.00. Plaintiff remitted $1,854.00, had judgment for $1,000, and the defendant appealed.
    Sears, Meagher & Whitney, for appellant; James F. Meagher, Edwin Hedrick, Jr., and Frederick A. Freeark, of counsel.
    B. J. Wellman, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

It is well settled that a person admitted to be in the general employment of one person may, with his consent, be transferred to another in such a way as to become the servant of that other in the business for which he was transferred. If men are furnished by one person to another to do certain work, and are placed under the exclusive control of that other in the performance of the work, those men become pro hac vice the servants of him to whom they are furnished. But the mere fact that a servant is sent to do work pointed out to him by a person who has made a bargain with his master, does not make him that person’s servant. If the person who sends the- servant retains the control and direction of him, he remains his servant and he is responsible for his negligence, though the work is done for the benefit of the person to whom he is sent. The Gas Company indicated the work to be done by Smith, but Smith was not subject to the g-eneral orders of the Gas Company, and we think that on the facts disclosed by the evidence Smith, in all that he did, was doing the work of Hartwell, and was Hartwell’s servant and not the servant of the Gas Company. Driscoll v. Towle, 181 Mass. 416, cited with approval in Harding v. St. Louis Nat. Stock Yards, 242 Ill. 444, 451; Standard Oil Co. v. Anderson, 212 U. S. 215.

But the conclusion thus reached is not decisive ag-ainst the liability of the Gas Company to the plaintiff for his injuries. , The wagon was hired by the Gas Company; the work in hand was the work of that Company. In placing the wagon in the alley, preparing to thread pipe there by means of the appliances on the wagon, the Gas Company was doing its own work.

Cars were continually passing in and out of the tunnel and this was known, or by the exercise of reasonable care would have been known, to the servant of the Gas Company in charge and control of the work in the alley. Plaintiff was properly on one of the cars coming out of the tunnel, and the servant of the Gas Company knew, or would have known if he had given the matter reasonable care and attention, that if through his negligence a piece of gas pipe fell into the tunnel it was liable to strike and injure any one passing in or out of the tunnel. We think that on the facts shown by the evidence it became the duty of the Gas Company to exercise reasonable care in the performance of the work in which it was engaged in the alley to prevent a piece of gas pipe from falling into the tunnel, and this independent of the existence of any contractual relation between the Company and a person who was properly in a place where he was liable to be injured by the falling of a piece of pipe into the tunnel.

From the evidence the jury might properly find that while the work of unloading was done by Smith, the power and authority to direct where the pipe should be placed was vested in Dawson, the representative of the Gras Company, and might further find, although the evidence on that point is conflicting, that the pipe was laid or piled on the surface of the alley within three or four inches of the edge of the tunnel, and so piled and in such a place that if anything struck the pipe a piece was liable to fall into the tunnel.

The horse hitched to the wagon became restive and Smith started to go from the rear end of the wagon to the horse to quiet him and in doing so stumbled; “happened to step on this piece of pipe and it went over into the tunnel.” The piece of pipe that fell into the tunnel was two feet long. The Gras Company was not liable for the negligence of Smith, if it was negligence, in stepping on or striking his foot against the piece of gas pipe; but we think that from the evidence the jury might properly find that the Gras Company was guilty of negligence in permitting the pipe to be piled in the place and manner in which it was piled, and that the injury to the plaintiff was caused by the combined negligence of the Gras Company and of Smith.

The evidence tends to show that the outer plate of plaintiff’s skull was fractured, that serious results followed, interfering with his ability to labor for a long time, but that no evidence, of complications was visible at the time of the trial, three years and a half after the injury. We cannot say that the amount of plaintiff’s recovery is excessive.

Finding no error in the record, the judgment is affirmed.

Affirmed.


text:
    Western Valve Company, Appellee, v. Quay-Dakin Company, Defendant, and A. E. & F. A. Wells, Garnishees. Sykes Steel Roofing Company, Appellee, v. Quay-Dakin Company, Defendant, on appeal of A. E. & F. A. Wells, Garnishees, Appellants.
    Gen. No. 16,927.

