text:
    Mark Summers, Defendant in Error, v. Charles J. L. Kressmann, Plaintiff in Error.
    Gen. No. 14,852.
    1. Corporations—who liable under section 18 of act. One who may not have participated in the making of the original contract but who has participated in the transaction involved in such contract out of which the liability accrued, is liable under section 18 of the Corporation Act.
    2. Corporations'—who liable under section 18 of act. A partnership existing between those pretending to be officers or agents of a pretended stock company, is not essential to the fastening of liability.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frank E. Reed, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed January 24, 1910.
    Theodore Proulx, for plaintiff in error; Philip R. Fraser, of counsel.
    Daniel S. Wentworth and A. B. Hulbeet, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

Plaintiff recovered a judgment in the Municipal Court against the defendant for $150, claimed to be due for services rendered in auditing the books of the defendant, alleged, to have been doing business under the name of Economy Water Tube and Tile Company. There is no controversy as to the amount of the claim, but the" defendant Kressmann denies that he had any interest in the business of the Economy Water Tube and Tile Company, and asserts that he is not liable for its debts. It is admitted on both sides that the Economy Company was not incorporated, although there are intimations that some steps were taken to that end. The plaintiff was engaged to audit the accounts by one Warwick, said to have been interested as "a partner in the business of the Economy Company with defendant Kressmann. In the course of the audit a majority of the checks examined were found to have been signed by defendant Kressmann as treasurer of the Economy Company. It is admitted by Kressmann that he signed the checks “Economy Water Tube & Tile Company per Charles J. Kressmann, Treasurer,” and these checks were apparently drawn and used in the ordinary conduct of the business. There is evidence, not disputed, that the plaintiff was paid for part of the services in controversy by a check signed “The Economy Water Tube and Tile Company, Charles J. L. Kressmann, Treasurer,” and that this check came to plaintiff directly from defendant Kressmann.

It is claimed in behalf of the plaintiff that the judgment is supported by the evidence tending to show that the defendant Kressmann and one John F. Warwick were doing business using the name of a pretended corporation, without complying with the provisions of section 18 of the general incorporation Act, and are therefore liable jointly and severally for all debts and liabilities made by them and contracted in the name of such pretended corporation. On the other hand it is urged in behalf of the defendant that it does not appear defendant Kressmann took part in the creation of the indebtedness by any affirmative voluntary action on his part, or that he approved of it. While it appears the plaintiff was employed to do the work by Warwick and not directly by Kressmann, there is evidence tending to show that the latter was fully cognizant of what was being done, that the auditors sought and obtained of him from time to time during the progress of the auditing such information as was needed relating to the affairs of the company. There was therefore participation on his part in “the creation of the debt or liability, or at least some participation in the particular transaction out of which the indebtedness arose.” Edwards v. Dettenmaer, 88 Ill. App. 366, cited by defendant’s counsel. To ignore this evidence of participation in the business and arbitrarily limit liability to the actual creator of the debt alone, would be to take a very narrow view of the meaning and intent of the statute. See Seymour v. Richardson, 103 Ill. App. 625-629-30.

It is we think imm aterial whether an actual partnership is proved to have existed or not between Warwick and defendant Kressmann. If Kressmann was in the language of said section 18 of the statute “pretending to be an officer or agent” of a “pretended stock corporation,” or was using “the name of any such corporation or pretended corporation” which had not complied with the provisions of the Act, as there is evidence tending to show he was, then the statutory liability was incurred.

The judgment of the Municipal Court must therefore be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Freeman

license: Public Domain

text:
    The Walker-Edmund Company, Defendant in Error, v. Frank’s Collateral Loan Bank, Plaintiff in Error.
    Gen. No. 14,861.

      Replevin—when judgment not disturbed. Where the evidence tends to establish the issues found, a verdict and judgment in replevin will not he set aside on review.
    Replevin. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed January 24, 1910.
    Jetzinger & Seligman, for plaintiff in error.
    Parker & Hagan, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an action in replevin brought by defendant in error to recover two alleged Tiffany set diamond rings and one tooth diamond ring. The Municipal Court found the defendant guilty of unlawfully detaining the property described in the writ, that the property therein described is the property of the plaintiff, and assessed the plaintiff’s damages at the sum of $565. To reverse this judgment, this writ of error is prosecuted.

The rings in question had been delivered by plaintiff on memorandum receipt, so-called, to one Schraeger, a salesman, who failed to account for them. At a subsequent time he was arrested at Minneapolis, Minnesota, and upon his person were found certain pawn tickets, issued by the defendant company, describing three diamond rings. Plaintiff demanded of the defendant the rings mentioned in said pawn tickets, claiming them as its property pawned by Schraeger. Defendant refused to surrender the rings for which it had issued the said pawn tickets or to exhibit them or any of them to plaintiff’s agent for identification. The property was not recovered upon the replevin writ, and the only question upon the trial was as to its identity.

It is claimed in behalf of the defendant that plaintiff failed to prove the identity of the rings sought to be replevied or that they were plaintiff’s property or that the latter was entitled to their possession. It is contended that the trial court erred in allowing an officer who accompanied plaintiff’s agent and attorney at the time demand was made for the rings in question, to testify as to his conversation with the defendant’s agents at that time. The officer stated that he told defendant’s agents that the pawn tickets so issued by defendant and then produced were found on the person of Schraeger, and that the latter had stated to him and plaintiff’s agent that the rings described in said pawn tickets were rings which Schraeger had obtained from the plaintiff and had, under the name of Mason, pawned with defendant. While this testimony was not competent evidence that the rings mentioned in the pawn. tickets were plaintiff’s property, it was competent as evidence of what was said in a conversation with defendant’s agent at the time plaintiff was endeavoring to obtain the pawned goods, and was seeking an opportunity to examine them for identification. There was however evidence tending to identify the diamond rings referred to in the pawn tickets and more particularly described in record sheets of the defendant company introduced in evidence, tending to show that these were the diamond rings which the plaintiff had entrusted to Schraeger and was seeking to recover. The plaintiff’s agent who had delivered the rings to Schraeger, testified that he could identify the diamonds in controversy by marks on them, and described these marks with particularity of detail. What purported to have been the rings pawned were also described by one True, an expert witness who had examined them at the instance of the defendant and who gave testimony as to their value. While there were some slight discrepancies in the descriptions of these two witnesses, they appear nevertheless to correspond in the main.

There was still other evidence. The plaintiff’s agent in his testimony stated that the rings Schraeger had obtained from plaintiff bore certain numbers and stated what these numbers were. The witness True who, as before stated, had at the instance of the defendant examined the rings pawned with defendant, as shown by the pawn tickets found on Schraeger, stated that those rings also had each a number. If in fact the numbers on the latter rings corresponded with those which had been stated by plaintiff’s agent to be the numbers on the rings obtained from plaintiff by Schraeger, such evidence in connection with the other evidence would have tended strongly to confirm plaintiff’s contention that the rings in defendant’s possession were plaintiff’s property. If on the other hand the numbers on those rings differed from the numbers given by plaintiff’s witness, the evidence would have tended to confirm the defendant in claiming that the rings in its possession were not the property of the plaintiff. It was in defendant’s power to produce this evidence. The failure to so produce the rings in defendant’s possession, while not conclusive as to their identity nevertheless justifies an inference that if produced the numbers on them would have proved to be identical with the numbers stated by plaintiff’s witness to have been the numbers upon plaintiff’s rings, and that it was because defendant knew this it refused to produce the rings pawned. This inference is strengthened by the evidence tending to show that defendant’s manager in conversation with plaintiff’s agent justified the refusal to produce the rings and turn them over to plaintiff, saying “We cannot afford to lose that money. You see the position we are placed in.” This testimony is not so far as we discover contradicted.

