text:
    City of Chicago v. The Norton Milling Co.
    1. Independent Contractors — Non-Liability of Their Principals for Their Negligence — Application of the Doctrine. — The doctrine of independent contractors and the non-liability of a principal for their negligence, is never applied to absolve one from liability for the doing of that which he has directly authorized or which necessarily results from the doing of that which he has contracted or directed to have done.
    2. Municipal Corporations — Liability for Damages Done by Contractors. — Where a city authorizes a public work to be done and in the doing of it the premises of a citizen are damaged, either by reason of the negligence of the contractors or as a necessary or natural consequence of the doing of that which it employed them to do, the city is liable for such damage, unless it has done that which it had not only the right to do but to do it in the manner it did it.
    3. Same — Liability When Acting Judicially and When Ministerially. —A municipal corporation in planning a public work acts judicially, and when proceeding in good faith, is not liable for errors of judgment; while in constructing the work it acts ministerially and is bound to see that it is done in a reasonably safe and skillful manner.
    4. Same — When Estopped to Raise the Question of Ultra Vires.— Where a public work done, is within the power of a municipal corporation, it may be estopped to raise the defense of ultra vires, notwithstanding there has been a failure to comply with some regulation concerning the exercise of such power.
    5. Same — Liability for Torts Not Affected by Constitutional Inhibition. — The liability of a municipal corporation for its torts, is not affected by the constitutional inhibition as to its indebtedness.
    6. Same — IEAera Liable in Tort. — Where a municipal corporation directs and superintends the construction of a public work, and it is negligently done, and thereby the property of a citizen is injured, the corporation is liable for such injury, in an action of tort.
    7. Same — When Estopped to Question a Contract, Invalid from Its Inception. — Where a contract entered into by a municipal corporation is within its powers and apparently advantageous to it, though invalid from its inception, if the corporation has received the benefit of it, it will be estopped from questioning it.
    8. Evidence — Of Money Expended in Repairing Property Injured-Requisites of the Remedy. — In an action against a city for damages resulting from injuries to property by reason of the construction of public works, there is no rule of law which forbids a party to testify as to payments made by him to repair such injury; but whether he is entitled to recover for such payments depends upon whether such repairs were rendered necessary by what was done by the city and whether the amount paid was reasonable.

      9. Rents — For Spaces Under Sidewalks.- — In all great cities there are many excavations beneath the surface of the streets, occupied by private individuals for private purposes with the knowledge and assent of the municipal authorities, but the court is aware of no authority holding that such cities may at any time, in actions for use and occupation, collect from these occupiers the rental value of the spaces so occupied.
    Assumpsit, on a contract in writing. Appeal from the Qircuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.
    Statement. — The City of Chicago, appellant in this court, and defendant in the Circuit Court, by its city council, passed an ordinance, June 8, 1887, for the condemnation of a strip off the east side of the dock of the Norton Milling Company, appellee, “ for the purpose of widening the south branch of the Chicago river, north of and adjoining West Madison street,” as in said ordinance expressed. The strip to be condemned was ten feet wide at the edge of the street, and tapered off to a point about eighty feet north on the dock, and comprising about 259 square feet. The corporation counsel was ordered to file a petition in the Superior Court, and to submit the question of compensation to be paid to a jury. Subsequently, in the annual appropriation bill of 1889, the city council incorporated this provision:
    “a NEW BRIDGE AT MADISON STREET.
    For a new bridge at Madison street.....$200,000
    Less cash from miscellaneous sources.... 200,000.”
    On the sixth day of April, 1889, the corporation counsel filed in the Superior Court a petition for condemnation, under the said ordinance of 1887.
    On the thirteenth day of April, 1889, the corporation counsel went into court with the Norton Milling Company and dismissed the petition as to all of the said strip of land, except six and one-half feet in width at the south end, and running to a point on the east line of said dock, about seventy-five or eighty feet to the north. The petition as it then stood called for a condemnation of less than 149 square feet, or less than one-half of the amount ordered to be condemned by the ordinance; the milling company having entered its appearance and waived a jury, the city and the Norton Milling Company agreed to a finding and judgment against the city for $10,290, as for condemnation for the land condemned. This sum was paid to the milling company.
    On the same thirteenth day of April, 1889, the city, through the mayor and commissioner of public works of the city, made a contract with the milling company in which, by its terms, the plaintiff agreed to permit the city to swing its new bridge around over a small corner of the three and one-half feet of the dock outside of a distance of two feet from the southeast corner of the mill. It was also substantially provided in the contract that the plaintiff should submit without complaint, to the annoyance and inconvenience to its business, during the construction of the bridge and abutment. As a consideration for this, the city agreed to excavate a large space under Madison street, at its own expense, and for the benefit of the plaintiff, and give it rent free to the plaintiff, so long as the bridge swings around over the segment of the dock. This easement consisted of the swinging of the bridge over about seven square feet of the corner, and at a height of ten feet above its surface.
    The city agreed to indemnify and save harmless the plaintiff from all injury or damages from the change of line of the dock, or the operation of the city in constructing a new dock, and also agreed to construct such new dock similar and equal in character and construction to the then existing dock, and agreed that in constructing the same, it would provide, by driving piles, or otherwise, suitable and adequate protection, satisfactory to the milling company, from vessels, for the fly-wheel of the engine then “ projecting through the east wall of said mill building.” John A. Boche was then mayor, and George B. Swift was commissioner of public works.
    On the same day, it is claimed by appellant, without advertisements for bids, and without competitive bidding, or letting to the lowest bidder, the city, through the mayor and commissioner of public works, made contracts for the construction of the bridge, abutments and center pier, though it does not appear that any contract was ever made for the construction of the new dock, with the portion cut off, according to the condemnation, while the plans produced by the engineer, Hr. Eiter, makes no reference to any such work. One of these contracts was made with Eiter & Conley for the construction of the bridge, and the other one with the Fitzsimmons & Connell Company, for the construction of the center pier and the abutments. This being done, everything lay in abeyance until the spring of 1891, two years subsequent.
    In the spring of 1891, the contractors who had secured these contracts proceeded to build the bridge, center piers and abutments, and at the same time constructed a new dock east of the plaintiff’s mill, and widened the river at that point to the extent of taking off from, the old dock about five feet of the strip condemned. Also, at the same time, the Fitzsimmons & Connell Company excavated the space under Madison street, provided in the contract of the city with the plaintiff. The whole work was completed and the bridge opened for traffic October 16,1891.
    It was claimed by the plaintiff that the work of taking out the old west abutment of the Madison street bridge, and reconstructing the new abutment, excavating the space under Madison street and constructing the new. dock, injured its building by causing the same to settle and crack, and that it has thus wrenched the building out of shape, and that the damage has amounted to a large sum of money. The defendant claimed that all of the contracts were invalid. The plaintiff brought the present action against the city on the 28th day of April, 1892, about six months after the work was completed. The pleadings are in substance as follows:
    The plaintiff’s declaration is in assumpsit and is based upon.the contract of the city with it.
    Defendant filed the plea of general issue, and subsequently other pleas, claiming that all the contracts vver$ invalid because the city council at the time of the making of the contract had not made any appropriation of moneys or ordered any fund for the payment of the moneys promised to be paid as alleged in the said declaration, because the city was indebted in excess of five per cent of the value of the taxable property therein at the time of the making of said supposed contract. There was also filed a plea of set-off, for §25,000,- for rent of the space under Madison street, due to the city and unpaid, etc., and afterward a plea of entire want of consideration for the alleged contract sued on.
    Charles M. Walker, Corporation Counsel, and Thomas J. Sutherland, attorneys for appellant.
    Francis W. Walker and.Byron Boyden, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

Appellant insists that no recovery could properly be had by appellee in this declaration, because not only was the contract of appellee with appellant, but the contracts of the city with Biter & Conley and with the Fitzsimmons & Connell Company were each invalid, not being authorized by proper proceedings of the city council or by proper advertisement and award. For the purposes of this case at this j uncture, we do not regard it as of vital importance whether either or all of the aforesaid contracts were or was valid and binding at its or their inception. The erection of a new, wider, and larger bridge at Madison street, was a thing which had been discussed by the city council and officers of the municipality for years. The doing of the work was a desirable and legitimate thing on the part of the city, and one within its powers. What was done by the city officers was not hastily entered upon. The matter had been under consideration and steps taken toward the work for years. Finally, to accomplish the end in view the city instituted against appellee condemnation proceedings, following which, an agreement wa,s arrived at, judgment for condemnation entered in open court, and an award of over $10,000 paid to appellee. Thereafter, the city, through its mayor and commissioner of public works, made a contract with appellee by which it acquired the right to use certain property of the Horton Milling Company for the necessary swinging of the said bridge, and after this, in the same way and through the same agents, the city made contracts with two contractors for doing certain work necessary for the construction of such bridge; thereupon the contractors, by the direction of the city and under the superintendence of city engineers, entered upon the performance of their contracts, but in so dqing, as is claimed by appellee and as was found by court and jury in the trial below, the premises of appellee were greatly' damaged, which damage was found by the trial court to amount to over $10,000, for which appellee has recovered the judgment from which the appeal in this case was taken. So much is substantially undisputed.

