author: Mr. Presiding Justice O’Connor

text:
    August Dahlberg, Appellant, v. Chicago City Bank and Trust Company, Appellee.
    Gen. No. 41,571.

      Opinion filed April 28, 1941.
    P. F. Murray, of Chicago, for appellant; Edward T. Havey, of Chicago, of counsel.
    Bathje, Hinckley, Barnard & Kulp, of Chicago, for appellee; Francis E. Hinckley, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover $2337.50, being the damages claimed to have been sustained by him on account of defendant selling plaintiff a note secured by a mortgage on real estate in Chicago, the signatures of the note and coupons being’ forgeries. At the conclusion of the evidence defendant moved for a directed verdict, the court reserved its ruling, the case was then submitted to the jury and a verdict rendered in plaintiff’s favor for the amount of his claim. The verdict was returned January 5, 1940, in open court, and at that time counsel for defendant filed two motions, (1) for judgment in defendant’s favor notwithstanding the verdict, and (2) an alternative motion for a new trial. June 14, 1940, the court sustained defendant’s motion for judgment notwithstanding the verdict, and plaintiff appeals. The court did not pass on the alternative motion for a new trial and apparently it was not brought to his attention.

The record discloses plaintiff was about 81 years old, had emigrated to this country in 1882, and had been doing business with defendant bank for about ten years prior to January, 1937. He had a savings account and a checking account with the bank and also a safety deposit box.

January 27, 1937, plaintiff and his son, who at the time of the trial was residing in Montana, went to the bank and purchased a promissory note for $3,000 dated November 2, 1934, due five years after date with interest at the rate of 6% per annum, payable semiannually on the 2nd day of May and November each year. The note was secured by a trust deed. The business was conducted by plaintiff and his son on the one side, and Harold Thompson, an employee of the bank for fourteen years, on the other. More than a year thereafter, it was discovered that the signatures of the note and coupons were forgeries and plaintiff’s position is that defendant bank is liable for the loss he sustained through the dishonesty of its employee, Harold Thompson, who was acting within the apparent scope of his authority. On the other side defendant-contends plaintiff dealt with Thompson in his individual capacity; that the bank had nothing to: do with the transaction and that this is shown by all the evidence when viewed in the light most favorable to plaintiff and therefore the judgment n. o. v. was proper and should be affirmed. On this point counsel say “defendant’s theory is that there are no controverted questions of fact and no material conflict in the evideuce. The plaintiff’s evidence disclosed that the transaction of which he complained was the purchase of a forged note from a person other than the defendant, the payment by the. plaintiff for the same to a person other than the defendant, the issuance of a bill of sale to the plaintiff by this other party, who was neither an employee of, nor known to, the defendant, and that plaintiff was fully aware of the fact that he was not dealing with the defendant. ’ ’

Plaintiff testified he lived with his daughter, Mrs. Sundberg, in Chicago; that he had a savings account with defendant bank since 1931, a checking account since' 1937, and a safety deposit box for three or four years; that June 19, 1936, he bought a mortgage from the bank through its vice president Robert Anderson, for which he paid $2,987. At that time he got the mortgage papers and put them in his safety deposit box in the bank; that he bought the mortgage on the second floor of the bank in the real estate department. These papers were produced on the trial; the note was payable at the bank in monthly installments of $40, and the payments there made; that shortly after he purchased that mortgage he met Harold Thompson on the second floor of the bank in the real estate department in connection with the renewal of fire insurance on the property securing the mortgage; that Thompson attended to the insurance and some time thereafter, called to see plaintiff at his home; that Thompson there said: “he got some foreclosure property that he thought could be bought pretty cheap. He showed me the places, but I didn’t want them. Then he came another time, ’ ’ and showed him another piece of property. “He said the bank had three mortgages for sale. He took me along to the places in an automobile. I looked at the places. I didn’t do anything that day. I told him to take my son along and we should look at them. We went along and my son looked at them. ... I next saw Mr. Thompson on the second floor in the real estate department of the bank. He had a desk there. There was a railing on the outside and a desk inside. He was sitting at that desk. I told him I would buy a mortgage on Ada Street property. My son was with me. We closed the deal that day. My son lives in Montana.” That Thompson said he wanted $3,000 for the mortgage and $37 for the insurance. Thompson then made out a slip so plaintiff could go downstairs and obtain a cashier’s check. The slip showed the check should be payable to Grustaf Orenberg; that he took the slip downstairs and obtained the cashier’s check; that he never saw or heard of Mr. Orenberg before or since; that he took the check upstairs and gave it to Thompson and Thompson gave him the mortgage papers. [The trust deed, principal note and all of the coupons then unpaid, guarantee policy of the Chicago Title & Trust Company and the fire insurance policy.] “I asked for a bill of sale and this is what he gave me.” That afterward about March 1, 1937, he left coupon No. 5 which became due May 2, 1937, for collection at the bank on the second floor. This was before he went to Montana, which was about March 20, and he did not return until Armistice Day, November 11. Before leaving he gave instructions to his daughter as to presenting the interest coupons while he was away and when he g’ot back he received the money from his daughter for coupons No. 5 and No. 6; that about the middle of April, 1938, he took coupon No. 7, which was due May 2, 1938, and left it with the bank for collection in the real estate department on the second floor. When plaintiff went to the bank in 1938, one of its representatives told him to go down to the deposit box and get the mortgage papers so they could be examined, which he did. The representative told him the note and coupons were forged — the trust deed, the title guarantee and policy genuine. At that time the vice president told plaintiff he had fired Thompson February 1, 1937, and that he should have fired him long before.

The witness further testified that shortly thereafter' he went with a representative of the bank to the Criminal Court Building on two occasions and the representative wanted him to swear to a complaint against Thompson but plaintiff! refused to do so until he consulted his attorney; that he did so and was advised not to sign the complaint; that the bank official refused to do so. Apparently Thompson was not apprehended. At the time the papers were said to be forgeries. At defendant’s request, plaintiff left his papers with the bank for examination so they might be photographed, which was done and they were returned to him a few days thereafter.

On cross-examination plaintiff testified he purchased the mortgage in 1936, from a person who sat at the same desk where Thompson sat afterward — “in the real estate department. He was at the same desk where I got this other one. I don’t know the man’s name. I met Thompson about a month after that,” in the real estate department. That about March 4, after he bought the mortgage in question Thompson came to his house and gave him $40; that “I said I didn’t want his money. I got enough interest already.” But Thompson left the money; that when he got the mortgage papers from Thompson he put them in the safety deposit box; that after the parties went to the State’s Attorney’s office, as above stated, the attorney who was then representing plaintiff, collected $700 from Thompson and credit was given for this amount in plaintiff’s complaint.

