author: Garnett, P. J.

text:
    The Chicago and Western Indiana Railroad Company et al. v. Lavinia Rolvink, Administratrix.

      Railroads—Personal Injuries—Obstructed Platform—Joint Use of Premises and Trades—Liability—Pleading—Evidence.

    1. A joint judgment for a personal injury can not be recovered against several railroad companies in the absence of some concert of action between them, or concurrent neglect of a common duty resting on all.

      2. A declaration charging an injury to have been occasioned by a train owned and operated by several defendant companies, it clearly- appearing that the same belonged to and was operated by one of them alone, is bad.
    [Opinion filed April 3, 1889.]
    Appeal from the Superior- Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. George W. Easley, William Armstrong, Osborn & Lynde and W. O. Johnson, for appellants.
    Mr. John M. Southworth, for appellee.
   Garnett, P. J.

On 'and before June 10, 1886, Frank Kolvink was engaged in business in the village of Hegewisch, in Cook county. On the day named he came to his death under the following circumstances:

Early in the forenoon some freight belonging to him, was delivered by the Chicago & Atlantic Bail way Company, at the-station of the Chicago & Western Indiana Bail road Company in the village, and was left on the platform adjoining the station, as there was no freight house where it could be deposited. The platform was built by the Western Indiana company, and was used in connection with railroad traffic at that point, over the adjoining tracks of that company. The platform was narrow, and at the time of Bolvink’s death, it is alleged that freight was piled^theredn in such a manner that only a very contracted space next to the railroad track was left, making passage thereon dangerous. Bolvink took away one load of his goods, and having returned for another, while passing along the space described, on the platform, was struck and killed by the pilot beam of a train of the Louisville, New Albany & Chicago Bailway Company running over the track of the Western Indiana company. The last named company owned .the railroad, station house and platform, but operated no trains over the road. It had granted to the Atlantic company the privilege of using the station and platform, and operating its trains over the road, and that company was then using the road, station and platform for its railroad business. The New Albany company had also received from the Western Indiana company a grant of the right to run its train over the track by the station, but not the use of the station or platform, and, in fact, it made no use of and had no control over either. Appellee sued the three companies, and recovered against them jointly a judgment of $3,000 for causing Kolviuk’s death, from which the defendants all appeal.

A joint judgment can not bé sustained unless there was some concert of action between all of the defendants, or concurrent neglect of a. common duty resting on all. City of Peoria v. Simpson, 110 Ill. 294; 2 Hilliard on Torts, 248 ; Bard v. Yohn, 26 Pa. St. 482. There can be no well founded claim that there was common design or concert of action between the three defendants. And the record is just as destitute of evidence that there was concurrent neglect of a common duty. The New Albany company had nothing to do with the station or platform, it had no agent or employe there, had no part in the management or control thereof, and derived no benefit therefrom. The station and others in charge there were not in its employ, and had it undertaken to give them orders, the other companies might justly have resented such action as impertinent intrusion. The evidence wholly fails to connect the New Albany Company so as to make it jointly. liable with the other defendants. But from what is here said no inference is to be drawn that it would not be separately liable if the evidence sufficiently established that it was guilty of negligence which caused Rolvink’s death, although he may have been killed on the platform under circumstances that would also make the other defendants responsible.

We are not prepared to say that a joint judgment against the Western Indiana and Atlantic companies could not be sustained. If the station and freight agent was employed by both companies to perform the same duties, there can be no doubt that he was their joint agent to that extent, and if in the performance of such duties he was guilty of neglect cansing Bo 1 vink’s death, the joint liability follows. The act of the agent in the j>erformance of his duties is as indivisible as the human will that sets him in motion. Stone v. Dickinson, 5 Allen, 29.

The declaration is faulty in charging that the deceased was killed by a locomotive and train of cars used and operated by the defendants. The fact is undisputed that the train was the property of the Eew Albany company, and it alone was using and operating the same. In this respect the plaintiff should have leave to amend her declaration, on the re-docketing of the cause in the court below.

The judgment is reversed and the cause remanded.

S ever sed and remanded.

Gaby, J., took no part in this case.


source: Caselaw Access Project

author: Gary, J.

license: Public Domain

text:
    Lelia P. Roby et al. v. Louisa Murphy.

      Master and Servant—Recovery of Wages—Evidence—Instructions— Modification of.

    1. In an aclion for the recovery of wages claimed to be due, the declaration being the common counts in assumpsit, this court holds as erroneous the introduction of evidence relating to domestic broils which led to the termination of the contract of service.
    2. The modification of inaccurate instructions is proper.
    [Opinion filed April 3, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Mr. Wolfred E. Low, for appellants.
    Mr. M. J. Gorman, for appellee.
   Gary, J.

This is an action under the statute, by the appellee against the appellants as husband and wife, for wages as a servant in the family.

The declaration is on the common counts in assumpsit. On the trial the appellee was allowed to testify, over the-objection and exceptions of the appellants, in answer to the question, “How did you come to leave their employ then?” to a sloimy, ending of the relations of the parties, in which, if the appellee gave a correct version of it, the conduct of the wife was very likely to induce a jury to believe, that whatever they might do for the appellee would be no injustice to the appellants. There was no issue under which this testimony was admissible. The plea was the general issue.

Under this plea 'the appellants might have set up that appellee had wrongfully quitted their service, which under some circumstances would be a complete defense. Hansell v. Erickson, 28 Ill. 257,-and cases there cited; and under other, a ground for recoupment; and then and not before would there have been an issue to which such testimony would have been applicable. But the appellants attempted no such defense and so the original error of admitting the testimony was not cured., . An ill-tempered criticism is made of the modification by the court of an instruction asked by them, shown by the italics, as follows:

“The jury are instructed that they cannot presume the defendant forged receipts over the signature of the plaintiff, •but the receipts are to be received with the presumption that they were regularly made, and this presumption must prevail until overcome by proof, and the jury will consider the whole testimony concerning them.” Without modification it was wrong. The whole evidence in the case, as well the receipts as the testimony attacking them, was before the jury.

It is not true that after evidence against the receipts the jury were to receive them with the “ presumption that they were regularly made.” In its weakest sense a presumption is a probability of the truth of what is presumed. The word “until” was improperly used instead of “ unless,” but these words with such a context are so commonly used as synonymous that the appellants so understood them, and in their specification of exceptions to instructions, quoted this modification as “unless.” The practice of modifying incorrect instructions has been .so often approved by the Supreriie Court that it will be a vain parade to cite cases.

For the error in admitting the testimony the judgment is reversed and the cause remanded for a trial of the issue whether the appellants owe the appellee anything, and if anything, how much.

Jteversed and remanded.


author: Moran, J.

text:
    Chicago, Milwaukee and St. Paul Railway Company v. Eliza S. Halsey, Administratrix.

      Railroads—Personal Injuries—Crossings—Ordinance—-Signal Lights —Gates—Rate of Speed—Comparative Negligence—Ordinary Care—Evidence—Instructions.

      1. In an action brought by an administratrix against a railroad company to recover for (he death of her son, alleged to have been occasioned through its negligence, this court holds that the omission from ¡in instruction in behalf of plaintiff as to the question of comparative negligence, of the hypothesis that the person was at the time of !he injury in the exercise of ordinary care, is not ground for reversal, other instructions in her behalf containing such hypothesis as a condition of recovery.
    2. A refusal to give upon behalf of defendant an instruction, setting forth that in order to recover, the person injured must have been in the ex. rcise of ordinary care, can not be complained of where the same rule was laid down in instructions given in behalf of plaintiff.
    3. An instruction setting forth that if the person injured went upon the track without looking in the direction from which the engine which struck him came, he was guilty of such negligence as barred recovery, should not be given where the court is not authorized, under the facts and circumstances in evidence, to declare that a failure to look in all directions for approaching trains before attempting to cross the tracks, was negligence.