It is contended in plaintiff’s behalf, that we ought not to consider the merits of the controversy, because the trial court after the thirty days had passed within which, under the Municipal Court Act, a writ of error must be sued out after entry of its original judgment and after that court had lost jurisdiction of the cause, granted defendant’s petition to set aside the judgment, retried the cause perfunctorily and again entered judgment in plaintiff’s favor for the express purpose of permitting defendant to sue out this writ of error after the expiration of the time allowed by law after the original judgment was entered. That petition was filed under section 21 of the Municipal Court Act. We deem it unnecessary however to consider this alleged error in procedure, inasmuch as we are of opinion the evidence justified the judgment complained of. It will therefore be affirmed.

Affirmed.


text:
    Nellie Maginnis, Appellant, v. David W. Storrs et al., Appellees.
    Gen. No. 14,869.
    Cbeditob’s bills—%oio fraud in conveyance must be established. Fraud must be proven by a preponderance of the evidence and the burden of proof is on the party alleging it; it is not to be inferred from mere suspicion, and mere inadequacy of consideration will not raise a presumption of fraud.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Oscab E. Heabd, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed January 24, 1910.
    Rehearing denied February 3, 1910.
    Statement Tby the Court. Appellant filed her hill in the Circuit Court seeking to set aside conveyances of real estate made on or about June 24, 1901, by appellee, James J. Harrington, to David W. Storrs and to subject said property to the lien of a judgment against Harrington.
    It appears from the bill of complaint that upon October 12, 1898, said Harrington was indebted to complainant in the sum of $8,000, evidenced by his promissory note of that date due and payable by its terms October 24, 1903, with interest payable semiannually ; that the note provided in case of default in payment of interest, that the whole amount of the note should at the election of the holder be at once due and payable; that default occurred in payment of interest due October 24,1901, whereupon complainant declared the whole sum due and payable, and on February 13, 1902, obtained a judgment on the note for $8,403.20 and costs against said Harrington; that execution issued on the judgment and was returned unsatisfied. It is alleged that at the time of execution and delivery of said note Harrington owned certain described real estate, which for convenience is designated by complainant’s counsel by the names of certain streets on which it is located, as the “Illinois property,” “Lafayette property,” “Aberdeen property” and “Oakenwald property.” On June 24, 1901, Harrington conveyed these properties by quitclaim deeds to appellee, David W. Storrs. It is averred that these deeds were made and delivered without any valuable consideration, with intent on the part of the grantor and grantee to defraud complainant and other creditors of Harrington and to cover up and conceal the interest of Harrington in said real estate from Zetta B. Harrington, his wife, with whom he was then engaged in divorce litigation; that said real estate was not sold by Harrington to Storrs, and that the latter has paid nothing therefor to Harrington.
    There are further averments to the effect that Storrs has received from Harrington large sums of money and large amounts of personal property since the making and delivery of said note; that he holds the same in trust for Harrington, and that the latter has notes and mortgages or other securities which he keeps concealed.
    The prayer of the bill is that Harrington be decreed to pay the amount due under the complainant’s judgment against him and to apply for that purpose any money, property or choses in action belonging to him; that all rights and interests of defendants in said real estate be subjected to complainant’s right to have said real estate sold and the proceeds of sale applied in payment of complainant’s judgment.
    The sworn answers of the defendants deny that the conveyances to Storrs were made without consideration or with intent to defraud or hinder or delay complainant and other creditors, and aver that Storrs bought in good faith all of said real estate for a valuable consideration, to wit: $8,000 in hand paid by Storrs to Harrington and without any notice of complainant’s claim thereon or thereto; that said purchase by Storrs was subject to certain mortgage indebtedness on the property, to tax liens and to the inchoate right of dower of Harrington’s wife; that Storrs has purchased from the latter her inchoate right of dower for a valuable consideration and obtained from her a quitclaim deed and release of dower; and that Storrs assumed certain mortgage indebtedness on the property. Harrington denies having notes due him or having money, mortgages or other securities which he keeps concealed or which is held by any one for him. A separate answer was filed by Storrs, denying all material averments of the bill and asserting the purchase in good faith by him of the real estate in question for a valuable consideration.
    The judgment upon which complainant’s bill is based appears to have been obtained by confession upon a judgment note executed by defendant Harrington, which was not due at the time of the transfers now complained of. This note was secured upon the “Oakenwald property” so-called, which was subsequently sold on foreclosure to satisfy the debt in controversy, and was bought in by complainant. It is claimed by defendants’ counsel that the evidence shows the debt in question has been fully paid and satisfied out of the security. But whether so or not is immaterial to the issues raised by the bill and answers, and that question is not before us.
    The Circuit Court upon hearing dismissed the bill for want of equity. From that decree complainant prosecutes this appeal.
    J. M. H. Burgett, for appellant.
    Iles & Martin, for appellees.
   Mr. Justice Freeman

delivered the opinion of the court.

It is claimed in behalf of complainant that the evidence shows the defendant Storrs owed Harrington at the time of service of summons on Storrs the sum of $5,226.28, and that complainant was in any event entitled under her bill to a decree against Storrs for that amount. It appears from the evidence that Storrs gave Harrington in payment of the consideration for the transfer, at the time the purchase of the real estate was concluded and the deeds therefor executed and delivered, his promissory note for $10,000, upon which at the time the bill was filed and summons served, Storrs had paid only $5,117.10, in nine separate payments. The balance of said note appears to have been since paid. If the bill was in fact a creditor’s bill with sufficient averments, the complainant’s contention might have some basis. But it is not such a bill in any proper sense. It is a bill in which complainant seeks to set .aside the conveyance of the real estate in question by Harrington to Storrs upon the alleged ground that such sale and conveyance was not an actual bona fide sale, but was without consideration and fraudulent. It is true the bill avers that since the delivery of ‘‘ said note, ’ ’ Storrs has received from Harrington large sums of money, and large amounts of personal property, which he holds in trust for Harrington, and contains an interrogatory as to whether there is not in the possession of Harrington “or some other person some right or credits belonging to said” Harrington. But complainant does not by her bill seek to restrain payment by Storrs or any one else of any indebtedness to Harrington, and alleges no fraud except in the transfer of the real estate. She prays for a decree against Harrington to the effect that he be required to pay the complainant the amount due upon her judgment and that he apply for that purpose money and other property of his own. Under this bill purporting only to set aside the conveyances of the real estate by Harrington to Storrs, the latter was in no way advised that complainant sought to require him to retain in his own hands for complainant’s benefit money due from him in any capacity to Harrington. No relief of that kind is by the terms of the bill apparently contemplated. So far as appears by the bill complainant was satisfied to rely upon setting aside the alleged fraudulent conveyance of real estate. No facts are set up which justify any other claim under the prayer for general relief. While there is a prayer for a receiver, no effort was made to have one appointed.

Complainant urges however that the evidence warrants a finding sustaining the averments of the bill as to the fraudulent nature of the conveyances; that the fraud is shown by the fact that Harrington is a brother-in-law of Storrs, that the conveyances to the latter included all of Harrington’s real estate, that a false reason for the alleged sale was given, that Harrington was led to make the sale in order to prevent Ms divorced wife from gaining anything by her decree against him, that the negotiations were hastily concluded before entry of the decree in the divorce suit, that the consideration was inadequate, that at the time of the conveyance Harrington was heavily in debt as Storrs knew, and that by the conveyance Harrmgton was left without property to be appropriated by his creditors; that Storrs did not assume payment of the encumbrances on the property conveyed, that Storrs himself was then heavily in debt, yet Harrington took his unsecured note for $10,000 in payment, and by other matters relating to the transaction not necessary now to be set forth in detail.

