text:
    William A. Wieboldt, Appellee, v. Best Brewing Company, Appellant.
    Gen. No. 15,808.
    1. Agency—when knowledge of agent cannot he imputed to principal. The knowledge of an agent can be imputed to the principal only when it relates to facts within the scope of the agency.
    2. Agency—extent of authority of agent to collect rent. An agent authorized to collect rents has no authority to change the terms of the lease or to consent to a substitution of tenants or occupants.

      3. Forcible detainer—when lies. Forcible detainer can be maintained only by persons who claim the right to present possession of the lands and tenements in question, and only against persons who are in such actual possession at the time suit is brought, with the one exception provided for in section 15 of the forcible entry and detainer act, which refers to the joinder of a lessee when a sub-lessee is in possession without the consent of the lessor.
    Forcible entry and detainer. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of facts.
    Opinion filed October 4, 1911.
    Winston, Lowy & McGinn, for appellant; Charles F. Lowy, of counsel.
    Loesch, Scofield & Loesch, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

This is a suit in forcible entry and detainer begun by appellee before a justice of the peace, against Henry A. Westendorf, Best Brewing Company, E. W. Wallbaum, Mrs. Lacey, Lorin J. Howard, Abraham Gordon, Milton H. Spier and Leonard Spier, as defendants. It was there tried, appealed to the Circuit Court and there again tried, resulting in separate judgments against the several defendants. The defendant, Best Brewing Company, alone appeals to' this court.

On March 23, 1903, appellee leased to Fabish, Kramer and Dumas the premises located at 1061 to 1071 Lincoln avenue, Chicago, for the term of five years to commence May 1,1903, and end April 30,1908, for the sum of $21,000, payable in monthly installments of $350, at the office of Haberer and Snow Company. The lease contained the stipulation that the lessees should not sub-let the whole or any part of the premises, or allow the same to be occupied by any other person or assign the lease, without the written consent of appellee; that all right to any notice or demand under any statute of the state relating to forcible entry and detainer was expressly waived, and that in case of default in the payment of rent, the appellee, at his election, and without notice, could declare the term ended. On June 15, 1903, this lease was assigned to Henry A. Westendorf with the consent in writing of appellee. On October 26, 1904, Westendorf, without the written consent of appellee, sub-let part of the premises to appellant for a term commencing November 1, 1904, and ending April 30, 1908, at a rental of $100 per month. Other parts of the premises were sub-let by Westendorf to various persons. On December 14, 1905, appellant leased the same premises it had rented from Westendorf, and for the same price, to Gordon Brothers, who went into possession. At the'time this suit was commenced Abraham Gordon was in possession of the premises leased by appellant to Gordon Brothers, and no part of the premises in question was then in the actual possession of appellant. The rent that was paid by the Gordons was paid to appellant. At the time suit was commenced at least one month’s rent or $350 was due from Westendorf to appellee and unpaid. There is nothing in the record to show that appellee ever received any rent from any of the sub-tenants of Westendorf or any one in possession of any part of the premises in question under him. Haberer & Snow Company, by an arrangement between them and Westendorf, had charge of the collection of the rents from the various occupants of the premises for Westendorf for a period of six months prior to the commencement of this suit, and during that period collected rents from some of the occupants of parts of the premises, including at least one installment of rent for the part occupied by the Gordons, but that rent was usually collected by Westendorf himself. When there was enough so collected to make one month’s rent, the same was turned over to appellee. Whenever during a month there was not enough collected from the various occupants of the premises to pay the rent, Westendorf, when he had the money, would make up the deficiency, and it was then turned over to appellee. When Haberer & Snow Company were collecting rents from the occupants of the premises, they were acting for Westendorf and not for appellee. There is' nothing tending to show that appellee knew that Westendorf had any sub-tenants, or if he had, who they were, or whether they had paid their rent, beyond the fact that they were made defendants to this suit, unless the knowledge of Haberer & Snow Company of those facts can be imputed to appellee.

The knowledge of an agent can be imputed to the principal only when it relates to facts within the scope of the agency. Webber v. Indiana Nat’l. Bank, 49 Ill. App. 336; Mann v. Reed, 49 Ill. App. 406; Seaverns v. Presbyterian Hospital, 64 Ill. App. 463, and 173 Ill. 414; The Sangamon Coal Mining Company v. Wiggerhaus, 122 Ill. 279.

The only authority-Haberer & Snow Company had to act for appellee was that given in the lease that was assigned to Westendorf, which was to receive the rents from Fabish, Kramer and Dumas up to the time they assigned their lease and after that from their assignee, Westendorf. They had no authority to receive rents from any one else or to consent to the change of the terms of the lease, or to a substitution of tenants or occupants. Whatever knowledge they acquired, therefore, as to who were occupying the premises or how, to whom, or when the rents were being paid by the occupants, other than Westendorf himself, was in relation to facts wholly outside of the scope of their authority as agents of appellee, and their knowledge of such matters cannot be imputed to him, neither can anything Haberer & Snow Company did in regard to those matters be deemed to be the act of appellee or operate to constitute appellants, or any of the sub-tenants or those occupying parts of the premises under them, the lessees of appellant.

Forcible entry and detainer is a possessory action. It is a statutory proceeding in derogation of the common law and must be strictly followed. Schaumtoeffel v. Belm, 77 Ill. 567; Bowman v. Mehring, 34 Ill. App. 389; Fitzgerald et al. v. Quinn, 165 Ill. 354. It can be maintained only by persons who claim the right to present possession of the lands and tenements in question, and only against persons who are in such actual possession at the time suit is brought, with the one exception provided for in section fifteen of the forcible entry and detainer act. (Chap. 57 R. S.) Preston v. Davis, 112 Ill. App. 636; Bowman v. Mehring, 34 Ill. App. 389; Hersey v. Westover, 11 Ill. App. 197.

Section 15, chapter 57 E. S. is as follows:

“Whenever there shall have been one lease for the whole of certain premises, and the actual possession thereof, at the commencement of the suit shall be divided in severalty among persons with or other than the lessee, in one or more portions or parcels, separately or severally held or occupied, all or so many of ■ such persons, with the lessee, as the plaintiff may elect, may be joined as defendants in one suit, and the recovery against them, with costs, shall be several, according as their actual holdings shall respectively be found to be.”

The only exception to the general rule, contained In this section, is, that the lessee who is not in actual possession may be joined with other persons who are in actual possession of different parts of the premises, and several judgments be rendered against them. The proof is positive that appellant was not in actual possession of any portion of such premises at the time this suit was begun. Neither was appellant a lessee of the appellee. It was a sub-lessee of the lessee without the consent of the appellee and in violation of the express terms of the lessee’s lease.

Appellant being neither a lessee of appellee or in actual possession of any part of the premises in question at the time this suit was instituted, the judgment against it was erroneous.

■ The court erred in refusing to give the instruction to the jury asked by appellant, at the close of all the evidence, to find it not guilty.

Other rulings of the court are complained of by appellant, but as no reason is perceived why this case should be remanded, they are not considered.

The judgment of the Circuit Court is, therefore, reversed, without remanding the cause, with the finding of the facts to be incorporated in the judgment, that appellant was not a lessee of appellee, and was not in actual possession of the premises when this suit was commenced.

jReversed without remanding, with finding of facts.


source: Caselaw Access Project

author: Mr. Justice Graves

license: Public Domain

text:
    City of Chicago, Plaintiff in Error, v. Chicago & Northwestern Railway Company, Defendant in Error.
    Gen. No. 15,818.
    1. Statute of Limitations—when does not run against municipal corporation. The Statute of Limitations will not run against a municipal corporation in actions involving strictly public rights.
    2. Statute of Limitations—when runs against municipal corporation. Horses owned by the city of Chicago, used in connection with its fire department, paid for with its money collected from its citizens, are held in its private capacity and where injury is done to them the Statute of Limitations runs against the cause of action.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    Edward J. Brundage, for plaintiff in error; Charles M. Haft, of counsel.
    Daniel Byrnes, for defendant in error; Edward M. Hyzer, of counsel.
   Mr. Justice Graves

delivered the opinion of the court.

