author: Per Curiam.

text:
    Irwin C. Johnson, Appellant, v. John Englehardt, Appellee.
    Gen. No. 8,268.

      Opinion filed February 3, 1930.
    Rehearing denied April 4, 1930.
    Green & Palmer, for appellant; Henry I. Green, George E. Martin and Oris Barth, of counsel.
    Schaefer & Dolan and Boyer & Leonard, for appellee.
   Per Curiam.

Appellant filed his suit in the Champaign county circuit court against appellee to recover damages for personal injuries. Upon the proofs presented the following state of facts developed:

Appellant was assisting in replacing and relaying street car tracks on Neil Street in the City of Champaign, where that street intersects and crosses Clark Street. Neil Street is one of the principal business streets of the City of Champaign, and runs north and south. Clark street is an intersecting street running east and west.

The injury to appellant occurred September 15,1927. Across the intersection of the two above-mentioned streets, a barricade had been constructed on the west side of the street car tracks extending in a northerly and southerly direction. That portion of the street occupied by the rails of the street car track was paved in brick, and the brick extended for a distance of 16 inches on each side outside of the rails. From, there on to the curb on each side the pavement was concrete. From the rail to the curb line on Neil Street where the injury occurred, the distance is 21 feet 6 inches. The barricade consisted of two boards supported by a carpenter’s horse. This barricade stood at the edge of the concrete pavement 16 inches from the rail and the spread of the legs of the carpenter’s horse, which formed a part of the barricade, was 32 inches, making the portion of the street from the outside of the rails to the westernmost edge of the barricade a distance of 48 inches. This barricade was painted white and in reality consisted of two barricades, each 16 feet in length, with a space of about 3 or 4 feet between, and the top of the barricade standing about 4 feet from the level of the pavement. There was a red flag at each end of the barricade and bright flambeau torch lamps painted red and yellow were also at each end, but were not lighted. The workmen had torn out the brick between the rails of the street car tracks for a portion of the distance between the intersection of Neil and Clark Streets, but not to the south curb line of Clark Street. The south end of the barricade was about 6 or 7 feet from the south curb line of Clark Street. Each morning a section of brick was taken up between the rails and piled on the side of the track, and then the sand and refuse remaining were shoveled into a wheelbarrow and hauled away, and appellant was engaged in hauling away this refuse in a wheelbarrow at the time he was struck.

At that time he was just a short" distance south of the barricade, about 6 or 7 feet, with his wheelbarrow resting on the sixteen-inch space occupied by the brick between the outside of the west rail of the street car track and the concrete pavement to the west. The wheelbarrow had been loaded and he had just reached down and taken hold of the handles when he was struck by an open door of the automobile being driven south down Neil Street by the appellee.

The place of the injury was in a closely built-up business section of the City of Champaign. Appellee had driven an automobile for 16 years in and about Champaign and had lived in Champaign about 26 years, and was familiar with the conditions ■ on Neil Street. He.testified that he looked down Neil Street that day and saw this barricade, but does not know whether he noticed the red flag or not, but says that he saw the men working in the street, and the track torn up, and this wheelbarrow and the man with the wheelbarrow. He says that he increased speed until he got to the barricade, and then kept up the same speed, kept going in a straight line down Neil Street without turning to the right or left, and that there was plenty of room for him between the barricade and any cars parked between Clark and White Streets. White Street was the next street south of Clark intersecting Neil. He says that he knew all the time that the men were working on Neil street, knew it that morning when he went downtown, and knew it all day.

An I. P. & L. bus had passed down Neil Street a few moments ahead of appellee’s car. The bus was 7 feet 10 inches wide.

J. W. Raney testified that the defendant’s car came from the north and got to the end of the barricade and in place of going straight, swung in to the east and hit appellant with the open door of his car, and that after he passed appellant he then swung back west. He further testified that appellant’s car was going between 20 and 25 miles an hour.

Walter Ball, another workman, testified that the defendant’s car was running 25 to 30 miles an hour. T. C. Redenbaugh, also working at the place of the injury, testified that in his opinion the defendant’s automobile was traveling between 20 and 25 miles an hour.

Other witnesses testified that appellee, after reaching the end of the barricade, swerved his car to the east and struck the appellant, the left rear door of the car being open and swinging, and that then appellee turned the car again to the west.

Knowing of the work being done on the street, of the presence of this barricade and of the workmen in the street, the testimony for appellant was that appellee drove his automobile down the street iñ a closely built-up business section at a rate of 20 to 30 miles an hour, with the door open; that appellee suddenly swerved his car toward the track and in an easterly direction at the end of the barricade, struck the appellant and then proceeded on down the street 75 or 100 feet before he stopped his automobile and closed the car door.

Appellee admitted that his car door was open; that he got out and closed it after passing the barricade, and that after striking appellant he did not go back. He said he did not know that he had struck anybody; that he couldn’t remember whether or not he had testified in a proceeding in which the accident was involved before Magistrate James in Champaign on September 28 previous. He further said that he did not remember whether he testified before Magistrate James that he heard something hit his car as he passed the man with the wheelbarrow at the time and place in question. However, J. W. Raney testified that he was present at said hearing before Magistrate James and that appellee was there, was sworn and testified, and that appellee stated in substance that as he went by this barricade and this man with a wheelbarrow he did hear something hit the car.

Appellant’s declaration contains seven counts. The first count charges a simple assault with force and arms, etc.; that the appellant assaulted appellee with great force and in wilful violation of section 22 of the “Motor Vehicle Law,” Cahill’s St. ch. 95a, ¶ 23, drove a certain automobile, etc., upon a certain highway in the City of Champaign, where said public highway passes through a closely built-up business portion of the incorporated City of Champaign, at a speed greater than Avas reasonable and proper, having regard to the traffic and use of the way and at a rate of speed exceeding 10 miles per hour, to wit: at a rate of speed of 30 miles an hour, and that said driving, in the manner, etc., constituted an unlawful act on the part of appellee, and in the doing of said unlawful act, while driving said automobile, appellee, with great force and violence, did drive the said automobile against and upon appellant and then and there, Avith said automobile, violently struck appellant and knocked him down, etc., causing the injury, etc.

The second count charges the assault and striking of appellant Avith the automobile, etc., in similar language as set out in the first count, but omits to charge that the assault was made by appellee while engaged in the commission of an unlawful act. Both the first and second counts aver that the assault was made “against the peace of the People and to the damage,” etc.

The third to the sixth counts set out charges of negligence, injury and damage and the seventh count charges that appellee was driving in a negligent, careless and reckless manner, and at a dangerous and negligent rate of speed and that appellee did then and there negligently, carelessly, wantonly and Avilfully drive the said motor vehicle upon and against appellant, who was during all of said time in the exercise of due care and caution for his own safety, etc., Avith the other charges of injury, damage, etc. Appellee filed a plea of the general issue and there was a trial by jury. At the close of the appellant’s proofs, on the motion of appellee, the court Avithdrew from the jury all consideration of the case under the first, second and seventh counts of the declaration. There was a verdict for appellee, motion for new trial made and overruled and judgment for appellee in bar of the action. The record is brought to this court by appeal, for review.

It is contended by appellant that it was error for the court to withdraw from the consideration of the jury the first, second and seventh counts in the declaration in view of the testimony submitted to the jury. The first and second counts charged an assault and battery while engaged in the commission of an unlawful act, and cited: 2 Am. and Eng. Ency. of Law 953, 954; 5 Corpus Juris, 622; Land v. Bachman, 223 Ill. App. 473; Little v. Munson, 54 Ill. App. 437, 439; Nicholls v. Colwell, 113 Ill. App. 219, 222; Shanley v. Wells, 71 Ill. 78, 81; Paxton v. Boyer, 67 Ill. 132 and Schmitt v. Kurrus, 234 Ill. 578, 582.

It is contended by appellant that appellee at the time and place of the injury, was engaged in the commission of an unlawful act in the violation of section 22 of the Motor Vehicle Act, Cahill’s St. ch. 95a, H 23, in reference to speed, and that appellee would be liable, even if there was an entire absence of intent to do any injury. Upon a full examination of the cases, we cannot agree with appellant’s contention in this case for two reasons: first, the rate of speed of appellee’s automobile was not, in any sense, the cause of the injury. The car running at 10 miles an hour under the same circumstances would have effected the same injury. The basis of the count is that appellee, after passing the barricade, swerved his ear to the left and struck appellant. Appellee cannot be charged with commission of any unlawful act under the first and second counts to relieve appellant from the proof of malice except upon proof of an unlawful act which is the direct cause of the injury; and second, in assault and battery, malice is the gist of the action and must be proven by plaintiff, or the plaintiff must prove that the defendant committed the assault while engaged in the commission of an unlawful act, which was the direct and proximate cause of the injury. (5 Corpus Juris, 622; Paxton v. Boyer, 67 Ill. 132, 135; Shanley v. Wells, 71 Ill. 78; Gilmore v. Fuller, 198 Ill. 130,143; Schmitt v. Kurrus, 234 Ill. 578; Razor v. Kinsey, 55 Ill. App. 605; Nicholls v. Colwell, 113 Ill. App. 219; Amborn v. Smyser, 182 Ill. App. 208; Land v. Bachman, 223 Ill. App. 473.)

There is some conflict in the authorities and the rule is to be determined by a consideration of all the cases. In 5 Corpus Juris, supra, the author lays down the rule:

“While there is some apparent conflict in the eases as to whether the existence of malice or a specific wrongful intent to injure is essential to the maintenance of a civil action for assault and battery, the true rule is that intent is the gist of the action only where the battery was committed in the performance of an act not otherwise unlawful; or, as it is sometimes stated, there is no assault and battery unless the touching was with the intent to injury, or unless the defendant was otherwise engaged in a trespass or other unlawful transaction at the time of the act complained of. . . . If. the defendant did an illegal or mischievous act, which was likely to prove injurious to another, he is answerable for the consequences which directly and naturally resulted from his conduct, even though he did not intend to do the particular injury which followed. . . . and it has been held that a physician who skillfully performed an operation to the benefit of his patient was liable to her in assault and battery where it was performed without her consent and not in pressing emergency.”

