fixed the conditions upon which those preparing to organize

a bank may obtain a permit.

The writ of mandamus is denied.

Writ denied.

FARMER, C. J., and DUNN, J., dissenting.

ALBERT BUCK, Admr., Defendant in Error, vs. O. W. RoSENTHAL, Plaintiff in Error.

Opinion filed April 20, 1916–Rehearing denied June 8, 1916.

1. MASTER AND SERVANT-When a contractor will be charged with notice of overloading floor by another. A contractor who is employed to do the carpenter work in rebuilding a floor will be charged with notice of the overloading of the floor with sand and other materials for mosaic work being done by another contractor, when the former's foreman in charge of the work saw the materials being piled on the floor and knew that one of his employees was working in the basement beneath the floor.

2. Negligence—when verdict in favor of one defendant does not release the other. Where two independent contractors are sued jointly for causing the death of an employee of one of them but the charge of negligence against each defendant is different, a verdict of not guilty as to one defendant will not release the other, who is charged with negligently sending the deceased (who was his employee) into a basement to work, with knowledge that the other defendant had negligently overloaded the floor with heavy building materials, since the latter, even though he had overloaded the floor, would not be liable unless he knew the deceased was working in the basement.

3. APPEALS AND ERRORS-the Supreme Court will not consider point first raised in petition for rehearing in Appellate Court. The Supreme Court will not consider a point raised for the first time in a petition for rehearing in the Appellate Court.

4. SAME a party is bound by his instructions as to the issues and law. Where an action for damages is submitted to the jury under instructions given at the instance of the defendant wherein the particular negligence with which he is charged is pointed out, it is too late, after the jury have found him guilty of such negligence, to change his theory of the case and insist that he should have been found guilty of some other act of negligence in order to render him liable.

WRIT OF ERROR to the Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. C. A. McDONALD, Judge, presiding.

WINSTON, PAYNE, STRAWN & SHAW, and CHARLES J. O'CONNOR, (JOHN D. BLACK, and EDWARD W. EVERETT, of counsel,) for plaintiff in error.

DARROW & BAILEY, for defendant in error.

Mr. JUSTICE CRAIG delivered the opinion of the court:

Albert Buck, administrator of the estate of August Bockelman, deceased, brought an action on the case in the superior court of Cook county against the plaintiff in error, O. W. Rosenthal, and George H. Rees, the Standard Brewery, and others, to recover damages for wrongfully causing the death of plaintiff's intestate. At the close of plaintiff's case in chief the suit was dismissed by the plaintiff as to all defendants except plaintiff in error and Rees. At the same time plaintiff in error moved the court to exclude the evidence and instruct the jury to find the plaintiff in error not guilty, and a similar motion was made in behalf of Rees. The motions were denied, and thereafter plaintiff in error refused to further participate in the trial until the close of all of the evidence, when he again renewed his motion to exclude the evidence and instruct the jury to find him not guilty. This motion was denied and the instruction refused. Rees offered evidence and contested the case upon the merits, and the trial resulted in a verdict of not guilty as to him and a verdict for $10,000 against plaintiff in error. A motion for a judgment in favor of plaintiff in error on the verdict returned by the jury in favor of the defendant Rees and a motion for a new trial and in arrest of judgment were made by plaintiff in error and overruled, and an appeal was prosecuted to the Appellate Court for

the First District, where the judgment of the lower court was affirmed. A petition for a writ of certiorari was allowed by this court, and the cause is now in this court pursuant to the issuance of such writ.

The declaration contained one count. It charges that prior to July 6, 1911, the Standard Brewery was engaged in repairing and remodeling a building at the corner of Van Buren and Clark streets, in the city of Chicago; that plaintiff in error, Rosenthal, was the contractor doing the carpenter work; that George H. Rees was a cement contractor employed by the Standard Brewery for the purpose of putting a mosaic floor in the building; that plaintiff's intestate was employed by plaintiff in error as a common laborer, and on the day in question was at work cleaning up the basement of the building under the direction of the plaintiff in error, whose duty it was to furnish him a reasonably safe place in which to work; that Rees negligently placed such large quantities of material on the first floor of the building that the floor was overloaded and broke and fell into the basement and onto plaintiff's intestate, and he thereby sustained injuries from which he died; that it was the duty of plaintiff in error to know the floor was overloaded, and that he did know it or in the exercise of ordinary care should have known such fact, and that Rees knew that said floor was overloaded and was negligent in causing and permitting it to be overloaded. A plea of general issue to the declaration was filed by plaintiff in error and by Rees.

