text:
    Packard De Luxe Lines, Inc., Defendant in Error, v. Herbert E. Hudson, Plaintiff in Error.
    Gen. No. 32,404.

      Opinion filed May 8, 1928.
    John E. Van Natta, for plaintiff in error.
    Henry S. Shedd and John L. Smith, for defendant in error,
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Plaintiff is a corporation organized under the laws of this State. Defendant was one of its incorporators, and a subscriber to 30 shares of its capital stock at a par value of $100 a share. This suit was brought to recover $1,500 as due and unpaid for 15 of said shares. From a judgment for that sum this appeal was taken.

The amended statement of claim sets forth the fact of such subscription as it appears in the statement of incorporation filed in the office of the secretary of State, December 9, 1922, and executed and acknowledged by the defendant, a copy of which statement is attached to and made a part of the statement of claim, and alleges that defendant paid for 15 of said shares and has failed or refused to pay for the other 15. •

The statement of incorporation, as shown by said copy, is in the usual form used in this State. It sets forth the name and address of each of the subscribers to the capital stock, including defendant, the amount subscribed and paid in by each; that 250 shares of said capital stock were subscribed for at said par value; that each subscriber paid one-half of the amount of his subscription; that defendant subscribed $3,000 for 30 of said shares, and paid in $1,500, and states that of said stock the corporation “proposed to issue at once” the number of shares so subscribed for on which was paid the amounts as aforesaid. Defendant was designated therein as one of the board of directors, and made oath and acknowledgment to the incorporation papers as one of the incorporators.

Defendant’s affidavit of merits does not deny any of said allegations but relies on defenses which may be summarized as follows: That the suit was not authorized; that neither the sale nor the issuance of any of the stock of the corporation has been reported to the secretary of State, as required by law, including the 15 shares defendant has not paid for; that by reason of such failure so to report plaintiff is without authority to transact business; that no personal or written demand, as required by law, had been made upon defendant for the balance claimed to be due on his said subscription.

It will thus be seen that the defense made is mainly one of law rather than of fact.

Defendant also filed a set-off, claiming in effect the right to a return of the $1,500 it had paid for 15 shares of the stock on the theory that it was entitled to the return of said money, with interest and reasonable attorney’s fees, because the issuance of said stock had never been reported to the secretary of State, and because seven of the shares had never been issued to defendant.

Issue was taken thereon by plaintiff claiming issu.anee of the stock and reporting the same as required by law.

The cause coming to hearing, plaintiff introduced a certified copy of the charter of incorporation which conformed in every respect to the copy attached to the statement of claim, and rested.

The court overruled defendant’s motion for a finding for defendant, and thereupon defendant was called and testified that he had' never received a signed certificate for seven shares, but one had been sent to him unsigned, which he returned for signature, but that the same had never been delivered to him; that he received the certificate for eight shares and paid $1,500 to the company for those two certificates. Thereupon plaintiff tendered a duly signed and sealed certificate for seven shares of the stock, and the tender was refused.

In rebuttal plaintiff’s attorney took the witness stand and testified that he was directed by the president of the company to bring the suit.

In support of the defense plaintiff in error relies upon section 28, Cahill’s St. ch. 32, ft 28, pertaining to the issue of stock, and section 32, Cahill’s St. ch. 32, 32, relating to payments of subscriptions, of the General Incorporation Act. But we think there can be no doubt that said paragraph 28 applies only to additional stock authorized to be issued subsequent to the stock specified in the statement of incorporation as proposed to be issued at once, and to an increase of the original capitalization of the corporation, and that paragraph 32 has reference only to stock subscription payable in instalments. Nothing is said in the subscription of defendant, as it appears in the statement of incorporation, as to when the balances of the subscriptions are to be paid. On completion of the incorporation the charter contemplates that the stock so subscribed for shall issue at once and shall be paid for as issued unless made payable in instalments by action of the board of directors. It does not appear either as a defense or in the record that any such action was ever taken.

Inasmuch as the secretary of State is informed in the statement of incorporation itself of the proposal to issue the stock at once it would be entirely superfluous to require a report back to the secretary of State that the stock was issued in conformity with such proposal and pursuant to the implied power to issue it on the completion of the incorporation. The corporation needs no further authority to issue the stock than the filing and approval of said statement by the secretary of State.

We think proper authorization to bring suit was shown and that the case is not one requiring compliance with the conditions in section 32, Cahill’s St. ch. 32, 32, before bringing the suit.

Nor do we concur in the view that the certified copy of the statement of incorporation did not constitute ample proof of defendant’s subscription to 30 shares of the capital stock. But such subscription was not denied, and under general principles of pleading — in the absence of the rules of the municipal court — stands admitted.

If, therefore, the stock was properly issued and no subsequent report thereof was required by law, and the suit was authorized, the defense falls to the ground.

Counsel for plaintiff in error recognizes that his defense is mainly one of law resting upon the construction of the Incorporation Act, Cahill’s St. ch. 32. But, as before stated, we cannot agree with his construction.

We do not think defendant was in a position to repudiate his contract of subscription as to the seven shares of stock merely because it had not been returned to him duly signed before the trial. It does not appear that its issuance was ever refused. It was a mere matter of neglect and affords no basis- for his counterclaim or return of the money be had paid therefor.

The judgment will be affirmed.

Affirmed.

Gtridley and Scanlan, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Gridley Mr. Justice Scanlan Mr. Presiding Justice Barnes

license: Public Domain

text:
    Percival B. Coffin, Administrator of the Estate of James Monroe Wright, Deceased, Appellee, v. Greer College of Motoring, Appellant.
    Gen. No. 32,239.

      Opinion filed May 8, 1928.
    Soelke, Koehu & Loewy, for appellant.
    Murphy O. Tate and George N. Welsh, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

In an action for damages against defendant, commenced April 8,1926, for negligently causing the death in an automobile accident of plaintiff’s intestate, James Monroe Wright, there was a trial before a jury in January, 1927, resulting in a verdict in plaintiff’s favor for $4,750. After plaintiff had remitted $2,750, defendant’s motions for a new trial and in arrest of judgment were overruled and, on February 19, 1927, judgment was entered against defendant for $2,000. This appeal followed.

Plaintiff’s original declaration, filed April 8, 1926, consisted of four counts. The first count contained five paragraphs. In paragraphs 1 and 2 it was alleged that “on, to-wit, February 28th, 1925,” defendant, being the owner of an automobile, was driving it by an agent southerly upon Wabash avenue, near its intersection with 20th street, Chicago, and that plaintiff’s intestate was lawfully walking across Wabash avenue at or near the intersection, exercising due care, etc. The substance of paragraphs 3 and 4 was that defendant, not regarding its duty, etc., so negligently drove the automobile that it ran into and struck said intestate, “inflicting injuries which resulted in the death of said intestate.” In paragraph 5 it was alleged that the intestate left him surviving certain next of kin (naming them) who had been deprived of moneys which the intestate would have contributed to them had he lived, and that “this suit was instituted within a year from the date of said intestate.”

In the second and third counts, paragraphs 1, 2 and 5 of the first count were expressly adopted and the substance of the remaining portions of the counts was that defendant negligently drove the automobile at excessive rates of speed in violation of the statute, in consequence of which defendant’s automobile ran into and struck the intestate, “inflicting injuries which resulted in the death of said intestate.”

In the fourth count, paragraphs 1, 2 and 5 of the first count were expressly adopted, and the remaining portions of the count charged defendant with then and there wantonly and wilfully driving its automobile against and upon plaintiff’s intestate, “inflicting injuries from which resulted the death of said intestate.”

To the declaration defendant filed a plea of the general issue and also a plea denying ownership, possession, operation or control of the automobile.

On January 22, 1927, on the eve of the trial, on plaintiff’s motion, the court allowed him to amend his declaration on its face by striking out the words “February 28th, 1925 ’ ’ and. inserting in lieu thereof the words “December 28th, 1925,” and further allowed defendant on its motion to filó an additional plea to the original declaration, and also a general demurrer to the declaration as amended. The amendment was made upon the face of the declaration and the additional plea and demurrer were filed. The plea is entitled as one of “statute of limitations,” and says that plaintiff ought not to have his aforesaid action because the “several supposed causes of action in said declaration mentioned did not accrue to plaintiff at any time within one year next before the commencement of the suit,” etc. The demurrer to the declaration as amended is in the usual form. On the same day (January 22nd) plaintiff filed a replication to defendant’s additional plea, containing the usual allegations, and further alleging that the date alleged in the original declaration, viz, February 28th, 1925, “was a mere clerical error and should have read December 28th, 1925, and that said cause of action actually accrued on December 28th? 1925, and that said suit was filed on April 8th, 1926, within one year from the date of said accrual. ’ ’

On January 24, 1927, after arguments of counsel, the court overruled defendant’s demurrer to the declaration as amended, and ordered that defendant’s pleas on file to the original declaration (except its plea of nonownership and noncontrol of the automobile, which it withdrew) stand as pleas to the declaration as amended. And thereupon the jury were impaneled and sworn, and an adjournment was taken until the following day.

On that day (January 25th) there seems to have been further arguments on the overruled demurrer, for the transcript discloses that it was again overruled by the court; and thereupon, on plaintiff’s motion, the court granted him leave (immediately acted upon) to further amend his declaration on its face by inserting after the words “date of” (in the clause reading that “this suit was instituted within a year from the date of said intestate”) the words “the death of” (so that they read that “this suit was instituted within a year from the date of the death of said intestate”); and there-" upon the court further ordered that “by agreement, all pleas heretofore filed by defendant, including the plea of the statute of limitations, stand to the declaration as amended, and also that plaintiff’s replications heretofore filed stand to such pleas,” and the court, later in the day and during the progress of the trial, allowed plaintiff to withdraw the.wilful and wanton count from the jury’s consideration. The verdict, as-first above mentioned, was returned on January 26, 1927.

The evidence disclosed in substance that the accident happened on December 28, 1925, about 6 p. m., on Wabash avenue, at or near its1 intersection with 20th street; that deceased, about 34 years of age, while attempting to cross Wabash avenue from west to east on or near the cross-walk, was struck, run down and dragged some distance by defendant’s automobile, receiving injuries from which he died on the same day; that he was single and in good health and had been employed as a porter at St. Luke’s hospital, Chicago; and that prior to his death he had contributed monthly to the support of his mother, Martha Wright, 67 years of age and residing at Carterville, Illinois, various sums of money averaging about $25 per month.