Henning A. Dahlberg, plaintiff’s son, testified that January 27, 1937, he went with his father to the real estate department on the second floor of the bank and the father spoke to Thompson. This witness’s testimony as to what took place is substantially the same as that given by his father.

Mrs. Sundberg, plaintiff’s daughter, testified that after her father went to Montana (shortly after he purchased the mortgage in question) Thompson came to their house and said he had the interest, $90, coming due on the mortgage; that she told him the coupon was down in the safety deposit box; that he gave her the money and told her to go get the coupon and give it to him, which shortly thereafter she did; that afterward her father told her she had given Thompson the wrong coupon; that she then called Thompson on the telephone and told him of this mistake and he said: “I noticed that.” That the next morning Thompson drove by their home and took her down to the bank, waited outside in the car for her; that she went upstairs in the bank to the little cage. “I had a receipt from the bank and I gave the girl the receipt when she gave me the coupon. ’ ’ That she then went down to the deposit box, put in the coupon Thompson returned to her and gave him the proper one. That when the next coupon came due six months later, Thompson again called her up and told her he had the money; that she went to the deposit box, got the coupon, gave it to Thompson and he paid her the money at their home one evening. Coupon No. 7 was deposited afterward for collection with the bank, as above stated.

There is evidence on behalf of defendant to the effect that the mortgage in question, when it was originally made in November, 1934, was sold to Mr. Holtorff who was a brother-in-law of the vice president of the bank and who prior to 1930 had been cashier of the bank for about thirty years.

Mr. Rathje, vice president of the bank, testified he had charge of the real estate loan department of the bank for about fifteen years and had charge of the employees of that department; that when the mortgage was sold to Mr. Holtorff in 1934, the bank retained the trust deed and guaranty policy giving the principal note and coupons to the purchaser. That Harold Thompson was employed by the bank; that he was a solicitor of insurance — sometimes acted as chauffeur and sometimes as messenger to take papers to the recorder’s office, etc.; that he never sold any mortgages for the bank or negotiated with customers of the bank for- such sales; that when insurance was expiring where the bank had made loans, Thompson secured renewals of the policies as provided by the trust deeds; that in doing so he had “access to the files and records of the bank as to the trust deed and other papers there in the loan, because the insurance policies, trust deed, and guaranty policies were all filed in one file under that particular loan number.” That Thompson was discharged about February 15, 1937; that the bank did not learn of his dishonesty in connection with the mortgage in the instant case until the spring of 1938, when the interest coupon No. 7 was left at the bank for collection by plaintiff.

On cross-examination he testified that Thompson had access to the files which were kept in the vault and that he had been employed by the bank from 1923, until February, 1937.

There is considerable other evidence in the record but we think it would serve no useful purpose to detail it further for we are of opinion that whether Thompson, in the transaction involved in the instant case, was acting for himself or purported to have been acting for the bank was clearly a question for the jury. Plaintiff had been a customer of the bank for some time. About six months prior to the time in question he purchased the mortgage from the bank, transacting the business on the second floor; shortly afterward he met Thompson at the bank in the real estate loan department in connection with the insurance on the property covered by that mortgage. Thompson then saw him two or three times at his home trying to interest him in some foreclosures. Shortly thereafter Dahlberg purchased the mortgage in question for face value, doing business with Thompson who sat at the same desk as did the person from whom he bought the first mortgage. We think the jury was warranted in finding plaintiff thought he was dealing with the bank and that the bank permitted Thompson to act as though he had authority in the matter. Thompson had access to the files. In these circumstances we think the court erred in entering judgment n. o. v. Pfeiffer v. Farmers’ State Bank, 263 Ill. App. 360.

But defendant contends there was a variance between the allegations of the complaint and the evidence, and therefore his motion for a directed verdict should have been sustained. We have examined the record and are unable to find that the question of variance was in any way brought to the attention of the trial court. But in any event we think there is no merit in the contention. Plaintiff charged defendant with negligence in the manner in which it permitted. Thompson to transact the business and ought not now be permitted to say there was no negligence on its part.

Since the filing of the! briefs, the Supreme Court of this State has handed down two opinions in Walaite v. Chicago, R. I. & P. Ry. Co., 376 Ill. 59, and Goodrich v. Sprague, 376 Ill. 80, on the question of procedure to be followed under § 68 of the Civil Practice Act. In each of these cases there was a verdict in plaintiff’s favor after which defendant filed two motions — a motion for a judgment for defendants non obstante veredicto and for a new trial. The motion for judgment n. o. v. was allowed and judgment entered for defendants, the motions for a new trial were not passed upon but were passed upon by this court in Walaite v. Chicago, R. I. & P. Ry. Co., 306 Ill. App. 5; Goodrich v. Sprague, 304 Ill. App. 556, which was held by the Supreme Court to be error, holding that the jurisdiction of this court to review judgments of the trial court is appellate only; that the motion for a new trial was addressed to the trial court and the judgments of this court in the two cases were reversed and the cause remanded with directions to the trial court to pass upon the motions for new trials.

In the Goodrich case, our Supreme Court referred to the case of Montgomery Ward & Co. v. Duncan, 311 U. S. 243, where a somewhat similar question was under, consideration and said that the Supreme Court of the United States suggested that to prevent delay and unnecessary retrials the trial court should have passed on both motions. While in the two cases decided by our Supreme Court the Appellate Court passed on the motions for new trials (which is not the fact in the case at bar), yet we are of the opinion the trial judge should pass on the motion for a new trial. Following the suggestion of the United States Supreme Court in the Duncan case, we think both motions should have been passed upon by the trial court.

For the reasons stated, the judgment of the Superior Court of Cook county is reversed and the cause remanded with directions to set aside the judgment entered in favor of defendant notwithstanding the verdict and to pass upon defendant’s motion for a new trial.

Reversed and remanded with directions.

Matchett and McSurely, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Consumers Petroleum Company, Appellant, v. J. R. Flagler, Trading as Chicago Oil Equipment Company, and Chicago Oil Equipment Company, Appellees.
    Gen. No. 41,547.
    Opinion filed April 28, 1941.

      Hershenson & Hershenson and James B. McKeon, both of Chicago, for appellant.
    Victor L. Lewis and John L. Davidson, Jr., both of Chicago, for appellee J. R. Flagler.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought an action in replevin to recover possession of a motor truck, called truck No. 29; upon trial by the court the finding and judgment was for defendants; that they had a lien on the ■ truck for $520.92 on account of skill, labor and materials expended. It was adjudged that defendants were entitled to retain the property in question, and from this judgment plaintiff appeals.

