author: Mr. Justice McGoorty

text:
    J. H. Alsdurf, Administrator, Appellee, v. Big Four Wilmington Coal Company, Appellant.
    Gen. No. 20,845.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed February 1, 1916.
    Statement of the Case.
    Action by J. H. Alsdurf, administrator of the estate of Martin Carra, deceased, plaintiff, against the Big Four Wilmington Coal Company, defendant, in the Superior Court of Cook county, to recover for the death of plaintiff’s intestate as a result of defendant’s alleged violation of the Miners’ Act (J. & A. (f 7475 et seq.). From a judgment for plaintiff for $4,000, defendant appeals.

      The action was brought for the benefit of the next of kin of intestate. The deceased was killed by a large stone falling on him while engaged as a coal miner in defendant’s mine, and while sounding the roof of his working place. The specific acts of wrongful violation of the statute, charged in the declaration, are, in part, failure to have its mine examiner—
    (a) inspect the working places of deceased and others before they were permitted to enter the mine on that day,
    (b) observe whether there were any dangerous roofs,
    (c) place a conspicuous mark thereat, as notice for all men to keep out,
    (d) observe that the roof and walls of the room in which decedent was working were in a dangerous condition.
    Also that by reason thereof, decedent entered the place in the performance of his duties, and while so engaged was killed.
    The mine is known as a long wall mine. A long wall mine is one where all the coal is taken out and the roof supported by the brushing or rock taken down. In such a mine, the mining commences in the center, the face or working edge of the layer or seam of coal forming a circle gradually increasing in circumference as the coal is taken out. There were two hundred rooms in the mine and two miners worked in each room. The room in question was only three feet in height, being the height of the vein or seam of coal. The coal was dug out to a width of four feet underneath the rock or brush not taken down 4at the end of the roadway, the face of the brush being four feet from the face of the coal.
    All of the witnesses agreed that the only means of ascertaining the safety of the roof was by placing one’s hand lightly against it, at the same time tapping it with a bar, pick or other implement. If the roof was loose or dangerous it would give a hollow or dead sound and the hand could feel it quiver; while if the roof was sound, or apparently safe, it would give hack a ringing or bell like sound, and the hand would feel no quivering or shaking, and in this way it can always be determined whether or not the roof is safe.
    The only witness to the accident was Frank Aragno, a partner or “buddy” of intestate, who worked with him. Remigo Sambon, who worked in an adjoining room, and John McNamara, a track layer, were with intestate shortly before the accident. Aragno testified that he saw the mark “ 23, ” the date of the month, on the “brush” above the entrance to their room, before they entered it, indicating that the mine examiner had examined the room and that it was safe, but saw no similar mark on the walls of the room. The evidence of the mine manager was that the mark “23” was on the “brush” (at the end of the roadway) and about six or seven feet from where the rock fell. The witness and intestate upon entering the room, about 7:30 a. m., before commencing work, sounded the roof with their picks. In the opinion of the witness the room was in good condition up to the time the stone fell. About 9:00 a. m., intestate and Aragno, Sambon and the latter’s “buddy” took lunch in the roadway near by. Aragno testified that upon returning to their room, intestate sounded the roof with his pick at the place where the rock subsequently fell, which was immediately to the right of the roadway, and about five minutes thereafter returned to the same point and while again sounding that part of the roof the stone fell upon him.
    Sambon testified that he and intestate entered the latter’s room “the first thing” that morning and found a “squeeze,” namely, where a portion of the roof or coal had fallen between his room and that of appellee’s intestate. Sambon testified:
    “Q. Had you seen him go in there that morning to the place where the rock fell on him? A. * * * Yes, sir. But he (intestate) looked—it was pretty bad. Then he came "out and I saw the props * * * he got the props down under it (the stone) * * *. Well you see the props the first thing off in the morning,—he never sounded in the morning at all. ’ ’
    He further testified that he saw intestate sound the roof with a pick that morning between nine and ten o ’clock, and that the roof sounded good. Sambon testified, further/ that the stone slipped, diagonally, about six inches towards the face of the coal before it fell. Aragno testified that the top of the stone was damp, smooth and slippery. The stone was seven feet long, three and one-half feet wide in the center, tapering to a point at the right side, and about one to two feet thick. One of defendant’s expert witnesses, who examined the stone after it had fallen, testified that in such a mine a stone can change or break within a few minutes. He described a “slip” as a condition in the top of the stone which can be detected by sounding. Another expert witness, who testified in behalf of plaintiff, stated that if a stone is wet it can be ascertained by examination and the danger determined. Aragno testified in this regard: “It is harder to tell if it (the stone) is solid when it is wet. ’ ’
    The mine examiner, John Thom, testified that he examined the roof of the room at about three o’clock on the morning of the accident, testing the roof with a pick, and that there was no loose stone nor dangerous condition. The examiner to get into the room had to pass through a space under the rock or brush three feet in height and four feet in width. On the face of the rock or brush, at the end of the roadway and above the said entrance, he inscribed the mark “23,” and did not place any danger mark on the walls of the room. The testimony of Sambon tended to show that it was customary to place the mark ‘ ‘ on the face of the brush or some stone alongside.” Thom testified that he also examined the room after the stone fell and that at the time he made the examination before the accident, “there was nothing could have come there *" * * except they * * * (Carra and his ‘buddy’) had dug the coal out, that the coal teas * * * still covering the place where the stone fell, and * * * that before Carra could have gone in there, he would have had to take the coal down.” On cross-examination he was asked: “So you didn’t sound it (the roof) at the place where he was killed * * *?” Answer: “It was too tight * * * I sounded it after I got through, where I could get mu pick to sound it, where the man %vas killed.”

    Abstract of the Decision.
    1. Pleading, § 258

      —when amendment of name of plaintiff does not constitute stating new cause of action. In an action by a plaintiff as “Administrator of the Estate of Carra Martin,” an amendment changing all the papers in the case so as to read “Administrator of the Estate of Martin Carra” does not state a new cause of action, the words in which the transposition was made being desoriptio personae.

    Sambon testified: “Carra did not take down any coal that morning.” Aragno testified that intestate, after lunch, was working under the place where the stone fell and “we had taken the coal out, where Martin was standing, the day before.”
    Plaintiff’s witnesses and the mine manager testified regarding falls of coal at that time in other rooms, some of which were not in use. Presence of such falls of coal were denied by the mine examiner.
    D. R. Anderson and John A. Stagg, for appellant.
    Charles Cheney Hyde, Charles B. Elder, Ira E. Westbrook and Charles H. Watson, for appellee.

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

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

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

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

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

   Mr. Justice McGoorty

delivered the opinion of the court.

2. Pleading, § 474 —when omission to change papers upon order of amendment cured after judgment. In an action by a plaintiff as “Administrator of the Estate of Carra Martin” where the court ordered the amendment of all papers in the case so as to read “Administrator of the Estate of Martin Carra,” it is immaterial after judgment that the praecipe and summons were not changed by interlineation subsequent to the amendment so as to conform thereto, the order of amendment being sufficient to support the verdict after judgment. _

3. Appeal and error, § 1544 —when giving of instruction to find defendant guilty if plaintiff made out case as alleged in declaration harmless error. Although the practice in actions based on negligence of giving instructions to find defendant guilty if plaintiff made out his case by a preponderance of the evidence as alleged in the declaration is not to be commended, yet such instructions are not reversibly erroneous where every count in the declaration contains allegations of the facts necessary to a recovery.

4. Instructions, § 159 —when must he taken as a series. In an action brought under the Miners’ Act (J. & A. If 7475 et seq.), to recover for the death of plaintiff’s intestate as a result of defendant’s alleged wilful violation of the act, an instruction in effect that plaintiff might recover for death of which a wilful violation of the act by defendant was the proximate cause, regardless of whether such violation was charged in the declaration, is not erroneous where other instructions given for plaintiff state fully that plaintiff can recover only for violations of the act as charged in the declaration, since in such case instructions must he taken as a series.

5. Mines and minerals, § 149 —when not necessary for plaintiff to prove that intestate was directed to go to place where he was killed. In an action brought under the Miners’ Act (J. & A. jf 7475 et seq.), tp recover for the death of plaintiff’s intestate as a result of defendant’s alleged wilful violation of the act, it is not necessary to prove that intestate was specifically directed to go to the place where he was killed, where defendant does not contend that at the time of his death intestate was not acting within the scope of his employment.

6. Mines and minerals, § 188 —when instruction not erroneous as assuming roof of mine in dangerous condition. In an action brought under the Miners’ Act (J. & A. j[ 7475 et seq.), to recover for the death of plaintiff’s intestate as a result of defendant's alleged wilful violation of the act, an instruction that “if the jury believed from the evidence that the roof of the room where plaintiff’s decedent was killed was in a dangerous condition, and that said dangerous condition could have been ascertained by the mine examiner within twelve hours preceding the day aforesaid, and that the defendant was guilty of the wilful omission alleged,” held not objectionable as assuming that the roof was in a dangerous condition.

