text:
    City of Chicago v. Henry C. Rustin.
    1. Bills of Particulars — Limit the Party Filing Them. — Where a party litigant files a bill of particulars in his suit, he is bound to prove such a case as is stated in it or enough of it to warrant a recovery.
    2. Municipal Corporations — Duty in Regard to Sewers. — It is the duty of a municipal corporation in regard to its sewers to see that the outlet is of ample capacity to carry off all the water likely to be in it; but the rule is not applicable to an extraordinary and excessive rainfall. Such infrequent and extraordinary occurrences can not be foreseen and provided against, and for damages caused by them no one is responsible.
    3. Same — Not Liable for the Non-Exercise of a Chartered Poxcer.— A municipal corporation is not liable for the non-exercise of a chartered power. It is only when it assumes to exercise such a power, and exercises it negligently, that it becomes liable.

      4. Practice — Effect of a Failux-e to Give Notice of an Application for an Extension of Time to File a Bill of Exceptions. —Failing to give notice of an application for an extension of time in which to file a bill of exceptions does not render the order granting such time invalid.
    Action on an Appeal from a Justice of the Peace. — Appeal from the Circuit Court of Cook .County; the Hon. Elbridue Hanect, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded.
    Opinion filed December 12, 1901.
    Charles M. Walker, Corporation Counsel, and Clarence N. Goodwin, attorneys for appellant.
    Henry C. Ruston and Louis Karcher, attorneys for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court rendered on appeal from a justice of the peace. Appellee, plaintiff below, filed a bill of particulars as follows :

“ To damage sustained by Henry C. Rustin through negligence of the city of Chicago in not properly draining Milwaukee avenue in the city of Chicago; in not properly draining the alley in the rear of the said 2128 Milwaukee avenue, in the city of Chicago; in not properly draining the ground surrounding the said Mo. 2128 Milwaukee avenue, or failing to compel the owners of said ground to properly drain the said ground.
“ In allowing the sewer in the street through Milwaukee avenue, at Mo. 2128 Milwaukee avenue, to back its sewerage into the basement of said Mo. 2188 Milwaukee avenue; in not properly performing its duties as an incorporated city under the laws of the State of Illinois, to which failure and negligence on the part of said city of Chicago, the said Henry C. Rustin has sustained damages to personal property in the sum of $200.”

Appellee was the only witness in his own behalf, and testified that, about March 9, 1896, there was a rain, and the water from the street, ran through the curbstone into the basement; the curbstone was defective, and there was a hole down through there, through which the water ran from the street into the basement. The surrounding country there is about three feet below the datum of the street (by datum” doubtless meaning grade), and the water would seep through the ground and wall, into the basement. It also ran into the basement from the front of the building, and also ran into the back end of the basement. On cross-examination he testified that the water came from the front, the rear and the side, and backed up from the sewer. He also testified that the basement had never been flooded before, and jie did not foresee that it might be.

The injury complained of is, that appellee’s furniture, "which was stored in the basement, was damaged.

Appellee, having filed a bill of particulars, was limited to proof of the matters therein stated. In other words, he wms bound to prove such a case as is stated in his bill of particulars, or enough of what is therein stated to warrant a recovery. McDonald v. The People, 126 Ill. 150, 158, et sequens; Waidner v. Pauly, 141 Ib. 442.

The bill of particulars alleges negligence of the city in allowing the sewer in the street through Milwaukee ave nue, at Ho. 2128 Milwaukee avenue, to back its sewerage into the basement. It is not shown by the evidence that the sewer was not of sufficient size, or that there was any defect in its construction, or any defect whatever in it. The city is not an insurer of the absolute safety of improvements constructed by it. It is sufficient if it exercises reasonable care and skill in their construction. Dillon on Mun. Corp., 4th Ed., Yol. 2, Sec. 987.

In order to charge the city for neglect in the matter of the sewer, it is necessary to appear in what the neglect consisted. Non constat that the sewer was not amply sufficient to carry off the water on all ordinary occasions. This would seem to be so, from appellee’s testimony that the basement had never been flooded before, and that he did not foresee that it might be.

In City of Peoria v. Adams, 72 Ill. App. 662, one of the complaints was that the city failed to provide a sufficient sewer and catch-basin to carry off the water from the street. The court say, lb. 670:

“ The rule is that the outlet must be of ample capacity to carry off all the water likely to be in it. But the rule is not applicable to extraordinary and excessive rainfall, which is held to be res major. Such infrequent and extraordinary occurrences can not be foreseen and provided against, and for damages caused by them no one is responsible,” citing' authorities.

It would seem probable from appellee’s testimony that the basement had never before been flooded, and that he could not foresee that it might be; that the rain referred to in his testimony was “an extraordinary and excessive rain.” We are not prepared to hold that, on proof being made that the city had constructed a sewer in a public street, and that by the sole reason of its failure to carry off the water the plaintiff’s premises were overflowed and his property damaged, the burden is not on the city to prove that the sewer was, on ordinary occasions, of sufficient capacity to carry off the water, and that the occasion of the injury complained off was extraordinary. Such proof was made by the city in Peoria v. Adams, supra. The city having constructed the sewer, its capacity and manner of construction are peculiarly within its knowledge. However, the decision of that question is not necessary to the decision of the present case, for the following reasons:

Appellee, in his bill of particulars, charges, as negligence, that the city did not properly drain the alley in the rear of his premises, and did not properly drain the grounds surrounding the premises, and he testified that the water came from the front, the rear and the sides. Conceding that the city had power to construct a sewer in the alley, it does not appear from the evidence that it ever attempted to exercise that power, and a municipal corporation is not liable for the non-exercise of a charter power. It is only when a municipality assumes to exercise a granted power, and exercises it negligently, that it is liable. Freeport v. Isbell, 83 Ill. 440; Goodrich v. City of Chicago, 20 Ib. 445; City of Chicago v. Hogan, 59 Ill. App. 446; 2 Dillon on Mun. Corp., Sec. 1010.

The city had no power, which it had undertaken to exercise, to drain the property adjoining 2128 Milwaukee avenue, otherwise than by a sewer in the street. It is, therefore, not liable for not otherwise draining it. But the damage to appellee’s property, of which he complains, was occasioned, as he testifies, not only by the water which flowed in from the front of the premises, but from that which flowed in from the sides — in other words, from the adjoining lots — and from the rear. The city is not liable for the damage occasioned by the water which flowed in from the adjoining lots, and from the alley in the rear of the premises.

City of Paris v. Cracraft, 85 Ill. 294, was case, for causing water to flow upon and injure the plaintiff’s premises, by reason of an insufficient sewer. The proof shoxved that the injury was caused, in part at least, by the owner of the property in the vicinity of the plaintiff’s premises filling up a natural drain on his property. Plaintiff recovered in the trial court, but the Supreme Court reversed the judgment, saying, “ There is some evidence in the record tending to show the damages suffered by plaintiff may have been, occasioned, in part, by the fact Jones had raised his lot in the immediate vicinity, by filling in dirt; ” and it was held that an instruction, which was refused by the trial court, to the effect that if the filling up of the drain in Jones’ lot caused the damages there could be no recovery, should have been given. Appellee’s counsel moved to strike the bill of exceptions from the record, on the ground that an extension of time to file it was granted, without notice to appellee. Failing to give notice of application for extension of time in which to file the bill of exceptions does not render the order granting such time invalid. Conductors’ Benefit Ass’n v. Leonard, 166 Ill. 154.

The motion will be overruled, and the judgment will be reversed and the cause remanded.


source: Caselaw Access Project

author: Mr. Justice Sears

license: Public Domain

text:
    Albert W. Hester v. G. S. Frary.
    1. Appellate Court Practice — Finding the Grounds upon Which a Judgment is Based. — To find the grounds upon which the judgment of the court below is based, this court can only look to the evidence and the propositions of law held.
    2. Evidence — When Inherently Improbable, May Be Rejected.— The testimony in a case, although not directly contradicted, is not necessarily conclusive, if a court or jury views it as inherently improbable it may be rejected.
    3. Real Estate — Merger of Titles, When Presumed — Intention.— A person owning the title of real estate in fee has the right to buy a mortgage lien thereon, created by a predecessor in title, to keep such lien alive for certain purposes, and to prevent a merger of the mortgage lien with the fee. And this he may do to protect his title by cutting off intervening claims which are liable to come between the mortgage and the conveyance in fee; but in such cases there must be an intention to prevent a merger; in the absence of such an intention, the merger will be presumed.
    4. Merger — Of a Mortgage Lien and the Fee Title. — An. owner of the fee may purchase a mortgage lien thereon, created by a predecessor in title, for the purpose of protecting his own title by cutting off intervening claims which might come in between the mortgage and the conveyance of the fee.

