author: Mr. Presiding Justice Holdom

text:
    Louis M. LaChappelle, Appellee, v. Allis-Chalmers Company, Appellant.
    Gen. No. 15,154.
    Master and servant—what tends to establish incompeteney of servant. The incompeteney of a servant to discharge the duties of his position is not established only by proof of his general reputation but by testimony of many instances of carelessness and negligent conduct in the performance of such duties.
    Baker, J., dissenting.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed on rehearing.
    Opinion filed October 6, 1910.
    Statement by the Court. This action is between master and servant for personal injuries suffered by the servant as the result of alleged negligent conduct on the part of two other servants of the same master. The trial in the Superior Court was a jury trial. A verdict was returned finding the defendant master guilty of the negligence charged and awarding the servant plaintiff damages to the amount of $15,000, upon which verdict the court entered a judgment after overruling defendant’s motions for a new trial and in arrest of judgment.

      Many errors are assigned upon the record, and the argument discusses these assignments under six different heads. In the conclusion to which we have arrived it will he unnecessary for us to pass upon more than the one crucial and controlling question, viz: Does the evidence sustain by its preponderating force the material averments of those counts of the declaration under which the cause was submitted to the jury, or is the verdict manifestly contrary to the weight of such evidence ?
    Plaintiff was working in a switching crew of defendant at the time of the accident; in its yards at West Allis, Wisconsin. There were two switching crews employed in these yards; one known as the Clancy crew, operating in conjunction with engine 1024, and the other, known as the Donnelly crew, operating in conjunction with engine 1087. William H. Snyder was the engineer on engine 1024, operating with the Clancy crew, and Albert M. Snyder, his brother, was engineer on engine 1087, operating with the Donnelly crew. Plaintiff at the time of the accident was working with the Clancy crew. There was one main track and a lead or stem track, from which branched out five tracks used for storing cars, and several other tracks leading to various buildings in which machinery was manufactured. West of the lead track and 374 feet south from where it joined the main track was a scale house, east of which were tracks on which cars were weighed. On February 13, 1906, a car had been “kicked” onto the scale track by engine 1024, whereupon Donnelly was ordered to take two cars of gravel from track 5, where they were stored, to some construction work which could be reached by going over a T back of the scale house. While plaintiff was engaged in opening a knuckle at the north end of the car on the scale track, Donnelly ordered the engineer on 1087 to back in against the scale car, not then knowing that plaintiff was opening the knuckle at the north end of it. After Donnelly gave a signal the engine came rapidly against the south end of the car on the scale track, knocking it to the north several feet, and plaintiff was thrown down and his arm crushed between the bumpers of his car and engine 1024.
    The declaration as originally drawn charged in one count that the injuries were wilfully and wantonly inflicted; in a second count that the coupler on engine 1024 was out of repair and defective; in a third count that defendant was liable under a Wisconsin statute; and in a fourth count charged that plaintiff had not sufficient experience to appreciate the dangers incident to switching service, and that defendant was negligent in failing to warn plaintiff of the dangers to be encountered. On- the trial all the foregoing mentioned counts were dismissed out of the case, which went to the jury on three additional counts, which are in substance to the following effect. In one of these counts the negligence on which plaintiff predicated the right to recover was that defendant “carelessly and negligently employed and kept in its employ a certain servant, to-wit, one Charles Donnelly, whom it knew, or by the exercise of reasonable care might have known, was a careless, negligent and incompetent servant, addipted to the excessive use of intoxicating liquors, and who was on, to-wit, the date aforesaid, strongly under the influence of intoxicating liquor, and that he, the said plaintiff, did not know of said Donnelly’s carelessness, negligence and excessive use of intoxicating liquor and had not equal means with said defendant of knowing such facts; and plaintiff alleges that the said Donnelly was the foreman in charge of said other crew so moving said engine and cars, and by reason of the carelessness and negligence of said defendant in keeping in its employ and placing in charge of said crew said Donnelly said other engine, tender and train of cars were carelessly backed on said track scale platform and against said car which he, the said plaintiff, was coupling as aforesaid, and he was thereby greatly hurt,” etc. In another of these three counts the negligence charged is that defendant “carelessly and negligently employed and kept in its employ a certain servant as engineer of said other train upon engine 1087, and this defendant then knew, or with the exercise of reasonable care might have known, that said engineer on said engine 1087 was and for a long time previous thereto had been a careless, negligent and incompetent servant, and that he, the said plaintiff, did not know that said engineer on said engine 1087 was a careless, incompetent and reckless servant, and had no equal means with said defendant of knowing said facts; the plaintiff alleges that the said engineer had charge of the said engine, and by reason of the carelessness and negligence of said defendant in keeping in its employ and placing in charge of said engine the aforesaid engineer, said other engine was carelessly operated on said track while the plaintiff was there necessarily engaged in the course of his duties and against the said cars in the plaintiff’s train, whereby while the plaintiff was coupling one of said cars as aforesaid, the said cars were suddenly started and he was thereby greatly hurt,” etc. And in the remaining count of the three, the negligence of defendant is alleged to consist in its employing and keeping employed the said Donnelly, who was incompetent, etc., because of the reasons set out and averred in the first of three counts under which the case went to the jury, with the additional averment, viz, that said Donnelly was of an excitable temperament, quarrelsome disposition, absent minded and careless in giving and ordering signals and in running switches; that on the day of the accident defendant negligently retained said Donnelly in its employ although it then and there knew, or ought to have known in the exercise of reasonable care, of Donnelly’s shortcomings as before set out, and that plaintiff had no such knowledge, and that by reason of Donnelly’s known unfitness, etc., the accident to plaintiff occurred, etc. The general issue constituted defendant’s pleading.
    Calhouh, Lyfokd & Sheeah, for appellant.
    Charles M. Foell and Earl J. Walker, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Whether plaintiff was injured in-consequence of the negligence of Donnelly or Snyder, singly or in combination, is not necessarily important to his right to recover unless defendant was negligent in respect to one or more of the delinquencies charged in the declaration, as it stood at the time the cause was submitted to the jury, as constituting such negligence. From the statement preceding this opinion it appears such negligence consisted in defendant’s employing and retaining in its employ two incompetent servants, one Donnelly, the head switchman of engine 1087 crew, and Alfred H. Snyder, its engineer, defendant having knowledge, either actual or imputable, of such incompetency. The law cast upon plaintiff the burden of sustaining, by a preponderance of the evidence, the charge of incompetency of one or the other or both of these two servants and that such incompetency resulted in the negligent act which proximately caused the injury complained of. We are of opinion that the evidence pro and con on these propositions fails to sustain the incompetency charged against either of these servants, or that the delinquencies charged against them were known to or should have been known to defendant in the exercise of due diligence, or that any of the acts or conduct proven against either'of them was of such a character as to fasten upon the master knowledge that either of them were incompetent servants, not to be trusted to discharge the. duties imposed upon them by their employment. On the contrary, it is our deliberate opinion that the evidence absolutely fails to sustain any of the charges of incompetency of either of these two servants. In weighing the testimony it must not be lost sight of that general reputation is of no controlling force unless supported by specific instances of conduct amounting to carelessness or negligence. So, therefore, the testimony of a witness as to general reputation, without citation of any concrete fact or instance of negligence or carelessness, is of little, if any, weight as evidence sustaining the charge either of negligence or carelessness. FTor would such reputation alone constitute notice to the master of incompetency, or prove that such servant was in fact incompetent. The rule is, we think, correctly stated in a foot note to State v. Broderick, 14 L. R. A. (N. S.), 704-5, as follows: “The incompetency of a servant to discharge the duties of his position is not established only by proof of his general reputation, but by testimony of many instances of carelessness and negligent conduct in the performance of such duties;” and that such rule is sustained by the doctrine of Consolidated Coal Co. v. Seniger, 179 Ill. 370.

It is fairly inferable from all the testimony in this record that the members of the two switching crews came daily in contact with each other in the discharge of their kindred duties, so that each could be said to have exerted some influence over the other in the performance of their several allied tasks and to acquire knowledge of the habits, conduct and reputation of each other.

At the time of the accident plaintiff had been in the service of defendant about ten months. For six or seven months of this time he worked as a switchman with the same crew in which he was working at the time he was injured. Donnelly and Alfred M. Snyder had been long in the service of defendant, Donnelly about fourteen years and Snyder about twenty-one years. There is little room for doubt that they were both capable men and thoroughly well able, through long years of practical experience, to discharge the duties of their several positions with efficiency. In no aspect of the evidence could they he considered incompetent to perform the duties intrusted to them. So that in the final analysis of the testimony, the question for solution is not their competency, but the fact, under the averments of the counts under which the case was submitted to the jury, whether Donnelly was, by reason- of his alleged intemperance, carelessness and recklessness in doing his work, an unsafe man to do the work he was employed to do, and whether Snyder was so “bull headed” and careless in the discharge of his duties as to be unfit to perform his work as an engineer, and whether negligence is imputable to defendant in retaining these men in its employ.

