Volume 144 — Illinois Appellate Court Reports

<p>Fraternal benefit society—who entitled to proceeds of certificate. Assuming that if a member of a fraternal benefit society dies leaving a certificate payable to a beneficiary designated as wife such person is not entitled to the proceeds of such certificate if before the death of such member she has become divorced from him and has ceased to be a “dependent;” nevertheless, the wife of such member who has become such since his divorce, is not entitled to the proceeds of such certificate without having been made a beneficiary thereof, but where the by-laws of the society contain a provision as follows: “If at the time” (of the member’s death) “the dependency has ceased, then such benefit shall be paid to the heirs of the member,” the proceeds of the certificate will pass according to such by-law.</p>

<p>Action of debt. Appeal from the Circuit Court of Cook county; the Hon. Gbobqb A. Carpenter, Judge, presiding.</p>

<p>Trespass on the case. Appeal from the Superior Court of Cook county; the Hon. Axel Chytbaus, Judge, presiding.</p>

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

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.</p>

<p>Action on the case. Appeal from the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>1. Damages—what evidence not competent to establish. Evidence of the value of an amusement park "privilege” estimated by-guessing at or stipulating upon future uncertain profits, is incompetent. Elements or facts which support the estimate must be given in order to render it competent.</p> <p>2. Damages—when loss of future profits should not he awarded. Loss of future profits of a purely speculative nature cannot properly be included in an award of damages.</p> <p>3. Mbastjbe op damages—in action for failure to give possession of leased premises. The measure of damages for failure to give possession of leased premises is the difference between the actual rental value and the rent reserved to be paid by the lease. The same rule applies to a farm, a dwelling house, a hotel or business premises. The rule is varied in the case of an established business, in which case the measure of damages would be the difference between the rent and the value of the lessee’s business, which would necessarily include an allowance for profits.</p>

<p>1. Pbactice—how sufficiency of plaintiff’s evidence to sustain action should be raised. In order to preserve for review the question as to the sufficiency of the plaintiff’s evidence, standing alone, to sustain the action, the defendant must move the court at the conclusion of the plaintiff’s evidence for a finding in favor of the defendant.</p> <p>2. Pbactice—when propositions of law properly refused. Propositions of law are properly refused which are alien to the law as affecting the facts deducible from the proofs.</p> <p>3. Evidence—burden of proof to establish right to discount. A defense to the effect that the defendant is entitled to a discount is affirmative and the burden to establish the same is upon the defendant.</p> <p>4. Account stated—what evidence tends to establish. The receipt of itemized statements and the retention thereof for months without objection tends to establish an account stated.</p>

<p>Attachment—what -fraudulent conveyance of property. The execution and delivery of a chattel mortgage (with the understanding that it shall not be recorded) covering personal property in the possession of the mortgagor, is fraudulent and constitutes ground for attachment.</p>

<p>Verdict—when set aside as against the evidence. A verdict manifestly contrary to the probative force of the evidence will be set aside on appeal.</p>

<p>1. Conspiracy—when, to obtain judgment, not actionable. A judgment not void for want of jurisdiction cannot be collaterally attacked and while such a judgment remains in full force an action charging conspiracy to obtain it does not lie.</p> <p>2. Conspiracy-—when action at law for, does not lie. A civil action cannot be maintained for a mere conspiracy. Damages of an actual and not punitive character must flow from the conspiracy before the action can be maintained. When actual damage is proven to have been suffered, then punitive damages may also be allowed according to the particular aggravating character of the conspiracy demonstrated by the proofs.</p> <p>3. Damages—when punitive, will not be awarded. In the absence of proof of actual damages, the assessment of punitive damages is not justified.</p> <p>4. Service of process—when return cannot he impeached. Return of service cannot be impeached by the unsupported testimony of the defendant in the writ, or collaterally by any number of witnesses.</p>

<p>Objections to administrator’s report. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Wishes, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Chables M. Walkeb, Judge, presiding.</p>

<p>Separate maintenance. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding.</p>

<p>Criminal prosecution for conspiracy. Error to -the Criminal Court of Cook County; the Hon. Merritt W. Pinckney, Judge, presiding.</p>

