Volume 131 — Illinois Appellate Court Reports

<p>Bill for injunction. Error to the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>1. Elevator shaft—when evidence tends to establish liability where injury suffered while at work in. A peremptory instruction for the defendant is erroneous where the evidence tended to show the presence in the shaft of a repairer, an arrangement with the elevator operator by which the elevator was to be kept still until the repairs were completed, the running of the elevator, and the consequent injury, the actionable negligence consisting in the operation of the elevator under such circumstances and not in the breach of the arrangement in question, the arrangement shown being, However, proof of notice to the operator of the presence of the repairer in the shaft.</p>

<p>1. Water works—how franchise granting private right to maintain, construed. Suck a grant being in the nature of a grant of a governmental function, is to be strictly construed.</p> <p>2. Water works—when franchise granting right to construct and maintain, not exclusive. The grant of a franchise to construct and maintain a water works system made by a village prior to its annexation to a city, does not, in the absence of express stipulation, exclude the annexing city from supplying water from its own mains within the limits formerly comprehended by such village.</p> <p>3. Appellate court—to what extent hound to follow Supreme Court decisions. The Appellate Court must follow the law as laid down by the Supreme Court of this state unless or until such court overrules the same, even if the Supreme Court of the United States holds contrary doctrines.</p> <p>4. Municipal cokpoeation—what powers cannot he abdicated. A municipal corporation cannot absolutely alienate and abdicate its power to supply water to its citizens.</p> <p>5. “Exclusive”—as used in franchise ordinance, defined. A franchise ordinance which grants an “exclusive” right does not thereby preclude the granting municipality from the doing of the thing authorized to .be done.</p> <p>6. Franchise ordinance—how to he construed. Grants of franchises and- special privileges are always to -be construed against the donee in favor of the public.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Paul McWilliams, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding.</p>

<p>Chancery proceeding. Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.</p>

<p>1. Decree—when petition to set aside properly denied. A petition to set aside a decree in chancery in order that a cross-bill Betting up a discharge in bankruptcy might be interposed, is properly denied where it appears that the petitioner knew that he was a party defendant to the cause in which the decree was rendered and had designedly refrained from the retaining of counsel.</p>

<p>Criminal prosecution. Error to the Criminal Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.</p>

<p>1. Commissioner of public works—presumption of inspection of work by. The commissioner of public works being the officer designated by ordinance and contract to inspect work being performed for the city, the presumption is that he has performed his duty and has inspected such work.</p> <p>2. Municipal corporation—when liable for extras. Where work and labor in addition to that provided for by a written contract is performed by a contractor for a municipal corporation, such corporation is liable therefor if such extra work and labor was furnished pursuant to the direction of the duly authorized agent of such corporation who inspected the same, notwithstanding the ordinance and contract pertaining to such work and labor provides that all deviations from the contract provisions must be upon written authority of such agent. Written orders, likewise, which authorize such changes, if made by those delegated to make the same by the municipal agent specified in the contract, are sufficient to establish a waiver.</p>

<p>1. Insurance—how contract of, construed. A contract of insurance, where the language employed is that of the insurer, is construed most strongly against the insurer.</p> <p>2. Insurance—words “representations” and “warranties” construed. The words, “representations” and “warranties” are not equivalent words.</p> <p>3. Insurance—when answer to question as to past ailments limited. Held, from the language employed in the application for insurance, that the answer made by the insured with respect to ailments which had been suffered by him in the past, was not an absolute one but was limited by its express terms.</p> <p>4. Insurance—when statements and answers not warranties. Held, that certain statements and answers made by an applicant for insurance, were not warranties.</p> <p>5. Insurance—when declarations of insured against interest constitute hearsay. Declarations of the insured made sometime before the making of his application for insurance which are not shown to have been part of the res gestae, constitute mere hearsay.</p> <p>6. Instruction—in action .upon insurance contract, held not erroneous. Held, that an instruction in such an action, which pertained to the proofs of death, was not erroneous which told the jury that they must not take the physician’s statements made in such proofs of death “as evidence tending to prove facts injurious to the case of the plaintiff in this action.”</p>

<p>Action of assumpsit. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.</p>

<p>1. Judicial notice—of what not taken. In the absence of averment, and proof, the.court will not take judicial notice of the state in which a corporation, party to a suit, was chartered, or consider the laws of such state applicable to corporations as a factor in determining the power and authority of such corporation.</p> <p>2. Declaration—when objection that, does not state cause of. action does not come too late. An objection that the declaration in a cause does not state a cause of action does not come too late when first made on appeal.</p> <p>3. Declaration—when every presumption indulged in favor of. Where a cause has gone to judgment and an appeal taken and the point that the declaration does not state a cause of action is first raised on such appeal, every presumption and intendment will be indulged in favor of the declaration.</p> <p>4. Declaration—clerical errors do not. render, ineffective to state a cause of action. Held, that a declaration does not fail to state a cause of action which omits from the introductory clause the words, “sues Edward B. Leigh” (the defendant), and which in the first line of the statement of the cause of action substitutes the word “defendant” for the word “plaintiff.”</p> <p>5. Replication—effect of failure to rejoin to. Where a replication is not rejoined to, the material allegations of the replication well pleaded are deemed to have been admitted.</p> <p>6. Variance—when objection for, comes too late. An objection for variance comes too late when first made on appeal.</p>

