author: Mr. Presiding Justicb Barnes

text:
    The People of the State of Illinois, Defendant in Error, v. Joseph Clancy, Plaintiff in Error.
    Gen. No. 30,313.
    1. Contempt — assault by partisans of one suitor upon other party and associates in hall of court rooms as contempt. Where partisans of complainant in a suit on trial, after being admonished by the court to restrain their expressions of ill feeling towards the defendant, left the court room, concealed themselves in the hallway leading thereto, and there assaulted the defendant, his wife and his attorney when they emerged from the court room, thereby causing a disturbance such as to require the court to suspend proceedings in another trial and send bailiffs to quell the disturbance, such acts constituted criminal contempt of court.
    2. Contempt — necessity of preliminary proceedings before infliction of summary punishment. Acts constituting a criminal contempt of court, if committed in the presence of the court, may be summarily punished, without formal preliminary proceedings.
    3. Contempt — nature of acts as test whether constituting direct contempt. The question whether particular acts constituted misbehavior in the presence of the" court must be determined from the nature of the facts themselves.
    4. Contempt — employment of unnecessary preliminary proceedings as restricting power of court to inflict summary punishment. The power of the court to commit for contempt persons guilty of acts in its presence in disturbance of its proceedings is not affected by the fact that prior to entering an order adjudging the parties to be in contempt the court directed the filing of an information, ruled each of the alleged contemnors to show cause why he should not be adjudged in contempt, and that each of such parties answered, denying the facts alleged in the informations, such preliminary proceedings having been unnecessary and superfluous, and the consequent delay for the benefit of the contemnors.
    5. Contempt — acts immediately without court room door disturbing proceedings within as in presence of court. Where the proceedings of the court were visibly and audibly disturbed by an altercation occurring immediately without the door of the court room, the misbehavior of the participants, took place, constructively at least, in the presence of the court, and constituted direct contempt, as to which the court could proceed summarily, notwithstanding that it was necessary to call witnesses to establish the identity of the guilty parties.
    Error by defendant to the Superior Court of Cook county; the Hon. Haery A. Lewis, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed February 2, 1926.
    Rehearing denied February 17, 1926.
    Edward J. McCarthy and Leo A. O’Reilly, for plaintiff in error; Stewart & O’Brien, of counsel.
    Robert E. Crowe, State’s Attorney, for defendant in error; Henry T. Chace, Jr., Edward E. Wilson and Clarence E. Nelson, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justicb Barnes

delivered the opinion of the court.

By this writ plaintiff iú. error, Joseph Clancy, seeks reversal of an order sentencing him to jail for a period of six months for contempt of court. A like sentence, in separate orders, was imposed at the same time upon Dave Ostran and Edward Deckert, each of whom has sued out a writ of error, the former in case No. 30,314 and the latter in case No. 30,315, which have been consolidated with this case for hearing upon the same record and practically the same state of facts.

The facts upon which the order was entered, most of which are recited in the order, are as follows:

On May 20, 1925, a certain case entitled Ethel Cronin v. Frank Cronin, then pending in the superior court of Cook county, came on for hearing before his honor, Judge Harry A. Lewis, on a motion to modify a previous order entered therein, which, after partial hearing, was continued to a later day in the term. Said Clancy was present as a witness for his stepdaughter, complainant in the case (who was then the wife of said Edward Deckert). So much ill feeling and untoward conduct was displayed by the parties to the cause and those interested with them that the court on continuing the cause felt it necessary to admonish said Clancy and others and to advise restraint upon their conduct. Thereupon said Clancy and those connected or interested with the complainant in the cause, including said Ostran and Deckert, left the court room by its only door to the corridor or hallway of the building, which at the time stood open, and concealed themselves behind it awaiting the exit of defendant to the cause, his three children, his attorney, and his present wife, who, to avoid them, went into the jury room connected with the court room and waited there about fifteen minutes before making their exit from the court room through said open door. Immediately upon their coming into the corridor a violent onslaught and attack was made on them by said Clancy, Ostran and Deckert, one of them assaulting defendant Cronin, one his wife Margaret and the other his attorney, and causing such commotion, noise and excitement in and about the court room as to require the court to suspend the hearing of a cause then on trial and to direct its bailiff and clerk to go into the corridor to quell the disturbance so it could resume its duties. Upon said facts the court adjudged each of said parties, Clancy, Ostran and Deckert, to be in direct contempt of court.

It appears from the record that the court directed an information to be filed and entered a rule thereon against each of said offenders to show cause why he should not be held in contempt, and that each answered denying in the main the specific charges in the information. At the hearing had later in the term witnesses were called and heard over the objections of said contemnors who contended that the acts with which they were charged in the information did not take place in the presence of the court, and constituted constructive contempts, of which they stood purged by their sworn denials. In ruling upon the objections the court stated in effect that the matters charged in the information took place in its presence and with its knowledge, and that therefore it could and would proceed without the intervention of an information, rule and answer, which it allowed merely as a matter of grace to give contemnors the fullest opportunity for explanation or exculpation. And the order adjudging them to be in contempt recites that the hearing was had upon the statement of the court to said effect, as well as upon said information, rulé and answer, and upon the evidence taken in open court. The order then proceeds to find the facts in substance as above stated.

That such a state of facts constituted a criminal contempt cannot be questioned, and it is conceded that, if they took place outside of the presence of the court, it is a constructive contempt which required such preliminary proceedings, and in such case, if the answer sufficiently denied the facts charged in the information, the contemnors should have been discharged. On the other hand, if the contempt was committed “in the presence of the court,” as that phrase is construed, it was a direct contempt and no formal preliminary proceedings were necessary. The court could act summarily as it undertook to do in- the instant case. (Peo ple v. Gard, 259 Ill. 238; In re Savin, 131 U. S. 267; Rapalje on Contempts, secs. 22, 23.)

But the difference in procedure does not affect the question whether the particular acts constitute misbehavior in the presence of the court. (In re Savin, supra.) That question must be determined from the nature of the facts themselves. If they took place in the presence of the court then the prehminary proceedings it directed were unnecessary and superfluous (People v. Cochrane, 307 Ill. 126; Tolman v. Jones, 114 Ill. 147; Rapalje on Contempts, sec. 93; 13 Corpus Juris, p. 63), and did not vitiate the proceedings for direct contempt. Utile per inutile non vitiatur. Preliminary proceedings were had in the Gard case, supra, but the court held that the acts having been committed in the presence of the court were a direct contempt and that the order of commitment could have been lawfully made without the prehminary proceedings (p. 242).

Nor was the court bound to proceed at once. It might do so at any time within the term, as it did, for its jurisdiction remained and the delay and direction for prehminary proceedings were, as stated by the court, for respondent’s benefit and in no- sense to his prejudice. (Middlebrook v. State, 43 Conn. 267, 269.)

As these principles relating to procedure are hardly-open to question, the real controversy presented by the record is: (1) whether the contempt was committed in the presence of the court; and (2) if so, whether the court could hear evidence necessary to identify the guilty parties.

In Stuart v. People, 4 Ill. (3 Scam.) 395, and People v. Wilson, 64 Ill. 195, it was held that acts calculated to impede, embarrass or obstruct the court in the administration of justice will be considered as done in the presence of the court. It cannot be doubted that such was the effect of the acts here complained of. In Dahnke v. People, 168 Ill. 102, it was held that where the court was disturbed and interfered with in its proceedings by the conduct of the custodian of the court building in changing the locks on the door of the court room and refusing to permit one of the judges to enter it for the purpose of holding court it constituted a direct contempt. In the Savin case, supra, it was held that an attempt to bribe a witness in a hallway of the courthouse, was committed in the presence of the court. A like ruling on a like state of facts was made in Fisher v. McDaniel, 9 Wyo. 457. In United States v. Emerson, 4 Cranch, C. C. 188, it was held that where there was an altercation and blows were struck in the entrance hall separated from the court room by a door without panels, but covered with a cloth so as to afford but slight obstruction to the sound, they took place in the presence of the court and constituted a direct contempt. While in the latter case, as in this case, the court had direct knowledge of the disturbance through the sense of hearing, in the other cases cited it had no direct knowledge of the affairs through the senses, but had to be informed thereof. In the case of People v. McDonald, 314 Ill. 548, cited by plaintiff in error, an attorney in the case was assaulted in the hallway off the court room, but the court was not in session and the judge had no personal knowledge of the assault until apprised thereof the next morning when summary proceedings were had. But here the facts are entirely different. The court was in session and the interference and obstruction to its proceedings from the disturbance in the hallway were as direct and manifest as if they had taken place inside the court room. Under such circumstances we think the acts constituting the contempt must be held to have been “in the presence of the court.”

But it is urged that as the court had to be informed of the identity of the guilty parties the case cannot properly be regarded as one of direct contempt in which summary proceedings may be had. This contention assumes, that no. testimony can properly be heard in a case of direct contempt; that no matter how or to what extent the court is disturbed or impeded in the performance of its duties, to constitute direct contempt authorizing summary proceedings every detail necessary to constitute it must come within the actual personal knowledge of the judge. But no case has been called to. our attention where knowledge thus acquired is held indispensable to the assumption of jurisdiction to proceed summarily. In fact irL most of the cases above cited, holding that the contempt was committed in the presence of the court and warranted summary proceedings, it became necessary to hear some evidence to inform the court of some essential facts. Here the court had complete knowledge of the real matter that constituted the contempt, namely, the disturbance of its proceedings. The only information it required to exercise its authority in a summary way was as to the identity of the guilty parties. It seems absurd that in such a case the court is powerless to assert its dignity and authority at once without the delay and formalities incident to preliminary proceedings necessary in ease of constructive contempt. While in the latter, the party charged is afforded an opportunity to purge himself, no complaint can be urged on that score, as the same opportunity was given in the instant case by inviting the respondent to testify. He refused to avail himself of the privilege, preferring to stand upon the alleged irregularity of the proceedings.

