text:
    Edward V. Kloepher, by his next friend, Dennis S. Kloepher, Defendant in Error, v. W. Irving Osborne et al., Plaintiffs in Error.
    Gen. No. 17,799.
    1. Carriers—contributory negligence. Where a passenger on a rapidly moving electric street car is crowded down and forced to stand on the steps, and is struck by a trolley pole and injured, and testifies that he had in previous rides not noticed the close proximity of such poles to the cars, he is not guilty of contributory negligence as matter of law.
    2. Carriers—standing on steps of car not negligence per se. Standing or sitting upon the platform or steps of a moving railway car, although it may be prima facie evidence of negligence, is not, under all circumstances, negligence per se and as a matter of law.
    3. Carriers—contributory negligence. Negligence and contributory negligence are questions of fact for the jury, but when the facts are admitted and all reasonable minds will agree that the injury was the result of plaintiff’s own negligence, the court may as a matter of law find that there was such contributory negligence on the part of plaintiff as to defeat a recovery.
    4. Carriers—plea of general issue admits possession of car. In an action against the receivers of an electric street railway company for negligent operation, the plea of general issue admits possession and control of the car and appliances described in the declaration, and the capacity in which defendants are sued, and there is no merit in a contention that the car referred to in the testimony is not identified as the one mentioned in the declaration, where no variance is shown.
    5. Receivers—judgments against, conclusive. Under the Act of Congress of March 3, 1887, a judgment rendered in an action at law in a state court against a receiver appointed by a federal court is conclusive as to the existence and amount of plaintiff’s claim, but the time and manner of its payment are to be controlled by the court appointing the receiver.
    6. Receivers—judgment against, not personal but in rem. The liability of a receiver for the torts of his servants in operating a railroad is not a personal one, but in his official capacity only, and a judgment against a person as receiver, “to be paid in due course of administration,” is in the nature of a judgment in rem or against the fund.
    7. Receivers—judgment against. While no judgment can be rendered against a receiver after he has been discharged from his trust, for torts committed by his employees while he was receiver, still in some cases, where the trust property is taken out of his hands by the order of the court appointing him, without discharging him, an action pending against him may proceed to judgment.
    8. Receivers—appointment of new receiver. Where a judgment is entered against receivers of a company after they have, under an order of court, transferred all its property to another receiver, and their attorney has failed to notify the court before whom such action was pending of such order, this fact precludes the defendants from urging that the judgment should be vacated.
    9. Default—rule for setting aside. A default may be set aside in the discretion of the trial court where defendant shows a prima facie defense to the merits and a reasonable excuse for not having made the defense, the rule being that both diligence and merit must be shown, and affidavits are to be construed most strongly against the party making the application.

      10. Default—counter-affidavits on motion to vacate. On a mo-' tion to set aside a default and vacate a judgment, counter-affidavits on the question of diligence are admissible, but it is not proper for the court to consider counter-affidavits as to meritorious defense.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. George W. Patton, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed February 13. 1913.
    Statement by the Court. On November 8,1909, defendant in error, hereinafter called plaintiff, commenced an action in case against plaintiffs in error, hereinafter called defendants, in the Superior Court of Cook county, to recover damages for personal injuries sustained by plaintiff while riding on an electric car controlled and operated by defendants. The declaration as amended consisted of five counts. The third count alleged, in substance, that prior to August 21, 1909, the defendants were duly appointed receivers of said railroad company by the Circuit Court of the United States for the Northern District of Illinois, Eastern Division, and as such receivers, pursuant to an order of said court, were operating an electric railroad from Bavinia Park, Lake county, Illinois, through Winnetka in Cook county, Illinois, to Evanston in said Cook county; that defendants caused and permitted posts, known as trolley poles, to be erected along the west side of the' railroad tracks in Winnetka for the purpose of supporting electric wires; that plaintiff on the date aforesaid took passage on the westerly side of said tracks at Elm street, Winnetka, on one of the south bound cars of defendants, to be carried from Winnetka to Evanston; that said car was crowded with passengers and, owing to the crowded condition thereof, plaintiff was standing on the steps on the west side of the car; that defendants negligently ran and propelled said car southward at a rapid speed along and past said poles .in such close proximity thereto that there was.the narrow space of five inches between the west side of the ear and the poles, which was dangerous to the life and limb of a person so standing on said steps, all of which defendants knew or by the exercise of due care could have known; that because of the negligence of the defendants, plaintiff, while a passenger on said car and in the exercise of reasonable care and caution for his own safety, was struck by said poles and thrown to the floor of said car, and his arm dislocated and fractured, and he was permanently injured, etc. The defendants filed a plea of the general issue.
    When the case was called for trial on March 3,1911, none of the defendants appeared nor any one in their behalf. A jury was impaneled to try the issues, and plaintiff was sworn as a witness. He testified in substance that he was twenty years of age at the time of the commencement of this action; that on August 21, 1909, he boarded a car at Elm street, Winnetka, to go south to Evanston and paid his fare; that the car stopped at Elm street to take on passengers; that the car was crowded, and six or seven persons got off the car and that left an opening on the rear platform of the car and plaintiff got on the platform; that the car was so crowded that the people pushed him down on the step; that there was no “seating room;” that one of the posts on which “they run their trolley wires” hit his arm and “dislocated it and cracked the bone;” that when he was struck, the post was as close to the car as “three or four inches;” that he did not know about the post being there, and that while he had traveled on the line before, he had not noticed that the post was so close to the car; that the conductor was on the rear platform of the car at the time he boarded the car and “remained there during the entire time;” that at the time of the accident he was working for the village of Winnetka in the water and light department, receiving as wages, $55 per month; that after the accident he was treated by a physician at the latter’s office; that his arm was put in a cast where it remained about six weeks, and that it was about two months before he could resume his usual occupation; that the physician rendered him a bill, the amount of which he did not remember and which was not yet paid, and that his arm now so affects him that “I have got a stinging pain in my elbow, when there is any change in the weather.” No further testimony was offered and the jury, without any instructions, being given them, returned a verdict finding the defendants guilty and assessing plaintiff’s damages at $850, upon which verdict the court entered judgment for said amount and costs against the defendants, “to be paid in due course of administration as receivers.”
    After the entry of the judgment, and on the same day, the defendants, by their attorneys and upon notice to plaintiff, appeared and moved the court to “set aside the judgment and the verdict rendered and the default and grant a new trial.” The motion was supported by the affidavits of George T. Rogers and James W. Simonton, which were filed by leave of court, and the motion was continued until the next term. The affidavit of Mr. Simonton was to the effect that he believed that the defendants had a meritorious defense to the action, and stated certain facts as grounds for that belief. The affidavit of Mr. Rogers, a member of the firm of attorneys representing the defendants, related to the question of the diligence of the defendants and stated in substance that the cause was set for trial before one of the judges of the Superior Court for February 27, 1911; that on that date said judge did not have a call of common law cases but was hearing chancery cases, and that the “Chicago Daily Law Bulletin” announced that the call of the law calendar of said judge would be taken up on March 1,1911, by another judge of said court—Judge Patton; that on said March 1st, said case did not appear on Judge Patton’s call, but did appear on said call for March 2nd, and for March 3rd, with plaintiff’s name misspelled as “Kocphen;” that on or about February 23, 1911, W. O. Johnson was appointed as receiver of said railroad company in place of the said defendants, and that owing to the change in said receivership, confusion resulted and additional work was thrown upon the employees of said receivers and their counsel; that cases pending against said receivers were in the almost exclusive charge of another member of affiant’s law firm, who had been confined to his bed by illness since February 28th; that owing to the absence of said other member from the office, additional work in connection with said receivership was thrown upon affiant, and affiant did not direct his attention especially to said call and did not recognize the case as it appeared in said Bulletin, by reason of said misspelling.
    On March 8, 1911, the attorney for plaintiff, in opposition to said motion filed the counter affidavits of plaintiff and one Dusham, relative to the merits of plaintiff’s ease, and also, by leave of court, introduced a rule of said court relative to preliminary and trial calls of cases pending in said court and to the effect that announcements of the calls in said Bulletin “will be deemed sufficient notice to parties and their attorneys.” Said attorney also filed his own affidavit stating, inter alia, that said Bulletin, in its editions of Monday, February 27th, and Tuesday, February 28th, announced the call for Wednesday, March 1st, before Judge Patton; that said Bulletin, in its editions of Wednesday, March 1st, and Thursday, March 2nd, published the cases on said Judge’s call for the following day, and that in each of said editions appeared, among other cases, the case “7720 Klocphen v. Osborn.” Said attorney also presented to the court for inspection copies of said calls so printed in said Bulletin.
    On March 11,1911, the additional affidavit of George T. Rogers was filed in support of defendants’ motion, which stated that the law firm, of which affiant was. a member, were the attorneys of record for said defendants and also general counsel for W. O. Johnson, the present receiver of said railroad company; that said defendants “were relieved of their duties in connection with the operation, property and assets of said railroad company,” and W. O. Johnson appointed as receiver thereof, by order of the United States Circuit Court entered on February 21, 1911; that pursuant to said order the said defendants, as receivers, did on February 28th, formally deliver to said W. O. Johnson, as receiver, all cars, railroad equipment, money, records, books and all other property and rights of said company, which they had had in their possession or under their control as such receivers. Attached to the affidavit was a copy of the order of said United States Court, in which it was stated that it appeared to the court that it was “to the interest of the properties herein involved that a single operating receiver be appointed, and that the present receivers, heretofore appointed herein, be and remain as advisers to the court,” and in which it was ordered, inter alia, that said Johnson; as receiver, take immediate possession of all the property of said company and hold the same as an officer of said court; that the salaries of the present receivers cease but that they “be retained in the capacity of advisory receivers of this court;” that the present receivers (said defendants) forthwith turn over all the property of said company in their ' possession as receivers to said Johnson; that Johnson as such receiver “is hereby further authorized to defend any and all suits against him or against said railroad company, or its prior receivers, whenever in his judgment it shall be to the interest of said railroad company, or its creditors, so to do,” and that said receiver is empowered “to institute and carry on all legal proceedings necessary for the protection of rights * * -* arL(j other property embraced in this order. ’ ’
    On March 20, 1911, the court denied the motion of the defendants to set aside the judgment and verdict and grant a new trial, and overruled defendants’ motion in arrest of judgment, to which rulings the defendants excepted.
    Tenney, Coffeen, Harding & Sherman, for plaintiffs in error.
    John T. Byrnes, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

