Volume 193 — Illinois Appellate Court Reports

<p>1. Municipal Court op Chicago, § 32*—when statement of set-off does not set up tort. Statement of set-off in a fourth-class case setting forth that a certain person wrongfully and without authority sold certain merchandise of a certain value owned by it to the plaintiff who paid him therefor, that said person took said merchandise from the possession of the defendant without its knowledge, and that plaintiff refused to pay defendant therefor, held not open to objection as setting up a claim in tort in an action upon a contract.</p> <p>2. Municipal Court op Chicago, § 32*—when statement of set-off sufficient. The formalities of pleading have been abolished in cases of the fourth class, and a statement of set-off is sufficient if it apprises the plaintiff of the nature and character of the demand against it.</p> <p>3. Principal and agent, § 191*—what not a ratification. Statement of set-off in a fourth-class case alleging that a certain person wrongfully and without authority took merchandise of a certain value owned by the defendant and Sold it to the plaintiff, collecting therefor, and that plaintiff refused to return such merchandise or to pay defendant for same, held not bad on the theory that defendant thereby ratified the wrongful act of such third person, and made him its agent.</p> <p>4. Municipal Couet of Chicago, § 32*—what need not he alleged in statement of set-off. A statement of set-off averring that a certain person wrongfully and without authority sold merchandise owned by it to plaintiff and collected therefor, and that plaintiff refused to pay defendant for such merchandise or return the same, need not allege that the goods in question were converted into money or money’s worth by the plaintiff.</p> <p>5. Municipal Court of Chicago, § 32*—when statement of set-off does not claim unliquidated damages. Statement of set-off held not bad as claiming unliquidated damages.</p>

<p>Appeal from the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Cabbiebs, § 199*—when connecting carrier presumed to have received freight in good condition. The presumption is that goods which have been received by the initial carrier in good condition are received in a similar condition by each successive carrier up to the carrier making the delivery, and where the goods are in bad order upon delivery, the burden is on the delivering carrier to show that it provided proper means of transportation and exercised the degree of care which the goods required, or that the damage occurred before it received the goods.</p> <p>2. Cabbiebs, § 199*—what burden on shipper in action against delivering carrier. In an action by a shipper against the last of a series of carriers to recover for damage to freight, the burden is on him to show that the freight was in good condition when delivered to the initial carrier and that it was damaged when it arrived at its destination.</p> <p>3. Cabbiebs, § 139*—when evidence insufficient to show that freight was in good condition on delivery to carrier. In an action against the last connecting carrier for injury to a shipment of tomatoes, by freezing or chilling, evidence that one car of the shipment, which consisted of two cars, was examined two days before the delivery to the initial carrier, and the other three days before, is insufficient to raise the presumption that' the freight was in good condition when delivered to the initial carrier, where it appears that the weather between the time of examination and the time of delivery was very cold and that the cars were opened for the examination.</p>

<p>. 1. Municipal cobpobations, § 407*—when liable as trustee for improper distribution of special assessment fund. Where a municipality which had collected the full legal amount of the principal and interest of certain instalments of a special assessment applied the fund to the payment of outstanding bonds, and interest thereon, issued against the instalments, in the order of their presentation, with the result there were no funds to meet plaintiffs two bonds which were presented last, owing to the tact that the interest on the bond issue exceeded the interest on the assessment, the failure of the municipality to prorate the interest among the bondholders amounts to a misappropriation of plaintiff’s proportionate share of the fund, which renders the municipality liable to him therefor.</p> <p>2. Municipal corporations, § 407*—when treasurer required to prorate interest payments out of special assessment fund. It is the duty of the treasurer of a municipality to keep an account of the receipt of the principal and interest of the several instalments of a special assessment fund and of the amount of bonds outstanding against the instalments, and to prorate the payment of interest where necessary, even though he does not know who owns the outstanding bonds.</p> <p>3. Municipal corporations, § 148*—when liable for wrongful distribution of special assessment fund by treasurer. Wrongful distribution of a special assessment fund by a village treasurer to the detriment of the holder of bonds issued against the fund renders the village liable, although the matter of the distribution was not brought to the attention of the village trustees until some time after it was made.</p> <p>4. Municipal corporations, § 407*—lohen not relieved from prorating interest in distributing special assessment fund. The facts that the statute authorizing bond issues against special assessments gives municipalities the privilege of redeeming the bonds at the time of any annual payment of interest and permits any property owner to pay his assessment with such bonds which are to be accepted for their par value, and accrued interest, do not relieve the municipality from prorating the interest payments on the bonds where the interest on the assessment is insufficient to pay the interest on the bonds.</p> <p>5. Municipal corporations, § 403*—when payment of judgment recovered for wrongful distribution of special assessment fund not payment of special assessment bond. Where a judgment is recovered against a village by the holder of a bond issued against a special assessment for a violation by the village of its duty as trustee in distributing the special assessment fund, the payment of such judgment does not constitute the payment of a special assessment bond out of the general funds.</p>

<p>Abstract of the Decision.</p> <p>Judgments, § 84*—when amendment not allowable. The amendment of a judgment three days after its entry so as to make it run in favor of “Hugo Oppenheim and Bernard Strauss, a Co-partnership, trading as Oppenheim & Strauss” instead of being in favor of “Oppenheim & Strauss, a corporation” is not an amendment for a defect or imperfection in matter of form and is, therefore, not authorized by the Statute of Amendments and Jeofails (J. & A. H 301).</p>

<p>Abstract of the Decision.</p> <p>1. Master and servant, § 188*—when master liable for injury to servant acting in obedience to its order. Evidence in an action to recover for the death of an employee caused by a fall from a roof, examined and held to warrant a finding that the employee had gone on the roof in obedience to an order of the master to remedy a defect in a hoisting apparatus affixed to, the roof.</p> <p>2. Master and servant, § 167*—tohen master chargeable with notice of defect in appliance. Evidence, in an action to recover for the death of an employee alleged to have been caused by the fall of' a defectively fastened hoisting appliance, examined and held to warrant a finding that the master knew or by the exercise of due care care could have learned that the appliance was so unsecurely fastened that it was liable to be pulled loose.</p> <p>3. Master and servant, § 125*—what degree of care owed by master as to safety of appliances. A master, who employs in his work a hoisting appliance, consisting of a beam projecting from a roof and having attached to and projecting from it a plank, owes its employees the duty of exercising ordinary care to keep the beam and plank in a reasonably safe condition.</p> <p>4. Master and servant, § 134*—■when master guilty of negligence in using defective appliance. In an action to recover for the death of an employee alleged to have been caused through the fall of part of a hoisting appliance, consisting of a beam and plank fastened together, the evidence examined and held to warrant a finding that the master was guilty of negligence in permitting the plank to be and remain unsecurely fastened to the beam.</p> <p>5. Master and servant, § 698*—when risk not assumed by servant. In an action to recover for the death of an employee alleged to have been caused by the fall of a defective hoisting appliance, evidence examined and held not to. warrant a finding that the employee assumed the risk of the fall of the appliance.</p> <p>6. Master and servant, § 699*—when servant not guilty of contributory negligence. In an action to recover for the death of an employee alleged to have been caused by the fall of a defective hoisting appliance which he was on the roof adjusting in obedience to the master’s order, evidence examined and held not to warrant a finding that the employee was guilty of contributory negligence.</p> <p>7. Master and servant, § 161*-—when duty of inspecting appli-. anees on master and not on servant. The duty of inspecting a hoisting appliance which the master used in his business is on the master and not on the servant, and the latter has the right to assume, in the absence of anything tending to the contrary, that it is securely fastened when he goes on it to adjust it in obedience to the master’s orders.</p> <p>8. Instructions, § 166*—when orgl instruction as to form of verdict not error. Where, in an action against two defendants to recover for the death of plaintiff’s intestate, the jury returns two verdicts, one finding one defendant guilty and assessing the damages againSt it at a certain sum, and the other finding the other defendant guilty and assessing the damages against it at a different sum, it is not error for the court to instruct the jury orally, and in the absence of defendants, that if they should find all the defendants guilty, all must be included in one verdict and they should then assess whatever damages they should find, from the evidence and under the instructions, the plaintiff had sustained and that they should return and bring in such a verdict.</p>

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

<p>Appeal from the Municipal Court of Chicago; the Hon. John D. Turnbaugh, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).</p>

<p>Abstract of tlie Decision.</p> <p>1. Chattel mortgages, § 7*—when Mil of sale not a mortgage. Evidence examined in a replevin suit to recover possession of an automobile held under a bill of sale claimed to have been given as a mortgage and held sufficient to support a finding that the bill of sale was an absolute conveyance and not a mortgage.</p> <p>2. Replevin, § 50*—when tender of return of consideration necessary. When, in a replevin suit, it is claimed that the bill of sale under which defendant holds the chattel was in fact a mortgage, plaintiff is not entitled to the possession of the property unless he tendered defendant the amount due on the mortgage and kept the tender good.</p> <p>3. Damages, § 250*—when error in instructing as to measure of damages cured 6y remittitur. A judgment for defendant in replevin will not be reversed on the ground that the jury were improperly instructed as to the measure of damages and that the verdict was improper in assessing the defendant’s damages at a certain sum, where an order was entered remitting that amount of damages.</p>

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

<p>Error to the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.</p>

<p>1. Appeal and error, § 1571*—when inclusion in judgment of defendant not served not reversible error. A judgment will not be reversed for the inadvertent entry thereof in favor of three defendants, one of whom was not served, where the record was amended during the pendency of an appeal and an additional record filed in the Appellate Court.</p> <p>■ 2. Principal and surety, § 52*—burden of proving release of sureties by principal accepting obligor’s note. In an action against sureties on a bond, they have the burden of establishing by a preponderance of the evidence that they were released from liability by the acceptance by the principal of the obligor’s note in payment of the secured debt.</p> <p>3. Principal and surety, § 54*—sufficiency of evidence to show release of surety by principal accepting obligee’s note. The evidence held not to show that the principal in a bond accepted the obligee’s note in payment of a secured debt so as to release the sureties on the bond. -</p> <p>4. Payment, § 6*—when acceptance of note payment of pre-existing debt. The acceptance by a creditor of a debtor’s note for the amount of a pre-existing indebtedness does not constitute payment unless the former agrees to take the note in absolute payment.</p> <p>5. Principal and surety, § 54*—when judgment should be for plaintiff in action against sureties. Judgment should be rendered for the plaintiff in an action against the sureties on a bond, where the evidence shows that the former merely accepted the obligee's note as evidence of the secured debt and not in absolute payment thereof.</p> <p>6. Payment, § 6*—when bringing note into court sufficient surrender to permit recovery against sureties of original debt. A note accepted by a creditor as evidence of the amount of an indebtedness secured by a bond is sufficiently surrendered to permit a recovery on a bond securing the original debt, where the instrument is produced in court, made a part of the record and submitted to the control of the court.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding.</p>