The briefs tend to confuse the main question by arguing immaterial matters, namely, whether the repairs were properly made. Plaintiff is the owner of trucks and defendants are in the business of repairing or manufacturing truck tanks. The parties entered into agreement for defendants to make certain repairs on two old truck tanks on trucks described as No. 25 and No. 29. The latter truck is the subject matter of this replevin suit.

Truck No. 26 was the subject of a special written contract by which defendants agreed to build a new tank and equipment to be installed on a new chassis furnished by plaintiff, for $1,225. The building of the new truck (No. 26) was finished and turned over to plaintiff in February, 1940; at this time there was a balance due on this contract of $175. Defendants finished the repairs and changes on trucks 25 and 29, and truck 25 was delivered to plaintiff. Defendants had made an estimate of the costs of the change-over of the tanks and the equipment on trucks 25 and 29 at $330 or $340, and if any further parts were necessary these would be extra. Truck 29 was first taken out of defendants’ shop for temporary use by plaintiff about the middle of December before the work on it was completed. This was done two or three times afterward. The last time it was returned to defendants’ shop was in March, 1940, when it was returned for the purpose of finishing the job which had never been completed. Also at this time "a new pump was installed at plaintiff’s request.

After the work on truck 29 was completed defendant Flagler talked to Mr. Schurman, plaintiff’s president, with reference to receiving payment for his work and was told that if the bills would be sent they would be paid. There was no complaint about the work done by defendants. Thereupon a statement was delivered to Mr. Schurman which showed there was a balance due on the new truck tank and equipment of $175, and on the changes on trucks 25 and 29 of $520.92. Schurman then had a check drawn to the order of defendants for $175 and gave it to an employee to give to defendants. There is some conflict in the evidence on this point, but defendant Flagler testified no instructions were given him as to which account this payment of $175 should be applied and that he naturally supposed it was to pay the balance due for truck' No. 26, and applied it in payment of that account.

The trial court w;as of the opinion defendants had a right to apply the money in this way. Royal Colliery Co. v. Alwart Bros. Coal Co., 276 Ill. 193; Wellman v. Miner, 179 Ill. 326; Thayer v. Bolender, 250 Ill. App. 16.

Upon the trial plaintiff made a tender of $77.40 upon the theory that this amount, with the check for $175, paid defendants in full for all of the work done on truck 29. But, as we have seen, this tender was insufficient as it did not pay to defendants the amount plaintiff owed them for work done on trucks 25 and 29. It does not seem to be questioned that plaintiff owed defendants for the work on trucks 25 and 29 the sum found due by the court — $520.92.

Plaintiff raises the question as to whether defendants were entitled to a lien on truck 29 for an amount due for work done on the two trucks, 25 and 29. Defendant Flagler testified he did not make any detailed price on each of the- trucks but one price for all of the work on both trucks. Under such circumstances there is abundant authority for holding that the lienor may retain the property in his possession for the whole amount due under the contract. 37 C. J. 337. The facts under consideration in Hare’s Motors, Inc. v. Fred Roeder Mfg. Co., 207 App. Div. 670, 202 N. Y. S. 830 (affirmed 238 N. Y. 590), are much like those now before us. There the defendant undertook the construction of 10 truck bodies to be mounted on chassis supplied by plaintiff; when the work on eight trucks had been completed plaintiff canceled the order and demanded the return of the two chassis on which the defendant had not mounted the truck bodies; defendant refused to deliver them, asserting a lien on them for the amount of services and material furnished on the trucks already delivered. The court said the question was, did the lien extend to the services furnished in the construction of the eight other bodies ?— and held that it did as the work was performed under a single contract, and the lien attached and extended to the services rendered for all the work done under the contract. Schmidt v. Blood, 9 Wend. (N. Y.) 268, was replevin in which part of the hemp had been withdrawn without storage being paid; the warehouseman claimed a lien on the hemp left in the storehouse for the whole amount of the storage charge. It was held, that he had a lien for the entire amount of the contract price. In Griffith v. Speaks, 111 Ky. 149, a lien was allowed on horses left in a livery stable for the amount due for stabling and feeding several head of horses although they had been removed. Other cases might be cited to the same effect.

Cases cited by plaintiff are not in point. West Allis Industrial Loan Co. v. Stark, 197 Wis. 363, involved a contest between a third party holding a chattel mortgage and the repair man; the mortgage holder had tendered $75 for repairs. The court said that under the Wisconsin statute defendant’s right to a lien for repairs could not have priority over plaintiff’s claim under its chattel mortgage for any sum in excess of $75.

Plaintiff in its brief questions the right of defendants to a lien. This right was not questioned in the trial court, and furthermore, defendants pleaded they had a lien which was recorded, and this was not denied. Under Buie 63 of the municipal court (present Buie 35) where such allegation of fact is not denied it must be taken to be admitted, except in certain cases not material here. The same practice is supported in the Civil Practice Act. Ill. Rev. Stat., ch. 110, § 40, subpar. 2 [Jones Ill. Stats. Ann. 104.040]. South East Nat. Bank v. Board of Education, 298 Ill. App. 92, 114. It is also well known that a new theory or point cannot be raised for the first time in the court of review. Chicago Title & Trust Co. v. De Lasaux, 336 Ill. 522.

There is no merit in plaintiff’s argument that defendants released their lien on truck 29 by voluntary and unconditional delivery to plaintiff. The evidence shows it was the agreement of the parties that there was to be no payment until the work was completed. There was no unconditional delivery to plaintiff, who used the truck temporarily before the work was finished. The evidence shows it was returned to defendants for the purpose of finishing the job. In Wolman v. Raphael, 278 Ill. App. 172, a car was taken daily from a garage where it was kept at a monthly charge. It was held that under such circumstances a hen exists. on the automobile for the charges made whether it was kept for a stated time or taken out daily by the owner. In Commercial Acceptance Corp. v. Hislop Garage Co., 89 N. H. 45, the facts are like those now before ns, where it was held that a lien existed for repairs although the owner occasionally made use of the car during progress of the work.

Objection is made to the rulings of the court, but they are not important. In any event, where the case is tried by the court without a jury it will be presumed that it considered only competent evidence.

We see no convincing reason to disagree with the findings and judgment of the trial court, and the judgment is affirmed.

Judgment affirmed.

O’Connor, P. J., and Hatchett, J., concur.


author: Mr. Justice Matchett

text:
    Vaughan E. Westerfield, Appellee, v. Norman W. Redmer and A-l Screw Machine Products Company, Appellants.
    Gen. No. 41,545.
    Opinion filed April 28, 1941.

