author: Mr. Justice O’Oonnor

text:
    The Wesley Company, plaintiff in error, v. Globe & Rutgers Fire Insurance Company of New York, defendant in error.
    Gen. No. 29,547.
    Action upon fire insurance policy. Judgment for defendant. Error to the Municipal Court of Chicago; the Hon. John A Bugee, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 2, 1925.
    Moses, Kennedy, Stein & Bachrach, for plaintiff in error; Isaac E. Ferguson, of counsel.
    Charles B. Obermeyer, for defendant in error.
   Mr. Justice O’Oonnor

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    The Wesley Company, plaintiff in error, v. Milwaukee Mechanics Insurance Company of Milwaukee, defendant in error.
    Gen. No. 29,548.
    Error to the Municipal Court of Chicago; the Hon. John A. Bugee, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed on opinion in Gen. No. 29,547, ante.

    Opinion filed December 2, 1925.
    Moses, Kennedy, Stein & Bachrach, for plaintiff in error; Isaac E. Ferguson, of counsel.
    Charles B. Obermeyer, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice O’Conner

text:
    The People of the State of Illinois, defendant in error, v. Michael Glassberg, plaintiff in error.
    Gen. No. 30,003.
    Prosecution for conspiracy to violate Securities Daw. Judgment of guilty and sentence thereon. Error to the Criminal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 2, 1925.
    Rehearing denied December 17, 1925.
    William S. Forrest and Benjamin C. Bachrach, for plaintiff in error.
    Robert E. Crowe, State’s Attorney, Edward E. Wilson, Clarence E. Nelson and Joseph P. Savage, Assistant State’s Attorneys, for defendant in error.
   Mr. Justice O’Conner

delivered the opinion of ithe court.


author: Mr. Justice O'Connor

text:
    The People of the State of Illinois, defendant in error, v. Morris Markin, plaintiff in error.
    Gen. No. 30,004.
    Error to the Criminal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the third division of this court_for the first district at the March term, 1925.
    Affirmed on opinion in Gen. No. 30,003, ante.

    Opinion filed December 2, 1925.
    Rehearing denied December 17, 1925.
    William S. Forrest and Benjamin C. Bachrach, for plaintiff in error.
    Robert E. Crowe, State’s Attorney, Edward E. Wilson, Clarence E. Nelson and Joseph P. Savage, Assistant State’s Attorneys, for defendant in error.
   Mr. Justice O'Connor

delivered the opinion of the court.


author: Mr. Justice Taylor

text:
    Henry P. Kraft and Jacob Kraft, defendants in error, v. Albert Fuchs, plaintiff in error.
    Gen. No. 29,386.
    Action for labor and material furnished. Judgment for plaintiff. Error to the Municipal Court of Chicago; the Hon. Joseph W. Sehuhman, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1924.
    Affirmed.
    Opinion filed December 2, 1925.
    Brown, Alschuler & Reagh and Sonnenschein, Berkson, Lautmann & Levinson, for plaintiff in error; Henry S. Moser, of counsel.
    Alfred M. Loeser, for defendants in error.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Mary Garvey, appellee, v. Chicago Railways Company et al., on appeal of Chicago Railways Company, appellant.
    Gen. No. 29,756.
    Action for personal injury to taxicab passenger in collision with street car. Judgment for defendants. Appeal from the Superior Court of Cook county; the Hon. Emanuel Eller, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1924.
    Affirmed upon remittitur.
    Thomson, J., dissenting.
    Opinion filed December 2, 1925.
    Brown, Fox & Blumberg, for appellant; John R. Guilliams, Charles LeRoy Brown, Frank L. Kriete and Joseph D. Ryan, of counsel.
    Stebbins, Garey, L’Amoreaux & Hurtubise, for appellee; W. B. O’Brien and James C. Byrne, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Harry A. Biossat, appellant, v. Francis M. Gunn and Felix T. Graham, trading as West Pullman Country Club, appellees.
    Gen. No. 30,035.
    Action on promissory note.. Judgment for defendants. Appeal from the Municipal Court of Chicago; the Hon. Mathew D. Hartigan, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 2, 1925.
    Harry A. Biossat, for appellant.
    Walter F. Cunningham, for appellees; James I. McCarthy, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.


author: Mr. Presiding Justice Barnes

text:
    John F. Waters, appellee, v. Equitable Life Assurance Society of the United States, appellant.
    Gen. No. 30,052.
    Assumpsit on life insurance policy. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Reversed and remanded.
    Opinion filed December 8, 1925.
    Mayer, Meyer, Austrian & Platt, for appellant.
    Kelly & Murphy, for appellee; Walter D. Elmer, deceased, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    J. Clausen, appellee, v. Western Electric Company, appellant.
    Gen. No. 30,119.
    Action for personal injuries to pedestrian struck by motor truck. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Harry B. Miller, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Reversed and remanded.
    Opinion filed December 8, 1925.
    Cassels, Potter & Bentley, for appellant; Ralph F. Potter and Kenneth B. Hawkins, of counsel.
    A. H. Ranes, Leo B. Lowenthal and Alfred O. Erickson, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Laura A. Cox, appellee, v. Nicholas R. Finn et al., appellants.
    Gen. No. 30,131.
    Certiorari to review discharge of relator by Civil Service Commission. Order quashing proceedings. Appeal from the Circuit Court of Cook county; the Hon. George F. Rush, Judge, presiding. Heard in the second division of this 'Court for the first district at the March term, 1925.
    Reversed.
    Opinion filed December 8, 1925.
    Rehearing denied December 21, 1925.
    Francis X. Busch, Corporation Counsel, for appellants; Albert H. Veeder, Francis J. Vurpillat and Carl H. Lundquist, Assistant Corporation Counsel, of counsel.
    R. E. Blackwood, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Max Kern, appellee, v. Charles W. Arndt, appellant.
    Gen. No. 30,162.
    Action on alleged oral contract to pay commissions in real estate transaction. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Daniel P. Trude, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 8, 1925.
    J. M. Camelon, for appellant.
    Hugo Radau, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Reincke-Ellis Company, appellee, v. Louis A. Graham et al., appellants.
    Gen. No. 30,809.
    Bill to secure injunctive relief from alleged breaches of contract of employment. Interlocutory order for temporary injunction. Interlocutory appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Reversed.
    Opinion filed December 8, 1925.
    John R. Nicholson, for appellants; John T. Chadwell, of counsel.

      Cooke, Sullivan & Ricks, for appellee; Edwin Hedrick, Edmond W. Hebei and Chester L. Butler, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Justice Fitch

text:
    Charles P. Campbell, plaintiff in error, v. James A. Silver, defendant in error.
    Gen. No. 30,020.
    Action for assault and battery. Judgment for defendant on verdict. Error to the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Reversed and remanded.
    Opinion filed December 8, 1925.
    A. W. Martin and Edward H. S. Martin, for plaintiff in error.
    Lester E. Lee, Robert G. Phelps and DeWitt Cleland, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.


text:
    The Tribune Company, appellee, v. Woodlawn Department Store Building Corporation, appellant.
    Gen. No. 30,027.
    Action upon contract. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 8, 1925.
    Green, Beverly & Rice, for appellant; Charles E. Green, of counsel.
    McCormick, Kirkland, Patterson & Fleming, for appellee; William H. Symmes and David Jacker of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.


text:
    Anne Deegan, administratrix of the estate of John P. Deegan, deceased, appellee, v. Hydrox Company, appellant.
    Gen. No. 30,064.
    Action for death caused by negligent driving of electric truck. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Emanuel Eller, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Affirmed.
    Barnes, J., dissenting.
    Opinion filed December 8, 1925.
    Rehearing denied December 17, 1925.
    Gallagher, Kohlsaat, Rinaker & Wilkinson, for appellant.
    Morse Ives, H. H. Patterson and C. C. Bodenstab, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.


text:
    Harry W. Standidge, appellant, v. Charles M. Thomson et al., appellees.
    Gen. No. 30,096.
    Action for damages from the making of alleged false statements and findings in a judicial opinion. Judgment for defendants. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 8, 1925.
    Harry W. Standidge, for appellant.
    Horace Kent Tenney, for appellees.
   Mr. Justice Fitch

delivered the opinion of the court.