      4. The question of negligence in the operation of ils road or the running of its trains by a railroad company is for ¡he jury.
    5. In the case presented this court declines to interfere with a verdict for plaintiff, in the sum of $5,000, deceased being at the time of his death in good health and twenty-two years of age. .
    [Opinion filed April 3, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Edwin Walker, for appellant.
    The rule of all courts is that it is hazardous for any person to cross the tracks of a railroad where it is known that trains are constantly or frequently passing, and that because of this hazard the law requires all persons attempting to make such crossing to exercise even more than ordinary care, in fact, that degree of care commensurate with the hazard.
    In I. C. B. B. Co. v. Godfrey, 71 Ill. 500, on page 508, the court says: “As a general rule it is culpable negligence to cross the track of a railroad at a highway crossing without looking in either direction that the rails run to ascertain whether a train is approaching.”
    It is also held in I. C. R. R. Co. v. Hetherington, 83 Ill. 510, that where no care is shown by the evidence to guard against danger, and a person received injury therefrom, that under such circumstances the negligence of the deceased would be gross.
    There is no evidence, nor is it claimed that the engineer or any other person upon the defendant’s train saw the deceased until he was upon the railroad track immediately in front of the engine; nor is it claimed that the defendant’s servants were guilty of negligence in not arresting the speed of the train after such discovery had been made.
    The relative rights of the parties are discussed in C., B. & Q. R. R. Co. v. Lee, Adm’x, 68 Ill. 576. This was an action brought by the plaintilf, as administratrix of the estate of the deceased, against the railroad company, for damages resulting from the death of the intestate. The deceased was struck by one of the defendant’s trains at a public highway, and the relative rights of the parties were carefully considered and defined by the court. It is held in this case that if the engineer saw the deceased driving in the direction of the public crossing he had a right to expect, according to law and custom, that he would stop rather than attempt to pass in front of the train. But in the present ease the deceased was not seen by the engineer or other person, nor is it clai mod that the engineer was guilty of negligence in that respect.
    In the instructions on behalf of the defendant the trial court was not requested to prescribe any rule more stringent than the rule above laid down by the Supreme Court, or than the subsequent rules of either the Supreme or Appellate Courts.
    There was evidence to support this instruction; it was in accordance with the defendant’s theory of defense, and was also within the uniform rules of law. The jury received no direction relative to the defense and were not advised of the defendant’s particular theory.
    In Stearns v. Reidy, 18 Ill. App. 582-5, the court holds: “Where an instruction that is in conformity with law is asked, based on the evidence, and presenting a view of the case that may be controlling and which is not covered by any other instruction, a refusal to give it will cause a reversal of the case.” Bennett v. Connelly, 103 Ill. 50; State v. Wilson, 2 Scam. 225; Cohen v. Schick, 6 Ill. App. 280; C., B. & Q. R. R. Co. v. Warner. 108 Ill. 538.
    The court in its instructions given at the request of the plaintiff, especially directs the attention of the jury to her theory of the case.
    Plaintiff’s second instruction charges the jury that, if they believe from the evidence that the defendant’s train was running at an unnecessary and manifestly dangerous and reckless rate of speed over the crossing, and that such rate of speed was the proximate cause of the death of the deceased, then they shou’d find for the plaintiff.
    Also in the third instruction, that if the defendant was guilty of negligence in not keeping, while so running its train, a brilliant and conspicuous light on the forward end of the locomotive, and that the deceased, by reason thereof, was killed, then the plaintiff was entitled to recover.
    Also iii the fourth, if they should find that the deceased was guilty of some negligence, but that the defendant was also negligent, and that the negligence of the deceased was slight in itself and in comparison with the negligence of the defendant, and that the negligence of the defendant was in itself and in comparison with that of the deceased, gross, and that the defendant’s negligence was the proximate cause of the death of the deceased, then slight negligence of the deceased would not prevent a recovery by the plaintiff.
    In the second and third instructions certain facts are singled out and given prominence, and the attention of the jury is especially directed to these alleged facts.
    While the court directed the attention of the jury to the special theory of, and the evidence relied upon by the plaintiff, it refused to give the jury any instructions whatever, referring either to the evidence or the theory of the defendant.
    Messrs. Flower, Remy & Holstein, for appellee.
    In the case of the Chicago & A. Ry. Co. v. Carey, Adm’x, 115 Ill. 115, a person was killed in the night time by cars in motion. There was no eye-witness-of the injury. The proof showed that about midnight the deceased left a store, a few blocks distant from the place of the accident, and started on the sidewalk in the direction of his home, and was then duly sober, and that the place where he was killed was on his direct route home, and the accident must have happened very soon after he was last seen that night. And it was held, in an action to recover for his death, that the circumstances were such as might justify an inference whether or not the deceased used due care, and that direct proof on the point was not necessary.' C., R. I. & P. Ry. Co. v. Clark, Adm’x, 108 Ill. 113-17; C., St. L. & P. R. R. Co. v. Hutchinson, 120 Ill. 587-96.
    In the case of Johnson, Executrix, v. The Hudson R. R. Co., 20 N. Y. R. 65,.a horse car of the defendant was proceeding upon its railroad without lights or bells, on a dark evening in a street of New York City, 'obstructed by a sewer in the process of construction. The plaintiff, a sober cartman, was found dead upon the track, under circumstances authorizing the inference that he had fastened his horse, and wras groping in the dark to find a safe passage for his team, when struck by the defendant’s car. There was no witness to the accident; and it was held that the dangerous tendency of the defendant’s conduct was such as, in the absence of any other evidence than the presumption that the plaintiff had the same regard for his safety as other mm, to authorize the attributing of the accident to the negligence of the defendant, and the refusal of a non-suit. And that the degree of care required from the managers of a railroad in a highway, and of prudence on the part of one about to cross it, are proportioned to the danger of inflicting injury and their liability to incur it. The obligations of extreme care and of ordinary care, are to be construed with reference to the particular circumstances of the case. The language of a charge in respect to degrees of care or negligence is to be interpreted accordingly, and nut in any abstract, technical sense.
    In the case of Haycroft v. The L. S. & M. S. Ry. Co., 64 N. Y. 636-7, the plaintiff, a girl sixteen years old, was passing along a street in the city of Buffalo, going south, across defendant’s tracks (five in number). She had crossed two of these tracks. She looked both’ways, and saw a train approaching from the east, on the fifth track. She stopped for this train to pass, standing between the second and third tracks within about a foot of the third. She had been standing thus a short time, and, about as the train she was watching passed, she was struck and injured by the tender of a locomotive backing up from the west, on the third track, which gave no warning, by ringing a bell or sounding a whistle, of its approach. The plaintiff was non-suited at the circuit, on the ground of contributory negligence. Held, error; that the question was one of fact for the jury.
    The case of Smedis, Adm’x, v. The B. & R. B. R. R. Co., 88 N. Y. R. 13, was an action to recover damages for the alleged negligent killing of S., plaintiff’s intestate. It appeared that S. was .seen going westward toward -defendant’s track, upon a street which was crossed by said track. It. was a very dark night; a train, having no headlights, was approaching from the north on a down-grade, without steam, and making b.it little noise. The bell was not rung nor the whistle sounded. Another train was approaching the crossing from the south on another track west of the defendants. It had a bright headlight; its whistle was sounded, and its bell was rung; and as it was an up-grade, the exhaust of the engine made a great noise. Defendant’s engine first reached the crossing. A witness, standing on the street west of the defendant’s track, testified that by the aid of the light of a lamp reflected along the street, he saw the form of a man approaching the track, who turned toward the south as he came near the track, when the view was cutoff by the approaching train. S. was found, after the trains passed,lying near defendant’s track, a few feet south of the line of the street, with a wound on the left side of his head, which caused his death. Held, that the evidence authorized the submission to the jury of the question of negligence on defendant’s part, and contributory negligence on the part of S.; that the evidence did not show conclusively that S. was south of the southerly line of the street when struck by the engine; that it was not to be assumed that decedent did not look or listen for a train on defendant’s road, as the evidence tended to show he could neither have seen nor heard the train approaching thereon, and that his attention was necessarily given to the other train.
    In the case of Tolman, Adm’x, v. The S., B. & N. Y. R. R. Co., 98 N. Y. R. 198-203, the court say: “ The burden of establishing affirmatively freedom from contributory negligence may be successively borne, though there were no eyewitnesses of the accident, and even although its precise cause and manner of occurrence are unknown. If, in such case, the surrounding facts and circumstances reasonably indicate or tend to establish that the accident might have occurred without negligence of the deceased, that inference becomes possible, in addition to that which involves a careless or wilful disregard of personal safety; and so a question of fact may arise to be solved by a jury, and require a choice between possible, but divergent, inferences.”
    In the case of Mayo v. B. & M. R. R., 104 Mass. 137-40, the court say : “It is well settled that in order to recover for an injury on the ground of negligence of another party, it must appear that the plaintiff was in the exercise of due care in respect to the occurrence from which the injury arose; or that the injury is in no part due to his own fault or want of care. The burden rests upon the plaintiff to make this appear; although in form, a proposition to be established affirmatively, it is not necessarily to be proved by affirmative testimony addressed directly to its support. The burden is held to be upon the plaintiff, for the reason that it is a subordinate proposition, necessarily involved in the more general one upon which the action is founded,to wit,that the injury to the plaintiff was caused by the negligent or wrongful conduct of the defendant. If this be shown by evidence which excludes fault on the part of the plaintiff, the proposition of due care is established as effectually as by affirmative testimony. All the circumstances under which the injury was received being proved, if they show nothing in the conduct of the plaintiff, either of acts or neglect, to which the injury may be attributed in whole or in part, the inference of due care may be drawn from the absence of all appearance of fault.” Woods v. City of Boston, 121 Mass. 337-8 ; Cook v. Union Ry. Co., 125 Mass. 57-61; Linnehan v. Sampson, 126 Mass. 506-12; Smith v. Boston G. L. Co., 127 Mass. 318-19 ; Peverly v. City of Boston, 136 Mass. 366-74; Lyman v. Co. of Hampshire, 240 Mass. 311-14. In the case of Prentiss v. Boston, 112 Mass. 47, the court say: “It was necessary for'the plaintiff to prove, not only that he used ordinary care, but that the defendants were negligent. As to his own care, it was not necessary to prove it by directly affirmative evidence ; but the inference of such care might be drawn from the absence of all appearance of fault, either positive or negative, on his part, in the circumstances under which the injury was received.”