Defendant’s counsel contend that the judgment cannot stand, because the court erred in overruling defendant’s demurrer to the declaration as amended, in not sustaining its plea of the statute of limitations thereto, and in not sustaining its motion in arrest of judgment. The argument is that the original declaration (filed April 8, 1926, the day the action was commenced) did not state upon its face a cause of action because it alleged that the accident, resulting in the death of plaintiff’s intestate, occurred on February 28, 1925, more than one year before the commencement of the action; that the amendment to the declaration, made on January 22, 1927, and alleging that the accident resulting in said death occurred on December 28, 1925 (more than one year before the making of the amendment), stated a new cause of action and came too late; and that, hence, plaintiff cannot recover, especially in view of the proviso as contained in section 2 of the Injuries Act, Cahill’s St. ch. 70, H 2, viz, that every action, like the present, “shall lie commenced within one year after the death of such person.”

After careful consideration of the contention and argument we are of the opinion that the superior court erred in not sustaining defendant’s motion in arrest of judgment, and that the judgment appealed from cannot stand and should be reversed.

“A declaration which fails to allege a fact the existence of which is necessary to entitle the plaintiff to recover does not state a cause of action. * * * This suit was brought under the Injuries Act, and the time fixed for commencing an action arising under that act is a condition of the liability and operates as a limitation of the liability itself and not of the remedy, alone. * * * Since the right of action for death by wrongful act is wholly statutory and must be taken with all the conditions imposed upon it, the burden being upon plaintiff to bring himself within the requirements of the statute, it is almost universally held that a provision in the statute creating the right, requiring an action thereon to be brought within a specified time, is more than an ordinary statute of limitations and goes to the existence of the right itself. It is a condition attached to the right to sue at all. * * * It is a condition precedent to the right of recovery granted by this act that the action be brought within one year after the cause of action accrues. * * * In a statutory action like this, where the right is conditional, the plaintiff must bring himself clearly within the prescribed requirements necessary to confer the right of action. * * * Inasmuch, therefore, as the limitation of the time in which to sue is considered not merely of the remedy but of the right of action itself and the cause of action exists subject to the limitation, a declaration must allege or state facts showing that the action is brought within the time prescribed by the statute.” (See, also, Bishop v. Chicago Rys. Co., 303 Ill. 273, 277.)

In view of the holdings in the Hartray case, supra, we do not think that plaintiff’s original declaration stated such facts as disclosed affirmatively on its face a cause of action under the Injuries Act, Cahill’s St. ch. 70, ü 1 et seq., against defendant. He alleged that the accident, resulting in the death of the intestate, occurred on February 28, 1925 (more than one year before the commencement of his suit on April 8,1926), but he did not definitely and affirmatively allege when said death occurred. It is true he alleged that “this suit was instituted within a year from the date of said intestate,” but this allegation is meaningless, and in no count of the declaration does he allege affirmatively and clearly that the suit was commenced within one year after the death of the intestate. And we are of the opinion that when, on January 22nd and January 25th, 1927, he made the amendments to his declaration as above mentioned, these amendments stated a new cause of action, and came too late because at those times more than one year had elapsed since the death of the intestate on December 28, 1925. In Bahr v. National Safe Deposit Co., 234 Ill. 101,103, it is said:

“The rule is established in this State that the Statute of Limitations expiring after the commencement of an action bars recovery upon an amended pleading afterwards put in, where the original pleading fails to state a cause of action; or, stated in other words, the rule is, that when a plaintiff, in his original declaration filed before the Statute of Limitations has run against his cause of action, fails to aver any cause of action whatever, and afterwards, when the statute has run, files an amended declaration with new and additional counts which do set up a cause of action, such new counts must he held to state a new cause of action,— one never before stated, and one that is barred by the statute.”

In Allis-Chalmers Mfg. Co. v. City of Chicago, 297 Ill. 444, 449, it is said: “The rule is well established that when a cause of action is stated for the first time in an amended count of a declaration the suit is regarded as having been commenced as to such cause of action at the time of filing the amended count, and if the Statute of Limitations has then run it will be a bar to the new cause of action stated in the amended count.” We think that the same rule should apply in actions brought under the Injuries Act.

It is contended by plaintiff’s counsel, however, that, because in the original declaration the erroneous date of “February 28, 1925,” was preceded by a videlicet, the declaration did not purport to fix any exact date, and that under such a declaration the actual date of the death of the intestate could properly have been shown upon the trial to have occurred within one year prior to the commencement of the suit. We cannot agree with the contention. In an action brought under the Injuries Act, Cahill’s St. ch. 70, H1 et seq., the allegation as to date of the death of the injured party is a most material one, for, if the death occurred more than one year before the commencement of the action, there is no right of action. In 19 Encyc. PI. Pr., pp. 254, 256, it is said:

“In all cases where the time at which a fact occurred is not considered as forming a material part of the issue, the time should be laid under a videlicet; but whenever time is material, so that if a traverse be taken the time laid is of the substance of the issue and must be strictly proved, the time must be stated truly, and the insertion' of the videlicet is useless. * * * When a videlicet prefaces matter that is material or necessary to be alleged it is. considered as a direct and positive affirmation which can be traversed unless it is contrary to matter preceding it, and it must be proved to the same extent as if it had been averred without a videlicet, so that the consequences of a variance between allegation and proof will not be avoided.” (See, also, Luka v. Behn, 225 Ill. App. 105, 111.)

In 31 Cyc. 705, it is said:

“The proper office of a videlicet is to particularize or explain what goes before it, or to state time, place or manner, which are not of the essence of the matter in issue, so that they need not be proved strictly as laid. But it is only when matters alleged under a videlicet are not essential and material that the party is relieved from the necessity of proving them strictly, and therefore material matters must be proved with equal strictness whether laid under a videlicet or not.”

In Frank v. Morris, 57 Ill. 138, 139, it is held that where the matter alleged in a plea is material and traversable, the stating of it under a videlicet will not avoid the consequences of a variance, and that such matter, if traversed, must be proved. In People v. McCanney, 205 Ill. App. 91, 98, it is said: “The office of the videlicet is to indicate that the pleader does not undertake to prove the precise circumstances alleged. * * * This rule does not apply if the matter stated under a videlicet is material to the charge.” In Schlatter v. Rector’s Adm’r, 1 Mo. 286, 287, it is said: “The law is, that where time is material, a videlicet will make it-neither better nor -worse; but the party will be bound to prove all material allegations, as laid.” In Dawkins v. Smithwick, 4 Fla. 158, 163, it is said: “The general rule, as laid down by Sir William Blackstone, is doubtless the correct one. He says, the true distinction is, where the time when a fact happened is immaterial, and it may have happened on another day, if alleged under a videlicet, it is not traversable; but when the precise time is the very point and gist of the action, then the time alleged under the videlicet is conclusive and traversable. 1st Blackstone’s Reports, 495.” In Ladue v. Ladue, 16 Vt. 189, 190, it is said: “When a videlicet is followed by that which is material and necessary to be alleged, it is considered as a direct and positive affirmation, or averment, which is traversable, unless contrary to the preceding matter. It must be proved, when material, as much as if it had been averred without a videlicet. -» * * A videlicet never renders that immaterial which would otherwise be material.”

Holding, as we do, that for the reasons stated the judgment appealed from cannot stand, it is unnecessary for us to discuss the other contentions of defendant’s counsel, viz, (1) that the verdict is against the manifest weight of the evidence on the question of the contributory negligence of the deceased at the time of the accident; (2) that the verdict is excessive even as remitted; (3) that certain improper evidence offered by plaintiff was admitted over objection; (4) that certain erroneous instructions offered by plaintiff were given, and (5) that both plaintiff’s attorney and the trial court made improper remarks in the jury’s presence, which were prejudicial to defendant. We may, however, say that we have considered the contentions and are of the opinion that each and all are without substantial merit.

The judgment of the superior court is reversed without remanding the cause.

Reversed without remandment.

Mr. Justice Scanlan

specially concurring: I agree with Mr. Justice Gfridley that the declaration lacked an essential and material averment, viz, that the suit was commenced within one year after the death of the intestate. The right of action of the plaintiff is wholly statutory, and the burden was upon him to bring himself, in his declaration, clearly within the prescribed statutory requirements. (Hartray v. Chicago Rys. Co., supra.) That the declaration fails to state a cause of action, under the statute, cannot be, in my, judgment, reasonably disputed. It would be, in my opinion, contrary to the very statute that gave the plaintiff a right of action, under certain prescribed conditions, to permit, in a case like the present one, the amendment in question, at a time more than one year after the death of the intestate. Nor can I approve of a doctrine that would permit the amendment upon an assumption by the court that the use of the word “date” was a clerical error and that the pleader intended to use the word “death” instead of “date.” Such a novel and far reaching doctrine, in my opinion, runs counter to the statute and the practice. After a very careful consideration of the instant question, I find myself forced to the conclusion that the judgment of the superior court of Cook county must be reversed.

Mr. Presiding Justice Barnes

dissenting: I think the allegation that the suit was instituted within one year from the “date of said intestate” cannot reasonably be deemed meaningless, in view of the evident purpose- of the pleader to allege, as required in a death case, that the suit was begun within one year from the death of the intestate. The use of the word “date” instead of the word “death” is so obviously a clerical error, and the purpose and meaning of the allegation so unmistakable, that its correction could not reasonably be deemed to state a different cause of action.

The date of the videlicet is that of the accident and does not purport to be that of the death resulting therefrom. As the right of action hinges upon the time of death it is immaterial whether the exact date of the accident be alleged. Hence discussion of the law relating to the use of the videlicet has no bearing on the material issue, namely, whether it appears in the declaration that the suit was begun within one year of the death of the intestate. An averment to that effect sufficiently appears, as aforesaid, to render the declaration invulnerable to demurrer.

I not only think the amendments were properly allowed but the defects of the declaration were such as would have been cured by verdict if there had been no amendments. Depriving a party of his right of action upon such a technicality does not comport with my sense of justice or a reasonable rule of construction.


author: Mr. Justice Gridley

text:
    Peter Jappas, Appellant, v. Julia Williams, Administratrix of the Estate of James E. Williams, Deceased, Appellee. Illinois Merchants Trust Company and Farroll Brothers, Garnishees.
    Gen. No. 32,254.
    Opinion filed May 8, 1928.
    J. Y. DeLaney, for appellant.