The author states the rule and cites Hitzelberger v. Kanter, 181 Ill. App. 459; Nicholls v. Colwell, supra; Paxton v. Boyer, supra; Schmitt v. Kurrus, supra; Shanley v. Wells, supra.

In Gilmore v. Fuller, supra, it was held that “the intention to do harm is of the essence of an assault,” and in Razor v. Kinsey, supra, it was held that “ ‘It was not necessary in order to constitute an assault and battery that the defendant below should have touched the child with his hands or other part of his person. It is enough that he wilfully set a force in motion which caused the injury as an immediate result’; citing many authorities. Wilfulness, or intention on the part of the defendant to do the injury to the person of the party injured, is held to be essential to the establishment of liability of the defendant in an action of trespass for an assault and battery, and malice or wantonness besides, to an allowance for vindictive damages. There may be trespass to the person and liability for the actual damage, without intention to commit it, but not an assault and battery.’’

In Amborn v. Smyser, supra, it is held that “The intention to do harm is the essence of an assault.” From these cases we gather that there is a distinction made by the courts between a civil suit for damages, based upon assault and battery, and other civil suits for damages, based upon trespass on the case. This is accentuated by what the court said in Enochs v. Trevett, 229 Ill. App. 235, 242, and O’Donnell v. Snyder, 231 Ill. App. 581, 584, referring to Land v. Bachman, 223 Ill. App. 473. Land v. Bachman, supra, is cited by appellant as an authority in this case that the court was in error in withdrawing said counts from the consideration of the jury. But the cases differ in this respect, that in Land v. Bachman, supra, the pleader did charge that the assault and battery was the direct result of the unlawful act in which the defendant was said to be engaged, and the court held:

“A criminal offense consists in a violation of public law, in the commission of which there shall be a union or joint operation of act and intention or criminal negligence. Where a battery is the result of criminal negligence, the wrongdoer is guilty of assault and battery the same as if the battery was intentionally committed. Section 280, ch. 38, Rev. St. Ill. (Cahill’s Ill. St. ch. 38, ¶ 617.) ”

We quite agree with appellee’s contention that section 36 of the Practice Act, Cahill’s St. ch. 110, ¶ 36, abolishing distinctions between actions of “trespass” and “trespass on the case, ’ ’ has not modified the fundamental law applicable to the two distinct forms of action, and that the distinction between negligence and wilfulness is fundamental. The section may modify somewhat the form of pleading. In the proofs it is uncontradicted that in driving the car appellee did not know the door of the car was swinging open until after it had struck appellant. Appellee did not know appellant. Had the door of the car been closed there could have been no injury. No other fact or circumstance is shown tending to show malice or a wilful and wanton injury. Under this testimony, the first, second and seventh counts of the declaration could not be supported and the court did not err in withdrawing these counts from the consideration of the jury.

Appellant assigns error that the verdict and judgment are against the manifest weight of the testimony. It is undisputed that appellee drove his car down Neil Street at whatever rate -of speed the car was traveling, with the left rear door open, swinging backwards and forwards. The great weight of the testimony was that in the closely built-up business district of the City of1 Champaign appellee was driving his car at a speed of from 20 to 25 miles an hour, and there was much testimony tending to show that appellee, after passing the barricade, swerved his car in- towards appellant. However, appellee does not dispute the salient facts which constitute negligence. It was negligence on the part of appellee, in view of all the surrounding circumstances, to drive the car at all upon a busy street of the city with the rear door swinging open, and assuming that app ellee was driving at the rate of speed which he testified he was driving, with the door swinging, appellee was driving “at a high, dangerous and negligent rate of speed and in a careless and negligent manner for the safety of others, then and there lawfully being upon said street,” as charged in the declaration, and if the proofs show that appellant was in the exercise of ordinary care for his own safety, at the time of and just before the injury, the verdict and judgment were against the manifest weight of the testimony. As to just what appellant was doing at the time of the injury the witness Baney testified: “The pavement on Neil Street is concrete with brick between the rails of the street car track and extending out from the rails about 16 to 18 inches. The barricade sat on the concrete, with the outer legs between 30 and 32 inches west of the east edge of the concrete pavement on the west side of the track. There was a red flag and then a flambeau torch light north of the barricade placed as a sign of warning. The flambeau was painted red at the bottom and yellow at the top, but was not lighted. On the south end of the barricade there was a little flag and two lamps. We had torn out all between the rails and the concrete and in between the rails of the track for about 36 or 37 feet, a little longer than the barricade there for the full width of Clark Street. The barricade didn’t quite reach across Clark Street—lacked a little bit of going to the south edge of it. The south end of the barricade was about six or seven feet from the south curb line of Clark Street near the telephone building. Mr. Johnson had just gotten in between the handles of a wheelbarrow wheeling out rubbish and cleaning up. The wheelbarrow was setting in the space there where the 16 or 18 inches of brick lay, and he went to get in between the handles, just went to stoop down to take hold of the handles and Mr. Englehardt came along and slapped him with the open door of his car. Mr. Johnson was in the neighborhood of six or seven feet south of the south end of the barricade, and was standing on the 16-inch space occupied, by the brick. There was a red flag about six or seven feet behind him at the end of the barricade. The car came from the north, come right straight on down south and got to the end of the barricade and in place of going straight there swung in and hit Johnson with the door and it open. He swung east, then when he got past Johnson, he swung back west.”

This testimony was corroborated by other witnesses and was not contradicted. Appellant was working within a zone about which due care and caution had been used to protect the laborers therein. Appellant was just stooping down to pick up the handles of his wheelbarrow ; he was engaged in his work and was within a “protected zone,” and he was not paid to be looking-for cars, but was fully protected from all drivers using the street in an orderly and lawful manner. The proofs show that appellant was in the exercise of due care and caution for his own safety. It follows that the verdict and judgment were against the manifest weight of the testimony, and the judgment of the circuit court of Champaign county is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mb. Pbesidisg Justice Barnes

license: Public Domain

text:
    Sol Segal, a Minor, by David Segal, his Next Friend, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 33,825.

      Opinion filed March 11, 1930.
    James 0. McShase, for plaintiff in error.
    Brows, Fox & Blumberg, for defendant in error; Fbask L. Kriete, Charles LeRoy Brows and Abe R. Petersos, of counsel.
   Mb. Pbesidisg Justice Barnes

delivered the opinion of the court.

By this writ, plaintiff below, a minor, seeks the review of a judgment against him in a tort action brought to recover for the personal injuries he received from his being struck by defendant’s street car.

On the first trial of the cause there was a'judgment in his favor. On appeal therefrom (in 1918) we filed an opinion reversing the same and holding that the verdict was against the manifest weight of the evidence as to defendant’s negligence. We allowed a rehearing and reached the same conclusion, and reversed the judgment without remanding the cause. (216 Ill. App. 11.)

Some years later, in 1924, the Supreme Court in Mirich v. Forschner Contracting Co., 312 Ill. 343, held that the statute authorizing this court to render a final judgment on reversal, required a remandment of the cause in a jury case. Thereafter this cause was carried to the Supreme Court on a writ of error, and, under the ruling in the Mirich case, the cause was sent back here for reconsideration. (325 Ill. 43.) On reconsidering the same we reached the same conclusion of fact, and on reversing the judgment remanded the cause for a new trial. (245 Ill. App. 622.)

On the second trial the verdict of the jury was ' against plaintiff and thus in harmony with our previous findings of fact. It is now plaintiff who seeks a review, urging' that the verdict is contrary to the weight of the evidence, and that there was reversible error in instructions given at defendant’s request.

As to the first ground: It should be noted first that all of the evidence relating to the occurrence itself heard at the second trial, was read from the bill of exceptions of the first trial, except that of the plaintiff himself, and his testimony was practically the same, and, as may be added, purported to give his recollections of what took place 13 years before, when he was less than 8 years old. In other words, no new witnesses or new evidence as to the accident different from that heard at the first trial was introduced. As to the occurrence, the only difference in the evidence heard at the two trials was that plaintiff omitted the testimony of two of his witnesses, and defendant the testimony of one of its witnesses given on the first trial.

The new witnesses were not eyewitnesses of the occurrence. There were four for plaintiff and one for defendant. Of the four, one testified to the number of pupils in attendance at a public school two blocks west of the place of the accident. Two others, former motormen, testified with respect to the distance a car would run after applying the emergency brakes, and the fourth described the manner of unloading materials that were used in paving the street where the accident occurred. Defendant’s new witness testified merely to the dimensions of the car involved, in the occurrence. There was nothing in the testimony of any of these witnesses that had any legitimate tendency to alter the state of facts bearing on a determination of any of the issues of liability.