<p>1. Mandamus—when judgment in, cannot be questioned. In a proceeding for contempt for failure to obey a writ of mandamus, the formality of the judgment rendered in the mandamus proceeding and the merits of the cause in which it was rendered cannot be questioned, where the court had jurisdiction of the parties and of the subject-matter.</p> <p>2. Contempt—how proceeding in, entitled. A contempt order is properly entitled in the name of The People, although it is a civil contempt. v</p> <p>3. Municipal corporations—when village board cannot affect status as to indebtedness by resolution. A board of trustees of a village cannot legally rescind a resolution declaring an indebtedness to a third party without the consent of such third party after such resolution has been accepted by him.</p>

<p>1. Pleading—what question cannot be submitted to jury for determination. Tlie construction of a contract is a question of law for the court and it is improper to submit the determination of such a question to the jury.</p> <p>2. Pbactice—what proof not essential to assessment of damages. A default admits the material allegations of the declaration and proof thereof is not essential upon a proceeding to assess damages.</p>

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

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Abthttr H. Chetiauít, Judge, presiding.</p>

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

<p>Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.</p>

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

<p>1. Evidence—when impeachment of witness proper. A witness may be impeached by showing inconsistent statements made by him in his testimony at a coroner’s inquest, such inconsistent statements being proven by the testimony of a witness who was present and took notes, such witness testifying that from such notes he could refresh his recollection and testify from an independent recollection.</p> <p>2. Instructions—when refusal to give instruction as to order in which issues may he considered, not ground for reversal. Held, that it was not prejudicial error tor the court to refuse to instruct the jury as follows: “that if under the instructions of the court they find from the evidence that the plaintiff is not entitled to recover, then they will not have occasion to consider at all the question of damages.”</p> <p>3. Pleading—when declaration charging collision sufficient after verdict. Held, that the declaration in this case substantially alleged that the defendant negligently ran and operated its car and that as a result of such negligence the plaintiff’s intestate, while in the exercise of due care, etc., was struck by said car and so injured that death ensued; that such declaration stated a cause of action and was sufficient after verdict.</p> <p>4. Pleading—what admitted hy general issue. In an action on the case for personal injuries the plea of not guilty does not put in issue the ownership of a street car line or the ownership of the cars operated thereon.</p>

<p>Trespass on the case. Appeal from the Circuit Court of Rock Island county; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>1. Verdict—when not disturbed as against the evidence. A verdict not manifestly against the weight of the evidence and which does not appear to have been the result of passion, prejudice or other undue influence, will not be set aside on review as against the weight of the evidence.</p> <p>2. Instructions—when as to proof of agency improper. An instruction is properly refused which singles out but one fact in a chain of facts and tells the jury that it alone does not prove agency.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Bureau county; the Hon. Samuel C. Stougii, Judge, presiding.

<p>Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Albert O. Marshall, Judge, presiding.</p>

<p>Mechanic’s lien. Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>This case is controlled by the decision in Granquist v. Western Tube Company, ante p. 230.</p>

<p>1. Brokers and factors—when real estate commissions earned. It is not a question as to whether the real estate broker has obtained a contract which may be specifically enforced by the owner which determines his right to' commissions; if he has procured a customer who is ready, willing and able to buy the property at the terms designated by the owner, he is entitled to recover his commissions.</p> <p>2. Agency—ivhen absolute revocation unauthorised. An agency for a definite period cannot be terminated by the principal without compensating the agent.</p>

<p>1. Constitutional law—who ineligible to hold state office. Any person holding under the United States government the office of post-master with an annual compensation in excess of $300 is ineligible to hold at the same time the office of president of the village board of trustees.</p> <p>2. Quo wabbanto—what essential to right to file information. Only probable cause is required to be shown to entitle a proper application for leave to file an information; unless an absolute showing is made against the application, leave should be granted.</p> <p>3. Quo wabbanto—what should not be determined upon applicar tion for leave to file information. While affidavits and counter-affidavits may properly be heard upon an application for leave to file an information, the court should not, upon such preliminary hearing, try or determine the merits of the controversy.</p> <p>4. State’s attorney—when presence of, at proceedings not essential. Proceedings which are required by law to be conducted in the name of the attorney-general or the state’s attorney, may be conducted by others in his behalf.</p>

<p>1. Evidence—what essential to admission of secondary. In order to let in secondary evidence of the contents of a written instrument, the person in whose possession it was last traced, must be produced, unless shown to be impossible, in which case, search among his papers must be proved if that can be done.</p> <p>2. Libel—when published article not competent. A newspaper containing an alleged libelous article is not competent against an individual not connected with the paper which caused the publication of such article if the same was set up from the manuscript copy prepared by such individual, unless the non-production of such manuscript copy is duly accounted for.</p>