<p>Error to the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh and Hon. N. E. Worthington, Judges, presiding.</p>

<p>1. Equity, § 110*—right of judgment creditor of partner to intervene in dissolution proceedings. Where one partner brought a dissolution proceeding against his copartner and made the latter’s wife a party in order to settle a dispute between the two over the ownership of the husband’s interest, a judgment creditor of the husband cannot, under an allegation of a conspiracy between the husband and wife to defeat his claim, intervene in the proceeding and apply the proceeds of the husband’s interest to the satisfaction of the judgment. «</p> <p>2. Appeal and ebbok, § 412*—when objection to intervention of judgment creditor of one partner in dissolution proceeding propefly reserved. An objection that a judgment creditor of one partner could not intervene in a dissolution proceeding in order to subject the latter’s interest to the satisfaction of the judgment, held sufficiently raised in order to permit its consideration on appeal.</p> <p>3. Cbeditobs’ suit; § 45*—when receiver in dissolution proceeding may be made party to action by judgment creditor against one partner. On a proper showing, leave may be granted a judgment creditor of one partner to make the receiver in a dissolution proceeding a party to a judgment creditor’s bill.</p>

<p>Abstract of the Decision.</p> <p>1. Mines and minebals, § 108*—when low roof in entry wap must he marked. When the roof of an entry way in a mine is so low as to be dangerous to employees rightfully traveling therein, it is such, a condition which the spirit of the Mining Act requires to be marked and removed.</p> <p>2. Mines and minerals, § 182*—when question for jury whether low roof in entry way dangerous condition. Whether the roof of an entry way in a mine was so low as to constitute a condition dangerous to miners is a question for the jury.</p> <p>3. Mines and minerals, § 108*—when low roof of entry way must be marked. If the roof of an entry way in a mine is so low as to be dangerous to miners rightfully using it, it is the duty of the employer to conspicuously mark the place, to enter a report thereof in the books kept for that purpose and not to permit miners •to use the entry way until the dangerous condition is removed.</p> <p>4. Mines and minerals, § 174*—sufficiency of evidence to show dangerous condition of low roof of entry way. The evidence in an action for injuries sustained by a miner who was knocked down by the low roof of a mine entry way, held to justify a finding that the place was dangerous.</p> <p>5. Mines and minerals, § 106*—effect of rule prohibiting use of hauling ways by miners during working hours. A rule of a mining company requiring miners to keep off hauling ways and away from the bottom of shafts during working hours while the mine was -in operation does not constitute a defense to an action for injuries sustained by a miner from being run down by a car while he was traveling through an entry way to the shaft after he had been prevented from completing his day’s work, since such rule violated sec. 17 of the Mining Act (J. & A. If 7486), providing that men who have completed their day’s work or who have been prevented from finishing work shall come to the shaft to be hoisted out.</p> <p>6. Mines and minerals, § 91*—right of miner to use passageways. The requirement of the Mining Act for places of refuge not over sixty feet apart in the sides of the passageways of a mine permits miners to use such passageways at any time.</p> <p>7. Mines and minerals, § 194*—instruction as to rule prohibiting miners using hauling ways during working hours. In an action for injuries received by a miner by being run over by a car while he was on his way from work to the bottom of a shaft, the court properly declined an instruction regarding a rule of the employer requiring miners to keep off the hauling ways and away from the bottom of the shaft while the mine was in operation during working hours, since the rule conflicted with the provisions of the Mining Act permitting miners to come to the bottom of shafts to be hoisted to the surface when their work was finished or they were prevented from continuing their work.</p> <p>8. Mines and minerals, § 193*—instruction as to recovery for permanent injury to miner. An instruction in an action for injuries sustained by a miner, as to his right to recover for permanent injuries, held sustained by evidence that eighteen months after the injury one knee was one and one-half inches larger in circumference than the other, although a physician testified that in his opinion the knee would be normal in six or eight months.</p>

<p>Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding.</p>

<p>Error to the Circuit Court of Will county; the Hon. Dorrance Dibell, Judge, presiding.</p>

<p>Error to the Circuit Court of Kane county; the Hon. Mazzini Slusseb, Judge, presiding.</p>

<p>1. Street railroads, § 133*—when negligence to run interurban car without headlight. Whether it was negligence to run an interurban electric car at night without the ordinary or usual headlight, held, under the circumstances, to be a question for the jury.</p> <p>2. Street railroads, § 131*—sufficiency of evidence of negligence in running interurban car at night. The evidence in an action against an electric interurban railway company for injuries sustained in the nighttime by the occupants of a carriage in a collision with a car, held sufficient to warrant a finding of the negligence of the defendant in operating the car without a headlight, and in not giving warning of the approach of the car.</p> <p>3. Street railroads, § 131*—sufficiency of evidence of due care of person injured in collision with car. The evidence in an action against an electric interurban railway company for injuries sustained by the occupants of a carriage in a collision with the car in the nighttime, held sufficient to warrant a finding that they exercised due care.</p> <p>4. Damages, § 115*-—when damages for injuries to person and property not excessive. ' A verdict in favor of a man seventy-four years of age, for injuries sustained in a collision in the nighttime between a carriage in which he and his wife were riding and an electric interurban car, based on injuries to his person, his carriage, his horses and' the loss of the services of Ms wife, held not excessive.</p> <p>5. Damages, § 115*—when damages for personal injury to woman not excessive. A verdict in favor of a woman sixty-four years of age for "injuries received in a collision between a carriage in which she was riding and an electric interurban car, held not excessive.</p>

<p>1. Homestead, § 30*—when exemption may be claimed in different lots. Where a person owned and lived upon two half city lots with a dwelling house on one and fruit trees and a garden on the other, held that his homestead extended to both lots.</p> <p>2. Homestead, § 27*—when incumbrance deducted in determining value of homestead. The amount of a mortgage is to he deducted from the value of property in determining the value of a homestead.</p> <p>3. Homestead, § 33*—claiming exemption in proceeds of sale as direction to apply on incumbrance portion arising from nonexempt land. Claiming the proceeds of the sale of a homestead and nonhomestead lands as exempt after - the payment of a mortgage thereon is equivalent to a direction that the proceeds from the nonexempt portion should be first applied in payment of the incumbrance.</p> <p>4. Homestead, § 99*—when toaiver of homestead not available to simple contract creditor.- The waiver of a homestead exemption in a portion of incumbered lands does not extend to the benefit of a simple contract creditor, and the homesteader may under section 4 of the Exemption Act (J. & A. f 5574) require the proceeds to be first applied in satisfaction of the incumbrance.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.</p> <p>Certiorari denied by Supreme Court (making opinion final).</p>

<p>Appeal from the County Court of Peoria county; the Hon. Clyde E. Stoke, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Peoria county; the Hon. Theodore'N. Green, Judge, presiding..</p>

<p>1. Payment, § 6*—when acceptance of obligation of third person constitutes payment. The receipt of an acceptance or note of a third person is ordinarily presumed to be a conditional rather than an absolute payment of an existing debt.</p> <p>2. Payment, § 6*—when acceptance of obligation of third person presumed not intended as payment. The mere acceptance by a creditor of the obligation of a third person makes it collateral security only; and it will be presumed that the parties did not intend it to operate as an immediate, absolute discharge of the original debt, unless accepted with an actual agreement to that effect or under circumstances from which arises a positive inference of a discharge.</p> <p>3. Novation, § 1*—what constitutes a novation. A novation takes place where the maker of a note gave the payee an order on a third person for its payment from money due the maker, which was accepted by the third person, and the note was surrendered by the payee to the maker.</p> <p>4. Payment, § 6*—when acceptance of order on third person constitutes payment of note. An order on a third person given by the maker of a note for the amount thereof, and its acceptance by the payee, who thereupon surrendered the note to the maker, held a satisfaction of the original indebtedness.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding.</p>

<p>1. Negligence, § 23*—ivhen nuisance caused by encroachment of vestibule into street proximate cause of injury to customer learning store. The encroachment of a store vestibule into a street so as to constitute a public nuisance, does not amount to negligence which is the proximate cause of an injury, sustained by a customer in leaving the store, as the result of a door, in the vestibule, and wholly within the street, swinging back against him.</p> <p>2. Negligence, § 42*—when negligence presumed from happening of accident. An inference of negligence on the part of the owner of a store cannot be drawn from the fact that a customer in leaving the store was injured by a door swinging back against him.</p> <p>3. Nuisance, § 79*—when person injured in vestibule of store constituting public nuisance not a pedestrian. A customer who was injured by a door swinging back against him as he was leaving a store vestibule cannot be held to have been a pedestrian by reason of the fact that the vestibule encroached on a street so as to constitute a public nuisance.</p> <p>4. Negligence, § 93*—contributory negligence of person injured by door while leaving store. A customer who was injured while leaving a store by a door swinging back against him, held not to have been guilty of contributory negligence.</p>

<p>Insubance, § 830*—when named beneficiary is trustee for insured’s widow. Where a man obtained a certificate of insurance in the name of his mother because the rules of the insurer prohibited the naming of an intended wife as beneficiary, and after his marriage, without a change of beneficiaries, the certificate was delivered to his wife and she thereafter paid the dues and assessments until his death, when the mother obtained the certificate by promising to collect the money and give it to the widow, held on the insurer paying the money into court under an interpleader, that the mother was a trustee for the benefit of the widow.</p>