We do not think, therefore, that a summary proceeding is necessarily confined to matters which come within the actual vision and hearing of the judge himself. In the case at bar, the court’s proceedings were visibly and audibly disturbed by assaults just outside its entrance door. Under authorities cited they took place in its presence, constructively at least, and constituted direct contempt in which a court may proceed summarily, even though, as we think, it has to call witnesses to establish the identity of the guilty parties.

The judgment will be affirmed.

Affirmed.

Gbidley and Fitch, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    First National Bank of Los Angeles, Appellee, v. The National Produce Bank of Chicago, Appellant.
    Gen. No. 30,147.
    1. Banking — power of national lank to act as accommodation guarantor of.acts of another. A national bank hasi no power, under the national banking acts, to guaranty, merely for the accommodation of another, the performance of an obligation in which it has no interest and from which it derives no benefit.
    2. Guaranty — sufficiency of evidence to show agreement of lank as to payment of draft upon depositor a contract of guaranty. Evidence held to show, in an action by one national bank against another based upon a contract created by telegrams from defendant to plaintiff guaranteeing payment of certain drafts covering intended shipments to defendant’s depositor, that the contract was one by defendant to pay said drafts in the event of their nonpayment by the depositor.
    3. Guaranty — sufficiency of evidence to show agreement of lank as to payment of draft upon depositor a contract of guaranty for accommodation. Evidence held to show, in an action by one national bank against another upon a contract created by telegrams from defendant to plaintiff guaranteeing payment of certain drafts covering intended shipments to a depositor of defendant, that the contract was one of guaranty for the accommodation of the depositor, for the performance of an obligation in which defendant had no interest and from which it derived no benefit.
    4. Guaranty — sufficiency of evidence to show knowledge of promisee that guaranty for accommodation and ultra vires the guarantor. In an action by one national bank against another upon a contract created by telegrams from defendant to plaintiff guaranteeing payment of certain drafts covering intended shipments to a depositor of the defendant, evidence held to show that plaintiff had full knowledge of the fact that such contract was one of guaranty, for the accommodation of the primary obligor, that defendant had no interest therein and derived no benefit therefrom, and that such contract was beyond the power of the defendant, under its charter, to make.
    E. Banking — agreement of national bank as to payment of draft upon customer cls letter of credit. Telegrams from one national bank to another, stating "Payment guaranteed” as to certain drafts therein described as drawn by the consignor of certain shipments and against the consignee thereof, sent at the request of such consignee, a depositor of the sender bank, cannot be construed as a letter of credit and hence binding upon the sender bank, since the telegrams, constituting the sole evidence of such contract, contained no promise to pay a draft drawn on the sending bank, nor promise to pay any draft in the first instance, nor did they show any facts warranting an inference that such was the intention or understanding of the parties.
    Appeal by defendant from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Reversed.
    Opinion filed February 2, 1926.
    Loucks, Eckert & Peterson, for appellant; Schuyler, Ettelson & Weinfeld, of counsel.
    Gardner, Foote, Burns & Morrow, for appellee; Walter M. Fowler, of counsel. -
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a judgment for $4,387.51, based upon two telegrams from defendant to plaintiff, in code, the first of which, when translated, reads as follows:

“Payment guaranteed Fay Fruit Company draft on Nellis & Co. for $1,943 covering car oranges SFBD 8687 invoice and bill of lading attached to draft,” and the second of which, when translated, reads as follows :
“Payment guaranteed Fay Fruit Company draft on Nellis & Co. for $2,006.05 covering car oranges SFBD 12381 invoice and bill of lading attached to draft.”

It was stipulated that the letters “SFBD” mean Santa Fe Befrigerator Dispatch.

These telegrams are dated May 7, 1920, and were sent by defendant to plaintiff upon the written request of F. E. Nellis & Company, of Chicago, to “Kindly wire First National Bank of Los Angeles, Calif., guaranteeing payment of the Fay Fruit Co.’s draft on us” for the amounts and purposes mentioned in the telegrams. It appears from the evidence that when these telegrams were sent, Nellis & Company was a depositor in the defendant bank, and had been such for at least ten years, and it was stipulated that its deposit with defendant bank was at all times considerably more than enough to cover the amount of both drafts. The defendant’s cashier testified that the account was an ordinary checking account and “there was no stop of any kind on any portion of it”; that defendant did not set aside any deposits of Nellis & Company or make any charge of any kind against their account, 1‘ or any notation of any character, ’ ’ to protect itself on these drafts, and “did not receive anything of any character” from Nellis & Company for sending the telegrams to the plaintiff. This testimony was not contradicted. The cashier also testified that “it was a pure accommodation on our part,” but this statement was stricken out by the court as a conclusion of the witness.

When the telegrams were received by the plaintiff it notified the Fay Fruit Company of that fact, and on May 11,1920, purchased from that company two drafts, dated May 8,1920, corresponding to the telegrams and sent them, with invoices and bills of lading attached, to its correspondent in Chicago for collection. Meantime, the ears of oranges had arrived in Chicago, consigned to Nellis & Company, but as no bills of lading had been sent to the consignee, the railroad company refused to deliver the oranges, and a delay of one day occurred before the railroad company was authorized by telegram from the Fay Fruit Company to “release the cars” to Nellis & Company. When that was done, Nellis & Company inspected the oranges and, finding that about one-fourth of the fruit had decayed and become unmarketable, refused to accept the shipment.. When the drafts arrived in Chicago, they were first presented to defendant and not paid, and then to Nellis & Company, and, upon the refusal of the latter to pay them, were protested.

The declaration is in assumpsit, containing the common counts and a special count upon the telegrams. The defense is that the contract specially declared on is ultra vires and void.

Both parties to the suit are national banks, but their counsel disagree as to the legal effect of the telegrams. Defendant’s counsel contend that the telegrams are not promises to pay drafts drawn on the defendant, but are promises by defendant to guarantee the payment of drafts drawn on a third party, and that such promises, when made by one national bank to another, in a matter in which the promisor has no interest, are ultra vires and void. Plaintiff’s counsel contend that the telegrams are, in legal effect, letters of credit, which national banks have power to issue as incident to their banking business.

In Border Nat. Bank v. American Nat. Bank, 282 Fed. 73, 77, it is said:

“A guaranty is a promise to answer for the payment of some debt, or the performance of some obligation, in case of the default of another person, who is in the first instance liable for such payment or performance. A letter of credit confers authority upon the person to whom it is addressed to advance money or furnish goods on the credit of the writer. Daniel on Negotiable Instruments (6th Ed.), §§1752, 1790, 12 R C. L. 1053,1065. It is well settled that the guaranty of a national bank is ultra vires. 3 R. C. L. 425. But a national bank is bound by its letter of credit. Decatur Bank v. St. Louis Bank, 21 Wall. [U. S.] 294, 22 L. Ed. 560.”

In the present case, the telegrams upon which the suit is brought do not, in terms, purport to confer any authority upon plaintiff to advance money “on the credit' of the writer.” If that had been the intention of “the writer” (defendant), it would have been an easy and simple matter for it to use language appropriate to express that intention, as was done in American Steel Co. v. Irving Nat. Bank, 266 Fed. 41. While such a guaranty as is above defined is not necessarily imported by the use of the word “guarantee” (12 R. C. L. 1055), yet that is the ordinary acceptation of the word (12 R. C. L. 1053), and if there are no facts or circumstances indicating a different intention, the words used by the parties themselves must be given their ordinary and usual meaning. As we view the evidence, there are no facts or circumstances in the record that indicate a different intention and none that are not entirely consistent with the ordinary meaning of the language employed. The telegrams purport, in terms, to guarantee the payment of the drafts of the Fay Fruit Company upon Nellis & Company for the agreed price of oranges sold by the former to the latter. The drafts had not been drawn at the time the telegrams were sent, but were drawn the next day thereafter. Upon the face of each of them, and above the signature of the Fay Fruit Company, was written, in red ink, presumably before plaintiff purchased the same: “Guaranteed by Nat. Produce Bank, Chicago, 111., May 7/20.” Nellis & Company was the drawee named in the drafts and was primarily liable; and if any effect is to be given to the ordinary meaning of the word “guarantee,” appearing both in the telegrams and upon the face of the drafts, defendant’s telegrams certainly come within the above-quoted definition of guaranties. If that word was used in any other or different sense,- the burden was on the plaintiff to show that fact, and no such fact was shown.

The general rule is well settled that a national hank has no power, under the national banking acts, to guarantee, merely for the accommodation of another, the performance of obligations in which it has no interest, and from which it derives no benefit. (Bowen v. Needles Nat. Bank, 36 C. C. A. 553, 94 Fed. 925.) “Such an act is an adventure beyond the confines of its charter, and, when its true character is known, no rights grow out of it.” (Merchant’s Bank of Valdosta v. Baird, 90 C. C. A. 338, 160 Fed. 642.) If a bank transcends its power in this respect, its obligation is totally void in the hands of one having notice of the fact that it was made for accommodation. (Morse on Banks and Banking — 5th ed. — secs. 65, 745.)