The record discloses that five witnesses sworn for plaintiff testified as to the reputation and conduct of Donnelly and particularly as to his alleged habit of intemperance, and twelve witnesses produced by defendant testified to the contrary and supported the contention of defendant that Donnelly was a temperate and sober man. Plaintiff’s witnesses were Godfrey, Dunn, Borges, Seeberg and Eyhus. If the testimony of these witnesses is worthy of credit, then the reputation of Donnelly for intemperance was so notorious that it must have been known to everyone with whom he was associated and could not have failed to be observed by any person who came in daily contact with him, as plaintiff undeniably did. If such be the fact, then plaintiff had knowledge thereof, and by continuing thereafter in the employment of defendant in the same department of work with Donnelly he assumed the risk attendant upon continuing to work with a man who had such notoriously intemperate habits as' Donnelly is claimed to have had, according to the testimony of these witnesses of plaintiff. It is contended that Donnelly was under the influence of liquor on the morning of the accident, and the witness Godfrey did so swear, but Godfrey was himself discharged from defendant’s employ for drunkenness. Dunn was a saloonkeeper, who had previously worked for defendant, and he swore that Donnelly was one of his regular patrons and was an intemperate man. Dunn himself had indulged in drink just before being sworn as a witness. Borges had worked for defendant about six or seven months three years before the accident, and was of the age of eighteen years when in defendant’s employ.' Seeberg worked for defendant and was discharged because of a dispute between himself and iSTyhaus. The witness ISTyhaus was in the employ of defendant only two months. A statement made by Prank Beggs, who witnessed the accident, was read in evidence by plaintiff as an impeachment of his testimony given from the witness stand, and among other things he stated that Donnelly had been drinking on the day of the accident. Arrayed against these witnesses are those of the defendant, twelve in number, who all give Donnelly, a good reputation for sobriety. Strange, however, is the fact that plaintiff himself did swear that during all of the ten months of his association with Donnelly, more or less close and continuing day after day for more than six months, he was unable by any act or conduct on his part to discover that Donnelly had been drinking or was an habitually intemperate man or addicted to the drinking habit. The witnesses of defendant who supported Donnelly’s reputation for sobriety were Sheridan, a lawyer, Westphal, whose tenant he was, a neighbor named Brett, a priest named Burdock, at whose church Donnelly and his family were attendants; Espenard, a former landlord, who had known him four years; Zophy, Doller, Beggs, Johnson and both the Snyders, who had worked with Donnelly for varying and long periods of time at the works of defendant. All of these witnesses were employes of defendant and had worked for defendant for much greater length of time than had any of the plaintiff’s witnesses, Alfred H. Snyder having been in such employment twenty-one years. It is quite apparent that defendant’s witnesses had a better opportunity of knowing intimately the character and reputation of Donnelly than any of plaintiff’s witnesses possibly could have, and consequently their testimony is worthy of greater credence as being the most trustworthy. As to Alfred M. Snyder’s competency to run switch engine 1087 there can hardly be divergent opinions after a careful reading of the evidence. He had been in defendant’s employ twenty-one years. He ran a stationary engine for fifteen years, then acted as fireman on his brother William’s engine for five months, and after that ran a switch engine in defendant’s yards. Such long continued employment in one establishment would denote to the unprejudiced mind character for stability. The transition from a stationary to a locomotive engineer would seem to have progressed along natural lines. It is matter of common knowledge that firemen bn locomotive engines graduate to and become locomotive engineers. In fact such engineers are mostly recruited from the ranks of firemen. We are unable to say from this testimony that there was anything, either in the training or. conduct of Alfred M. Snyder, which would justify his being stigma-, tized as an incompetent engineer or one that defendant could not employ and retain in its employment without being amenable to the charge of negligence in so doing. We therefore hold that defendant was not guilty of actionable negligence in employing or retaining in his employ either Donnelly or Alfred M. Snyder.

The judgment of the Superior Court is reversed.

Reversed.

Mr. Justice Baker dissents.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    Rose Hlaska, Defendant in Error, v. Sol. Klein, doing Business as Klein Brothers, Plaintiff in Error.
    Gen. No. 15,256.
    1. Master and servant—when doctrine of assumed risk precludes recovery. Even if a servant is ordered to perform work outside of her regular duties there is no liability on the part of the master for an injury resulting from a danger which was open and obvious to a person of ordinary intelligence.
    2. Master and servant—when doctrine of fellow servant precludes recovery. A master is not liable to a servant for an injury caused by another servant in the same common service unless the master is charged with negligently employing an incompetent servant.
    Action in case for personal injuries. Error to Municipal Court of Chicago; the Hon. Adelor Petit, Judge, presiding. Heard in this court at the March term, 1909.
    Reversed.
    Opinion filed October 6, 1910.
    F. J. Canty and R. J. Folonie, for plaintiff in error.
    Smejkal, Klenha & Ring, for defendant in error; H. B. Spurlock, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

Plaintiff recovered in an action for personal injuries a judgment against defendant for $250, rendered upon the verdict of a jury, and we are asked on this review to reverse that judgment.

Counsel for defendant narrow the issues, so far as this review is concerned, by saying in their brief: “We expressly waive errors, although serious, not going to the question of whether plaintiff has any case under the evidence. We ask reversal with a finding of facts.” Such waiver of errors presents the case for our review in about the following form, as to the facts which inferentially at least would, in view of such waiver, be regarded as established, viz: That plaintiff was employed by defendant in the dry goods department of his store as a “saleslady;” that on the morning of ¡November 24,-1906, a floor walker of defendant said to plaintiff, “¡Rose, you are a strong girl; come and help me move this table,” referring to a table 3 feet wide and 5 feet long, on which “goods” to the height of about 2 feet were piled; that plaintiff acquiesced in the request and assisted in moving the table about one foot and a half by dragging it, and that at this point the floor walker told her to lift the table, which she did, and in so doing felt a stinging sensation in her groin; that after proceeding about a foot and a half further, the floor walker, without notice, dropped his end of the table on the floor; that thereupon she had a sharp pain in the region of her groin, and on examining it the night of the same day she found a lump on the lower right side of her groin about half the size of a hen’s egg. She worked continuously thereafter for defendant until the thirteenth day of the following February, on which date she was examined by a physician, who pronounced the injury a rupture, and it is contended that such rupture is traceable to the moving of the table and was primarily caused through the negligence of defendant, through his floor walker, in suddenly and without warning dropping the end of the table carried by him and in ordering plaintiff to work outside of her em-i ployment.

In view of the fact that whatever risk was attendant upon the compliance of plaintiff with the request of the floor walker, to assist him in moving the table, was as open and obvious to plaintiff as to the floor walker, we regard as imma-i terial the question of whether or not such assistance was within the regular duties of plaintiff. There was no risk attendant upon moving the table except such as was appar-i ent to a person of merely ordinary and simple understanding. This is not an order case, where a servant is suddenly directed to do an act fraught with danger of which he was not cognizant or sufficiently informed. We do not regard plaintiff and the floor walker as being other than fellow servants of the same master in the moving of the table. They were engaged in a common object, each acting voluntarily in their individual effort to accomplish the result desired by both.

We regard this case on both fact and law as being within the rule announced in Gall v. Beckstein, 173 Ill. 187, and consequently controlling our decision. It is there held that the master is not liable to a servant for an injury caused by another servant in the same common service unless the master is chargeable with negligently employing an incompetent servant. The exception to the rule announced has no place in the instant case. Neither is the master liable to a servant for an injury received through the negligence of a foreman while acting as a colaborer with such servant, where the injury is not attributable to the exercise of the foreman’s authority as such foreman. The Gall case was one where the foreman and the laborer were engaged in lifting barrels of salt from a wagon, the injury resulting to the laborer from the negligent act of the assisting foreman, and it was held that in lifting the barrels the foreman and laborer were fellow servants, and that for the negligent conduct of the foreman in such operation the master was not liable.

The plaintiff has no right of action against defendant fori the injuries complained about, and the judgment of the Municipal Court is reversed.

Reversed.


text:
    William B. Sullivan et al., Defendants in Error, v. Louis F. Algrem et al., Plaintiffs in Error.
    Gen. No. 15,264.
    1. Evidence—of what judicial notice tahen. The courts of Illinois will take judicial cognizance of the fact that the Revised Statutes of the United States authorize the appointment of a deputy clerk for the Circuit Court of the United States.
    2. Judgments—when exemplification proper. A certificate signed in the name of the clerk of the court by his deputy is a compliance with the act of Congress regarding the authentication of records.
    3. Judgments—what essential to sustain, for costs. If a judgment in suit contains an item of costs referred to in the mandate of an appellate tribunal such mandate is an essential part of the judgment record relied upon for recovery.
    Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed October 6, 1910.
    Ossian Cameron and Claud D. Hall, for plaintiffs in error.
    Frederick A. Brown and William B. T. Ewen, Jr., for defendants in error; Thomas C. Hennings, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

This action is of the “fourth class,” brought in the Municipal Court of Chicago.