7. Mines and minerals, § 191*—when instruction not erroneous as placing duty upon defendant to inspect mine continuously for certain period before accident. In an action brought under the Miners’ Act (J. & A. If 7475 et seq.), to recover for the death of plaintiff’s intestate as a result of defendant’s alleged wilful violation of the act, an instruction that “if the jury believe * * * said dangerous condition could have been ascertained by the mine examiner within twelve hours preceding the day aforesaid,” held not erroneous as telling the jury that it was the duty of defendant to inspect all places in the mine for twelve hours continuously preceding the beginning of the day in question, the instruction clearly presenting the issue as to whether there was a dangerous condition which could have been discovered at any time prior to the commencement of the working day of plaintiff’s intestate.

8. Instructions, § 151*-—when requested instructions covered by given instructions properly refused. Requested instructions which are fully covered by other instructions given on behalf of the same party, are properly refused.

9. Mines and minerals, § l%2*-r-when .question as to examination of roof of mine by mine examiner for jury. In an action brought under the Miners’ Act (J. & A. j[ 7475 et seq.), to recover for the death of plaintiff’s intestate as a result of the fall of a stone from the roof of the room where intestate was working when killed, the question whether the mine examiner examined such room as required by section 21 of such Act (J. & A. If 7495) is a question for the jury.

10. Mines and minerals, § 176*—when evidence sufficient to establish that mine examiner could have ascertained dangerous condition of roof of mine. In an action brought under the Miners’ Act (J. & A. 7475 et seq.), to recover for the death of plaintiff’s intestate as a result of the fall of a large stone from the roof of the room where intestate was working when killed, where the evidence was conflicting as to whether the mine examiner inspected the room as required by section 21 of the Act (J. & A. If 7495), evidence held to establish the fact that the mine examiner in the exercise of reasonable care would have discovered such a dangerous condition, if it existed.

11. Mines and minerals, § 86*—when operator of mine not relieved from duty of inspecting roof. The fact that a miner is required by section 23 of the Miners’ Act (J. & A. If 7497) to sound and thoroughly examine the roof of his working place before commencing work does not relieve the operator from the duty imposed by section 21 of the same Act (J. & A. If 7495) to inspect such roof.

12. Mines and minerals, § 127 —when miner not guilty of contributory negligence in working under dangerous roof. A miner has the right to rely on the performance of the duty imposed on the mine examiner by section 21 of the Miners’ Act (J. & A. If 7495), and, in the absence of evidence of a mark in such working place indicating the opinion of the examiner that the roof was dangerous, cannot be held guilty of contributory negligence in working under a stone which later falls and kills him.

13. Mines and minerals, § 84*-—what constitutes a wilful violation within Mining Act. A wilful violation within the meaning of the Miners’ Act (J. & A. If 7475 et seq.), means a conscious violation.

14. Mines and minerals, § 127*—when miner entitled to benefit of sitperior knowledge of mine examiners. Under the Miners’ Act (J. & A. If 7475 et seq.), a miner is entitled to the benefit of the superior knowledge and experience of those charged with the duty of discovering dangerous conditions in the mine.

15. Mines and minerals, § 176*—when evidence sufficient to establish that mine examiner could havb discovered condition of stone in roof of mine within specified time. In an action brought under the Miners’ Act (J. &. A. If 7475 et seq.), to recover for the death of plaintiff’s intestate as a result of the fall of a large stone from the roof of the room where intestate was working in a long wall mine when killed, evidence held to show that the condition of the stone could have been discovered by examination at any time within twelve hours of its fall, although there was also evidence that in such a mine a stone can change or break within a few minutes.

16. Mines and minerals, § 182*—when question whether mine examiner could have discovered dangerous condition of roof for jury. In an action brought under the Miners’ Act (J. & A. ff 7475 et seq.), to recover for the death of plaintiff’s intestate as a result of the fall of a large stone from the roof of the room where intestate was working when killed, the question whether the dangerous condition existed when the mine examiner inspected the room, and whether in the exercise of reasonable care such examiner should have discovered such condition, is for the determination of the jury on all the evidence.

17. Mines and minerals, § 181*—when question whether proximate cause of death of workman due to failure of mine examiner to use care to ascertain condition of roof for jury. In an action brought under the Miners’ Act (J. & A. It 7475 et seq.), to recover for the death of plaintiff’s intestate as a result of the fall of a large stone from the roof of the room where intestate was working when killed, the .question whether the proximate cause of intestate’s death was the failure of the mine examiner to exercise reasonable care to discover such dangerous condition when he made his examination is for the determination of the jury on all the evidence.

18. Mines and minerals, § 176 —when evidence sufficient to sustain verdict for death of miner due to falling of stone from roof of mine. In an action brought under the Miners’ Act (J. & A. H 7475 et seq.), to recover for the death of plaintiff’s intestate as the result of the fall of a large stone from the roof of the room where intestate was working when killed, a verdict for plaintiff held not manifestly against the weight of the evidence.


source: Caselaw Access Project

license: Public Domain

text:
    Martha Schechtman, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 21,004.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed February 1, 1916.
    Statement of the Case.
    Action by Martha Schechtman, plaintiff, against the Chicago Railways Company, defendant, in the Superior Court of Cook county, to recover for personal injuries sustained while attempting to alight from defendant’s street car on which she was a passenger. From a judgment for plaintiff for $2,000, defendant appeals.
    Plaintiff’s physician testified, in effect, that on September 11, 1911, about two hours after the occurrence, he found a large bruise upon her hip; bruises upon her left thigh and back, and, the following day, a slight bloody discharge from the vagina, which continued for about a week, and that he continued to treat her “off and on” for pain in the back, especially on the left side, and for retroversion of the uterus. Three or four weeks before the trial, he found the uterus turned backward. He testified that he had known the plaintiff for six or seven years; that he attended her at the birth of her first child, more than two years before the accident; that six weeks after such birth, he found plaintiff’s uterus to be normal in size, and that “involution was practically complete at that time.” He further, testified that at the time of the accident plaintiff was in good health.
    The plaintiff was three months advanced in pregnancy at the time of the accident and gave birth to a child six months/thereafter.
    A motion to strike out the testimony with reference to retroversion of the uterus, as not connected with the accident, was denied. The court gave the following instruction for plaintiff:
    “The jury are instructed that the law requires the employees of common carriers to do more than to stop reasonably long enough for passengers to safely alight from its cars. They are bound and required to ascertain and know that no passenger is in the act of alighting from the car before putting it in motion again. If an employee fails in that respect, then such failure is imputed to his employer and is actionable negligence on the part of the employer, provided the passenger was at such time not guilty of contributory negligence. ’ ’
    Ira C. Wood and Frank L. Kriete, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    M. A. Zelensky and Lynn & Hallam, for appellee.
   Mr. Justice McGoorty

delivered the opinion of the court.

Abstract of the Decision.

1. Carriers, § 464*—when evidence as to physical condition of passenger after accident admissible. In an action by a married woman to recover for injuries sustained while attempting to alight from defendant’s street "car, a motion to strike testimony tending to prove that plaintiff suffered from retroversion of the uterus is properly denied where the evidence tended to show that the conditions sought to be proved were the result of the accident.

2. Negligence, § 191*—when question of fact. The question as to what constitutes negligence in a particular case is one of fact and not of law.

3. Carriers, § 484*—when instruction as to duty of carrier towards passengers in starting cars erroneous. In an action to recover for personal injuries sustained while attempting to alight from defendant’s street car, an instruction that it is the duty of a common carrier of passengers to ascertain and know that no passenger is in the act of alighting before putting a car in motion, and that a failure to do so is actionable negligence, held reversible error, such instruction stating as a legal proposition that such conduct is negligence under all circumstances.


author: Mr. Presiding Justice McSurely

text:
    John W. Belmont, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 21,817.
    1. Appeal and error, § 866

      —what insufficient abstract. An index of the record is not a sufficient abstract of the record.
    2. Officers, § 36*—when burden of proof on claimant of office. One claiming the right to an office or position must show the legal existence of the office or position and his legal right to hold it.
    3. Municipal Court of Chicago, § 4*—who may remove deputy bailiffs. Under the provisions of section 17 of the Municipal Court Act (J. & A. If 3329), a deputy bailiff may be removed either by an order signed by a majority of the judges of the Municipal Court or he may be removed by the bailiff.
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 14, 1916.

      E. I. Frankhauser, for plaintiff in error.
    Samuel A. Ettelson, for defendant in error; Roy S. Gaskill and George A. Curran, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit in the Municipal Court; from the abstract of record filed in this court it appears that there was filed in the Municipal Court “a statement of claim and affidavit of plaintiff’s claim;” we are given no more information concerning it. The abstract also indicates that there was a trial and “final judgment, ’ ’ but the nature of the judgment is unrevealed. We might properly affirm the judgment upon the presumption that it is right. An index to the record is not an abstract of record.

From the briefs it appears that plaintiff brought suit for salary as deputy bailiff of the Municipal Court, and that after trial it was adjudged that he take nothing.

Plaintiff was formerly employed as a deputy bailiff of the Municipal Court, and served from January 16, 1911, to September 11, 1911, when he was discharged by Thomas Hunter, then bailiff of the Municipal Court. On November 3, 1911, the judges of the Municipal Court ordered that plaintiff be restored to his position, and on that date he re-entered upon the duties of deputy bailiff. This suit is for salary from September 11th to November 3rd, the period of time of his discharge.