It is first contended by counsel for defendants that the evidence is insufficient to support the verdict and judgment because it does not show that the car on which plaintiff was riding when injured was owned and operated by the defendants. It is argued that although the defendants filed a plea of the general issue to plaintiff’s declaration and although such a plea admits the possession and control of the car and appliances described in the declaration, and the character or capacity in which the defendants were sued, still there was no evidence “to connect the car mentioned in the declaration with the car concerning which the plaintiff testified.” In our opinion there is no merit in the contention. McNulta v. Lockridge, 137 Ill. 270, 285; Chicago Union Traction Co. v. Jerka, 227 Ill. 95, 99; Pennsylvania Co. v. Chapman, 220 Ill. 428, 431; Brunhild v. Chicago Union Traction Co., 239 Ill. 621, 624.

And we cannot agree with the contentions that there was no evidence of negligence on the part of the defendants as charged in the declaration, and that the evidence shows that the plaintiff was guilty of contributory negligence as a matter of law. “The general rule is, that negligence and contributory negligence are questions of fact for the jury, but when the facts are admitted and all reasonable minds will agree that the injury was the result of plaintiff’s own negligence, the court may, as a matter of law, find that there was such contributory negligence on the part of the plaintiff as to defeat a recovery.” Howes v. Chicago & E. I. R. Co., 217 Ill. 500, 503. “Standing or sitting upon the platform or steps of a railway car when the train is in motion, although it may be prima facie evidence of negligence, is not, under all circumstances, negligence per -se and as a matter of law.” Chicago & A. R. Co. v. Fisher, 141 Ill. 614, 627; Lake Shore & M. S. R. Co. v. Kelsey, 180 Ill. 530; North Chicago St. Ry. Co. v. Polkey, 203 Ill. 225, 232; Chicago & W. I. R. Co. v. Newell, 212 Ill. 332. We cannot say that, under the facts as disclosed from plaintiff’s testimony, all reasonable minds would agree that plaintiff’s injury was the result of his own negligence.

It is also contended by counsel that the refusal of the trial judge to vacate the judgment and grant a new trial was an abuse of discretion. The matter of setting aside a default has always been held to be within the sound discretion of the court (Boyle v. Levi, 73 Ill. 175), which will not be interfered with, on appeal, except where that discretion is clearly abused. Greenleaf v. Roe, 17 Ill. 474; Staunton Coal Co. v. Menk, 197 Ill. 369. The judgment will not be opened unless the defendant shows a prima facie defense to the merits. Gilchrist Transp. Co. v. Northern Grain Co., 204 Ill. 510. If such a showing is made, the default may be set aside, provided a reasonable excuse is shown for not having made the defense. Mason v. McNamara, 57 Ill. 274. The rule is that both diligence and merit must be shown. Hartford Life & Annuity Ins. Co. v. Rossiter, 196 Ill. 277. Although it may be shown that the defendant has a good defense, a default will not be set aside if the defendant, or his attorney, has been guilty of negligence. Mendel v. Kimball, 85 Ill. 582; Plaff v. Pacific Exp. Co., 251 Ill. 243, 247; Staunton Coal Co. v. Menk, supra. “Affidavits, filed in support of applications to set aside judgments by default, or entered in ex parte proceedings, are to be construed most strongly against the party making the application.” Staunton Coal Co. v. Menk, supra, p. 374. After careful consideration of the record before us, we are unable to say that the trial court in refusing to vacate the judgment abused its discretion.

It is futher contended that the trial judge erred in permitting plaintiff’s attorney to file the counter-affidavits of plaintiff and Dusham on the question of meritorious defense. Upon a motion to set aside a default and vacate a judgment, counter-affidavits on the question of diligence are admissible. J. W. Farrior & Co. v. Mickle, 133 Ill. App. 444; Mutual Ins. Co. v. Carnahan, 122 Ill. App. 540; Hartford Life & Annuity Ins. Co. v. Rossiter, 196 Ill. 277, 280; Gilchrist Transp. Co. v. Northern Grain Co., 204 Ill. 510, 513. But it is not proper for the court to consider counter-affidavits controverting the affidavit of the defendant as to his meritorious defense. Mendel v. Kimball, 85 Ill. 582; Gilchrist Transp. Co. v. Northern Grain Co., supra. Still, where, as in this case in our opinion, no sufficient cause for opening the judgment is shown, the error in permitting the filing of the counter-affidavits is not prejudicial. Gilchrist Transp. Co. v. Northern Grain Co., supra.

It is lastly contended by counsel that the judgment against defendants was improper because they were not, as receivers, in control and possession of the property of the railroad company on the day the judgment was entered. It appeared from the affidavit of Mr. Rogers and the copy of the order of the United States Court accompanying the same, filed in support of defendant’s motion, that ten days before the entry of the judgment, a “single operating receiver,” in the person of W. O. Johnson, was appointed by said court and ordered to take immediate possession of all the property of the railroad company; that the defendants as the then receivers were directed to turn over all of said property in their possession to said Johnson, but were retained as “advisory receivers of the court;” that Johnson, as receiver, was authorized to defend all suits against him or the company or “its prior receivers;” and that three days before the entry of said judgment the defendants, as receivers, made formal transfer of all of said property to said Johnson, as receiver, in compliance with the order. It is to be noticed that the defendants were not discharged as receivers. It is argued by counsel that, although a subsequent receiver is liable for the torts of his predecessors and can be sued for the same, and although property in his hands is a fund which is liable for any judgments standing against prior receivers, . as such, at the time of the transfer of said property to him, in this case a different situation is presented in that the judgment was rendered against the defendants, as receivers, after they had, by order of the court appointing them, turned over to Johnson all of the property held by them as receivers and had parted with all control over the same, that at the date of said judgment the defendants had nothing in their hands upon which the judgment could operate and that the judgment against them was, therefore, improper.

We have reached the conclusion that, under all the-circumstances of this case, the judgment against the defendants should not be reversed for the reasons advanced by counsel. Wien the accident to plaintiff occurred, and when plaintiff brought suit against the defendants to recover damages for the injuries sustained, the defendants, as receivers, had possession and control of the property of the railroad company. By filing their plea of general issue to plaintiff’s declaration they admitted that they had such possession and control, as receivers. When the case was called for trial, the verdict rendered and the judgment entered, it does not appear that either the trial court or the attorney for the plaintiff was advised of any different situation existing than that disclosed from the pleadings. The judgment entered at that time was an adjudication of the matters in controversy. After the judgment was entered, the trial court was for the first time advised of the entry of the order of the United States Court,—entered ten days before the judgment here in question was rendered. Inasmuch as it appears from the affidavit of Mr. Eogers that the attorneys for the defendants knew that the cause, by order entered February 8th, had been set for trial for February 27th, it was the duty of said attorneys to have notified the Superior Court in some appropriate manner of the entry of the order of the United States Court of February 21st, immediately after its entry, and we think that the fact that they did not do so should preclude the defendants from urging, after the entry of the judgment, that said judgment should be vacated. McNulta v. Ensch, 134 Ill. 46, 55; Woddington v. Huey, 80 Ga. 651.

