text:
    John Brod v. J. K. Dering.
    Gen. No. 13,679.
    Consignor and consignee—what prima facie proof of delivery. Prima facie proof of delivery by a consignor to a consignee is established by proof of delivery to a carrier for transportation, the property being marked for delivery to the consignee.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed March 6, 1908.

      Statement by the Court. Defendant in error—hereinafter called plaintiff—brought suit to recover from plaintiff in error—hereinafter referred to as defendant—the value of three carloads of coal claimed to have been sold and delivered to the defendant. The latter filed notice of set-off and a bill of particulars claiming’ damages by-reason of non-delivery of two of the carloads of coal.
    Material facts are stated to be that on or about January 7, 1905, the defendant ordered three carloads of coal which were to be shipped by plaintiff to the defendant at Riles Center, Illinois, at an agreed price. One of the cars was delivered to the defendant, but the latter denies that he received the others. There is evidence tending to show the plaintiff owned three certain carloads of coal standing on tracks of the Chicago and Eastern Illinois Railroad Company at Chicago on said date—January 7, 1905—two of which he directed said railroad company to deliver to the Chicago and Northwestern Railway Company to be by the latter shipped over its track to the defendant at Niles Center. The said Chicago and Northwestern Railway was the only railroad from Chicago to Niles Center. Two receipts were introduced in evidence which are as follows:
    “PLAINTIFF’S EXHIBIT A.
    Chicago, Jan. 16, 1905.
    Consignee, John Brod.
    Destination, ¡Niles Center.
    Series 0
    Pro. 1-7595
    Erom Cummings
    Date of W. B. 1-4
    Ro. ofW. B. C. 7
    Car Initial E. T. II.
    Car Ro. 7775
    Consignor C. 0. Co.
    X Car Eumber V18
    Original Point O of shipment 1/20
    Via C. ÜN. W.
    Received of Chicago & Eastern Illinois Railroad Co. the following described property in good order:
    Articles and Weight. Rate
    Marks. Charges,
    lump. 80,000 32.20.

      Received at 40th street, Chicago, C. &. N. W. Ry. Co. Not responsible beyond the Terminal Station of this line.
    Jan. 21, 1905.
    Subject to conditions of Local Freight Tariffs.
    H. C. Howe, Agent.
    Per..............
    Rot checked or transferred by C. & N. W. Ry.”
    “plaintiff’s exhibit b.
    Chicago, Jan. 6, 1905.
    Consignee, Jno. Brod.
    Destination, Niles Center, Ill.
    Series 0
    Pro. 1-292
    From Bruilletts
    Date of W. B. V3
    Ro. ofW.B. C.l
    Car Initial C. T. H.
    Car Ro. 3251
    Consignor B. 0. 0. Co.
    X Car Rumber Vis 8:30 a. m.
    Via 0. & R. W.
    Received of Chicago & Eastern Illinois Railroad Co. the following described property in good order.
    Articles and Weight. Rate
    Marks. Charges.
    L Coal. 5%oo 20.11.
    Received at 40th street, Chicago, C. & N. W. Ry. Not responsible beyond the Terminal Station of this line.
    Jan. 18, 1905.
    Subject to conditions of Local Freight Tariffs.
    H. C. Howe., Agent.
    Rot checked or transferred by C. & N. W. Ry.”
    There was no proof except the said receipts of delivery of said cars to the defendant. The latter introduced evidence tending to show that not having received these cars of coal, he was compelled to and did purchase two other cars of coal at Riles Center for which he paid a larger price than was called for by his contract with plaintiff.
    The trial court held that the receipts above set forth were competent evidence of the delivery by plaintiff to the Chicago and Rorthwestern Railway Company of two cars of coal for shipment to defendant at Niles Center, that delivery to said C. & N. W. Ry. Co. was delivery to defendant and that defendant was not entitled to set-off. Judgment was entered in favor of plaintiff for the full amount of his claim, being the contract price for the coal.
    Mason & Wyman, for plaintiff in error.
    Caliioun, Lybobd & Siieean, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

Counsel for defendant in their brief admit that “a delivery by the shipper to the carrier is in legal effect a delivery to the consignee; the carrier from the time of delivery being the agent of the consignee.” If is contended, however, that in the case at bar there was no competent proof of delivery to the carrier. The question is presented therefore, whether the trial court erred in -admitting the receipts in evidence as competent to prove such delivery, purporting as they do to acknowledge receipt of the cars from the Chicago & Eastern Illinois Railroad Company.

It is to be noted that the purpose for which the receipts were introduced in evidence was to show delivery of the cars in question to the railroad company for transportation to the consignee. If the cars were delivered to the northwestern Railroad Company for transportation to the consignee, it is well settled that by such delivery the railroad company became the agent of the consignee and the possession of the railroad company became the possession of the defendant. Ho question of the quality of the coal or of its quantity or condition is involved, and the receipts were not introduced, nor is it claimed they were admissible for any other purpose than as prima facie evidence of the delivery of the coal to the Northwestern Railroad Company for transportation to the defendant. The latter’s counsel cite Flower v. Downs, 12 Robinson (La.) 101-102, in which it was said that “a bill of lading is evidence of shipment as between the carrier and the shipper, but not of delivery to the consignee; sucli delivery ought to be shown, by legal evidence independently of the bill of lading.” The receipts in question are not offered as evidence to show delivery to the consignee himself, but as prima facie proof of delivery to the carrier, the Northwestern Railroad Company, in other words, as “evidence of a shipment as between the carrier and the shipper,” to use the language of the case cited. From the time of such delivery as is conceded by defendant’s counsel, the carrier became the agent of the consignee and its possession was his possession. Pike v. Baker, 53 Ill., 163—166; Rabinowitz v. Hall, 123 Ill. App., 65—67; City of Carthage v. Duvall, 202 Ill., 234-237, and cases there cited.

It is urged that “the signatures on the receipts were not proven” and that “it was not proven either that they were signed or stamped by an employee of the Northwestern road, whose duty it was to give such receipts.” It appears, however, from the statement of facts shown in the record that plaintiff produced the two receipts “and offered evidence showing that said receipts on the dates they purport to have been given were given by the Chicago and Northwestern Railway Company to the Chicago & Eastern Illinois Railroad Company; that the two cars of coal mentioned in said receipts are two of said three cars of coal which were on that date in the possession of said last mentioned railroad as aforesaid. Thereupon plaintiff offered said receipts in evidence.” The evidence referred to as showing the facts above stated is not preserved in the record. No objection seems to have been made to its competency or sufficiency as laying a foundation for the admission of the receipts in evidence, and as it is not in the record we must presume it was competent and sufficient for the purpose for which it was offered.

Finding no error the judgment of the Municipal Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Freeman

license: Public Domain

text:
    James F. Flynn v. People of the State of Illinois.
    Gen. No. 13,687.
    1. Conspiracy—when indictment sufficiently charges. An indictment sufficiently charges a conspiracy which in substance avers that the defendants, intending and designing to cheat and defraud a specified company of a large amount of money, funds and property, conspired together falsely to pretend that a large number of copies of a specified paper then before sold and delivered by said company to one of said defendants for distribution and sale had been accounted and paid for by said defendant, and to make false entries on the books of said company to the effect that certain amounts of money had been paid by said defendant in the regular course of business of said company, by which false pretenses and false entries said conspirators intended to cheat and defraud said company “of a large number of its said publication, to-wit, 340,000 copies of the value of one-half cent each.”
    2. Conspiracy—what instruction in prosecution for, improper. An instruction in a prosecution for conspiracy is improper which tells the jurors that if the. evidence leaves a reasonable doubt in. their minds as to the guilt of either of the defendants, they should find such defendant not guilty, the law being that if one defendant is not guilty of the conspiracy charged, neither can be held guilty. Reid, however, in this case that the giving of this instruction was not harmful error.
    Baker, P. J., dissenting.
    Criminal prosecution for conspiracy. Error to the Criminal Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed March 6, 1908.
    Charles J. Trainor, for plaintiff in error.
    John J. Healy, State’s Attorney, Charles F. McKinley and Leon Zolotkof, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

Plaintiff in error was indicted with one John A. Colvin, Jr., for conspiracy to defraud the Chicago Journal Company. Both defendants were convicted in the Criminal Court. From the sentence of that court, imposed on each of the d@fendants, the plaintiff in error prosecutes this writ of error.