      5. Same — Doctrine of the Prevention of. — The doctrine of the prevention of a merger is a rule of equity jurisprudence.
    Action on a Covenant of Assumption. — Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded.
    Opinion filed December 12, 1901.
    Statement. — This suit was brought to recover principal and interest due upon a promissory note for the principal sum of $4,000, made by James Hood, payable to his own order and by him indorsed in blank. It is sought to charge appellant with liability upon this note, because as grantee of certain real property he assumed the payment of an indebtedness secured by mortgage upon the property, which indebtedness was evidenced by this promissory note. The history of the transactions in relation to the note is as follows : Hood, after having made the note and after having secured it by trust deed in the nature of a mortgage upon premises in Cook county, Illinois, conveyed the premises to appellant, subject to the mortgage indebtedness, which appellant assumed and agreed to pay as part of the consideration for the conveyance. The consideration named in the deed was $20,000. Afterward appellant conveyed to Brinkman the same, premises by deed, which stated the consideration thereof to be $20,000. Brinkman made a second and junior trust deed on the premises, which, coming to the hands of one Keck, was by him foreclosed, and under decree of court entered May 16, 1896, was sold on June 9, 1896, to Keck, and a certificate of sale issued therefor to Keck, the amount for which the property was sold being $4,557.41.
    On September 20,1897, redemption not having been made from the foreclosure sale on said second mortgage, a master in chancery delivered to Keck a master’s deed for said premises.
    On January 10, 1898, Keck and wife conveyed the premises in question to Charles S. McNett, who has ever since been and now is the owner of said real estate.
    On November 21,1899, two days before the maturity of the first mortgage note, the note here sued upon, McHett went to the office of Chandler & Company, mortgage bankers, and purchased the note and interest coupons, and the same were delivered over to him uncanceled, together with the trust deed securing the same.
    There is a conflict in the contentions of the litigants as to whether MdSTett made this purchase for appellee or for himself.
    This suit was brought in assumpsit by the appellee against James Hood, the maker of the note, and the appellant jointly. Demurrers having been interposed to the narr., and sustained by the court, the appellee elected to dismiss as to Hood, and filed an amended declaration against appellant alone. The declaration consisted of a single count upon the covenant of assumption in the deed from Hood to appellant, to which a plea of the general issue was filed, and issue being joined thereon, the cause was submitted to and tried before the court without a jury.
    Among other propositions of law held by the court is one which the court prepared of its own motion and marked “held.” It is in part as follows:
    “ The court further holds as a matter of law that when a person owns land with an outstanding mortgage lien thereon, created by a predecessor in title, he may buy such mortgage lien and keep it alive, and it does not merge in the fee title, unless there is an intention that it shall so merge.”
    The court found the issues for the plaintiff below, the appellee here, and having assessed his damages at $4,464.73, entered judgment for that amount.
    John D. Hood, attorney for appellant:
    Charles S. McNett, attorney for appellee.
   Mr. Justice Sears

delivered the opinion of the court.

The chief question presented upon this record is as to whether, if McHett bought the mortgage note sued upon in his own right, and not as agent for appellee, his claim to the mortgage indebtedness evidenced by the note became thereby merged in his title in fee to the premises. He was the owner of the fee of the premises upon which this mortgage note was secured at the time when he purchased the note from Chandler & Co. If it appeared from the record that the trial court had found as fact that MdSTett did not buy the note in his own right, but did buy it as agent of appellee, and that the judgment was based upon such finding of fact, we might, perhaps, be warranted in affirming the judgment upon the ground that such finding of fact was not manifestly against the weight of the evidence.

But we can look only to the record for the purpose of determining the grounds upon which the trial court acted. A statement given in appellee’s brief as a statement made by the court upon giving judgment, is no part of the record and can not be considered as presenting the basis of the judgment. To find the grounds upon which the judgment is based, we look only to the evidence presented and the propositions of law held.

Hor can we say that the evidence is such that the court could reach no other conclusion of fact, but that McHett bought the note as agent of appellee. Aside from the fact that McHett apparently dealt with Chandler & Co. in his own behalf in buying the note, for which he paid by his own check, there is no direct evidence that he made the purchase in his own right. McHett and Frary, the appellee, both testify that the purchase was made for the latter by McHett, acting as agent. But this testimony, although not directly contradicted, is not of necessity conclusive. If court or jury viewed it as inherently improbable, it might be rejected, although not directly contradicted by the testimony of witnesses. Highly v. Am. Exch. Bank, 86 Ill. App. 48, and cases therein cited; Podolski v. Stone, Id. 62.

The testimony in question is to the effect that McHett, acting as the agent of appellee, bought this paper for the latter as an investment. But when the purchase was made appellee had no knowledge of this paper, nor did he have funds in the hands of McHett sufficient to buy the paper. As an investment it was of doubtful value, for the note, when, bought by McHett, had only two days to. run till its maturity. McHett had an apparent motive, as owner of the real estate mortgaged, in purchasing the note. It is difficult to discover any adequate motive which might prompt appellee to buy the note.

In view of all these circumstances it could not be held that the evidence to establish a purchase by appellee through McHett, as his agent, is so conclusive as to leave no other determination of the issues possible, except a finding for appellee.

It becomes, therefore, necessary to determine whether the court applied correct propositions of law to the evidence.

If McHett bought for himself, did the purchase effect a merger of the claim with the title in fee ? We are of opinion that it did. It is true that it is possible for one owning the title in fee to buy a mortgage lien thereon, created by a predecessor in title, and to keep such mortgage lien alive for certain purposes, and to prevent a merger of the mortgage lien with the fee. This one might do, to protect his title by cutting off intervening claims, which might come in between the mortgage and the conveyance of the fee. In such case there must be an intention to prevent a merger. In the absence of such intention, the merger will be presumed. The proposition held by the learned trial court should have stated the rule conversely, i. e., that there is under the facts stated a merger unless there is an intention shown to the contrary. Campbell v. Carter, 14 Ill. 286; Weiner v. Heintz, 17 Ill. 259; Edgerton v. Young, 43 Ill. 464; Lilly v. Palmer, 51 Ill. 331; Ætna Ins. Co. v. Corn, 89 Ill. 170; Blatchford v. Blanchard, 160 Ill. 115.

But here there is no reason shown why such merger should not be presumed. Ho intervening rights appear against which McHett might protect his title by keeping the mortgage lien alive. McHett does not testify that he bought the note with the intent to keep the claim evidenced by it alive and to prevent a merger, for he testifies that he never bought it at all. Hothing appears in the evidence which would warrant the conclusion that McHett, m buying the note, if he did buy it for himself, intended to prevent a merger.

There is no apparent ground for an intention to prevent a merger, except that payment of the note might be enforced from the original maker, or from appellant, who had assumed the obligation, by McNett, who had bought the note, and who owned the land mortgaged for its payment. For this purpose, we are of opinion that the intent to prevent a merger could not be presumed even in a suit in equity, and certainly not in an action at law, from a mere lack of any intention expressed that there should be a merger. Big-gins v. Brockman, 63 Ill. 316; Belleville Bank v. Beis, 136 Ill. 242.

The doctrine of prevention of merger is a rule of equity jurisprudence, and this action is at law. Appellant is no party to the note sued on by reason of having executed or indorsed it. The only ground upon which this action in assumpsit could lie against him, is that he has assumed the indebtedness evidenced by the note. But the debt is extinct if there was a merger, and the recovery could not in that event .be had. Biggins v. Brockman, supra; Belleville Bank v. Reis, supra.

The proposition of law held by the court leaves doubt as to whether the law was correctly applied. We are not so impressed that substantial justice has been done in this case as to warrant us in affirming the judgment, in view of the holding of the trial court as to the law. It becomes unnecessary to consider other questions raised by reason of the conclusion reached.

The judgment is.reversed and the cause is remanded.