This suit was begun in the Municipal Court by the City of Chicago, plaintiff in error here, against the Chicago & Northwestern Railway Company, defendant in error here. The claim of plaintiff in error, as shown by the bill of particulars, is, in substance, for killing three horses, valued at $600, by the defendant’s negligence in operating an engine and train of cars' on the 5th day of November, 1903.

The case was tried by the court without a jury on the following stipulation of facts, namely:

“It is stipulated between the plaintiff and the defendant that the plaintiff is a municipal corporation, duly organized and existing under and by virtue of the laws of the State of Illinois.
“That on or about the 5th day of November, A. D., 1903; and for some time prior thereto, said City of Chicago was the owner of three horses which had been used, and were on the day aforesaid used by it for the exclusive purpose of conducting and maintaining a fire department for the purposes which fire departments are ordinarily maintained by municipalities.
“It is further stipulated and agreed that said horses were purchased and used by said City of Chicago for the exclusive purpose of maintaining a fire department for the protection of life and property in the City of Chicago.
“It is further stipulated and agreed that while the fire department of the City of Chicago was making a run in the usual manner to a fire in said City along Wood street, one of the public thoroughfares of said City of Chicago, at a point where said street intersects the tracks of the defendant company, and while in the act of crossing said tracks along said Wood street, the train which was then run by said defendant company along said tracks ran into and killed said horses, which were of the value of five hundred dollars ($500).
, “It is further stipulated and agreed that said defendant maintained gates at said Wood street crossing of said railroad tracks which it was in the habit of lowering when trains were approaching said crossing, and which it kept raised when trains were not approaching said crossing; that on the occasion in question as said fire department approached said crossing said gates were raised and so remained until said horses were struck by said train.
“It is further stipulated and agreed that more than five years have elapsed between the time that plaintiff’s right of action herein accrued and the time that it started this suit to recover on said right of action.” At the trial, the court, at the request of plaintiff in error, held to be the law the following propositions, viz.:
“The court holds as a matter of law that exclusive of the statute of limitations the plaintiff is entitled to recover from the defendant the sum of $500.”

And refused to hold to be the law the two following propositions requested by plaintiff in error, viz.:

“The court holds as a matter of law that in the maintenance of its fire department and the property used by it in so doing, the City of Chicago is acting in its public or governmental, as distinguished from its private or corporate, capacity.
“The Court holds as a matter of law that the statute of limitations has no application in so far as the case now pending before this court is concerned.”

The finding of the court was for the defendant and judgment was entered accordingly. ■ The question this court is asked to determine is whether the statute of limitations is a bar to this action.

It is conceded by plaintiff in error that, if the property in question was held by it in its private capacity, the statute of limitations bars the action, but it insists the property was not so held, but was held in its “public capacity,” and that the statute of limitations does not run against actions by a city to enforce a right in regard to property so held by it.

.The well settled law in this state is that the statute of limitations will not run against a municipal corporation in actions involving strictly public rights. Brown v. Trustees of Schools, 224 Ill. 184,- and cases there cited. Controversies over the application of this rule more frequently arise from a failure to understand what are and what are not “public rights,” than from a failure to understand the rule. In a sense, every right possessed by a municipal corporation is a public right, and every class of property held by it is held in its public capacity, and for public use, but for the purpose of distinguishing such rights, as only that part of the public included within the corporate limits of a municipality are interested in, from such rights in which all the people of the State are interested, the former class is designated by law writers and courts as “private rights,” and the terms “public rights,” “public uses” and “public capacity” are used only with reference to such rights, uses and capacities, as all the people of the State are alike interested in. To actions brought in relation to “public rights,” using the term to indicate such rights as belong to all the people of the State alike, the statute of limitations does not apply, while as to actions brought in relation to “private rights,” using that term to designate such rights as are limited to some local subdivision or municipality, such as a city, village, school district or the like, the statute of limitations applies to the same extent as to individuals. Brown v. Trustees of Schools, supra; Dillon on Municipal Corporations, 3rd Ed., Vol. 2, Sec. 675.

As illustrative of the class of rights that are strictly public, and to which the statute of limitations does not apply, the Supreme Court in the Brown case points out the use of streets and highways which, while they are maintained by municipalities or political subdivisions of the State, are not so maintained for the use of the inhabitants of such municipality or locality alone, but are maintained for the free and unobstructed use of all the people of the state. In that connection, the Supreme Court, on page 188 of that opinion, uses the following language:

“Such rights are clearly distinguishable from the rights or interests of the inhabitants of a locality in property acquired for a mere local use such as city offices, a library site, or the use of a fire department. Such property is held and used for strictly local purposes.”

The stipulated facts on which this case was tried shows that the horses in question were purchased by plaintiff in error, and were its property. Only such persons as reside or own taxable property within the limits of the City of Chicago were injured by the loss of these horses, or could be benefited by a recovery for such loss. They were purchased by the City with its own money, and could have been sold by the City without let or hindrance from the people of the state at large, or any officer or set of officers of the state, and in case of such sale, or a recovery for their loss, the money would have belonged to the City.

Plaintiff in error cites the case of Wilcox v. City of Chicago, 107 Ill. 334, and the case of Tollefson v. City of Ottawa, 228 Ill. 134, as holding that the City, in maintaining a fire department, was acting in its public or governmental capacity, as distinguished from its private or corporate capacity, and was, therefore, not liable under the principle of respondeat superior for the negligence of its officers conducting that department, and argues therefrom that the property, used by it in maintaining its fire department, is held by it for the use of the general public. These cases clearly have no bearing on the question here before this court. Whether a fireman, a policeman, or a nurse at the hospital are servants or officers of the city, or whether the city is liable under the principle of respondeat superior for the negligent acts of such persons, can, it seems to us, throw no possible light on the question as to what capacity and for whose benefit the property used by these several persons, in the performance of their duties, is held by the corporation. What is said in those cases to the effect that the city was not interested in its “corporate capacity” in the services rendered by the firemen, and that such firemen, in rendering such service, acted rather as officers of the city, charged with a “public service,” was said with reference to the distinction between what are sometimes called public or governmental powers and powers that are private or proprietary. Neither of these classes of powers has any relation to persons or rights outside of the corporate limits of the municipality clothed with them. Public legislative or governmental powers, as referred to in these opinions, are such powers as are conferred upon such municipalities to enable them the better to aid the state in properly governing that portion of its people residing uñthin the municipality. A private or proprietary power or franchise, as referred to in these opinions, is one of an exceptional or non-municipal nature, which sometimes is conferred upon municipalities, and are frequently conferred on private corporations, or individuals, as, for example, the power to erect a public wharf and charge tolls for its use, or to supply its inhabitants with water or gas, charging them therefor and making a profit thereby. Dillon on Municipal Corporations, vol. 1, sec. 39.

We are clearly of the opinion that the horses in question were the private property of the corporation, and that no public right, properly so called, is involved in this litigation.

The two refused propositions of law were properly refused. The stipulation of facts shows that this case was not begun within five years after the cause of action accrued, and the action, being for the enforcement of a purely private right, is barred by the statute of limitations.

Finding no error in the record, the judgment of the court below is affirmed.

Affirmed.


author: Mb. Justice Graves

text:
    Helena Klein, Defendant in Error, v. William J. Reinhardt et al., Plaintiffs in Error.
    Gen. No. 15,823.
    1. Dedication-—what not acceptance. The approval of a plat by the public authorities is not an acceptance of a proffered dedication.
    2. Dedication—when certificate of town cleric does not show approval of plat. A certificate of a town clerk that the plat was “approved" is a mere conclusion and does not establish the fact of approval.
    3. Dedication—what essential to constitute. To constitute a valid dedication there must be the intention of the owner to dedicate and an acceptance by the public authorities, which acceptance must be shown by proof that is clear, satisfactory and unequivocal, and may be shown by some order, resolution, or action of the public authorities made and entered of record, or it may be implied from acts of those authorities recognizing the existence of the street or alley and treating it as a public way.

