Volume 153 — Illinois Appellate Court Reports

<p>Bill in equity. Appeal from the Circuit Court of Randolph county; the Hon. Louis Bebnbeuteb, Judge, presiding.</p>

<p>1. Fraternal benefit societies—who ineligible as beneficiary. A brother-in-law of a member is not eligible as a beneficiary under a benefit certificate.</p> <p>2. Fraternal benefit societies-twTio takes fund in absence of designation of eligible beneficiary. In the absence of the designation of an eligible beneficiary in the certificate issued by a fraternal benefit society, the fund passes to the heirs at law and next of kin of the member.</p> <p>3. Fraternal benefit societies—who may question eligibility of beneficiary. The right to question the eligibility of a beneficiary does not rest in the society alone but such question can be urged by the heirs at law of the deceased member.</p> <p>4. Pleading—when offer to do equity not essential to relief. Relief may be awarded notwithstanding the complainant or petitioner has not offered to do equity, the court having the power by its decree to compel the doing of equity by such complainant or petitioner.</p>

<p>Bastardy. Appeal from the Circuit Court of Clay county; the Hon. A. N. Tolliveb, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of East St. Louis; the Hon. Mortimer Millard, Judge, presiding.</p>

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

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Richland county; the Hon. J. R. Creighton, Judge, presiding.</p>

<p>1. Insurance—how defense under “vacant or unoccupied clause” should be determined. The meaning of the terms “vacant, unoccupied or uninhabited” is a question of law; whether at the time of the fire the house was “vacant, unoccupied or uninhabited” is a question of fact.</p> <p>2. Insurance—when defense under “vacant and unoccupied clause” not established. Held, that the enforced absence of the occupant of the premises in question under the circumstances in this case, was not such a breach of the conditions of the policy as to render it void, as a matter of law.</p> <p>3. Insurance—what waives proofs of loss. Denial of liability waives proofs of loss; likewise, the interposition of several matters of defense, without specifying as a defense the failure to present proofs of loss.</p> <p>4. Instructions—must not single out evidentiary facts.. An instruction is improper which singles out a mere evidentiary fact which combined with other facts went to prove or disprove the main fact.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Anthony J. Clarity, Judge, presiding.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago;, the Hon. Judson F. Goma, Judge, presiding.</p>

<p>1. Contracts—what does not justify abandonment. A contractor who agrees to build a house for a specific sum is not justified in refusing to carry out his undertaking because of the error of a subcontractor in making his bid which error induced such subcontractor to refuse to accept the work.</p> <p>2. Measure of damages—in action for refusal to carry out building contract. In case of the contractor refusing to enter upon and perform a building contract, the measure of damages is the difference between the cost of constructing, by contract, the building the contractor agreed to put up, and the fair cash market price of erecting such building.</p>

<p>Forcible detainer. Error to the Municipal Court of Chicago; the Hon. McKenzie Cieeand, Judge, presiding.</p>

<p>Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.</p>

<p>Contested claim in court of probate. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.</p>

<p>Negligence—when proof shouting cause of action will not sustain recovery. A plaintiff who fails to prove the cause of action alleged in his declaration cannot recover although he may prove another and different cause of action; in such a case it is not only a variance hut it is also a failure of proof.</p>

<p>1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight oí the evidence unless clearly and maniiestly so.</p> <p>2. Instructions—what not singling out particular evidence. To instruct singly with respect to a particular substantive defense, is not the singling out or selection of a particular fact.</p>

<p>Appeal from the Circuit Court of Cook County; the Hon E. W. Clifford, Judge, presiding.</p>

<p>Action in case for personal injury. Error to the Municipal Court of Chicago; the Hon. Mancha Beuggemeyer, Judge, presiding.</p>

<p>Bill for injunction. Error to the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.</p>

<p>Scire facias—when judgment rendered upon reversed. A judgment rendered upon a scire facias to add a party to a judgment will he reversed if the evidence does not sustain the same.</p>

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

<p>1. Instructions—when present or former employment element in determining credibility of witness. The mere fact of present or former employment of a witness by one of the parties, is not an element in determining his credibility or the weight of his testimony, unless in addition it be shown that he has an interest in the result of the litigation.</p> <p>2. Instructions—when refusal upon slight preponderance erroneous. In a close case an instruction on this subject as follows:</p> <p>“The court instructs the jury that while, as a matter of law, the burden of proof is upon the plaintiff, and it is for her to prove her case by a preponderance of the evidence, still if the jury find the evidence hearing upon the plaintiff’s case preponderates in her favor, although but slightly, it will be sufficient for the jury to find the issues in her favor, and find a verdict against the defendant,” should be given; the refusal is not reversible error.</p> <p>3. Instructions—when cautioning against sympathy erroneous. The use of the word “even” in an instruction telling the jury “that sympathy for the injuries and disabilities of the plaintiff even though you believe they exist,” though erroneous as an expression of doubt on the part of the judge as to the existence of such injuries and diabilities, is not reversible error.</p> <p>4. Instructions—when upon exercise of ordinary care erroneous. An instruction which tells the jury that a mere failure on the part of the plaintiff to exercise ordinary care to avoid being injured will bar a recovery, is erroneous; such a failure must have been at or about the time of the accident, at the place of the accident, and of such a character as to have contributed to the injury.</p> <p>5. Instructions—when error to instruct for defendant. Where the declaration contains a single count wherein the defendant’s negligence is alleged disjunctively in various forms, the proof of any one of which would sustain a judgment for plaintiff, it is reversible error to instruct the jury to find for the defendant unless the plaintiff proved the defendant guilty of negligence “in the manner charged in the declaration.”</p> <p>6. Appeals and errors—lohen recitals of hill of exceptions do not justify inference of clear preponderance in favor of defendant. The Appellate Court is not justified ini concluding that there was such a clear preponderance of the evidence in favor of the defendant as to require a judgment in its favor to be upheld despite serious errors in the instructions, where the bill of exceptions after giving the substance of the directly conflicting testimony of plaintiff and one witness for her and of the defendant’s motorman and conductor, recites that “there were other witnesses to the occurrence called on behalf of the defendant and other witnesses to the injuries on behalf of both parties not herein referred to or abstracted.”</p>