The liability of a receiver for the torts of his servants in operating a railroad is not a personal one, but a liability in his official capacity only, and the damages for such torts are to be paid only out of the fund or property in the control of the court appointing the receiver, and a judgment against a person, as receiver, “to be paid in due course of administration,” is a judgment in the nature of a judgment in rem, or against the fund. McNulta v. Lockridge, 137 Ill. 270, 279; Farmers’ L. & T. Co. v. Central R. R. of Iowa, 7 Fed. 537, 539; Bartlett v. Cicero Light Co., 177 Ill. 68. “So long as the property of the corporation remains in the custody of the court and is administered through the agency of a receiver, such receivership is continuous and uninterrupted until the court relinquishes its hold upon the property, though its personnel may be subject to repeated changes.” McNulta v. Lockridge, 141 U. S. 327, 332; Knickerbocker v. Benes, 195 Ill. 434. Such a judgment rendered in an action at law in a state court, by virtue of the provisions of the Act of Congress of March 3, 1887, against a receiver appointed by a federal court is conclusive as to the existence and amount of the plaintiff’s claim, but the time and manner of its payment are to be controlled by the court appointing the receiver. Dillingham v. Hawk, 9 C. C. A. 101, 60 Fed. 494; Jackson v. Lahee, 114 Ill. 287, 294; Richards v. People, 81 Ill. 551. While it is true that where a receiver has been discharged from his trust no judgment can be rendered against him for torts committed by his employees while he was receiver (34 Cyc. 481; High on Receivers (4th Ed.) 398b; McNulta v. Lockridge, 137 Ill. 270, 282), still, in some cases, where the property or fund is taken out of the receiver’s hands, by order of the court appointing him, without discharging him, an action pending against him may proceed to judgment. 34 Cyc. 411; Cowen v. Merriman, 17 App. Cas. D. C. 186; McCarley v. McGhee, 108 Fed. 494. We are of the opinion that, under the facts of this case, the judgment against the defendants, as receivers, should stand, and it is accordingly affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Gridley

license: Public Domain

text:
    Rittenhouse & Embree Company, Appellant, v. Julian Smolinski and Josepha Smolinski, Appellees.
    Gen. No. 17,812.
    Mechanic’s lien—proof of delivery of material. In a suit by a subcontractor to enforce a mechanic’s lien, held, that complainant did not show an alleged delivery of material within sixty days prior to the time notice of lien was served, by a preponderance of the evidence, as required by the Mechanic’s Lien Act, § 7.
    Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed February 13, 1913.
    Adams, Bobb & Adams, for appellant; James B. Wescott, of counsel.
    James G. Skinner, for appellees.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is a bill to enforce a mechanic’s lien filed by appellant, subcontractor and hereinafter called complainant, against appellees, owners and hereinafter called defendants, and A. A. Jankowski, original contractor, and others. Jankowski made a written contract with defendants to erect a building upon premises owned by them and complainant made a verbal contract with Jankowski whereby it agreed to furnish and deliver to said premises certain lumber and building material, as and when he should direct, at the market prices therefor, and complainant, in pursuance of its contract with Jankowski, furnished and delivered to said premises various lots of such material which were used in the construction of said building, the first delivery being made June 18, 1909. Complainant claimed that there was a balance due it for such material, so furnished, of $596.48, and further claimed that the last delivery was made on September 16, 1909. On November 13, 1909, within sixty days after September 16th, complainant caused the usual subcontractor’s notice of mechanic’s lien to be served upon defendants, and, not receiving payment of said balance, filed this bill on January 8, 1910. Defendants claimed that the last delivery made by complainant to said premises was on September 2, 1909, that complainant’s notice of lien was not served on defendants within sixty days from the date of the last delivery and that, therefore, complainant had no lien on defendants’ property. After the cause was put at issue it was referred to a master in chancery to take proofs and report his conclusions of law and fact. Practically the only issue of fact before the master war as to the date when complainant made its last delivery to said premises. The testimony of many witnesses was heard on this point, and was very conflicting. The master, however, found that the last delivery was made by complainant on September 16, 1909, that complainant’s notice of lien was, therefore, served in time and that complainant was entitled to a lien on said premises for the amount claimed, and so reported to the court. On the hearing of exceptions to the master’s report, the court found, inter alia, that complainant made its last delivery to said premises on September 2nd, that the building was completed and occupied by defendants, or their tenants, on September 9th, that complainant’s notice of lien was not served on defendants within sixty days after the last delivery, and that complainant was not entitled to a mechanic’s lien, and dismissed the bill for want of equity.

As stated by counsel for complainant, the sole question involved in this appeal is one of fact, namely, was complainant’s notice of lien of November 13, 1909, served on defendants within the time required by section 24 of the Mechanic’s Lien Act? If it was, complainant is entitled to a lien on said premises; if it was not, no lien can attach. To answer this question it is necessary to determine the date of the last delivery by complainant of material to said premises, in pursuance of the provisions of its contract with Jankowski. The testimony offered on behalf of complainant tended to show that deliveries were made on September 2nd, 9th, and 16th. The delivery of September 2nd was admitted. The testimony as to a delivery on the 9th was conflicting. To sustain the lien, however, it was necessary to show a sufficient delivery on the 16th. The testimony as to this alleged delivery was also conflicting. Thors on, a teamster of complainant, testified that on said date he delivered a load of lumber (consisting partly of 600 feet of flooring) “to the place concerned/’ that Jankowski himself received the lumber and signed a delivery ticket with his initials, but that independently of the memorandum he (Thor-son) could not tell where he delivered the lumber. Ossowski, the carpenter foreman on the job, testified that all floors were laid and the building entirely completed by about September 9th when he left the premises, that Jankowski was also erecting four other buildings at the same time he was building’ defendants’ building, that two of these buildings were about half a block away, and that the flooring mentioned in the delivery ticket of September 16th was used in one of said two buildings and not in defendants’ building. Several other witnesses on behalf of defendants testified that all floors were laid and the building in question was entirely completed by September 9th. Counsel for complainant argue that the diménsions of the building-required a certain amount of flooring, and, inasmuch as no lumber was delivered to the building except by complainant, and the amount of the prior deliveries of flooring as shown by the delivery tickets was insufficient to lay all the floors, that the flooring mentioned in the ticket of September 16th was necessary and must have been used in defendants’ building, but in arriving at this conclusion counsel make no allowance for stairways and other interior openings or places where flooring would not be required. Under section 7 of the Mechanic’s Lien Act, it was necessary for complainant to show, by a preponderance of the evidence, that the material mentioned in the delivery ticket of September 16th “was delivered either to such owner or his agent for such building or improvement to be used in such building or improvement, or at the place where said building or improvement was being constructed, for the purpose of being used in construction. ’ ’ Beidler & Co. v. Hutchinson, 233 Ill. 192. After a careful examination of the record before us, we have reached the conclusion that complainant did not prove by a preponderance of the evidence the alleged delivery of September 16th, and that the trial court was justified, in view of all the evidence, in finding that the complainant was not entitled to a mechanic’s lien on said premises and in dismissing the bill. The decree is accordingly affirmed.

'Affirmed.


text:
    Fred F. Roberts, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,843.
    1. Evidence—instruction as to interest of witnesses. In an action against a street railway for wrongful death, where the only witnesses for defendant are the motorman and conductor of the car which struck deceased, it is not prejudical error to instruct that the relation between any witness and either party and any interest the witness may have in the result of the suit may be considered in determining the weight which ought to be given to his testimony, taking it in connection with all the other evidence in the case and the facts and circumstances proved upon the trial.
    2. Negligence—instructions. In an action against a street railway company for wrongful death, an instruction is not erroneously given, where it is preceded by instructions stating in almost every possible form the duty resting on deceased, which states that if a person without fault on his part is confronted with a sudden danger or apparent sudden danger, his obligation to exercise ordinary care for his safety does not necessarily require him to act with the same deliberation and foresight which might be required under ordinary circumstances.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed February 13, 1913.
    Rehearing denied February 27, 1913.

      Samuel S. Page and Watson J. Ferry, for appellant; Leonard A. Busby, of counsel.
    Lee & Lee and Charles C. Spencer, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

About six o’clock on the evening of June 6, 1908, plaintiff’s intestate, a man fifty-two years of age and in the employ of the “Inter Ocean” as a pressman, was struck by a south-bound car of appellant, hereinafter called defendant, while crossing Clark street, Chicago, about thirty feet north of the north line of Monroe street, and sustained injuries from which he died the same evening. The case was tried before a jury and on April 18,1911, the jury returned a verdict finding the defendant guilty and assessing plaintiff’s damages at the sum of $5,000, upon which verdict the court subsequently entered judgment.