“A national bank may indorse or guaranty the payment of commercial paper which it holds, when it re-discounts or disposes of the same in the ordinary course of business. Such power, it seems, a national bank may exercise as incident to the express authority conferred on such banks by the national banking act to discount and negotiate promissory notes, drafts, bills of exchange, and other evidences of debt (Peoples’ Bank v. Manufacturers’ Nat. Bank, 101 U. S. 181, 183; United States Nat. Bank v. First Nat. Bank, 49 U. S. App. 67, 24 C. C. A. 597, and 79 Fed. 296); but it has never been supposed that the hoard of directors of a national bank can hind it by contracts of surety-ship or guaranty which are made for the sole benefit and advantage of others. The national banking act confers no such authority in express terms or by fair implication, and the exercise of such power by such corporations would be detrimental to the interests of depositors, stockholders, and the public generally.” (Commercial Nat. Bank v. Pirie, 27 C. C. A. 171, 82 Fed. 799, 802.)

The case of First Nat. Bank v. American Nat. Bank, 173 Mo. 153, is a case which is very similar to this case. O. C. Lieuallen, of Idaho, shipped certain potatoes to Clemons & Co., of Kansas City, on the agreement of the latter to advance fifty cents per hundred pounds thereon. Lieuallen applied to the plaintiff, a national bank in Moscow, Idaho, to cash his drafts on Clemons & Co. for the amount agreed to be advanced, but the plaintiff refused to cash them unless Clemons & Co. ’s bank (defendant) would telegraph the plaintiff to pay the-drafts. Thereupon, at Clemons & Co.’s request, his bank sent two telegrams to the Idaho bank, the first of which reads as follows:

“Drafts of C. C. Lieuallen drawn on C. C. Clemons & Company with bills lading attached for three cars choice sacked potatoes, valuation fifty cents per hundred pounds, will be paid.”

The second is in the same form except the statement that it is for “three more cars.” On receipt of these telegrams, the Idaho bank cashed three drafts drawn by Lieuallen on Clemons & Co., payable to that bank, and having the bills of lading for the potatoes attached thereto. The drafts were dishonored by Clemons & Co. and payment was refused by the Kansas City bank, although Clemons & Co. received all the potatoes and sold them, and never paid for them. The Idaho bank brought suit against the Kansas City bank on the drafts. The main defense was ultra vires, to which the plaintiff pleaded estoppel. The opinion states that:

“The trial took a wide range, as to the character of the potatoes, the custom of banks in like cases, and the meaning of the telegrams themselves, as to whether they would be taken in banking circles to be a promise by the bank to pay the drafts or that Clemons would pay them, or simply as an expression of opinion as to Clemons & Company’s standing and financial responsibility.”

It was admitted that Clemons & Co. were customers of the defendant bank and had on general deposit with it, at the time, more than enough money to pay the drafts, though none of it had been specially set apart for that purpose.

After reciting these facts in its opinion, the court held, in substance, that the powers of a national bank ■ are essentially matters for federal construction and interpretation, and that State courts must yield to the decisions of the federal courts construing the powers of such banks under the national banking act; that section 5136 of the United States Compiled Statutes of 1901, vol. 3, prescribes the powers of national banks;that:

“This law has undergone thorough and exhaustive adjudication in the courts of the United States, and, briefly stated, the rule declared is that a national bank has no power, either with or without a sufficient consideration, to agree or bind itself that a draft of A. upon B. will be paid; that such agreement is a mere guaranty and is not within the powers conferred upon such banks, and that when sued upon such a contract the bank can successfully interpose a defense of ultra vires,” citing a number of federal decisions and quoting at length from the opinion in Commercial Nat. Bank v. Pirie, supra. The opinion adds that “this rule of the federal courts has been yielded to. and enforced in State courts,” citing Thilmany v. Iowa Paper Bag Co., 108 Iowa 357, and Groos v. Brewster (Tex.), 55 S. W. 590, and concludes that the contract is void and the plaintiff is not entitled to recover.

In National Bank of Brunswick v. Sixth Nat. Bank, 212 Pa. St. 238, Brown & Co. were dealers in melons in the State of Georgia, and J. F. Eilenberg was a produce dealer in the City of Philadelphia. On June 17, 1902, the cashier of the Sixth National Bank, of Philadelphia (defendant) wrote to the National Bank of Brunswick, Georgia (plaintiff), as follows:

“We will accept drafts drawn on J. F. Eilenberg by Brown & Company for watermelons and cantaloupes, melons not to exceed $100 per car and cantaloupes not to exceed $500 per car, bills of lading attached, until further notice.”

In reply, the cashier of the plaintiff wrote:

“We beg to own receipt of your valued favor of the 17th inst., guaranteeing drafts to be made by Brown & Company, on J. F. Eilenberg against bills of lading for watermelons and cantaloupes at the rate of $100 per car for the former and $500 per car for the latter.”

Thereafter Brown & Co. drew nine sight drafts on Eilenberg in favor of the plaintiff, and attached to each draft a bill of lading for a carload of melons. By agreement between the. plaintiff and Brown & Co., these drafts were placed to the credit of another depositor in that bank and the credit given to such other depositor was the consideration paid for the drafts by the plaintiff. Seven of them were sent by plaintiff to its Philadelphia correspondent, and when payment was refused, plaintiff brought suit in assumpsit against the Philadelphia bank on its promise above quoted. The court held that “defendant’s contract was a guaranty of the payment of the drafts by Eilenberg to be drawn on him by Brown & Company, in payment for the melons ’ ’; and that a national bank has no power “to become accommodation indorser or guarantor of the payment of the debt of another without benefit to itself.” The opinion states that: “So far as we are advised, the question has not been determined by the Supieme Court of the United States, but the inferior courts of that jurisdiction have uniformly put this construction on the powers of a bank chartered under the national banking act, and as the subject is one of federal origin and of federal control, we must follow those precedents.”

In Nowell v. Equitable Trust Co., 249 Mass. 585,144 N. E. 749, Lee, Higginson & Co., bankers, issued a letter of credit to the J. F. Mosser Co., Inc., engaged in trade in Argentina, in the sum of $50,000, on the written agreement of the latter, contemporaneously executed, to furnish funds to meet all drafts drawn by it against the letter of credit one day before maturity. Thereafter, the Equitable Trust Co. executed an agreement by the terms of which it did “guarantee, promise and agree to and with” Lee, Higginson & Co. that the Mosser Co. would perform its agreement. In an action brought by Lee, Higginson & Co. under the guaranty, the trust company contended the contract of guaranty was ultra vires. It appears from the opinion that the powers of a trust company under the Massachusetts laws at that time were similar to those of a national bank under the national banking act, and the court said as to the agreement of the trust company:

“It was not an agreement to pay drafts or bills of exchange drawn on this trust company. It was not an acceptance of such instruments already drawn or to be drawn in the future. It was not the issuance of a letter of credit. * * * It related to payment of drafts arising out of importations of goods and to liabilities primarily undertaken under a letter of credit. The drafts which were the subject of the guaranty were not drawn on the guarantor, but on the plaintiffs. The letter of credit was not issued by the defendant, but by the plaintiffs. The security of the bills of lading and other papers and of the imports was not assured to the defendant but to the plaintiffs. * * * A guaranty of the financial obligations incurred by an importer to another banker is different in kind from the business described in the sections delimiting the corporate poioers of a trust company. It is not fairly incidental to the powers there conferred. All these considerations lead us to the conclusion that this contract of guaranty was ultra vires the trust company.” (Italics ours.)

The opinion also mentions the fact that there was uncontradicted testimony at the trial that it was the custom for trust companies to guarantee letters of credit, but the court said: “Such a custom cannot stand against a rule of law,” citing authorities.

The same principle is also recognized in the following cases: First Nat. Bank v. Monroe, 135 Ga. 614; Fidelity & Deposit Co. v. National Bank of Commerce, 48 Tex. Civ. App. 301, 106 S. W. 782; Thilmany v. Iowa Paper Bag Co., 108 Iowa 357; Knickerbocker v. Wilcox, 83 Mich. 200; Norton v. Derry Nat. Bank, 61 N. H. 592.

It is to be noted, however, that the rule announced in the foregoing cases has no application when the contract has been fully performed by the other party and the promising bank has had the benefit of the performance and of the contract. In the Massachusetts case cited, it was held that this exception applies only in instances where the fruits of the ultra vires contract have enured to the benefit of the corporation setting up ultra vires as a defense, and is not applicable to cases where the benefit of the executed contract has gone to> some one else. To the same effect is the case of Citizens’ Central Nat. Bank v. Appleton, 216 U. S. 196. The uncontroverted testimony in the present case is that the defendant received no benefit whatever from its guaranty.

From the foregoing authorities, we. conclude that the contract evidenced by the telegrams in question was a contract by the defendant to answer for the debt of Nellis & Company to the Fay Fruit Company for the price of the oranges therein mentioned, in case of the refusal of Nellis & Company to pay the drafts. We conclude, further, from the undisputed evidence, that defendant’s contract was. a guaranty, for the accommodation of Nellis & Company, of the. performance of obligations in which defendant had no interest and from which it derived no benefit whatever, and that plaintiff had full knowledge of that fact and of the lack of power on the part of the defendant, under its charter, to make such a contract. It follows, we think, that the contract was ultra vires and that no action can be maintained on it.

