author: Mr. Justice O’Connor

text:
    Albert G. Burns, Appellee, v. Robert E. Hicks, Appellant.
    Gen. No. 30,651.
    1. Libel and slander — elements essential to offense. Under Ca-hill’s St. ch. 38, 1 398, it is not necessary, in order that a printed communication shall be deemed libelous per se, that it charge the commission of a crime.
    2. Libel and slander — when evidence insufficient to show* plaintiff guilty of offense averred to> have been charged in alleged libel. In an action for libel, the declaration of which alleged the publication of a letter charging that plaintiff, while president of a certain association, had expended funds subscribed by members of the association for the erection of a building, for other purposes of the association, mainly for the payment of his own salary, and that this constituted embezzlement under the laws of Indiana and Illinois, evidence held to show that the plaintiff was not guilty of embezzlement under the laws of the States mentioned, and that his use of such funds in the manner charged was at most a breach of trust.
    3. Libel and slander — erroneous refusal of instruction, in action averring libel by charging embezzlement, directing verdict of not guilty if jury found defendant did not charge such offense. In an action for libel, the declaration of which alleged the publication of a letter charging that plaintiff, while president of an association of salesmen, had expended funds subscribed by the members for the erection of a building, for other purposes of .the association, mainly for the payment of his own salary, and that this constituted embezzlement under the laws of Indiana and Illinois, it was error to refuse to give a requested instruction to the effect that if the jury believed that the letter in question did not charge the plaintiff with having embezzled the association’s funds, they should find the defendant not guilty.
    4. Libel and slander — erroneous refusal of instruction, in action for libel by charging embezzlement, directing verdict of not guilty if jury believed explanatory matter of letter negatived intent to charge such offense. In an action for libel, the declaration of which alleged the publication of a letter charging that plaintiff, while president of an association of salesmen, had expended funds subscribed by the members for the erection of a building, for other purposes of the association, principally for the payment of his own salary, and that this constituted embezzlement under the laws of Indiana and Illinois, it was error to refuse to give a requested instruction to the effect that if the jury believed that the purport of the alleged libelous words of the letter was merely that the plaintiff had expended funds of the association given for a specific purpose, in payment of his salary and other expenses of the association, and that the letter would be so understood when read by persons of common understanding, then the jury should find defendant not guilty.
    5. Libel and slander — admissibility of evidence defendant consulted an attorney before publication of alleged libel. Bvidencei that defendant in an action for libel consulted an attorney before he wrote the letter containing the alleged libelous statements, was. admissible in mitigation of damages.
    6. Libel and slander — evidence immaterial upon issues of action based upon alleged charge of embezzlement. In an action for libel based upon the publication of a letter charging that the plaintiff, while president of an association, had expended funds of the association subscribed for the erection of a building, for other purposes of the association, and mainly for the payment of his own salary, evidence offered by plaintiff touching his connection with the association and his dealings with the defendant prior to plaintiff’s election as president, held immaterial to the issues involved in the case.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Reversed and remanded.
    Opinion filed October 13, 1926.
    Perley H. Bishop, for appellant.
    A. D. Gash, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendant to recover damages for an alleged libel. There was a verdict by a jury in favor of plaintiff for $17,500, from which the court required a remittitur of $5,000 and judgment was entered for the balance of $12,500.

The plaintiff’s case is based on the fact that the defendant wrote and mailed a letter to certain parties concerning plaintiff in which it was stated that plaintiff, who was the president of an association of salesmen, had embezzled certain funds of the association which had been donated by divers persons for the purpose of erecting a building for the association, but that plaintiff had used the money for other purposes of the association — “mainly to * * * pay his salary,” and that this constituted embezzlement under the laws of Illinois and Indiana; that plaintiff could not legally use one cent of the money, except for the construction of a building. This letter was set out verbatim in the declaration and the innuendo was that the defendant by publishing the letter, intended to and did charge the plaintiff with having embezzled money belonging to the association. To the declaration the defendant filed the general issue and a plea of justification.

The evidence shows that the association was a corporation organized under the laws of Illinois; that the defendant had been the chief organizer of the company, was its first president and put a great deal of money into it; that in July, 1922, plaintiff, principally through the efforts of the defendant, was elected president for one year and thereafter was reelected for a period of three years at a salary of $7,200 per annum. The concern was not very successful in a financial way and the defendant from time to time advanced moneys with which to keep it going, and during the time plaintiff was its president, he conceived the idea of obtaining a fund with which to build a building for the association which was to be constructed in South Whitley, Indiana, to which place the association had moved from Chicago. He solicited funds for this purpose and received donations and about $600 of those funds defendant charged had been embezzled by plaintiff by using the money for expenses of the association and not for the construction of the building.

On the trial the defendant sought to sustain his plea of justification, and the statute of Indiana, defining embezzlement and providing a penalty for the violation thereof and which was set up in his plea, was introduced, defendant’s theory being that plaintiff had been guilty of embezzlement under the laws of that State. Plaintiff offered no evidence tending to show that he had sustained any special damages other than the mailing of the letter by the defendant to four or five persons who had made donations to the building fund. Plaintiff did, however, offer evidence tending to show that defendant wrote and mailed the letter maliciously, this evidence being to the effect that the defendant prior to the writing of the letter had stated that he would make a “bum” out of the plaintiff and pauperize him. This was denied by the defendant, and he gave a different version of the matter. Defendant also offered evidence to the effect that prior to the writing of the letter he had consulted an attorney and was advised that plaintiff in using the money for the purpose of the corporation instead of for the building had been guilty of embezzlement under the laws of Indiana. Upon objection the offered evidence was excluded.

In this court the defendant, apparently for the first time, contends that the publication of the letter did not charge plaintiff with having committed embezzlement as a matter of law, for the reason that, when the whole letter is considered, the only charge made was that plaintiff had not used the money for the purpose for which it was donated, and although the defendant in the letter stated that this constituted embezzlement, that fact did not make it so, and that the innuendo could not enlarge the meaning of the alleged libelous words. The defendant also takes a contrary position and contends that the evidence discloses that the charge made in the letter was true, and that his plea of justification was sustained by a preponderance of the evidence.