<p>Action on the case for personal injuries. Error to the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

<p>Forcible detainer proceeding. Appeal from the County Court of Cook county; the Hon. Dwight C. Haven, Judge, presiding.</p>

<p>Criminal prosecution for conspiracy. Error to the Criminal Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.</p>

<p>Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.</p>

<p>- 1. Deficiency decree—when order directing assignment of, to owner of equity, erroneous. A provision in a decree of foreclosure providing for the assignment of a deficiency decree after its satisfaction to the owner of the equity, is erroneous, where the facts are as follows: A first mortgage, a second mortgage, a decree, a sale under the first mortgage, a deficiency decree on the first mortgage, a decree finding the second mortgage a lien after the satisfaction of the first mortgage, and a series of grantees of the land involved. Under such facts, regardless of the assumption of the mortgage debts, the land is, primarily, subject to the payment of the liens against it, and after the first mortgage has been discharged and the deficiency decree satisfied from rents collected by the receiver In possession, the holder of the second mortgage is entitled to the balance of the rents, if any, in the hands of such receiver and to the extinguishment of the deficiency decree rather than the keeping of the same alive in favor of the owner of the equity.</p>

<p>1. Descbiptio pebsonae—when use of word “trustee” is. An action instituted hy a person with the word “trustee” suffixed, is “an action instituted by such person in his individual capacity where no further reference is made by allegation to the use of the word “trustee.”</p> <p>2. Writ op ebbob—who entitled to prosecute. Where an action is instituted for the recovery of interest the personal representatives of the deceased plaintiff, and not his heirs, are entitled to prosecute a writ of error to review the judgment rendered against such plaintiff in his lifetime.</p> <p>3. Eminent domain—when owner of land entitled to interest upon compensation awarded. Where land has been taken possession of prior to final judgment, the plaintiff in the action is entitled to have the jury include in their award of damages interest by way of compensation for the use of the land in the interim between the preliminary and the final judgment.</p> <p>4. Eminent domain—what not essential to authorize jury in allowing interest upon compensation awarded. In order to obtain the allowance of compensation for the use of land taken prior to final judgment, it is not essential that the petition or cross-petition filed in the condemnation proceeding pray for such allowance.</p> <p>5. Eminent domain—when action does not lie to recover compensation for talcing of land. Wrhere the petitioner took possession of the land condemned prior to final judgment, the owner should have insisted in the condemnation proceeding that the jury award damages for the use of the land in the interim between the preliminary and the final judgment; where no such award was insisted upon or obtained, a separate action will not lie, the final judgment in the condemnation proceeding being res judicata.</p> <p>6. Res jtjdicata-—of what judgment in condemnation proceeding is. A judgment in a condemnation proceeding is res judicata not only as to the matters actually determined but as to all matters which might have been determined in the cause.</p>

<p>Action commenced before justice of the peace. Error to the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding.</p>

<p>Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Philip Stein, Judge, presiding.</p>

<p>Mandamus proceeding. Error to the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding.</p>

<p>Bill in aid of execution. Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>Action in case for personal injuries. Ei;ror to the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding.</p>

<p>1. Appeal—from what decree, cannot he taken. An appeal from a decree which is as favorable to the appellant as any which could be rendered under the prayer of his bill, will be dismissed on motion.</p>

<p>1. New cause of action—when additional count in slander does not set up. Held, that the additional count filed in this cause did not set up a new and different cause of action from the count in slander originally relied upon.</p> <p>2. Malicious prosecution—when criminal prosecution made basis of action for, deemed ended. Where a plaintiff after being arrested was bound over by the magistrate to the grand jury and was subsequently discharged upon habeas corpus, the prosecution is at an end, and a suit for malicious prosecution may be instituted.</p> <p>3. Rejoinder—when burden of proving, upon defendant. Where the rejoinder is a confession and avoidance, the burden of proof is upon the defendant to prove the matter of avoidance, and it is not essential that the plaintiff undertake to establish by evidence the averments of the replication rejoined to.</p>

<p>1. Exception—essential to review finding of court. A motion for a new trial is not necessary but an exception to the finding is indispensable to the right to review the finding of the court entered in a trial had without a jury.</p>