As to the evidence tending to show that Harrington was moved primarily to dispose of his said real estate by discouragement in view of Ms difficulty with his wife or by a desire to prevent his wife, who was then suing for a divorce, from gettmg any of the real estate, it is sufficient to say that she is not complainmg of the transfers. It appears moreover that her claims were subsequently satisfied by conveyance to her of Harrington’s equity in the “Oakenwald property” and payment of $1,000 additional for release of her dower rights in the other lands; and there is evidence to the effect that in consideration of the conveyance of the equity of Harrington in said Oakenwald property to the wife, Harrington credited $2,000 on Storrs’ note for $10,000. It appears that complainant’s note was not dne at the time the conveyances were made and there had been no default on it.

The question remains whether acts of the defendants as shown by the evidence tend to support complainant’s contention that the conveyances in question were in fact fraudulent. Fraud must be proven by a preponderance of evidence, and the burden of proof is on the party alleging it. American Hoist & Derrick Co. v. Hall, 208 Ill. 601. It is not to be inferred from mere suspicion. Pratt v. Pratt, 96 Ill. 184-199. “If the transaction be an honest one made in good faith and for an adequate consideration," a debtor may, as complainant’s counsel concedes, sell his property to whom he pleases. Citing Holbrook v. Bank, 10 Ill. App. 140-143; Miller v. Kirby, 74 Ill. 242-246; Waddams v. Humphrey, 22 Ill. 661-663; Hessing v. McCloskey, 37 Ill. 341-342. There is evidence that the property in question was all heavily encumbered, the encumbrances amounting, according to complainant’s counsel, to about $27,000, and the property was subject to unpaid! taxes and to the inchoate dower right of the wife. There is difference of opinion among witnesses as to the value of the property at the time of the transfer, but we are of opinion the evidence falls far short of justifying the contention that the consideration paid by Storrs was, under the circumstances, so inadequate as to warrant the court in finding the transfer lacking in honesty and good faith. We do not concur in the contention of complainant’s counsel that the answer of defendant Storrs does not set up the defense that the purchase was made in good faith for an adequate consideration.

Counsel have discussed the questions involved at great length. We cannot within limits appropriate follow in detail such discussion. It must suffice to say that we are of opinion from a full examination that the complainant has failed to sustain by evidence material averments of her bill. As said in American Hoist and Derrick Co. v. Hall, supra: “All transactions are presumed to be fair and honest until the contrary is proven. Appellant having alleged fraud, the burden was upon it to prove that allegation by a preponderance of evidence.”

For reasons indicated the decree of the Circuit Court1 will be affirmed.

Affirmed.


text:
    The People, for use of Herman Von Bergen, Administrator, Defendant in Error, v. Fred Groszglas et al., Plaintiffs in Error.
    Gen. No. 14,884.
    1. Pasties—effect of action by one party for the use of another. The defendant in an action upon an appeal bond cannot complain of the fact that it is brought in the name of The People for the use of the beneficial plaintiff.
    2. Pasties—when action properly brought for the use of an administrator. An action upon an appeal bond is properly brought in the name of an administrator for the deceased party for whose benefit such bond was given.
    3. Bonds—what establishes prima facie case upon bond, given on appeal from order refusing to discharge from arrest upon capias. The affirmance of a judgment together with proof of the judgment remanding into custody, with evidence tending to show non-surrender, makes out a prima facie case in an action upon such an appeal bond.
    4. Bonds—when statute pertaining to bail bonds does not apply. The statute as to suits on bail bonds in civil actions is not applicable to an action upon an appeal bond given for the purpose of reviewing a judgment remanding into custody for arrest upon a capias.

    Action of debt. Error to the Municipal Court of Chicago; the Hon. John IT. Hume, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed January 24, 1910.
    John A. McKeown and Joseph A. Weber, for plaintiffs in error.

      J. H. Perkinson, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

This is a suit upon an appeal bond. In December, 1900, Barbara Yon Bergen, since deceased, recovered in the Superior Court of Cook county a judgment for $1,250 against plaintiff in error Lora Groszglas in an action in tort for assault and battery. Subsequently the said defendant judgment debtor in that action was arrested on a writ of capias ad satisfaciendum and held in custody of the sheriff in the county jail. Thereupon she filed a petition in the County Court for leave to schedule, seeking to be discharged from arrest under the insolvent debtor act. Upon hearing of the petition it was denied and the petitioner remanded to the custody of the sheriff. From that remanding order of the County Court petitioner prayed an appeal to the Circuit Court, which was granted upon her filing an appeal bond in the sum of $1,000. The bond was executed by petitioner and by Fred Groszglas as surety.

The Circuit Court having dismissed the appeal for want of jurisdiction, further appeals were prosecuted to the Appellate and then to the Supreme courts. Groszglas v. Von Bergen, 121 Ill. App. 212; idem 220 Ill. 340. Those courts having successively affirmed the judgment of the Circuit Court, suit has now been brought by the administrator of Barbara Yon Bergen, deceased, upon the appeal bond filed in the County Court by defendants to perfect the appeal of the original judgment debtor, Lora Groszglas, from the County to the Circuit Court. Upon the hearing, a jury having been waived, the Municipal Court found the issues in favor of the plaintiff and entered judgment against the defendants for $1,000 and costs. From that judgment this writ of error is prosecuted.

At the trial in the Municipal Court no evidence was offered in behalf of the defendants. It is sought to reverse the judgment of that court, mainly upon technical grounds. We shall consider these objections so far as they appear to be material or plausible. The first objection urged in behalf of defendant is that the appeal bond sued on runs to the People of the State of Illinois and “is not payable to the beneficial plaintiff nor to the deceased Barbara Von Bergen, nor is it assigned to either of them.” The suit is brought in the name of the People, to whom the bond runs. It is immaterial that it is for the use of the beneficial plaintiff.

In Vol. 15 of Ency. of Pl. & Prac., 484, cited by defendant’s counsel, it is said that “Courts of law will not in general notice mere equitable rights as contra-distinguished from the strict legal title and interest so as to invest the equitable or merely beneficial claimant with the ability to prosecute legal proceedings in his own name. The right of action at law is invested solely in the person having the strict legal title and interest to the exclusion of one holding a mere equitable claim or cestui que trust.” The bond is a good common law bond. The People in their aggregate or corporate capacity may be obligee or payee and the instrument thus given may be enforced by the courts unless in case of a statutory prohibition. Richardson v. The People for use, etc., 85 Ill. 495-498. In Knight v. Griffey, 161 Ill. 85, it is said: “The obligee in an appeal bond has a legal right of action thereto in case of breach, for the use of any person for whom he chooses to bring it, and it is no concern of the defendant for whose use the action is instituted.”

It is urged that the administrator of the estate of Barbara Von Bergen is not “a person interested” in contemplation of law, citing Storrs v. St. Luke’s Hospital, 180 Ill. 368. The case at bar is not a suit to contest a will, nor is it of such nature. It is a suit to collect an outstanding claim in favor of the estate. In Bouvier’s Law Dict., vol. 1, p. 86, it is said to be the duty of an administrator “to collect outstanding olaims and convert the property into money. For this purpose he acquires a property interest in the assets of the intestate.” The action was properly brought by the People for the use of the administrator. Saunders v. Filley, 12 Pick. 554; Lovejoy v. Stelle, 18 Ill. App. 281.

It is argued that breach of the condition of the bond was not sufficiently proven. The order of affirmance in the Circuit Court made the judgment of the County Court remanding the principal defendant to the custody of the sheriff operative. There is evidence tending to show that she did not surrender herself. If she had in fact sought to be taken into custody, as her attorney claims she may have done for aught that appears in evidence, and the sheriff had refused, it was matter of defense which could have been proven. The evidence referred to, together with the introduction of the appeal bond and order of affirmance made a prima facie case which defendants did not attempt to rebut. See Mix v. The People, 92 Ill. 549-555.