We think it clear that the evidence shows that the plaintiff was not guilty of embezzlement under the laws of Indiana, nor of this State in expending the money for purposes of the association rather than retaining it for the purpose of constructing a building. Plaintiff offered evidence tending to show that he was authorized by the association to use the money as he had, but whether this evidence showed such authority, we think it clear that the most that can be said is that he used the money for the general expenses of the corporation, including plaintiff’s salary, which at most was but a breach of trust. But we think the question is not whether plaintiff was charged with the crime of embezzlement, but whether the parties receiving the letters, or others who might read them, would understand that he was so charged. We think we ought to say that the defendant’s contention made in the brief that in an action for a libel the words complained of are not libelous per se unless they charge plaintiff with a crime, is not the law in this State. People v. Spielman, 318 Ill. 482. That case was an action brought to recover damages for an alleged libel and in passing on the question now under consideration, the court said (p. 487 and 488):

“Section 177 of the first division of the Criminal Code (Cahill’s Rev. Stat. 1925, p. 882) provides: ‘A libel is a malicious defamation, expressed either by printing or by signs or pictures or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation or publish the natural defects of one who is alive, and thereby expose him to public hatred, contempt, ridicule or financial injury.’ Under this statute it is not necessary to charge one with crime to make a printed communication libelous per se.” And this was the theory of the defendant on the trial, as it appears from his offered instructions. At the request of the defendant, the court instructed the jury that in order for them to determine whether the language used in the letter charged the plaintiff with having embezzled the money of the association, they should consider the letter as a whole and not select a few words therefrom. The court gave this instruction, but refused one offered by the defendant, which would have told them that if they should conclude that the letter did not charge plaintiff with having embezzled the association’s money then they should find the defendant not guilty. This was refused instruction No. 3. The defendant also offered an instruction, which is designated No. 5, but which the court refused, by which he sought to have the court tell the jury that if they believed from the evidence that the explanation in the letter — viz that defendant meant by charging the plaintiff with embezzlement, that plaintiff had used the funds which had been given for the association for a specific purpose, to pay his salary and other expenses of the association, and that if the jury should find upon a consideration of the letter that it would be so understood when read by persons of common understanding, then the jury should find the defendant not guilty.

A reading of the instructions discloses the fact that while the court told the jury to consider all of the letter in determining whether plaintiff had been charged with embezzlement, no instruction was given advising them what they should do in case they found that the defendant had not charged plaintiff with embezzlement in the letter. We think defendant was entitled to have refused instructions 3 and 5 given. We are also of the opinion that the court erred in excluding the evidence offered by the defendant to the effect that he had consulted an attorney before writing the letter as hereinbefore mentioned, as this evidence would tend to mitigate the damages, “The fact that the defendant acted on the advice of counsel is also available as a mitigating circumstance.” 17 R. C. L. 447. We are further of the opinion that the contention qf the defendant that evidence offered by the plaintiff was inadmissible which detailed his connection with the association and his dealings with the defendant prior to the time of. plaintiff’s election as president, was immaterial to the issues involved. The evidence shows without dispute or controversy that plaintiff was the president of the association and had solicited the funds in question and the defendant charged that plaintiff had misused those funds and was, therefore, guilty of embezzlement. The evidence should have been confined to the issue involved, and, of course, the defendant’s evidence must be confined to the same matter upon a retrial of the case. We have considered the1 other contentions made by the defendant, but think it unnecessary to state anything further, because we believe that what we have said is sufficient.

For the errors above stated, the judgment of the superior court of Cook county is reversed and the cause remanded.

Reversed' and remanded* '

Taylor, P. J., and Thomson, J., concur.


source: Caselaw Access Project

author: Mr. Justice O’Connor Mr. Justice Thomson,

license: Public Domain

text:
    John Kavale, Appellee, v. Morton Salt Company, Appellant.
    Gen. No. 30,747.
    1. Master and servant — when direction of verdict for defendant in action for injury to third person proper notwithstanding making of prima facie case by plaintiff. Evidence in an action for injury by defendant’s employee to a third person, such as to require a finding that the employee was acting without the scope of his employment, held to warrant direction of a verdict for defendant, notwithstanding plaintiff had made out a prima facie case by proof that he was injured by the negligence of the employee while himself in the exercise of due care for his own safety.
    2. Master and servant — when evidence raises question for jury whether negligent act of servant injuring third person was within scope of employment. Evidence, in an action for injury to a pedestrian by an automobile being negligently operated by defendant’s servant, held to raise a question of fact for the jury as to whether, at the time of the injury, the servant was driving the automobile on the business of the master, or using it for purposes of his own outside the scope of his employment.
    3. Master and servant — sufficiency of evidence to support verdict for injured third person on issue whether negligent act of servant causing injury was within scope of employment. Verdict, in an action for injury to a pedestrian by an automobile being negligently operated by defendant’s servant, that at the time of the injury the car was being used by. the servant within the scope of his employment, held not so manifestly against the weight of the evidence as to require reversal.
    4. Damages — when verdict of $81,000 not excessive for hand, arm and leg fractures suffered by pedestrian struck by negligently operated automobile. Judgment for $31,000 for injuries to a pedestrian in the act of boarding a street car, resulting from being struck by a negligently operated automobile, held not so excessive as to warrant interference therewith on appeal, where the injuries included a compound fracture of the left hand, a compound fracture of both bones of the left forearm, and a compound fracture of both bones of the left leg, necessitating the victim’s confinement in a hospital for about a year and preventing him from returning to his work as a carpenter for 18 months and even then with permanently reduced efficiency.
    Thomson, J., dissenting.

      Appeal by defendant from the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed October 13, 1926.
    Rehearing denied October 27, 1926.
    McCormick, Kirkland, Patterson & Fleming, for appellant; Weymouth Kirkland, Joseph D. Ryan and William H. Symmes, of counsel.
    Schuyler, Ettelson & Weineeld, for appellee; William C. Graves, Edward J. Hennessy, Carl J. Appell and George W. D. Lederer, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff was struck by defendant’s truck in Twenty-Second Street, just west of Wabash Avenue and severely injured. He brought suit against the defendant and the chauffeur who was driving the truck to recover damages. The suit was dismissed as to the chauffeur and after a trial there was a verdict and judgment in plaintiff’s favor for $31,000.

The evidence shows, and there is no contention to the contrary, that the truck was being driven negligently by Joseph Peter Fotre, who was in the employ of the defendant, and that plaintiff was in the exercise of due care for his own safety. The controversy is whether at the time of the accident the truck was in use for defendant’s benefit and on its account, or whether the defendant’s chauffeur was driving it at the time in question on a frolic of his own. The court instructed the jury that no recovery could be had unless they believed from the evidence that the truck was being operated for the use of the defendant in connection with its business at the time of the accident.

