author: Mr. Justice Brown

text:
    Fred A. Britten and Peter F. Reynolds, Defendants in Error, v. B. J. Fitzgerald, Plaintiff in Error.
    Gen. No. 15,602.
    Municipal Court—when judgment set aside with final judgment. If the evidence clearly establishes no liability upon the part of the defendant the Appellate Court will reverse the judgment rendered and enter a final judgment of nil capiat.

    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding. Heard in this court at the October term, 3909.
    Reversed and judgment here.
    Opinion filed June 1, 1911.
    Mason Brothers, for plaintiff in error.
    Frank Johnston, Jr., for defendants in error.
   Mr. Justice Brown

delivered the opinion of the court.

This is a writ of error to reverse a judgment for $657.69, rendered on March 27, 1909, by the Municipal Court of Chicago, sitting without a jury, against the defendant Fitzgerald and in favor of the plaintiffs Britten and Reynolds.

The “Statement of Claim” on which the suit was founded represents said claim to be “for taxes for the years 1906-7, on certain described lots and improvements thereon, known as No. 1225 Washington Boulevard, Chicago, which the defendants agreed to pay, and for the costs and expenses of redeeming said property from a tax sale for said years by reason of the failure of the defendants to pay taxes thereon.”

There was evidence in the cause tending to prove, and sufficient for the court to base a finding on, that in a transaction involving the exchange of real estate between Fitzgerald on the one side and Britten and Reynolds on the other, in the early part of 1907, and incidental thereto the payment of a large sum of money by said Britten & Reynolds to Fitzgerald, there was included in the computation of that sum and in the check given therefor, $278.65 for the unpaid taxes of 1906 on one of the pieces of property exchanged (1225 Washington Boulevard), and that Fitzgerald assured Britten & Reynolds that he would pay that sum to the County Clerk for those taxes on or before May 1, 1907.

The evidence also showed that Fitzgerald did not pay the said sum for taxes then or at any other time, and that he did not refund the money in cash to Britten & Reynolds. It also appears in the evidence that Britten & Reynolds after-wards (in December, 1908) came into possession of the said property by a quit claim deed from a third party, and that in order to clear the same from the lien of the taxes for 1906, for which it had been sold in September, 1907, Britten & Reynolds were obliged to pay under the statute (section 210 of the Revenue Act as amended by Act of June 26, 1895) the following sums:

Amount of sale............................. $293.52

Penalty on amount of sale at 9 per cent........ 26.42

Subsequent taxes of 1907 .................... 314.11

Interest................................... 21.99

Advertising, Redemption, Certificate, Filing and Cancellation and noting Tax Sale on Collector’s Warrant ................................ 1.65

Total, $657.69

Evidently on the theory that as this whole amount of $657.69 had to be paid by Britten & Reynolds in order to remove the lien of the taxes for 1906, which to the amount at which they stood on May 1, 1907, viz., $278.65, Fitzgerald had agreed on good consideration to pay, the measure of damages for the breach of the contract was this whole amount,—the court fixed those damages and its judgment at $657.69.

We do not think that this was justified in any view taken of the case. The plaintiffs expressly disclaimed during the trial suing on the contract of exchange. Their whole theory was that as they had paid money to Fitzgerald to pay the taxes of 1906, and he had agreed to pay them hy a certain time, they were entitled to recover damages for the breach of the contract. The natural measure of damages for such a breach was the money they paid him. The evidence showed clearly that after the exchange they held an encumbrance on the property from a third party (to whom in execution of the contract it was conveyed at Fitzgerald’s request), which gave them the right to pay the taxes and add it to the lien secured by the mortgage trust deed; but they had no promise from Fitzgerald, express or implied, to pay the taxes of 1907, or of any subsequent year. That they afterward, entirely independently of the contract of exchange and in a negotiation which neither party had any legal reason to foresee, came into possession of this property and found it for their interest to clear off tax liens on it, gave them no legal right to recover costs and penalties, still less the taxes for a subsequent year. They are not claiming under the contract nor under the trust deed they received under it (which contained a covenant of one Johnston to pay taxes, but none of Fitzgerald), but in effect for money had and received by Fitzgerald for their use. The amount they paid, with interest, would surely be the extent of his liability.

But we are of the opinion he was not liable even for that. This view rests on considerations which involve and make' it necessary for us to state further details of the transactions out of which the liability of Fitzgerald is alleged to have grown. The payment by Britten & Reynolds to Fitzgerald of the $278.65 was not an isolated and independent transaction. The exchange of properties was the consummation or execution (apparently, however, not in exact accordance with its original terms) of a written contract between Britten & Reynolds on the one hand and Fitzgerald on the other, of the date of February 18, 1907, which provided for a variety of payments and assumptions by the respective parties. When the deeds of the properties were exchanged, and as a final result of computations which at the time of the trial neither party could recall or explain with any detail or clearness, the sum of $15,171.78 was given by Britten & Reynolds to the Chicago Title & Trust Co. for the sole or principal use and benefit of Fitzgerald. It may, for the purposes of this discussion, be treated as given to him. In making the computation which resulted in the check, it is plain from the evidence that $278.65 was allowed to Fitzgerald because the taxes due for the year 1906 on the property deeded to him in the exchange amounted to that sum. If the transcript of the record before us does not contain a clerical error in the warranty deed which Britten & Reynolds gave to Johnston, at Fitzgerald’s order, however, this allowance to him of the amount of the taxes of 1906 was necessary and inevitable to make the execution of the contract conform to its terms. The contract was that Britten & Reynolds should convey by warranty deed the Washington Boulevard property to Fitzgerald, subject to “all taxes levied after the year 1906,” thus undertaking in effect to hold Fitzgerald or his assignee harmless for the taxes of 1906 and prior years. But the warranty deed as it appears in the transcript of the record conveys and warrants the property only subject to all taxes levied after the year 1905. If this is correct, then to carry out the spirit and meaning of the contract, it was necessary for the grantors, Britten & Reynolds, to allow Fitzgerald, in computing the amount due to him on the transaction, the amount of the taxes for 1906, and except as Britten & Reynolds were interested in the mortgage trust deed they held from Johnston, they would have no particular concern in what he did with the money thus allowed him. There seems to be doubt thrown on the accuracy of the transcript of the warranty deed, however, by the stenographic report in the transcript of a colloquy between the court and Fitzgerald while he was testifying, in which the original deed is referred to hy the court as containing the words “Subject to the taxes levied after 1906.” If, however, our decision turned on this matter, we should be compelled to accept the transcript of the deed as correct. It does not so turn, however, for whether the warranty deed conveyed the property subject to the .taxes of 1906, or only subject to those levied after 1906, it is on the subsequent negotiations and dealings with this property that we base a conclusion that any liability from Fitzgerald to Britten & Reynolds for this money, if it existed, was cancelled or released.

We assume that the evidence shows that in December, 1908, the following condition of things existed: There had been conveyed by Britten & Reynolds, more than a year and a half before, to Fitzgerald’s assignee, Johnston (and afterward by Johnston to one Mary Tuhl, an employee and representative of Fitzgerald, the Washington Boulevard property. A valuable consideration had been given by Fitzgerald for it. For purposes of his own, the deed had been made to Johnston and not directly to himself, and an encumbrance (the giving of which was a part of the deal), securing notes belonging to Britten- & Reynolds aggregating $16,150, was executed, as were the notes themselves, by Johnston. The notes in question were one for $10,000, 12 for $500 each and one for $150, and the mortgage trust deed securing them was a first lien on the property with the exception of the unpaid taxes of 1906 and 1907. Of these notes of Johnston, as a part of the transaction, the one for $10,000 had been endorsed or guaranteed by Fitzgerald, but on the others he had no liability. In addition to this another or second encumbrance had been placed on the property for $2500, presumably by Johnston at Fitzgerald’s request or order. It seemed to be controlled by Fitzgerald, as the event showed. Fitzgerald had been collecting the rents, but he had not paid, nor had there been paid for him, or by Johnston or his assignee, Tuhl, any interest or taxes. There had been included in the computation and check which Fitzgerald had received, $278.65, allowed to him for the taxes of 1906 on the property, and he had told Britten several times between the time of conveyance to Johnston and December, 1908, that he would pay those taxes of 1906 when “he got a little money ahead.” Britten & Reynolds’ interest at that time in having these taxes paid was entirely from their owning, controlling, or (if they had parted with them) being liable on the notes for $16,150, secured by Johnston’s mortgage trust deed. They were in December, 1908, entirely cognizant of the fact that no taxes and no portion of the mortgage encumbrances, principal or interest, had been paid by Fitzgerald, Johnston, Tuhl, or any one else, and that a second encumbrance of $2500 had been placed on the property by Fitzgerald’s order or procurement. They had, through Mr. Britten, in the early part of December, 1908, reproached Fitzgerald with these things and complained of them and, in the language of Mr. Britten in his testimony, “told Fitzgerald that some settlement had to be made on account of the $16,-150 first mortgage we held.”