<p>Mechanic’s lien. Error to the Municipal Court of Chicago the Hon. Frank E. Reed, Judge, presiding.</p>

<p>1. Partnership—when inactive partner bound. One inactive in the affairs of a partnership concern is hound by what an active partner, who has been entrusted with the care and management of the business, says and does with respect to the conduct and management of such business, and even though the claim is made that the property affected was individual property, yet such inactive partner would be bound if such property related to the firm property and business and if it appears that the proceeds thereof were used for the benefit of the firm.</p> <p>2. Partnership—what amounts to ratification. The receiving and retaining of the consideration of the transaction sought to he repudiated, is a ratification of the acts of the agent who effected such transaction.</p> <p>3. Instructions—-when slight errors will not reverse. Slight errors will not reverse if the result reached is just.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.</p>

<p>1. Master and servant—when former not liable to third party for acts of servant. If a servant employed by a master in the driving of a coal wagon has been instructed not to permit boys to ride with him on such wagon and he violates such instructions and the boy riding upon such wagon is injured, the master is not liable.</p> <p>2. Negligence—what not attractive nuisance. Held, that a coal wagon in active use is not an attractive nuisance so as to render the owner thereof liable for an injury to a boy who is permitted to ride thereon contrary to specific instructions by the master.</p>

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.</p>

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

<p>1. Negligence—when telegraph company liable for failure to deliver telegram. If a telegraph company receives and fails to transmit and deliver a telegram by an insurance company to its agent, which on its face shows that it pertains to the cancellation of insurance, the telegraph company is liable for the amount paid by the insurance company in settlement of the policy, a fire having occurred, which policy had such telegram been delivered, would have been cancelled prior to the fire which resulted in the loss.</p> <p>2. Evidence—when erroneous admission of parol, will not reverse. If the parol evidence erroneously admitted was merely cumulative and the fact which it tended to prove was otherwise clearly and properly established, a reversal will not be ordered.</p> <p>3. Measure of damages—in action for failure to deliver telegram. If as a result of the failure to transmit and deliver a telegram an insurance company was required to pay a fire loss, the proper measure of damages to be awarded such company is the amount of the loss so paid plus interest at five per cent from the date of payment.</p>

<p>1. Deam-shop Act—what evidence not incompetent. Held, that notes and chattel mortgages were competent as tending to show the straits to which the family of the intoxicant were reduced.</p> <p>2. Evidence—how cause for discharge established. If a person has been discharged and knows the cause of such discharge, he is competent to testify thereto.</p> <p>3. Vebdicts—what does not vitiate sealed verdict. It is not error for the court to receive a verdict of a jury even though they may have been allowed to separate after they had signed and sealed it, if when the jury reappeared in court at the hour of its convening, such verdict is read and the jury is polled and acknowledge that such verdict is their verdict.</p>

<p>1. Statute oe Limitations—when new cause of action not set up. In an action on the case for personal injuries if the original and amended declaration count upon the same negligence but the amended declaration adds a promise by the master to repair, a new cause of action is not set up.</p> <p>2. Verdicts—when upon exercise of ordinary care not disturbed. While it may be admitted that different minds might not agree as to whether the plaintiff was in the exercise of due care, if it cannot be said that the minds of reasonable men cannot agree that he was not in the exercise of such care at the time he was injured, the verdict of the jury will not he disturbed.</p> <p>3. Master and "servant—when doctrine of assumed rish does not preclude recovery. If the servant is ordered to do certain work and the machinery furnished by the master for the purpose of doing such work is defective or out of repair and the hazard assumed in obeying the order and doing the work was not so imminent that a person of ordinary prudence would not have incurred it, then the doctrine of assumed risk has no application.</p> <p>4. Master and servant—when doctrine of assumed rislc does not apply. While a belt in itself is simple and when not in action harmless, but when in use as an emery wheel, the motive force of which is steam, and out of repair- and defective, it is dangerous to the operator; held, under the evidence in this case, that the doctrine of assumed risk as applied in what are known as the “simple tool” cases, did not obtain.</p> <p>5. Master and servant—when promise to repair may be relied on. The law implies a promise to repair will be fulfilled within a reasonable time, during which time the servant has a right to rely on such a promise. In this case it appears there were two promises.</p>

<p>1. Evidence—what tends to show customary charge. Notwithstanding the plaintiff suing for physician’s fees testified that all physicians do not charge the same fee, yet a verdict for such plaintiff will be sustained if he has further testified that the charges made by him were the usual and customary rate charged by physicians for like services in the locality where the same were rendered.</p> <p>2. Tbiai—when remarks of counsel will not reverse.' Notwithstanding remarks of counsel may be improper they will not reverse if induced by the action of the complaining party.</p>

<p>1. Ordinances—for regulating supply of water construed. Ordinances of a city regulating and governing its supply of water to-citizens, constitute such rules and regulations which are not only binding upon the city, but in faith of which the consumer will be presumed to have entered into such relationship with the city, and such ordinances held alike binding upon each.</p> <p>2. Ordinances—what does not affect construction. Contemporaneous construction by the water department of a city of the right to a refund under similar or like cases to the one before the court, is immaterial and will in no wise affect the pending litigation.</p> <p>3. Ordinances—how remedial construed. An ordinance remedial in its nature' should be so construed as to give effect to its intent and purpose.</p> <p>4. Ordinances—when abrogate common law rule with respect to voluntary payment. Held, that by virtue of the ordinance in question in this case, payments by a citizen for water rates, though voluntary, might be recovered if under the evidence it appeared that the amount charged to such citizen and paid by him was excessive.</p> <p>5. Statute of Limitations—when five-year period applies. In an action against a city to recover excessive water rate charged by it and paid by a citizen, which action is sustainable by virtue of the existence of a special ordinance, held, that such ordinance, of itself, did not render the contractual relation existing between the city and the citizen written in character, and that, therefore, the five-year period of limitation was applicable.</p> <p>6. Interest—when not recoverable. Excessive water rates voluntarily paid by a citizen to a city where recoverable by virtue of a special ordinance, do not justify an allowance of interest where the return of such money has not been vexatiously withheld.</p>