<p>1. Elevatob—duty of owner of, to licensee. The duty of the owner of an elevator to one using it not by invitation but at most as a mere licensee, is to refrain from wilful or affirmative injurious acts.</p>

<p>1. Variance—when ground for reversal. A variance which was specifically pointed out upon the trial of a cause and which is vital, where not corrected by amendment, is ground for reversal.</p> <p>2. Assumed risk—when promise to repair defect does not preclude operation of doctrine of. After complaint and promise to repair, a servant has a right, relying upon the promise,, to continue at his work for such a reasonable time as would be required to make the repair, but if the servant continues beyond such time, he assumes the risk of injury.</p>

<p>Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.</p>

<p>1. Verdict—when not disturbed. A verdict fairly supported hy the evidence will not he set aside on review.</p>

<p>1. Physician and surgeon-when license not essential to recovery of fees. The fact that a physician and surgeon is not licensed to practice in Illinois is not material where the action is predicated upon notes given for services rendered.</p> <p>2. Judgment by confession-when will not he vacated. A motion to vacate a judgment by confession is directed to the conscience of the court, and will not he allowed for errors of law, but only where a defense upon the merits clearly appears from the affidavits admissible in support of such motion. Errors of law are waived by the letter of attorney in power of which the judgment is entered.</p>

<p>Action commenced before justice of the peace. Appeal from the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding.</p>

<p>1. Landlord and tenant—who responsible for overflows of water upon premises. The responsibility for overflows of water depends upon the question of control and the responsibility rests with the landlord or the tenant, as the case may be, according to who is in control of the source or cause thereof, and where an overflow is established the presumption is that the same resulted from the fault of the party in control of the cause or source thereof. Where the premises have been demised, the liability is, ordinarily, with the tenant.</p> <p>2. Contributory negligence—when doctrine of, does not apply. The doctrine of contributory negligence does not apply where it 1 appears that the omission or conduct alleged to constitute contributory negligence was in the doing or the not doing of some act or acts in relation to a danger not reasonably to have been apprehended.</p>

<p>Action in assumpsit. Error to the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding.</p>

<p>1. Personal injuries—when landlord not liable for. A landlord is hot liable for personal injuries to one going upon demised premises unless it appears that the landlord demised such premises with a nuisance existing upon them. The liability for such personal injuries, if any, is in the tenant.</p>

<p>1. Mandamus—when proper to expunge portions of petition. It is proper to expunge from a petition for mandamus any portion or portions thereof, either in allegations or prayer, where it appears that the same are superfluous and immaterial.</p> <p>2. Mandamus—when does not lie. Mandamus does not lie to set aside and undo what has already been done, even though the thing done ought not to have been done.</p> <p>3. Civil service act—what not ground for setting aside examination conducted hy commissioners. Examinations conducted by the civil service commission will not be set aside even though the mayor may have unduly influenced the commissioners in the interests of one of the parties taking the examinations in question.</p> <p>4. Civil service act—discretion of commissioners with respect to' examination under. The civil service commission has a discretion with respect to determining the physical and other tests to he applied at an examination and^ the exercise of this discretion will, ordinarily, not he interfered with or controlled by the courts.</p>

<p>1. Board of trade—when membership in, becomes forfeited. Upon the expulsion of a member of the board of trade, his membership and all rights of sale and transfer by him of such membership are lost.</p>

<p>I. Promissory note—when prima facie corporate obligation only. A note in the form following is prima facie a corporate obligation only:</p> <p>“On demand after date, for value received, we promise to pay to the order of F. Bertheau two thousand oo/100 dollars at our office, with interest at 6 per cent, per annum.</p> <p>DOUBLE USE MITTEN CO.,</p> <p>S. O. Derby, Treasurer.”</p>

<p>1. Credibility of witness—instruction with respect to interest of plaintiff sustained. It is proper to instruct the jury that in weighing the testimony of the plaintiff they have a right to take into consideration the fact of his interest in the result of the suit.</p> <p>2. Instruction—effect of failure to define “accident." An instruction is not erroneous in failing to define the term “accident” employed therein.</p> <p>3. Conduct of bailiff—when not ground for a new trial. Held, that a statement by a bailiff to a juror, in response to a question of such juror, that “such a thing as a disagreement is not known in this court,” etc., did not constitute sufficient ground for granting a new trial.</p>

<p>Action in case for personal injuries. Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>Action in trespass. Error to the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding.</p>

<p>1. Res gestae—what not part of. Groans and exclamations are not part of the res gestae and are incompetent.</p> <p>2. Cboss-examination—what proper upon. The" cross-examiner is entitled to inquire with respect to all of the subject-matters of the direct examination.</p> <p>3. Imputed negligence—when doctrine of, does not apply. The doctrine of imputed negligence does not apply as between a driver and his companion where the driver, with respect to whom the negligence is alleged, was not the agent of or controlled by such companion.</p>