      4. Dedication-—xohat express repudiation. Where, after a dedication of land for a street or alley is proffered to a municipal corporation, the legislative authorities of such corporation, instead of formally accepting it, pass an ordinance declaring it to be vacated, such act amounts to an express repudiation of the proffered dedication, particularly when in the meantime the lands so offered for a street or alley have never been worked, used or recognized as such.
    5. Dedication—when ordinance of vacation valid. Held, that the ordinance in question in this case was adopted and passed in compliance with the provisions of the statute. •
    6. Evidence—of what judicial notice taken. Public acts of the legislature will be judicially noticed by the courts.
    Eoreible entry and detainer. Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    C. A. Fitch, for plaintiffs in error.
    Goodman, Frank & Colbert, for defendant in error; Charles Goodman and Mary Lee Colbert, of counsel.
   Mb. Justice Graves

delivered the opinion of the court.

This is an' action in forcible entry and detainer brought by Helena Klein, defendant in error, against William J. Beinhardt and Matthias Tennis, plaintiffs in error, in the Municipal Court of Chicago for the possession of a strip of land described in the complaint as “that strip or parcel of land 15 feet, more or less, in width, lying between the west line of lot 15 and the east line of lots 19 and 20, all in the subdivision of the west 250 feet of the south 1/2 of block 6, in the sub-division of that part lying northeast of Lincoln Avenue of the N. W. % of section 29, Township 40, North Bange 14, east of the 3rd principal meridian, in Cook County, Illinois.”

The cause was tried in the Municipal Court without a jury, and resulted in a finding and judgment against the defendants, plaintiffs in error here. Plaintiffs in error claim neither title nor right of possession of the strip of land in question, and admit that, if it is not a public alley, defendant in error has good title to it; but assume that by a plat made October 23, 1883, at the instance of the Poor Hand Maids of Jesus Christ, who were then the owners of the tract of land of which the strip in question is a part, they dedicated it to the town of Lake View as a public alley, and that the town of Lake View duly accepted the dedication, and thereupon became the owner of it, and insist that it has never been vacated and is.still the property of the town of Lake View.

On that claim as to the facts, plaintiffs in error invoke the application of the rule that in forcible entry and detainer a person, suing, must show a clear right to possession in himself, and cannot rely upon the lack of right to possession in those whom he seeks to dispossess.

It is not claimed by plaintiffs in error that the plat is in such conformity to the statute as to convey the fee to the strip of land in question to the town of Lake View for an alley, but the claim seems to be that the intention of the owner to dedicate it for an alley is thereby disclosed, and that the same was accepted by the public authorities of that town, and that upon such acceptance the dedication became complete.

The contention of plaintiffs in error, that the intention of the owners to dedicate the strip of land in question to the town of Lake View for an alley is sufficiently shown by the making and recording of the plat by the authority of the owner, is undoubtedly correct, but the record is barren of. any evidence tending to show that the same was ever worked or improved, or in any way accepted by the public authorities of the town of Lake View, or that the public ever used it as an alley. On the question of acceptance counsel for plaintiffs in error has contented himself by saying, “It is admitted that there was a valid dedication of this alley made by the Poor Hand Maids of Jesus Christ, who were at one time the owners of this complex of land and sub-divided the same into lots, blocks, streets and alleys, and that the plat showing such sub-division was approved by the board of trustees of the Old Town of Lake View.” We have been unable to find such admission in the record. It is stipulated that the Poor Hand Maids of Jesus Christ had a tract of land which included this strip platted and that such plat was approved by the trustees of the town of Lake View, but that comes far short of an admission that the dedication proffered by the making of the plat was a valid dedication, or that it had been accepted. The “approval” of a plat by the public authorities is a very different thing from the “acceptance” of a proffered dedication by such authorities. Section 13 of chapter 115 of R. S. of Ill. provides, “It shall be unlawful for any recorder to record any map, plat or sub-division of land situated in any incorporated city, town or village until the same has been approved by the legislative authority of the city, town or village in which such land may be situated * * * ,” and provides a penalty of $200 for a violation of that section. The requirements of that section apply to all maps, plats or subdivisions of lands situated within the boundaries of such municipal corporations, whether such maps, plats or subdivisions include any proposed dedication for streets, alleys or other public grounds or not, and are merely prerequisites to the recording of the plat and have no reference to the question of acceptance of any proposed dedication of lands for public use. There is no reason, however, why a formal acceptance of a proffered dedication might not be made as a part of the same act, ordinance or resolution by which the map, plat or subdivision is approved by the legislative authorities of the municipal corporation, if such course is pursued, but in the case at bar all there is to show what action was taken by the town authorities, even as to the approval of the plat, is found in a certificate attached to the plat and signed hy the town clerk, which is as follows:

“I, James J. Wilson, do hereby certify, that I am Town Clerk of said Town of Lake View, and keeper of the records and seal thereof, and that this plat was approved by the Board of Trustees of said town at a meeting of said Board held on the 5th day of November, A. D. 1883.”

This certificate, although made in attempted compliance with section 13, chapter 115, above quoted, amounts to nothing more than the conclusion of the clerk as to what the board of trustees did, and does not even purport to show what the record of their action contains, and has no evidentiary value even to show the approval of the plat, much less the acceptance of the proffered dedication, and even if it be treated as evidence of what the record contains, it has no reference to the question of an acceptance of a dedication. To constitute a valid dedication, there must be the intention of the owner to dedicate and an acceptance by the public authorities, which acceptance must be shown by proof that is clear, satisfactory and unequivocal, and may be shown by some order, resolution, or action of the public authorities made and entered of record, or it may be implied from acts of those authorities recognizing the existence of the street or alley and treating it as a public way. People v. Johnson, 237 Ill. 237; City of Chicago v. Drexel, 141 Ill. 89; City of Carlinville v. Castle, 177 Ill. 105; Village of Winnetka v. Prouty, 107 Ill. 218; Hamilton et al v. C. B. & Q. R. R. Co., 124 Ill. 235; City of Chicago v. C. R. I. & P. Ry. Co., 152 Ill. 561.

Aside from the fact that the record is barren of affirmative proof that the town authorities accepted the offered dedication, there is another circumstance that sheds light on the question of acceptance. On May 4, 1885, an ordinance was passed in terms vacating the alley shown on the plat in question, being the strip of land involved in this litigation. This was about eighteen months after the plat was made and was the first and only expression of the town authorities as to whether an alley at that point was desired by the corporation, and that expression was in the negative, and was made in the most formal manner. This action of the board of trustees, taken in connection with the fact that the alley had never been used as such by the public and had never been worked or improved or recognized as an alley by the corporate authorities, amounts to an express repudiation of the proposed dedication. The facts shown by this record did not constitute a dedication of the strip of land in question, and the title to it remained in the Poor Hand -Maids of Jesus Christ, notwithstanding the making of the plat,' and by successive conveyances from them and their grantees, it became the property of the defendant in error,, and she was the owner of it and entitled to its possession at the time this suit was brought.

Even if there had been a valid dedication, completed by acceptance of the land in question, and the town of Lake View had become the owner of it on the date the plat was made, the judgment in the court below would still be correct, unless, as plaintiff in error contends, the ordinance of May 4, 1885, was ineffectual as a vacation ordinance.

The contention made by plaintiffs in error against the validity of that ordinance is that it was not passed in accordance with the provisions of section 1 of chapter 145, R. S., in two respects:

“First, because there is no evidence in the record to show the number of members which were authorized by law to be elected for the board of trustees of the town of Lake View; and
Second, the requirements of the statute were not complied with, for the reason that the names of the members of said board voting on said vacation ordinance were not entered on the journal.”