The evidence shows that the chauffeur had been employed by the defendant for three or four years and had driven the truck in question for a considerable period of time before the accident occurred; that the truck was a large one, having a capacity of about 7% tons; that on Saturday, October 27, 1923, the chauffeur reported for work at defendant’s place of business, which was located near East South Water Street and the railroad tracks, which is a short distance east of Michigan Avenue; that after delivering two loads of salt on that morning, he returned to defendant’s place of business at about eleven o’clock in the forenoon for further orders and was told by those in charge to await further instructions. The chauffeur waited until about twelve o ’clock when he was advised that there was nothing further for him to do that day to take the truck to the garage where it was kept by the defendant, the garage being located at No. 2625 South Wabash Avenue, Chicago. The chauffeur left with the truck at about 12:15 or 12:25 and started down Wabash Avenue toward the garage and about 3:15 o ’clock in the afternoon he drove the truck westerly in Twenty-Second Street, struck the defendant who was out in the roadway of Twenty-Second Street just west of Wabash Avenue and who was in the act of boarding a street car at that place. Plaintiff was thrown to the ground and when the truck stopped, which was done within a short distance, he was found underneath the truck and caught in the drive chain. Police officers came and endeavored to extricate him, but were unable to do so until they called some members of the fire department who melted a link in the chain and thereby released the defendant.

The evidence further shows there is a double line of street car tracks in Twenty-Second Street; that the street cars do not run east of Wabash Avenue but come to a stop a few feet west of Wabash Avenue on the south car track and that the cars in going west a short distance cross over to the north or westbound track. At the time in question the street car had stopped at its usual place, just west of Wabash Avenue. The men in charge of the car were adjusting the trolley pole, and five or six persons, including plaintiff, were out in the street waiting to get in the back door, which was located on the north side, at the east end of the street car. The doors of the car were just being opened when the truck driven by defendant’s chauffeur turned from Wabash Avenue west and struck plaintiff and others. Three witnesses for the plaintiff testified that the truck came from the north in Wabash Avenue and turned west in Twenty-Second Street. The chauffeur of the truck testified that he drove the truck north in Wabash Avenue and turned west in Twenty-Second Street. Police officers who came within a few moments after the accident testified that the chauffeur was intoxicated; that while he was able to talk and walk around, he stumbled and “wabbled”; that he was placed under arrest and taken to the police station. The captain of police testified that about 6:30 o ’clock on the same evening, which was about three hours after the accident, he talked to the chauffeur and that he was not sober at that time. After the chauffeur was dismissed out of the case he was called as a witness for the defendant. He testified that he left defendant’s plant at Bast South Water Street on the day in question at about 12:20 or 12:25 p. m., having-been told that there was no further work for him to do that day and to take the truck to the garage, located at No. 2625 South Wabash Avenue, which is on the east side of that street; that one of the defendant’s employees who was at defendant’s place of business asked him if he would haul from defendant’s place of business some kindling wood to the employee’s home and the witness said that he would; that thereupon the employee, whose name the chauffeur did not recall, loaded some boards into the truck and that he, the chauffeur, together with another one of defendant’s employees named Dominick, started with the truck down Wabash Avenue to deliver the wood at the employee’s home, which was located near Twenty-Third Street and Wentworth Avenue; that the truck was driven south in Wabash Avenue and when they reached Sixteenth Street the chauffeur and Dominick stopped and had something to eat at a restaurant. The chauffeur further testified that after they had eaten their dinner, he drove the truck, Dominick going with him to Twenty-Third Street and Wentworth Avenue and unloaded the wood in defendant’s employee’s yard, the employee not being home at that time; that after the wood was unloaded, they drove about one-half block north in Wentworth Avenue to Alexander Street an east and west street, which runs west only from Wentworth Avenue to Dominick’s boarding house; that he and Dominick went into the boarding house and the landlady prepared something for them to eat; that they ate and that he drank a • couple of glasses of wine; that they were at this place about 1% hours; that he and Dominick then decided to go to a barber shop which was located on Twenty-Third Street between State and Wabash Avenue; that he drove the truck to that place, Dominick being with him; that when they came to the barber shop, they saw that it was occupied so that they could not be accommodated and then he decided to drive east to Wabash Avenue and go to another barber shop which was located somewhere near Twenty-Second Street and Wentworth Avenue; that he drove the truck east to Wabash Avenue, then turned north to Twenty-Second Street and as' he turned the corner west in Twenty-Second Street he struck plaintiff. The chauffeur further testified that prior to that time he had hauled kindling wood from defendant’s place of business for other employees of the defendant. There is some dispute in the evidence whether he had on prior occasions received permission to do so. Witnesses for the defendant testified that in doing some repairing and remodeling at the plant, there was some kindling wood that the defendant wanted to get rid of and had given permission to have it hauled in defendant’s trucks to the employee’s home who might make a request for it; that on each occasion it was necessary for the persons hauling the lumber to get permission to do so ; that Fotre, the chauffeur of the truck in question, did not get permission on the day in question and that they saw no wood in the truck when it left defendant’s place of business.

Captain Charles L. Larkin of the police department testified that he saw the chauffeur of the truck on the day of the accident at the police station on South Clark Street, about 6:30 p. m., the chauffeur being locked up in the station; that at that time the chauffeur was intoxicated; that he talked with the chauffeur and asked him how the accident occurred and that the responses of the chauffeur were not altogether intelligent; that the chauffeur told him that he had hauled two loads of salt in the morning of that day, then went back to the defendant’s plant and got some wood; that the chauffeur then described where he drove the truck and the wood, and the captain then testified that the chauffeur “did not seem to be able to tell where he did deliver the wood.”

The defendant contends that the court should have directed a verdict in its favor as requested, for the reason that the evidence discloses that at and prior to the time of the accident, the chauffeur was acting outside of the scope of his employment; that he was not pursuing any purpose of the defendant. The plaintiff admits that if the evidence showed this fact to be as the defendant contends, no recovery could be had. But plaintiff contends that he having made out a prima facie case, under no state of facts would the court be warranted in instructing for the defendant. We think the contention of the plaintiff in this, respect is contrary to the law. Plaintiff made out a prima facie case by proving that he was in the exercise of ordinary care for his own safety and was struck and severely injured through the negligence of the driver of defendant’s truck and by further invoking the presumption which the law raises from the facts of ownership of the truck and employment of the driver to the effect that the truck was being used pursuant to the defendant’s business at the time in question. Plaintiff offered no direct evidence on the question whether the truck was being driven at the time in question by the chauffeur in the course of his employment; so that plaintiff’s case rested on the presumption of this fact. If in this state of the record the defendant then put in evidence' of such a character that would lead all reasonable minds to conclude that the truck was not being driven on defendant’s business, then a directed verdict would be proper. Foster v. Wadsworth-Howland Co., 168 Ill. 514. The presumption in such a case would be entirely destroyed by the evidence. But the plaintiff further contends that the evidence in the record is such that the question whether the chauffeur was driving the truck on a frolic of his own or in connection with the business of the defendant, was a question of fact for the jury. We think this contention is borne out’ by the record.