      Garnishment—admission of indebtedness. Though a subcontractor cannot recover a per cent, of the price retained by the original contractor when attachment writs are served on such contractor by persons who furnished materials to said subcontractor, because of an agreement whereby a per cent, was to be retained if claims against the subcontractor existed, yet if the contractor, after service of the writs, without liens being established, pays an amount larger than the per cent, retained to others for labor and materials furnished to the subcontractor before the service- of the writs, such payment is an admission of indebtedness by the contractor when the writs were served, and judgment against the contractor for the per cent, retained is proper.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, ' Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 4, 1913.
    Statement by the Court. Appellee brought separate actions of assumpsit against the Quay-Dakin Company in the Circuit Court, sued out writs of attachment in aid and summoned A. E. and F. A. Wells, the appellants here, as garnishees. The usual formal interrogatories were filed, requiring the garnishees to answer whether they had in their possession at the date of the service of the writ, any money, credits, etc., of the principal defendant, or were indebted to it, or had property belonging to it, etc., to each of which interrogatories the answer was “No.” The fifth interrogatory was whether before, etc., they had entered into any contract with the QuayDakin Company, and the sixth was, that if they answered that they had, “State the substance of such contract, the amounts paid thereon and the amounts due or to become due thereon.” The answer to the fifth interrogatory was “Yes” and to the sixth: “Nothing due on any such contract at the time of the service of the writ.” To the answers the statutory traverses were filed. On the trial of the cause by the court there was a judgment in favor of the Quay-Dakin Company against the garnishees for $1,465.71, $624.84 thereof for the use of the Western Valve Company and $264.31 thereof for the use of the Sykes Steel Booting Company, and the garnishees appealed. As to the evidentiary facts there is no material controversy. The garnishees contracted with the owner to erect a building, for which they were to be paid $400,000. The Quay-Dakin Company contracted with the garnishees to put in the steam heating plant for $9,500. They installed the plant and did some extra work, making the amount the Company was to be paid $9,565.71, on which was paid $8,100, leaving a balance due said Company of $1,465.71 when it fulfilled its contract, and this sum was in the hands of the garnishees when the writs of appellee were served on them.
    The contract between the Quay-Dakin Company and the garnishees provided that eighty-five per cent, of the contract price should be paid as the work progressed and fifteen per cent, retained under the following provisions:
    “It is specially understood and agreed that the amounts to be paid from time to time, shall in no case exceed eighty-five per cent, of the value of the work done and material furnished, as shown by said certificates, the remaining fifteen per cent, of said value to be retained by said first party, as part security for the faithful performance hereof, and not to be paid until the expiration of thirty days after the perfect completion of the building, and the payment of all claims for labor and material furnished, and when all of the drawings and specifications have been returned; * * * that the Quay-Dakin Company shall leave said work complete and perfect, free from expense to the first party * * * and shall, if requested by said first party, furnish from time to time sworn statements of all indebtedness for materials and labor furnished, used or spent upon said work. * * * And it is further agreed that if at any time during the progress of said work said party of the second part shall allow indebtedness to accrue for labor or materials which may become liens on said building or the ground on which it stands, said party of the first part may refuse to make payments as hereinbefore agreed until satisfactory evidence has been furnished that said indebtedness has been discharged, and if such evidence is not furnished immediately within the space of ten days after a demand therefor in writing, the party of the first part may discharge such indebtedness and deduct the amount required therefor from the amount agreed to be paid herein, from the said party of the second part, or at their option may declare this entire agreement null and void, and may take possession of such work and complete the same, and in such case the said party of the second part hereby agrees to pay all loss or damage occasioned thereby. * * * And it is further agreed that if at any time, during the progress of said work, said party of the second part shall allow indebtedness to accrue for labor or materials which may become liens on said building or the ground on which it stands, said party of the first part may refuse to make the payments as hereinbefore agreed until satisfactory evidence has been furnished that said indebtedness has been discharged.”
    The Quay-Dakin Company did not pay for all the materials that went into the heating plant, but owed the American Eadiator Company $2,866.67, the John Davis Company $307.12, and appellees the amount of their respective judgments for such materials. The Eadiator Company and the John Davis Company filed bills for mechanic’s liens, but the Quay-Dakin Company was not served by publication or otherwise, and appellants claim nothing by virtue of such proceedings. The attachment writs were served on appellants April 27, 1901. November 15, 1901, the garnishees paid to the American Eadiator Company $1,400 to apply on its claim against the Quay-Dakin Company, and January 2, 1902, paid to the John Davis Company $300 to apply on its claim against the QuayDakin Company.
    Goodrich, Vincent & Bradley, for appellants; Joseph M. Griffen and David S. Eisendrath, of counsel.
    Eastman & White, for appellees.
   Mr. Justice Baker

delivered the opinion of the court.

In Wilcus v. Kling, 87 Ill. 107, Kling entered into a written contract with Wilcus and Vinsburg to build for them two buildings according to the plans, etc., of Architect Froyer, who was to issue certificates from time to time, reserving twenty per cent, of the contract amount until the final completion of the buildings, when on the exhibition by the contractor of all bills, the architect was to issue a final certificate for the balance of the twenty per cent. The architect never issued a certificate for the twenty per cent. The owners were garnisheed and after the service of the writ paid out two thousand dollars on orders drawn by Kling for materials and labor on the building appropriated before the service of the writ. It was held that the payment of such orders was an admission by the garnishees that they were indebted to Kling at the time the writ was served, and that because of such admission of indebtedness the garnishees were liable although Kling could, not have recovered because no certificate had been issued by the architect.