<p>1. Insurance, § 336*—when insurer cannot dispute truthfulness of statements inserted in application by agent. An insurance company cannot dispute the truthfulness of statements in an application for insurance, notwithstanding that they are expressly made warranties and representations as the basis for the issuance of a policy, which were inserted by its agents without fraud or collusion on the part of the applicant.</p> <p>2. Insubance, § 338*—who agent within rule binding insurer by false statements inserted in application by agent. A regular examining physician • for an insurance order and a local body thereof, held agents of the supreme body in obtaining an application for insurance, in which, without fraud or collusion on the part of the applicant, they inserted false statements as to his health and family history.</p> <p>3. Insubance, § 338*—when insurer estopped by false statements as to health of assured inserted in application by medical examiner. Where an agent of an insurance society together with its regular examining physician, with full knowledge of all the facts, falsely stated in an application for insurance, without fraud or collusion on the part of the applicant, that he was in good health, that he had not received medical treatment during the preceding five years, or submitted to surgical operations, and that his father died of appendicitis when in fact he had consumption, held to estop the insurer from asserting the falsity of the statements, notwithstanding that the applicant had previously been operated on for the removal of a growth from his head and contemplated a second operation therefor at the date of the application, which was performed before the delivery of the policy, and which subsequently developed into a cancer which caused his death.</p> <p>4. Insurance, § 704*—when error in sustaining demurrer to answer alleging false warranties and representations in application cured t>y instructions. The fact that a demurrer was sustained to an answer in an action on a policy of insurance, alleging the falsity of warranties and representations in the application therefor, held not prejudicial to the defendant, where the latter Was given the full benefit of such answer by an instruction to the effect that the plaintiff could not recover if his answers were not true, unless the defendant’s agents were aware of their falsity at the time they were made.</p> <p>5. Trial, § 113*-—when right to malee opening and closing argument waived hy defendant. The denial of a motion to permit the defendant to make the opening and closing argument to the jury in an action on a policy of life insurance, held not erroneous where the defendant, by its conduct at the trial, left it to the plaintiff to open the case in introducing evidence.</p>

<p>Error to the Circuit Court of Boone county; the Hon. Charles H. Donnelly, Judge, presiding.</p>

<p>Appeal from the City Court of Sterling; the Hon. Gael E. Sheldon, Judge, presiding.</p>

<p>Appeal from the City Court of Spring Valley; the Hon. W. H. Hawthorne, Judge, presiding.</p>

<p>Insurance, § 810*—when subsequent eligibility entitles beneficiary to proceeds of certificate. In an action to recover on a certificate of insurance, it appeared that the application and the certificate named one as beneficiary as the wife of the insured, whereas she was affianced but not married to him and ineligible as beneficiary under the laws of the insurer-. After her marriage to the insured, a change in the laws rendered, affianced wives eligible. The laws of the insurer also provided that a change in beneficiaries could only be made on application to the insurer, but no such application was made by the insured. Held that the beneficiary was entitled to recover.</p>

<p>1. Carriers, § 525*—when plaintiff may he cross-examined in action for ejectment as to previous ejectment. Where the declaration in an action against a street railroad company for the ejection of a passenger, alleges in different counts two ejections on the same day, and at the trial the plaintiff limits his evidence to the second act, held that it was not reversible error to permit him to be cross-examined as to the previous ejection, under the circumstances.</p> <p>2. Carriers, § 522*—when plea estops carrier from asserting that ejected person was not passenger. Where the declaration in an action for the ejectment of a person from a street car, alleges that the plaintiff' while lawfully a passenger thereon and while conducting himself in a peaceable and orderly manner, was, without right or provocation, ejected by the servants of the carrier with force and arms, and wantonly, wilfully, carelessly and negligently assaulted, to which the defendant pleaded molliter manus inposuit, to which the plaintiff replied that the defendant of its own wrong, and without the cause alleged in its plea, committed the several trespasses alleged, an issue was tendered as to whether, more force than necessary was used, and the defendant cannot assert that the plaintiff was not a passenger, was not lawfully on the car, and that he was rightfully ejected.</p> <p>3. Cabriers, § 262*—when duty to carry cannot he enforced hy refusal to, pay fare. Where a street railroad company refused to carry a passenger to a point to which it was legally bound to take him, he cannot enforce such duty under a demand to carry him to his destination by refusing to pay fare after ejection from another car, since it was his duty to pay the demanded fare or leave the car on request, and to pursue an orderly legal remedy.</p> <p>4. Carriers, § 503*—when person ejected for refusal to pay illegal fare entitled to damages. A street car passenger cannot recover for injuries received when ejected from a car, in the absence of wilfulness, wantonness or the exercise of unnecessary force by the carrier’s servants, where on a car stopping short of its destination, he refused to leave until the car returned to its barn, when he boarded another car and demanded to be carried to his destination, and was ejected for refusing to pay his fare.</p> <p>5. Cabriers, § 526*—sufficiency of evidence to show use of unnecessary force in ejecting passenger. The evidence in án action for the ejectment of a person from a street car for nonpayment of an alleged illegal fare, held to show that no unnecessary force was used by the servants of the carrier.</p> <p>6. Appeal and Error, § 1520*—when judgment not reversed for error in directing a verdict. Even though the trial court erred in directing a verdict on conflicting evidence, the judgment will not be reversed on that account, where the case was such that if a contrary verdict had been rendered the Appellate Court would have reversed the judgment with a finding of facts.</p>

<p>Appeal from the Circuit Court of Putnam county; the Hon. John M. Niehaus, Judge, presiding.</p>

<p>1. Automobiles and gabages, § 3*—sufficiency of evidence of ‘want of care in operating automobile. The evidence in an action for injuries received by a pedestrian who was knocked down by an automobile, held sufficient to warrant a finding that neither the driver of a commercial car nor his assistant were looking ahead a sufficient length of time before the accident to avoid striking the plaintiff.</p> <p>2. Automobiles and gabages, § 2*—duty of driver to give warning to pedestrians. The driver of an automobile is bound to assume that pedestrians will be using street crossings and to give them, or to be ready to give them, reasonable warning of the approach of his car.</p> <p>3. Automobiles and gabages, § 3*—when question for jury whether chime of bells sufficient to give warning. Whether a chime of small bells attached to an automobile was sufficient to give a pedestrian warning of the approach of the car, held a question for the jury in an action for personal injuries.</p> <p>4. Automobiles and gabages, § 3*—directing verdict for defendant in action for injury to pedestrian. The refusal in an action for injuries to a pedestrian by being struck by an automobile, to direct a verdict for the defendant, held not erroneous.</p> <p>5. Automobiles and gabages, § 3*—sufficiency of instructions ih action for injury to pedestrian. Held, that there was no reversible error in the giving or refusal of instructions in an action for injuries sustained by a pedestrian Who was struck by an automobile.</p> <p>6. Appeal and bbbob, § 1241*—when invited error in instructions not reversible error. Where an instruction is given at the request of an appellant on an erroneous theory, he cannot complain of the adoption of such theory by the court in giving other instructions.</p>

<p>1. Appeal and errok, § 800*—when denial of motion to strike remand order from files reviewaile. Since the clerk of a Circuit Court has no power to certify into a common-law record the written reasons assigned for nor the proof heard on a motion to strike from the files a remanding order of the Appellate Court until the costs of both courts are paid, such matter, when not embodied in a bill of exceptions, will be stricken from the record by the Appellate Court on a subsequent appeal.</p> <p>2. Appeal and errob, § 990*—when denial of a motion to strilce remand ord'ór from files reviewable. Where, on a motion to require the plaintiff to give security for costs, the defendant offered in evidence a motion and supporting affidavits and papers, filed at a former term, to strike from the files a remanding order from the Appellate Court, and which were afterwards incorporated in a bill of exceptions to the denial of the motion for security, the action of the trial court at the previous term, in denying the motion to strike, is not open to review thereunder.</p> <p>3. Costs, § 38*—when motion for security to be made. A motion made during the trial of an action, to require the plaintiff to give security for costs on the ground that the defendant just learned that the plaintiff had conveyed his homestead, which was incumbered, to his son by a voluntary deed, filed for record a week before the opening of the trial, for the alleged purpose of preventing the defendant from collecting the costs of a previous trial, held properly denied, where the defendant did not levy execution and have the homestead, which was worth more than the exemption, set. off, since under the circumstances the motion should have been made before going to trial.</p> <p>4. Appeal and ebrob, § 991*—when refusal to permit juror to be questioned is error. The refusal to permit certain questions to be put to veniremen, who were not accepted and who did not sit on the trial of a case, will not be reviewed, although the defeated party exhausted his peremptory challenges, where the abstract does not show that an unfair jury was put upon him or that he thereafter desired to and was denied the right to challenge other jurors.</p> <p>5. Appeal and ebror, § 1625*—when exclusion of evidence cured by subsequent admission. Where objections are improperly sustained to questions put to a witness on cross-examination, the error is cured where the answers sought were subsequently elicited before the cross-examination of the witness was completed.</p> <p>6. Witnesses, § 178*—how witness interrogated as to testimony at former trial. On a second trial of an action, a question put to a witness as to his testimony at the former trial held properly rejected, where the question embodied many questions and answers, some of which were in harmony with the witness’ testimony given at the last trial, since the questions should have been separated.</p> <p>7. Evidence, § 52*—when evidence of place of birth admissible. It is not reversible error for the plaintiff on direct examination in an action against his employer for personal injuries, to state that he was born in Sweden, where he had been in this country for three years and his superiors thought it necessary to address him in Swedish, and it did not appear that any person of that nationality was a juror.</p> <p>8. Trial, § 73*—when evidence in chief admissible on cross-examination of opposite party. When the plaintiff is the first witness examined in an action against his employer for personal injuries, the defendant cannot on his cross-examination introduce in evidence a model, diagram or plan of the machine by which the injury was caused, nor can he suspend the cross-examination of the witness and introduce evidence in his own behalf to prove the correctness of such exhibits and then proceed with the cross-examination.</p> <p>9. Evidence, § 459*—when evidence of witness at former trial may not be shown by bill of exceptions. On the second trial of an action, the defendant cannot show the evidence of the plaintiff and his witnesses at the former trial by introducing a bill of exceptions in which such testimony was embodied.</p> <p>10. Master and servant, § 605*—when statements of employer's representatives admissible in action for injuries to employee. Evidence as to what was said to a factory employee by his superiors; as representatives of their employer, is admissible in an action against the latter for personal injuries.</p> <p>11. Master and servant, § 622*—when evidence as to condition of machine after accident admissible. Evidence as to the condition of a machine three days after an employee was injured by it is admissible in an action against his employer, where in the meantime the machine was operated but fifteen minutes immediately following the accident.</p> <p>12. Master and servant, § 457*—when duty of employee to inspect machinery for defects. Where an unskilled employee working at a drop hammer was not required to give attention to mechanism located fifteen feet above the floor, other tnan to twice a day place oil in certain holes in the bearings, he was under no duty to inspect the mechanism for defects.</p> <p>13. Master and servant, § 339*—when employee assumes risk of nonrepair of machinery. Where an unskilled employee working at a drop hammer was not required to give attention to mechanism fifteen feet above the floor, other than to put oil on the bearings twice a day, he does not assume the risk of injury from the nonrepair thereof.</p> <p>14. Master and servant, § 709*—when defective condition of machine question for jury. Whether the overhead mechanism operating a drop hammer was left in an improper condition after repairing, and whether it was in that condition at the time of an employee’s injury by the premature dropping of the hammer, is a question for the jury, where the device which sustained the hammer when not in operation was left in such a condition as to prevent it safely performing its necessary functions.</p> <p>15. Master and servant, § 711*—when question for jury whether master properly inspected machine. Whether an employer properly performed his duty in inspecting the overhead mechanism operating a drop hammer is a question for the jury, in an action hy an employee for injuries sustained hy a premature movement thereof, where such machine was repaired and the device which sustained the hammer when not in use was left in a defective condition so that the hammer frequently dropped when the machine was at rest.</p> <p>16. Master and servant, § 751*—when question of servant’s due care in pushing iron through drop hammer for jury. Whether an employee was in the exercise of due care when his hand was injured hy the premature fall of a drop hammer is a question for the jury, where at the time he was reaching under the hammer 'in a manner commonly pursued, pushing a piece of iron into a cart on the opposite side of the machine, which was safe when the hammer was in proper repair.</p> <p>17. Damages, § 131*—when judgment for injury to hand not excessive. A judgment for $5,763.61 is not excessive for the loss of three-fourths of the palm and all of the fingers except the index finger of an employee’s right hand.</p> <p>18. Master and servant, § 795*—tohen requested instructions properly denied. Requested instructions are properly denied in an action against an employer for injuries received by an employee, when they assume a state of facts not sustained by the evidence, or based on conflicting testimony, or when covered by the general charge given.</p> <p>19. Master and servant, § 174*—when following customary manner of work not negligence. An instruction in an action for injuries to an employee caused by the premature action of a drop hammer he was operating, to the effect that he could not recover if he was doing his work in an unnecessary manner, of which his employer was not aware, nor of which he could not have known by the exercise of ordinary care, was properly refused, where an assistant superintendent and several foremen in the defendant’s employ were aware that the injured employee was doing his work in the manner commonly followed by other employees.</p> <p>20. Master and servant, § 685*—when verdict rendered for injured servant in absence of showing of defect responsible. The jury may find for the plaintiff in an action for injuries sustained by an employee from the premature action of a drop hammer, although the evidence does not show the precise defect that caused the accident, where the declaration charges that the employer negligently permitted the machine to become and remain out of repair and in a dangerous condition, to the plaintiff’s injury.</p> <p>■ 21. Master and servant, § 182*—when violation of rule hy injured employee no defense. That an injury to an employee’s hand, hy the premature action of a drop hammer, was due to his violation of a rule of his employer prohibiting the pushing of pieces of iron through the hammer, is no defense to an action against the latter, where the continued violation of such rule was known to the assistant superintendent and several foremen in the defendant’s employ, and the injured employee had been instructed to do as other employees did.</p> <p>22. Master and servant, § 795*—when requested instructions properly refused. Requested instructions in an action by an employee for injuries to his hand, caused by the premature movement of a drop hammer, held properly refused.</p> <p>23. Master and servant, § 799*—when instructions in action for injury to hand proper. The instructions given in an action for injuries to a hand of an employee by the premature action of a drop hammer, held to be correct.</p>