      The appellant asked a series of instructions, covering, as his counsel says, “the theory of the defendant.”
    Considered as a whole, “as a theory,” they were properly refused, because the principle of comparative negligence is entirely ignored. This is fatal to them as a whole. The “theory of the defendant” is bad, because it ignores an e'cmentary principle that is an essential part of the web and woof of the case. Where a series of instructions is asked for in the aggregate, or as a “theory of the defendant,” and such theory is defective, or any single proposition in the series is objectionable, the court may, for that reason, refuse to give the whole, and the refusal is no ground of error. 2 Thompson on Trials, Sec. 2349 and notes.
    And irrespective of the question of comparative negligence the instructions asked by the appellant are bad, and were properly refused, because the instructions given by the court on its own motion and at the request of the appellee, gave the law as applicable to the case in clear and intelligent language. There was no occasion for repeating the same idea in different instructions varying only in form. Keeler v. Stuppe, 86 Ill. 309; I. & C. R. Co. v. Horst, 93 U. S. 291.
    It is not error to refuse to give instructions asked for, however correct or applicable, if they have in substance already been given in the charge of the court. Scott v. Delaney, 87 Ill. 146.
    In the case of Railway Co. v. Whitton, 13 Wallace (U. S.), 271, 290, the Supreme Court say: “The counsel of the plaintiff had requested three special instructions to the jury, and the counsel of the defendant had requested nineteen special instructions. The court, however, declined to give any of them, except as they were embraced in its general charge. Some of the instructions prayed by the defendant presented the law respecting the liability of the company correctly, and some of them were based upon an assumed condition of things which the evidence did not warrant. But it is not error for a court to refuse to give an extended series of instructions, even though some of them may be correct in the propositions of law which they present, if the law arising upon the evidence is given by the court with such fullness as to guide correctly the jury in its findings, as was the case here.”
   Moran, J.

Appellee recovered a judgment of $5,000 against appellant in the Superior Court for causing the death of her son at a street crossing in the village of South Evans-ton, and to review said judgment, appellant prosecuted this appeal.

Appellant operates a double track railroad from Chicago to Evanston, which crosses Greenleaf street, an east and west street in the village of South Evanston, at right angles. Appellant’s north bound trains .use the east tr.ack, and its s.outli bound trains the west track, and these tracks are parallel and close together. After dark on March 11,1887, deceased with his sister was passing east on the south side of Greenleaf street, and just as the crossing of appellant’s tracks was reached a north bound train of some ten cars was passing at a rapid rate. Just as the north bound train cleared the street, deceased and his sister were struck while crossing the west track by the engine of the south bound train, and deceased was billed, the sister receiving some injuries from which she recovered.

The train which struck deceased consisted of two passenger coaches drawn by one engine which was being run fear end in front, with a tail end or switch light something more than half the size of the ordinary headlight upon the tender. The ordinance of South Evanston provides that “every locomotive engine, railroad car, or train of cars running in the night time in the said village, shall have and keep a brilliant and conspicuous light in the forward end, and while backing up on the rear end of such locomotive engine.”

Appellees contend that the use of the tail end light was not a “conspicuous light,” and it was negligence to use it, and also that it was negligence on the part of the company not to have gates or lights or a watchman at the said Green-leaf street crossing, and that there was further negligence in the rate, of speed at which the train was run, and that no bell was rung and no signal given of the approach of the train at the time of the accident. As to the speed of the train there was a conflict of evidence, appellees’ witnesses estimating that it was being run at not less than forty miles an hour, and appellant’s that it was not running faster than about thirty miles an hour. There was a like conflict as to whether the bell was ringing as the engine approached the crossing. Whether the appellant was guilty of negligence in running its train or in operating its road, in any of the matters alleged, was a question of fact to be determined by the jury upon consideration of all the evidence in the case. Counsel for appellant makes some criticism on the instructions given by the court on behalf of appellee, but a careful examination of said instructions shows them to be free from legal error.

The instruction given as to comparative negligence does not contain the hypothesis that'deceased was, at the time of the accident, in the exercise of ordinary care. The instruction does not authorize a recovery on the facts supposed on it, but states, in a form of words often approved by the Supreme Court, the rule of comparative negligence as it obtains in this State. The .other instructions for the plaintiff all require the jury to find that deceased exercised ordinary care, in order to find a verdict for the plaintiff. Careful practitioners will always insert the hypothesis of ordinary care in drawing the contributory negligence instruction, but its omission from such instruction will not be regarded as a ground for reversal when other instructions for plaintiff contain such hypothesis as a condition of plaintiff’s recovery. Chicago v. Stearns, 105 Ill. 554; C. & A. R. R. Co. v. Johnson, 116 Ill. 206; Willard v. Swanson, 22 Ill. App. 424, and same cases in Supreme Court, 18 N. E. Rep. 548.

There was no direct evidence in this case that deceased was in the exercise of ordinary care at the time of the accident, but from all the facts and circumstances in evidence the jury could determine whether he exercised such care for his safety as one of ordinary prudence would have done under the same circumstances, there being no evidence that he was in fact negligent. We can not say that the circumstances of the accident were such that the inference that deceased used due care was not warranted. Chicago & Alton Ry. Co. v. Carey, 115 Ill. 115.

All of the appellant’s instructions were refused by the court, and the refusal is pressed as erroneous. All but one of said instructions required the court to state to the jury in effect that if deceased went upon the track when he was struck without looking in the direction from which the engine which struck him came, he was guilty of such negligence as barred a recovery. Such instructions were properly refused. The court was not authorized under the facts and circumstances in evidence to declare that a failure to look in all directions for approaching trains before, attempting to cross the tracks was negligence. C., St. L. & P. R. R. Co. v. Hutchinson, 120 Ill. 587. One of appellant’s instructions was, that in order to recover deceased must have been in the exercise of ordinary care at the time of the accident. This instruction might well have been given, but its refusal will not reverse, because the same rule was abundantly announced to the jury in the plaintiff’s instructions.