The exact nature of the settlement that was made between Britten & Reynolds and Fitzgerald, on or about the 29th day of December, 1908, is the real subject of dispute in this suit. These are things that were actually done: On the one side Britten & Reynolds produced the $10,000 note endorsed by Fitzgerald and cancelled it. They also produced and can-celled six of the $500 notes, leaving $3150 of the first mortgage notes signed by Johnston uncancelled. (These notes had been sold by Britten & Reynolds and were not in their possession). On the other side, Fitzgerald procured a release of the $2500 second mortgage on the property and a quit-claim, deed from Mary O. Tuhl (who had become Mrs. Mary O. Owens) of it to Reter F. Reynolds and Frederick A. Britten.

We think that if there were no direct testimony of the parties nor other evidence as to what this settlement included, there would be no doubt in any mind that the quit claim deed of the property, carrying it, as it did, subject to all existing liens, was received in full settlement of all the claims which Britten & Reynolds had against Fitzgerald in connection with the property involved, It was to all appearance a completion,—“a cleaning up”—of the transaction involving Fitzgerald’s express or implied liability.

But there is testimony on the subject by the respective parties. Fitzgerald says that Britten opened in December, 1908, a negotiation concerning the unpaid interest on the $16,150 mortgage held by his firm. “He stated,” says Fitzgerald, “that he knew that no taxes had been paid on the property and no interest had been paid, and that he might be willing to accept a quit claim deed from me and assume these various liabilities if I would release the second mortgage, which was of record, amounting to $2500. I thereupon stated to Mr. Britten that if he would save all parties holding title, including the holder of the property under the wárranty deed * * * and also myself from any and all liability—particularly myself—he would take the property in the condition it was then in, subject to all the taxes that had not been paid, that I would give him a quit claim deed and release this second mortgage. * * * He accepted it” (the proposition). “He stated that some of the notes” (secured by the $16,150 mortgage) “* * * were out with various parties. * * * He could not secure them all, but would produce the $10,000 note,” (the one endorsed by Fitzgerald) “and a few other of the notes for cancellation.”

It is to be noted that this programme was exactly carried out.

Britten’s testimony on the matter of the negotiation and settlement in question is that it originated, as Fitzgerald says, in his complaint of the nonpayment of interest "and taxes on the property, but that Fitzgerald proposed the quit claim, saying: “I am only interested in the $10,000 note of Johnston’s, which I endorsed and which applies on that property. If you will cancel that $10,000 and release me on that note, I will give you a quit claim to the property” to which he (Britten) replied, “All right, make out your quit claim. I will have the $10,000 note cancelled.” Then Britten adds: “He had his quit claim made out and I called at his office” (December 29th) “and got the quit claim and with him went to the Title & Tyust Company to have his paper cancelled.” “He asked no consideration other than the cancellation of that note nor in addition to it.” “Nothing was said about the taxes at the time the quit claim was given.” “The taxes were mentioned—their not being paid—when I commenced the negotiation leading up to the giving of the quit claim deed.” “He never stated to me that I was to take the property subject to all unpaid taxes.” “The sole consideration was the cancellation and payment of the $10,000 note.” “On the 29th of December when I got the quit claim and the $2500 was released, nothing was said about taxes.” “When I called on Fitzgerald in the early part of December in the first negotiation which led up to the giving of the quit claim deed, I believe I said he had never paid a penny in taxes or interest on that property.”

Whichever of these versions of the negotiation is correct (and that of Fitzgerald, in the light of what was actually done, seems the more likely to be accurate), we think the negotiation and settlement implied that Britten, in taking the property by quit claim, subject to those liens on it, for the release of which he did not expressly stipulate, made a settlement of the transactions and defaults, so far as Fitzgerald was concerned, which resulted in said liens,—in other words, so far as the contention in this case is concerned, a séttlement of any liability of Fitzgerald for the money which had been allowed him in April, 1907, to pay the taxes of 1906.

Our conclusion therefore compels us to reverse the judgment of the Municipal Oourt and to enter here a judgment of nil capiat and for costs against the plaintiff, and it is so ordered.

Reversed and judgment here.


source: Caselaw Access Project

author: Mr. Presiding Justice Baker

license: Public Domain

text:
    Maxwell-Briscoe Chicago Company, Plaintiff in Error, v. Eugene J. McVoy, Defendant in Error.
    Gen. No. 15,624.
    Accord and satisfaction-—when not established. Held, under the evidence in this case, that the accord and satisfaction relied upon was not established by the evidence.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed June 1, 1911.
    Frederick W. Story and J. W. Merriam, for plaintiffs in error.
    Jones, Addington & Ames, for defendant in error; David D. Stansbury, of counsel.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

Plaintiff brought an action in the Municipal Court to recover for labor done and materials furnished in repairing an automobile of defendant. The defense interposed by the defendant was accord and satisfaction, and there was a finding and judgment for the defendant.

The only question presented for our decision is whether the evidence is sufficient to sustain the finding that there was an accord and satisfaction. The plaintiff presented to the defendant four bills of items of work done and materials furnished, called invoices by the parties, for $12.62, $53.95, $106.70 and $25.35, respectively. The defendant claimed a credit of $18.50 on the first two invoices, and for the amount of those invoices remaining after deducting such credit, $48.-07, sent his check to plaintiff, which was accepted. This action was brought to recover $121.50, the amount of the last two invoices after deducting credit items amounting to $10.55. The contention of defendant on the trial was that the articles specified in the last two invoices were furnished to the plaintiff by ¡Nordyke Marmon Company on the order of the defendant; and the contention of the plaintiff was that said articles were purchased by the plaintiff from the Dordyke Marmon Company. The bookkeeper of the plaintiff testified that said items were credited to the Dordyke Marmon Company on the books of the plaintiff, and defendant’s counsel admitted that plaintiff would produce a witness who would testify that said articles did go on defendant’s car.

December 7, 1907, defendant wrote Mr. Frederick W. Story as follows:

“Dear Sir: Answering your letter of the 2nd inst., have had this matter up with the Marmon people, and they wrote me a letter which gave me to understand that they are willing to compromise the matter. They ask me to make them an offer, etc., and they will try to meet my views. The letter which I received from them in reply is so entirely different that I hardly know what to make of it.
As regards Maxwell-Briscoe people, I will send you a check on Monday in full payment of all the just claims they have against me, which you of course can either accept or decline, as you see fit. As regards the other portion of the bill, as I am not a mechanic, and am not aware of just how things should be, am going to refer this matter to expert mechanics and have them say whether I am liable or not for these pieces. If they say that I am, I, of course, will send check in full, and it malíes no difference whether it is Maxwell or Marmon. If on the contrary they advise me that the parts are defective or any portion of them, it is my intention to refuse to pay for that portion, and let a jury decide whether it is a hold-up game or not. All I want in this matter is a square deal. If I am wrong in my contention I will pay up cheerfully. If your clients are not willing to do the square thing, and the experts tell me they are responsible, I certainly will put up the strongest fight, and take my chance on the jury giving me a square deal. It will probably be ten days’ time before I can give yon a positive answer on this. If I am in the wrong, will send you a check without any further talk about it. If not, I will notify you to that effect, and will have yon put it up to your clients as to whether they will want an expensive law proceeding or compromise the matter. I certainly feel as though I am being ‘held up’ and at the same time I recognize the fact, that not being an expert mechanic, am not competent to malee a final decision on the matter myself, will let you hear from me as quickly as possible as to what my final decision in the matter will be.”

December 9, 1907, defendant sent to Mr. Story this letter:

“12/9/07.
Maxwell Briscoe Chase Co.,
1409 Michigan Ave.,
Per F. W. Story, Atty., Atwood Bldg.
Gentlemen: Enclosed please find check in full payment as follows:
Invoice. "
CASH DISCOUNT.
Invoice. In full pay’t for your a/c against me. Aug. Sept. Invs..................... $12.62
Cr. Mem........................... $18.50 53.95
Check enclosed...................... 48.07
$66.57 $66.57
Please acknowledge receipt and oblige,
Tours truly, John McVoy & Co.
As per my letter 12/7/07 to be in full settlement your claim, the ISTordyke M. Co. to be adjusted later.”
In the letter was enclosed check as follows:
“Chicago, Dec. 9, 1907.
Pay to the order of F. W. Story, Atty., $48.07, Forty-eight 07/100 Dollars.-
McVoy Sheet and Tin Plate Co.,
E. J. McVoy.
To the Bankers National Bank, Chicago, Ill.
In full payment of invoices as per memoranda below.
Maxwell, Briscoe Chase Co, acct,”

This check was endorsed by the payee snd paid January 17, 1908.