<p>1. Contributory negligence—when minor not guilty of. While the actions of a minor in one of mature years might be held as amounting to contributory negligence, yet it may not be so held with respect to such minor, the question being one for the jury to determine.</p> <p>2. Instructions—when refusal of correct will not reverse. However correct the principles of law stated in instructions refused may have been, a reversal will not be awarded if the merits were not affected by the refusal of such instructions.</p> <p>3. New trial—when newly discovered evidence does not justify. Newly discovered evidence will not justify the granting of a new trial if it is cumulative in character and if it does not appear that due diligence prior to the trial was exercised with respect to obtaining it.</p>

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

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

<p>Intervening petition. Appeal from the Circuit Court of Cook county; the Hon. Juman W. Mack, Judge, presiding.</p>

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

<p>1. Master and servant—when latter hound to obey order. A servant is as much bound to obey the order of an assistant foreman as he is to obey the order of the foreman himself.</p> <p>2. Master and servant—duty of former as to elevator. If a plaintiff uses an elevator in control of his master in obedience to an order of such master in the course of his employment and in furtherance of its object, the master is bound to the exercise of reasonable care to see that such elevator is reasonably safe for the use of such servant.</p> <p>3. Master and servant—duty of inspection. If from the evidence the jury might properly find that beams were unsound and defective and that such an inspection as the master in the exercise of reasonable care was required to make, would have disclosed such defective and unsound condition and the master failed to make such inspection, then from such facts the jury might properly find the defendant guilty of negligence.</p>

<p>Assumpsit. Appeal from the Circuit Court of Cook county; the •Hon. John A. Gray, Judge, presiding.</p>

<p>Verdicts—when set aside as against the evidence. If the evidence does not justify on the facts the verdict as rendered, it will be set aside on review.</p>

<p>Usury—when hill of complaint does not show right to relief against. Held, that the bill of complaint in this case, does not, without amendment, entitle the complainant to relief.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavanaqh, Judge, presiding.</p>

<p>Action in case for personal injuries. Error to the Superior Court of Cook countythe Hon. Theodore Brentano, Judge, presiding.</p>

<p>1. Contributory negligence—when question not one of law. Unless it can be said that the plaintiff’s conduct was so clearly and palpably negligent that all reasonable minds would so pronounce it without hesitation or dissent, the question of whether he was guilty of contributory negligence is one of fact to be determined by the jury.</p> <p>2. Master and servant—what not assumed rislc, as a matter of law. The danger that an operator will forget and therefore fail to perform his promise to hold up his elevator while the plaintiff is doing work in the pit of the shaft, is not a danger open and obvious, and it is for the jury to determine whether the doctrine of assumed risk should have application.</p> <p>3. Master and servant—who not fellow-servants as a matter of law. A servant employed in working in the basement of a building, held, under the evidence, as a matter of law, not a fellow-servant of an elevator operator.</p>

<p>Evidence—when, as to effects of personal injuries incompetent. Testimony that hysteria has an “awful marked effect” is incompetent if it does not appear from the evidence either that such marked effect had occurred in the particular case or that there was a reasonable probability that it would occur.</p>

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

<p>1. Bankruptcy—liability of preferred creditor. A creditor who has been unlawfully preferred, upon demand of the trustee should return the property received to the situs of the bankrupt within the jurisdiction of the court exercising jurisdiction of the estate.</p> <p>2. Assumpsit—when lies by trustee in bankruptcy. Assumpsit lies by a trustee in bankruptcy to recover goods delivered to a creditor of the bankrupt by way of unlawful preference—the action of tort is, however, the usual remedy adopted.</p>

<p>1. Evidence—effect of admission of counsel. An admission pf counsel made in open court with respect to the issues of a pending cause, has the same force and effect as testimony.</p> <p>2. Negligence—what relieves injudicious act from imputation of. An emergency order necessarily given on the spur of the moment in an effort to avoid an accident, though injudicious, is not subject to the imputation of negligence because of the lack of time to form a correct judgment.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavanagh, Judge, presiding.</p>

<p>1. Fbateenal benefit societies—when change of beneficiary becomes effective. Held, that if a member and his beneficiary have done all that they could do to effect a change of beneficiaries in accordance with the by-laws of the society, that the legality of such change would not be affected by any neglect on the part of an officer of the society or by the fact that the certificate with the new beneficiary was issued post-dated ¿he death of the member.</p> <p>2. Evidence—when admission of affidavit for continuance containing hearsay, will not reverse. If counsel has specifically consented to the introduction of an affidavit for a continuance containing hearsay, he cannot subsequently obtain a reversal upon the ground of the admission thereof.</p>

<p>Action on the case. Appeal from the Superior Court of Cook county; the Hon. Beit M. Smith, Judge, presiding.</p>

<p>Trover. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Ththh-l, Judge, presiding.</p>