author: Mr. Presiding Justice Windes

text:
    Northern Milling Co. v. Lizzie Mackey, Adm’x, etc.
    1. Pleading — Requisites of a Declaration in an Action fen' Death Resulting from Negligence. — A declaration in an action by the next of kin for the death of a person resulting from, negligent acts should state facts from which the law will raise a duty from the employer to his employe and from the neglect of which the law will presume negligence; if it fails to do so it is insufficient to support a judgment.
    2. Presumptions — 0/ the Sufficiency of the Declaration After Verdict. — In a declaration for the death of a person from negligence, nothing will be presumed after the verdict but such matters as must have been necessarily proved under the averments of the declaration, and an omission in it, and a failure to allege that the servants causing such death were not the fellow-servants of the deceased, is-not cured by the, verdict.
    3. Instructions — Railing to Limit the Right of Recovery to the Negligence Charged in the Declaration. — la an action to recover damages for the death of a person, caused by the negligence of another, an instruction which fails to limit the right of recovery to the negligence charged in the declaration is erroneous.
    4. Evidence — Matters Not Admissible on Rebuttal. — In an action for damages resulting from the death of a person by negligence, a witness for the defendant was asked by the plaintiff, on cross-examination, if lie had not said that his brother was to blame for the accident, and over the objection of the defendant answered in tine negative; it was held erroneous to admit evidence on rebuttal to contradict such answer.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Charles G. Neely, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded.
    Opinion filed December 12, 1901.
    Statement by the Court. — Appellee, administratrix of the estate of Thomas Mackey, deceased, who was killed, as it is claimed, by the negligence of appellant’s servants, not fellow-servants of decedent, brought her action to recover damages for the benefit ,of the widow and next of kin, a trial of which before the court and a jury resulted in a verdict in favor of appellee of $5,000 and judgment thereon, from which this appeal is taken.
    The declaration consisted of two counts, but was amended and the case tried upon the amended declaration and a plea of not guilty thereto. The first count of the amended declaration alleges that the defendant “ on the fifth day of March, A. D. 1895, in the city of Chicago, in said county, was possessed of, and using and operating a certain car at or near the premises of the said Northern Milling Company, and on a side-track, which said side-track was constructed about one foot in distance from the wall of a building then and there owned or used by the said Northern Milling Company; and while the said plaintiff was on the side-track and close to and adjoining the said building of the said Northern Milling Company, the defendant pushed an empty freight car away from the said building and along the said track; and without in any manner whatsoever warning the said Thomas Mackey, who was then and there lawfully on the said premises, in the exercise of all ordinary and reasonable care for his own safety and without any fault or misconduct on his part, the said Northern Milling Company pushed the said car on and against the said Thomas Mackey, and by reason of the said premises the said Thomas Mackey was then and there crushed between the said car and the said building of the Northern Milling Company, as aforesaid, and was thereby then and there killed; ” and then avers that he left a widow and next of kin, naming them, who were deprived of their support by said death.
    The second count alleges that “the said Northern Milling Company was the owner of or using and operating a certain mill in the County of Cook and State of Illinois, and in connection therewith used a side-track for the purpose of loading and unloading material, and employed there the said Thomas Mackey, deceased, and that the said Thomas Mackey on, to wit, the fifth day of March, A. D. 1895, was lawfully upon the said side-track adjoining the said mills of the said Northern Milling Company, and while the said Northern Milling Company was so lawfully on the said side-track near the said mill, and in the exercise of all reasonable and proper care for bis own safety, the said Northern Milling Company, by its agents and servants, who were then and there not fellow-servants of the said Mackey, pushed an unloaded car upon him'without giving any notice to the said Mackey that the} were to push the said car where he then, and there was; or without making any sound or warning or ringing any bell, or in any manner advising the said Mackey of any impending danger to him, the said Northern Milling Company pushed the said car upon and against the said Mackey and crushed him so that his body was caught between the said mill and the said car, and he was then and there killed; ” and then proceeds the same as the first count.
    Among other instructions 1'or the appellee the court gave the following, to wit:
    Í. “The court instructs the jury that if they find from the evidence in this case that on the 5th day of March, 1895, Thomas Mackey, the plaintiff’s intestate, while in the exercise of ordinary care for his own safety, and while engaged in the line of his duty as an employe of said Northern Milling Company in brushing off a railroad track near the mill of the defendant, was, through the negligence of said defendant, through its agent, Martin Ahrens, run against and crushed by a car then being used by said defendant, and that in consequence of said injuries the said Thomas Mackey on the 7th day of March, 1895, died, leaving him surviving the plaintiff and five children, his next of kin, then your verdict should be for the plaintiff, with such damages as from the evidence you should deem would be a fair and just compensation with reference to the pecuniary injuries resulting from said death to the widow and next of kin of said Thomas Mackey.”
    2. “ The court instructs the jury that if they find from the evidence in this case that Martin Ahrens was the foreman of a gang of men in loading and unloading cars at the mill of defendant, and that Thomas Mackey was one of such gang, and that as such foreman said Ahrens had authority to take charge of and control said gang of men in carrying on that branch of business, then and in that case said Martin Ahrens was the direct representative of the company itself, and all commands given by him within the scope of his authority were, in law, the commands of the company, and that in exercising said power said Martin Ahrens did not stand upon the same plane with those under his control, and was not a fellow-servant or co-employe with them within the meaning of the law as to those acts which were done by his command.”
    The court also, as it is claimed, made certain erroneous rulings in the admission of evidence.

      At the close of the plaintiff’s evidence defendant asked an instruction to find it not guilty, which was denied. It was renewed at the close of all the evidence and again denied. After the motion for new trial was overruled, the defendant moved in arrest of judgment, which motion was also overruled.
    Burley & McSurely and John B. Brady, attorneys for appellant; C. LeRoy Brown, of counsel.
    Rogers & Mahoney and Chilton P. Wilson, attorneys for appellee.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

The first claim of appellant’s counsel is that the declaration states no cause of action. We will only consider the second count of the amended declaration, since the two counts of that declaration on which the case was tried are quite similar, and if the second count is insufficient, the first is also.

It has been repeatedly held that a declaration in a case of this kind should state facts from which the law will raise a duty from the master to the servant — must state facts from which negligence will be presumed. If it fails so to do then it is insufficient to support a judgment. Ayres v. City of Chicago, 111 Ill. 406; Joliet Steel Co. v. Shields, 134 Ill. 209; C. & A. R. R. Co. v. Clausen, 173 Ill. 100-5, and eases cited; Angus v. Lee, 40 Ill. App. 304; R. R. Co. v. Coit, 50 Ill. App. 640; 1st Chitty’s Pldgs. 681 (9th Am. Ed.); Gould’s Pldgs., Ch. 10, Secs. 13 and 22.

In the Ayres case, supra, which was an action on the case to recover for personal injuries for alleged negligence, the court- say:

“ The pleader must state facts from which the law will raise the duty.” -

In the Clausen case, supra, the court say:

“ It is not sufficient in a declaration to allege that it is the duty of the defendant to do certain things, but the declaration, must state facts from which the law will raise the duty.”

In the Ooit case, supra, this court held that if, from the facts stated, the law would imply the duty, the allegation of duty was unnecessary. It is elementary that there is no .negligence without a duty.

But it is claimed for appellee, in substance, that the facts here alleged show a duty, and consequently that appellant was negligent; also that at most the declaration is a defective_statement of a cause of action, and not a_.stat.ement of a defective cause of action, and is sufficient alter verdict to sustain the judgment. We think the contentions of appellee’s counsel are not tenable.

The second count in substance alleges that the appellant was the owner of, or operating a mill, and in connection therewith used a side-track for loading and unloading material; that Thomas Mackey was its employe and was lawfully on said side-track adjoining appellant’s mill, and while so there and in the exercise of reasonable and proper care, appellant’s servant, not Mackey’s fellow-servant, pushed an unloaded car along the side-track and upon him without giving him any notice or warning whatever of any impending danger, and by reason thereof caused his death. All these things might be strictly and accurately true as stated, and still appellant would not be guilty of negligence. • It does not appear from any statement of the declaration that Thomas Mackey was ordered by appellant to work or be where he was, nor that appellant’s servants or any of them knew or ought to have known that he was where he was alleged to have been, or that he was exposed to any danger, whatever from the act that it.is alleged they did, nor is there any fact or circumstance alleged from which it could be reasonably inferred that they had such knowledge. In the absence of such allegations, or sufficient allegations to charge appellant with a duty to decedent, it seems to us clear that the declaration fails to state a cause of action, and that it can not be cured by verdict.

In the Shields case, supra, the court say, “ Nothing will be presumed after verdict but what must have been necessarily proved under the averments of the declaration,” and held that an omission in the declaration (which was for personal injury to the plaintiff by the defendant’s servants) to allege that they were not the fellow-servants of the plaintiff,, was not cured by verdict, and that the court erred in overruling a motion in arrest.

In the Clausen case, supra, the Shields case is re-affirmed and the court say (citing numerous cases):

“ Where the declaration and the issue joined upon it do not fairly impose a duty upon the plaintiff to prove the omitted fact, the omission will not be cured.) * * * The intendment in such cases arises from the joint effect of the verdict and the issue upon which it was given, and if the declaration contains terms sufficiently general to comprehend, by fair and reasonable intendment, any matter necessary to be proved, and without proof of which the jury could not have given the verdict, the .want of an express statement of it in the declaration is cured by the verdict. Under this rule a verdict will aid a defective statement of a cause of action, but will never assist a statement of a defective cause of action. 1 Chitty’s PI. 681.”

In Gould on Pleading (Hamilton’s Ed.), chapter 10, page 477, the author says:

“ Where no cause of action is stated, the omission is not cured by verdict. For as no right of recovery was necessary to be proved, or could have likely been proved under such a declaration, there can be no ground for presuming that it was proved at the trial.”

The issue here was not guilty, and the declaration not only fails to allege specifically such facts as would show negligence on the part of appellant, but is not sufficiently general to comprehend, by fair and reasonable intendment, the facts necessary to be proven as hereinabove set forth, which were requisite in order to establish appellant’s negligence.

It is further contended that no negligence was proved; that the deceased assumed the risk and that a recoven’- is barred because of deceased’s contributory negligence, and that the negligence of appellant, if any, was that of a fellow-servant of Thomas Mackey.