The statement of claim filed in that court is as follows: “Plaintiffs’ claim is for a judgment rendered against defendants and in favor of plaintiffs in the United States Circuit Court, Eastern Division of the Eastern Judicial District of Missouri for two hundred eighty-eight dollars and twenty-five cents ($288.25) and interest thereon, said cause being 5454.”

The cause was submitted to the trial judge without a jury and there was a finding in favor of plaintiffs and against defendants for the amount claimed and a judgment for $293.05 with costs was entered. Defendants prosecute this writ of error and ask that on a review of the record the judgment be reversed.

To support plaintifis’ claim there was introduced in evidence a transcript of the judgment of the United States Circuit Court for the Eastern' Division of the Eastern Judicial District of Missouri in a case between the same parties as in the case at bar. It is dated June 15, 1908, and certified July 30, 1908. This was received over the objection of defendants. The transcript sets forth an appeal to the United States Circuit Court of Appeals for the Eighth Circuit from an interlocutory decree made by the Circuit Court appointing a receiver, which decree the Court of Appeals reversed, and continues: “How therefore, in obedience to the mandate of said United States Circuit Court of Appeals, and in conformity with the opinion rendered by said Court * * be and it is hereby in all things set aside and vacated, * * and that the costs and expenses of the receivership proceeding in this court, except the allowances heretofore made, be taxed against the complainants.”

Appended to this and a part of the transcript is the following, after entitling the court and the cause:

“Ho. 5454. Abstract of costs unpaid by and taxed against complainants, pursuant to decree entered June 15, 1908. Clerk, allowance of appeal and costs of transcript to

U. S. Circuit Court of Appeals, Eighth Circuit. . $15.05 Costs of United States Circuit Court of Appeals,

Eighth Circuit (as certified in Mandate of said Court) . .:............................... 213.20

$288.25

Correct $288.25.

James E. Cray, Clerk,

By Irwine Mitchell, Deputy Clerk.”

The foregoing was certified in conformity to the Act of Congress relating to the authentication and exemplification of records. The attestation, however, of the clerk was by Irwine Mitchell, deputy. The opinion of the Circuit Court of Appeals reversing the interlocutory decree of the Circuit Court was received in evidence against the objection of defendants. The foregoing constituted all of. the evidence proffered by or received for plaintiffs. Defendants offered in evidence Rule Eo. 31 of the Rules of the United States Circuit Court of Appeals for the Eighth Circuit, and it was received without objection. Section 5 reads: “When costs are allowed in this Court it shall be the duty of the Clerk to insert the amount thereof in the body of the mandate, or other proper process sent to the court below, and annex to the same the bill of items taxed in detail.”

What function or purpose the opinion of the Circuit Court of Appeals served as evidence in the case, we are at a loss to discover. Its effect, however, being entirely fruitless as evidence for cither party, as it did not support any contention made in the case, it was harmless error to permit its admission.

It is urged that the certificates of the clerk being signed in the name of the clerk by his deputy was not a sufficient compliance with the Act of Congress regarding the authentication of records to entitle the transcript to be received in evidence. With this contention we are unable to agree. It will be assumed, in the absence of some evidence to the contrary, that the deputy signing his chief’s name did só with authority. The courts of Illinois will likewise take judicial cognizance of the fact that the Revised Statutes of the United States, 1907, supplement pp. 136-7, authorize the appointment of a deputy clerk for the Circuit Court of the United States in the Eastern District of Missouri. Without such statute the certification by deputy would be sufficient in this jurisdiction, for as said in Garden City Sand Co. v. Miller, 157 Ill. 225: “The deputy, though a deputy merely, is made the officer, and a certificate made by such deputy and signed as deputy will be presumed to have been made by reason of a vacancy or because of absence or inability of the officer.”

The real difficulty with this case is the absence .of the mandate of the Circuit Court of Appeals, in which it is said the item of $213.20 appears as costs taxed in that court, and the lack of any evidence of a judgment against plaintiffs for the cost in the Circuit Court of Appeals. We think Santa Clara Lumber Co. v. Prescott, 238 Ill. 625, is conclusive against plaintiffs, for, as there said, “the existence of the decree for costs must be determined by an inspection of the record alone.”

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

Reversed and remanded.


text:
    Delia Upton, Defendant in Error, v. Swedish American Hospital et al., Plaintiffs in Error.
    Gen. No. 15,274.
    1. Bonds—when action upon appeal bond not premature. An action upon an appeal bond is not premature if brought before the time for petitioning for a rehearing has expired and before the mandate has issued.
    2. Pleading—what dilatory defense. An objection that an action upon an appeal bond is prematurely brought is dilatory in character and to be availed of must be specially pleaded.
    3. Evidence—when witness qualified to testify to rental value. If a witness has had some experience with renting agents and some knowledge of rental values, he is competent, the weight to be given to his testimony being for the jury.
    4. Landlord and tenant—what damages recoverable for unlawful withholding. Damages occurring to premises during the period of their being unlawfully withheld may be allowed by the jury in an action upon an appeal bond.
    5. Landlord and tenant—what damages recoverable for unlawful withholding. In such an action the plaintiff is entitled to an award for the use of the premises according to the highest and best purpose for which they could have been used.
    Action of debt. Error to Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed October 6, 1910.

      O. C. Peterson, for plaintiffs in error.
    Gustav E. Beerdy, for defendant in error.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action of the “first class,” brought in the Municipal Court of Chicago on an appeal bond given in an action of forcible entry and detainer, tried on an appeal from a justice of the peace in the Circuit Court, on an appeal from a judgment of the Circuit Court in favor of plaintiff and against the defendant, Swedish American Hospital Association, to this court. The condition of the bond was not only to prosecute the appeal with effect, but in case of failure to do so, to “pay all rent now due and that may become due before the final termination of said suit, and all damages and loss which the plaintiff may sustain by reason of the withholding possession of the premises, and by reason of any injury done thereto during such withholding.”

The premises involved.are numbered 838 and 840 West Sixty-fourth street, Chicago.

A trial was had before the court, with a jury, resulting in a verdict and judgment for $1,675 against both defendants, being respectively the principal and surety upon the bond.

There is hut little real dispute as to the facts. Most of the contentions arise from the divergent views of counsel concerning the law controlling the cause.

Plaintiff'was the landlord who acquired title during the time the defendant hospital was occupying the premises, at the time the forcible entry and detainer suit was commenced, as the tenant of plaintiff, and plaintiff secured a judgment in the Circuit Court for possession of the premises, which was appealed by the Hospital to this court, in which the bond in question was given, and on that appeal this court affirmed the judgment of the Circuit Court for possession. That the Hospital withheld possession of the premises, without paying rent, from June 1, 1906, to February 28, 1907, is not contested. However, it is urged as grounds calling for reversal that the action was prematurely brought, that there were erroneous rulings of the court in the admission of evidence, errors in instructions to the jury, and that the verdict is manifestly contrary to the weight of the evidence.

Because at the time the action at bar was instituted the time for petitioning this court for a rehearing of the appeal cause had not expired, and the mandate of this court on its judgment of affirmance had not been issued or filed in the Circuit Court, the suit is said to be prematurely brought. We know of no statute, rule of court or judicial precedent, to justify any such contention. The judgments of this court are operative from the time of their entry until arrested either by the court itself in an appropriate order, or by a writ of certiorari issuing from the Supreme Court, or a reversal or modification of our judgments by the Supreme Court. Furthermore, such objection not constituting a bar to the action, is in the nature of a dilatory challenge, which in order to be effective must be availed of by plea in abate-' ment.' Hot having done so, and by pleading to the merits of the action, the objection, if ever available as a defense, is waived. MacKenzie v. MacKenzie, 141 Ill. App. 126; Porter v. City of Chicago, 116 Ill. 605.

It is insisted that plaintiff was incompetent to testify as to rental value of the premises because she did not qualify. While standing alone we would not accord much weight to plaintiff’s testimony as to rental value, still she was clearly competent to testify, she being the owner of the premises and having had some experience, though limited, with renting agents, and as a landlord. This we think sufficiently qualified her, prima facie at least, to testify as to rental value, leaving the weight to be accorded her testimony to the jury. The challenge of the witness Wallace as incompetent is captious and unreasonable. Wallace had eight years’ experience in renting property in Chicago, had been actively engaged in two leading renting and real estate agencies in Chicago, knew the premises in question, examined them and fixed by his testimony their rental value. He.was indisputably a most competent and well qualified witness on the subject of his testimony.

Taking into consideration the other elements of damage to the premises before the jury, proper to be considered by them in assessing the amount recoverable under the terms of the bond in suit, there was ample evidence to sustain the amount assessed by the jury in its verdict, upon which the court entered judgment. Without such additional element of damage the finding of the jury is sustainable on the theory that it is solely for rental value.