The indictment charges in substance that said Colvin and Flynn intending and designing to cheat and defraud the said company of a large amount of money, funds and property, conspired together to falsely pretend that a large number of copies of the Journal then before sold and delivered by said company to said Flynn for distribution and sale had been accounted and paid for by Flynn, and to make false entries on the books of said company to the effect that certain amounts of money had been paid by said Flynn in the regular course of business to said company, by which false pretenses and false entries, said conspirators, in pursuance of said conspiracy, intended to cheat and defraud said Chicago Journal Company “of a large number of its said publications, to-wit, three ' hundred and forty thousand copies of the value of one half cent each.”

It is urged in behalf of plaintiff in error, hereinafter referred to as the defendant, that the allegations are insufficient in an indictment for common law conspiracy. It is said -the gravamen of the indictment is that the defendants conspired falsely to pretend that a large number of papers had been accounted and paid for, and to make false entries on the Journal Company’s books to the effect that certain moneys had been paid by Flynn to the company. We are of opinion, however, that the gravamen lies in the allegations substantially to the effect that by means of “said false pretenses and false entries on the books” the defendants intended to defraud the company of a large number of its publications. A conspiracy is defined by defendant’s attorneys to be “a corrupt agreement to do an illegal act, or to do a legal act by illegal methods.” That the indictment charges a corrupt agreement to do an illegal act seems plain.

It is conceded by defendant’s attorney that there is competent evidence tending to show in behalf of the State that Colvin and Flynn were employees of the Journal Company, Colvin as a bookkeeper and Flynn as a circulator; that it was Colvin’s duty to keep the accounts of the several circulators; that a discrepancy was discovered in Colvin’s bookkeeping, that an investigation was instituted, and that Colvin admitted he had been “doctoring” the books and keeping certain money which was paid to .him, which he stated he received from the defendant Flynn. There is further' evidence tending to show that Flynn when arrested said to the circulation manager of the Journal, “For Heaven’s sake don’t send me down South. If you do it will kill me”; that there were times when Colvin held him up for as much as $15 a week, and that he did not know whether there ivas “anyone, else in it beside Colvin and himself.” Flynn testifies that for about two or three months before Colvin came into the employ of the Journal. Company, all his payments were made to the cashier, to whom he had been sent when he began his work in the employ of the company. He states that after Colvin came there, Colvin told him he was not to pay the cashier any more, but to pay him and that thereafter he paid Colvin every week. Flynn says that on one occasion when it was discovered he was short a certain amount Colvin said to him, speaking of the circulation manager, “Eckstrom is crazy. The books are all right.” Flynn denies having said “For God’s sake be easy with me,” and denies asking that he be not sent South. He denies that he said die had paid Colvin as high as $15 a week and states that he told the circulation manager he had nothing to confess. There is evidence tending to show he had a good reputation for honesty in the neighborhood where he resides. There is evidence tending to show that Colvin kept the books in such a manner as to make it appear that Flynn’s accounts for papers delivered to him.were properly paid; that Flynn’s “instructions were to collect for his -papers and pay the cashier each week.” It is .admitted that Flynn did not do this but continued to pay to Colvin instead of to the cashier—evidence that doubtless had weight with the jury in reaching their verdict.

It is urged in behalf of the defendant that there was error in the admission of certain books of the company which were kept by Colvin, entries in which, it is said, were made by Colvin from a “blotter” kept in the shipping room, purporting to show the number of papers delivered to the several circulators, including Flynn. It is not pointed out, however, in what way, if at all, the admission of such evidence was harmful to Flynn, and it was admissible, we think, as against Colvin to show his method of making the alleged fraudulent entries. In like manner Colvin’s admissions, in which it rvas said he attempted to implicate Flynn, were competent against himself and the court ruled and instructed the jury that they were not to Pe considered as" evidence against Flynn.

Complaint is made of certain instructions. These objections are. general in their nature. The fourteenth instruction is the same as that referred to in Juretich v. The People, 223 Ill., 484-490. While the rule it announces is criticized in that case, the.instruction itself is not treated as reversible error, and can not be so considered in the case at bar.

It was, we think, erroneous to instruct the jurors that if the evidence leaves a reasonable doubt in their minds as to the guilt of either of the defendants, they should find such defendant not guilty. We understand the law to be in a case where two are charged with conspiracy together that if one is not guilty neither is, since one can not conspire alone. But it is obvious that the instruction was not harmful in this case.

It is urged that while it was Flynn’s account that was juggled, there is no evidence of conspiracy between him and Colvin. We have above referred to certain evidence which prevents our concurrence in this contention. We cannot say, in view of the testimony as to his alleged admissions, the undisputed evidence that he paid money to Colvin in disobedience of his instructions and paid practically none to the cashier, and the evidence that his account was so kept by Colvin as to conceal the fact of non-payment to the company, thus enabling Flynn to continue to. obtain papers from the Journal Company, a part at least of the proceeds of which were paid to1 Colvin and practically none to the employer, that the verdict of the jury is not warranted by evidence.

The judgment of the Criminal Court must therefore be affirmed.

Affirmed.

Mr. Presiding Justice Baker dissenting.


text:
    Chicago, Milwaukee & St. Paul Railway Company v. Thomas F. Houren.
    Gen. No. 13,720.
    1. Municipal Court—when bill of particulars sufficient. A bill of particulars furnished pursuant to the Municipal Court Act filed in an action of tort which clearly and sufficiently advises the defendant of the nature of the action he is called upon to defend, is sufficient to admit the introduction of ordinances notwithstanding the same are not referred to in such bill of particulars.
    2. Negligence—what constitutes, resulting in communication of fire. A railroad company is liable for loss resulting from fire where it appears that its freight cars blocked a street crossing and thus prevented the fire department from availing of the opportunity to prevent the spread of fire to the plaintiff’s property.
    Tort. Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed March 6, 1908.
    Statement by the Court. This is a suit brought by-defendant. in error—hereinafter called plaintiff—to recover from the Chicago, Milwaukee & St. Paul Railway Company for the destruction by fire of a building belonging to plaintiff located near the corner of 63rd avenue and Bloomingdale avenue, Chicago, the loss of which building it is claimed was caused by reason of the negligence of the defendant railway company.
    The plaintiff’s cottage was burned the early morning of October 3, 1906, when a fire broke out in a cottage adjoining that belonging to plaintiff. It appears that an alarm was given to the fire department about 1:50 a. m. and a fire engine, hose cart and appurtenances were at once sent to the place. In going there the firemen with their apparatus proceeded down Grand avenue to 63rd avenue. Grand avenue is a paved street, and although not the most direct route, ivas apparently the route by which the place of the fire could ordinarily be reached most quickly. Turning down 63rd avenue the firemen with their apparatus came to the tracks of the defendant railway company. The place of the fire was about two blocks south of the railway tracks. When the firemen with their appliances reached" the railway tracks, the street was blocked by a line of cars, some sixty in number, extending along the tracks in both directions from the 63rd avenue crossing. To these cars no engine was attached. There is evidence tending to show that they were coupled together and that the brakes were set, thus forming an impassable barrier which stopped all passage over 63rd avenue and 64th avenue, and perhaps other streets as well. There is evidence tending to show that the horses of the fire department drawing the fire engine and other appliances had run not far from three and a quarter miles when they reached this railroad crossing and were nearly tired out, or as one witness expressed it, “were about all in.” It appears also from the evidence that in order to get around the obstructing cars and cross the tracks the firemen would have been compelled to go as far east as 56th street and having crossed at that point to come back about the same distance to reach the fire. It is said that the firemen expected every moment the cars would be pulled out of the way and that they ivaited at least thirty minutes before this Avas done, meanwhile exerting themselves to get an engine from the defendant railway” company to open the Avay for them across the tracks. There is evidence tending to sIioav this was not done until about twenty-tAvo minutes before three o’clock in the morning, and that the plaintiff’s cottage did not catch fire until about 2:30 or 2:35 a. ar. MeanAvliile the cottage next adjoining plaintiff’s had been burning, as there is evidence tending to show, from forty to forty-five minutes after it Avas first discovered to be on fire. During the intervening time from about ten minutes after 2 o’clock a. ar. until about twenty minutes of 3 o’clock the apparatus of the fire department was kept waiting at the crossing about two blocks away. It appears undisputed that .there was a hydrant furnishing an ample supply of water near the burning cottages. There is testimony tending to show that after the blockading cars were removed .the firemen reached the fire in about two minutes. It was then too late to save plaintiff’s cottage and it was consumed. There is evidence tending to show the fire started in a cottage adjoining plaintiff’s upon the side furthest removed from plaintiff’s cottage, thus taking some time to burn through far enough to set fire to the latter. It was first discovered about 1:37 a. m. and the alarm reached the engine house about thirteen minutes thereafter.
    Joiin A. Russell, for plaintiff in error.
    Bates, IIabding & Atkins, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