The doctrine of independent contractors and the non-liability of a principal for their negligence, is never applied to absolve one from liability for the doing of that which he has directly authorized, or which necessarily resulted from the doing of that which the principal contracted or directed to have done. <*

In the present case it does not appear'that the contractors did any work which they were not authorized to do by the city. What appears is, that in the doing of such work the premises of appellee were damaged, either bv reason of the negligence of the contractors, or as a necessary or natural consequence of the doing of that which the city employed them to do. Such being the case the city is liable to appellee for such damage, whether its contract with appellee was valid or otherwise, unless the city has done that which it had a right not only to do, but to do in the manner it did.

"If the contract of appellant with appellee is void and of no effect, then the city, in swinging the bridge over the premises of appellee, has been for some eight years a trespasser, and if it did the work in a negligent manner, it is liable for the consequences of its negligence.

If the contract is valid, then the city is liable because therein it directly promised to protect and indemnify appellee against all damages to its building or the contents thereof, which might result from the change of dock landing or its operations, or the operations of said city, its agents, contractors or employes, in the construction of a new dock, and that it would provide, by driving piles and sheeting, or otherwise suitable and adequate protection from vessels satisfactory to appellee, for the fly-wheel of the engine then projecting through the east wall of appellee’s building.

A municipal corporation in planning a public work acts judicially, and proceeding in good faith, is not liable for errors of judgment; while, in constructing public works it acts ministerially, and is bound to see that the work is done in a reasonably safe and skillful manner.

■ If the work done was within its power it may be estopped to raise the defense of ultra vires, notwithstanding there has been a failure to comply with some regulation concerning the exercise of the power. National Home Building & Loan Association v. Home Savings Bank, 181 Ill. 35; Goodrich et al. v. City of Chicago, 20 Ill. 445-448; Chicago v. Seben, 165 Ill. 371-378-382; Dillon on Municipal Corporations, Sec. 1047, 1048-1050; Ashley v. Port Huron, 35 Mich. 296; Nevins v. Peoria, 41 Ill. 502; Seifert v. Brooklyn, 101 N. Y. 136; Robbins v. Chicago, 4 Wall. 657-679; Tiffin v. McCormack, 34 Ohio St. 638; Dillon on Municipal Corporations, Sec. 1029 to 1034; 1st Ed., Am. & Eng. Ency. of Law, Vol. 15, 1080-1102; Badger v. Inlet Drainage District, 141 Ill. 540-549.

Whether the city at the time of the making of such contracts, the entering upon the property of appellee, and doing the work heretofore mentioned, was indebted in excess of five per cent of the value of the taxable property therein, we do not consider material.

The Supreme Court of this State has repeatedly held that the liability of municipalities for torts is not affected by constitutional inhibition as to indebtedness. City of Bloomington v. Perdue, 99 Ill. 329-333; City of Chicago v. Sexton, 115 Ill. 230-245.

While in The City of Chicago v. Cement Company, 178 Ill. 372, 385, the Supreme Court, in an action brought under the statutes to recover damages for property destroyed by a mob, said — ■

“ Whether or not the city of Chicago was, at the bringing of this suit, indebted beyond that amount, is wholly immaterial in determining the constitutionality of the law. That question could only arise, if at all, upon a proceeding to collect the judgment ”—

we see no reason why appellee might not have brought an action of tort for the damages it claims, without there having been any contract between it and the city. Having, at least, a form of contract by which the city agreed to indemnify it against certain damages, both parties having evidently understood that they had entered into a valid contract, each having acted thereon and the city having derived benefit therefrom, the present action of assumpsit can be maintained.

The contracts made by the city with each of the contractors for the work, provided that all of the work should be done “ under the immediate direction and supervision of the commissioner of public works of the city of Chicago and to his entire satisfaction, approval and acceptance.”

It appeared that the construction of the new dock was carried on under the direction and supervision of an engineer of the city, Hr. Murphy; that much extra work, as driving of piles, and tying the dock with rods tied to the building, was done because of and by the order of this engineer.

We think the 'evidence warranted the jury in finding that the city directed and superintended the construction of the new dock, so that if the work was negligently done and thereby appellee was injured, the city is liable therefor in an action of tort. Dillon on Municipal Corporations, 4th Ed., Secs. 965, 966, 983, 984, 1050; Hannon v. St. Louis Co., 62 Mo. 313; Hill v. Boston, 122 Mass. 344; Addison on Torts, 725-727.

We regard the contract of appellant with appellee as one which, if invalid at its inception, the city is now estopped from questioning. For some eight years the city has been enjoying the benefit of this contract; at the beginning of this suit, during the trial, since the judgment and now, the city was and is using the land, an easement in which was given to it by its agreement with appellee. The contract was within its powers and apparently one advantageous to it. To this day appellant has not, so far as appears, offered to relinquish the right acquired thereunder, but appears in this court clinging to the advantage it thus obtained while endeavoring to escape fulfillment of the obligation it gave by insisting that the contract is invalid. It can not now disaffirm the act of agents which for many years it has ratified. Connett v. Chicago, 114 Ill. 233; Shawneetown v. Baker, 85 Ill. 563; Town of Petersburg v. Mappin, 14 Ill. 193-195; Town of New Athens v. Thomas, 82 Ill. 259; Dillon on Municipal Corporations, 4th Ed., Secs. 477, 478-459 and 966; Am. and Eng. Ency. of Law, Vol. 27, p. 366, note 4, and p. 377; same, Vol. 15, p. 1080, note 3; same, Vol. 15, p. 1106, note 3; same, Vol. 15, p. 1081-2, notes 1 and 4.

Appellant urges that the Circuit Court erred in permitting Edmund Horton to testify that he called the attention of city engineers Clark and Murphy to the condition of the Horton Milling Company’s building and as to what they did in regard to the building afterward.

It appeared that Murphy and Clark were engineers employed by the city, who supervised and directed the building of the dock, approaches to, and certain piers for the Madison street bridge. Such being the case, it was natural and proper that Mr. Horton should speak to them concerning the condition of the building and the effect which the city’s work, especially the construction of the new dock, was having upon it, and any notice which Horton gave to these engineers in this regard, was notice to the city’s representatives in this matter and consequently to the city. It was not necessary, in order to give notice to the city of what effect the work was having upon the mill building, to hunt up the mayor, or the commissioner of public works, and tell them about it, or to go before the common council and make representations to it. Whether what Clark and Murphy thereafter did, was admissible in evidence, depended upon whether their action in this regard was in the line of their employment by and duty to the city.

It is also urged that the court erred in permitting Edmund Horton to testify as to what moneys the plaintiff had paid out to repair damage to the building alleged to have been caused by the construction of the new dock; it being insisted, among other things, by appellant, that he could not testify unless he produced vouchers for the payment.

We are not aware of any rule, that in such a case as this, forbids a party to testify as to payments made by him, and whether he has or has not, vouchers for the same. Whether he would be entitled to recover such payments would depend upon whether the repairs were rendered necessary by what the defendant did, and the amount paid therefor was reasonable. As to repairs which he had made and paid for, the plaintiff would not be entitled to recover more than a reasonable sum, and in no event more than it had actually paid, or become obligated to pay. It was Therefore proper that he should testify as to the amount actually paid.

It is urged by appellant that the court erred in permitting Mr. Frazer to testify which of certain machinery was the heavier. If he knew as to this, we see no reason why he might not testify as to his knowledge; he being, as wTas shown, an expert as to the machinery under consideration, we think it was proper to admit his testimony as to its weight.

It is also urged by appellant that the court erred in permitting Mr. Frazer to testify as to the necessity for taking the old machinery out of the mill in order to make the machinery run; and the comparative cost of taking the old machinery out or leaving it in; and as to what it would cost to take out the old machinery from the mill and put it back; and as to this counsel for appellant make the following comment: “ This testimony of the witness Frazer, was so rank as to greatly test the patience of any lawyer.”

In jury trials, the patience of lawyers is not infrequently tested by the evidence of adverse witnesses. Counsel find that witnesses called by the opposite party often testify to that which he would gladly keep out, and which it is painful for him to listen to. As has before been stated, Mr. Frazer was an expert as to milling machinery, and the testimony given by him, of which counsel complains, was proper, as showing the situation in which plaintiffs were placed by the damage done to their mill and the changes in machinery which they were obliged to make.

Appellant also urges that the court erred in refusing to strike out the testimony of Messrs. Wells, Smith and Pressing as to the dredging of the Chicago river, in and about the construction of a certain pier of the bridge and as to the effect of such dredging upon the dock adjacent to the building of the plaintiff, and that the court also erred in not sustaining the objections of the defendant’s counsel to the testimony as to such machinery, as to the work at a certain pier, and of the work in Madison street, and in and about the taking out of the old north abutment and the placing of the new abutment.

It appeared that all the work done in and about preparing a pier upon which the Madison street bridge could rest, room for it to swing and approaches thereto, was done by the direction, under the supervision and management of the city. Each part of the work was related to all the rest. And while it is true that appellant’s contract covered damages done from only a portion of the work, it was hardly possible to give the jury an intelligent understanding of what was done in the construction of the new dock, without describing much that was done upon the premises adjacent, near to, and upon work intimately related to the new dock.

The contract provided that appellant, before taking nossession of the strip of land it had condemned or disturbing appellee in the occupation of such condemned land or of its boiler room as then located, would excavate the north half of that portion of -Madison street extending from the Chicago river to West Water street, to the limit of the boiler room as then located, and would inclose by proper walls the space so made, and appellant did in and by such contract, then give to appellee the use of said north half of Madison street, free of rent, for so long a time as the city of Chicago had or might acquire power to give or grant.

