Volume 158 — Illinois Appellate Court Reports

<p>Judgment by confession. Appeal from the County Court of Boone county; the Hon. Louis M. Reckhow, Judge, presiding.</p>

<p>Assumpsit. Error to the Circuit Court of Lee county; the Hon. Oscab E. Heard, Judge, presiding.</p>

<p>Prosecution for libel. Error to the County Court of Peoria county; the Hon. Wilbert I. Slemmons, Judge, presiding.</p>

<p>1. - Slander and libel—when article libelous of person not named. If extrinsic facts and circumstances are averred and proved which show that a person not named in the libelous publication was intended and generally understood as being the person referred to, the publication is libelous as to such person.</p> <p>2. Slander and libel—when damages awarded are excessive. A verdict for $10,000 in an action for libel brought by a lawyer is excessive where no proof of actual damages being suffered is made.</p> <p>3. Trial—when arguments of counsel ground for reversal. To state that no instructions have been asked out of motives of caution," and notwithstanding the remonstrance and admonitions of the court, to persist in such statement, is so prejudicial as to require reversal.</p>

<p>Action in case. Appeal from the Circuit Court of Carroll county; the Hon. Richard S. Farrand, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Action for criminal conversation. Appeal from the Circuit Court of Stark county; the Hon. T. N. Green, Judge, presiding.</p>

<p>1. Evidence-—when admission of substantive will not reverse. To permit an injured member to be exhibited to the jury is discretionary with the court and unless an abuse of that discretion is shown a reversal will not be awarded.</p> <p>2. Evidence—what competent to ash unfavorable witness called by party. It is proper to ask a witness whom a party has called and who has appeared unfavorable, not by way of impeachment but to refresh memory and awaken conscience, as to statements made by him to the opposite party.</p> <p>3. Evidence—when admission of improper will not reverse. In the absence of objection made in the trial court the admission of improper evidence will not reverse.</p> <p>4. Trial—practice where evidence is admissible for some and not for other purposes. In such a case the proper practice is to request that the evidence in question be restricted to the particular purpose for which it is competent.</p> <p>5. Verdicts—when not excessive. Held, in an action on the case for personal injuries that a verdict of $18,066, was not excessive where it appeared that the plaintiff, prior to the accident, was a man 25 years of age, strong, healthy and earning from two dollars to $2.40 per day and that as a result of the accident his head was crushed, his jaws broken in three places so that they had to be wired together, his teeth loosened so that he could not eat meat or hard food, his spine twisted, three ribs broken on one side and four on the other, one lung solidified, one shoulder made five inches lower than the other, with the consequence that he suffered constant pain, became a physical wreck and unable to do any work.</p>

<p>1. Passenger and carrier—when relation established. A person becomes a passenger when, intending to take passage, he enters the waiting room of a depot or place provided by the carrier for the reception of passengers at a time when such place is open for the reception of passengers intending to take passage on trains of the company and desiring to buy a ticket, or if the ticket office is not open undertakes to get on the train while the train is standing for the reception of passengers, intending to pay his fare on the train.</p> <p>2. Passenger and carrier—duty of latter to exercise care. The duty of a carrier to exercise a high degree of care extends to the time of passage by the passenger from the depot to the train.</p> <p>3. Passenger and carrier—when rules of latter incompetent. Rules affecting the conduct of passengers are not competent against a passenger in an action for personal injuries in the absence of evidence of knowledge thereof by him or by the public.</p> <p>4. Evidence—when admission of erroneous will not reverse. In the absence of objection having been made thereto in the trial court the admission of erroneous evidence will not reverse.</p>

<p>1. - Measure of damages—in action for injury to personal property. Where personal property has been injured by the negligence of another and can be repaired, the proper measure of damages is the cost of the repairs and the value of the loss of the use of it while it is being repaired; if the property cannot be repaired then the measure would be the difference between the market value of the property before the injury and the value of the wreckage.</p> <p>2. Licenses-—effect of failure to take out. In an action for an injury to an automobile the fact that the owner may not have obtained a state license to run such automobile is immaterial upon the question of the right to recover.</p>

<p>Action in case on personal injuries. Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding.</p>

<p>Practice—when special interrogatories submitted too late. Special interrogatories not submitted until after the arguments of counsel were closed and the jury instructed, are properly refused.</p>

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

<p>Contested claim in court of probate. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from' the Circuit Court of Lee county; the Hon. R. S. Farrand, Judge, presiding.</p>

<p>1. Appeals and errors—-when assignments of error waived. Assignments of error not argued are deemed to have been waived.</p> <p>2. Verdicts—when not disturbed. A verdict not manifestly against the weight of the evidence will not be set aside on review in the absence of errors of law.</p>

<p>Action commenced before justice of the peace. Error to the County Court of Will county; the Hon. George J. Cowing, Judge, presiding.</p>

<p>1. Contracts—what considered upon application to reform. Even if there is doubt as to the intention of the parties in making the contract, the interpretation which the parties by their acts under the contract have practically given it, will have weight and may be controlling in arriving at the intention of the parties.</p> <p>2. - Contracts—what defense inappropriate in action upon patent royalty contract. Even though the contract may not specifically estop the licensee from setting up invalidity and non infringement to an action for royalties, yet such defenses are inappropriate where the licensee continues to enjoy and claim the benefits of the license.</p>

<p>Assumpsit. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding.</p>

<p>Contested claim in court of probate. Appeal from the County-Court of Knox county; the Hon. Harry M. Waggoner, Judge, presiding.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Rock Island county; the Hon. Emery C. Graves, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Pleading—when recovery can he had under common counts. Where all that remains to be done under a contract is that one party thereto shall pay money provided by such contract to be paid, a recovery - may be had under the common counts.</p> <p>2. Statute of Frauds—when defense of, comes too late. Where the common counts solely are filed no plea of the Statute of Frauds is required, but, in some manner, the defense of the Statute of Frauds must appear to have been interposed in the trial court; otherwise it will not be regarded on appeal.</p> <p>3. Appeals and errors—abandonment of theory. A trial cannot be conducted upon one theory and a claim for reversal predicated upon another.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Henry county; the Hon. William H. Best, Judge, presiding.</p>

Petition to revoke letters of administration. Appeal from the Circuit Court of Livingston county; the Hon. T. M. Harris, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).