The words in the cheek “In full payment of invoices as per memoranda below,” refer to the invoices mentioned in the letter sent with the check. The words in the letter of December 7th, “As regards Maxwell Briscoe people, I will send you a check on Monday in full payment of all the just claims they have against me, which you of course can either accept or decline as you see fit,” are to be taken in connection with the letter of December 9th and the check of that date in determining what was the offer thereby made to the plaintiff. The letter of December 9th in terms states that the check is sent in full payment of the two invoices of $12.62 and $53.95, “the Mordyke M. Co. to be adjusted later,” and the check in effect states that it is sent in full of those two invoices. We think that the check was offered in settlement of only the two invoices mentioned in defendant’s letter of December 9th, that the acceptance of the check by the plaintiff only operated as a bar to an action for the items specified in those invoices, and that plaintiff’s right of action, if any it had, for the items specified in the other two invoices was not barred or affected by the acceptance of the check.

In April, 1908, the Mordyke Marmon Co. brought an action against defendant to recover a balance claimed of $128.-97 for automobile fixtures furnished. April 28, 1908, the plaintiff in that case gave to the defendant a receipt for $71.50 in full payment of claim for such materials, which receipt was put in evidence by the defendant in this case.

If the materials specified in the last two invoices were sold by the Mordyke Marmon Co. to the defendant and by his order delivered to the plaintiff, then the right of action for the price or value of such materials was in the Mordyke Marmon Co. and not in the plaintiff. If such materials were sold by the Mordyke Marmon Co. to the plaintiff and by the plaintiff used in repairing defendant’s car at his request, then plaintiff’s right óf action for their price or value could not be affected by any payment therefor made by defendant to the Nordyke Harmon Co. We find in the record no evidence sufficient to support a finding that the plaintiff was barred of. its right of action, if any it had, for the infice or value of the articles mentioned in the last two invoices by the payment by the defendant of the claim of the Nordyke Harmon Co. against him.

We think that the finding and judgment for the defendant is so manifestly against the evidence that for that reason the judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    Margaret Cotter, Defendant in Error, v. Eugene Sullivan, Plaintiff in Error.
    Gen. No. 15,639.
    1. Husband and wipe—when former competent as witness. A husband is competent as a witness for his wife if the controversy concerns her separate property.
    2. Evidence—when incompetency of witness cannot he relied upon. In order to preserve for review the question of the competency of a witness an objection to such competency must have been made in the trial court.
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 1, 1911.
    Joseph Mahon, for plaintiff in error.
    Thomas C. Kennedy, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

This is a writ of error to the Hunicipal Court of Chicago to reverse a judgment in favor of Margaret Cotter against Eugene Sullivan for $252.50. The source of the litigation was an alleged misrepresentation of facts by Sullivan to Hrs. Cotter concerning the title to some real estate which her husband had deeded to her on a separation that had taken place between them. Sullivan, according to her testimony, told her there was a lien of a judgment on it in his, Sullivan’s favor, when, as a matter of fact, there was none, and by means of such false representation secured from her the execution in his favor of a mortgage and notes for $210 and interest, which were paid by her to him before she discovered that they had been thus fraudulently obtained.

The evidence was conflicting, but there was enough in favor of the plaintiff to sustain the judgment rendered by the Municipal Court, which tried the case without a jury. We do not feel justified in reversing it as against the clear preponderance of the evidence.

The only other point made by the plaintiff in error is that the husband of Mrs. Cotter was allowed to testify in her behalf.

When the husband, James Cotter, was offered as a witness, no objection was made to his testifying. Objections on entirely different grounds were made to certain questions asked him, but none to his being a competent witness. This probably was because he was a competent witness. The claim of the plaintiff against the defendant was her separate property. The transactions out of which it aroáe were concerning her separate property, and she was at the time living separately from her husband. The case was one, therefore, in which the Evidence Statute of Illinois (chapter 51 of the ¡Revised Statutes) allows the husband to testify.

The judgment is affirmed.

Affirmed.


text:
    I. Kobrinsky, Defendant in Error, v. L. A. Raven, Plaintiff in Error.
    Gen. No. 15,645.
    1. Verdicts—when not against the preponderance of the evidence. A verdict for the plaintiff may be sustained notwithstanding it is supported by the testimony of himself and another witness and contradicted by the defendant and another witness.
    2. Municipal Court—when errors in instruction will not reverse. An error in the charge given to a jury in the Municipal Court will not reverse unless the Appellate Court is satisfied that the judgment appealed from resulted from such error.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 1, 1911.
    Samuel B. King and Jule F. Brower, for plaintiff in error.
    Levy & Levy, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

In this case Isaac Kobrinsky obtained a judgment on a verdict of a jury in the Municipal Court of Chicago for $423.46 and costs against L. A. Haven.

The suit was begun by Kobrinsky against L. A. Baven and August Grage jointly, but after the evidence for the plaintiff had been heard he dismissed the suit as against Grage.

The cause of action was a claim for the repairing of wagons by the plaintiff, who was a blacksmith. The wagons repaired belonged to Grage, although Baven, who was a manufacturer of condition powders for horses and cattle, apparently had a mortgage on them. However that may be (and it is immaterial), the question at issue below before the jury, under what we consider proper and sufficient instruction from the court, was whether Baven made a direct promise to Kobrinsky to pay for the work which was done on the wagons before it was done.

Baven testified that he made no such promise, and further indeed, that he made no promise at all, either direct or of guaranty for Grage to pay for the work. We do not think that any question arises on this record involving the Statute of Frauds. The question was whether a direct promise had or had not been made—not whether a promise admitted to have been made was direct or collateral.

On the issue thus made and submitted to the jury, the testimony was conflicting, but the question was a fair one for the jury and has been answered by them in favor of the plaintiff. We have read the entire evidence, and see no reason for holding the verdict clearly contrary to its weight. The plaintiff in error maintains that the verdict rests solely on the testimony of the plaintiff himself, corroborated by one other witness and contradicted by the testimony of the defendant, corroborated by the plaintiff’s brother.

If this were so, there is no rule of law that makes a verdict for the plaintiff unsustainable. Peaselee v. Glass, 61 Ill. 94, so often cited to us, is not authority for any such thesis as that which counsel argue for. The proposition is contrary to the most elementary rules concerning the weight of evidence and duties of juries.

But the facts are not as thus colored. The plaintiff, Isaac Kobrinsky, and his witness, Brody, certainly gave evidence concerning a conversation between Baven and Kobrinsky which supported the verdict of the jury.

We have not left out of account, in considering the evidence in this cause, the manner in which the accounts for the work done were originally entered by Kobrinsky, or the manner in which they were rendered; but we find nothing in them to warrant us in holding the verdict of the jury unsustainable or unjustified.

Complaint is made by the plaintiff in error of the charge of the court to the jury, but we do not think that taken together it is erroneous or misleading.

Nor should the distinction pointed out in Railway Co. v. Grossheim, 141 Ill. App. 77, between our duty as to erroneous instructions in the Municipal Court in cases of the fourth class, and our duty as to erroneous instructions in other courts, be overlooked. We certainly are not “satisfied” that the judgment in this case resulted from any erroneous instruction, even if the last paragraph of the charge might have been in more carefully guarded language.

We find no reversible error in the proceedings justifying a reversal of the judgment, and it is affirmed.

Affirmed.


text:
    Mrs. Peter McDermott, Defendant in Error, v. Thomas Brennan, Plaintiff in Error.
    Gen. No. 15,651.

      Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 1, 1911.
    Cunnea, Scully & Rafferty, for plaintiff in error.
    Miles J. Devine, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

This writ of error is sued out to reverse a judgment obtained by the defendant in error—plaintiff below—for the balance of the purchase price of a horse, wagon and harness which she maintains belonged to her, and which the defendant bought from her husband. The defense was that the defendant paid the husband for them supposing that the husband owned them. If this is true, it is a hard case for the plaintiff in error, but he has after all—if the stories told by Mrs. McDermott, Willie McDermott and Mrs. Mary Brennan are to be believed—only himself to blame for too little caution in dealing with the property. We cannot say with certainty on which side the truth lies, where the plaintiff’s and defendant’s stories are conflicting, but the trial judge evidently believed the plaintiff, Mrs. McDermott, and we have- no ground for reversing his finding. Counsel for plaintiff in error argue that the law protects a person who deals with another for chattels, over which he exercises an apparent right of possession, entrusted to him by their true owner. If this can be called a rule, it has rigid limitations and conditions. The difficulty in this case is not in the law, but in the facts. Here the plaintiff testified that the property was hers and paid for with her money, and that she so informed Brennan before he paid her husband, and warned him to pay her and not her husband. Brennan admits receiving notice from the wife not to pay her husband the money, and that he promised not to, but says that she afterwards revoked this warning and told him that it would be all right to give her husband the money. The judge of the Municipal Court who tried the case, without a jury, evidently did not believe this statement, and we are unable to say that it is manifest that he should.

The evidence in the cause for the plaintiff further tends to show that the defendant on various occasions recognized in his speech at least the ownership of the plaintiff of the rig and horse sold.

The judgment is affirmed.

Affirmed.


text:
    Arthur Bairstow, Defendant in Error, v. E. F. Rennacker, Plaintiff in Error.
    Gen. No. 15,661.

      Contracts—how to he construed. Ho strained construction should be placed upon a contract; its natural construction will prevail.
    Error to the Municipal Court of Chicago; the Hon. William H. Gemmill, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 1, 1911.
    Charles R. Casler, for plaintiff in error.
    Frank Johnston, Jr., for defendant in error,
   Mr. Justice Brown

delivered the opinion of the court.

This writ of error was sued out to reverse a judgment for $180 and costs rendered April 9, 1909, by the Municipal Court of Chicago in favor of Arthur Bairstow against E. F. Eennacker.

So far as the matter is not purely one of fact, properly settled, in our view, by the finding of the court below, which tried the cause without a jury, it turns on the construction of a contract made between Bairstow and Eennacker. The contract read:

“Chicago, April 24, 1908.
This is to certify that I have received $100 from E. F. Eennacker as per agreement in turning over contract for paving, curbing, etc., Southport Ave. from Bryn Mawr to Balmoral, said being a city contract warrant number 34,428.
I, E. F. Eennacker, agree to pay the undersigned the amount received from the City of Chicago for filling said street, providing he does same within time specified, which shall be within six days from completion of curb.
It is further agreed that E. F. Eennacker must complete said contract according to city specifications in the required time. It is also agreed that E. F. Eennacker is to pay for all materials and labor, etc., required in doing said work ordered by him.
(Seal) Arthur Bairstow.
(Seal) E. F. Eennacker."

This contract was the result of a negotiation between the parties as to the terms on which Eennacker could be substituted for Bairstow in the city contract named. It might, perhaps, by a somewhat strained construction, bear the interpretation Kennacker now seeks to put on it, that it was only the filling done after its execution for which he was to pay Bairstow,—the $100 being understood to cover everything done under the contract before that time. We think the natural construction, however, is that contended for by Bairstow, that in addition to the $100 all the money received from the city for filling was to be paid to him on condition that he should complete the filling within the specified time.

This was the construction put on it by the trial judge below, who found also that the conditions had been complied with. We see no reason to question or disturb his decision.

The point that the suit was prematurely brought we do not consider well taken. The matter of the reserve fund is one between the city and Kennacker. The city, according to his own testimony, has allowed him. for the filling, and he would have the $180 that is deposited with the city to meet this claim, if he were not contesting it. The payment to him and by him to the plaintiff can be practically contemporaneous.

There was no release of the city by Bairstow, as asserted by plaintiff in error. The city was not liable to him, and the court evidently so found. Thereupon, before judgment, and because of said finding, the cause was dismissed against the city.

The judgment of the Municipal Court is affirmed.

Affirmed.


author: Mr. Justice Smith Mr. Justice Brown.

text:
    John Heiting, Appellee, v. The Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 15,532.
    1. Negligence—obligation to fence. A valid ordinance requiring a railroad company to fence its right of way, held, to be applicable as well to the protection of persons as of property.
    2. Negligence—effect of violation of ordinance. The violation of a railroad ordinance enacted for the protection of persons, constitutes negligence.
    3. Negligence—how proximate cause determined. If but one conelusion can be drawn from the evidence the question as to the proximate cause of an injury is one of law. Where, however, different conclusions may be drawn from such evidence, the question is one of fact to be submitted to and determined by the jury.
    Brown, J., dissenting.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed June 1, 1911.
    M. L. Bell, for appellant; Benjamin S. Cable, of counsel.
    James C. McShane, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The appellee was a boy ten years and two months old. He lived with his parents on the corner of Peoria and 96th streets, Chicago, and had lived in that vicinity all his life. On the day of the accident he left home about twelve forty-five o’clock in the afternoon to return to school. With five other hoys he went west on 96th street four blocks to the tracks of the appellant, intending to cross the tracks at that point and go south on Vincennes road, a street parallel and adjacent on the west to appellant’s right of way. On the right of way were four tracks; the two inside ones were passenger tracks, rock ballasted, on an embankment about four feet above the level of the street; the two outside ones were freight tracks, cinder ballasted, about one and a half or two feet lower than the passenger tracks. A drainage ditch about four feet wide was on each side of the right of way and outside of the ditch was a four or five strand barbed wire fence on posts about ten feet apart. At 95th and 97th streets were planked and regular crossings, but 96th street was not opened across the tracks. At 96th street on the west side of the tracks two posts were out and the wires spread apart, making an opening to crawl through. On the east side of the tracks at 96th street the wires were out or broken out of two of the spaces between the posts and had been in that condition for more than a year. About the time the boys reached the right of way an engine drawing a long freight train passed slowly south on the west track. The boys hearing the school bell ring went through the east opening in the fence onto the tracks and started to run south to cross ahead of the engine on 97th street and get to school on time. The school building was on Throop and 99th streets,—one block west and three blocks south of the point where they went upon the tracks. Done of the boys touched or attempted to get hold of or board the train. The appellee ran south along the west end of the ties of the passenger track next to the passing freight train about twenty feet, when he stumbled and fell, rolled down the incline, and one leg was run over and crushed, necessitating its amputation. The train crew had no knowledge or notice of the boys being on the tracks.

The appellee also introduced in evidence ordinances of the city of Chicago providing that no passenger train should run at a speed of more than ten miles an hour and no freight train faster than six miles an hour, except within certain limits, describing same, where trains might run at a greater speed on complying with certain provisions of the ordinance for the erection of walls, fences, gates, etc., within said limits as the mayor and commissioner of public works should approve or direct. The evidence also tended to show a compliance by the defendant with the directions of the said commissioner in the erection some time previous of said fence at the place of the accident, within the third district, and thereupon and at the time of the accident passenger trains run by said place at the rate of thirty miles an hour and freight trains twelve miles an hour. An ordinance of the city of Chicago was also introduced in evidence providing that no cows, horses, swine, sheep, etc., should be permitted to run at large within certain territory, including the place of the accident. The facts were not in dispute and the appellant offered no evidence. The jury returned a verdict for the appellee assessing his damages at $7,500, and judgment was entered thereon.

The appellant says: “The only error we desire to urge is the refusal of the court to direct a verdict,” and bases its argument on three propositions. First: A railroad company is under no common law duty to fence its tracks against children. Second: The ordinance requiring fences was not intended for the protection of persons. Third: The defect in the fence was not the proximate cause of plaintiff’s injuries.

We agree with appellant that as a general proposition a railroad company is under no common law duty to fence its tracks. Whether or not there was a common law duty requiring the erection and maintenance of the fence in question, we do not think is necessary to decide, for the case seems to have been tried upon the count averring negligence in the violation of the said fence ordinance, thereby causing the injury; and appellant says: “The court below held that the plaintiff was entitled to go to the jury on account of the violation of the ordinance.” We shall therefore only consider the judgment as based on the count averring negligence under the ordinance, with the view that if it be sustained it must he on this count.

Counsel for appellant do not attack the validity of the ordinance in question, hut contend that in this State such an ordinance is intended for the protection of animals and not of persons, and rely on Bischof v. Ill. Sou. Ry. Co., 232 Ill. 446; Byrnes v. Boston & Maine R. R. Co., 181 Mass. 322; and Lake Shore & M. S. R. R. Co. v. Liidtke, 69 Ohio St. 384.