Defendant’s place of business is located about three miles from the garage, 2625 South Wabash Avenue. The evidence tends to show that the chauffeur left defendant’s plant at about 12:15 to 12:25 in the afternoon and that the accident occurred almost three hours thereafter. Of course, it would not take nearly this length of time to drive from the plant to the garage. But the chauffeur stopped on the way and had dinner. He was delivering wood which we think the jury were warranted in finding was in part for the benefit of the defendant. The chauffeur testified that he took this wood to Twenty-Third Street and Wentworth Avenue, which is but a few blocks west of

Wabash Avenue. He testified that he did not know the name of the party that he delivered the wood to, but that he was employed by the defendant. And so far as the record discloses no effort was made to find this person. The captain of police testified that when he talked to the chauffeur, some time after the accident, the chauffeur was unable to tell him where he delivered the wood and that the chauffeur was intoxicated. The chauffeur testifies as to the various routes he took, but it is clear that the jury would be warranted in disbelieving his testimony, because three witnesses testified that when he turned into Wabash Avenue he came from the north, while he testified that he came from the south. And while the evidence tends to show that the wood had been unloaded at the time plaintiff was struck, yet this is not at all clear, because the bed of the truck was high and there were but a few boards in the bottom of it, and no one looked into the truck to see if it was empty at the time plaintiff was injured. We think that whether the chauffeur was driving the truck at the time of the accident in connection with defendant’s business was a question for the jury. They might find that although he “was serving defendant badly, defendant was liable.” Moore v. Rosenmond, 238 N. Y. 358. In that case it was decided that whether a chauffeur who struck and injured a person was serving his master, the defendant, at the time of the accident, was a question for the jury. We think that case is much stronger on the facts than, the case before us. There the defendant, who employed the chauffeur, lived at Eightieth Street and West End Avenue, New York City. His place of business was on Forty-Ninth Street. The chauffeur drove the defendant from his home to his place of business and was told by his employer to drive to Yonkers and Mount Vernon, which was some distance northeast of defendant’s home. The chauffeur did so, and then turned back, but did not take Bosenmond’s mother-in-law to his home as he was told. When he reached Eighty-Fifth Street, which was five blocks north of defendant’s home, he picked up a friend and had some drinks. They then drove to Ninety-First Street, still farther north and had some more drinks and picked up another friend and then drove back down to Forty-Ninth Street, where they had some more drinks and where he was to have the car repaired but did not do so. He and his friends started toward defendant’s garage, which was located near his home, and when they reached Fifty-Third Street they had some more drinks with another friend and then drove towards defendant’s garage when the accident occurred.

The court of appeals of New York held that whether the chauffeur was serving his master at the time was for the jury. Judge Pound in delivering the opinion of the court after stating the above facts said: (p. 359)

“This evidence was not sufficient in law to destroy the presumption of control, although it might have been in fact. The jury might have found that Dollar (the chauffeur) had started, down to Forty-Ninth street on defendant’s business, got drunk, got to Forty-Ninth street, but neglected the business, and started back to defendant’s garage without having the windows fixed. Although Dollar was serving defendant badly, defendant was liable. Bloodgood v. Whitney, 235 N. Y. 110, 114. They might, on the other hand, if they drew from the testimony the inferences most favorable to defendant, have found that Dollar had abandoned his employer’s business when he picked up Corbin at the Eighty-Fifth street garage, and that the time was then devoted to a personal spree, until a belated sense of duty inspired them to start back to the garage. It was, however, for the jury to draw the inferences.” The judgment for plaintiff was reversed on account of the erroneous admission of evidence. The court said that “in a doubtful case, where proofs are pitted against a presumption, where the doctrine of respondeat superior is invoked to impose liability on defendant without direct fault on his part, it is but fair that the rules of evidence should be properly applied.”

The rule of law that fixes liability on the master for the acts of his servant is clear and well established — the master is not liable unless the servant was acting within the scope of his employment. But the difficult question to determine is whether the particular act for which liability is sought to be imposed was committed by the agent within the scope of his employment. This obviously can be determined by no fixed rule, but must be ascertained from the facts in each particular case. Orr v. Thompson Coal Co., 219 Ill. App. 116. Upon a careful consideration of all the evidence in the record, we are of the opinion that the question involved was a proper one for the jury. And we are further of the opinion that we would not be warranted in saying that the finding of the jury in favor of plaintiff is against the manifest weight of the evidence. As Judge Pound said in the Moore case, the inferences to be drawn from the evidence were for the jury.

The defendant further contends that the judgment is excessive and should be reversed for that reason. The record discloses that plaintiff was a carpenter by trade, 45 years of age and was earning about $65 per week at the time he was injured. He was knocked down by the truck and when the truck stopped defendant’s arm was caught in the drive chain so that he could not be extricated. The police who arrived almost immediately after the accident endeavored to cut the chain, but were unable to do so. The fire department was then called and with the use of an acetylene torch they melted a link in the chain and plaintiff’s arm was then released. He was taken to the hospital and it was found upon examination that plaintiff had suffered a compound fracture of the fourth metacarpal bone of the left hand, a compound fracture of both bones of the left forearm and a compound fracture of both bones of the left leg. The surgeon testified that when plaintiff was brought into the hospital the fractured ends of the leg were protruding through the flesh; that the leg was bent at a right angle and it was a question whether the leg would have to be amputated. The leg was then placed in a fracture box for a long time and dressed. The arm was operated on in about a week or ten days. It was necessary to use a steel plate to hold it in place. The injured leg could not be dressed for some time afterwards on account of dirt being ground into the flesh. After the fracture of the leg was reduced, pieces of bone came out from time to time. The defendant was confined to the hospital for about a year and he was able to return to work about 18 months after the accident. The surgeon testified on the trial that in his opinion if plaintiff worked at his trade as a carpenter and was required to climb ladders, the leg would be disabled at least 50 per cent.