<p>1. Copyright law—what extinguishes common Taw rights of authors in United States. Where a public production of a play is given in England with the consent of the authors which together with other action taken by such authors operates to extinguish in England the common law rights of such authors, likewise has the effect of extinguishing the common law rights of such authors in such production with respect to the United States.</p>

<p>1. Assumed bisk—what not within doctrine of. A servant engaged in the regular course of his employment in loading a car does not assume the risk that the master will back a train against such car at a high rate of speed.</p> <p>2. Instructions—when refusal of court to consider more than arbitrary number, not error. It is not reversible error for the court to refuse to consider more than a specified number of instructions if it appears that the instructions actually given fully and fairly presented to the jury the law applicable to the case.</p>

<p>1. G-koss negligence—-definition of, as applied to law of bailment. Gross negligence, as applied to gratuitous bailees, is nothing more than a failure to bestow the care which the property in its situation demands.</p> <p>2. Finding of coubt—when will not be disturbed. An Appellate Court will not disturb a correct finding and judgment where a cause has been tried by the court without a jury merely Because the court entertained an incorrect view of the law.</p>

<p>1. Breach of promise of marriage—what evidence incompetent in action for. Held, that evidence of a venereal disease contracted from the defendant was incompetent in aggravation of damages.</p> <p>2. Breach of promise of marriage—what evidence competent in action for. Held, that evidence of pregnancy resulting from intercourse had with the defendant in faith of his promise is competent in an action for breach of promise of marriage.</p> <p>3. Breach of promise of marriage—what damages may he recovered in action for. The only damages that can be recovered in an action for the breach of a promise of marriage are those which spring from the breach of the contract and, in addition, those which the jury may choose to give to punish the defendant for violating that promise under circumstances which show malice and evil motives.</p>

<p>1. Indorser—what essential, what not, to fasten liability upon. Protest is not, but presentment and notice are, essential to fasten liability upon an indorser of a promissory note.</p> <p>2. Promissory note—within what time notice of dishonor must be given indorser. In Illinois, notice of dishonor must be given to an indorser upon the day of dishonor or upon the succeeding day.</p> <p>3. Promissory note—within what time presentment for payment must be made. Presentment for payment of a promissory note must be made within reasonable hours on the day of maturity.</p> <p>4. Promissory note—what law governs time of proper presentment. The law of the place of performance governs the question of the proper time of presentment and payment of a promissory note.</p> <p>5. Promissory note—what not competent proof of presentment and notice .of dishonor. The certificate of a foreign notary as to presentment and demand for payment and notice of dishonor, are incompetent to establish or to tend to establish such facts as to a promissory note, although evidence of them as to a foreign bill of exchange.</p> <p>6. Promissory note—when due notice of dishonor given. If notice of dishonor is duly addressed and deposited in the mail, the sender is deemed to have given due notice and his rights are saved, although the notice may never have been received.</p> <p>7. Promissory note—when indorser discharged by failure to give notice of dishonor. Where the holder of a promissory note indorsed the same and sent it to another bank In another state for collection and such bank by its agent sent notice of dishonor to the holder of such note, and in the same envelope and in the care of such holder sent a notice of dishonor to the first indorser, which the holder of the note receiving, neglected to send to such first indorser for some weeks thereafter, the indorser is discharged from liability.</p>

<p>1. Default—what not ground for setting aside. Where it ■appears that the defendant seeking to set aside a judgment entered by default relied upon an insurance company to make defense, lack of diligence is established and a motion to set aside the default is properly denied.</p>

<p>1. Limitation—when plea setting up contract as to time within which suit must he instituted, insufficient. A plea which sets up that the contract of insurance provided that suit should be brought thereon within six months after the rejection of the claim and that it was not so brought, is insufficient where it does not allege that notice of rejection was given.</p> <p>2. Insurance—“totally and permanently disabled,” as used in insurance contract construed. Held, that the words “totally and permanently disabled,” as used in the contract in this cause, were net limited to a total and permanent disablement arising from certain specified injuries, but referred to any injury "which produced a total and permanent disablement.</p> <p>3. Insukakce—how contract of, construed. Where the insurer fails to employ' a clear and definite form of expression, the benefit of all doubts will be resolved in favor of the insured.</p>