A person claiming the right to an office or position must show the legal existence of the office or position and his legal right to hold it. Moon v. Mayor, 214 Ill. 40; Bullis v. City of Chicago, 235 Ill. 472. Did plaintiff have a legal right to the position of deputy bailiff during the period of time of his discharge 1 This depends on whether he was legally discharged. Section 16 of the act in relation to the Municipal Court of Chicago (chapter 37, Hurd’s Ill. St., J. & A. 3328) provides for the creation of the office of bailiff of the Municipal Court and for his election thereto. By section 17 (J. & A. 3329) it is provided that “said bailiff shall appoint such number of deputies as may be determined,' from time to time, by a majority of the judges of the municipal court by orders signed by them and spread upon the records of said court. * * * Any deputy bailiff shall be subject to removal for cause upon proper notice, hearing and proof at any time by an order signed by a majority of the judges of the municipal court and spread upon the records of said court. Any deputy bailiff may likewise be removed by the bailiff: Provided, however, that any deputy bailiff so removed may be restored to his position by an order signed by a majority of the judges of said municipal court and spread upon the records of said court. ’ ’

There is no ambiguity or inconsistency in these provisions. A majority of the judges may remove a deputy bailiff, or the bailiff may remove a deputy bailiff. The fact that subsequently a majority of the judges may restore to his position any deputy bailiff who has been removed by the bailiff does not take away the power of the bailiff to remove. We are not impressed by the argument that the power given the judges to remove is in direct conflict with the power given to the bailiff to remove a deputy bailiff. It follows that when Hunter, the bailiff, discharged plaintiff on September 11th, he was legally acting under the authority of the statute, and the discharge, as far as plaintiff was concerned, was effective and complete and would remain so until a majority of the judges might conclude to restore him.

Plaintiff having failed to prove his legal right to the office during the period for which salary is claimed, is not entitled to recover, under the authorities above cited, and the judgment is affirmed.

Affirmed,


text:
    William A. Murten, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 21,847.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed with finding of fact.
    Opinion filed February 14, 1916.
    Statement of the Case.
    Action by William A. Murten, plaintiff, against Chicago City Railway Company, defendant, to recover for injuries received in alighting from defendant’s car. From a judgment for plaintiff for $1,600, defendant appeals.
    The evidence showed that plaintiff was riding on a southbound Indiana avenue car. His daughter, about fifteen years old, was with him. He was carrying quite a load of provisions of one kind and another in different parcels. He testified that as the car neared 29th street the conductor called out the number of the street; that plaintiff and his daughter went to the rear door; that the car came to a complete standstill about two car lengths north of 29th street, and that as he stepped down, still having one foot on the car step, the car suddenly started, throwing him down. His testimony is corroborated in certain respects by his daughter. It is not disputed that the accident happened some distance north of the usual stopping place of the car.
    The story of plaintiff and his daughter was contradicted by at least seven witnesses, most of them passengers. .These witnesses substantially agreed that when the car was one hundred or more feet north of 29th street plaintiff walked to the rear of the car, followed by his daughter; that the car was then in motion, going six or seven miles per hour, slowing down; that the conductor warned plaintiff not to alight until the car had stopped, but plaintiff proceeded, with his arm full of bundles, to step off, and as soon as he landed on the street pavement seemed to lose his balance and fell; that the daughter started to follow but was stopped by the conductor, who barred her way with his arm, and she waited until the ear stopped, and then alighted and walked back fifty feet to where plaintiff was.
    Abstract of the Decision.
    Cabbiers, § 437

      —when evidence sufficient to show contributory negligence of alighting passenger. In an action by a passenger against a street railway company to recover for injuries received while alighting, evidence examined and held to show that the injury was due to plaintiff's contributory negligence.
    James Todd and Watson J. Ferry, for appellants; W. W. Gurley and J. R. Guilliams, of counsel.
    George F. Hagemeyer, for appellee; Zimmerman & Garrett, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Wesley Shimeall, Appellee, v. Ernst E. Lehmann, Appellant.
    Gen. No. 21,887.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed February 14, 1916.

      Statement of the Case.
    Case of the first class in the Municipal Court, for goods sold and money loaned by Wesley Shimeall, plaintiff, against Ernst E. Lehmann, defendant. Defendant filed an affidavit of defense as follows:
    “Defendant believes that he has a good defense upon the merits to the whole of the plaintiff’s demand, as follows: The whole sum, exclusive of interest, sued for, including item for diamond ring and money loaned, •was, on or about July 26, 1913, paid by defendant and thereafter received by plaintiff; as to item of interest, sued for, on ground of alleged vexatious delay in payment, the.nature of the defense thereto is, that said payment included interest up to the time thereof, and, in addition, there was, and has been, no vexatious delay in payment. ’ ’
    Upon motion of plaintiff the court struck the affidavit from the files and entered judgment against defendant.
    Plaintiff contended that the affidavit was insufficient under the rules of the Municipal Court. Defendant argued that it was sufficient. The rules of the Municipal Court, which were preserved for review, provide that defendant shall file an affidavit that he believes he has a good defense upon the merits, “specifying the nature of such defense, whether by way of denial or by way of confession and avoidance in such a manner as to reasonably inform the plaintiff of the defense which will be interposed at the trial.” By rule 20 it is provided that it shall not be sufficient for defendant’s affidavit “to deny generally the facts alleged by the statement of claim * * *. Any denial of any allegation of fact made by the opposite party must not be evasive but must answer the point of substance.”
    Francis W. Walker and Charles E. Selleck, for appellant.
    Jonas O. Hoover, for appellee,

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —when affidavit of defense sufficient. In an action of the first class in the Municipal Court of Chicago for goods sold and money loaned, the affidavit of defense examined and held sufficiently to comply with the rules of the Municipal Court.
    2. Municipal Court of Chicago, § 13

      —when rules do not require that evidentiary facts he pleaded. The rules of the Municipal Court of Chicago do not require that evidentiary facts be pleaded in the affidavit of defense.
    3. Payment, § 24

      —when plea sufficient. In an action for goods sold and money loaned, a plea that before action defendant satisfied and discharged plaintiff’s claim by payment is a good plea.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Fred F. Roberts, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 21,937.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed with finding of facts.
    Opinion filed February 14, 1916.
    Rehearing denied February 28, 1916.
    Statement of the Case.
    Action by Fred F. Roberts, administrator of the estate of Alfred Smith, deceased, plaintiff, against Chicago City Railway Company, defendant, to recover damages for wrongfully causing the death of plaintiff’s intestate. Judgment was entered against defendant for $1,750, from which defendant appeals.
    The case has been tried three times. From the judgment on the second trial appeal was taken to the Appellate Court, and a majority of the branch court which had the case under consideration were of the opinion ■that the judgment should be affirmed. (See 177 Ill. App. 400.) A writ of certiorari was granted by the Supreme Court, and the judgments of the Superior and Appellate Courts were reversed. The case is reported in 262 Ill. 228. The facts involved are narrated at length in these opinions to which reference is made.
    Abstract of the Decision.
    1. Appeal and ebbob, § 1727

      —when conclusions of Supreme Court on former appeal binding on Appellate Court. In. an action to recover for the wrongful death of plaintiff’s intestate, on a second appeal to the Appellate Court involving facts not materially different, the conclusions of the Supreme Court on the former appeal as to the contributory negligence of plaintiff’s intestate and the negligence of defendant are controlling.
    The facts adduced upon the present trial do not differ materially from those which were considered by the Supreme Court.
    It is asserted by plaintiff that this case is different in that it is now claimed in an additional count that defendant was guilty of a violation of the municipal ordinance requiring a fender to be attached to the front of the car in such a manner that pedestrians would not be injured or thrown under the wheels of the car, and that the violation of this ordinance was the proximate cause of intestate’s death. The evidence showed not only that the car was equipped with the required fender but that the presence or absence of a fender had nothing to do with the accident.
    Franklin B. Hussey and Watson J. Ferry, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Charles C. Spencer, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Street railroads, § 103*—when violation of ordinance insufficient to overcome contributory negligence. The contributory negligence of a pedestrian in attempting to cross two car tracks between two approaching cars, the view of which was unobstructed, and when under no necessity of doing so, will prevent recovery for his death, even though the cars were not equipped with fenders as required by ordinance.