      Sumner C. Palmer, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

On September 4, 1926, plaintiff commenced an attachment suit against James E. Williams, stating in the affidavit that Williams is indebted to him in the aggregate amount of $2,053.40, which he paid to Williams “upon certain checks drawn by Farroll Brothers upon the Illinois Merchants Trust Co., and which were falsely represented by Williams to be genuinely indorsed when in fact the said indorsements were forgeries,” and that “the debt sued for was fraudulently contracted on the part of the debtor, and that the statements of Williams which constituted the fraud were reduced to writing and signed by him. ’ ’ According to the bailiff’s return on the writ, he did not find any property of defendant upon which to levy and did not serve him, but on September 7th he served the writ upon the Illinois Merchants Trust Company and Far-roll Brothers as garnishees. Although interrogatories in the usual form were filed, the present transcript does not disclose that either of the garnishees filed an answer thereto. On September 27th Williams was served under an alias writ, and on October 22nd plaintiff suggested of record Williams’ death. On November 29th, leave was given Julia Williams, as administratrix of Williams’ estate, to be made the party defendant and on that day she entered her appearance. On December 23rd she filed a traverse of the attachment, sworn to, stating that the debt “was not fraudulently contracted” and that the alleged statements of Williams, which it is stated constituted the fraud, “were not reduced to writing and signed by him or his agent.” On January 21,1927, by leave of court, plaintiff filed an amended affidavit of attachment, substantially the same as the original, with the additional allegations that the checks mentioned were four in number and that Williams, when falsely representing to plaintiff that they bore the genuine indorsements of the respective payees, “well knew” that said indorsements were forgeries, and on February 1st, by leave of court, plaintiff filed an amended statement of claim. On February 8th, the motion of Julia Williams, as administratrix, “to abate the action” was denied. On February 14, 1927, after a trial before the court without a jury, the court found the issues as to the attachment against plaintiff, but found the issues as to the merits against Julia Williams, as administratrix, and assessed plaintiff’s damages at $2,053.40. On the same day judgments were entered upon these findings, the court adjudging (a) that “the attachment herein be and it is hereby overruled and denied,” and that the garnishees (naming them) be discharged, and (b) that plaintiff recover from Julia Williams, as administratrix, said sum and costs, “to be paid in due course of administration.” From that portion of the judgment quashing the attachment plaintiff prayed and perfected the present appeal. Julia Williams, as administratrix, did not appeal from the judgment entered against her on the merits, and she has not here assigned any cross-errors.

In plaintiff’s amended statement of claims he alleges that on July 15th, July 20th, August 4th and August 11th, 1926, respectively, James E. Williams delivered to him four certain checks, payable respectively to the order of K. N. Boot, P. Q-. Hart, Joseph B. Bohnen and N. D. Kaplan, and for the respective amounts of $300, $303.40, $450 and $1,000; that the checks were drawn by Farroll Brothers on a Chicago bank, the Illinois Merchants Trust Company; that when delivered each check was indorsed “by what purported to be the signature of the payee thereof,” and said signatures “were represented to plaintiff by said Williams to be the genuine signatures of said payees”; that plaintiff, believing the representations to be true, paid to Williams at his request the several amounts of the checks, aggregating $2,053.40; that the indorsements were forgeries, which Williams then and there well knew, and thereby plaintiff lost said aggregate sum, and that by reason of the premises Williams became liable to pay plaintiff said sum, and being so liable promised to pay it, etc., but has not done so, to plaintiff’s damage, etc.

Upon the trial plaintiff’s evidence disclosed in substance that he was in the restaurant business on South LaSalle street, near the Chicago Board of Trade, and was well acquainted with Williams who, during the months of July and August, 1926, was employed as a bookkeeper by Farroll Brothers, a corporation, engaged in a commission business in the vicinity; that the four checks were made out by Williams, payable to the order of the respective payees; that Williams, upon representing to an officer of Farroll Brothers that the payees were customers of that corporation and that it owed to them the amounts of the respective checks, procured said officer to sign them in the usual course of business and deliver them to Williams; that Williams indorsed the name of the payee on the particular check (in other words committed a forgery), presented the same to plaintiff at his place of business and requested plaintiff to cash it and give him money to the face amount of the check, which plaintiff did; that afterwards plaintiff, underneath the indorsement of the payee, also indorsed the same, deposited it with said bank and received credit therefor on his account with the bank; that thereafter the check was paid through the Chicago Clearing House in the usual course of business, and that the same procedure was followed as to all four checks. Plaintiff introduced the four checks in evidence. Neither the name nor the signature of Williams appears on any of them. After the forgeries on the checks had been discovered, the bank, in a letter to plaintiff dated August 23, 1926, advised him of that fact, and that it had charged his account with the amount of the checks for which it had previously given him credit, and thereby plaintiff lost the moneys which he had given Williams at the times the checks were cashed as above stated.

The sole ground for the attachment, as stated in plaintiff’s original and amended affidavits, is that which is set forth in paragraph ninth of section one of the Attachments Act, Cahill’s St. ch. 11, U1, subd. 9, as follows: “Where the debt sued for was fraudulently contracted on the part of the debtor: Provided, the statements of the debtor, his agent or attorney, which constitute the fraud, shall have been reduced to writing, and his signature attached thereto, by himself, agent or attorney.” Plaintiff’s counsel here contends that the court erred in quashing the attachment and discharging the garnishees. Counsel argues in substance that, in addition to the evidence showing that the debt sued for was fraudulently contracted on the part of Williams, the forged indorsements on the checks made by him constitute such fraudulent statements in writing as warranted the sustaining of the attachment. We cannot agree with the contention or argument. We do not think that Williams writing on the back of the checks the names of the respective payees thereof can be construed as “statements” in writing made by him, constituting the fraud. Furthermore, his signature is not attached thereto, either by himself, agent or attorney. And we do not think the case of Yates v. Dodge, 123 Ill. 50, cited by counsel, is in point. There the writing in question actually was signed by Tates.

It further appeared from plaintiff’s evidence that after Williams’ forgeries had been discovered and criminal proceedings had been threatened or commenced against him, his attorney wrote plaintiff’s attorney a letter, dated September 2, 1926, in which the former acknowledged receipt of a previous letter written by the latter to Williams, and in which it is stated: “While Mr. Williams admits that he obtained over $2,000 from your client by reason of having cashed checks the endorsements of which were not genuine and that he will do all in his power to right the wrong which he did to your client, but requires a little time to do same.” Plaintiff’s counsel further contends that this letter of itself, being written by Williams’ attorney, is sufficient to warrant the sustaining of the attachment. We do not think so. It is not a statement in writing of the debtor, or his agent or attorney, made at the time the debt was contracted. It is, so to speak, a statement made after the fact, an admission of previous wrongdoing, coupled with the expressed desire to make amends. Furthermore, Williams’ signature is not attached thereto, “by himself, agent or attorney,” and it does not sufficiently appear that Williams authorized his said attorney to write such a letter. And in our opinion the court did not err in refusing to admit certain evidence offered by plaintiff as to a certain existing custom whereby, as claimed, employees of the Board of Trade firms dealt in grain under assumed names.

In the brief of counsel for appellee, Julia Williams, administratrix, it is contended that the court erred in denying her motion to abate the entire suit. She is in no position on the present record to make the contention. She did not appeal from the judgment rendered against her in her representative capacity, and she has not here assigned cross-errors. However, we think the court ruled correctly in denying her said motion. (Section 11, Abatement Act, Cahill’s St. ch. 1, ft 11; Davis v. Shapleigh, 19 Ill. 386, 389; Dow v. Blake, 148 Ill. 76, 89; Olson v. Scully, 296 Ill. 418, 422.)

The judgment appealed from is affirmed.

Affirmed.

Barnes, P. J., and Scanlan, J., concur.


text:
    Frank M. McKey, Trustee of the Estate of Marguerite T. Willett, Bankrupt, Appellant, v. Marguerite T. Willett, Appellee.
    Gen. No. 32,295.
    Opinion filed May 8, 1928.
    Arthur C. J. Chittick, Chauncey L. Blankenship, Guy C. Baltz and Sidney N. Ware, for appellant; Arthur C. J. Chittick, of counsel.
    John J. McMahon, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

This is an appeal by Frank M. McKey, trustee of the estate of Marguerite T. Willett, bankrupt, from an order of the superior court, entered June 27, 1927, in a cause entitled, “Marguerite T. Willett v. Walter D. Willett, ’ ’ wherein the court found that the assignment of alimony executed by Mrs. Willett to McKey, as trustee, etc., on February 18, 1926, in the sum of $6,000, which, was to become due to her from Walter Willett, as alimony under a former decree, entered June 13, 1924 (viz,. $2,000 to become due on June 13, 1926, $2,000 on June 13, 1927, and $2,000 on June 13, 1928), was void and of no legal effect and that there was due and payable to Mrs. Willett the sum of $4,000, as arrears in alimony under the decree, and ordered that said Walter Willett pay to her said sum instanter.

On November 25, 1921, Marguerite Willett obtained a decree of divorce from Walter Willett. On June 13, 1924, by agreement of the parties, a former order as to alimony was modified by a new order or decree, reading as follows:

“That the said Walter D. Willett, in settlement of all and every claim of every nature whatsoever that the said Marguerite T. Willett has or may have against said Walter D. Willett pay to the said Marguerite T. Willett as follows, to-wit:

“The sum of Five Hundred ($500.00) Dollars on the entry of this order of record; the sum of Seven Thousand ($7,000.00) Dollars within ten days from the entry of this order; the sum of Two Thousand ($2,000.00) Dollars within one year of the date of the entry of this order; the sum of Two Thousand ($2,000.00) Dollars within two years from the date of this order; the sum of Two Thousand ($2,000.00) within three years from the date of this order; the sum of Two Thousand ($2,000.00) Dollars four years from the date of entry of this order; and also the further sums to-wit, of One Hundred ($100.00) Dollars on the first day of each and every month from the date of the entry of this order, during the lifetime of the said Marguerite T. Willett, or in the event of the marriage of the said Marguerite T. Willett, then until the time of said marriage; and, also, that the said Marguerite T. Willett receive the said several sums in lieu of all claims of • every kind and nature that the said Marguerite T. Wil-. lett has or may have against said Walter D, Willett; and. the said Marguerite T. Willett is hereby barred from presenting other claims, rights, privileges of every kind and nature, (pursuant to her stipulation) and her stipulation that same may at any and at all times and places be pleaded in full settlement and bar, is hereby confirmed and approved.”