<p>1. Contributory negligence—when failure to loolc and listen does not constitute. One riding upon a wagon with duties to perform thereon, having no control over the driver thereof, is not guilty of contributory negligence as a matter of law in failing to keep a lookout for approaching street cars.</p> <p>2. Negligence—when violation 'of ordinance will not bar recovery. One employed upon a wagon but not having control thereof or of the driver thereon, will not be barred of a recovery for injuries sustained by such wagon being struck by a street car because of such wagon not being provided with a light as required by ordinance.</p> <p>3. Instructions—approved form as to ordinary care. An instruction upon this subject, as follows, approved.</p> <p>“The court instructs the jury, as a matter of law, that the defendant was not required to exercise toward the plaintiff the highest degree of care, but the said defendant was only required to exercise toward the plaintiff ordinary care on the occasion in question, and ordinary care is such care as a person of ordinary prudence would exercise under the same or like circumstances, and if the jury believe from the evidence, under the instructions of the court, that the defendant exercised just before and at the time of the accident in question, ordinary care to avoid injuring the plaintiff, but that, nevertheless, the plaintiff was injured, then they should find the defendant not guilty.”</p> <p>4. Instructions—approved form as to credibility of witnesses. An instruction upon this Subject as follows, approved:</p> <p>“The jury are instructed that they are the judges of the credit that ought to be given to the testimony of the different witnesses, and that they are not to believe anything to be a fact because a witness has stated it to be so, provided the jury believe from all the evidence that such witness is mistaken about such fact or has wilfully and knowingly testified falsely in regard thereto.”</p>

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

<p>1. Evidence—what competent upon value of plaintiffs time. Held, that it was competent for the plaintiff in an action on the case for personal injuries to give Ms opinion as to the value of his time as a bartender serving in his own saloon.</p> <p>2. Evidence—effect of failure to strike out unresponsive answer. An improper refusal to strike out an unresponsive answer will not reverse if no harm appears to have resulted.</p> <p>3. Instbuctions—approved form as to credibility of witnesses. An instruction upon this subject, as follows, approved:</p> <p>“The jury are the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony.”</p> <p>4. Instructions—when omission of phrase “as to such fact” will not reverse. The words “as to such fact” are to be understood at the close of an instruction as follows:</p> <p>“The court instructs the jury, that they are not bound to believe anything to be a fact because a witness has stated it to be so, providing they believe from the evidence that the witness is mistaken or has testified falsely.”</p>

<p>Appeals and ebbobs—when manner of reading instructions will not Be revieived. If complaint is made as to the manner in which the trial judge read instructions to the jury, the conduct of the judge in such regard must be shown by statements contained in the bill of exceptions and not by affidavits.</p>

<p>Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Oscab E. Heabd, Judge, presiding.</p>

<p>Negligence—what essential to establish, as against motorman in • charge of car colliding with wagon. To charge a motorman. with negligence in a case where it appears that the car upon which he was employed collided with a wagon, it must be shown that such motorman had notice of the danger “at least long enough before the injury inflicted to have enabled him to form an intelligent opinion as to how the injury might be avoided and apply the means.”</p>

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

<p>Vebdicts—when not disturbed. A verdict will not be set aside on review if it appears that the same is supported by the evidence.</p>

<p>1. iK-STEUcnoNS—when, as to obligation of carrier to passengers, properly refused. An instruction is properly refused which tells the jury that “common carriers of passengers are required to use all human care, vigilance and foresight they can reasonably use in view of the character and mode of conveyance adopted, to prevent accidents to passengers;” the vice of such instruction being that it does not contain the limitation that such care, vigilance and foresight is required to be such as is consistent with “the practical operation of the road and the exercise of its business as a carrier.”</p> <p>2. Instructions—when, as to damages which may be awarded, properly refused. The plaintiff’s recovery must be confined to the damages charged in the declaration and an instruction which does not so limit the jury is properly refused.</p> <p>3. Instructions—when refusal to give, upon question of damages, mil not reverse. A refusal to give a proper instruction asked by the plaintiff upon the question of damages, will not reverse if the question of liability has been resolved against the plaintiff.</p>

<p>1. Evidence—incompetency of conclusion. Nothing is more erroneous and dangerous than to permit a witness to determine the law upon questions involved in a ease on trial, through failure to require the witness to testify to facts instead of giving his conclusions involving propositions of law as well as of fact.</p> <p>2. Assumpsit—when account stated arises. When a rendered statement of an account has been retained, without objection to the account or to the items contained therein, for such a length of time that the recipient has had a reasonable time within which to express objections, then he is in law regarded as having waived his objections, if any he had. Thereafter, if an action as upon an account stated be brought upon the claim, the original character or form of the debt, as well as what kind of evidence was necessary to establish the same, is unimportant.</p> <p>3. Assumpsit—what does not affect employment of account stated. An account which becomes stated by virtue of retention without objection is none the less so because of the omission by mistake of an item which should have been included.</p>

<p>1. Master and servant—when doctrine of assumed rislc precludes recovery under particular count. If the plaintiff confessedly knew of the defect of which he complained in a particular count, he cannot recover, nor can he recover if the evidence fails to show that the master had knowledge ©f such defect or that it was of such a nature and had existed for so long a time that in the exercise of reasonable care such master should have known of it.</p> <p>2. Pleading—when element of negligence treated as contained in declaration. If a case has been tried by the parties upon the theory that a particular count did by some averment contain the element of negligence, such count will be so treated by the Appellate Court even though it may not have contained such element of negligence.</p> <p>3. Evidence—burden of proving cause and manner of injury. The burden of proving the cause and manner of an injury for which recovery is sought, rests upon the plaintiff; the Appellate Court will not, for the benefit of either party, indulge in speculation as to the manner in which the plaintiff’s injury occurred.</p> <p>4. Verdicts—duty of Appellate Court to review sufficiency of evidence. Whenever the question is raised in the Appellate Court as to the sufficiency of the evidence, in poiht of fact, to sustain a verdict and judgment, it becomes the duty of that court carefully to analyze such evidence and to determine where the preponderance lies, even where there is a sharp conflict in the testimony of witnesses.</p>

<p>Assumpsit. Error to the Circuit Court of Cook county; the Hon. Solon Philbrick, Judge, presiding.</p>