Section 1, chapter 145, R. S., is as follows:

“* * * no city council of any city or board of trustees of any village or town, whether incorporated by special act or under any general law, shall have power to vacate or close any street or alley or any portion of the same except upon a three-fourths majority of all the aldermen of the city or trustees of the village or town, authorized by law to be elected, such vote to be taken by ayes and noes, and entered on the record of the council or board, * * * . ’ ’

Section 1 of an act entitled “An Act to incorporate a board of trustees for the town of Lake View in Cook county,” approved and in force February 16, 1865 (See Private Laws of Illinois, 1865, Vol. 2, Page 484), provides, “* * * * the supervisor, assessor and commissioner of highways of said town of Lake View and their respective successors in office are hereby constituted and declared to be ex officio a board of trustees of said town of Lake View. ’ ’

And section 21 of that act provides, “This act shall be deemed a public act and shall take effect and be in force from and after its passage. ’ ’

Cook county was at the time that act went in force and ever since has been under township organization. At the time of the passage of the vacation ordinance in question, viz., May 4,1885, one supervisor, one assessor and three commissioners of highways were required by law to be elected in each township in counties under township organization. (See R. S., chapter 139, art. 7, section 1, and chapter 139; art. 1, sec. 16.)

These various acts of the legislature are public acts of which the court will take judicial notice without proof. C. & A. Ry. Co. v. Dillon, 123 Ill. 570; Vance v. Bankin, 194 Ill. 625. From these statutes, when construed together, it is found that the board of trustees of the town of Lake View, when the ordinance in question was passed, was composed of five persons, viz., the supervisor, assessor and three commissioners of highways of the town.

The record of the proceedings of the board of trustees of the town of Lake View at a meeting held May 4,1885, shows that four trustees, namely, John McConnell, supervisor, Bernard F. Weber, assessor, John Hufmeyer and C. M. Fetterstrom, commissioners of highways, were present and that one trustee, G-. H. Carver, commissioner of highways, was absent; that the ordinance in question was “unanimously adopted and passed, the ayes and nays being called resulted in each member present voting in the affirmative.”

Nothing would have been added to the certainty of that record, if the names of those present had been rewritten in connection with the roll call. The record of the meeting shows that four of the five members of the board were present and their names were entered in the record, the ayes and noes were called on the passage of the ordinance, and that fact is entered in the record, as is also the fact that they all voted for the passage of the ordinance. The four affirmative votes constituted the required three fourths of all the trustees authorized by law to be elected members of that board.

We think the provisions of section 1 of chapter 145, R. S., above quoted, were substantially complied with, and that the ordinance was properly passed. Barr v. Village of Auburn, 89 Ill. 361; Village of Belknap v. Miller, 52 Ill. App. 617.

Even if there had been a valid dedication of this strip of land on October 27, 1883, this ordinance would have vacated it, and the title would have vested in the owner of the land immediately adjoining (see section 2, chapter 145, R. S.). On the date of the passage of this ordinance one Margaretta Schuetz, from whom defendant in error acquired title to this strip of land, was the owner of all the land adjoining it, and would have acquired title to it by operation of law on the passage of the vacation ordinance, if she had not already been the owner. The principle that one who purchases lots adjacent to a platted alley purchases .them with reference to the existence of that alley and ¡has a right to insist that the alley shall remain open for public use has no application here, because neither of the plaintiffs in error acquired title to any land included in the plat, until nearly twenty-one years after the passage of the ordinance vacating the alley, and certainly did not do so with reference to the existence of that alley.

From every standpoint from which this record is viewed the judgment of the court below was correct, and the same is affirmed.

Judgment affirmed.


text:
    International Phonographic Language Schools, Defendant in Error, v. Thomas F. Dow et al., Plaintiffs in Error.
    Gen. No. 15,837.

      Bonds—when covers advancements. A surety is liable for advancements on account of commissions not earned and not repaid at the termination of the employment of the principal where the bond executed by him provided at the termination of the principal’s employment for the return of “all moneys then due * * * by reason of * * * said advances. ’ ’
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    William C. Asay and Jeremiah B. O’Connell, for plaintiffs in error.

      Beach & Beach, for defendant in error.
   Mr. Justice Graves

delivered the opinion of the court.

Plaintiff in error, Thomas F. Dow, entered into a contract with defendant in error to sell for it phonographic language outfits on commission, and thereupon gave to defendant in error a bond executed by himself and one Wilson F. Henderson, the other plaintiff in error, in the sum of $50, conditioned as follows :

“The condition of the above obligation is such, that whereas .................... has this day entered the employ of International Phonographic Language Schools for the purpose of selling the phonographic language outfits manufactured and sold by said company, and while in such employ, will on behalf of said company make certain collections of payments from the purchasers of said outfits, and will receive for his own use a salesman’s outfit consisting of traveling bag, graphophone, records, books, etc., and may from time to time receive advances on his commissions from said International Phonographic Language Schools.
“Now, therefore, if the said Thomas F. Dow shall promptly remit to International Phonographic Language Schools all collections made by him from customers of said schools, and at the termination of his said employment shall return to said schools all the books and property in his possession belonging to said schools, and shall pay over to said schools all moneys then due from him to said schools by reason of said collections or said advances, or otherwise, then his obligation to be void, otherwise to remain in full force and effect.”

While engaged in the employment plaintiff in error, Thomas F. Dow, received from defendant in error $39.75 more money than his commissions for sales amounted to. This is a suit on the bond to recover this balance of $39.75. Judgment in the Municipal Court was entered against both plaintiffs in error for that amount. The only question presented by the argument of counsel for our determination is whether the items of which this balance is composed are for moneys advanced to plantiff in error Dow “on his commissions.”

All the evidence introduced on the trial was that produced by defendant in error. From that evidence it appears that the money was given by defendant in error to plaintiff in error Dow from time to time at his request for car fare and living expenses in order that he might continue to work; that plaintiff in error Dow stated when he asked for the money he could not work without it.

The conditions of the bond show that it was contemplated that plaintiff in error Dow might “from time to time receive advances on his commissions,” and that the bond was given to secure to defendant in error the return to it by Dow “at the termination of his employment * * * all moneys then due from him to said school (defendant in error) by reason of * * * said advances.” There is no pretense that plaintiff in error Dow had any claim on defendant in error for money except for commissions earned on sales made. If plaintiff in error Dow made a sale, he was then entitled to his commissions on that sale as pay and not as an advancement. The term “advancement” plainly implies the giving of money not then due but in contemplation of what should become due, and there was nothing to become due from defendant in error to plaintiff in error Dow except for commissions on sales to be made. In this connection the witness, Elmer Beach, secretary for defendant in error, testified that the items composing the balance of $39.75 were advanced on his commission account and plaintiffs in error have not denied it.

The judgment of the Municipal Court was- manifestly correct, and the same is affirmed.

Affirmed.


text:
    Illinois Central Railroad, Appellee, v. N. K. Goodrich, Appellant.
    Gen. No. 15,840.
    Common carriers—right to recover for unloading freight. If freight is unloaded by the carrier for the consignee at unusual hours and in a special way so as to convenience the consignee and save him expense, imposing special expense upon the earlier, it has a right to charge compensation for such services in addition to the freight rates if it had given notice to the consignee that when such services were performed extra compensation would be charged.
    Appeal from the County Court of Cook county; the Hon. William C. DeWole, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    Duncombe & Evans, for appellant.
    Vernon W. Foster and Calhoun, Lyford & Sheean, for appellee; John G. Drennan, of counsel.
   Mr. Justice Graves

delivered the opinion of the court.