Plaintiff’s counsel insist, however, that the Federal Court of Appeals, in several comparatively recent cases, has construed promises which are very similar to the promises of defendant to be, in legal effect, letters of credit and therefore binding upon the bank making the promises. In support of this contention, the cases of Border Nat. Bank v. American Nat. Bank, supra; Second Nat. Bank of Hoboken v. Columbia Trust Co., 288 Fed. 17; Bank of Plant City v. Canal-Commercial Trust & Savings Bank, 270 Fed. 477, and Pan-American Bank & Trust Co. v. National City Bank, 6 Fed. (2d) 762, are mainly relied upon.

In Border Nat. Bank v. American Nat. Bank, supra, Joseph De Bona, a sugar broker at Eagle Pass, Texas, wrote Maldonado & Co., brokers in San Francisco, asking for prices on sugar. Maldonado & Co. replied offering to sell a large quantity of sugar at a certain price “upon being furnished with an irrevocable letter of credit by wire.” Thereupon, at De Bona’s request, his bank (the Border National) wired Maldonado’s bank at San Francisco: “We guarantee irrevocably payment for account Joseph De Bona covering purchase of” the specified quantity of sugar, “drawing on us with railroad bills lading and/or warehouse receipts attached.” The opinion states that the sugar was shipped and the sellers’ bank paid out “on its letter of credit” $96,310 and then presented Maldonado & Co.’s draft for $98,594.88, payable to itself, with bill of lading, warehouse receipts and other documents, to the Border National Bank, but the latter refused payment of the draft and the sugar was sold at auction. After reviewing the correspondence between the parties, the. court held that notwithstanding the use of the words “we guarantee payment,” etc., it was the intention, of the parties to the sugar contract to secure it by a letter of credit, saying:

“Maldonado & Co. required that form of security as a condition precedent to their offer. That offer was accepted by De Bona as made. The American Bank was also making the same requirement. The Border Bank was fully cognizant of the correspondence between the parties to the sugar contract. It therefore knew of the requirement that a letter of credit be furnished. * * * The only reasonable conclusion from the evidence is that the banks, as well as the parties to the sugar contract, contemplated and intended a letter of credit. The defendant’s obligation is consistent with the intention of the parties. It does not purport to secure payment by De Bona, but for his account. The promise is not that defendant would pay if De Bona did not, but that defendant would pay in the first instance.” (Italics ours.)

No such facts appear in the present case to evidence such an intention of the parties. We have here only the evidence of the telegrams themselves, and they contain no promise to pay drafts drawn on the defendant, nor that defendant would pay “in the first instance.”

Second Nat. Bank of Hoboken v. Columbia Trust Co., supra, is a case similar to the one last cited. There, a concern in New York City sold to another in Hoboken 100 tons of sugar, to be shipped from Java, for which the purchaser agreed to pay “net cash against invoice * * * and delivery order, under banker’s confirmed letter of credit for $40,500,” to' be established in the seller’s favor with the Columbia Trust Company. In pursuance of this contract, the purchaser’s bank wrote the Columbia Trust Company: “We hereby guarantee the account of” the purchaser “to the amount of $40,500, covering their contract. * * * We agree to pay you this amount upon presentation of delivery order and proper document certified by transporting steamship company that the sugar is held by them subject to delivery on presentation of said order.” After the price of sugar had dropped, the purchaser’s bank, at his direction, refused to pay the draft for the agreed price of the sugar, and the court construed the contract to be, in legal effect, a letter of credit, because that was what the parties intended. No such intention appears in the present case.

In Pan-American Bank & Trust Co. v. National City Bank, supra, the opinion of the majority of the court, for the same reason, construed, a similar contract, which was the result of considerable correspondence between the banks, resulting in the Pan-American bank establishing, through the City bank, “a sight credit” for about $800,000 with the Bio de Janeiro correspondent of the latter, “cash against documents in New York,” to be a letter of credit, and not a guaranty. The court said: “The result of the paper writings in evidence was not that Pan-American guaranteed anything,” but that it agreed to pay the City bank “what it lawfully paid out, plus one-eighth of one per cent.” There is a dissenting opinion by Judge Hand, who Slays: “My trouble arises from the fact that the defendant’s obligation was certainly intended as a guaranty in accommodation of Seago & Co. and prima facie was ultra vires,” citing, as authority for this statement, the case of Nowell v. Equitable Trust Co., supra; but the conclusion of the majority of the court is based on the letters in evidence, which are wholly unlike anything in this case.

These three cases concede, on assume, that the general principle as to the powers of national banks in relation to guaranties is as stated in the earlier cases above cited, but hold that the question whether any particular transaction is ultra vires is one of intention, to which the court will give effect, when ascertained from the evidence, even though some of the language used, if standing alone, would be decisive.

In Bank of Plant City v. Canal-Commercial Trust & Savings Bank, supra, there were two telegrams, the first of which was:

“We guarantee payment sight draft W. J. Hawkins on S. Segari Company bill of lading attached to draft covering one car tomatoes shipped yesterday fancy three dollars crate choice two seventy five.”

This telegram was confirmed by letter containing the following:

“We trust that it has been convenient for you to accept our guaranty and that you will allow this draft to come to us direct for collection, we guaranteeing prompt payment.”

The second telegram was as follows:

“We will honor sight draft of W. J. Hawkins bill lading attached covering car tomatoes on S. Segari & Company.”

The court held that the Plant City bank was liable upon both telegrams. The opinion states that the first telegram was a ‘ ‘ guaranty ’ ’ to the plaintiff of the sight drafts which were to be drawn by Hawkins on Segari & Co., and that the second telegram was. a direct promise to the Plant City bank to pay a specified draft, and was, in effect, a special letter of credit. Neither of the parties to that suit was a national bank, and it does not appear from the opinion that any question was raised as to the power of the defendant bank to make such a guaranty as the court held the first telegram to be.

Counsel for defendant also contend that even if it be assumed that defendant had the power to guarantee the payment of the drafts in question, still it must be held that it did so. only on condition that the drafts should constitute a valid, binding obligation against Nellis & Company, and that the condition was never fulfilled. In support of this contention, counsel rely upon the case of Merchants’ Nat. Bank v. Citizens’ State Bank, 93 Iowa 650. There, one Butts, who was in the wholesale fruit business in Council Bluffs, ordered of one Arentz, a dealer in oranges at Ocala, Florida, a carload of oranges, which was shipped to Council Bluffs by Arentz, who made a draft on Butts for the price of the oranges, payable to the Merchants’ National Bank of Ocala. Before that bank bought the draft, it required a guaranty of payment to be made by a bank in Council Bluffs, and Butts induced the cashier of the Citizens’ State Bank of Council Bluffs to send the Florida bank a telegram as follows: “Will guaranty Butt's’ draft for cay oranges from B. Arentz.” The oranges arrived in Council Bluffs in bad order, and Butts refused to receive them, and refused to pay the draft. In an action brought on the guaranty, the defendant pleaded ultra vires, and also that the oranges were never delivered to Butts and that he never accepted the draft. The court held that as there was never any actual or constructive delivery of the oranges to Butts, and because of the form of the alleged guaranty,

“The conclusion is irresistible that the defendant did not undertake to guarantee the payment of anything for which Mr. Butts should not be liable. Its liability wasr not intended to be extended beyond his, and the form of. the guaranty was sufficient notice to the plaintiff of the fact.”

The court therefore held that as Butts never became liable on the draft, defendant’s guaranty never became operative, and there could be no recovery.

While we think there is much force in the position taken by the Iowa court in the case last cited, we think the other reasons we have given above are decisive, and prefer to rest our conclusion on them.

The judgment of the superior court is reversed, and as the facts are not controverted and the trial was before the court without a jury, the cause will not be remanded.

Reversed.

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


text:
    Ownby F. Hocker, Plaintiff in Error, v. Fred W. Welti et al., Defendants in Error.
    Gen. No. 30,277.
    1. Malicious prosecution — sufficiency of declaration charging successful conspiracy to cause commitment as insane. A declaration in case alleging in substance that defendants conspired to have plaintiff declared insane, with malicious intent to injure him and have him imprisoned, that they caused plaintiff’s wife to “swear to a complaint” charging him to be insane, caused his arrest and detention under a warrant charging him to- be insane, and by means of false testimony as to his mental condition, caused the county judge to adjudge him to- be insane and to order him committed, and that more than a year thereafter he was adjudged by the same court to be “sane and restored to his reason,” was demurrable if intended to state a cause of action for malicious prosecution, because failing to- allege want of probable cause for the lunacy proceedings, and a final determination thereof in plaintiff’s favor.
    2. Malicious prosecution — judgment of restoration to• sanity as final determination of lunacy proceedings in plaintiff’s favor. A, judgment of the county court that one formerly adjudged insane and ordered committed is “adjudged to be sane and restored to his reason” is not equivalent to a determination that the former judgment was erroneous, or that the order of commitment was improperly entered, for the purpose of establishing a predicate for an action of malicious prosecution.
    3. Abuse of process — sufficiency of declaration based upon procuring of warrant charging insanity and proceedings thereon. A declaration in case alleging a conspiracy to have plaintiff declared insane, and that the defendants caused a warrant to issue charging him with being insane and caused him to be arrested and detained thereunder, and thereafter by procuring false testimony as to his mental condition caused him to be adjudged insane and committed, held demurrable if considered as stating a cause of action for malicious abuse of process, because showing on its face that the process alleged to have been obtained with improper motives was regularly issued and was used for the purpose of its issuance.
    4. Conspiracy — sufficiency of declaration charging successful conspiracy to cause commitment as insane by use of false testimony. A declaration in case alleging a successful conspiracy to have plaintiff adjudged insane and committed to an asylum, and averring that it was accomplished by suborning witnesses to testify falsely as to plaintiff’s mental condition, is demurrable on the ground that plaintiff was not damaged by such false testimony, the declaration showing on its face that plaintiff was adjudged insane, and containing no allegation that he was not insane when so adjudged.
    5. Conspiracy — essential elements of action based upon successful conspiracy to cause commitment as insane by use of false testimony. It is an essential element of a cause of action for damages based upon a conspiracy to procure an indictment or prosecution, and the accomplishment of that purpose by the subornation of witnesses to swear falsely, that there shall appear to have been a want of probable cause for such indictment or prosecution.
    6. Fraud and deceit — public policy against maintenance of civil action based upon subornation of perjury. It is contrary to public policy to permit the maintenance of a civil action for damages predicated upon the suborning of witnesses to swear falsely.
    Error by plaintiff to the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the second division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed February 2, 1926.
    William S. Stahl, for plaintiff in error.
    Harry A. Biossat, for defendants in error.
   Mr. Justice Fitch

delivered the opinion of the court.