It seems, therefore, that as to the weight of the evidence the same questions upon substantially the same evidence are presented to us for consideration for the fourth time. It could not reasonably be expected that unless at the second trial there was such new material evidence in support of plaintiff’s theory of the accident, or such additional evidence of a corroborative nature as would clearly shift the weight of the evidence in his favor, we could reach a different conclusion from that reached by us on three prior occasions. We would be required not only to reach a diametrically opposite conclusion on substantially the same evidence, but, under well established practice, to say that the verdict was manifestly against the weight of the evidence. We can hardly be persuaded that we so far misconceived its probative force as to be wrong on three prior occasions. Plaintiff’s counsel himself recognizes the “novelty” of asking this court to reverse on the ground that the verdict against the plaintiff was contrary to the preponderance of the evidence when on our former hearing we reversed the judgment on the ground that the verdict in plaintiff’s favor was against the preponderance of the evidence. Nevertheless, we have again considered the evidence and counsel’s analysis of the same, and are compelled to abide by our former convictions and conclusions, with which the verdict of the jury is now in harmony. Hence, we deem it unnecessary to detail again the salient facts of the case. They are sufficiently stated in our former opinion (216 Ill. App. 11) to which we refer for an adequate understanding of them. We may repeat, however, what we said in that opinion:

“We have carefully scrutinized the evidence in this case and think the great weight of the testimony is against the theory that the motorman would by ordinary and reasonable care have discovered the boy before it was too late to stop the car running at a reasonable rate of speed or that defendant was negligent as charged either in operating the car or omitting to perform any duty i£ owed to the boy under the circumstances. ”

We reached that conclusion after, as we there said, “comparing the character, intelligence and apparent reliability of the witnesses, their opportunities for observation, and the consistency of their testimony.”

It follows, therefore, that we cannot say that the verdict of the jury in this case was against the weight of the evidence. In fact, we think it was. manifestly in accordance therewith.

Several of the instructions are complained of, some on objections so technical and tenuous that we shall not undertake to discuss them.

Instruction 22 told the jury that before the plaintiff can recover he must prove by the greater weight of the evidence, first, that defendant was guilty of negligence, second, that such negligence was the proximate cause of the injury, and third, “that plaintiff himself exercised ordinary care and caution for his own safety at and before the time of the occurrence in question, or in other words, that no negligence on the part of the plaintiff proximately contributed in any degree to bring about his injury.” The instruction then proceeds to say that the burden of proving each of these propositions was upon the plaintiff, and that if he has failed to prove any one or more of them by the greater weight of the evidence the jury must find the defendant not guilty. The instruction then added: “Where in this instruction it is said that plaintiff must exercise ordinary care and caution, it is meant such care and caution as an ordinarily careful, prudent person of plaintiff’s age, intelligence, capacity and experience would exercise under the same or similar circumstances.”

Instruction 25 defined the words “ordinary or reasonable care and caution, wherever used in these instructions with respect to the plaintiff’s duty,” in practically the same language. Instructions 23 and 24 employed substantially the same language in referring to plaintiff in connection with the, question of contributory negligence, and these several instructions are complained of on much the same grounds.

It is strenuously argued by counsel that as plaintiff in error was only about 7 years- and 8 months old at the time of the accident that he would be prima facie incapable of exercising judgment and discretion, and that, therefore, the burden of proof was upon defendant to show whether or not he was capable of exercising care for his own safety; that each of the instructions assumed that he was capable and therefore might be culpably negligent; that he was not called upon to prove that he was capable until defendant had introduced proof to show that he was; and hence instruction' 22, and the others by implication, in these respects and in casting the burden of proof upon plaintiff as to his capacity and exercise of care constituted reversible error.

One of the essential elements of an action of this kind is that the plaintiff himself, at the time of and just before the accident causing the injury, be in the exercise of ordinary care for his own safety; and as a general rule, for which we need not cite authorities, the burden of proof rests upon- plaintiff to prove that element, as well as every other essential element of the action. And we think the rule is no different when the plaintiff is between 7 and 14 years of age. In like actions it has been so held in effect. In Illinois Iron & Metal Co. v. Weber, 196 Ill. 526, plaintiff was between 11 and 12 years old. An instruction given in his behalf required that the jury should find from the evidence that he was exercising ordinary care for a boy of his age. Discussing the question of care by the infant and what should be considered in determining it, the court said:

‘ ‘In determining that question his age was to be taken into account, but it could not be said, as a matter of laiv, that he was too young to exercise any care for his personal safety or that he was incapable of negligence. Unquestionably, he was capable of exercising some degree of judgment and discretion and some degree of care for his own safety.”

In McGuire v. Guthmann Transfer CVo., 234 Ill. 125, the plaintiff was a child of only a few months past 7 years of age at the time of the injury. The instruction in his behalf laid down the general rule as to the degree of care the law requires of a child. The company urged that to justify the instruction it was necessary for plaintiff to prove the extent of “intelligence, capacity, discretion and experience” he possessed. The court said: “In the absence of proof to the contrary, appellee must be presumed to have such capacity to appreciate danger, and such discretion and intelligence in protecting himself therefrom, as might reasonably be expected of an average child of his age and under like circumstances.” In Morrison v. Flowers, 308 Ill. 189, the plaintiff was 8 years old. The court said in slightly varying language, that “in the absence of proof to the contrary he will be expected to exercise that discretion and intelligence in protecting himself that would be expected of an average child of his age under like circumstances.” In Maskaliunas v. Chicago & W. I. r. Co., 318 Ill. 142, and in Deming v. City of Chicago, 321 Ill. 341, the plaintiff was 10 years of age. The court said that the law was clearly established by great weight of authority, that between the ages of 7 and 14 the question of culpability of the child is an open question of fact and must be left to the jury to determine, taking into consideration the age, capacity, intelligence and experience of the child.

While in none of these cases was the question of where the burden of proof lies with respect to the exercise of care by a minor between 7 and 14 years of age, directly raised, we think it clearly inferable therefrom that the general rule requiring the plaintiff to make a prima facie case of his exercise of care as a necessary element to his cause of action, is applicable to infants between 7 and 14 years of age, leaving it an open question of fact for the jury to determine from the evidence under guidance of the proper rule therefor. This is the recognized rule, as stated in 45 C. J. 1191:

“The rule as to the burden of proof with respect to contributory negligence where plaintiff is an infant is ordinarily the same as in actions by an adult. . . . Where the exercise of due care by the injured person is part of plaintiff’s case, plaintiff has the burden of proving that the injured infant was free from contributory negligence.”

Ño question can arise here but that the proper rule for the jury’s guidance was laid down in the several instructions. In fact, instruction 3, given in behalf of plaintiff, states it in substantially the same language as that in the instructions complained of, and the request for it indicates that plaintiff’s own counsel assumed that there was sufficient evidence of plaintiff’s capacity to justify its application. He is hardly in a position, therefore, to complain that defendant’s instructions are based on the same assumption.

The distinctions counsel undertakes to make in his argument between the degree of care that would be exercised by “an average child” and “an ordinarily careful, prudent person of plaintiff’s age,” and between care and caution, and in the omission from instructions of the words ‘1 usually, ” “ naturally ’ ’ and ‘ ordinarily ’ ’ seem rather too refined and subtle to engage the reasoning of an ordinary jury or to appeal to a court of review. It is common knowledge and experience that children between the ages of 7 and 14 have some capacity to exercise care for their own safety, and the cases where they have been so regarded are too numerous to call for citation.

Complaint is also made that there was needless repetition of instructions on the question of exercising care by the plaintiff. The instructions correctly stated the law on the material issues of the case. And it may be said here, as was said in Carson, Pirie, Scott & Co. v. Chicago Rys. Co., 309 Ill. 346, where like objections were made to like instructions, “while needless repetition may give undue prominence to some matter to which the instructions relate, these instructions presented different aspects of the question. . . . But as there was nothing incorrect in them they are not ground for reversal.” (352).

Appellant complains of defendant’s instruction 13. It tells the jury to measure the testimony of defendant’s employee by the same principles and tests by which the jury should determine the credibility of any other witness. It is a stock instruction which has been given in many cases and was approved in the form given in Cicero & Proviso St. Ry. Co. v. Rollins, 95 Ill. App. 497, affirmed in 195 Ill. 219. The basis of the complaint is that defendant’s employee was an interested witness. It was said in Roberts v. Chicago City Ry. Co., 262 Ill. 228, citing the last mentioned case, that no witness is to be discredited simply because he is employed by a party to the suit; that his testimony is to be treated the same as that of any other witness.

The further objection that the instruction assumed that defendant’s employee witnesses were unimpeached is untenable. It was abstract in form and merely declared a rule applicable to an unimpeached witness. Nor do we think it a case where it infringes the rule against singling out a witness or witnesses on one side of the case. (West Chicago St. R. Co. v. Dougherty, 170 Ill. 379, and West Chicago St. R. Co. v. Estep, 162 Ill. 130.)

Instruction 18 told the jury with reference to the rate of speed at which the car was running that if under all the circumstances and evidence they believed therefrom it was consistent with the exercise of ordinary care, then no negligence could be attributed to defendant in the operation of the car on the ground of the speed at which it was running. It is objected to as singling out a particular fact claimed to be established by the evidence, and in instructing the jury that if they so believed, negligence, could not be attributed to defendant in that respect. In this connection plaintiff cites the cases of Eckels v. Muttschall, 230 Ill. 462; Kenyon v. Chicago City R. Co., 235 Ill. 406, and Hoffman v. Tosetti Brewing Co., 257 Ill. 185, in all of which an instruction singling out a fact was held to have been properly refused. In none of these cases was the instruction quite analogous to the one presented here. But even if the instruction be objectionable we do not think it so prejudicial as to warrant reversal.

Instruction 16 told the jury that the mere happening of the accident in and of itself raised no presumption of negligence. It not being a passenger and carrier case, or one in which the doctrine of res ipsa loquitur is applicable, we do not think it was error to give the instruction. A presumption sometimes arises from the nature of the accident and the circumstances of it, but never from the mere fact of the accident itself. (Barnes v. Danville St. R. & L. Co., 235 Ill. 566, 573.)