We find no reversible error in the giving of the instructions complained about. There was evidence before the jury of damage to the demised premises occurring during the time of the unlawful withholding of possession. Such being the fact, it was a proper element for consideration by the jury in assessing damages, but as above indicated, if it were not so defendant’s rights have not been injuriously affected by the attention of the jury being directed to such element of-damage. Plaintiff was entitled to recover the “reasonable value of the use and occupation of the premises for the highest and best purposes to which they could have been devoted,” as also “the use to which the premises could have been put, as well as that to which they were actually put.” Horton v. Cooley, 135 Mass. 589. The instruction states a fair element of reasonable value. Unlawfully withholding possession was a tortious act. For all such acts the law demands full compensation. As applied to a case of this character such full compensation justifies an award for the use of the premises so detained, according to the highest and best purposes for which they could have been used.

The whole record considered, it is apparent that the cause has been meritoriously decided without infringing any of defendants’ legal rights, and the judgment of the Municipal Oo3irt is affirmed.

Affirmed.


text:
    City of Chicago, Defendant in Error, v. Joseph Baker, Plaintiff in Error.
    Gen. No. 15,285.
    1. Municipal court—of what judicial notice taken. The Municipal Court by statute is authorized to take judicial notice of the ordinances of the city of Chicago.
    2. Ordinances—when conviction for lounging sustained. Held, that the evidence in this ease justified a conviction for lounging under the ordinances of the city of Chicago.
    Error to the Municipal Court of Chicago; the Hon. Michael E. Gieten, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed October 6, 1910.
    Charles E. Erbstein, for plaintiff in error.
    George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

Plaintiff in error was arrested under a complaint charging him with violating Section 1454 of the Revised Municipal Code of Chicago. He waived a trial by jury in writing and the trial judge on December 3, 1908, after hearing testimony of witnesses for the city and the defense, found plaintiff in error guilty of the offense charged and inflicted as punishment a fine of $100. Erom this judgment a writ of error was sued out from this court December 30, 1908, and on January 4, 1909, the same was filed in the Municipal Court. It is said that on December 31, 1908, another fine of $100 was inflicted upon plaintiff in error in the same case.

Erom the evidence of the prosecution it appears that on November 25, 1908, at about 6:50 o’clock in the morning, plaintiff in error, with two other men, also arrested, boarded a street car in front of the “Lake Shore” station with a number of passengers arriving from out of town; that plaintiff in error and his companions acted in such a suspicious manner as to arouse the belief of the street car conductor that they were “pickpockets.” The three men alighted from the car at State street. Returning to the “Lake Shore” station all three again boarded the car, this time getting off at Wentworth avenue. On notification by the car conductor of the presence of these three men to a policeman, that officer telephoned the situation to the “police station,” to which message four other officers responded, and these five policemen finding the three men at the “Lake Shore” station put them under arrest. The only excuse plaintiff in error and his two companions gave to the policemen and the judge before Avhom'they were tried was, that they were waiting for a Wentworth avenue car. Plaintiff in error and one of his companions, Meyer, said they Avere bartenders, the third man not giving his occupation, if any he had.

It is urged that the trial judge erred in not finding plaintiff in error not guilty and in entering the judgments of December 3, and 30, 1908, and it is argued that this court cannot take judicial notice of the ordinances of the city of Chicago.

By section 54 of the Municipal Court Act the Municipal Court is authorized to take judicial notice of the ordinances of the city of Chicago. The proceeding here is confined to a review of the record and actions of the trial court in order that Ave may determine whether the trial court proceeded regularly and without error prejudicially affecting the rights of plaintiff in error. In order to do so it logically IoUoavs that we must go to the same sources open to the trial judge, and on them and the record base our conclusions of regularity. The ordinance said to have been violated is mentioned by its section number in the complaint. The Municipal Court had the right and poAver to take judicial notice of the contents of that section. Rothing appearing to the contrary, we will assume it did so, and we will do likewise. So doing, Ave find the section of the ordinance in controversy sufficient to sustain, under the evidence, the charge made in the complaint against plaintiff in error. The conduct of plaintiff in error and his two companions, according to their own statement and account, was suspicious. They pretended to be waiting for a Wentworth avenue car, yet they were thrice found mingling in a suspicious manner with incoming passengers arriving in the city by train at the “Lake Shore” station, where they had assumedly disembarked. They were suspected of being pickpockets and were found “lounging” or “prowling about” a “railroad depot” and were unable “to give a reasonable excuse for being so found.” We think the evidence sufficient to sustain the finding and judgment against plaintiff in error. Experience abundantly demonstrates that the unwary stranger arriving within our gates needs protection against confidence men, pickpockets and other evil disposed persons, and the ordinance in question is calculated to afford such protection.

The- writ of error issued out of this court on December 30, 1908, does not bring before us for review any order entered by the trial court subsequent to that date.

There is no error warranting our interference with the judgment of the Municipal Court of December 30, 1908, and it is therefore affirmed.

Affirmed.


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    E. Milton Jones, Plaintiff in Error, v. University Research Extension, Defendant in Error.
    Gen. No. 15,294.
    1. Assumpsit—effect of account stated. If an account is stated the defendant is not precluded from disputing any item as an account stated is simply prima facie evidence of its correctness.
    2. Assumpsit—what not aceotmt stated. An account does not become stated as against a corporation if upon the making up of the same such corporation is not represented by a person officially entitled to object.
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge presiding. Heard in this court at the March term, 1909,
    Affirmed.
    Opinion filed October 6, 1910.

      Stebmaw & Soelke, for plaintiff in error.
    W. A. Walker, Jr., and F. M. Lowes, for defendant in error; Goobriok & Goodriok, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

Plaintiff commenced this suit and sought to recover his claim upon the theory that it rested in an account stated, and relied somewhat upon the account books of defendant to support his contention and theory. Defendant interposed a counterclaim against plaintiff in the nature of a set-off, and the cause being submitted for trial without a jury, the trial judge found the issues in favor of defendant and against plaintiff and assessed as the amount due defendant from plaintiff in excess of his claim at $202.46, and judgment was accordingly entered for that sum. Plaintiff prosecutes this writ of error and insists that the judgment should be reversed, contending that under the facts in proof he is entitled to recover of defendant $370.98.

The evidence discloses that prior to the organization of the defendant company, about February 26, 1906, plaintiff was engaged in the business of selling certain books by subscription; that such business and its assets were turned over to the defendant corporation in payment for its capital stock, and that while the stock was held in the name of plaintiff, his wife and others, one R. W. Roberts was the real, beneficial owner of most of it. Plaintiff was president of defendant and his wife and himself were the directors. The business was mainly under the management, control and direction of plaintiff, he being president and manager until October 8, 1907, when Roberts became president and plaintiff vice-president, and so continued until February 15, 1908, when plaintiff resigned and has had no connection with defendant since. A large part of the stock was on October 8, 1907, surrendered to' Roberts, the remaining shares being placed in escrow until plaintiff and the other holders paid certain money to Roberts, as provided in a certain written agreement entered into between them. At the time of the change in management there was transferred from the old books of the defendant, kept under the direction of plaintiff, to new books opened for the corporation under the direction of Roberts, a balance to the credit of plaintiff of $901.19. Roberts at this time stated that he would settle the amount of said balance claimed by plaintiff with him later, conceding at the same time that defendant was entitled to some credits. This was done in accord with the auditing of the books, which was at that time made at the instance of Roberts. , Plaintiff had a salary of $50 a week to the time he quit, February 15, 1908, which he received to that time. On February 11, 1908, plaintiff and defendant entered into an agreement of arbitration concerning the accounts between them. In January, February and March, 1907, plaintiff and his wife made an extended tour through Texas, Hew Mexico and California, during which time he sold books of defendant, which, at the usual commission rate paid for like sales, entitled him to $810. On plaintiff’s return he caused to be credited to his account on the books of defendant for travelling expenses incurred in the tour last mentioned $743.60. On an auditing of plaintiff’s account at' the instance of Roberts, the item of expenses, $743.60, was charged back, as also twelve weeks salary at the rate of $50 a week, making $600, which, with other items set forth in the trial court’s finding, made a charge in favor of defendant under its claim of set-off, of $1012.46, which, after crediting plaintiff with $810, the amount of commission on his sales, made in Texas, Hew Mexico and California, left a balance due defendant of $202.46, the amount for which judgment was entered. Salary and expenses on the above mentioned trip were denied plaintiff on the theory that the trip was one of pleasure for himself and his wife, and was not made for the business interest and welfare of defendant. When it is taken into account that the commission paid amounted to one-half of' the price of the books sold, it will be seen that to allow the charges of plaintiff in addition to such commission would be unconscionable, as they would be,0 including salaries of himself and wife, vastly in excess of the total amount charged for the books sold. A painstaking examination of all the evidence in the record convinces us that it fully supports the findings and judgment of the trial court.

The account between the plaintiff and defendant, made up as it was by the plaintiff himself, regardless of the interests of the defendant, whose officer he was and whose duty it was to protect such interests, was not an account stated within the legal definition of that phrase. The defendant was represented by the plaintiff during the time the account was manipulated, and through him only could it he challenged or repudiated. When Roberts became president of defendant he did challenge it, as he had a right to do in its interest. But it is said that Roberts knew of the account before the change of officers, and therefore defendant is hound. It is an all sufficient answer to such contention to say that Roberts had no official connection with defendant at this time and consequently no power of protest. Hanna v. People, 198 Ill. 77. Besides, what interest Roberts had in defendant was vested in plaintiff, who therefore owed him the additional duty of dealing fairly with the company, so that the interests entrusted to his care might he duly conserved and protected. Furthermore, the agreement to arbitrate is all sufficient in itself to override the contention that the account placed on the books of defendant by plaintiff in his own favor was an account stated. ■ Hone of the cases cited by plaintiff have any application to the facts in the case at bar; neither is any of them in principle in conflict with our holding.