The question involved in this appeal is whether the superior court erred in sustaining a general demurrer to plaintiff’s declaration.

The declaration is in case. It consists of two' counts, the first of which alleges, in substance, that defendants, knowing that plaintiff was a man of good repute and engaged in lucrative employment, conspired to have him declared insane, with the malicious intent to injure him and bring him, into public disgrace and have him incarcerated; that they caused plaintiff’s wife to go before the clerk of the county court in Chicago and “swear to a complaint” charging plaintiff to be insane, and “by reason of false and untrue statements and representations ’ ’ they secured a letter from a Chicago physician to the effect “that plaintiff was a man of unsound mind and needed institutional attention, ’ ’ and caused the same to be filed with the clerk of the county court, and caused a warrant to. issue against the plaintiff charging him with being insane, and caused. him to be arrested under such warrant and detained in the psychopathic hospital of Chicago; that, as a further part of the conspiracy, they procured witnesses to appear before the county court upon the hearing of “his case,” and to give false testimony “in regard to his mental condition” and in regard “to the acts, doings and sayings of plaintiff,” and thereby caused the judge of the county court to find and to adjudge him insane, and to order him committed to a State hospital for the insane, where he remained from July 28, 1921, to February 6, 1922; that during that time, and thereafter until September 27, 1922, his “legal status” was that of an insane person; that on the date last mentioned he was ‘ ‘ adjudged to be sane and restored to. his reason,” by the finding and judgment of the same court, and that he brings his suit within two1 years “from the date of his restoration to reason by said county court. ’ ’ The second count is substantially the same, except that it is more specific in setting forth the alleged false testimony that was given in the hearing before the county court.

If the cause of action intended to be stated by the plaintiff is an action for the malicious prosecution of the insanity proceeding, it is fatally defective in not alleging a want of probable cause for the insanity proceeding and a final termination of it in favor- of the plaintiff. (Burt v. Smith, 181 N. Y. 1, 5.) The allegation that plaintiff was. “restored to his reason” by the second order of the county court is not equivalent to an allegation that the proceeding, alleged to have been instigated by the defendants, terminated in plaintiff’s favor. The second finding did not have the effect of determining that the first finding was erroneous, as seems tO' be contended in the reply brief of appellant’s counsel. Both findings are authorized by statute, but the second may only be entered subsequent to the discharge of a patient from the asylum, and upon evidence which satisfies the court “of his recovery,” i. e., that since the first order was entered, the patient has recovered the use of his normal mental faculties. (Cahill’s St. 1925, ch. 85, sec. 25.) "While the second order “restores the patient to all his rights as a citizen,” it does not adjudge that the first order was improperly entered.

There is a recognized distinction, in pleading, between actions for malicious prosecution and actions for malicious abuse of process. In the latter, want of probable cause and a termination of the suit are not required to be alleged or proved. But such an action is based upon the improper use of legal process, while here, the averments of the declaration show that although the process is alleged to have been obtained with improper motives, it was regularly issued, and was used for the purpose for which it was issued, namely, to detain the plaintiff until he could be tried on a charge of insanity. “Legal and legitimate use of process, though with a bad intention, is not a malicious abuse of process.” (Bonney v. King, 201 Ill. 47, 51.) It follows that the declaration is demurrable, if the cause of action intended to be set up is one for malicious prosecution, or for the malicious abuse of process.

Nor can the declaration be sustained as a statement of a cause of action against defendants for their alleged subornation of perjury regarding plaintiff’s alleged insanity, for several reasons, the first of which is that if plaintiff was in fact insane at the time, as the county court found — and there is no allegation in the declaration to the contra,ry — no damage could re-suit to the plaintiff from alleged “false testimony” to the effect that he was then insane.

Furthermore, while actions for damages resulting from an alleged conspiracy of that character have been generally superseded by the modern action on the case for malicious prosecution, yet even under the old practice the same averments as to want of probable cause, etc., were essential. 1 Chitty on Pleadings, *133, states, in substance, that formerly it was usual, in cases where several persons combined in the malicious, unfounded prosecution of a criminal charge, “to proceed by writ of conspiracy, but the action on the case is now the usual remedy.” In 3 Blackstone’s Commentaries, *126, speaking of destroying one’s reputation by malicious indictments and prosecutions, the author says: “The law has given a very adequate remedy in damages, either by an action of conspiracy * * * or, which is the more usual way, by a special action on the case for a false and malicious prosecution.” In Dunlap v. Glidden, 31 Me. 435, a judgment had been rendered in favor of (Hidden against Dunlap for the recovery of real estate, and thereafter Dunlap brought two' suits against (Hidden and others, alleging that the verdict was false and was procured by the defendants through fraud and perjury under a conspiracy to effect that purpose. The court held the actions were analogous to the action of conspiracy at common law, and that in such actions it must appear that the plaintiff has been acquitted or discharged from the prosecution against him. The court, adds: “But these actions have been superseded by the modern action for malicious prosecution, * * * in which action the plaintiff must show a want of probable cause as one of its essential elements.”

Another reason is even more conclusive. It is that if the declaration can be considered not as an action for malicious prosecution, but merely as a statement of a cause of action for damages resulting solely from the alleged acts of defendants in suborning witnesses to swear falsely in the insanity proceeding and thereby cause the finding of insanity to be entered against the plaintiff, the declaration is clearly demurrable, because it has been uniformly held that such an action cannot be maintained. (Stevens v. Rowe, 59 N. H. 578; Smith v. Lewis, 3 Johns. [N. Y.] 157; Taylor v. Bidwell, 65 Cal. 489; Young v. Leach, 27 App. Div. 293, 50 N. Y. Supp. 670.) In 24 L. R. A. (N. S.) 265, there is a case note upon the subject of perjury and subornation of perjury as grounds for civil actions. The annotator there states, in substance, that the great weight of authority is to the effect that m> action lies at common law for damage sustained by reason of perjury committed in a former suit where (as in this case) a party to such suit is also a party to the subsequent action for damages. Many cases are cited to that effect, some of which we have examined. The same note says the same rule applies to actions for damages for suborning witnesses to swear falsely, citing especially the opinion of Kent, C. J., in Smith v. Lewis, supra, holding that such an action would be “against public policy and * * * productive of endless litigation.” The only case we have found in this State on this question is Bell v. Senneff, 83 Ill. 122, where doubt is expressed as to whether such an action can be maintained, but the point was not squarely decided, for the reason that the question had not been discussed in that case. In Stevens v. Rowe, supra, it was said: “An action by the defeated party cannot * * * be maintained against a witness or witnesses for giving false testimony in favor of his opponent. Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury. Though not a party to the former suit and judgment, the merits of that judgment cannot be re-examined by a trial of the witness ’ testimony in a suit against him. The procedure, if permitted, would encourage and multiply vexatious suits and lead to interminable litigation.”

For the reasons stated, we are of the opinion that the demurrer was properly sustained, and therefore the judgment is affirmed.

Affirmed.

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


author: Mr. Justice Fitoh

text:
    The People of the State of Illinois ex rel. Alfio Murabito, Petitioner, v. Theodore F. Ehler, Municipal Court Judge, Respondent.
    Gen. No. 30,490.
    1. Time — computation of period for filing bill of exceptions where last day falls on Sunday. Where the last day for filing a bill of exceptions, pursuant to the original order granting thirty days therefor, fell on a Sunday, the last day is excluded in the computation, and an order entered on the preceding Saturday, extending the time for filing ten days, authorized the filing thereof on the tenth day after the following Monday.
    2. Mandamus — laches in filing petition to compel signature of bill of exceptions. Where relator in mandamus proceedings to compel signature of a bill of exceptions filed his petition at the same time that the record on appeal in the original case was filed, the writ will not be denied on the ground of laches.
    3. Mandamus — propriety of order to sign biU of exceptions where refusal based solely upon erroneous belief of want of jurisdiction. Mandamus will issue to compel signature of a bill of exceptions where no reason for refusal so to do was given other than the erroneous conclusion of the judge that the time within which he had jurisdiction to sign it had expired.

      Petition for mandamus to the Municipal Court of Chicago. .Heard in the second division of this court for the first district at the October term, 1925.
    Writ awarded.
    Opinion filed February 2, 1926.
    Webster, Holmes & Holmgren, for relator; Elmer N. Holmgren, of counsel.
    Jacob G. Grossberg and Julius Kabaker, for respondent.
   Mr. Justice Fitoh

delivered the opinion of the court.