<p>Certiorari. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.</p>

<p>Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.</p>

<p>Appeal from amendment of order dismissing citation. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>1. Solicitor’s fees—what does not preclude recovery of, upon injunction bond. A recovery upon an injunction bond for services rendered in procuring the dissolution of an injunction is not precluded by the fact that the solicitor stated that he would obtain his fees out of the bond.</p> <p>2. Solicitor’s fees—when allowed for services in obtaining dissolution of injunction. Where the only relief sought by the bill was injunction, solicitor’s fees for the services rendered .in obtaining a dissolution of a temporary injunction granted in the cause will be allowed.</p> <p>3. Solicitor’s fees—when services rendered in obtaining dissolution of injunction, cannot be made basis of allowance of. Where solicitors render services ex officio to public officers or servants and thereby obtain the dissolution of an injunction, there can be no recovery upon the bond given upon the granting of such injunction.</p> <p>4. Injunctional bond—instructions given in action upon, approved. Various instructions set forth in the opinion in haec verba are approved.</p> <p>5. Appellate court—when will not refer to its own records. The Appellate Court in considering a cause brought before it for review will not examine the record on file.in its court in an alleged kindred, case, where no consolidation was sought or had.</p>

<p>Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.</p>

<p>1. Judicial notice—of what taken. Judicial notice will be taken of the fact that five o’clock of July 23rd is about two hours before sunset.</p> <p>2. Master—when not obligated to light building. There is no obligation upon the part of the owner of a building in process of construction to so light it that his employes may see their own way in going to and from said building or from one place to another therein.</p> <p>3. Sake place to work-—when doctrine of, does not apply. This doctrine does not apply where a building is in course of construction so as to render the master chargeable with negligence where the servant is injured through the incomplete construction of a portion of a building, tthe servant being chargeable with notice of such incomplete condition.</p>

<p>1. Verdict—when not set aside. The Appellate Court is not at liberty to invade the province of the jury in determining the credibility of the witnesses and the weight and force to be credited to their testimony, and unless the evidence in a cause is so manifestly against the weight of the evidence that such court can say that the verdict was the offspring of passion and prejudice and not of due deliberation in the actual solution of the facts as demonstrated by the proofs, the finding of the jury is a finality.</p> <p>2. Verdict—when will not he set aside for exeessiveness. Notwithstanding the Appellate Court might have been better satisfied with a smaller verdict, yet it will not reverse a cause for an excessive assessment unless it plainly appears that the amount of the verdict was the result of passion or prejudice.</p> <p>3. Verdict—when wt ,excessive. A verdict of $11,000 is held not excessive were it appears that the 'plaintiff, prior to the injury, was a strong, vigorous, healthy woman, thirty-seven years of age, and free from the ailments which she suffered subsequent to the accident, and where by reason of the accident she suffered a miscarriage, with .violent and profuse hemorrhages, with injury to the pelvic organs necessitating a major surgical operation and where an additional operation became necessary and by virtue of the accident (she Vas rendered a permanent and hopeless invalid.</p> <p>4. Incompetent evidence—when offer to introduce not ground for reversal. An offer to introduce evidence clearly incompetent is not ground for reversal where such offer was provoked by the attitude and statements of the complaining counsel.</p> <p>5. Objections—when must he specific. A general objection to a question is insufficient where the objection could be obviated if made specific.</p> <p>6. Motion to strike—when essential' to review. An answer not responsive to a question cannot be successfully urged as error, however improper such question in fact may be, where no motion was made to strike out such unresponsive answer.</p> <p>7. Cross-examination—when question improper upon. A question upon cross-examination is improper which assumes that the witness has testified to a particular fact when he has not in fact testified to such fact.</p> <p>8. Personal injuries—when attending physician may give opinion as to cause of. An attending physican may properly be permitted to give his opinion as to the cause of personal injuries complained of where he has sufficient personal knowledge of such injuries.</p> <p>9.. Personal injuries—when medical expert may give opinion as to cause of. A medical expert may properly be permitted to give his opinion as to the cause of personal injuries complained of, predicated upon an examination made by him and upon facts hypothetically stated to him or upon evidence heard by him in open court and assumed for the purpose of such opinion to be true.</p> <p>10. Medical expert—proper mode of examination where opinion as to cause of personal injuries is sought. The proper mode of examination in such case is to state hypothetically the facts which the evidence tends to prove and call for the physician’s opinion on the facts stated as to what caused the conditions described in the hypothetical Question—not what might have caused them.</p>