Instruction 19 told the jury that if they believed from the evidence that in approaching the place in question the car was being operated with ordinary care and that plaintiff got in the way of the car so suddenly that the motorman had no opportunity in the exercise of care and caution, to avoid injuring the plaintiff, then their verdict should be not guilty. It is contended that it limits the motorman’s exercise of care in approaching the place of the accident and ignores whether he was guilty of negligence in operating the car “past the plaintiff.” We think it was sufficiently comprehensive to cover the whole matter of the issue of defendant’s negligence and is not amenable to the objections raised against it. Similar instructions have frequently been approved. (Scanlan v. Chicago Union Traction Co., 127 Ill. App. 406; Fredericks v. Chicago Rys. Co., 208 Ill. App. 172; Mead v. C. Rys. Co., 216 Ill. App. 625; Margolis v. Chicago City Ry. Co., 197 Ill. App. 316.)

It is also urged that instruction 20, directing a verdict for defendant if plaintiff failed to prove recited allegations in his declaration by a preponderance of the evidence, is erroneous in reciting allegations not essential to plaintiff’s cause of action and which it was not necessary for plaintiff to prove. We regard the objection as highly technical and as presenting no good ground for reversing the judgment.

After a careful review of the evidence and the instructions we do not think there was reversible error. The judgment is affirmed.

Affirmed.

Scanlan and Gridley, JJ., concur.


author: Mr. Presiding Justice Barnes

text:
    Howard W. Foote, Appellant, v. Chicago, North Shore & Milwaukee Railroad Company, Appellee.
    Gen. No. 33,855.

      Opinion filed March 11, 1930.
    Joseph D. Ryan, for appellant.
    Gardner, Foote, Burns & Morrow, for appellee; Walter M. Fowler, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is an appeal from a verdict and judgment for defendant in a personal injury suit.

The declaration charged in three counts, in varying language, the relationship of common carrier and passenger between the parties, and that defendant negligently caused the train to be started and accelerated into speed while plaintiff was attempting to board the same. Defendant filed the general issue.

The points relied on for reversal are that the verdict is contrary to the evidence and law applicable thereto, that the court erred in giving certain instructions, and in denying the customary motions made at the close of the trial.

It is contended by appellee that plaintiff failed to establish the relationship of carrier and passenger for the reason that he failed to show any assent by defendant to plaintiff’s becoming a passenger, and also that he failed to prove the exercise of due care on his part or negligence by defendant.

Defendant operated an electric interurban railway extending north and south through the village of Glencoe where it crosses Park Avenue, an east and west street, on the north side of which and just west of its tracks is its local ticket office. The train in question was a south bound express train which used the west track, and consisted of three cars. Such trains customarily stopped with the front end about up to the north sidewalk of Park Avenue and did so stop on the occasion in question. Prom north of that sidewalk, for about 64 feet along the Avest side of that track is a concrete loading platform. North of it is.a crushed stone extension 44 feet to a circular driveway. This driveway and another further north, about 200 feet, circle toward one another westward to the Chicago & Northwestern Railroad passenger station, northwest of defendant’s station. .The, tracks of the Chicago & Northwestern Railroad are about 100 feet, west of defendant’s tracks. Immediately east of and alongside defendant’s tracks was Green Bay road.

Plaintiff’s home was east of Green Bay road and somewhat north of the circular driveways. He left his home on the morning in question intending to take a train of the Chicago & Northwestern Railroad Company. Seeing the train in question approaching on the electric line he concluded to take it, and in attempting to board the same received the injuries complained of.

There was a conductor or collector for each of the three cars in said train. As is customary, when it stopped at the station in question each got off the train and stood by an entrance to his car while passengers were discharged and received and until the customary signals were given. One stood at the rear entrance of the first car, one at the front entrance of the second car, and one at the front entrance of the third or rear car where passengers entered the respective cars. According to custom and rule, when they saw that there were no more persons to take the train the conductor at the rear car signaled to the conductor of the second car, and the latter signaled to the conductor of the first car, and he in turn to the motorman, each first looldng along his car to see if anyone was there to board it. As the car started, each conductor stepped on his car and proceeded to collect fares. These customs were known to plaintiff, and that they were observed in the instant case is not questioned. Each of the conductors so testified and that when he gave his signal he looked back along his car, saw no one along it, and stepped on his car as it started. The motorman testified that he also looked and saw no one along the cars when he sounded the gong and started the train.

After the train stopped, several passengers got off and others got on. It is quite clear from the entire testimony that before plaintiff attempted to board the train all other passengers and the conductors had boarded the cars. Plaintiff’s own testimony harmonizes with this conclusion. Plaintiff testified that he was familiar with the customs of starting the train and that the conductor of the car which he attempted to enter had already got on his car and was just about entering the coach from the vestibule and that there was no one then standing on the platform of the car when he tried to board it.

Plaintiff testified that he crossed defendant’s tracks before the arrival of the train, went southward along the crushed stone extension and had reached the cement platform when the front cars passed him. On the other hand there was testimony that he came around the rear of the train and hastened to get on the front entrance of the rear car after the train was in motion. He said he walked at moderate speed along the crushed stone path onto the cement platform up to the front entrance of the second car and attempted to board it while it was still at a stop; that he took hold of the grab irons and just as he got one foot on the step the car started with a jerk and accelerated so rapidly that it threw him off his balance; that he tried to hang on and “hopped along” for a few feet and tried to get his knee on the step and finally lost his handhold on one side and fell, rolling between the concrete platform and the track. His only eyewitness of the accident testified that he did not see plaintiff until he had hold of the handrails, and that the conductor had got on the car “about a. second or two before then”; that the trainmen had gotten on the train and there was no one on the station platform when plaintiff was trying to get on; that he hung onto the handrails “for about 15 feet when he lost his hold and fell. ’ ’ His testimony as well as plaintiff’s harmonize with defendant’s evidence in these respects and that all persons, including the conductors, had boarded the train before plaintiff attempted to board it, thus leaving as the main controverted question whether the train had already started when he made the attempt.

No question arises that the usual signals for starting the car, with which plaintiff was familiar, had not then been given. Under the undisputed facts he would be presumed to know they had been given. Before there was any intimation of the accident the conductors had proceeded to collect fares. Not until the conductor of the rear car gave the emergency signal to stop the train was anyone on the train apprised of it. He testified that as he stood on the front platform of his car collecting fares after the train had started he heard some one say, “Hold it! hold it! ” and looking back saw plaintiff grab hold of the back rail of the front entrance to his car and then the front grab rail and lose his grip practically as testified to by plaintiff, and that he then immediately gave the stop signals. In harmony with his testimony three witnesses testified that plaintiff hurried from the rear to get on the car and grabbed hold "of the grab rails while the car was in motion, and after all, including the conductors, had boarded the train. Defendant’s several witnesses, some four or five besides the motorman and conductors, also testified that there was no jerking and sudden acceleration of speed in starting the car and that it started smoothly and slowly. The evidence tended to show that it had gathered speed of about five or six miles an hour at the time of the accident. The unrefuted testimony of the motorman was to the effect that the mechanism is such that the car cannot start with a jerk or suddenly accelerated speed.

There was, as usual, where witnesses view occurrences from different angles, positions and distances, discrepancies and contradictions in the testimony, mostly as to minor details. It would subserve no good purpose to discuss them or their probabilities, or whether plaintiff tried to board the second or third car, if, as a! matter of fact, he did not undertake to board the train, as the great preponderance of the evidence tends to show, until after it was in motion. On that important fact his testimony and that of one witness is to the effect that the train had not-started when he attempted to board it. Against him on that point is the testimony of three eyewitnesses and legitimate inferences from the testimony of several others and from the coincident facts that tend to corroborate the evidence that the train had started. While there is some difference in the testimony as to just where plaintiff was or came from immediately before attempting to board the car, whether from the rear of the train or from along bushes west of the extension landing, the variances of the testimony in that respect are quite immaterial, if taking the testimony as a whole, it appears that plaintiff undertook to board the train after everybody else, including the conductors, had boarded it and it had got in motion pursuant to the signals aforesaid. In that view of the case we rieed not consider the varying testimony as to whether he was running or walking to catch the train, or whether it was the second or third car he attempted to board, if, when he tried to board it, the train had already been put in motion after the usual signals and under the circumstances testified to by most of the witnesses. If so, then .the jury were justified in finding that plaintiff failed to exercise ordinary care for his own safety, that there was no negligence by defendant, and that plaintiff had no legitimate claim to the relation of carrier and passenger. We certainly cannot, on a full analysis of the evidence, say, as we would have to do in order to reverse on evidence, that the verdict was manifestly against its weight.

Appellant claims reversible error in certain given instructions. Much space is devoted to their discussion. When, as in this case, counsel takes 30 pages to point out to a court of review wherein there is reversible error in two instructions, it is safe to conclude that in all probability the rather strained distinctions made were beyond the comprehension of the jury and not calculated to mislead them. It is somewhat difficult even for us to follow the rather involved, and in some respects, obscure argument.

The principal objections made are to instructions 24 and 27, given at the request of defendant.

The two instructions purport to state the law with respect to what constitutes the relationship between carrier and passenger. After a statement of the law each told the jury that plaintiff could not recover if they believed from the evidence a certain state of facts. Instruction 24 told the jury that mere intention or purpose to become a passenger is not sufficient in law to create the relation, but that it is essential that plaintiff prove not only the intention to take passage on the train but that plaintiff “signified his intention to do so, either by word or conduct and that the servants of the defendant, in charge of the train, assented by words or conduct to his becoming such. ’ ’ It proceeded to state that if the jury believe and find from the evidence “that the servants of defendant, in charge of the train in question, did not know, and were not aware that plaintiff was about to board said train, or was attempting to do so, until after the train had started, and that there was no assent, expressed or implied by conduct or otherwise on their part to plaintiff becoming a passenger on said train,” then such relation did not exist at the time plaintiff attempted to board the train and was hurt and he could not recover.