<p>1. Negligence—when acts constitute negligence. The alleged negligent act or omission must be the cause which produces the injury complained of, but it need not be the sole cause nor the last or nearest cause to constitute it the proximate cause of such injury.</p> <p>2. Negligence-—how question of proximate cause determined. Ordinarily, the question as to what is the proximate cause of the injury is one of fact to be determined by the jury.</p> <p>3. Master and servant—what not proximate cause of injury. Held, under the evidence that the intervening negligence of one whom the evidence tended to show was a vice principal was not the immediate and sole proximate cause of the injury.</p> <p>4. Master and servant—when doctrine of assumed risk does not apply. A servant cannot be held to have assumed the risk of injury from a danger not known to him which he is not shown to have had opportunity to observe and of which he was not informed by his master.</p> <p>5. Instructions—ignoring defenses. An instruction which directs a verdict for the plaintiff upon the finding of negligence is erroneous if it ignores affirmative defenses relied upon by the defendant which the evidence tends to establish.</p> <p>6. Instructions—argumentative in form. Instructions argumentative in form should not he given.</p>

<p>1. Railroads—what evidence not required to establish that fire was communicated by locomotive. Positive evidence is not required in such a case; substantial evidence is sufficient.</p> <p>2. Railroads—when prima facie case of liability for fire communicated by locomotive rebutted. In the absence of evidence to show the equipment of the engine which the evidence tended to show caused the fire, a prima facie case made by the plaintiff is not rebutted.</p>

<p>Action in debt. Appeal from the Circuit Court of Fulton county; the Hon. G. W. Thompson, Judge, presiding.</p>

<p>Judgment by confession. Appeal from the City Court of Mattoon; the Hon. T. N. Coeer, Judge, presiding.</p>

<p>Trover. Appeal from the Circuit Court of Piatt county; the Hon. W. G. Cochran, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Prosecution for unlawful sale of intoxicating liquor. Error to the Circuit Court of Macon county; the Hon. W. C. Johns, Judge, presiding.</p>

<p>Action of debt. Appeal from the Circuit Court of McDonough county; the Hon. Robert J. Grier, Judge, presiding.</p>

<p>1. Evidence—when, as to liability for doctor’s bill' properly considered. Liability to physicians for services rendered is proper to be considered notwithstanding the reasonableness of the charges made was not established where no objections to the lack of such evidence was made in" the trial court.</p> <p>2. Trial—when remarles of court cannot be complained of Remarks by the trial court though prejudicial cannot ,be complained of if elicited by the improper conduct of the complaining counsel.</p> <p>3. Trespass—effect of plea of son assault demesne. By the plea of son assault demesne the defendant assumes the burden of proving not only that the plaintiff first assaulted him and that he, the defendant, acted in necessary self-defense, but also that in so defending himself he used no more force than was necessary.</p> <p>4. Instructions—ignoring issues. An instruction which directs a verdict for the defendant is properly refused if it ignores one. element necessary to such verdict.</p> <p>5. Assault and battery—when use of unnecessary force in self-defense justified. If a person is suddenly attacked the use of excessive force will not impose liability if he acted as a reasonably prudent man would act under like circumstances.</p>

<p>Damages—for changing grade of street. An action against a municipality lies for damages arising from changing the grade of a public street which results in injury to the means of ingress and egress.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding.

<p>Sales—when implied warranty does not arise. One selling an automobile to another intending to use it for a particular purpose does not impliedly warrant its fitness for such use.</p>

<p>Contracts—when parol evidence incompetent. Parol evidence is not competent to vary, add to or contradict the terms of a written contract.</p>

<p>Bill in chancery. Appeal from the Circuit Court of DeWitt county; the Hon. W. G. Cochran, Judge, presiding.</p>

<p>Replevin. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.</p>

<p>Verdicts—when not disturbed as excessive. A verdict will not be set aside as excessive if not clearly and manifestly against the weight of the evidence.</p>

<p>Assumpsit. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Replevin. Appeal from the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Edgar county; the Hon. William B. Scholfield, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochran, Judge, presiding.</p>

<p>Error to the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding.</p>

Action in case for personal injuries. Appeal from the Circuit court of Macon county; the Hon. William C. Johns, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).

<p>Instructions—ignoring defense. An instruction which, directs a verdict for plaintiff if certain specified facts are found is erroneous if it excludes any material issue.</p>

<p>1. Damages—what incompetent in action for personal injuries. Evidence as to the profits of the plaintiff in his business is incompetent in an action for damages for personal injuries.</p> <p>2. Damages-—effect of admission of erroneous evidence. If it appears that erroneous evidence offered and received hut after-wards excluded has affected the size of the verdict so as to. make it excessive, a remittitur will he ordered.</p>

<p>Action in case. Appeal from the Circuit Court of Montgomery county; the Hon. A. M. Rose, Judge, presiding.</p>

<p>1. Roads and bridges—prosecution for removal of sidewalk. A judgment for the defendant in a prosecution for a penalty imposed by statute for “purposely” destroying a sidewalk is proper where the jury are justified in concluding that the defendant in moving the sidewalk in question acted in good faith.</p> <p>2. Roads and bridges—propriety of judgment for costs against town. In an action to recover a penalty prescribed by the Roads and Bridges Act a judgment for costs against the town is. appropriate in the event of a determination of the action against it.</p>

<p>Instructions—effect of motion for peremptory. Upon a motion to direct a verdict the evidence in favor of the party against whom the motion is directed must be considered in its most favorable light to him, together with all the inferences in his favor which can be legitimately drawn therefrom.</p>

<p>Bill in chancery. Appeal from the Circuit Court of Scott county; the Hon. Owen P. Thompson, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Hancock county; the Hon. Robert J. Grier, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of McLean county; the Hon Colostin D. Myers, Judge, presiding.