<p>1. Estoppel—when arises to preclude contention that contract is governed by law of Illinois. Where a party upon the trial of a cause has deliberately contended that he is not liable by virtue of the fact that the contract in question was governed by the law of another state than that of Illinois which will relieve him from liability, he cannot subsequently contend that such contract was governed by the law of Illinois and that in consequence of such law he could not be held.</p> <p>2. Depositions—party talcing, not bound by. A party taking depositions is not bound by the evidence adduced; he may abandon the same and to an extent use some parts thereof, the other party having the privilege of offering the unused portions, but where such party offers unused portions he is bound with respect. to his oBer by the same rules of evidence which apply to the deposition when ofiered by the party taking it.</p> <p>3. Bills of lading—when limitations contained in, do not affect carrier's liability. The limitations of a carrier’s liability contained in a bill of lading do not, in the absence of proof that such limitations were brought to the attention of the shipper and assented to by him, operate to relieve the carrier of its common law liability to carry and deliver the consigned property to the destination named in the bill of lading. Nor can a carrier limit its common law liability safely to deliver the consigned property at the place of destination by any limitation expressed in its receipt for the property.</p> <p>4. Common carries—when burden upon, to rebut presumption of negligence. Where merchandise of a perishable character was delivered to a carrier' in apparently good condition, the burden is shifted to it to prove facts exculpating it from the presumption of negligence arising from such merchandise being in a rotten condition shortly thereafter.</p> <p>5. Market value—when other than that of place of delivery may be taken. Where a carrier is liable for merchandise undelivered or delivered in an impaired condition, the measure of damages being the market value at the place of delivery at the time when the delivery should have been made, the market value of the nearest point at which there is a market value, less a deduction for freight, may be taken where there was no market value for such merchandise at the place of delivery.</p>

<p>Bill in equity. Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. Statute of Limitations—when begins to run as against action of tort. The Statute of Limitations begins to run as against a cause of action sounding in' tort of which fraud is the basis as soon as the fraud and the consequent injury have occurred and not when the fraud is discovered, unless there has been a fraudulent concealment of the cause of action.</p> <p>2. Statute of Limitations—what does not toll running of, in action of tort. An acknowledgment does not revive a cause of action sounding in tort.</p> <p>3. Bankruptcy—what discharge in, does not affect. A cause of action arising by reason of the fraud of a bankrupt in obtaining property is not released by a discharge in bankruptcy.</p> <p>4. Bankruptcy—test to be applied in determining whether cause of action predicated upon fraud. It is the nature of the transaction, not the form of the action, which is looked to in order to determine whether a cause of action is relieved against by a discharge in bankruptcy.</p>

<p>1. Persona injuries--uihen evidence erroneous as speculative. It is error to permit a physician to testify as to conditions which may possibly follow from an injury shown.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Paul McWilliams, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. Foreclosure—when amount paid for taxes properly included in decree. Taxes paid after the filing of the bill are properly allowed in the decree where they were a lien on the property foreclosed at the time of payment and were included in the stipulation for reimbursement contained in the trust deed.</p> <p>2. Seal—effect of, with respect to consideration. „A trust deed under seal imports a consideration without proof.</p>

<p>Action in debt. Appeal from the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding.</p>

<p>1. Verdict—when not disturbed, as excessive. A verdict will not be set aside as excessive unless the Appellate Court can fairly say from the evidence that the assessment of damages was the result of passion or prejudice.</p> <p>2. Ebrobs—when will not reverse. Errors will not reverse unless it appears that prejudice resulted.</p> <p>3. Hypothetical question—appropriate form of objection to. Where it is asserted that a hypothetical question varies from the proof, the complaining counsel should specifically point out in what respect the question does so vary.</p> <p>4. Hypothetical question—when objection to, insufficient. An objection that a hypothetical question calls for an answer which' would invade the province of the jury comes too late when first made on appeal.</p> <p>5. Hypothetical question—when properly framed. A hypothetical question conforms to well-established principles where it calls for the opinion of the expert as to what was the cause of the injury referred to. The “what was” rule as distinguished from the “what might have been” doctrine now prevails in this state.</p>

<p>1. Conduct of counsel—when improper. The action of counsel in making side remarks in the presence of the jury and using language in argument and otherwise tending to arouse the prejudice of the jury against the opposing party, is improper.</p> <p>2. General issue—nohat admitted by plea of. In an action on the case for personal injuries the plea of the general issue admits that at the time of the alleged injury the defendant corporation was operating the particular line of railroad mentioned in the declaration and that the operatives in charge of the train being run upon such road at such time were its servants and employes.</p> <p>2. Instructions—as to credibility of witness held erroneous. An instruction is erroneous which tells the jury, among other things, that they are “at liberty to decide that the preponderance of the evidence is on the side which in their judgment is sustained by the more intelligent, the better informed, the more credible and the more disinterested witnesses, whether these are the greater or the smaller number.”</p>

<p>1. Receiver—when fees of, should he paid from funds in his possession. A receiver should not be permitted to reimburse himself and pay his counsel from funds in his hands where he was improperly appointed at the instance of the complainant. and such funds were derived from the property of the defendant.</p> <p>2. Finaí order—what not for purposes of review. An order fixing the compensation of a receiver and his counsel, and ordering it to he paid out of funds in his possession, is not final and appealable where the cause in which it is entered remains undisposed of.</p>