<p>Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusser, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>Injunction, § 62*—when co-owner of dam restrained from making repairs. An injunction to restrain one joint owner of a dam from making repairs at the expense of his co-owners, held properly denied, where the dam was acquired by several persons by conveyances permitting any one of them, on notice to the others, to make repairs and to charge the others with their proportion of the expense, especially when the evidence did not show but that the repairs would place the structure in a safe, serviceable condition.</p>

<p>Abstract of the Decision.</p> <p>1. Mechanics’ liens, § 191*—when items omitted from bill of complaint may bo brought in by amendment. A bill of complaint filed by a contractor for an accounting and to foreclose a mechanic’s lien for the construction of and for materials furnished for a building, may be amended, without a showing to the court either at the time of amendment or at the hearing, so as to include items omitted from the bill.</p> <p>2. Building 'and construction contracts,, § 25*—when contract- or may recover on substantial performance. A contractor may recover for the construction of a building where he has substantially performed the contract, although there may be some defects in workmanship and materials, and deviations from the strict letter of the specifications in details of construction.</p> <p>3. Building and construction contracts, § 85*—when failure to comply with specifications ground for recoupment. Damages sustained by the failure of a contractor to construct a building in strict accordance with the plans and specifications, or from the use of defective materials, may be recouped by a property owner in an action by the former to recover the balance due him.</p> <p>4. Building and construction contracts, § 49*—-when contract- or’s liability for liquidated damages deemed waived. A property owner’s right to recover liquidated damages for a contractor’s failure to complete a building within the stipulated time, he'ld waived, under a contract providing that the structure should be ready for occupancy by a certain day, “weather and other conditions permitting,” where the delay was caused by bad weather, and changes and additions made at the request of the owner; and the latter took possession of the building after the expiration of the time fixed for completion, and thereafter the contractor, at the owner’s request, furnished money and materials for its completion, whereupon the parties met and substantially agreed on the balance due the contractor.</p>

<p>Error to the County Court of Bureau county; the Hon. Geobge Bedfobd, Judge, presiding.</p>

<p>Error to the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Knox county; the Hon. George W. Thompson, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Knox county; the Hon. R. J. Grier, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Railroads, § ' 334*—when injury to crops by overflow proximate result of obstruction of stream. Evidence that a railway company obstructed a stream by driving piles closely together, which in times of heavy rains or freshets caused the water to back up on the plaintiff’s land to the injury of his crops, is sufficient to sustain an inference that the negligence of the railway company was the proximate cause of such injury.</p> <p>2. Evidence, § 478*—when inference of ultimate facts sufficient to sustain verdict. Where evidentiary facts fairly justify an inference of the ultimate facts to be proved, their probative force is sufficient to sustain a verdict.</p> <p>3. Railroads, § 348*—evidence as to obstruction backing up waters of stream. A witness may testify in an action for damages to crops caused by a railway company placing piles so closely together in a stream as to cause the water to back up during heavy rains or freshets, as to his observations of the waters at that time.</p> <p>4. Railroads, § 348*—evidence as to effect on crops of backing up water of stream. In an action against a railway company for damage to crops caused by the waters of a stream backing up, in which the defendant had placed piles closely together, a witness may testify as to the effect of the overflow of the waters on the crops.</p> <p>5. Railroads, § 348*—evidence of effect of obstruction on waters of stream. A witness may testify, in an action against a railway company for damages to crops caused by the backing up of the waters of a stream in which 'the defendant had driven piles closely together, as to the effect on the waters of trees, brush, weeds and straw lodging between th,e piling.</p> <p>6. Railroads, § 352*—when instructions sufficient as to liability for obstructing stream. An instruction in an action against a railway company, for damages to crops from the waters of a stream backing up as the result of the defendant placing piles closely together in the stream, as to the liability of the company for overflow of waters during such a heavy rain or freshet as could have been reasonably anticipated, is not bad because of the omission of the words “by an ordinarily prudent person,” where such qualification was fully covered by other portions of the court’s charge.</p> <p>7. Instructions, § 159*—lohen instructions considered as a whole. In determining the sufficiency of a portion of an instruction, the charge must be taken’ and considered together as a whole.</p> <p>8. Railroads, § 352*—instruction requiring finding to he based on allegation of declaration instead of proof. An instruction in an action against a railway company for damages caused a crop by the backing up of water as the result of the defendant placing piles closely together in a stream, held not to permit the jury to find the negligence of the defendant from the allegations of the declaration, but to require it to be found from the proofs.</p>

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

<p>1. Release, § 8*—when not impeachable in action at law fon fraud. A release of a cause of action cannot be impeached in an action at law for fraud which does not inhere in its execution, but which goes merely to the consideration, since equity only can grant relief in such a case.</p> <p>2. Release, § 8*—when impeachable in action at law. A release of liability for the death of the plaintiff’s husband can be impeached in an action at law, where she was misled by the defendant into executing it, believing that it was a contract whereby she would receive a further sum in the event that other widows were paid a greater amount for the death of their husbands in a common disaster, since the fraud inhered in the execution of the instrument.</p> <p>3. Pleading, § 225*—effect of pleading over. Where the plaintiff, on the sustaining of a demurrer to his replication, obtains leave to and files an amended replication without asking leave to plead double, the original replication is abandoned, and its sufficiency is not open to review on appeal.</p> <p>4. Pleading, § 122*—what replication should contain. Explanations as to discrepancies between an original and an amended replication are not properly a part of the latter pleading, and no issue can he made thereon.</p> <p>5. Release, § 8*—when receipt of money not ratification of release obtained by fraud. The receipt of money under a release obtained by fraud inhering in its execution is not a ratification thereof, where the defendant retained the instrument and the plaintiff was not aware of its true nature until pleaded as a defense to an action at law.</p> <p>6. Release, § 8*—when person not estopped by receipt of money under release obtained by fraud. The receipt of money under a release which was obtained by fraud inhering in its execution does not estop the defrauded party, where the defendant retained the instrument and the plaintiff had no knowledge of its true nature until relied upon by the defendant as a défense to an action at law.</p> <p>7. Release, § 12*—when return of money not prerequisite to action. Money received by the plaintiff under a release which was obtained by fraud inhering in its execution need not be returned before bringing an action at law, where he was not aware of the true nature of the instrument until relied on by the defendant as a defense.</p> <p>8. Release, § 9*—when failure to read not negligence. That a person was negligent as a matter of law, in signing a release without procuring his eyeglasses and learning its contents, held not shown by a replication, where the true nature of the instrument was misrepresented to him.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Jo Daviess county; the Hon. Richabd S. Fabband, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).</p>