The judgment of the Superior Court will be affirmed.

Judgment affirmed,.


text:
    Patrick K. Howard v. William Costello.

      Practice—Appeal by One of Several Defendants—Sec. 70, Act of 1873.

    Where less than the full number of defendants appeal from the decision of a justice, those not appealing must be summoned, or return of not found had, before the case can be disposed of.
    [Opinion filed April 3, 1889.]
    In error to the Circuit Court of Cook County.
    Mr. Edward T. Noonan, for plaintiff in error.

      Messrs. Keator & Thompson, for defendant in error.
   Gary, J.

If one of two or-‘more defendants against whom judgment is entered before a justice takes an appeal alone, the other defendant or defendants must be summoned, or return of not found had, under Sec. 70 of the Act of 1873, concerning justices, before the case can be disposed of. Steinborn v. Thomas, 8 Ill. App. 515; Humphreys v. Rodgers, 9 Ill. App. 281; Walter v. Bierman, 59 Ill. 186; Stewart v. Peters, 33 Ill. 384.

This rule having been disregarded in this cas* the judgment must be reversed and the case remanded for proceedings required by the statute.

jReversed and remanded.


text:
    Sievert T. Gunderson et al. v. Charles A. Sirborn.

      Practice—Special Calendar—Trial out of Order—Bill of Exceptions— Expansion of by Uncertified Affidavit—Rehearing.

    1. Upon the allegation that the trial court erred in trying the'case.presented out oE its order in violation of the statute, it being sought by affidavit, the truth oE the facts therein not being certified to by the trial judge, to enlarge the exceptions actually taken, this court declines to interfere with verdict for the plaintiff.
    2. The question as to whether a certain exception was taken is to be determined and certified to by the trial judge alone.
    [Opinion filed April 3, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Henry W. Magee, for appellants.
    Messrs. Schuyler & Kremer, for appellee.
   Garnett, P. J.

This action of assumpsit by appellee against appellants was tried before a judge and jury in the court below and a judgment rendered June 16, 1888, for $419.75 in favor of appellee.

To secure a reversal of the judgment appellants insist that it was tried out of its order in violation of the statute regulating the practice in that respect. The bill of exceptions states that on the calling of the case for trial the defendants asked the court to dispose of their objections to the trial theretofore filed, but the court overruled the objections and ordered the case to proceed, to which the defendants excepted. What the objections were is not shown, except by an affidavit used on the motion for a new trial. Attached to this affidavit is a paper which the affidavit designates as “ Exhibit ■ D,” and that exhibit purports to be a notice by defendants’ attorneys that the defendants object to the placing of the cause on any special calendar of the cases, because the same is irregular and illegal. The affidavit states that when defendant’s attorney was notified that the special calendar of cases was to be made he filed said notice in the cause. It will be noted that the effort is to expand the bill of exceptions by means of the affidavit so as to enlarge the exception which was actually taken.

The judge who tried the cause simply certifies that the defendants excepted to his overruling the objections to trial filed by them. He does not certify what the objections were. He states that on the motion for a new trial the affidavit referred to was read, but he does not state that the facts therein alleged are true. A bill of exceptions can not be thus made up. If the facts stated in the affidavit were true, the judge could have been requested to certify them, and no doubt hf would have done so. “In our practice it is well settled that the question whether a certain exception was taken, is a question to be determined and certified by the trial judge, and by him only.” People v. Anthony, 25 Ill. App. 532. Appellants insist that there was no evidence to sustain the verdict. We have examined carefully and find there was some evidence tending to that effect, and while we might have been better satisfied with a verdict for the defendants, the law does not permit us to substitute our judgment on the facts for that of thejury.

There is no error in the record and the judgment is affirmed.

Judgment affirmed.

Gaby, J., took no part in this case.


text:
    Frank E. Blackman et al. v. Linda Bloom.

      Trespass—Removal of Household. Furniture—Chattel Mortgage—Evidence—Instructions.

    In an action to recover damages suffered through the removal of household furniture claimed under a chattel mortgage, this court holds that the instructions were improper.
    [Opinion filed April 3, 1889.]
    In error to the Superior Court of Cook County; the Hon. John S. Altgeld, Judge, presiding.
    Messrs. T. Morrison and A. B. Jenks, for plaintiffs in error.
    Mr. John C. King, for defendant in error.
   Gary, J.

This is an action of trespass d.e lonis asportatis, Dy the defendant in error against the plaintiffs in error.

Whether one of the plaintiffs in error participated in the acts of which the defendant in error complained, and whether the other was acting in accord with her wishes, were questions upon which, perhaps, if the instructions had been accurate, the verdict of the jury might have been conclusive, though it seems extravagant.

But the singular and plural are mixed in the instructions in such a manner, that if the jury were guided by them, th y may have found a verdict against both, on evidence of the acts of but one. The first instruction, in reciting what devolved upon her to show, says, “and further, that the defendant unlawfully,” etc. The last says, “and that the defendant wrongfully,” etc., “ and converted the same to Ms own use, then the jury should find the issues for plaintiff.” The plea was joint, not guilty. Under that issue one might be acquitted, and the other found guilty. 2 Tidd Pr. 896, 985. And so while in form the issue was single, whether both were guilty, in substance it was several as to each, and the instruction is to find the issues for plaintiff, on the acts of one defendant.

It is not necessary to consider other questions in the case, and the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Gaby, J.

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    Marc Weill v. J. B. Fontanel.

      Master and Servant—Wrongful Discharge—Wages—Former Recovery —Pleading—A mendinen t.

    A servant wrongfully discharged before the end of his term, has but one cause of action far the recovery of wages, though a choice of remedies, and the following of either to judgment is a bar to the others.
    [Opinion filed April 3, 1889.]
    In error to the Superior Court of Cook County; the Hon John P. Altgeld, Judge, presiding.
    Mr. B. M. Shaffner, for plaintiff in error.
    Mr. A. H. Chetlain, for defendant in error.
   Gaby, J.

The appellee employed the appellant for one year and discharged him in the middle of the first month. This is an action alleging the discharge to have been wrongful. The appellee pleaded a former recovery of the whole of the first month’s wages, before a justice, in bar of the action. The special plea of former recovery was, if good, a full defense to the appellee’s demands, and therefore a bar to the whole action, and the demurrer being overruled, the judgment final for appellee for costs was a proper judgment without regard to the other issues in the case. People v. Weber, 92 Ill. 288. One good defense is enough. 1 Ch. Pl. 589; McClure v. Williams, 65 Ill. 390.

Whether the truth of the plea is- confessed by demurrer or proved on trial makes no difference. The plea was intended to present the defense which was sustained, and specifically mentioned at the end of the opinion of McAllister, J., in Jones v. Dunton, 7 Ill. App. 580. But by a mistake in dates it is impossible to refer the litigation averred in the plea to the contract now sued upon. This' court adheres, to the decision last cited, and holds that there is nothing in the contract between these parties to distinguish it from the one which rvas the subject of the litigation there.

Under a contract for services for a term, if the servant is wrongfully discharged he has but one cause of action, though a choice of remedies, and the following of either to judgment is a bar to all others! As the former recovery is not well pleaded, the judgment for the appellee on demurrer is reversed and the cause remanded. By an amendment of the plea, or under the general issue at trial, the defense, if true, will be a bar to the action.

Reversed and remanded.


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    Charles S. Wynn v. Henry A. Longley.

      Sales—Deceit—Damages—Evidence.

      In an action for the recovery of damages because of alleged deceit as to quality of a quantity of wool sold, this court holds that the true measure of damages in such cases is the difference between the actual value of the property at the time and place of sale, and what its value would have been had its quality been as represented, and that the trial court erred in awarding damages in behalf of plaintiff in the absence of evidence touching these points.
    [Opinion filed April 3, 1889.]
    In error to the Superior Court of Cook County; the Hon. Kirk Hawes, Judge, presiding.
    Mr. Alexander Clark, for plaintiff in error.
    Messrs. Freeman & Walker, for defendant in error.
   Garnett, P. J.