We think the decision in that case must control the decision in this. Conceding that the Quay-Dakin Company could not, at the date of the service of the writs, have recovered because there then were unpaid claims against that Company for labor and materials appropriated in the performance of its contract with the garnishees, for which mechanic’s liens might have been established, the garnishees, without any lien having’ been established, paid for labor and materials furnished to the Quay-Dakin Company' before the service of the writs, more than the fifteen per cent, of the contract price retained by them under the terms of their contract with the Quay-Dakin Company. This, under the decision in Wilcus v. Kling, supra, was, we think, an admission by the garnishees of indebtedness to the Quay-Dakin Company at the time of the service of the writs.' It was because of their admission of indebtedness that the owners of the building were held liable as -garnishees in Wilcus v. Kling, although the principal defendant, the contractor, could not have maintained an action because of his failure to present an architect’s certificate.

We think that under the rule announced in Wilcus v. Kling the garnishees were properly held liable because of their admission of indebtedness, and the judgment of the Circuit Court is affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    Zenco Electrical Supply Company, Appellee, v. South Shore Electric Company et al., on appeal of H. M. Hooker Company, Appellant.
    Gen. No. 17,122.
    1. Mechanics’ lien—time for filing petition. A subcontractor cannot contend that the date on which final payment was due him was that on which an order was given to the contractor to resume work or the contract would he canceled, and not the date on which -the materials were furnished or thirty days thereafter, where there is no proof that the payment to such subcontractor was dependent on the completion of the contract, but it seems from the evidence that he furnished materials to the contractor for several contracts, that the accounts were not kept separate and that payment was due when the materials were furnished or thirty days thereafter.
    2. Sales—when payment due. Prima facie the payment for goods sold and delivered to a contractor on orders to send them to a certain place becomes due on delivery.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed with directions.
    Opinion filed March 4, 1913,
    Rehearing denied March 17, 1913.
    E. C. Mapledoram, for appellant.
    James Hibben, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of Cook County, entered on July 15, 1910, by which it was decreed that unless the H. M. Hooker Company, the appellant, paid to the complainant, the Zenco Electrical Supply Company, the sum of $495.97, with interest thereon at the rate of five per cent, per annum from the date of the decree to the day of payment, with the taxed costs in the cause, certain premises in Chicago belonging to the said H. M. Hooker Company should be sold to satisfy a lien to which the decree found the Zenco Electrical Supply Company was entitled by virtue of its furnishing as a subcontractor materials to a building on the said premises, under a contract with the South Shore Electric Company. The South Shore Electric Company had a contract with the H. M. Hooker Company to furnish all material and labor necessary to instal a conduit wiring system for the building, and it proceeded to purchase for delivery to the building from the Zenco Electrical Supply Company electrical conduit calls, covers, gang switch boxes and other electrical materials and supplies.

The South Shore Electric Company was on the 12th day of December, 1907, declared a bankrupt. The Zenco Electrical Supply Company filed its claim in that proceeding and was paid dividends amounting to $65.78 on said claim. "

In this appeal there are several points urged as reasons why the decree should be reversed, but there is one which is, in our opinion, conclusive against the right of the complainant to the relief granted by the decree. This renders it unnecessary to consider the others.

The statute under which this suit is brought and which alone gives the right to the subcontractor for materials to a lien,—(“An Act to revise the law in relation to Mechanics Liens, Approved May 18, 1903”) provides (section 33) that the petition shall be filed or suit commenced to enforce the lien given to subcontractors “within four months after the time that the final payment is due the subcontractor * * * furnishing the material.”

The contention of the appellee is that the final payment was not due the subcontractor until December 2, 1907, the date when the Hooker Company notified the contractor to resume work on its contract, or it would be canceled. The master to whom the cause was referred and the court below sustained this contention; but it is a conclusion with which we are unable, on full consideration, to agree. The master disposes of the question as follows:

“The contract of the Zenco Company was dependent upon the contract of the South Shore Company and the time when the four months would begin to run would therefore commence on December 2, 1907. As the bill in this case was filed on March 31, 1908, it was within the statutory time.”

We cannot find in the evidence in this cause any proof that the time of payment or “credit” given the South Shore Company by the Zenco Company for the goods furnished depended on the completion of the contract by the South Shore Company with the Hooker Company, or had any relation to the payment of the Hooker Company to the South Shore Company.

The appellee relies, it would appear, on the testimony of Frantzen, its Secretary and Treasurer, and of Mr. Spensley, the Secretary of the South Shore Company, but we cannot find justification in either for the conclusion reached by the master and the court below.