In Bischof v. Illinois Southern Ry. Co. the action was to recover for the death of a child six years old because of a failure to comply with the statute which requires railroad corporations to fence their tracks to prevent cattle, horses and other animals from getting on them. The court said: “The purpose of the statute is to fix a conclusive liability upon a railroad corporation for a failure to erect a fence sufficient to keep stock off the track and to authorize a recovery for damages resulting from such failure, together with attorney’s fees; hut we are unable to discover any valid ground upon which it can be said that a requirement to build a fence suitable and sufficient to turn stock imposes the duty to build a fence suitable and sufficient to prevent persons from trespassing on the track, although such persons may be of tender years.”

In Byrnes v. Boston & Maine R. R., supra, a boy eight years old while crossing defendant’s freight yard was struck and injured by a passing train and a recovery was sought on the ground the defendant had not erected and maintained at the place a fence as required by the statute. The court said: “The object of the statute is expressed to be to prevent the entrance of cattle upon the road. We find nothing in the statute or in our cases which requires a railroad corporation to have a fence between its own tracks and its freight yard; and it is clear that it was not bound to have a fence between its yard and the street.”

In L. S. & M. S. Ry. v. Liidtke, supra, a boy six years old went through a broken fence onto the railway tracks, and in attempting to grab or touch a passing car slipped or fell and was injured. The action was sought to be maintained under the statute requiring a railroad company to construct and maintain “a fence sufficient to turn stock.” The court said: “It is therefore clear that the fences and cattle guards are not for the purpose of keeping persons off the railroad, but only stock and domestic animals. This is made clear by both the words and purposes of the statute.” It is to be observed that all these cases were brought under a statute providing for the erection and maintenance of fences; etc., for the purpose of keeping cattle, horses and animals, only, off the railroad tracks; and if the case at bar be held to come within said statute, the Bischof case, supra, would be controlling.

In the enumeration of the powers conferred upon the city in the City and Village Act, article 5, section 1, clause 26, the city may require railroad companies to construct fences, etc., to protect animals “in like manner and extent as under the general laws of this State relative to the fencing of railroads.” The legislature did not stop here, but seemingly recognizing that necessity might require a broader power for the protection of persons, followed with clause 27, beginning as follows: “To require railroad companies to keep flagmen at railroad crossings of streets, and provide protection against injury to persons and property in the use of such railroads.” In reference to this clause 27 the Supreme Court of the United States said in Hayes v. M. C. R. R. Co., 111 U. S. 228-238: “The latter clause of this provision is general and unrestricted. It confers plenary power over railroads within the corporate limits, in order that by such requirements as in its discretion it may prescribe, and as are within the just limits of police regulation, the municipal authority may provide protection against injury to persons and property likely to arise from the use of railroads.”

The ordinance in question introduced in evidence is as follows:

“2450. Walls, fences and signals. Every person, firm, company or corporation owning, leasing or operating a steam railroad, within the corporate limits of the city of Chicago, shall, within such time as may be prescribed by the mayor and commissioner of public works, construct, or cause to be constructed, on each side of its tracks, and in such place with reference thereto as the mayor and commissioner of public works shall approve or direct, except where public streets shall intersect or cross the same, substantial walls or fences of such material, design, proportion and height, as shall.be determined and approved by the mayor and commissioner of public works, and shall erect and maintain gates and signals bells, and other safety appliances, operated from towers, or by other reliable means, satisfactory to the mayor and commissioner of public works, for the purpose of giving due and timely warning of the approach of trains, cars or engines at all such streets and public crossings within the corporate limits of the city, as may be designated by the mayor and commissioner of public works, which gates, bells and other safety appliances shall be qf such material, kind, design and proportion as shall be satisfactory to the mayor and commissioner of public works, and shall be maintained and operated by such device, and by competent attendants in charge thereof during all hours of the day and night; and, whenever two or more lines of railroad tracks shall run upon a common right of way, or parallel to and near each other, along or across any street, alley or public place, the mayor and commissioner of public works shall have the right to provide that gates shall be constructed which shall inclose all or any number of such parallel tracks, which gates, so inclosing such parallel tracks, shall be operated simultaneously as to all such tracks' so inclosed. And all persons, firms, companies or corporations owning, operating or leasing any railroad in said City of Chicago shall, also, sufficiently light all portion of their tracks crossing any street, alley, park or public or private way, in such manner and at such places as shall be satisfactory to the mayor and commissioner of public works. And, in the event that any such person, firm, company or corporation owning, leasing or operating any railroad shall fail or neglect to construct such walls and fences and provide for the lighting of their tracks, as herein required, and to erect, maintain and operate such gates, signal bells, or other safety appliances along its or their tracks and at the street crossings thereof, within sixty (60) days from the time of the passage of this ordinance, then the City of Chicago, at its election, may cause the same to be erected, constructed, completed and maintained at the expense of such persons, firm, company or corporation, and such person, firm, company or corporation shall he liable to and pay the City of Chicago the whole cost and expense thereof.”

A valid city ordinance within the limits of that city has the same force and effect as a statute. Mason v. City of Shawneetown, 77 Ill. 533; U. S. Brewing Co. v. Stoltenberg, 211 Ill. 531; Commonwealth Elec. Co. v. Rose, 214 Ill. 545; Morse v. Sweenie, 15 Ill. App. 486. The appellant constructed the fence and it was its duty to maintain same so long, at least, as it ran its trains at the greater speed thereby permitted. C. & E. I. R. R. Co. v. Guertin, 115 Ill. 466-470. In other words, availing itself of the benefits of the ordinance it is now estopped from repudiating its conditions. Commonwealth Electric Co. v. Bose, supra. If this ordinance be read bearing in mind the power conferred upon the city to require railroad companies to provide protection to persons, and also the ordinance in evidence that prohibited animals running at large, it would seem that its primary -purpose was the protection of persons. In Bischof v. Illinois Southern Ry. Co., supra, the court said: “The natural disposition of courts in such cases would be to broaden the statute as much as possible in view of the fact that the law is more solicitous for the protection of human life than property, and if the language employed by the legislature would permit, it would be assumed that it was not the intention to give protection against injury to animals and deny it to infant children.”

A fair construction of this ordinance, with the power granted under the statute to pass the same, is in our opinion that it was primarily, or at least in part, for the protection of persons.

The proof showing without contradiction that the appellant was guilty of a violation of the ordinance, it follows it was thereby guilty of negligence. C. & E. I. R. R. Co. v. Mochell, 193 Ill. 208-211; U. S. Brewing Co. v. Stoltenberg, 211 id. 531-537; Commonwealth Electric Co. v. Rose, 214 id. 545—560; C. & J. E. Ry. Co. v. Freeman, 125 Ill. App. 318-322; Conrad v. Springfield, Cin. Ry. Co., 145 id. 564-572.

As to the remaining point made by the appellant, that said negligence, the break in the fence, was not the proximate cause of the plaintiff’s injuries, the court is unable to agree. The majority of the court hold that it was a question of fact under the evidence for the jury, and there being evidence tending to show the break in the fence was the proximate cause of the injuries, and the jury, under proper instructions, finding the break in the fence was the proximate cause of injuries, and the learned trial judge entering judgment thereon, the majority of the court do not consider that the verdict should he disturbed. In Pullman Palace Car Co. v. Laack, 143 Ill. 242, the court said: “Whether the negligence of the defendant was the proximate cause of the injury was a question of fact, also, to be determined by the jury, under proper instructions from the court. We held in Pent v. Toledo, Peoria and Warsaw Railroad Co., 59 Ill. 349 (approving Toledo, Peoria and Warsaw Railroad Co. v. Pindar, 53 id. 451), that whether the alleged negligence was the proximate cause of the injury was in each case a question of fact, and expressly repudiating the contrary rule, as laid down in Ryan v. New York Central Railroad Co., 35 N. Y. 314, as in the teeth of almost numberless decisions and as unsupported by reason. In the subsequent case of Toledo, Wabash and Western Railway Co. v. Muthersbaugh, 71 Ill. 572, the same was again held. We said in the Pent case, that so far as the case turned upon the issue of remote or proximate cause, the jury should be instructed that if the loss is a natural consequence of the alleged carelessness, which might have been foreseen by any reasonable person, the defendant is responsible, but is not to be held responsible for injuries which could not have been foreseen or expected as the result of the negligence. This is not to be understood as requiring that the particular result might have been foreseen, for if the consequences follow in unbroken sequence from the wrong to the injury, without an intervening efficient cause, it is sufficient if, at the time of the negligence, the wrongdoer might, by the exercise of ordinary care, have foreseen that some injury might result from his negligence.” Citing many authorities.