This is an action on the case for deceit in the sale of a quantity of wool by Wynn to Longley.

On the trial before the court without a jury there was a finding against Wynn, the vendor, an assessment of damages at 81,000, and judgment on the finding. The wool was sold in Chicago October 8, 1886, and then or soon thereafter delivered to Longley at the same place. The declaration charges that Wynn knowingly misrepresented the wool to be of a certain kind and thereby deceived and defrauded Longley, the damages being laid at 88,000. Longley claims that the wool which was actually sold and delivered to him was worth less than the price he paid for it,' and less than it would have been worth had it been the kind of wool represented by Wynn.

In the record, however, no evidence is found tending to prove its actual value, or the value it would have borne if the alleged representation had been true, at the time and place of delivery. The general rule in this class of cases is that the measure of damages is the difference between the actual value of the property at the time and place of sale, and what its value would have been had it been as represented to be. 2 Sutherland on Damages, 422; Woodworth v. Woodburn, 20 Ill. 184; Wallace v. Wren, 32 Ill. 151; Drew v. Beall, 62 Ill. 164; McClure v. Williams, 65 Ill. 390.

Although Crabtree v. Kile, 21 Ill. 180, seems to conflict with this doctrine, we consider the rule as stated above to be more in consonance with sound reason and fairness-to the parties. The correctness of the rule adopted in Thorne v. McVeagh, 75 Ill. 81, is not denied when applied to the facts of that case, which are materially different from those now before us.

In Carpenter v. First National Bank, 119 Ill. 352, the expression of the opinion is in support of Crabtree v. Kile, but was not necessary to the decision of the case then under consideration, was not put forth as a guide to the court below in a new trial, as the judgment was affirmed, and hence can not be relied on to overthrow the sound rule. The absence of evidence on the points specified is fatal to the judgment. No other error is found. The judgment is reversed and the cause remanded.

Hover sed and remanded.


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    Margaret Bagley v. The Grand Lodge of Ancient Order of United Working Men of Illinois.

      Ufe Insurance—Conditions—Failure to Pay Assessments—Forfeiture —S.pecial Interrogatories—Evidence.

    1. Under a provision in the constitution of a mutual benefit society, that a beneficiary certificate suspended by reason of non-payment of assessments “ may be renewed if the member be living,’’ there can be no waiver of such forfeiture by payment after the death of assured.
    2. The verdict below being for the defendant, error can not be assigned upon the failure of the jury to answer sp -cial interrogatories submitted by defendant, upon the understanding that they were not to be considered unless the verdict was for the plaintiff.

      3. Where different documents are introduced in evidence, each purporting to be the constitution of an organization ata certain time, it is for the jury under proper instructions to find which was in force at the time in question.
    [Opinion filed February 13, 1889.]
    In error to the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. F. W. Becker, for plaintiff in error.
    Mr. John P. Ahrens, for defendant in error.
   Moran, J.

This action was brought npon a certificate, issued by appellee, certifying that J. H. Bagley, a master workman, degree member of AEtna Lodge, No. 159, located at Chicago, was entitled to participate in the beneficiary fund of the order to the amount of $2,000, which sum should at his death be paid to his mother, Margaret Bagley. Appedee contends that the right to receive the money mentioned in said certificate was forfeited before his dentil by the failure of said J. H. Bagley to comply with the conditions upon which the certificate was issued by the order, in that he neglected to pay certain assessments which had been regulai’ly called for, and which the constitution of the order required to be paid in order to keep-the said certificate valid and binding. The jury found a verdict for the defendant, and from the judgment entered thereon this appeal is prosecuted. The main question in the case is whether there was a forfeiture, and that depends on what were the provisions of the constitution which governed the order at the time the assessments, which were not paid, were called for.

Appellees introduced a pamphlet, which they claimed contained the constitution in force and which governed the order at the period in question, and appellant introduced a pamphlet containing a constitution which was earlier in date than 1 that introduced by appellee, and which appellant claimed had never been properly amended or altered in the particulars that governed the levying or notifying members of assessments. ¡Neither pamphlet was properly authenticated, but the objections to their introduction were not specifically put on that ground, but rested on the general ground of incompetency, so that it must be held that the pamphlets were properly admitted. Thompson on Trials, Sec. 694.

•' It was for the jury to find which was the constitution that governed the society at the time the facts of this case arose, and under a proper instruction from the court they found the constitution introduced in evidence by the appellee was the one. Assuming, as we must do, that so much of the finding was correct, we are of opinion that the facts in evidence fully justified the conclusion that there was a forfeiture in accordance with the provisions of said constitution. Counsel for appellant has ingeniously raised many points upon the construction of the constitution and by-laws of the order, which we have carefully considered, but do not deem it necessary to discuss, further than to say that we can not agree with any of counsel’s various contentions in that regard.

After the death of J. H. Bagley the assessments which were due were paid to the proper officer of his lodge, and said officer gave receipts for such assessments, but said officer did not know at the time he received the money that said Bagley was dead. It is urged that the receipt of the. money was a waiver of the forfeiture.

The constitution provides that where a beneficiary certificate is suspended by reason of non-payment of assessments, it “ may be renewed if the member be living,” upon conditions, etc., It is very clear that no officer of the lodge could by receiving the assessments waive the forfeiture, if the member is not living when the money is paid, and especially not where, when the money is paid, the death of the suspended member is concealed from the officer who takes the money.

It is urged as error that the jury failed to answer certain special interrogatories submitted by the defendant in the court below to be answered in case the general verdict was for the plaintiff. Appellant can not assign error on the failure of the jury to respond to requests made by his adversary. The general verdict being for the defendant, the failure by the jury to answer interrogatories submitted by him, can not concern the plaintiff in the action.

We find no error in the record and the judgment of the Superior Court will therefore be affirmed.

Judgment affirmed.

Gary, J., took no part in determining this case in this court.


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    Chicago West Division Railway Company v. Leo Patrick Ryan, by his Next Friend.

      Master and Servant—Street Railway Company—Negligence of Servant of—Injury to Third Person—Infant—Evidence—Instructions.

    1. It is no evidence o£ negligence in parents in modest circumstances, to allow an infant child to be taken upon the street in charge of. a brother, aged fifteen years.
    2. A claim that the child was injured through the negligence of its temporary guardian, can not be considered in the absence of evidence tending to show that the boy was known to be untrustworthy and incompetent.
    3. In an action against a street car company to recover for a personal injury alleged to have been occasioned by the negligence of one of its drivers, this court declines to interfere with verdict for plaintiff.
    [Opinion filed March 13, 1889.]
    Appeal from the Superior Court of Cook County: the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. William J. Hynes and Edmund Furthmann, for appellant.
    Messrs. Abbott, Oliver & Showalter, for appellee.
   Moran, J.

This was an action to recover damages for an injury to the appellee—an infant of the age of one year and four months—caused by his being run over by a street car driven by one of appellant’s servants. There was a verdict in favor of appellee and damages assessed at $1,750, for which amount judgment was rendered and the case is brought to this court by appeal.

The chief complaint of appellant is, that the court refused its instructions submitting to the jury the question of the negligence of the parents of the plaintiff in permitting him to be upon the street. The evidence tended to show that the child was allowed by its mother to be taken out on the street in a baby carriage by a brother of the child, who was about fifteen years of age.

After drawing the carriage around on the sidewalks for some time, the brother sat down on the edge of the sidewalk on Armour street, with his back toward the carriage, and watched some other boys who were playing a game of knife. While the brother’s back was thus turned, appellee slipped under the strap which was buckled across the carriage in front of him, and got out, and walking along on the Armour street crossing, proceeded to cross Indiana street, on which the horse cars ran. When standing very close to the south rail of the track he was struck by the dash-board of one of appellant’s cars and knocked down on the track in such a manner that his feet were caught under the car wheels and one of them so badly crushed that it had to be amputated.