There being no account stated proven, defendant was at liberty to go into the accounts as fully as it desired and considered necessary not only to support its own counterclaim, but to defeat the claim of plaintiff and sustain its defense thereto and all its items. If the account had been, an account stated, defendant would not have been precluded from disputing any item, for an account stated is simply prima facie evidence of its correctness. Poppers v. Schoenfeld, 97 Ill. App. 477.

The judgment of the Municipal Oourt is affirmed.

Affirmed.


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    Wasyl Zacuchny, Defendant in Error, v. Chicago Lighterage Company, Plaintiff in Error.
    Gen. No. 15,303.
    1. Pleading—correspondence between allegations and proof. The pleadings and proof must correspond.
    2. Master and servant—when proof of relation material. If the plaintiff was injured while upon the premises of the defendant, .proof of the relationship of master and servant is material where if the relation did not exist the plaintiff was a mere trespasser.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in this court at the March term, 1909.
    Reversed and remanded.
    Opinion filed October 6, 1910.
    H. L. Howard, for plaintiff in error.
    Stephen Janowicz and Cyrus J. Wood, for defendant in error.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action for personal injuries, which was tried before a judge of the Municipal Court without the intervention of a jury, and resulted in a judgment against defendant and in favor of plaintiff for $300 and costs. To’ reverse that judgment the record is before us for review on a writ of error sued out by defendant.

The cause proceeded to trial under the following statement of claim, which constituted plaintiff’s pleading, the same having been filed pursuant to a rule of court entered upon the motion of defendant:

“And now comes the plaintiff by his attorney and files herein his more specific statement of claim as follows: Plaintiff’s claim is for damages sustained by him on or about March 25, 1908. While he was upon a boat owned and controlled by the defendant, having been engaged by the defendant to assist in the unloading of said boat, when it reached, the place of unloading, and through the negligence and carelessness of the defendant said boat was run under a bridge without the smokestack being lowered, the defendant well knowing that the said stack was so high that it could not pass under the bridge, whereby the said stack, with ball thereto attached, were thrown down and upon the plaintiff with great force and violence and his leg was broken and he was otherwise injured.”

The evidence discloses that plaintiff, a Pole, who did not understand the language usually spoken in this country, had been out of employment for about six months, and desiring work procured from his landlady a letter requesting employment for him, which he presented to William H. Dudley, who was in charge of a lighter of defendant’s called the “Seymour,” of about 150 to 200 tons burden, which was lying at a dock on the Chicago river at Eighteenth street, in process of being loaded. Plaintiff presented the letter to Dudley on the boat after it left the dock and was under weigh. Plaintiff testified that Dudley on reading the letter said, “All right,” but Dudley, who was called by plaintiff testifies upon examination as plaintiff’s witness, that he told plaintiff through an interpreter that he had no work for him, but if there should be an opening for him some time he would help him out.

Plaintiff was injured through the neglect of the foreman of the boat to perform his duty in lowering the smokestack while the boat was going under a bridge at Canal street, resulting in the stack being knocked backwards by contact with the bridge, causing the ball on the end of a lever which held the stack in place to strike the leg of plaintiff in its upward progress, breaking his leg.

It is an elementary and familiar legal principle that the evidence must support the material averment of the plaintiff’s pleading, by whatever legal term it may be designated or known; in other words, that the probata at allegata must be in unison, the former supporting the latter. It is a general rule of evidence that the things alleged and proved must correspond • that is, the proof must at least be sufficiently extensive to cover all of the material allegations of the party. 1 Greenleaf on Evidence, sec. 51.

Plaintiff made the averment of his employment hy defendant through Dudley material to his right of recovery. By such averment he made the case one between master and servant, and the duty owed by the master to the servant which the law imposes was the governing principle resting upon the facts which the proof might disclose of negligently failing to perform such duty. Plaintiff’s own witness, Dudley, testified that he did not employ him, and plaintiff’s testimony that Dudley said “All right” after reading the letter presented to him, falls far short, even if credited, of proving an employment of plaintiff. Therefore it follows that the foundation upon which plaintiff placed his sole right to recover is swept out of the case through his failure to sustain the same by proof. There being no employment, there can be no recovery. For if he was an employe he was there by right; otherwise he was a trespasser or mere licensee,.to whom defendant owed the sole duty not to wilfully or wantonly or maliciously injure him. Joseph v. Henrici, 137 Ill. App. 171; Francy v. Union Stock Yards Co., 235 Ill. 522; Pauckner v. Wakem, 231 ib. 276. There is no claim made on plaintiff’s behalf that defendant or its servants perpetrated any act wilfully, wantonly or maliciously which caused the injury to plaintiff for which he seeks to recover from defendant compensatory damages.

Because the evidence fails to support the material averment of plaintiff’s pleading, the Municipal Court erred in entering a judgment in his favor, and that judgment is therefore reversed and the cause remanded.

Reversed and remanded,.


text:
    Joseph Cunat et al., Appellees, v. Supreme Tribe of Ben Hur, Appellant.
    Gen. No. 15,316.
    1. Insurance—what misrepresentations do not void policy. Nothing can be false which lacks mala fides in the party making the statement challenged as false. An erroneous conclusion as to relationship does not void the policy.
    2. Fraternal benefit societies—effect of ineligibility of one of two joint beneficiaries. If either of two joint beneficiaries be ineligible, the other takes the entire fund.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in this court at the March term, 190"9.
    Affirmed.
    Opinion filed October 6, 1910.
    Mato & Miller and Arthur J. Donovan, for appellant,- Benjamin Crane, of counsel.
    L. A. Kapsa and Charles 0. Spencer, for appellees.
   Mr. Justice Holdom

delivered the opinion of the court.

Appellant is a fraternal benefit association, chartered as such to do business by the State of Indiana, pursuant to its laws regulating the incorporation of such associations. In virtue of its charter powers it issued certificates of insurance upon the life of its members, the beneficiaries of which are circumscribed by the laws of the State and the order and the provisions of the certificate to certain classes specified thus in the Indiana statute and appellant’s charter: “Payment of death benefits shall be to the families, heirs, blood relatives, affianced husband and affianced wife of, or to persons dependent upon the member.”

Golden Crown Court Ho. 284, a subordinate court of appellant at Chicago, had a member named Katherine Hubicka, to whom it issued a benefit certificate in the sum of $1400 and named as beneficiaries therein, in compliance with a designation made in Katherine Hubicka’s application, “Joseph and Mary Cunat, bearing to her the relationship of cousins.” Katherine Hubicka died and this suit was brought to collect the amount of the certificate by the beneficiaries named, the appellees. The cause was tried before a judge of the Municipal Court, who resolved the contentions favorable to appellees and judgment for the amount of the certificate, with interest, was entered against appel-. lant, who prosecutes this appeal with the purpose of reversing the result reached by the trial court.

The important features of the case are embodied in a stipulation of facts between the contestants made in the trial court, and under which the cause in the main was tried. Among the facts so stipulated these are found:

“7th. Katherine, also known as Kate Hubicka, now deceased, for about 25 years immediately preceding the time of her death and at the time of her death, lived with the family of Joseph Ounat and Mary Ounat, his wife; that said Mary Ounat was related to said Katherine Hubicka as first cousin, and that Joseph Ounat bore no relation to said Katherine Hubicka.

“10th. Said Katherine Hubicka paid all dues and assessments required to be paid under and in accordance with the provisions of the law of the order up to .the time of her death, and that proofs of death as required by the by-laws of defendant were made and submitted in apt time.

“11th. Said Katherine Hubicka came to her death at the age of about 31 years on March 15, 1907, leaving her surviving John Cerny and Anna Borovansky as her only heirs at law.”

Among the laws of appellant working a forfeiture of and making void a benefit certificate is this one:

“1. If the holder thereof, or member in his application, upon which such certificate was based and issued, gave any false answer to any question therein contained. * * *”

Also the following provision regulating payment of benefit where the beneficiary named predeceases the member:

“Sec. 121. In the event of the death of a designated beneficiary prior to the death of the member, and the member dies without having made disposition of said portion of all his certificate, the same shall be paid to the legal representative of said deceased member for the use and benefit of the deceased member’s heirs. * *”

Counsel have ingeniously presented and discussed the law applicable to every conceivable phase of this case, but as a matter of fact the controverted questions, as we view them, are circumscribed within a very narrow compass. We do not purpose, because unnecessary, to follow counsel in all .the intricacies of their „ wanderings into the domain of the law, but will rest content by confining our opinion to those matters upon which, in the view we take of the case, our judgment must rest.