This suit was begun by appellee to recover from appellant pay for unloading 350 carloads of fruit consigned to him in April, May, June and July, 1908. It is stipulated that appellee is an Illinois railroad cor-. poration doing an extensive business in Illinois and other states in carrying fruit and vegetables' to Chicago, where it maintains terminals, yards, fruit houses and platforms for the handling and distribution of such produce; that appellant is a general consignee in Chicago of cars loaded with packages of fruit and vegetables belonging to various producers at the points where the shipments originate, whose individual shipments are not sufficient to make a carload, who have formed associations for the purpose of consolidating their shipments into carload lots and thereby procuring the benefit of carload rates; that these cars so loaded are called “Granger” or “Consolidated” cars; that the packages of which these carloads are composed are marked for various commission merchants in Chicago, who are finally to receive them; that these carloads are shipped in the name of the association as consignor, and are consigned to one person in Chicago; that 350 of such cars were consigned to appellant in his capacity of general consignee, and were delivered by appellee at its yards at the foot of South Water street, Chicago, in April, May, June and July, 1908, and the freight, at carload rates, was paid by appellant ; that upon the arrival of these cars at Chicago, they were unloaded by appellee onto its fruit platform and assorted into lots in accordance with the names of commission merchants marked on the packages; that such commission merchants removed such packages from the platform; that for so unloading these cars appellee charged one cent per hundred pounds and rendered bills therefor to appellant, who refused to pay the same, and denies the right of appellee to make the charges; that prior to 1902 such carloads of freight were unloaded by the consignees; that from 1902 to January 1, 1908, appellee unloaded such cars and made no charges therefor; that since January 1, 1908, appellee has unloaded such cars and charged the consignees therefor in accordance with a notice to them that appellee would make such charge after January 1, 1908; that “as distinguished from these ‘Granger’ or ‘Consolidated’ shipments are:

1. Less than carload shipments, which are shipments that are made up of goods belonging to various shippers and consigned to various consignees, there being no general consignee; and

2. Carload shipments in which the entire shipment is owned by and consigned to a single consignee. ’ ’

The proof outside of the stipulation of facts, the substance of which is already stated, tends to show that these cars were unloaded by appellee between 5 and 7 o’clock in the morning, three of its employes being engaged in unloading each car, two of whom carry out the packages and the other one sorting them according to ‘‘the carding; ’’ that one cent per hundred pounds is a fair and reasonable charge for such services; that the fruit platform is about 1,600 feet long and accommodates about thirty-eight cars; that there are team tracks and other facilities for unloading cars; that at one time, when cars consigned to appellant had been left by mistake at the team track he called the attention of the foreman of appellee in unloading and loading cars at its station at South Water street, and told him the cars would have to go to the fruit platform. It was admitted during the trial that the cars in question were put by appellee at a place satisfactory and convenient to appellant for unloading.

The judgment in the court below was for appellee in the sum of $708.13.

Appellant has not urged in this court that the judgment is- excessive, or that it is not supported by the evidence, provided appellee had a right to make a charge for the service performed in unloading the car, in excess of the regular published carload freight rate demanded and received by appellee for transporting the cars from the place where they were loaded to the place of their destination, but strenuously insists that appellee had no right to make such extra charge.

What a common carrier is bound to do in return for the payment of freight charges' is of course a matter of contract, either expressed or implied.

In the case at bar the record shows that the 350 cars in question were delivered by appellee at its fruit platform on South Water street, Chicago, and there unloaded, and the packages sorted by servants of appellee ; that regular carload freight rates were charged by appellee to appellant, and paid by him; that an extra one cent per hundred pounds of freight was charged by appellee to apellant for unloading and sorting the freight which appellant refused to pay. Whether the service for which the extra compensation is charged was part of the service impliedly undertaken by appellee to be performed in consideration of the amount paid as freight is the question here presented for determination.

Whether it would be the duty of appellee in any event, without an extra charge to unload freight shipped as this was, is, in the view we take of this case, unnecessary to decide. If it would be its duty so to do, that duty would be fully performed, if, within a reasonable time and during regular working hours, it was performed by unloading the freight at some place designated by either the consignor or consignee, or, if no place was so designated, then at the regular place provided by appellee for so doing, convenient for the consignee to get the same, and where the same would be safe from loss or damage.

Clearly no duty can be implied to unload freight in the night time, or between five and six, or even seven, o’clock in the morning, or to sort out the freight into separate piles according to the names on the packages, indicating to whom the consignee should eventually distribute the same, as such service is an extra or special service, and was performed in this case by appellee for the accommodation and benefit of the consignee, thereby saving him expense and entailing additional expense to the railroad. Such service has never been held to be part of the duty of a railroad acting as a common carrier. The extra compensation sued for in this case was charged for this kind of special service, after notice to consignee that when it was performed an extra charge therefor would be made. The appellee in our opinion had the right to make the charge sued for and was entitled to the judgment it recovered.

The judgment is, therefore, affirmed.

Judgment affirmed.


text:
    Peter Chimoch, Defendant in Error, v. Thomas D. Moore et al., Plaintiffs in Error.
    Gen. No. 15,851.
    Municipal Court—when judgment not disturbed. If the Appellate Court is satisfied that substantial justice has been done by the judgment rendered it will not be disturbed on review.
    Error to the Municipal Court of Chicago; the Hon. Michael F. Girten, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    J. H. Lally, for plaintiffs in error.
    William J. King, for defendant in error.
   Mb. Justice Graves

delivered the opinion of the court.

Peter Chimoch, plaintiff in the court below, worked for a firm, known as De Nellae & Co., in the city of Chicago from some time in September, 1908, to about the 13th of November, 1908. During that time the defendants in the court below, Nellie De Nellae and Thomas D. Moore, were' conducting the business of the firm of De Nellae & Co. Nellie De Nellae, who is variously called Nellie De Nellae, Nellie Moore and Mrs. Thomas D. Moore, was one of the partners of that firm, and Thomas D. Moore was the manager of the business. Both defendants spent more or less time at the place of business of De Nellae & Co., while the plaintiff was working there. This suit was begun by plaintiff to recover the sum of $100, which he claims he gave to the two defendants at their request, while he was working for De Nellae & Co., and on the pretext of selling to him a one-half interest in the business of the firm, which money he claims they promised to return to him on May 1, 1909, but did not.

This suit was commenced after May 1, 1909. It was tried by the court without a jury, and resulted in a finding and judgment for the plaintiff for $100.

The defendants have brought this case to this court by writ of error, and ask that it be reversed because the finding and judgment are not supported by the evidence.

The testimony on some points is sharply conflicting. The plaintiff, Chimoch, testified that, while he was working for De Nellae & Co., he gave to the defendants, at their request, $100 in money, made up of four twenty-dollar bills, one ten-dollar bill and two five-dollar bills; that when he did so they gave him a receipt therefor, and promised to pay it back to him on May 1, 1909; that he lost that receipt and asked for another, which defendant Moore gave him; that, when he quit working for De Nellae & Co., the defendants paid him $10.65, the amount due from De Nellae & Go. for wages, and promised to pay him the $100 on the first of May; that afterwards he saw both defendants, and they then repeated the promise to pay him. Defendant Moore admits that he gave two receipts to plaintiff about the time testified to by him, but testified that he received no money from him; that the receipts were given to the plaintiff to show to his wife with the view of deceiving her about what he had done with some money belonging to her that he said he had lost. Plaintiff denies making any such statement. Defendant Moore testified that, shortly after giving the first receipt, plaintiff came back and claimed to have lost it, and asked for another, which was given him; that he did not remember what was in the first receipt. The last receipt is signed by De Nellae & Co., per T. D. Moore, and is as follows:

“This is to certify that one hundred dollars was paid De Nellae & Co., the receipt for which was mislaid by Peter Chimoch; this said $100 to be returned to Peter Chimoch May 1st, 1909, or sooner.”

There is no proof that this second receipt is the same either in substance, form or signature as the first one.

Plaintiff in error, Nellie De Nellae, also denies having received the money. When plaintiff left the employ of De Nellae & Co., he received by the hand of defendants $10.65, the amount of wages due him from the firm, and a receipt was signed by him at that time, which receipt was introduced in evidence and is now as follows: “Received from De Nellae 4 days’ pay at $2.66, $10.65, wages in full tó date, and in full settlement of all my claims against De Nellae or Thomas D. Moore of all nature whatsoever,”

The plaintiff testified that the signature to the paper was his, but that when he signed it, the words in italics were not in it. Defendant Moore testified that the receipt had not been altered since its execution. During this examination on that subject the Court asked him, “Will you explain why were the last two and one-half lines written in a different kind of ink and a different kind of pen?” To this question he answered, “I can’t explain.”

If the receipt had been altered, it was not admissible in evidence, until such alteration was shown to have been honestly made. This receipt has been certified to this court and on inspection shows unmistakable evidences of alteration. The plaintiff testified that it had been altered, and is corroborated by the appearance of the paper itself, and no explanation of the alteration, or apparent alteration, is made or attempted. Both defendants were on the stand after the plaintiff testified concerning their having promised to repay him the $100, and neither of them denied having so promised.