In Landgraf v. Kuh, 188 Ill. 484, a recovery was sought on the ground that the defendant failed to provide a fire escape. The court said, p. 500: “It is often difficult to determine whether the cause of an injury is the remote or the proximate cause thereof. Wliere, in the absence of a fire escape, a person in a burning building is destroyed by the flames, it is unquestionably true that the fire is the proximate cause of the death, but yet it cannot be said that the absence of the fire escape is not, in the view of the law, a proximate cause, if the presence of such fire escape would have prevented the death. So, if a person in a burning building, where there is no fire escape or none accessible, is forced to seek escape from the building by descent from a ladder or otherwise, it may be a question whether the defective condition of the ladder, or its unskillful use, is, in such a case, so far the proximate cause of the accident, as to make the absence of the fire escape merely a remote cause. Certainly, the effort to escape in some other mode than by a fire escape might be directly caused by the. absence of such fire escape. But we do not wish to be understood as expressing any opinion upon the question, whether the obstruction of the double window communicating with the fire escape, or an accident in connection with the use of the fireman’s ladder, was the proximate cause of the death of appellant’s interstate, or not. What we decide is, that the question, what is the proximate cause of an injury, is ordinarily a question to be determined by the jury under the instructions of the court.”

In I. C. R. R. Co. v. Siler, 229 Ill. 390, the court said, p. 393: “What is the proximate cause of an injury is ordinarily a question of fact, to be determined by the jury from a consideration of all the attending circumstances. Fent v. Toledo, Peoria and Warsaw Railway Co., 59 Ill. 349; Pullman Palace Car Co. v. Laack, 143 id. 242; West Chicago Street Railroad Co. v. Feldstein, 169 id. 139. It can only arise as a question of law or pleading when the facts are not only undisputed, but are also such that there can be no difference in the judgment of reasonable men, as to the inferences to be drawn from them.”

In Ford v. Hine Bros. Co., 231 Ill. 463, the court on p. 468 quoted from I. C. R. R. Co. v. Siler as follows: “In order to make a negligent act the proximate cause of an injury it is not necessary that the particular injury, and the particular manner of its occurrence, could reasonably have been foreseen. City of Dixon v. Scott, 181 Ill. 116. If the consequences follow in unbroken sequence from the wrong to the injury without an intervening efficient cause, it is sufficient if, at the time of the negligence, the wrongdoer might, by the exercise of ordinary care, have foreseen that some injury might result from his negligence.”

Whether the negligence charged in the declaration is the proximate cause of the injury sustained is a question of fact for the jury, if there is any evidence tending to establish that fact, but whether there is any such evidence is a question of law. Seymour v. Union Stock Yards Co., 224 Ill. 579-586.

When but one conclusion can be drawn from the evidence by all reasonable minds, the question is one of law; otherwise it is a question of fact to be submitted to the jury under proper instructions.

The court instructed the jury as follows:

“It is a material part of plaintiff’s case to prove that the negligence charged in the declaration was the proximate cause of his injuries. Even if you believe that the defendant’s fence was defective, and that such defect was due to the negligence of the defendant, yet the plaintiff cánnot recover unless he further shows by a preponderance of the evidence that the defect in the fence was the proximate cause of his injury. In order to do this he must show that if the defect had not existed he would not have been injured, and must further show that his injury was a natural and prohable consequence of such defect.”

This instruction presented the question fairly to the jury. There were only seven instructions given to the jury in the case, and no opportunity to be misled or in any way confused on this question. The boys started west on 96th street to go to school. The break in the fence was where the street came up to the appellant’s right of way, presenting an excellent opportunity for boys or children to go through and get upon the tracks. Common experience and observation teach us that children of the age of appellee will very probably avail themselves of such opportunities as there presented to go upon and across tracks, and it would seem that the appellant in the exercise of ordinary care should have foreseen or expected an accident by reason of said conditions. It is true the appellee went voluntarily upon the tracks and there fell and. was injured. But may not all this he considered the result or consequence of the negligence of the appellant in failing to maintain its fence as directed ?

In Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469, the court said: “The question always is, was there an unbroken connection between the wrongful act and the injury—a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? * * * The inquiry must, therefore, always be whether there was any intermediate cause, disconnected from the primary fault and self-operating, which produced the injury.”

That the defect in the fence was not the proximate cause of appellee’s injuries, the appellant cites and relies on Seymour v. Union Stock Yards Co., 224 Ill. 579; Griffin v. Chicago & Western Indiana R. Co., 101 Ill. App. 284, and Lake Shore & M. S. Ry. Co. v. Liidtke, 69 Ohio St. 384. In each of these eases the boy injured, or killed, was touching or attempting to touch or to board, a moving train, which would seem to be an intervening, efficient cause, and distinguishable from the present case. The majority of the court do not by any means hold that the question is clear or free from difficulty, but are of the opinion that the facts constituted, in the language of the United States Supreme Court, supra, a “succession of events so linked together as to make a natural whole, and was not a question on which all reasonable minds would agree and was therefore properly submitted to the jury. That it was a question of fact to be submitted to a jury is supported by the following cases: Schmidt v. Mil. & St. P. R. R. Co., 23 Wis. 186; Keyser v. Chicago & G. T. Ry. Co., 56 Mich. 559; Rosse v. St. P. & Duluth Ry. Co., 68 Minn. 216; Mattes v. Great Northern Ry. Co., 95 Minn. 386; Ellington v. Great Northern Ry Co., 104 N. W. Rep. (Minn.) 827; Hayes v. M. C. R. R. Co., Ill U. S. 228. In each of these cases a recovery was sought for injuries to, or death of, a child because of negligence in not complying with a statute, or ordinance, requiring tracks to be fenced. The court held in each of the said cases that it was a question of fact to be determined by the jury, whether or not the absence of, or defect in, the fence was the proximate cause of the injury or death. In Hayes v. M. C. R. R., supra, the court said: “It is further argued that the direction of the court below was right, because the want of a fence could not reasonably be alleged as the cause of the injury. In the sense of an efficient cause, causa causans, this is no doubt strictly true; but that is not the sense in which the law uses the term in this connection. The question is, was it causa sine qua non; a cause which, if it had not existed, the injury would not have taken place, an occasional cause? And that is a question of fact, unless the causal connection is evidently not proximate. M. & St. P. R. R. Co. v. Kellogg, 94 U. S., 469. The rule laid down by Willis, J., in Daniel v. Metropolitan R. Co., L. R. 3, O. P. 216, 222, and approved by the Exchequer Chamber, L. R. 3, C. P. 591, and by the House of Lords, L. R. 5, H. L., 45, was this: ‘It is necessary for the plaintiff to establish by evidence circumstances from which it may fairly be inferred that there is reasonable probability that the accident resulted from the want of some precaution which the defendants might and ought to have resorted to;’ and in the case of Williams v. Great Western R. Co., L. R. 9 Exch., 157, where that rule was applied to a case similar to the present, it was said, p. 162: ‘There are many supposable circumstances under which the accident may have happened, and which would connect the accident with the neglect. If the child was merely wandering about and he had met with a stile, he would probably have been turned back; and one at least of the objects for which a gate or stile is required is to warn people of what is before them and to malee them pause before reaching a dangerous place like a railroad.’

“The evidence of the circumstances showing negligence on the part of the defendant, which may have been the legal cause of the injury to the plaintiff according to the rule established in R. R. Co. v. Stout, 17 Wall. 657, and Randall v. R. & O. R. R. Co., 109 U. S. 478, should have been submitted to. the jury.”

It is contended that the fence was not “boy proof,” and even if the fence had been maintained as required, appellee might have crawled through or climbed over it and been injured. Very true. In such a case of course there would be no liability on the count charging negligence in the violation of the ordinance. If the appellant constructed and maintained a fence as directed and approved by the commissioner of public works and the mayor under the ordinance, it performed its duty. It violated the ordinance and was thereby guilty of negligence. What “might have” happened had it not been guilty of negligence may be more or less speculative. It is not a question of what “might have” taken place; but rather what was the reasonable, probable and natural consequences of the negligence in question under all the facts and circumstances in evidence; and was not that a fair question to be determined by the jury ?

The court gave, upon the request of the appellant, the following instruction:

“The law does not require a railway company to build a fence upon its right of way so secure as to make it impossible for a boy to get upon the tracks, over or under or through the fence, but the law only requires a railway company to construct a fence in the City of Chicago of such character and pattern as shall be prescribed by the Commissioner of Public Works.”