It is obvious that plaintiff suffered very greatly; that his injuries are permanent and he testified that he still felt the effects of his wounds. In Posch v. Chicago Rys. Co., 221 Ill. App. 241; and Lagatutte v. Chicago Daily News, 239 Ill. App. 675, we said that we could not be unmindful of the fact that the money value of life and health is appreciating and the purchasing power of money depreciating during recent years. In the latteu case we affirmed a judgment of $35,000, where a boy was so injured as to require his leg to be amputated below the knee. In view of all the evidence in the record, we are of the opinion that the judgment is not of such an amount that would warrant interference on our part.

The defendant further contends that it was error to permit the jury to take X-ray photographs or skiographs, to the jury room over defendant’s objection, for the reason that they were unintelligible. The photographs were introduced in evidence without objection and upon an examination of them, we think the jury would have no difficulty in understanding them. Our Supreme Court has held it is not error to allow the jury to take such exhibits with them to the jury room. Chicago & J. Electric R. Co. v. Spence, 213 Ill. 220.

The judgment of the superior court of Cook county is affirmed.

Affirmed.

Taylor, J., concurs.

Mr. Justice Thomson,

dissenting: It was incumbent on the plaintiff to prove by a preponderance of the evidence that at the time he was struck and injured by the truck in question, it was being used by Fotre within the scope of his employment; that he was engaged in some duty he owed the defendant as its employee and was. not driving his truck on an errand, or for some purpose, of his own. It being established that Fotre was the defendant’s employee and that the truck he was driving belonged to it, a legal presumption arose, to the effect that when the truck injured the plaintiff it was being used in the course of the defendant’s. business. In this manner, a prima facie case was made out for the plaintiff on the issue involved. The burden of going forward with the evidence on this issue then shifted to the defendant. In my opinion, the evidence thereupon submitted by the defendant was clearly to the effect that the truck was not being used by Fotre in the course of its business, when the plaintiff was injured. The testimony of the defendant’s witnesses showed that at that time there was no wood in the truck and that Fotre had delivered the wood he removed from defendant’s plant at the request of one of its employees, at the home of the latter, some time before plaintiff was injured. There is no evidence to the contrary in the record. The evidence is further to the effect that after the wood had been delivered Fotre and Dominick started out on a “frolic of their own,” to use the frequently quoted phrase of Baron Parke in Joel v. Morison, 6 C. & P. 501. The question whether the truck was being used in the course of defendant’s business, in the operation involving the hauling of the wood, is really immaterial. The plaintiff was not injured in the course of that operation. After that matter had been concluded, Fotre, in my opinion, clearly passed beyond the limits of his master’s work and went about his own personal affairs. He and Dominick started on an entirely new and independent journey which had nothing at all to do with their employment They went to the place where Dominick lived and there they spent an hour and a half eating and drinking and then they started out in search of a barber shop where they might procure a Saturday afternoon shave. The first one they went to was full and so they drove on, and while they were on their way to another, plaintiff was injured. Of course, as was held in Chicago Consolidated Bottling Co. v. McGinnis, 86 Ill. App. 38, if a servant, in driving his-master’s vehicle on his master’s business, chooses an indirect route, even for some purpose of his own, and is yet engaged in performing the master’s work in such indirect manner, the master may still be liable. But the evidence submitted by the defendant, to meet the legal presumption, with the help of which plaintiff had established his prima facie case, showed clearly, in my opinion, that this is not a case in which the servant went in a roundabout way to perform his master’s business. Fotre and Dominick were using the truck in the course of their own affairs solely, when they ran into the plaintiff, and they had been so engaged for some time before that.

In my opinion the facts established by the evidence in the case at bar make it a stronger case for defendant than any of the cases of Orr v. Thompson Coal Co., 219 Ill. App. 116 (opinion by Mr. Justice Heard, now a member of our Supreme Court); Cohen v. Fayette, 233 Ill. App. 458, decided by the second division of this court, in which the Supreme Court denied certiorari (after which, the order of reversal in this court was changed to one reversing and remanding); Szszatkowski v. Peoples Gas Light & Coke Co., 209 Ill. App. 460; or Navratel v. Curtis Door & Sash Co., 214 Ill. App. 627, the latter affirmed by our Supreme Court in 290 Ill. 526, in all of which it was held the master could not be held liable because, at the time the injuries there involved were inflicted, the servant had departed from the performance of his master’s business and was engaged in the pursuit of his own affairs.

This is not a case where the evidence, submitted by the defendant to meet the prima facie case established by the plaintiff, is a denial of evidence which went to make the plaintiff’s prima facie case. That prima facie case on the real issue between the parties was made out by a legal presumption which arose as a result of the facts of ownership of the truck and employment of Fotre, which facts were not controverted. And the evidence, submitted by the defendant to overcome that legal presumption, stands in this record without contradiction. In that situation, what our Supreme Court said in Shannon v. Nightingale, 321 Ill. 168, in my opinion, does not apply. As the record stood in the case at bar, at the close of all the evidence, I am of the opinion the trial court erred in denying defendant’s motion for a directed verdict.

But even if it should be considered that what the Supreme Court said in the Shannon case does apply to the facts involved here, I am further of the opinion that the verdict and judgment for the plaintiff are against the manifest weight of the evidence. As already noted, the evidence as to the doings of Fotre and Dominick, up to the time plaintiff was injured, stands in the record without contradiction. The plaintiff contends that as Fotre was contradicted as to the direction he was driving his truck on Wahash Avenue when he turned into Twenty-Second Street, his story as to what he had been doing since leaving the defendant’s plant, was for the jury, and that the jury would be justified in refusing to believe that story as it was not corroborated by other credible evidence. But there was evidence of other circumstances, which did corroborate Fotre’s story as to what he had been doing between noon and 3:15 o ’clock. That there was a lot of wood at the defendant’s plant, the refuse from some remodeling work that had been done, which defendant was glad to get rid of and which the men were at liberty to take, much of which they had taken away in defendant’s trucks at different times, is not contradicted. That Fotre had been doing something beside driving his truck to the garage, between the time he left defendant’s plant about noon and the time he ran into the plaintiff on Twenty-Second Street just around the corner from Wabash Avenue, about 3:15 o’clock, is certain. And that he had been where he had some drinks is also certain. There is nothing about Fotre’s story that makes it incredible as counsel for plaintiff contend. On the contrary, it seems quite the opposite. The question of whether the truck was being driven north or south on Wabash Avenue, when it turned into Twenty-Second Street, is quite immaterial. Even if it was being driven south, it was not on the way to the garage as plaintiff attempts to make out. The uncontradicted evidence is that Fotre and Dominick were trying to find a barber shop where they could get shaved without waiting. In so doing they were not acting within either the real or apparent scope of their employment or their employer’s business.