The declaration at the time of the trial consisted of two counts. The first count charged that while plaintiff’s intestate, with all due care and diligence, was crossing said Clark street, at etc., defendant “so carelessly and improperly drove and managed the said car in a southerly direction that by and through the negligence * * * of the defendant * * * the said car then and there ran into and struck” plaintiff’s intestate, etc. The second count charged that defendant was operating a double track street railway upon Clark street, and was running two certain cars, one in a southerly direction and another in a northerly direction at or near where Clark street intersects with Monroe street, and that while plaintiff’s intestate was walking upon said Clark street, at or near said intersection, and while he was in the exercise of due care, etc., the defendant “so carelessly and improperly drove and managed the said, north-bound car and the said south-hound car that by and through the negligenee * * * of the defendant * * * one of the said cars, to-wit: the said south-bound car, then and there ran into and against plaintiff’s intestate,” etc.

The testimony of plaintiff’s witnesses tended to show that when Smith left the west sidewalk of Clark street and started to cross that street, in a southeasterly direction, at a point about thirty feet north of the north line of Monroe street, the north-bound car of defendant was standing still on Clark street immediately south of Monroe street, and the south-bound car was at a point on Clark street, near Madison street, moving south, a considerable distance away; that during the time Smith was so attempting to cross Clark street, until he was struck, he was walking “pretty fast;” that the north-bound car approached at a rapid rate of speed, not sounding any gong until Smith' had crossed the south-bound track and had reached the west rail of the north-bound track and until said car was within ten feet of Smith; that on hearing the sudden ringing of the gong of that car, Smith stopped, turned, and started to go back across the south-bound track, when he was struck by the south-bound car which had also approached at a rapid rate of speed and without warning. Only two witnesses were introduced on behalf of the defendant, the motorman and the conductor of the south-bound car, and their testimony was to the effect that the south-bound car was moving at a rate of about five miles an hour, with its gong ringing frequently; that when Smith started to cross Clark street at “a fair trot” there was nothing between him and the approaching south-bound car, and “apparently he did not look towards the car at all while he was going;” that when the motorman of the south-bound car saw that Smith intended to cross the tracks, he immediately sounded his gong vigorously, “used the sand and the brake,” but was unable to stop the car in time, and the southwest corner of the south-bound car hit Smith just as he reached the south-bound track.

Counsel for defendant urge that the judgment be reversed because (1) the verdict is not justified by the evidence in that the evidence shows that the defendant was not guilty of negligence, and that the deceased was guilty of such contributory negligence as bars a recovery, and (2) that the court erred in giving certain instructions.

It would serve no useful purpose to review in detail the testimony of the several witnesses. Suffice it to say that, after a careful examination of the evidence, we cannot say that the defendant was not guilty of the negligence charged, or that the deceased was guilty of such contributory negligence as bars a recovery. Under the evidence in this case, the questions whether the defendant was guilty of negligence as charged, or whether the deceased was guilty of contributory negligence, were questions for the jury, and we are not disposed to disturb the verdict and judgment.

Counsel urge that the court erred in giving to the jury, at plaintiff’s request, the following instruction:

‘ ‘ The jury are instructed that the relation which exists between any witness and either party, if any, in this suit, and any interest the witness may have in the result of the suit, if any, may be considered by the jury in determining the weight which ought to be given to the testimony of such witness or witnesses, taking the same in connection with all the other evidence in the case, and the facts and circumstances proved upon the trial.”

We do not think that the giving of this instruction, under the evidence in this case, was error prejudicial to the defendant. Illinois Cent. R. Co. v. Haskins, 115 Ill. 300, 308; Donley v. Dougherty, 174 Ill. 582, 584; Bennett v. Chicago City Ry. Co., 243 Ill. 420, 433; Pusateri v. Chicago City Ry. Co., 156 Ill. App. 578, 585.

Counsel also urge that the court erred in giving the following instruction offered by plaintiff:

“The court instructs the jury that if a person, without- any fault on his' part, is confronted with sudden danger or apparent sudden danger, the obligation resting upon him to exercise ordinary care for his own safety does not necessarily require him to act at such time with the same deliberation and foresight which might be required Under ordinary circumstances.”

We think that this instruction states a correct,abstract proposition of law (Chicago Union Traction Co. v. Newmiller, 215 Ill. 383, 387), which it was not error to give unless it was misleading. It was given in a long series of instructions, was number 37 of that • series, and was preceded by other instructions, numbered 3, 13, 14, 15, 19, 29 and 31, which were given at the request of the defendant, and which state in almost every possible form the duty resting upon the deceased in order to be without fault on his part. Under such circumstances we cannot believe that a jury of ordinary intelligence could have been misled by the instruction.

Nor do we think, in view of other instructions given by the court at the request of the defendant, that the court erred in modifying instruction No. 1 offered by defendant and giving the same to the jury as modified.

The judgment of the Superior Court is affirmed.

Affirmed.

Mr. Justice McSurely dissents.


author: Mr. Justice McSurely

text:
    John J. O’Heron and T. Frank Quilty, Appellees, v. American Bridge Company of New York, Appellant.
    Gen. No. 17,490.
    1. Contracts—provisions in a building contract. Where plaintiff contracted with defendant to erect a building on or before a certain time, the material to be furnished by defendant at stated intervals, a provision making an exception where an extension is granted by defendant in writing, “because of failure on part of owner to complete necessary foundations in time” or “because of failure on part of the Company to deliver the fitted steel work as before stated,” and another provision that defendant should not be liable for damages or additional compensation in case it suspended operations, but would grant plaintiff additional time, are construed to be for the avoidance of a penalty, and do not prevent plaintiff from recovering on a quantum meruit for the value of his services where defendant caused unreasonable delay in the delivery of material.
    2. Evidence—where account book made from “time slips” is admissible. In an action for services rendered on a building, it is proper to admit an account book made by plaintiff’s bookkeeper from “time slips” and various other memoranda turned in to him in the regular course of business.
    3. Interest—where error to allow. In an action for value of services rendered on a building, it is error to allow interest where the amount due plaintiff depends largely upon the construction of the terms of the contract and upon questions of fact about which there might reasonably be a difference of opinion.
    4. Appeals and errors—where interest improperly allowed is reversible error. Where interest is improperly allowed and the amount included in the verdict cannot be ascertained to be corrected by remittitur, there is reversible error.
    5. Instructions — quantum meruit where there is supplemental agreement. Where plaintiff, ignoring the contract, brings an action in quantum meruit to recover for value of services in erecting a building, and there is evidence of a supplemental agreement for defendant to pay plaintiff a certain additional amount per ton for sorting material in the yard instead of at the building site, as provided by the contract, it is reversible error to instruct the jury that if there has been a breach of the contract, plaintiff may recover a fair and reasonable compensation for any additional labor made necessary thereby.

      6. Contkacts—when action in quantum, meruit does not abrogate all terms of the oontraet. Where plaintiff, ignoring a building contract, sues in quantum meruit for value of services rendered, and there is evidence that the parties met when the work was nearing completion and, agreed that the terms of the contract providing defendant should have free use of plaintiff’s plant in the completion of the work should control, it is error to admit testimony as to rental value and to refuse defendant’s instruction that plaintiff could not recover for use of plant during such time.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Wiitdbs, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed December 19, 1912.
    Rehearing allowed January 2, 1913. Opinion refiled on rehearing, February 13, 1913.
    Knapp & Campbell, for appellant; Kemper K. Knapp and William Beye, of counsel.
    Quin O’Brien, Alanson C. Noble and O. A. Arnston, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from a judgment rendered against the American Bridge Company of New York, hereinafter called defendant, in an action of assumpsit brought by John J. O’Heron and T. Frank Quilty, co-partners as John J. O’Heron & Company, hereinafter called plaintiff.

Plaintiff’s declaration claimed damages for alleged breaches of a contract, and also claimed under the common counts. In December, 1904, the defendant entered into, a contract with the Louisville & Nashville Railroad Company for the erection of the steel work of a ten-story office building in Louisville, Kentucky. This work was sublet by defendant to plaintiff under a contract dated May 24, 1905, which contract is the foundation of the controversy before us. Under this contract the defendant was to furnish and deliver to the site of the work all of the structural steel required. Plaintiff claims that the actual manner and times of deliveries of this material were so different from those contemplated by the contract as to make it impossible to trace the contract in the course of the work. Hence it is claimed that plaintiff, ignoring the contract price, may recover upon its quantum meruit count for the reasonable value of the services rendered. The fact of delays in the delivery of material is conceded by the defendant, but it is contended that such delays were contemplated and provided for by certain provisions of the contract, which are as follows:

“The contractor agrees:
“To entirely complete work on or before August 10, 1905, except for such extension of time as will be granted in writing by the Company (defendant) (a) because of failure on part of owner to complete necessary foundations in time; (b) because of failure on part of the Company to deliver the fitted steel work as before stated.”
“That the Company shall retain the right to suspend operations under this agreement without becoming liable to him (plaintiff) for any claims for damages or additional compensation but in case of such suspension the Company will grant to him additional time to carry out this agreement equal to the time operations are suspended.”

These terms of the contract are said to provide that failure to deliver at the times provided for in the contract results only in an extension, by so much, of the time for the completion of plaintiff’s work.