text:
    La Vergne Hassman, by Charles H. Hassman, appellee, v. Yellow Cab Company, appellant.
    Gen. No. 30,226.
    Action for injuries to occupant of automobile in collision with taxicab. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. George Fred Bush, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 8, 1925.
    Moloney & Postelnek, John E. Kehoe and Busby, Weber, Miller & Donovan, for appellant; Benjamin Samuels, of counsel.
    Morse Ives, H. H. Patterson and C. C. Bodenstab, for appellee; H. H. Patterson, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    Ernestine Schumann-Heink, appellant, v. Andrew P. Mackie et al., appellees.
    Gen. No. 29,616.
    Bill against trustees of Massachusetts trust as trustees and individually. Decree for complainant payable out of trust property only. Appeal by complainant from the Circuit Court of Cook county; the Hon. George Fred Bush, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1924.
    Affirmed.
    Opinion filed December 8, 1925.
    Behearing denied December 21, 1925.
    Stein, Mayer & David, for appellant; Sigmund W. David and Oscar Fainman, of counsel.
    James G. Skinner, for appellee Richard S. Folsom.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    International Folding Paper Box Company, defendant in error, v. Columbia Envelope Company, plaintiff in error.
    Gen. No. 29,998.
    Assumpsit. Judgment for plaintiff. On motion to strike bill of exceptions. Error to the Municipal Court of Chicago.; the Hon. Daniel P. Trude, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Affirmed after striking bill of exceptions.
    Opinion filed December 8, 1925.
    Lorenz & Sayers, for plaintiff in error.
    Culver, Andrews & King, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Ely Krauss, defendant in error, v. American House Wrecking Company, plaintiff in error.
    Gen. No. 30,014.
    Judgment for plaintiff by default. Writ of error on refusal to vacate default and judgment. Error to the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding". Heard in the second division of this court for the first district at the March term, 1925. Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed December 8, 1925.
    Rehearing denied December 21, 1925.
    McCormick, Kirkland, Patterson & Fleming and Pennish & Rashbaum, for plaintiff in error; F. D. Shobe, of counsel.
    Benjamin B. Morris, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Fred W. Simpson, trading as Acme Minerals Company, complainant and appellee, v. George H. Simpson et al., defendants. G. Eldon Simpson, appellant.
    Gen. No. 30,039.
    Bill for injunction, discovery and accounting. Order adjudging individual defendants in contempt for violation of preliminary injunction. Appeal from the Circuit Court of Cook county; the Hon. Ira Ryner, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 8, 1925.
    Rehearing denied December 21, 1925.
    Ninian H. Welch, Charles W. Hadley and Clarence H. Boord, for appellant.
    West & Eckhart, for appellee; William L. Bourland, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Standard Trust & Savings Bank, appellant, v. William N. Armstrong and Caroline E. Armstrong, appellees.
    Gen. No. 30,058.
    Bill in aid of execution to set aside alleged fraudulent' conveyances. Bill dismissed for want, of equity. Appeal from the Superior Court of Cook county; the Hon. Oscar Hebei, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Fitch, J., dissenting.
    Opinion filed December 8, 1925.
    Castle, Williams, Long & Castle, for appellant.
    Dent, Dobyns & Freeman, for appellees.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    John G. Erickson, appellee, v. Isidore J. Schiller, trading as I. J. Schiller & Company, appellant.
    Gen. No. 30,076.
    Assumpsit for money had and received. Judgment for plaintiff. Appeal from the County Court of Cook county; the Hon. John D. Biggs, Judge, presiding. Heard in the second division of .this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 8, 1925.
    Rehearing denied December 17, 1925.
    Loewenstein & Rabinoff, for appellant; Joseph E. Paulissen, of counsel.
    O ’Brien, Rutledge & Hayes, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Joyce, Reynolds & Company, appellant, v. William Ganschow Company, appellee.
    Gen. No. 30,181.
    Bill for commissions on sale of corporate stock, and for discovery and accounting. Bill dismissed for want of equity. Appeal from the Circuit Court of Cook county; the Hon. Francis 8. Wilson, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 8, 1925.
    Slottow & Leviton, for appellant; Charles Leviton, of counsel,
    Schuyler, Ettelson & Weinfeld, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


author: Per curiam.

text:
    Fred Simpson, trading as Acme Minerals Company, complainant and defendant in error, v. George H. Simpson et al., defendants. George H. Simpson et al., plaintiffs in error.
    Gen. Nos. 30,305, 30,306.
    Error to the Circuit Court of Cook county; the Hon. Ira Ryner, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Affirmed on opinion in Gen. No. 30,039, ante.

    Opinion filed December 8, 1925.
    Rehearing denied December 21, 1925.
    Ninian H. Welch, Charles W. Hadley and Clarence H. Boord, for plaintiffs in error.
    West & Eckhart, for defendant in error; William L. Bourland, of counsel.
   Per curiam.


author: Mr. Justice McSurely

text:
    Rose M. Long, appellee, v. Ethel M. Sebolt, appellant.
    Gen. No. 30,093.
    Action for libel. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hou. John P. MeGoorty, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1925. Certiorari denied by Supreme Court (making opinion final).
    Affirmed upon remittitur of $7,000, otherwise reversed and remanded.
    Opinion filed December 14, 1925.
    A. D. Gash, for appellant.
    Joseph D. Ryan and Maurice J. Moriarty, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Joseph Heit, appellee, v. City of Chicago et al., appellants.
    Gen. No. 30,130.
    Petition for mandamus to compel issuance of a- municipal license. Writ awarded. Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1925.
    Reversed.
    Opinion filed December 14, 1925.
    _Francis X. Busch, Corporation Counsel, and Bernard A. Conlon, Assistant Corporation Counsel, for appellants; Cora B. Hirtzel, Assistant Corporation Counsel, of counsel.
    No appearance for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice Thomson

text:
    Mary N. Young, administratrix of the estate of Louis W. Young, deceased, appellant, v. John W. Patrick, Jr., appellee.
    Gen. No. 29,971.
    Action for death resulting from injury by automobile. Judgment for defendant. Appeal from the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 23, 1925.
    James J. Barbour and Edward H. S. Martin, for appellant.
    Crowe & Nutt, for appellee.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.


text:
    Gabriel Tylutki, appellant, v. Frank Allport, appellee.
    Gen. No. 29,995.
    Action for malpractice. Judgment for defendant setting up applicability of Workmen’s Compensation Act. Appeal from the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 23, 1925.
    Peters & Horwitz, for appellant; James H. Turner, of counsel.
    George A. Schneider and Bates, Hicks & Folonie, for appellee.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.


text:
    Benita Owitz, by Philip Owitz, her father and next friend, defendant in error, v. E. Chindbloom and Fred C. Sullivan, plaintiffs in error.
    Gen. No. 30,009.
    Action for personal injuries in collision of automobiles. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. Harry M. Fisher, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 23, 1925.
    Rehearing denied January 7, 1926.
    Ernest Saunders, for plaintiffs in error.
    Frank L. Childs, for defendant in error.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.


text:
    Philip Rosenstein, appellee, v. Lewis Rose, appellant.
    Gen. No. 30,050.
    Appeal from judgment for plaintiff in municipal court, based upon denial of petition for change of venue. Appeal from the Municipal Court of Chicago; the Hon. Asa G. Adams, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 23, 1925.
    Webster, Holmes & Holmgren, for appellant; Daniel Webster, of counsel.
    Henry H. Koven, for appellee.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.


text:
    Anton Lagatutte by Conciettina Lagatutte, appellee, v. Chicago Daily News Company, appellant.
    Gen. No. 30,071.
    Action for injury by elevator to employee of tenant. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Timothy D. Hurley, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed December 23, 1925.
    John G. Riordan and John J. Healy, for appellant.
    Finn & Miller, for appellee.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.


text:
    Harry F. Curley, plaintiff in error, v. Chicago City Railway Company, defendants in error.
    Gen. No. 29,990.
    Action for injury to automobile driver in collision with street ear. Judgment for defendant. Error to the Superior Court of Cook county; the Hon. William N. Gemmill, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 23, 1925.
    James C. McShane, for plaintiff in error.
    Brown, Fox & Blumberg, for defendants in error; John R. Guilliams, Charles LeRoy Brown, Frank L. Kriete nad Joseph D. Ryan, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Samuel Klein, appellee, v. Z. Erol Smith, appellant.
    Gen. No. 30,037.
    Action for services as architect under alleged oral agreement. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Peter H. Sehwaba, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 23, 1925.
    Frisch & Frisch, for appellant; Granville W. Browning, of counsel.
    Edelson, Tannenbaum & Polikoff, for appellee; Julius A. Polikoff, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Maciej Zinko, appellee, v. Northwestern Trust & Savings Bank, appellant.
    Gen. No. 30,114.
    Action for breach of agreement for delivery of foreign exchange. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Asa G. Adams, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Reversed land remanded.
    Opinion filed December 23, 1925.
    I. H. Himes, Benjamin S. Mesirow and Edelson, Tannenbaum & Polikoff, for appellant.
    John A. Blake, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Susan Stewart, appellee, v. City of Chicago, appellant.
    Gen. No. 30,123.
    Action for injury in fall on defective sidewalk. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. William V. Brothers, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 23, 1925.
    Francis X. Busch, Corporation Counsel, and John J. Kelly, for appellant; Earl B. Dickerson and Gilbert W. Morgan, Assistant Corporation Counsel, of counsel.
    John A. Bloomingston, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Mathias Igler, appellee, v. William E. Dever, mayor, et al., appellants.
    Gen. No. 30,132.
    Petition for mandamus to compel issuance of municipal license. Writ granted. Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Reversed.
    Opinion filed December 23, 1925.
    Francis X. Busch, Corporation Counsel, for appellants; Albert H. Veeder and Bernard A. Conlon, Assistant Corporation Counsel, of counsel.
    Campbell & Jacobson, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Alonzo D. Erfurth, appellee, v. Susan K. Erfurth, appellant.
    Gen. No. 30,145.
    Bill for divorce. Decree for complainant. Appeal from the Superior Court of Cook county; the Hon. Worth E. Caylor, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed December 23, 1925.
    Rehearing denied January 4, 1926.
    J. J. Viterna and G. A. Mason, for appellant; D. S. Wentworth, H. E. Mason and H. B. Mason, of counsel.
    William A. Adams, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Benjamin Harris, appellee, v. Ike Mlawsky, appellant.
    Gen. No. 30,120.
    Action for rent. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. George A. Curran, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Reversed and remanded.
    Opinion filed December 23, 1925.
    Frank & Rosenfeld, for appellant.
    Aaron Soble, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    The People of the State of Ilinois ex rel. William S. Dunderdale, appellee, v. City of Chicago et al., appellants.
    Gen. No. 30,129.
    Petition for mandamus to compel reinstatement of petitioner in office. Writ awarded. Appeal from the Superior Court of Cook county; the Hon. Emanuel Eller, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 23, 1925.
    Francis X. Busch, Corporation Counsel, and Francis J. Vurpillat, Assistant Corporation Counsel, for appellants; Cora B. Hirtzel and Albert H. Veeder, Assistant Corporation Counsel, of counsel.
    No appearance for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Elaine Blackman and Fannie May Hollingsworth, appellees, v. William Bell and Mrs. William Bell. William Bell, appellant.
    Gen. No. 30,221.
    Forcible detainer. Judgment for plaintiffs. Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trade, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 23, 1925.
    Rehearing denied January 4, 1926.
    A. G. Dicus, for appellant.