The suggestion that the bond sued on is a bail bond is without force. The statute as to suits on bail bonds in civil actions is not applicable. The evidence sufficiently identifies the defendants, and justifies the finding and judgment.

Finding no material error in the record, the judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    City of Chicago, Defendant in Error, v. George W. Streeter, Plaintiff in Error.
    Gen. No. 14,897.
    1. Criminal law—what civil action. An action to recover a penalty for violation of a municipal ordinance is not a criminal prosecution but a civil suit.
    2. Ordinances—what not essential to sustain conviction for vio

      lotion. It is not necessary that the proof show the defendant guilty of violating all the provisions of an ordinance in order to sustain a conviction charging him with its violation; it is enough if the proof shows its material violation.
    3. Appeals and ebbobs—when errors in procedure will not reverse. Technical errors in procedure which produce no harmful result will not work a reversal.
    Action of debt. Error to the Municipal Court of Chicago; the Hon. Fbeeman K. Blake, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed January 24, 1910.
    Rehearing denied February 21, 1910.
    E. M. Seymour and Samuel C. Herren, for plaintiff in error.
    George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Justice Freeman

delivered the opinion of the court.

The defendant Streeter complains of a judgment against him in an action of debt brought to recover a penalty for violation of section 1454 of the Revised Municipal Code of the city of Chicago. The Municipal Court found—a jury having been waived—that the defendant “owes to the city of Chicago $150 debt,” entered judgment accordingly for that sum with costs, and ordered that “said George W. Streeter be sent to the House of Correction and be therein confined to work out said fine and costs at the rate of fifty cents per day; provided such imprisonment shall not exceed six months.” The complainant charges among other things that the defendant on the 7th day of July, 1908, “did make, aid, countenance and assist in making an improper noise, riot, disturbance, breach of the peace and diversion tending to a breach of the peace” and that he “was engaged in or aided or abetted a fight, quarrel or other disturbance.” The complaint was sworn to by the police officer by whom it was made.

The testimony of the complaining witness tends to prove that he was a special police officer, duly licensed by the city of Chicago by special permit; that he was employed to guard the property of one Henry N. Cooper and others located on the lake front upon the north side of the city of Chicago in the vicinity of Pearson, Chestnut and other streets; that on or about July 7,1908, the defendant Streeter came to him while he was on the property of said Cooper and said, “I own all this property and I have served notice on the Lincoln Park Commissioners to vacate. I also will notify all people to get out and leave this land. I give you notice to leave;” and that he ordered the witness off; that Streeter was then ordered by the witness, who told Streeter that he, the witness, was a policeman, to move on; that Streeter refused and was again ordered to move on and again refused, using violent and threatening language; that he said “I will kill you if you don’t get off my property;” that the witness then placed him under arrest; that before speaking to witness the defendant Streeter, in witness’ presence, had ordered workmen employed by a construction company to leave, as they were trespassing on his property. There is testimony also by a park officer to the effect that defendant came to him and ascertaining that the witness was an officer of the park said that he, the defendant, had served the officer’s superiors with notice to vacate the premises and would tell him the same. There was further testimony to the effect that defendant Streeter had been “a common disturber in and about the premises for twenty years.”

The defendant’s attorney moved to set aside the judgment, and urges that the motion was improperly denied. We are unable to concur in this view, nor in the reasoning upon which it is based. The complaint is in the language of the ordinance. The action is to recover a penalty and “is not a criminal prosecution but a civil suit.” “Such a penalty could not be recovered in criminal proceedings.” City of Chicago v. Knobel, 232 Ill. 112; City of Chicago v. Kenney, 35 Ill. App. 57-64. It is not necessary that the proof should show the defendant guilty of violating all the provisions of the ordinance in order to sustain a complaint charging defendant with its violation. It is enough if the proof shows its material violation. The use of unprovoked and violent language to a police officer, threatening to kill him if he does not abandon premises he has been set to guard, on the ground that the defendant—not having possession—chooses to make claim to the property himself, is certainly conduct liable to provoke a “breach of the peace” and is at least a “diversion tending to a breach of the peace” and calculated to promote a, “quarrel or other disturbance” within the meaning of the ordinance. There is evidence tending to support the findings of the court, which had the witnesses before it and heard the testimony. That there was some improper testimony admitted may be true, but the admission of improper evidence is not assigned for error.

The fact that this is not a criminal prosecution, as defendant’s attorney seems to suppose, makes it unnecessary to consider objections to the judgment and authorities cited in support of such objections based on such erroneous supposition.

It is urged that the fine is excessive. It may be that a smaller fine would have been adequate, but threats to kill an officer made under circumstances such as the evidence discloses are by no means light offenses, and no sufficient reason appears justifying interference on our part with the discretion in this respect vested in the court below. There may be some technical errors in procedure, but none apparently harmful to the defendant.

The judgment of the Municipal Court must be affirmed.

Affirmed.


text:
    The United States Gypsum Company, Appellee, v. Central Railway Equipment Company, Appellant.
    Gen. No. 15,726.
    1. Contracts—when guaranty void. A contract guaranteeing the full performance of a contract entered into by an unlicensed foreign corporation in this state exercising corporate powers in violation of law, is void.
    2. Corporations—when foreign cannot maintain action in this state. A foreign corporation is without power to sue in this state or to maintain an action in this state not merely defensive in character but by which it seeks to obtain affirmative relief.
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed.
    Opinion filed December 23, 1909.
    Petition for rehearing withdrawn February 14, 1910.
    Israel Shrimski, for appellant.
    Scott, Bancroft & Stephens, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

- This is an appeal from an interlocutory order granting an injunction restraining appellant, an Illinois corporation, from prosecuting a suit at law pending in the Municipal Court of Chicago. That suit was brought by appellant against appellee upon a guaranty as follows:

“January 9, 1907.

Sipp Rahway Equipment Company,

Chicago, Illinois;

Gentlemen :—

In consideration of your entering into a contract with the Erie & Michigan Railway Navigation Co. (evidenced by their proposition of December 22nd and accepted by you) and your performing your part of it, we hereby guaranty in each and every particular the faithful performance of the contract by the Erie & Michigan Railway & Navigation Co.

Tours very truly,

United States Gypsum Co.,

S. L. Avery, Pres.”

The proposition and acceptance referred to in the above guaranty constituted the alleged lease which was under our consideration in Erie & Michigan Railway & Navigation Co. v. Central Railway Equipment Co., Gen. No. 15725, ante, p. 278, with which the present appeal was consolidated for argument. It appears from the bill in the case at bar that at the time of the execution of the lease and the above quoted guaranty, appellee was a New Jersey corporation, licensed to transact business in Illinois, and was a large stockholder in said Erie & Michigan Railway & Navigation Co., which was a Michigan corporation not then licensed to do business in this state.

Appellee seeks to restrain the prosecution of the suit at law brought by appellant on said guaranty, and bases its claim to relief upon substantially the same grounds set forth in the hill of the Erie & Michigan Railway & Navigation Company v. Central Railway Equipment Co., supra. The Circuit Court granted an injunction restraining appellant from further prosecuting its action against appellee in the Municipal Court. From that interlocutory order this appeal is prosecuted.