There are several considerations which lead us to the . conclusion that this construction does not control: (1) Any extension of the time limit for the completion of plaintiff’s work was to be “in writing,” and no formal extension ‘ ‘ in writing ’ ’ was made. (2) We are inclined to hold that the provision for the extension of time was for the avoidance of a penalty the plaintiff might incur if it did not complete its work on time, and not as a privilege to the defendant to disregard its obligation for deliveries of materials (Nelson v. Pickwick Associated Co., 30 Ill. App. 333). (3) The contract undertook not only to regulate the time but also the order of deliveries of materials. This provision is that the defendant agrees “to ship the finished structural steel required in complete shipments of two floors, with necessary supporting columns each in man-' ner as follows: First shipment June 16th; second shipment June 23rd; third shipment June 29th; fourth shipment July 6th; fifth shipment July 13th.” It is obviously reasonable to provide that shipments of the many pieces of steel should be in some orderly relation to the course of erection of the structure. The construction contended for by the defendant would permit defendant to ship materials in the most extreme, chaotic tangle possible,—a condition which might occupy more of the time of plaintiff in disentangling than would be occupied in the actual work of construction,— and the only recompense to plaintiff for this extra work would be relief from a penalty for failure to complete the work on time. We cannot give assent to this construction of the contract.

The claim of plaintiff was that the defendant so violated its obligation not only with respect to the time but also the order of deliveries of materials, that it was impossible to trace the contract in this regard in the performance of the work. As we shall remand this case for reasons hereinafter indicated, we shall not narrate the testimony upon this point. However, for the guidance of counsel we are inclined to say that if the only question before us concerned the conclusion of the jury on this question of fact, upon the record before us and under proper instructions, we should not feel justified in disturbing the verdict.

It is urged that reversible error was committed by the court in permitting the introduction of certain books of account by plaintiff. We shall not detail the character of these books, but, briefly described, they were books kept by plaintiff’s bookkeeper in Chicago, into which were entered items taken from various and numerous memoranda made by many people; for example, the entry of items of “labor” came from hundreds of “time slips,” each slip signed by a laborer, upon which were the “0. Ks.” of the foremen and superintendents. These time slips were produced in court and tendered, together with the books of account, to counsel for defendant for inspection. No claim is made that the account appearing in the books is incorrect. Under such circumstances the court was justified in following the conclusion reached by the learned author, as stated in Wigmore on Evidence, vol. 2, section 1530: “Where an entry is made by one person in the regular course of business, recording an oral or written report, made to him by one or more other persons in the regular course of business, of a transaction lying in the personal knowledge of the latter, there is no objection to receiving that entry provided the practical inconvenience of producing on the stand the numerous persons thus concerned would in the particular case outweigh the probable utility of doing so.”

It is urged that the court erred in permitting the jury to allow interest to the plaintiff. The court refused the request of the defendant to instruct the jury that interest should not be allowed, and at the instance of the plaintiff gave an instruction touching the allowance of interest, substantially in the language of the statute. The only ground upon which plaintiff could recover interest was that there had been unreasonable and vexatious delay in payment; but there is no evidence in the record of such delay. The amount due plaintiff depended largely upon the construction of the terms of the contract, and upon certain questions of fact and of opinion, upon all of which men might disagree without being unreasonable. Furthermore, this dispute arose from an honest and genuine difference of opinion, and delay in payment arising from such a cause is not unreasonable within the meaning of the statute. “To authorize a recovery for interest the debtor must in some way throw obstacles in the way of collection, by some circumvention, contrivance or management of his own, which induces the court to withhold proceedings against him longer than it would otherwise have done.” Imperial Hotel Co. v. Claflin Co., 175 Ill. 119, 124. Moreover, plaintiff claimed $30,000 from defendant; the jury allowed plaintiff $19,500. Therefore, refusal by defendant to pay plaintiff’s demand could hardly be called unreasonable. If this court could ascertain the amount of interest included in the verdict, such error could be corrected by a remittitur of this amount; but this is impossible to determine in this instance. The refusal to give the instruction requested by the defendant, and the giving of the instruction tendered by plaintiff, under the circumstances constituted reversible error.

It was also reversible error to give plaintiff’s instruction No. 10. Defendant had introduced some testimony tending to prove a supplemental agreement for defendant to pay plaintiff a certain additional amount per ton for the extra labor imposed upon plaintiff in separating, sorting and classifying shipments of material in a yard instead of at the building site, as provided by the contract. Instruction No. 10 in substance told the jury that if there had been a breach of the contract the plaintiff might recover a fair and reasonable compensation for any additional labor made necessary thereby. This ignored the testimony touching any agreement between the parties as to the amount to be paid for such additional labor, and the instruction should not have been given.

We also hold that there can be no recovery for the use of plaintiff’s plant subsequent to November 6, 1905. The contract contained a specific provision that if the plaintiff should fail to prosecute the work the defendant might take possession of the premises and all materials, tools and appliances thereon and complete the work. Shortly before November 6th a strike was declared which included this work and made it impossible for the plaintiff to finish it. Thereupon representatives of each party met, and it was agreed to turn over the tools and plant to the defendant, which thereupon proceeded to complete the work. The testimony of the representative of the plaintiff on this point shows that the plant was turned over rent free, in pursuance of the provisions of the contract in this regard. The defendant asked the court to give the following instruction in relation to this matter:

“The jury are instructed that the contract gave to the defendant the right to use the plant of plaintiffs subsequent to November 6, 1905, to complete the work, and plaintiffs cannot recover in this case for such use.”

But the court refused to give this instruction and permitted testimony in regard to the rental value of the plant to be considered by the jury in detérmining its verdict. We think this was clearly error. While the terms of the contract with reference to the time and manner of deliveries of material might not be traced in the performance of the work, still it does-not necessarily follow that the entire contract is abrogated, especially where the parties met when the work was nearing completion and agreed that the terms of the contract with reference to the use of plaintiff’s plant in. the completion of the work should control.

For.the reasons above indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Mary A. Dickinson, Defendant in Error, v. Elizabeth T. McKay, Executrix, Plaintiff in Error.
    Gen. No. 17,721.
    1. Statute of frauds-—agreement depending on a contingency which may happen toithin one year. Where defendant agrees to reimburse plaintiff for any loss incurred from signing a bond as security for the proper performance by defendant’s son of the duties and obligations assumed in the purchase of a board of trade membership, it being possible that liability on the bond may accrue within one, year, the agreement is not within the statute of frauds.
    2. Statute of frauds-—when consideration is sufficient to make promise an original undertaking. Any act which is a benefit to one party or a disadvantage to the other constitutes sufficient consideration to support an original contract.
    3. Dismissal—as to one of joint defendants. Under Practice Act § 29, a suit in assumpsit may be dismissed as to one of joint defendants.
    4. Evidence—where bond and written contract are admissible to explain oral contract. In an action on- an oral contract, where defendant agreed to reimburse plaintiff for any loss incurred from signing a bond as security for the performance by defendant’s son of a written contract, the bond and contract are properly admitted in evidence as tending to explain the entire transaction and to show conditions under which plaintiff might be compelled to pay.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed February 13, 1913.
    Ela, Grover, March & Eckert, for plaintiff in error.
    Marvin E. Barnhart and Earl J. Walker, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

Mary A. Dickinson, hereinafter called plaintiff, brought suit and recovered a judgment against Eugene McKay, deceased, hereinafter called defendant, which judgment we are asked to reverse.

The material facts are, that in 1905 William McKay, son of the defendant, was employed by Vance & Company, a board of trade firm. The defendant was a brother-in-law of the plaintiff, having married her sister. Vance & Company and William McKay were mutually desirous that the latter should be the owner of a membership in the board of trade in order that he might operate on the floor of the board. William McKay was unable to purchase a membership, and he and Guy P. Vance, a member of Vance & Company, entered into a contract, dated December 5,1905, by the terms of which Vance & Company were to procure a membership for McKay, who agreed to pay therefor as provided in the contract. It was, among other things, agreed that McKay should be employed by Vance at a stipulated salary, and McKay agreed to pay on account of said membership a note signed by the plaintiff, Mary A. Dickinson, due one year after date, for the sum of $300, and he was, among other things, to pay monthly instalments on account of the purchase price, beginning with December 15, 1905; and he also covenanted and agreed that he would not engage in any business on his own account, and to observe certain other rules. At the same time and as part of the same transaction, the plaintiff, Mary A. Dickinson, signed and delivered said note for $300, and also signed a certain bond of the same date, wherein William McKay was principal and Hattie B. McKay, Eugene McKay and the plaintiff were sureties. This bond was given as security to Guy P. Vance for the faithful performance of the duties and obligations undertaken by William McKay in the above described agreement. Plaintiff claims that she signed the note and the bond at the request of the defendant and upon his promise to indemnify her for any payments she might thereby become obligated to make. William McKay made practieally none of the instalments of payment for the mem-, bership provided for in the contract, and on January 30, 1907, was in default thereon for a considerable amount. At this time the plaintiff, desiring to be released, paid her note for $300, held by Vance and mentioned in the contract, with accrued interest, amounting to $336.02, and endorsed a note of William McKay for $300, due one year after date, and was thereupon released from any further liability on the bond. At the same time Vance and William McKay made a new written agreement to the effect that McKay was in default on his payments and providing for a different method whereby he should pay for the membership. This new method included the delivery to Vance of the last described note for $300 endorsed by plaintiff. Subsequently plaintiff paid this note with two instalments of' interest, making $318, the total payments made to Vance by her on account of .liability under the bond being $654.02. Afterwards the membership was sold for an amount sufficient not only to pay Vance what was due him, but als'o the defendant, Eugene McKay, for payments he had made, leaving a balance of about $300, presumably retained by William McKay. Plaintiff sued the defendant to recover the amounts she had paid because of the obligation she had incurred under the bond, which she had signed relying upon the promise of the defendant to reimburse her for any loss she might incur. The judgment was for $325.