It is stated in behalf of the defendant railway company that one óf the principal questions in the case is, “Was any negligent act, either of omission or commission, on the part of the defendant company as shown by the evidence in this case, the proximate cause of any loss or damage which plaintiff may have sustained ?”' It is first urged that in the plaintiff’s bill of particulars which under the Municipal Court Act stands as his pleading in the cause, there is no allegation that defendant was guilty of a breach of any duty raised by statutes of the state or the ordinances of the city of Chicago, and that it was therefore error to set out in the instructions given for plaintiff two ordinanees-of the city of Chicago and the state statute in relation to blocking crossings. In support of this contention it is said the effect of the bill of particulars is to limit recovery to the grounds and amount specified therein. The bill of particulars set out with considerable fullness the facts upon which the plaintiff bases his claim to recover. The Municipal Court Act (section 40) requires the bill of particulars in a suit for tort to consist of a brief statement of the nature of the- tort and such further facts as will reasonably inform the defendant of the nature of the case; but it is expressly provided that the bill of particulars in an action for tort shall not be required to set forth the cause of action with the particularity required in a declaration ¿t common law. The bill in this case states in substance that plaintiff’s claim is for loss and damage by fire sustained through no fault of his, “but by reason of -the negligence of the defendant in blocking and closing the crossing- at 63rd avenue,” by leaving thereon a train of its cars whereby the fire department was detained, and that meanwhile the fire in an adjacent building was communicated to plaintiff’s cottage, which would not have occurred except for the detention of the fire department. We think the bill of particulars clearly and sufficiently advised the defendant of the nature of the case it was called upon to defend. It was not necessary to set forth in the bill of particulars the statute of the state, nor under the Municipal Court Act the ordinances' of the city applicable. That Act provides that said court “shall take judicial notice of all general ordinances of the city of Chicago.” The instructions complained of which referred to the statute and ordinances are not therefore, in our opinion, open' to objection on that account. C. & A. R. R. Co. v. Dillon, 123 Ill., 571—579; People v. Hydraulic Co., 115 Ill., 281—288.

It is urged further that “no act shown by the evidence to have been committed by the defendant, either of omission or commission, was the proximate cause of the damage sustained by the plaintiff.” It is not claimed that the defendant was in any manner connected with or responsible for the origin of the fire in the house where it first started. There is, however, evidence tending to show that the blocking of the highway at the street crossing by defendant’s freight cars was the proximate cause of the fire being communicated to plaintiff’s cottage, that the fire department if not so detained would have had an opportunity and have been able to extinguish the fire in the place of its origin before it was extended to plaintiff’s cottage, and that it was delayed until too late to save the latter cottage from destruction. There was, according to the evidence, a direct connection between the detention of the fire department and the setting fire to the plaintiff’s cottage; as direct as if the defendant had, at the moment when the fire department was about to pour a flood of water on the original fire, interposed by superior force directly applied to prevent this being done until too late to save the plaintiff’s cottage. The consequences which, according to the undisputed evidence, followed from the obstruction of the street crossing by defendant’s trains were, we think, such as “a prudent and experienced man fully acquainted with all the circumstances which in fact existed would at the time of the negligent and unlawful act have thought reasonably to follow if they had occurred to his mind.” Wabash Ry. Co. v. Coker, 81 Ill. App., 661. For the consequences of such negligent and unlawful act the person guilty of it should be held responsible, as we said in McRae v. Hill (No. 12,390, not reported). Hor do we concur in the contention that the negligent and unlawful act of obstructing the crossing with which defendant is charged merely “happened to concur with something extraordinary and unforeseen.” We are of opinion that defendant was bound to foresee any of the consequences which might reasonably result from its unlawful obstruction of the public highway in violation of the statute and ordinances applicable, and one of these consequences was clearly, we think, the possibility of obstructing the passage of the fire department along the street on its way to a fire. Certainly in a great city such a contingency was by no means an unusual or extraordinary event, nor was it one that could not be reasonably anticipated and foreseen. L. R. T. & Electric Co. v. McCaskill, 70 L. R. A., 680 (Ark.); Kiernan v. Met. Con. Co., 170 Mass., 378—379, are, we think, in point.

Both the statute and the ordinances of the city prohibit the obstruction of a public highway by a railroad company for any such length of time as in this case shown by evidence not disputed. In C. & E. I. R. R. Co. v. Mochell, 193 Ill., 208-210, it is said that “A statute commanding an act to be done creates an absolute duty to perform such act, and the duty of performance does not depend upon and is not controlled by surrounding circumstances. Eon-performance of such statutory duty resulting in injury to another may therefore be pronounced to be negligence as a conclusion of law.” See also C. & E. I. R. R. Co. v. Goyette, 133 Ill., 21-28.

The objections urged to the refusal of two instructions requested in behalf of the defendant are not, we think, well taken, for reasons above stated.

Finding no error in the record the judgment will he affirmed.

Affirmed.


text:
    Barber Asphalt Paving Company, Appellee, v. City of Chicago, Appellant.
    Gen. No. 13,743.
    1. Local improvements—when special assessment vouchers may he paid from general funds. Special assessment vouchers may be sued upon and recovery had thereon out of the general funds of a city where it appears that deficiency in the special assessment funds applicable to the payment of such- vouchers was caused by reason of an unlawful diversion and misapplication by the city of such funds from the purpose for which they were collected. Held, that a premature payment of rebates is such an unlawful diversion which entitled recovery from such general funds.
    2. Local improvements—when payment of special assessment vouchers may not he made from instalments of assessment other than that against which it is issued. If the assessment was confirmed prior to the enactment of section 86 of the Local Improvement Act, payment of a special assessment voucher out of any instalment other than that against which it was issued is improper.
    3. Local improvements—when city deemed to have collected amount of assessment. Where a city pursuant to statute has become the purchaser of land assessed and returned as delinquent, it is deemed, for the purpose of payment of special assessment vouchers, to have collected the amount recited in the certificate of purchase issued to it.
    4. Local improvements—when city liable for interest upon spe

      dal assessment vouchers. A city is liable for interest upon special assessment vouchers where payment thereof has been illegally withheld.
    Assumpsit. Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed March 6, 1908.
    Statement by the Court. This is an action brought by the Barber Asphalt Paving Company against the city of Chicago to p4cover balances claimed to be due on sundry special assessment vouchers issued by the city in payment for local improvements. These vouchers provide for their payment out of the funds collected by special assessment.
    The cause was submitted to the court, a jury having been waived, upon a stipulation which gave each party the benefit of all claims and defenses, to the same extent as if specially pleaded, and in which the facts are stated as follows:
    1. The plaintiff is the holder of sundry vouchers issued as explained more fully in section 3 of this stipulation against the-reserve fund created out of the proceeds of special assessments to defray the cost of local improvements constructed by the plaintiff for the defendant. Said vouchers are now and have been .for a long time due and payable and the amount so due as principal and likewise the amount claimed to be due as interest and the total amount claimed to be due as both principal and interest, after deducting payments made thereon, are indicated in the schedule appearing at the end of this .stipulation, marked Exhibit 1, Schedule “A,” “B,” “C,” which are hereby incorporated into and made a part of the same. Copies of said vouchers are hereto attached and marked Exhibits 2 to 17, inclusive. All of said vouchers together constitute the subject of the suit, the plaintiff demanding and the defendant refusing payment of the same.
    2. It appears from the vouchers in controversy and it is admitted in this proceeding, that the various improvements upon which the vouchers now sued upon were issued, were properly authorized and constructed under the law in regard to Local Improvements in the State of Illinois in force at the time said improvements were made; that is, ordinances were duly passed for the construction of said improvements and said ordinances ordained that the cost thereof should be paid by special assessment. Special assessments were duly confirmed by the County Court of Cook county and certified by the city collector for collection. Bids were solicited by the construction of the said improvements and contracts for construction were duly awarded' to the contractors, including the plaintiff and others, who were respectively the lowest regular responsible bidders in each case. The names of said contractors are set hereinafter in the schedule.
    Said contractors thereupon proceeded to construct the said improvements and completed the construction thereof in due time to the satisfaction of the then city authorities, and in all respects in accordance with the respective ordinances and specifications thereto attached and contracts executed thereunder, as appears from the vouchers; whereupon said contractors, including the plaintiff, became entitled under the provisions of their contracts with the defendant, to the various sums of money therein stipulated to be paid.
    3. In the case of each improvement it is provided in the respective contracts, in accordance with the laws and ordinances then in force, that a certain portion of the contract price should be retained by the city as security for the proper completion and maintenance of the work and paid to the contractor in annual installments. In each of the cases here involved the work was properly completed and maintained. Certain of these installments are in default and are represented by the vouchers now in suit which were issued in lieu of payment in cash. On said vouchers at various dates sundry payments have been made, and also indicated in the schedule, but on said vouchers there are balances due and unpaid as principal and also amounts claimed to be due as interest from the dates of maturity to date, making the amount claimed to be due for both principal and interest the amount indicated in the column of the schedules marked “Total.”