<p>1. Pleading—when special plea not essential. It is not necessary to plead specially any defense that may properly be offered under the general issue; a demurrer is properly sustained to a special plea which interposes á defense admissible under the general issue.</p> <p>2. Pleading—what defenses admissible under general issue. Payment and a release may be offered in evidence under the general issue.</p> <p>3. Pleading—when provision of constitution of fraternal benefit society not considered. A section of the constitution of a fraternal benefit society pleaded in connection with a release set up by way of defense to an action instituted upon a certificate, will not be considered if the logical connection or effect between such section of the constitution and the release is not averred.</p> <p>4. Fkatebnal benefit societies—when release does not discharge death claims. A release in full by a member for benefits to which he was entitled by virtue of injuries does not discharge the right of the beneficiary to recover death claims if ■ death ensued from such injuries.</p> <p>5. Fbatebnal benefit societies—when full death claim should not be awarded. If the full liability provided for by a certificate is $5,000, such amount should not be allowed if prior to death, benefits with respect to the accident which caused the death of the member, had been paid to him. "</p> <p>6. Evidence—what competent as admission against interest. Proofs of loss containing answers by a physician, sworn to as true by the beneficiary, are competent against her as admissions against interest, and the defendant offering them may select such portions as it sees fit and offer the same, if material, subject to the right of such beneficiary to offer such other parts of the document as qualify or modify such admission or declaration against interest.</p> <p>7. Instbuctions—what proper in action upon accident benefit certificate providing for non-liability when death results wholly or in part from disease. In such a case an instruction is proper which tells the jury that though they believe from the evidence that the death of a member was caused in part by bodily infirmity or disease, yet that if the jury further believe from the evidence that said member received accidental injuries and that such bodily infirmity or disease was caused by or was a natural, direct, proximate and necessary result of such accidental injuries, and that such accidental injuries were the direct cause of his death, then the fact that such bodily infirmity or disease contributed to cause the death of such member, would not constitute a defense to the action.</p>

<p>Verdict—when set aside as against the evidence. A verdict manifestly against the weight of the evidence will be set aside on review.</p>

<p>Trespass. Appeal from the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding.</p>

<p>1. Evidence—what not competent in behalf of person charged with practicing medicine without license. In an action of debt to recover a penalty for practicing medicine without a license a pamphlet in nowise supported by the testimony of the defendant or other witnesses, showing the treatment employed by such defendant, is not competent in his behalf.</p> <p>2. Ckiminal law—what practicing medicine without license within meaning of statute. One who without a license professes and undertakes to heal by the laying on of hands, together with mental suggestion, comes within the provision of the law requiring a license to practice medicine.</p>

<p>1. Justice of the peace—when demands may be set off. Under the statute all demands within the limit of the justice’s jurisdiction should he brought in by the parties for determination and the defendant is entitled to interpose by way of set-off a debt accruing to him either under an implied or an express contract.</p> <p>2. Set-off—what proper subject of. Demands for work and labor performed, board, goods sold and delivered, are of such a nature that they may be set-off in an action ex contractu, whether they arise out of the subject-matter of the plaintiff’s suit or not.</p>

<p>1. Verdict—what essential to set aside, because of prejudice of juror. The testimony as to previously expressed opinions by persons called as jurors should be of a clear and satisfactory character in order to warrant setting aside a verdict.</p> <p>2. Conspiracy—what proof of, sufficient. Conspiracy is necessarily proved by circumstances and when the circumstances proven are such that no other reasonable conclusion can be drawn from the evidence but that the defendants are beyond a reasonable doubt guilty as charged, the conspiracy is proven.</p>

<p>1. Executions—effect of restraining as to one defendant. An execution, the enforcement of which is restrained as to one defendant, may be executed as to the remainder, in which case the execution runs against all defendants named in the judgment including the one against whom its enforcement is restrained.</p> <p>2. Amendments and jeofails—when execution may he amended. An execution may be amended provided there is that in the judgment by which to amend.</p>

<p>Action in case. Appeal from the Circuit Court of DuPage county; the Hon. Abthtje H. Feost, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of will county; the Hon. Douusucu DIBSLL, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding.</p>