<p>1. Common cabbiebs—what part of contract to carry passenger. The statutory obligation to redeem a ticket at its full price if not used, enters into the contract of carriage made by the carrier with a passenger.</p> <p>2. Common caebiees—validity of provision requiring use of ticket upon particular day. A notice on a ticket issued by a carrier to a passenger to the effect that it shall he used on a particular day, is proper, and such a regulation is reasonable and valid.</p> <p>3. Common cabbiebs—what not waiver of valid regulation printed upon ticket. If a ticket issued to a passenger providing for its use upon the day of its date is punched by several successive conductors, but not retained, a succeeding conductor may properly refuse to accept the same upon the ground that it was being used on a day other than its date.</p> <p>4. Passengeb and cabbiee—-when nominal damages only can Be recovered upon expulsion. Nominal damages only can he recovered for an expulsion of a passenger upon the ground of the invalidity of his ticket, if, at the time of such expulsion, he had in his possession sufficient money to pay his fare.</p>

<p>Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Mancha Bruggemeyer, Judge, presiding.</p>

<p>1. Parties—when objection to identity of plaintiff with party named in contract comes too late. In an action upon a contract an objection to the identity of the plaintiff with one of the parties to such contract, held, under the circumstances Qf this case, to come too late when first raised on appeal.</p> <p>2. Contracts—when previous dealings incompetent to aid construction. Previous dealings are not competent to aid the construction of a contract if the contract upon which the previous dealings were predicated was not identical with the one under construction.</p>

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

<p>1. Master and servant—when doctrine of assumed rish precludes recovery. If the danger or risk was apparent and obvious to the servant, was incident to his employment, it is deemed to have been assumed, and if it resulted in the injury complained of, vfill bar a recovery.</p> <p>2. Master and servant—when minor subject to doctrine of assumed rislc. If the servant is of sufficient age and discretion to understand and appreciate the risk to which he is exposed, he is held to have assumed the ordinary hazards of his employment.</p> <p>3. Contributory negligence—what conduct in use of machine com stitutes. Held, that it was contributory negligence which barred a recovery for the servant to attempt to grab and pull off a piece of string or cloth from a roller revolving 300 times a minute.</p>

<p>1. Pleading—effect of demurrer to Mil in chancery. A demurrer admits all facts which are well pleaded in the bill; a general demurrer, though special in form, cannot reach mere technical defects unless they are pointed out.</p> <p>2. Strikes—how far legal. There is no question of the legal right of employes individually and collectively to strike and to announce to their employers their intention to strike, and their reasons therefor, where no contract rights are involved.</p> <p>3. Strikes—when illegal. If no trade dispute exists between employer and employe and the controversy is between the employes over a matter not connected with their employment, and a strike is inaugurated against the employer to compel or coerce him to discharge an employe unless such employe will become a member of the union, or to force the employe against his will to join the union, such strike is without right and illegal and the rights of such employe are unlawfully interfered with, and he has a right of action for all losses directly resulting from such action.</p> <p>4. Injunctions—when lie to restrain acts designed-to effect discharge of complainant. In an action by former members of a union against such union and its officers, an injunction may properly be granted restraining such defendants and their agents from plotting, planning and conspiring, wrongfully and unlawfully, to do any act or in any manner whatsoever attempt to'coerce or intimidate the employer of the complainants for the purpose of procuring, bringing about or causing the discharge or dismissal of complainants as employes because of the fact of the resignations of such employes from such union, and the propriety of the injunction is not affected if it can be said that the purpose and object of the conspiracy and threats was to compel such complainants’ discharge only in the event that they refused to withdraw such resignations and again join such union.</p> <p>5. Injunctions—jurisdiction to restrain conspiracy. Chancery has jurisdiction to restrain an unlawful conspiracy because of the discharge of a number of employes, if suits at law would afford an inadequate remedy and if a multiplicity of actions would result from the failure of equity to interfere.</p>

<p>1. Negligence—how question of exercise of care by motorman at street crossings determined. What is ordinary care depends upon conditions which demand its use. Conduct which at some crossings and under certain circumstances would be ordinary care, would not be at others. The question is one to be determined by the jury from all the facts and circumstances in evidence.</p> <p>2. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so. x</p> <p>3. Verdicts—when excessive in action for death caused by alleged wrongful act. A verdict for $3,500, held, excessive in view of the fact that a recovery could only be predicated upon the pecuniary loss of the next of kin of the plaintiffs intestate.</p>

<p>1. Contributory negligence—when person crossing behind street car guilty of. One who crosses behind a street car looking towards a car coming in the same direction as the one behind which he is crossing, without giving heed to a car coming from the opposite direction on the track which he was about to cross, is, if struck by the car coming from such opposite direction, guilty of such contributory negligence as will bar a recovery.</p> <p>2. Contributory negligence—when minor may be guilty of. A boy of average intelligence, of the age of twelve years, is hound to exercise at least such care and caution for his own safety as one of his age, intelligence, capacity and experience would exercise under similar circumstances.</p>

<p>Bill in chancery. Error to the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.</p>

<p>1. Jttoqments—what does not affect Men upon leasehold interest in real estate. A leasehold interest in real estate which has a longer period than five years to run is real estate and if the lien of a judgment attaches thereto a surrender of such leasehold interest by the judgment debtor does not affect such lien.</p> <p>2. Bankruptcy—what discharge does not affect. A judgment obtained in an action for malicious prosecution is not affected by a discharge in bankruptcy.</p> <p>3. Bankruptcy—what discharge does not affect. A discharge in bankruptcy does not affect a lien upon an interest in real estate if such lien was obtained more than four months prior to the adjudication in bankruptcy.</p> <p>4. Forcible entry and detainer—who may maintain. A person who has succeeded to the rights of the lessor in a five year leasehold interest, through a judgment and sale followed by deed (redemption having expired), may maintain forcible entry and detainer against the assignees of the lessee.</p>