<p>1. Degree of cabe—required of owner of land, etc. As a rule, the owner of land and buildings assumes no duty to one who is on his premises by permission only, except that he will refrain from wilful or affirmative acts which are injurious.</p> <p>2. Landlord and tenant—who liable for personal injuries sustained by third party. The tenant and not the landlord is liable for personal injuries sustained by a third party by reason of the failure to keep the premises in question in repair. The landlord is only liable where he has leased the premises with a nuisance upon them or has assumed by contract the obligation to repair.</p> <p>3. Contributory negligence—when person leaning against railing of porch guilty of. A person knowing that one end of the top of a railing is loose and liable to give way is guilty of contributory negligence in leaning against it without previously examining and testing it.</p>

<p>1. Passenger and carrier— extent of obligation of latter to former. A railway company does not insure or guarantee the safety of passengers and is obligated only to the exercise of the highest degree of practicable care in the operation and management of its road.</p> <p>2. Instruction—as to rule of unavoidable accident held improperly refused. Held, error to refuse to instruct the jury that the defendant would not be liable if the jury believed from the evidence that the accident was unavoidable so far as the defendant company was concerned.</p> <p>3. Damages—what evidence of, too remote, in an action for personal injuries. Income which might be derived from a coal business, which income would represent not only the individual efforts of the plaintiff but the labors of his employes and the returns upon his investment, is too remote and cannot be shown in an action for personal injuries.</p>

<p>1. Bill of lading-effect of delivery of, upon title, where question arises upon interplea in attachment. The title to property is-passed to the bank upon a transaction as follows: A bill of lading describing the property, with a draft attached, is delivered to the bank and the bank credits the amount of the draft to the drawer, and when the draft is not paid, does not charge the amount thereof back to such drawer but assumes, itself, the collection of the draft.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.

<p>1. Declaration—what treated as surplusage. A statement of the pleader’s opinion as to the legal effect of the transaction set forth raises no issue and will be treated as surplusage.</p> <p>2. Malice—when not gist of action. Malice is not the gist of an action where a recovery may be had under the declaration by proof of ownership of the property referred to in the declaration coupled with proof that it came into the possession of the defendant and was by him converted to his own use.</p>

<p>Action in trespass. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.</p>

<p>1. Final obdeb—wfiat not, for purposes of appeal. An order dismissing a bill as to one party is not final and appealable.</p> <p>2. Feeehold—when not involved. A freehold is not involved where the necessary result of the litigation is not that.one party will gain and the other will lose a freehold.</p>

<p>1. Instbuction—when need not refer to dismissed counts. An instruction is not erroneous which permits the jury to render a veidict for the plaintiff if it is found that his injuries were sustained on account of the negligence of the defendant “as set forth and claimed in his declaration, or some count thereof,” even if certain counts of the declaration have been dismissed from the consideration of the jury, where the dismissal of such counts is called to the attention of the jury by other instructions given.</p> <p>2. Instbuction—when not error to refuse to instruct the jury as to the order in which they shall determine the questions in issue. Held, in view of the other instructions given, that it was not error to refuse to give the following instruction, notwithstanding such instruction was in itself correct:</p> <p>“The jury are instructed that if, under the instructions of the court, they find from the evidence in this case the plaintiff is not entitled to recover, then they will not have occasion to at all consider the question of damages or character or extent of tne injury to the plaintiff, whether serious or slight.”</p>

<p>Bill for accounting. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.</p>

<p>Action of replevin. Appeal from the Circuit Court of Cook county; the Hon. Henry B. Willis, Judge, presiding.</p>

<p>1. Personal injuries—when liability for, not joint. No joint liability exists with respect to a corporation and a receiver for such corporation who is in possession of its property.</p> <p>2. Reversal—when must be as to all parties to judgment. A j'udgment at law against the defendants is a unit which can neither be reversed as to some and affirmed as to some, nor reversed with directions to the lower court to enter it as on the verdict against some and not against others.</p> <p>3. Verdict—effect of large remittitur. Where the trial judge before entering judgment has required a large remittitur, the confidence of the Appellate Court in the fairness of the jury’s consideration of the case is shaken.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>1. Review—what essential to entitle appellant to. A motion for a new trial and an exception thereto, among other things, are necessary, to the review of a judgment at’ law based upon a verdict rendered by a jury, and these must be shown by the bill of exceptions.</p> <p>2. Bile op exceptions—what should show loith respect to instructions. The bill of exceptions should show at whose instance the instructions complained of were given.</p> <p>3. Abstract—what should show with respect to instructions. The abstract filed upon appeal should set out all of the instructions-which were asked and given in the trial court.</p>