      Morris A. Haft, of Chicago, for appellants.
    Oliver C. Heywood, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

The appeal of defendants is from a judgment in the sum of $700 entered in favor of plaintiff in an action brought in equity by plaintiff to compel the performance of an alleged oral agreement to cause a new corporation to be formed which would acquire the assets of certain other corporations and employ plaintiff as manager. Defendants answered the bill denying the contract and averred that if made it was unenforceable by reason of the statute of frauds. The answer admitted employment of plaintiff by defendants at a salary of $50 per week and said that he had worked five weeks and that they tendered $250 in payment, which plaintiff refused to accept. The answer also averred that the contract between defendants and plaintiff was for personal services and could not be specifically performed for that reason.

There was trial by the chancellor and on July 2, 1940, a decree finding that there was no contract other than for personal services which plaintiff had furbished at defendants’ request, and that he was entitled to recover $100 per week for seven weeks, a total of $700, for which judgment was entered. There is no report of proceedings. The praecipe called for it. Defendants elected not to file it.

It is contended that since the court found there was no ground for equitable relief and that the basis of the court’s equitable jurisdiction had failed, the court was without jurisdiction over purely legal rights of action and that to enforce such a right deprived defendants of their constitutional right of trial by jury. In support of these contentions with other cases are cited James H. Rice Co. v. McJohn, 244 Ill. 264; Townsend v. Townsend, 362 Ill. 384; Toledo, St. Louis & N. O. R. R. Co. v. St. Louis & O. R. R. Co., 208 Ill. 623, 632; Brauer v. Laughlin, 235 Ill. 265; and Metropolitan Life Ins. Co. v. Davis, 295 Ill. App. 582. These cases in substance hold that grounds of equitable jurisdiction must be alleged in the bill and proved upon the hearing in order to give to a court of equity jurisdiction to decide and adjudicate a purely legal claim connected with the subject matter of the litigation. This seems to have been the law prior to the enactment of the Civil Practice Act. Thus in Brauer v. Laughlin, 235 Ill. 265, the Supreme Court said:

“The recovery here allowed is upon a purely legal demand, and if an action had been brought at law, either of the parties would have been entitled to a jury on the trial. Courts will not permit parties to sue in chancery, and upon failure to establish any basis for equitable relief have the bill retained for the purpose of a recovery upon a purely legal demand. To allow this to be done would be to deprive the defendant of his constitutional right of trial by jury.”

These decisions were rendered prior to the enactment of the Civil Practice Act (Laws of 1933, p. 784) which has very much modified the procedure in civil actions at law and in equity. By section 1' of the act it is made applicable “to all civil proceedings, both at law and in equity, ’ ’ except where the same is regulated by special statutes. Section 31 of the act provides that there shall be no distinctions respecting the manner of pleading between actions at law and suits in equity other than as specified in the act, but the section shall not be deemed to affect substantial averments of fact necessary to state a cause of action at law or in equity. Section 43 (1) of the act provides that parties may plead as many causes of action, counterclaims, defenses, and matters in reply or rejoinder as they may have and that each shall be separately designated and numbered. Section 44 (1) provides that subject to rules any plaintiff or plaintiffs may join any causes of action whether legal or equitable or both, against any defendant or defendants; and subject to rules the defendant may set up in his answer any and all cross demands whatever, whether in the nature of recoupment, set off, cross bill, in equity or otherwise, which shall be designated counterclaims. “But the court may, in its discretion, order separate trials of any such causes of action or counterclaims if they cannot be conveniently disposed of with the other issues in the case. Legal and equitable issues may be tried together where no jury is employed.” (2) of section 44 provides in substance that any action or counterclaim may be transferred at any time by order of the court from the law docket to the equity docket, or vice versa, as convenience may require.

Supreme Court Rule 9 (Smith-Hurd Ann. Stats., ch. 110, § 259.9, p. 503 [Jones Ill. Stats. Ann. 105.09]) provides that the complaint initiating an action shall contain in the caption and on the back or cover the words “at law” or “in chancery.” If, however, any equitable relief is prayed the cause shall be marked “in chancery” even though relief “at law” is also prayed. Supreme Court Bule 10 provides in substance that in all matters which prior to January 1, 1934, were within the jurisdiction of a court of equity, whether directly or as an incident to other matters before it, or which the equity court could have heard so as to do complete justice between the parties, might be regarded thereafter as a single equitable cause of action and when so treated should be pleaded without being set forth in separate counts, and should be heard and decided in the manner heretofore practiced in courts of equity. Supreme Court Buie 11 provides that when actions at law and in chancery which might be prosecuted separately are joined, the party joining such action may, if he desires, treat them as separate causes of action, plead such causes of action in distinct counts marked respectively “separate action at law” and “separate action in chancery”; that when so pleaded the court shall first determine whether the actions joined by the separate counts are properly severable, and, if so, whether the actions shall be tried separately and in what order, and whether the actions shall be tried together. If the court determines the actions are severable the issues formed under the legal counts shall be tried before a jury when a jury has been properly demanded or by the court when a jury has not been properly demanded, and the equitable issues shall be heard and decided in the manner heretofore practiced in courts of equity.

These sections of the Practice Act and the rules of court made pursuant thereto, we think, indicate that the manner of procedure in this case was within the discretion of the court. The matter of the employment of plaintiff by defendants was set up in the bill, and while the prayer was for equitable relief (namely, specific performance) the bill also prayed “for such other and further relief in the premises as the court shall deem equitable and just.” It is true if the defendants had demanded trial by jury of these issues as to the amount due to plaintiff for his services, they would have been entitled to it, and under the provisions of the Civil Practice Act the chancellor would have been required to submit the issues to the jury. They made no such motion. . They demanded no such trial. Under the provisions of section 64 of the Civil Practice Act (Smith-Hurd Ann. Stats., ch. 110, par. 188, p. 548 [Jones Ann. Stats. 104.064]) the jury must be regarded as waived. People ex rel. Swanson v. Fisher, 340 Ill. 250. Defendants have had a trial and on the trial made no objection to the procedure. Legal and equitable claims were heard together. It would be useless to send the case back to the trial court to have the chancellor enter an order that he should hear it through his legal instead of his equitable ear. Substantial justice has been attained without any material disregard of defendants’ legal rights. The judgment will therefore be affirmed.

. Judgment affirmed.