      4. Said contractors, other than the plaintiff, prior to the bringing of this suit duly signed, sold, transferred and set over to the plaintiff in said suit all their right, title and interest, both legal and equitable, in the reserve vouchers now in controversy, so that the said plaintiff has become and is now the legal holder of the same, entitled to the satisfaction of all demands and claims growing out of and existing by virtue of the same in the same manner and to the same extent as the said contractors before the assignment. Copies of said instruments of assignment are attached hereto and marked Exhibits 18 to 20.
    5. Although the contractors, the original holders, or the plaintiff, the assignee of said vouchers, after the date of maturity of each of the same and again just prior to the bringing of this suit, demanded of the proper officers of the city that they pay said vouchers, the city had failed and refused to pay the same or any part thereof except as indicated in the schedule hereinbefore referred to and made a part of this stipulation.
    6. The vouchers sued upon may be divided into two main classes.
    class “a.”
    Vouchers on which it is stipulated that the city has collected sufficient moneys to pay the same, but has applied the moneys so collected to other purposes.
    class “b.”
    Vouchers where property assessed for the improvement has been returned delinquent for the non-payment of such assessment and the city has, in default of other bidders, become the purchaser of such delinquent property and acquired tax certificates against the same, the amounts of such tax certificates being in each case in excess of the amounts due on the respective vouchers remaining unpaid; but has not paid into said respective special assessment funds the amounts which it bid for said pieces of property respectively.

      The vouchers under Class “A,” that is, the vouchers in which the city has collected sufficient moneys to pay the same, but has applied the moneys so collected to another purpose, fall into two sub-classes:
    (a) Vouchers on which the city has paid rebate to property owners assessed before paying the cost of the improvement, the amount of such rebates in the case of each specific voucher exceeding the amount claimed on said vouchers. These vouchers are shown in schedule “A.”
    (b) Vouchers on which moneys retained out of the first installments for the purpose of paying the reserve on the same has been applied to the payment of interest on bonds issued against the second and subsequent installments, the amount of such payments in the case of each specific voucher exceeding the amount claimed on .said vouchers. These vouchers are shown in schedule “B.”
    The vouchers shown under class “B” are shown in schedule “0.”
    EXHIBIT 1, COWTAIHIHG SCHEDULES “a,” “b,” AND “c.”
    Schedule “A,” including warrant Nos. 19330, 21597, 24030, 24032, 24035, 24036, on which a balance remains unpaid of $1,^63.18, with interest computed from the date of maturity of said vouchers at 5 per cent, amounting to $730.88.
    Schedule “B,” containing vouchers, warrant Nos. 21611, 22593 and 23966. The amount of principal unpaid on these vouchers is $838.87, and the amount of interest at 5 per cent from the date of maturity of vouchers is $541.71.
    Schedule “C,” containing warrant numbers 23343, 23866 and 24078. The principal unpaid on these warrants is $171.41; and the interest from the maturity of the vouchers at 5 per cent is $101.47. This schedule also shows that the amount of the tax certificates acquired by the city at the delinquent special assessment sales is $1,883.09.

      The vouchers are substantially the same as the one which follows: '
    ORIGINAL RESERVE VOUCHER. OFFICE OF
    BOARD OF LOCAL IMPROVEMENTS',
    Bureau of Streets.,
    Warrant No. 19330.
    Estimate No. 4 and 5;
    Chicago, July 30, 1900.
    I hereby certify that Burmudez Asphalt Paving Co. identified to the sum of Eleven Hundred Seventy-seven and 49/100 Dollars, on account of reserve, as per contract dated Aug. 22, 1894, for improving La Salle avenue from Division to Clark with asphalt.
    Work was finished Nov. 2, 1894.
    Beserve expires by limitation paving 1896.
    Total number of yards of paving, 14,118.57.
    Total number of feet of curbing...............
    Total amount of reserve on contract......".... .".$3,417.02
    Less........cents per yard on total quantities of paving reserved as per contract, $............
    Less ........ cents per foot on total quantities of curbing reserved as per contract, $.........
    Balance................................$3,4-17.02
    - Less amount paid on former reserve vouchers Hos. 1, 2 and 3...............................$2,299.53
    Het amount of reserve due at this date......$1,111.49
    I hereby certify that on June 30, 1900, I personally examined the curbing and pavement laid on the above named street between the points named and found the same in good condition.
    E. E. Ray, Official Inspector.
    Approved:
    Geo. K. Wheelock,
    Chief Engineer, Bureau of Streets.

      I hereby certify that no voucher has been heretofore issued in payment of this work.
    J. P. Daugherty, Chief Clerk, Bureau of Streets.
    Approved:
    M. J. Doherty,
    Superintendent, Bureau of Streets.
    Audited and entered:
    James F. O’Conner,
    Bookkeeper, Board of Bocal Improvements.
    Approved:
    L. E. McGann,
    Comm’r of Public Works and President Board of Local Improvements.
    In consideration of the issuing of this voucher we hereby for ourselves, heirs, executors, administrators and assigns accept the same in full payment of the amount herein stated, and relinquish any and all claims or liens that we may have against the City of Chicago for the work mentioned herein, or for the payment of this voucher, except for the collection of the warrant herein named.
    Burmudez Asphaet Paving Co.,
    Per P. M. Garrod,
    Secretary.
    The vouchers in question were assigned to the Barber Asphalt Company, which brings this suit. ' The court assessed plaintiff’s damages at the sum of $1,170.82 and entered judgment accordingly.
    George A. Mason and Frank Johnson, Jr., for appellant ; Edward J. Brundage, of counsel.
    Tolman,- Bedfield & Sexton, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

It is first contended in behalf of the city of Chicago that the special assessment vouchers in controversy are payable solely out of their respective special assessment funds, and that the city cannot legally pay them out of its general funds, inasmuch as section 90 of the Local Improvement Act (R. S. chap. 24) provides that persons accepting the vouchers “shall have no claim or lien upon the city, town or village in any event for the payment of such vouchers or bonds or the interest thereon, except from the collection of the assessments, against which such vouchers or bonds are issued.” The municipality is required by said act to use “ all reasonable diligence as far as it can legally do so” to cause valid special assessments to be levied and collected to pay such bonds and vouchers until they shall all he fully paid. The vouchers now in controversy contain a provision signed by the payees therein, wherein the latter accept the same in full payment of the amount in said vouchers named and relinquish all claims or liens against the city for the work therein mentioned or for the payment of the vouchers except from the collection of the warrant in said voucher named. It does not follow, however, that where a deficiency in the special assessment funds applicable to the payment of the vouchers is caused by reason of an unlawful diversion and misapplication by the city of such funds from the purpose for which they were collected, thus leaving such vouchers unpaid, that the holder cannot recover from the city. The same contention made in behalf of the city was considered in City of Chicago v. Union Trust Company, 138 Ill. App., 545. There also it was insisted that vouchers of this kind “are payable solely out of their respective special assessment funds and the city of Chicago cannot legally pay them out of its general funds,” that there were no such funds in the city’s hands and that the city had no power to appropriate any for payment of the vouchers. In that case we held that, there being evidence tending to show the city did in fact hold funds to the. credit of the warrants which upon a proper accounting should he applied in payment of the vouchers, the fact that the city had disbursed such funds for other and improper purposes did not relieve it from the obligation to account for and pay them to the respective voucher holders, so far as applicable. If the city has in fact collected the assessments for payment of the vouchers as the statute requires, it is bound to pay them “from the collection of the assessments” against which such vouchers or bonds are issued, and is not relieved of its liability to account for such funds as trustee thereof because of its own improper administration of them.