<p>Roads and bridges—what essential to establish liability for obstruction of highway. The evidence must conform to the complaint and show that the defendant obstructed the place in the highway fixed in the complaint as alleged as having been obstructed.</p>

<p>Action in case. Appeal from the Circuit Court of Sangamon county; the Hon. Jambs A. Creighton, Judge, presiding.</p>

<p>Action in case for death caused by alleged wrongful act. Appeal from the City Court of Mattoon; the Hon. T. N. Cofer, Judge, presiding.</p>

<p>Wills—construction as to extent of testamentary disposition to executor. Held, from a consideration of the will in question in this case, that the testator intended that his executor should collect rents as well as income from personal property and make distribution thereof as provided by the will and that while no specific devise of real estate was made to such executor such devise was to be implied from the entire construction of the will.</p>

<p>Prosecution for unlawful sale of intoxicating liquor. Appeal from the Circuit Court of Christian county; the Hon. A. M. Rose, Judge, presiding.</p>

<p>Bill in equity. Appeal from the Circuit Court of Adams county; the Hon. Guy R. Williams, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the County Court of McDonough county; the Hon. William J. Franklin, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Circuit Court of Cass county; the Hon. Harry Higbee, Judge, presiding.</p>

<p>Ordinances—validity of, providing for protection of pavements. Held, that the ordinance set forth in this opinion providing for the use of “sound strong planks” was not so indefinite as to render it invalid, that such ordinance was within the specific power granted to municipalities to enact and that it did not allow an illegal latitude of penalization.</p>

<p>1. Pleading—when recovery cannot be had under common counts. There can be no recovery under the common counts where the contract sued upon is unexecuted.</p> <p>2. Damages-—for breach of contract for exchange of properties. Notwithstanding a tender may have been waived, in order to recover substantial damages for breach of a contract to make a trade of real property, it is incumbent upon the part of the plaintiff to make a tender or otherwise to show that he was ready, able and willing to perform the agreement on his part.</p> <p>3. Measure of damages—in action for breach of contract for exchange of properties. The true measure of damages in such a-case is the difference between the fair cash market values of the properties agreed to be exchanged.</p>

<p>Appeal from the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding.</p>

<p>Justice of the peace—Hohat essential to establish jurisdiction of appeal from. The transcript with a certificate of the justice showing the proceeding before him is essential to confer jurisdiction of an appeal to the County Court.</p>

<p>1. Evidence—what competent by way of impeachment. A proper foundation having first been made upon cross examination of a witness, a writing containing statements contradictory to his testimony given is competent for purposes of impeachment.</p> <p>2. Instructions—misleading. An instruction which tends to mislead the jury is improper and constitutes ground for reversal.</p>

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

<p>1. Evidence—what does not tend to establish reasonable value of services. The reasonable value of services rendered and paid for is not established by inference or presumption from the amount paid for such services.</p> <p>2. Measure of damages—in action for injury to horses. The true measure of damages in such a case is the difference between the fair cash market value of the horses for any and all purposes before the injury and such value if any after the injury, and this necessarily includes a consideration of the fair cash market value of the horses for the purposes for which they had been used by the plaintiff.</p>

<p>Assumpsit. Appeal from the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding.</p>

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

<p>Action commenced before justice of the peace. Appeal from the County Court of Douglas county; the Hon. W. J. Dolsox, Judge, presiding.</p>

<p>Verdicts—when not disturbed. A verdict will-' not be set aside on review if substantial justice has been done.</p>

<p>Bill in equity. Appeal from the Circuit Court of Edgar county; the Hon. W. B. Schomteld, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Cumberland county; the Hon. M. W. Thompson, Judge, presiding.</p>

<p>1. Agenct—when agent personally liable. If an agent acts for a principal but fails to disclose the principal or to disclose that he is acting for a principal and the person contracted with does not know that the agent is acting for the principal, then the agent becomes personally liable upon the contract.</p> <p>2. Contkacts—when custom cannot be invoiced. A custom cannot be invoked to avoid a settled rule of law.</p>

<p>Statute of Limitations—when runs against municipal corporations. While it is a general rule of law that the statute of limitations does not run against the general public or against municipal bodies, where the property is held generally for the public use and where the bodies to which it belongs are created for local governmental agency regarding the public rights, yet where such property is loaned as private property (in this case money was loaned pursuant to legislative authority to private individuals), the statute of limitations is effective by way of defense.</p>

<p>Measure of damages—in action for destruction of growing crops. In such a ease the proper measure of damages is the rental value of the ground together with the reasonable value of the seed and labor expended in bringing the crop to the point at which it was destroyed, and it is error to adopt as the measure in such a case damages predicated upon the amount of corn that might have been raised upon the land during the period in question with its price or prices in the fall or falls following maturity.</p>

<p>Wills—policy as to vesting of estates. It is not the policy of our law to favor the abeyance of estates; estates will be deemed to vest upon the death of the testator unless very clear words are found in the will evincing that it was the manifest intention of the testator that the estate should not vest except on the happening of a certain contingency.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Montgomery county; the Hon. Samuel H. Dwight, Judge, presiding.</p>

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

<p>Separate maintenance. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>1. Master and servant—duty to furnish safe place. While the general rule of law is that the master must use reasonable care to furnish a reasonably safe place for his servant to work, this rule is always subject to limitations and exceptions, and one universal exception well recognized is that where the master has used reasonable diligence to provide a reasonably safe place for the servant to perform his work and in the prosecution of that work changes are produced in the conditions of the place where the servant is required to work and these conditions are in the performance of the work for which the servant is employed and only temporary, the rule does-not require the master to keep the place reasonably safe at all times under such changed conditions, and the rule has no application where the master does not make or create the conditions but they are created by the progress of the work and the men engaged in it. This general rule is also subject to the exception that it does not apply to servants whose duty it is to see that the place is kept in a reasonably safe condition and whose duty it is to remove or remedy any defects which arise therein by reason of the work performed by the servant.</p> <p>2. Master and servant—employment of insufficient number of servants. The fact alone that a master fails to employ a sufficient number of men to do the work in question does not constitute a cause of action.</p> <p>3. Master 'and servant—when doctrine of assumed rislo applies. A servant assumes the risk of injuries from all conditions of which he has equal knowledge with the master to know and which are open to his observation and which he might have easily known by the use of his sense of observation.</p>

<p>Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.</p>

<p>Mines and minees—what essential to recovery for wilful violation. Before a plaintiff can recover in an action under section 18 of the Mines and Miners Act he must show that the proximate cause of the injury was the wilful violation of the statute by the defendant.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.</p>

<p>Action commenced before justice of the peace. Appeal from the Circuit Court of Coles county; the Hon. W. B. Scholfield, Judge, presiding.</p>

Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.