The lease which appellee guaranteed by the instrument upon which it has been sued in the Municipal Court, was a contract entered into by the Erie Company in violation of law. See Erie & M. R. & N. Co. v. Central Ry. Equip. Co., supra. At the time the contract was executed by the Erie Company as lessee thereunder, said company had not comp'led with the foreign corporation Act of 1905, and could not exercise any corporate powers in this state. It could not then and cannot now maintain any suit, legal or equitable, upon such contract. By the instrument now in question appellee guaranteed “in each and every particular” the faithful performance of that contract by the Brie & Michigan Railway°& Navigation Company, lessee thereunder. Appellee undertook therefore to guarantee the full performance of a contract entered into by an unlicensed foreign corporation in this state exercising corporate powers in violation of law. It appears the performance of-the contract or lease on the part of the Erie Company was by the terms of the lease to be in this state, where appellant, an Illinois corporation, is situated. The offices of the said foreign corporation at the time the lease was executed were in this state, as appears from evidence submitted, and it was transacting a large part of its business here without license so to do. The delivery of the cars mentioned in the lease was to be made in this state and they were to be re-delivered to the lessor in this state at the expiration of the lease. The payments of rent under the lease were to be made here. It thus appears that the guaranty in question secured the performance “in every particular” of a contract which was not only executed here in the exercise of corporate powers forbidden by law to an unlicensed foreign corporation, but which by its terms required further exercise of such powers in this state by the same corporation. Such a guaranty for such a purpose was we think a violation of law and in contravention of the public policy of the state.

Appellee by its bill under consideration seeks affirmative relief. The bill is not merely defensive. It seeks on alleged equitable grounds to avoid its own guaranty of a contract, the execution of which by the lessee was void. United Lead Co. v. Reedy Elevator Mfg. Co., 222 Ill. 199-202. The effect of the guaranty by appellee was to secure the performance'of a void contract, and so enable the Erie Company to do indirectly what it could not do for itself. We held in the. other case (Erie & M. Ry. & Nav. Co. v. Central Ry. Equip. Co., supra) that the Erie Company cannot maintain in this state its hill in equity to restrain the prosecution of a suit at law brought to enforce the lease. Neither can appellee maintain its bill upon a guaranty given to secure the performance of the same lease; a contract which was “in violation of the plain provisions of the statute and is therefore null and void, and no action can be maintained thereon at any time.” United Lead Co. v. Reedy Elevator Mfg. Co., supra.

The injunction order appealed from must therefore be reversed.

Order reversed.


author: Mr. Presiding Justice Holdom

text:
    John A. Spoor et al., Defendants in Error, v. August Meyer, Plaintiff in Error.
    Gen. No. 14,904.
    1. Forcible entry and detainer—when objection to complaint comes too late. An objection to the sufficiency of the complaint in forcible entry and detainer comes too late when first made on appeal.
    2. Forcible entry and detainer—when judgment void. A judgment in forcible entry and detainer is void where it does not describe with reasonable certainty the property as to which the writ of restitution is to issue.
    3. Municipal Court—when proceedings deemed regular. There being no stenographic report of the proceedings in the trial court and no statement of facts appearing on the trial certified by the trial judge, it will be assumed that the proceedings which led to the verdict and judgment complained of were without error.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed February 10, 1910.
    Emil A. Meyee, for plaintiff in error.

      Winston, Payne, Stbawn & Shaw, for defendants in error; John C. Slade, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The writ of error in this cause sued out brings to this court for review a judgment of the Municipal Court entered upon the verdict of a jury, in an action of forcible detainer.

The premises, possession of which is sought to be recovered, are described in the bill of particulars as “the west 66 3/4 feet of the east 133 1/2 feet of the south 125 feet of block 11 in the Superior Court’s subdivision of the west half of the northwest 1/4 of section 4, township 38 north, range 14 east of the third principal meridian.” Included in the bill of particulars is a demand for rent, but as this claim was abandoned it is no part of the proceeding before us. Attached to the bill of particulars is a complaint in the usual statutory form in forcible detainer, in which the premises are described as in the bill of particulars, omitting therefrom the words “Section 4.” The verdict of the jury finds defendant guilty of withholding possession of the premises described in the complaint, and the judgment rendered follows the verdict. Defendant appeared generally and entered no dilatory plea and made no motion to quash the complaint.

The real question which is presented by the record seems to us to rest in the solution of the proposition as to whether the judgment is erroneous in that it fails to describe any premises which can from the description found in the judgment be located with any degree of certainty or without the aid of extrinsic evidence. In other words, can the officer executing final process, from the description found in the judgment, locate the premises sought to be recovered and deliver the same to plaintiffs. We hold that the objection to the insufficiency of the complaint comes too late, being made here for the first time. Haynes v. Sherwin, 126 Ill. App. 414. In the condition of this record, procedure in the Municipal Court anterior to the verdict and judgment is not reviewable. There being no stenographic report of the proceeding below nor statement of fact by the trial judge, it will be assumed that the proceedings leading to the verdict and judgment were without error. Law v. Sanitary District, 197 Ill. 523.

Neither the verdict nor judgment describes land capable of identification. As the writ of restitution must follow the judgment, the officer whose duty it may be to execute it, by putting plaintiffs into possession, will be unable to do so without acting unwarrantably and dehors the writ. There is nothing either in the verdict or judgment to aid the defective description. We are charged with judicial notice that a township consists of thirty-six sections, and that in order to locate a small parcel of land described as being in a certain township, the section number is indispensable for its correct location. The officer would no more be justified in selecting section 4 to help out the omission in the writ, than any of the other remaining thirty-five sections. Whichever horn of this dilemmf he might grasp would make him amenable to an action for trespass at the suit of the person dispossessed. His writ, on the judgment rendered, would not protect him, or be a defense or justification for his actions. Nothing can be read into the verdict or judgment to cure the defective description in both of them, nor can we take judicial notice of the whereabouts of the ' Superior Court’s subdivision. Premises attempted to be recovered in an action of forcible detainer must be described with reasonable certainty. Schaumtoeffel v. Belm, 77 Ill. 567, is closely akin to the case at bar on both fact and principle, and is, we think, decisive of the rights of the parties. Mr. Justice Breese, speaking for the court, said: “By a loose construction, the description contained in the complaint cannot be said to be a description of the land reasonably certain. The north half of a quarter section of land has many several parts; which one of them this may be no one can certainly say. Of what part did the defendant, Carl, unlawfully withhold the possession? In the absence of averment in the complaint the defect cannot be supplied by parol proof. Nor does the judgment in the action describe the premises, the court finding only that the plaintiff is entitled to the possession of the premises described in the complaint; and what those are it is impossible to say. Hughes v. Streeter, 24 Ill. 647; Schackleford v. Bailey, 35 id. 387, and subsequent cases.” Logically the same remark is here strikingly applicable. What the premises described in the complaint, verdict and judgment are, it is impossible to say. Had the verdict and judgment described the premises according to the description found in the bill of particulars, the omission of the section in the complaint, would have been cured. When this cause is again in the Municipal Court, plaintiffs may, if they shall be so advised, move the court to amend the complaint, and it will then be the duty of that court to allow such amendment.

As the judgment of the Municipal Court is void for uncertainty, it is reversed and the cause is remanded.

Reversed and remanded.


text:
    Joseph Lengyel, Appellee, v. Western Steel Car & Foundry Company, Appellant.
    Gen. No. 14,914.
    1. Master and servant—when doctrine of assumed rislc applies. If the danger which resulted in the injury was incident to the business and employment of the servant and if such danger was equally open to the observation of both master and servant, the master is not liable.
    2, Master and servant—when not duty to warn inexperienced