<p>1. Corporations, § 237*—when want of notice vitiates election of director. A person acquires no right as a director of a corporation under an election held in the absence of the notice required by law, to stockholders of the time and place of holding the election, unless all of the stockholders are present and acted in or assented to the election being held; their mere physical presence is not sufficient.</p> <p>2. Corporations, § 181*—when stockholders’ knowledge of election of directors waives want of notice. The fact that all of the stockholders have knowledge of the time and place when the annual election of directors of a corporation is to be held is not a waiver of the notice required by the law under which the company is organized, unless all of the stockholders attended and assented to the holding of the election.</p> <p>3. Corporations, § 181*—when election of directors without notice is valid. Where no notice of the time and place of holding the annual election of directors of a corporation was given, although required by the law under which it was organized, a director cannot be legally elected, notwithstanding all of the stockholders were present, where a portion of them protested against the election being held and then withdrew.</p> <p>4. Corporations, § 181*—when presence of stockholders is loaiver of notice of election of directors. The presence of a stockholder at an annual election of the directors of a corporation is not a waiver of the failure to give notice of the time and place of holding the election, which was required by the law under which the company was organized, where he took no part in the proceedings except to protest against the election being held.</p> <p>5. Corporations, § 181*—when presence of stockholder at election of directors estoppel to question validity. The presence of a stockholder at the annual election of the directors of a corporation does not estop him from questioning the validity of the election for want of notice of the time and place it was to tie held, where he took no part in the proceedings other than to protest against the election being held.</p> <p>6. Corporations, § 72*—when custom to elect directors without notice established. A usage and custom of the stockholders of a corporation to assemble annually at a certain time and place for the election of directors without the notice required by law, held not established by the evidence.</p> <p>7. Estoppel, § 51*—when stockholder estopped from, questioning validity of election of director. The fact that a stockholder did not base his objection to the holding of an annual election of the directors of a corporation, on the ground that the notice of the time and place of holding the election required by law had not been given, but merely protested against the holding of the election, does not estop him from thereafter questioning the validity of the election.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding.</p>

<p>Appeal from the Circuit Court of La Salle county; the Hon. Jos A. Davis, Judge, presiding.</p>

<p>Railroads, § 39*—who may he director. Under the Railroad Act of 1872 (J. & A. If 8742), providing that the directors of a railroad company shall he stockholders, and a hy-law requiring directors to he elected by and from the stockholders, a person may be elected to that office notwithstanding that his stock was transferred him for the express purpose of qualifying him for a director. ■</p>

<p>Appeal from the Circuit Court of Be Kalb county; the Hon. C. F. Iewiit, Judge," presiding.</p>

<p>1. Insurance, § 233*—when representations as to health constitute warranty. The denial by a woman in an application for life insurance of previous illnesses or surgical operations, held warranties which avoided a policy, where prior thereto she had had pneumonia as well as a serious disorder of the ovaries and fallopian tubes, which necessitated a serious major surgical operation for their removal.</p> <p>2. Insurance, § 363*—-when retention of premiums does not estop insurer from asserting avoidance of policy. The failure of an insurance company to return, tender or to pay into court premiums paid by an insured during her lifetime until nine months after a denial of liability on a policy, because of her fraudulent misrepresentations in her application as to her condition of health, held not to estop the insurer from asserting the avoidance of the policy, where it did not learn of such misrepresentations until after the death of the insured, when it immediately denied liability on that ground.</p> <p>3. Insurance, § 363*—when retention of premiums does not estop insurer from asserting avoidance of policy. An insurance company does not by retaining after the death of an insured person, premiums paid by her in her lifetime, waive the right to assert in an action by the beneficiary, the avoidance of a policy of insurance for the fraudulent representations made by the insured in her application as to her condition of health, where the insurer did not learn thereof until after her death, and no administrator was thereafter appointed to whom the premiums could have been returned.</p>

<p>Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding.</p>

<p>Appeal from the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding.</p>

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

<p>1. Gifts, § 7*—when delivery necessary. In ordep to make a gift, either inter vivos or causa mortis, legally effective, ‘there must be a delivery of the property donated during the lifetime of. the donor.</p> <p>2. Gifts, § 13*—when indorsement effectual as to delivery of note retained by payee until death. An indorsement by the payee on the back of a note, that if not paid him during his lifetime it shall be paid to a designated indorsee, does not vest the latter with the title to the instrument where it was retained by the payee without delivery until his death to the former.</p>

<p>Abstract of the Decision.</p> <p>1. Street railroads, § 133*—when negligence in operating car question for fury. Whether the gong of a street car was sounded or other warning given of its approach in the nighttime, as well as whether its speed was excessive, are when resting on conflicting testimony, questions for the jury, in an action for a collision between a car and a carriage.</p> <p>2. Stbeet bailboads, § 110*—when variance between pleading and proof as to cause of injury. ' There is a fatal variance between the allegations of a declaration that the plaintiff was injured by reason of a carriage in which he was riding being struck by a street car, so as to cause him to be thrown to the ground, and evidence that the collision caused a horse to run away into a nearby telegraph pole and to thereby throw the plaintiff to the ground.</p> <p>3. Appeal and ebbob, § 521*—when question of variance open to review. The question of variance between pleading and proof may be reviewed on appeal, when called to the attention of the trial court by a motion to strike out the evidence at the close of the plaintiff’s case, and afterwards included in a motion for a new trial although without being specifically pointed out.</p> <p>4. Witnesses, § 283*—when witness may be cross-examined as to statement of plaintiff discrediting merits of case. The credibility of a witness for the plaintiff may be impeached by cross-examining him from a paper as to answers made to an attorney for the defendant oh another occasion, concerning statement made to the witness by the plaintiff with reference to the merits of his case.</p> <p>5. Negligence, § 112*—when negligence of intoxicated driver imputable to occupant of vehicle. A person who places himself in the care of a driver whom, he knows to be intoxicated is chargeable with the latter’s want of ordinary care which results in an injury to the former.</p> <p>6. Stbeet bailboads, § 140*—instruction as to imputing negligence of driver to passenger. An instruction in an action for injuries sustained by a passenger in a carriage through a collision with a street car, that he could recover from the railroad company if, at the time of the accident, he was in 'the exercise of ordinary care and that he would not be chargeable with the negligence of the driver of the vehicle which contributed to his injury, held erroneous, where the evidence was conflicting as to whether the plaintiff voluntarily placed himself in the care of a driver whom he knew to be intoxicated.</p> <p>7. Stbeet bailboads, § 140*—instruction as to exercise of care by person injured. An instruction in an action for injuries sustained by the occupant of a vehicle in a collision with a street car, which limited the exercise of care by him “to the time of the injury complained of,” held sufficient. '</p>

<p>Abstract of the Decision.</p> <p>1. Railroads, § 932*—when evidence warrants inference that fire was caused by locomotive. An inference that a fire which destroyed a barn near a railway track was caused by sparks escaping from a locomotive, may be drawn from evidence that just previous to the fire, when the wind was blowing from the track towards the harn, that an engine passed throwing out a large quantity of cinders, and that soon thereafter fire was discovered in the barn near an opening in the side nearest the track.</p> <p>2. Railroads, § 945*—directing verdict for defendant in action for fire caused by locomotive. A motion to strike out the plaintiff’s evidence and to direct a verdict for the defendant was properly denied in an action for the destruction of a barn by fire caused by a locomotive, where the testimony showed that the fire was discovered in the barn, near an opening facing the track, shortly after the passing of a locomotive which emitted a large quantity of cinders, and that the wind was blowing from the track towards the barn.</p> <p>3. Railroads, § 932*—when cause of fire by sparks from locomotive inferred. Whether a fire which- caused the destruction of a building near a railway track was started by sparks from a locomotive is usually a matter of inference from the circumstances proven.</p> <p>4. Railroads, § 941*—instruction as to .burden of showing fire not due to sparks from locomotive. An instruction in an action for the destruction of a building by fire caused by a passing locomotive, that proof of the destruction of the property by fire from such a cause raised a prima facie case of negligence which the defendant must rebut by a preponderance of the evidence, showing the absence of negligence, or that the fire was due to the fault of the plaintiff, held not erroneous where the defendant did not offer any evidence.</p> <p>5. Railroads, § 919*—when defendant has burden of showing fire not caused by sparks from locomotive. Evidence of circumstances justifying an inference that a fire which consumed a building was caused by burning cinders or sparks emitted from the defendant’s passing locomotive, establishes a prima facie case which, under the statute, casts on the defendant the burden of proving such facts as would excuse it.</p> <p>6. Instructions, § 151*—when not error to refuse instruction. There is no error in refusing requested instructions which are covered by other instructions actually given.</p>

<p>Appeal from the County Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Injunction, § 262*—when dissolved on filing of plea of another suit pending. An injunction, issued in an action by members of a fraternal society against the officers and trustees thereof, to restrain an unlawful disposition of its property, should not be dissolved and the suit dismissed on the filing merely of a plea of the pend-ency of another action against the defendants pertaining to the same matter where some of the complainants in the last’ action were not parties to the first suit.</p> <p>2. Equity, § 183*—when suit dismissed on plea of another action pending. The mere filing of a plea alleging the pendency of another suit between the same parties concerning the same matter does not entitle the defendant to a dismissal of the bill of complaint before the plea has been put on issue and tried.</p> <p>3. Appeal and ebbob, § 990*—when affidavits on motion reviewed. Affidavits used on a motion to dismiss a bill of complaint because not filed with the consent of all of the complainants, and which are copied into the record by the clerk, cannot be considered on appeal when not embodied in a certificate of the evidence.</p> <p>4. Equity, § 97*—when consent of complainant to use of name presumed. That a bill of complaint was filed with the consent of a complainant will be presumed in an appeal from the denial of a motion to dismiss because of the failure to obtain his consent before filing, where the evidence submitted on the motion is not embodied in a certificate of evidence.</p> <p>5. Fraternal and mutual benefit societies, § 55*—when society necessary party to proceeding to enjoin officers. A fraternal society is an essential party, either complainant or defendant, to an action by a member to ^enjoin an unlawful disposition of its property by its officers and trustees.</p>

<p>1. Libel and slander, § 88*—when corporation may sue for libel. A corporation may sue for a libel reflecting on the management of its trade or business, its credit and its property, without alleging or proving special damages, where the language used is actionable per se.</p> <p>2. Libel and slander, § 7*—how words of libelous publication construed. In order to ascertain the meaning of an alleged libelous newspaper publication, the whole of the article must be construed and read in connection with the headlines, each phrase construed in the light of the entire publication, the words used must be taken in their natural and obvious meaning, and in the sense that fairly belongs to them.</p> <p>3. Libel and slander, § 40*—what charges against corporation libelous per se. It is libelous per se to publish falsely of a coal mining company that it has violated some of the laws requiring the use of safety appliances in its mine; that its miners were not properly protected by safety appliances; that it violated the law by using a boiler for six months without reporting its condition; that by reason of such violations the mine had been closed by a State mine inspector, and a criminal prosecution brought against the president of the company; that the latter could not be found and was a fugitive from justice; that thirty-five miners were thrown out of employment; that one of them had to sue in order to obtain his pay; that the company had been wrecked; that it was not able to meet its pay-rolls, and that no plans had been made for reopening the mine.</p>