This is a mandamus proceeding, by which the relator, who is the appellant in another cause pending in this court, seeks to compel the respondent, one of the judges of the municipal court of Chicago, to sign a bill of exceptions in that case.

The petition alleges that in December, 1924, a judgment by confession was entered in the municipal court against the relator and an execution was issued thereon and levied on his real estate; that in March, 1925, he filed a motion, supported by his petition, to stay the execution and. for leave to appear and defend; that the motion and petition (as amended) were heard on March 20, 1925, and at that time were denied, from which ruling he prayed an appeal to this court, which was allowed on his filing an appeal bond in twenty days and a bill of exceptions in thirty days; that he filed his bond within the time allowed, and on April 18, 1925, on his motion, “the time within which the relator might file his bill of exceptions was extended ten days from April 20, 1925, the 30 days so granted as aforesaid expiring on April 20,1925 ’ ’; that on April 30, 1925, he tendered a bill of exceptions, which respondent marked “Presented” at that time, but which, ever since that time, he has refused to sign.

To this petition respondent filed an answer admitting everything alleged in the petition, except the allegation that the order of April 18,1925, extended the time .for filing the bill of exceptions ten days “from April 20, 1925,” which is denied. The answer alleges that, in fact, the order entered on April 18, 1925, was in the following language: “The time for filing bill of exceptions extended ten days.” The answer then avers that under that order the time for filing the bill of exceptions expired on April 29, 1925, and that respondent was without jurisdiction or authority to sign it when it was presented to him for signature on April 30, 1925. These averments in the petition and in the answer as to the effect of the extension are obviously the pleaders’ conclusions from the facts recited.

The relator’s replication to the answer does not deny that the form of the order of April 18,1925, was as alleged in the answer, but denies the respondent’s conclusion therefrom, and repeats the relator’s conclusion or contention that, under that order, the time for filing his bill of exceptions was extended ten days from April 20, 1925.

It thus appears that the disagreement between the parties is as to the legal effect of the order which was entered on April 18, 1925, extending for ten days the thirty days’ time allowed on March 20, 1925. The cause for this disagreement is found in the fact that the thirtieth day after the date of the original order was Sunday, April 19, 1925. Relator contends that by analogy to the rule of statutory construction relating to the computation of “the time within which any act provided by law is to be done” (Cahill’s St. ch. 131, sec. 1, eleventh clause), the thirtieth day, being Sunday, must be excluded from the computation, and therefore the time fixed by the original order within which he might have presented and filed his bill of exceptions did not expire until Monday, April 20, 1925; from which it is argued that the ten days ’ extension given by the second order did not expire until ten days thereafter, viz., April 30, 1925.

In reply to this contention, the respondent admits that if the relator had presented his hill of exceptions on Monday, April 20, 1925 — the thirty-first day — it would have been presented in apt time for filing, because the last day of the time allowed was Sunday, and concedes that this is the effect of the ruling in the case of People v. Scanlan, 265 Ill. 609, 617. But as the bill was not presented on that day (evidently because the time for filing it had been extended), respondent insists that the thirtieth day, although a Sunday, ceased to be the “last day” in the computation of the time allowed as extended, and became merely an “intervening” Sunday, and hence was properly included in the computation made by him when the bill was presented to him on April 30, 1925.

In support of this contention Prior v. People, 107 Ill. 628, and Gordon v. People, 154 Ill. 664, are cited. These cases hold that Sunday is only to be excluded from such a computation when it is the last day of the time allowed. But in each of those cases the Sunday in question was clearly not the last day under any method of computation, while here the Sunday in question was in fact the last day under the terms of the original order. The decisions cited, therefore, are not of much help in this case, where the question involved is whether the fact that the last day of the time allowed by the first order was Sunday is material, or should be ignored, in computing the time allowed by the second order.

In construing a similar extension order, the late Mr. Justice Baker said, in Czajkowski v. Robinson, 124 Ill. App. 97: “Where time is given for the filing of a bill of exceptions and before the expiration of such time an order is made extending the time for filing the bill, the time so given is to be computed from the expiration of the time given by the former order. ’ ’

In applying this rule to the facts of this case, we must necessarily first determine what was the date of the expiration of the time given by the first order. That determination is simple, for respondent concedes that if the relator had presented his hill on Monday, April 20, 1925, it would have been in apt time. It is obvious that if the relator could have made a valid presentation on that day, the time limited by the first order did not expire until that day; and it follows, under the rule above quoted, that the ten days’ time given by the second order is to be construed as giving the relator ten days from April 20, 1925, within which to file his bill. Relator’s presentation of the bill on April 30, 1925, was therefore within the time allowed by the second order.

Respondent cites, as supporting his contention, the cases of Anniston Electric & Gas Co. v. Cooper, 136 Ala. 418, and Norman v. State, 147 Ala. 700. In the .first of these cases, an order was entered allowing the defendant thirty days within which to' present and file a bill of exceptions. No bill was presented within thirty days. The thirtieth day was Sunday. On the next day, the judge of the trial court entered an order extending the time for filing the bill of exceptions ten days. The Supreme Court held that this extension order was made after the time allowed in the first order had expired and was therefore void. It appears from the opinion that the Alabama statute regarding computation of time is in the same words as our statute, and it was contended that the thirtieth day being Sunday, it could not be counted in the computation of the thirty-day period allowed by the first order; but the court held that while “there is very great force in this contention as an original proposition,” still the “contention was foreclosed” in that State, because, twenty years before, the court had construed the statute in that State to mean that “while Sundays are generally to be computed in the time allowed for the performance of an act, if the last day happens to be Sunday, it is excluded, and the act must be performed on the day previous (Saturday).” This construction of the statute has never obtained in this State and is directly contrary to the view expressed in People v. Scanlan, supra.

The further point is made by respondent that the relator was guilty of laches in not presenting his petition for mandamus earlier. It appears from the record that the- appeal in the original case was perfected to the October, 1925, term of this court, and the petition for mandamus was filed at the same time the record was filed in that case. This being true, we think the relator was not guilty of laches.

As the respondent does not contend that there is any other reason than the one stated for refusing to sign the bill of exceptions tendered for his signature on April 30, 1925, we are of the opinion that he was in error in refusing to sign it as tendered. A writ of mandamus will therefore be awarded, commanding respondent forthwith to certify, sign and place on file in the municipal court the bill of exceptions presented to him on the 30th day of April, 1925.

Writ awarded.

Barites, P. J., and Gtridley, J., concur.


author: Mr. Justice Gridley

text:
    Frank Ehrenheim, by Frank J. Ehrenheim, Appellee, v. Yellow Cab Company, Appellant.
    Gen. No. 30,228.
    1. Highways and streets — due care of child struck by taxicab as question for jury. Evidence in an action ‘for damages for personal injuries to a child struck by a taxicab near a street intersection held to make the question of the due care of the child one for the jury.
    2. Highways and streets — proximate cause of injury to child by taxicab as question for jury. Evidence in an action for damages for personal injuries to a child struck by a taxicab near a street intersection held to make the question as to the proximate cause of the accident one for the jury.
    3. Highways and streets — sufficiency of evidence as to negligence of defendant in action for injury to child by taxicab. Verdict in an action for damages for personal injuries to a child struck by a taxicab near a street intersection held not manifestly against the weight of the evidence on the question as to the negligence of the defendant.
    4. Highways and streets — sufficiency of evidence as to contributory negligence of child-struck by taxicab. Verdict for plaintiff in an action for damages for personal injuries to a child struck by a taxicab held not manifestly against the weight of the evidence on the question of the contributory negligence of the child.
    5. Damages — excessiveness of award of $10,000 for leg fractures and other injuries to boy of nine. The court cannot say that a verdict of $10,000 is excessive for injuries to a boy of nine years due to being struck by a taxicab, where as a result of the accident he sustained a fracture of the left femur and the right tibia and fibula, suffered a severe nervous shock, and was obliged to undergo several operations confining him in a hospital for six months, and where four years after the injury his health was still manifestly impaired as a result of the accident.
    6. Evidence — judicial notice of depreciated purchasing power of money since European war. In passing upon the contention that a verdict for personal injuries sustained in 1920, which was returned in 1924, was excessive, the court will take notice that the purchasing power of money has depreciated considerably since the last European war.
    7. Evidence — admissibility of X-ray negatives' of injured plaintiff in action for negligence. Where" original negatives of X-ray photographs were identified by a witness in an action for personal injuries as pictures of plaintiff’s legs taken by her, and they were further identified by the surgeon in charge of plaintiff’s case as the pictures he had directed to be made by the previous witness, who was the X-ray technician of the hospital in which plaintiff was treated, and no attempt was made on the trial to challenge the accuracy of the pictures or the sufficiency of their identification, their admission in evidence was warranted.
    8. Trial — examination by jury of X-ray negatives showing injury to plaintiff in negligence action. It was not error, in an action for personal injuries, to permit the jury to examine the original X-ray plates showing plaintiff’s injuries after their admission in evidence, neither their identification nor their accuracy having been challenged, such examination not tending to mislead the jury nor to arouse their passions and prejudices, especially in view of the other evidence as to the nature and extent of the plaintiff’s injuries.
    9. Harmless and prejudicial errors — delay to strike inadmissible opinion of physician as to relation between injury and subsequent physical condition. Where in an action for personal injuries plaintiff’s physician, after having testified as to plaintiff’s physical condition as found in an examination four days prior to the trial, was asked for his opinion as to the relation between such condition and the accident upon which the suit was based and the injuries therein received, and was permitted, over objection, to state that such condition had been “brought about by the injury,” after which the court denied a motion to strike the answer as speculative and as invading the province of -the jury, but later, on a renewal of the motion during the trial, struck the answer, advising the jury of the reasons, the defendant was not so prejudiced by the delay to strike as to require a reversal of the judgment for plaintiff, there being no dispute as to the happening of the accident or the fact of injury.
    10. Witnesses — competency of child of twelve to testify as to facts of injury to brother four years previously. It was not error, in an action for injuries to a boy due to being struck by a taxicab, to permit his sister to testify, although she was but eight years old at the time of the accident and but twelve at the time of the trial.
    11. Instructions — propriety of ruling as to competency and weight of evidence by child witness. It was not an abuse of the discretion of the court, in an action for injuries to a boy due to being struck by a taxicab, to rule that plaintiff’s sister, eight years old at the time of the accident and twelve at the time of the trial, was competent as a witness, but that the weight of her testimony was for the jury.
    12. Harmless and prejudicial errors — erroneous instruction which could not reasonably have affected result. Where the record in the trial of an action is such that a criticized instruction, if erroneous, could not reasonably have affected the result of the trial, the judgment should be affirmed, notwithstanding the giving of such instruction.
    13. Highways and streets — applicability of instruction to averments of declaration in action for injury by taxicab. An instruction in the language of Cahill’s St. ch. 95a, f 23, held sufficiently applicable to a count in an action for injuries due to being struck by a taxicab, alleging that defendant negligently drove its cab upon the public highway “at a speed greater than was reasonable and proper, having regard to the traffic and use of the way,” etc., to warrant the giving of such instruction.