Inasmuch as the cause must be reversed because of the insufficiency of the declaration, we deem it unnecessary to refer in detail to the evidence. It is sufficient to say that we have carefully and diligently read and considered it in the light of the arguments, and are of opinion that as to all the matters above claimed, it presents questions peculiarly for the jury, and that under a proper declaration we are not prepared to hold that a recovery is barred under the evidence in this record.

We think that the first instruction for appellee, quoted in the statement, is erroneous in that it fails to limit the right of recovery to the negligence charged in the declarar tion, even if it could be said that there is any negligence there charged; also because it assumes that Martin Ahrens, whom the instruction designates as appellant’s agent, was a vice-principal, whereas it was a contested question in the case as to whether Ahrens was a vice-principal or a fellow-servant of decedent.

We see no objection to the second instruction for appellee, quoted in the statement, for the reasons claimed in appellant’s argument.

On the cross-examination of George Ahrens, one of appellant’s witnesses, he was asked, fixing a time and place, if he did not say that his brother ordered Mackey to sweep off the track the morning of the accident, and that his brother was to blame for the accident. The question was, after objection by defendant’s counsel, answered in the negative, and on rebuttal the court permitted the appellee to call witnesses who in effect testified that George Ahrens had said that it was his brother’s fault that Mackey was killed. We are of opinion that this was error. Whether it was the fault of George Ahrens’ brother that Mackey was killed, was one of the questions to be determined by the jury, and whether or not he gave such an opinion, should not have gone to the jury, as it was calculated seriously to prejudice appellant. Horner v. Koch, 84 Ill. 408; Ry. Co. v. Smith, 69 Ill. App. 69; Nat., etc., Co. v. Miethke, 35 Ill. App. 629; 2 Jones on Evid., Sec. 361.

For the errors indicated the judgment is reversed and the cause remanded.


author: Mr. Justice Shepard

text:
    levi Z. Leiter et al. v. Frank W. Bande et al.
    1. Injunction— When Not to be Issued Without Notice.— Neither the affidavit nor the bill in this case shows sufficient facts to justify the ordering of an injunction so broad as the one under consideration, without notice.
    2. Same— When the Applicant Will be Prejudiced if the Injunction is Not Issued Without Notice. —It is not enough that the prejudice is made to appear by argument in support of an injunction already issued, but it must appear on the face of the bill or by affidavits as a condition precedent to the issuance of an injunction without notice.
    Interlocutory Order, for an injunction. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1901.
    Reversed.
    Opinion filed November 26, 1901.
    Stein & Platt, attorneys for appellants.
    Rogers & Mahoney and Chilton P. Wilson, attorneys for appellees.
   Mr. Justice Shepard

delivered the opinion of the court.

This appeal is from an interlocutory order of injunction granted by the Circuit Court without notice.

The affidavit upon which the injunction order was issued was (omitting the immaterial parts thereof) as to this question of notice, as follows :

“Affiants Frank W. Baude and Thomas J. Hanlon further aver that the rights of your orators will be unduly prejudiced if the injunction herein prayed for is not issued immediately and without notice to the defendant, his agents and attorneys.”

The bill sets up the making of a lease of certain premises by the appellant, L. Z. Leiter, to the appellees, dated August 21), 1901, for the term commencing January 1, 1902, and ending December 31,1904, at the aggregate rental of $6,300 payable in thirty-six equal monthly installments of $175 each, payable monthly in advance, and the payment thereunder to Leiter of $175, being in full of rent for the month of January, 1902.

The bill then alleges that appellees are merchants dealing in notions, fancy goods and hosiery at a-different location in Chicago, the lease of which terminates on December 31st of the present year, and in said business carry about $30,000 worth of goods, and that appellees, relying upon said contract of lease with Leiter, had ordered to be delivered to them as merchants, about $6,000 or $7,000 worth of laces and embroideries to be delivered to them in January, 1902, for süe in said premises, in conjunction with their other said business, and that said order can not be countermanded' without the incurring of great liability by appellees.

It is then alleged by the bill, that since the making of said lease with said L. Z. Leiter, and since the payment of said rent, and since the ordering of the additional stock of goods in view of said lease with L. Z. Leiter, the said L. Z. Leiter and his agents and attorneys, Hugh Crabbe, Joseph Leiter and others, have said in substance and in fact that he, the said L. Z. Leiter, would rent said premises, namely, the said second floor, to some person or persons or corporation other than appellees, for the term or some part thereof for which said premises are leased to appellees, and would so rent said premises for the purpose of keeping appellees from getting possession and the quiet enjoyment of said premises.

That said L. Z. Leiter and also his said agents and attorneys, having control of said premises, have said in substance, and in fact to appellees, that he, the said L. Z. Leiter, would not do or perform any of the terms and conditions of said contract of lease, but on the contrary that he, the said L. Z. Leiter, would rent said premises to some person or persons or corporation other than appellees for the term said premises are leased to appellees, and would prevent appellees in some other way from taking possession of said premises, and that he, the said L. Z. Leiter, intended to disregard the terms of. said contract and would also not allow, appellees to take possession of said premises as agreed,, and that he, the said L. Z. Leiter, would exclude appellees from the enjoyment and possession of said premises, contrary to the terms and conditions of said contract.

And the prayer of the bill is for an injunction against Leiter and his said agents and attorneys, from violating the terms of said lease in excluding your, orators from the enjoyment of the possession of said premises, and restraining the said L. Z. Leiter, his agents and attorneys, from again leasing said premises for the term, or any part thereof, that they are leased to your orators, and restraining all acts of L. Z. Leiter, his agents or attorneys, in violation of said contract of lease that will prevent your orators from entering upon and quietly enjoying said premises in pursuance of said lease to your orators until the further order of this court; and an injunction, as prayed, was ordered, without notice.

Heither the affidavit nor the bill shows sufficient facts to . justify the ordering of an injunction, so broad as this one, without notice. The bill was in effect one for putting appellees into possession of the premises, by restraining the appellants from doing anything that would prevent appellees from entering upon and quietly enjoying them.

Whether this may be done or not, we are not called upon to decide; we need only to decide that no injunction having that object in viexv could be properly issued without notice.

It may be quite true that appellees have suggested in argument various methods that appellant may resort to to deprive appellees of their right to enjoy the demised premises, but they are not alleged in the bill as a fact, furnishing ground for obtaining the injunction without notice.

There xvas ample time betxveen the filing of the bill, September 14, 1901, and the time provided for possession of the premises by the appellees, January 1,1902, for notice to have been given, and if appellant xvas threatening to do anything which xvould unduly prejudice the rights of appellees, if notice of the application xvere given, it should have been alleged, so that, in the language of the statute, it might “appear from the bill or affidaxdt accompanying the same, that the rights of the complainant will be unduly prejudiced if the injunction is not issued immediately or without such notice.”

It is not enough that the prejudice should be made to appear by argument in support of the injunction already issued, but it must appear on the face of the bill or affidavit as a precedent to the issuance of the injunction. The injunction was improperly ordered. Board of Trade v. Riordan, 94 Ill. App. 298; Becker v. Dejebaugh, 66 Ill. App. 504; Thurston v. Chott, 86 Ill. App. 543; Chicago v. Ward, 76 Ill. App. 536; Henderson v. Flanagan, 75 Ill. App. 283.

The order will be reversed and the injunction dissolved. Reversed.