<p>Abstract of the Decision.</p> <p>1. Discovery, § 5*—when ground for discovery shown hy hill. A bill alleging that the complainant, with whom land was listed for sale, agreed with the defendant that if the, latter should find a purchaser they would divide the profit between them, that the defendant secured a buyer, and that conspiring with another, they sold the land and appropriated the profit to themselves, and refused to account to the complainant therefor, held not a bill for discovery.</p> <p>2. Partnership, § 18*—when sharing profits from land sold creates partnership. An agreement between one real estate agent with whom land is listed for sale to divide the profits with another agent if the latter procures a purchaser does not create a partnership between them.</p> <p>3. Equity, § 51*—when legal remedy adequate for recovery of profits between real estate agents. Equity is without jurisdiction of an action by a real estate agent, with whom land was listed for sale, against another agent for an accounting for profits received by the latter, who procured a purchaser under an agreement to divide the profits with the complainant, since the remedy at law was adequate.</p>

<p>Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Partnership, § 23*—when agreement to work farm constitutes partnership. A partnership is created where a person goes into possession of farm land owned by another, to work, manage and pay for working it, under an agreement whereby each is to furnish one-half of the necessary personal property, which is to be owned in common, and the proceeds are to be divided at the expiration of one year.</p> <p>2. Partnership, § 57*—when partnership to farm land extended by implication. A contract of partnership to farm land held not extended by implication for another year by the fact that the person who was to manage, work and pay for working it, sowed wheat in the fall preceding the expiration of the term, with the knowledge and consent of the husbands of the female owners of the land, and purchased cattle for feeding.</p> <p>3. Partnership, § 58*—when partnership to farm, land not extended. A contract of partnership for working a farm for one year, held not extended for another year by agreement with the husbands of the female owners thereof, where no memorandum of the extension was signed by them.</p> <p>4. Partnership, § 57*—when partner entitled to possession of farm, land after expiration of partnership. The fact that a person who worked and managed a farm under an agreement of partnership which expired March 1, 1914, sowed wheat in the preceding fall with the consent of the husbands of the female owners thereof, and purchased cattle for feeding, beM'not to entitle him to possession of the land sown after the expiration of the partnership.</p> <p>5. Partnership, § 57*—when partnership to worTc farm not extended by sowing fall crop. The fact that a person who was to manage, work and pay for working a farm under a partnership agreement which expired March 1, 1914, sowed wheat in the preceding fall with the consent of the husbands of the female owners of the property, and purchased cattle for feeding, held not to prevent the termination of the agreement, since the grain was sown in performance of the contract, and could he settled for under the terms thereof at the expiration of the term.</p>

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

<p>Abstract of the Decision.</p> <p>1. Bastards, § 62*—when verdict not disturbed. A verdict and judgment in a prosecution for bastardy will not be disturbed as not being sustained by the weight of evidence where the evidence is conflicting, with no manifest preponderance either way, and has been approved by the trial court.</p> <p>2. Bastards, § 22*—when relatrix not impeached. The court upon appeal will not consider that the relatrix in a prosecution for bastardy, a young girl of foreign extraction, who was unable to speak English and who testified only through an interpreter, was impeached by her own testimony given on cross-examination where the jury saw her on the witness stand, believed her story, and the. verdict was approved by the trial court.</p> <p>3. Witnesses, § 213*—lohen excluding question previously answered not improper. It is not error in a prosecution for bastardy to sustain an objection to a question as to whether the prosecutrix had ever had improper relations with any other man between specified dates than she had told about, where the objection was that the question had already been answered and a reference to the record showed that it had been answered in substance in various forms several times.</p> <p>4. Bastards, § 34*—when instruction harmless. The introduction to an instruction given for relatrix in a prosecution for bastardy, that it was a civil proceeding to provide for the support and maintenance of the bastard child of the prosecuting witness, while faulty, or not giving the jury any information concerning any issue submitted to it, is harmless error where it is followed by a concrete statement of the law applicable to the case.</p>

<p>1. Carriers, § 186*—when connecting carrier agent of initial carrier. A connecting carrier is the agent of an initial carrier contracting to deliver goods beyond its terminus.</p> <p>2. Carriers, § 188*—when initial carrier liable for negligence of connecting carrier. An initial carrier which contracts to, deliver goods beyond its terminus to a commission company is responsible for the negligence or default of a connecting carrier, a stock yards company, in neglecting to promptly place several carloads of hogs at the chutes of the commission company.</p> <p>3. Carriers, § 3*—when stock yards company is a common carrier. A stock yards company which has its own tracks and furnishes facilities to shippers, buyers and traders in live stock, especially in conveying stock to side tracks and chutes apportioned to commission houses, is a common carrier.</p> <p>4. Carriers, §. 249*—when peremptory instruction properly refused in action for damage to live stock. It was not error to refuse a peremptory instruction requested on the ground that there was a written contract of shipping, in an action by a shipper against a carrier of stock for damages sustained by injury to live stock, delay in shipment and decline in market, where the defendant made no objection to plaintiff’s evidence, and the defendant remedied any defect in plaintiff’s proof by introducing the bills of lading after refusal of the instruction.</p> <p>5. Carriers, § 234*—what constitutes unreasonable delay in shipping live stock. A delay by a carrier of stock in leaving car several hours on the tracks of a stock yards company, only a quarter of a mile from their destination, is unreasonable.</p> <p>Heard in this court at the</p>

<p>Abstract of the Decision.</p> <p>1. Principal and agent, § 8*—when evidence shows agency. Evidence held to establish, an agency to sell motor trucks on commission, and not a conditional appointment subject to the purchase of a truck and the advancement of a specified sum thereon.</p> <p>2. Prinicipal and agent, § 74*—when principal liable for commission to agent appointed by agent. Where a prospective purchaser writes a manufacturing concern that he is desirous of purchasing a motor truck and is informed that their agent is desirous of seeing the purchaser about the agency of the truck in purchaser’s vicinity, such agent acts within the apparent scope of his authority in appointing the purchaser as agent, and it is immaterial that the appointing agent may have acted contrary to private instructions.</p> <p>3. Pbincipal and agent, § 190*—when principal cannot defeat recovery of commissions. Where a manufacturing concern selling through agents on commission has received the benefit of work done under an agency created under authority which it notified a prospective purchaser and agent it had reposed in one of its general appointing agents, the right of such appointed agent to a commission cannot he defeated by the mere fact that the seller subsequently makes agents of the customers introduced by such appointed agent.</p> <p>4. Instbuctions, § 73*—when not erroneous as assuming facts. An instruction stating, “if you find from the greater weight of the evidence that the defendant acting by its duly authorized aggnt, agreed,” etc., is not erroneous as assuming that a contract was made with a duly authorized agent of defendant.</p>

<p>1. Pleading, § 79*—what are requisites of plea to jurisdiction. A plea to the jurisdiction which is in the nature of a plea in -abatement must he certain to every intent and leave nothing to be drawn by inference and must include all such supposable matter as would, if alleged by the opposite party' by replication, defeat the plea.</p> <p>2. Venue, § 3*—where executor sued at cofimon law. At common law the executor was sued in transitory actions where he resided.</p> <p>3. Venue, § 3*—where executor may he sued. An executor may be. sued where he resides or where he may be found, although in a county other than that in which the will was probated and administration granted.</p> <p>4. Pleading, § 79*—when plea to jurisdiction insufficient. A plea to the jurisdiction in the nature of a plea in abatement, in an action on promissory notes against the executor of an estate, which avers that defendant was appointed and duly qualified as executor of the will of deceased in the-Probate Court of a county other than that in which he was sued, that he designated a certain day as the day for filing all claims in such court and that he is still acting as executor, and that he was served with process in a county-other than that in which he was appointed as executor, is demurrable for uncertainty.</p> <p>5. Appeal and ebroe, § 1571*—when informal judgment harmless. The fact that the judgment in an action against an executor, whose plea to the jurisdiction was in the nature of abatement and was bad for uncertainty, should have been nil dicit or for want of a plea and not by default, is harmless error, as siich error was mere matter of form.</p>

<p>Appeal from the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding.</p>

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

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

<p>Abstract of the Decision.</p> <p>1. Mechanics’ liens, § 33*—when lessee’s contract for improvement "binding on lessor. Under section 1 of the Mechanic’s Lien Act (J. & A. IT 7139) an owner of land who, without objections, knowingly permits a lessee to contract for an improvement, subjects the property to a lien therefor.</p> <p>2. Appeal and error, § 1397*—review of findings based, on depositions. The Appellate Court must review the evidence to determine whether a finding of fact made by a chancellor is contrary to the weight of the evidence, when based upon depositions taken before a master, without the latter making' a finding of facts.</p> <p>3. Mechanics’ mens, § 33*-—when evidence sufficient to show lessor’s consent to lessee’s contract for improvement. The evidence held to show that a landowner consented to his tenant contracting for the construction of a ditch on the demised premises, so as to entitle the contractor to a mechanic’s lien therefor.</p> <p>4. Mechanics’ mens, § 49"—when substantial compliance, with contract sufficient. A substantial compliance with a contract to construct a ditch on or along a section line, held to entitle the contractor to a mechanic’s lien, although the contour of the land necessitated deviations 'from the section line.</p>

<p>Abstract of the Decision.</p> <p>Principal and agent, § 83*—sufficiency of evidence to permit recovery for procuring loan. The evidence held sufficient to sustain a judgment for the defendant in an action to recover for procuring a loan.</p>

<p>1. Elections, § 237*—how City Election Law construed as to powers of commissioner. The City Election Law, art. IV, sec. 26 (J. & A. IT 5055), providing that election commissioners when in session shall have authority and shall he required to keep the peace and to cause the arrest of any one who has committed a breach of the peace or of the election laws, and that it shall be the duty of all officers of the law present to obey the orders of such election commissioners or either of them, limits the duties of the election commissioners to the time when they are in session.</p> <p>2. Elections, § 239*—when assault on election commissioner not an offense' against election law. A city election commissioner was not performing any duty imposed upon him by law at the time of an assault upon himself outside the polling place, where he called upon an officer to assist an election judge and another person in handling a man who had been accused of illegally voting and had been ejected from the polling place at the instance of the commissioner, such commissioner being then struck by a member of a crowd which came to the aid of the expelled voter.</p>