    Langworthy, Stephen & McKeag and John L. Davidson, for appellees.
   Mr. Justice Taylor

delivered the opinion of the court.


author: Mr. Justice Partlow

text:
    Second District.
    Robert Jeske, appellant, v. Lake County Publishing and Printing Company, appellee.
    Gen. No. 7,484.
    •Suit for libel judgment on verdict for defendant. Appeal from the Circuit Court of Lake County; the Horn Edwand D. Shurtleff, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed November 14, 1925.
    Lee D. Mathias, for appellant.
    Alex. F. Beaubien, for appellee; James G. Welch, of counsel.
   Mr. Justice Partlow

delivered the opinion of the court.


author: Mr. Justice Jett

text:
    The People of the State of Illinois, defendant in error, v. Wilbur P. Stattler, plaintiff in error.
    Gen. No. 7,537.
    Prosecution for violation of Prohibition Act. Conviction and sentence. Error to the County Court of Carroll county; the Hon. Orion M. Grove, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed December 5, 1925.
    W. G. Kent and H. A. Brooks, for plaintiff in error.
    J. L. Brearton, State’s Attorney, for defendant in error.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Albert Provenzano, plaintiff in error.
    Gen. No. 7,544.
    Prosecution for violation of Prohibition Act. Judgment upon finding of guilt. Error to the County Court of Winnebago county; the Hon. Leon A. Zick, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed December 7, 1925.
    Fisher, North, Linscott & Gibboney, for plaintiff in error.
    William D. Knight, State’s Attorney, and Alfred B. Louison, Assistant State’s Attorney, for defendant in error.
   Mr. Justice Partlow

delivered the opinion of the court.


author: Mr. Presiding Justice Jones

text:
    The People of the State of Illinois, defendant in error, v. Leonard Ditto, plaintiff in error.
    Gen. No. 7,464.
    Prosecution for unlawful sale of intoxicating liquor. Judgment and sentence upon verdict of guilty. Error to the County Court of Henderson county; the Hon. James W. Gordon, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion, filed December 8, 1925.
    E. L. Moffett, for plaintiff in error.
    Harry Blackstone, State’s Attorney, for defendant in error; Charles E. Lauder, of counsel.
   Mr. Presiding Justice Jones

delivered the opinion of the court.


author: Mr. Justice Crow

text:
    Third District.
    The People of the State of Illinois, defendant in error, v. Louis DePappe, plaintiff in error.
    Gen. No. 7,708.
    Prosecution for unlawful sale of intoxicating liquor. Error on denial of motion to quash indictment. Error to the County Court of Christian county; the Hon. C. J. Vogelsang, Judge, presiding. Heard in this court at the April term, 1924.
    Reversed.
    Opinion filed June 27, 1925.
    L. E. Stone, for plaintiff in error.
    E. E. Dowell, State’s Attorney, for defendant in error.
   Mr. Justice Crow

delivered the opinion of the court.


text:
    Compro Grain Company v. H. A. Parkes and R. E. Parkes, appellants, and Harry Baker, appellee.
    Gen. No. 7,842.
    Interpleader as to proceeds of quantity of wheat claimed by grower and purchasers at bankruptcy sale. Decree for grower. Appeal from the Circuit Court of Sangamon county; the Hon. Elbert S. Smith, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed June 27, 1925.
    Andrus, Trutter & Crow, for appellants.
    F. P. Drennan, for appellee.
   Mr. Justice Crow

delivered the opinion of the court.


text:
    Lewis N. Willson, appellant, v. A. D. Arnold, appellee.
    Gen. No. 7,848.
    Action for injury to automobile by horses at large in highway. Judgment for defendant on verdict. Appeal from the Circuit Court of Morgan county; the Hon. Elbert -S. Smith, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed June 27, 1925.
    Carl E. Robinson and William T. Wilson, for appellant.
    Walter W. Wright, for appellee.
   Mr. Justice Crow

delivered the opinion of the court.


text:
    Maria Glandt, appellant, v. Charles Glandt, appellee.
    Gen. No. 7,854.
    Bill for divorce. Dismissed for want of equity. Appeal from the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed June 27, 1925.
    Louis A. Busch and Earl C. Harrington, for appellant.
    A. E. Campbell, for appellee.
   Mr. Justice Crow

delivered the opinion of the court.


text:
    Vina Bradford, appellee, v. C. E. Corpe, appellant.
    Gen. No. 7,860.
    Action upon judgment note. Judgment for plaintiff. Appeal from the Circuit Court of McLean county; the Hon. Edward Barry, Judge, presiding. Heard in this court at the April term, 1925. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 27, 1925.
    Rehearing denied October 13, 1925.
    W. W. Whitmore, A. M. Hester and Stella E. Whitmore, for appellant.
    Hall, Martin, Hoose & DePew, for appellee.
   Mr. Justice Crow

delivered the opinion of the court.


text:
    L. S. Lacy, for use of J. W. Cruttenden, appellee, v. Fidelity-Phenix Fire Insurance Company of New York, appellant.
    Gen. No. 7,867.
    Assumpsit upon policy of fire insurance. Judgment for plaintiff. Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed June 27, 1925.
    L. T. Graham and Bates, Hicks & Folonie, for appellant.
    Williams & Williams, for appellee.
   Mr. Justice Crow

delivered the opinion of the court.


text:
    Marie Bamie, appellee, v. George Milauckas, appellant.
    Gen. No. 7,869.
    Action for assault and battery. Judgment for plaintiff by default. Appeal from the Circuit Court of Sangamon county; the Hon. Elbert S. Smith, Judge, presiding. Heard in this court at' the April term, 1925. Certiorari denied by Supreme Court (malting the opinion final).
    Affirmed conditionally.
    Opinion filed June 27, 1925.
    Sherman, Bainum & Pree, for appellant.
    John G. Friedmeyer and Wm. J. Lawler, for appellee.
   Mr. Justice Crow

delivered the opinion of the court.


author: Mr. Justice Shurtleff

text:
    The Town of Newburg, Pike County, Illniois, appellee, v. Alva R. Foreman and A. Claude Foreman, appellants.
    Gen. No. 7,824.
    Proceedings to procure assessment of damages for digging drainage ditch across plaintiff’s lands. Judgment fixing value. Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the October term, 1924.
    Reversed and remanded with directions.
    Opinion filed June 27, 1925.
    Rehearing denied October 13, 1925.
    Capps & Weaver, for appellants.
    Williams & Williams and Edwin Johnston, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Frances Kirkpatrick, appellant, v. Quincy Herald Company, appellee.
    Gen. Nos. 7,829, 7,830.
    Trespass for libel and slander. Judgment for defendant. Appeal from' the Circuit Court of Adams county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the April term, 1925. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 27, 1925.
    Rehearing denied October 13, 1925.
    Frances Kirkpatrick, pro se.

    Govert & Lancaster, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Frances Kirkpatrick, appellant, v. Floyd W. Monroe, appellee.
    Gen. No. 7,831.
    Action for slander. Judgment for defendant. "Appeal from the Circuit Court of Adams county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the April term, 1925. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 27, 1925.
    Rehearing denied October 13, 1925.
    Frances Kirkpatrick, pro se.