3. Street railroads, § 131*—when evidence sufficient to show compliance with fender ordinance. In an action against a street railroad to recover for the death of a pedestrian, evidence examined and held to show defendant’s compliance with the ordinance requiring fenders.


author: Mr. Justice Baker Mr. Justice Holdom

text:
    Jesse Wilcox, Administrator, Defendant in Error, v. International Harvester Company of America, Plaintiff in Error.
    Gen. No. 21,725.
    1. Master and servant, § 701

      —when evidence sufficient to support findings in action under Occupational Diseases Act. In an action under the Occupational Diseases Act (J. & A. jf 5433) to recover for the injury to one employed as a compositor, alleged to have been caused by an occupational disease, evidence examined and held sufficient to support the jury’s finding that lead poisoning is an incident to the work of a compositor; that plaintiff suffered from lead poisoning; that the disease was contracted in defendant’s shop, and was contracted because of the wilful violation of the Occupational Diseases Act by defendant; that the disease continued for two years and finally caused plaintiff’s death.
    2. Abatement and revival, § 2*—what actions within Survival Act. The provision of the Survival Act of 1872 (J. & A. IT 172), that “actions to recover damages for an injury to the person” shall survive the death of the person injured, applies only to cases where the injured person dies from some cause other than his injuries, and if death result from his injuries, the action must be under the Injuries Act (J. & A. jf 6184).
    3. Abatement and revival, § 2*—when action for personal injury does not survive at common law. There is no basis at common law for the recovery of damages for the death of a human being, and a right of action for a personal injury dies with the person injured.
    4. Abatement and revival, § 2

      —when right of action under Occupational Diseases Act survives. The Survival Act (J. & A. if 172; Ill. Rev. St., ch. 3, sec. 123) applies to the right of action given’ by section 15 of the Occupational Diseases Act (J. & A. jf 5447) to one whose health has been injured, and where the plaintiff dies, pending the action, from the disease his administrator may be substituted as plaintiff.
    5. Death, § 14*—where separate rights of action arise under Occupational Diseases Act. Section 15 of the Occupational Diseases Act (J. & A. If 5447) gives separate rights of action to the person sustaining an injury to his health by a wrongful violation of the act, and to his widow, lineal heirs, dependent children and other dependents in case of his death from the disease.
    6. Judgment, § 238*—when entry nunc pro tunc proper. Where plaintiff in a cause of action which survives dies after a verdict is returned in his favor, but before judgment is entered, judgment may be entered nunc pro tunc as of the day the judgment was returned.
    7. Trial, § 256*—when poll of jury not waived by agreement for sealed verdict. An agreement for a sealed verdict does not carry with it by implication a waiver of the polling of the jury.
    8. Trial, § 256*—when objection for failure to poll jury waived. One who permits without objection the entry of an order for a sealed verdict, which contains a provision waiving the polling of the jury, cannot be heard to object on appeal that he was not permitted to poll the jury.
    9. Evidence, § 282*—when medical boohs admissible. While medical books are not admissible as substantive proof of the facts they set forth, where an expert testifies that his opinion is based on a medical book or report, such book or report may be read to contradict him, and this may be done where the statement that he relied on such book or report is elicited on cross-examination.
    10. Appeal and error, § 1489*—when admission of improper evidence not ground for reversal. Even though the court admits in evidence statements from medical books and reports which are not admissible, such admission is not ground for reversal where the judgment is supported by other evidence.
    Error- to the Circuit Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in this court at the October term, 1915.

      Holdom, J., dissenting.

      Affirmed.
    Opinion filed February 14, 1916.
    Rehearing denied February 28, 1916.
    David A. Orebaugh, for plaintiff in error; Edgar A. Bancroft, of counsel.
    Charles C. Spencer, for defendant in error.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

Mary V. Sheetz began work as a compositor in the printing shop of the defendant corporation in November, 1910, and worked there setting and distributing type for two years. She then became ill and was not afterwards able to work. She brought this action April 1, 1914, and it was tried in December of that year. A verdict was returned December 31st finding defendant guilty and assessing plaintiff’s damages at $10,000. Plaintiff died January 3, 1915. Her death was suggested and January 23rd Jesse Wilcox as her administrator was substituted as plaintiff. February 6th plaintiff remitted $2,000 and judgment for $8,000 damages was entered nunc pro tunc as of December 31, 1914.

Plaintiff’s right of action is based on the Occupational Diseases Act of 1911. (Laws of 1911, p. 334, J. & A. 5433.) The Act provides inter alia as follows:

‘' Sec. 1. That every employer of labor in this State, engaged in carrying on any work or process which may produce any illness or disease peculiar to the work or process carried on, or which subjects the employes to the danger of illness or disease incident to such work or process, to which employes are not ordinarily exposed in other lines of employment, shall, for the protection of all employes engaged in such work or process, adopt and provide reasonable and approved devices, means or methods for the prevention of such industrial or occupational diseases as are incident to such work or process.” (J. & A. ff 5433.)

“Sec. 15. For any injury to the health of any employe proximately caused by any-wilful violation of this Act or wilful failure to comply with any of its provisions, a right of action shall accrue to the. party whose health has been so injured, for any direct damages sustained thereby; and in case of the loss of life by reason of such wilful violation or wilful failure as aforesaid, a right of action shall accrue to the widow of such deceased person, his lineal heirs or adopted children, or to any other person or persons who were, before such loss of life, dependent for support upon such deceased person, for a like recovery of damages for the injury sustained by reason of such loss of life, not to exceed the sum of ten thousand dollars: Provided, that every such action for damages in case of death shall be commenced within one year after the death of such employe.” (J. & A. 5447.)

The fundamental question in the case is whether or not lead poisoning is an occupational disease incident or peculiar to the work of a compositor. If it is not, the act does not apply and there can be no recovery.

There is in the record much opinion evidence on the question presented, given by physicians, compositors, managers and foremen of printing offices and by an expert in occupational lead poisons, employed by the Federal Department of Labor and formerly employed by the State of Illinois in the same capacity. The testimony of the expert witnesses is conflicting and we shall not attempt to state even the substance of it. Dr. Alice Hamilton, the government expert above mentioned, called by the defendant, testified that in Bulletin 95, issued by the United States Government, it was stated that a most remarkable freedom of lead poisoning was found among the members of the London Society of Compositors, and she also testified that in the same report it was stated that in ten years there were 1,780 cases of lead poisoning in the printing trades in Vienna and its neighborhood.

A careful examination of the evidence has led the majority of the court to the conclusion that from it the jury might properly find that lead poisoning is an incident to the work of the compositor; that plaintiff suffered from lead poisoning from November, 1912, to the time of the trial; that the disease was contracted in the shop of the defendant, and was contracted because of the wilful violation of the Occupational Diseases Act by the defendant, and that the disease so contracted continued for two years and finally caused her death.

Section 15 of the Act (J. & A. 5447) gives a right of recovery to any person sustaining injury to his health by reason of a wilful violation of the act; and the question is presented whether in case of the death of the plaintiff from disease so contracted, the right of action for injury to his health survives. In this State, independently of the Occupational Diseases Act, where death results from the wrongful act, the cause of action does not survive. The Survival Act of 1872 amending section 123 of the Administration Act (J. & A. U 172), and providing that “actions to recover damages for an injury to the person, except slander and libel,” shall survive the death of the person injured, has reference only to cases where the injured person dies from some cause other than his injuries, and if death is the result of his injuries, then the action must be brought under the Injuries Act. Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424.

In this case the contention of defendant in error is that plaintiff’s death was caused by lead poisoning which resulted from the wilful violation of the Occupational Diseases Act by the defendant. A recovery can only be sustained on the theory that the right of action for the injury to plaintiff’s health, caused by the wilful violation by the defendant of the Occupational Diseases Act, survives, although such injury to her health caused her death.

By the common law the death of a human being, although wrongfully caused, affords no basis for recovery of damages, and a right of action for personal injury dies with the person injured. Therefore, in cases like this, the right of recovery depends entirely upon the statute law. It is by the Occupational Diseases Act and the Survival Act that we must test the objection that the administrator of the plaintiff cannot recover for the injury to her health because such injury caused her death. Section 15 of the Act gives a right of action to any person sustaining an injury to his health by reason of a wrongful violation of the statute, and also gives a right of action in case of loss of life to the widow, lineal heirs, dependent children, and others dependent on the deceased person. Section 9 of the Federal Employers’ Liability Act (36 Statutes, 143, sec. 291 provides): “That any right of action given by this Act to a person suffering injury shall survive to his or her personal .representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee; but in such cases there shall be only one recovery for the same injury.” Paragraph 1 of the Act provided for two distinct rights of action; one in the injured person for his personal loss and suffering where the injuries are not immediately fatal; and the other in his personal representative where the injuries immediately or ultimately result in death. Before the enactment of section 9 there was no provision for the survival of the right given to the injured person, and so under the operation of the rule of the common law it would die with him.

In St. Louis, I. M. & S. Ry. Co. v. Craft, 237 U. S. 648, 9 N. C. C. A. 754, it was held that the right of action given by the statute to the injured person, and the right of action given to his personal representative for the benefit of the widow, etc., of the injured person, were entirely separate and distinct, and that a recovery might be had on both rights of action. In the opinion it was said;

“Although originating in the same wrongful act or neglect, the two claims are quite distinct, no part of either being embraced in the other. One is for the wrong to the injured person and is confined to his personal loss and suffering before he died, while the other is for the wrong to the beneficiaries and is confined to their pecuniary loss through his death. One begins where the other ends, and a recovery upon both in the same action is not a double recovery for a single wrong, but a single recovery for, a double wrong. ’ ’

It is true that the Federal Employers’ Liability Act provided in terms that a right of action given by the act to a person suffering an injury should survive to his or her personal representative. The statute of 1872 provides that, “In addition to the actions which survive by common law, the following shall also survive : Actions of replevin, actions to recover damages for an injury to the person, except slander and libel. ’ ’ Illinois Rev. St., ch. 3, sec. 122 (J. & A. 172). We think that the Survival Act applies to the right of action of the party whose health has been injured, given by section 15 of the Occupational Diseases Act (J. & A. ft 5447); that the two causes of action given by that section are separate and distinct; that the right of action given to the injured person is in no way affected by the giving of another right of action to the widow of the injured person and others in case of his death. It follows from what has been said that in our opinion the court did not err in substituting the administrator of the plaintiff as the plaintiff.