The basis of this contest rests in the fact, undenied and undeniable, that Joseph Cunat was not a cousin to Katherine Hubicka, the member, but that his wife, Mary, was. Neither was Joseph an heir at law. Consequently he was not eligible as a beneficiary or capable of demanding any part of the money due and payable under the certificate. From this condition it is contended that the certificate is void; and that if not void, that Mary Cunat is entitled to receive only one-half of the amount due under the certificate.

The contention that the certificate is void is grounded on the claim that the representation in the application that Mary and Joseph were cousins amounted to a warranty and was untrue, and that therefore the act of issuing the certificate by appellant was ultra vires as beyond its charter power.

We think it beyond cavil that the certificate was good as to Mary Cunat, who bore the designated relationship to the member and is therefore not an ultra vires act as to her. If both Mary and Joseph were ineligible as beneficiaries, then the doctrine of Steele v. Fraternal Tribunes, 215 Ill. 190, would be invokable, for it is well settled in this State that there can be no estoppel of a corporation as against an act wholly ultra vires.

Neither is the contract void for misrepresentation as to the relationship of the beneficiaries to the member. That which voids the certificate under the rules of appellant is “a false answer to any question” in the member’s application. Nothing can be false which lacks mala fides in the party mainng the statement challenged as false. In the case at bar the statement of the relationship of Joseph was simply an erroneous conclusion of the member upon the facts. It is a common or trite saying that husband and wife are one, but as a matter of law they are distinct entities, each responsible to the law individually. Among English speaking people marriage unites not only the parties but the families of each to the other; so that aunts and uncles, nephews and nieces, cousins and even parents, are colloquially referred to and called indiscriminately, without any regard as to which of the two they are in fact related to, by the same relative name by each of the conjugal partners. When fraud is averred it must be sustained by proof of the conscionable knowledge of the fraud alleged by the party charged with the perpetration of such fraud. From this record it clearly appears that Katherine Hubicka sprang from a humble walk of life. She was an unsophisticated young woman of foreign birth, who came to this country at a very immature age and whose life here was spent in the domesticity of the home of appellees. Her experience in the world was limited and there is nothing in this record which would warrant, from any act of hers, the assumption that she intended to practice a fraud upon appellant by making a false statement of the relationship of appellees toward her. On the contrary, the fact that she stated that Mary and Joseph were husband and wife was sufficient to put appellant on inquiry, for if they were cousins to Katherine Hubicka they were cousins to each other, a degree of affinity within . which the statutes of this State prohibit marriage. Then again there was nothing to be gained by deceit in this regard, for no special advantage would result to Katherine Hubicka by making both beneficiaries instead of one, and no fraud is charged or proven against appellees in the transaction. The statement was not in any sense a material one, for its admitted inaccuracy does not tend to place any additional burden upon appellant. The statement in the light of the facts does no more constitute a warranty than the answers in M. M. L. I. Co. v. Link, 230 Ill. 273, affirming 131 Ill. App. 89, or the representations in Supreme Lodge v. Hutchinson, 6 Ind. App. 399, or Standard v. Martin, 133 Ind. 376. The certificate being enforceable, it only remains to decide whether Mary Cunat should receive the half or the whole amount payable under it. It is our opinion that Mary Cunat should 'receive the whole amount. It will be noticed that there is no designation as to any aliquot part which shall go to one or the other. Ho division of the amount was attempted. It was made payable to Mary and Joseph Cunat. Mary being eligible to take, and Joseph ineligible, Mary takes the whole. She fulfils, as cousin to the deceased member, the relationship stated in the certificate and provided by the rules of the order. There is authority in this and other States sustaining such conclusion. Whatever may be said concerning the decision in Flannery v. Gleason, 133 Ill. App. 398, it is sufficient to remind counsel that under our statute it is not an authority in this case for any purpose.

In Norwegians Old Peoples Home Society v. Wilson, 176 Ill. 94, the certificate directed that one-half each be paid to Danielson and the Home. The certificate in some respects was similar to the one before us, more particularly in its provisions concerning the failure of the member to make disposition of any portion of the certificate, and directing that such undisposed of portion be paid to the heirs at law of the deceased member. The court ordered the one-half which would have been taken by the Home, if eligible, to be paid to the heir of the member. This case is clearly distinguishable from the one under discussion. Here the amount of the certificate is to be paid to cousins, the one bearing that relationship (while the other, erroneously named as cousin, is ineligible, because such relationship does not exist), takes the whole as constituting the class designated in the certificate and permitted by the rules of the order. In Grimme v. Grimme, 198 Ill. 265, under a similar certificate payable to the wife and father of the member of a fraternal benefit society, the court holding that under the laws of the order the father was not eligible, the whole amount was by the court awarded to the surviving wife. It is true that there was a finding that the member left no descendants surviving him, but nothing can be gathered from any expression in the opinion that the presence of descendants would have affected the decision.

We cannot see that the doctrine of survivorship is in any way invokable. Mary does not survive Joseph, because they are both alive. Mary does not survive to any interest of Joseph because Joseph never had any interest. Being ineligible to take any benefit under the certificate, it must be treated as though his name did not appear in it; consequently Mary takes as cousin. If the heirs "have any interest, they are not asserting it, nor are they before the court in this proceeding making any claim.

In Beard v. Sharp, 100 Ky. 606, the two beneficiaries named were given one-half each of the amount insured. One was ineligible and could not take, and an award of the whole to the remaining eligible beneficiary was upheld. Caudell v. Woodward, 96 ibid. 646.

While Joseph Cunat is not entitled to receive any part of the amount due under the certificate, yet the action being brought on that document he is a necessary party plaintiff. Mary Cunat is the real party in interest, but as said in Schiff v. Supreme Lodge, 64 Ill. App. 341; “The appellee has no concern with the use.” So in this case, appellant has no concern as to whose use this action is brought. It has no effect on its liability. C. B. & Q. R. R. Co. v. Emmons, 42 ibid. 138; Jones v. Maxton, 100 ibid. 201; Martin Deutscher Frauen Verein v. Mueller, 140 ibid. 621.

This action was tried before the court without the intervention of a jury. The Municipal Court Act has relieved that forum from many of the technicalities of procedure obtaining in the common law courts. We are not permitted by the Municipal Court Act to reverse a judgment of that court unless some substantial error of a prejudicial nature appears in the record. As shown by the record before us, the judgment of the Municipal Court upon the merits does justice between the parties, and it is therefore affirmed.

'Affirmed.


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    Harris W. Huehl et al., Appellees, v. Monarch Refrigerating Company et al., Appellants. Appeal of Michael Espert.
    Gen. No. 15,346.
    1. Contracts—when recovery upon quantum mermt proper. If a contract for certain work is made and the amount of the work to be done subsequently increased without the making of a new contract such increased work must be recovered for upon a quantum, meruit basis. If, however, it appears that the original work was abandoned, all work should be recovered for upon a quantum meruit basis.
    2. Set-off—when disposed of by verdict. If there is no plea of set-off in the record but if evidence was heard upon the question of set-off the verdict being general it will be presumed that all issues which were presented were disposed of.
    3. Remittitur—when effectual to cure error. Errors arising from an over-assessment of damages where such errors are not attributable to the prejudice or passion of the jury are cured by a remittitur of the excess.
    4. Appeals and errors—when remarks of trial judge not subject to review. Remarks of the trial judge are not subject to review unless error is assigned thereon.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed October 6, 1910.
    Gentzel & Crane, for appellant.
    Gregory, Poppenhnsen & McFTab, for appellees.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal by Michael Espert from a judgment rendered against him in favor of appellees, on the verdict of a jury after entry of a remittitur of $3, for $4,114.17 and ■costs. The cause was discontinued, before verdict, as to all Michael Espert’s co-defendants.

Appellant assigns numerous errors, but confines them in argument as grounds for reversal to the following four points:

First. The court improperly admitted evidence as to the value of architect services sued for, upon a quantum meruit, after appellee, Huehl, had testified regarding a fixed price being agreed upon.

Second. The verdict is contrary to the manifest weight of the evidence.

Third. The jury failed to make any finding on the question of set-off.

Fourth. The verdict was void, as it was concededly excessive to the amount of $3, and consequently could not be aided by a remittitur.

The judgment appealed from is made up of the following items, viz:

“To services rendered, plans and specifications and superintendence of cold storage building at 254-256 Michigan street, $58,281.08, at 3%, $1,748.43.

Foundation wall, $4,975 at 3%, - 149.25

Party wall contract with Cummings, 100.00

Party wall contract with Dr. Price, 100.00

Changes in plan leaving off coil house, 150.00

To services rendered first set of plans and specifications for cold storage building $70,974.00 at li%, 1,064.61

To services rendered, plans, specifications and superintendence of power house erected at 281-283 FT. Water St., $26,729.60 at 3%, 801.88

Total, $4,114.17.”