The testimony of the plaintiff is corroborated as to his having given the defendants the money by the receipts that were admittedly given, which purport to acknowledge the receipt of the money. It is corroborated as to the alteration of the receipt for wages given by him, by the appearance of the paper itself. Even the words evidently inserted in this receipt after signature, purporting to release other claims than the- claim against De Nellae & Co. for wages, are very suggestive that the person who inserted them had some other transaction in mind than the payment of plaintiff for wages earned.

On this state of the proof, the court foiind the issues against both defendants, and rendered judgment against them for $100. After a careful examination of the record, we are nnable to say that the trial court was not justified in so doing.

The judgment is, therefore, affirmed.

Judgment affirmed.


text:
    Hyman Kadison, Defendant in Error, v. Fortune Bros. Brewing Company, Plaintiff in Error.
    Gen. No. 15,859.
    1. Municipal Court—how issues formed. Under the provisions of the Municipal Court Act the filing of the statement of claim on the one side and the entry of appearance on the other side form the issues to be tried in cases of the fourth class.
    2. Municipal Court—what put in issue by affidavit of merits. In an action claiming damages for hold-over, an affidavit of merits denying such hold-over does not put in issue the execution of the lease, the assignment thereof, the ownership of the property described in the lease or the right of such owner to maintain an action for liquidated damages for withholding possession of the premises after the expiration of the term of the leasing.
    3. Practice-—purpose and effect of amendment of Section 55 of act requiring nature of defense to be set up in affidavit of merits. The purpose of requiring the affidavit of merits to set out the nature of the defense relied on was to give the plaintiff notice of the real defense to be presented and to limit the issues to be tried to the defense set out in the affidavit. All defenses the nature of which are not set up in the affidavit are considered waived and are unavailable on the trial.
    4. Evidence—when that charge was usual and customary not essential. If the services in question were those of an attorney and the charge made is clearly not excessive, evidence that such charge was the usual and customary one is not essential, inasmuch as the court itself is competent to judge with respect to the value of such services.
    Error to the Municipal- Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    Rehearing denied October 25, 1911.
    Thomas J. Young, for plaintiff in error.
    Morton A. Mergentheim, for defendant in error.
   Mr. Justice Graves

delivered the opinion of the court.

Defendant in error brought this suit in the Municipal Court, and filed therein the following statement of claim, viz.:

“Plaintiff’s claim is made by him as assignee of Julius Salk and Samuel Polakow, the latter being lessor and the defendant lessee of the first floor and basement of the premises at 264 Loomis street, in the City of Chicago, under a written lease, dated January 13, 1906, and expiring April 30, 1909; wherein defendant agreed to yield up immediate possession to said lessor at the expiration of the term. Said defendant failed to yield up possession to the lessor on April 30, 1909, but withheld possession until and including May 13, 1909, becoming liable to the assignee of said lease for the sum of $10 per day as liquidated damages aggregating $130 and $25 attorneys’ fees—$155 in all.”

Attached to and filed with this statement of claim was an affidavit of claim. Plaintiff in error entered its appearance and filed an affidavit of merits setting out that it had a good defense to the whole of plaintiff’s demand. The nature of the defense is therein set out in the following language:

“Affiant further says that the nature of'the defense of the defendant Fortune Bros. Brewing Company to said suit is as follows: That defendant did not fail to yield up possession of said premises at the expiration of said term as alleged in the plaintiff’s bill of particulars; that the defendant did not withhold said premises as alleged in said bill of particulars, and that the defendant does not owe and is not liable to the plaintiff for said sum of $130.00 or any other sum whatsoever. ’ ’

Under the provisions of the Municipal Court Act the filing of the statement of claim on the one side and the entry of appearance on the other side form the issues to be tried in eases of the fourth class, to which class this case belongs, or more accurately speaking puts everything at issue that can be tried in the case. By section 19 of that Act the legislature provided tfyat, “said Municipal Court shall be the sole judge of the applicability to the proceedings of said court of the rules of practice prescribed by law for similar cases in the Circuit Court, and its decisions in respect thereto shall not be subject to review on appeal or writ of error.” By rule 14, adopted by the Municipal Court September 28, 1907, and in force at the time this case was commenced, it is provided that' section 55, .among other sections of the Practice Act, shall be held to apply to proceedings in the Municipal Court when consistent with the Municipal Court Act. The adoption of that section as part of the rules of practice in the Municipal Court was upheld as a proper exercise of the power conferred on the Municipal Court in the Act creating it, in the case of Koch v. Dickinson, 152 Ill. App. 413.

By section 55 of the Practice Act it is provided that when the plaintiff shall file with his declaration an affidavit of claim, the defendant, in order to prevent a judgment as by default, shall file with his plea an affidavit, “stating that he verily believes the defendant has a good defense to said suit upon the merits to the whole or portion of the plaintiff’s demand and specifying the nature of such defense, and if a portion, specifying the amount.”

The affidavit of merits in this case was filed in compliance with the provisions of said section 55, so made part of the rules of practice in the Municipal Court. The part of section 55 above quoted has been in force for many years with the exception of the words in italics. Those words were added in a revision of the Practice Act that went in force July 1st,- just before that section was adopted by the Municipal Court as part of its rules of practice. Prior to the addition of these words, it was held that an affidavit, stating that the defendant had a good deferise to the suit upon the merits, was sufficient to entitle the defendant to prove any defense he had that was well pleaded. The addition of the words “and specify the nature of such defense” was not inadvertently made. The purpose of requiring the affidavit of merits to set out the nature of the defense relied on was to give the plaintiff notice of the real defense to be presented and to limit the issues to be tried to the defense set out in the affidavit. All defenses, the nature of which are not set up in the affidavit, are considered waived and are unavailable on the trial.

The affidavit of merits in the case at bar in compliance with the provisions of section 15 supra as so amended sets out the nature of the defendant’s defense to be, that the defendant did not fail to yield up possession of the premises in question at the expiration of the term, and did not withhold said premises as alleged in the bill of particulars. The statement in that affidavit that “the defendant does not owe and is not liable to the plaintiff for said sum” claimed is a mere conclusion of the affiant based on the defenses, the nature of which are specified in the affidavit. By this affidavit of merits neither the execution of the lease nor the assignments of it are put in issue, and the lease and assignments were properly admitted in evidence without such proof of their execution as would have been necessary if their execution had been denied by the affidavit of defendant. Neither were the questions whether appellee was the owner of the property described in the lease, nor whether one not such owner can maintain an action for liquidated damages for withholding possession of the premises after the expiration of the term of the leasing, made issues in this case by the affidavit of merits.

The provisions of the lease relied on as the basis of recovery are as follows:

“At the termination of this lease by lapse of time or otherwise (the lessee agrees) to yield np immediate possession to said party of the first part, and failing so to do to pay as liquidated damages for the whole time such possession is withheld, the sum of ten ($10.00) dollars per day * * * the party of the second part further covenants and agrees to pay and discharge all reasonable costs, attorneys’ fees and expenses that shall be made and incurred by the party of the first part in enforcing the covenants and agreements of this lease, and all the parties to this lease agree that the covenants and agreements herein shall be binding upon, apply and inure to, their respective heirs, executors, administrators and assigns.”

The evidence clearly shows that the covenants for the surrender of the possession of the premises at the expiration of the lease by its terms, were broken. The lease terminated by its terms on April 30, 1909. At that time, and for some time after that time, as well as for nearly two years prior to that time, plaintiffs in error were occupying the premises by a sub or under-tenant, by the name of Sullivan. The witness Portiss testified, that Sullivan was still there on the 13th of May, 1909. Sullivan, called as a witness for the defendant, said he was there four or five days after the first of May, and again, that he left the place “about the fifth or seventh of May.” In view of the positive testimony of Portiss, and the uncertain and varying testimony of Sullivan, we think the court was justified in taking the testimony of Portiss as to the time Sullivan was still there after April 30, 1909, to be true.