Appellee was, of course, too young to exercise care for his own safety, and can not be charged with negligence, and the theory on which his claim for damages was presented, was that the driver of appellant’s car could, by the exercise of ordinary care, have seen the perilous position in which the child was, in time to have stopped the car and avoided the injury. The jury were correctly instructed by the court upon the theory of appellee, and the verdict based on appellee’s contention is supported by the evidence. Appellant contends that the evidence shows negligence on the part of the parents of appellee, and that their negligence should be imputed to him, and if found to have materially contributed to the injury, should bar a recovery. The cases in this State where the negligence of the parents has been treated as an element to be considered, seem to have been cases in which the action was brought by an administrator for the benefit of the next of kin. ' City of Chicago v. Major, 18 Ill. 349; City of Chicago v. Starr, 42 Ill. 174; F. W. & R. W. Co. v. Miller, 76 Ill. 278.

T. W. & W. Ry. Co. v. Grable, 88 Ill. 440, cited and relied on by appellant, was brought by the administrator, and the court recognized that fact in the following-manner: “ The intestate at the time of her death was only twenty-eight months old, and, of course, she was too young to exercise any care for her personal safety. But its parents, in whose custody the child was, must be charged with the duty of exercising reasonable care for its safety,- and if, for the want of such care, the child was killed, it is apprehended there can be no recovery on behalf of the next of kin.”

In cases where the father has sued for expenses incurred or for loss of services of a minor because of an injury, his negligence may bar a recovery. P., Ft. W. & C. R. R. Co. v. Bumstead, 48 Ill. 221; Hund v. Geier, 72 Ill. 393. Though an infant of tender years may recover against a wrongdoer for an injury which was partly caused bydiis own imprudent act, an adult father can not. 57 Penn. St. 172.

While there has been some discussion of the negligence of parents in cases where the action was brought by the infant, we recall no case in which the negligence of the parent has been imputed to the child so as to defeat recovery.

Assuming, however, that manses may arise in which the negligence of the parent will be imputed to the child, there is no occasion for applying the rule in this case. The father of appellee was the keeper of a small grocery and the mother attended to her household duties and aided in the store. It is no evidence of negligence in parents in such moderate condition in life that they allow a child a year and a half old to be taken on the street in the care of a brother of fifteen. Such parents are not required, while they are attending to their immediate duties, to give personal attention and oversight to their infant children in order to avoid the imputation of negligence. C. & A. R. R. Co. v. Gregory, 58 Ill. 229; City of Chicago v. Hesing, 83 Ill. 204; P., Ft. W. & C. R. K. Co. v. Bumstead, 48 Ill. 221.

If it were true, as contended by appellant, that the brother of appellee in whose charge he was at the time of the accident, was heedless in allowing the child to get out of the carriage and upon the street, such fact could not avail appellant. There is no evidence tending to show that the boy was known to be untrustworthy or incompetent to take care of the infant intrusted to him. If he acted negligently, his negligence is not to be imputed through the parents to the infant. Walters v. C., R. I. & P. R. R. Co., 41 la. 71.

There was no error then, in refusing appellant’s instructions. Appellee could recover only on the ground that appellant’s negligence caused the injury, and that the injury could have been avoided by the exercise of ordinary care on the part of the driver after he saw, or by ordinary diligence might have seen, the dangerous position in which appellee stoo.d. There is no error and the judgment will therefore be affirmed.

Judgment affirmed.


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    John V. Le Moyne v. George F. Harding.

      Tax Titles—Validity of—Freeholds—Jurisdiction.

    This court has no jurisdiction of a case involving a freehold estate.
    [Opinion filed April 3, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
    Messrs. Wilson & Moore, for appellant.
    Mr. William J. Ammen, for appellee.
   Gary, J.

The question upon this record is, whether a tax title, purporting to be a fee simple of the premises in controv.ersy, should be held valid, redeemed from on the relation of the parties as tenants in common, or set aside unconditionally.

The Circuit Court adopted the latter course in the decree appealed from. Whether that decree is-right or not. is a question that involves a freehold, and this court has no jurisdiction to decide it. Pratt v. Kendig, last term.

Appeal dismissed.


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    Frances T. Race v. The Traders Insurance Company. Same v. Agricultural Insurance Company.

      Fire Insurance—Conditions—Vacancy—Mortgage Clause—Subrogation —Deed of Trust—Foreclosure—Injunction.

    Upon a bill and cross-bill filed by insurance companies to foreclose a deed of trust upon certain property under agreements of subrogation contained in mortgage clauses attached to certain policies, said agreements providing that in case of loss and payment to the mortgagee or trustee of the whole debt due upon assignment to the insurers of the debt and all securities evidencing his claim upon the premises in question, should said insurers take the ground that no liability existed as to the mortgagor, this court holds, that the right of the companies to foreclose depends upon the avoidance of the policies upon purely legal grounds; that the proceedings at law instituted by assured would, if allowed to take their course, result in establishing the rights of the companies, and that in view of the general principle that the granting of equitable relief must be founded on a legal right, the bill in the case presented was prematurely filed and must be dismissed.
    [Opinion filed April 3, 1889.]
    In error to the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.

      Messrs. David S. Pride and Robert Rae, for plaintiff in error.
    Messrs. D. J. Schuyler and E. H. Gary, for defendant in error.

   Gary, J.

August 28, 1882, the defendants in error issued policies of insurance against fire to one Sarah Hirsch, on a dwelling house.

July 9, 1884, she conveyed the premises to Race, the plaintiff in error, and, to secure a part of the purchase money, Race made promissory notes to Hirsch, secured by a deed of trust in the nature of a-mortgage of the premises to Julius Rosenthal. The policies were, with the assent of the com pa-' nies, assigned by Hirsch, to Race, and, with'like assent, what is called a mortgage clause attached to such policies, in these words:

“mortgage clause.

“Loss, if any, payable to Julius Rosenthal, trustee, as hereinafter provided.

“It being hereby understood and agreed that this insurance, as to the interest of the mortgagee or trustee, only, therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured, nor by the occupation of the premises for purposes more hazardous than are permitted by the terms of this policy. Provided, that in case the mortgagor or owner neglects or refuses to pay any premium due under this policy, then, on demand, the mortgagee or trustee shall pay the same. Provided, also, that the mortgagee or trustee shall notify this company of any change of ownership or increase of hazard which shall come to his or their knowledge, and shall have permission for such change of ownership or increase of hazard, duly indorsed on this policy. And, provided further, that every increase of hazard not permitted by the policy to the mortgagor or owner, shall be paid for by the mortgagee or trustee on reasonable demand, and after demand made by this company upon and refusal by the mortgagor or owner to pay, according to the established schedule of rates. ■ It is, however, understood that this company reserves the right to cancel this policy, as stipulated in the printed conditions in said policy, and also to cancel this agreement, on giving ten days notice of their intention to the trustee or mortgagee named therein, and from and after the expiration of said ten days this agreement shall be null and void. It is further agreed, that in case of any other insurance upon the property hereby insured, then this cornija ny shall not be liable under this policy for a greater portion of any loss sustained than the sum hereby insured bears to the whole amount of insurance on said property, issued to or held by any party or parties having an insurable interest therein. It is also agreed that whenever this company shall pay the mortgagee or trustee any sum for loss under this policy, and shall claim that as to the mortgagor or owner no liability therefor existed, it shall at once and to the extent of such payment be legally subrogated to all the rights of the party to whom such payments shall be made, under any and all securities held by such party for the payment of said debt. But such subrogation shall be in subordination to the claim of said party for the balance of the debt so secured. Or said company may, at its option, pay the said mortgagee or trustee the whole debt so secured, with all the interest which may have accrued thereon to the date of such payment, and shall thereupon receive from the party to whom such payment shall be made, an assignment and transfer of said debt, with all securities held by said parties for the payment thereof.”