Instruction 27 made much the same statement of the law as to the necessity of the carrier’s assent, expressly or impliedly, to a party presenting himself as a passenger before he could become such. In the latter instruction the jury were told that:

“If you believe and find from the evidence, that plaintiff, at the time of the occurrence in question, was familiar with the manner in which defendant operated its trains at the place in question, and with the manner and conduct of its train crews while passengers were being discharged and received on its trains, while its trains were standing at its station platforms, and the means or method of signalling its trains to proceed and when such signals are usually given, and the conduct of the train crew then and immediately thereafter and the starting of the trains thereupon; and if you further believe from the evidence, that at the time plaintiff attempted to board and enter the train, the train crew had boarded the same and that they did not know and were not aware that plaintiff was about to board the train, or was attempting to do so, until after the train had started, and that there was no express or implied assent on the part of the train crew, or any of them, to plaintiff becoming a passenger on said train in question and no holding out, either expressly or impliedly, of an invitation to plaintiff to board said train, under all the facts and circumstances shown by the evidence, then you are instructed that the relation of carrier and passenger between plaintiff and defendant as to the particular train in question did not exist and that plaintiff cannot recover in this case.”

So far as the instructions attempt to state the law as to such relationship they conform to authorities on the subject. (See Todd v. Louisville & N. R. R. Co., 274 Ill. 201, and Chicago & E. I. R. Co. v. Jennings, 190 Ill. 478, and cases there cited.)

Appellant concedes that there are cases where the rule of assent as stated in these instructions on the part of the servants of the carrier is proper and applicable, but contends the rule does not present a proper test in the instant case.

In his criticisms counsel takes certain phrases and sentences from each instruction and places an interpretation on them regardless of their connection with the rest of the instruction, or other instructions, whereby their meaning and application are distorted. It .is a fundamental rule that all of the instructions must be read as a series and construed and interpreted together, and the jury were so instructed at plaintiff’s instance. Counsel conceded in many parts of his argument that these instructions were based practically on uncontroverted facts, and recognizes that the controlling issue of fact, which with others the jury were left to find, is whether plaintiff attempted to get on the train after it started.

The cause of action is predicated upon the allegation in each count that plaintiff became and was a passenger at the time of the injury, and unless he proved that relationship existed at the time of the injury he could not recover. For there was no charge of negligence otherwise than in the failure to exercise that degree of care required when such relationship exists, and an instruction defining the same was given at plaintiff’s request. In other words, plaintiff relied upon the contractual relation of carrier and passenger.

To establish it, proof of two things is ordinarily necessary, an- offer by the prospective passenger to be carried, and an acceptance of such offer by the carrier. (See Todd and Jennings cases, supra.) When the facts are disputed, or different inferences may reasonably be drawn from the evidence, it becomes a question for the jury whether these two essential elements of the relation existed. In view of the pleadings and evidence here it wRs unquestionably proper to submit to the jury the law as to the relationship and whether or not upon such state of facts there was an offer and an acceptance. As applied to the evidence and conceded facts in this case we fail to see any misstatement of the law in these instructions or anything therein that was calculated to mislead the jury in determining whether such relationship existed.

Counsel says that neither these instructions nor any others given at defendant’s instance bear upon the issue of defendant’s negligence. The negligence relied upon in the declaration is that which results from a breach of the carrier’s duty when the relationship of carrier and passenger exists. If it did not exist then under the declaration no question of negligence by defendant need be considered. Plaintiff’s right to recover is limited to the negligence charged in his declaration. (Chicago City Ry. Co. v. Bruley, 215 Ill. 464; Lyons v. Ryerson & Son, 242 Ill. 409.) The declaration does not charge a breach of duty to create the relationship on the offer of plaintiff to become a passenger, but an alleged breach of duty after an offer has been made and accepted.

That plaintiff attempted to board the train and intended to become a passenger, and that at the time he attempted to board it the train was no longer open for the reception of passengers are undisputed facts. Plaintiff’s own testimony shows that he did not attempt to step on the train until all others waiting to board it and the crew had got on. Familiar as he was with the methods of signaling for the train to start and that those signals were given before the conductors stepped aboard it, he must, in view of his own testimony, have known the train was due to start and that no passengers were expected at the time he attempted to board it. There was no evidence that he did anything to signify an offer to become a passenger before all that had taken place, and therefore nothing on which notice to the officials of the train could be predicated. There is no claim that they had even seen him approaching. His own counsel admits in his brief that none of the train crew had any knowledge or was aware before the train started, that he was boarding, or attempting to board it, or that he was even about to board the train before it started, and states that “the jury necessarily so found.’’ In this state of facts it is difficult to see how there was anything in the evidence upon which plaintiff could predicate an offer on his part to become a passenger.

But if there was an offer, it being conceded that the members of the crew were not aware of plaintiff’s presence or of his attempt to board the train, and that he was familiar with the customs as to starting it and their signaling for the start before they stepped aboard, and that he knew the conductor of the car he attempted to board had already boarded it before he attempted to do so, and further conceded that it started without their knowledge of his attempt to board it, then it would seem too clear for argument that those circumstances indicate that the so-called offer was never accepted.

On somewhat analogous facts bearing on this point it was said in Todd v. Louisville & N. R. R. Co., supra, that while there was some conflict in the testimony whether the train was moving at the time Todd first tried to get on “there is no controversy that the employees in charge of the train never assented, either expressly or impliedly, to his becoming a passenger on the train.” The instructions complained of left the jury free to consider everything that the plaintiff did by word or conduct, whether he signified his intention and whether defendant’s servants did anything that could be construed as an assent to his becoming a passenger, and on the above state of facts we fail to see how they could find otherwise than they did.

Plaintiff seems to argue that because the stopping of the train was an implied invitation to those present to board it, his attempt to board it regardless of the attendant circumstances properly signified his intention. But the jury might properly have considered from the evidence that plaintiff was hurrying to catch the train after it started and so was not present in the sense that theory of the law implies, but that if he was, the invitation so extended was withdrawn before he attempted to board the train, in view of the conceded circumstances under which it was started up before he attempted to board it. It certainly cannot be said that defendant expected plaintiff as a passenger if he undertook to get on under such circumstances after the train had started.

We have considered the numerous criticisms of these instructions, and have attempted to meet them in a general way without detailing them, and think it is enough to say that we fail to see wherein there was the omission of any essential element of the law or of any evidentiary fact pertinent to their conclusions that was calculated to mislead the jury. Most of appellant’s cases involve entirely different states of facts and questions, and the rulings as bearing thereon are not inconsistent with the law stated in these instructions.

Nor are these instructions inconsistent with others given for plaintiff with reference to an implied invitation in the stopping of the train to those present and intending to take • passage thereon. The jury must have adopted defendant’s theory of the evidence that plaintiff was not present with those on the platform when the invitation was extended, and if he was, the implied invitation under the circumstances was withdrawn. We think his own testimony fails to bring him within the general rule that the prospective passenger must put himself in the care and control of the carrier in such manner that the carrier will understand and know that he is in its care and control before any assent can be implied, and that the relationship cannot exist except there be such assent on the part of the carrier. (Jennings case, supra, p. 484.)

Instruction No. 15 told the jury the burden of proof was on plaintiff and that to recover he must prove, by the preponderance of the evidence, “all matters of fact necessary to be established to entitle him to recover, as stated in these instructions,” and that there could be no recovery if he failed to make such proof. Counsel’s criticism is that the jury was not clearly informed what matters of fact were necessary to be established to entitle plaintiff to recover, although his own instruction No. 1 stated what the issues were, and his instruction No. 11 covers all the necessary facts in the case and directs a verdict in his favor if they were established. In view of his own instructions we see little ground for this criticism. The instruction is not, as intimated, at all analogous to disapproved instructions which tell the jury that plaintiff must prove all the material allegations of his declaration, leaving the jury to determine what are material.

The main criticism of instruction No. 18 is that it submitted to the jury findings of not ultimate facts in the case, and seems to be based on the theory that the instruction is one directing a verdict. It not only is not one of that character, but as instruction No. 8, given in plaintiff’s behalf, contains the same alleged defect he cannot complain. (Thomas v. Chicago Embossing Co., 307 Ill. 134.)

Complaint is made that instruction No. 17 so far as it defines the term “negligence” is inapplicable to defendant. Taking the instructions together, we think the definition there given was plainly intended to apply only to the care which should he exercised by plaintiff. If it is subject to criticism as applied to defendant then plaintiff’s instruction No. 10 is subject to the same criticism.

One of plaintiff’s witnesses testified that about 8 o’clock the night before he testified, which was in July, 1929, 14 months after the accident, he stood on a brick pavement about 100 or 120 feet west of defendant’s tracks and a short distance north of Park Avenue and made observations, looking in a northeasterly direction. Plaintiff offered to show by the witness that because of intervening bushes one of defendant’s witnesses could not have seen from near the same point all that he testified to have seen at the time of the accident, May 21, 1928. The offer was rejected mainly, as it would appear, because the conditions for visibility were not the same. Plaintiff admits in his argument that he could not have shown that the bushes had not grown some in the year that had elapsed and that the foliage in July is, as a matter of common knowledge, more dense than in the latter part of May. We think it was plain that what plaintiff offered to prove was not sufficient to show that the conditions were the same, and, therefore, that the testimony would have no legitimate tendency to impeach defendant’s witness.

After a careful review of the evidence and instructions, we do not see that there was reversible error. The judgment is affirmed.

Affirmed.