<p>Assumpsit. Error to the Municipal Court of Chicago; the Hon. Isidore H. Himes, Judge, presiding.</p>

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

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

<p>Tort. Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.</p>

<p>Assumpsit. Appeal from the Superior Court of Cook County; the Hon. Willard M. McEwen, Judge, presiding.</p>

<p>1. Dram-shops—when instruction in action for injury to means of support not erroneous. It is not error in such an action to give to the jury an instruction which sets out in full section 9 of the Dram-shop Act upon which the action was predicated.</p> <p>2. Dram-shops—what not defense to action under section 9. The fact that one of the defendants who sold the liquor in doing so acted as the agent for his wife, the other defendant, who was the proprietor of the saloon in question, is not a defense which will absolve such defendant from liability.</p>

<p>Master and servant—when former not obligated to warn. If an injury results to a servant from a danger known to him and which was obvious, the master is under no obligation to, give a warning with regard to such danger, and the servant injured in consequence cannot recover.</p>

<p>1. Judgments—-when erroneous in action ex contractu. In actions ex contractu against two or more the plaintiff must recover against all of the defendants or none except in cases where a defendant interposes a defense personal to himself such as infancy, coverture, lunacy, bankruptcy and the like.</p> <p>2. Practice—effect of motion in. arrest. If a defendant moves in arrest of judgment without assigning any specific reasons and excepts to the denial of his motion, he is at liberty to urge any sufficient reason in the Appellate Court.</p>

<p>Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.</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. Verdicts—when not excessive. A verdict of $5,000 rendered in an action on the case for personal injuries is not excessive where it appears that an injury resulted to the skull which necessitated the surgical removal of a portion thereof and the installing of an artificial protection to cover a part of the brain.</p> <p>3. Negligence—when ordinance incompetent. An ordinance not pleaded is not competent to establish a substantive charge of negligence.</p> <p>4. Evidence—when latitude of cross-examination will not reverse. The trial court is vested with a wide discretion with respect to the latitude to be allowed to the cross-examiner and unless an abuse of the exercise of that discretion is shown no reversal will be ordered.</p>

<p>Liens—mechanic’s lien act of 1903 construed. That portion of the above act which provides that the lien of the contractor or subcontractor shall not be defeated “because of lack of proof that the material after the delivery thereof actually entered into the construction” of the building, is construed as meaning that the materialman, in the first instance, is relieved from the burden of proving that such material actually entered into the construction of the building; proof of delivery to the owner or his agent or a delivery at the place where the building is being constructed being made prima facie proof. If such prima facie proof is rebutted and it is affirmatively shown that such material was not actually used in the construction of the building, no lien can be had.</p>

<p>Tort. Appeal from the Superior Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding.</p>

<p>Assumpsit—when lies. Assumpsit lies for the negligent performance of a contract to clean tapestries.</p>

<p>1. Negligence—what constitutes, in giving signal to start car. Held, under the evidence, that it might have been negligence for the conductor to give a signal to start an over-crowded car without first ascertaining whether any one was in the act of alighting, even though he thought the car had stood still sufficient time for any one to alight.</p> <p>2. Instructions:—when upon right of recovery proper. Held, that an instruction was proper which told the jury that “while the burden of proof is upon the plaintiff herein, still if the jury find that the evidence bearing upon plaintiff’s case preponderates in her favor although but slightly, it will be sufficient for the jury to find the issues in her favor.”</p> <p>3. Instructions—ignoring issues. Held, that an instruction as follows was bad because it ignored the question whether the conductor knew, or in the exercise of reasonable care ought to have known, that the plaintiff was in the act of alighting from the car.</p> <p>“The court instructs the jury that if they find from the evidence that the car upon which the plaintiff had been a passenger stopped at its usual place of stopping for a reasonable length of time to allow the plaintiff to alight, and if the jury find from the evidence that the same was a safe place for the plaintiff to have left the car, and if the jury find from the evidence that she did not alight while the car was standing, but did alight immediately after the ear had started and while it was in motion, and without the consent of the defendant, and if the jury further find from the evidence that said act of the plaintiff was the proximate cause of her injury, then the defendant is not liable for any damage she sustained by reason thereof.”</p> <p>4. Verdicts—when set aside on review. Held, in this case, that the evidence was insufficient and the verdict excessive, and for that reason a reversal is ordered.</p>

<p>Mechanic’s lien. Appeal from the Circuit Court of Stephenson county; the Hon. Oscar E. Heard, Judge, presiding.</p>

<p>Action on the case. Appeal from the Circuit Court of Stark county; the Hon. T. N. Green, Judge, presiding.</p>

<p>Fraud—when general statements constitute misrepresentations. While, ordinarily, general statements constituting misrepresentations will not afford a basis for relief, yet, in equity, if the parties are not dealing on equal terms and an actual fraudulent result is accomplished by such fraudulent statements, relief will be granted.</p>

<p>1. Pleading—when allegation of relation of passenger and carrier sufficient. It is not essential that a declaration should specifically allege the existence of the relation; it is sufiicient after verdict if the existence of the relation is in effect charged.</p> <p>2. Evidence—effect given to negative. Negative evidence is of little value when contradicted by direct and positive proof.</p> <p>3. Instructions—approved form as to province of jury. An instruction upon this subject as follows, approved.</p> <p>“The court instructs the jury that the question involved herein, as alleged in the plaintiff’s declaration, of negligence on the part of the defendant, if any, and the exercise of reasonable care on the part of the plaintiff, if any, are what are known as questions of fact which it is the duty and province of the jury to determine under the law and the evidence in the case.”</p> <p>4. Instructions—upon right of recovery in action for personal injuries approved. An instruction upon this subject as follows, approved.</p> <p>“If the jury believe from the evidence that the plaintiff has proved the allegations contained in one or more counts of the declaration by a preponderance of the evidence, and if the jury believe from the evidence that the plaintiff was injured as therein alleged, and if the, jury believe from the evidence that the plaintiff, at the time of such injury, was in the exercise of reasonable care for her own safety, and if you further believe from the evidence that such injury, if proved, was caused by or through the negligence of the defendant, as alleged in such count or counts of the declaration, then the plaintiff is entitled to recover such damages as you believe from the evidence will compensate her for the injury sustained.”</p> <p>5. Instructions—defining negligence approved. An instruction upon this subject as follows, approved.</p> <p>“The court instructs the jury that negligence is the. omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a prudent and reasonable man would not do. ”</p> <p>6. Verdicts—when excessive. Held, in an action for personal injuries that a verdict for $1,500 was excessive where no serious or permanent injury, no broken bones, and no loss of earning power were shown by the evidence.</p>