It is first urged as ground for reversal that the alleged agreement of defendant to reimburse plaintiff was a verbal contract not to be performed within a year, and therefore barred by the statute of frauds. The bond was given as security for the proper performance by William McKay of all the duties and obligations by him in the agreement with Vance to be performed, and to save Vance harmless from any and all acts of omission on the part of McKay, and to reimburse Vance for all loss and damage he might sustain by reason of said agreement or any act or transaction growing out of the same. By the agreement referred to, we find that McKay obligated himself to do many things within one year thereafter, a breach of which would impose a liability on the bond. He obligated himself to pay certain instalments in each month during the year following the date of the agreement. He was also obligated not to engage in any business on his own account, and to observe the rules referred to in section 6 of the agreement. It follows, therefore, that the liability of the plaintiff on the bond might have accrued within one year after signing same. Indeed, we gather from the record that there was a default in the payment of the monthly instalments within a very short time after this date, and probably none of them was paid.

In Cyc, vol. 20, page 200, the rule is correctly stated as follows: “An oral agreement the performance of which is dependent upon the happening of a certain contingency is not within the statute if the contingency is such as may occur within one year; and this is true, although the contingency may not in fact happen until after the expiration of the year, and although the parties may not have expected that it would occur within that period. It is sufficient if the possibility of performance within the prescribed time existed.”

And in Birks v. Gillett, 13 Ill. App. 369, 375, the court said: “Nor is the contract void because it was not to be performed within a year from the making of it, for the reason that the contingency, which might have put an end to it, might have happened within one year from that time.”

A case directly in point is Blake v. Cole, 22 Pick. (Mass.) 97, where the court said:

“But the bond in the case at bar might be forfeited for breaches within the year; and such forfeiture would have rendered the sureties liable to a judgment for the penalty * * * and other causes of forfeiture might have happened within the year, which would have subjected the suréties to judgment for the whole penalty of the bond. * * * The statute does not embrace cases which may be performed in a year, or which depend on a contingency. It must be an express and specific agreement not tobe performed in one year, to come within the act. If it may be performed within the year, it does not come within it.”

As this correctly states the rule, we are of the opinion that the statute of frauds is not applicable in this case.

It is next argued that no consideration passed from the plaintiff to the defendant; that therefore it is not an original undertaking, as under the statute an oral promise to answer for the debt of another, which is not an original undertaking, cannot be enforced. It has been repeatedly held in this state that it is not indispensible that the consideration should pass directly to the promisor, but any act which is a benefit to one party or a disadvantage to the other constitutes a sufficient consideration to support a contract. Buchanan v. International Bank, 78 Ill. 500; Milby v. Mowry, 125 Ill. App. 417; Ruehle v. Montelius, 149 Ill. App. 416; Hughes v. Sprague, 4 Ill. App. 301; and in People v. Commercial Ins. Co., 247 Ill. 92, 98, where the court lays down the general rule that “any act which is a benefit to one party or a disadvantage to the other is a valuable consideration.” It might also be held upon the authority of Thomas v. Cook, 8 Barn. & Cress. English Common Law Reports, page 358, that this was an original contract between the plaintiff and the defendant.

It is next contended that plaintiff did not commence her suit within the time required by the statute of limitations, and it is claimed that this suit was started more than five years after defendant requested plaintiff to sign the bond, five years being the limitation under the statute. In support of this claim defendant refers to certain orders appearing in the abstract, but an examination discloses nothing as to when these various orders were entered, so that we have nothing before us from which we can arrive at any conclusion as to the correctness of defendant’s claim. From what does appear in the abstract we see nothing to convince us that defendant’s point has merit.

The suit was originally started against William and Eugene McKay, but was afterwards dismissed as to William McKay, and it is claimed that in an action of assumpsit the judgment must be against all or none of the defendants. While this may have been the former rule, it is the rule no longer. Section 39 of the Practice Act permits the discontinuing of a case as to any joint defendant, and this practice has frequently been approved. Black v. Womer, 100 Ill. 328; McChesney v. Davis, 86 Ill. App. 380; Scanlon v. People, 95 Ill. App. 348; Beidler v. Richardson, 107 Ill. App. 536.

As to alleged errors in the admission of evidence, we do not think they are sufficiently serious to warrant a reversal. The bond and contract admitted in evidence were proper as tending to explain the entire transaction, and especially as furnishing the necessary evidence as to the conditions under which plaintiff might be compelled to pay. The testimony of the witness Brutch was competent as showing an admission by defendant against interest, and we see no reversible error in the ruling of the court in sustaining an objection to proof as to matters of settlement in plaintiff’s divorce suit.

The case on the evidence was peculiarly one for the consideration of the jury, and this court will not disturb the verdict unless it appears manifestly against the weight of the evidence. We are not able to so conclude, and will not disturb the judgment of the jury as to the credibility of the witnesses. Holding as we do, that we cannot say that the verdict is manifestly wrong, and finding no reversible error upon the trial, the judgment will be affirmed.

[Affirmed.


text:
    Pabst Brewing Company, Plaintiff in Error, v. Barney J. Flynn and Albert Flynn, Trading as Flynn Brothers, Defendants in Error.
    Gen. No. 17,794.
    1. Foboible entey and detainee—only recognized lessees need he made defendants. In an action in forcible detainer, the true issue is as to whether defendants were the lessees, and evidence concerning the interest of a third party in the business on the leased premises is relevant only as plaintiffs knowledge of such interest is shown, together with conduct of plaintiff evidencing recognition of such party as tenant.
    2. Foboible entey and detainee—finding—against weight of evidence'. In action in forcible detainer, a finding for defendants on the ground that a third party was the actual lessee held manifestly against the weight of the evidence.
    Error to the Municipal Court of Chicago; the Hon. Pebby L. Pebsons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed February 13, 1913.
    Lackner, Butz & Miller, for plaintiff in error.
    Mabie & Conkey, for defendants in error.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff in error, Pabst Brewing Company, hereinafter called plaintiff, filed a complaint in the Municipal Court in forcible detainer, alleging that plaintiff was entitled to possession of the store and basement of the building No. 174 North State street, Chicago, and that Barney Flynn and Albert Flynn, co-partners as Flynn Brothers, were unlawfully withholding possession thereof from plaintiff. Defendants entered their appearance, and the case was tried by the court without a. jury. The judgment was against the plaintiff, and plaintiff asks this court to reverse the judgment on the ground that it is against the legal effect of the evidence.

Plaintiff’s claim is that the defendants were its lessees, and upon their failure to pay rent and the service of the statutory five days’ notice it was entitled to possession of the premises. The sole defense is the claim that the defendants, Barney and Albert Flynn, were not the lessees, but that the lessee was another brother, namely, Richard A. Flynn, who was not a party to the suit.

Upon the trial plaintiff introduced evidence tending to show that it had a lease of the premises in question from the Baffin estate, expiring April 30, 1911, at a monthly rental of $375; that in the early part of June, 1910, Barney Flynn, one of-the defendants, called up the plaintiff on the telephone and had a talk with one of its representatives in regard to renting the place. In pursuance of this conversation an agent of plaintiff called on Barney Flynn at a saloon which he was conducting at 43 River street, and went with him to the premises No. 174 North State street. Barney inquired as to the rent, and being told that it was $375 a month said that it was too high, and was then advised by the agent to go to the office of plaintiff concerning the matter. On June 10th or 11th Barney Flynn and Albert Flynn, the defendants, called at the office of plaintiff and had a conversation with one of its representatives, in the course of which Barney said that they had come * with reference to making a deal for the place at 174 North State street. After some negotiations it was proposed to rent the place up to May 1,1911, for $300 a month, which was agreed to by the defendants. No written lease was made. Albert Flynn paid the money to cover the first month’s rent and received a receipt for the same, and also the keys of the place. Barney Flynn thereupon requested that the brewery immediately send beer down to the premises, and thereupon a beer-book was made out in the name of Flynn Brothers and delivered to the defendants. Thereafter a saloon was conducted in the premises under the name of “Flynn’s Buffet.” Barney Flynn was in the saloon from time to time, but never took any active part in the running of the business. Albert Flynn was there every day and ran the business.