    No appearance for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    In re conservatorship of William Elder Karr. William Elder Karr, plaintiff in error, v. Lee Rust, conservator, defendant in error.
    Gen. No. 7,833.
    Objections to report of conservator of estate of spendthrift. Objections disallowed. Error to the Circuit Court of McLean county; the Hon. Stevens R. Baker, Judge, presiding. Heard in this court a* the April term, 1925. Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed June 27, 1925.
    Martin A. Brennan, guardian ad litem, W. W. Whitmore and J. B. Murphy, for plaintiff in error.
    Stone & Taylor, for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.


author: Mr. Presiding Justice Niehaus

text:
    The People of the State of Illinois, defendant in error, v. Arthur Day and E. William Hight, plaintiffs in error.
    Gen. No. 7,821.
    Prosecution for contributing to delinquency of minor. Verdict of guilty, judgment and sentence. Error to- the Circuit Court of Macon county; the Hon. James S. Baldwin, Judge, presiding. Heard in this' court at the June term, 1924.
    Affirmed.
    Opinion filed October 27, 1925.
    Rehearing denied December 16, 1925.
    Michael J. Fitzgerald, William K. Whitfield, Jesse L. Deck, W. T. Coleman and John E. Hogan, for plaintiffs in error.
    Edward J. Brundage, Virgil L. Blanding, Ashton E. Campbell and Charles F. Evans, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Chester Scott, plaintiff in error.
    Gen. No. 7,825.
    Prosecution for violation of Prohibition Act. Verdict of guilty and sentence upon judgment. Error to the County Court of Piatt county; the Hon. M. R. Davidson, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed.
    Opinion filed October 27, 1925.
    Thomas J. Kastel, for plaintiff in error.
    Robert P. Shonkwiler, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Charles Ball, plaintiff in error.
    Gen. No. 7,827.
    Prosecution for violation of Prohibition Act. Verdict of guilty and sentence upon judgment. Error to the City Court of Litchfield; the Hon. Harry O. Stuttle, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed.
    Opinion filed October 27, 1925.
    L. E. Stone, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Thomasville Chair Company, appellant, v. Scoville Company, appellee.
    Gen. No. 7,841.
    Judgment for appellee affirmed for want of bill of exceptions. Appeal from the Circuit Court of Macon county; the Hon. James S. Baldwin, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed October 27, 1925.
    D. C. Corley, for appellant.
    Redmon & Redmon, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Joseph L. Lyons, appellant, v. The Pleasure Driveway and Park District of Springfield, Illinois, and The John T. Walbridgie Engineering Company, appellees.
    Gen. No. 7,844.
    Action for injury by alleged attractive nuisance. Judgment for defendant. Appeal from the Circuit Court of Sangamon county; the Hon. Elbert S. Smith, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed October 27, 1925.
    Rehearing denied December 16, 1925.
    T. J. Condon and Robert H. Patton, for appellant.
    Johnson & Pefferle, T. W. Hoopes and B. L. Catron, for appellees.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    George A. Kizer, appellant, v. Victory Insurance Company of Philadelphia, appellee.
    Gen. No. 7,850.
    Action on automobile fire insurance policy. Judgment for defendant. Appeal from the Circuit Court of Coles county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the April term, 1925. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 27, 1925.
    Vause & Kiger, for appellant.
    Bates, Hicks & Folonie and Craig & Craig, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Sterling Midland Coal Company, appellant, v. Chicago-Williamsville Coal Company et al., appellees.
    Gen. No. 7,853.
    Bill against corporation and its directors based upon judgment by plaintiff against the corporation. Appeal from order granting temporary injunction against enforcement of judgment. Appeal from the Circuit Court of Sangamon county; the Hon. Elbert S. Smith, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed.
    Opinion filed October 27, 1925.
    Andrus, Trutter & Crow, for appellant.
    A. M. Fitzgerald and H. C. Moore, for appellees.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    W. J. Edelbrock and Henry E. Edelbrock, appellees, v. Alva Rexroat, appellant.
    Gen. No. 7,866.
    Judgment affirmed for want of bill of exceptions. Appeal from the Circuit Court of Morgan county; the Hon. Harry C. Stuttle, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed October 27, 1925.
    Templeman & Templeman, for appellant.
    Carl E. Robinson, for appellees.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Robert Johns, appellee, v. Providence Washington Insurance Company, appellant.
    Gen. No. 7,868.
    Action upon fire insurance policy judgment for plaintiff. Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed October 27, 1925.
    Walter M. Provine, for appellant; L. E. Harding, of counsel.
    Les-_ lie J. Taylor, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Maude E. Beebe, appellee, v. Doris Kirkpatrick and Esther Havens, appellants.
    Gen. No. 7,874.
    Bill to enforce alleged liability of heirs upon contract of guaranty by their ancestor of mortgage loan. Bill dismissed for want of equity. Appeal from the Circuit Court of McLean county; the Hon. Edward Barry, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed October 27, 1925.
    Stone & Taylor, for appellants.
    William R. Bach, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


author: Mr. Presiding Justice Niehausi

text:
    O. P. McGahey, appellee, v. The Pennsylvania Railroad Company, appellant.
    Gen. No. 7,877.
    Action for personal injury by collision of train and automobile ait crossing. Judgment on verdict for plaintiff. Appeal from the Circuit Court of Coles county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed October 27, 1925.
    H. A. Neal, for appellant; E. V. Wierman, of counsel.
    Frank C. Winkler, Donald B. Craig, James W. Craig, Jr., Fred H. Kelly, Craig Van Meter and Charles O. Fowler, for appellee.
   Mr. Presiding Justice Niehausi

delivered the opinion of the court.


text:
    Wells Brothers, appellee, v. C. D. Veatch and Mrs. C. D. Veatch, appellants.
    Gen. No. 7,882.
    Action upon alleged indebtedness. Judgment for plaintiff upon directed verdict. Appeal from the Circuit Court of McLean county; the Hon. Edward Barry, Judge, presiding. Heard in this court at the April term, 1925. •
    Affirmed.
    Opinion filed October 27, 1925.
    Foster & Morrissey, for appellants.
    Charles P. Kane, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Joe C. Dawson, appellee, v. O. A. Sinclair, appellant.
    Gen. No. 7,748.
    Action for services and material furnished. Judgment for plaintiff. Appeal from the Circuit Court of Douglas county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1924.
    Affirmed.
    Opinion filed October 27, 1925.
    Elmer A. Johnson, for appellant.
    John H. Chadwick, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Charles Hoke, appellee, v. Dan Perrigo, appellant.
    Gen. No. 7,849.
    Replevin to recover possession of hogs. Judgment on verdict for plaintiff. Appeal from the Circuit Court of Adams county; the Hon. Fred G. Wolfe, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed October 27, 1925.
    Rehearing denied December 16, 1925.
    John E. Wall, for appellant.
    S. A. Hubbard and H. W. Lewis, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Oren Easton, administrator of the estate of Lewis Easton, deceased, appellant, v. Glenn W. Ward, appellee.
    Gen. No. 7,864.
    Action for death of child struck by automobile being driven into garage. Judgment for defendant. Appeal from the Circuit Court of Cumberland county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed October 27, 1925.
    Craig & Craig, for appellant.
    Hiram L. Scranton, Emery Andrews and Raymond G. Real, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Richard Wineinger, administrator of the estate of Eva Catherine Wineinger, deceased, appellee, v. Ernest Walz, appellant.
    Gen. No. 7,876.
    Action for death of pedestrian struck by overtaking automobile. Judgment for plaintiff. Appeal from the Circuit Court of Vermilion county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed October 27, 1925.
    H. M. Steely and H. M. Steely, Jr., for appellant; R. J. Dunn, of counsel.
    Acton, Acton & Snyder, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Chambersburg State Bank, appellee, v. Edmund B. Tolbert, appellant.
    Gen. No. 7,885.
    Partition of live stock between purchaser at judicial sale and judgment debtor. Decree for complainant. Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the April term, 1925. Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed October 27, 1925.
    Rehearing denied December 16, 1925.
    William and Barry Mumford, for appellant.
    Williams & Williams and George H. Wilson, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


author: Bailey, J.

text:
    James J. McGrath v. The City of Chicago.

      Municipal Corporations—Taxes—Act of April 15, 1873—Ordinance Under, Void—Chicago Tax Commissioner—Claim for Salary—General Incorporation Law—Be-organieation under.
    1. The re-organization of a city under the general incorporation law abrogates its former charter and determines the tenure of all officers under it, except such as are within the saving clause of the general law.
    2. The Act of April 15,1873, in regard to the levy and collection of taxes by incorporated cities, having been declared unconstitutional, the ordinance of the City of Chicago under which a tax commissioner was appointed, and under which he claims to have performed the duties of such office and to be entitled to the salary thereof, was void and incapable of conferring any rights upon him.
    [Opinion filed November 9, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. Keek Hawes, Judge, presiding.
    This was a suit in assumpsit, brought by James J. McGrath against the City of Chicago, to recover the salary which the plaintiff claims is due him as city tax commissioner, for five months, from August 1, 1876, to December 31, 1876. The cause was tried before the court, a jury being waived, and such trial resulted in a finding and judgment for the defendant. The facts shown by the evidence are these:
    On the 15th day of June, 1874, the Common Council of the City of Chicago passed an ordinance for the election of a city tax commissioner, and defining and prescribing his duties; the first section of said ordinance being as follows:
    “Section 1. At the first regular meeting of the Council after the passage of this ordinance, there shall be elected, by the Common Council, a city tax commissioner in and for said city. The commissioner so elected shall hold his office until the second Monday in December, A. D. 1875, or until his successor shall be elected and qualified. • On said second Monday in December, and every two years thereafter, there shall be elected by the Common Council a tax commissioner in and for said city. All tax commissioners elected under this ordinance shall hold their office for the term for which elected, and until their successors are elected and qualified. The salary of said tax commissioner shall be fixed in the annual appropriation ordinance or by some ordinance passed during the first quarter of the fiscal year of said city: Provided, however, that nothing contained in this ordinance shall be considered binding on the Common Council in case they should determine to collect the city taxes of any one year under the provisions of the general revenue law of this State.”
    The second section of the ordinance required the tax commissioner to give an official bond, and-the remaining sections prescribed his official duties.
    On the 22d day of June, 1874, said Common Council proceeded to the election of a city tax commissioner, and the plaintiff having received a majority of all the votes cast, was declared duly elected, and he thereupon qualified and entered upon the duties of his office. At the same meeting of the Council an ordinance was passed making various appropriations for the fiscal year, commencing April 1, 1874, and ending March 31, 1875, and among these was an appropriation “for one tax commissioner, §4,000; ” and it was provided that the amounts appropriated for the payment of salaries to the respective officers and employes, in said ordinance mentioned, should be paid monthly at the rate per annum of the amounts respectively appropriated, until otherwise lawfully provided.
    In pursuance of an election held in the City of Chicago on the 23d day of April, 1875, said city became organized under the General Incorporation Law, and on the 3d day of May, 1875, the said Council passed the following ordinance :
    “ Whereas, a majority of the votes cast at the election held in the City of Chicago on the 23d day of April, A. D. 1875, were and are for city organization under general law, and by reason of such election the said City of Chicago has become and is organized under such general law, to-wit, an act entitled 1 An act to provide for the incorporation of cities and villages,’ in force July 1, 1872 ; and,
    “ Whereas, doubts may exist, in the absence of an ordinance on the subject, as to the powers and duties and the continuance in office of municipal officers, boards, member of municipal boards and employes of the City of Chicago, who were such at the time of the organization of said city under such general law; and,
    “Whereas, it is necessary to the public interest and service and the administration of the municipal government that such doubts should not exist; therefore,
    “ Be it ordained by the City Council of the City of Chicago:
    “Section 1. That all city ofir-ers, city boards, members of city boards and employes of the City of Chicago, who were such at the time of the organization of the City of Chicago under an act entitled 1 An act to provide for the incorporation of cities and villages,’in force July 1, 1872, shall be and remain such officers, boards, members of boards and employes, until their successors shall be elected or appointed and qualified, and shall have and exercise the same powers and perform the same duties as heretofore and before said organization under the said act, until otherwise provided by law or ordinance.