<p>1. Accounting—when exclusion of account erroneous. An account stated by a party cannot be disregarded in toto merely because the items set forth are not as to each and every of such Items supported by vouchers.</p> <p>2. Decrees—when scope cannot be enlarged. If a decree has been affirmed by the Supreme Court it fixes the rights and interests of the parties to the controversy and unless conditions occurring since that decree inject new matter, not then known, or which did not then exist, there can be no departure from it.</p> <p>3. Contempt—when error to adjudge party in, for failure to attend as witness. It is error to adjudge a party in contempt for failing to appear as a witness before a master and submit to a viva voce examination touching an account rendered in a cause, where such party is a non-resident. No statute of this state gives the courts of this state any authority to compel a non-resident to come personally within the jurisdiction of this state for examination as a witness nor to punish such non-resident as for contempt of court for failure to personally appear.</p> <p>4. Interest—when allowance proper against trustee de son tort. Interest is properly chargeable upon the corpus of a trust in an action against a trustee who has been held to have dissipated the estate.</p> <p>5. Pleading—when supplemental hill improperly filed. It is error to allow the filing of a supplemental bill in an action in which the rights and interests of the parties have been finally adjudicated by the Supreme Court.</p> <p>6. Costs—what not taxable. Solicitor’s fees under no circumstances, aside from the agreement of the parties, can be allowed or taxed as costs.</p> <p>7. Costs—what not taxable. The traveling expenses of solicitors incurred while journeying to a point outside of the state for the purpose of examining the adverse party, are not taxable as costs.</p> <p>8. Costs—when master’s fees should not he taxed. Master’s fees upon a reference made upon an issue which was wholly unauthorized should not be taxed against the defeated party.</p>

<p>Action for malicious prosecution. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.</p>

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

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

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

<p>Negotiable instbuments—how want of consideration pleaded. By section 9 of chapter 98, which was not repealed by the Negotiable Instrument Act of 1907, the defense of want of consideration must be specially pleaded in an action of special assumpsit on a note.</p>

<p>Instructions—approved form, of, referring to comments of judge during trial. An instruction upon this subject as follows, approved:</p> <p>“The jury should not understand by anything the court has said during the progress of the trial, or by anything contained in these instructions, that the court has any opinion or has expressed any opinion concerning the facts in this case.”</p>

<p>Deceit—when representations not actionable. A statement not shown to have been untrue when made will not sustain a recovery in an action of deceit, nor will such a statement support a recovery in such an action unless it appears that the plaintiff relied thereon and was damaged thereby.</p>

<p>1. Contract—of employment, construed. Where one party by a written contract agrees to work for another for the term of one ■ year at a certain salary per month but his compensation is not to commence until a certain contingency happens, and he testifies that after the expiration of the year a verbal understanding was had that he should go on without a contract at an increased monthly salary, held, (1) that the court might properly find a new agreement to exist and (2) that either party might terminate the employment under such new agreement at the end of any month.</p> <p>2. Practice—when proposition of law does not involve finding of facts. A proposition which reads that if the court finds certain facts therein set forth to exist, then the law applicable thereto is as therein set forth, does not involve a finding of facts under section 61 of the Practice Act as amended in 1907, but is only a proposition of law.</p>

<p>1. Evidence—when exclusion will not reverse. Exclusion of evidence, though erroneous, will not reverse if such excluded evidence had no direct bearing upon any issues of the cause and did not result in harm to the party offering it.</p> <p>2. Instructions when refusal to give, to effect that plaintiff alighting from moving car cannot recover, erroneous. If the only negligence charged in the declaration is that the defendant negligently caused the car to be “suddenly started and moved whereby the plaintiff was thrown off,” it is error, where there is evidence tending to support it, to refuse an instruction as follows:</p> <p>“If the jury believe from the evidence that the plaintiff attempted to alight from the car in question while the car was moving, then you should find the defendant not guilty.”</p>

<p>1. Liens—what does not affect subcontractor’s right. If the original contract was made after the Mechanic’s Lien Act of 1903 went into effect, a subcontractor is not deprived of his right to a lien because of the waiver by contract by the original contractor of all of his rights to a lien.</p> <p>2. Liens—what essential to establish subcontractor’s. In order for a subcontractor to obtain a lien he must assume and carry the burden of establishing that he has fulfilled all the requirements of the statute conferring upon him such right of lien.</p> <p>3. Liens—what does not revive right to. Held, that the putting up of a wire screen, without the request or knowledge of the owner, after the subcontractor’s contract had been substantially finished, after final payment had been demanded and treated as due by him, does not operate to revive a lien the right to which had previously expired.</p> <p>■ 4. Appellate Court—what questions without jurisdiction of. It is not within the jurisdiction of the Appellate Court to determine the question of the validity of an act of the legislature.</p>

<p>1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.</p> <p>2. Instructions—when will not reverse as erroneously assuming relation of passenger and carrier. Held, that even though the instruction in this case did erroneously assume the existence of the relation of passenger and carrier at the time of the accident, namely, at or about the time the plaintiff had alighted from the defendant’s car, yet such error would not reverse because of the instructions asked and given at the request of the defendant.</p> <p>3. Instructions—what need not contain. It is not necessary to repeat in each separate instruction a proposition once clearly stated in others of the same series.</p>

<p>1. Res judicata—when order interlocutory. Held, that the order in question in this case approving the conclusions of the master as to law and fact and referring the entire cause to him to state an account, etc., was merely interlocutory and did not fix and establish the rights of the parties so as to enable the invocation of the doctrine of res judicata.</p> <p>2. Corporations—burden to establish misappropriation by officers. A stockholder who charges misappropriation of corporate funds by officers of a corporation must assume and carry the burden of establishing such misappropriation.</p>

<p>Prosecution for unlawful sale of liquor. Error to the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.</p>