The house was burned May 5,1885, and June 20, 1885, the companies, having previously paid the amount due to Hirsch, and taken to the Traders a transfer of the notes and deed of trust, said company filed a bill to foreclose the deed of trust, alleging that the policy issued by that company was forfeited by breach of a condition as to the occupancy of the house after the policy was issued.

The Agricultural was made a defendant to this bill, and by cross-bill, filed July 9, 1885, claimed the same relief that the Traders asked. July 27, 1885, Race sued the Traders, in the Circuit Court of Cook County, and September 18,1885, sued ■the -Agricultural, in the United States Court. On the hearing, upon a great mass of testimony, the Superior Court held that the policies were avoided by failing to comply with conditions as to the occupation of the house, and decreed a sale of the premises to pay the amount due upon the notes, and enjoined the actions on the policies.

There is not and can not be any contest, that if the policies were in force in favor of Hace at the time of the lire, so that she could claim a loss under them exceeding the amount due to Hirsch, then the money paid to Hirsch by the companies .was payment of a part of that loss, and was an extinguishment, and not a purchase of or subrogation to the claims of Hirsch upon the notes and deed of trust.

The mortgage clause, that “ whenever this company shall pay the mortgagee or trustee any sum for loss under this policy, and shall claim that as to the mortgagee or owner no liability therefor existed, it shall at once, and to the extent of such payment, be legally subrogated to all the rights of the party to whom such payments shall be made, under any and all securities held by such party for-the payment of said debt,” means the same that it would if the words “shall claim that” were stricken out of it. The rights of the assured do not depend upon the claims of the companies. When the rights of one party to a contract are subject to any.action of the other, that action must be such as is just. The principle is applied in Van Arman v. Byington, 38 Ill. 443; Furlong v. Cox, 77 Ill. 293; Davenport v. Ledger, 80 Ill. 574; Bird v. McGahey, 2 Car. & Kir. 61 E. C. L. 707.

As the case stands, then, the right of the companies' to foreclose depends upon the avoidance of the policies upon purely legal grounds. In principle it is the same as when the equitable title of a complainant depends upon his legal title, and the latter is disputed, in which case the English Court of Chancery, before statutes changing the rule, were accustomed to require the party to first establish his title at law. 2 Dan. Chy. 1072,1642. Of course the reply is ready that the companies could not proceed at law, as to the policies, even, and could get no affirmative relief, if the policies were void, except by this proceeding. But the assured was proceeding at law, and in those proceedings there would be a final determination of the legal right of the companies; and if the ancient principle that the legal right must be established as a foundation upon which to grant the equitable relief, be correct, it is unimportant what form the case takes, by which the existence of the legal right is ascertained; and when she is seeking her redress by the ordinary method, she ought not to be prevented.

In Hoare v. Bremridge, The Law ¡Reports Equity Cases, 14, 522—same case on appeal, The Law ¡Reports, Cliy. App. Cases, 8, 22, The Sun Life Insurance Company filed a bill to st'aside a policy because of fraud in procuring it. A week after the bill was filed, the executor commenced an action on the policy. The original jurisdiction of the court of chancery to grant the relief asked by the company was asserted by the courts, original and appellate, without hesitation or equivocation; but both courts concurred that “ according to the ordinary course of law in this country, and having regard to the principles upon which trial by jury is established, the jury is not only the most usual but the most suitable and proper form for the trial of questions of this description.” Page 28 of book last cited. This was said by the chancellor in answer to the suggestion that in that country (as probably in this) on policies of insurance the assured prefers a jury, and the office prefers a judge.”

A great deal might be said in vindication of the verdicts of juries, which operate as salutary restraints upon encroachments on the rights of the citizen, even often where it would be difficult for a tribunal required to give reasons for its decision, to put those reasons into a consistent and satisfactory shape.

See the eulogy of Starkie (Starkie on Ev. 4-10) on trial by jury.

Per Malins, V. C.: “And I think it ought to be well understood by all persons who grant policies of insurance, whether underwriters or insurance officers, that if any question arises upon policies, unless there are extraordinary circumstances, the proper tribunal to decide those questions.is a court of law.” Case cited from 14 L. R. E. C. 522.

The bill, was prematurely filed. If the plaintiff in error shall succeed in her actions at law there will be no occasion for a bill. The decree of the Superior Court is reversed, and a decree will be entered here dismissing all the bills for want of equity, at the cost of the companies.

Decree reversed and bills dismissed.


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    Charles W. Rigdon v. John W. Conley.

      Sale—Realty—Leaseholds—Incumbrance—Inspection of Boohs.

    1. In an action brought for the recovery of a certain sum paid for the aceo''nt. of the grantor by the purchaser of a certain leasehold interest to relieve the same of an incumbrance, the grantee contending as regards a certain sum claimed to be due in a plea of set-off filed by the grantor, that the same bad been paid by giving him credit therefor upon the books of the firm of which the grantee was a member, and that the same had Ven charged thereon to himself, this court holds, in view of Sec. 9. Chap. 57, R. S., that the trial court erred in overruling the motion of plaintiff for their production in order that he might be enabled to prepare for the trial of the. cause in question.
    2. The power to order the production of books should be exercised in behalf of litigants upon proper application and a showing that the books or writings in question contain evidence pertinent to the issue.
    3. It is no answer to affidavits warranting such order that they might have been procured by subpoena.
    4. Abuse of the right of inspection may be prevented by the terms of the order, and in framing the same the court may exercise a discretion for the prevention of annoyance, or the indulgence of impertinent curiosity.
    [Opinion filed April 3, 1889.]
    In error to the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.