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

<p>Abstract of the Decision.</p> <p>1. Bills and notes, § 420*—what evidence inadmissible in action on note. Evidence by heirs and by the attorney and administrator oí the estate of deceased, the administrator being defendant in action to recover the amount of two notes alleged to have been signed hy the deceased in his lifetime, that they had not heard of the notes until a short time before the trial is incompetent and prejudicial.</p> <p>2. Bills and notes, § 462*—when instructions erroneous in action on note. Instructions in an action upon a promissory note against the administrator of an estate, in which there was an issue as to the existence of the notes as those of the deceased, which apparently made a distinction between evidence and circumstances and told the jury to particularly consider the circumstances, are erroneous, especially where there was much erroneous proof of circumstances and there was no evidence in the record that the notes were not in existence during the lifetime of the deceased.</p> <p>3. Instructions, § 82*—when erroneous for singling out witness. An instruction is erroneous which singles out a particular witness by name, who is not a party to a suit, and applies the law of impeachment to him alone, as such instructions should be general and apply to all witnesses.</p> <p>4. Instructions, § 81*—when erroneous for singling out facts. An instruction which points out and calls the attention of the jury to particular facts in the case is erroneous.</p> <p>5. Evidence, § 221*—wheh self-serving declarations inadmissible. Self-serving declarations made by a party to an action on a promissory note are inadmissible in his behalf.</p>

<p>1. Covenants, § 37*—what evidence admissible in action for breach. Parol evidence tending to show that a grantee knew that coal and other minerals and the right to mine the same had been conveyed to another and that the consideration was based on that fact, is admissible in an' action of covenant brought by the grantee to recover damages for breach of a covenant of warranty of title to real estate, although prior articles of agreement had been executed which made no reference to a reservation of coal, where the wife of the grantor was a party defendant and had not been a party to the articles of agreement.</p> <p>2. Covenants, § 37*—when parol evidence admissible in action for breach. Parol evidence tending to show that a grantee had knowledge of the prior conveyances of coal and other minerals and mining rights in land to another, and that the consideration was based on that faqt, is admissible in an action of covenant brought to recover damages for breach of covenant warranty of title to real estate, although prior articles of agreement which made no references to a reservation of coal had been executed, where the grantee admits that he knew of the conveyance of the coal before the execution of the deed.</p> <p>3. Mines and minerals, § 11*—what is effect of conveyance of mineral rights. The conveyance of coal and mining rights in land divides the land into two separate and distinct estates, the surface constituting one and the coal the other.</p> <p>4. Covenants, § 37*—what evidence admissible in action for breach of covenant of title. Parol evidence tending to show that a grantee had knowledge of the prior conveyance of coal and mining rights in land, and that the consideration for the deed was based on that fact, is admissible in an action of covenant in which damages were sought for breaqh of warranty of title to land, although prior articles of agreement which made no reference to a reservation of coal had been executed, where two separate estates in land had in fact been created by the prior conveyance of coal and mining rights.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Physicians and surgeons, § 20*-—who has burden of proving surgeon’s negligence. The plaintiff in an action against a surgeon for negligence in unsuccessfully grafting skin to an empty eye-socket for the purpose of permitting the use of an artificial eye, has the burden of proving that the operation was negligently and unskilfully performed.</p> <p>2. Physicians and surgeons, § 22*—when evidence sufficient to sustain verdict for defendant in action for malpractice. A verdict for the defendant in an action against a surgeon for unsuccessfully grafting skin to the plaintiffs empty eyesocket for the purpose of permitting the use of an artificial eye, held sustained by the evidence, where twenty-four years before a similar operation proved unsuccessful, as did two other operations performed after that of the defendant.</p> <p>3. Evidence, § 440*—sufficiency of objection to hypothetical question. Objections to hypothetical questions put to expert witnesses must specifically point out the grounds thereof.</p> <p>4. Physicians and surgeons, § 23*—instruction as to shill of specialist. An instruction in an action against a specialist for malpractice, given at the request of the defendant, to the effect that he was held to the exercise of ordinary skill only, is not erroneous where a similar instruction was given at the request of the plaintiff.</p>

<p>Abstract of the Decision.</p> <p>1. Continuance, § 7*—when continuance denied on amendment of pleadings. Where on sustaining a motion to strike out the plaintiff’s evidence as to a contract ‘of hiring, because within the Statute of Frauds, he was permitted to file a special count alleging a special agreement not within the statute, a continuance on the ground of surprise was properly denied the defendant, where the cause of action set up in the special count was identical with that disclosed by the affidavit which accompanied the original declaration.</p> <p>2. Frauds, Statute of, § 86a*—modification of contract mihin. Where a contract of hiring is within the Statute of Frauds, there may be a recovery on a substituted agreefnent not within the statute, made on the abandonment of the original contract.</p> <p>3. Damages, § 66*—when expense of seeking other employment recoverable in action for breach of contract of hiring. An experienced manager of millinery- stores, when wrongfully discharged before the expiration of a contract of hiring, may in an action for the breach of the contract recover money expended in seeking similar employment elsewhere.</p>

<p>Abstract of the Decision.</p> <p>Contracts, § 387*—breach of contract for platting and sale of land. A finding for the defendant in an action for the breach of a contract for the platting and sale of land, held sustained by the evidence.</p>

<p>Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).</p>

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

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

<p>Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding.</p>

<p>Charities, § 10*—when bequest to unorganized corporation valid. A valid bequest to charity for the founding of a hospital, may be made to a corporation not in existence at the time of the execution of the will or the death of the testator.</p>

<p>Error to the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding.</p>

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

<p>Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding.</p>

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

<p>1. Wills, § 228*—when will construed as a whole. A will must be construed as a whole and effect he given to all of its language.</p> <p>2. Wills, § 360*—when life estate created. A life estate only is created by a devise of property to a person “to be used by him as he sees fit during his life time,” the remainder to he divided among other persons or the heirs of their bodies, at the death of the life tenant.</p> <p>3. Life estates, § 5*—when trustee appointed for life bequest of personalty. A trustee is properly appointed to take possession of the share of a life tenant under a will directing the sale of the testator’s property and a division of the proceeds.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding.</p>

<p>Abstract of the Decision.</p> <p>1. Witnesses, § 41*—when one spouse competent witness for other. Testimony of the plaintiff’s husband in her behalf, held competent in an action to recover for board, lodging and washing.</p> <p>2. Witnesses, § 49*—when objection to competency of spouse waived. One who thoroughly cross-examines the plaintiff’s husband when a witness in her behalf, without objecting to his competency, cannot raise such question on appeal.</p> <p>3. Instructions, § 151*—refusal of instructions embodied in those given. The refusal of requested instructions is not erroneous when covered by other requested instructions actually given.</p> <p>4. Husband and wife, § 202*—when wife may recover for services. A married woman may recover for board, lodging and washing for the defendant, although he may not be aware that her husband consented to the making of the contract.</p> <p>5. Evidence, § 461*—when weight of conflicting evidence for jury. When evidence is conflicting its weight is to be determined by the jury.</p> <p>6. Appeal and ebbob, § 1411*—when verdict on conflicting evidence not disturbed. A verdict will not be set aside by the Appellate Court where the testimony is conflicting, although the finding is against the weight of the evidence, unless it appears that the jury acted under passion or prejudice.</p> <p>7. New tbial, § 67*—when not granted for evidence not discovered subsequent to trial. A new trial will not be granted for newly-discovered evidence which does not appear to have been discovered since the trial.</p> <p>8. New tbial, § 68*—when not granted for newly-discovered cumulative evidence. A new trial will not be granted for newly-discovered evidence which is merely cumulative.</p> <p>9. Husband and wife, § 202*—when evidence sufficient to sustain verdict for wife for labor. A judgment in favor of a married woman for board, lodging and washing for the defendant, held sustained by the evidence. . '</p>

<p>1. Electricity, § 24*—when failure to prove allegation immaterial. It is immaterial that the proof in an action hy the administrator of an employee" of a city against a lighting company for negligence, causing the death of such employee, fails to show that the telephone wire which fell across the wires of the lighting company and that of the city on which the deceased was working was owned and controlled hy a certain telephone company, as alleged in the declaration, where the averments of the declaration that the telephone wire was owned hy such telephone company as a part of its system were not essential to the cause of action against the lighting company.</p> <p>2. Trial, § 276*—when refusal to submit special interrogatories not erroneous. The refusal of a trial court to submit special interrogatories to the jury is not error where the questions which the court refused to submit related indirectly to ultimate facts involved in the case, but were evidentiary in their nature and did not call for direct answers as to such ultimate facts.</p>

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

<p>1. Appeal and error, § 1411*—when verdict on conflicting evidence not disturbed. The verdict in a personal injury case will not be held to be against the manifest weight of evidence where the testimony is in direct conflict and two juries have found in favor of the plaintiff.</p> <p>2. Witnesses, § 188*—when question leading. In action to recover for damages for personal injuries received through the alleged negligence of a street car company, in starting the car while the plaintiff, who -had got upon the step leading to the platform of the car, was holding to the hand hold and was in the act of raising her foot to the platform, the defense being that plaintiff did not intend to become a passenger upon the car but intended to get off again because her friend whom she was looking for was not on the car, a question on direct examination asking plaintiff to state whether or not when she “stopped at that point’’ it was- with the intention of taking the car to her home, is leading and suggestive.</p> <p>3. Appeal and error, § 1507*—when leading question harmless. A leading and suggestive question propounded to the plaintiff upon direct examination, in an action for damages for personal injuries received through the negligence of defendant in starting the car while plaintiff was trying to get on it, as to whether when plaintiff “stopped at that point” she intended to take the car to her home, is harmless where the plaintiff already had answered as to her intention.</p> <p>4. Witnesses, § 187*-—when permitting leading questions discretionary. The matter of permitting leading questions to be asked is within the sound discretion of the court.</p> <p>5. Evidence, § 165*—when question does not call for self-serving declaration. A question as to whether or not the witness, who was plaintiff in an action to recover damages against a street car company for personal injuries received through the negligence of. the company, the defense being that plaintiff did not intend to become a passenger, said anything to her friend before and just as she left her friend’s home to go to the corner where she took the car, as to where she was going and, if so, what she said to her friend, is not objectionable as calling for a self-serving declaration.</p> <p>6. Evidence, § 78*—when question as to statements to others regarding intention not erroneous. A question is not objectionable as calling for evidence not part of the res gestee where the plaintiff, in an action to recover damages for personal injuries from a street car company, the defense being that plaintiff did not intend to become a passenger, was asked as to whether or not, when and just before she left the home of her friend and went to the corner where she took the car, she told her friend where she was going and, if so, what she said to her.</p> <p>7. Evidence, § 221*—when hearsay. Evidence that the witness, plaintiff in an action to recover damages for personal injuries from a street car company, the defense being that plaintiff did not intend to become a passenger, was told by her son, who called her up on the telephone at a friend’s house on the evening of and before the accident, and from which place she went to the corner where she attempted to take the car, that a certain friend of hers wanted her to go down town with her and that she should go home, and her friend would come down and meet her there, -is improper as hearsay.</p> <p>8. Witnesses, § 239*—what improper on redirect examination. It is improper redirect examination to ask a witness, plaintiff in an action to recover for personal injuries from a street car company, the defense being that plaintiff did not intend to become a passenger, as to what her son said to her over the telephone at her friend’s residence the evening of the accident, and from which place she later went to the corner where she attempted to take the car, the purpose being to elicit an answer to the effect that the son told her that a friend of hers wanted her to go down town with her and for her to go on home and that she would come down on the car and meet her there.</p> <p>9. Appeal and bbrob, § 1475*—when admission of hearsay harmless. It is not reversible error to permit a question and answer, which are improper as mere hearsay, to be asked and answered on redirect examination, where the evidence was called out on cross-examination, and the question and answer were explanations of the inference drawn from the cross-examination.</p> <p>10. Evidence, § 368*—when question calls for a conclusion. An answer to a question propounded to a medical expert upon the trial of an action to recover damages for personal injuries from a street car company as to whether, after the examination of a plate, it corroborated his diagnosis of the condition of the plaintiff, held objectionable as stating the conclusion of the witness.</p> <p>11. Evidence, § 395*—when question erroneous as calling for a conclusion. A question propounded to a witness as to whether or not he permitted his attention to persons who were getting on a street car to be distracted by any conversation with any of the women getting on the car is objectionable as calling for the opinion and conclusion of the witness.</p> <p>12. Evidence, § 375*—when question calls for a conclusion. A question propounded to a street car conductor as to whether he used all the means within his power to prevent an accident to a person apparently endeavoring to get on a car is objectionable as calling for the conclusion of the witness.</p> <p>13. Evidence, § 375*—when question erroneous as calling for a conclusion. A question asking a street car conductor to state whether there was anything he did not do that might have been done to prevent an accident to a person evidently trying to get on a car is objectionable as calling for the conclusion of the witness.</p> <p>14. Evidence, § 396*—when question calls for a conclusion. A question is objectionable as calling for the conclusion of the witness where a street car conductor is asked whether or not up to a certain time he knew that plaintiff did not intend to remain on the car.</p>