      “Section 2. This ordinance shall take effect and be in force from and after its passage.”
    On the 9th day of August, 1875, said city passed an ordinance fixing the total amount of all the appropriations for the current fiscal year, and certifying the same to the County Clerk of Cook County. On the 28th day of April, 1876, an ordinance was passed making appropriations for the fiscal year, and among them was an appropriation for the expenses of the tax commissioner’s office, including salaries, clerk hire, etc., audit was therein provided that the salaries should be paid at the same rate as during the preceding year. On the 12th day of July, 1876, -said Council passed the following resolution: “Whereas, the Supreme Court has decided the act known as “Bill 300 ” to be unconstitutional, and even if that decision should be modified or reversed, it is not desirable to attempt the levy and collection of taxes otherwise than by the general law applicable to the entire State; and,
    “Whereas, the office of tax commissioner and city assessor, though useless, can not be abolished to take effect before January next, therefore,
    “ Besolved, That the Mayor be and he is hereby respectfully requested and urged to cause the discharge of the assistants and employes of each of those offices, and to remove the incumbents of the offices themselves, in order that the offices remain vacant until they can be lawfully abolished; the books in possession of the officers to be transferred to the board of public works.”
    In accordance with the foregoing resolution the Mayor, on the.5th day of August, 1876, transmitted to the plaintiff the following communication:
    61 Chicago, Aug. 5, 1876.

      “ J. J. MoGeath, Esq., City.

      “Dear Sir:—In accordance with the resolution passed by the honorable City Council, July 17, 1876, requiring that the books and other public documents in your possession be turned over to the board of public works upon your vacating the office of tax commissioner, I hereby notify you to comply with the provisions of said resolution and to hand over to said board of public works such public documents and to take a receipt for the same. I shall feel obliged by your complying with this request at once.
    “ Respectfully,
    “ M. Heath, Mayor.”
    On the 26th day of July, 1876, the City Council passed an ordinance, the eighth section of which is as follows:
    “ Section 8. The offices of city tax assessor and city tax commissioner be and the same are hereby abolished, the same to take effect on the thirty-first day of December, 1876.”
    There seems to' have been no election of tax commissioner subsequent to the election of the plaintiff, June 22, 1874, and the plaintiff claims to have held over in default of an election of his successor. The evidence shows that he refused to turn over the books and documents in his hands in accordance with the foregoing request of the Mayor, but continued to hold them and to attempt to discharge the duties of his office down to December 26, 1876, at which date he delivered the key of the vault containing said books and documents to the city comptroller. It is admitted that the plaintiff’s salary was paid down to August 1, 1876, but that nothing was paid him subsequent to that date.
    Messrs. H. T. & L. Helm, for appellant.
    Mr. Clarence A. Knight, for appellee.
   Bailey, J.

The act of the General Assembly, entitled “ An act in regard to the assessment of property and the levy and collection of taxes by incorporated cities in this State,” approved April 15,1873, and known as “ the City Tax Act,” provided a mode for the assessment and collection of taxes different from that prescribed by the general revenue laws of the State, and authorized the election or appointment of certain officers to carry out the revenue system thus inaugurated. The last section of the act empowered the City Council, in its discretion, to provide by ordinance for the appointment of a city tax commissioner, to fix the term of his office and the amount of his salary, and to confer upon him such powers, and to require of him the performance of such duties as such Council might deem necessary and proper.

In pursuance of the powers thus granted, the City Council of the City of Chicago, on the 15th day of June, 1874, passed an ordinance' providing for the election by said Council of a city tax commissioner, fixing his term of office, prescribing his powers and duties, and making it the duty of said Council, from time to time, to fix the amount of his salary. Manifestly the office of tax commissioner thus created was a part of the machinery for carrying out the revenue system created by the act, and that the validity of the office depended upon the validity of the system of which it formed a part.

In People v. Cooper, 83 Ill. 585, said act was declared to be unconstitutional and" void, and it follows, unavoidably, as it seems to us, that the ordinance under which the plaintiff was elected to the office of city tax commissioner, and under which he claims to have performed the duties and to be entitled to the salary of such office, was void and incapable of conferring any rights upon him.

It is urged, however, that the plaintiff’s election as city tax commissioner may be sustained under the provisions of section 1, chapter 10, of the former charter of the City of Chicago. Tuley’s Laws and Ordinances, 476. It is sufficient answer to say, that the City Council, in creating the office, fixing its term and duties, and filling it by the election of the plaintiff, did not assume to act, and did not in fact act, under that section of the charter. By that section it is provided that an officer termed “ a commissioner of taxes ” should be appointed by the Mayor with the advice and consent of the Council, to hold his office for the term of four years, and to perform the duties imposed upon such officer by said charter. It is clear that the office, though similar in name, was not the same office created by the ordinance of June 22, 1874, and that the plaintiff’s election can derive no validity from-the provisions of the old charter.

But there is another ground upon which it must be held that the plaintiff was not entitled to hold said office and receive its emoluments during the period for which he is now seeking to recover the salary pertaining to the office. The creation of said office and the plaintiff’s election to it, were anterior to the organization of the City of Chicago under the general incorporation law, and by force of said organization, said office was abolished. In People v. Brown, 83 Ill. 95, and Crook v. People, 106 Ill. 237, it was held that the reorganization of a city under the general incorporation law was an abrogation of its former charter, and determined the tenure of all officers under it, except such as were within the saving clause of the general law. The saving clause provided that the officers in office at the time of the organization under the general law, “ shall continue to exercise the powers conferred upon like officers in this act until their successors shall be elected and qualified.” It is held in the cases above cited, that this proviso must be understood to apply to the officers provided for in the general incorporation law, answering to the’ same officers under special charters. There is no provision in the general incorporation law for the election or appointment of a city tax commissioner, nor is any officer provided for having powers or duties answering to that of city tax commissioner created by the ordinance in question in this case.

This cause was tried before the court without a jury, and no questions of law were raised at the trial. The only contention now is, that the finding and judgment are contrary to the evidence. We are of the opinion that said finding and judgment may be sustained upon either of the theories above noticed, and the judgment will, accordingly, be affirmed.

Judgment affirmed.


author: McAllister, J.

text:
    Emil Johnson, by next friend, v. City of Chicago.

      Municipal Corporations—Personal Injury—Instructions.

    1. Where the plaintiff fails to make out a cause of action, error in the instructions affords no ground for reversal.
    2. In an action against a municipal corporation to recover for a personal injury, this court holds that the evidence fails to show a cause of action.
    [Opinion filed November 9, 1887.]
    In error to the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Mr. G. G. Bellows, for plaintiff in error.
    Messrs. H. Washburne and Clarence A. Knight, for defendant in error.
   McAllister, J.

This was an action brought August 4, 1883, by plaintiff in error by his next friend, against the City of Chicago, to recover for a personal injury to the former, received July 15, 1883, by having his foot caught between the south end of the swing bridge on Clark Street, and the north end of the south approach thereto, while said bridge, which had been opened to let a vessel pass, was being closed. The declaration, after setting out the duty of the city in the premises,states the cause of action in these words: “Yet the defendant, not regarding its duty in that behalf while it was so possessed and had the control of said bridge and said approaches to said bridge, to-wit, etc., then wrongfully and negligently suffered the same to be and remain in bad and unsafe repair and condition, and said approaches defective and bad and without proper guards, nor was there any or sufficient light at the approach to said bridge, by means whereof the said Emil Johnson, who was then and there passing along and upon said bridge and said approaches, then and there necessarily and unavoidably was caught by his foot between said bridge and said approaches,” etc.

There was a trial under the plea of general issue, verdict for defendant on which judgment passed, and plaintiff brings error to this court.