Frantzen testifies that the Zenco Company had business dealings with the South Shore Company for an extended period, selling them goods; that in relation to the sale of the goods in question which went to the Hooker building, he had a conversation with Spensley; that “the only thing was to send them over to the job;” that “the material was ordered by Spensley and his foreman;” that the bills introduced in evidence “represent a series of orders and conversations; that they were telephone orders; that before deliveries were made the orders were O. Ek’d by him.” He says: “I am cognizant of everything that goes out of our house in the way of goods. Mr. Spensley made arrangements with me by ’phone that if any telephone orders came there I would O. K. them and I O. E.’d the credit.” And again: “When the South Shore wanted material for the Hooker job, Mr. Spensley was either at our office when he had the first conversation, or it was over the ’phone to establish the credit and the passing of whatever orders that would be given either that day or later for that contract, and I told him I would sell the goods to him and deliver them at the job.” Then he says that Mr. Spensley told him that he would call him up or have his foreman do it, to give the specific items to send over, and that the order tickets were then filled out, O. E.’d by him (Frantzen) and the goods shipped. He further testifies that “after the delivery of the goods demands for payment were made by me of Mr. Spensley and he said they did not have the money.” He further testified: “I went to Spensley and told him I wanted a check and he kept putting me off and said they did not have the money and then they dropped into bankruptcy.” Again he says that when he went to Spensley for money he was expecting him, Spensley, to collect money from various other unfinished jobs and pay it over for the material furnished on the Hooker job.

Spensley, referring to electrical material purchased by the South Shore Company from the Zenco Company for various jobs, says he “never understood it as their having two or more separate accounts.”

Nor do we see in Spensley’s cross-examination, as it appears in the record (referred to in the appellee’s argument as unabstracted) anything to show that the Zenco Company’s rights.against the South Shore Company as to time of payment depended on the contract of the latter corporation with the Hooker Company. He merely says: “I gave orders.from time to time over the telephone and confirmed them by written orders afterwards for goods to be delivered to the' Hooker building from the Zenco people.”

The goods in question here, for the price or value of which this lien was decreed, were delivered at the Hooker building on the order of the South Shore Company on October 15, 16, 17 and 22, 1907. Prima facie the payment for goods sold and delivered as these were becomes due on delivery. So far as the record goes, that may have been the case with these goods, and the last payment have become due on October 22, 1907. There is nothing sufficient to overcome this prima facie presumption. It is true that Mr. Frantzen, as pointed out by appellee, spoke of Spensley having a conversation with him to “establish the credit, and that he (Frantzen) ” O. K.’d the credit, but this might mean nothing more than that Frantzen ’s O. K. was necessary to the delivery of the goods without previous payment.

But assuming*, as was very probable, that some time credit was expected and understood to exist, there is no evidence as. to what it was, except evidence which tends strongly to show it could not have been more than 30 days—a very usual time for credit in the sale of merchandise. When, on December 10, 1907, the Zenco Company gave a formal notice to the H. M. Hooker Company and others for the purpose of establishing its lien, it selected November 22, 1907, as the date on which it said there was due to it the sum of four hundred and thirty-eight and 95/100 dollars on account of the goods which the South Shore Electrie Company had employed it to furnish. November 22nd was the thirty-first day after the last delivery was made of the goods in question.

On a certified copy of a statement introduced in evidence, which statement was annexed to a claim of the Zenco Company against the South Shore Company in the bankruptcy proceedings of the latter company, and which included the goods involved in this litigation, there appears as a part of the “Bill head,” —“TEEMS: NET 30 DAYS.” This is, perhaps, not properly to be considered material or competent evidence on the issues in this case; but we note it for illustration of the hypothesis that a “credit” might well exist from the Zenco Company to the South Shore Company, without its being a credit which extended the due date of payment for any goods furnished oh and before October 22, 1907, to a later time than that fixed by the notice—November 22, 1907.

This bill or petition- was not brought until March 31, 1908, more than four months after November 22, 1907.

We feel compelled to reverse this decree and remand the cause to the Circuit Court with directions to dismiss the bill.*

Reversed ivith directions.


text:
    John H. Potter for use of Frederick K. Root, Appellee, v. Sterling Vehicle Company, Appellant.
    Gen. No. 17,071.
    1. Brokers—commissions on sale■ of stock. In an action for commission on the sale of stock of a corporation, where the company has voluntarily accepted from the purchaser of such stock a. note as part payment and afterwards renewed the note and sold the second note for less than its face value without consulting the agent, even though commission was not payable until such stock should be paid for, the company is not in position to treat the returns from the note as anything less than its face value, as far as its obligation to the agent is concerned.
    2. Brokers—commissions on treasury stock sold for less than par. Where a corporation has accepted less than par on a sale of its treasury stock, and a continued liability may therefore exist on the part of the -purchaser for the unpaid balance, an agreement to pay a commission for the sale on such terms is not therefore against public policy, void and unenforceable, as neither the subscription nor the stock is void, and the qdestion is primarily one between the purchaser and the creditors of the corporation and at most between the company and its creditors and stockholders.