The lease fixed the amount of damages to be recovered at ten dollars per day for each day possession was withheld after April 30, 1909. It also provided for the recovery of reasonable costs, attorneys’ fees and expenses incurred in enforcing the covenants of the lease.

The court found the issues for defendant in error and' entered judgment thereon against plaintiff in error for $155 and for costs.

Counsel for both parties agree that $25 of the amount for which judgment was rendered was for attorney’s fees, and plaintiff in error does not claim that $25 was an excessive attorney’s fee, but insists that, inasmuch as there was no evidence introduced tending to show that it was a reasonable and customary charge for the service rendered, it was error to allow that or any other amount.

Testimony as to what amount is a reasonable attorney^ fee is at the best opinion evidence, and on a subject concerning which the trial court, who has heard the case, is, to say the least, as well qualified as the witnesses to form an opinion. Nor is such evidence binding on the court unless it coincides with the opinion of the court. The sum of $25 was certainly not an excesssive allowance for the services rendered by the attorney for defendant in error up to the time judgment was rendered in this case. The fact that defendant in error is described in the papers in the case as “assignee” of the lease is of no significance beyond notifying plaintiff in error of the basis of the demand made against it. The suit is begun by defendant in error in his own right and not in a representative capacity, and the fact that he is described as “assignee” of the lease neither adds to nor detracts from his right to recover.

We think the Municipal Court was fully justified in its findings and judgment, and that no error appears in the record.

The judgment is, therefore, affirmed.

Judgment affirmed.


text:
    Minnie Hilliard, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,867.
    1. Verdicts—when not disturbed. A verdict will not be set aside as against the weight of the evidence unless clearly and manifestly so.
    2. Verdicts—when not excessive. Held, in an action on the case for personal injuries, that a verdict for $3,000 was not excessive where it appeared that the plaintiff as a result of the accident sustained a severely bruised leg, with resulting swelling and pain, and that as a result permanent impairment of the leg occurred.
    3. Damages—what does not preclude right to recover. The plaintiff in an action on the ease for personal injuries is not precluded from the right to recover all damages merely because a dormant disease has been aggravated by the injuries sustained.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    B. F. Richolson and Watson J. Ferry, for appellant.
    Bowles & Bowles, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

This is a suit to recover for personal injuries. The judgment against appellant was for $3,000. Two reasons are assigned why the judgment should be re-, versed. The first is, “because the verdict is against the overwhelming weight of the evidence,” and the second is, “the amount of damages awarded by the verdict is grossly excessive. ’ ’

Appellee was a married colored lady, thirty-eight years old, weighing two hundred fifty pounds, engaged at the time of the injury in the business of hair dressing and scalp treating. She was injured in her right leg between the ankle and the knee, while attempting to board an electric street car of the appellant at or near the intersection of State and 39th streets in the city of Chicago, on the 13th day of September, 1907, at about half past three in the afternoon. The car upon which she was injured was a north bound, Indiana avenue car, which, on the day of the accident, was running on State street from 51st street to 39th street, where it was switched east to Indiana avenue, and was in charge of servants of appellant. The car had come to a stop a little south of the south line of 39th street for the purpose of giving the conductor time to turn a switch, so as to permit the car to turn to the east on 39th street. This was the regular place for the car to stop to receive and discharge passengers. The switch there was operated by a lever about three feet and six inches long, placed at right angles with the north and south car track on State street, and was attached at its west end to the mechanism of the switch by a hinge that was located from twelve to thirty inches east of the east rail of the north and south car tracks on State street. The side of the car projected east of the east rail of the car track from twenty-four to twenty-seven inches, and the extreme eastern end of the switch bar was not to exceed four feet east of the east side of the car. This switch was operated by raising the east or outer end of the switch bar or lever from twelve to seventeen inches from the surface of the pavement. When the switch was not being operated, no part of the switch bar or lever was above the surface of the street. As soon as the car stopped there at the time of the injury, the conductor alighted from it and raised the east end of the switch bar, turned the switch and signaled the motorman to go ahead, holding the switch bar up as high as it would go in the meantime. The motorman started the car, and almost immediately thereafter, and while the conductor was still holding up the switch bar, appellee fell to the ground near to the side of the car, her feet on or near the west end of the switch bar and her head to the north. The right leg of appellee was there injured. As to just how appellee came to fall, and whether her fall was caused by reason of the negligence of the servants of appellant who were in charge of the car, or by reason of her own negligence, the evidence is conflicting. The act of those operating the car in stopping at at the usual place for discharging and receiving passengers was an invitation to those who were there and desirous of taking that car to board it, and it was the duty of those in charge of it to see to it that persons who were attempting to enter it, while it was stopped, had reasonable time to do so in safety before starting the car. A failure in the discharge of that duty would be negligence which would not be excused by saying they did not see any one there, providing such person, so attempting to board the car, was in plain sight of those operating it. On the other hand, persons desiring to board the car should do so while it is standing, and if they attempt to do so while it is in motion, and are thereby injured, the fault is their own. The conductor who was in charge of the car, and who directed its movements, was a witness for appellant, and testified that, as he left the car to turn the switch, he looked and did not see any one near the car, and did not see appellee at all, until after the car started. He also testified that it was ten seconds from the time the car stopped, until he had raised the switch bar and told the motorman to go ahead. The motorman testified it was a few seconds. The conductor further testified, “I said to the motorman all right and he started. At the time he started a lady was trying to get on while the oar toas in motion * * * The first thing I seen her I seen her board the car after it had gone three feet and then she fell.” The motorman testified that he had gone six feet before he noticed appellee. “I did not see the lady before she took hold of the car. I didn’t know how long she had hold when I first saw her.” Other witnesses of the defendant variously testify that appellee attempted to board the car just as it started and just after it started. Appellee testified, in substance, that, when the car came up and stopped, she was standing there waiting for the car, and was about a foot and a half south of the switch bar and just far enough from the car, so it would not strike her; that as soon as the car stopped, she immediately attempted to board it; that she took hold of the hand hold on the car with her left hand and placed her left foot on the lower step; that at that time the conductor was raising the switch bar; that as she was reaching for the other hand hold with her right hand, the conductor gave the signal to go ahead, and the car started with a jerk; that she held on with her left hand and was thrown forward, her right leg being caught between the switch bar and the step of the car. The husband of appellee testified, in substance, that when the car approached 39th street, he and appellee were standing between a foot and a half and four feet south of the switch bar; that when the car came up, it stopped with the front end opposite where they were standing; that the front part of the front entrance was opposite the switch bar and the step to the south part of the front entrance was south of the switch bar, and extended from twenty-four to twenty-seven inches east of the east rail of the track; that appellee, when the car stopped, took hold of the hand hold and placed her left foot on the step and started to raise herself, when the car moved suddenly and she lost her balance and fell to the pavement with her feet across the switch bar six or eight inches; that he could not see whether her right foot was caught in the switch bar, but when the car started, it pulled her body forward, while her feet seemed to remain stationary; that when the conductor gave the signal to go ahead, appellee was in the act of leaving the ground to get on the car; that after appellee started to step up, the conductor stepped down right at the switch and picked it up and said, “go ahead;” that appellee’s dress almost touched the conductor, as he stooped over to raise the switch bar; that when she fell, the lower part of her dress rolled upon her arm. Both appellee and her husband testified to injuries received by appellee at the time she fell. Each count of the declaration, except the last count, charges that the injuries received were produced by her leg being caught between the switch bar and the car step. The last count charges that appellee was thrown violently upon the ground and thereby received her injuries. All the counts charge that the car was started while she was attempting to board it.