      14. Harmless and prejudicial errors — comments of counsel in argument in view of evidence and rulings of judge. Comments of counsel for plaintiff in argument and during colloquy with opposing counsel during the trial of an action for personal injuries held not materially prejudicial to defendant, considering all the evidence in the case, and the ruling of the court upon objections to such remarks.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Wells M. Cook, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed February 2, 1926.
    Samuels, Costello & Greenberg, John E. Kehoe and Busby, Weber, Miller & Donovan, for appellant.
    Lee D. Mathias, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

It is sought by this appeal to reverse a judgment against defendant for $10,000, rendered after verdict by the superior court on December 20, 1924, in an action for damages for personal injuries sustained by plaintiff, a minor about 9 years old, and occasioned by his being struck and knocked down by defendant’s taxicab at the southwest comer of North and Claremont avenues, Chicago', about one o ’clock on the afternoon of April 23, 1920.

The judgment was entered on a second trial. The first resulted in a judgment against defendant for $8.000, which was reversed and the cause remanded (226 Ill. App. 659, opinion not published) because of 1he giving to the jury of an erroneous instruction and because of certain prejudicial remarks made by plaintiff’s attorney.

On the second trial plaintiff was a witness in his own behalf and eight occurrence witnesses testified for him. His sister, Alice (about 8 years old at the time of the accident and who was not called as a witness on the first trial), testified as to certain happenings shortly before the accident, and there were four other witnesses. The driver of the taxicab and one other occurrence witness testified for defendant.

In our former opinion (filed October 3, 1922, No. 27,418) we made a statement of facts which we adopt as sufficiently applicable to the evidence contained in the present transcript, as follows:

“North avenue is an east and west street, intersected at right angles by Claremont avenue. There are double street car tracks in North avenue, eastbound cars moving on the south track and westbound cars on the north track.
“The evidence is undisputed that shortly before the accident, plaintiff together with his sister, one year younger than himself, were on their way to school, going south and approaching the west crosswalk of Claremont avenue; that they stopped at the curb line near the northwest corner of the intersection of the two streets; * * # and that plaintiff left his sister and ran south on or near said crosswalk immediately in front of a westbound street ear traveling in the north track and which did not stop. As to what occurred immediately after plaintiff had passed said street car the evidence is conflicting. The testimony of the driver of the cab, and that of defendant’s witness, who was on the south side of the front platform of the street car, tended to show that plaintiff after passing the street car continued running across North avenue; that just as he reached a point in said street near the south curb, or reached the sidewalk south of the curb, he was struck by the left front comer of the cab, which had been going east at about 15 miles per hour, between the south track and the curb; and that immediately before plaintiff was struck and run over, the driver of the cab, in the effort to' avoid striking him, turned the front wheels of the cab sharply to the right over the curb and onto the south sidewalk. The testimony of some of plaintiff’s witnesses tended to show that plaintiff was struck and knocked down by the right front corner of the cab, after he had reached the sidewalk and was standing thereon about seven feet south of the curb and about four feet west of the west curb of Claremont avenue; that at the time a large auto-truck, facing east, was standing on the eastbound track, its front end being about even with the west line of Claremont avenue, and there was: a horse and wagon standing-near the south curb west of Claremont avenue and a short distance in the rear of the truck; and that the cab, traveling at about 25 miles an hour, dodged in between the horse and wagon and the truck, ran over the curb and upon the sidewalk and struck plaintiff.”

Defendant’s counsel first contend that the judgment should be reversed because the evidence is insufficient to show that the accident was próxima,tely caused by the negligence of the driver of the cab, or that plaintiff at and before the time of the accident was in the exercise of due care for one of his age, experience and intelligence. Substantially the same contentions were made on the former appeal, and, in discussing them, we expressed the opinion that “these questions were for the jury to determine.” Upon consideration of the evidence contained in the present transcript we entertain the same opinion. And we cannot say that the verdict, on the questions of negligence and contributory negligence, is against the manifest weight of the evidence, as is also urged.

As to the contention that the verdict is excessive, it may be stated that as a result of the accident plaintiff sustained a fracture of the femur of the left leg and of the tibia and fibula of the right leg, suffered a severe nervous shock, and was obliged to undergo several operations, remaining in, a hospital for about six months. He was an active, healthy boy, of good physical condition, before the accident. At the time of the second trial in November, 1924, be appeared thin, anemic and nervous. One leg is somewhat shorter than the other. In the leg where the femur was fractured, the soft tissues had not healed up and there was a discharging sore, apparently leading from where the fracture was, which sore “has been there since the injury.” His attending physician, who examined him four days before said trial, found “that he still has a small discharging sinus there.” It is apparent that he suffered severe injuries, some of which are of a permanent character, and we cannot say that the damages awarded, $10,000, are too large. (North Chicago St. R. Co. v. Anderson, 70 Ill. App. 336, 338; Pierson v. Lyon & Healy, 150 Ill. App. 116, 120; Meek v. Chicago Rys. Co., 183 Ill. App. 256, 266, 270; Krug v. Walldren Express & Van Co., 214 Ill. App. 18, 20.) In this connection it is to be observed that the purchasing power of money has depreciated considerably since the last European War. (Delohery v. Quinlan, 210 Ill. App. 321, 328; Holcomb v. Magee, 217 Ill. App. 272, 285.)

Counsel also contend that the trial court erred in certain rulings: (a) in admitting in evidence eight original X-ray plates, offered by plaintiff; (b) in allowing Dr. Luken, plaintiff’s witness, to testify what they purported to show; and (c), in allowing the jury in the box to examine the plates, which, it is claimed, had a tendency to mislead them and arouse their passions and ■ prejudices. All of these contentions are based upon the further contention that neither the identity nor the accuracy of the plates was sufficiently shown. In Stevens v. Illinois Cent. R. Co., 306 Ill. 370, 375, it is said:

“Although a skiagraph produced by X-rays cannot be verified as a true representation of the subject in the same way as a picture made by a camera, the rule in regard to the use of ordinary photographs on the trial of a cause applies to skiagraphs of the internal structure and condition of the human body taken by the aid of X-rays, and such a skiagraph, when verified by proof that it is a true representation, is admissible in evidence. Like other photographs, they cannot be received as evidence until proper proof of their correctness and accuracy is produced. (Chicago City Ry. Co. v. Smith, 226 Ill. 178; Chicago & J. Elec. Ry. Co. v. Spence, 213 Ill. 220.) It must be established by competent evidence that the picture correctly portrays the condition it purports to represent before it has any place in the case. Some witness must be able to testify that the picture offered in evidence shows accurately what the witness saw when he looked into the body with the fluoroscope, or he must be able to say. that he is skilled in the use of the X-ray machine and in taking and developing X-ray pictures, and that he took the picture offered in evidence with the body in a certain position (describing it), with a machine which he knew to be in good working condition and accurate, and that from his experience he was able to say that the picture produced by the machine was an accurate picture of the internal condition of the body. These methods of establishing the accuracy of the picture are not exclusive, but whatever method is used, its accuracy must be established before it is admitted.”

In 10 Ruling Case Law, p.. 1160, sec. 360, it is said: “To constitute a foundation for the introduction of an X-ray photograph in evidence it need not appear that it was taken by a competent person nor that the condition of the apparatus and the circumstances were such as to insure accurate pictures, where it appears by competent witnesses that it truly represents the object claimed.” (See Carlson v. Benton, 66 Neb. 486, 489.) In Jenkins v. Charleston General Hospital, 90 W. Va. 230, 245, it is said: “The evidence admitted, over objections of the defendant, consisted of X-ray plates taken under the general direction of the surgeon who performed the two operations mentioned, but not in his presence. As they were taken for him and by his direction, and used and identified by him, they were properly admitted.” In Robinson v. Payne, 99 N. J. L. 135, 143, it is said : “The rule is that if the correct-, ness of X-ray photographs is established by the testimony of the person making them, or if they are identified by the surgeon under whose general direction and for whose use they were made, and by whom they were used in his diagnosis of the bodily injury, they are admissible in evidence.”