On March 23, 1927, on petition of Mrs. Willett, the court entered a rule upon Walter Willett to show cause, why he should not be punished for contempt for failure to pay to her the second instalment of $2,000, due on June 13,1926. He answered the rule and also, by leave of court, filed a supplemental bill in the nature of a bill of interpleader, making Frank M. McKey, trustee, etc., a party to the bill.- He alleged in substance that he was ready and willing to pay said sum of $2,000, but did not know to whom it should be paid; that Marguerite Willett, pursuant to her voluntary petition in bankruptcy filed in the United States District Court for the Northern District of Illinois on December 30, 1925, was adjudged a bankrupt in January, 1926, and that McKey, who had qualified as trustee of the bankrupt estate, was demanding payment to him of said sum of $2,000, as well as the payment when due of the other two sums of $2,000 each, due respectively on June 13,1927, and June 13,1928. In McKey’s answer to the bill he alleged that as trustee he had become vested with all the assets of the bankrupt estate; that the only assets coming to his sight or knowledge were said Willett’s obligations to pay to the bankrupt said three sums of $2,000 each, as and when they became due; that on February 16, 1926, Mrs. Willett in writing had assigned to him as trustee all her right, title -and interest in and to said three sums; that thereafter he (McKey) had demanded of Walter Willett the payment of said sums and had threatened to bring suit to collect the same, and that he based his claim not only upon said assignment but also upon the fact that he was the duly qualified and acting trustee of the bankrupt estate. In Mrs. Willett’s answer to the bill, while admitting the making of the assignment, she alleges that it is of “no legal effect”; that said three sums of money are payable to her “for her sole use for support and maintenance”; that the same “are not assignable and do not constitute a vested interest or property right,” and that McKey, as trustee, has no valid interest therein.

In June, 1927, a hearing was had upon a stipulation as to the facts, substantially as outlined, and at the conclusion of the hearing the court entered the order appealed from, as first above mentioned.

The main question involved is one of law and is, whether the right or title to said three unpaid sums of $2,000 each became vested in McKey, as trustee of the bankrupt estate of Mrs. Willett. And we are of the opinion that, if the award of alimony under the modified decree above mentioned is one “in gross,” it must be so held.

There is a well-recognized distinction, under decisions in Illinois and elsewhere regarding awards of alimony, between those “in gross” and those where periodic payments (monthly, quarterly or yearly) are ordered made to the wife within the joint lives of the parties, or until the wife remarries. In Plotke v. Plotke, 177 Ill. App. 344, 347, it is said: “It was held in Plaster v. Plaster, 47 Ill. 290, that where the decree awards a sum in gross for, or in lieu of alimony, such a decree will be regarded as final and the gross sum, when paid, will operate as a discharge and satisfaction in full for all claim for future support of the wife. * * * But where the provision for alimony in the decree takes the form of a weekly, monthly or yearly allowance, the power is expressly reserved by this statute (section 18, Divorce Act, Cahill’s St.' ch. 40, 19) to modify such a provision of the decree at any time, according to the varying circumstances and needs of the parties * * *, whether so expressed in the decree or not.” (See, also, Plaster v. Plaster, supra, p. 294; Shaw v. Shaw, 59 Ill. App. 268, 270; Griswold v. Griswold, 111 Ill. App. 269, 278.) And it is the law that “where a sum in gross is allowed, it may be made payable in instalments.” (19 C. J. 261, § 608; Winemiller v. Winemiller, 114 Ind. 540, 541; Bassett v. Waters, 103 Kan. 853, 855.; Smith v. Rogers, 215 Ala. 581, 112 So. 190, 192.) Under the terms of the modified decree as to Mrs. Willett’s alimony as entered in the present case on June 13, 1924, there was awarded to her a gross sum settlement of $15,500, payable in the instalments as specified in the order, and there also was awarded to her the additional sum of $100 monthly, payable as long as she lived or until she remarried, and it was stated in the order that said awards were to be “in settlement of all and every claim of every nature whatsoever” that she had or might have against her former husband, Walter Willett, and that she “is hereby barred from presenting other claims, rights, privileges of every kind and nature.” And of this gross sum settlement of $15,500, the three yet unpaid sums of $2,000 each were a part. And we think that the right or title to said sums, as well as the other sums making up said aggregate sum of $15,500, vested in Mrs. Willett immediately upon the entry of said decree of June 13, 1924. (Dinet v. Eigenmann, 80 Ill. 274, 279; Leutzinger v. McNeely, 216 Mo. App. 699, 704; Smith v. Rogers, supra.) In the Dinet case it appears that Mrs. Dinet filed a bill for divorce against her husband, Joseph Dinet, in 1870; that in May, 1872, a decree for divorce in her favor was entered; that in August, 1872, Joseph Dinet was ordered to pay to her as and for alimony the sum of $10,000 on or before July 1, 1873, and the further sum of $2,000 per year, in quarterly instalments, during her life; that in December, 1872, she died, and the administrator of her estate sought to collect of Joseph Dinet the $10,000, and that Joseph Dinet in resisting such collection took the position that because she had died before the sum became due the right or title thereto had not become vested in the administrator. The court held to the contrary, saying (p. 279):

“The decree for a divorce was passed and the bonds of matrimony were dissolved several terms before the decree for alimony was enrolled. During this interval, and when this decree for alimony was rendered, the relation of husband and wife had ceased, and none of the rights of that relation continued. The legal liability of the husband for alimony was in the nature of an obligation or duty to a stranger. It was a duty imposed by the statute upon him to contribute to the support of the divorced wife; and when the amount was ascertained and fixed, the right to the money became vested and as fully fixed as had the money been paid or the husband had given his note for the amount. The husband could not resume it, nor did he became entitled to it on her death. It was absolutely the wife’s, and went to her representatives precisely as would any other money decree against any other person. It, then, follows that her executor or administrator had the right to proceed and collect it in the same manner that any other decree could be enforced after the death of the person in whose favor it was rendered.”

Section 70a of the present Bankruptcy Act provides in part that “the trustee of the estate of a bankrupt, upon his appointment and qualification, * * * shall in turn be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt, except in so far as it is to property which is exempt, to all * * * (5) property which prior to the filing of the petition he could by any means have transferred, or which might have been levied upon and sold under judicial process against him, ’ ’ etc. To this section, and particularly the clause relating to property which the bankrupt “could by any means have transferred, ’ ’ the courts have given a broad interpretation. In 3 Remington on Bankruptcy (1923 Ed.), section 1194, it is said: ‘ ‘ The broadest possible scope is given to this class 5 of assets. Not only is ‘transfer’ a word of widest content by the definition of the Bankruptcy Act itself, including all possible interests of the bankrupt in property, but also in class 5 of assets it is further provided that such interests pass if ‘by any means’ they can be made to pass.” In 2 Collier on Bankruptcy (1921 Ed.), p. 1130, it is said: “It was evidently intended by the word ‘property’ as used in subdivision 5 to include in the term every vested right or interest attaching to or growing out of property. * * * It includes everything that can properly be the subject of a lawful transfer, whether it be corporeal or incorporeal.” In Black on Bankruptcy (1922 Ed.), section 318, p. 714, it is said: “Transferability is in general the test of the title of the trustee in bankruptcy under this provision of the Act. And any interest of a bankrupt in property or a fund which he could by any means have transferred passes to his trustee, although it may not have been subject to seizure on execution against him.”

In view of the pleadings and the stipulation of facts in the present case and in the light of adjudicated cases, we are of the opinion that at the time Mrs. Willett was adjudged a bankrupt, and MeKey became the trustee of the bankrupt estate, her right or title to said three sums of $2,000 each passed by operation of law to said MeKey, as such trustee, and that the superior court erred in entering the order appealed from. It is clear under the decision in the Dinet case, supra, that, had Mrs. Willett died on December 30, 1925, instead of filing a voluntary petition in bankruptcy, her right or title to said three sums would have passed to the administrator of her estate. And we see no good reason, under the facts disclosed, why her vested interest in said three sums, after she had filed her voluntary petition in bankruptcy and had been adjudged a bankrupt, did not pass to McKey, the duly qualified trustee of her bankrupt estate. In 2 Amer. & Eng. Encyc. of Law (2nd Ed.), p. 1017, it is said: “The general test to be applied in determining the assign-ability of a chose in action is whether or not it would survive and pass to the personal representative of a decedent. If it would so survive, it may be assigned so as to pass an interest to the assignee which he can in most jurisdictions enforce in his own name.” (See Leonard v. Springer, 174 Ill. App. 516, 526.)

The order of the superior court of June 27, 1927, is reversed, and the cause is remanded with directions to that court to enter an order directing Walter D. Willett to forthwith pay to Frank M. McKey, as trustee in bankruptcy, said sum of $4,000 now due from said Willett, and further directing said Willett, on June 13, 1928, to pay the additional sum of $2,000 to said McKey, as trustee, etc.

Reversed and remanded with directions.

Barnes, P. J., and Scanlan, J., concur.


author: Mr. Justice Scanlan

text:
    Johanne Metz, Appellee, v. Yellow Cab Company, Appellant.
    Gen. No. 32,242.

      Opinion filed May 8, 1928.

      Samuels, Costello & Greenberg and C. C. Cunningham, for appellant.
    Heth, Lister & Collins, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

The plaintiff, Johanne Metz, sued the defendant, the Yellow Cab Company, a corporation, for personal injuries alleged to have been sustained while she was riding as a passenger in one of the taxicabs of the defendant. There was a trial before the court with a jury and a verdict returned finding the defendant guilty and fixing the plaintiff’s damages at the sum of $7,500. Judgment was entered on the verdict and this appeal followed.

The defendant is a common carrier, and about 5 o’clock p. m., May 21, 1925, the plaintiff and Mrs. Fisher, a friend, became passengers in one of the defendant’s cabs at State and Madison streets, Chicago. The plaintiff told the driver to take her to her home in Evanston. The driver sat in the front seat, the two passengers in the rear seat, and there was a glass window between the driver and the part of the car where the women sat. The accident occurred about 5:30 or 6 o’clock p. m., daylight saving time. It was a bright, sunny day. Just prior to the accident the cab was proceeding northward, on the right-hand side of the road, on West Railroad avenue, in Evanston. The width of the avenue from curb to curb is 30 or 35 feet. There was a Ford chassis proceeding in a southward direction on the west side of the same avenue and close to the west curb. The cab of the defendant suddenly swerved to the left, “went directly across the road,” hit the front of the rear wheel of the Ford and “took the rear end right off that car,” then hit the curb on the west side of the street, went over it and into a big tree that “would measure about five feet right straight through.” The accident, as one witness testified, happened “absolutely all in a flash,” or, as other witnesses said, “it all happened very suddenly.” The driver of the Ford testified that as the cab swerved to the west he blew his horn, and that the driver of the cab was looking backwards at the time. The defendant offered no evidence as to the manner of the accident. The plaintiff sues to recover damages for injuries alleged to have been sustained in the accident.