The testimony, for the purpose for which it was given, was properly received.

Appellant also urges that witness should not have been permitted to testify that the building had settled. If the settling of a building is apparent to the eye, we see no reason why a witness may not testify as to what he has seen in that regard and also as to the progress of the settling.

Appellant also urges that the court erred in permitting “Wells, Trussing and Smith” to testify as to the probability of further settling of the building. Mr. Smith testified as an expert engineer, by long experience and much observation, familiar with the subject concerning which he gave evidence.

Appellant also urges that the engineer, William Sooy Smith, ought not to have been permitted to testify as to whether the foundations under plaintiff’s building were, up to 1891, sufficient to carry the weight and load of the building, assuming that up to that time there had been no appreciable settlement of the building. Testifying as he did, as an expert, concerning a subject with which he was familiar and had made examination, the evidence given by him in this regard was properly received.

Appellant also urges that the court erred in not permitting the defendant to introduce testimony as to the rental value of the vacant space under Madison street, excavated under the contract by the city, and under the same agreement since occupied by the plaintiff. This contention is based upon appellant’s claim that the contract between appelant and appellee was void in its inception and has ever been invalid. Admitting the contention of appellant in this regard (and we may say) that if the city should cease to swing its bridge over a portion of appellee’s premises, it is questionable whether appellee could maintain this claim to the exclusive use and occupancy of the portion of Madison street under the surface. Nevertheless we are not prepared to hold that merely because the plaintiff with the consent of the city has occupied a portion of a street beneath the surface, without paying rent, under an understanding with the city that it might do so, it is liable to the city in an action for use and occupation and for the rental value of such premises, although the agreement under which it has occupied them should be held to be invalid.

In every great city there are many excavations beneath the surface of the streets, occupied with the knowledge and assent of the city for private purposes. This practice has continued for many years and we are aware of no authority holding that the city may at any time, in actions for use and occupation, collect of these occupiers the rental value of the space so occupied. So, above the surface of the street in all large cities, there are very many basements and upper story steps, railings, awnings, signs, windows and other projections into the street, placed there and occupied by private persons for their own purposes.

That all these individuals are liable to the city for the rental value of that portion of the street they have so occupied, we have never understood. That where vested rights to such occupancy have not been acquired, the city may, when public interest demands, terminate the right, we have no. doubt. The subject is discussed to some extent in the 4th edition of Dillon on Municipal Corporations at section 660.

The court properly refused to admit the evidence offered by appellee.

We have examined the instructions given at the instance of the plaintiff and those offered by the defendant, which were either modified or refused, and also the objections ^ of appellant to the action of the court in this regard, and find no error therein warranting a reversal of the judgment entered in this cause.

The evidence in this case was extensive and the record is voluminous.

The trial court seems to have carefully considered the very numerous objections raised by appellant and to have earnestly endeavored to give to it every- right to which it ivas entitled.

The evidence clearly warranted the verdict of the jury. The judgment of the court seems to be just and it is affirmed.


source: Caselaw Access Project

author: Opinion per Curiam.

license: Public Domain

text:
    Mary A. J. V. Lamb v. Chicago City Ry. Co.
    1. Appellate Court Practice — Errors Relied upon Must be Shmvn by the Abstract. — All errors relied upon by an appealing party must be made to appear by the abstract; the record will not be examined to supply its deficiencies.
    2. Same — The Declaration in the Suit Should, be Made to Appear.— The declaration is a necessary part of every suit and should be made to appear in the abstract of the record by one who seeks to reverse the judgment for errors occurring in the suit in which it is filed.
    3. .Abstracts — A Skeleton Index is Not. — An abstract of the record which is a mere index, is insufficient.
    Trespass on the Case, for personal injuries. Error to the Circuit 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 1, 1901.
    Holmes, Lynn & Shirra, attorneys for plaintiff in error.
    Wm. J. Hynes and W. J. Ferry, attorneys for defendant in error; Mason B. Starring, of counsel.
   Opinion per Curiam.

This suit in error is brought to reverse a judgment entered upon a verdict of “ not guilty,” returned in the ' court beloAv.

So far as the abstract of the record shows, the cause of action is stated in a “ declaration in trespass on the case,” and in an “ amendment to declaration; ” that is all.

We may infer from the abstract of the bill of exceptions that the suit was brought to recover for personal injuries sustained by the plaintiff in error in consequence of her ° being thrown from one of defendant’s street cars by the conductor coming into negligent collision with her as she was in the act of alighting from a car that was standing still.

But it is not enough that the cause of action should appear in that way. The rule of the court requires that “ a complete abstract or abridgment of the record ” shall be furnished, and the reports are prolific in cases holding that all errors relied upon by the appealing party must be made to appear by the abstract — that the record will not be examined to supply its deficiencies.

It does not seem to be necessary to say that a declaration is a necessary part of every suit, and should be made to appear by any one who seeks to reverse a judgment for errors occurring in the suit in which it is filed.

We might add, that besides the lack of the declaration a.nd the amendment to it. there is nothing in the abstract except a mere skeleton index, to show the two special pleas there referred to. A late case, Amundson Printing Co. v. Empire Paper Co., 83 Ill. App. 440, is all we need refer to.

Because of the lack of a sufficient abstract, the judgment will be affirmed.


author: Mr. Presiding Justice Freeman

text:
    Franciska Kluska, by Her Next Friend, v. City of Chicago.
    1. Practice — When a Verdict Will he Directed for the Defendant.— Where the evidence with all the inferences which the jury can justifiably draw from it, is insufficient to support a verdict, the court may direct a verdict for the defendant.
    2. Verdicts — Where the Court May Properly Direct a Verdict for the Defendant — Illustration.—In an action brought by a young girl against the City of Chicago for damages resulting from a personal injury,' the evidence showed that the girl with two young companions approached from the west a bridge which crosses the river at Division street and which was at the time open'to allow the passage of a boat. They waited upon the sidewalk, near the edge of the opening, for the bridge to close, and when it swung into position and was nearly closed, in the press of the crowd waiting, some one pushed the girl and she was thrown forward on the bridge; her ankle and left leg were caught between the end of the bridge and the abutment, causing the injury for which the action was brought. There was nothing tending to show negligence on the part of the city. Held, that the court properly directed a verdict for the defendant.
    3. Negligence — By Cities in Constructing Bridges. — 'The law does not require a city to construct its streets and bridges so as to make accidents of the kind under consideration in this suit impossible. It is not its duty to observe such extraordinary care.
    Trespass on the Case, for personal injuries. Error to 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.
    Opinion filed November 1, 1901.
    George W. Shinn, attorney for plaintiff in error.
    Andrew J. Ryan and George E. Gorman, attorneys for defendant in error; Roberts, Roberts & Owens, of counsel.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is a suit for personal injuries. Upon the statement of the case by the attorney for plaintiff in error, and the testimony of two witnesses called in her behalf, whose testimony utterly failed to show any negligence on the part of the city, the court instructed the jury to find the defendant not guilty, and denied a motion for a new trial. That this may be done upon the opening statement of facts by the plaintiff’s attorney, when such statement shows the plaintiff not entitled to recover, is well settled. Kapischke v. Koch, 79 Ill. App. 238; Idem, 180 Ill. 47. The facts admitted by the plaintiff’s counsel in such opening statement are treated as though established by evidence.

Where the evidence, with all the inferences which the jury can justifiably draw therefrom, is insufficient to supporta verdict, the court may direct a verdict for the defendant. Boyle v. I. C. R. R. Co., 88 Ill. App. 255, and cases there cited.

The manner in which the injury was inflicted for which it is sought to recover is stated to have been as follows: The plaintiff, a minor, with two young companions, approached from the west the bridge which crosses the river at Division street. The bridge was then open to allow the passage of a boat, and they waited upon the sidewalk on the north side of the street, standing near the edge of the opening. The end of the bridge, which, in closing, swung toward the west side of the river, came into its position from the south, and the bridge was therefore nearly closed when the end of it reached the place opposite which the plaintiff was standing. As it swung nearly into place, people standing near began to crowd toward and upon it; and as stated by her attorney, “ in the press of the crowd some one pushed against this little girl, and she was thrown forward onto the bridge before it was closed, and her ankle and left leg about half wav to the knee was caught between the end of the draw-bridge and the abutment of the street or bridge.” The accident occurred in the day-time, the last of July.

There is in this nothing whatever tending to show negligence on the part of the city. It was attempted to show that the bridge-tender, when closing the bridge, allowed some boys to take hold of the lever with him, and help operate it. But it was conceded by plaintiff’s attorney and his witnesses testified that the bridge was closed in the usual way, with no difference whatever in its method of operation from what was customary and proper. As the learned judge of the trial court stated, “ the fact the boys turned the bridge makes no difference, provided they turned the bridge just the same as a competent man would turn it,” and that it was so turned is conceded.

It is urged that the city was negligent in not maintaining guards or gates when the bridge was open. It has, however, been held that the city is not required to so construct its streets and bridges as to make accidents of this kind impossible, and that “ the law has not made it the duty of municipal corporations to observe such extraordinary care.” Gavin v. City, 97 Ill. 66 (71).