      servant. It is not negligence on the part of a' master to fail to warn an inexperienced employe of increased dangers which are obvious and incident to the service.
    3. Master and servant—who fetlow-servants as a matter of law. Two laborers, even though one might be regarded as a foreman, held, under the evidence, to be fellow-servants, as a matter of law, where they were constantly working together in the same character of work and where their association in such work was habitual.
    Baker, J., dissenting.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed.
    Opinion filed February 10, 1910.
    Rehearing denied February 24, 1910.
    Statement by the Court. The action here is case for personal injuries. The relation of master and servant existed between the parties at the time of the occurrences for which compensation is sought. The recovery was to the limit of the ad damnum, $1,999, and defendant prosecutes this appeal in an effort to reverse the judgment of the trial court.
    At the time plaintiff suffered the injuries, redress for which he seeks in this suit, he was a laborer in the employ of defendant at its yards in Hegewisch. Plaintiff had been in the employ of defendant for some time previous to the accident, and had done other work than that in which he was engaged when he was injured. At this time he was one of a crew in charge of a locomotive crane, the other members being Socco, his father-in-law, who had procured him to be put into that crew, Callahan, the engineer, Steffen, the crew foreman, and Crehan, the general foreman. On the day of the accident, December 23,1905, and at the time it happened, this crew was engaged in coupling the crane car to a gondola car standing on the same track. The coupling was made by inserting a draw-bar attached to the end of the crane car into the draw-head of the gondola car. The boom on the crane was parallel with the car at the time, and the boiler extended out over the end of the car, making it somewhat difficult to insert the draw-bar into the draw-head to make the coupling effective. Socco directed plaintiff to go between the cars and make the coupling. While plaintiff was under the boiler attempting to make the coupling by raising the draw-bar high enough to insert it in the draw-head, which was about six inches above the level of the crane car, Socco, who could see the whole situation, ordered Callahan, the engineer on the crane, to go ahead, and the crane car, in response to such order, was moved ahead. Before plaintiff was able to raise the draw-bar a sufficient height to insert the draw-head and make the coupling, the cars came together and injured plaintiff’s head. To make the coupling it was necessary for plaintiff to stoop down to avoid the overhanging boiler. At the time of the accident plaintiff was doing work within the line of his employment and knew all of the conditions which environed him Plaintiff contends that Socco was his foreman and that he worked under his direction and in obedience to his orders, but admits that Socco was foreman over no one else. It is also true that directions were given by Socco to plaintiff, but the reason appears to be that Socco was better versed in the English language than plaintiff, who had very little knowledge of it. Both, however, testified through an interpreter.
    ■ Errors are assigned on the rulings of the court upon the evidence and in giving certain instructions upon the law to the jury and in refusing to give others proffered by defendant; and it is argued that plaintiff and Socco were fellow-servants, and that the risk was one assumed by plaintiff as incident to his duties.
    Frank M. Cox and B. J. Fellingham, for appellant.
    John C. King and James D. Power, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The declaration is drafted upon the theory that Socco as vice-principal negligently gave an order which resulted in plaintiff’s injuries; that plaintiff was in the exercise of due care and was not informed of the hazards he encountered, which Socco knew or ought to have known in the exercise of due care.

When plaintiff was injured he was engaged about his usual duties within the terms of his employment. He had coupled cars for months previously, although not the crane car in question. But as one of the crane crew he was always liable to be called upon to perform that duty. The dangers which he encountered were, in the exercise of due and proper care, open and obvious to him. There was nothing intricate or complicated about the appliances which he handled. The boom of the crane and its position and the overhanging of the boiler were in plain sight. That the draw-bar needed to be elevated about six inches above the' level of the crane car for insertion into the draw-head of the gondola car, was assumedly known to plaintiff ; that he must stoop down to do so to avoid the overhanging boiler, was equally plain. The proximity of the water tank to the track was -likewise apparent. In the position which plaintiff was in, his being injured was unavoidable if for any reason he failed to make the coupling when the cars came together and did not keep his head below the point of contact. Such peril was necessarily encountered and was obvious to all engaged in such work. Knowledge of such danger is imputable to him from the nature of his employment and the experience which he undeniably had in and about the crane car and in the discharge of kindred' duties during the time of his service with defendant. The danger was incident to the business and employment of plaintiff, and defendant is not liable if the danger was open alike to the observation of both. Christiansen v. Graver, 223 Ill. 142; I. B. & W. R. R. Co. v. Flanigan, 77 ibid. 365. In this case there is no claim that either of the cars or any adjunct used in their operation were defective or out of repair. Nor is it contended that the accident and resulting injury are attributable thereto. Plaintiff was injured while eng’aged in coupling cars. He had coupled cars many times before as an incident of his employment—if not the cars in question, admittedly other cars of defendant. Notwithstanding the crane car may have, in some of its parts, been different from others theretofore coupled by plaintiff, there was nothing that was different which was concealed. The difference was not only plainly visible, but was known to plaintiff. No duty rested on defendant in these circumstances to warn plaintiff of dangers so obvious; for as said in Whitcomb v. Standard Oil Co., 55 N. E. Rep. 440, “It is not negligence on the part of a railroad company to fail to warn an inexperienced employe of the greater danger incident to coupling cars that are supplied with dead-woods or bufférs than cars having an ordinary device. Such increased dangers are obvious and incident to the service.”

Primarily it is the province of the jury to decide as a question of fact, whether the relation of fellow-servant existed, and such is the course of procedure under many decisions of our Supreme Court. Still there are cases where, under the undisputed evidence in the record, the question, of whether the relation of fellow-servant existed becomes one of law for the court. Such is the case at bar, regardless of the fact whether plaintiff, in what he did, was acting under the order or direction of Socco. Even conceding that the order given by Socco to plaintiff to go between the cars and couple them together was given by him as foreman, and that on that occasion Socco also gave the order to the engineer to move the car, and that the doctrine of assumed risk has no application, still, as a matter of law, Socco and plaintiff were fellow-servants. Crane v. Hogan, 228 Ill. 338, was a case very similar to the facts relating to the question of fellow-servant to the case at bar. In that case the court reversed the judgment of this court affirming a judgment in Hogan’s favor—131 Ill. App. 314—because the trial court refused to instruct a verdict for Crane. In that case, as in this, the plaintiff was a laborer, being, at the time of the injury, engaged in work that he was accustomed to do. He had been unloading cars, incidental to which he was attempting to remove an iron plate from one of the unloaded cars which had been used to facilitate the shoveling of sand from the ends of the car. While so removing the plate and in the act of handing it out of the car to another laborer, the foreman called out, “All right, Bill,” the switch-man threw the switch and the switch engine backed in, bumped the car, causing the plate to come in contact with the car door, catching Hogan’s finger and severing it. Commenting on these facts the court say: “The evidence also established the relation of fellow servant between the men who were handling the switch engine and the plaintiff. The duties of the plaintiff and the other laborers with him, and the switchman and engineer, were such as to bring them into habitual association so that they might exercise a mutual influence upon each other promotive of proper care and caution, and they were therefore fellow servants. Chicago & Eastern Illinois Railroad Company v. Geary, 110 Ill. 383; Abend v. Terre Haute & Indianapolis Railroad Co., 111 id. 202; World’s Columbian Exposition v. Lehigh, 196 id. 612; Chicago City Ry. Co. v. Leach, 208 id. 198. They worked together in the same yard for a common purpose, and the bringing in and taking out of cars, loading, unloading, weighing and switching brought them into habitual association in the performance of their duties.” By parity of reason it logically follows that the crew of the crane car, working together as they did all the time, were necessarily habitually associated together in the discharge of their duties and were fellow-servants of each other, working for a common master, engaged in forwarding the same kind and character of work, to which their mutual energies were directed. Socco and plaintiff were laborers, working together all the time in the same character of work, and their association in such work was habitual. They were so engaged at the time of the accident, at which time, and all the time preceding, while they were part of the crane car crew, they were fellow servants, So far as any act of Socco’s contributed to the injury of plaintiff, it was the act of a fellow-servant, for which there could be no recovery.

The correctness of the rulings of the court upon the evidence or in the giving or refusing of instructions are of no consequence in view of the conclusions to which we have arrived on the other matters assigned for error. Nor is it necessary to consider whether such errors, if any, were of such a nature that the judgment ought to be reversed on account of them.

The judgment of the Superior Court is reversed,

Reversed.