It is further argued in behalf of the city that where rebates to property owners have been paid before the cost of the improvement had been paid for, no liability is thereby created against the general funds of the city, that this is one of the risks which the contractor or voucher holder assumes when he agrees to look to the special assessment funds alone for payment and not to the general funds of the municipality. In this contention we have heretofore stated our inability to concur. City of Chicago v. Union Trust Company, supra. The vouchers to which this contention is sought to be applied are referred to in the stipulation as class A. As to them it is stipulated that the city has collected sufficient moneys to pay them, but has applied the money so collected to another purpose, namely, payment of rebates to property owners assessed for the improvement, before the payment of the cost of the improvement itself. As to these specific vouchers it is conceded that the amount applied in payment of such rebates exceeds the amount due on the vouchers. It is apparently conceded that these rebates were irregular and improper, and it is, we think, clear that no official of the special assessment department of the city could lawfully reduce or modify in any way the assessment as confirmed by the court. Counsel for the city, however, maintain that whether such rebates were properly or improperly made is wholly immaterial because of the statutory provisions which it is claimed compel the voucher holders to look for payment solely to the special assessment fund, and it is argued that such voucher holders assume all risk of the city’s failure properly to administer the assessment funds. The very statement of this proposition would seem to carry its own refutation. . It is the duty of the city to pay rebates to the property owner under the conditions prescribed by statute, that is when “there shall be any surplus remaining of said special assessment over and above the payment aforesaid.” (Article IX of the Cities and Villages Act, section 65.) It is not the voucher holder but the city which must be "deemed accountable for official mistakes of its officers in administering the fund. It is the city, not the voucher holder, which as trustee must be deemed responsible for its own administration of the fund of which it is custodian. Potter v. Whatcom, 20 Wash., 589. The voucher holder has a right to rely upon the proper administration by the city of the fund out of which his voucher must be paid. We discover nothing in the express language nor manifest intent of the statute which is properly subject to any other interpretation. As said by Mr. Justice Brown of the Ajipellate Court of this district in City of Chicago v. Richard F. Conway, 138 Ill. App., 320: “We are of opinion that the city as trustee and bailee of this fund is directly liable to the appellee up to the amount of the obligations held by him, if the fund in its hands out of which said obligations are by their terms to be paid is actually in its hands or is constructively in the purview of the law so in its hands.” And it is further said in the opinion in that cause that the city is not in a situation to claim that amounts so “rebated” or “refunded” or “abated” “were anything but unlawful and unwarranted disbursements from the fund which belonged to the obligation holder. If they were unlawful and unwarranted disbursements, they were unlawful diversions, and if the amount of them was unlawfully diverted, it was, when demanded by the appellee from the city, unlawfully withheld from him.” What is said in Warner v. New Orleans, 167 U. S., 467, is, we think, in point: “One who purchases property and pays for it in warrants drawn upon a particular fund the creation of which depends largely on his own action, is under an implied obligation to do whatever is reasonable and fair to make that fund good. He can not certainly so act as to prevent the fund being made good and then say to his vendor: ‘You.must look to the fund and not to me.’ ” We deem it unnecessary to distinguish cases cited by the defendant city in support of the views urged by its counsel, such as city of Alton v. Foster, 207 Ill., 150-161 ; City of Chicago v. Brede, 218 Ill., 528, and others. It suffices to say' we do not regard them in point in this controversy. What was said by this court in City of Chicago v. Singer, 116 Ill. App., 559-563, is, we think, in large measure applicable in the case at bar. See also City of Chicago v. McCormick, 124 Ill. App., 639.

It is contended in behalf of the city that special assessment vouchers are not limited to payment from the installment of an assessment against which they may be issued, but may be paid out of any installment at any time, without reference to whether such payment out of another installment, may have the effect to absorb all the fund against which other vouchers may be outstanding. In City of Chicago v. Union Trust Company, supra, we had occasion to consider this question and expressed the opinion “that each installment is properly chargeable only with its own expenses” in view of the provisions of the statute. Payment of “any voucher or bond out of an installment having a surplus to its credit, other than the one against which the same is issued” is provided for by section 86 of the Local Improvement Act of 1897. Where there is no such surplus such provision is inapplicable. In the present case that provision of that Act is not applicable, these assessments having been confirmed before its enactment. Sections 63 and 64 of article IX, Cities and Villages Act, are applicable in this case and, in our opinion, are not subject to any such interpretation, as counsel for the city seem to claim.

It is further urged in behalf of the city that “where a municipality in default of other bidders becomes the holder of tax certificates on property sold to enforce the collection of delinquent special assessments, such tax certificates cannot be treated as cash assets in the special assessment funds; nor is a municipality liable out of its general funds to holders of special assessment vouchers to the amount of such tax certificates.” It appears from the agreed statement of facts that in cases where property assessed for improvements in payment for which some of the vouchers sued upon were issued, has been returned delinquent for non-payment of such assessments the city, in default of other bidders, has become the purchaser of such delinquent' property at the sale and has acquired tax certificates therefor; that in each case the amount due on such tax certificates is in excess of the amount remaining unpaid on said vouchers; and that the city has not paid into the said respective special assessment funds the amounts which it bid for such pieces of property respectively. It is urged in behalf of the city that inasmuch as it is “but an instrumentality selected by the law to receive payment of the special assessment from the property owners and to pay the same to the holders of the vouchers” (Village of Wilmette v. People, 214 Ill., 107-111) the city acquired these tax certificates only in a trust capacity for carrying out the provisions of the special assessment act and not in its general corporate capacity. The distinction is, we think, attempted where there is no difference. The provisions of sections 70, 71 and 72 of the Local Improvement Act authorize the city in default of other bidders to become a purchaser at sales of property to enforce collection of any tax or special assessment, and make “the general revenue laws” of the State “and all other laws in relation to the enforcement and collection of taxes and redemption from tax sales” except as in the Local Improvement Act provided, “applicable to proceedings to collect such special assessments and special taxes.” Sections 206 and 207 of the Revenue Act provide for resale of the property in case the purchaser at such sale shall fail to pay the amount and for delivery of the certificate of purchase to the purchaser, which certificate is required to recite the amount of the “special assessments, interest and costs for which the same was sold, and that payment has been made therefor.” We concur therefore in the plaintiff’s contention that having taken out tax certificates reciting that it has paid the amount of the assessment, interest and costs, the city is estopped from contradicting such recitals, that the judgment confirming the assessment must be deemed satisfied by the sale and purchase and the city thereafter becomes liable to apply the amount of the purchase to the assessment fund and in payment of liabilities against such fund. As we said in City of Chicago v. Union Trust Company, supra: “If such sale is made to a private individual he would be required to pay the amount bid at the sale upon receiving his certificate of purchase or a tax deed. No reason is apparent why there should be any distinction between a municipality and an individual in this respect.”

It is contended that the city is not liable for interest- on vouchers after their maturity. In City of Chicago v. Conway, supra, it was held that the municipalities become “liable for interest in three cases—where there is an express agreement, where money has been wrongfully obtained by them and where money is illegally withheld by them,” citing Vider v. City of Chicago, 164 Ill., 354; City of Peoria v. Construction Co., 169 Ill., 36; City of Danville v. Danville Water Co., 180 Ill., 235. In the case at bar the amounts refunded to the property owners and the amounts which should have been applied by the city in payment of its purchases at tax sales in cases where the vouchers in controversy are unpaid were, we think, “illegally withheld” when the city refused payment of the vouchers at their maturity.

For reasons indicated the judgment of the Superior Court will be affirmed.

Affirmed.


text:
    Rosie Lapka, Administrator, v. Chicago City Railway Company.
    Gen. No. 13,759.

      Practice—when dismissal proper for want of prosecution. Notwithstanding the defendant has not been served and the time for filing the declaration under the statute has not elapsed, a dismissal for want of prosecution may be justified. Held, under the facts of this case, that the dismissal ordered was justified.
    Action on the case. Error to the Circuit Court of Cook County; the Hon. Abner Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed March 6, 1908.