The accident to plaintiff was, by her attorney’s own showing, caused, not by the negligence of the city, but apparently by that of unknown persons, who, it is said, pushed her onto the bridge before it was closed. Unfortunate as such an accident to a minor is, the right to recover damages ' depends upon other considerations. The facts having been as stated, a verdict against the city could not have been sustained if rendered. The Superior Court committed no error in directing a verdict for the defendant, and the judgment must be affirmed.


author: Mr. Justice Shepard

text:
    Clara C. Driscoll, Adm’x, etc., v. Chicago & E. I. R. R. Co.
    1. Practice — Where it is Error to Take a Case from the Jury. — In an action for damages resulting from the death of the plaintiff’s intestate, alleged to have been caused by the negligence of a yardmaster in the employ of the defendant, a railroad company, as vice-principal and overseer of the deceased, under an allegation of the declaration that such yardmaster knew, or in the exercise of ordinary care ought to have known, of the dangerous position of a car which resulted in the death of such intestate; if the evidence fairly tends to show that such overseer did know, or in the exercise of ordinary care ought to have known, of the danger, it is the duty of the court to submit the case to the jury.
    2. Railroads — Mobility for the Aets of a Vice-principal. — Where a yardmaster in the employ of a railroad company, under whom was an employe charged with the duty of inspecting cars in the yard to ascertain if they were in condition to move, before such employe had finished his inspection, ordered a train upon which he was engaged to move out, by reason of which the inspector was killed, the company was held liable.
    3. Negligence — Responsibility for Deaths Resulting from the Negligence of Employes. — The court can not conceive that the law would, under the fellow-servant or any other doctrine, hold a man responsible for his own death caused by the moving of a train which he was engaged in examining to see if it was ready to move, when before he had finished his examination, the train was moved by the order of an officer superior to such inspector.

      Trespass on tlie Case. — Death from negligent; act. Error to the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed November 1, 1901.
    Statement. — This writ of error is prosecuted to reverse a judgment rendered by the Circuit Court of Cook County, upon a verdict for the defendant directed by the court, in an action on the case.
    The general facts are that John Driscoll, deceased, on or about the 29th day of May, A. D. 1893, while working as a night switchman for the defendant in its yards in the city of Chicago, was thrown beneath a car and killed as a result of a car becoming derailed and running against cars on an adjoining track.
    On the first trial the plaintiff (appellant) recovered a judgment for $5,000, which on appeal by defendant was affirmed by this court (70 Ill. App. 91), but-on a further appeal to the Supreme Court the judgment was reversed and the cause remanded for another trial (176 Ill. 330).
    The material facts in detail, not stated in this opinion, may be seen by referring to the Supreme Court opinion.
    After the cause was remanded by the Supreme Court no change was made in the pleadings. On the last trial the appellant, in view of the decision of the Supreme Court, abandoned all the counts of her declaration except such as charged negligence on the .part of the vice-principal, Blake, and at the close of plaintiff’s (appellant’s) case the trial judge held in substance that as to such charges of negligence, the case stood as it did when before the Supreme Court on the former record, and, accordingly, instructed the jury to return a verdict for the defendant.
    The Supreme Court held that the allegation of the declaration, that Blake “knew, or in the exercise of ordinary care ought to have known, of the dangerous position of this car before the accident, must be shown by actual knowledge, or that the defect complained of had existed for such length of time that Blake, in the exercise of ordinary care, should have discovered it; ” and that “ no actual knowledge being shown to exist on the part of Blake, and no affirmative proof to show constructive or implied notice, plaintiff could not recover.”
    James C. McShane, attorney for plaintiff in error.
    S. A. Lynde, attorney for defendant in error; W. H. Lyford, of counsel.
   Mr. Justice Shepard

delivered the opinion of the court.

It must be assumed that there is not in the present record, any more than there was in the former one, any proof of actual knowledge by the vice-principal, Blake, of the condition of the train — being off the track at the rear end — ■ at the time he gave the order to Ward to pull out.

The present question, then, is, does the additional evidence heard at the last trial tend to show that Blake had constructive or implied notice, at the time he gave the order, that the end car was off the track.

If he did have, then, as we understand the decision of the Supreme Court, the appellant was entitled to recover, and, if the evidence fairly tended to show such notice to him, the case ought not to have been taken from the jury.

For the purposes of this case we will predicate that under the evidence, as well as by the seeming acquiescence of appellee, Blake was acting as a vice-principal and,not a fellow-servant with the deceased, and that in the part of the yard where the accident occurred and in doing all that was done there, material to the present issues, his authority was the superior one, which the railroad crews there at work were in duty bound to obey.

The length -of time that .this end car was off the track is especially mentioned in the opinion of the Supreme Court as a circumstance from which it might be inferred that Blake in the exercise of ordinary care should have discovered it.

The evidence tends very strongly to show that the car wTas shoved or forced off the track by Hurd’s crew. Under Blake’s direction, Hurd’s crew had in the first place coupled together about eléven cars that were standing on track Ho. 1. After that was done Hurd saw that the front wheels of the end car were within about ten or twelve inches of the open end of the rails on which the cars stood. Hurd then proceeded to collect a dozen or fifteen cars from, other tracks and, after coupling them together, to back them in on track Ho. 1, against the eleven cars already standing there in the position described.

Hurd testified that the usual result of pushing an engine with such a number of cars against ten or twelve other standing cars would be to push the latter along, “ sometimes two or three feet, and sometimes a car length.”

Hurd and his crew were then ordered off by Blake on some remote duties. Heither Ward nor his crew had up to the time that Hurd was ordered away, nor afterward, until as hereafter stated, been in the vicinity of the train in question, nor had any other engine, or crew of- men, been near it, so far as appears.

It is true that Hurd testified on his cross-examination by appellee, that he tried to couple gently, and so far as he saw, produced no jar when he pushed the last string of cars against the first eleven, but the inference is strong that the car was shoved off the track at that time. It does not appear that any other force.then present could have done it.

About twenty minutes after Hurd and his crew were ordered away on other duty, Blake went to Ward, who with his crew was just finishing some work in another part of the yard, and ordered him to pull out the cars that Hurd had bunched together on track Ho. 1, telling Ward that they were all ready to pull out, and Ward gave directions accordingly to his engineer. The latter, 'however, misunderstood the order in some detail, and took his engine too far down into the yard. Driscoll, the deceased, was a member of Ward’s crew, and was sent by Ward to bring the engineer and his engine back to the proper place. Blake had also gone down into the part of the yard where the engine had mistakenly proceeded to, and, seeing the engine there, boarded it and had it properly brought back to the cars that were to be moved, he riding back on it. The engine was then coupled onto the cars, and within two or three minutes afterward, while Ward was looking over the cars to see where they were to go and had proceeded about eight car-lengths in so doing, Blake came again up to Ward and told him where certain cars in the train were situated and ordered the train to be pulled out, and, as Ward testified, gave the signal to the engineer to go ahead. Driscoll had also got back about the time Blake did. Blake says he saw him there after the return of the engine. The next anybody seems to have seen of Driscoll, before he was killed, was when Blake saw a person whom he supposed to be Driscoll, some sixty or ninety feet away from Blake in the direction of the rear end of the train, between the cars being moved and those standing on the next track, not far from the point where he was afterward found dead.

It was doubtless a part of Driscoll’s usual duty to inspect the train being about to be moved by his crew before it was pulled out and see that it was ready to be moved, and the reasonable inference, from the time he spent in performing the order given him to go down into the yard and bring the engine back, and from the direction he was going right after his return from that duty, and just before he was killed, is that he was engaged with all reasonable diligence in examining the train to be moved, but had not completed it, when he was caught and killed.

We can not conceive that the law would, under the fellow-servant or any other doctrine, hold a man responsible for his own death caused by the moving of a train which he was engaged in examining to see if it was ready to move, when bpfore he had finished his inspection the train was moved by the order of an officer superior to him and the rest of his crew. As nearhr as can be ascertained from the evidence, the accident happened about forty minutes after Hurd’s crew was ordered away, and consequently after the car had been shoved off the track.

Whether the lapse of that length of time was alone sufficient to charge Blake with notice that the train was not in a condition to be safely moved, may well be doubted; It is plain there was time enough for Blake to have observed the condition of the car off the track if he had looked at the rear end of the train. It was a situation plainly visible to all who should look, and a glance would have sufficed. It can not be presumed, however, that he did actually look.

But the length of time the car remained in the condition it was may be considered in connection with the other evidence, to see whether Blake ought to have known, in the exercise of ordinary care by him, that the car was off the track. It was shown that Blake frequently performed acts with reference to making trains ready for moving, such as coupling cars, marking on them their destination, etc., and that he actually knew that some of the cars of the train in question were in bad condition and gave directions to Ward as to the disposition to be made of them; it was also shown, or the evidence tended to show, that no examination of the train had been made by Ward’s crew before it was moved, although it was customary so to do, and that Blake gave the order to move the train, without waiting for such examination to be made; the evidence also tended to show that no sufficient time was given to complete an examination begun by Driscoll before the train was moved in pursuance of Blake’s order to do so; it was also shown that Blake had been assistant yard master in these yards for about two years; that the track in question was an open one with nothing at the open end to prevent a pushed car from running off, and that the usual result of shoving so many cars as was here done, against the number of cars that stood within ten or twelve inches of this open end, was to push the latter forward two or three feet, or even a car length.