Mb. Justice Bakes, dissenting.


text:
    Hibbard, Spencer, Bartlett & Company, Defendant in Error, v. Halsted Street Hill Company, Plaintiff in Error.
    Gen. No. 14,919.
    1. Appeals and errors—when finding of court not disturbed. A finding and judgment by the court will not be set aside on review if fairly sustained by a clear preponderance of the evidence.
    2. Appeals and errors—when costs of additional abstract taxed against appellant. The cost of an additional abstract will be taxed against the appellant if it contain matter which should have appeared in the original abstract and without which the Appellate Court could not have arrived at a correct conclusion of the cause without a reading of the record.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed February 10, 1910.
    Lucius J. M. Malmin, for plaintiff in error.
    Louis J. Fletcher, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This action was tried before a judge of the Municipal Court, without the intervention of a jury, and resulted in a finding and judgment for plaintiff against defendant for the sum of $245.47, and defendant sues out a writ of error seeking a reversal of the judgment.

There is no contest between the parties as to the amount due, but liability therefor defendant denies.

It is contended by plaintiff that at the request and upon the order of defendant, plaintiff manufactured a special kind of ladder for Eoberts & Brown, customers of defendant, and delivered the ladders to defendant. That the goods were made and delivered to defendant is not denied, although on the trial defendant insisted, as it had before done to plaintiff, that the ladders, should have been delivered to Eoberts & Brown, and that delivery to defendant was a mistake; that defendant neither ordered nor agreed to be responsible for the payment of the ladders; that after delivery defendant offered to return them to plaintiff, but plaintiff declined to accept them.

Without reciting the evidential facts we content ourselves by saying that an examination of the evidence impels our minds to the same conclusion reached by the trial judge. All the circumstances considered resolve the facts as supporting the contention of plaintiff. However, the plaintiff’s evidence, standing by itself, fully justifies the findings of the trial judge, and as he saw the witnesses and observed their manner of testifying, their apparent fairness or lack of it, their comparative intelligence, their animus or bias, if any such was made evident by their appearance and manner upon the witness stand, he was, from these advantages, not accessible to us, better able then we possibly can be to determine the truth of the conflicting evidence. Under these circumstances we are not permitted to disturb the solution of the controversy reached by the trial judge. It may, however, not be inappropriate to remark that an analysis of the testimony itself, unaided by a view of the witnesses, convinces us that the plaintiff fairly sustained its contention by a clear preponderance of the evidence.

The additional abstract will be taxed as costs in the cause. It contains matter which should have appeared in defendant’s abstract, and without which we could not have arrived at a correct conclusion short of reading the record.

It follows that the judgment of the Municipal Court must be and it is therefore affirmed.

Affirmed.


text:
    Martha Kleczewski, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,929.
    1. Negligence—failure to control car. Mela, under the evidence, that it was negligence not to so control a colliding car that it could he stopped before it struck another car which was standing upon the track.
    2. Verdicts—when not excessive. Mela, that a verdict for $1,800 in an action on the case for personal injuries was not excessive where permanent injuries of a severe character were sustained.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed February 10, 1910.
    B. F. Rioholson and Watson J. Ferry, for appellant.

      George E. Gormar, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Plaintiff recovered a judgment upon the verdict of a jury for $1,800 against defendant in an action for personal injuries. Defendant brings the record to us for review and urges as the sole reason for reversal that the verdict and judgment are manifestly contrary to the preponderating force of the evidence.

At the time of the accident in which plaintiff was injured the relation of passenger and carrier existed between her and defendant. Defendant operated a street railway by means of electricity along Clark street, Chicago. Upon a car so running and propelled plaintiff, in the early evening of August 6, 1904, was a passenger. She took this means of transportation from her place of work at the “Fair,” a department store in the down town shopping district of Chicago, to her home in the south side of Chicago. The car was what is known as an open or summer car. Plaintiff was seated with her face to the north, being in the opposite direction from which the car was running. When the car was in the vicinity of the east and west street crossing Clark street known as Fifteenth street, it came to a standstill owing to the blowing out of a “fuse,” whereupon the motorman of the car proceeded, while the car was stationary, to insert another fuse in the fuse box to take the place of the one “blown out,” when another car similarly propelled and owned and operated by the defendant company, traveling upon the same track and proceeding south, struck with some force the rear of the car in which plaintiff was sitting, the impact thus occurring causing plaintiff to be thrown out of her seat and to fall out of the car upon the ground. This fall plaintiff claims resulted in breaking her nose, cutting her forehead and bruising and injuring her on the left side of the chest. She was first attended by Dr. Whittaker, who acted for defendant, and was put into a carriage and driven to her home, where she was pnt to bed and there remained under medical treatment, more or less, for a period of six weeks, and was confined to her home as a result of her injuries for about six months; that she developed a cough within a week of the accident; that pleurisy attacked her on her left side, to relieve which she underwent a surgical operation and much fluid was extracted from her side; that her left lung became affected and she suffered from nervous shock. Some of these injuries, it is insisted, will remain permanent, and that all of them resulted from the accident, which is attributable to the negligence of defendant. The injuries thus suffered are in the main proven by the evidence of plaintiff’s medical attendant, her family and visiting friends. On the other hand, the medical witnesses of defendant measurably minimized by their testimony both the extent and effect of these claimed injuries.

That the car proceeding south struck the car, in which plaintiff sat as a passenger, in the rear, is admitted by all the eye witnesses of the accident who testified either for plaintiff or defendant. As to the force of the impact and the rate of speed of the colliding car there is contrariety in the evidence, but this we regard as of little moment in light of the fact that the collision admittedly occurred. From the testimony of defendant’s witnesses we gather that it was of sufficient force to damage seriously those parts of each car which came together. Defendant’s witness, police officer Zobus, testified on direct that “after the cars came together they remained together until the wreck wagon came and jacked our car up and pulled it ahead.” “Our car” was the car on which plaintiff was riding at the time of the collision. Whatever may be contended as to the blowing out of the fuse being a fault not imputable to the company and therefore not to be ascribed to its negligence, still such was not the primal cause of the accident. The failure to take proper precaution by way of signalling approaching cars wMle the arrested car remained stationary, so as to avoid the danger of a collision, may he regarded as an act of negligence on the part of defendant which brought about the collision. Furthermore, we think it was negligence in defendant in not so controlling the colliding car that it could be stopped before it struck the car standing upon the same track on which it was moving. If the place where the collision occurred was fraught with danger, defendant is chargeable with knowledge of such danger and held to the exercise of care proportioned to such known dangers; We cannot escape from the conclusion, all the evidence considered, that the collision is attributable to the negligent operation by defendant of the colliding car. There is no pretense that plaintiff was not in the exercise of due care for her own safety at the time of the collision in which she was injured. Neither is it contended that there was anything within her power which she could have availed of to avert or minimize the effect of the occurrence or prevent the happening of the collision. In these and like circumstances it has been held that “where an injury occurs to a person who is a passenger, in the exercise of ordinary care, upon the car of a common carrier, by some defect in the machinery wholly under the control of the .carrier, a prima facie case of negligence on the part of the carrier is established, and the burden of proof is upon it to show that the accident was without its fault.” Union Traction Co. v. Newmiller, 215 Ill. 383. In that case the accident happened to a passenger through a stampede of her fellow passengers, panic stricken at the electric flashes, explosions and sputterings resulting from the blowing out of a fuse; and the court said: “It is clear that the explosion and flames caused a panic among the passengers, which resulted in the injury. All these facts are clearly proven by the evidence. As to the explosion being the result of negligence of appellant, while, as a general rule, negligence is not to be presumed, there are well understood cases where the circumstances of the accident afford sufficient prima facie evidence of negligence. We think the case at bar falls fairly within the maxim, res ipsa loquitur.” As contradistinguished from case supra there is not only the blowing out of the fuse which resulted in the stopping of the car, but by the car following running into the standing car we have an additional act of negligence imputable to defendant from the fact that it did not have the car under sufficient control to avoid the collision, or that it so negligently operated the car that the collision resulted.