<p>1. Evidence—when paper incompetent by way of impeachment. A paper sought to be used by way of impeachment is properly excluded if it contains other matter than that which related directly to the impeachment of the witness which other matter was important to the party seeking to introduce the paper, and w*here such paper was signed by other witnesses than the one sought to be impeached.</p> <p>2. Instructions—when modification upon interest of party not improper. An instruction which tells the jury that “While the plaintiff is allowed to testify in this case in his own behalf, yet in considering his testimony and the weight to be given to it, the jury have a right to and should take into consideration the fact that he is the plaintiff in this suit and is interested in the result thereof,” is not improperly modified by the addition of the words “and should judge the weight of this testimony by the same tests applied to other witnesses.”</p>

<p>1. Negligence—competency of other accidents. Evidence of other accidents occurring from the same cause is competent not for the purpose of showing independent acts of negligence but as tending to show the common cause of these accidents was a dangerous and unsafe thing.</p> <p>2. Instructions—when as to province of jury proper. An instruction is proper which tells the jury that the question of negligence on the part of the defendant and that .the exercise of reasonable care on the part of the plaintiff are questions of fact for the jury to determine under the law and the evidence in the case.</p> <p>3. Instructions—limiting effect of “ evidence. Evidence which for one purpose is incompetent, is properly limited by instruction to the competent purpose.</p>

<p>1. Appeals and errors—when findings of court subject to review. An exception to the judgment entered by the court is sufficient to preserve for review the propriety of the finding of the court; an exception to such finding is not indispensable.</p> <p>2. Insurance—proportionate loss clause construed. A proportionate loss clause contained in an insurance policy in question in this case is construed and the apportionment made by the trial court between the policy in question and a blanket policy is sustained.</p>

<p>Action in covenant. Appeal from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding.</p>

<p>Action in case. Appeal from the Circuit Court of Marion county; the Hon. James C. McBride, Judge, presiding.</p>

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

<p>Bill for accounting, etc. Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding.</p>

<p>1. Liens—question of priority. If the statute has been complied with a mechanic’s lien is prior to that of a mortgage if first in point of time.</p> <p>2. Liens—what compliance essential to sustain mechanic’s lien. The mechanic’s lien act is in derogation of the common law and is to be strictly construed and in order to endorse a lien under such act there must be a substantial compliance with its requirements.</p> <p>3. Liens—when mechanic’s not enforced to prejudice of mortgage. A mechanic’s lien will not be enforced to the prejudice of a mortgage in the absence of evidence that the bill was filed within four months after the completion of the work and in the absence of evidence of the filing of a claim for lien as provided by statute.</p>

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

Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. William E. Hadley, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).

<p>Appeal from the Circuit Court of Marion county; the Hon. S. L. Dwight, Judge, presiding.</p>

<p>1. Eminent domain—cause of action for injury. Since the constitution of 1870 private property cannot be taken or damaged for public use without just compensation. Physical invasion of the property is not necessary hut the damages sustained must be such as are not common to other property.</p> <p>2. Eminent domain—liability for damages resulting from com struction of viaduct. The obstruction of light, air, view and access to property abutting on a street whereby it is injured, is an element of damage not common to other property generally affected, and a street railway company so causing such injury by and through the construction of a viaduct is liable since the constitution of 1870 to compensate the owner.</p> <p>3. Eminent domain—when admission of evidence as to loss of rents not erroneous. Held, in an action for injury to real property by and through the construction of a permanent viaduct, where the correct measure of damages is the difference between the fair cash market value before and after the erection of such viaduct, that it was not error to receive evidence of loss of rents resulting from the erection of such viaduct notwithstanding such loss of rents could not be allowed in the award of damages; the instructions in the case, however, clearly restricted the jury in determining the award to the correct measure of damages.</p> <p>4. Eminent domain—when exclusion of evidence of general depression error. Where evidence had been received as to the depreciation in rents caused by the construction of a viaduct it was held error to exclude evidence of a general business depression in the city resulting in considerable vacant property and in the depreciation of rental values.</p> <p>5. Eminent domain—what proof of title sufficient. In an action to recover damages for injury to real property by and through the erection of a viaduct, in the absence of evidence of title, claim or possession in another, evidence upon the part of the plaintiff of possession which had continued for some time under claim of ownership based upon a deed is sufficient.</p> <p>6. Measure op damaoes—in action for injury to real property. If real property be injured by and through the construction of a viaduct permanent in character, the correct measure of damages is the difference between the "fair cash market value of the property injured before and after the erection of such viaduct.</p>

<p>Action of debt. Appeal from the City Court of East St. Louis; the Hon. M. Millard, Judge, presiding.</p>

<p>1. Comity—when judgment of court of sister state will he disregarded. The “public acts” of this state are of as much dignity as the judicial proceedings of any other state and if the laws of this state create obligations between its own citizens such obligations are supreme and will not in effect be nullified unless they are in contravention of the organic law. A judgment of a sister state will be disregarded if to enforce and recognize such judgment would in effect nullify the obligations imposed by law in this state between citizens thereof.</p> <p>2. Garnishment—when exemption enforced in favor of debtor. If an action in attachment has been instituted in another state and the employer served therein as garnishee, such employer, under the statute of this state, upon due demand made by the employe for his exempt wages, must recognize such demand and pay the exempt wages regardless of apprehension that judgment notwithstanding payment will be rendered against it in the sister state.</p> <p>3. Exemptions—when incident of debt. Where the creditor, debtor and garnishee, are all residents and doing business in the same state, and both debts are created and intended to be payable in that state, the exemption of wages is such an incident and condition of the debt from the employer, that it will follow the debt, if the debt follows the person of the garnishee into another state, and attach itself to every process of collection in any state unless jurisdiction is obtained over the person of the" debtor; that it becomes a vested right in rein which follows the debt into any jurisdiction where the debt may be considered as going.</p>

<p>Garnishment. Appeal from the Circuit Court of Richland county; the Hon. E. E. Newlin, Judge, presiding.</p>

<p>Foreclosure. Appeal from the Circuit Court of Pulaski county; the Hon. A. W. Lewis, Judge, presiding.</p>