      An action was brought by John W. Conley against C. W. Rigdon to recover an amount alleged to have been paid to relieve certain property purchased by Conley from Rigdon of an incumbrance which Rigdon ought to discharge. Rigdon fi'ed a plea of set-off claiming that Conley was indebted to him in some $7,000. On the trial, wdiich took place on May 29, 1888, Conley contended that he had paid the $7,000 claimed by Rigdon asa set-off, to the firm of John W. Rumsey, for the use of Rigdon, in compliance with Rigdon’s orders, and that the payment was made by giving said Rigdon credit on the books of Rumsey & Co. for $7,000, and charging the account of Conley, who was a member of said firm, with said amount.
    Rigdon’s contention was that Conley had no funds to his credit in the firm of Rumsey & Co. at the time he claims to have made the payment for Rigdon’s benefit, and the credit to Rigdon and charge made to Conley were fictitious and did not represent the actual fact. Before the trial, and on May 28, 1888, Rigdon moved the court for an order on Conley to produce, before the trial of said cause for the inspection of said Rigdon and his attorney, to enable them to prepare for the trial of said cause, the check books, cash books, day books and ledgers kept by the firm of J. W. Rumsey & Co. and used by them on the 29t.li day of September, A. D. 1884, and in support of said motion filed the following affidavit:
    “ Charles W. Rigdon, being duly sworn, deposes and says, that he is the defendant in the above entitled cause ; that previous to the 20th day of September, A. D. 1884, he sold to said plaintiff an interest in a leasehold in and to certain property on Clark street, in the city of Chicago, in said county, for about $13,000, of which purchase price all but the sum of $7,000 was paid over to affiant previous to said last mentioned date ; that the said $7,000 of said purchase price, which was on said last mentioned date due and payable to this affiant from said plaintiff, this affiant allowed said plaintiff to retain, as the agent and trustee of affiant, to be paid by him and delivered to J. W. Rumsey & Co. of said Chicago, for the use of this affiant, and for affiant, and did then instruct the said plaintiff to so pay the said §7,000 to said Rumsey & Co., which instruction the said plaintiff agreed to obey ; and this affiant supposed until a very recent date that the said plaintiff had paid the said money, as directed, but affiant says that he is now informed and believes- that the said plaintiff never in fact paid the said.money to the said firm of Rumsey & Co., as requested, but that he retained the same and appropriated the same to his own use, in fraud of the right of affiant. Affiant is informed and believes that the said plaintiff claims that he paid the said sum of §7,000 to Said firm on the 26th day of September, A. D. 1884. Affiant says that he has filed his plea of set-off in said cause to recover therein from the said plaintiff the said sum of money, with interest, after allowing any just claims of plaintiff for any moneys paid out for affiant’s use, referred to in the affidavits of affiant and said plaintiff, filed in said cause on the 21st day of May, A. D. 1888. Affiant says that during the period of the said transactions between himself and said plaintiff regarding said leasehold and said alleged payment of said plaintiff, said plaintiff was a member of the said firm of Rumsey & Co. and kept and made all of the entries in the books of account of said firm during the said period and during the space of more than twelve months previous thereto. Affiant is informed and believes, and charges the .fact to be, that the only thing said plaintiff ever did in pretending to make the alleged payment of §7,000 to said firm, was to charge himself with the said money on the books of said firm, and to credit this affiant with the same amount on said books, without regard to the fact as to whether said plaintiff had any money in possession of said firm or not, and when, in fact, said plaintiff had no money in the possession of said firm which could be appropriated to the use of affiant; and affiant lias been informed, and now believes, that on said 26th day of September, A. D. 1884, and during said period when said transactions took place, and said payment is pretended to have been made, the said firm of Rumsey & Co. did not have in its possession money enough belonging to it and subject to be applied to the use of affiant, the sum of $7,000, or any other sum or sums of money, but was without any funds that could be applied to the use of affiant. Affiant further says that he is also informed and believes that said plaintiff did not keep any bank account separate or other than that kept by said firm; that all the moneys alleged to have been paid, or actually paid, by plaintiff during said period were paid out of the funds of said firm by checks drawn upon one or more banks in said city, and cut from check books, leaving stubs therein on which were written by said plaintiff or by some one under his authority, the character and amount of the checks drawn by said firm from day to day; and also the balances or sums of money which the said firm had in possession from day to day; that said firm kept, during said period, cash books, day books and ledgers, showing the exact amount of money which said firm had in possession from day to day during said period, and the entries therein were made by said plaintiff or under his authority from day to day. Such entries in said boobs will also show to whom the said money belonged and whether it was in its possession as trustees and agents and brokers, or whether it was the money of said firm and subject to be appropriated and disposed of to its use or the use of said plaintiff. Affiant says he is informed and believes that said plaintiff gave no check and no money to said firm in payment of said $7,000 on said 26th day of September, 1884, or at any other time; and that the said check books and said other boobs and the entries therein will so show upon an examination thereof. And affiant is informed and believes that the check books and stubs therein referred to by said plaintiff in his affidavit filed in said cause on May 21,1888, are in fact the check books of said firm referred to; affiant says that in sn pport of his plea of set-off, and for the proper defense of himself in said cause, it is necessary that the said books be examined and inspected by himself and his attorney before the trial of said cause as to all the matters aforesaid, in order to be properly prepared for the trial of said cause; and also that the said boobs should be produced before trial by the order of this court for that purpose, and also produced at the trial to be used as evidence on the part of affiant; that all the said entries are evidence pertinent to the issues in said cause, and all of said books .contain such evidence ; that said books are in the custody and control of said plaintiff; affiant says he knows of no other source from whence to obtain the facts set forth in said books and said evidences, than in said books, and that he can not safely proceed to trial without the production and inspection of said books before such trial.”
    There was read on said motion the affidavit of said Conley that he had found and would produce on the trial his check book, from which the chock for $1,458.96, for which his suit was brought, was given, the stub of which check showed the date, etc. The court overruled the motion to produce the boobs and Eigdon excepted.
    On the day of the trial, before the trial was entered upon, a motion was made for an order on Conley to produce the books for use on the trial, and the affidavit of Eigdon above set out wras read in support of said motion, but the court overruled the same on the grounds that the said Eigdon could get the books by virtue of a subpoena duces tecum, to which ruling said Eigdon preserved an exception. The verdict was for Conley for the amount of his claim, and from the judgment thereon the appeal is prosecuted.
    Mr. Thomas J. Sutherland, for plaintiff in error.
    Mr. H. S. Monroe, for defendant in error.
   Moran, J.

We are of opinion that the court erred in refusing to order the production of the books on the motion made May 28th, before the trial, and supported by the affidavit set out in the statement of facts. Sec. 9, Chap. 51, E. S., provides: “The several courts shall have power, in any action pending before them, upon motion, and good and sufficient cause shown, and reasonable notice thereof given, to require the parties or either of them to produce books or writings in their possession or power, which contain evidence pertinent to the issue.”

The power given by this section is in furtherance of justice, and is to be exercised in aid of parties litigant whenever proper application is made to the court and it is shown that the boobs or writings contain evidence pertinent.to the issue between the parties.

The affidavit of Bigdon made a clear case for the production of the books, and an ‘inspection of them for the purpose of ascertaining evidence that would show that Conley did not have the funds that he claimed in the hands of Buinsey & Co., could not justly be denied him.

The old idea that entries in a party’s boobs are secret, and to be sacredly guarded from the examination of his opponent in a law suit, is fast passing away. In nearly all the States books and writings may be subjected to inspection under statutory provisions similar to dur own. Abuse of the right of inspection may be readily prevented by the terms of the order requiring the production, as was done in Pinchon v. Day, 118 Ill. 9, and in framing such orders the court may always exercise a discretion for the prevention of annoyance to the party, or the indulgence of impertinent inspection as to matters not relating to the inquiry.

Failing to order the production of the books on the motion first made the court should have allowed the motion made just before the trial was entered upon, to produce the books for use on the trial. The affidavit filed stated facts which entitled the defendant to the books for use on the trial, and it is no answer that the parties could get the books by subpoena.

There are some other errors assigned which we do not deem it necessary to discuss, as they are not likely to be repeated on another trial.

For the errors pointed out the judgment will be reversed and the case remanded.

Reversed cmd remanded.


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    Martha A. Walker v. George C. Rand et al.

      Bower—Freehold Estate—Jurisdiction of Supreme and Appellate Courts.

    1. This court has no jurisdiction of an appeal from a decree touching the assignment of dower, the same being a freehold estate.
    2. The Supreme Court has direct appellate jurisdiction of proceedings involving the destruction of a freehold estate.
    [Opinion filed April 3, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Egleet Jamieson, Judge, presiding.
    Messrs. Isham, Lincoln & Beale, for appellant.
    Messrs. W. H. & J. H. Moore & Purcell, and W. C. Goudy, for appellees.
   Gaby, J.

This is a bill by the appellant for the assignment of dower. Dower is a freehold estate. 2 Bl. Comm. 119, 129. Of an appeal from a decree in which a freehold is involved this court has no jurisdiction. The' exact case was decided in this court in 1884 in McManaman v. Blocks, 15 Ill. App. 476.

In addition to this objection to the jurisdiction the appellant seeks to have a title, which is a fee simple on its face, declared to be only an incumbrance to which she shall be required to contribute. The effect of granting this relief is to destroy a freehold. In principle it is like establishing a resulting trust, a subject that pertains to the direct appellate jurisdiction of the Supreme Court. Lehman v. Rothbarth, 111 Ill. 185; see Helm v. Boyd, 124 Ill. 370, where the appeal was taken direct to the Supreme_ Court and.entertained, the object of the bill being to have a deed declared a mortgage.

It is true that this litigation has, before the decision in 15 Ill. App., twice gone through this court without objection here or in the Supreme Court as to the jurisdiction of this court. Doane v. Walker, 101 Ill. 628; Walker v. Doane, 108 Ill. 236.

And it is also true, that since the case in 15 Ill. App., this court, without noticing this objection, has affirmed a decree assigning dower. Reich v. Berdel, 20 Ill. App. 668. So the Supreme Court in Browning v. Harris, 99 Ill. 456, affirmed the judgment of the-Appellate Court of the fourth district, where the homestead right was the subject of litigation, and in Snell v. Snell, 128 Ill. 403, sustained their own jurisdiction of a like case on an appeal direct from the Circuit Court. Cases are not authority upon questions not made in them.

The appeal must be dismissed for want of jurisdiction. Pratt v. Kendig, last term.

Appeal dismissed.