The negligence of the driver of the cab is undisputed but the defendant, a common carrier, contends that “the record does not show ordinary care on the part of the plaintiff.” This contention is based upon certain questions and answers in the cross-examination of the plaintiff. We will quote them in full: “Q. And your eyesight was good that day, wasn’t it? A. Yes. Q. And your hearing good? A. Yes. Q. And coming along on Railroad Avenue, were you paying any attention as to the movements of the cab at all? A. No, I did not. Q. Were you talking with Mrs. Fisher? A. Yes. Q. So that there wasn’t anything unusual or out of the way about the movements of the cab? A. No, I don’t remember anything until the car turned. Q. Up to the time that you felt a bump, up to the time — up to that time nothing occurred that would alarm you in any way, or cause you any concern of any character, is that right? A. Yes.” The defendant asserts “that although the plaintiff had her faculties of hearing and sight, she did nothing for her own safety. Having made no effort to avoid danger, she was guilty of negligence which will prevent a recovery.” Nowhere in its briefs, however, has the defendant stated, or even suggested, what it thinks the plaintiff, in the exercise of ordinary care, might have done to avoid the accident. There was a glass partition between the driver and the passengers. The trip to the place of the accident was uneventful, and the accident happened “absolutely all in a flash,” and it was brought about solely by the highly negligent and unexpected conduct of the driver of the cab. The theory of fact of the defendant, as disclosed in the cross-examination of the plaintiff and Mrs. Fisher, was, that the trip, until the time of the accident, had been uneventful and that there was nothing about the situation to alarm the passengers until just about the time of the collision.

' The defendant cites in support of its contention the rule announced in Pienta v. Chicago City R. Co., 284 Ill. 246, 259. Neither in that-case nor in any of the others cited was the plaintiff a passenger of a common carrier. In the Pienta case the plaintiff was riding on a wagon, the driver of which turned the wagon into a street railroad track upon which a street car was approaching, and the plaintiff was injured as the result of a collision between the car and the wagon and it was held that it was the duty of a passenger in a vehicle, where he has an opportunity to learn of approaching danger and avoid it, to warn the driver of the vehicle of such danger, as he has no right," because some one else is driving the vehicle, to omit reasonable and prudent efforts on his part to avoid the danger.. Our Supreme Court has never applied this rule to a common carrier and passenger case, but even if it could be fairly argued that the rule in the Pienta case controls such a case, nevertheless, under the uncon-, troverted facts bearing upon the instant accident, there was no approaching danger for the plaintiff, in the exercise of ordinary care, to learn of, and no opportunity for the plaintiff, in the exercise of ordinary care, to do anything to prevent the driver of the cab from bringing about the collision. It is elementary law that the degree of care which a plaintiff, in a given case is bound to exercise will be found to depend upon the relative rights or position of the parties at the time the injury complained of happened, and that a passenger of a common carrier is not obliged, in the exercise of ordinary care, to anticipate negligence on the part of the carrier; that if he assumes the carrier will not be negligent and acts accordingly, he will not, for that reason alone, be negligent. Certainly it is not the law that a passenger of a common carrier must be constantly on the qui vive to prevent a servant of the carrier from acting carelessly in the management of a train, street car or cab. The observance of such a rule of law would place upon a passenger an intolerable and highly unjust burden and would only tend to hinder and annoy the servant of the carrier in his control of the train, street car or taxicab, and tend rather to cause, than to prevent, an accident. Under the uncontroverted facts of the instant case, we are of the opinion that the plaintiff at the time of the accident and just prior thereto was, as a matter of law and as a matter of fact, in the exercise of ordinary care for her own safety.

The defendant next contends that the court erred in the admission of certain testimony of Dr. Balderston. The doctor had been the regular physician in the family of the plaintiff for 10 or 15 years. He saw her at the hospital shortly after the accident and treated her for her injuries — in conjunction with Dr. Ford — during the period that she remained at the hospital, and also attended her after she went to her home. She called on him in December, 1926, and January, 1927, and notified him that her case was coming up and that she would like him to testify as to her condition, and on the last visit he made a physical examination of her and found a deformity in the malar bone; a swelling of the tissues in the left leg; that there was an inch and one-half différence in circumference between the injured knee and the right knee, when measured immediately above the kneecap; that there was a condition of chronic arthritis, or chronic rheumatism in the joint and around the joint, “arthritis and periarthritis”; that there were two scars around the knee. He tried to flex the knee and found a limitation of motion of perhaps one-quarter of the normal range of the joint. It could not be bent as far as the other. The doctor stated that he believed the condition he found in the leg to be permanent. During the examination the following occurred: “Q. What did you find? Mr. Cunningham: Objected to unless the Doctor is confined to objective symptoms alone. The Court: He is asked what he found, found is objective. * * * Objection is overruled. * * * Mr. Heth: Doctor, you understand in answering this question you can’t tell what Mrs. Metz told you in this examination. My question is what did you find out from the examination.” The doctor then proceeded to testify as to various conditions that he found at the time of the examination. The defendant contends that the court erred in allowing the witness to answer the last question. We find no merit in this contention. Further on the doctor testified that he had tried to flex the knee of the plaintiff. He was then asked the following question: “Q. What did you find? Mr. Cunningham: I object to that * * * on the ground that it is not.purely an objective symptom. The Court: Let him answer. The Witness: There was limitation of motion. Mr. Cunningham: I move that be stricken out; that is his opinion. The Court: Objection overruled. Mr. Heth: Now, explain. Mr. Cunningham: I object. The Witness: The left knee joint could not be bent as far as the other one. Mr. Cunningham: I move that be stricken. The Court: No, I will let it stand * * * it migit have improved it by saying that he found he could not, somebody else might; that is a question to what I have confined the Doctor, to what he found. Mr. Cunningham: That has all been qualified by objectively, if the court please.” The defendant contends that the court erred in allowing the last answer to stand. The defendant’s counsel made no request to be allowed to interrogate the witness to determine whether the answer of the doctor would be based entirely upon objective symptoms, and there is nothing in the foregoing examination that would indicate to the court that the answer complained of was based partly upon subjective symptoms. On the cross-examination the doctor testified that the knee is a joint controlled by voluntary muscles; that any such joint controlled by voluntary muscles is under the control, more or less, of the patient, and that the only absolute, certain way of making an examination of such a joint is to place the patient under an an-aesthetic. At no time after these answers were made did the defendant make any motion to strike the answer in question that had been made on the direct examination, nor did it in any way call the attention of the court tó the effect that the answers given on cross-examination had on the answer that it now contends should have been stricken. Doubtless the court, after the cross-examination, if the defendant had seen fit to call attention to the matter, would have stricken the answer in question. We see no reason, in view of defendant’s attitude, why it should now complain. The doctor was asked on direct if he had an opinion as to whether or not the condition which he found in the plaintiff’s leg was permanent, and after he answered in the affirmative the following occurred: “What is your opinion? Mr. Cunningham: I object * * * first on the ground that it is incompetent and irrelevant; secondly that it is improper; thirdly calls for improper evidence; fourthly that it evades the province of the jury. The Court: Let him answer. A. I believe it is permanent.” The defendant complains of this answer because the doctor “did not testify that it was ‘reasonably certain’ to be permanent or anything of that import” and cites in support of its contention Lauth v. Chicago Union Traction Co., 244 Ill. 244; Kimbrough v. Chicago City R. Co., 272 Ill. 71; Lyons v. Chicago City R. Co., 258 Ill. 75. The defendant made no motion to strike out the answer, nor did it, in the objections that it made to the question, raise the point that it now urges. It is, of course, the law that an opinion of a physician must be based upon reasonable certainty, but it was the duty of the defendant, when the question was put, to insist that the question should be so framed as to call for an opinion based upon reasonable certainty. The plaintiff would then have had- an opportunity to reframe the question. In each of the three cases cited the defendant appraised the trial court of the defect in the question or the answer complained of. It is clear from the record that the present contention is an afterthought.

The defendant next contends that it was error to allow the doctor to testify that the condition of the knee, as he found it, was permanent, for the reason that the opinion was not based on a hypothetical case and therefore it was an invasion of the province of the jury. It is a sufficient answer to this contention to say that it was perfectly proper for the doctor, having testified as to the conditions that he found, to give his opinion as to their permanency. (See Owens v. Guerney, 241 Ill. App. 477, 483, and cases cited.)

The defendant next contends that “the attorney for the plaintiff was guilty of improper conduct in addressing the jury.” During the argument of plaintiff’s counsel the following occurred: “Mr. Heth: It is only by a stroke of Providence, anyway, that that man, that criminally negligent driver, is not under indictment for manslaughter. Mr. Cunningham: I object to that statement. The Court: Yes, because he couldn’t be guilty of manslaughter when he only hurt somebody. *. * * Mr. Cunningham: I desire to save an exception to that remark of counsel. The Court: Confine yourself to the facts, Mr. Heth. Mr. Heth: Well, it is so in this case that this driver was so criminally negligent that I say it is only by a stroke of Providence that these people, were not killed. Mr. Cunningham: I object to that statement. Mr. Heth: I have a right to draw these inferences from the evidence. * * * The Court: Yes, I believe you are right. Mr. Cunningham: ' And I save an exception to the remarks of counsel.” Under the facts of this case we think the question of the conduct of the taxi driver at the time of the accident was a fair subject for argument and we do not think it was improper for the attorney for the plaintiff to urge that it amounted to criminality. Where the facts warrant it such an argument is not improper. (See Casey v. Kelly-Atkinson Const. Co., 240 Ill. 416, 425.) Later in his argument, in referring to Dr. Baylor, who testified for the defendant, counsel said: “The doctor who took the stand, this professional witness for the Yellow Cab Company.” The defendant objected to this statement and the objection was overruled. The evidence shows that Dr. Baylor had served as a physician for the defendant in accident cases for seven or eight years and that in the last year preceding his testimony he had seen at the request of the defendant “probably fifty or a hundred, maybe more,” persons who were injured in accidents in which the defendant was concerned, but the evidence does not reasonably warrant the argument that he was a professional witness for the Cab Company. But we do not believe, in view of the facts of this case, the statement complained of constitutes reversible error, nor do we think that the further statement of the counsel that Dr. Baylor was very careless with the truth can be seriously complained of, as the only time that the doctor saw the plaintiff was at the hospital the day after the accident, when he called to see her at the request of the defendant, and, as he testified that between that time and the trial he had examined between 15 and 16,000 people, his statement that he had an independent recollection of the plaintiff’s condition at the time in question certainly gave the counsel the right to comment on the credibility of the witness.