The record, as abstracted .by appellant, is partial and one sided and violates the rule of this court directing the maimer of preparing abstracts of records. Counsel for appellees have supplied the material evidence omitted by filing an additional abstract. An examination of all the evidence admissible and not subject to any of the objections made, fully sustains every item of the claim above set out, and is in its essentials abundant to justify the jury in finding by their verdict the full amount claimed. It cannot therefore be truthfully said that the judgment is not fairly supported by the evidence or that it is manifestly contrary to its preponderating force. This being so, we are not permitted to disturb the judgment of the trial court as being against the weight of the evidence.

That in the outset of negotiations there was an understanding sufficiently definite to constitute a contract that appellees would do the architectural work and superintendence of the construction of a cold storage warehouse on Michigan street on a commission basis of three per cent of its cost, is not disputed, and that the original plans as prepared were radically changed and an additional plot of land acquired to be used, and which was used, as an accessory to the warehouse originally intended and arranged to be constructed with appellees as architects, is also a matter not in dispute. These changes, of appellant’s creation, made necessary a redrawing of the plans so that they might conform to new conditions and a new arrangement of the plant necessary to meet such new conditions and to proceed in accord therewith. The evidence in the record is solvable in harmony with the contention of appellees that there was no agreement as to architect’s charges made between the parties subsequent to the original agreement. It became necessary, in such situation, to prove the amount chargeable for those items of service not embraced in the verbal understanding and to recover the same under a quantum meruit. Such evidence was clearly and necessarily admissible. It was the only method open to appellees by ivhich they could recover at all for services rendered which were not embraced in the original agreement. The real contentions, however, are circumscribed within a narrower compass than the discussion of the learned counsel would warrant an inference. In the first place, the three largest items in the aggregate of the whole account in suit are admitted by counsel for appellants, and therefore are practically eliminated from our consideration. The items challenged are the two items totalling $200 for services iii obtaining two party wall agreements, the item of $150 for changes in plans on abandoning “coil house,” and the item of $1,064.61, being one and one-half per cent on $70,974, estimated cost of constructing first building under the plans prepared by appellees and which were abandoned because of the adoption of another and entirely different method of constructural arrangement. There was evidence justifying the jury in allowing all of these items, on the theory that appellees were entitled to recover them on a quantum meruit. In fact we cannot see, from the argument of appellants’ counsel, any serious controversy concerning this quantum meruit theory. While it is true that counsel for appellants objected to Huehl testifying to the reasonable value of the services covered by the items now under discussion, yet the testimony of the witnesses, Hill and Beaumont, both architects, covering this same subject, was admitted without objection, and they were fully cross examined by counsel touching their testimony given in chief.

We think it may be fairly said that the original contract never having been carried out, appellees were entitled to recover their whole claim on a quantum meruit basis. The abandonment being with the tacit consent of the parties, left appellees at liberty to proceed on a quantum meruit as a basis of recovery. Anglo Wyoming Oil Fields v. Miller, 117 Ill. App. 552; Bonnet v. Glattfeldt, 120 Ill. 166.

There remains but two points more to be disposed of: First. The claim that the jury failed to dispose of the question of set-off by their verdict. The verdict being general; we think effectually disposes of that question. There was no issue of set-off made by the pleadings. Ho such plea appears in the record or abstracts. The plea found is the general issue. So far as the record discloses the claim to a set-off was raised incidentally during the progress of the trial. The jury, however, having heard all the testimony, by their verdict in appellees’ favor left the inference to be drawn from it that they attached no importance to appellants’ claim of set-off as finding no warrant in the proofs. In West Virginia the statute in relation to set-offs is similar in its essential provisions to our own. In Black v. Thomas, 21 W. Va. 709, where a set-off was set up and issue joined on it and the vcrdiet was general in favor of the defendant’s claim of set-off, the court said: “In debt or assumpsit where the defendant files an account of set-off, he is under our statute deemed to have brought a cross action .against the plaintiff for the amount of such account. * * * The verdict in this was for a gross sum in favor of the defendant; that, under the issues was necessarily a finding that the account of the defendant exceeded the amount to which the plaintiffs were entitled to the extent of that finding. The verdict is not therefore ambiguous or uncertain. 1 Rob. Prac. (Old ed.) 355-367; Lanier v. Harwell, 6 Munf. 79.” It was likewise held in this case that a verdict which necessarily disposes of all the issues is sufficient, notwithstanding it may not respond separately to each issue or fact presented by the pleading. Lewis v. Childers, 13 W. Va. 1. In Stout v. Calver, 6 Mo. 254. it was held that a general finding by the jury for the plaintiff in a case where there was a plea of set-off, was consistent with the idea that the jury had considered the defendant’s plea of set-off and had come to the conclusion that he was not entitled to any credit on that plea, and that such a verdict was sufficient to support the judgment. A verdict responsive to the issues made by the pleadings fulfils every requirement. Enc. Plea. & Prac. Vol. 22, note on p. 871. There arises a presumption from the verdict of a jury that it is as broad as the issues submitted under the pleadings. Reed v. Gentry, 7 Oregon, 498. "Where several issues are submitted and a general verdict results, an inference of law obtains that all the issues have been found in favor of the prevailing party. Rhoades v. Metropolis, 36 Ill. App. 123; White v. Simonds, 33 Vt. 178.

Second. It is contended that the verdict is void because concededly excessive to the amount of three dollars. Farcical indeed would legal procedure be if heed for one moment could be given to such an absurd contention. The remittitur of three dollars excess was a perfect curative of the miscalculation of the jury. Without such remittitur the maxim de minimis non curat lex would effectually dispose of the objection. However, it is the settled law in this State that errors arising from an over-assessment of damages, where such errors are not attributable to prejudice or passion of the jury, are cured by a remittitur of the excess. McNulta v. Hendele, 92 Ill. App. 273; I. C. R. R. v. Ebert, 74 Ill. 399.

Finally, we do not regard the argument that the trial judge was guilty of indulging in improper or prejudicial remarks in the presence of the jury as being seriously urged as a reason for reversal. It is patent that the remarks challenged are not susceptible, when construed in the light of their natural import to the situation which then confronted the court, of the construction contended for. They were entirely proper and pertinent. But a complete bar to availing of such an objection on review is found in the failure of appellants to assign the same for error. McCaleb v. Coon Run, etc., 190 Ill. 549.

The record being free from reversible error and doing justice between the contestants, the judgment of the Circuit Court is affirmed and the additional abstract is ordered to be taxed as a part of the cost of the cause in this court.

Affirmed.


text:
    Tillie Szczech, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,359.
    1. Negligence—what makes prima facie ease where injury results from a collision. Proof that the collision in question was occasioned by reason of a defective brake and that the plaintiff was in the exercise of due care at the time, makes out a prima facie ease and puts upon the defendant the onus of rebutting the negligence presumed.
    2. Evidence—when interpreter should he called to testify to intervieio. If a doctor has examined a person claiming to have sustained personal injuries and has conversed with such person with the aid of an interpreter, such interpreter is the best witness as to what conversationally took place.
    3. Instructions—propriety of, directing jury to disregard comments of counsel. Held, that it was not error to instruct the jury that they “should not be influenced in the slightest degree as to the facts in the case by any assertion or statement of counsel on either side of the case, unless the same is sustained by the evidence in the case.”
    4. Verdicts—when set aside. A verdict which is clearly the result of a misconception by the jury of the probative force of the evidence will be set aside, and such a verdict is not aided by a remittitur of four-tenths of its amount.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in this court at the March term, 1909.
    Reversed and remanded.
    Opinion filed October 6, 1910.
    B. F. Biohorsoh and Watsoh J. Ferry, for appellant.
    Boyar W. Irwih and F. W. Koraxeski, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

Plaintiff recovered a judgment for $6,000 in the court below against defendant upon the verdict of a jury minus a voluntary remittitur of $4,000.

The action is case for personal injuries inflicted upon plaintiff through the negligence of defendant at a time when the relation of passenger and carrier existed between them.

It is argued for reversal, 1st, that the verdict is against the manifest weight of the evidence; 2nd, errors in exclusion of certain evidence; 3rd, giving of an erroneous instruction to the jury; and, 4th, that the damages awarded are excessive.

The injuries complained of resulted from a collision between two cars of defendant, occasioned by the brake handle on the car upon which plaintiff was riding suddenly becoming loose and not controllable by the motorman in time to avoid colliding with another car. At this time the car was proceeding down the incline from a bridge at Halsted street spanning the Chicago river. Plaintiff on boarding the car being unable to procure sitting room, stood on the front platform at the right of the motorman, in which position she was at the time of the collision. Plaintiff contends, and attempted to establish by proof, that the force of the impact between the two cars thus suddenly brought together threw her against the brake handle of the car, striking her in the abdomen above the waist line and to the left of the navel, causing injuries which necessitated an operation for gall stones and the removal surgically, more than a year after the accident, of her ovaries and fallopian tubes. The objective injuries following the collision were a bruise on the back of the head, a cut on the thumb, right wrist cut and dislocated, left hand and right knee hurt and the left knee bruised. Defendant contends that it was impossible for plaintiff to have been struck by the brake handle in the abdomen in the manner claimed, because the dash was as high as the motorman’s breast and the brake handle a foot higher than the dash, and reconcile the gall stone, ovarian and fallopian tube difficulties to the accelerated birth of a boy baby when plaintiff was but seventeen years of age, which occasioned a laceration of her womb.