      Statement by the Court. Material facts in this case are in substance that January 7, 1902, the plaintiff in error— hereinafter referred to as plaintiff—filed a prcecipe in the Circuit Court of Cook county in an action on the case against the defendant. A summons was, it is said, issued but it was never served. No appearance was entered by the defendant until May 13, 1903, when the cause was reached on the trial call of one of the judges of the Circuit Court. Ho declaration had been filed and the cause had rested for more than a year with nothing on file to show any purpose of prosecuting the suit except the mere prcecipe. When the cause was reached on May 13, 1903, the defendant by its attorney entered its appearance -which, was, however, expressly limited “for the sole purpose of moving the court to dismiss said cause,” and on motion of defendant’s attorney it was “ordered that said cause be and is dismissed at plaintiff’s cost for want of prosecution.”
    Subsequently plaintiff’s attorney entered a motion to set aside the order of dismissal and the judgment, which motion after hearing was overruled. Plaintiff’s counsel subsequently obtained leave to file affidavits in support of the motion to set aside the order of dismissal. From these affidavits it appears that plaintiff’s attorney on the 11th and 12th of May, 1903, was engaged in the actual trial of a cause in the U. S. Circuit Court at Chicago, and that he was required to be in that court the morning of May 13, at 10 o’clock, when the jury not having reached a verdict, he was requested by the judge of that Federal Court to enter into a certain stipulation, which was done. Immediately thereafter, said attorney proceeded at once to the Circuit Court where this cause was on the trial call. He reached said court room at 10:30 a. m. and then he learned the suit had been dismissed for want of prosecution. He immediately moved to have the order of dismissal set aside and the cause reinstated. This motion was continued and heard subsequently on May 26th following. It further appears from the affidavits filed that before going to the U. S. Circuit Court that morning plaintiff’s attorney had arranged to have the cause watched by a reporting agency which undertook to watch cases on the court calls for attorneys. The employee of the said agency who was charged with the duty of watching the present cause on the trial calendar of the Circuit Court that morning, having also to keep watch of a cause pending before Judge Hutchinson of the Superior Court, then sitting on the same floor in the court house and thinking, it is said, the three cases preceding the present cause on the trial calendar of the Circuit Court would take sufficient time to permit of his absence from the Circuit Court room a few moments, stepped into Judge Hutchinson’s court room and was absent from the said Circuit Court room not more, it is said, than two or three minutes. Upon his return this cause had meanwhile been reached and dismissed.
    H. H. Pierce, for plaintiff in Grroi*.
    Wm. J. Hyues and Watsow J. Febby, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

It is urged in behalf of plaintiff that the cause should not have been dismissed and that the motion to reinstate should not have been denied for want of a declaration on file, since it is said plaintiff had until ten days before the second term after service of summons on the defendant, to file her declaration or the same time after notice of appearance by the defendant; citing English v. Wilkins, 163 Ill., 542; Johnson v. Noble, 37 Ill. App., 314; Collier v. Grey, 105 Ill. App., 485-486. In the present instance, however, the cause ivas not dismissed for want of a declaration on file, but was dismissed for want of prosecution.

It is argued that counsel for plaintiff was diligent in watching the case and was not remiss at the time the cause was dismissed; and that a motion for leave to file certain affidavits which it was sought to file on May 27, 1903, after the overruling of plaintiff’s motion to reinstate the cause, was erroneously denied. The question, however, is not merely whether the plaintiff’s attorney was diligently endeavoring to be represented in court when the case should be reached on the trial call, but whether he was properly prosecuting the suit. One of the affidavits which the court refused leave to file set forth, among other things, that plaintiff had previously entered into negotiations with defendant for a settlement of plaintiff’s claim. We do not regard this as material nor the alleged fact set up in the other rejected affidavit to the effect that plaintiff had a meritorious cause of action. Whatever motive or strategy may have influenced the failure of plaintiff’s attorney to cause the defendant to be summoned and to prosecute the suit, such strategy or hope of advantage for the client to be gained by delay, can not effect the fact that there had not been any effort to prosecute the suit. We are obliged to conclude that the Circuit Court committed no error in the exercise of a sound legal discretion when it dismissed the action for want of prosecution. Brunswick-Balke Collender Co. v. O’Donnell, 101 Ill. App., 533-535.

Finding no error the judgment of the Circuit Court must be affirmed.

Affirmed.


author: Mr. Justice Smith

text:
    Royal Trust Company, Administrator, Defendant in Error, v. National Provision Company, Plaintiff in Error.
    Gen. No. 13,494.
    1. Assumed bisk—when doctrine of, applies. The doctrine of assumed risk is applicable and precludes a recovery where it appears that the servant was injured through an agency which was one of the obvious dangers of his employment, the risk of which he knew and appreciated from practical experience.
    2. Assumed bisk—what does not preclude operation of doctrine of. The operation of the doctrine of assumed risk to preclude a recovery is not affected by the fact that- the servant is ordered to do a particular work, where the order does not include a direction to do such work in a particular manner, the servant being left to his discretion as to the manner of doing the work; - if he adopts one of several methods, one of which is safe and the other dangerous, and by pursuing the unsafe method adopted by him he is injured, he cannot recover.
    3. Contributoby negligence—when appears as matter of law. A servant is guilty of contributory negligence which will preclude a recovery from an injury resulting to him where without direction from his master he undertakes to perform work in a manner known by him to be perilous.
    Baker, P. J., dissenting.
    Action in case for death caused by alleged wrongful act. Error to the Superior Court of Cook County; the Hon. Fablin Q. Ball, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed.
    Opinion filed March 6, 1908.
    Statement by tlie Court, Plaintiff in error, National Provision Company, seeks by this writ of error to reverse a judgment recovered against it in the Superior Court by defendant in error for $4,000 in an action to recover damages for the death of Patrick Meegan.
    On July 9, 1904, a part of the plant occupied and used by the Provision Company was destroyed by fire. Before the fire deceased had been employed by the Provision Company as a stationary engineer. About three weeks after the fire the deceased and three other workmen were employed by the Provision Company as common laborers in and about collecting and getting into marketable shape salvage remaining on the premises. September 1, 1904, as the evidence tends to show, these men were engaged in raising a safe lying on its back to an upright position. The safe was partly under a cross beam about eight feet above the ground, resting on two upright posts which were sunk some distance in the ground. The posts stood about eleven feet apart. The cross beam and the posts were twelve by twelve inches in size and had been slightly charred by the fire. The cross beam rested upon the ends of the posts, and was nailed to them by large spikes. The safe was five feet high and three and a half feet in its other dimensions, and weighed about two tons. The cross beam ran north and south. The safe ivas about midway between the posts with its top to the west of the north and south beam.
    While the deceased and the other men were engaged in other work Bernard Brennan, secretary of the plaintiff in error, told Meegan, the deceased, who was foreman of the gang, to raise the safe and stand it upon its feet. Brennan left the place, and Meegan and his helpers went to the safe and attempted to raise it by means of a rope around the safe and a block and tackle made fast to the cross beam. The work proceeded for a short time under the direction of Meegan, and they had raised the top of the safe six inches or more when it was discovered that the south post was not firm and swaying. Meegan and his helpers saw that the post was not safe, and put a support under the top of the safe to hold it in the position to which they had raised it, removed the block and tackle and returned to other work.
    Subsequently Brennan returned and said to Meegan in substance, I told you I wanted that safe raised upon its feet; it is worth no money to me lying out there; and Meegan then explained that he had made the attempt but that the timbers were not firm enough, and that the work was dangerous; and that Brennan, according to the testimony of defendant in error, then went out to the safe with Meegan and kicked the post and expressed the opinion that the timbers were strong enough to raise the safe, and then left the premises. This is denied by Brennan, who says that he never told the men to use block and tackle, but to get pipes and use them for levers to raise the safe.
    It appears that Meegan then directed his helpers to join him in another attempt to raise the safe. Some ten inch spikes were procured and the cross beam was spiked on to the posts, and a brace against the south post was put up; the block and tackle was again adjusted. Meegan stood under the beam pulling with one hand on the rope and with his left hand resting on the top of the safe. When the safe was raised nearly high enough to enable them to put it on its feet, the south end of the cross beam came off the south post and falling struck Meegan’s left hand, inflicting the injury from the results of which it is claimed he died.
    On the trial of the case the jury returned a verdict finding the plaintiff in error guilty and assessing damages at $4,000; and judgment was rendered on the verdict.
    John E. Keiioe and Morrison & Brown, for plaintiff in error.
    Kickham S canean, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

If Meegan, the deceased, assumed the risk, or if he was guilty of contributory negligence, no recovery can be had. These questions wc shall consider in the order stated.

The evidence shows that the deceased was a man of mature years. lie had been an engineer about fourteen years, and had "worked for plaintiff in error two years. He was familiar, therefore, with the laws of mechanics operating in the work he was doing, and with the appliances which he was using, and also with the premises where he was working. It appears from the testimony that Brennan was not present at either attempt to raise the safe. It is not claimed that he gave any specific order for the use of the posts and cross beam and block and tackle. His order in each case was to raise the safe on its feet.