<p>1. Municipal corporations, § 41*—what powers possessed by. A municipal corporation possesses and may exercise only such powers as are expressly delegated to it by the legislature, or which are necessarily implied from those expressly given.</p> <p>2. Municipal corporations, § 799*—power as to waterworks. All of the power and authority of a city in relation to waterworks is acquired from paragraphs 254-270, 280 of ch. 24 of the statutes (J. & A. 1F1T 2012-2019, 2081).</p> <p>3. Municipal corporations, § 814*—when contract to supply water donation. A resolution adopted by a city council offering to supply the Eastern Illinois State Normal School with all the water needed by it for a term of fifty years in consideration of a payment of $5, held a donation.</p> <p>4. Municipal corporations, § 155*—power to give away property. The councilmen of a city are the .trustees of the municipality, and have no power to donate any of its property or funds.</p> <p>5. Municipal corporations, § 808a*—when may contract to supply water at fixed rate for term of years. Neither express nor implied power to permit a city to bind itself by contract to furnish water at a fixed rate for a period of years is conferred by paragraphs 254-270, 280 of chapter 24 of the statutes (J. & A. 2012-2019, 2081).</p> <p>6. Municipal corporations, § 808a*—validity of contract to furnish water for term of years. A resolution adopted by the common council of the city of Charleston, agreeing to furnish the Eastern Illinois State Normal School with all of the water it required for a term of fifty years in consideration of $5, is, although acted upon for a number of years, ultra vires and void.</p> <p>7. Municipal corporations, § S08a*—when city estopped from claiming contract to supply water is ultra vires. The acceptance by the trustees of the Eastern Illinois State Normal School of a resolution adopted by the common council of the city of Charleston, agreeing to supply the school with all of the water it needed for a term of fifty years in consideration of $5, does not estop the city from setting up that the contract is ultra vires and void.</p>

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

<p>Appeal from the Circuit Court of Scott county; the Hon. Nob-man L. Jones, Judge, presiding.</p>

<p>1. Sales, § 254*—when retailer impliedly warrants wholesomeness of food. There is an implied warranty of the wholesomeness of canned goods sold by a retailer for immediate consumption.</p> <p>2. Sales, § 254*-—when retailer answerable for injuries due to unwholesome food. A retailer of canned goods is answerable on an implied warranty to a purchaser who, in the exercise of due care for her health, sustains damages from eating impure fish.</p> <p>3. Action, § 12*—when action lies for breach of statute. A civil action lies for injuries caused by a violation of a public policy statute, although a right of action is not created in express terms.</p> <p>4. Sales, § 282*—when evidence shows due care in eating canned food. In an action against a retailer for injuries arising from the breach of an implied warranty of the wholesomeness of canned fish, want of due care on the part of the purchaser is not shown by the fact that she took several bites of the fish after noticing that it was tasteless, and that the tomato sauce in which it came was not. the right color.</p> <p>5. Sales, § 283*—when due eare in eating unwholesome food question for jury. Whether the purchaser exercised due care for her health in eating unwholesome canned fish is a question for the jury, in an action against a retailer for the breach of an implied warranty of fitness, where she took but three or four bites after finding the fish tasteless, and noticing that the tomato sauce in which it came was not of the right color.</p> <p>6. Sales, § 282*—admission of evidence in action for injury from unwholesome food. The question whether a retailer undertook to supply the necessary skill in selecting canned goods for customers is immaterial in an action for injuries caused by the breach of an implied warranty of the wholesomeness of canned food, since it was his duty to use the skill necessary to supply wholesome goods.</p> <p>7. Damages, § 24*—sufficiency of evidence of loss of time and earnings. Evidence that a woman earned from eighty to one hundred dollars in commissions by canvassing just prior to an injury, and that she had not been able to earn anything since, held sufficient proof of the loss of time and earnings to take the question to the jury.</p>

<p>Abstract of the Decision.</p> <p>1. Mines and minerals, § 82*—when defects in railway track, constitute dangerous condition. A dangerous condition, within the meaning of section 21 of the Miners’ Act (J. & A. 1f 7495), held created where wooden rails were used to piece out or extend a railway track in a mine, so as to leave a sharp decline with dangerous holes between the cross ties, into which a miner stepped and was injured as he was trying to prevent a car from escaping.</p> <p>2. Mines and minerals, § 191*—xohen instruction as to approval of conditions 6y mine inspector correct. An instruction was correctly given, in an action for injuries to a miner by reason of a violation of section 21 of the Miners’ Act (J. & A. H 7495), that a mine inspector did not have authority to determine, contrary to the facts, that a place was safe, and that such a determination although made in good faith was not an excuse for an employer’s failure to mark a place which was in fact dangerous.</p> <p>3. Mines and minerals, § 173*—evidence as to nature of miner’s injury. The fact that a miner told a mine manager that he had rheumatism and continued to work two weeks thereafter, held not contradictory to a subsequent claim that he was suffering from a broken rim of the hip joint, where at the time of such statement he had been advised by a physician that his trouble was rheumatism, and the true nature thereof was not ascertained until some time later.</p> <p>4. Instructions, § 118*—refusal, of instruction supported by scintilla of evidence. The refusal of a requested instruction is not error even though supported by a scintilla of evidence.</p> <p>5. Mines and minerals, § 176*—when evidence sufficient to sustain verdict for miner in action for injuries. The evidence held sufficient to sustain a verdict for the plaintiff in an action for injuries to a miner, where it appeared that a broken rim of the hip joint was due to the dangerous condition of a railway track in a mine, notwithstanding the plaintiff worked for two weeks after his injury.</p> <p>6. Trial, § 123a*—when argument not prejudicial. An argument of counsel to the jury concerning the dangerous nature of a miner’s work, and as to the safeguards the law requires in mines, held not erroneous in an action for injuries due .to the failure of a mine operator to comply with section 21 of the Miners’ Act (J. & A. IT 7495).</p> <p>7. Damages, § 124*—when verdict for broken rim of hip joint not excessive. A verdict for $5,000 held not excessive for an injury to a miner thirty-six years old, earning $50 every two weeks, consisting of a broken rim of the hip joint, which left one leg two inches shorter than the other, and the plaintiff more or less permanently disabled for life.</p>

<p>Abstract of the Decision.</p> <p>1. Mines and minerals, § 176*—sufficiency of evidence in action for death of miner. The evidence in an action for the death of a miner held sufficient to sustain a verdict for the plaintiff on the ground of the employer’s failure to provide suitable props to make a mine roof safe.</p> <p>2. Mines and minerals, § 125*—when contributory negligence no defense to action under Miners’ Act. Contributory negligence is no defense to an action against an employer for injuries sustained by a miner as the result of the former’s violation of the Miners’ Act.</p> <p>3. Mines and minerals, § 126*—when want of care no defense to action under Miners’ Act. Want of care on the part of a miner is not a defense to an action for injuries sustained as the result of an employer’s violation of the Miners’ Act, where the accident would not have occurred had there been a compliance with the act.</p> <p>4. Mines and minerals, § 131*—when notice of defect no defense under Miners’ Act. The fact that a miner had actual notice of a dangerous condition in a mine does not relieve an employer from liability for an injury which would not have occurred had the Miners’ Act been observed.</p> <p>5. Mines and minerals, § 151*—when proximate cause of death of miner question for jury. Whether the failure to properly mark and report a dangerous condition in a mine roof was the proximate cause of the death of a miner is a question for the jury, notwithstanding he may have had actual knowledge of the condition before he began work without first propping the roof..</p> <p>6. Mines and minerals, § 181*—when proximate cause of death of miner question for jury. The question whether the failure of an employer to prop the roof of a mine room was the proximate cause of the death of a miner, held a question for the jury.</p> <p>7. Mines and minerals, § 194*—instructions in action for death of miner. An instruction requested hy the defendant in an action for the death of a miner from the fall of an unpropped roof, held properly refused, although the deceased had actual knowledge of the dangerous condition.</p> <p>8. Mines and minerals, § 191*—good faith of examiner as defense to action for death of miner. The good faith of a mine examiner in declaring a place in a mine to be safe is no defense to an action for the death of a miner due to the failure to mark a place dangerous, which was in fact unsafe.</p> <p>9. Death, § 67*—measure of damages for death of miner. A verdict for $5,000 held not excessive for the death of a miner fifty-six years of age, in good health, who earned from $4 to $4.50 per day.</p>

<p>Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Piatt county; the Hon. William G. Cochran, Judge, presiding.</p>