<p>1. Contracts—when duration not extended beyond limit fixed by terms. The contract in question in this case construed and held not to create a joint adventure of such a character that such adventure would be implied to continue until concluded and that the same expired at the time expressly fixed in the instrument in question. Held, however, under the evidence, that such adventure was by tacit agreement continued beyond the stipulated time fixed for expiration.</p> <p>2. Appeals and errors—when finding of chancellor not disturbed. Where the witnesses are heard by the chancellor his findings of fact will not be disturbed unless clearly erroneous.</p> <p>3. Statute op Frauds—how must be availed of. In order to avail of the Statute of Frauds as a defense, it must be pleaded. If the applicability of the statute is as disclosed in chancery by way of answer, it is incumbent upon the complainants if they desire to avail of the statute, to do so by amendment of their bill.</p> <p>4. Statute of Frauds—when does not apply. The Statute of Frauds is inapplicable to an agreement for the sale of options which has been fully executed by the acceptance of the purchase money.</p>

<p>1. Appeals and errors—what general assignment of errors saves for review. Under a general assignment of errors that the court should have granted a new trial, the appellant may urge the rejection of proper and the admission of improper evidence, the giving of improper and the refusal of proper instructions, where proper objections were made and exceptions saved to the rulings thereon when offered, and also that-the evidence does not sustain the verdict.</p> <p>2. Appeals and errors—when exception to judgment not essential to review. An exception to the judgment is not essential to review where a case has been tried before the court without a jury.</p> <p>3. Evidence—when copies of letter incompetent. Copies of letters even if made by a letter-copying machine are not admissible as primary evidence; notice to produce duly served is essential to the right to the introduction of secondary evidence.</p> <p>4. Evidence—tohen re-offer of excluded evidence should be made. If letters have been rejected on the ground that they are secondary in character (no notice to produce having been served) they should be re-offered if the proof subsequently develops a claim upon the part of the addressee that the original letters had never been received. In the absence of such re-offer the rejection of the secondary evidence cannot be successfully urged as error.</p> <p>5. Evidence—when objection to question does not save propriety of answer for review. An objection to a question does not cover the propriety of an answer, if the answer as given was not called for by the question.</p> <p>6. Contracts—what not varying by parol. It is competent to supplement a written contract by evidence of matters of detail agreed upon as to which the contract is silent.</p> <p>7. Contracts-—when party must establish substantial performance. In an action to recover money claimed as due under a contract which money is not payable independently of performance of the contract by the plaintiff, the burden is upon the plaintiff before he can recover such money to establish that he substantially performed his part of such contract.</p> <p>8. Instructions—invading province of jury. An instruction which invades the province of the jury is palpably erroneous.</p>

<p>1. Verdicts—when not disturbed as against the evidence. If the evidence upon which a verdict is based is conflicting and irreconcilable it will not be set aside as against the evidence unless clearly and manifestly so.</p> <p>2. Mines and miners—notice to operator of dangerous condition. An operator is chargeable with the nature and character of repairs made by its timbermen and in this way notice of the existence of a dangerous condition may be established.</p> <p>3. Mines and miners—what tends to establish dangerous condition. A dangerous condition is shown if curves exist in the driveway of a mine around which mules in use in such mine could not be continuously so driven as to avoid coming in contact with the timbers or props upon the side of the mine, with the result that such timbers or props not only might be but actually were knocked down.</p> <p>4. Mines and miners—when instruction as to marking dangerous places erroneous. An instruction upon this subject is erroneous which imposes the obligation upon the operator “to see that all dangerous places at the mine, above and below, were promptly marked.” In this case, however, a corrected transcript showed that the word “promptly” was not in the instruction as read to the jury, and it was held by the court that the word “properly” being the word qualifying “marked,” no error had been committed.</p>

<p>Action in case. Appeal from the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding.</p>

<p>1. Fraternal benefit societies—what constitutes contract of insurance. The application, the benefit certificate and the by-laws of the society, so far as legal, are to be read together as constituting the entire contract of the" society with the member.</p> <p>2. Fraternal benefit societies—w7ien breach of warranty vitiates contract. A substantial breach of a warranty by a member whether material to the risk or not, will relieve the society of the obligation of payment unless such breach has been waived by the society.</p> <p>3. Fraternal benefit societies—what constitutes breach of warranty. Where the by-laws of a society provide that applicants for insurance must be over 18 and under 45 years of age, a warranty by an applicant that he was of eligible age, if untrue, will relieve the society of the obligation of payment unless the society has waived the breach.</p> <p>4. Fraternal benefit societies—effect of warranty as to date of birth and age. It is competent for a fraternal benefit society to require an applicant for insurance not only to warrant his actual age but Ms precise date of birth and such warranties where made are separate and distinct; and it is error for the court by its instructions to treat such warranties as constituting one and the same defense.</p> <p>5. Fraternal benefit societies—what essential to waive breach of warranty. A waiver of a breach of warranty by a fraternal benefit society is not established by the mere receipt and retention of an assessment; it must be shown that such assessment was received and retained with knowledge by an agent of the society of the facts which constituted the breach.</p> <p>6. Fraternal benefit societies—when waiver of one breach of warranty does not waive the breach of another warranty. While evidence might establish that a society has waived a breach of warranty consisting in the applicant falsely representing himself not to be over a .certain age, yet such evidence would not necessarily waive a breach of warranty consisting in a false statement of the date of his birth; the society might well be willing to overlook a slightly excessive age but not an age materially in excess of that represented.</p> <p>7. Fraternal benefit societies—what not essential to defense of waiver. In an action for insurance benefits against a fraternal benefit society the plaintiff is entitled to the benefit of the defense of waiver without specially pleading it.</p> <p>8. Fraternal benefit societies—effect of by-laws upon question of agency. In an action against a fraternal benefit society to recover insurance benefits the plaintiff may show that the officers of the local camp are the agents of the head camp, notwithstanding the fact that the by-laws provide that they shall be considered the agents of the plaintiff. It is not within the power of a fraternal benefit society to avoid the responsibility cast upon it by law for the acts of its agents by a provision in the by-laws that they shall not be considered its agents, if as a matter of fact they are its agents.</p> <p>9. Fraternal benefit societies—how question of agency determined. Whether or not the agents of a local camp are the agents of the head camp is a mixed question of law and fact to be determined by the jury under proper instruction on the evidence.</p> <p>10. Evidence—how proof of age may be established. The age of a deceased party may be established by proof of declarations of the deceased, by declarations of blood relatives, etc., when made ante litem motam.</p>

<p>‘ Action in case. Appeal from the Circuit Court of Jackson county; the Hon. W. N. Butler, Judge, presiding.</p>