O’Connor, P. J., and McSurely, J., concur.


author: Mr. Justice Matohett Mr. Presiding Justice O’Connor

text:
    Walter J. Kelly, Minor, by Herbert J. Kelly, His Father and Next Friend, Appellant, v. Robert R. Burtner, Appellee.
    Gen. No. 41,554.
    Opinion filed April 28, 1941.
    John A. Bloomingston, of Chicago, for appellant.
    Charles E. Green, of Chicago, for appellee.
   Mr. Justice Matohett

delivered the opinion of the court.

In an action for damages for personal injuries and upon trial by jury, at the close of plaintiff’s evidence, there was a motion by defendant for an instruction of not guilty as to subparagraph “(f)” of the complaint, which charged defendant with wanton and wilful conduct. The motion was granted, the instruction given. Further evidence was taken. At the close of all the evidence the jury returned a verdict for defendant on which the court entered judgment, from which plaintiff appeals.

The only alleged error argued is instructing a verdict for defendant on the wilful and wanton charge. The question for decision is whether at the close of plaintiff’s evidence the jury could have reasonably found defendant guilty of the wilful and wanton charge.

November 9, 1937, plaintiff, a boy nine years of age, was severely injured when struck by an automobile driven by defendant at or near the intersection of Lawrence avenue and Wolcott street in Chicago. Lawrence avenue runs east and west. It is intersected by Wolcott street, which runs north and south. Double street car tracks were in Lawrence avenue. Westbound cars ran over the north tracks, eastbound over the south tracks. On the southwest corner of the intersection was a safety zone o,r island made of concrete raised about 6 inches above the surface, about 4 or 5 feet wide and about 60 feet long. At the west end of this island was an abutment. Lawrence avenue is 54 feet, Wolcott street 33 feet wide. The main entrance to a Sears Roebuck store was on the north side of Lawrence avenue, 150 feet west of the building-line on the northwest corner of the intersection. On the southwest corner of the intersection was a school and playground with a solid fence around it about 2 feet high. There were flicker lights on both sides of the intersection. One of these was about 105 feet east of the curb line of Wolcott street, which said “Slow, Danger.” The evidence also tends to show there was a similar sign at about the same distance west of the intersection.

On the afternoon of the day of the accident plaintiff had been to the office of Dr. Nimtz, a dentist. He got through and was on his way home. He knew this corner well. He walked alone from the south curb to the safety island. A street car (eastbound) was standing there. Passengers were getting on and off. Plaintiff had his school books in his hand. . He started to go around behind the street car. He stood looking east, he says, before he went on to the westbound track. He says when he first looked from behind the street car he saw autos coming from the east. He could, he says, see they were going straight west across the path in which he was moving. One of these struck him. He does not remember which. When he awoke he was in the hospital.

Plaintiff’s witnesses (Milton Visovcatti, who was last to board the street car and was standing on the step of the back platform; Cordis Cobb, a heating engineer for Sears Roebuck & Co., who was on Lawrence avenue about 20 or 25 feet west of Wolcott street looking in the window of a store; Carl Gr. Johnson, an iron worker who was on the rear platform of the street car right at the stop; and Lester Peters, who was on the sidewalk in front of the Sears Roebuck store about 10 or 12 feet east of the middle entrance) all agree that the first they knew of the accident was through hearing the impact of the car when it struck plaintiff. Mrs. Olga Streccius, who at the time of the accident was on the north side of Lawrence west of Wolcott street at the Sears entrance, said the first she heard was the brakes and that she looked up and saw the boy come sliding on his stomach for 15 feet, sliding west. She walked out to look at the injured boy. A man had him in his arms. She saw plaintiff lying on the pavement between the two tracks. These witnesses agree no horn was sounded. Defendant testified he had a horn but did not sound it. The time was about 5:30 p.m., and it was getting dark.

Defendant was called as an adverse witness and testified that he did not see any “slow” signs east or west of Wolcott street on Lawrence; that he entered Lawrence from east of the viaduct; that it was a busy street and he was returning home from his work, driving a 1933 Plymouth sedan; that he was going about 20 miles an hour. Mr. John Speer was riding with him. The car had brakes and going at that speed he could stop it in 20 or 25 feet.' He was looking out as he went west and saw the street car stopped at the safety island. He had a clear path across Wolcott street and crossed at a speed of between 15 and 20 miles per hour, but he was not watching the speedometer. He was going west with his right wheels barely to the south, maybe 5 inches, of the north rail of the westbound track. He was straddling the south rail. As he passed the street car his left wheels were in the space between the south rails of the west bound tracks and the side of the street car. There were cars parked at Sears. They were pulling in and out. When he hit the boy the front of his car was about 5 feet past the street car. His radiator cap hit plaintiff and he thought there was also a mark on the shell to the right of it. He first saw the boy perhaps a .little bit to the right of his left fender headlight and about 5 feet from the auto. It was his impression plaintiff was running, and such also was the impression of other witnesses who saw him as he moved from the south side of the street to the safety island and around the car. The boy was put in defendant’s car. Defendant took him to the hospital. Defendant made a statement to the police in which he said: “When I was even with the east bound street car it started up, and as I was 15 to 20 feet west of the abutment of the safety island on the south side of Lawrence, west of Wolcott I noticed a child rig'ht in front of my car, I put on my brakes, the child was hit by the front.” Defendant said he would not have told the police that the car was moving unless he believed it to be true; that he might have been mistaken but that was his impression at the time. He did not think he was 15 feet or so to the west of the back end of the street car when he hit the child. The witness said he had meant by the statement made that he saw the child when he was 15 to 20 feet west of the abutment. His eyesight and hearing were good. The street was dry. Speer, the passenger in his car, was a friend and fellow employee.

The whole of the evidence is to the effect that plaintiff crossed the street not at the crossing, as he had been told to do, but some distance from it; that he crossed from the south north to the safety island and then went around the street car just as it was starting up. The jury who heard the evidence and the court who passed on plaintiff’s motion for a new trial were manifestly of the opinion either that plaintiff was guilty of contributory negligence or that there was no negligence as alleged.

The question here is whether the charge of wilful and wanton conduct should have been submitted to the jury. The leading case is Walldren Express & Van Co. v. Krug, 291 Ill. 472, where, affirming a judgment, the Supreme Court said, quoting from Chicago City Ry. Co. v. Jordan, 215 Ill. 390:

“Where there is a particular intention to injure, or a degree of willful or wanton recklessness which authorizes a presumption of an intention to injure generally, the act ceases to be merely negligent and becomes willful or wanton.”