Upon full and careful consideration of the case we are of opinion that the evidence fails to show a cause of action set out in the declaration. There was no attempt on the trial to prove any defect either in the bridge or approach thereto. There was some testimony tending to show that it was dusky, or getting dark, and that the gas lamps located at the south end of the bridge had not been lighted at the time of the accident; but under the facts that could not constitute a sufficient basis for a recovery, if true. The time was July 15th, when the darkness comes late. The weather was fair and sky clear. It was Sunday evening. The plaintiff, then a boy about seven years of age, whose home was with his parents, living in Uorth Chicago, came in company with and in charge of a Miss Uowackson, an adult member of his father’s family, over into the South Side for the purpose of a walk. Starting to go home they reached the place of Clark Street bridge about half past eight o’clock, and, on the west side of the street, walked up to within a few steps of what would be the south end of the-bridge, if in place. The bridge, however, had, but little previously, been swung open to let a vessel pass, but was then being turned back in its usual manner to its proper place; and the evidence shows that both Miss Kowackson and plaintiff were aware of the situation of the bridge as respected its having been opened and then being in the process of closing. But it happened that there was at this time an excursion boat lying in the river, just east of the bridge, on which a band of music was playing. That naturally drew quite a collection of persons upon said approach to the bridge, and especially the east side of it. The plaintiff became attracted by the music and his curiosity was excited to see just where it came from. So he urged his attendant to change positions from the west over to the east side of the street there. They went, talcing a position only two or three steps from the end of the approach, or the south end of the bridge, when it should be returned to its proper place. Then the plaintiff found he could not see the boat where the band was, on account of the number of people standing on the east side of said approach. So he began to urge his attendant to go upon the bridge which was not then fully closed. She, knowing the bridge was not fully closed, refused, giving that as a reason, and telling him not to go upon the bridge until it was closed. Thereupon he suddenly pulled his hand out of that of his attendant, sprang toward the bridge before it was fully closed, got his foot caught, whereby it was so crushed as to require amputation. The case is like that of Gavin v. City of Chicago, 97 Ill. 66, and should be governed by it.

We perceive no error in the exclusion of evidence offered on behalf of plaintiff or in admitting any on the part of defendant. One instruction for defendant may be obnoxious to criticism, but the law is well settled in this State, that if the plaintiff fails to make out a cause of action, error in the instructions affords no ground for reversal. The judgment below should be affirmed.

Affirmed.


author:
McAllister, P. J.
      Per Curiam.

text:
    Chicago City Railway Company v. May C. Duffin.

      Personal Injuries—Action for Damages against Street Railway Company—Bill of Exceptions, a Pleading—Action and Rulings of Court— Presumption—Affidavit for Continuance—Improper Remarles of Counsel— Waiver of Objections.

    1. The bill of exceptions is considered a pleading of the party alleging the exception; and, when liable to the charge of ambiguity, uncertainty or omission, it is construed most strongly against the party who prepared it. .

      2. The correctness of the action or rulings of the trial court will always be presumed in the absence of anything in the bill of exceptions, or record proper, showing the contrary.
    3. In an action against a street railway company to recover damages for a personal injury, it is held: That the evidence sustains the verdict for the plaintiff; that the appellant can not, under the bill of exceptions, predicate error upon the ruling of the court -in respect to an affidavit for a continuance; and that objection to certain improper remarks of counsel was waived by the failure of defendant’s counsel to preserve an exception.
    [Opinion filed June 22, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Rollin S. Williamson, Judge, presiding.
    Messrs. Hynes, English & Dunne, for appellant.
    Messrs. Stiles & Lewis, for appellee.
   McAllister, P. J.

This was an action on the case by appellee against the appellant corporation to recover damages for a personal injury received by the former in February, 1884, at the corner of 18th Street and Michigan Avenue in the City of Chicago, by reason, as it was alleged, of the carelessness of the conductor upon one of appellant’s horse cars, in giving the bell signal to start such car while appellee was in the act of getting upon the same for the purpose of being carried as a passenger, whereby the car being suddenly started in response to said signal, she was violently thrown down, her face striking against some portion of said car as she went, producing in that, and by the manner of her fall upon the ground, a serious bodily injury. There was a trial by jury under the plea of not guilty, resulting in a verdict for appellee and assessing her damages at $2,500; upon which the court, overruling defendant’s motion for anew trial, gave judgment and the latter prosecutes this appeal.

The evidence on behalf of the plaintiff tended to prove her cause of action and the extent of her injury as alleged in her declaration. The defendant introduced evidence tending to disprove the facts in plaintiff’s case, as to the cause of the injury, and tended to prove that, instead of the car having come to a stop for the purpose of letting the plaintiff get on and then suddenly starting, while she was in the act of doing so, she attempted to get on before the car had stopped, and some way missing’ her footing, fell to the ground.

The point is made on this appeal, that upon the questions of negligence on the part of defendant and the exercise of ordinary care by plaintiff, the evidence so clearly preponderates in favor of the defendant that the trial court erred in overru ing its motion for a new trial, and this court should, for that reason, reverse that judgment".

We have carefully read the evidence and think that it does not present a case for the interference by this court, with the •verdict of the jury, on the ground that it was against the clear weight and preponderance of the evidence, within the established rules of the Supreme Court in that behalf. There were circumstances developed upon the trial strongly tending to support the theory of the plaintiff, which we can not stop to discuss, but notably the absence of the testimony of the conductor of the car, at the time, without any satisfactory explanation or excuse.

There is no complaint on the part of the appellant as to giving or refusing instructions by the court to the jury. There is an assignment of. error upon the admission of improper evidence; but upon examination of the record, we think there is not enough in the points made in that respect to j ustify statements and discussion of them. Two principal points seem to be relied upon by appellant’s counsel and which they have discussed with force and ability. As stated by counsel they are: First, that at the beginning of the trial a motion was made, based upon the affidavit of an authorized agent of defendant, for a continuance on account of the absence from the State of two witnesses, the affidavit setting out the facts which it was expected to prove by them respectively; that the court held the affidavit sufficient to authorize a continuance, and that thereupon plaintiff’s counsel, to avoid such continuance, agreed and consented to admit the affidavit in evidence; that upon the trial the defendant’s counsel read in evidence the portions of said affidavit which set out the facts expected to be testified to by said witnesses, to the jury; that thereupon the court permitted the plaintiffs counsel, against the objections of the defendant, to read in evidence to the jury all the residue of said affidavit, which appellant’s counsel insists was incompetent.

Secondly, that plaintiff’s counsel made improper remarks and statements to or in the hearing of the jury, calculated to create undue prejudice in them against defendant.

It is insisted by counsel for appellee, that the question involved in the first of the above points and as respects the reading of said affidavit in evidence is not presented, and that no proper exception is preserved by the appellant’s bill of exceptions.

It has been the settled rule of the Supreme Court of this State since the year 1841, that a bill of exceptions is not to be considered as a writing of the Judge who signs and seals, but that it is to be esteemed as a pleading of the party alleging the exception ; and if liable to the charge of ambiguity, uncertainty or omission, it ought, like any other pleading, to he construed most strongly against the party who prepared it. Rogers v. Hall, 3 Scam. 5 ; McLaughlin v. Walsh, 3 Scam. 185. In McKee v. Ingalls, 4 Scam. 30, the rule was thus stated: It is the duty of the party excepting to set forth in his bill of exceptions the whole matter necessary to make the very truth of that matter appear; and the omission shall be taken most strongly against him.”

It is an established rule of the Supreme and Appellate Courts that, upon appeals and writs of error, the correctness of the action or rulings of the trial court will always be presumed in the absence of anything in the bill of exceptions, or record proper, showing to the contrary.

Row in this case the bill of exceptions fails to show, by any proper statements, that defendant made any motion for a continuance on account of the absence of necessary and material witnesses, and to identify any affidavit as the basis of such motion. It contains no statements as to how or in what way a motion for continuance was disposed of—whether under the statute or by agreement of counsel—nor does it show with any reasonable certainty that the defendant preserved an exception to the ruling of the court in permitting the plaintiff’s counsel to read in evidence the entire affidavit, of which the defendant’s counsel had previously read portions.

All that appears by the bill of exceptions, pertinent to the matter under consideration, is that it states certain conversation between the counsel and presiding Judge, concerning the affidavit, which is not identified as being, or having been, the basis of a motion for a continuance, and counsel for defendant said he would now read the affidavit in evidence, and the bill of exceptions says: “ Mr. Hynes reads certain portions of the affidavit of Sumner C. Welch. Mr. Stiles .then reads the affidavit entire. Mr. Hynes: I object to the reading of those portions of the affidavit. My point is this, that only so much of the affidavit is admissible as states what is expected to be proved by the absent witnesses. The court: I think he is entitled to read it all.”

Then, without any words connecting it with anything in the case, follows a copy of an affidavit purporting to have been made by Sumner C. Welch, after which follow these words: “ Exception by defendant.”

We are of opinion that, taking this bill of exceptions subject to the rule of construction as above stated, the appellant can not be permitted to predicate error upon the ruling of the court in respect to said affidavit.

The other ground of error arises upon alleged improper remarks made by the counsel for plaintiff to, or in the hearing of the jury. The first of such remarks, as appears by the bill of exceptions, arose while a colloquy was going on between counsel, as respected a former conversation between them. The counsel for defendant said: “ I will admit that the gentleman said everything that he possibly could against the company. Mr. Stiles: Ho, I could have stated that you have killed twenty or thirty on your own line of road. The defendant excepted to the above statement.”