<p>1. Assumed bisk—when doctrine of, applies. A servant cannot recover of his master where he is injured while in the performance of his duties by reason of the manner in which the business of his master was conducted where such manner of conduct was not different from that which had previously prevailed, as to which he was familiar and with respect to which he had made no complaint.</p> <p>2. Instbuctioks—when erroneous, will not reverse. The giving -of erroneous instructions will not reverse where it appears as a matter of law that the complaining party was not entitled to a verdict in his favor.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>1. Declaration—when objection for duplicity comes too late. An objection to a declaration upon the ground that it is double comes too late after joinder in issue.</p> <p>2. Instruction—when error in, will not reverse. An error in an instruction will not reverse where it does not appear that the jury could have been misled by such error.</p> <p>3. Instructions—how to be considered. Instructions are to be regarded as a series and construed as a whole.</p> <p>4. Verdict—when not excessive. A verdict for $1,250 rendered in an action for a malicious and unprovoked assault is not excessive where it appears that the plaintiff, a woman, was at the time of the injury just recovering from the effects of a surgical operation, and where, as a result of such injury, her health was for some period impaired.</p>

<p>1. Evidence—when rúlings upon, should he accurate. "Where the evidence upon a disputed issue is in sharp conflict, the rulings with respect to the admission and rejection of evidence should be accurate.</p> <p>2.. Incompetent evidence—when striking from record, does not cure error in admission. Where evidence of a prejudicial character has been erroneously admitted, the mere striking it from "the record does not always cure the mischief resulting from its introduction.</p> <p>3. Witness—party cannot impeach his own. A party calling a witness has no right to seek upon his redirect examination to discredit the testimony which he has given and to impugn his motives.</p> <p>4. Witness—non-production of, may he explained. A party who has not produced a witness is entitled to show why such witness has not been produced.</p> <p>5. Argument op counsel—when ground for reversal. Where in argument counsel has made a remark for the purpose of inflaming the minds of the jury, a reversal will follow.</p>

<p>Action of assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>1. Instructions—should he clear. Instructions should be refused which are involved and argumentative and which do not inform the jury in plain,' ordinary and understandable terms of the law with respect to which they are given.</p> <p>2. Contributory negligence—how* question of, to he determined. What constitutes negligence of any character, whoever may be affected from the fact of its existence, is a question to be predicated, not upon an assumption of certain facts culled from the evidence, but must be gathered from all the evidence pro and con supporting or not the contention of the presence of negligence sufficient under the law to charge a liability upon the defendant, or if such negligence is, under the proof, attributable to the plaintiff, then to relieve the defendant from the liability of its own negligence, if any is disclosed by the proof.</p> <p>3. Assumed bisk—when doctrine of, applies' to servant doing worlc at command of master. Where a servant undertakes to perform work under conditions which he knows as well or better than his master to be -dangerous, the fact that he is commanded to do such work does not relieve him from the operation of the doctrine of assumed risk.</p>

<p>1. Appeal—when bond not in compliance with order granting. A bond executed by an unincorporated voluntary association does not comply with an order granting an appeal to individual defendants, and an appeal so sought to be perfected will be dismissed.</p> <p>2. Appeal—what essential to jurisdiction of. In order that the reviewing tribunal obtain jurisdiction of an appeal, it must appear that the appeal has been perfected in accordance both with the statute giving the right of appeal and the order entered in the cause made pursuant to such statute.</p>

<p>1. Appellate Court—extent of rule that decision of, becomes law of case. A decision of the Appellate Court rendered in a cause which, being reversed and re-docketed is subsequently dismissed, becomes the law and is binding with respect to a new suit brought upon the same cause of action between the same parties in which the declaration and the issues are identical with the suit so reversed and dismissed.</p>

Action on the case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.

<p>1. Fraternal benefit society—who entitled to proceeds of certificate issued by. The designated beneficiary is entitled to the proceeds arising from a benefit certificate and it is not within the power of one claiming such proceeds as the widow of a deceased member to raise the question of the ineligibility of such designated beneficiary, such question not being urged by the society.</p> <p>2. Fraternal benefit society—effect of marriage of member upon certificate issued by. The marriage of a member of a fraternal benefit "society to whom a benefit certificate has been issued does not operate to affect in any way the certificate issued to him or the rights of the beneficiary designated in such certificate.</p>

<p>Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>Action in assumpsit. Appeal from1 the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.</p>

<p>1. Common carrier—when not duty of, to unload freight. When a car loaded with fruit in baskets is, at the consignee’s request, taken for unloading to a platform so placed and constructed that the fruit will be liable to damage from the weather, and also liable to be stolen if taken from the car, it is not the duty of the defendant to unload the car.</p>

<p>1. Release—what does not establish fraud in procurement of. Held, from the evidence, that fraud in the procurement of the release pleaded in bar was not established.</p>

<p>1. Certiorabi—when laches bars right of review by. A delay of a year in applying for a writ of certiorari to review the proceedings of the civil service com,mission, constitutes such laches as will bar the remedy.</p>