As the right of action survived the court did not err in entering judgment nunc pro tunc as of the day the verdict was returned. Bunker v. Green, 48 Ill. 243.

The cause was submitted to the jury December 30th. On that day the counsel for the respective parties agreed that if a verdict was not returned by the usual time of adjournment for the day, the jury might seal the verdict and leave it with the clerk to be opened and read the next day. The court thereupon directed the clerk to enter an order that in case the jury agreed after the hour of adjournment, they should sign and seal the verdict, and that in such case they were discharged from further service and the polling of the jury was waived. The order that the jury be discharged and the polling of the jury waived was entered on the theory that the agreement for a sealed verdict carried with it by implication a waiver of the polling of the jury. This was erroneous, for the agreement for a sealed verdict carried with it no such implication. But if the defendant objected to the order, he should have made it known to the court. A party has no right to stand by and permit steps to be taken without objection, and if the result does not favor him then raise objections. Powell v. Feeley, 49 Ill. 143. Again, the conduct of the defendant was such that it cannot now be heard to object that it was not permitted to poll the jury. The time to make the objection was before the verdict was opened, and if this had been done the jurors might have been brought in and the verdict read in their presence; but the defendant made no objection to the opening and reading of the verdict until ten days afterwards.

The rule is well settled in this State that medical books are not admissible as substantive proof of the facts they set forth; but where an expert witness testifies that his opinion is based on a medical book or report, such book or report may be read to contradict him, and this may be done where the statement that the witness relied on such book or report is made on cross-examination. Pinney v. Cahill, 48 Mich. 584. Medicine is not considered one of the exact sciences; it is of that character of inductive sciences which are based on data which each successive year may correct and expand, so that what is considered a sound induction last year may be considered an unsound one this year; and we cannot tell whether what we read is not something that the author now rejects. In this case Dr. Alice Hamilton, the government expert, testified that her views had changed on some of the points since she wrote the report of the committee appointed by the Governor of Illinois to investigate as to the facts preparatory or preliminary to the passage of the Occupational Diseases Law, which was drafted by her; that since that time she had traveled in England, Belgium and Austria making investigations of lead industries and now knew more about certain industries than she did then; that she was not very proud of the report wherein she stated the different divisions in the printer’s trade that were most dangerous; that she would not put it in that way now; that she now knew a great deal more than she did in 1910.

The court improperly admitted certain statements from medical books and reports that were not admissible for the purpose of contradiction; but in view of all the evidence we do not think that for the admission of such evidence the judgment should be reversed. In the opinion of the majority of the court the record is free from reversible error, and the judgment is affirmed.

Affirmed.

Mr. Justice Holdom

dissenting. With some hesitation and much trepidation I dissent from the conclusions to which my brethren have come in the disposition of this case.

My mind is not convinced from the proofs in the record that the plaintiff’s physical troubles which, after verdict, culminated in her death, were attributable to “lead poisoning” or that “lead poisoning” is an occupational disease within the meaning of the “Occupational Disease Act” of 1911. Neither do I believe that the manner or method in which defendant conducted its composing room in which plaintiff worked as a compositor offended that act. It is my opinion from the evidence that plaintiff suffered from pernicions anemaeia and that such anemaeia was in no way traceable to “lead poisoning. ’’ There is much evidence in the record of a very conflicting nature as to “lead poisoning” being an “occupational disease,” as applied to compositors. To my mind there is no distinct preponderance of proof upholding such contention, but it seems to me that the conclusion at which a majority of the court have arrived is grounded on surmise and conjecture. There is no reliable evidence in the record which in my judgment warrants the conclusion that plaintiff was afflicted with “lead poisoning.” There is much testimony of a theoretical character that “lead, poisoning” is a disease contracted by compositors in the exercise of their calling, but most all of the testimony from witnesses who have practical knowledge and experience of the subject is strongly against such contention. I do not believe that it can be said to be proven by a clear preponderance of "the medical evidence found in the record that plaintiff did suffer from lead poisoning. To reach such a conclusion, it seems to me is to do so by a strong-handed method and not from the weight of the evidence. It is my judgment that no cause of action is established by the proofs.


author: Mr. Justice Baker

text:
    Kissel Motor Company, Appellant, v. Rudolph Docauer and Adolph Docauer, Appellees.
    Gen. No. 21,838.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed February 14, 1916.
    Statement of the Case.
    Action of replevin by Kissel Motor Company, a corporation, plaintiff, against Rudolph Docauer and Adolph Docauer, defendants. From a judgment for defendants, plaintiff appeals.
    The evidence showed that November 1,1912, defendants bought of the plaintiff an auto truck, and in part payment therefor gave twelve notes for $125 each, one thereof payable on or before the 6th day of each succeeding twelve months, and to secure said notes gave a chattel mortgage on the truck purchased. The defendants and their brother Jerry were partners in an auto express business. The first four notes falling due were paid, and the controversy is as to the note which fell due April 6th and the one which fell due June 6th. Jerry Docauer testified that he and Adolph called on Mr. Rix, the assistant manager of plaintiff in Chicago, about April 1st, and told him that they had some money coming from plaintiff and wanted a statement; that Rix said: “Never mind the April note; that he would furnish us a statement of all our credits, and if there was anything to be paid for these two April notes that we would pay the balance, and he agreed to it that he would send us our statement. ’ ’
    Rix died before the trial.
    The court gave for the defendants the following instruction :

      Abstract of the Decision.
    1. Witnesses, § 106

      —when evidence of conversation with deceased person admissible. Evidence of one not a party to a suit as to a conversation with an assistant manager of the corporation plaintiff who had died before the trial is admissible.
    2. Instructions, § 119*—when giving of instruction not founded on evidence improper. In an action of replevin, an instruction examined and held improper as not being founded on the evidence.
    3. ' Bills and notes, § 96*—when evidence insufficient to show valid agreement for extension of time of payment'. Evidence examined and held not to show a valid agreement for .the extension of the time for the payment of a note.
    4. Bills and notes, § 96*—what essential to extension of time for payment. An extension of the time for the payment of a note entered into before the note is due must be for a definite time.
    “The jury are further instructed that if they believe from the evidence that the defendants requested the plaintiff company manager to apply credits claimed by them to be due from the company toward the payment of the April note, and that such manager stated, in substance, that he would do so, and requested them not to pay any further attention to the April note until he rendered them a statement of such credits and that the statement of account was not thereafter rendered them, and that no demand or request was thereafter made upon the defendants for payment of such note, such facts will void any right which might otherwise accrue to the mortgagee company, plaintiff herein, to forfeit the mortgagors ’ interest in the property, as for a default of the mortgage terms for failure to pay said April note, until such time as the mortgagee company should render such statement and demand payment thereof.”
    Norman K. Anderson, for appellant.
    Francis A. McDonnell, for appellees; Gerald Barry of counsel.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

5. Replevin, § 156 —when order for return of mortgaged property not proper. In an action of replevin for property held under a chattel mortgage, where the evidence shows that at the time of the trial all the notes were due, that the condition of the mortgage was broken and plaintiff was entitled to possession of the mortgaged property, it is improper to 'order the return of the property.


text:
    Oliver W. Holmes et al., trading as Holmes, Pyott & Company, Appellees, v. David Suffrin, Appellant.
    Gen. No. 21,844.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 14, 1916.
    Rehearing denied February 28, 1916.
    Statement of the Case.
    Action by Oliver W. Holmes, James M. Pyott and David A. Pyott, trading as Holmes, Pyott & Company, a copartnership, plaintiffs, against David Suffrin, defendant. From a judgment for plaintiffs for $1,414.47, defendant appeals.
    The evidence showed that defendant was the owner of a building in Chicago and June 7, 1911, contracted with the United Construction Company for the remodeling and improvement of his building. The Construction Company June 8th made a contract with plaintiffs to furnish and erect the structural and ornamental iron and steel work required in such improvement for the sum of $2,189. The contract between defendant and the Construction Company included a waiver of the right to a mechanic’s lien, but this was not known to the plaintiffs until after the controversy out of which this suit grew had arisen. The Construction Company failed to pay plaintiffs the amount due them under the contract as the same became due. The contention of plaintiffs is that defendant promised, in case the plaintiffs would proceed with and complete the work they had undertaken to pay them the amount due and to become due, and that this was a direct and original promise and not within the Statute of Frauds; that the promise to pay the plaintiffs was. based on a sufficient consideration and therefore was original so far as defendant was concerned.
    Abstract of the Decision.
    1. Contracts, § 385

      —when evidence sufficient to show promise to pay. In an action by a subcontractor against the owner of the property, evidence examined and held sufficient to warrant a finding that defendant had promised to pay the amount due and to become due under the subcontract.
    2. Frauds, Statute of, § 12*—when manner in which account charged evidence of original promise. In an action by a subcontractor against the owner of the property to recover the amount due for work done by plaintiff, where it is claimed that the work was done under a promise- of defendant to pay, evidence that the account was charged on plaintiff’s books, to the principal contractor, while strong evidence, when unexplained, to show that the credit was given to the latter, is not conclusive of the fact.