In other cases the Supreme Court has often said in substance that whether the negligent conduct of a defendant amounts to wilfulness or wantonness is a question of fact to be determined by the jury. Brown v. Illinois Terminal Co., 319 Ill. 326; Fickerle v. Seekamp, 274 Ill. App. 310.

In Streeter v. Humrichouse, 357 Ill. 234, the Supreme Court also said that in passing upon a motion to direct a verdict on this question the rule was that, if, when all the evidence was considered, with all reasonable inferences drawn from it in its aspect most favorable to the party against whom the motion is directed, and there was a total failure to prove the one or more necessary elements of the charge, the motion should be allowed; that whether an act was wilful or wanton would depend upon the circumstances in each case.

In Provenzano v. Illinois Cen. R. Co., 357 Ill. 192, the Supreme Court said:

“In order to constitute wilful and wanton misconduct the injury must either have been intentionally inflicted, or produced by acts so grossly negligent as to exhibit a reckless disregard for the safety of others.”

In the quite recent case of Greene v. Noonan, 372 Ill. 286, the Supreme Court considered the question of whether the trial court committed prejudicial error in refusing to withdraw a charge of wilful and wanton conduct from the jury by instructing them to find defendants not guilty. The court said (p. 290): “The rule, often announced, is that the question whether an injury is the result of wilful and wanton conduct is one of fact to be determined from the evidence, yet, where there is no evidence tending to support such charge, there is no question of fact to submit to a jury and a motion to direct a verdict on those counts presents a question of law for the court.”

In Nosko v. O’Donnell, 260 Ill. App. 544, this court, reviewing the authorities, held that proof offered tending to show that a defendant was driving his truck at a speed of 25 miles or more per hour, where no evidence was offered tending to show such speed under the circumstances was unusual, was not sufficient to sustain a charge of wilfulness and wantonness.

The evidence in this record at the time defendant’s motion was made, we hold, failed to disclose facts from which the jury could reasonably infer wilfulness and wantonness. The evidence as to speed is to the effect that defendant was driving at 15 to 20 miles per hour. All the other evidence tends to show that plaintiff crossed the street not on the crosswalk (as he had been directed by his parents and teachers to do) but walked or ran across the street to the safety island and passed around the rear of the street car in the path of defendant’s automobile, where he was hit. It is apparent that as defendant approached the scene of the accident the street car would prevent his seeing plaintiff as he approached. The accident is deplorable and resulted in serious injury, but there is nothing in this record from which a jury could reasonably infer that defendant was driving with a reckless disregard for the safety of others. We hold the court did not err in granting defendant’s motion for an instructed verdict as to this charge at the close of the evidence for plaintiff.

The judgment will therefore be affirmed.

Judgment affirmed.

MoSurely, J., concurs.

Mr. Presiding Justice O’Connor

specially concurring: I agree with what is said in the foregoing opinion but I go farther and say that since the jury found defendant was guilty of no negligence and since no argument is made in the briefs that such finding is unwarranted, it is obvious defendant could not be guilty of wilfulness or wantonness. The term “wanton” expresses a reckless disregard of consequences. Schoenbacher v. Kadetshy, 290 Ill. App. 28. It connotes a greater degree of negligence than ordinary negligence. Walldren Express & Van Co. v. Krug, 291 Ill. 472. If defendant was not guilty of the lesser offense, obviously he was not guilty of the greater.


author: Presiding Justice Fulton.

text:
    Peter J. Geerlings, Appellee, v. Acme Feeds, Inc., Appellant.
    Gen. No. 9,246.
    opinion filed April 14, 1941.

    Harry B. Grundy and Edward E. Adams, for appellant; Benj. F. Cassiday, for appellee.
   Opinion by

Presiding Justice Fulton.

‘ ‘Not to be published in full.’,’


text:
    Eleanor Babb and Blanche B. Dennison, Appellees, v. Hazel L. Babb, Appellant.
    Gen. No. 9,260.
    opinion filed April 14, 1941.
    Merrill H. Johnston, for appellant; Williams & Williams and Hogan & Coale, for appellees.
   Opinion by

Presiding Justice Fulton.

“Not to be published in full.”


author: Justice Riess.

text:
    L. Martin, Appellee, v. Estate of Ida Illinois Martin, Deceased, by Daisy Martin Spilman, Administratrix of Estate of Ida Illinois Martin, Deceased, Appellant. Myrtle E. Martin and Nellie O. Smith, Co-Administratrices of Estate of Ida Illinois Martin, Deceased, Appellees.
    Gen. No. 9,279.
    opinion filed April 14, 1941.
    Omer Poos, for appellant; Hill, Bullington & Vandever, for appellee.
   Opinion by

Justice Riess.

“Not to be published, in full.”


author: Presiding Justice Hebel.

text:
    F. E. Lasecki, Administrator De Bonis Non of Estate of Stanley Borek, Deceased, Appellant, v. Barbara A. Fischer and Walter Fischer, Appellees.
    Gen. No. 41,372.

      opinion filed April 23, 1941;
    rehearing denied May 15, 1941.
    Joseph F. Elward, for appellant; Raymond F. McNally,' Jr., of counsel; Maximilian J. St. George, for appellee Barbara A. Fischer.
   Opinion by

Presiding Justice Hebel.

“Not to be published in full.’’


text:
    United Service Stations, Inc., Appellee, v. Samuel W. Alpert and Alpert Super Service, Inc., Appellants.
    Gen. No. 41,540.
    opinion filed April 23, 1941.
    Max C. Liss, Schwartz & Cooper and Leonard M. Spira, for appellants; Harry Adelman and David L. Canmann, of counsel; Bippus, Rose, Burt & Pierce, for appellee; Grover D. Rose and Lester K. Clin, of counsel.
   Opinion by

Presiding Justice Hebel.

“Not to be published in full.”


text:
    Arnold Groth, Appellee, v. Schueneman-Flynn’s Logan Square, Inc., Appellant.
    Gen. No. 41,573.

      opinion filed April 23, 1941.
    Charles V. Falkenberg, for appellant; Irving D. Levin and Jacob Brisgall, for appellee.
   Opinion by

Presiding Justice Hebel.

“Not to be published in full.”


author: Justice Burke.

text:
    People of the State of Illinois ex rel. Claude R. Henderson, Appellee, v. Robert J. Dunham et al., Appellants.
    Gen. No. 41,339.
    opinion filed April 23, 1941.
    John O. Bees, for appellants; Martin G. Loeff, of counsel; A. Henry Goldstein and Edward P. Saltiel, for appellee; A. Henry Goldstein," of counsel.
   Opinion by

Justice Burke.