There was no repetition of the remark, and we feel justified in saying, without discussion of the point, that it is an insufficient cause for reversal of the judgment.

The other remarks of counsel objected to here were made in his closing speech to the jury, which is incorporated into the bill of exceptions. They are too voluminous to be set out in an opinion. They were very improper, and the counsel would probably have been checked if the court’s attention had been called to them by the defendant’s counsel. But the latter failed to so object. Ho exception is preserved, and we think the error was waived by the defendant’s counsel not objecting. Earll v. The People, 99 Ill. 123.

Perceiving no substantial error in the record, the judgment below will be affirmed.

Affirmed.

RE-HEARING.

Per Curiam.

A re-hearing having been granted in this case upon petition of the appellant, we have reconsidered the case upon all the grounds presented in such petition, and have come to the conclusion that the judgment should be affirmed for the reasons given in our opinion.

Judgment affirmed.


author:
      Per Curiam.
     Bailey, J.

text:
    Fairbank Canning Company v. Elizabeth C. Innes.

      Action against Employer for Damages for Causing Death of Plaintiff's Husband—Agreement—Reasonable Care—Approved Appliances—Defective Elevator—Negligence—Question for Jury—Practice—Declaration—Instructions.

    1. In an action to recover damages for causing the death of the plaintiff’s husband, who was killed by reason of the defective construction of an elevator which he was employed to operate, it is held: That a certain conversation with the deceased can not be construed as an agreement on his part to take the risk of defects in the construction of the elgvator, or to relieve the defendant from the duty of using reasonable care to provide such appliances for safety as were known and in general use;' that it was for the jury to draw from the evidence the inference of care or of negligence; that the deciar ition was sufficient after verdict; and that objection to it should have been taken by demurrer before trial.
    2. Upon a rehearing it is further held: That in the absence of proof of any other intervening cause, the giving way of the timbers and supports was of itself sufficient evidence to justify a verdict that their construction was negligent; that it was the duty of the defendant to use reasonable care and diligence in supplying, for the use of its employes, machinery which should be reasonably safe and secure; that it was for the jury to determine whether an elevator constructed without a brake was reasonably safe; that the evidence does not show a contract on the part of the deceased to assume any risks beyond those which might result from his own want of care; that there is no evidence tending to charge him with negligence; and that there was no substantial error in giving and refusing instructions.
    [Opinion filed April 26, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Bollin S. Williamson, Judge, presiding.
    Mr. John C. Richberg, for appellant.
    “ Where defects in machinery or other appliances are as well known to the servant as to the master, the servant must be regarded as voluntarily incurring the risks resulting from its use, unless the master, by urging upon the servant or coercing him. into danger, or in some other way, directly contributes to the injury.” C., B. & Q. R. R. Co. v. Smith, 18 Ill. App. 124.
    In this case there was no urging or coercing; on the contrary, the deceased was warned that he took it at his own risk, as it was; he knew just as well as the master that there was no air-brake on this elevator; as an experienced elevator man, who had made two trial trips, he could not help but know it; and if the steam-brake was taken off on the night of February 2d, he was bound to know when he took charge of the elevator on the 3d, that it was not on, and certainly before the accident occurred, as he had made numerous trips on the morning of the accident. C., R. I. & P. R’y Co. v. Lonergan 118 Ill. 41; Payne v. Reese, 100 Pa. 306; C. & N. W. R’y Co. v. Snyder, 117 Ill. 376; C., M. & St. P. R’y Co. v. Stondart, 16 Ill. App. 145; Stafford v. C., B. & Q. R. R. Co., 114 Ill. 244; C. & E. I. E. R. Co. v. Geary, 110 Ill. 383, 389.

      Mr. John B. Skinner, for appellee.
   Per Curiam.

Appellant brings this appeal from a judgment of the Superior Court for 85,000, recovered by appellee for causing the death of George Innes, the husband of appellee.

It appears from the record that the deceased was employed by the superintendent of appellant to run the elevator, that he was an experienced elevator man, had run elevators for many years and was careful and competent. Within a short time after he commenced to run the elevator on the first trip he made, either the beams overhead and which bore the weight of the elevator, or the wheel over which the cable ran, broke, and the elevator was precipitated to the bottom of the shaft and Innes was killed. There is nothing to show that the falling of the elevator was due to any carelessness on the part of deceased, and from his experience and character for prudence the jury might infer the exercise by him of proper care in managing the elevator. It is in proof that there was no air-brake on the elevator and that if a proper air-brake had been upon it, the fall of the elevator would have been prevented. It further appears that a steam-brake, which was on the elevator, was removed, and it does not appear that the attention of Innes was called to the fact that there was no air or steam-brake upon it when he was placed in charge of it. So far as external appearance went, the elevator appeared to be in good condition. The superintendent told Innes when he went upon the elevator that he must look out and run at his own.risk, and Innes told him not to be afraid, that he had run an elevator for twenty years. Appellant presses this with a view of showing that Innes took the risk of all danger, but we think it plain that the conversation had reference to his care and his competency and that it can not be understood as an agreement on his part that he took the risk of defects in the construction or machinery of the elevator which were unknown to him, or that it can be construed to relieve the appellee from the duty of using reasonable care to provide upon the elevator such appliances for safety as were known and in general use. The jury is the proper tribunal to draw from the evidence the inference of care and of negligence in such cases, and when there is evidence before them which authorizessuch inferences the court can not interfere.

Ho point is made against the instructions of the court, but counsel contends that the declaration is insufficient, and that this motion in arrest of judgment ought’to have been sustained; we think the declaration' sufficient after verdict. The objection to it should have been taken by demurrer before trial. C., B. & Q. R. R. Co. v. Harwood, 90 Ill. 425; L. S. & M. S. R’y Co. v. O’Connor, 115 Ill. 254.

On the whole record, we think the judgment of the Superior Court must be affirmed.

Judgment affirmed.

RE-HEARING.

Bailey, J.

This was an action on the case brought by Elizabeth G. Innes, administratrix of the estate of George Innes, deceased, against the Fairbank Canning Company, to recover damages resulting from the death of the plaintiff’s intestate. The declaration alleges that the defendant, in the lifetime of said Innes, built, constructed and placed in its packing-house a certain elevator for carrying freight between the different floors of said building and placed said Innes in charge of it; that said elevator was built, constructed and placed by the defendant in so careless, negligent and wrongful a manner, that while said Innes was, with all due care and diligence, in said elevator and running the same, said elevatoi or portions of it, without any fault on his part, was and became broken and displaced and gave way, thereby precipitating said elevator from the upper floor of said building tó the basement and causing the death of said Innes. At the trial the jury found the defendant guilty and assessed the plaintiff’s damages at §5,000, and for that sum and costs the plaintiff had judgment.

The ground upon which the defendant chiefly relies for a reversal of the judgment is, that the verdict is unsupported by the evidence. It appears that in the latter part of January, 1885, the defendant employed the Ellithorpe Air Brake Company to re-construct its freight elevator, using, in so doing, the cage belonging to the former elevator. On the 2d day of February, 1885, said elevator was turned over to the defendant as ready for use, and on that day the defendant employed Innes to take charge of and run it. At 7 o’clock the following morning Innes was put in charge of the elevator, and commenced operating it, carrying freight between the different floors of the building. After he had been running it about an hour, the cage fell from the top to the bottom of the elevator shaft, causing the death of Innes almost instantly. After the cage had fallen, it was found that all the timbers at the top of the shaft upon which the cage was suspended, had come down, three of them having lodged part way up the shaft and the residue being at the bottom; that the wheel over which the cable ran was, broken, the fragments lying in the cage, and that the cable itself was broken. The cage had previously been supplied with a steam-brake, but said brake had been removed from it the evening before Innes took charge of the elevator, and it does not appear that he was informed of its removal or that he was aware of its absence. The evidence also tends to show that if the elevator had been supplied with an air-brake the cage would not have fallen.

It is insisted that the evidence fails to establish negligence on the part of the defendant. As we have seen, the negligence charged was in the construction of the elevator. In the absence of proof of any other intervening cause, the giving way of the timbers and supports upon which the elevator cage was suspended was, of itself, evidence of negligence in the construction of those supports, and justifies a verdict that their construction was negligent.

There is one circumstance, however, testified to by one of the defendant’s witnesses which is relied upon as tending to show an intervening cause for the giving way of said timbers. That witness testifies that, after the cage had fallen, he noticed “ a casting from the top of the cage stuck on top of the timbers,” and it is argued that the cage must have been run up against said timbers so as to throw them out of their places and cause them to fall. Such inference might perhaps have been warranted if it had appeared that the timber in which the casting was found imbedded was one of those which had lodged in the shaft and had not fallen to the bottom. This, however, is not shown, and in the absence of specific information from the witness on this point, we are at liberty to assume that it was one of the timbers which was found at the bottom of the shaft lying in or upon the cage. It is much more probable, then, that the casting became imbedded in the timber by the timber’s falling upon the cage than by the cage being run up against the timber.