      That the promise was made was testified to by Netchin, Holmes, Pyott, Anthony, Forcey and Shober, and denied by Suffrin.
    Goldzier, Rodgers & Froehlich, for appellant; Edmund W. Froehlich, of counsel.
    Harris F. Williams, for appellees; George F. Ort, of counsel.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

3. Frauds, Statute of, § 2 —when debtor not released by oral promise. A valid oral promise may be made with regard to the debt of a third person without releasing the original debtor.

4. Frauds, Statute of, § 126*—when evidence sufficient to show promise to be original. In an action by a subcontractor against the owner of the property to recover on a promise to pay for the work done under the contract, evidence examined and held sufficient to warrant a finding that the promise was direct and original and not within the Statute of Frauds.


text:
    Pauline Ehrhardt, Appellee, v. George M. Ehrhardt, Appellant.
    Gen. No. 21,856.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed.
    Opinion filed February 14, 1916.
    Statement of the Case.
    Pauline Ehrhardt filed her bill for divorce against George M. Ehrhardt and he filed a cross-bill against her. June 25, 1914, both bill and cross-bill were dismissed for want of equity, and the same day an order was entered that the defendant pay to complainant $108 on account of her solicitor’s fees in the case. An order was entered commanding defendant to show cause why he should not be attached for contempt in. failing to pay complainant $108 solicitor’s fees, and on hearing of the rule April 12, 1915, defendant was adjudged guilty of contempt and an order entered that he be attached and confined in the county jail until he pay such solicitor’s fees, but not exceeding six months.
    From that order this appeal is prosecuted by the defendant.

      Abstract of the Decision.
    Divobce, § 135

      —when order to pay solicitor’s fees improper. Where a wife’s bill for divorce is dismissed for want of equity, the court has no authority to order defendant to pay complainant solicitor’s fees, and a commitment for contempt for failure to pay such fee will not be allowed to stand.
    William B. Berger and Alvin E. Stein, for appellant.
    No appearance for appellee.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Max Stricker, Appellee, v. William M. Umbdenstock, Appellant.
    Gen. No. 21,962.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in this court at the October term, 1915.
    Appeal dismissed.
    Opinion filed February 14, 1916.
    Statement of the Case.
    Trespass on the case by Max Stricker, plaintiff, against William M. Umbdenstock, defendant.
    Judgment was rendered for plaintiff March 22, 1915. The time for filing the appeal bond was by orders properly entered extended “to and including June 1, 1915.” The bond was not filed until June 2nd.
    Furber & Wakelee, for appellant.
    Adler & Lederer, for appellee.

      Abstract of the Decision.
    1. Appeal and ebbor, § 671

      —when extension of time for filing bond not warranted. Where the time within which an appeal bond is to be filed is fixed by statute, the requirement is mandatory and jurisdictional, and the court from which the appeal is taken cannot extend the time.
    2. Appeal and error, § 671*—when time for filing appeal bond may be extended. Where a statute requires the court allowing an appeal to fix the time for filing the appeal bond in its order allowing the appeal, the court may, before the expiration of the time so fixed, extend the time for filing.
    3. Appeal and ebrob, § 1112*—when motion to dismiss for failure to file bond unnecessary. Where an appeal bond is not filed in the time fixed by the court by an extension or otherwise, under a statute requiring the court to fix the time of filing, the appeal must be dismissed and no motion is necessary, the requirement being mandatory and jurisdictional

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

   Mr. Justice Baker

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    Crystal Spring Percheron Horse & Cattle Company and M. C. Blanchett, Plaintiffs in Error, v. Fred Becklenberg, Defendant in Error.
    Gen. No. 21,786.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed February 14, 1916.
    Statement of the Case.
    Action by Crystal Spring Percheron Horse & Cattle Company,' a corporation, and M. C. Blanchett, plaintiffs, against Fred Becklenberg, defendant.
    To reverse a judgment of nil capiat entered on a verdict instructed by the trial judge, on the motion of defendant, at the conclusion of so much of plaintiffs ’ case as the trial judge admitted in proof, plaintiffs prosecute this writ of error.
    The cause of action rests in a contract between the parties for the exchange of certain properties in Chicago and North Dakota. Plaintiffs seek to recover damages for breach of the contract by defendant, by terms of which contract defendant was to convey a flat building which he claimed to own in Chicago to plaintiffs, and as compensation therefor plaintiffs were to convey to defendant certain ranch property in North Dakota with cattle, farm machinery, etc., thereon.
    Plaintiffs and defendant, within the time as extended for the performance of the contract and on November 6, 1913, furnished each other with abstracts of title to their respective properties. The abstract furnished by defendant showed title in him November 4, 1913, to the Chicago property which he had agreed by the contract to convey to plaintiffs, subject to certain incumbrances. Plaintiffs likewise tendered deeds, etc., running to defendant, of their property to the holder of the contract in escrow at his office in Chicago, that being the place appointed in the contract for. the passing of the papers and the completion of the transaction. What plaintiffs did in this regard they contend constituted a performance by them of their contract obligations so far as the attitude and conduct of defendant made performance possible.
    On November 22, 1913, defendant conveyed to one Prank C. Rothje by warranty deed the property which he had contracted to convey to plaintiffs, which deed was thereafter and on November 24, 1913, filed for record and duly recorded in the recorder’s office of Cook county. Thereupon plaintiffs, without any other demand being made, commenced this action for damages claimed to have been sustained by them on account of defendant’s breaching his contract with them, upon the theory that as defendant had put it out of his power by the conveyance to Rothje to carry out his part of the contract, the law gave them a right of immediate action for damages and absolved them from further performance of the contract (which performance, but for defendant’s dereliction, would have been incumbent upon them). On the theory that plaintiffs were not absolved from doing all those things that the contract provided they should do, notwithstanding defendant had by his deed to Bothje put it out of his power to convey to them the Chicago property as contracted, the trial judge rejected, on the objections of defendant, all the material evidence offered by plaintiffs to establish their claim for damages.
    Abstract of the Decision.
    1. Contracts, § 272

      —what sufficient to constitute rescission. Where one of the parties to a contract for the exchange of realty conveys the property which he had contracted to exchange to a third person, such conveyance may be treated by the other party as a rescission, although the latter has not yet performed all the things which it would have been required to perform, had such conveyance not been made.
    2. Contracts, § 272*—when bringing of action sufficient to show contract treated as rescinded. Where one of the parties to a contract for the exchange of realty brings an action against the other to recover damages for a breach of the contract after a conveyance by such other to a third person of the property he had agreed to exchange, the bringing of such is equivalent to treating the contract as rescinded.
    3. Damages, § 65*—what proper measure on breach of contract to exchange realty. In an action to recover damages for breach of a contract to exchange realty, the measure of damages is the difference between the value of the property agreed to be conveyed by plaintiff to defendant and that which defendant agreed to convey to plaintiff.
    Brundage, Landon & Holt, for plaintiffs in error.
    Edward H. Morris and Sonnenschein, Berkson & Fishell, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Janet S. Winters, Appellee, v. Aurora, Elgin & Chicago Railways Company, Appellant.
    Gen. No. 21,829.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed with finding of fact.
    Opinion filed February 14, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Janet S. Winters, plaintiff, against Aurora, Elgin & Chicago Railways Company, defendant, to recover for personal injuries. From a judgment for plaintiff for $7,500, defendant appeals.
    The declaration, consisting of. one count, charged as negligence defendant’s failure to remoye a certain door or covering from over the steps of the car on which plaintiff was a passenger, and carelessly, negligently and improperly permitting the door or covering to remain upon the platform of said car and upon and over the steps thereof, rendering the same dangerous and hazardous as to the plaintiff, and carelessly and negligently failing to notify and wain plaintiff as to the condition and position of said door or covering over said steps and the dangers incident thereto; that plaintiff, in consequence of such negligence, while in the exercise of ordinary care, and during the nighttime when it was dark, and while attempting to leave said car, under the direction of defendant’s servant, stepped from and off the door or covering of said steps, instead of stepping down to and upon the steps and from said steps down to and upon the ground, causing plaintiff to fall and to be precipitated a great distance from said car down to and upon the ground, injuring her, etc. The evidence showed that on the day of the accident to plaintiff she took defendant’s car at Bellwood with the intention of leaving it at Des Plaines avenue, Forest Park.
    It was not denied that defendant’s car platforms were equipped with flaps, which let down from the steps and were kept down while the cars were in motion. The evidence showed that at stations where defendant maintained elevated platforms, passengers got off the cars on a level, without the raising of the flaps from the steps; where station platforms were upon the ground the flaps were raised so that passengers alighted by walking down the steps, which ran downward to the station platform.
    It appeared that at the time of the accident the car had stopped at the Des Plaines avenue station and remained stationary until after the accident. Plaintiff, who was seated in the car, came out on the platform and took hold of a perpendicular rod with her left •hand and of another part of the car with her right hand. Plaintiff testified that it was dark and that she stepped off of the car expecting to step on a step leading from the car platform, but as there was no step there, she fell.
    Plaintiff testified also that it was sufficiently light so that she saw plainly that the vestibule door was open and knew the flap was down over the steps when she started to get off, and that she looked down for the express purpose of seeing where she was walking.
    She testified further that she knew that the first step down would be some little distance inside the sheathing of the car and kept that in mind. Also, that she knew the flap was down over thé steps when she started to get off.
    Plaintiff had many times traveled upon defendant’s car between Bellwood and Des Plaines avenue station, Forest Park, and was cognizant of the construction of the car platform and of the station platforms at both of these stations.
    There was evidence that she told two persons that she was pushed off the train. One of them, Dr. Pickard, produced a statement signed by plaintiff to that effect. . Plaintiff claims that the paper she signed was in blank at the time she signed it, but there was evidence against such claim.
    She also testified that it was dark upon, the platform at the time of the accident. Her sister-in-law, who was with her, testified that it was sufficiently light so that she could plainly see that the vestibule door was open.
    Several witnesses testified as to the abundance of light, both on the platform of the car and around Des Plaines avenue. In the testimony of some of the witnesses, lights were specifically mentioned as follows: About twenty-five feet from the station platform was the entrance archway of Forest Park, on which were seven clusters of 60-watt forty candle-power tungsten lamps with five lights in each cluster, which threw 1,400 candle-power of brilliant tungsten illumination directly onto defendant’s train, the vestibule door and the platform from which plaintiff alighted; lights in the tower of Forest Park, about fifteen feet removed from the station platform, and an arc lamp on a pole thirty-five feet high just inside the entrance to Forest Park, with a lighting power 'of 3,500 candles; two street electric lights within fifty and one hundred feet of defendant’s track; four clusters of incandescent lights of five lights each on the crossing gates, and a cluster of lights on the watchman’s shanty immediately west of Des Plaines avenue; a cluster of lights on a pole on the east side of Des Plaines avenue; also tungsten and gas arcs on the front porch of a fruit store just south of defendant’s tracks; all of which were burning at the time of the accident.
    Plaintiff testified that she was carried after the accident. Other witnesses testified that she walked. Plaintiff also attributed the ailments from which she was suffering to injuries received as the result of her fall from defendant’s car, while there was evidence that all of the important physical ailments of which she complained existed prior to her fall from defendant’s car. She also testified that after the accident she was an invalid and unable to do her own work. Disinterested witnesses testified to the contrary.
    Abstract of the Decision.
    1. Cabbiebs, § 476