<p>1. Vbbdict—when set aside as against the evidence. While it is true that it is the province of the jury to determine conflicts in the evidence and the duty of the court to give their verdict due and careful consideration, yet when it is apparent that, such verdict may have been' brought about by some error of law on the part of the trial court or by passion, prejudice or bias on the part of the jury, it is equally the duty of the appellate court to set aside the judgment.</p> <p>2. Vbbdict—when set aside notwithstanding remittitur. A large verdict reduced by a considerable remittitur may be set aside on review if such action would best tend to promote an impartial administration of justice, as such a verdict which does not show complete accord between the trial judge and the jury is not entitled to the same presumptions as being fair as are accorded to a verdict where no such discord appears.</p> <p>3. Instructions—when upon preponderance of evidence erroneous. An instruction upon this subject is erroneous which merely tells the jury “that the weight of the testimony does not necessarily depend upon the greater number of witnesses sworn on either side of the question in dispute,” but that the jury are at liberty, as jurors, to consider all the facts and circumstances appearing from the evidence in the case and determine from that which of the witnesses are worthy of the greater credit.</p>

<p>1. Mechanic’s liens—section 1 of act of 1908 construed. The words “authorized or knowingly permitted” contained in section 1 of the act of 1903 apply notwithstanding the person who contracted for the improvement had an interest in the property improved.</p> <p>2. Mechanic’s liens—“knowingly permitted” defined. One knowingly permits a thing to he done who, knowing that it is to be done, and being present when he can object, and who has an interest to object, does not object.</p> <p>3. Mechanic’s liens—against whom relief cannot he granted. A lien cannot be decreed against the interest of a party in land sought to be subjected if no allegations have been made against such party.</p> <p>4. Mechanic’s lien—what decree in favor of sub-contractors should provide. Under ordinary conditions the balance due the original contractor after payment of the preferred claims of laborers should be divided by decree pro rata among those who furnished material, but held, under the special facts of this case, that the award to the subcontractors, whose status under the evidence was practically that of an original contractor, should be extended beyond the sum due the original contractor and should be in full of all of the claims of such subcontractors.</p> <p>5. Appeals and ebbors—upon what error cannot he assigned. A question not raised in the trial court by the pleadings or otherwise cannot be first raised on review.</p>

<p>1. Counties—power to appropriate in aid of hospital. A county by virtue of statute is authorized to appropriate money to aid a non-sectarian public hospital for the sick and infirm located within its limits.</p> <p>2. Hospitals—what does not discharge public character of. A hospital is not prevented from being of a public character by the fact that those patients received by it who are able to pay are required to do so, or that it receives contributions from outside sources, so long as all the money it receives is devoted to the general purposes of charity, and none of it goes to the benéfit of any private individual or corporation organized for profit.</p> <p>3. Injunctions—when solicitor’s fees awarded upon dissolution will be sustained. An allowance of solicitor’s fees by way of damages upon the dissolution of an injunction will be sustained where they have been shown to be reasonable and the usual and customary charges for such services as were rendered. It is however better practice to show what contract, if any, was made with respect to the rendition of such services.</p> <p>4. Injunctions—when award of solicitor’s fees in favor of county will be sustained. Upon dissolution of an injunction an award of solicitor’s fees in favor of a county against whom the injunction ran, will be sustained, notwithstanding the attorney engaged to obtain the dissolution was not the state’s attorney whose duty it might have been to represent the interests of the county, it not appearing from the record for what reason the state’s attorney did not represent the county.</p>

<p>Bill for injunction. Appeal from the Circuit Court of LaSalle county; the Hon. Edgar Eidrbdge, Judge, presiding.</p>

<p>1. Statute of limitations—when declaration does not state new cause of action. An amended declaration filed in an action against a city for a sidewalk injury does not state a new cause of action where it differs from the original in that it sets up the statutory notice while the original declaration made no reference thereto.</p> <p>2. Verdict—when not disturbed as against the evidence. A verdict based upon conflicting evidence will not be disturbed on review if the evidence was sufficient to sustain the jury’s finding.</p> <p>3. Verdict—when not excessive. A verdict of $1,000 in an action on the case for personal injuries is not so excessive as to call for remittitur by the appellate court where a serious injury to the ankle has been shown.</p> <p>4. Trial—when argument of counsel will not reverse. Improper remarks in opening and in argument will not reverse unless resulting prejudice appears.</p>