It was, in our opinion, under all this evidence, a subject for fair inference and determination by a jury, whether as a matter of fact Blake ought not, in the exercise of ordinary prudence by him, to be held to have impliedly known, when he ordered the train to be moved, the condition it was in. We think the declaration is sufficient to permit all these mentioned facts to be proved, and that it was erroneous to have taken their determination from the jury.

We do not think any error was committed in excluding the questions put to Hurd as to what was Blake’s duty under the supposed conditions stated in the questions.

It had already been shown, without objection, that the custom was for the crew to look over the train before pulling out, but that if the person in authority there should tell them that everything was all right, the crew would not make the examination, but would go ahead without it. The duty would follow the facts, and is a conclusion from them, which the jury and not the witness might draw. But for the error in taking the case from the jury, under the evidence contained in the record, we will reverse the judgment and remand the cause for another trial. Reversed and remanded.


author: Mr. Justice Waterman

text:
    Lewis C. Canfield v. North Chicago St. R. R. Co.
    1. Practice — Motions to Direct a Verdict for the Defendant. — In passing upon a motion made in a trial to direct a verdict for the defendant, if the evidence is such that reasonable men of fair intelligence might draw from it different conclusions as to whether the facts necessary to create a liability had been established, then the motion should be overruled and the evidence submitted to the jury.
    2. Street Car Companies — Rights of Pedestrians in Streets Occupied by. — Pedestrians have the same right to the use of a street occupied by a street railway company as the railway company itself has, the only distinction being that as its cars run upon a fixed track, the pedestrian must reasonably give way while passing along its track.
    3. Same — Duty to Give Warning, When. — It is the duty of street railway companies to give warning, by sounding a bell or otherwise, on their approach to a public street crossing.
    4. Same — Negligence in Failing to Display a Headlight or Sound a Bell — A Question of Fact for the Jury — Where a pedestrian is struck and injured by a street car, it is a question for a jury as to whether there was a headlight upon the car at the time of his injury and whether its failure to display such headlight was the cause of the injury, and if no warning was given, whether the failure to give such warning was negligence, and if so, whether the plaintiff’s injury was the result of such negligence.
    5. Negligence — Alighting from a Moving Car — A Question of Fact for the Jury. — Whether a person is guilty of negligence in alighting from a car while it is in motion is a question of fact to be submitted to the jury.
    6. Evidence — In Actions for Personal Injuries Against Street Car Companies. — In actions against street car companies for personal injuries the plaintiff has a right not only to show what was required of the company by the ordinances of the city, but what was its usual practice in running its cars in the street where he was injured, and thus to show by its conduct what he had reason to expect would be its practice in regard to headlights and warnings.
    7. Same — Propelling Cars Without Headlights. — It is negligence in a street car company to propel its cars through the public streets after dark, unless they are provided with lights sufficient to warm pedestrians of their coming and put them upon their guard against collisions.
    8. Contributory Negligence — When a Question of Fact. — In an action against a street railway company, the question as to whether the plaintiff was guilty of contributory negligence in attempting to cross the street at the place where he was injured is a question of fact for the jury. ■
    9. Personal Injuries — The Proximate Cause, a Question for the Jury. — In an action for personal injuries, the question as to what was the proximate cause of the injury is a question of fact to be determined by the jury under proper instructions from the court.
    Trespass on the Case. — Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded.
    Opinion filed November 1, 1901.
    Statement. — On October 2, 1892, about midnight, the plaintiff, Mr. Lewis G. Canfield, then a bank clerk, twenty-two years old, was a passenger on a south-bound cable car, owned and operated by the defendant, approaching Huron street in the city of Chicago. The night was rather misty and cloudy. The car was running on North Clark street upon the western track, the north-bound car running on the eastern track, both tracks being parallel and about four feet apart. The cars ran in trains of from two to three cars. The car in which Mr. Canfield was sitting was an open summer car and was the grip car. There were seats funning clear across the car, and running-boards for getting off and on the car on each side; also handles to use in getting off the car. There was no guard rail or other protection along the side of the car to prevent a person getting off. The car had no aisle in the center. The motorman did not stand in the middle of the car, but near the front platform.
    Mr. Canfield was then living at the Davenport House, about the middle of the block between Hurón and Erie streets on the east side of the street. Erie street is the next street south of Huron. The distance between the two streets is a short square between fifty and a hundred yards, not over seventy-five yards. Erie street runs through from the lake to the river on the west.
    Mr. Canfield was sitting on the third seat from the rear of the car, and his seat was the nearest one to the track on which the north-bound cars ran. There were three or four persons on the same seat on the other side of him. When the car approached Huron street he arose and looked ahead but did not see or hear anything. He remained standing until the car traversed half the distance between Huron street and Erie street and observed the conductor of the car standing back of him. The car did not stop, so Mr. Canfield, not wanting to be carried further, and not seeing anything ahead, stepped down on the running board and off the car. He got off on the same side he got on. Soon after he jumped off, the car going in the opposite direction struck him. This car was only about eighteen feet away when Mr. Canfield first saw it, and was running rapidly. He did not see any headlight on the car and there was no light in front of the car immediately afterward, when the car stopped. There was evidence tending to show that no bell or gong was rung as the north-bound car passed Erie street, or on either car as the cars approached each other before the accident, and there was evidence to show that while there were lights in the car, there was no headlight upon the north-bound car when it struck the plaintiff or when he got off the south-bound car. The only noise heard by Mr. Canfield and some others was that of putting on the grip, which occurred just as the two trains met. The car knocked Mr. Canfield to the same side of the street from which he had come, and dragged him some distance, injuring his leg so that it was amputated soon after he reached the hospital. A rule of the company required cars to be gently slackened as they approached prominent cross-streets. The court instructed the jury to find for the defendant.

      Blewett Lee, attorney for appellant.
    John A. Rose and Louis Boisot, Jr., attorneys for appellee; W. W. Gurley, of counsel.
   Mr. Justice Waterman

delivered the opinion of the court.

In passing upon a motion made in a trial court to direct a verdict for the defendant, if the evidence is such that reasonable men of fair intelligence might draw from it different conclusions as to whether facts necessary to create a liability of the defendant had been established, then the motion should be overruled and the evidence submitted to the jury. Upon such a motion, all that the evidence tends to prove and all just inferences to be drawn from it in the plaintiff’s favor, must be considered as having been established by him. Wabash Railway Co. v. Brown, 162 Ill. 484; McGregor v. Reid Murdoch Co., 178 Ill. 464 and 471; Linnertz v. Dorway, 175 Ill. 508-513; Wallen v. North Chicago Street Railway Co., 82 Ill. App. 103-107-108.

Pedestrians and vehicles of all kinds have the same right to the use of the street as has a street railway company; the only distinction is, that as its cars run upon a fixed track, other persons must reasonably give way to it while passing along such track; but because of the greater speed with which the vehicles of a street railway move, and the little noise attending their progress, it has frequently been held that it is negligence in them to propel cars through public streets after dark, unless they are provided with lights sufficient to notify others of their coming and put them on their guard against collision, and also that it is the duty of street railway companies to give warning, by sounding a bell or otherwise on their approach to public street crossings. Booth 'on Street Railways, Sec. 299; Rascher v. Railway Company, 90 Mich. 413; Calumet Electric St. Ry. Co. v. Lynholm, 70 Ill. App. 371, 372.

In the present case it was, at least, a question of fact for the jury whether there was any headlight upon the plaintiff’s north-bound car just before and at the time it struck the plaintiff, and whether the failure to have such head-’ light, if such there were, was the cause of the injury to the plaintiff, as also it was a question of fact whether any gong or bell ought to have been, and if so, was, sounded as the defendant’s car approached Huron street, and if no such warning was given, whether the failure so to do was negligence, and if so, whether the injury to plaintiff was the result of such negligence.

The plaintiff had a right to show, not only what was required by the ordinances of the city in this regard, but what was the usual practice of the defendant in respect tb its cars running on Clark street, and thus, what, by its own conduct, the plaintiff had reason to expect would be its practice in regard to headlights, and the giving of warning of the approach of its cars on the night in question. Whether the plaintiff was guilty of negligence in getting off the car in the manner he did, while it was in motion, was a question of fact to be submitted to the jury. N. C. St. Ry. Co. v. Wrixon, 150 Ill. 532, 533; N. C. St. Ry. Co. v. Wrixon, 51 Ill. App. 307-312; Springfield Railway Co. v. Hoeffner, 175 Ill. 634-638; Beach on Contributory Negligence, 3d Ed., Sec. 292.

So, too, the question whether the plaintiff was guilty of contributory negligence in attempting to cross the street to the sidewalk at the place where he did, was a question of fact for the jury. Beach on Contributory Negligence (3d Ed.), Sec. 288a; Cicero Street Railway Co. v. Meixner, 160 Ill. 320-328.

The question of what the proximate cause of .the injury to plaintiff was, was a question of fact to be determined by the jury, under proper instructions from the court. Pullman Palace Car Co. v. Laack, 143 Ill. 242-259.

Upon the trial, the court refused to admit in evidence the following rule of the company:

“Cars running in different directions should not stop abreast of each other, except at stations, or when transferring passengers. When cars are passing one another the drivers should slacken the speed of the horses and gently put on the brake to guard against running into persons who may be crossing the streét in the rear of either car.”