Scanlan and G-ridley, JJ., concur.


author: Mr. Presiding Justice McSurely

text:
    First District.
    Burton R. Colbert, appellee, v. Harry E. Wing, appellant.
    Gen. No. 34,062.
    Opinion filed February 5, 1930.
    Louis A. Heile, for appellant.
    J. Arthur Kealy, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Stephen Johandes, plaintiff in error, v. Chicago, Milwaukee & St. Paul Railroad Company et al., defendants in error.
    Gen. No. 33,522.
    Opinion filed February 24, 1930.
    Charles C. Spencer, for plaintiff in error.
    M. L. Bluhm, C. L. Taylor and Marvin A. Jersild, for defendants in error;
    Sidney C. Murray, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Mabel Knoll, appellee, v. Continental Life Insurance Company, appellant.
    Gen. No. 33,547.
    Opinion filed February 24, 1930.
    W. Tudor Ap Madoe, for appellant.
    Stebbins, L’Amoreaux & Hurtubise, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Hazel Hodge, defendant in error, v. Harry Allen, plaintiff in error.
    Gen. No. 33,700.

      Opinion filed February 24, 1930.
    Rehearing denied March 10, 1930.
    William H. Haynes, for plaintiff in error.
    Frank & Shomberg, for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    W. H. Gray and Mrs. W. H. Gray, appellees, v. Rose Victor and M. Victor, appellants.
    Gen. No. 33,839.
    Opinion filed February 24, 1930.
    Rehearing denied March 10, 1930.
    John Francis Mahan, for appellants.
    W. F. Mayer, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Julius H. Marquardt, appellee, v. Morris Katz and Israel Lewis, trading as Katz & Lewis, appellants.
    Gen. No. 33,849.
    Opinion filed February 24, 1930.
    Hyman Soboroff, for appellants.
    Rathje, Wesemann, Hinckley & Barnard, for appellee;
    Francis E. Hinckley and Charles T. Sab el, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Louise Augustin for use of Samuel B. Hill, appellee, v. Thomas J. Bassler et al., garnishees. William J. McGah, intervening petitioner, appellant.
    Gen. No. 33,857.
    Opinion filed February 24, 1930.
    Rehearing denied March 10, 1930.
    Charles J. Russell, for appellant.
    Joseph H. Horwieh and B. M. Steiner, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Ford Lee Washington and John W. Sublett, plaintiffs in error.
    Gen. No. 33,886.
    Opinion filed February 24, 1930.

      Jacob Kosbie and Aaron Soble, for plaintiffs in error.
    John A. Swanson, State’s Attorney, for defendant in error;
    Edw. E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Carroll, Schendorf & Boenicke, Inc., defendant in error, v. Alfred C. Borroff, plaintiff in error.
    Gen. No. 33,944.
    Opinion filed February 24, 1930.
    Rehearing denied March 10, 1930.
    John Gibson Hale, for plaintiff in error.
    Henry M. Hagan, for
    defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Chin Bing, plaintiff in error.
    Gen. No. 33,962.
    Opinion filed February 24, 1930.
    Harold L. Levy, for plaintiff in error;
    Elwyn E. Long, of counsel.
    John A. Swanson, State’s Attorney, for defendant in error;
    Edw. E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    J. Baratt, appellee, v. John D’Amore and Stella D’Amore, appellants.
    Gen. No. 33,996.
    Opinion filed February 24, 1930.
    Rehearing denied March 10, 1930.
    Cairoli Gigliotti, for appellants.
    Nudelman & Branower, for appellee;
    Oscar M. Nudelman and Alvin Kornfeld, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Oscar H. Carlson & Sons, Inc. for use of Eugene Hedges, appellee, v. Walter C. Kaehler, appellant.
    Gen. No. 33,679.
    Opinion filed February 24, 1930.
    Weightstill Woods, for appellant.
    Wetten, Pegler & Dale, for appellee;
    James P. Haffner and Milton Gerwin, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Harvey L. Cavender and William E. Kaiser, trading as Cavender & Kaiser, defendants in error, v. Margaret Schreiber and Julius Becker, plaintiffs in error.
    Gen. No. 33,708.
    Opinion filed February 24, 1930.
    Rehearing denied March 10, 1930.
    Jacob Levy, for plaintiffs in error;
    James M. Givin, of counsel.
    Cavender, Milchrist & Kaiser, for defendants in error;
    Frank T. Milchrist, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Ad-Lee Company, appellee, v. Chicago, Indianapolis & Louisville Railway, appellant.
    Gen. No. 33,892.
    Opinion filed February 24, 1930.
    Winston, Strawn & Shaw, for appellant;
    Fred J. McManus, of counsel.
    Ringer, Wilhartz & Hirseh, for appellee;
    Philip E. Ringer, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Commercial Service Company, appellant, v. Western Vulcanizing Equipment Company, appellee.
    Gen. No. 33,913.
    Opinion filed February 24, 1930.
    Chetlain, Meagher & Chetlain, for appellant.
    No appearance for appellee.
   Mr. Justice Matchett

delivered the opinion of-the court.


text:
    The People of the State of Illinois, defendant in error, v. Joseph Kyle, plaintiff in error.
    Gen. No. 33,938.
    Opinion filed February 24, 1930.
    Rathje, Wesemann, Hinckley & Barnard, for plaintiff in error;
    Francis E. Hinckley and Louis Greenberg, of counsel.
    John A. Swanson, State’s Attorney, for defendant in error;
    Edw. E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Union Indemnity Company, appellant, v. E. L. Cook, appellee.
    Gen. No. 33,993.

      Opinion filed February 24, 1930.
    Burt A. Crowe, for appellant.
    Bathje, Wesemann, Hinckley & Barnard, for appellee;
    Francis E. Hinckley and William E. Fisher, of counsel.
   Mr. Justice Matchett

delivered .the opinion of the court.


author: Mr. Justice O’Connor

text:
    H. S. Kaiser Company, appellant, v. E. L. Drinkwater, appellee.
    Gen. No. 33,709.
    Opinion filed February 24, 1930.
    Isidore Levin, for appellant;
    Harry H. Christenholz, of counsel.
    McKay, Besa & Bussell, for appellee;
    Herbert Bebb, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Marie Forjan, appellee, v. Evening American Publishing Company and Illinois Publishing and Printing Company, appellants.
    Gen. No. 33,761.
    Opinion filed February 24, 1930.
    Keehn, Woods, Weisl & Keeley, for appellants;
    Edward G. Woods, of counsel.
    Aaron B. Eppstein, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    H. A. Kingsbury, appellant, v. Ida M. Staten, appellee.
    Gen. No. 33,821.
    Opinion filed February 24, 1930.
    Behearing denied March 10, 1930.
    John F. Voigt, for appellant.
    Gustav E. Beerly, for appellee;
    John F. Diffenderffer, Jr. and James M. Gillespie, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Henrietta Ashton, appellant, v. Ceacil C. Ashton, appellee.
    Gen. No. 33,860.
    Opinion filed February 24, 1930.
    Behearing denied March 10, 1930.
    Lester L. Bauer, for appellant.
    Charles A. Williams, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Flora S. Kroencke, appellee, v. Chicago Railways Company et al., trading as Chicago Surface Lines, appellants.
    Gen. No. 33,878.
    Opinion filed February 24, 1930.
    Rehearing denied March 10, 1930.
    Brown, Fox & Blumberg, for appellants;
    Frank L. Kriete, John E. Kehoe, Charles LeRoy Brown and James L. Coleman, of counsel.
    Royal W. Irwin, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Vivian Whiteley, appellee, v. Chicago & Northwestern Railway Company, appellant.
    Gen. No. 33,898.
    Opinion filed February 24, 1930.
    Rehearing denied March 10, 1930.
    Nelson J. Wilcox and I. C. Belden, for appellant.
    John A. Bloomingston, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Prentis Harris, plaintiff in error, v. Staver Auto Service Company, defendant in error.
    Gen. No. 33,910.
    Opinion filed February 24, 1930.
    Henry C. Ferguson, for plaintiff in error.
    Sonnensehein, Berkson, Lautmann & Levinson, for defendant in error;
    Henry L. Kohn, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Paul D. Tomy, defendant in error, v. The Union of Roumanian Beneficial and Cultural Societies of America, plaintiff in error.
    Gen. No. 33,948.
    Opinion filed February 24, 1930.
    William McKinley and Paul E. Price, for plaintiff in error.
    Bryant, Meneely & Lewe, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Walter L. Githens, appellant, v. Passen Securities, Inc. et al., defendants. Illinois Home Finance Corporation, appellee.
    Gen. No. 33,782.

      Opinion filed March 1, 1930.
    Howard Ames, for appellant.
    John E. Owens, for appellee;
    Clyde C. Fisher, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Presiding Justice Wilson

text:
    In re Estate of Edward W. Wallace, deceased, appellant, v. Ann Engel, appellee.
    Gen. No. 33,567.
    Opinion filed March 5, 1930.
    Curtis R. Seheunemann, John R. Ong and Eranklin Raber, for appellant;
    Franklin Raber, of counsel.
    E. Leslie Cole and Charles C. Spencer, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Elizabeth Sandona, appellee, v. Jacob Lewandowski, appellant.
    Gen. No. 33,585.
    Opinion filed March 5, 1930.
    H. J. Thai, for appellant.
    John B. Eruchtl and Cecil Smith, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Uihlein Realty Trustees, appellant, v. G. C. Marks, appellee.
    Gen. No. 33,603.
    Opinion filed March 5, 1930.
    M. L. Carmody, for appellant.
    Goodnow, Allaben & Snewind, for appellee;
    Charles D. Snewind, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Helen C. Fields, appellant, v. William G. Boman and Mary Boman, appellees.
    Gen. No. 33,646.
    Opinion filed March 5, 1930.
    William H. Haynes, for appellant.
    Albert Rosenbaum, for appellees.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Gardiner Metal Company, defendant in error, v. Frank Di Cristoforo, plaintiff in error.
    Gen. No. 33,671.
    Opinion filed March 5, 1930.
    Rehearing denied March 31, 1930.
    Cairoli Gigliotti, for plaintiff in error.
    Culver, Andrews & King, for defendant in error;
    William B. Gilmore, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    Gertrude M. Richardson, appellee, v. Farney S. Hendricks, appellant.
    Gen. No. 33,737.
    Opinion filed March 5, 1930.
    Heth, Lister & Collins, for appellant.
    Harry A. Biossat, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