<p>Assumpsit. Appeal from the Circuit Court of Carroll county; the Hon. Richabd S. Farrand, Judge, presiding.</p>

<p>Trespass. Appeal from the County Court of Lee county; the Hon. Robebt H. Scott, Judge, presiding.</p>

<p>1. Demurrer—when does not sufficiently rely upon Statute of Limitations. A demurrer does not sufficiently rely upon the Statute of Limitations where it alleges that “it does not sufficiently appear from said petition * * * that the petitioner is not now barred by the Statute of Limitations from demanding the relief prayed for”; it is essential that the demurrer set up that the petition demurred to shows that the action is so barred.</p> <p>2. Mandamus—nature of action. Mandamus is an action at law and is governed by the same rules of pleading that are applicable to other actions at law.</p> <p>3. Mandamus—how defense of Statute of Limitations must Be made. To a petition of mandamus the Statute of Limitations must be specifically pleaded; it cannot be raised by demurrer to the petition.</p> <p>4. Mandamus—when laches not defense. Laches short of the statutory period of limitations is no defense to an action of mandamus.</p> <p>5. Mandamus—when demand upon drainage district sufficient. Held, that the demand averred in this case upon the drainage trustees, to alter, repair and modify the drainage district was sufficient.</p> <p>6. Dbainagb—what not required of dissatisfied landowner. A landowner demanding of drainage trustees that the district be repaired, altered or modified is not required to do the surveying and civil engineering necessary to determine just where the difficulty lies or just how much or kind of repairs would be sufficient to give the proper outlet insisted upon.</p>

<p>Assumpsit. Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Wobthington, Judge, presiding.</p>

<p>Bill of interpleader. Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Worthington, Judge, presiding.</p>

<p>1. Negligence—how question to he determined. If the testimony is conflicting the question of negligence is one of fact to be determined hy the jury.</p> <p>2. Contbibtjtoby negligence—when person struck hy cars making flying switch not guilty of. A laborer at work in private yards containing railroad tracks, is not under the same obligations with respect to keeping a lookout as is one employed in railroad yards where engines and cars are frequently moving about. In the former case the question of the exercise of ordinary care is one of fact for the jury.</p> <p>3. Evidence—who competent to testify to matter of speed. Sufficient experience qualifies a witness to testify to the rate of speed at which a string of cars was moving; expert evidence is not essential.</p> <p>4. Evidence—when testimony as to failure to ring hell competent, notioithstanding no such allegation is contained in the declaration. Notwithstanding the declaration does not charge failure to ring a hell, it is competent to show the failure of the railroad company to ring a hell or blow a whistle as bearing upon the question of the exercise of due care hy the plaintiff.</p>

<p>Assumpsit. Appeal from the Circuit Court of Kane county; the Hon. Linus C. Ruth, Judge, presiding.</p>

<p>1. Evidence—should be confined to issues. Evidence which does not tend to prove any issue involved in á case is immaterial and should he excluded.</p> <p>2. Instructions—effect of refusing abstract proposition of law. An instruction though correct, if abstract in form, may be refused without the commission of error.</p>

<p>APPEALS AND ERRORS-when merits not subject to review. Upon reversal by the Supreme Court and remandment to the Appellate Court under a holding, among other things, that the trial court erred in excludin~g certain material evidence, the Appellate Court will not pass upon the merits of the cause.</p>

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

<p>1. Pleading—when averment of injuries sufficient to admit particular evidence. Held, that a declaration which after averring certain specific injuries, proceeded as follows: “and she thereby then and there suffered divers internal and external injuries, and she thereby also then and there received a serious and permanent shock to her spine and nervous system, and as a direct result and in consequence of said injuries she became and was sick, sore, lame and disordered,” etc., is sufficient to admit evidence of injuries to knees, ribs and nerves.</p> <p>2. Evidence—what improper form of hypothetical question. It is improper, after an expert has testified to finding certain physical injuries, to ask him if in his opinion a particular accident caused such conditions.</p> <p>3. Evidence—what not erroneous exclusion in action for sidewalk injury. It is not error to refuse to permit a witness to testify as to whether there was a beaten path leading onto or off the sidewalk in question at either end of it, nor is it error to refuse to permit a witness to testify as to whether a particular street or sidewalk in question was the usual way of travel from a particular point.</p> <p>4. Appeals and errors—what essential to preserve propriety of question for review. In order to preserve for review the propriety of a hypothetical question put to a medical expert, it is essential that an exception he preserved to the ruling of the trial court.</p> <p>5. Measure of damages—in action for personal injuries. The use of the phrase “doctor’s bill” in an instruction upon this subject is criticised in a dissenting opinion filed in this case by Mr. Justice Chytraus.</p>