      3. Corporations—employment of hroTcer. A contract by an agent of a corporation employing a broker for the sale of stock may be properly found by the jury to have been ratified when the corporation issued its vouchers in payment for a portion of the broker’s services, and letters are written by the corporation by its president and by its attorney admitting the employment but contesting the time for payment.
    Appeal from the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 4, 1913.
    Cassoday, Butler, Lamb & Foster, for appellant.
    Willis E. Thorne and Alvin W. Wise, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of the Municipal Court in a case of the first class. The judgment was for $1,800 and was entered on the verdict of a jury finding the issues in the case in favor of the plaintiff and assessing the damages at that amount.

The ground of the action was a claim which John H. Potter, the nominal plaintiff, had assigned to Frederick K. Boot, the beneficial plaintiff, before the beginning of the suit.

This claim was for compensation under a special contract made by the defendant, the Sterling Vehicle Company, with the plaintiff, John H. Potter, to pay him twenty per cent, of the amount which he should realize on sales of the capital stock of the defendant company. Said sales were to be made for said company and were of its treasury stock, so-called. The plaintiff alleges that he sold twelve hundred shares of said stock, the par value of which was $12,000, and that the Company issued said stock to the vendee, one Pierce, and received therefor $10,000—$1,000 in cash and $9,000 in a promissory note, which the company afterward sold to one Wilkinson, a vice-president and director of the company, Potter was paid by the Company $200 on account of Ms commissions in two checks for $100 each on April 15, 1909, and April 27, 1909, but payment of the remainder of the $2,000 claimed by Mm was refused by the Company, in consequence of which refusal he brought suit with the result before indicated.

It is assigned for error and argued by appellant in tMs court, that the verdict is agamst the weight of the evidence, and two propositions are chiefly urged and insisted on as furnishing ground for this assertion:

First, that the alleged contract with Potter was made for the corporation by an agent who had no authority to make it, and whose want of authority the plaintiff had notice of or was bound at least on his peril to ascertain; and Second, that the contract for the sale by the Company of its own stock of the par value of twelve thousand dollars for ten thousand dollars, was a contract against public policy and void, and that therefore the plaintiff could not recover commissions on the sale as claimed.

Our discussion of the judgment attacked is simplified by the admission of the defendant in argument, that “there is no doubt but that Mr. Potter, appellee, earned the amount here in suit, and that he should receive the same.” It is added, however, that he should receive it, not from the defendant company, but from one McCord, who, when the first conversation between him and the plaintiff concerning sale of stock of the defendant occurred, was the general manager of the company, but at the time the alleged contract for commissions on sales of stock was entered into, was the general sales agent of the Company.

The appellee disclaims the position imputed to Mm by the appellant that McCord, either as general manager or general sales agent of the corporation, had implied power to sell its shares of stock or make the alleged contract of employment with the appellee, but-asserts that the evidence shows not an implied but an express authority to McCord to make the contract in question, and that said contract was in fact “authorized, assumed and ratified” by the defendant company.

We think the evidence on which the jury evidently acted certainly did tend strongly to support this proposition. It was a question of fact for the jury whether this authorization and ratification existed, and we think they were justified in finding that they did. McCord’s testimony indeed was to the effect that he treated with Mr. Potter personally and not in behalf of the Company at all, hut Mr. Potter contradicts this and is corroborated by the documentary evidence, first, of the direct vouchers to Potter from the Company for $200, on account of these commissions, vouchers approved by Seward, the treasurer; second, of á letter signed by the Company by the hand of its president, to Mr. Potter, after the sale was made, saying to him: “It was definitely understood that you were not to receive payment for your commissions until all of the money was paid into the treasury on any subscriptions taken by you, ’ ’ and that this statement was verified by Mr. McCord, “who made this arrangement with you,” and by Mr. J. A. Brown, one of our directors, who was present; and, third, of a letter from the lawyers for the Company, expressly admitting the liability of the Company to Potter for commissions “as soon as the purchase price of the stock is paid.” “We understand,” the letter proceeds, “that $9,000 is still owing on account of the purchase price, but is not yet due. The agreement with Mr. Potter was that his commissions should not be paid until the purchase price was paid.” This letter was dated June 18, 1909. On that date Mr. Pierce had paid to the Company $1,000 in cash on account for his stock, and owed, under a written agreement of subscription, $9,000 more. For this on July 21,1909, at which date stock was issued to him, he gave a four months’ note to the Company, which was renewed by a note for the same amount, due in three months, dated November 22, 1909. This last note was sold by the Company to Wilkinson, its vice-president and a director, on December 6, 1909. This suit was brought December 15, 1909. We think the jury were justified in holding the contract of employment and for compensation, if not made, at least fully assumed and ratified, by the Company.