The liability of a master for the consequences of the negligent acts of his servant is a vicarious one, and the law prescribing the limits of that liability are well established. By a long line of decisions in this State and in other jurisdictions, it has come to be the law that the doctrine of the liability of the master for the wrongful acts of his servant, is predicated upon the ■maxims “respondeat superior” and “qui facit per alium, facit per se.” It rests upon the doctrine of agency. The universal test of the master’s liability is whether there was authority, express or implied, for doing the act; that is, Was it done in the course and within the scope of the servant’s employment? If it be done in the course of and within the scope of the employment, the master will be liable for the act, whether negligent, fraudulent, deceitful, or an act of positive malfeasance. But a master is not liable for every wrong which the servant may commit during the continuance of the employment. The liability can only occur when that which is done is within the real or apparent scope of the master’s business.

Applying the law as thus laid down to the facts presented in this case, I am unable to concur in the decision as announced in the foregoing opinion. I do not disagree with what is said in that opinion on the question of the amount of the damages and the action of the trial court in permitting the X-ray plates to go to the jury, but, on the merits, under the law as applied to the facts which are not disputed in the record, I am of the opinion that the defendant is not responsible in damages for the injuries caused to the plaintiff by the servant’s negligence, as the latter is clearly shown not to have been acting within the course of his employment when the plaintiff received the injuries complained of.


text:
    The People of the State of Illinois, Defendant in Error, v. Ernest J. Ross, Plaintiff in Error.
    Gen. No. 30,852.
    1. Cbiminal pbocedube — sufficiency of evidence, in prosecution for misdemeanor, to show defendant not “usually and publicly” resident of State after date of offense. Evidence in a prosecution for assault with a deadly weapon with intent to inflict bodily injury, under an indictment returned more than three years after the alleged offense, held sufficient to support an allegation thereof that the defendant was not “usually and publicly a resident within the State of Illinois” after the date of the alleged offense.
    2. Cbiminal pbocedube — propriety of instruction stating statute penalty authorised to be imposed by court in event of conviction. In view of Cahill’s St. ch. 38, If 764, providing that in all criminal cases the jury are the judges of the law and the fact, it is not reversible error for the court, in a prosecution for assault with a deadly weapon with intent to inflict bodily injury, to charge the jury substantially in the language of Cahill’s St. ch. 38, If 37, which denounced the offense in question, although such statute stated the penalty which could be imposed by the court in the event of defendant’s conviction.
    3. Cbiminal pbocedube — when testimony as to statement by victim of assault identifying defendant as assailant properly admitted. In a prosecution for assault with a deadly weapon with intent to inflict bodily injury it was not error to permit witnesses to testify as to a statement made by the victim of the assault, while he was on the operating table at a hospital within half an hour after the alleged offense, to the effect that defendant was the man who had shot him.
    4. Assault and battery — sufficiency of evidence to support finding that defendant was the guilty person. Evidence in a prosecution for assault with a deadly weapon with intent to inflict bodily injury held to justify a finding that, beyond a reasonable doubt, defendant was the man who committed the offense charged.
    Error by defendant to the Criminal Court of Cook county; the Hon. Emanuel Elleb, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed October 13, 1926.

      Everett Jennings and John F. Tyrrell, for plaintiff in error.
    Robert E. Crowe, State’s Attorney, for defendant in error; Edward E. Wilson and Clarence E. Nelson, Assistant State’s Attorneys, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

On July 14, 1925, a jury in the criminal court of Cook county returned a verdict finding the defendant guilty of assault with a deadly weapon as charged in the second count of the indictment, and that the assault was committed with an intent to inflict upon the person of another a bodily injury. After overruling the motion for a new trial the court sentenced the defendant to confinement in the house of correction for six months and a fine of $100 and costs amounting to $317.90 was imposed.

On January 31, 1923, the Grand Jury returned an indictment against the defendant which contained two counts. The first charged that the defendant on August 22, 1919, committed an assault with intent to murder one Frank E. Rhode, and the second count charged that the defendant committed an assault with intent to inflict bodily injury upon Rhode. Each count alleged that the defendant since the 22nd of August, 1919, “was not usually and publicly a resident within the State of Illinois.”

The People offered evidence to the effect that about one o ’clock in the morning of August 22, 1919, Frank E. Rhode, who was a motor cycle policeman for the city, was on duty near the northwest corner of Kedzie Avenue and Lake Street, Chicago, Lake Street runs east and west and Kedzie Avenue north and south. There is a double line of street car tracks in Lake Street, and while Rhode was standing near the northwest corner of the street intersection, he saw two automobiles, one behind the other going east in Lake Street in the eastbonnd track. One automobile was towing the other. After they had passed, Rhode saw that the rear automobile did not have any lights and that they did not stop at the boulevard. Rhode thereupon mounted his motor cycle and drove east after the two automobiles and called to the driver who was in the front automobile to stop. There were two men in the driver’s seat. The two automobiles came to a stop and officer Rhode dismounted from his motor cycle and he was adjusting it on its stand when one of the men from the automobile shot Rhode three times with a pistol. Rhode was struck once in the left shoulder and twice in the calf of the leg. The assailant then turned around and ran in front of the automobiles and turned west in Lake Street pursued by officer Rhode. Other police officers came to his assistance. Two men ran from the automobiles, one toward the northwest of the street intersection and jumped over a fence into a vacant lot. When Officer Rhode had pursued this man to the fence he apparently became weak from wounds and was taken by another officer to a hospital. Other officers went through the hole in the fence and searched through the grass and weeds that were growing in the lot and found the defendant lying on his face with a German Lueger gun in his hand, or by his side. They placed him under arrest. About a half an hour after the shooting, the officers that arrested the defendant learned that Rhode had been taken to a nearby hospital, and they took the defendant to the hospital for the purpose of having Rhode identify him. When they entered the hospital Rhode was on the operating table and the surgeon was just about to perform an operation. When the defendant was brought in Rhode raised up from the operating table, looked at the defendant and said: “That is the son of a bitch that shot me.” The defendant said nothing and was immediately thereafter taken to the police station.