“Not to be published in full.”


text:
    Jack Ittin, Appellant, v. Martin L. Nattenheimer, Appellee.
    Gen. No. 41,579.
    opinion filed April 23, 1941.
    William J. Ruttenberg, for appellant; Irving Goodman, of counsel; Sid Mogul, for appellee.
   Opinion by

Justice Burke.

“Not to be published in full.”


author: Justice Denis E. Sullivan.

text:
    F. Gerald Thomas, Appellant, v. Benjamin Melmed, Appellee.
    Gen. No. 41,266.
    opinion filed April 23, 1941.
    Lloyd C. Whitman, for appellant; Samuel P. Gurman, for appellee.
   Opinion by

Justice Denis E. Sullivan.

“Not to be published in full.”


text:
    Northern Trust Company, Trustee Under the Will of Daniel Burkhartsmeier, Deceased and Harry Manaster and Brother, Appellees, v. Edward L. Watson, Appellant.
    Gen. No. 41,478.
    opinion filed April 23, 1941.
    Albert H. Krusemark, for appellant; Albert H. Krusemark, Jr., of counsel; Campbell, Clithero & Fischer, for appellees.
   Opinion by

Justice Denis E. Sullivan.

‘‘Not to be published in full.”


text:
    Electrical Survey Bureau, Inc., Appellant, v. A. S. Schulman Electric Company, Appellee.
    Gen. No. 41,536.

      opinion filed April 23, 1941.
    Cassels, Potter & Bentley, for appellant; George C. Bunge, of counsel; Charles P. Schwartz, for appellee; Milton M. Adelman, of counsel.
   Opinion by

Justice Denis E. Sullivan.

“Not to be published in full.”


author: Presiding Justice O’Connor.

text:
    Alexander Smullan, Appellant, v. Kensington Steel Company, Appellee.
    Gen. No. 41,551.
    opinion filed April 28, 1941;
    rehearing denied May 12, 1941.
    Leslie H. Whipp, for appellant; Knapp, Allen & Cushing, for appellee; Harlan L. Hackbert and R. Newton Rooks, of counsel.
   Opinion by

Presiding Justice O’Connor.

“Not to be published in full.”


text:
    Thomas Jeff Brumit, Appellant, v. R. M. Wasson and Indian Motorcycle Sales Company, Appellees.
    Gen. No. 41,582.

      opinion filed April 28, 1941.
    Edward J. Green and Robert Eriedlander, for appellant; Robert Eriedlander, of counsel; Burt A. Crowe, for appellees.
   Opinion by

Presiding Justice O’Connor.

“Not to be published in full.”


author: Justice McSurely.

text:
    Roth-Adam Fuel Company, Plaintiff, v. Frank L. Adam, Defendant. Frank L. Adam, Appellant, v. Roth-Adam Fuel Company et al., Appellees.
    Gen. No. 41,557.
    opinion filed April 28, 1941.
    Kennedy, Grider & Moberley, for appellant; Harry A. Biossat, for appellees.
   Opinion by

Justice McSurely.

“Not to be published in full.”


author: Justice Matchett.

text:
    Elizabeth Wickerath, Also Known as Elizabeth Unhoch, Appellant, v. Western and Southern Life Insurance Company, Inc., and Anthony Unhoch, Administrator of Estate of John A. Unhoch, Deceased, Appellees.
    Gen. No. 41,588.
    opinion filed April 28, 1941.
    Peter V. Fazio, for appellant; Conrad D. Philos, of counsel; Hoyne, O’Connor & Rubinkam, for appellee; Nathaniel Rubinkam and James F. Flanagan, of counsel.
   Opinion by

Justice Matchett.

‘ ‘Not to be published in full. ’ ’


text:
    Richard C. Gillespie, Appellee, v. Charles Weiss and Samuel Cinman, Appellants.
    Gen. No. 41,735.

      opinion filed May 6, 1941.
    Joseph H. Horwieli, Sam Frank Adler and Aaron Soble, for appellants; Jerome S. Klein, of counsel; David B. Rothstein, for appellee.
   Opinion by

Justice Denis E. Sullivan.

“Not to be published in full.’’


author: Mr. Justice Burke

text:
    Richard Herndobler, Minor, by Harry Herndobler, His Father and Next Friend, Appellee, v. Calvin Goodwin, Appellant.
    Gen. No. 41,548.

      Opinion filed April 23, 1941.
    Rehearing denied May 21, 1941.
    Cassels, Potter & Bentley, of Chicago, for appellant ; Leslie H. Vogel and Richard H. Merrick, both of Chicago, and Ralph F. Potter, of counsel.
    A. B. Manion and Earl F. Schoening, both of Chicago, for appellee; A. B. Manion, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

Plaintiff, a four-year-old boy, filed a complaint in the circuit court of Cook county for personal injuries suffered as a result of the alleged negligence of the defendant in the operation of an automobile. The jury returned a verdict finding the defendant guilty and assessing plaintiff’s damages at the sum of $6,500. The court overruled defendant’s motion for a new trial and entered judgment on the verdict. This appeal followed.