In Rosse v. St. P. & Duluth Ry. Co., supra,, the court said: “As has been said, in one case a fence may be a very formidable obstruction to a child’s going upon a railroad company’s right of way, it may prevent his going there entirely; and, if it would, we do not think we have any right to say that his protection was not within the purview of the statute. In view of the kind of fence which the statute permits to be built, it may be in most cases a question whether the existence of such a fence would have prevented the child from straying upon the track, and hence whether the failure of the railway company to build it was the proximate cause of the injury. But that is a matter of proof on the trial.”

Counsel for appellant also argue that appellee was a trespasser and the appellant owed him no duty other than not wilfully or wantonly to injure him. The statement of the law is the settled rule of this State; but should it be held under the circumstances that appellee was a trespasser ? If recovery were sought on the common law count, or the negligent conduct of the train men, or the negligent operation of the train, the argument would be pertinent and of great force. The recovery here is based upon negligence, in that the appellant violated the ordinance in question, and thereby the appellee was injured. How if it be found that the violation of the ordinance was the negligence that was the proximate cause of the injury, then it necessarily follows that the appellee was on the tracks because of appellant’s negligence. To hold that under such circumstances he was a trespasser and therefore appellant was not liable would be to hold that appellant could take advantage of its own wrong and moreover would, in a great measure, nullify every statute and ordinance of like character. In nearly every case we have examined, similar to the case at bar, where the court found as a fact, or held it was a question of fact to be submitted to the jury, that the negligence in the violation of the ordinance, or statute, was the proximate cause of the injury, the question of trespasser was not even mentioned. In Baltimore & Potomac Ry. v. Cumberland, 176 U. S. 232, the plaintiff was a boy twelve years and four months old employed in lighting lamps in the vicinity of defendant’s right of way, and in the performance of his duties crossed the tracks at places other than public crossings, and was injured. Of the questions in the case one was the failure to fence and another whether he was a trespasser. The court refused to hold, under the circumstances, that he was a trespasser, and in a discussion of that point said, in part: “But in the absence of such fence we do not think that the mere crossing of the track in the convenient performance of his duties made him a trespasser per se"

The majority of the court, for the reasons given, are of the opinion that the case was properly submitted to the jury, and are not disposed to hold against the verdict of the jury, . sustained by the learned trial court, on the question of fact.

The judgment is affirmed.

Affirmed.

Mr. Justice Brown.

I dissent. My understanding of the law is that while a violation of an ordinance, if it is the proximate cause of an injury, may establish the negligence of a defendant, it is not sufficient proof that such violation was the proximate cause of the injury to establish that possibly the accident might not have happened had the ordinance been observed. Nor can a defendant be held liable for an injury unless his negligence was its proximate cause.

In this case I think the evidence clearly shows that the accident was not proximately caused by the break in the defendant’s fence. Ho other negligence is charged. It was a most deplorable accident, by which the plaintiff lost his leg, but I do not think the defendant is liable for it.

The case, in my opinion, should have been taken from the jury by a peremptory instruction for the defendant.


author: Mr. Justice Smith

text:
    H. A. Nordhaus, Defendant in Error, v. The Peter Schoenhofen Brewing Company, Plaintiff in Error.
    Gen. No. 15,565.
    Personal injuries—when rule of independent contractor does not apply. The owner of premises owes to one engaged in working thereon the duty to exercise ordinary care not to injure him.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Prank Crowe, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 1, 1911.
    Lackner, Butz & Miller, for plaintiff in error.
    Benson Landon, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

This action was brought by the defendant in error, Nordhaus, hereinafter called plaintiff, against plaintiff in error, Schoenhofen Brewing Co., hereinafter called defendant. The jury found for the plaintiff and a judgment was entered against the defendant for $600.

It is contended: “The court erred in not instructing the jury to find the defendant not guiltyand “The verdict is- against the manifest weight of the evidence.”

The plaintiff was a machinist employed by Olsen & Tilgner Manufacturing Co., who, under a contract with the defendant, was making certain repairs in the machinery in one of defendant’s mash tubs. The tub was circular in form and eighteen or twenty feet in diameter. The mechanism inside the tub was revolved by means of a vertical shaft extending up through the conical top of the tub to the ceiling of the mash room. The shaft was revolved by means of a bevel gear or wheel, at the top of the tub, through the center of which the shaft passed. This wheel was cast iron, about six feet in diameter and weighed fifteen hundred to two thousand pounds. In order to take the machinery out of the mash tub the defendant had removed the shaft and gear and suspended the gear from the ceiling by means of ropes and chains. All this work was done by the defendant, who delivered the machinery so taken from the tub to the said Olsen Company’s factory. There the machinery was repaired and the plaintiff was sent with two helpers to replace same in the mash tub, as provided by defendant’s contract with the Olsen Company. The plaintiff found the gear as suspended by the defendant, and was working at the tub some four or five days when one of the ropes broke and the gear fell upon plaintiff’s foot. It is undisputed that the gear fell upon plaintiff’s foot and injured him while in the performance of his duties, and that the rope that broke was rotten.

It is claimed that the court should have instructed the jury to find the defendant not guilty because: “The owner of a building who engages an independent contractor to do work in the same owes no duty to a servant of the independent contractor to see that the instrumentalities used in the performance of the work are safe, even though such instrumentalities belong to the owner and are used with his permission or are furnished by him.” The gear in question was suspended by the defendant more than four weeks before the accident, and we do not think the rope in question can be considered an instrument furnished the independent contractor to perform the work in question, even though it be conceded the Olsen Company had entire charge of the work of replacing the machinery after it was repaired. The Olsen Company had nothing to do with suspending the gear or using a rotten rope to so do. We think the case falls within the rule that the defendant owed the plaintiff the duty to exercise ordinary care not to injure him. Webster Manufacturing Co. v. Mulvany, 68 Ill. App. 607; Leach v. Durkin, 98 Ill. App. 415; John Spry Lumber Co. v. Duggan, 182 Ill. 218; Flanagan v. Wells Bros. do., 237 Ill. 82.

In regard to the precise manner in which the gear was supported, the exact situation at the time of the injury, what the plaintiff was doing at that particular moment, etc., etc., the evidence is conflicting. Much may be said in argument on both sides. However, these questions were for the jury, and we do not think we would be warranted in holding the verdict was manifestly against the weight of the evidence.

The judgment is affirmed.

Affirmed.


text:
    Toba Levensohn, Defendant in Error, v. The Cunard Steamship Company, Limited, Plaintiff in Error.
    Gen. No. 15,612.
    1. Common carriers—when restrictions of liability not enforced. Attempted restrictions of liability printed upon the back of a steamship passenger ticket will not be enforced in the absence of evidence of assent to such restrictions.
    2. Common carriers—character of baggage for which recovery may be had. A passenger upon a steamship line running between ports of different nations is not restricted in his recovery to mere wearing apparel.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 1, 1911.
    Scott, Bancroft & Stephens, for plaintiff in error.
    Legal Aid Society of Chicago, M. B. Wellington and Guy M. Blake, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff, here the defendant in error, purchased in London three steerage passenger tickets, for herself and two daughters, aged sixteen and eighteen respectively, to Chicago, via the line of the defendant, here the plaintiff in error, from Liverpool to New York. The baggage consisted of two boxes and two bales. At New York two of the pieces of baggage were missing and two were delivered to plaintiff. After their arrival in Chicago one of the missing pieces was found and forwarded. To recover the value of the other this suit was brought. The jury found for the plaintiff and judgment was entered for $160.

We think the jury might properly find from the evidence the baggage in question was delivered to the defendant and also the value thereof.

On the back of the ticket under “Notice to Passengers” was a clause printed in English limiting liability for loss of baggage to 5 £ “unless the value of the same be declared at or before the- issue of this contract ticket and freight at current rates * * * is paid.” This provision was of course meant to obligate the purchaser to declare the value of the baggage “at or before the issue” of the ticket, or limit the carrier’s liability therefor to 5 £. The plaintiff could not speak, read or write the English language, and, although both daughters could, we think the evidence shows she neither assented to nor had any knowledge of said provision of limitation. The counsel for defendant seem to so concede, but claim: “The ticket held by the passenger contained reasonable conditions to insure fair dealings between the parties, and the plaintiff had an opportunity to read the same and is, therefore, held to have had knowledge of such conditions,” citing Oppenheimer v. U. S. Express Co., 69 Ill. 66; Boscowitz v. Adams Express Co., 93 Ill. 523, and Tewes v. North German Lloyd S. S. Co., 186 N. Y. 151.