The People also offered evidence that the defendant was not publicly a resident of the State since the 22nd of August, 1919. The only evidence offered on behalf of the defendant was that given by Otto Marosek, who testified that he was a gun mechanic employed by Yon Lengerke & Antoine, who were engaged in the selling of sporting goods in Chicago which included guns and ammunition; that he had been a mechanic for about 15 years and was familiar with the various foreign makes of guns and revolvers; that he was familiar with the German type of gun called Lueger; that it carried eight bullets or shots, and that when a shot is fired the shell is ejected automatically; that it was not possible to put eleven bullets or shots in such a gun; that eight was all it would hold. This evidence was offered to dispute that offered on behalf of the. People to the effect that the defendant had fired three shots, and the police officers testified that they examined the gun when they captured the defendant in the vacant lot and that the gun then contained eight bullets. A reading of the testimony in the record given by the witness Marosek does not convince one that he was an expert gun mechanic, or that he was familiar with the various foreign makes of guns and revolvers as he testified when he was being qualified.

The defendant contends that the State wholly failed to prove the allegation of the indictment, that the defendant was not usually and publicly a resident of the State, and that since the defendant was found guilty of a misdemeanor, which was barred in 18 months under the statute, and since he was not indicted for more than three years after the act was committed, the judgment must be reversed. While the testimony given by the several witnesses on this question, called on behalf of the State, and that is the only evidence in the record, is not specific at all times, yet we think it is sufficient to sustain the allegation of the indictment. Five officers on behalf of the People testified on this point. Three officers testified that they had been assigned to the Warren Avenue and Des Plaines Street stations and had been performing their duties at these stations as police officers and had not seen the defendant from September, 1919, to March, 1923. Officer Freemuth testified that between 1918 and 1919 he saw the defendant two or three times a week in the neighborhood of Madison, Paulina and Wood Streets (which is on the west side of the city and where the Warren Avenue and Des Plaines Street stations are located) but that he had not seen the defendant since September, 1919, until March or April, 1923.

Defendant further contends that the court erred in instructing the jury concerning the penalty in the event of conviction under the second count of the indictment since the jury had nothing to do with the fixing of the punishment, and in support of this contention the case of People v. Johns, 190 Ill. App. 367, is cited. There is but an abstract of the opinion in the printed report of that case, but since the filing of the briefs we have been furnished with a copy of the opinion by the State’s attorney of Cook county. A reading of the opinion discloses the fact that the judgment in that case was reversed for a number of reasons. And all that is said in the opinion on the point in question is: “The court in instructing the jury told them what the penalty was for the offense charged. That was a matter with which the jury had nothing to do.” Whether the instruction in that case merely told the jury what the penalty was without quoting the statute defining the offense we are unable to say. But in the instant case the instruction complained of is substantially a copy of paragraph 37, ch. 38, Cahill’s Statutes, which defines assault with a deadly weapon and provides a penalty for such offense. That paragraph is as follows : “An assault with a deadly weapon, instrument or other thing, with an intent to inflict upon the person of another a bodily injury, where no considerable provocation appears, or where circumstances of the assault show an abandoned and malignant heart, shall subject the offender to a fine not exceeding $1,000 nor less than $25, or imprisonment in the county jail for a period not exceeding one year, or both, in the discretion of the court.” We think the giving of this instruction was entirely proper. Whatever may be the law in other States, in this State the statute expressly provides (section 11, div. 13, ch. 38, ft 764, Callaghan’s Illinois Statute) that the jury in all criminal cases are the judges of the law and of the fact. And in construing this section, the Supreme Court held in Wohlford v. People, 148 Ill. 296, that the principles of law involved in a criminal case might be discussed in argument to the jury, and that the law as laid down in cases reported by courts of last resort, as well as that of standard authors, might be read to the jury. Under this statute and the authorities cited, it is obvious that counsel for the People, as well as counsel for the defendant, are authorized to read to the jury these statutes covering the offense with which defendant is charged, and obviously the court is authorized to tell the jury in an instruction what the statute is. The Appellate Division of the Supreme Court of New York held that it was not error for the court to instruct the jury as to the penalty prescribed by the law, where in doing so he called attention to the law as passed by the legislature. People v. Canepi, 93 App. Div. 379, 87 N. Y. S. 773. In that case the defendant was being prosecuted for the violation of a statute of New York which prohibited pool selling. The court stated in the presence of the jury the penalty prescribed by the statute, and in discussing the case, Judge Bartlett, who wrote the opinion of the court, said (p. 775):

“It is not suggested that the final statement of the learned county judge as to the penalty prescribed by law was incorrect, but it is argued that it was error to give the jury any instruction whatever as to the punishment; the idea apparently being that they may have been influenced to convict by the impression that the district attorney would ask for only a light sentence. This view strikes me as rather fanciful. I can hardly see how this jury can have been misguided by being told simply what were the possible consequences of a conviction at their hands. * * * And I cannot assent to the doctrine that it is legal error to tell a jury what the Legislature has put into the statute book in reference to the punishment of the very crime of which they are called upon to take cognizance. ’ ’

The defendant further contends that the court erred in permitting witnesses to testify, over objection, to the statement made by Rhode that the defendant was the man who shot him, while Rhode was on the operating table at the hospital, and in support of this it is said that the defendant was not called upon to deny the statement made by Rhode, there being a number of police officers present at the time together with doctors and nurses, and that the defendant was not given ample time as he was hurried out of the room as soon as Rhode had made the charge. The testimony of identification in this case was important, since we gather from counsel’s brief, at least by inference, that he contends the defendant was not the man who did the shooting, but that the police had arrested the wrong man. The evidence showed that about 30 minutes after the shooting occurred and while Rhode was on the operating table at the hospital, the defendant was brought into the operating room for the purpose of identification; that immediately upon seeing him, Rhode stated that the defendant was the one who had shot him. The defendant made no reply as a person would ordinarily be inclined to do if not guilty of the charge made. We think the evidence was competent. People v. Harrison, 261 Ill. 517; People v. Nitti, 312 Ill. 73.

It is finally argued by defendant’s counsel that the evidence is not sufficient to support the verdict and the judgment, for the reason that the evidence does not show that the defendant was the person who shot Rhode. We have carefully considered all the evidence in the record on this subject and are of the opinion that it justifies the finding that the defendant was the guilty person beyond a reasonable doubt. The witnesses described the size of Rhode’s assailant and the way he was dressed; that immediately after the shooting he ran around the automobile, across the street, through a hole in the fence and into a vacant lot. Two officers followed the defendant into the lot and a few minutes afterwards found him lying upon his face on the ground endeavoring to hide in the weeds and bushes there growing, and that he had a gun in his hand. Thirty minutes later he was positively identified by Officer Rhode while he was on the operating table at the hospital. This is all the evidence in the record and there is none to the contrary.