It is insisted that this rule should not have been admitted, because the cars passing each other at the time of the accident were not drawn by horses, but propelled by steam power, being what are known as cable cars; the rule, in question having been made in 1884. The rule appears to be a very proper one, made not only for the benefit of the company, but the protection of the public. It is well known that in 1884 the defendant company was operating by horse power many cars, the motor power of which has since been changed to steam or electricity. It was neither shown nor claimed by the defendant that the motormen of electric and cable cars were instructed that this rule did not apply to them, or that there was in this regard, any rule for cable or electric cars variant from the one under consideration. Under the circumstances, it was at least a question of fact for the jury, whether such rule of the company did not apply to its cable cars running on Clark street. That the rules of said company are admissible in connection with other evidence for the purpose of determining whether there was not negligence in the management of its cars, is well settled.

Upon the trial a portion of the deposition of Campbell E. Babcock was read. The deposition as taken, read as follows: “ My attention was attracted to a south-bound cable car and a north-bound car.” Directly following this were the words, “ by the fact of the comparatively little noise they made and by the fact of neither ringing its bell upon approaching each other.” The words beginning “being by the fact,” the court refused to allow to be read.

We see no reason why such testimony was not admissible. It was a mere statement that the cars made comparatively little noise and that neither rang its bell when approaching the other, and that the little noise and the failure to ring a gong attracted his attention.

The judgment of the Superior Court is reversed and the cause remanded.


author: Mr. Presiding Jdstice Freeman

text:
    Emanuel Moyses, use of, etc., v. Harry Rosenbaum.
    1. Contracts — 0/ Traveling Agents — Salary and Expenses. — Where a merchant employs a traveling agent for a year at a fixed salary, payable monthly, and agrees to pay in addition to it, all his expenses not to exceed a certain sum per annum, he has a right to know that the expenses charged are legitimate business charges and he is not bound to pay anything without knowing what it is for, and that it is a legitimate expense of his business.
    2. Same — Duty of an Agent Who is to Receive a Salary and His Expenses. — The duty of an agent who is employed at an annual salary and his expenses is not fulfilled by reporting that he has spent a round sum of money in prosecuting his employment. His duty to keep and preserve true and correct statements of account is a necessary consequence of his duty to account.
    3. Same — What is anAccount — Definition.—An. account is a detailed statement, something which will furnish to the person having a right to it, information of a character which will enable him to make some reasonable test of its accuracy and honesty.
    Assumpsit, for services, etc. Error to the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.
    Frank Schoenfeld, attorney for plaintiff in error.
    Binswanger & Jackson, attorneys for defendant in error.
   Mr. Presiding Jdstice Freeman

delivered the opinion of the court.

Plaintiff in error sued to recover a balance claimed to be due him for a salary upon a written contract for the last month of the term of his employment thereunder. The cause was submitted to the trial court without a jury, and from the judgment rendered, this writ of error is prosecuted.

It appears from the contract that plaintiff in error was employed for a year at a fixed salary payable monthly, and was to receive also under certain conditions a specified commission not involved in this controversy. The contract further provided that defendant in error should pay all the plaintiff’s traveling and other expenses not to exceed $2,250 per annum. It appears from the stipulation of facts between the parties that the defendant repeatedly demanded of the plaintiff itemized statements of the money expended by the latter on account of such expenses. These the plaintiff never rendered. He merely reported, without further explanation, that his expenses had been in one case $385; in another $27; in another $531.10; and another $562.60; adding in the last instance that his total expenses for the year had been $1,506. Ho statement of what the expenses were, for which this sum had been expended, was ever vouchsafed by the employe, but there is evidence tending to show that in one case the latter wrote to his employer he had expended money for a purpose which investigation showed it had not been used for. ”

That the employer, "Rosenbaum & Co., had a right to be informed specifically what the expenses were which they were called upon to pay under the contract, admits of no serious question. They agreed to pay “ traveling and other expenses ” incurred by plaintiff in error while in their employment, not to exceed a certain sum. They had a right to know that the expenses charged were legitimate business charges. Indeed, it is stipulated between the parties that the term ‘ expenses ’ as used in the contract, includes only actual outlays necessarily made by plaintiff for railroad and stage fares, meals en route, hotel bills, porterage, cartage, and a reasonable amount for the treating of customers, and also includes the expense of maintaining an office in Chicago.” The meaning of the contract undoubtedly is that the defendant in error agreed to pay only such expenses as these enumerated, legitimately incurred in their business, the total amount not to exceed in any event $2,250. But they did not agree to pay any other or different expenses plaintiff in error might incur, and were not bound to pay anything without knowing what it was for, and that it was a legitimate expense of the business. Plaintiff in error therefore stands charged with the money advanced him for expenses and not accounted for. Until he does so account, defendant in error is entitled to offset against his account the balance of. $231.91, claimed to be due for salary. “ The law is settled and sustained by reason that the duty of an agent is not fulfilled in a case of this kind by reporting to his prihcipal that he has spent a round sum of money in prosecuting his employment. * * * His duty to keep and preserve true and correct statements of account is a necessary consequence of his duty to account. An account is a detailed statement. It must be something which will furnish to the person having the right thereto, information of a character which will enable him to make some reasonable test of its accuracy and honesty.” Wolf Co. v. Salem, 33 Ill. App. 616.

The views above expressed make it unnecessary to discuss in detail the propositions of law .submitted by plaintiff, the refusal of which by the trial court is assigned as error. Ko error was committed in refusing to hold them as expressing the law applicable. The judgment of the Superior Court is affirmed.


author: Hr. Justice Waterman

text:
    Charles Jockish et al. v. Deutscher Krieger Verein, etc.
    1. Franchise— When Not Involved. — A franchise is not involved in a proceeding to enjoin a committee from conducting a society under the same name as the complainant and from representing itself as the lawful corporation.
    2. Corporations — Act Only Through Agents. — A corporation can file a bill in chancery only through the intervention of an authorized agent.
    Bill for an Injunction. — Error to the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Reversed and remanded with directions.
    Opinion filed November 1, 1901.
    Simon Kruse, attorney for plaintiffs in error.
    Is adore Plotke, attorney for defendant in error.
   Hr. Justice Waterman

delivered the opinion of the court.

The motion to dismiss is denied. A franchise is not involved in this proceeding.

In the Circuit Court there was filed in the name of the Deutscher Krieger Yerein of South Chicago, a corporation, a bill asking that Charles Jockish, Hans Borg and Herman Eidman be enjoined from, continuing to conduct a society under the said corporate name of the complainant and from continuing to represent themselves as the lawful Deutscher Krieger Yerein of South Chicago and from holding a dance on the 12th day of February, 1898, or any other day, under the corporate name of the complainant.

The defendants answered the bill; evidence was submitted and upon hearing the defendants were perpetually enjoined from conducting or carrying on business as a society under the name of the Deutscher Krieger Yerein of South Chicago, and from transacting business of a nature similar to that of the complainant, under said name.

The Deutscher Krieger Yerein of South Chicago was organized under the laws of Illinois as a fraternal benefit society.

The answer of the defendants to the bill set forth, among other things, that among members of said society two factions had arisen; that a division had taken place, each party claiming to represent the corporation, and each had since held regular meetings claiming to be the regular organization; and the answer specifically denied that Jacob Scherer was the president and that Andrew Schneider is the secretary of the Deutscher Krieger Yerein von South Chicago, and that they, with John Jung, constituted a. committee to prosecute this suit, and that the said Scherer and his confederates constitute the Deutscher Krieger Yerein von South Chicago, and that they had any right to the use of said name.

Upon the hearing nearly all of the answer, including the foregoing, was admitted to be true.

Corporations act only by agents. The complainant below could file a bill only through the intervention of agents.

The bill in this case has appended to it the names of “Jacob Scherer, President” and “Andrew C. Schneider, Secretary.” Evidently such persons, claiming to be such officers, filed the bill in the complainant’s name.

The answer denies that they are such officers and this is admitted to be true. Under such admission the court should have dismissed the bill as having been improperly brought.

As such admission was probably made under a misapprehension of its effect the decree of the court below will be reversed and the cause remanded with directions to dismiss the bill, but without prejudice, if the complainant shall ask leave so to do. Reversed and remanded with directions.