<p>1. Verdict—when not disturbed as against the evidence. A verdict is final on a question of fact unless it is palpably against the clear weight and preponderance of the evidence.</p> <p>2. ' Instructions—need not contain repetitions. A correct instruction may properly be refused if its substance is contained in another given.</p>

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

<p>Appeals and Errors—when signing of hill of exceptions without jurisdiction. After the lapse of sixty days from the date of judgment and after the expiration of the time fixed by order for presenting the bill of exceptions, the Municipal Court is without jurisdiction either to extend the time for presenting such bill of exceptions, or to sign and seal the same.</p>

<p>1. Appeals and erbobs—when MU of exceptions not part of record. A bill of exceptions though signed and sealed is not part of the record unless filed with the clerk.</p> <p>2. Appeals and errors—within what time transcript from Municipal Court must he filed. The transcript upon an appeal from a judgment of the Municipal Court must be filed in the Appellate Court within forty days, after the date of the judgment unless an order has been entered by the Municipal Court within such forty days granting further time for the filing of such record.</p>

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

<p>Action in the case for slander. Appeal from the Superior Court of Cook county; the Hon. Albert C. Babnes, Judge, presiding.</p>

<p>, 1. Measure oe damages—approved form, in action for personal injuries. An instruction upon this subject, as follows, approved:</p> <p>“The court instructs the jury that if you find for the plaintiff, you will be required to determine the amount of his damages; in determining the amount of damage the plaintiff is entitled to recover in this case, if any, the jury have a right and they should take into consideration all the evidence pertaining to plaintiff’s physical injuries, if any, so far as the same are shown by the evidence; his suffering in body and mind, if any, resulting from such physical injuries, and such future suffering and loss of health, if any, as the jury may believe from the evidence before them in this case he has sustained or will sustain by reason of such injuries; his loss of time and inability to work and transact business, if any, on account of said injuries, after he has attained the age of 21 years, and such future loss of time and inability to work, if any, which the jury may believe from the evidence he will sustain on account of such injuries (all moneys necessarily expended or become liable for, for doctor’s bills, if any, while being treated for such injuries), and may find for him such sum as in the judgment of the jury will be a fair compensation for the injuries he has sustained or will sustain, if any, so far as such damages are claimed and alleged in the declaration.”</p> <p>2. Measure of damages—approved form in action for personal injuries. An instruction upon this subject, as follows, approved:</p> <p>“The court instructs the jury that if you find for the plaintiff, you will be required to determine the amount of his damage; in determining the amount of damage the plaintiff is entitled to recover in this case, if any, the jury have a right and they should take into consideration all the evidence pertaining to plaintiff’s physical injuries, if any, so far as the same are shown by the evidence; his suffering in body and mind, if any, resulting from such physical injuries and such future sufferings and loss of health, if any, as the jury may believe from the evidence before them in this case he has sustained or will sustain by reason of such injuries; his loss of time and inability to work and transact business, if any, on account of said injuries, after he has attained the age of twenty-one years, and such future loss of time and ability to work, if any, which the jury may believe from the evidence he will sustain on account of such injuries, and may find for him such sum as in the judgment of the jury will be a fair compensation for the injuries he has sustained or will sustain, if any, so far as such damages are claimed and alleged in the declaration.”</p> <p>3. Instructions—iohen appropriate to authorize recovery for future pain, etc. An instruction authorizing the allowance to the plaintiff in an action for personal injuries for future pain and suffering is proper where there is evidence tending to show that such plaintiff has not fully recovered from his injuries.</p>

<p>1. Streets—what ordinary travel. A person riding a bicycle upon a public street is using it for the purposes of ordinary travel and to such a person a municipality owes the duty to use ordinary care to keep the street in reasonably safe condition.</p> <p>2. Streets—how question of exercise of care by municipality determined. Whether the street in question, with a hole in the roadway a foot or fifteen inches deep, with sloping sides, was or was not reasonably safe for ordinary travel thereon, is a question of fact to be determined by the jury.</p> <p>3. Verdict—when not excessive. A verdict for $6,000 in an action for personal injuries is not excessive where it appears that as a result of the accident the plaintiff, whose left leg had theretofore been amputated below the knee, sustained a permanent dislocation to the hip of his right leg.</p>