In March, 1911, a representative of the plaintiff saw Albert Flynn on the premises and told him that the lease of the plaintiff from the owner ran out on May 1,1911, and that the plaintiff would not renew the same unless the Flynns agreed to pay $375 per month from May 1,1911. In April, 1911, Barney and Albert Flynn went to the office of the plaintiff and had a conversation with its representatives. They were told that the plaintiff would not renew the lease unless they would agree to pay $375 per month from May 1, 1911. Defendants agreed to this and plaintiff renewed its lease with the owner. No part of the rent for the months of May or June, 1911, was paid, and the five days’ notice reciting that the tenancy would terminate unless the rent was paid having been served on Albert Flynn, and the rent not being paid thereafter, this suit in forcible detainer was commenced.

. To support the claim of defendants that Bichard A. Flynn was the tenant, Barney Flynn testified that' Bichard was present when he first went with the agent of plaintiff to visit the premises. This is denied by the agent, who testifies that he never saw Bichard in connection with any negotiations for the place. Albert Flynn does not deny that he went with Barney to examine the premises. Barney Flynn also testifies that when he called up the plaintiff by phone he then informed them that he wished to rent the place for. a brother, whose name was Bichard. This is denied by the representative of plaintiff who talked, over the telephone, and this representative testified that he never heard of Bichard until after the suit was commenced. Barney also testifies that he took Bichard to the brewery at one time but did not see the party they were after and then left.

The license to the place was in the name of one Rossini, apparently an employee of the plaintiff. The receipt for the government license ran to Richard A. Flynn. There were also introduced in evidence nine checks, signed by Richard A. Flynn and payable to plaintiff, showing payments on account of rent for said premises between the period from January 1, 1911, and April 30,1911. No checks showing payments prior to that time were produced. There was also offered in evidence a letter signed by Albert J. Flynn on a letterhead reading, “Flynn’s Buffet, Al. J. Flynn, Mgr.” It was denied that plaintiff ever received a copy of the letter. There was also introduced in evidence a card bearing the words “Flynn’s Buffet,” and Albert swore that a duplicate of such card had been sent to plaintiff, but its receipt was denied. There was also other evidence tending to show that Richard Flynn was interested financially in the business, but no evidence that plaintiff had knowledge of such interest, if any. Richard Flynn did not appear as a witness, and it appears, that he has been an invalid for a number of years past.

While the finding of the trial court should be given great weight, especially where there is, as here, conflicting'testimony, yet, where, after due consideration, we are convinced that the finding of the trial court was manifestly against the weight of the evidence, it is our duty to reverse the judgment and remand the cause for a new trial. We are inclined to believe, from a consideration of the record before us, that the trial court made its finding upon the assumption that the sole issue was whether Richard A. Flynn had in fact an interest in the business. The true issue was as to whether Barney and Albert Flynn were the lessees. The evidence concerning the interest of Richard in the business was relevant only as plaintiff’s knowledge of such interest could be shown, together with some conduct on its part evidencing recognition by plaintiff of Richard as a tenant.

It seems clear that the leasing in the first instance was to Barney and Albert Flynn, and while it may be true that Bichard Flynn subsequently acquired an interest in the business or may have been financing it, still the negotiations for the lease were carried on and completed without any knowledge on the part of plaintiff concerning any other parties in the matter save the defendants.

Holding as we do, that the finding of the trial court was manifestly against the weight of the evidence, the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Moritz Ertl, Defendant in Error, v. Henry Aevermann, Plaintiff in Error.
    Gen. No. 17,811.
    1. Municipal court—affidavit of merits. In an action for attorneys’ fees expended, where the affidavit of merits states that services of such attorney are not worth to exceed a certain amount, and presents other facts to show no liability, a Judgment entered on the affidavit for such amount is error.
    2. Appeals and errors—final ■ order or judgment. Under the Municipal Court Act, when no final order as to the merits of a case, or final judgment, has been entered, there is no point for review by this court.
    Error to the Municipal Court of Chicago.; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed.
    Opinion filed February 13, 1913.
    Morse Ives, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

By writ of error it is sought to have this court review the action of the Municipal Court judge in striking out a portion of an affidavit of merits and entering judgment for $25 against plaintiff in error, defendant below, being a part of plaintiff’s claim, which is said to be “admitted by the affidavit of defense to be due the plaintiff. ’ ’

The claim made by plaintiff was to recover solicitors ’ fees amounting to $350, claimed to have been incurred by him in securing the reversal by this court of an order appointing a receiver, from the defendant, at whose instance the receiver was appointed. The affidavit of merits filed.by the defendant alleges in substance that the appointment of the receiver was proper, and that said receiver was appointed without bond, and that the order appointing such receiver was reversed solely because no bond was required; that plaintiff was in no way damaged by this appointment and did not pay or become liable for any legal services on account thereof. The affidavit then proceeds as follows:

“That the several items and all of the items of services enumerated and alleged to have been rendered to the plaintiff as set up in his amended statement of claim filed in this cause are not reasonably worth the sum of Three Hundred and Fifty Dollars and are not worth to exceed the sum of Twenty-five Dollars; that none of the said services were necessary to the maintenance of said Ertl’s rights.
“For further defense he sets up that Moritz Ertl did not become liable for or lay out Three Hundred and fifty Dollars as attorneys’ fees or any other sum in the prosecution of his said appeal.”

The Municipal Court struck out all of this affidavit except the following:

“That the several items and all of the items of services enumerated and alleged to have been rendered to the plaintiff as set up in his amended statement of claim, filed in this case are not reasonably worth the sum of Three Hundred and Fifty Dollars ($350) and are not worth to exceed the sum of Twenty-five Dollars (25),”

And thereupon entered judgment for $25, upon the theory that this amount was admitted by the affidavit of merits to be due.

It is apparent that the portion of the affidavit allowed to stand does not admit anything to be due plaintiff from the defendant. This averment goes solely to the question of the reasonable value of the services claimed to have been rendered. The judgment for $25 was erroneously entered, and is reversed.

Counsel urges this court to pass upon what he says is the point involving the merits of the whole controversy, namely, the sufficiency of the facts set up in the affidavit of merits as a defense. We cannot pass upon this point at this time, as the court below has entered no final order as to the merits of the case. The judgment order contains the following recital:

“The court reserves for future determination and adjudication the matter of the balance of the plaintiff’s demand claimed in said plaintiff’s affidavit of claim and the matter of whether further costs shall be al-' lowed herein to either of the parties to this cause.
“It is further ordered that the court retain jurisdiction herein and that this suit proceed as to said portion of the plaintiff’s demand in dispute as if the suit had been brought therefor.”

The trial court, as we have said, has misconceived the effect of the portion of the affidavit of merits remaining, and the judgment for $25 being set aside, the suit awaits the final judgment of the trial court. • "When such final judgment is entered, should it be adverse to defendant, then the other questions argued might properly be presented for review to this court.

The judgment is reversed.

Reversed.


text:
    William Farrell, Defendant in Error, v. Illinois Tunnel Company, Plaintiff in Error.
    Gen. No. 17,832.
    1. Continúan ce—absence of witness. It is not error to refuse a continuance on the ground of absence of a witness where affidavits of defendant’s attorneys in support of the motion are to the effect that such .witness resides in another state and that the attorneys first received information four days before the trial that he could not he present, hut from all that appears such witness may have been living in such other state for years and all the time during the pendency of the suit, and no reason appears why his deposition could not have been taken, and it is not stated or claimed that the witness promised to be present.
    2. Appeals and errors—when party bound by finding on special interrogatory as to existence of contributory negligence. Defendant on appeal is conclusively hound by a finding on a special interrogatory submitted by him that plaintiff could not by the exercise of reasonable care have avoided the injury, where he did not move or request that the finding be set aside in his motion for new trial and reasons filed in support thereof, and there is no assignment of error in that regard.
    3. Contributory negligence—when not a question of law. It cannot he said as a matter of law that plaintiff, engaged in raising and lowering elevator cars, was guilty of contributory negligence where it seems that plaintiff was instructed as to the use of an elevator which stopped automatically at a certain landing, and was transferred to another which did not so stop, hut was not informed of the difference, and that he stepped off the elevator at such landing when it seemed about to stop and was injured when he attempted to get back into it when he saw that it passed the landing without stopping.
    4. Master and servant—assumed rislc. In an action for personal injuries, where the negligence alleged is the failure of defendant to inform plaintiff that an elevator he was operating did not automatically stop at a certain landing, the risk is not an ordinary risk of the employment . which he could assume.
    5 Damages—not excessive. A verdict for $20,000 is not excessive where plaintiff, who was 32 years old at the time of the injury, lost the tips of the first three fingers of his left hand, broke one rib, sustained a Pott’s fracture- of his right ankle, causing an ankylosed condition of the joint, fractured his spine, causing almost complete paralysis from the hips down and was in the hospital 15% months, and the doctor testified that there was a fracture and displacement of bones of the spinal column causing a hemorrhage into the spinal cord, that these conditions were permanent and that plaintiff would never stand on his feet again.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Faelin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed February 13, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    John A. Bloomingston, for plaintiff in error.
    James C. McShane, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

William Farrell," hereinafter called plaintiff, was injured May 1, 1908, while in the employ of the Illinois Tunnel Company, hereinafter called defendant. He brought suit against defendant and obtained a judgment. Defendant urges five points as reasons why the judgment should be reversed. We shall consider these in the order in which they are presented.