text:
    George E. West et al., appellees, v. Golfmore Land Company, appellant.
    Gen. No. 33,769.
    Opinion filed March 5, 1930.
    Culver, Andrews & King, for appellant;
    Orville R. Seiter, of counsel.
    Thomas H. Maddoek, William A. Adams and Lester C. Childs, for appellees.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    A. M. Rosenblum, appellee, v. Ernest A. Carlson, appellant.
    Gen. No. 33,564.
    Opinion filed March 5, 1930.
    Frankel & Bloom, for appellant.
    Sidney Rosenblum, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Madison & Kedzie State Bank, appellant, v. E. E. Mohr, appellee.
    Gen. No. 33,573.
    Opinion filed March 5. 1930.
    Isaac B. Lipson, for appellant;
    Randolph Thornton, of counsel.
    Martin W. Grosse, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Bessie Fisher, appellee, v. Chappell Ice Cream Company, appellant.
    Gen. No. 33,766.
    Opinion filed March 5, 1930.
    McKenna & Harris, for appellant;
    James J. McKenna and Abraham W. Brussell, of counsel.
    H. H. Patterson, for appellee;
    Edmund C. Maurer, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    James E. Kennedy, appellee, v. Cowles Detergent Company, appellant.
    Gen. No. 33,798.
    Opinion filed March 5, 1930.
    Edward W. Rawlins, Myers & Snerly and H. C. Hoge, for appellant.
    Royal W. Irwin, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Citizens Trust & Savings Bank, appellee, v. Anne Blair et al., defendants, on appeal of Oliver F. Smith and Catherine C. Smith, appellants.
    Gen. No. 34,025.
    Opinion filed March 5, 1930.
    Rehearing denied March 31, 1930.
    Ossian Cameron and Edward H. S. Martin, for appellants.
    Sonnensehein, Berkson, Lautmann & Levinson, for appellee;
    Ben Rothbaum, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.


author: Mr. Justice Ryner

text:
    Milwaukee-Western State Bank, appellant, v. Edmund G. Brust, appellee.
    Gen. No. 33,431.
    Opinion filed March 5, 1930.
    Deneen, Healy & Lee, for appellant;
    Harry W. Lippincott and Donald N. Schaffer, of counsel.
    Guerine & Brust, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    Eva Bassuot, appellee, v. H. F. De Longe, appellant.
    Gen. No. 33,552.

      Opinion filed March 5, 1930.
    Gustav E. Beerly, for appellant.
    H. E. Raymond, for appellee.
   Mr. Justice Ryner

delivered the opinion of the court.


text:
    Benjamin R. Kobey, plaintiff in error, v. United National Clothiers et al., defendants in error.
    Gen. No. 33,253.
    Opinion filed March 11, 1930.
    Rehearing denied March 24, 1930.
    Isadore S. Blumenthal, for plaintiff: in error.
    Frederick C. Harbour, for defendants in error.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Mary Reinhold, administratrix of the estate of George Reinhold, deceased, defendant in error, v. Maria K. Hallgren, plaintiff in error.
    Gen. No. 33,728.
    Opinion filed March 11, 1930.
    Thomas Marshall, for plaintiff in error;
    Burrell J. Cramer and G. D. Gray, of counsel.
    John A. Bloomingston, for defendant in error.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    George D. Conner and William J. O’Connor, appellants, v. D. W. Propst, M. D., appellee.
    Gen. No. 33,759.
    Opinion filed March 11, 1930.
    Rehearing denied March 24, 1930.
    Sinon J. Walsh, for appellants.
    George S. Marks, for appellee;
    John A. Ulrich, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Noah Gross, plaintiff in error, v. The Cuneo Press, Inc., defendant in error.
    Gen. No. 33,768.
    Opinion filed March 11, 1930.
    Earl J. Walker and Martin M. Gross, for plaintiff in error.
    Joseph H. Hinshaw, for defendant in error.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    R. I. Davis and Charles A. Koepke, appellees, v. Charles Sedman et al., appellants.
    Gen. No. 33,778.
    Opinion filed March 11, 1930.
    Rehearing denied March 24, 1930.
    William H. Tuttle and A. Herbert Hoffman, for appellants.
    Howe, Zimmerman & Kreamer, Sonnensehein, Berkson, Lautmann & Levinson and Myer N. Rosengard, for appellees;
    Edward A. Zimmerman, Robert L. McDougal and Irving L. Block, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Maurice L. Willard, appellee, v. John J. Kern & Company, appellant.
    Gen. No. 33,791.
    Opinion filed March 11, 1930.
    Daniel S. Wentworth, Henry O. Nickel and John P. Sullivan, for appellant.
    Murray & Murray, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    David T. Alexander, appellee, v. Maurice S. Stern, appellant.
    Gen. No. 33,800.
    Opinion filed March 11, 1930.
    Lee D. Mathias, for appellant;
    Clyde L. Todd, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Hannah Butler et al., appellees, v. Frank H. T. Potter et al., defendants. United States Mortgage company and K. G. Nilsen, appellants.
    Gen. No. 34,181.
    Opinion filed March 11, 1930.
    Oscar M. Torrison, Frederick A. Brown and William G. Worthey, for appellants;
    J. Colburn Hamilton, of counsel.
    Bernard J. Brown, for appellees.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    Samuel Baker, defendant in error, v. Chicago Title & Trust Company et al., defendants. Louis Cohen, plaintiff in error.
    Gen. No. 33,538.

      Opinion filed March 11, 1930.
    Harry C. Diamond and Latkin & Cohn, for certain plaintiff in error;
    Harry C. Diamond and Alfred Diamond, of counsel.
    Fischer, Kahn, Heart & Epstein and Austin L. Wyman, for defendant in error;
    Austin L. Wyman, and Bernard M. Epstein, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Franklin O. Carter, plaintiff in error.
    Gen. No. 33,675.
    Opinion filed March 11, 1930.
    Ray E. Lane, for plaintiff in error;
    Cameron Latter, of counsel.
    John A. Swanson, State’s Attorney, for defendant in error;
    Edw. E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    In re Estate of William John Kruse, deceased. Robert J. Kruse, administrator of said estate, appellant, v. Jane Thomlinson, appellee.
    Gen. No. 33,742.
    Opinion filed March 11, 1930.
    Albert E. Icely and Howard R. Brintlinger, for appellant.
    Charles C. Bodenstab, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Hoffmann Brothers Tanning Company, appellee, v. Henry H. Slingerland, appellant.
    Gen. No. 33,753.
    Opinion filed March 11, 1930.
    A. F. W. Siebel, for appellant.
    Theodore A. Kolb, for appellee.
   Mr. Justice Gridley

delivered the opinion,of the court.


text:
    Walter Morris, appellee, v. Nu Way Cleaners & Dyers, appellant.
    Gen. No. 33,785.
    Opinion filed March 11, 1930.
    Schwartz & Cooper, for appellant.
    No -appearance for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Ellen Kenner Ingal Building Corporation, appellee, v. Esther A. Widen, appellant.
    Gen. No. 33,794.
    Opinion filed March 11, 1930.
    John E. Erickson, for appellant.
    No appearance for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Isadore Ziven, appellee, v. M. Samuels & Company, appellant.
    Gen. No. 33,816.
    Opinion filed March 11, 1930.
    Woods, Bishop & Cohen, for appellant.
    Barrett, Barrett & Wermuth, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    People ex rel. Isadore A. Deutch, plaintiff-appellee, v. City of Chicago et al., defendants-appellants.
    Gen. No. 33,828.
    Opinion filed March 11, 1930.
    Samuel A. Ettelson, Corporation Counsel, James W. Breen and Joseph A. Ricker, Assistant Corporation Counsel, for appellants;
    Cora B. Hirtzel, Assistant Corporation Counsel, of counsel.
    Edward J. MeArdle, Jr., for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Simon J. Peyser, plaintiff in error, v. Edward Lynch, defendant in error.
    Gen. No. 33,858.
    Opinion filed March 11, 1930.
    George P. Rutledge, for plaintiff in error;
    John V. McCormick, of counsel.
    Jones & Key, for defendant in error;
    Robert G. Dreffein and Herbert J. Engel, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    The People of the State of Illinois for use of Atlas Copper & Brass Manufacturing Company, appellant, v. Bernard Snow, bailiff of the municipal court of Chicago and Maryland Casualty Company, appellees.
    Gen. No. 33,867.

      Opinion filed March 11, 1930.
    Rehearing denied March 24, 1930.
    William R. Wiley, for appellant.
    Frank H. Repetto, for appellees.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Bee Kerins, appellee, v. City of Chicago, appellant.
    Gen. No. 33,902.
    Opinion filed March 11, 1930.
    Samuel A. Ettelson, Corporation Counsel and William D. Saltiel, City Attorney, for appellant;
    Theodore Levin and Roy S. Gaskill, Assistant Corporation Counsel, of counsel.
    No appearance for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Lord C. H. E. Zeigler, appellant, v. Wieland Dairy Company, appellee.
    Gen. No. 33,911.
    Opinion filed March 11, 1930.
    Bulkley, More, Boynton & Overmyer, for appellant.
    Edward Maher, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Seanlan

text:
    Joseph Leiter et al., appellants, v. Siegel, Cooper & Company et al., appellees.
    Gen. No. 33,557.
    Opinion filed March 11, 1930.
    Rehearing denied March 24, 1930.
    Fyffe & Clarke and John Harrington, for appellants.
    Thomas L. Marshall, Glen A. Lloyd, Herman L. Ellsworth and Albert G. Duncan, for appellees;
    Fisher, Boyden, Bell, Boyd & Marshall, Rosenthal, Hamill & Wormser and Arthur B. Sehaffner, of counsel.
   Mr. Justice Seanlan

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    O. M. White, appellee, v. Mandel Brothers, appellant.
    Gen. No. 33,608.
    Opinion filed March 11, 1930.