The defendant next contends that it was error for the counsel for the plaintiff to state to the jury that “$25,000 and all the money'that the Yellow Cab Company has, wouldn’t take the use of my left leg away from me.” When an objection was made to this statement, the court said: “Strike it out, because we are not valuing his leg.” While the statement was an improper one, we fail to see how it was harmful, especially in view of the ruling of the court.

The defendant next contends that the court erred in giving to the jury, at the request of the plaintiff, instruction number two, and in refusing to give instructions numbers five and seven tendered by the defendant. None of these instructions relates to the question of damages, and as the plaintiff’s proof sustains the material allegations of the declaration, which consisted of one count, and as the negligence of the defendant is not disputed, and we have held that the plaintiff at the time of the accident and just prior thereto was, as a matter of law and as a matter of fact, in the exercise of ordinary care for her own safety, we do not deem it necessary to answer the contentions of the defendant in reference to the instructions in question.

The defendant next contends that “the verdict on which the judgment is based is so large as to indicate that it was arrived at by passion or prejudice.” The evidence clearly shows that the plaintiff was very badly bruised and battered by the accident; that “there were some wounds on various parts of the body”; that she was in the hospital for some weeks, and during part of that time suffered so much from pain, nervousness and shock that she was given hypodermic injections. The swelling around her left eye “grew to the size of a large hen egg” and it was necessary to draw blood to relieve the pressure. The left side of her face, because of the swelling, was twice the normal size. The swelling around the knee joint of the left leg grew so large that it was necessary to draw therefrom, at one time, a pint of blood. A cast was placed on her left leg. She has a marked deformity on the left side of her head, “a fracture of the zygomatic arch of the malar bone. ’ ’ She has constant headaches, and one eye twitches. She cannot bend her leg back in a normal way. She has a chronic condition of arthritis, a limitation of motion in the knee and a swelling of the tissues of her leg, and Dr. Balderston testified that in his opinion the condition of the leg is permanent. The plaintiff left the hospital on crutches and with the cast on the left leg. She testified that she cannot walk or dance or swim without pain and that she constantly experiences the feeling of “knuckles” in her knee; that for a long period of time after the accident she suffered pain; that she was compelled to use two crutches until the September after the accident and one crutch until the following April. The amount of damages to be allowed is peculiarly a question for the jury and this court will not disturb a verdict unless it is clearly excessive or inadequate, indicating passion or prejudice on the part of the jury. We feel satisfied that.we would not be justified in sustaining the present contention.

The defendant next contends that “the trial court erred in not granting a new trial on the affidavits filed.” The defendant in support of its motion for a new trial introduced certain affidavits tending to show that the plaintiff used a crutch for about one month after leaving the hospital; that in the last week of August, 1925, she was at a summer resort, where she used'no crutch; that while there she drove an automobile, danced, took long walks, ran, went swimming, and dived from a boat; that at no time did she treat her knee, nor did she complain of injury toy or pain in, her knee, and that prior to the accident in question she suffered from a “housemaid’s knee.” It has been frequently held that applications for new trial on the ground of newly-discovered evidence are not looked upon with favor by the courts and that such application should always be subjected to the closest scrutiny. In Graham v. Hagmann, 270 Ill. 252, 262, the court quoted with approval the following from Chicago & A. R. Co. v. Raidy, 203 Ill. 310: “It cannot be the practice of courts to allow important matters to go to trial, and because one party is not satisfied with the results of it let him go out and try to get facts which will enable him to do better at another trial, and rely upon such after-ascertained matters as a basis for a new trial.” In People v. Dabney, 315 Ill. 320, 327, the court said: “The burden is on the applicant to rebut the presumption that the verdict is correct and to show that there has been no lack of due diligence, ’ ’ and that “the evidence must fulfill the following requirements : First, it must appear to be of such conclusive character that it will probably change the result if a new trial is granted; second, it must have been discovered since the trial; third, it must be such as could not have been discovered before the trial by the exercise of due diligence; fourth, it must be material to the issue; and fifth, it must not be merely cumulative to the evidence offered on the trial.” The defendant contends that it was surprised on the trial by the claim that the plaintiff suffered a fracture and had sustained a permanent injury, and that she had been compelled to use crutches until April, 1926, and also by the plaintiff’s testimony that she did not have a “housemaid’s knee” prior to the accident. At no time after the plaintiff’s evidence did the defendant in any way indicate to the court that it was surprised by any of the evidence in reference to the plaintiff’s injuries or condition. Mo application for time was made, nor did the defendant thereafter ask that a juror be withdrawn and the cause continued. The accident happened May 21, 1925. The trial of the case commenced February 28, 1927. Plaintiff resided in Evanston and her address was known to defendant from the time of the accident. The affidavits in question were made by parties residing in Evanston. Dr. Baylor, acting for defendant, saw and examined the plaintiff in the hospital the day after the accident, and there is nothing in the record to indicate that he might not have seen her thereafter at any time he saw fit. The cross-examination of the plaintiff would indicate that the defendant had learned what the physical condition of the plaintiff had been for years and apparently it knew what doctors and dentists she had seen in that time, and she was questioned closely with reference to certain alleged ailments. She was interrogated in relation to her former husband and the fact that he had been cruel to her and that on one occasion he knocked two of her teeth out and that at another time he choked her and injured her face, and that she had obtained g divorce from him on the grounds of cruelty. In an affidavit of H. R. Hellwig, “in charge of claims and litigated cases made and brought against the defendant,” the affiant states that he was in charge of the instant suit from the time of the accident and that he received from Dr. Ford a signed statement (not introduced on the motion) that there was no permanent injury to the plaintiff and that therefore he was surprised on the trial by the testimony offered by the plaintiff in regard to her injuries, but this affiant admits that he learned prior to the trial that Dr. Ford was dead, and therefore he had no right to rely upon the signed statement of the latter. Further, it appears that the défendant called Dr. Baylor and he testified to seeing the plaintiff the day after the accident and examining her and that her injuries were not serious and were not permanent, and that she told him at that time that she had a housemaid’s knee in her left leg prior to the accident. Evidence merely cumulative to that offered on the trial will not warrant a new trial. The granting of a new trial because of newly-discovered evidence is largely a matter of discretion with the trial court, and we feel that we would not be justified in holding that the trial court in the instant case abused its discretion.

We are satisfied that the judgment of the superior court; of Cook county should be and it is affirmed.

Affirmed.

Barnes, P. J., and Gridley, J., concur.


text:
    Sweet-Orr & Company, Inc., Appellant, v. E. G. Hendrickson Company, Inc., Appellee.
    Gen. No. 32,298.
    Opinion filed May 8, 1928.
    Joseph Davis and Theodore Johnson, for appellant.
    Haffenberg, Kopald & Burns, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

Sweet-Orr & Company, Inc., plaintiff, sued E. Gr. Hendrickson Company, Inc., defendant, in the circuit court of Cook county in replevin. The case was tried before the court with a jury and at the close of the plaintiff’s evidence, upon motion of the defendant and over the objection of the plaintiff, the court directed a verdict for the defendant. Judgment was entered on the verdict and a writ of retorno habendo was ordered. This appeal followed.

The plaintiff has assigned and argued a number of grounds why the judgment should be reversed, but in our opinion it is necessary to refer to only one. At the close of the plaintiff’s case the court indicated an intention to direct a verdict for the defendant, and thereupon plaintiff asked leave to take a nonsuit, but the court refused plaintiff’s request and the plaintiff excepted. The latter now contends that the court erred in refusing its request. The defendant’s sole answer to this contention is that “the right to a nonsuit under the Practice Act is not applicable to actions in replevin.”

At common law a plaintiff was permitted to take a nonsuit at any time before the verdict was rendered in court. (Berry v. Savage, 2 Scam. (Ill.) 261; Daube v. Kuppenheimer, 272 Ill. 350.) Section 70 of the Practice Act, Cahill’s St. ch. 110, 70, reads as follows: “Every person desirous of suffering a non-suit shall be barred therefrom, unless he do so before the jury retire from the bar, or if the case is tried before the court without a jury, before the case is submitted for final decision.” Section 22 of the Replevin Act, chapter 119, Cahill’s St. ch. 119, ft 22; Callaghan’s Ill. St. Ann. vol. 7, p. 6767, reads as follows: “If the plaintiff in an action of replevin fails to prosecute his suit with effect, or suffers a nonsuit or discontinuance, or if the right of property is adjudged against him, judgment shall be given for a return of the property and damages for the use thereof from the time it was taken until a return thereof shall be made, * *

While it appears that' none of the courts of review of this State has ever had occasion to directly pass upon the question raised by the instant contention, nevertheless, it always has been the practice in Illinois to permit a plaintiff in a replevin suit to take a nonsuit where a request for the same was made in apt time, and where in appeals it appears that practice has been followed, the right of the plaintiff to take a nonsuit has never been questioned, and the upper courts have apparently regarded such procedure as a matter of plain right. Many cases might be cited to show the attitude of our courts in that regard. We shall refer to a few: Strassheim v. Barnes, 212 Ill. App. 299, 300; Hanchett v. Gardner, 138 Ill. 571, 577; Gilbert v. Sprague, 196 Ill. 444, 452; Lane v. Kohn, 79 Ill. App. 396, 397-398; Bierma v. Columbia Typewriter Mfg. Co., 179 Ill. App. 69. In Stein v. Traeger, 218 Ill. App. 122, 128, the court referred to the fact that the plaintiff had failed to make a motion for a nonsuit. The language of section 70, Cahill’s St. ch. 110, 70, is clear and unambiguous and, in our judgment, it forbids the interpretation that the legislature intended to except plaintiffs in a replevin action from the benefit of the section. Moreover, section 22 of the Replevin Act, Cahill’s St. ch. 119, U 22, affirmatively recognizes the right of a plaintiff to take a nonsuit in a replevin action. Nor can it be fairly argued that the language in section 22, “or suffers a nonsuit,” applies to involuntary nonsuits only, for the same language is used in section 70, and that section plainly refers to cases of voluntary non-suit. From early days, when the plaintiff desired a voluntary nonsuit, he moved the court to permit him to suffer a nonsuit. (See Berry v. Savage, supra.)