The first and second points are stated together, thus: The court erred in refusing to grant a continuance and in refusing to permit the'defendant to file an additional affidavit for a continuance. It appears that this case was on the preliminary call of the trial judge on January 5, 1911, and marked for trial; that it appeared on the trial call on January 23rd, and daily thereafter until February 10th, when it had reached the head of the call. There was no court on February 12th and 13th, and on the morning of the 14th the case was called for trial, whereupon defendant’s attorney moved that the trial be continued on the ground of absence of a witness. Said motion was supported by two affidavits made by attorneys for defendant. These were to the effect that the absent witness resided in North Dakota, and that if present he would testify to certain things in connection with the accident; that on Febrnary 10th the attorney for defendant first received information that this witness could not be present at the trial. The suit was commenced in October, 1909, and defendant served with summons October 21, 1909. For aught that appears to the contrary, the witness may have been living in North Dakota for years before the date of the trial, and during all the time of the pendency of the suit. There is no reason apparent why his deposition could not have been taken in ample time to be used upon the trial. Furthermore, it is not stated or claimed that the witness had promised to be present. It is clear that due diligence on- the part of the attorney for the defendant was not shown, and there was therefore no error in refusing to grant a continuance. Marble v. Bonhotel, 35 Ill. 240. The additional affidavit sought to be filed adds nothing substantially material to the first affidavit filed, and there was no error in refusing to permit it to be filed.

The next point urged is that the plaintiff assumed the risk and was guilty of contributory negligence as a matter of law. The facts in brief are that plaintiff had been working for defendant about nineteen days before the day of the accident. The first three days he worked as a switchman, raising and lowering elevator cars; then for two weeks he was unloading mail from the cars; then went to switching again, and was so working for about three days when he was injured. During this time of employment there were but two elevator shafts—the one in question and another one—■ that had more than" one floor or landing above the tunnel. There were from eight to twelve elevators then in use. The elevators were so constructed that upon their upward trips they would stop automatically at the floor or landing, and in the same manner on their downward trips at the bottom. When plaintiff was employed he was turned over to one of the motormen, who gave him the only instructions he received with reference to the elevators. Upon the first occasion that he was required to use an elevator, this motorman showed him how to operate it, and showed him that when it was started from the bottom it stopped automatically at the top, and that when it was started from the top it stopped automatically at the bottom. These were the only instructions given, and that was the only occasion that plaintiff was instructed by anyone in reference to the elevators. While switching, plaintiff raised and lowered cars about ten times daily on the various elevators, but never until the day of the . accident had he worked at either of the elevator shafts where there was more than one floor or landing above the tunnel, and no one had ever told him, and he did not know, that there was more than one floor or landing at any of the elevators.

The negligence charged in the first count of plaintiff’s declaration is that defendant had wrongfully and negligently failed and neglected to instruct or inform plaintiff that there was more than one landing or floor at said elevator, and that said elevator on its upward trip would not stop automatically at the landing or floor next above the tunnel. On the day of the accident plaintiff was directed to raise a car at the elevator in question, which was one of the two elevator shafts where there were two floors or landings above the tunnel, and where the elevator, ascending, would not stop automatically at the first. landing above the tunnel; but plaintiff was ignorant of this fact. He started the elevator, and was riding upon it as it slowly ascended. When it reached the first landing he saw the door leading from the shaft and the threshold or sill at the bot-. tom of the door, about six or eight inches wide, which appeared to be and were in fact in all respects the same as they were in all the elevators which he had previously used. These doors were raised by a man standing on these thresholds and stooping down and pulling up on a handle attached near the bottom of the doors. At this time, when the elevator was a few inches below the level of the threshold, and when, as plaintiff testified, the elevator appeared to be stopping, plaintiff, supposing that it would stop when it reached the threshold, faced the door and stepped from the elevator onto the threshold and reached down for the handle to raise the door. While attempting to do this he felt the elevator grazing his legs, and turning around quickly he discovered that the elevator was then about a foot above the threshold and still ascending. He tried to get back into it but could not do so, and to avoid falling he caught hold of the elevator platform and with his body hanging below the platform he was drawn upward until it reached the next floor, at which time three of the fingers of his left hand were crushed off; his hold Ivas broken, and he fell about 40 feet to the bottom of the shaft.

The most obvious answer to defendant’s contention that there was contributory negligence by the plaintiff, is that at the request of the defendant the court submitted to the jury the following special interrogatory: “Could the plaintiff, William Farrell, by the exercise of reasonable and ordinary care on his part, have avoided the injury on the occasion in question?” To this the jury returned the answer, “No.”

Defendant filed a motion for a new trial, and a number of written reasons in support thereof. It did not, however, either in its motion for a new trial or in the written reasons filed in support thereof, or otherwise, move or request that the special finding be set aside, and there is no assignment of error in that regard. In this state of the record, defendant is conclusively bound by this finding. City of Aurora v. Rockabrand, 149.Ill. 399; Pennsylvania Coal Co. v. Kelly, 156 Ill. 9; Empire Laundry Machinery Co. v. Brady, 164 Ill. 58; Voigt v. Anglo-American Prov. Co., 104 Ill. App. 423; Pittsburgh, C. C. & St. L. R. Co. v. Bovard, 12l Ill. App. 49; Tate v. Missouri Pac. Ry. Co., 157 Ill. App. 105. Furthermore, the question of contributory negligence is usually a question of fact for the jury to determine. The conduct of plaintiff in stepping from the elevator, as he did, to open the door, expecting that the elevator would automatically stop, might be considered by persons ordinarily prudent as a reasonable thing to do under the circumstances. It is clear that no one could say that as a matter of law plaintiff was guilty of contributory negligence, and the finding of the jury in this regard cannot be disturbed.

As to the claim that plaintiff assumed the risk, as we have above stated, the negligence of the defendant alleged was the failure to properly inform and instruct plaintiff. This risk was not an ordinary risk of plaintiff’s employment which he could assume. City of La Salle v. Kostka, 190 Ill. 130; Schillinger Bros. Co. v. Smith, 225 Ill. 74; Superior Coal & Mining Co. v. Kaiser, 229 Ill. 29. Whether or not plaintiff assumed the risk is ordinarily a question for the jury to determine, and we cannot say in this case that the conclusion of the jury was contrary to the evidence. Consolidated Coal Co. of St. Louis v. Gruber, 188 Ill. 584; Chicago & E. I. R. Co. v. Kimmel, 221 Ill. 547; North Chicago St. R. Co. v. Dudgeon, 184 Ill. 477.

It is argued that the court erred in refusing to give to the jury the second interrogatory asked by defendant. An inspection of the same makes it apparent that this interrogatory was fully covered by the first interrogatory, which was given.

The alleged improper remarks in argument by counsel for plaintiff do not furnish any ground for holding them to amount to prejudicial error; and the claim that the preponderance of the evidence is in favor of the defendant as a matter of law is not borne out by the record.

The judgment was for $20,000, and it is argued that this amount of damages is excessive. The plaintiff at the time of the injury was 32 years old. He fell a distance of about 40 feet to the bottom of the tunnel, and before falling he lost the tips of the first three fingers of his left hand. One, or perhaps two, ribs were broken from the fall. There was also a Pott’s fracture of plaintiff’s right ankle, resulting in an ankylosed condition of the joint. He received also a fracture of the spine, resulting in almost complete paralysis from his hips down. He remained in the hospital for 15y2 months. His only means of locomotion is by riding in an invalid’s tricycle, which he propels by hand. The doctor testified that there was a fracture and displacement of two or more bones of the spinal column; that there was pressure on the spine, and that the fracture of the articular process together with the displacement had caused a hemorrhage into the spinal cord. He further testified that these conditions were permanent, and that plaintiff would never get any better and never stand on his feet again. With such a severe injury resulting to plaintiff, we cannot conclude that the damages are excessive.

In view of the conclusion we have reached, that the judgment should be affirmed, we do not deem it necessary to discuss the points raised by assignments of cross error by the defendant in error.

For the reasons above indicated the judgment is affirmed.

Affirmed.