      Altheimer & Mayer, for appellant; A. B. Manion, of counsel.
    Kirkland, Fleming, Green & Martin, for appellee;
    Charles F. Rathbun, Allan W. Cook and Edward G. Caldwell, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Lena Benke, appellee, v. Peter Heuchtel et al., appellants.
    Gen. No. 33,687.
    Opinion filed March 11, 1930.
    Rehearing denied March 24, 1930.
    Frank J. Link, for appellants.
    Reeda & Peace, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Leonard L. Bear, appellant, v. John J. Schocket, appellee.
    Gen. No. 33,765.
    Opinion filed March 11, 1930.
    William Feldman, for appellant.
    Norton A. Mergentheim, for appellee;
    Theodore Sharf, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Robert Branch et al., appellees, v. Isaac A. Thomas et al., appellants.
    Gen. No. 33,725.
    Opinion filed March 11, 1930.
    Rehearing denied March 24, 1930.
    Weightstill Woods, for appellants.
    Sehein & Beckwith and Milton O. Naramore, for appellees;
    George L. Sehein, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Fur Merchants Exchange, Inc., appellee, v. Fur Matching Service, Inc. and Joseph Krammer, appellants.
    Gen. No. 33,774.
    Opinion filed March 11, 1930.
    Golan & Hall, for appellants.
    Max M. and Samuel Grossman, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    William T. Woodley, appellant, v. Frank J. Lodge, appellee.
    Gen. No. 33,843.
    Opinion filed March 11, 1930.
    Wolfsohn & Fireman, for appellant.
    Townley, Wild, Campbell & Clark, for appellee;
    Frederick D. Carroll, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Paulina Norkevich, administratrix of the estate of Mike Norkevich, deceased, appellee, v. Atchison, Topeka & Santa Fe Railway Company, appellant.
    Gen. No. 33,848.
    Opinion filed March 11, 1930.
    Emmet Trainor, Albert T. Belshe and Thomas F. King, for appellant;
    E. E. Mclnnis, of counsel.
    Charles E. Carpenter, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Marcella Buoscio, appellee, v. Henry Buoscio, appellant.
    Gen. No. 33,870.
    Opinion filed March 11, 1930.
    Thompson, Tyrrell & Chambers and Swalwell & Buoscio, for appellant.
    Chittiek, Blankenship & Baltz, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Frances Kuznicki, appellee, v. John Nefeld, appellant.
    Gen. No. 33,927.
    Opinion filed March 11, 1930.
    Yale & Yale, for appellant.
    No appearance for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.


author: Mr. Presiding Justice Eldredge

text:
    Third District.
    The People of the State of Illinois, defendant in error, v. Fred Hyde, plaintiff in error.
    Gen. No. 8,333.

      Opinion filed February 3, 1930.
    L. T. Graham, for plaintiff in error.
    A. W. Schimmel, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    Mattie F. Henry, conservatrix and ex officio administratrix of the estate of Samuel Farlow, deceased, appellant, v. Fred Farlow et al., appellees.
    Gen. No. 8,346.
    Opinion filed February 3, 1930.
    Wilson & Schmiedeskamp, for, appellant.
    Schlagenhauf & Sehlagenhauf, for appellees.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    A. M. Myers et al., appellants, v. John M. Gerhardt, appellee.
    Gen. No. 8,354.
    Opinion filed February 3, 1930.
    A. C. and B. F. Anderson, for appellants.
    Vause & Eager, for appellee;
    J. I. Dilsaver, of counsel.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    The Rankin-Whitham State Bank, appellant, v. James Mulcahey et al., appellees.
    Gen. No. 8,361.
    Opinion filed February 3, 1930.
    Hall & Holaday, for appellant;
    Arthur R. Hall, of counsel.
    Alfred A. Johnson and Acton, Acton & Snyder, for appellees.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    Clarence Wyer, appellee, v. Emil A. Ekstrand, appellant.
    Gen. No. 8,370.

      Opinion filed February 3, 1930.
    Rehearing denied April 4, 1930.
    Herrick & Herrick and Barr & Thomas, for appellant.
    F. T. Carson and C. H. Swiek, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the' court.


text:
    Sarah McGowan, appellee, v. David N. Conwill, appellant.
    Gen. No. 8,372.
    Opinion filed February 3, 1930.
    Oscar J. Putting, for appellant.
    Frank L. Trutter, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    Shaffer Oil & Refining Company, appellee, v. Nettie M. Webb, appellant.
    Gen. No. 8,383.
    Opinion filed February 3, 1930.
    Rehearing denied April 4, 1930.
    Stone, McLaren & Webb, for appellant.
    E. P. Nischwitz and Clarence W. Heyl, for appellee.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court. -


author: Mr. Justice Shurtleff

text:
    The People of the State of Illinois, defendant in error, v. Samuel Sincere, plaintiff in error.
    Gen. No. 8,336.
    Opinion filed February 3, 1930.
    Acton, Acton & Snyder, for plaintiff in error;
    William M. Acton,of counsel.
    Elmer O. Furrow, for defendant in error;
    Louis J. Bremer and O. W. Longenecker, of counsel.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Carolina Cobetto, appellant, v. Frank Cobetto, appellee.
    Gen. No. 8,363.
    Opinion filed February 3, 1930.
    Rehearing denied April 4, 1930.
    Major & Major, for appellant.
    Dryer & Brown, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    Frank Griesser, appellee, v. Reisch Brewing Company, appellant.
    Gen. No. 8,368.
    Opinion filed February 3, 1930.
    Rehearing denied April 4, 1930.
    A. M. Fitzgerald and H. C. Moore, for appellant.
    G. G. Ginnaven, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


author: Per curiam.

text:
    A. F. Huber for use of W. F. Crumbaugh, trading as Peoples Oil Company et al., appellants, v. A. J. Walters et al., trading as H. W. Wrigley & Company and Farmers State Bank of Downs, appellees.
    Gen. No. 8,357.
    Opinion filed February 3, 1930.
    Earl C. Huggins, for appellants.
    D. D. McKay, for appellees.
   Per curiam.


text:
    Travelers Insurance Company, appellee, v. George F. Reisch et al., trading as Reisch, Morgan & Reisch, appellants.
    Gen. No. 8,369.
    Opinion filed February 3, 1930.
    A. M. Fitzgerald and H. C. Moore, for appellants.
    Brown, Hay & Stephens, for appellee.
   Per curiam.


author: . Mr. Presiding Justice Barry

text:
    Fourth District.
    The People of the State of Illinois, defendant in error, v. William German, plaintiff in error.
    Opinion filed February 12, 1930.
    Matheny & Welker and F. M. Guinn, for plaintiff in error.
    Will M. Albert, for defendant in error.
   . Mr. Presiding Justice Barry

delivered the opinion of the court.


author: Mr. Presiding Justice Barry

text:
    Oliver Martin, appellee, v. Armour & Company, appellant.

      Opinion filed February 12, 1930.
    Pope & Driemeyer, for appellant..
    Kramer, Kramer & Campbell and R. E. Costello, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


author: Mr. Justice Newhall

text:
    Edward Morgenstern and Sybil Morgenstern, appellees, v. Mississippi Coal Corporation, appellant.
    Opinion filed February 12, 1930.
    M. 0. Cook, for appellant.
    C. E. Feirieh and W. O. Edwards, for appellees;
    Isaac K. Levy, of counsel.
   Mr. Justice Newhall

delivered the opinion of the court.


text:
    Harry Dortch, administrator of the estate of Eva Dortch, deceased, appellant, v. Alton & Eastern Railroad Company, appellee.
    Opinion filed February 12, 1930.
    M. R. Sullivan, for appellant.
    Keefe, Bandy & Listeman, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.


text:
    Goldie Poe, defendant in error, v. A. H. Whittington, plaintiff in error.
    Opinion filed February 12, 1930.
    Keefe, Bandy & Listeman, for plaintiff in error.
    MeGlynn & MeGlynn, for defendant in error.
   Mr. Justice Newhall

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    S. J. Gee et al., defendants in error, v. George C. Hoeppner et al., plaintiffs in error.
    Opinion filed February 12, 1930.
    Rehearing denied March 17, 1930.
    Linderman, Ramsdell & King, for plaintiffs in error.
    Shaw & Huffman, for certain defendants in error.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Charles Durfee, plaintiff in error, v. R. S. Morrow & Son et al., defendants in error.
    Opinion filed February 12, 1930.
    Rehearing denied March 17, 1930.
    Charles Durfee, pro se;

    John W. Browning and Grover E. Holmes, of counsel.
    Miley & Combe and Kane, Scott & Kane, for defendants in error.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Gus A. Eiskant and George M. Miller, trading as Miller Auto Laundry Company, appellees, v. Leo Kosydor, appellant.
    Opinion filed February 12, 1930.
    Louis Beasley and Edward C. Zulley, for appellant.
    Joseph B. McGlynn and R. E. Costello, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    W. S. Storment, appellant, v. A. N. Crutchfield, appellee.
    Opinion filed February 12, 1930.
    Holt & Holt, for appellant.
    W. G. Murphy, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    Zerweck Jewelry Company, appellant, v. East St. Louis Light & Power Company, appellee.
    Opinion filed February 12, 1930.
    P. K. Johnson and Whitnel & Browning, for appellant.
    Farmer & Klingel, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.