The accident occurred on July 9, 1938, a few minutes before 8:00 a. m. on Avenue M, between 101st and 102nd street in the city of Chicago. Avenue M is 38 feet wide from curb to curb and runs north and south. 102nd street is 32 feet wide from curb to curb and runs east and west. The northeast corner of the intersection is vacant and unimproved for a distance of more than 104 feet north of the north building line of 102nd street. The home of the boy is situated on the east side of Avenue M about 110 feet north of 102nd street. The plaintiff, a boy about three feet in height, was standing on the parkway between the curb and the sidewalk on the east side of the street, about five feet behind the rear of a car parked in front of his home. He was watching a relative pack the car. Plaintiff maintains that the evidence shows that there was' only one car parked in front of his home. Defendant, on the other hand, insists that there were two or three automobiles parked in front of plaintiff’s home, and that plaintiff was injured when he darted into the street between two of these automobiles. Plaintiff’s father had just alighted from the right-hand side of a southbound automobile on the opposite or west side of Avenue M and about 60 feet south of their home. When the boy saw his father cross the street he started to run toward him. The defendant Goodwin was driving a 1935 Studebaker car in a northerly direction upon Avenue M and approaching 102nd street at a speed (according to defendant) of 20 to 28 miles per hour. As he approached 102nd street he applied his brakes and crossed the intersection at 18 to 20 miles per hour. Goodwin testified that at this time he saw a car which had been proceeding in a southerly direction on Avenue M pull over to the west side of the street and stop west of the Herndobler home. Plaintiff’s father was a passenger in this car. Goodwin stated that he was about 20 feet south of the car when it stopped. He further testified that as the car came to a stop, the wheels turned out to the center and drew his (defendant’s) attention; that the left door started to open or did open and there was a movement which made him (Goodwin) glance to his left; that his car was about even with the car which had come to a stop; that the father of the boy saw the boy leave the safety of the curb and also saw Goodwin’s car approaching from the south, and yelled; that the boy’s mother, who was on the sidewalk on the east side of the street, screamed; that he (Goodwin) heard the scream, jammed on his brakes, looked straight ahead but did not see anything; that he started to release his brakes when he heard another scream and he then came to a dead stop, and that between the time he heard the first scream and the time he stopped his car he traveled about 20 feet along Avenue M. On behalf of plaintiff there is testimony that after plaintiff’s father had alighted from the southbound car in which he had been riding, plaintiff saw his father and started to run toward him; that his father glanced to the south and saw defendant’s car just entering the intersection of 102nd street and Avenue M, or over 120 feet south of the child; that the defendant’s car was northbound; that the father yelled and that when he did so the child turned and started to run north on Avenue M and was struck by defendant’s car, northbound, about even with the middle of the car that was parked directly in front of the Herndobler home. The evidence shows that when the father yelled he ran into the street; that before he could reach the boy, defendant’s car passed by him, and that when it passed him, defendant was looking to the west and back over his left shoulder. There is testimony that at the time of the accident there was no car parked between the point where the child left the curb on the east side of Avenue M and 102nd street, a distance of 120 feet or more. There is testimony that the defendant’s car was going 40 to 45 miles an hour as it crossed 102nd street. Defendant testified that he stopped within 20 feet after he heard the scream. Plaintiff’s father testified that the defendant’s car traveled about 90 feet after it struck the child before coming to a stop. The evidence shows that both of plaintiff’s legs were broken a few inches below the hip joint with displacement of the upper and lower fragments; that he received two gashes in his head, each requiring five sutures; that these gashes extended down from the skull; that when he was examined at the hospital his skin was cold and clammy, his pupils dilated and his pulse weak and thready; and that he suffered a hrain injury, cerebral depression of the brain centers and had skin abrasions . on his face, arms and hands. It was necessary, due to the location and severity of the breaks, to place both legs in Thomas splints, and he was placed in a bed with his head down and feet up at a 45 degree angle with pulleys and weights attached to the Thomas splints. He hung in that position for one month. He was then placed in a plaster cast completely covering the lower part of his body. He remained in the cast a little over a month. When the cast was removed, his feet were everted, that is, turned out. At that time he was unable to walk, and had to learn to walk all over again. He was confined to his bed for some weeks after the cast was taken off. He started to crawl a few weeks later. He was unable to stand by himself or get around on his legs until the spring of the following year, then, when he walked he threw his feet out and was stiff from his knees up. There is evidence that when he started to walk he- walked with a “Charlie Chaplin manner of throwing his feet.” Plaintiff maintains that at the time of the trial this condition persisted, and that the jury had an opportunity to observe such condition for themselves. There was evidence that since the accident and up to the time of the trial the boy had been nervous and had not slept well and had been under the care of a doctor.

It is obvious that the testimony presented to the jury a question of fact as to whether defendant so carelessly and negligently drove his automobile that by means of such negligence and as a proximate result thereof the automobile struck the plaintiff, by means whereof he sustained the injuries complained of. Defendant maintains that the trial court committed error in giving the following instruction:

“You are hereby instructed that no owner or operator of an automobile is necessarily exempt from liability for collision on a public highway by simply showing that at the time of the accident he did not run at a rate of speed exceeding the limit allowed by the law. On the contrary, he still remains bound to anticipate that he may meet persons at any point in the public highway and he must keep a proper lookout for them, and keep the motor vehicle under such control as will enable him to avoid a collision with another person using said highway.” This instruction apparently was taken from the language found in Kessler v. Washburn, 157 Ill. App. 532. The opinion in the Kessler case states, however, that the “true test is that he must use all the care and caution which an ordinarily careful and prudent driver would have exercised under the same circumstances.” Plaintiff insists that there is nothing in the instruction that in any way misled the jury as to the degree of care required of defendant. He also calls our attention to the fact that the instruction was one of a series of 28 instructions, and that the jury was fully instructed as to the degree of care defendant was required to exercise. At best, this instruction is misleading and confusing. It cast upon the defendant the burden of avoiding a collision with another person under any and all circumstances. Under the instruction, exemption from liability is determined by the ability of the driver to avoid a collision. It requires him to maintain such a lookout for pedestrians and to keep such control of his vehicle as will enable him to avoid a collision at all hazards. The instruction places upon the defendant a duty greater than that required by the law. This instruction was clearly erroneous. Plaintiffs do not cite any authority which supports the giving of such an instruction. We do not believe that under the facts and circumstances of this case the damage done by the giving of the erroneous instruction was cured or mitigated by other instructions. The jury was required to pass on a question of fact and it was important that they be properly informed as to the law applicable thereto. Defendant also contends that an instruction on the subject of damages is erroneous in that it told the jury that in determining the amount of damages they have the right to take into consideration ‘1 such future suffering and loss of health, if any, as the jury may believe from the evidence before them in this case he has sustained or will sustain by reason of such injuries, if any.” Defendant insists that there is no basis in the evidence for the giving of this instruction, and that under it the jury was permitted to assess damages by way of conjecture and without proof. In our opinion, there is evidence in the record warranting the giving of this instruction.

Defendant insists that the court erred in admitting into evidence a photograph of the plaintiff lying in bed and portraying the weight and pulley arrangement. He argues that the only purpose of introducing this photograph was to unduly excite the emotions and sympathy of the jury for the plaintiff. The injuries suffered by the child were painful and serious. We do not believe that the introduction of the photograph unduly excited the jury’s emotions. The injuries and treatment had all been fully described, and the introduction of the photograph under the circumstances did not constitute error. Defendant also complains that plaintiff’s counsel made statements during the trial in his argument to the jury which were so improper, prejudicial and inflammatory as to require a reversal of the judgment. Counsel for each party indulged in conduct and remarks which may be justly criticized. We would not, however, feel constrained to direct a new trial because of such conduct and remarks.

Finally, defendant argues that the judgment is excessive. A mere statement of the injuries suffered by this child should satisfy anyone that the damages awarded by the jury were not excessive.

Because of the error in giving an erroneous instruction, the judgment of the circuit court of Cook county is reversed and the cause remanded for a new trial.

Reversed and remanded for a new trial.

Hebel, P. J., and Denis E. Sullivan, J., concur.