In the transaction of December 6, 1909, between the Company and Wilkinson, $7,200 only was covered into the treasury of the Company, and this, with $1,000 previously received in cash from Pierce, made the Company’s receipt from the stock in question but $8,200, twenty per cent, of which would be $1,640. As Potter had already received $200 when this suit was brought, the appellant contends that if anything was due from the Company to him at that time, it could at the best be but $1,440, instead of $1,800, the amount of the judgment which he obtained. We do not think this follows. The indebtedness of $9,000 was due to the Company. It voluntarily took a four months’ note from Potter for it on July 22nd (at which time Pierce swears he was solvent), renewed that note for three months longer, and sold the second note—all without consulting Potter. We think that it is not in a position to treat the returns from the note as anything less than its face, so far as its obligation to Potter is concerned. But beyond this, it appears that McCord negotiated the sale of the note for the Company, and the implication of other evidence is that McCord claims the difference between the $9,000 and $7,200 as a commission for himself, and that it is held “as a credit” somewhere to await a final adjustment of all claims against the Company on account of the sale of this Pierce stock. But however that may be, it is not the affair of Potter if his claim is otherwise valid.

The contention of the appellant is untenable, that because of the inva Mity as against creditors of the Sterling Vehicle Company, of the sale of its treasury stock at less than par, and the continued liability which might therefore exist on the purchaser or • subscriber for treasury stock in this case, for the $2,000 necessary to make the 1,200 shares full paid—an agreement of the Company to pay a commission for the sale of treasury stock on such terms is void and unenforceable. Neither the subscription nor the' stock is void, still less an agreement between the Company and its selling agent. The question primarily is between the purchaser and the corporation’s creditors, and at most between the Company and its creditors and stockholders. This is abundantly settled by decisions in Illinois. Union Mut. Life Ins. Co. v. Frear Stone Mfg. Co., 97 Ill. 537; Bouton v. Dement, 123 Ill. 142; Higgins v. Lansingh, 154 Ill. 301; Parmelee v. Price, 208 Ill. 544; Ross v. Sayler, 104 Ill. App. 19.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    John F. Devine, Administrator, Appellee, v. Elliott W. Sproul, Appellant.
    Gen. No. 16,976.
    1. Master and servant—safe place to worlc. Plaintiff was wheeling sand over a single plank runway and dumping it into pits in a roundhouse in course of construction. As the planks were moved from one pit to another, they were nailed to crosspieces, this work being done by another employee. Another laborer, whose barrow had slipped off the runway, in jerking it back, displaced a plank which had not been nailed, causing the plank on which plaintiff was standing, which was also unnailed, to swing around, whereby plaintiff’s barrow fell into the pit, dragging him after it. Held proper to leave to the jury the question whether the defendant contractor, in leaving such plank over the pit unfastened at the ends, used reasonable care to furnish plaintiff a safe place to work, and the question whether, if he did not, the danger was so obvious to plaintiff that he must he said to have assumed the risk.
    2. Master and servant—duty of master to ascertain, of servant to observe danger. A servant must take notice of obvious material conditions and of obvious danger, but he is not obliged to look for these, while the master must ascertain material conditions and danger which can be found by the exercise of reasonable diligence, the master having a duty of inspection as well as of observation, while the obligation of the servant is that of observation only.
    3. Master and servant—safe place to work. The duty of using ordinary or reasonable care to furnish a reasonably safe place for his servants to work in and reasonably safe appliances to work with is a positive and primary duty, for default in which the master is liable, whether he undertakes its performance personally or through another.
    4. Master and servant—simplicity of appliance. While it is true that the simpler an appliance or the condition of a working place, the more probable it is that danger in it, if it exists, will be obvious, such simplicity, however, does not conclusively prove the obviousness under ail circumstances.
    5. Master and servant—concurrent negligence of fellow-servant no defense. Where the jury find that it was necessary to the happening of an accident that negligence of the master and that of a fellow-servant of plaintiff should have concurrently existed, such concurrent negligence of a third person, without which, notwithstanding the negligence of the master, the plaintiff would not have been injured, is no defense.
    6. Instructions—several on same proposition. When a party asks more than one instruction stating in varying language the same proposition, his complaint that the court refused the one deemed by him most favorable to his cause and gave the other does not deserve extended notice.
    7. Master and servant—evidence. Where plaintiff was injured through the slipping of an unnailed plank in a runway, evidence that he saw other planks nailed is admissible.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 4, 1913.
    F. J. Canty and J. C. M. Clow, for appellant; B. J. Folonie, of counsel.
    James C. McShane, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

The appellee in this case recovered a judgment March 28, 1910, in the Superior Court of Cook county against the appellant, Elliott W. Sproul, which the latter in this appeal seeks to reverse. The appellee Golden died pending this appeal and his administrator has been substituted as appellee. The judgment was rendered on the verdict of a jury in a personal injury case.