In Boscowitz v. Adams Express Co., supra, the court in speaking of such limitations said: ‘Whether such restrictions have been assented to in any given case, is always a matter of evidence.” We understand Oppenheimer v. U. S. Express Co., supra, to so hold, and that both cases hold that a limitation simply to insure good faith and fair dealing must be, to be sufficient, “brought home to the knowledge of the owner of the property delivered for carriage.” Tewes v. North German Lloyd S. S. Co., supra, sustains defendant’s contention on the law. A distinction is there made between a steamship ticket and a railway ticket, and it is apparently held that the purchaser of a steamship ticket is presumed, as a matter of law, to know and understand all the provisions of the ticket. A vigorous dissenting opinion was filed in that case, and our attention has not been called to any case outside of New York in its support. That no presumption of law arises that the passenger has assented to a limitation because of a notice printed on the back of the ticket, is stated in Hutchinson on Carriers, Vol. 2, sec. 1070, on the authority of Brown v. Eastern R. R. Co., 11 Cush, 97, That assent to, or knowledge of, the limitation is not presumed, as a matter of law, on the shipment of goods, is held in Western Transportation Co. v. Newhall et al., 24 Ill. 466, and Adams Express Co. v. Stettaners, 61 Ill. 184. In Mauritz v. N. Y. L. E. & W. R. Co., 23 Fed. Rep. 765, the court held the passenger was not bound by the printed conditions on the ticket.

The next objection urged is that a large number of the articles lost were men’s wearing apparel and household furnishings, and could not properly be considered plaintiff’s baggage. The plaintiff was bringing to her husband and son a suit of clothes, a dozen shirts and underclothes in dozen lots. The remittitur entered before judgment was more than the value placed upon the said men’s wearing apparel, and so that question need not be considered.

The household furnishings lost were a clock, pillows, table covers, feather beds, curtains, sheets, etc. The counsel for defendant rely on Yazoo & M. V. R. Co. v. Baldwin, 81 S. W. 599 (Tenn.), which holds that sheets, bed spreads, pillows, etc., are household goods and not properly designated baggage. They also cite in support of same: Connolly v. Warren, 106 Mass. 146; Mauritz v. New York, L. E. & W. R. Co., 23 Fed. 765; St. Louis & Cairo R. R. Co. v. Hardway, 17 Ill. App. 321, and Macrow v. Great Western Ry. Co., Vol. 6, Law Reports (Q. B.) 612. The counsel for plaintiff rely on Ouimit v. Henshaw, 35 Yt. 604, which holds that “a bed, pillows, bolster and bed quilt belonging to a. poor man, who is moving with his wife and family, may be properly called baggage. * * * If the tools of a mechanic, or articles of amusement, such as a gun, a pistol and fishing tackle, or of instruction, such as books, or a lady’s jewelry, are properly baggage because they are usually carried as such, we think the articles in question may both by reason and custom be included in the same list.” They also cite in support of same: Curtis v. D. L. & W. R. R. Co., 74 N. Y. 116; Parmelee v. Fisher, 22 Ill. 212; Woods v. Devin, 13 Ill. 746, and Hutchinson on Carriers, Vol. 3, sec. 1242.

Each passenger was entitled to carry ten cubic feet of baggage. The piece of baggage lost was a bale wrapped in coarse cloth and tied with webbing and string. It contained, besides the articles mentioned, some ladies’ wearing apparel. It was accepted as baggage by the defendant, and it would seem the defendant would be somewhat familiar with what the' ordinary immigrant usually brings as baggage. In Hutchinson on Carriers, Vol. 3, sec. 1250, it is said: “And although the real character of articles tendered as baggage, but which are not properly such, is not stated to the carrier when he accepts them for carriage, if from the facts and circumstances surrounding their acceptance he ought to know that they are not properly baggage, knowledge on his part of their true character will be presumed, and he will be considered as having assumed the liability of a common carrier. * * * Whether the circumstances surrounding their acceptance were such that he would be charged with knowledge of their true character, will be a question of fact for the jury.” The same author said, sec. 1242: “It may be stated generally, therefore, that those articles of personal convenience or necessity which the passenger takes with him, either for his immediate use or the ultimate purpose of the journey, and which are such as persons of like habits and wants usually take with them for such purposes when on similar journeys, will be considered as baggage within the rule of the carrier’s liability.”

In Parmelee v. Fischer, supra, a recovery was had for the loss of similar articles to those in question here, and the judgment was sustained. That decision seems to define the position of the courts in this State on the controverted question.

We see no good reason why the judgment should be disturbed and the same is affirmed.

Affirmed.


text:
    Forcite Powder Company, Defendant in Error, v. W. L. Herdien, Plaintiff in Error.
    Gen. No. 15,638.
    1. Dismissal—when denial of motion for failure to file cost bond proper. Such a motion made upon the calling of the cause for trial comes too late and is properly denied.
    2. Foreign corporations—when though dissolved may maintain action in this state. A foreign corporation though dissolved except for certain purposes, such as the bringing of suits, may maintain actions in this state, and the laws of a sister state in that respect will be enforced. The statute applying to the time within which domestic corporations after dissolution may bring suits is not applicable, at least in the absence of evidence that the foreign corporation in question had been doing business in this state.
    Error to the Municipal Court of Chicago; the Hon. John H. Gillan, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed June 1, 1911.
    Charles W. Espey, for plaintiff in error.
    Elbert C. Ferguson, for defendant in error; Edward L. England, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

This suit was brought by the defendant in error, hereinafter called plaintiff, in the Municipal Court, in November, 1908, against plaintiff in error, hereinafter called defendant, on a judgment recovered before a justice of the peace in a cause tried before a jury in Jasper county, Missouri. The cause was submitted to the court, who found for the plaintiff and entered judgment for $108.95.

The defendant argues two propositions as grounds for reversal :

First: That the court denied a motion to dismiss because of a failure to file a bond for costs under the statute applying to non-resident plaintiffs.

No motion was made for a rule on plaintiff to file a bond for costs, and the motion to dismiss for failure to file said bond was made, as nearly as we can determine from the record, on the calling of the case for trial. The motion at that time came too late. Wilkinson v. Cox, 228 Ill. 308.

Second: That the plaintiff was a foreign corporation, dissolved almost four years prior to beginning this suit, and under our statute should not be permitted to maintain the action.

The evidence showed that the plaintiff was a New Jersey corporation and it had been dissolved by its voluntary act in April, 1905. The Illinois Statute on Corporations, section 10, provides that: “All corporations organized under this law whose powers may have expired by limitation or otherwise, shall continue their corporate capacity during the term of two years for the purpose only of collecting the debts due said corporation, and selling and conveying the property and effects thereof.” Section 26 provides in part: “Foreign corporations * * * doing business in this State shall be subjected to all the liabilities, restrictions and duties that are or may be imposed upon corporations of like character organized under the general laws of this State, and shall have no other or greater powers.” It is urged that it would be giving a foreign corporation other and greater powers than domestic corporations, contrary to said section 26, to permit this action to be maintained» There is no evidence that the plaintiff was, or had been, doing or attempting to do, any business in this State, and in the opinion of the court, section 26 is not in point. The statute of New Jersey on Corporations provides in part as follows:

“All corporations, whether they expire by their own limitation or be annulled by the legislature or otherwise dissolved, shall be continued bodies corporate for the purpose of prosecuting and defending suits by or against them, and of enabling them to settle and close their affairs, to dispose of and convey their property and to divide their capital, but not for the purpose of continuing the business for which they were established.”

Under that statute the corporate body, the plaintiff, is alive, and continued a corporate entity for the purpose of bringing this or any other suit, to settle or close its affairs.

The law of this State extends the life of a corporation for two years for similar purposes, so it cannot be properly said it is against the public policy of this State to hold that the plaintiff is, under the New Jersey statute, a corporation for the purpose of maintaining this suit. We think that it is a necessary and wise public policy that continues the life of a corporation for the purpose of prosecuting and defending suits for the purpose of winding up its affairs.

In Canning Co. v. Brokerage Co., 213 Ill. 561, while not precisely in point, it is held that the Michigan statute extending the life of a corporation three years to wind up its affairs, is in harmony with the policy of this State, and it is there said: “One state or nation will recognize and execute the laws of another through comity, when such execution is not against the public policy of the former state.”

It appearing that the law of New Jersey continuing the life of a corporation to bring suits to settle its affairs is not against the public policy of this State through comity, the said law is recognized and the judgment is affirmed.

Affirmed.