This case is similar upon the facts to that of Chicago City Railway Co. v. Rural, 224 Ill. 324, which was a collision case. The trouble there was due to the defective working of the brake, as in this case. Rroof that the collision was occasioned by reason of such defective brake, and that the injured plaintiff was in the exercise of due care at the time, was there held to be sufficient prima facie proof of negligence to put upon defendant the onus of rebutting it by proof sufficient to overcome such prima facie case and exculpate it from the negligence so established. We think the jury were fairly justified in. concluding that defendant had failed to establish by its proofs that it was without fault or that the difficulties with the brake, resulting in the collision, were not chargeable to its negligence. For, as said in Greinke v. Chicago City Railway Co., 234 Ill. 564, “where an accident happens to a passenger upon a street railway and the instrumentality which caused the accident was within the control of the railway company, and the passenger at the time of the accident was in the exercise of due care for his own safety, a cause of action is made out against the railway company. That is, under those circumstances a prima facie case of negligence is made out against the railway company by showing the cause of accident. * * *” Citing cases the court continuing say: “The doctrine to be déduced from the above cases is, that when one becomes a passenger on a car of a common carrier to be transported from one station on its line to another, and has paid a consideration therefor, the contract ■on the part of the carrier is to provide safe and sound cars, track and necessary appliances to carry the passenger to his or her destination without injury. When such passenger is injured by a collision, proof of the relation of passenger and carrier, of the collision and the injury, if no contributing negligence on the part of the passenger appears, makes a prima facie case for the resulting damages, and casts upon the common carrier the onus of proving that the injury resulted from inevitable accident or from some cause against which human prudence and foresight could not have provided.” Within the rule above announced the plaintiff made out a prima facie case of negligence entitling her to recover, which the jury were justified in finding had not been overcome by defendant’s proofs to the degree established as the rule of law necessary to relieve it from liability. It is patent that such accidents do not ordinarily occur if due care is used, and the defective apparatus being under the control of defendant the law will impute negligence to defendant as the reason for the existence of the defect which caused the accident.

The court properly, we think, excluded the evidence of Dr. Andrews as to what plaintiff said through an interpreter at the time he examined her soon after the accident. Dr. Andrews’ visit was voluntary and made on behalf of defendant. Plaintiff not being able to talk English, the interpreter was procured at the instance of Dr. Andrews and for his benefit as the representative of defendant. The interpreter was the best witness as to what was said by both plaintiff and Dr. Andrews upon the occasion of his visit to plaintiff and his examination of her after the accident. The learned trial judge so indicated, and counsel for defendant seemed to concur with the judge and made no further objection. This, we think, is sufficient to conclude defendant from now urging any objection to the judge’s ruling on this point. Be that as it may, we are convinced that the judge’s ruling was without error. State v. Noyes, 36 Conn. 80.

The contention that the instruction complained about did not correctly state the legal principle applicable, is not well taken. That part of the instruction said to be involved in error reads: “The jury should not be influenced in the slightest degree as to the facts in the case by any assertion or statement of counsel on either side of the case, unless the same is sustained by the evidence in the case.” Certainly the jury are limited to the facts in the record in arriving at a verdict, and have no right to depart from the record in the slightest degree. Any attack made by counsel in argument either as to the weight of the evidence and what it tends to prove, or as to the character of the witnesses, howsoever fierce the invective of counsel may be in forensic attack, should have no weight with the jury at all, except where it finds support in the evidence found in the record given in their hearing. To hold otherwise would be a dangerous doctrine, for it would permit a jury to consider matters dehors the record which could never be presented on further hearing to a court of review. While the broadest latitude is allowed counsel in discussing the evidence, nothing not pertinent to the record or lacking support from it has any rightful place either in the argument of counsel or the deliberations of the jury.

It is quite plain that the assessment of damages by the jury was upon the assumption that the very serious difficulties suffered by plaintiff with her gall bladder, - ovaries and fallopian tubes resulted from and are traceable to plaintiff’s being thrown upon the brake handle of the car and striking thereon her abdomen at about the waist line. Such assessment evidently arose from a misconception upon the part of the jury of the probative force of the evidence. It is, we think, beyond cavil that plaintiff could not have been thrown on the brake handle so as to strike her abdomen on it at the waist line. To have so done plaintiff must have towered in height more than seven feet, and of this there is no proof. Furthermore, the evidence is uncontradicted that the motorman had his hand upon the brake handle during all the time of the occurrence, and was sitting in front of it during such time. The situation of plaintiff and the motorman and the height of the brake handle above the dash make it incredible of belief that plaintiff struck the brake handle in the manner claimed. Because plaintiff testifies to a condition so improbable does not justify the jury in according credence to it and assessing damages in faith of its verity.

The verdict is clearly the result of a misconception of the probative force of the evidence by the jury. The remittitur of four-tenths of the amount of the verdict, so far from curing the vice confessedly in it, but accentuates its illegality. . The assessment of damages proceeding as it does upon improbable premises, cannot be maintained. It is clearly excessive as including compensation for ailments not traceable, upon a proper weighing of the evidence, to the accident chargeable to the negligence of defendant. For such excessive assessment of damages the judgment of the Superior Court is reversed and the cause is remanded for a new trial.

Reversed and remanded.


author: Mr. Justice Baker

text:
    Decatur Fruit Growers Association, Defendant in Error, v. The Kansas City Southern Railway Company, Plaintiff in Error.
    Gen. No. 14,627.

      Judgments—when may he entered against one joint defendant in action ex contractu. At common law, if several defendants were joined in an action ex contractu, and all were brought before the court by service or appearance, it was absolutely essential to the plaintiff’s recovery that he should establish a joint liability; in other words, he must recover against all or none; it was not competent to enter judgment in favor of one defendant and against another. This rule, however, is subject to the exception that where in an action ex contractu against two or more defendants one defendant pleads or gives in evidence matter which does not go to the action of the writ, and is a bar to the action as against himself, only, and of which the other could not take advantage, judgment may be rendered for such defendant and against the rest. In this action the evidence did not bring the case within the exception and no joint liability being established judgment was not allowed against either defendant.
    Tort. Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed October 6, 1910.
    Statement by the Court. The defendant in error here brought an action of the fourth class in the Municipal Court against the Kansas City Southern Railway Company and the Atchison, Topeka and Santa Fe Railway Company of tort for damages through negligence to strawberries, “shipped via the said defendants” from Decatur, Arkansas, to Colorado Springs, Colorado. Both defendants were served with summons and each entered its appearance in writing. After-wards the plaintiff obtained leave to file an amended statement of claim, changing the action from tort to contract, and filed an amended claim alleging a breach of contract to safely carry strawberries delivered by the plaintiff to the defendants to be carried from Decatur to Colorado Springs. The jury returned a verdict finding the issues in favor of the plaintiff against the Kansas City Southern Railway Company, and finding the issues in favor of the Santa Fe Company, and assessing plaintiff’s damages at $500. The court overruled the motion of the Kansas City Company for a new trial, and its motion in arrest of judgment, entered judgment on the verdict for the plaintiff against the Kansas City Company for $500 and costs, and a judgment of nil capiat in favor of the Santa Fe Company.
    Pam & Hurd, for plaintiff in error.
    Charles A. Butler, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

“At common law, if several defendants were joined in an action ex contractu, and all were brought before the court by service or appearance, it was absolutely essential to the plaintiff’s recovery that he should establish a joint liability;' in other words, he must recover against all or none; it was not competent to enter a judgment in favor of one defendant and against another.” 1 Black on Judgments, sec. 206. This rule has been declared and followed in a very large number of cases in this State. See cases cited in Cooper v. McNeil & Higgins, 43 Ill. App. 350, and 11 Encyc. of Pl. & Prac., 848.

This rule is subject to the exception that where in an action ex contractu against two or more defendants one defendant pleads or gives in evidence matter which does not go to the action of the writ, and is a bar to the action as against himself only, and of which the other could not take advantage, judgment may be rendered for such defendant and against the rest. The reason of the distinction is that in the one case a verdict in favor of one defendant falsifies the averment of a joint promise, while such a personal defense does not falsify the averment of an original joint promise, but, admitting it, avoids it by proof of matter subsequent.

The defense that the Santa Fe Company was not jointly liable with the Kansas City Company was not a defense personal to the Santa Fe Company. The other defendant had the right to question the joint liability of the defendants, and if the evidence showed that they were not jointly liable the plaintiff could not recover against the Kansas City Company. The legal effect of plaintiff’s statement of its demand in this case is an assertion that the two railroad companies, the defendants, jointly undertook and promised to safely carry the strawberries from Decatur to Colorado Springs. The verdict and judgment in this case is conclusive that the promise was not joint, and the plaintiff was not entitled to recover against either defendant. Pluard v. Gerrity, 146 Ill. App. 224.

The judgment against the Kansas City Kailway Company will be reversed and the cause remanded.

Reversed and remanded.