Upon a review of the evidence offered by defendant in error we think that all reasonable minds must come to the conclusion that Patrick Meegan, the deceased, had actual and positive knowledge, derived from personal observation and experience, not only of all the conditions existing, but of the precise dangerous feature which afterwards resulted in the injury. He had opportunities not only equal, but superior to those of plaintiff in error, to know and appreciate all the conditions, circumstances and dangers surrounding the work, and inherent in the method which he adopted of doing the work. The testimony of Burns, Kelly and Meegan leaves no doubt in the mind that the deceased fully appreciated the. danger of using the posts and cross beam in the manner in which they were used, and that he expressed his apprehension at the conclusion of the first effort to raise the safe, and ordered his men to stop the work because of the danger. This definite knowledge on his part of the peril and hazard of that method of procedure was the result, not of mere opinion or theory, but of an actual test which developed the particular weakness in the posts and cross beam. Meegan’s knowledge is further demonstrated by his efforts to strengthen the structure before using it as an appliance the second time by means of a brace to support the south post, and by spiking the cross beam upon the posts. Plaintiff in error was not present and had no knowledge of the fact or the manner of this bracing and spiking. Meegan assumed to thus strengthen what he knew to be a weak structure in his own way, and upon his own judgment as to its sufficiency, without consultation with, advice from, or direction of plaintiff in error. We are compelled by these undisputed facts and obvious considerations to the conclusion that Meegan had full and complete knowledge of all the dangers attendant upon and resulting from the use of the posts and cross beam as an appliance for raising the safe by the method adopted. Having such knowledge, Meegan, in our opinion, assumed the risk. This conclusion, we think, is fully sustained by Elgin, Joliet & Eastern Ry. Co. v. Myers, 226 Ill., 358; Republic Iron & Steel Co. v. Lee, 227 id., 246, and cases there cited.

But, it is urged that when Brennan’s attention was called to the weakness of the posts and cross beam he kicked the south post and said to deceased, “That is strong enough to lift twice as much; go and get it up; it is worth no money lying there,” and this was an assurance by the master, plaintiff in error, that the danger did not exist, which deceased had a right to rely upon, and brings the case within an exception to the doctrine of assumed risk. This exception exists where a servant is ordered by his master to do certain work which is attended with danger of which he is not fully cognizant, and he relies upon the order to do the work as an assurance that he may safely perform the task. What we have said above, and the authorities cited, dispose of this contention. See also I. C. R. R. Co. v. Fitzpatrick, 227 Ill., 478; Gunning System v. La Pointe, 212 id., 274, 278; C. & E. I. R. R. Co. v. Heerey, 203 id., 492; Montgomery Coal Co. v. Barringer, 218 id., 327; McCormick H. Machine Co. v. Zakzewski, 220 id., 522.

In Illinois Central R. R. Co. v. Swift, 213 Ill., 307, it is said: ‘Where, however, the employee is not directed to do the work in a specific manner, but is given a general order to perform the task and is himself left to use his own discretion as to the manner in which the work shall be done, and there exists a safe way and a dangerous way, which are equally open to him, if he selects the unsafe method through heedlessness or because it involves less exertion on his part, and injury to his person results, he cannot recover. Pennsylvania Co. v. Lynch, 90 Ill., 333; Illinois Central Railroad Co. v. Sporleder, 199 id., 184.”

Brennan testified, and his testimony is necessarily undisputed, that when he talked to the deceased about raising the safe, the deceased said he did not think he could raise it with a block and tackle, and the witness replied that he had never thought of having it done in that way, and said: “I expected you would raise that with a lever.” The deceased then said: “You go ahead; I will attend to that; leave it to me. I thought that would be the easiest way and the quickest way and I told him that. I never told him to use a block and tackle.”

This testimony, in connection with the testimony of the witnesses for defendant in error, tends to show, we think, that the plaintiff in error did not direct the work of raising the safe to be done in a specific manner, but gave a general order to perform it and left the deceased to use his own discretion as to the particular manner of doing it. Deceased adopted the method which in the nature of things caused the beam to come down. As said in Karr Supply Co. v. Kroening, 167 Ill., 560, in holding the plaintiff guilty of contributory negligence: “Defendant, in furnishing help, was not hound to act upon the assumption that its servants would undertake, without any direction as to how the work should he done, to lower the tank by the most inconvenient and hazardous method. It had a right to assume that they would use a reasonable and proper method when left to make their own selection. * * It is a long established rule of law, founded in natural justice, that ‘the mere relation of master and servant can never imply an obligation on the part of the master to take more care of a servant than he may reasonably be expected to take of himself.’ (Priestly v. Fowler, 3 M. & W., 1.) * * * There was no coercion whatever, but the servants of defendant, by their own choice, did the work in the most difficult and hazardous manner. The law does not impose any such hardship upon a master as to hold him liable for the consequences of their choice without his direction.”

There is another respect in which deceased may be said to have been guilty of contributory negligence. Shortly before the accident deceased had declared the work was unsafe, and that the beam would pull off. Why did he take a position of danger and place his hand where if the beam did come off the post, it was liable to fall on his hand ? The only answer given in the evidence is that he put it there to steady the safe. This is manifestly no answer.

We think the instruction to find the defendant not guilty, requested at the close of the evidence, should have been given.

The judgment is reversed with a finding of fact.

,Reversed with finding of fact.

Mr. Presiding Justice Baker dissenting.


text:
    Cesar Antognoli v. Congregation O’Have Zedek.
    Gen. No. 13,726.
    Forcible entry and detainer—effect of introduction of sheriff’s deed. In an action of forcible entry and detainer where the right of possession is predicated upon a sheriff’s deed, it is not sufficient alone to introduce such deed, but proof of the validity of the proceedings upon which it is predicated is essential.
    Forcible entry and detainer. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed March 6, 1908.
    Leonard Fisice and Gallagi-ier & Messner, for plaintiff in error.
    Louis Greenberg, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The certificate of the trial judge shows that plaintiff in error offered in evidence (1) the sheriff’s deed to Piróla; (á) a quit claim deed from Piróla and his wife to plaintiff in error; (3) a demand in writing’ for the possession of the premises in question served upon the defendant in error by plaintiff in error; and (4) it was admitted that the defendant in error was at the time of the trial in j>ossession of the premises in question, and that the action was properly brought under the Forcible Detainer Act. To the foregoing evidence defendant in error interposed no objection. The plaintiff in error then rested his case.

Defendant in error then moved the court to dismiss the case for want of proof of a valid judgment and a valid execution thereon, and rested his case without offering any proofs.

The question presented by the record is as to the proof necessary to he made in an action of forcible detainer, where the right of the plaintiff to possession is predicated upon a sheriff’s deed. Is the deed alone sufficient when it recites the judgment, and the execution issued thereon, and the sale of the premises by the sheriff under the execution without objection; or must the plaintiff, in addition thereto, prove a valid judgment and a valid execution issued thereon, to make a complete case ?

Counsel for plaintiff in error concedes in argument that where the plaintiff’s right to possession, as in this action, is based on a sheriff’s deed, it is necessary for the plaintiff to show a valid judgment and a valid execution, but urges that when the deed is offered and received in evidence without objection from the defendant the latter cannot be heard to say such deed is not valid. Counsel cites in support of this contention Jackson v. Warren, 32 Ill., 331; Schneider v. Sulzer, 212 Ill., 87, and Starr & Curtis’s Stat., vol. 2, chapter 77, section 33.

The section of the statute above cited is as follows:

“Any deed which has been heretofore, or which may hereafter be so executed, or a certified copy of the record thereof, shall be prima facie evidence that the provisions of the law in relation to the sale of the property for which it is or may be given were complied with; and in case of the loss or destruction of the record of the judgment or decree, or of the execution or levy thereon, such deed or certified copy of the record thereof shall be prima [facie] evidence of the recovery and existence of the judgment or decree and issuing and levy of the execution as therein recited.”

The first clause of this section, by its terms, makes the sheriff’s deed or a certified copy thereof prima facie evidence that the provisions of the law have been complied with in relation to the sale of the property. It does not make it evidence of the validity of the judgment and execution. The last clause of the section makes it evidence of the recovery and existence of the judgment or decree and the issuance and levy of the execution as therein stated, in case of the loss or destruction of the record of the judgment or decree of the execution or levy thereon.

In Jackson v. Warren, supra, it was stipulated “that all the proceedings were regular up to the foreclosure sale, and when the Master’s deed was offered in evidence, the appellant made no objection to it,” and the court held that having once recognized it as a valid deed, “he cannot now say it is not valid.” A very different question was there under consideration, and we do not think the case is in point here. .And the same is true of Schneider v. Sulzer, supra.

In Johnson et al. v. Baker, 38 Ill., 98, a forcible detainer action, it was said at page 101: “As the law stood before the passage of this amendatory act (Act of 1861), title could not be inquired into for any purpose in this action. Nor can. it now, but the plaintiff claiming the right to recover as a purchaser at a sheriff’s sale, must show that his purchase conformed to the law authorizing the officer to sell. To do this he must produce a valid judgment, an execution and a deed for the premises on a sale by the sheriff under such a judgment.” This rule is quoted with approval in Kepley v. Luke, 106 Ill., 395—397, and was reaffirmed in Kratz v. Buck, 111 Ill., 40-47.