text:
    Ogden Building and Loan Association v. Anna Mensch et al.
    1. Acknowledgments — Taken Before Interested Persons, Void.— The acknowledgment of a mortgage to a building and loan association before a notary public who is the attorney for the association and a director and shareholder of it, is taken by an interested person and is void.
    Foreclosure of a Mortgage, taken by a building and loan association. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 26, 1900.
    Joseph H. Muhlke and Samuel B. King, attorneys for appellant.
    A certificate of acknowledgment is not void by reason of the fact that it was taken and certified by a stockholder of appellant, who was also the attorney and director thereof. Cooper v. Hamilton B. & L. Ass’n, 97 Tenn. 285, 286; Rational Bk. of Fredericksburg v. Conway, 1 Hughes, 37, 40; Horton v. Columbia Bldg. Ass’n, 6 Weekly Law Bulletin, 141.
    The qualification, as to disinterestedness, of a notary public taking and certifying to an acknowledgment, is not the same as the qualification df a judge or juror. Lynch v. Livingston, 6 N. T. 422, 433-4.
    The act of a notary public taking and certifying to an acknowledgment of a deed is purely ministerial and not judicial or quasi-judicial. People v. Bartels, 138 Ill. 322,333.
    An interested officer may perform a valid ministerial act with reference to a transaction in which he is interested. Tliroop on Officers, Secs. 607, 614;, 12 Am. & Eng. Enc. of Law, 49.
    This rule is subject to the exception that such an act is invalid where the interested officer is a party to the transaction. Throop on Officers, Sec. 614.
    And accordingly it is held in this State that where an acknowledgment is taken by one of several parties to a deed, it is void as to such party taking the acknowledgment and valid as to the others. Darst v. Gale, 83 Ill. 136, 143.
    The true rule is that the act of an interested officer taking and certifying to the acknowledgment of a deed is valid, if free from imposition by him practiced upon the grantors, and void where such imposition is practiced. Cooper v. Hamilton B. & L. Ass’n, 97 Tenn. 285, 290.
    E. J. Batten and D. K. Tone, attorneys for appellees.
    An acknowledgment taken by an officer adversely interested is void. Hammers v. Dole, 61 Ill. 310; Armstrong v. Combs, 44 N. Y. S. 173; Iron Belt Building & Loan Ass’n v. Groves, 96 Va. 138; 31 S. E. Rep. 23.; Merced Bank v. Eosenthal, 99 Cal. 39, 47; 31 Pac. Rep. 849-852; Workman’s Mut. Aid Ass’n v. Monroe, 53 S. W. Rep. 1,029; Hayes v. Southern Home B. & L. Ass’n, 26 So. Rep. 527; Leonhard v. Flood (Ark.), 56 S. W. Rep. 781, 783; Kothe v. Krag-Reynolds Co., 20 Ind. App. 293, 306; 50 N. E. Rep. 595, 597.
    Prior to the statute abolishing the disability of witnesses, a stockholder was incompetent to testify in behalf of the corporation of which he was a member, and can not now testify where the disqualification has not been removed. Consolidated Ice Machine Co. v. Keifer, 134 Ill. 481, 495; affirming 26 Ill. App. 468; Thrasher v. Pike County Railroad Co., 25 Ill. 393; Christiansen v. Dunham, 75 Ill. App. 267; Ryder v. Alton & Sangamon Railroad Co., 13 Ill. 516, 523. And theref ore could not act as attesting witness for the corporation. Winsted Savings Bank, etc., v. Spencer, 26 Conn. 196.
    The acknowledgment now serves the purpose of witnessing the signature, and the statutes empowering parties and interested persons to testify in suits have no bearing on this question. The statute expressly so provides. 2 Starr & Curtis’ Ann. Stat. 1842, Sec. 8, Ch. 51.
    It is not necessary that the officer taking the acknowledgment should be a party to the instrument to disqualify him from certifying to its acknowledgment. Kothe v. Krag-Reynolds Co., 20 Ind. App. 293; 50 N. E. Rep. 595; Smith v. Clark (Iowa), 69 H. W. Rep. 1011; Groesbeck v. Seeley, 13 Mich. 329; Iron Belt Bldg. & L. Ass’n v. Groves, 96 Va. 188; 31 S. E. Rep. 23; Miles v. Kelley (Tex, Civ. App.), 40 S. W. Rep. 599; Hayes v. Southern Home B. & L. Ass’n (Ala.), 26 So. Rep. 527; Workman’s Hut. Aid Ass’n v. Monroe, 53 S. W. Rep. 1029; Merced Bank v. Rosenthal, 99 Cal. 39, 47; 31 O. 849, 852; Beaman v. Whitney, 20 Me. 413; Long v. Crews, 113 N. C. 256; 18 S. E. Rep. 499; Jones v. Porter, 59 Miss. 628; Bank v. Porter, 2 Watts Pa.) 141; Bank v. Wycoff, 4 Dall. (U. S.) 151; Wills v. Wood, 28 Kan. 400; Leonhard v. Flood (Ark.), 56 S. W. Rep. 781, 783.
   Mr. Justice Shepard

delivered the opinion of the court. This is a suit in equity to foreclose a mortgage for $3,000, made by the appellees Anna and Michael Mensch. The appellee George Landgraif was made a party defendant, and, besides answering, he filed his cross-bill to foreclose a second mortgage to secure $300, made by the same defendants. The premises conveyed and sought to be foreclosed were, at the time the mortgages were executed and ever since, occupied by the mortgagors as, and constituted their homestead. Ho question is made to the regularity of Landgraff’s mortgage. But as to the mortgage to the appellant, it was shown that the acknowledgment of it was taken before and certified by a notary public who was the attorney of the association and was one of its directors and had been for some five years one of its stockholders. And the principal question for decision is as to the effect of an acknowledgment so taken and certified. We omit reference to all minor questions raised on the pleadings, as a reversal on any of the other grounds urged would be but temporary and give to appellant no ultimate advantage.

The learned chancellor who entered the decree held the certificate of acknowledgment to be void, and we are constrained to agree with him. Hammers v. Dole, 61 Ill. 310.

It is an admitted fact in the case, that the notary public before whom the acknowledgment was made and certified was attorney, director and shareholder of the appellant corporation, and there can'be no effectual denial that he was, therefore, an interested party. The great weight of authority is to the effect that an acknowledgment must be held void when taken by an officer who is a party to the instrument, or who is beneficially interested in the same, directly or indirectly.

It was so held in Hammers v. Dole, swpra-, where the court said: “An officer should not be permitted to perform either a ministerial or a judicial act in his own behalf.” It is “ against the policy of the law.”

A numerous collection of .the authorities may be seen in Kothe v. Krag-Reynolds Company, 20 Ind. App. 291, where the law was held the same way. The case of Cooper v. Hamilton Building & Loan Association, 97 Tenn. 285, is directly to the contrary, but we regard the decision of our Supreme Court as controlling, supported as it is by such numerous authorities, and if the rule is to be changed it should be done by that court.

Without further discussion we must affirm the decree.


author: Mr. Justice Waterman

text:
    Eliza M. Fisher et al. v. Jane G. Patterson.
    1. Stolen Property — Disposition of, in Courts of Equity. — A court of equity will not always require one in the possession of stolen property to surrender it to its true owner, and when the disposition of such property comes into a court of equity it will be disposed of in accordance with equitable principles.

      Bill for Relief. — Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed December 24, 1901.
    John J. Symes, attorney for appellants.
    Jesse A. & Henry R. Baldwin, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

From the bill filed in this cause, it appears that October 10,1892, one Aldrin, being indebted in the sum of $1,200, to Eliza M. Fisher, appellant, conveyed in trust to Benjamin E. DeYoung, appellant, lots 19, 20, 21, 22, 23 and 24, in block 1, in a certain Britton’s subdivision, to secure the payment of said indebtedness; that thereafter a foreclosure of said trust deed was had under decree in which the premises were sold for the entire amount of the indebtedness and the interest and expenses of said foreclosure, to said Eliza M. Fisher, and that thereafter, under said sale, she received a master’s deed, June 15,1897, which was recorded June 16th of the same year; that by said deed dated April 10, 1898, recorded April 30th, said Eliza M. Fisher conveyed to said Benjamin E. DeYoung, the premises 'acquired by her under a master’s deed as aforesaid, and that in part payment thereof said DeYoung, who is now the owner of said real property, made a trust deed to Miles Almy to secure the payment of a portion of the purchase money, namely, $1,200, due to said Eliza M. Fisher. The bill further alleges that at the time of the conveyance by Chas. E. Aldrin to said DeYoung of the said premises in trust to secure the indebtedness of Aldrin to Eliza M. Fisher, there was on lot 20 of said premises, a frame house one and one-half stories high, containing about six rooms and valued at about $1,500; that said house was on said premises at the time of the foreclosure and passed by the deed thereunder made to Eliza M. Fisher; that up to some time in the month of March, 1897, said house continued to be upon lot 20 of said premises; that some time in the month of May, 1897, DeYoung for the first time ascertained that this house had been moved from its location on lot 20, on and to lot 25 and lot 26, in block 1, in Britton’s said subdivision, being about 200 feet from its former location on lot 20; that lots 25 and 26 were no part of the premises conveyed to DeYoung by the Aldrin trust deed, nor by any of the transfers heretofore mentioned, and that neither Eliza M. Fisher, nor DeYoung have or claim any right or title in or to said lots 25 and 26, or either of them, except as they are now seeking to enforce their equitable rights by virtue of the wrongful removal of the house from lot 20 to lots 25 and 26.

The bill further sets forth on information and belief that lots 25 and 26 were at the time the house was moved on and attached to them as aforesaid, owned by one Henry H. Hayes, and that after the house was moved as aforesaid, it was raised and another story built thereunder, the whole structure being now attached and situated upon apart of each of lots 25 and 26; that the removal of the house was without the knowledge or consent of Eliza M. Fisher or DeYoung; that when DeYoung first became aware that the house had been moved, it was in the occupation of one Hans Andreason, who paid rent therefor to the owner of lots 25 and 26, and who has continued to occupy the house, so far as complainants know, up to the present time; that the house is permanently attached to the soil of its present location and was so when Eliza M. Fisher and DeYoung first became aware of its removal, and that the removal thereof was wholly wrongful, unlawful and felonious as against Eliza M. Fisher, and constituted a great impairment and depreciation in the value of lots 19 to 24 inclusive, aforesaid, and also constituted a great and serious impairment in the security which Eliza M. Fisher had under the trust deed made by Aldrin as aforesaid.

The bill further alleges that Eliza M. Fisher does not know nor does DeYoung, notwithstanding the making of strenuous efforts on their part, who removed or directed the removal of said house; that lots 25 and 26 are now owned, as appears of record, by one Jane G-. Patterson, and that said removal has resulted in an increase in and accession to the value of lots 25 and 26, and a corresponding loss in the value of lot 20.