author: IVIt?.. Justice Waterman

text:
    Hartford Life and Annuity Ins. Co. v. Marion Rossiter et al.
    1. Default — Motions to Set Aside Addressed to the Discretion of the Court. — A motion to set aside a default is addressed to the judicial' discretion of the court, and only for an abuse of such discretion will its action be set aside.
    3. Same — Practice on Motions to Set Aside. — Where an unsuccessful party to a motion to set aside a judgment by default desires to take an exception to the action of the court in refusing to vacate the judgment, he should do so and present the same on appeal or error, by a bill of exceptions.
    8. Bills of Exception — Filing of, a Matter of Right. — Strictly speaking, it is not necessary to obtain leave to file a bill of exceptions, except when the leave required is for time in which to file it.
    Motion to Vacate a Judgment by Default. — Error to the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1,1901.
    Statement. — The plaintiff in error having been sued in the Circuit Court, summons was served upon it April 4th, in time for the April term of said court. The declaration not having been filed until May 10, 1900, the defendant had until ten o’clock a. m. of Wednesday, the 23d of May, 1900, in which to plead. May 31, 1900, default and judgment was entered. This was not discovered by the defendant until Saturday, June 2,1900. The following Monday, June 4th, the defendant served upon plaintiff’s attorney notice of a motion to be heard June 5, 1900, to set aside the default and judgment, and for leave to plead. June 12th of the term at which the default and judgment were entered, the motion was brought on for hearing, the plaintiff supporting the same by the affidavits of E. H. Stearns and H. B. Johnston. It appeared from the affidavit of E. H. Stearns that he is the traveling agent of the defendant company, and that on or about April 15,. 1900, he was notified by the defendant to take charge of this suit; that on or about the 15th day of April, 1900, he went to the office of the plaintiff’s attorney for the purpose of ascertaining the facts in the case, as the papers were at the home office in Hartford, Connecticut; that he had a long conversation with the plaintiff’s attorney; that he left agreeing to return with the papers and data in the case. He swears positively that he was led to believe (by the plaintiff’s attorney), and did believe that no declaration would be filed and that no action would be taken until his return to Chicago with said papers, and that, relying upon his understanding with the attorney that no action would be taken in said case until his return to Chicago,'he notified the firm of Parker & Pain, the attorneys for the defendant company for the State of Illinois, to do nothing in the case until his return to Chicago; that he .returned to Chicago on June 2, 1900, having all the papers and data in his possession, and went to the office of the plaintiff’s attorney, and learned for the first time that a default and judgment had been entered two days previously, against the defendant.
    The affidavit of E. H. Stearns further states that the certificate of insurance declared upon in this case was lapsed and forfeited by said defendant under the terms and conditions of said policy, for the non-payment of quarterly premiums payable to said defendant on the 1st day of June, 1898, and the 1st day of September, 1898; that the defendant gave due notice in writing to F. if. Rossiter, the insured named in said policy, informing him that said premiums were due and unpaid; and that unless same were paid, said policy would be lapsed and forfeited; that after said policy had been lapsed and forfeited, the defendant gave the insured a further opportunity to be re-instated unconditionally, provided he would pay the premiums then past due; that the insured refused to take advantage of said offer; that a notice in writing to said insured was forwarded to him by a registered letter; the receipt for said registered letter, signed by said insured, is now in the possession of the defendant, ready to be produced in court; that said quarterly premiums wTere never paid or tendered to the company by the insured, nor by any other person.
    The court overruled the motion to set aside the default and judgment; to which action the defendant below excepted and therefrom prayed an appeal, which was allowed; the defendant was also allowed a bill of exceptions in said matter. Two days thereafter- the defendant below prayed an appeal from the judgment, which was denied; thereupon the defendant asked leave to file a bill of exceptions “ in the matter of the judgment,” which was also denied.
    Parker & Pain, attorneys for plaintiff in error.
    Frederick A. Brown, attorney for defendants in error.
   IVIt?.. Justice Waterman

delivered the opinion of the court.

A motion to set aside a default and judgment is addressed to the judicial discretion of the court, and only for an abuse of such discretion will its action thereon be set aside. The affidavits filed below in support of such motion failed to show any sufficient excuse for the failure to plead in time. The affiant states that he was “led to believe” and did believe that no declaration would be filed until his return to Chicago. What led him so to believe, whether the good manners and polite conduct of the plaintiff’s attorney or otherwise, does not appear. Affiant then says that relying upon his understanding with the attorney that no action would be taken he notified the defendant’s attorneys to do nothing until his return to Chicago. . Only inferential ly is there a statement that there was an understanding, while there is a complete failure to set forth what the understanding, if any, was.

The affidavits presented by the defendant below not being such as required the court to set aside the default and judgment, it is immaterial that the court admitted upon the motion, counter affidavits. Nor if the defendant below was, after being allowed an appeal from the order refusing to vacate the judgment, entitled to appeal from the judgment itself, did the refusal to allow such appeal work on him any harm. The entire record of the judgment has been brought to this court and therein we find no error; moreover the defendant below took no exception to the .action of the court refusing to allow such appeal.

If the defendant below had matter occurring upon the entry of default and taking of judgment which he desired to present by bill of exceptions, he should have presented a bill of exceptions and asked the court to sign it; if it had improperly refused so to do, it could, by writ of mandamus, have been compelled to sign a true and proper bill. The defendant below neither did this nor excepted to the action of the court in refusing leave to file a bill of exceptions. Strictly speaking, it is not necessary to obtain leave to file a bill of exceptions save -when the leave required is for time in which to file. The filing is a matter of right. Secs. 42, 60, 61, 62 and 63, Chap. 110, E. S. Defendant below did not ask for time in which to file, nor for time in which to prepare and file. Nor did defendant except to the ruling of the court refusing leave to file.

Finding no error warranting a reversal of the action of the court below, it is affirmed.


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    Thomas B. Jeffery v. Mary Keyes Babcock.
    1. Verdicts — Not to be Disturbed Unless, etc. — The verdict of the jury in this case ought not to be disturbed unless for some error of law supervening, and as none is shown by the record it is affirmed.
    Assumpsit, on a contract for board and tuition. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.
    James A. Peterson, attorney for appellant.
    Alden, Latham & Young, attorneys for appellee.
   Mr. Justice Shepard

delivered the opinion of the court.

This suit was brought by appellee to recover damages for alleged breach of contract for the board and tuition, etc., of a daughter of appellant at the boarding school kept by appellee.

The verdict of the jury was in favor of the appellee, and under the evidence ought not to be disturbed, unless for some error of law supervening.

It is first claimed that appellee, the plaintiff, failed to show that she was ready, willing and able to perform the conditions of her contract, in that she failed to prove that she had in her school certain teachers mentioned by her in a certain letter written by her to appellant’s wife, in order to secure the attendance of the daughter at the school. And an instruction covering this proposition was asked by appellant and refused. The letter in question was written April 25, 1898. No reply was made to it until September 1, 1898, and the correspondence that then followed makes no allusion to the statements in the letter of April 25th, but seems to relate to the making of new arrangements without reference to it. We think the instruction was properly refused, on the ground that the statements as to wrho the teachers were to be, formed no part of the contract, and it was no part of appellee’s case to make proof concerning the employment of such teachers.

It was proved that a part of the contract included the occupancy of a certain room by the pupil, but it was indisputably shown that she removed from that room to another at her own request, though without the express assent of the appellant, and it in no way appears that her substituted room was not just as desirable as the one she left, or was worth any less for occupancy. We do not regard the change of room under the circumstances as constituting a material departure from the contract by the appellee.

The girl left the school because of homesickness, and was permitted to remain at home, although appellee offered to and did all she reasonably could do to induce appellant to cause her return. Counsel for appellant seeks to make out, by inference, that the homesickness of the daughter was caused by ill treatment or neglect received in the school. No evidence exists, however, upon which, to base the argument, and there is too much human nature in the malady for the court, in the absence of evidence, to believe that it can exist only because of neglect or bad treatment. Appellant’s older daughter had been an inmate of the school during the preceding year or more, and its management and the treatment of its pupils were presumably known to appellant, and he would have been singularly unobservant of this very common incident to boarding-school life not to have known, as appellee .testified, that homesickness was a common occurrence that he contracted with reference to.

The jury fixed the damages at the contract price, less the amount estimated bjr appellee as the saving to her by reason of the withdrawal of the pupil from the school for the remaining part'of the contract period. We can not follow the appellant’s argument to show that other items of saving than those included in the testimony of appellee should be included.

It was a question for the jury to determine from the evidence, and appellant having offered no evidence on the subject, their conclusion must- stand.

The point that nothing should have been allowed for school books furnished the pupil, and that the instruction offered on that subject was erroneously refused, need not be discussed. It is evident from the amount of the verdict that nothing was given by the jury for the small sum claimed for school books, and hence that no harm was done to appellant, even though we assume- there was technical error committed by the court in that behalf.

There are other errors contended for by the appellant, in the matter of the admission and rejection of evidence, the giving of instructions, and the remarks of counsel, all of Avhich have been duly considered and are not thought to be tenable, or of a character to require us to prolong the opinion by a special discussion of them.

We discover no errors that entitle the appellant to a disturbance of the judgment, and it will therefore be affirmed.


author: Mb. Justice Shepard

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    Thomas B. Jeffery v. Mary Keyes Babcock.
    1. Costs — Where a Cause is Stricken from the Short Cause Calendar. —Where a cause is stricken from the short cause calendar under the statute (Laws 1889, p. 223) the discretion of the court in the matter of costs does not cease until the trial has proceeded for one hour and then taken from the jury and continued.
    Assumpsit, on a contract for board and tuition. Error to the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.
    Jambs A. Peterson, attorney for plaintiff in error.
    Alden, Latham & Young, attorneys for defendant in error.
   Mb. Justice Shepard

delivered the opinion of the court.

This writ of error involves the effect to be given to section three of the Short Cause Calendar Act, so far as the payment of costs therein spoken of is concerned.

The language of the section is as foIIoavs :

“ If the trial of any suit which is upon the 1 short cause calendar ’ shall occupy more than one hour’s time, then the court may in its discretion stop the trial, take the case from the jury and continue it, and the suit shall go to the foot of the docket and shall not again be placed upon the ‘ short cause calendar;’ and the plaintiff shall forthwith pay all costs incurred to that time, and in default of such payment. the suit shall be dismissed at plaintiff’s costs.” Laws of 1889 (State Ed.), p. 223; Starr & 0. Ann. Statutes, Ch. 110, Sec. 99; Hurd’s Rev. Stat. 1899, Oh. 110, Sec. 97.