      —when evidence sufficient to show contributory negligence. In an action by a passenger to recover for injuries alleged to have been caused by the carrier’s negligence in failing to lift the platform covering the steps of the car, whereby plaintiff fell and was injured in alighting, evidence examined and held to show a lack of prudence on plaintiff’s part constituting contributory negligence.
    2. Appeal and ebrob, § 1802

      —when reversal without remand authorized. Under" section 120 of the Practice Act (J. & A. j[ 8657), the Appellate Court has power, on appeal from the judgment of the trial court, to reverse a judgment without remanding the cause where the weight of the evidence does not justify the verdict.
    David J. Peffers, Robert J. Wing and Franklin B. Hussey, for appellant.
    James L. Bynum, for appellee; Bernhardt Frank, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.


author: Mb. Justice Holdom

text:
    Henry Meinshausen et al., Appellees, v. Louis C. Alter et al., on appeal of Walter D. Braden, Appellant.
    Gen. No. 21,860.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. .Tesse A. Baldwin, Judge, presiding. Heard in this court at the October term,. 1915.
    Affirmed.
    Opinion filed February 14, 1916.
    Rehearing denied February 28, 1916.
    Statement of the Case.
    Bill by Henry Meinshausen and others, complainants, against Louis C. Alter, Walter D. Braden and others, defendants, to foreclose a trust deed. From a decree of foreclosure ordering the sale of the property to satisfy the amount found due by the master’s report, defendant Braden appeals.
    It appeared the trust deed foreclosed was given to secure the principal sum of $1,500 and interest, payable half yearly, the interest being evidenced by coupon interest notes' of $45 each. Two of these notes matured and were not paid at the time the bill -was filed. The mortgaged property had before this time been sold for taxes and the certificate of sale was outstanding, uncanceled and unreleased, at the time the bill was filed. The trust deed contained a covenant authorizing the legal holder of the indebtedness to declare due the whole amount unpaid upon default in payment of any interest coupon for thirty days, or in the event of failure to pay taxes on the mortgaged premises when due. In accordance with these provisions, complainants declared the whole sum due by reason of the nonpayment of the two interest coupons and the nonpayment of taxes and the sale of the mortgaged premises by reason of such nonpayment."
    Defendant Braden confessed and endeavored by his answer to avoid the legal- consequences of these facts, lie contended that his agent paid these interest coupons at the place where they were payable; that the person to whom the interest was paid delivered to appellant’s agent two coupon interest notes for $45 each, duly canceled. It transpired that these coupon interest notes did not relate to the mortgaged property, but to other property near by, which was mortgaged by another trust deed to the same trustee and was of like tenor, date and amount as that secured by the trust deed foreclosed. There were many other such trust deeds in many essential particulars the same as that found in the bill in the record, but covering other, though contiguous, property. It appeared that there was some negligence on the part of the agent of defendant paying in two coupons due under a trust deed covering property other than that secured by the trust deed in this record, although complainants denied this.
    Abstract of the Decision.
    1. Principal and agent, § 149

      —when principal hound hy negligence of agent. Negligence of an agent in accepting interest coupons from another mortgage than that of the principal on which he had been directed to pay the interest is negligence of the principal.
    2. Mortgages, § 599*—when ownership of certificate of sale no defense on foreclosure for failure to pay taxes. The ownership by the mortgagor of the certificate of sale of the mortgaged property which had been sold for nonpayment of taxes is no defense on the foreclosure of the mortgage under a provision therein authorizing the legal holder of the indebtedness to declare due the whole amount unpaid in the event of failure to pay taxes on the mortgaged premises when due.
    Joseph Rosenberg, for appellant.
    Alexander H. Heyman, for appellees.

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

   Mb. Justice Holdom

delivered the opinion of the court.


text:
    Hilda M. Anderson, Appellant, v. Richard Malm, Appellee.
    Gen. No. 21,893.
    1. Libel and slander, § 145

      —when evidence not sufficient to show accusation of fornication. Evidence in an action of slander examined and held not sufficient to show that defendant had accused plaintiff of fornication.
    2. Libel and slander, § 56*—when communication privileged. Words spoken by the pastor of a church while matters concerning a member’s conduct are under inquiry at a regular meeting of the congregation are privileged and not actionable in the absence of express malice, when spoken by the pastor as pastor and presiding officer of the meeting.
    3. Libel and slander, § 145*—when evidence insufficient to show slander. In an action of slander, evidence held to show that the utterance complained of was spoken by defendant as pastor of a congregation and presiding officer of a meeting of the congregation at which matters concerning plaintiff’s conduct were under inquiry, and that they were spoken in lieu of defendant’s duty.
    4. Libel and slander, § 160*—-when questions of privileged communication and malice for court. In an action of slander, condition of proofs at close of plaintiff’s case held to be such as to render the questions of privileged communication and malice for the determination of the court.
    5. Libel and slander,-—when direction of verdict proper. In an action of slander, evidence examined and held to warrant the directing of a verdict for defendant.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 14, 1916.
    James J. Leahy, for appellant; Albert O. Olson, of counsel.
    Victor Elting and Channing L. Sentz, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is an action of slander instituted by plaintiff, a member of the First Scandinavian Church of Winnetka in Cook county, and a manicurist and hairdresser by occupation, against the defendant, the pastor of the church. Plaintiff, at the time the words complained about were uttered, was in process of being disciplined for certain alleged misconduct on her part in her relationship as a member of the church, and the question of expelling plaintiff was before a meeting of the congregation for discussion. Defendant as pastor was in charge of the meeting. The conduct of plaintiff as á creator of disturbances was discussed at the meeting. It is alleged that defendant during the meeting requested plaintiff to ask forgiveness, and plaintiff avers that what defendant said and did at that meeting amounted to charging her with being guilty of fornication. The talks at the meeting by the defendant and the church members were in the Swedish language. The culpable words spoken by defendant in Swedish are in the declaration averred to be equivalent to the following words in the English language: “Hilda Anderson is to ask for forgiveness. It is not necessary for us to talk about that” (meaning the charge for which plaintiff should ask forgiveness). “I can read it in God’s word.” Thereupon defendant turned to the 5th chapter of the First Epistle of St. Paul to the Corinthians (a chapter found in the New Testament division of the King James’ revision of the Holy Bible), and read therefrom as follows:

“It is reported commonly that there is fornication among you, and such fornication as is not so much as named among the Gentiles, that one should have his father’s wife.

“2. And ye are puffed up, and have not rather mourned, that he that hath done this deed might be taken away from among you.

“3. For I verily, as absent in body, but present in spirit, have judged already, as though I were present, concerning him that hath so done this deed,

“4. In the name of onr Lord Jesns Christ, when ye are gathered together, and my spirit, with the power of our Lord Jesus Christ.

“5. To deliver such an one unto Satan for the destruction of the flesh, that the spirit may be saved in the day of the Lord Jesus.

“6. Your glorying is not good. Know ye not that a little leaven leaventh the whole lump?

“7. Purge out therefore the old leaven, that ye may be a new lump, as ye are unleavened. For even Christ our passover is sacrificed for us:

“8. Therefore let us keep the feast, not with old leaven, neither with the leaven of malice and wickedness ; but with the unleavened bread of sincerity and truth.