<p>1. Corporations—.,jurisdiction of chancery to dissolve. A court of chancery has no jurisdiction to declare a forfeiture and to decree the dissolution of a corporation and the sale and distribution of its property and to appoint a receiver pending such proceedings except that given by section 25 of the Corporation Act.</p> <p>2. Corporations—section 25 of act construed. Section 25 of the Corporation Act conferring power upon courts of chancery to dissolve a corporation for “good cause shown” signifies a legal cause, such a one as the sovereign authority might by law resume the franchise granted.</p> <p>3. Corporations—jurisdiction of chancery to grant relief to minority stockholders. A court of chancery upon a proper showing has jurisdiction to grant relief to minority stockholders in case of fraudulent conduct by officers, directors or stockholders. .</p> <p>4. Corporations—what hill hy minority stockholder for appointment of receiver must allege. Where a bill by a minority stockholder for the appointment of a receiver is based on any particular ground the facts should be specifically set forth; the allegations should also be positive and definite in charging fraud or fraudulent mismanagement so that the court can say that the charges are not the mere conclusions of the pleader.</p> <p>5. Corporations—when appointment of receiver improper. The appointment of a receiver to take possession and control of corporate property is improper where the bill fails to show any equitable jurisdiction to granting the primary relief sought.</p> <p>6. Corporations—how power to appoint receivers exercised. Courts hesitate to throw corporations into the hands of receivers and proceed with extreme caution in the appointment of receivers and will refuse the appointment in cases where it is not clearly shown that the appointment will be beneficial to the parties in interest.</p> <p>7. Corporations—how right to examine records, etc., enforced. A stockholder has a right under the law to examine the records and books of account of a corporation, but such right is enforceable by mandamus rather than by injunction.</p> <p>8. Corporations—rule as to interference by courts with foreign. The general rule is that courts of’ one state will not interfere in controversies relating merely to the internal management of the affairs of a foreign corporation at the suit of a stockholder, and will refuse to appoint a receiver or dissolve the corporation or divide its assets among its shareholders.</p> <p>9. Chancery—how question of jurisdiction raised. All matters which go to the jurisdiction of a court of chancery may be taken advantage of by demurrer whether specially pointed out in the demurrer or not.</p>

<p>1. Bonds—when cleric approving, acts judicially. The clerk of the Circuit Court in approving sureties upon an appeal bond when directed to do so by the court, acts judicially or quasi judicially.</p> <p>2. Bonds—when cleric not liable for acceptance of insufficient sureties. The clerk of the Circuit Court in accepting sureties upon an appeal bond when directed by the court under the statute to pass upon the sureties that might be tendered, is not personally liable for accepting insufficient or insolvent sureties even though he may act negligently. In order to fasten personal liability upon him it must be established that his act was maliciously and wilfully wrong.</p>

<p>1. Personal injuries—what essential to recover. In an action for personal injuries it is necessary to aver and prove three elements, to make out a cause of action: “(1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure of the defendant to perform that duty; and (3) an injury to the plaintiff resulting from such failure.”</p> <p>2. Pleading—how averments should he made. In an action on the case for personal injuries the averments of the elements essential to constitute a cause of action must be positive and consist in the setting forth of the facts from which the legal conclusions follow; a declaration which merely states legal conclusions is insufficient.</p> <p>3. Pleading—when declaration in case insufficient. A declaration in an action on the case for personal injuries alleging that the injury in question resulted from coming in contact with a telephone wire heavily charged with electricity is insufficient if it fails to allege facts which show (I) that the defendants possessed, owned, used, operated or maintained such wire, (2) that the wire contained any defects or that it was in any way negligently strung, badly insulated or improperly attached to the pole, and (3) that the defendant had actual or constructive notice of the defects or dangers.</p> <p>4. Appeals and errors—effect of judgment erroneous as to one defendant. A judgment in an action on the case for personal injuries is a unit and if reversed as to one defendant will be reversed as to all.</p>

<p>1. Pleading—when declaration in case for negligent maintenance of railroad crossing sufficient after verdict. In an action on the case for personal injuries predicated upon section 8 of the Railroad and Warehouse Act, a declaration after verdict is sufficient which avers that it was the duty of the defendant railroad company to construct and maintain an approach to the crossing in question and that “as in pursuance of such duty” it caused to be placed a walk of ashes, cinders and other materials, beginning at the easternmost edge of its right of way on the south side of the street in question and did not maintain and keep it in repair, etc.</p> <p>2. Pleading—when declaration in case for negligent maintenance of railroad crossing not sufficient after verdict. In an action on the case for personal injuries predicated upon section 8 of the Railroad and Warehouse Act, a declaration is not sufficient if it fails to aver that a portion of the walk in question was a part of the approach to the crossing or that it' was built as such and fails to aver any facts showing it to be the duty of the defendant railroad company to maintain it as a sidewalk.</p> <p>3. Pleading—effect of failing to demur. All defects of a declaration not objected to before verdict are cured thereby, if the declaration amounts to a defective statement of a cause of action and not to a statement of a defective cause of action.</p> <p>4. Railroads—what essential to establish that walkway is approach to crossing. The fact that a railroad company builds a walkway connected with a crossing, together with the manner in which such walkway is built, and the fact that it continued to repair and control the same, tends to establish that such walkway was an approach to the crossing.</p> <p>5. Instructions—when refusal to direct verdict upon defective count will not reverse. The action of the court in refusing to direct a verdict upon a defective count will not reverse if the declaration contains one good count which the evidence tended to establish.</p> <p>6. Instructions—when inaccuracies will not reverse. Inaccuracies and awkward wording of instructions will not reverse in the absence of prejudice resulting.</p> <p>7. Instructions—repetitions. The court by its instructions is not bound to repeat the same proposition of law. A correct instruction may therefore he refused if its contents are substantially contained in another instruction given.</p> <p>8. Verdicts—when excessiveness not saved for review. The ex-cessiveness of a verdict will not be reviewed on appeal where no error has been assigned that the verdict is excessive.</p> <p>9. Personal injuries—what evidence will not reverse, as tending to arouse sympathy or prejudice. Held, that while it was error for the court to permit a plaintiff in an action for personal injuries to testify that she had a husband, a son and a daughter, yet that such evidence not being reflected in the size of the verdict did not constitute ground for reversal.</p>