Golden was a laborer employed by Sproul, a contractor. Sproul was building under contract a railroad roundhouse. The roundhouse at the time of the accident was not completed. The roof was not on and the walls were not yet entirely finished. In the roundhouse were twelve or thirteen pits, each about 50 feet long, 4 feet wide and 3 or 4 feet deep, so constructed that when finished a locomotive might be run over it, and inspected and repaired by workmen below. These pits were partially finished. The walls were in and in the pit where the accident occurred some spikes were inserted in them. The concrete floor with which it and the others was to be provided had not been built.

The plaintiff Golden and one Casey, his companion in the work, were wheeling sand to be used in the concrete over a single plank runway and dumping it into the various pits. The runway ran from a sand pile south of the roundhouse to the pit to which sand was for the time being carried. The distance was about a hundred and fifty feet. The runway ran north from the sand pile and then in each case apparently when near or opposite to the pit turned sharply to the pit. At all events it did so in the case of the pit that Casey and the plaintiff were working at when the accident occurred. During the day sufficient sand had been carried to three or four of the pits and they were working at another. As the work was completed at each pit a portion of the runway was removed and replaced to make the proper passage to the next one which was to have attention. Just how much was thus' relocated does not appear, but certainly the portion which ran east and west must have been so changed. This runway was made of planks twelve inches wide and of varying lengths. Counsel for the appellant in their argument say “the most of them were from twelve to fourteen feet long.” There was some little variance in the testimony regarding this, but it is immaterial. At the end and middle of each plank was a cross piece and the cross pieces were some six, some eight and some ten inches wide. Two planks met in the middle of the cross piece. From the north and south runway at the place of this accident, there was an east and west continuation of it which ran five feet over the ground and then over the center of the pit lengthwise of it. The cross pieces over the pit extended from one side of the width of it over to the other.

According to the testimony of the plaintiff, introduced without objection on the part of defendant and indeed a part of which was upon cross-examination by defendant’s counsel, a man for the purpose of laying the runway ahead when the pit worked it was changed, pulléd up a part of the runway as it had been used, laid it to the new pit and “nailed it with a hammer.” On cross-examination the plaintiff said, “A man there,nailed and looked after that business.” Further testimony that was offered by plaintiff’s counsel respecting the nailing of the planks other than that concerned in this accident was objected to by the defendant’s counsel and excluded. We think counsel is mistaken in stating in its argument here that “over defendant’s objection plaintiff was allowed to show that the ends of the other plans were nailed to the cross pieces.” But this is immaterial, for in the view we take of this case we think that it was competent, proper and relevant evidence as bearing on the most material question in the case—whether the plaintiff must have so clearly and obviously have known of the danger and risk he was running in working in an unsafe place. If there was error, it was not in admitting the evidence of this nailing of the boards of the runway generally, but in excluding it.

For the pit where the accident happened, Casey and the plaintiff had been going along this board runway with barrows full of sand and coming back to the sand pile with the empty barrows. It was not wide enough to permit two persons to pass on it'. The men worked together, one wheeling his barrow of sand directly after the other north along the runway until they came to the sharp turn to the west, then running over the east and west part of the runway to the part of the pit they were filling. The man who was behind the other in going to the pit preceded him on the return. At the point of turning the narrowness of the way sometimes made the barrow slip off the boards. On the trip when the accident in question here occurred, the plaintiff had preceded Casey onto the pit runway. The plaintiff had dumped his barrow at about the middle of the pit; Casey had dumped his just east of the plaintiff and both proceeded back toward the long runway. Casey was walking west pulling his barrow behind him, while plaintiff was pushing his barrow ahead of him." In making the turn to the long runway Casey’s barrow ran off to the ground. He was then turning south and in jerking the barrow to get it back on the plank it moved the east end of the east plank of the east and west runway about two feet to the south. This particular plank was not nailed to the cross pieces at either end." Therefore when Casey’s action jerked the east end of the plank to the south, the west end, which rested on a cross, piece running across the pit, was swung around to the north. This occurred just as plaintiff’s barrow was going on it. The heavy barrow fell into the pit, dragging the plaintiff after it. He cut his head and face on the spikes sticking out of the wall of the pit and fractured or dislocated a bone in his shoulder.

Golden sued his employer, Sproul. - The gist of his declaration, to which the defendant pleaded the general issue, was a charge of failure on the part of the defendant to use proper care to furnish the plaintiff a safe place to work, the allegation in that regard specifically being that the defendant constructed the runway in question and the plaintiff and others were required by the defendant to run wheelbarrows over it, and that regardless of his duty to use due care to construct and maintain the runwiay in a reasonably safe, secure and proper condition, the defendant constructed and maintained it in an unsafe condition, in that the boards were unfastened and insecure, in consequence of which the plaintiff was injured.