<p>1. Corporation's—when informal transfer sufficient to pass corporate property. It is true that the law is that the title to the corporate property is in the corporation and that the stockholders own', not the corporate property itself, but the shares of stock; it is also true that to make a transaction perfect in form, conveying corporate property, the instrument of transfer should he executed by the officers of the corporation as such, pursuant to the vote of the hoard of directors; nevertheless when all the stockholders, owning the entire interest in the property in fact, have agreed to a certain course of action, and have delivered the property of the corporation pursuant thereto, a suit cannot he maintained by the corporation to recover back the property or its proceeds merely because a vote of the directors was not had and the officers did not sign the papers in their official capacity.</p> <p>2. Trover—when action does not lie. Trover does not lie if a bank in accepting the property of a corporation for trust purposes acts beyond the scope of its powers.</p>

<p>Assumpsit. Appeal from the Circuit Court of Ogle county; the Hon. Oscar E. Heard, Judge, presiding.</p>

<p>1. Negligence—when declaration states cause of action. A declaration states a cause of action which charges negligence generally in carelessly and improperly driving and managing a locomotive engine, etc.</p> <p>2. Negligence—competency of proof showing failure to ring bell or blow whistle. Notwithstanding the negligence relied upon was not a failure to observe the statute requiring the ringing of a hell or the sounding of a whistle at street crossings, the fact that the hell was not rung or the whistle was not blown at the place of the injury in question, is competent as bearing upon the question of the exercise of due care by the plaintiff.</p> <p>3. Pleading—what defect in declaration cured by verdict. The fact that the allegations of the declaration confine the exercise of due care by the plaintiff to the precise time of the accident in question, is not material after verdict.</p> <p>4. Evidence—when remarles of husband to wife at time of ccctdent competent; when not. What the husband of the plaintiff said at the time of an accident is competent so far as responded to by the plaintiff but what he may have said at such time to the plaintiff is not competent if no response thereto was made.</p> <p>5. Instructions—must be clear. An instruction confused and ambiguous in form and which states a mere abstract proposition of law, should be refused.</p>

<p>Bill for injunction. Appeal from the Circuit Court of Lake county; the Hon. Abthub H. Fbost, Judge, presiding.</p>

<p>1. Mines and Miners—section 18 (b) of act construed. This statute does not mean that a mine manager must be personally present at all times while conditions are being made safe. The statute is observed if the men who enter the mine to change unsafe conditions shall do so under the direction of the mine manager.</p> <p>2. Mines and Miners—what essential to recovery for wilful violation. In order for a violation of the Mines and Miners Act to give a cause of action to the person injured or to the relatives, the violation of the statute must have been the cause of the injury.</p> <p>3. Mines and Miners—when failure to mark dangerous place will not support recovery. Held; that failure to place a danger mark upon a rock was not the proximate cause of the death of the plaintiffs’ intestate but that such death was caused by his standing beneath such rock while knocking out the prop which supported it and while engaged in the business of causing it to fall.</p>

<p>Action in case for death caused by alleged wrongful act. Error to the Circuit Court of La Salle county; the Hon. Edgab Eldbedge, Judge, presiding.</p>

<p>Bill in equity. Appeal from the Circuit Court of La Salle county; the Hon. S. C. Stough, Judge, presiding.</p>

<p>Prosecution for criminal libel. Error to the Circuit Court of Ogle county; the Hon. James S. Baume, Judge, presiding.-</p>

<p>Replevin. Error to the Circuit Court of vWoodford county; the Hon. G. W. Patton, Judge, presiding.</p>

<p>1. Common carriers—what instruments may properly contain limitations upon liability. The statutory inhibition against limitations of liability by a carrier in a receipt does not apply to bills of lading; such limitations may properly be inserted in bills of lading.</p> <p>2. Common carriers—what does not effect limitation of liability. While a carrier may restrict its liability by provisions contained in a bill of lading, yet the mere delivery of a bill of lading to a shipper is not sufficient to effect a limitation but in order to relieve itself from liability the carrier is bound to prove the assent of the shipper to such limitation, and in the absence of proof of such assent the presumption is that the shipper relied upon the common law liability of the carrier when delivery was made to the carrier duly consigned, and that there was no assent to any change from the common law liability.</p> <p>3. Common carriers—what does not establish assent of shipper to limitations of liability contained in bill of lading. Proof that a • shipper had upon previous occasions received bills of lading containing limitations like those contained in the one in question, does not establish a prima facie case of assent.</p> <p>4. Common carriers—what does not establish assent to limitar tions of liability contained in a bill of lading. The acceptance of a shipping ticket by the shipper containing a reference to the conditions of the company’s bill of lading, does not establish an assent to the limitations of liability contained in such bill of lading.</p> <p>5. Common carriers—tohat competent to show lacle of assent to limitations of liability contained in the bill of lading. In order to show that the shipper did not assent to limitations of liability contained in, the bill of lading, it is competent for himself and his witnesses to testify that they had never read the bill of lading, that they did not know at the time of receiving it what provisions and contents were contained therein, that they did not have any talk ■ with any agent of the carrier concerning the terms and conditions of the bill of lading and that their attention had never, up to the time of the loss sued for, been called to the conditions and limitations tontained in such bill of lading.</p> <p>6. Common carriers—extent of liability defined. In the absence of a special contract assented to by the shipper, a common carrier is an insurer of freight and can only relieve itself from liability for loss by showing that the same was occasioned by the act of God or the public enemy or through some fault of the shipper or by reason of the inherent nature of the goods.</p> <p>7. Instructions—when containing. abstract proposition of taw will not reverse. It is not error to give an instruction which correctly states a mere abstract rule of law unless its tendency is to mislead the jury.</p>