The bill prays that Jane GL Patterson be required to return said house to its former and rightful location on lot 20, or that in lieu thereof, an accounting may be had for the value of the house when so attached to lot 20, at the time of its removal therefrom, and of the value of the rentals thereof since its removal; and that Jane G. Patterson may be directed to pay to complainants such sum of money as shall be found to be due and owing from her under such accounting; and that a lien in the nature of a mortgage may be declared by the court in favor of the complainants or some of them, upon lots 25 and 26, for the value of said house at the time of its removal and the rentals thereof since it was moved as aforesaid.

The bill also sets forth that whatever money may be received under this decree will be applied to the extent thereof in reduction of the indebtedness placed upon lots 19 to 24 aforesaid, by said DeYoung, to secure his indebtedness to Eliza M. Fisher, and the balance, if any there be, will belong to said DeYoung. A demurrer to the bill was sustained and the bill dismissed, from which order of dismissal this appeal is prosecuted.

The original bill in this cause was filed December 7, 1899; the amended bill, being a complete restatement, was filed January 24, 1900. The house appears to have been moved some time between March and May, 1897. The defendant does not appear to have had any connection whatever with the removal or to have been in any way or wise responsible therefor.

The bill charges that one Hayes was the owner of lots 25 and 26 at the time of the removal, and, so far as appears, the defendant Patterson purchased and paid for lots 25 and 26, with the house thereon, in good faith, without knowledge or notice of any right of complainants or either of them, in or to said house, and in the full belief and understanding that it equitably, rightfully and lawfully constituted a part of the premises known- as lots 25 and 26. Under these circumstances we do not see how any case is made by the bill for charging the defendant with the value of this house, or requiring her to replace the same on lot 20. It may be, as appellants contend, that if this is not done, they will have lost their house; it will have been stolen from them without their having any remedy therefor; but it does not follow that the loss which they have sustained must be saddled upon the defendant. She is as innocent of the wrong-doing as are they. Had they proceeded so soon as they ascertained that the house had been removed, it may be that she would never have purchased said lots 25 and 26. While it is true, as against the true owner no title can be acquired to stolen property, it does not follow that a court of equity will always require one in possession of stolen property to surrender it to its true owner. Such a matter, having come into a court of equity, will be disposed of in accordance with equitable principles.

The question presented is not at all what it would be if the defendant were Hayes, who was the owner of lots 25 and 26 at the time the house was moved thereon; he, perhaps, would be required to permit the removal thereof or .to account for its value, although he had had nothing to do with its being placed where it now is. The bill does not show that Jane Gr. Patterson has gained anything by the wrongful removal of this house; on the contrary, so far as appears, she, while entirely innocent, would, if compelled, to account for the value of the house at the time it was moved, be subjected to great loss. All thefts result in a loss to some one. The bill shows a case of great hardship and the decree sought by appellants would show a case of equal hardship with a change of parties.

The decree of the Superior Court is affirmed.


text:
    Mandel Brothers v. Jeanne Hocquard.
    1. Employment — Burden of Proving an Improper Discharge.— When a person brings a suit for damages sustained because of an improper discharge, the burden is upon him to show that he was engaged for a definite period and discharged without sufficient cause before the end of it.
    Assumpsit, for a breach of contract. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed December 24, 1901.
    Ringer, Wilhartz & Louer, attorneys for appellant.
    Ossian Cameron and Chester Firebaugh, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

The plaintiff below, August 11, 1889, began to work for appellant as a designer of hats. According to her testimony, Miss Cohen, representing appellant, then told her that she could not decide whether appellee would be employed for the season until she knew what appellee could do. Appellee testified that before she had finished her trial, Mr. Emanuel Mandel offered her a position in the house at $30 a week and that she decided to take the position. She further testified that he then told her that she would have to go to New York and see Mr. Caspary as to the length of time she would be employed, and that although objecting so to do, she finally went to New York. Owing to her illness she did not see Mr. Caspary and she wrote to him, he having gone to Chicago, asking that her season should be made as long as possible and saying she ought to have some positive knowledge of the number of weeks before she began, to which he replied: “ Come at once. Will arrange time to suit.”

Prior to her leaving Chicago she had on the 16th day of August signed a contract of employment which provided that appellant should have the right at all times and at the sole discretion of its manager or its agent to terminate her employment at the end of each day without notice to her; also provided that should she for any cause neglect, fail or refuse, or be unable to perform the duties of her position, then said corporation, without notice to her, might terminate her employment, and that in case of said termination all her rights, claims and demands under the contract should cease. .

The suit under consideration arose from her claim that she was employed to work until Christmas and to her having been discharged on the 29th of September, up to which time she was paid. The telegram from Mr. Caspary saying, “ Will arrange time to suit,” seems to indicate that he then intended to engage her as she desired, for the season, namely, until Christmas. Upon her return to Chicago she called upon Mr. Caspary and had a talk about the time for which she was to be employed. According to her testimony a final arrangement was made with him until the first week in December or Christmas time, if the season was good.

Appellee claims that she was twice employed by appellant; that the contract she signed was in reference to the first employment before she went to New York and that she signed no contract as to the second employment.

Appellant insists that there was but one engagement and no time of its or the duration of any employment was ever fixed.

According to the testimony of appellant her work was unsatisfactory. Appellee says that Mr. Caspary said her work was satisfactory. September 29th, she not having been at the store either the 28th or 39th, appellant wrote to her in substance as follows:

“ Inasmuch as you have failed to comply with our rules by remaining away without notifying us of the cause of such absence, we shall no longer require your services. Enclosed please find check for $42.50 salary due you.”

Her record as to attendance from September 15th had been as follows:

Sept. 15th, 8:35 a. m.; Sept. 16th, 8:30 a. m.; Sept. 18th, at 12 o’clock noon; Sept. 19tk, 10 a. m.; Sept. 20th and 21st, 8:30 a. m.; Sept. 22d, 9 a. m.; Sept. 23d, 8:45 a. m.; Sept. 25th, 8:30a. m.; Sept. 26th, 8:45 a. m.; Sept. 27th, 8:35 a. m.; Sept. 28th and 29th, absent.

As to the hour at which she was to go to work she testified that Mr. Emanuel Manuel told her it was eight o’clock. She said, a designer is favored and does not go to work until half past eight, and that he replied, that was all right.

She also testified that a week before the discharge “ I was away in the morning for sickness and they put my work eight o’clock. I went to see Mr. Robert Mandel and he said, ‘You came yesterday at twelve o’clock.’ I said, ‘ The doctor was waiting on his patients and I had to wait, so rather than be late I came at twelve o’clock.’ I told him about my sickness and he said ‘ I will arrange you to work like I used to have.’ He never told me that I should write the house why I was away.”

Mr. Caspary and Mr. Emanuel Mandel deny having had the conversations which she attributes to them respectively. Appellant brought suit, not to recover for wages earned, but for damages sustained because of an alleged improper discharge. The burden of proof was upon her to show that she was engaged for a definite period. Although two witnesses testified against her, we can not say the evidence is such that the verdict of the jury as to that matter should be set aside. She may not have understood that the written contract of employment she signed applied to the entire period during which she worked for appellant, while it is evident appellant so considered. Her repeated tardiness and final absence for two days, without notice that she expected to be or why she was so absent, constituted a sufficient reason for her discharge.

The fact that for some absences a deduction had been made from her pay to which she did not object, did not deprive appellant of the right to discharge her, either for tardiness or absence. Her contract was not to work at such hours as she saw fit, subject only to a fine or deduction in case she did not attend at the promised hours, but to be present and begin work at certain fixed times; and her failure so to do was a breach of her contract of employment.

It is quite evident that no manufacturing or mercantile house can carrx on its business under a rule that employes are at liberty to go to work at such' hours as they see fit, being paid only for the time they are actually engaged.

The work of one employe not infrequently depends upon that of another being done at a certain time; while engagements with customers require that the house should know when employes will go to work. Neither tardiness for a short time nor absence for a few days can be considered trifling breaches of a contract of employment.

The repeated tardiness and the absence of appellee constituted a sufficient reason for her discharge. The judgment of the Superior Court will be reversed and the cause remanded.


text:
    City of Chicago v. Laura Glore.
    1. Remittitur — On Suggestion of the Appellate Court. — In a case where the Appellate Court is of the opinion that the evidence justifies a recovery, but that the verdict is too large, it may affirm the judgment on condition that a portion of it is remitted, otherwise that it be reversed and remanded.
    Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed on a remittitur as suggested, otherwise reversed and remanded.
    Opinion filed December 24, 1901.

    Andrew J. Ryan, James J. Kelly and John E. Kehoe, attorneys for appellant.
    Theodore G. Case, attorney for appellee; A. W. Browne, of counsel.

       Remittitur filed and cause affirmed December 26,1901,

   Mr. Justice Shepard

delivered the opinion ot the court.