As to the testimony in the present case concerning the X-ray plates, Sister Mary Virginia, plaintiff’s witness, testified that she had resided at St. Elizabeth’s hospital, Chicago, since February, 1912; that her duties there were “operating the X-ray, X-ray technician”; and that she was “X-ray technician” there in April and the succeeding months of 1920. The word “technician” is defined in Webster’s Dictionary as “one skilled particularly in the technical details of his work. ’ ’ On being shown the plates the witness further testified in substance that she personally took all of them (original glass negatives); that three were taken on April 27,1920, of which two (exhibits 1 and 2) were “pictures” of plaintiff’s femur and one (exhibit 4) of his tibia and fibula; that two (exhibits 6 and 7) were taken on May 17,1920, and were pictures of his. femur; that one (exhibit 8) was a picture of his tibia and fibula, taken on July 7, 1920; and that the remaining two (exhibits 9 and 10) were taken on August 3, 1920, and were pictures of his femur. On plaintiff’s offer all the plates were admitted in evidence. Defendant’s only objection at the time was that they were “not properly identified. ” No objection as to their accuracy was made then, and the witness was not cross-examined. The plates were not shown to the jury until during the examination of plaintiff’s witness, Dr. Lukenja physician connected with St. Elizabeth’s hospital for about 18 years. He testified in substance that he saw plaintiff at the hospital on the day of the accident; that subsequently he had the X-ray pictures taken “first of all to determine evidence of injury and, secondly, to determine the result”; and that although not present when they were taken, he could identify them as being pictures of plaintiff’s legs from his knowledge of the location of plaintiff’s injuries and from the hospital records. Upon his being asked what the plate (exhibit 1) showed, the question was objected to upon the ground that the plate had “not been properly identified as a true and correct representation of what it purports to be.” The court, however, allowed the witness to answer that it showed “ a fracture of the femur,” and, over defendant’s objection, further allowed the plate to be exhibited to the jury. The witness also gave testimony as to what each of the other plates showed, and, over objection, each in turn was exhibited to the jury. He testified that exhibit 2 “also shows a fracture of the femur”; exhibit 4, “fracture of the tibia and fibula”; exhibit 6, “the steel plate after it had been placed over the fracture on the femur”; exhibit 7, “another picture showing the ulate intact over the fractured femur”; exhibit 8, “the bone after it had been united with the'eallous”; exhibit 9, “the different sections after the uniting of the bone had taken place, showing a slight overlapping”; and exhibit 10, “the bone with the east on before the plate was introduced.” In connection with the plates, he also testified as to the treatments and operations performed upon plaintiff. In view of the testimony of both witnesses and the authorities above referred to, we are of the opinion that the trial court did not err in admitting the X-ray plates in evid ence. They were identified by the witness Sister Mary Virginia as being pictures of plaintiff’s legs taken on the days mentioned, and were further identified by Dr. Luken as being the pictures which he had directed to be taken; and,*considering that they were taken personally by the “X-ray technician” of the hospital, we think that there was a sufficient prima facie showing made of the accuracy . of the plates to warrant their admission in evidence. (See Krauss v. Ballinger, 171 Ill. App. 534, 537). No attempt was made by defendant to overcome this showing. And it was not improper to allow the jury to examine the plates after their admission in evidence. (Chicago & J. Elec. Ry. Co. v. Spence, 213 Ill. 220, 224; Robinson v. Payne, supra.) And, in view of other evidence as to the extent of plaintiff’s injuries, we fail to see how such examination by the jury tended to mislead them or to unduly arouse their passions and prejudices.

It appears that about four days before the second trial Dr. Luken examined plaintiff, and on the trial testified in detail as to plaintiff’s then condition, mentioning his extreme nervousness, etc. He was asked his opinion as to what relation, if any, existed between the accident, or injury then suffered, and plaintiff’s condition at the time of such examination. Over objection, he answered that such condition had been “brought about by the injury.” Defendant’s motion to strike out this answer, as being speculative and invading the jury’s province, was denied, but later in the trial, upon a renewal of the motion, the court struck the answer from the record and advised the jury of the reasons for so doing. It is urged that this ruling, because of the delay in making it, was prejudicial to defendant. Under all the facts and circumstances disclosed we fail to see wherein defendant was so prejudiced as to require a reversal of the judgment. There was no dispute that both of plaintiff’s legs were broken as the result of his being struck and knocked down by defendant’s cab. (See Hanrahan v. City of Chicago, 289 Ill. 400, 406.) Nor do we think that the trial court erred in permitting plaintiff’s sister (about 8 years old at the time of the accident and 12 years old at the time of the trial) to testify. She apparently had the necessary intelligence and the court did not abuse its discretion in ruling that shé was competent as a witness but that the credibility and weight of her testimony was for the jury to determine. (Shannon v. Swanson, 208 Ill. 52, 55.)

Defendant’s counsel complain of the giving of the fifth instruction offered by plaintiff. The instruction is framed in the language of the statute (section 22, Motor Vehicle Act) and, following the statute, contains the concluding clause that “if the rate of speed of any such vehicle operated upon any public highway in this State, where the same passes through a closely built-up portion of any incorporated city, town or village, exceeds ten (10) miles an hour, * * * such rate of speed shall be prima facie evidence that the person operating such motor vehicle is running at a rate of speed greater than is reasonable and proper, having regard to the traffic and the use of the way,” etc. [Cahill’s St. ch. 95a, [[23]. Counsel argue in substance that, because of the use of the words “prima facie,” the instruction would not be understood by the ordinary jury and would tend to mislead them. The giving of a similar instruction was held to be erroneous in Stansfield v. Wood, 231 Ill. App. 586, 590, but, under the pleadings and facts of that case, not so erroneous as to require a reversal of the judgment. In the present case we are of the opinion that the record is such that the giving of the instruction could not reasonably have affected the result of the trial, and that, notwithstanding the giving of the instruction, the judgment should be affirmed. (Stansfield v. Wood, 231 Ill. App. 586, 592; People v. Weir, 295 Ill. 268, 275; People v. Heard, 305 Ill. 319, 324.) Plaintiff’s declaration originally consisted of three counts, but at the conclusion of his evidence he dismissed the third count and the case finally went to the jury on the two prior counts. The first charged defendant with negligently driving its cab at an excessive rate of speed over and upon the sidewalk upon which plaintiff was standing and striking him. and knocking him down, etc., and the second charged defendant with negligently driving its cab upon the public highway “at a speed greater than was reasonable and proper, having regard to the traffic and the use of the way,” etc., and upon and over the sidewalk and against plaintiff, etc. We cannot agree with counsel’s further contention that the instruction was not applicable to either of these counts. It was sufficiently applicable to said second count.

Defendant’s counsel finally contend that the judgment should be reversed because of a certain statement made by plaintiff’s attorney during the trial and because of certain prejudicial remarks made by him, during his closing argument to the jury. During the trial, while plaintiff’s attorney by agreement was reading to the jury the testimony of a witness for plaintiff given on the former trial from the record of that trial, a question arose whether a certain statement of the witness had been made during his cross-examination or redirect examination, and a colloquy ensued, during which plaintiff’s attorney (addressing defendant’s attorney) said “You prepared the record.” The objection then made to the statement was overruled, whereupon, on defendant’s motion, the jury was excused and defendant’s attorney argued that his objection was good and that the statement should be stricken from the record, and the court ordered it stricken. Thereupon defendant’s attorney moved that a juror be withdrawn and the cause continued, for the reasons that merely striking out the statement did not correct the error and that the jury would know from the statement that defendant had been defeated on the former trial. The court denied the motion, the jury was recalled and the reading of the testimony of the witness was continued. In arguing the point in their printed brief, here filed, defendant’s counsel state that “it had been necessary for both sides to make frequent use of the record on the former trial”; that “there is no way of determining how well this jury or some of its members may have been acquainted with the fact that the defeated party prepares the record to be submitted to a court of review”; and that “it may have been a chance remark on the part of counsel and not intended to convey any improper information to the jury, but that the prejudice to defendant was none the less.” We do not think that the fact that the statement was made requires that the judgment should be reversed and a new trial awarded. It is true that it has been held improper on a second trial for counsel to advise a jury, either directly or indirectly, which party obtained the favorable verdict on the former trial. But, as we view it, this case is not a close one on the question of defendant’s liability to plaintiff (Springfield Consolidated Ry. Co. v. Bell, 134 Ill. App. 426, 427); and we do not think, considering all the evidence, that the statement was harmful or prejudicial to defendant in any material degree. (Chicago Union Traction Co. v. Lawrence, 211 Ill. 373, 378; Chicago & A. R. Co. v. Dillon, 123 Ill. 570, 578.) And we are of the same opinion concerning the remarks, complained of, made by plaintiff’s attorney in his closing argument. The remarks had some basis in the testimony of plaintiff’s witness, Dr. Luken, but not to the extent as made. However, by reason of the statements of defendant’s attorney, made in connection with his objections to the several remarks, and the court’s rulings on the objections, we think that any possible prejudicial error in the argument was removed. (Delohery v. Quinlan, 210 Ill. App. 321, 328.)

Our conclusion is that the judgment of the superior court should be affirmed and it is so ordered.

Affirmed.

Barnes, P. J., and Fitch, J., concur.