“9. I wrote unto you in an epistle not to company with fornicators:

“10. Yet not altogether with the fornicators of this world, or with the covetous, or extortioners, or with idolaters; for then must ye needs go out of the world.

‘ ‘ 11. But I have written unto you not to keep company, if any man that is called a brother be a fornicator, or covetous, or an idolater, or a railer, or a drunkard, or an extortioner; with such an one no not to eat.

“12. For what have I to do to judge them also that are without? do not ye judge them that are within?

“13. But them that are without Cod judgeth. Therefore put away from among yourselves that wicked person.”

Plaintiff says that by the reading of this chapter defendant intended to charge her with being guilty of fornication, to her damage $10,000. Defendant pleaded ■ the general issue and the One-Year Statute of Limitations, to which pleas a similiter and replication were filed.

At the conclusion of plaintiff’s proofs the court, on motion of defendant, instructed a verdict in his favor and plaintiff appeals.

From plaintiff’s testimony we gather that she has a fertile imagination which leads her to erroneously construe the language and actions of her pastor and some of the officers of the church and members of its congregation. Certainly, after a most careful reading and weighing of her testimony and her letters produced on cross-examination, we are unable to conclude that any serious or slanderous charges were made against her by defendant, notwithstanding we may be impressed with the fact that plaintiff herself may honestly, though misguidedly, believe that-the conclusions she has drawn from her pastor’s words and actions are correct. She seems to have been an active church worker in good standing and repute with her pastor and fellow-members until the occurrence of the events which resulted in this action and another which she has brought against her pastor and one Cus Nelson, a trustee of the church, for "conniving” together, as she says, to oust her from membership in the church. At a regular meeting of the church members of either the 10th or 17th of February, 1912, the exact date being in some doubt from plaintiff’s proof, and at which meeting she was expelled as a member of the church, no word was said, as appears from the averments of the declaration or the testimony of plaintiff, which constitute actionable slander. Plaintiff on cross-examination testified that the only reason she had to think that defendant slandered her was his reading of the chapter from the "Corinthians” set out in kaec verba in this opinion. It would seem to us that the purpose of defendant’s reading of this chapter was to convey to the members present the fact that there was biblical authority for putting a member out of the church. The eleventh verse enumerates the offenders with whom Christians should not associate, and from which it may naturally be inferred that if any such there be in the church, they should be put out, not retained to corrupt by their baneful influence the other members.- These are the words of the eleventh verse: "But now I have written unto you not to keep company, if any man that is called a brother be a fornicator, or covetous, or an idolater, or a railer, or a drunkard, or an extortioner; with such an one no not to eat. ’ ’ These are the words of St. Paul to the Corinthians— a Saint of great influence in all the Christian churches, regardless of denominational belief, and an unimpeachable authority throughout Christendom. Plaintiff certainly was not justified in concluding that defendant intended, by the reading of chapter 5 of the First Epistle of St. Paul to the Corinthians, or by any word alleged to have been uttered by him on that occasion, to charge her with being a “fornicator.” No word alleged to have been spoken by him on that occasion is susceptible of any such interpretation. We judge from plaintiff’s testimony and her letters in evidence that if she was guilty of any of the enumerated offenses, it was not the major one of “fornication,” bui the minor one of being a “railer;” but even such a conclusion would not be warranted from the proofs found in the record.

It is contended that the words spoken on the occasion on which they were uttered constituted a privileged communication, and that in order for plaintiff to recover she must prove that express malice incited their utterance. We think that the matters concerning plaintiff were under inquiry at a regular meeting of the congregation, and that the words there spoken by the defendant as the pastor of the church and as presiding officer of the meeting were in the line of his duty and were privileged and not actionable unless the ingredient of express malice entered into them. As to the presence of malice, the record is silent. The occasion will not justify any inference of malice—not even the slight malice argued by counsel for plaintiff as being sufficiently present to impel the learned trial judge to submit the cause to the jury. In the condition of the proofs at the conclusion of plaintiff’s case the questions of privileged communication and malice were questions of law for the judgment of the court and not of fact for the determination of the jury. The action of the learned trial judge in instructing a verdict for defendant was right.

The meeting at which defendant is alleged to have uttered the slanderous words complained about was one of the regular meetings of the church members, and the matters discussed at that meeting related to the government of the church and the discipline of the plaintiff member, at which meeting the defendant, as pastor, was the regular presiding officer, and what he said and did there were within the line of his duties; therefore the words uttered were clearly privileged. The question of the discipline of plaintiff was properly before the meeting, and defendant, as the pastor of the church, had the right to say the things he did about and concerning plaintiff if he believed in their truth and said them from a sense of duty in order to aid the members of the church in determining whether plaintiff should be retained as a member or dismissed. Everett v. DeLong, 144 Ill. App. 496.

We think that the text in Newell on Slander, sec. 567 (3rd Ed.) is applicable to the facts in this record, where the author lays down the following rule:

“If, however, the occasion is one of qualified privilege only, the' burden is cast upon the plaintiff of proving actual malice on the part of the defendant, and ■if he gives no such evidence, it is the duty of the court to nonsuit him or to direct a verdict for the defendant.” McDavitt v. Boyer, 169 Ill. 475.

We think the declaration is obnoxious to a demurrer, for the words spoken and the occasion of their utterance, which fully appear in the declaration, do not constitute actionable slander.

The judgment of the Circuit Court being without error, is affirmed.

Affirmed.


text:
    George J. Sayer, Appellee, v. Andrew J. O’Connell, Appellant.
    Gen. No. 21,928.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 14, 1916.
    Statement of the Case.
    Action by George J. Sayer, plaintiff, against Andrew J. O’Connell, defendant, to recover rent.
    The Municipal Court entered a judgment by confession for rent and attorney’s fees, under a power contained in a lease .set forth in the statement of claim, in favor of plaintiff and against defendant for the sum of $1,181. Defendant afterwards made a motion to vacate the judgment on the single contention and claim that the court had no jurisdiction to enter it. No affidavits were filed in support of this motion and no hi aim made of meritorious def ense to the amount of the judgment or any part of it.
    Defendant grounded his motion upon the fact that in the statement of claim it is recited that the lease containing the power- of attorney authorizing the confession of judgment was lost or mislaid. It appeared by an averment in the statement of claim that a sworn copy was filed in its place and this fact was not denied by defendant. It was further set forth in the statement of claim that the copy of the lease attached to such statement had been admitted by defendant in another action between the same parties to be an exact duplicate of the original lease; and it was also admitted by defendant that the original lease was executed by him. Plaintiff also averred in his statement of claim that the said lease had never been assigned or transferred to any other person. The trial judge denied the motion to vacate, and defendant appeals.
    Abstract of the Decision.
    1. JUDGMENT, § 11°~when validity preswnied. On appeal, where the evidence shows that the judgment appealed from was entered in open court, all presumptions in favor of its validity must be indulged.
    2. JUnISDIcTIoN, § 38~-when not affected by loss of instrument in suit. A court is not without jurisdiction to render a judgment for rent because the original lease is lost or mislaid where a sworn copy is introduced, especially where such copy is admitted by defendant to be a true copy.
    Fulton, Garey & Deutschman and D. T. Alexander, for appellant.
    Stein, Mayer & Stein, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    William Rauen, Appellee, v. Andrew Benson, Appellant.
    Gen. No. 21,967.
    Municipal Court of Chicago, § 13-wlten statement of claim insufficient. A statement of claim in an action of the first class ia the Municipal Court of Chicago, the material avermeats ot which are that "plaintiff's claim is for the value of goods appropriated by defendants of the kind and value as follows," setting out there-. after a list of certain personal property, is insufficient in that it does not state a cause of action coguizable by the courts under settled rules of procedure.
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed February 14, 1916.
    Rehearing denied February 28, 1916.
    Bentley, Burling & Swan, for appellant.
    George Remus, for appellee,

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

   Mr. Justice Holdom

delivered the opinion of the court.

Appellant brings the statutory record in this case to this court for review. Appellee has failed to appear or favor us with brief or argument.

Judgment was rendered upon the finding of the court in favor of appellee against appellant for $663, and appellant says that the amended statement of claim under which the cause went to trial does not state a cause of action. This case is one of the “first class” under the Municipal Court Act and is a “contract claim.”

The material averments of the statement of claim are that “plaintiff’s claim is for the value of goods appropriated by defendants of the kind and value as follows”—setting out a list of certain personal property alleged to be of the aggregate value of $1,744.60. This is not the statement of a claim resting either in contract or tort. No contractual relation is stated to exist between the parties and nothing is alleged which in law constitutes a tort. If the statement of claim defectively set forth a cause of action, the finding and judgment of the court would be a sufficient curative. But where the statement found in the record fails, as does this, to state any cause of action, no subsequent proceeding, finding or judgment will aid it. On such a statement nought can be predicated, as it presents nothing upon which any presumption can be based. While the statement need not state a cause of action “with the particularity required at common law,” still it must state some cause of action cognizable by the courts under settled rules of procedure. Gilman v. Chicago Railways Co., 268 Ill. 305, and Walter Cabinet Co. v. Russell, 250 Ill. 416, amply sustain the foregoing legal conclusions.

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

Reversed and remanded.