#### Elizabeth Baxter, Appellee, v. Rothschild & Company, Appellant.

Gen. No. 22,712.

(Not to be reported in full.)

Appeal from the Circuit Court of Cook couuty; the Hon. Lookwood Honobe, Judge, presiding. Heard in this court at the October term, 1916.

Certiorari denied by Supreme Court (making opinion final).

Affirmed.

Opinion filed March 12, 1917.

Rehearing denied March 26, 1917.

Statement of the Case.

Action by Elizabeth Baxter, plaintiff, against Rothschild & Company, a corporation, defendant, to recover damages for personal injuries sustained by the plaintiff while a customer in the building wherein the defendant was carrying on a commercial business. From a judgment for plaintiff for $2,500, defendant appeals.

P. L. McArdle and Zimmerman & Garrett, for appellant.

Le Bosky & Levine and Edward Maher, for appellee.

*347Abstract of the Decision.

1. Master and servant, § 856 * —when relation of servant and not of independent contractor exists. Where a painting contractor in the performance of his contract in the interior of a building placed a heavy canvas on the floor in front of the elevators of the building to serve as a drop cloth, the building being at the time in possession and use of the defendant in its business, and a customer of the defendant tripped on the canvas in getting out of an elevator and was injured, held that such contractor was not an independent contractor hut was a servant of the defendant and his negligence was that of the defendant, in an action to recover damages for such injuries.

2. Accord and satisfaction, § 10*—when question for jury. In an action against several defendants to recover damages for injuries sustained by the plaintiff, where certain of the defendants were dismissed from the case upon payment by them to the plaintiff of a certain sum in consideration of the plaintiff giving them a covenant not to prosecute, held that the question whether this was an accord and satisfaction to and a release of all the defendants was properly left to the jury, and that they might properly find that the money received was an undertaking not to prosecute and was not in settlement of the case.

3. Appeal and error, § 1542*—when instruction on amount of recovery is not reversible error. Where, after the jury in a personal injury action had retired, the court at their request instructed them in writing that the ad damnum in the case was the lesser amount named in the additional counts instead of the greater amount named in the amended declaration, held that such instruction was not reversibly erroneous.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Holdom

delivered the opinion of the court.