The defendant cites in support of its contention several decisions of sister States, but as we are satisfied that the law of this State bearing on the instant contention is plain, these decisions are neither necessary nor helpful in the determination of the question before us. Where the statute is plain, such an argument can have no weight with the courts. However, it will be noted that one of the purposes of section 22 of the Replevin Act, Cahill’s St. ch. 119, 22, is to prevent hardship to a defendant where a plaintiff takes a non-suit.

We hold, therefore, that the plaintiff in the present proceeding had the right to a voluntary nonsuit and that the trial court erred in denying its request for the same. The judgment of the circuit court of Cook county is reversed and the cause is remanded with directions to the trial court to grant the request of the plaintiff for a nonsuit.

Reversed and remcmded with directions.

Barnes, P. J,, and Gbidley, J., concur.


author: Mr. Presiding Justice Taylor

text:
    First District.
    In re estate of Louisa Laudon, deceased. Mathilda O. Laudon, individually and as administratrix of the estate of Louisa Laudon, deceased, and Melitta M. Laudon, appellants, v. Barbara Carolina Friederike Ahner, appellee.
    Gen. No. 31,949.
    Opinion filed February 23, 1928.
    Rehearing denied March 12, 1928.
    Morton S. Cressy, for appellants; Andrew Mitchell and Preston Clark, of counsel. Herbert V. Juul, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.


text:
    Frank Smithies, appellee, v. Henry E. Bullock, appellant.
    Gen. No. 32,054.
    Opinion filed February 23, 1928.
    Alden, Latham & Young, for appellant; Charles Martin, of counsel. Charles Daniels, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.


text:
    Joseph Wrona, appellee, v. Mike and Kate Zamojski, appellants.
    Gen. No. 32,088.
    Opinion filed February 23, 1928.
    Anson H. Brown, for appellants. Victor Frohlich, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.


text:
    Tekla M. Maturzynska, appellant, v. Edwin D. Buell, trustee in bankruptcy of Home Credit House, Inc., bankrupt, appellee.
    Gen. No. 32,279.

      Opinion filed February 23, 1928.
    Morris K. Levinson, for appellant. Eastman, White, Hawxhurst & Lind, for appellee; Homer C. Dawson, of counsel. I
   Mr. Presiding Justice Taylor

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    John Hendricks, administrator of the estate of Charles C. Hendricks, deceased, appellee, v. Chicago Rapid Transit Company, appellant.
    Gen. No. 32,067.
    Wilson, J., dissents.
    Opinion filed February 23, 1928.
    Rehearing denied March 12, 1928.
    Gardner, Foote, Burns & Morrow, for appellant; Walter M. Fowler and James K. Miller, of counsel. O’Harra, O’Harra & O’Harra and William H. Holly, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Thomas Padden and William Padden, trading as Padden Brothers, appellees, v. William Rappall, appellant.
    Gen. No. 32,100.
    Opinion filed February 23, 1928.
    Ziv, Loomis & Silvertrust, for appellant. John E. Crahen and Harold E. Sullivan, for appellees; John E. Crahen, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Polonia Kundrotas, appellant, v. Mamie Miceika, appellee.
    Gen. No. 32,118.
    Opinion filed February 23, 1928.
    Charles R. Smith, for appellant. Kamfner, Horwitz, Hall'igan & Daniels, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Oscar Rubin, appellant, v. Jacob Greenman, appellee.
    Gen. No. 32,174.
    Opinion filed February 23, 1928.

      Fred B. Silsbee and Clark & Clark, for appellant; Russell S. Clark, of counsel. Morris K. Levinson, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


author: Mr. Justice Wilson

text:
    Leibowitz & Porter, Inc., appellee, v. U. J. Herrmann, appellant.
    Gen. No. 32,094.
    Opinion filed February 23, 1928.
    Cantwell & Cantwell, for appellant; Martin W. Grosse, of counsel. Wolfsohn & Fireman, for appellee; Harry J. Fireman, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Goss & Guise, appellant, v. James N. Lott et al., appellees.
    Gen. No. 32,115.
    Taylor J., dissents.
    Opinion filed February 23, 1928.
    Samuel B. King, for appellant. Church, Traxler & Kennedy, ,for James N. Lott, appellee; Dean Lake Traxler, Walter W. Stevens and Len Toung Smith, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Frederic R. Douglas, appellee, v. Thomas H. Kelley, appellant.
    Gen. No. 32,133.
    Opinion filed February 23, 1928.
    Hrion, Drueker, Reichmann & Boutell, for appellant; Jerome J. Sladkey and William B. Gemmill, of counsel. Michael D. Dolan, for appellee,
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Nathan William MacChesney, appellee, v. John J. Lipski, appellant.
    Gen. No. 32,156.
    Opinion filed February 23, 1928.
    Rehearing denied March 12, 1928.
    Gurdon Wiliams, for appellant. MacChesney, Evans & Robinson, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


text:
    Alex Ruatta, appellee, v. Insurance Company of North America, appellant.
    Gen. No. 32,247.
    Opinion filed February 23, 1928.
    Rehearing denied March 12, 1928.
    Hicks & Folonie, for appellant. Bassler, Bippus & Rose, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.


author: Mr. Presiding Justice Matchett

text:
    Harriett Flynn Boyle, appellant, v. John M. Smyth Company et al., appellees.
    Gen. No. 31,303.
    Opinion filed February 27, 1928.
    Edward J. McArdle, Jr., for appellant; Edward J. McArdle, Sr., of counsel. Hamilton Moses, for William P. Smith, appellee. Mc-Culloch & McCulloch, for adult defendants except William P. Smyth. Weightstill Woods, pro■ se, guardian ad litem, for minor defendants.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justince Matchett

text:
    Truly Warner Company, Inc., appellee, v. Kaufman Hats, Inc., appellant.
    Gen. No. 31,516.
    Opinion filed February 27, 1928.
    Rehearing denied and opinion modified March 12, 1928.
    Rehearing was allowed on November 3, 1927, on opinion filed October 10, 1927, abstracted in 245 Ill. App. 631.
    Stein, Mayer & David, for appellant; Sigmund W. David, of counsel. Follansbee, Shorey & Schupp, for appellee; Clyde E. Shorey, Louis Salant, Fred Barth and Howard E. Wahrenbroek, of counsel.
   Mr. Presiding Justince Matchett

delivered the opinion of the court.


text:
    In re petition of Weightstill Woods, appellee, for an allowance for his services as guardian ad litem. Harriett Flynn Boyle, complainant and appellee, v. John M. Smyth Company et al., defendants. Edward Smyth Patera et al., appellants.
    Gen. No. 31,638.
    Opinion filed February 27, 1928.
    Rehearing denied March 12, 1928.
    McCulloch & McCulloch, for appellants. Edward J. McArdle, Jr., for Harriett Flynn Boyle, appellee; Edward J. McArdle, Sr., of counsel. Weightstill Woods, pro se; Wilkie Clay Ham, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justice Matehett

text:
    Alice S. Dwyer, appellant, v. Margaret O. Dwyer et al., appellees.
    Gen. No. 31,955.
    Opinion filed February 27, 1928.
    Rehearing denied March 12, 1928.
    Frederick A. Brown, for appellant; William G. Worthey, of counsel. Johan Waage, for appellees.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    William N. Cummins, appellee, v. The Chicago, Rock Island & Pacific Railway Company, appellant.
    Gen. No. 32,110.
    Opinion filed February 27, 1928.
    Rehearing was allowed on January 20 1928, on opinion filed December 27, 1927, abstracted in 247 Ill. App. 618.
    Daniel Taylor, for appellant. Joseph D. Ryan, for appellee.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    Bartholomay-Darling Company, appellee, v. E. H. Davis & Company, appellant.
    Gen. No. 32,166.
    Opinion filed February 27, 1928.
    Philip Richard Davis, for appellant; Ben Aronin, of counsel. Eisendrath, Solomon & Borden, for appellee; Charles H. Borden, of counsel.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    Michael Atz and Harry Atz, trading as Atz Brothers, appellees, v. Fidelity & Casualty Company of New York, appellant.
    Gen. No. 32,184.
    Opinion filed February 27, 1928.
    Rehearing denied March 12, 1928.
    H. L. Howard and William Greene, for appellant. Morris G. Levinson, for appellees.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    Minnie Jackson, appellee, v. R. C. Hunter, appellant.
    Gen. No. 32,193.

      Opinion filed February 27, 1928.
    Edward E. Wilson, for appellant. Henry H. Markovitz, for appellee; Abner Goldenson, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Fred B. Snite Furniture Company, appellee, v. Abe Sternberg, appellant.
    Gen. No. 32,223.
    Opinion filed February 27, 1928.
    Rehearing denied March 12, 1928.
    John Gutkneeht, for appellant. Samuel G. Rautbord, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Matilda Eagleston, appellee, v. William Pottinger, appellant.
    Gen. No. 32,256.
    Opinion filed February 27, 1928.
    Edward J. Kelley, for appellant. No appearance for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Louis G. Merritt and Herbert M. Merritt, trading as Merritt Engineering & Sales Company, appellees, v. Joseph A. Rosenfeld, trading as Rosenfeld Machinery Company, appellant.
    Gen. No. 32,268.
    Opinion filed February 27, 1928.
    Rehearing denied March 12, 1928.
    Benedict J. Short and Joseph Z. Willner, for appellant. Fisher, Boyden, Kales & Bell, for appellees; Thomas H. Fisher, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


author: Mr, Justice McSurely

text:
    Thomas Moulding Brick Company, defendant in error, v. Jennie Taylor et al., plaintiffs in error.
    Gen. No. 32,104.
    Opinion filed February 27, 1928.
    Rehearing denied March 12, 1928.
    Heber T. Dotson, for plaintiffs in error. Joseph Rosenberg, for defendant in error; Benjamin Rosenberg, of counsel.
   Mr, Justice McSurely

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Daniel S. Wentworth, appellee, v. George L. Schein, appellant.
    Gen. No. 32,113.
    Opinion filed February 27, 1928.
    Rehearing denied March 12, 1928.
    Fred W. Bentley and Leslie G. Donahue, for appellant. Henry O. Nickel and John P. Sullivan, for appellee; Geo. A. Mason, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    J. Ruthstein, appellee, v. A. Baker, appellant.
    Gen. No. 32,146.
    Opinion filed February 27, 1928.
    Harry C. Diamond and Alex C. Lawrence, for appellant. Ratner & Ratner, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    The City National Bank of Tipton, Iowa, appellant, v. W. J. O’Brien, appellee.
    Gen. No. 32,160.
    Opinion filed February 27, 1928.
    Edward L. England, for appellant. John J. Sherlock, for appellee; C. B. Chapman, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    J. L. Slaughter, appellee, v. Yellow Cab Company, appellant.
    Gen. No. 32,178.
    Opinion filed February 27, 1928.
    Rehearing denied March 12, 1928.
    Samuels, Costello & Greenberg, for appellant; John W. Costello and Edward Wolfe, of counsel. Louis Zimmerman and Charles O. Spencer, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    John Kalchbrenner, appellee, v. Julius Weinberg, appellant.
    Gen. No. 32,217.