On the above authorities we are of the opinion that plaintiff in error did not make out his case by the evidence offered, and the judgment of the court below is affirmed.

Affirmed.


text:
    Christian H. Stucker v. Edward T. Thompson.
    Gen. No. 13,731.
    Assault and battery—what sufficiently justifies. An assault is justified where made in self-defense, it appearing that the plaintiff in the action charging assault and battery was himself the first aggressor, and the sufficiency of the defense of self-defense is not affected by the fact that the defendant testified that he was at all times confident of his ability to defend himself against the assault of the plaintiff.
    Assault and battery. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 6, 1908.
    Charles S. Williston, for plaintiff in error.
    Charles E. Zollars, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

Defendant in error, plaintiff helow, had judgment in an action for damages for an alleged assault upon him by plaintiff in error, for two hundred dollars.

The testimony in the record shows that Thompson was a janitor and had been employed at an apartment building over which Stucker was superintendent. After working a few weeks Thompson left his position on January 11, 1901, without giving any notice of his intention to leave, and without making any provision for the heating of the building in which many families were then living. The fires went out and the building was cold, and the first information Stuclcer had of the situation of affairs came to him through the complaints of the tenants.

About two weeks after he left his work Thompson went to Stacker’s office to collect for the time he- had worked, and after being invited into an inner office room by Stucker, they had a short conversation about Thompson’s leaving his work. Thompson states that Stacker knocked him down several times and kicked him.

Stacker testified that he asked Thompson: “How could you Avalk off and leave these people Avithout any heat, Avithout saying a word or notifying me, no heat, no Avater ?” and that Thompson replied: “Why, you--, what do you mean by sending a man up there to take my place ?” Stacker testified that he took hold of the door handle and aslced Thompson to leave; Avhereupon Thompson attempted to strike him, and he struck Thompson; that Thompson got up and attempted to strike him again; that each time Thompson hit him, Stacker struck Thompson in the face, and that Thompson repeated the same vile name several times; that he tried to be polite, but Thompson made seAreral attempts to strike him.

In the course of his oral charge to the jury, the trial judge said:

“Now under the law, the plaintiff is entitled to recover in this case because there is-no defense here shoAvn, and the defendant himself said he Avas in no fear of immediate danger. When a man is struck by another, the party struck is alloAved to defend himself under the laAV if he is in danger of receiving serious injury, to prevent any personal bodily injury upon himself. In this case I think the defendant testified lie had no such fear.”

The court, in its charge virtually took the case from the jury as to all issues except the amount of damages to be assessed against Stacker. The charge assumes that Stacker committed the trespass. The jury were told that the plaintiff Thompson was entitled to recover upon the evidence. This was manifest error; for if the jury believed the testimony of Stacker, Thompson was the aggressor from the beginning, striking the first blow, and repeatedly returned to the attack after he had been repulsed by Stacker, who had a right in law to defend himself against an attack by Thompson. As said in Bittinger v. Druck, 33 Ill. App., 301, in reversing the judgment: “Whether the plaintiff or the defendant was the first aggressor was a question presented to the jury by evidence of a very conflicting character, and the question should have been submitted to the jury by the instructions of the court. * * * The point of contention was whether defendant in closing with the plaintiff was acting in self-defense against a prior assault of the plaintiff. The evidence may have convinced the jury that Druck 'was the first offender, but the charges of the court directed them in substance, that they need pay no attention to that circumstance.”

The whole theory of self-defense wras excluded from the consideration of the jury by the charge of the court. “The question of how much force a person may use in self-defense, and what he may do, is a question of fact for the jury, and not one of law for the court.” Hulse v. Tollman, 49 Ill. App., 490.

Another serious error in the instruction is that the court selected one statement of Stacker as the basis for charging the jury that the plaintiff was entitled to recover, and did not correctly remember and did not state the testimony accurately. Stacker stated that he had no fear of bodily injury from Thompson and was not afraid of him. This might be, and from the context of his testimony probably was; because Stacker felt and believed he could successfully defend himself against Thompson’s attacks. It did not necessarily mean that “he was in no fear of immediate danger,” as stated by the court. What the witness intended to state and what was the fact, was a question for the jury, and should have been left to the jury.

For the errors in the charge to the jury the judgment is reversed and the cause is remanded.

Reversed and remanded.


text:
    Joseph Hanreddy v. Joseph Palilinnas.
    Gen. No. 13,755.
    1. Assumed risk—when question of, for jury. It is a question for the jury to determine whether a servant has assumed the risk of an injury resulting from a descending elevator, where it may be determined from the evidence that such servant may have known and appreciated the danger which resulted in his injury.
    2. Variance—when question of, not presented for review. Whether the injury, made the basis of the recovery, is shown to have been caused by a different act of negligence from that stated in the bill of particulars, is not preserved for review, in the absence of an objection to evidence or motion based on the ground of a material variance.
    3. Instruction—upon what must he predicated. Instructions are properly refused which are not based upon some evidence in the cause.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blaiie, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed March 6, 1908.
    R. J. Folonie and George Pfirshing, for plaintiff in error.
    Isaiah Campbell and Aaron Heims, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The defendant in error recovered judgment against plaintiff in error in the court below for two hundred and fifty dollars for injuries claimed to have been caused by negligent operation of an elevator, in letting it down violently on defendant in error.

The evidence in the record tends to show that defendant in error was employed by plaintiff in error as a laborer in a tunnel at 103rd street, Chicago. lie had been employed about three weeks in this tunnel which was about one hundred feet below the surface of the earth. There was only one way of ingress and egress to and from the tunnel, namely: By an elevator running in a shaft. The tunnel is what is known as a ten foot bore. The elevator cage is about six feet wide on the inside, and about eight feet long. The longest dimension of the cage when in the tunnel extended lengthwise along the tunnel and at one side of it, thus leaving a passageway alongside of the cage and the pit into which the bottom of the cage dropped. This pit was about a foot deep and was not enclosed by any guard or rail.

When the defendant in error went to work on the afternoon of the day he was injured, he was told hv the foreman of plaintiff in error to go to the south end of the tunnel and get his shovel, and then go to work at the north end of the tunnel. He procured his shovel, and while going to the north end of the tunnel for the purpose of going to work, fell into the pit at the bottom of the elevator shaft. As he fell the elevator cage descended and struck him on the head and injured him.

There is a controversy in the evidence as to whether there was any light at the elevator shaft at the time of the injury. Defendant in error testified that there were no lights at the elevator shaft, and it was so dark that in looking down one could not see the ground under his feet; that there were some tallow candles about fifty feet from the shaft.

Ellinger, general foreman of plaintiff in error, testified that lights were burning at the bottom of the shaft at the time of the accident, but he states he was not in the tunnel at the time; he was there five minutes before and fifteen minutes after that time, and the candles were burning then.

Kennaugh, a foreman of plaintiff in error, testified that at the time of the injury there was light in the tunnel from natural sources above and that it was lighter at the shaft than at other points in the tunnel, and that there was a box of candles there for use.

Golah testified that he had stated to the defendant in error that it was dangerous to walk under the cage and across the pit, and that he should walk around the side.

This is in substance the evidence in the case. Upon careful consideration of all the material facts shown, we think it was for the jury to determine whether or not the defendant, in error assumed the risk or danger from which he suffered the injuries. Without doubt he knew of the danger of getting under the elevator cage when it was descending, and the jury might so find, and at the same time conclude from the evidence that defendant in error did not know and could not see the elevator pit when he came to it, because of the darkness. The testimony of defendant in error is the only positive and direct evidence in the case on that point. In the darkness he saw a light, and thought the elevator was further north, and as he got near the light he fell into the pit. The jury might reasonably infer that on account of the darkness he was unable to determine the exact location of the pit. We cannot hold under the facts and circumstances shown by the record that defendant in error assumed the risk, or that he was guilty of contributory negligence. These are questions of fact to be determined by the jury.

The question whether the injury is shown to have been caused by a different act of negligence from that stated in the bill of particulars is not properly preserved in the record. The record does not show any objection to evidence or motion based on the ground of a material variance. Libby, McNeil & Libby v. Scherman, 146 Ill., 540.

The instructions refused by the court were sufficiently covered by the charge of the court, so far as they were based on the evidence. There was no evidence of extraerdinary or unusual risks or dangers of which defendant in error had knowledge, or which he could have known "by the exercise of ordinary care for his own safety, and hence instruction No. 7 requested hy plaintiff in error was properly refused.

The judgment is affirmed.

Affirmed.