As to the amount of the verdict being excessive, wo see no evidence sustaining such contention. That plaintiff was so much injured that she had to be conveyed to her home in a carriage is admitted by the fact that defendant, after an examination of plaintiff by its own surgeon, so conveyed her. According to plaintiff’s testimony and that of her medical and lay witnesses she was very severely injured, some of such injuries being of a permanent character. Defendant’s witnesses gave evidence tending to show that the injuries of plaintiff were very much less severe than claimed by her, and in fact somewhat trivial and of little moment. The fact of injury being established, it became the burden of the jury to reconcile the conflict as to their extent and to award such an amount as damages as they believed from the evidence sufficient to compensate for the injuries which resulted from the negligence of defendant. With their finding we have neither the right nor the disposition (after a review of all the evidence on this subject) to interfere.

Being of the opinion that the reasons argued for reversal find no support in the record, the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    The People of the State of Illinois, for use of John Cohrt, Appellee, v. George F. Gerken et al., Appellants.
    Gen. No. 14,935.

      Bonds—what essential to liability upon constable’s. Before a recovery can be had upon a constable’s bond for an alleged wrongful seizure, it must be established that such seizure took place subsequently to the execution of the bond and was made by the principal in such bond as a constable under legal process which he had authority as such constable to execute.
    Action of debt. Appeal from the County Court of Cook county; the Hon. William H. Hinebaugh, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed February 10, 1910.
    Maurice C. Lange and Louis Greenberg, for appellants.
    Alexander Collins, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action upon a constable’s bond in which defendant Gerken was the principal and his co-defendant surety.

The declaration under which the cause was tried alleges that Gerken was a Cook county constable, and on or about March 1, 1905, under a writ of attachment issued by Stevens, a Cook county justice of the peace, in favor of Alfred Byers for the use of Batlof and against the beneficial plaintiff, he levied upon a buggy belonging to him of the value of $100; that on the following June 1st Cohrt paid the claim and costs in the attachment suit, whereupon the same was dismissed and the buggy ordered returned to Cohrt; that it became the duty of Gerken as such constable then to return said buggy, but although demand was duly made therefor, he refused. Thereafter on November 17, 1906, Cohrt brought suit before another Cook county justice named Strayer, against Gerken and one Felix Horn, to recover the value of the detained buggy, and in that suit prevailed and recovered a judgment for $100 and costs against both Gerken and Horn. Execution was issued on that judgment and returned “no property found and no part satisfied.” This suit on the bond of Gerken as constable was then commenced and resulted in a judgment of debt $3,000 and damages of $100, debt to be discharged on payment of damages. Motions for a new trial and in arrest of judgment were made and overruled. Defendants offered no proof saving three receipts referred to in Cohrt’s testimony, so that the cause went to the jury upon the uncontradicted evidence of Cohrt, and the question now arises, does such evidence, under the declaration, sustain the recovery.

The bond in suit is the usual form of bond given by constables and is dated May 4, 1905.

Cohrt testified that Gerken took the buggy under the attachment writ issued by Justice Stevens, together with a horse, harness and a surrey; that he arranged a settlement with Gerken and after paying the stipulated amount Gerken returned all the property but the buggy, which he said he had sold, but would procure its return later. Cohrt thereupon sued for and recovered a judgment of $100, the value of the buggy.

The three receipts given in settlement appear in the record bearing the dates of March 10, 11 and 21, 1905. These ante-date the bond sued upon in this action. It would seem from this that the failure of duty arose prior to the existence of the bond in suit. If there was a wrongful conversion or retention of the buggy by Gerken, it took place at the time of the settlement and therefore did not constitute a breach of the bond sued upon, as that was anterior to its date and execution. Moreover, there is no evidence that Gerken was a Cook county constable at the time he took the buggy or refused to deliver it up, or that he took it under process which he was authorized by law to execute. There is neither writ of attachment nor any other writ or process upon which the buggy could be lawfully seized found in the record. In any event, before a recovery could be had under an assigned breach of the bond it must "appear that the seizure was made by Gferken as a constable under legal process, which he had legal authority as such constable to execute. If he took it without a writ, or was not a constable at the time of the taking, there is no right of recovery on the constable’s bond. Proof that the property was taken in virtue of legal process cannot be dispensed with. Putnam v. Traeger, 66 Ill. 89. As said in Cornell v. The People, etc., 37 Ill. App. 490, “There is no evidence in the record tending to show that Broad was acting under any writ at the time of the trespass. Sureties on a constable’s bond are not liable for his trespasses, having no connection with his duties as officer. ”

The judgment of the County Court is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Baker

text:
    J. Byron Turck, Administrator, Appellee, v. The Chicago, Rock Island and Pacific Railway Company, Appellant.
    Gen. No. 14,893.
    Appeals and ebeobs—when question as to reversal without remanding res judicata. If upon the former appeal of a cause the Appellate Court has held that it would-not be authorized to reverse without remanding, such question is res judicata in a second appeal of such cause.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. William H. McS onely, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed February 10, 1910.
    M. L. Bell, for appellant; Berj. S. Cable, of counsel.
    Elmer & Coher, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In an action on the.case in the Superior Court by plaintiff as administrator against defendant for wrongfully causing the death of plaintiff’s intestate, plaintiff had judgment for $5,600, and the defendant appealed. There was a former appeal by defendant from a judgment recovered against it by plaintiff on the first trial of the cause, and it was held that the trial court erred in giving a certain instruction for the plaintiff, and for that, error the judgment was reversed and the cause remanded. C. R. I. & P. Ry. Co. v. Turck, Administrator, 131 Ill. App. 128. By stipulation the evidence on the first trial was read on the second trial. No additional evidence was offered by either party nor was there any amendment of the pleadings after the first trial.

The first proposition stated in the brief for appellant on the former appeal was that: “Appellant was not negligent as charged in the declaration, and even if it were guilty of negligence, appellee’s intestate was himself guilty of such negligence that must preclude a recovery in this case.” The brief concluded as follows: “It is respectfully submitted, however, that the judgment should be reversed without remanding on the facts of the case as the record 'shows them. ’ ’

The question whether the judgment should be reversed and the case not remanded, on the ground either that it did not appear from the evidence in the record that the defendant was guilty of the negligence alleged in the declaration, or that it did appear from the evidence that the plaintiff was guilty of contributory negligence, was before this court on the former appeal and necessarily determined in remanding the case to the Circuit Court. Champaign County v. Reed, 106 Ill. 389.

The decision and judgment that the case be remanded was necessarily an adjudication by this court that it did not appear from the evidence, either that the defendant was not guilty of the negligence alleged in the declaration, or that the plaintiff was guilty of contributory negligence, and that on the evidence in the record a jury’ might properly find the defendant guilty. The evidence on the second trial is the same as on the first, the parties and issues are the same. Whether from the evidence the jury might properly find the defendant guilty was a question of law, decided by this court on the former appeal, and the decision on that appeal, that from the evidence the jury might properly find the defendant guilty, is the law of the case on this appeal.

The only grounds of reversal stated in the brief for appellant on this appeal are: “I. The evidence shows no negligence on the part of appellant. II. Appellee’s intestate was guilty of contributory negligence. TIT. The verdict is against the weight of the evidence.”

WThether a conclusion which a jury from the evidence may properly draw, shall be drawn by them, is a question of fact for the jury, on which their verdict is conclusive. This court on the former appeal decided that a jury might properly, on the evidence on the first trial, find the defendant guilty. On that evidence, on the second trial, the jury found the defendant guilty.

The decision on the former appeal is binding on us on this appeal on the question whether on the evidence the jury might properly find the defendant guilty. As the sufficiency of the evidence to support the verdict is the only question presented for our decision on this appeal, the judgment of the Superior Court will be affirmed.

Affirmed.