The cause was duly placed on the short cause calendar upon the application of the defendant in' error (plaintiff below), and upon being reached on the call of the calendar, a somewhat extended colloquy occurred between the court and counsel as to its being a proper case for speedy disposition. This discussion terminated by the court remarking, “ I should judge from the nature of the contention in the case it will take considerably longer than an hour, but, if counsel insists upon going on at the present time the court will not prevent him; but if the court should, later on, become convinced absolutely that the trial will take longer than an. hour, he will stop the trial and put the case at the foot of the docket, at plaintiff’s costs;” to which counsel for plaintiff responded, I will take my chances. I know the court will not allow any unnecessary delay.” The trial then proceeded for twenty-five minutes. Thereupon the following rulings by the court were made, and the following orders and proceedings were had, as shown by the abstract:

“ We will not go any further with this case. You have hardly progressed beyond the preliminary steps and you have already taken twenty-five minutes on the case. It is perfectly apparent that this case can not be tried within an hour; the case is hotly and bitterly contested, as I thought it was at the beginning, and I am absolutely convinced of it now. I shall not waste the time of this court .in this way. The case will be stricken from the docket.
“ And thereupon it is ordered by the court by and with the consent and concurrence of the defendant that said cause be and the same, was taken from the jury and stricken off the short cause calendar.
“ And thereupon the defendant moved the court for an order that the plaintiff forthwith pay all costs incurred to this time, which motion plaintiff objected to. Said motion was denied, and exception. The court certifies that the trial did not consume more than thirty minutes of time, and that said trial came to a stop and said cause was taken from the jury and stricken from the short cause calendar within less than one-half hour from the time said cause was called for trial.”

From the order denying costs to the defendant (plaintiff in error here), this writ is prosecuted.

The contentions of the parties are mainly confined to a consideration of whether or not it is discretionary with the court, under the section above quoted, to refuse costs upon the defendant’s motion that they be taxed against the plaintiff up to that time, in cases where the trial has not occupied an hour’s time, but has been stopped by the court or its own motion and the cause taken from the jury and continued before the hour has elapsed.

The majority of the court, after a full consideration, is of the opinion that the discretion of the trial court in the matter of costs did not cease until the case had proceeded for one hour and had then been taken from the jury and continued; that it is only after the lapse of an hour in the trial and the then continuance of the case, that the provisions of the section requiring costs to be taxed against the plaintiff becomes mandatory. The judgment will therefore be affirmed.

DISSENT.

The writer of the foregoing opinion can not concur with the conclusion reached by the majority of the court. His view is that the statute peremptorily requires the costs to be paid by the plaintiff, if moved for, whenever, after the trial has been begun and proceeded with,, it is judicially determined that the trial has lasted or will last more than one hour, and the trial has been stopped and the case taken from the jury and continued, for that reason. He thinks the provision was intended to protect the court and parties from being imposed on by attempts to get cases on the caléndar that ought not to be there. In his opinion, the proper construction of the section leaves to the discretion of the court the stopping of the trial and continuance of the,cause, and other matters referred to in that part of the section which precedes the semicolon following the words “ short cause calendar,” but makes mandatory the payment of costs by the plaintiff, in case the trial is stopped and the cause continued because the trial has. lasted or will last more than an hour.


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    United States Printing Co. v. The H. O. Wilbur Co.
    1. Contracts — Wliat is a Severable Contract. — An order for three hundred thousand “ wrappers of ‘ French Sweet ’ brand, to be duplicates of a sample furnished, and to be shipped, fifty thousand at once and the balance in fifty thousand lots, as called for in 1896,” is a severable contract, and an acceptance of a part does not bind the vendee to accept the remainder of the order.
    Assumpsit, on an order for goods. Appeal from the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1,1901.
    Statement. — This suit was brought by appellant against appellee to recover for certain chocolate wrappers which it manufactured and shipped to appellee. On October 29, 1895, appellee ordered of appellant 300,0.00 wrappers of “ French Sweet ” brand, to be duplicates of a sample furnished and to be shipped, 50,000 at once, and the balance in 50,000 lots, as called for during 1896. Appellant made a duplicate or proof of this sample and submitted it to appellee’s representatives, who approved it and said to go ahead. Appellant made wrappers, as it claims, of the same kind and quality as the proof that was approved, and on January 10, 1896, shipped 50,000, which were received and paid for, but under objections and complaint as to the quality thereof.

      Appellee called for no more of the wrappers. Appellant waited until near the close of 1896, and then shipped to appellee 198,600 more of the same wrappers, for which appellee has refused to pay, and for the contract price of which this suit was brought. Appellee defended on the ground that the wrappers furnished were not satisfactory, and not in accordance with the contract.
    Flower, Vroman & Musgrave, attorneys for appellant.
    Charles H. Lawrence and W. S. Carson, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

That the defendant complained of the quality of the wrappers by it received, and notified the plaintiff that they were unsatisfactory, and while keeping and paying for these, that no more like them would be accepted, is clear.

The defendant-did this as soon as it could reasonably have ascertained the fact. Such conduct did not constitute such an acceptance of part as bound it to accept the remainder of the order. The contract was a severable one, the agreement being that the goods were to be shipped in “ 50,000 lots, as called for during 1896; ” the rule, therefore, as to the acceptance of an unseverable portion does not apply to this case.

Mor was the vendee bound to return the remaining 300,000 afterward shipped “ F. O. B.” to its order. It had a right, as it did, to refuse to take from the railroad the residue, and was not bound to obligate itself for freight charges by shipping the wrappers afterward forwarded.

We see no sufficient reason for dissent from the conclusion of the court below that the goods received by the vendee were not such as it had contracted for, nor do we find any error in the holding of the court upon the questions of law submitted, that warrants a reversal of its judgment.

The rule announced in Keeler v. Clifford, 62 Ill. App. 64, 165 Ill. 544, and Hubbard v. George, 49 Ill. 275, as to severable contracts, is applicable here.

We do not regard Harzfeld v. Converse, 105 Ill. 534, or Wolf v. Dietsch, 75 Ill. 205, as at variance with the foregoing.,

It is contended that the goods were sold by sample and that there was no warranty other than that they should be like the sample.

If this were so, still the evidence was such that the court might have found that the wrappers did not correspond with the sample.

The judgment of the Circuit Court is affirmed.


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    Columbus Mutual life Association v. James Hanrahan, Adm., etc.
    1. Life Insurance — Forfeitures.—The mere failure to pay a quarterly assessment dees not create a forfeiture.
    3. Same — Intention to Declare a Forfeiture Must be Shown. — A clear intention to declare a forfeiture must be shown or it will be held not to have taken place.
    ' 8. Forfeitures— Where a Policy Holder Has Not Misled the Insurer —Life Insurance. — A policy holder may readily misunderstand the true condition of his insurance and unless he has misled the company to its injury, it can not take advantage of and insist upon his acknowledgment of a forfeiture made in ignorance of the true condition of affairs.
    Assumpsit, on a policy of life insurance. Appeal from the Superior Court of Cook County; the Hoh. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.
    C. Porter Johnson, attorney for appellant.
    James Maher, attorney for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

This was an action upon an insurance policy issued to Patrick McBride, under which judgment for $1,Í40.14 was rendered against appellant.

Appellant insists that the,policy lapsed some three weeks before the death of McBride.

A payment of a quarterly assessment was past due March 15, 1897. This was not received at that time at the office of the company, and the bookkeeper of the company wrote in its books with reference to McBride’s policy “ lapsed.”

April 6, 1897, McBride died. On that day there was received at the office of1 the company an application for re-instatement having appended thereto the name of Patrick McBride; that the signature was his, or the application made or forwarded by him, was not shown. The same day there was received by mail $4.75, purporting to be sent by McBride; and a receipt therefor as for a quarterly payment was mailed to him April 7th.

One Doctor Shanyahan was, in 1897, an agent for the company, solicited business and made collections for it. Thomas Skahan testified that in March, 1897, about two weeks before McBride died, he saw Shanyahan present to him a bill from the Columbus Mutual Life Company and that McBride asked the witness if he had any money, to which he replied, No, that he had a check;” that he, witness, endeavored to get his check cashed, but failing in this McBride borrowed two dollars of a bartender and paid it to Shanyahan.

It does not appear that the bookkeeper had any authority to declare McBride’s policy lapsed, or that the company took any action toward declaring his policy at an end for non-payment of dues. The mere failure to pay did not create a forfeiture. Northwestern Traveling Men’s Association v. Schauss, 148 Ill. 304; Niblack on Benefit Societies, Sec. 287.

A clear intention to declare a forfeiture must be shown or it will not be held to have taken place. Conductors’ Benefit Association v. Tucker, 157 Ill. 194.

Whether McBride treated his policy as lapsed and made application for re-instatement, or whether he paid his quarterly dues to Doctor Shanyahan, were questions of fact which have been found by the court below against appellant. Nor does it necessarily follow that if the assured made an application to have his policy re-instated he was bound by such application and the policy is to be treated as having then lapsed.

One may readily misunderstand the true condition of his insurance and unless he has misled the company to its injury it can not take advantage of and insist upon his acknowledgment of forfeiture made in ignorance of the true condition of affairs. Mutual Life Association v. Hamlin, 139 U. S. 297-306.

The judgment of the Superior Court is affirmed.