This is an appeal from a judgment of $6,500 rendered by the court below, in favor of appellee, for alleged injuries claimed to have been sustained through stepping into a hole in a'sidewalk maintained by the appellant on Ogden avenue, near its intersection with Van Burén street, on ¡¡November 24, 1S98. ■

The only error urged by the appellant is the excessiveness of damages, all other assigned errors being expressly waived by appellant.

Three witnesses only testified to facts that bear on the question of damages — the plaintiff and two physicians. ¡¡Neither of the physicians had ever before attended appellee professionally. Doctor Phillips, who was called to attend her on the day or the day after she was injured, and treated her a few days — making in all six visits — found bruises upon her body in the region of the hip and thigh, but no bones broken, no ligaments torn or ruptured, no bruises or cuts that caused any blood to flow. He found her suffering great pain in the region of her abdomen, in the back and one of the ribs. As to internal injuries, he found some evidences of them in attempting to make a digital examination, which he was obliged to desist from, because of the great tenderness. At the end of two weeks he ceased to treat her.

The other physician, Doctor Johnston, saw her first in February, 1899, and at that time made an examination. He found her womb was enlarged and inflamed and displaced, and that she had an enlarged and inflamed ovary, and a neuritis of the right side.

He commenced to treat her in April, 1899, and in January, 1900, he performed an operation upon her — replacing and packing the womb, and treating the ovary surgically at the same time.

At the time of starting to treat her, in April, 1899, there was nothing in her condition from which he could tell how long the conditions he described had lasted; it might have been a matter of months or years’ duration.

She was at the time of trial still under his treatment for the conditions he first found her suffering from, and his opinion was that her disabilities were of a permanent character, although the inflammation and size of the womb and ovary had become diminished.

The appellee testified that prior to the accident she had never been seriously ill except when her baby was born, and that she was always able to do her own housework; that since the accident she has suffered great pain most of the time; had frequent hemorrhages; that her menstruations were very irregular and accompanied by pain; that she has not been able to work half the time; that her mind was affected and she has been at times so nervous as not to realize anything; besides stating the particular things to which Doctor Livingston testified.

'We thus have only the evidence of the plaintiff as to the injury being exclusively confined to the accident and the " direct resultant consequences. The accident and the negligence of the city, and the freedom of appellee from all contribution to the injury, being admitted, we ought not to remand the cause to await the delay of another trial. Substantial justice will be better served by ending the case here, it appearing that some recovery on another trial ought to be had under the admitted facts.

Considering all these matters testified to, we think the verdict and judgment is too large, much more than the compensation which the law permits, and that the judgment should be affirmed for only a considerably less sum.

If, therefore, the appellee shall,within ten days from the' date of filing this opinion, file a remittitur in this court of $3,000 from the judgment, we will affirm it for the balance, otherwise the judgment will be reversed and the cause remanded for another trial. Affirmed if remittitur be entered, otherwise reversed and remanded.


text:
    Thomas Gallagher v. George E. Brennan et al., v. Reeeivers of the International Building, Loan and Investment Union.
    1. Insolvent Building! and Loan Association — Status of Stockholders and Creditors. — When a holder of matured shares of stock in a building and loan association, surrenders his stock, procures the cancellation of his certificate, and allows the amount due him upon his shares to remain with the association, taking therefor an acknowledgment of the indebtedness, he becomes a creditor of the association upon the same basis as outside persons, and is entitled to be preferred as to such claim above stockholders whose stock had not matured at the time the association was declared insolvent.
    2. Equity Jurisdiction — In. Winding up the Affairs of Building and Loan Associations. — Equity will always disregard the form and look to the substance of a transaction in order to prevent injustice.
    Bill to Wind up the Affairs of a Building and Loan Association. —Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1900.
    Reversed and remanded with directions.
    Opinion filed December 12, 1901.
    Statement Tby the Court. — On April 29,1898, a decree was entered in the Superior Court in a proceeding by the state auditor against the International Building, Loan &

    Investment Union, by which the union was found to be insolvent September 4, 1897, was dissolved, its charter annulled, its business ordered to be wound up and its assets administered upon, converted, collected, martialed and distributed. Receivers were appointed, and by the decree of the court, invested with the title to the union’s property.
    Previously another suit, by one Emerich against the same union, was consolidated with the said People’s cause, and the receivers in the former cause were ordered to turn over the property, etc., of the union then in their hands to the receivers in the People’s cause. It was also ordered that claims filed with the receivers in the Emerich case be turned over to the receivers in the People’s case, and have the same effect as if filed with the latter receivers.
    February 6, 1900, the receivers in the consolidated cause filed their petition, showing, in substance, that certain claims had been, filed with them by stockholders of the union, showing amounts claimed by them and amounts as shown by the union books, including among others a claim of Thomas Gallagher of $4,389; also certain claims by creditors other than stockholders. The petition prays that the claimants be required to appear and prove their claims.
    Among other claims that of said Gallagher was heard by the chancellor, the evidence being taken in open court and a decree rendered finding that Gallagher had paid to said union upon account of shares of stock owned by him, the sum of $3,809 and his claim, among others, was allowed for that amount. The decree also allowed certain other claims as preferred claims against the property and assets of the union. From this decree the appeal herein is taken by said Gallagher.
    The claim of Gallagher as filed and sworn to by him, is stated to be for cash deposited with said union on December 1, 1894, and payable on demand, as evidenced by a certain deposit book issued by the union to Gallagher, and is for the sum of $3,800, with interest from July 1, 1895. •
    It appears from the evidence that Gallagher was a stockholder in the union October 1, 1888, and there was issued to him at that time fifty shares of stock of the par value of $5,000, on which the union agreed to pay $100 in six years on each share to him, upon his compliance with certain terms and conditions. One condition of this agreement makes the by-laws of the union a part of the contract. Section 2 of Article 13 of the by-laws is as follows :
    “ Any shareholder may pay his installments, interests and premiums in advance, or deposit with the union a certain sum to be used for such payments as they may fall due, and .the union will receipt for the same and notify when said sum is exhausted.”
    About December 12, 1894, after the stock had matured, Gallagher surrendered his certificate of stock to the union and at the same time received part of the money due him thereon, and gave to it the following receipt:
    “ Received $5,000 December 12, 1894, of the International Building, Loan and Investment Ddion, the full amount due on the within certificate of shares, and they are hereby surrendered and ordered canceled.”
    Gallagher was then given by the union, a pass or deposit book, in which appear the folio wing entries:
    “Account International Building, Loan and Investment Union.
    Dr. In acc’t with Thos. Gallagher. Or. 1894. 1895.
    Dec. 1st, Dept. 6 per cent 3,800. July 15, Cash Int. 133. 1895.
    July 1, int. to date 133.”
    Gallagher presented this book at the office of the union, as he says, one year later, and received $133.33 interest. Presumably this is the interest which appears to have been entered on the pass-book under date of July 15,1895. All Gallagher’s transactions with the union were had with a Mr. MacGoun, who acted as bookkeeper and cashier of the union, who told Gallagher at the time the stock matured that if he, Gallagher, did not want to use the rest of the money, to leave it with the union and it would be paid to him on four or five days’ notice; and while it remained with the union he, Gallagher, would receive interest at the rate of six per cent per annum. The money was not paid to Gallagher, and was left by him, he at the same time taking the pass-book and giving the receipt as above stated.
    On December 1, 1894, Gallagher was also the owner of twenty other shares of stock in the union, on which he réceived his money some time during the year 1895.
    About the 14th or 15th day of July, 1896, Gallagher made demand of the union for the balance of the money due him from the union on account of the fifty shares of stock, which was surrendered by him in December, 1895, to the union. Gallagher made no agreement at the time of the surrender of said stock, that any part of the balance of the money due him thereon from the union should be' used by it to pay his installments upon his other twenty shares of stock, and none of it was used for that purpose.
    On said pass or deposit book appears the following :

      “Deposits received of $1 and upward from members only,” and on the inside cover of the same book appears the following:
    “ Members may deposit money, subject to withdrawal on demand. Money so deposited bears interest at six per cent per annum on six months deposit. * * * Any share-
    holder desiring to avoid being fined can deposit any amount from one dollar upward with the union. When there is in the hands of the secretary an amount equal to the monthly dues on the stock in the name of the shareholder, there will be no fines charged against the stock. By keeping up your monthly payments and adding to this account, you will always have available funds in the time of need. * * * Ho agent is authorized to receipt special deposits.”
    The books of the union show entries in the account of Thomas Gallagher made at the time of his surrender of his stock as follows:
    December 12,1894, matured stock, certificate Ho. —, 1,896 shares, ledger page 394, $4,750. That is the debit. Credits: Thomas Gallagher deposited on December 12, 1894, $3,800; page 926, $3,800. Bills receivable: Thomas Gallagher, folio 155, $300; interest, $36, $3.75, folio 132.
    It appears that on December 12, 1894, Gallagher was paid by the union in cash $610.25, which, together with the other deductions shown by the account, left due to him the sum of $3,800, which is the' amount that was entered in the pass-book then given to him. The money paid to Gallagher by the union and the settlement with him as to his matured stock, the surrender of the stock and the giving to him of the pass-book, were paid and arranged pursuant to the directions and by authority of the secretary of the union.
    It also appears that no resolution of the board of directors of the union authorizing the' receipt of deposits of money by the union, aside from the printed by-laws above set out, was ever brought to the knowledge of Mr. MacCoun, with whom Gallagher had the transactions in question. MacCoun also testified that he was not authorized by the secretary of the union to take deposits from any one except a stockholder, and that it was not his custom to do so.