<p>1. Verdict—effect of silence as to one defendant. A verdict finding one defendant guilty is in effect a verdict in favor of another defendant not mentioned. The defendant so found guilty has no right to have the issues so determined again submitted to the jury, even though such jury has not been discharged.</p> <p>2. Custom—how question of existence of, determined,. Whether there was a rule, practice or custom giving to the cars of one traction company a superior right of way over the cars of another traction company at a particular crossing, is a question of fact, where the evidence is conflicting, to he determined by the jury.</p> <p>3. Negligence—care required at street crossings. If the cars of one traction company have no superior right of way to the cars of another traction company at track crossings, the jury is justified in finding that such traction company having no superior right of way was guilty of negligence if its motorman when approaching such crossing saw the car of the other company at a stop and proceeded forward without keeping his car in such Control as to enable him to avoid a collision with such other car so standing still if it should suddenly be started up.</p>

<p>Action in case for personal injuries. Appeal from the Superior court of Cook county; the Hon. Homes Abbott, Judge, presiding.</p>

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

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

<p>1. Amendments and jeofails—when granting of leave after verdict ground for reversal. To grant an amendment after verdict which changes the form of the action and the measure of damages applicable, without giving leave to reply and retry the case, is so harmful to the defendant as to require a reversal.</p> <p>2. Measure of damages—in action of fraud and deceit. In an action for fraud and deceit the measure of damages is the difference in value between the property purchased and its hypothetical value had the facts represented been true.</p> <p>3. Measure of damages—in action upon rescinded contract. In an action upon a rescinded contract the measure of damages is the cash consideration paid for the property acquired or the value of the security exchanged for such property.</p> <p>4. Judicial notice—of what taken. Judicial notice will be taken of territorial distances in a municipality within the territorial jurisdiction of the court.</p>

<p>1. Master and servant—when ripsaw defective. A ripsaw is defective where because of the want of a board or cover thereto the wood and slivers fly in the face of the operator.</p> <p>2. Master and servant—when doctrine of assumed risk does not apply. A servant does not assume the risk of injury from a defective machine where he has continued at work at such machine not beyond a reasonable time under a promise of his master to repair; the servant has a right to rely upon such a promise when made with respect to a simple device if the machine as a whole was so dangerous that he would not have been justified in himself undertaking to make the repairs.</p> <p>3. Master and servant—who vice principal. A servant who is the medium of communication between the master and his servants, who was the proper person to make repairs when requested and who had the power to dismiss a servant requesting such repairs, is a vice principal within the meaning of the law.</p>

<p>1. Evidence—effect of admission of counsel. Where an attorney during a trial of a cause makes admission of a particular fact in issue, he is thereafter estopped to deny such fact, and no proof thereof is required.</p> <p>2. Verdict—when not disturbed as against the evidence. A verdict which is not against the clear preponderance of the evidence will not he set aside on review as against the weight of the evidence.</p> <p>3. Verdict—when not excessive. Held, that a verdict for $10,000 rendered in an action on the case for personal injuries was not excessive where it appeared that mental and brain trouble of a permanent character ensued as a result of the injury in question.</p> <p>4. Neslioence—when doctrine res ipsa loguitur does not apply. A workman engaged in and about the construction of a building is not entitled to claim the benefit of the doctrine res ipsa loguitur if he is injured by reason of being struck by a falling brick; but, held, in this case, that the evidence justified a verdict finding negligence in the defendant where such a workman was so injured.</p> <p>5. Instructions—what not oral, within meaning of law. A court may orally withdraw an instruction which it has read to the jury and may likewise orally direct the jury to disregard the instruction so read.</p> <p>6. Instructions—when not error to refuse leave to present additional. When the jury is about to retire to consider of their verdict, it is not error for the trial court to refuse to permit counsel to prepare and present an additional instruction in lieu of a bad instruction which the court has first read and then orally withdrawn from the consideration of the jury.</p>