<p>1. Statutory law—rule of construction. In interpreting the meaning of ordinances and statutes, particularly of statutes and ordinances substituted for old ones, “the old law, the new law, the mischief and the remedy must be considered.”</p> <p>2. Statutory law—rule of construction. In the interpretation of statutes and ordinances courts must be guided and governed by the legislative intent as expressed in the statute or ordinance and not by what they intended to but did not express thereby. Courts cannot modify them but must enforce them as they find them.</p> <p>3. Statutory law—when conduct of parties not considered in construction of ordinance. If an ordinance is plain and no room for construction exists the conduct of the parties under such ordinance will not be considered in determining its meaning. The • intention of the enacting body will govern.</p> <p>4. Fees and salaries—construction of ordinance pertaining to compensation of city attorney. The ordinance in question in this cause was as follows:</p> <p>“The city attorney shall be entitled to charge the city and receive as his fee, in each case, for the violation of city ordinances, an amount equal to one-half of the judgment recovered by said city for fine, penalty or forfeiture, and a salary of $300 per annum.”</p> <p>Seld, that such ordinance was plain in its meaning and that the city attorney was entitled to his compensation as fixed by such ordinance upon judgments recovered irrespective of whether the same had been collected.</p>

<p>1. Master and servant—when doctrine of assumed risk applies. A judgment obtained by a servant against his master for personal injuries sustained will not be enforced if the manifest weight of the evidence shows that such servant had assumed the risk of injury from the conditions prevailing which resulted in his injury.</p> <p>2. Contributory negligence—when restriction of cross-examination ground for reversal. It is error for the court to refuse to permit the answering of a Question which will tend to establish whether or not the plaintiff’s intestate was in the exercise of ordinary care for his own safety.</p> <p>3. Contributory negligence—what material upon issue of. The character of the machinery and the structures at the place of the accident, with their surroundings, the amount of light and the ability of one to see the structures, are all elements which bear upon the question as to whether ordinary care was exercised by the person injured or killed.</p> <p>4. Evidence—when coroner's verdict incompetent. A coroner is given no power by the statute to make a finding on the question of the negligence of either the injured or killed employe or of his employer, with a view to fixing or defeating personal liability -against the employer. A verdict imputing negligence to the employer is not admissible in evidence against such employer in an action for damages. In this case the verdict in question contained an objectionable finding as follows: “Said crank-shaft and pit was unprotected.”</p>

<p>Action in case for death caused by wrongful act. Appeal from the Circuit Court of Perry county; the Hon. Louis Bernreuter, Judge, presiding.</p>

Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. B. W. Pope, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).

<p>Administration of estates—when debts pro rated among legatees and devisees. Where the bequests of personal estate and the devises of real estate are both specific, both legatees and devisees must contribute pro rata to the payment of the debts of the deceased.</p>

<p>1. Master and servant—when doctrine of assumed risk applies. Where the dangers which resulted in the injury to the servant were obvious and open and well known to him and not known to the master nor shown to have existed for a sufficient length of time to raise a presumption of knowledge, a recovery by the servant will not be sustained.</p> <p>2. Instructions—upon what theories cause should not he submitted. A case should not be submitted to the jury upon a theory not supported by evidence in the case.</p> <p>3. Instructions—approved form where servant continues at employment notwithstanding master’s failure to repair after promise made. An instruction upon this subject as follows, is approved:</p> <p>“Even though you may believe from the evidence that the defendant did have a windlass which was used in conveying iron to the cupola and you believe from the evidence that this windlass was out of order so that it could not be used, and that the defendant promised the plaintiff to rep'air the windlass so that he could use the same in hauling iron to the cupola, and if you further believe from the evidence that after this promise was made to the plaintiff, if you believe it was made, that the defendant had ample and sufficient and reasonable time to repair said windlass and did not put it in working order and neglected or refused to do so, within a reasonable time after said promise to repair, then you are instructed that if you believe from the evidence that after this time had elapsed, and plaintiff knew or by the exercise of ordinary care might have known that the windlass was not repaired and had not been put in' such a condition that he could use the same, then there cannot be a recovery and your verdict as to it should be for the defendant.”</p>

<p>Assumpsit. Appeal from the Circuit Court of Richland county; the Hon. E. E. Newlin, Judge, presiding.</p>

<p>1. Instructions—when peremptory for defendant erroneous. If the evidence fairly tends to establish the plaintiffs right to recover, it is error to instruct the jury to find for the defendant. In such case it is for the jury to say what weight the evidence is entitled to and whether sufficient to sustain the action.</p> <p>2. Evidence—when exclusion error. If a party claims to have been seeking to fulfill its contract, evidence which tends to refute the bona fides of such claim is improperly excluded.</p> <p>3. Evidence—when declarations of deceased agent incompetent. The declarations of a deceased agent of a party are properly excluded if not made in the presence of the opposite party or its agent.</p> <p>4. Corporations—when foreign not doing business in this state. Held, under the evidence, that the foreign corporation, plaintiff in this suit, although unlicensed, was not doing business in this state within the meaning of the statute.</p>

<p>1. Torts—when violation of ordinance will not prevent recovery. In an action for the negligent killing of a horse, held, that the failure of the plaintiff to observe an ordinance requiring the hitching of his horse, did not preclude a recovery.</p> <p>2. Torts—when violation of law precludes recovery; when not. If in order to make out a case the plaintiff must show his own violation of law no recovery will be permitted, but if such plaintiff can and does make out a case without reference to any violation of law by him, a recovery will be sustained.</p>

<p>1. Mortgages—when grantee not personally liable. Taking a deed subject to outstanding mortgages, creates no personal liability on the grantee to pay off the encumbrances, unless he has by contract, expressed or clearly implied, specially agreed to do so.</p> <p>2. Mortgages—when grantee not personally liable. Held, that a grantee was not personally liable for a debt secured by mortgage under the following circumstances: A contract of purchase and sale was entered into by which such grantee agreed to assume the mortgage debt; subsequently, a deed being tendered pursuant to the terms of such contract, it was refused by such grantee, and thereupon a subsequent deed merely making the conveyance subject to the mortgage debt was tendered to and accepted by such grantee, with the distinct understanding that he would not assume and agree to pay the mortgage debt.</p>

<p>Action in case for personal injuries. Appeal from the Circuit Court of Marion county; the Hon. James C. McBride, Judge, presiding.</p>