      Sullivan & McArdle, attorneys for appellant.
    Pam, Calhoun & Glennon, attorneys for appellees.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

We find it unnecessary, in view of the conclusion we have reached, to consider the first two points in appellant’s argument, viz., that the court admitted incompetent evidence and that the incompetent evidence so admitted had no probative value, since, even if the evidence was competent, it would not change the result reached by us.

The finding in the decree that the appellant paid to the union, on account of shares of stock owned by him in said union, is not strictly accurate. As appears from the foregoing statement of facts, appellant made payments to the union from time to time, upon fifty shares of stock purchased by him from it; that on or about December 12,1894, said fifty shares of stock having matured, he presented it for payment, when there was an adjustment between him and the union of the amount due him thereon; he surrendered the certificate of stock to the union, and it was then canceled, he being paid on account by check of the union §610.25, but no more, and being charged upon the books of the union with certain items shown thereon, which left a balance due him of $3,800 on that date, on which it appears that he was paid interest at the rate of six per cent per annum up to July 1, 1895. Appellee’s c'ounsel in their argument, assert that the stock was surrendered and canceled December 12, 1894.

Gallagher was induced by the secretary of the union to leave this amount, which was due him on account of his stock, with the union, and he was then given what is termed a pass or deposit book, which shows the union in account with Gallagher under that date on the debit side a deposit of §3,800, and a payment of interest July 1, 1895, of §133, and a credit of a like amount for interest.

It does not appear that after this transaction appellant, as to these fifty shares of stock, enjoyed any rights or privileges of a stockholder in the union, and we are of opinion that by the surrender to the union and cancellation of the certificate of these shares, and payment of interest thereafter to appellant upon the indebtedness of the union then acknowledged, he thereby severed his relations with the union as a stockholder and became and was, from the 12th day of December, 1894, a creditor of the union, upon the same basis of any outside creditor, and is entitled to be preferred as to this claim above stockholders whose stock had not matured at the time the union was declared insolvent, which was long after December 12, 1894, and after the payment of interest.

It is clear from the evidence that at the time of the adjustment between the union and appellant, no money passed to appellant except the amount which was paid him on account. The form that the transaction took, viz., giving a receipt for the amount due him on. the stock and taking a pass-book showing a deposit of the amount due him on the settlement, does not change the facts of the transaction. Equity will always disregard the form and look to the substance of a transaction in order to prevent an injustice. '

Appellant is not in the position of having, as an original transaction, deposited money with the union as his banker, but he merely left with it the balance due him upon his stock, the certificate of which was then surrendered and canceled. His position as to the union is clearly different from that of “ Kriete and his class ” in the very recent case of Columbus, etc., Ass’n v. Kriete, 192 Ill. 128, relied upon by appellees’ counsel. Kriete and his class simply deposited their money with the secretary of the association — did not buy stock and did not become stockholders. He also differs from “ Truka and his class,” in the Kriete case, in that he surrendered his stock to the union and the certificate was canceled, thereby, from that time, severing his relation as stockholder to the union; whereas Truka and his class were holders of matured stock which had not been surrendered to the association nor canceled.

The very able argument of appellees’ counsel that it would be inequitable and not in accord with the weight of authority to allow appellant a preference, fails to convince us of the correctness of their position. The most, if not all, of the cases on which reliance is placed, are not, as we believe, analogous in their facts. They all seem to be based on the theory that there should be no preference between stockholders, whether they hold paid up, matured or unmatured stock in an insolvent association, which became insolvent either before the stock was paid up or matured, or before they received what was due them, the relation of stockholder to the association at no time having ceased. This case is entirely different. The stock here had been surrendered and canceled. Appellant no longer had any voice as to this stock in the management of the association, and the relation of creditor of the association had been effectually established for nearly three years before it became insolvent, and one installment of interest on the debt had been paid to him.

The position of appellant is also different from that of the appellant in Stefan v. Brennan, 92 Ill. App. 291, who was either simply a depositor, as was Kriete and his class, or a stockholder. The court held that he was a stockholder because he was in fact, and the evidence tended to show his money was deposited with the association as advance payments on the stock owned by him in the event of its being needed for that purpose, and for that reason this court held that he had no good ground of complaint. The evidence in this case does not, in our opinion, show that appellant left his money with the union by way of advance payments on stock in case it should so be needed.

The decree of the Superior Court is reversed and the cause remanded, and that court is directed to enter a decree in appellant’s favor for $3,800, with interest from July 1, 1895, at five per cent per annum, and that he be preferred over the claims of stockholders for money paid on shares scheduled in the decree appealed from. Reversed and remanded, with directions.


text:
    City of Chicago v. Josephine Gilfoil.
    1. Damages — For Pain, in Actions Predicated upon Negligence.— Damages for pain are given in actions predicated upon negligence, only for the bodily and physical pain of which the mind is conscious.
    3. Same — In Actions for Personal Injuries. — In actions for personal injuries a jury can properly award only such damages as under the evidence and from the instructions of the court they believe the plaintiff has sustained and is entitled to recover.
    3. Remitittdr — Where the Verdict is Excessive. — Where the Appellate Court is of the opinion that the verdict is excessive under the evidence of a case, it may order it affirmed on condition that a certain amount is remitted by a given day, otherwise that it be reversed and remanded.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Marcus ICavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed on a remittitur, otherwise reversed and remanded.
    Opinion filed December 24, 1901.

    This was an action to recover damages alleged to have been sustained by appellee in consequence of stepping through a hole in a sidewalk in Chicago.
    As a result of the injury thus sustained it appeared that appellee’s ankle has become stiff, so that she walks with a cane. There was evidence tending to show that such stiffness will be permanent.
    Appellee recovered a verdict and judgment for §5,500.
    Andrew J. Ryan, city attorney, and James G. Condon, assistant city attorney, attorneys for appellant; James J. Kelly, of counsel.
    Francis T. Murphy and Thaddeus S. Allee, attorneys for appellee.

       Remittitur filed and cause affirmed December 30, 1901.

   Mr. Justice Waterman

delivered the opinion of the court.

Upon the trial below there was given at the instance of appellee the following instruction:

“ If you find the defendant guilty you will be required to determine the amount of her damages. In determining the amount of the damages the plaintiff is entitled to recover in this case, if any, the jury have a right to and they should take into consideration all the facts and circumstances in evidence before them,the nature and extent of plaintiff’s injury, if any, testified to in this case, her suffering in mind and body, if any, resulting from such injury, her loss of wages resulting from such injury, if any, and also such prospective suffering and loss of health, if any, as the jury may believe from the evidence before them in this case, she has sustained or will sustain by reason of such injury, and may find for her such sum as in the judgment of the jury under the evidence and instructions heretofore given, the jury believes she is entitled to recover.”

Strictly speaking, all pain is mental. The body may be severely injured, lacerated, broken and bruised, and yet the mind not be conscious thereof. It not infrequently happens that an injury to the body produces a comatose condition. While this unconsciousness lasts there is no pain.

There is what is commonly understood and spoken of as bodily pain or suffering; by this we mean pain proceeding from hurt or disorder of the body of which the mind is conscious and is therefore felt.

We also recognize, speak of and feel pain that does not have its origin in, neither is connected with our body — as pain at the loss or sorrow of a friend; humiliation because of our own conduct or infirmity; this, strictly speaking, is sentimental pain and is commonly spoken of as anguish of mind. Damages for pain are given in actions predicated upon negligence only for the bodily or physical pain of which the mind is conscious.

In the present case the jury having determined that the plaintiff was entitled to recover damages, in ascertaining their amount, should have considered only the evidence bearing upon the question of the amount of damage the plaintiff had sustained; and not, as they were instructed, have then taken “ into' consideration all the facts and circumstances in evidence before them.”

She might have been hurt under circumstances of peculiar annoyance and humiliation without these having added in the least to the injury she sustained.

NTor were the jury to give her such sum as in its judgment “ under the evidence and instructions heretofore given ” it believed she was entitled to recover.”

The jury could properly award only such damages as under the evidence and from the instructions of the court they believed she had sustained and was entitled to recover.

The instruction was misleading and should not have been given. The plaintiff has been injured and should be compensated. The instruction tended to increase the amount the jury would award.

We are of the opinion that $3,500 is, under the evidence, all that should have been given, and if the plaintiff shall within ten days remit $2,000 from the judgment it will be affirmed, otherwise it will be reversed and the cause remanded.