There is also ground for charging the defendant with negligence in having the elevator constructed without a proper and sufficient brake. A steam-brake which is shown to have been a very considerable safe-guard against accident, had been taken off, and an air-brake, an appliance which, as it seems, would have completely protected the cage against any liability to fall, had not been supplied. It was the duty of the defendant to use reasonable care and diligence in supplying, for the use of its employes, machinery which should be reasonably safe and secure, and it was for the jury to determine whether, under all the circumstances, an elevator constructed without any brake was reasonably safe, within this rule.

But it is claimed that Innes expressly undertook to take charge of and run the elevator at his own risk'. It appears that Innes was hired by the defendant’s engineer and there is no evidence that, at the time he was employed, there was anything said between him and the officer who employed him, in relation to the assumption by him of any of the" risks incident to his employment. After he was hired, however, and before he took charge of the elevator, the defendant’s superintendent had a conversation with him in the presence of the engineer, in which the superintendent, as he testifies, told Innes that he was to run the elevator at his own risk; that the company would stand no responsibility whatever; that it was a new elevator and they wanted him to take good care of it, and anything that happened to him, he was responsible for himself; that the company would positively not be responsible for anything; that Innes replied: “Ton know me long enough; I have been at work in the stock yards for twenty years, and I have run elevators off and on, and you must not be afraid of me;” that the superintendent replied: “If that is the case you go ahead and take care.” Taking this evidence all together, it is very clear that it does not show a contract on the part of Innes to assume any risks, or at least, none beyond those which might result from his own want of care.

We are of the opinion that there was no evidence tending to charge Innes with negligence. He is shown to have been competent, experienced and careful in the running and management of elevators, and no act of carelessness or imprudence is shown. We have already considered the theory that he allowed the cage to run up against the beams from which it was suspended, and found that such theory has no substantial basis in the evidence.

We find no material error in the instructions to the jury. Ho instructions were given at the instance of the plaintiff. A large number were asked on behalf of the defendant, of which a considerable number were given, and we think the law applicable to the case was adequately stated in the instructions given. The propositions of law stated in one or more of the instructions refused are perhaps not open to serious criticism, but said instructions are abstract in form, and it was therefore wholly discretionary with the court to give or refuse them.

After diligently examining the record and giving the arguments of counsel careful consideration, we are unable to find any material error. The judgment will be affirmed.

Judgment affirmed.


author: Moran, P. J.

text:
    City of Chicago v. Ella J. Wood.

      Municipal Corporations—Defective Sidewalk—Personal Injury—Action for Damages—Amended Declaration—Waiver of Objection—Evidence— Physician—License.

    1. In an action against a municipal corporation to recover damages for a personal injury caused by a defective sidewalk, it is held: That the evidence tended to support the verdict for plaintiff; that the damages allowed were not excessive; that it was proper to allow- the plaintiff to file an amended declaration after the evidence was in; that an objection that there was no issue on the amended declaration was waived by the defendant by proceeding with the trial; that the court properly refused to allow certain questions asked the plaintiff on cross-examination; and that toe evidence-of the physician, who attended the plaintiff, as to the value of his services, was competent.
    2. Where the question of license or qualification of a physician arises collaterally in a civil action between third parties, the license or due qualification of the physician under the statute will he presumed.
    The case of City of Chicago v. Honey, 10 Ill. App. 535, criticised.

    [Opinion filed November 23, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. Hempstead Washburn and Clarence A. Knight, for appellant.
    Messrs. Byam, Parkhurst & Weinschenk, for appellee.
   Moran, P. J.

Appellee recovered a judgment against the City of Chicago for an injury sustained by her by stepping into a hole in the sidewalk on State Street, a little south of the intersection of Twelfth Street.

The case was tried before the court and a jury, and a verdict for $1,750 was found. The evidence tended to support the allegations of plaintiff that she stepped into a hole in the sidewalk, at the place stated in the declaration, and was injured, and that at the time of such injury she was in the exercise of due care, and also tended to show that the defect or hole into which she stepped had heen in said sidewalk for such a length of time before the accident that the city authorities, by the exercise of reasonable diligence, might have known of its existence.

We are unable to say that the damages allowed by the jury are excessive. The verdict being supported by the evidence, the judgment must stand, unless some one of the errors of law assigned by the counsel for appellant shall be found to require a reversal. The first point which the counsel urges as error in the brief, is that the court allowed plaintiff to file an amended declaration on the trial in the court below after the evidence was all in, and after plaintiff’s counsel had begun his argument to the jury, and that the case proceeded to verdict and judgment without any issue being found on the amended declaration.

There was no error in allowing the amended declaration to be filed. It is within the discretion of the court to allow amendments to the pleadings at any time before final judgment. On the point that there was no issue on the amended declaration, the bill of exceptions recites that the counsel for the city reserved their exception to the ruling of the court, permitting the amendment, “ and proceeded with the trial.” Having thus proceeded with the trial without objection, both parties treated the cause as at issue, and the city can not now be heard to complain that there was no formal issue on the pleadings.

The next error alleged is that the court refused to allow the two following questions to be put on cross-examination of the plaintiff: “Did you pay the costs of this suit?” “Have you ever sued any other corporation? ” The questions were not germane to anything brought out on the direct examination, and were wholly immaterial. Therefore, there was no error in refusing them.

It is next urged that the court erred in allowing Dr. Potter, who attended plaintiff at the time of her injury, to testify against objection, that his services were worth §100, for Ihe reason: 1st, “that there was no evidence to show that said Potter was a licensed physician;” and 2d, “that at the time the evidence was introduced there was no claim made in the decoration for .liability incurred, but only for money paid out.” The amended declaration obviates the latter ground of objection to the testimony and there remains to consider the objection that there was no evidence that the doctor was a licensed physician.

In support of this objection counsel for the city rely on the case of City of Chicago v. Honey, 10 Ill. App. 535.

While that case is undoubtedly sound in the view therein taken of the purpose and intent of the Legislature in enacting the statute to regulate the practice of medicine in this State, we are not inclined to adhere to the rule there laid down as to the burden of proof in cases where the physician sues to recover for services, or where it is sought in a civil case to prove a legal debt incurred for such services. We regard the sounder and better supported doctrine to be as stated by the same learned Justice who wrote the opinion in City v. Honey, in the case of Williams v. People, 20 Ill. App. 89. It is there said: “ After a somewhat thorough, examination of the authorities and full consideration, we are of the opinion that the rules, with their proper distinctions, may be thus stated: Where the question of license or qualification of a physician arise collaterally in a civil action between party and party, or between the doctor and the one who employs him, then the license or due qualification under the statute to practice, will be presumed. McPherson v. Cheadell, 24 Wend. 15; Thompson v. Sayre, 1 Denio, 175; Pearce v. Whale, 5 Barn. & C., 38; Id. 758.

“But in case of prosecution on behalf of the public the rule is otherwise, and in such cases license or due qualification under the statute is not presumed, and it rests with the defendant to prove it. Apothecaries Co. v. Bently, Ry. & Moo. 159; 21 E. C. L. 722; Sheldon v. Clark, 1 Johns. 513; Sherwood v. Mitchell, 4 Denio, 435; Smith v. Joyce, 12 Barb. 21.”

The reason why the license will be presumed where there is no evidence to the contrary, rests upon the principle that when an act is required, by positive law, to be done, the omission of which would be a misdemeanor, tlie.law presumes that it has heen done and therefore the party relying on the omission must make some proof of it though it be a negative. In addition to the cases cited in Williams v. People, showing the difference between civil and criminal cases as regards the burden of proof, as to the existence of the license, the following cases will be found to support the distinction as stated in that case : Brown v. Young, 2 B. Mon. 26; Redding v. Commonwealth, 3 B. Mon. 344; State v. Crowell, 25 Me. 171.

We are of opinion, therefore, that the evidence of the doctor, as to what his services to the plaintiff were worth, was competent, and that in the absence of contrary evidence he would be presumed to have been duly licensed, and therefore plaintiff established a legal debt incurred for such services which she was entitled to recover as part of her damages.

We have carefully examined the instructions given and refused, and find the action of the court in that regard free from error. Mo ground appearing for the reversal of the case, the judgment of the Superior Court must be affirmed.

Judgment affirmed.


text:
    J. V. A. Weaver et al. v. The Singer Manufacturing Company.

      Landlord and Tenant—Practice—Bill of Exceptions.
    In an action to recover rent, it is held: That, as the bill of exceptions fails to show that any exception to the finding or judgment for defendant was taken, or motion for a new trial made, neither the sufficiency of the evidence nor an objection to the form of the judgment can be raised in this court.
    [Opinion filed November 23, 1887.]

      Appeal from the Circuit Court of Cook County; the Hon. John C. Bagby, Judge, presiding.
    Messrs. John Barton Payne and John V. A. Weaver, for appellants.
    Mr. N. M. Jones, for appellee.
   McAllister, J.

This was an action originally brought in Justice Court; by appellants against appellee, to recover for rent. On appeal to the Circuit Court, there was a trial by the court without a jury, and a finding and judgment for defendant, from which the plaintiffs took this appeal.

There was evidence upon the trial tending to prove a legal defense viz., a surrender of the term of defendant and acceptance by plaintiffs before the alleged accruing of rent. The sufficiency of that evidence is now challenged by argument. But the bill of exceptions fails to show that any exception to the finding or judgment was taken, or motion for new trial made in the trial court. In such case the point made, as well as that against the form of the judgment, will be unavailing. Martin v. Foulke, 114 Ill. 206.

The judgment will be affirmed.

Affirmed.