<p>1. Pleading—what not part of declaration. The copy of an instrument filed with a declaration is no part thereof.</p> <p>2. Pleading—effect of allegations under videlicet. To allege a date under a videlicet is not to mate a positive averment as to time and such an allegation is insufficient where a positive averment is required.</p> <p>3. Attachments—when original does not lie. An original attachment will not lie to recover unliquidated damages even though an action of assumpsit is brought and may be maintained therefor.</p> <p>4. Attachments—what affidavit should show in action dy assignee. In order to maintain an attachment predicated upon a claim acquired by assignment, the affidavit in attachment should positively show that the claim sued on was assigned to the plaintiff subsequent to section 18 of the Practice Act of 1907 going into effect.</p> <p>5. Assignments—chases in action prior to Practice Act of 1907. Prior to the enactment of section 18 of the Practice Act of 1907 a claim for brokerage commissions. was not assignable at common law so that the assignee could sue and recover therefor in his own name.</p> <p>6. Damages—when unliquidated. If the question of damages is dependent upon the determination of the market value of merchandise, such damages, are unliquidated, where such question of market value is one as to which opinions may reasonably differ.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Putebbaugh, Judge, presiding.</p>

<p>1. Administration op estates—when jury trial not matter of right. In determining the question whether a legacy is a charge against an estate and shall be paid hy the executor thereof, a jury trial cannot be demanded as a matter of right.</p> <p>2. Administration oe estates—when a verdict merely advisory. If in the course of the administration of an estate a jury trial is had, not as a matter of right, the verdict rendered is advisory only. It is like any other verdict in a purely equitable proceeding and the court may completely ignore such verdict and enter such an order as equity may require, though it he very different from the verdict rendered by the jury. In consequence, the question whether the court gave improper or refused proper instructions upon such a jury trial is immaterial on review.</p> <p>3. Evidence—when objections to competency waived. A party cannot offer the deposition of an adverse party, or parts of such deposition, and then urge objections to any portion thereof offered hy him, nor can objections he urged which may he noted in such deposition if the portions to which such objections referred were not read to the jury.</p> <p>4. Evidence—when secondary incompetent. The contents of letters cannot be proven by parol if no effort had been made to obtain the production of the original letters.</p>

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

<p>1. Bill oe exceptions—when extension of time for filing valid. The time for the filing of a hill of exceptions may be properly extended at any time prior to the expiration of the time previously fixed by the original order, or extensions thereof.</p> <p>2. Bill oe exceptions—when signing after time fixed for filing, proper. The signing of a bill of exceptions after the time fixed for its filing has expired is proper if within such time such bill of exceptions has been presented to the trial judge for settling, signing and sealing.</p> <p>3. Appeals and ekeobs—when sufficieney of evidence not presented for review. If the abstract does not show that the bill of exceptions contains an exception to the denial of the motion for a new trial, the sufficiency of the evidence to" support the verdict is not preserved for .review.</p> <p>4. Conveyances—when fraudulent per se. Conveyances of personal property are fraudulent per se and void as to creditors where possession is retained by the vendor, unless the retaining of possession is consistent with the conveyance.</p> <p>5. Attachments—when irregularity in writ not fatal. A failure to fill a blank in a writ of attachment is not fatal if the context of the writ supplies such blank.</p> <p>6. Attachments—when objections to affidavit come too late. The want of an affidavit preceding the issuance of a writ of attachment cannot he first urged by interpleaders on appeal.</p>

<p>1. Appeals and erbors—when sufficiency of evidence and ex-cessiveness of verdict not presented for review. If the abstract filed on appeal does not show the amount of the verdict and does not show that the hill of exceptions contains any ruling upon the motion for a new trial or any exception to that ruling or any exception to the judgment of the court, the sufficiency of the evidence and the excessiveness of the verdict are not preserved for purposes of review.</p> <p>2. Instruction—when properly refused because not confined to particular counts. Notwithstanding an instruction asked by the defendant may be proper under a particular count or counts, it is properly refused if it is not good as to certain other counts and its scope is not limited to the counts as to which it is proper.</p> <p>3. Instructions—must not be argumentative. An instruction argumentative in form is properly refused.</p> <p>4. Instructions—when upon ordinary care properly refused. An instruction upon this subject is properly refused if it omits elements which the jury have a right to consider in determining the question as to the exercise of ordinary care.</p> <p>5. Instructions—need not repeat. An instruction correct in form may properly be refused, if its contents is contained in another instruction given.</p> <p>6. Evidence—-what competent by way of impeachment. A statement made out of court inconsistent with his testimony as a witness may if denied by such witness be shown by way of impeachment.</p> <p>7. Negligence—when doctrine of imputed, does not apply. The negligence of the driver of a private vehicle is not imputed to a person riding with him by his invitation, or to a person who has no control over the driver, and this principle applies to the relation of husband and wife.</p>

<p>1. Negligence—when question of wilfulness for jury. Held, under the evidence, that it was a question for the jury whether or not the conduct of the motorneer in running the car in question in this case at the speed he did and in not stopping it when the plaintiff was plainly in view, standing close to the rail, as he approached, and having him in view for at least four blocks, was wanton and wilful.</p> <p>2. Negligence—what not essential to establish wilfulness. It is not necessary to sustain a charge of wilful and wanton injury for the plaintiff to prove an intention on the part of the servants of the defendant to injure him.</p> <p>3. Verdict—when not disturbed. A verdict based upon conflicting testimony will not be set aside unless clearly and manifestly against the weight of the evidence.</p>

<p>1 Damages—when exemplary not awarded. In an action for assault and battery exemplary damages should not be awarded if there was nothing of a malicious or premeditated character about the assault in question.</p> <p>2. Damages—when expenses in seeking to effect cure cannot he awarded. Where an amount paid or liability incurred for the services of a physician in seeking to effect a cure is sought to be recovered, such an allowance should not be made in the absence of proof that the charges of such physician were the usual and customary charges of a physician for such services.</p>