For some days prior to the accident plaintiff in error was engaged in repairing and remodeling a room at the corner of Clark and Van Buren streets, in the city of Chicago, for the Standard Brewery, to be used by one Righeimer as a saloon. The room was in the form of an "L," with a frontage of twenty feet on Clark street, extending north from a point twenty-eight feet north of the corner of VanBuren street, and a frontage of twenty feet on VanBuren

street, extending west from a point seventy feet west of the corner of Clark street. Plaintiff in error had contracted to make certain repairs in the building and lay a hard-wood floor in that part of the building leased by Righeimer. Before the work on the floor was started Righeimer made such arrangements with plaintiff in error and the Standard Brewery that by his paying the difference in the cost between a mosaic floor and the hard-wood floor provided for by the contract the former was to be laid. A contract was then let to Rees for the laying of the mosaic floor, plaintiff in error to prepare the floor on which the mosaic floor was to be laid. As originally constructed, wooden beams 12x12 were placed under the center line of that portion of the building which fronted on Clark street. These beams run east and west. The west end of the first beam was supported by a stairway wall on the west, and the east end. rested on an iron column about eight feet from the stairway, making the first span of this beam eight feet. Other beams extended east and were supported by iron columns. placed twelve feet apart. Columns were placed on top of the basement columns on the first and second floors and supported the upper part of the building. The first column, eight feet from the stairway wall, prevented the placing of the saloon fixtures in the position desired by Righeimer, and the column was moved four feet east, the column in the basement being also moved a like distance. The moving of this column increased the distance between the stairway wall and the first column from eight feet to twelve feet, and the eight-foot beam was taken out and replaced by a twelvefoot beam taken from another place in the building. The old floor in the building was also lowered about a foot, to the sidewalk level. In order to do this no change was made in the beams, but the joists were cut off and lowered so as to rest on angle-irons fastened onto the beams by means of bolts and clevises. After the old floor was lowered the necessary repairs were made upon it by plaintiff in error to

make it solid, so as to hold the concrete and other materials which were to be used to make the mosaic floor. In laying the mosaic floor Rees used various materials, such as cement, sand, tile, water, etc., and the floor space in the saloon, and particularly that above the twelve-foot beam which had replaced the shorter one, was used for the piling of these materials, and also a portion of some six tons of sand, which was being wheeled into the building that morning from Clark street and dumped upon the floor, the exact amount of sand on the floor at the time of the accident not appearing from the evidence. While the plaintiff's intestate was at work cleaning up in the basement the east end of the beam broke, and the floor, with the materials thereon, fell into the basement and onto him, and he sustained injuries from which he died. At the time of the accident plaintiff's intestate was a married man, thirty-four years of age, sober, industrious, and earning $25 a week, which he regularly turned over to his wife to be used in supporting the family, consisting of himself, his wife and three children. It further appears that a child has been born to his widow since his death.

It is first insisted that the trial court erred in denying the motion to exclude the evidence and give the peremptory instruction to find plaintiff in error not guilty. In support of this contention it is urged there is no evidence to show that plaintiff in error knew that the floor was being overloaded. The evidence on this question shows that plaintiff in error was employed to repair the floor and knew the load that it was expected to carry and the character of the work that was necessary to be performed in putting in the mosaic floor. The work on the building was under the immediate direction of his foreman, Davis. Davis was at the building that morning before the accident occurred. At the time he was there the materials above mentioned were there on the floor and the sand was being wheeled in and piled on the floor. He was seen on the stairway and in the basement of