The judgment of the criminal court of Cook county is affirmed.

Affirmed.

Taylor, P. J.-, and Thomson, J., concur.


author: Mr. Justice Thomson

text:
    Butterick Publishing Company, Defendant in Error, v. S. Goldfarb, trading as Maywood Dry Goods Store, Plaintiff in Error.
    Gen. No. 30,882.
    1. Calendas — duty of clerk on transferring cause to succeeding calendar. Where the clerk included in the May calendar a cause on the November calendar preceding which had been marked for trial but which had not then appeared on any trial call, it was his duty to strike the cause from the November calendar.
    2. Judgments — relief from default due to omission of clerk of court in making up calendar. Where judgment by default was taken in defendant’s absence, and his failure to appear was due to the failure of the clerk to strike the cause from the November calendar, on no trial call of which the cause had appeared up to the time it appeared on the first call of the May calendar, it was error, in view of Cahill’s St. ch. 110, It 19, and Rule 18 of the county court, to deny defendant’s motion in the nature of a writ of error coram nolis under Cahill’s St. ch. 110, 1f 89, to vacate the judgment, appropriate supporting affidavits having been filed.
    Error by defendant to the County Court of Cook county; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Reversed.
    Opinion filed October 13, 1926.
    Royal J. Schmidt and William N. Brady, for plaintiff in error.
    Jesse Wilcox, for defendant in error.
   Mr. Justice Thomson

delivered the opinion of the court.

By this writ of error, the defendant Goldfarb seeks to reverse an order denying a motion to vacate a judgment for $381.78, recovered against him in the county court of Cook county by the plaintiff company. The plaintiff’s action was an action in assumpsit. Summons was duly served to the November, 1921, term and the defendant filed his appearance and plea to the merits.

A calendar of cases pending in the county court was made up in November and this case appeared on that calendar as case No. 761. The next calendar of cases pending in the county court was made up in May and upon it appeared all the cases pending in the court at the beginning of the May term, which was May 6. At the time the May calendar was made up the case at bar had been reached on first call on the November calendar and had been marked for trial but it had not appeared on any trial call. When the May calendar . came out this case appeared on that calendar as case No. 452a. The court announced a first call from the May calendar on May 29, but it is not clear just when that first call actually took place. This case was included on the trial call in the county court on May 31, and not being reached was carried over, from day to day, until it was reached on June 2,1922, when a jury was impaneled and, no one appearing for the defendant, the plaintiff’s evidence was presented and a verdict returned for the plaintiff, on which judgment was entered.

After the expiration of the judgment term, counsel for the defendant learned that the case had been presented to a'jury and a verdict returned and judgment entered. Apparently some negotiations took place, which came to naught, and in November, 1922, the defendant made a motion to vacate the judgment under section 89 of the Practice Act [Cahill’s St. ch. 110, ft 89]. Counsel for the defendant submitted his affidavit in support of the motion, to which counsel for the plaintiff submitted a counter-affidavit. In reply to the latter, counsel for the defendant submitted another affidavit.

In his original affidavit counsel for the plaintiff, in addition to certain facts which we have recited above, alleged that the defendant had a good and meritorious defense upon the merits, which defense was set out in the affidavit; that he had diligently watched the calendars of cases pending in the county court so as to be advised of the appearance of the cause on the trial call and be ready for trial when the case was reached; that when the May calendar was issued by the clerk of the county court, he relied upon that calendar and the rules of the court, providing for the first call of cases, in groups of not to exceed 100, for the purpose of ascertaining which of them were ready for trial, and the further provision of Rule 18, to the effect that “Causes are called for trial in their order upon the calendar.” It was further set forth in this affidavit submitted in behalf of the plaintiff that a first call of 100 cases from the May calendar was announced on May 29; and that up to the time of the filing of the affidavit, no case beyond calender No. 300 had been reached on first call from the May calendar and no case beyond calendar No. 150, had been placed on the trial call from said calendar; and that the failure of the defendant to appear in court ready for trial at the time the case was heard and judgment entered on June 2, was due to counsel’s reliance upon the May calendar.

The affidavit submitted in reply by counsel for the defendant set up matters to which we have already referred, and in addition, certain things which took place following the entering of the judgment on June 2.

In our opinion the trial court erred in denying the motion of the defendant to vacate the judgment. When the calendar of cases pending in the county court on the first day of the May term appeared during that month and the case at bar appeared on that calendar as No. 452a, said case never having been reached for trial on the previous calendar, although it had been reached on first call and marked for trial, we are of the opinion that it was thereafter not proper to call the case for trial except in its order as it appeared on the May calendar. Under Rule 18 of the county court cases are to be called for trial in their order on the calendar. Certainly, when the county court announced a first call of 100 cases from the May calendar on May 29, all parties having cases on that calendar would be justified in believing that the court from that date on would call the cases pending in the court for trial from that calendar. No one should be burdened with watching the same case on two calendars. After the first call of 100 cases from the May calendar was announced, counsel were justified in disregarding any calls that had been made on the November calendar previous to that time, unless a case had been called on the November calendar and had been reached for trial.

In passing upon the provisions of section 14 of the then Practice Act, which were similar to the provisions of section 19 of the present Practice Act [Cahill’s St. ch. 110, [[19], this court said in Brady v. Washington Ins. Co., 82 Ill. App. 382, that litigants and their attorneys have a right to rely upon the printed calendars issued by the courts, containing lists of the cases pending in such courts. On the authority of that case as well as Silverman v. Childs, 107 Ill. App. 522; Beveridge v. Hewitt, 8 Ill. App. 467 (which we consider in point although it involves a somewhat similar situation arising in a chancery case), and Holbrook v. Lawton, 207 Ill. App. 497, we are of the opinion that when the first call of 100 cases was announced, from the May calendar, the case at bar never having appeared on a trial call from a previous calendar should have been stricken from such previous calendar by the clerk, and that his failure to so strike the cause from the November calendar was such a default as furnishes one of the recognized grounds for relief by a motion in the nature of a writ of error coram nobis, where the default leads “to such action as the court would not have taken had the default not occurred.” As pointed out in the last case cited, the tendency of our law is to allow a motion under section 89 [Cahill’s St. ch. 110, [[89], whenever it is obvious that the action of the court was based upon the fault, either of omission or commission, of the clerk of the court.

For the reasons we have stated, the order of the county court appealed from is reversed.

Order reversed.

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