      Opinion filed February 27, 1928.
    Michael B. Roderick, for appellant. Butz, Von Ammon & Marx, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    The Atlas China Company, appellee, v. Hillman’s, appellant.
    Gen. No. 32,226.
    Opinion filed February 27, 1928.
    Newman, Poppenhusen, Stern & Johnston, for appellant. Frank H. Repetto, for appellee.
   Mr, Justice McSurely

delivered the opinion of the court.


text:
    Bernard P. Conway, administrator of the estate of Charles H. Cornell, deceased, appellee, v. Yellow Cab Company, appellant.
    Gen. No. 32,244.
    Samuels, Costello & Greenberg and Rose & Symmes, for appellant. Matthew J. O’Brien, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Peter Horslev, appellee, v. M. H. Ritzwoller Company and Rock-wood Sprinkler Company, defendants. M. H. Ritzwoller Company, appellant.
    Gen. No. 32,297.
    Opinion filed February 27, 1928.
    George A. Schneider, for appellant; Stanley L. Shetler, of counsel. Robert F. Kolb, for appellee; Luther W. Tatge, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    L. A. Andrew, superintendent of banking of the State of Iowa, as receiver of Iowa Loan & Trust Company, appellee, v. Charles B. Cleland et al., on appeal of Myrtle Cleland, appellant.
    Gen. No. 32,333.
    Opinion filed February 27, 1928.
    G. A. Buresh, for appellant. Ringer, Wilhartz & Hirsch, for appellee; Sidney J. Wolf and J. Robert Oohler, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Mutual Cutlery Company, appellee, v. American Express Company, appellant.
    Gen. No. 32,360.
    Opinion filed February 27, 1928.
    William H. Purcell, for appellant; John H. Dolan, of counsel. James F. Hutchison and Harry C. Diamond, for appellee.
   Mr. Justice McSurely

.delivered the opinion of the court.


text:
    Vasillos Haritos, appellant, v. Gottlieb Meinert et al., appellees. Herbert Haritos et al., appellants, v. Gottlieb Meinert et al., appellees.
    Gen. Nos. 32,387 and 32,388.
    Opinion filed February 27, 1928.
    Rehearing denied March 12, 1928.
    Morris G. Levinson and Albert G. Duncan, for appellants; Morris G. Levinson, of counsel. Wyman, Hopkins, McKeever & Colbert, for appellees; Austin L. Wyman, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr, Justice O’Connor

text:
    John W. Talbot, appellant, v. Chicago Roller Skate Company, appellee.
    Gen. No. 32,107.
    Opinion filed February 27, 1928.
    Henry T. Chace, Jr., for appellant. Kirkland, Patterson & Fleming, for appellee; Louis G. Caldwell, Marion B. Stahl and Allan W. Cook, of counsel.
   Mr, Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    John S. Paul, appellee, v. Joseph S. Cara, appellant.
    Opinion filed February 27, 1928.
    Jacob Levy, for appellant; J. M. Gwin, of counsel. Hugh R. Porter, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice O'Connor

text:
    A. M. Graham, also known as Avis Graham Glascock, appellant, v. United States Merchants & Shippers Insurance Company, appellee.
    Gen. No. 32,190.

      Opinion filed February 27, 1928.
    Peden, Kahn & Murphy, for appellant; David Silbert, of counsel. Wolf & Love, for appellee; Alexander Wolf, of counsel.
   Mr. Justice O'Connor

delivered the opinion of the court.


text:
    W. T. Smith & Son, Inc., appellant, v. John Conniff, appellee.
    Gen. No. 32,220.
    Opinion filed February 27, 1928.
    Baldridge, Monson & Nutt, for appellant. No appearance for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    The Fish Net & Twine Company, appellee, v. Harry Dissen and B. Dissen, trading as Southwestern Smoked Fish Company, appellants.
    Gen. No. 32,238.
    Opinion filed February 27, 1928.
    A. N. Lustig, for appellants; Harry G. Hershenson, of counsel. Goldman, Allshouse & Healy, for appellee; Robert G. Dreffein, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court,


text:
    John J. McGrath, appellee, v. Benjamin Dempsey, appellant.
    Gen. No. 32,253.
    Opinion filed February 27, 1928.
    Rehearing denied March 12, 1928.
    Eugene C. O'Reilly, for appellant; Elmer J. Tone, of counsel. Mannion, Mannion & Mannion, for appellee.
   Mr. Justice O'Connor

delivered the opinion of. the court.


author: Mr. Justice O 'Connor

text:
    Van Schaack Brothers Chemical Works, Inc., appellant, v. J. B. Ehrich, appellee.
    Gen. No. 32,271.
    Opinion filed February 27, 1928.
    Beckman, Olson & Hough, for appellant. Teller, Levit, Silver-trust & Levi, for appellee.
   Mr. Justice O 'Connor

delivered the opinion of the court.


text:
    Julia McKay, appellee, v. Hillman’s, appellant.
    Gen. No. 32,300.
    Opinion filed February 27, 1928.
    Church, Haft, Robertson & Crowe, for appellant; Burt A. Crowe, of counsel. C. C. Cunningham and Rose & Symmes, for appellee.


text:
    Wolff Coal Saver Company, appellant, v. Houston Porter, appellee.
    Gen. No. 32,309.
    Opinion filed February 27, 1928.
    Rehearing denied March 12, 1928.
    Frances E. Spooner, for appellant. K. B. Czarnecki, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Albert Mareska, by Emaly Mareska, appellant, v. Chicago Railways Company et al., appellees.
    Gen. No. 32,318.
    Opinion filed February 27, 1928.
    Warren Nichols and Frank L. Wolf, for appellant; Frank L. Wolf, of counsel. George W. Miller and Arthur J. Donovan, for appellees; Frank L. Kriete and C. C. Cunningham, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    M. A. Goldstein et al., appellees, v. Bernard Soll et al., appellants.
    Gen. No. 32,505.
    Opinion filed February 27, 1928.
    Rehearing denied March 12, 1928.
    Moses, Kennedy, Stein & Bachrach, for appellants; Isaac E. Ferguson, of counsel. Nelson & Ricker and Peter Sissman, for appellees; Peter Sissman, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Jennie Blust, defendant in error, v. Peter Langas, plaintiff in error.
    Gen. No. 32,036.

      Opinion filed March 26, 1928.
    Miller, Goi'ham, Wales & Noxon, for plaintiff in error. Joseph D. Ryan, for defendant in error.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


author: Mr, Presiding Justice Matehett

text:
    Harry M. Simons, Jr., by Harry M. Simons, Sr., plaintiff in error, v. George Hollander and Guertin Evory, trading as Hollander & Evory, defendants in error.
    Gen. No. 32,045.
    Opinion filed March 26, 1928.
    Pines, Morse & Stein, for plaintiff in error. Harry A. Biossat, for George Hollander, defendant in error.
   Mr, Presiding Justice Matehett

delivered the opinion of the court.


text:
    Carrie E. La Cloche, administratrix of the estate of Robert Hebenstreit, deceased, appellee, v. City of Chicago, appellant.
    Gen. No. 32,074.
    Opinion filed March 26, 1928.
    Samuel A. Ettelson, Corporation Counsel, and William D. Saltiel, City Attorney, for appellant; Hector A. Brouillet and Arthur Donoghue, Assistant City Attorneys, Cora B. Hirtzel and Roy S. Gaskill, Assistant Corporation Counsel, of counsel. Joseph D. Ryan, for appellee; Joseph D. Ryan and Edmund M. Sinnott, of counsel.
   Mr. Presiding Justice Matehett

delivered the opinion of the court.


text:
    Jennie Seibert, appellant, v. Morton A. Seibert, appellee.
    Gen. No. 32,119.
    Opinion filed March 26, 1928.
    Wm. Cullen Burns, for appellant. Lester L. Bauer, for appellee.
   Mr, Presiding Justice Matehett

delivered the opinion of the court.


text:
    Ruth M. Skinner, appellant, v. John E. Barrett, appellee.
    Gen. No. 32,157.
    Opinion filed March 26, 1928.

      Good, Childs, Bobb & Westeott, for appellant; Walter B. Beebe, of counsel. Church, Haft, Robertson & Crowe, for appellee; Burt A. Crowe, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Ella S. Freedman, appellee, v. G. Frank Hogan, appellant.
    Gen. No. 32,241.
    Opinion filed March 26, 1928.
    Cloyes & Klingler, for appellant. D ’Ancona & Pflaum, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    J. Willis Horton, administrator of the estate of Willis L. Horton, deceased, appellee, v. Leon E. Zitomer, appellant.
    Gen. No. 32,303.
    Opinion filed March 26, 1928.
    Church, Haft, Robertson & Crowe, for appellant; Burt A. Crowe, of counsel. Frank A. O’Donnell and H. H. Patterson, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    The Foreman Trust & Savings Bank, administrator of the estate of George Bobruk, deceased, appellant, v. Royal Motor Delivery Company, appellee.
    Gen. No. 32,368.
    Opinion filed March 26, 1928.
    Joseph T. Harrington and George F. Rutledge, for appellant. Murphy O. Tate, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.