<p>Action in debt. Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.</p>

<p>1. Bonds—when liability as at common law enforced. If a bond initially given as a statutory bond does not comply with the statute, it is none the less valid and will be enforced as a common law obligation.</p> <p>2. Bonds—when town collector's bond substantially in compliance with statute. The town collector’s bond in question in this case held substantially in accord with the statute providing therefor.</p> <p>3. Bonds—when surety liable upon town collector’s. Held, that under the terms of the bond of the town collector in question in this case, treated either as a statutory or as a common law obligation, that the sureties upon such bond were liable for the failure of the tpwn collector to account for moneys reported by him as in Ms possession where he had deposited the same in a bank of his own choosing.</p>

<p>Trespass on the case. Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding.</p>

<p>Trespass on the case. Appeal from the Superior Court of Cook county; the Hon. Akthub H. Fbost, Judge, presiding.</p>

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

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

<p>1. Chattel mortgages—what essential to justify foreclosure under insecurity clause. In order to justify the foreclosure of a chattel mortgage under an insecurity clause and the appointment of a receiver, facts must he stated upon which the mind of the court can be attuned to the conclusion that the security was imperiled; such facts must arise from the acts of the parties or changes in values occurring subsequent to the execution of the mortgage.</p> <p>2. Receiverships—who disqualified to act. A receiver should be an impartial and indifferent person. Neither a party to a suit nor a trustee, whose business it is to watch a receiver, should be appointed. These rules however relax in the interests of all the parties and are therefore not without exception.</p> <p>3. Receiverships—what essential to appointment. Either the bond required by statute should be given or the court should find upon notice and a full hearing that the bond required by statute shall be dispensed with in order that a receiver may properly be permitted to act.</p> <p>4. Receiverships—when order of appointment indefinite. Held, that the order appointing the receiver in this cause was indefinite and did not cover all of the contingencies which should be provided for by such an order.</p>

<p>1. Quo warranto—what essential to maintenance of. In order to maintain an information to oust a person holding the office of crib-keeper of a municipality, it must appear from the petition that there is such an office de ñire in such municipality.</p> <p>2. Quo warranto—when judgment informal. A judgment in quo warranto as follows: “It is hereby ordered, adjudged and decreed by the court in favor of the relator and of ouster with costs”, is informal.</p>

<p>1. Pleading—what declaration need not allege. A declaration relying upon a bond which provides that suit hereon must be brought, if at all, within a specified period, need not set up excuses for failure to bring suit within such time in order to state a cause of action.</p> <p>2. Pleading—what question not raised 6y demurrer. A demurrer raisee no question as to whether a plea is or is not regularly filed.</p> <p>3. Statute oe Limitations—what does not adjudicate defense of. To overrule a demurrer to a declaration which excuses in advance of pleading the defense of limitation, is not to adjudicate the question of the propriety of the limitation defense, as such defense must he set up by way of plea and the allegations of excuse contained in the declaration are no part of the cause of action.</p> <p>4. Contracts—what limitation period for commencement of action not void. A provision of a bond requiring suit to be brought thereon, if at all, within a specified period, is not unreasonable, if where at the time of the expiration of the limitation the amount of damages sustained by reason of default under the bond could not be ascertained,—a technical breach having occurred action might be brought and at least nominal damages recovered by virtue of which subsequent assessments of damages could be had under the statute.</p> <p>5. Bonds-—nature of assessments of damages under subsequent breaches. Assessments of damages, under section 20 of the Practice Act, are not new suits.</p>

<p>1. Evidence—effect of non-production. A jury is entitled to infer that evidence not produced which a party might have produced, if produced might have been unfavorable to such party.</p> <p>2. Electricity—care required of those employing. A corporation employing electric wires of high voltage in connection with its business is bound to exercise a degree of care commensurate with the danger; such a company is required properly to insulate such wires.</p> <p>3. Ordinance—duty to observe provisions of, requiring protection of electric wires. An electric light company which accepts a franchise ordinance is bound to obey its provisions requiring insulation and protection of electric wires; its failure so to do constitutes actionable negligence in favor of a person injured in consequence.</p> <p>4. Contributory negligence—what not. A person who was required in connection with his duty to handle electric light wires is not required to examine critically every part of such wires; such a person has a right to assume that the owner of such wires has performed its duty properly to insulate and protect the same.</p>

<p>1. Mortgages—character of, given by wife to secure husband’s debt. A wife who gives a mortgage to secure her husband’s debt is bound as a principal.</p> <p>2. Election—when may be rescinded even as against surety. The holder of a mortgage security may rescind an election to declare the principal sum due and dismiss a bill to foreclose even as to a surety where the mortgage specifically provides for the right of rescission.</p>