The appellant contends that the declaration states no cause of action, and that á motion in arrest which was made should have been granted, and by his argument and his assignments of error maintains also that the case should have been taken from the jury by a peremptory instruction, and that the verdict is against the weight of the evidence.

We are unable to concur in these conclusions. The duty of using ordinary or reasonable care to furnish a reasonably safe place for his servants to work in and reasonably safe appliances to work with is a positive and primary duty, for default in which the master is liable, whether he undertakes its performance personally or through another. Himrod Coal Co. v. Clark, 197 Ill. 514, and cases there cited.

Whether the conditions and appliances are simple or the reverse, the doctrine, well stated in Illinois Steel Co. v. Mann, 100 Ill. App. 367, which but. expresses the effect of many decisions of the Supreme Court, is true:

“A servant must take notice of obvious material conditions and of obvious danger, but he is not obliged to look for these; while the master must ascertain material conditions and danger which can be found by the exercise of reasonable diligence. * * * In other words, the master has a duty of inspection as well as of observation; the obligation of the servant is that of observation only.”

Applying these propositions to the facts of the case at bar, it seems to us that it was proper to leave to the jury the question whether the defendant did or not, in leaving the plank over the pit unfastened at the ends, use reasonable care to furnish the defendant a reasonably safe place to work, and the question whether, if he did not, the danger was so obvious to the plaintiff that he must be said to have assumed the risk.

On this question, we think material and competent . the evidence that the plaintiff saw other planks on the runway nailed to the cross pieces and had a right to suppose that one placed in an especially dangerous position, to wheel a barrow over, was also nailed. It is doubtless true that the simpler the appliance or the condition of the working place, the more probable it is that danger in it, if it exists, will be obvious; but it does not follow, by any means, that the simplicity proves conclusively the obviousness under all circumstances.

We do not think that the declaration failed to state a cause of action, or that the case should have been taken from the jury or that the verdict was against the evidence.

Further, of course, there was the question for the jury whether, even if they believed the defendant negligent and that the plaintiff did not assume the risk of the danger that the negligence produced, that negligence, with its resultant danger, was the proximate cause of the accident. With this is connected the “fellow servant defense” contended for by defendant. He maintains that the condition of the runway was not the cause of the fall, but the action of .Casey in jerking his barrow to get it back on the plank. Casey and the plaintiff were clearly fellow servants, but the jury had properly before them not only the question whether Casey’s action were negligent, but also whether if it were, it was the sole proximate cause of the accident, or whether it was necessary to the happening of the accident that negligence in furnishing the runway in its actual condition for the men to walk on, should have concurrently existed. If they found the last proposition to be true, they were justified in finding the defendant guilty, even though they found Casey guilty of concurrent negligence, for the “concurrent negligence” of a third person, without which, notwithstanding the negligence of the defendant, the plaintiff would not have been injured, is no defense. Pullman Palace Car Co. v. Laack, 143 Ill. 242; Wabash, St. L. & P. R. Co. v. Shacklet, 105 Ill. 364; Siegel Cooper & Co. v. Trcka, 218 Ill. 565.

We do not think under the evidence that the jury could be said to be clearly wrong in their finding against the defendant, whether or not they found Casey’s act negligent. That act itself was a'natural action that might have been expected to happen. We do not think that the evidence even tended to show that had the plank been nailed to the crosspieces, Casey’s jerking the wheelbarrow back to it would have caused the accident.

This consideration alone would justify the refusal of instruction numbered nineteen, which refusal is complained of by the defendant. The instruction reads:

“The jury are instructed that for the acts or omissions of John Casey, the defendant is not liable to the plaintiff, and if you believe from the evidence that the acts of John Casey were the sole proximate cause of the injury to the plaintiff, then you must find the defendant not guilty.”

We think that applied to the evidence in this record, this instruction would have been misleading.

But another sufficient reason for its refusal is that all that was essential in it was presented to the jury by instructions 8, 9 and 12, given to the jury at the request of defendant. In them they were told what constituted a fellow-servant, and that for an accident caused solely from the act of a fellow-servant, the plaintiff could not recover against the defendant, and that the unnailed condition of the board did not render the defendant liable unless the jury found that such condition was the result of negligence on the part of defendant and that an ordinarily prudent and careful person in the position of the defendant would have anticipated such an accident might probably happen from it.

As the Supreme Court says in Railway Company v. Link, 229 Ill. 190, “When a party asks more than one instruction stating in varying language the same proposition, his complaint that the court refused the one which the party deemed most favorable to his cause, and gave the other, does not deserve extended notice.” “

Refused instruction 20 is not a correct statement of the law. It needs no discussion.

The jury were, in our opinion, instructed at the request of the defendant quite as favorably as, if not more favorably than, was justifiable.

The damages under the evidence we do not hold to be excessive, and the judgment of the Superior Court is affirmed.

'Affirmed.