The jury heard all the evidence and saw and heard all the witnesses while they were giving their testimony, and were called upon to determine the credibility of the various witnesses and the weight that should be given to their testimony, and whether the appellee had proven her case, as laid in her declaration, by. a preponderance of the evidence. In the discharge of that duty they found the appellant guilty. After a careful scrutiny of the record, we are unable to say that the verdict is not in accord with the weight of the evidence. If the testimony of appellee and her husband is true, and the jury evidently believed it to be so, then the servants of the appellant were guilty of the negligence charged in the declaration; the appellee was in the exercise of due care for her own safety and was injured in the manner charged in the declaration. Counsel for appellant insists that the story told by appellee and her husband is so improbable as to be unbelievable; that it describes a physically impossible occurrence. We see no inherent improbability in their testimony. In brief, their testimony is that they were at the place where the north bound cars usually stopped to receive passengers, waiting to take the car; that the car stopped in front of them; that appellee attempted to board the car while it was standing, and when she was in the act of so doing the car started with a jerk, and she was thrown to the ground and injured. This seems to us to be a chronological statement of what might very easily occur. As to how the injury to appellee’s leg was inflicted the husband does not testify, but appellee says, “I know my right foot caught between the step and the switch bar, because I felt it. There was pain in connection with that. It felt as though—that my leg was almost cut in two by the edge of the switch bar and the step as the car moved * * * * j could feel the step slide and the cutting of the bar over in my leg * * * * I fell when my foot got caught in that bar, well I felt an awful severe pain * '* * * the ear dragged me the full length of my arm and pulled me across the switch bar; pulled my foot. It got caught between the switch bar and the step and pulled me across there the full length of my arm, my feet was lying across the switch bar. Both feet were south of the switch bar when I let go.” It is apparent from the testimony of appellee that she does not know just how the injury itself was inflicted, but that she testified as to her beliefs, conclusions and opinions, based on what she felt at the instant of her fall. That she was caught in some way and fell and was there injured is made clear by her testimony, even though the exact manner in which she received her injuries is left somewhat uncertain. Whether she was injured, as charged in the last count of her declaration, by the fall, or, as charged in the other counts, by having her foot caught between the ear step and the switch bar, is immaterial, so that it was caused as charged in some one of the counts of the declaration. If there is any part of the testimony in this case that is inherently improbable, it is the testimony of the servants of the defendant, in which they say appellee was not there when the car stopped or in sight when it stopped, in view of their further testimony that in a few seconds she, a woman weighing 250 pounds, was there hold of the car attempting to board it, there being no proof that she was either ethereal or possessed of remarkable agility.

On the question of the amount of damages appellee sustained, the proof tends to show that her right leg was severely bruised, although the skin was not broken; that it began to swell immediately, between the knee and the ankle, and continued to swell for some time and turned black and blue; that the pain was so severe she could not sleep, and that the pain was continuous up to the time of the trial, but not so severe; that on October 7th, about three weeks after the injury, she was taken to the hospital where she remained about six weeks; that at that time the leg was swollen its entire length, and she could not raise it. Dr. Guy A. Gowan, a witness for appellee, testified that the swelling above the knee was a necessary condition to the condition below the knee, and was caused by the bruise she received below the knee; that the blood clotted and then liquified and had to be drained off; that this was done by making an incision through the skin and then forcing a blunt instrument into the tissues to a depth of four to six inches; that at least six of such openings for drains were made in her leg, one below the knee and five above the knee. Appellee testified that before the injury she was making from $50 to $65 per month above expenses in the business of hair dressing and scalp treating; that she was totally disabled from pursuing that business from the 13th day of September, 1907, until May 1, 1908, and partially disabled since then; that the efficiency of the leg was still impaired at the time of the trial. Dr. Gowan testified that such impairment is likely permanent. The evidence further shows that appellee became liable to pay to one of her doctors $300, and that $300 is a reasonable, usual and customary fee for the services he rendered. Dr. Dwight Jennings of St. Louis, a witness called by appellant, testified that he treated a lady by the name of Minnie Robinson at 1226 Spence street, St. Louis, on January 26th, 28th, 29th, 30th, 31st, and February 2nd and 5th, 1903, for gonorrhea and complications, and that he believed appellee was the lady; that she was in bed and would weigh about 160 pounds; that she was not cured when he ceased treating her; that the tendency of that disease is to retard or impair the return circulation of the blood throughout the veins of the patient, and to cause swelling in one or both legs at about the place where the circulation is obstructed, but when asked whether, in a case like the one at bar, he would attribute the swelling above the knee to the injury below the knee, or to the after effects of the conditions he found in the lady in St. Louis, he failed to express an opinion. Appellee denied that she ever was treated by Dr. Jennings for gonorrhea and that she ever had that disease, but admitted that Dr. Jennings had treated her for displacement of the womb. The only legitimate purpose for which appellant was entitled to the testimony of Dr. Jennings was to show that the swelling, particularly above the knee, was caused by appellee’s diseased condition and not by the injury.

No reason is, or, in our opinion, can be, suggested why a person who is afflicted by some dormant disease that may or may not ever cause them trouble, but which, by some injury caused by the negligent act of another, is caused to become active or virulent, should be deprived from recovering all damage they may sustain by reason of such negligent act, including such damages as are sustained by causing a dormant disease to so become active.

Under the facts in this case, it was the province of the jury to determine whether the accident was caused by the negligence of the appellant, or by the want of due care on the part of appellee, and in case they found it was caused by the negligence of the appellant and that the appellee was in the exercise of due care for her own safety, then to assess the damages of appellee.

We are of the opinion that, under the evidence in this case, the jury were warranted in finding the appellant guilty, and the majority of the court are of the opinion that the jury were justified by the evidence in fixing the damages at the sum of $3000.

The judgment of the court is, therefore, affirmed.

Judgment affirmed.


text:
    Max Drygalski, Appellant, v. Louis J. Thiele, Appellant.
    Gen. No. 15,882.
    1. Judgment—effect given upon collateral attack. A judgment in a court of record will, when not directly attacked, be presumed to be based on sufficient evidence to warrant it under the issues made by the pleadings, and is conclusive as to every matter properly and necessarily at issue in the a'ction.
    2. Insolvent debtors—how question of right to discharge determined when imprisonment is under tort judgment. In determining whether or not the appellant was entitled to his discharge from custody under the insolvent debtors act, it is necessary to inquire into the basis of the judgment on which the ca sa issued, only so far in the first instance as is necessary to ascertain what the issues were that were tried, and what verdict was returned on those issues. If there was no issue in that case, in which malice was not the gist of the plaintiff’s right to recover, and the verdict was general, then the judgment in that case is res judicata on the question whether malice was the gist of the action, and having been once determined, the judgment would be an effectual bar to any further dispute of that question between the parties.

      3. Insolvent debtors—when malice gist of action. In an action where the issue was formed on a declaration in trespass vi et armis for assault and battery, malice is of the gist thereof.
    Appeal from the County Court of Cook county; the Hon. Lewis Rinaker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    George Remus, Joseph S. La Buy and Edward E. Shinnick, for appellant.
    James D. Power, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

A judgment was rendered against appellant in the Superior Court on the 22nd day of June, 1908, in a suit begun by appellee to recover damages for injuries received by appellee on account of an assault and battery committed by appellant on appellee. On that judgment a writ of capias ad satisfaciendum issued, and by virtue thereof, appellant was taken into custody. On May.22, 1909, appellant filed his petition in the County Court of Cook .county, under the insolvent debtors act, praying that he be released from custody. After a hearing, the court denied the prayer of the petitioner. This appeal is prosecuted to reverse that judgment.

It is not contended by counsel for appellant that this judgment should be reversed, if malice was the gist of the action in which the original judgment was rendered, but insists that inasmuch as the entire record of the court in the original case, as well «as all the testimony offered on the trial of that case, was offered in evidence by appellee on the hearing of the appellant’s petition for discharge, the court below should have gone into that evidence and determined from it, whether malice was in fact shown, and that the testimony in that ease shows that the acts there complained of were not actuated by malice.

A judgment in a court of record will, when not directly attacked, be presumed to be based on sufficient evidence to warrant it under the issues made by the pleadings, and is conclusive as to every matter properly and necessarily at issue in the action. In determining whether the appellant was entitled to his discharge from custody under the insolvent debtors act, it is necessary to inquire into the basis of the judgment on which the ca sa issued, only so far in the first instance as is necessary to ascertain what the issues were that were tried, and what verdict was returned on those issues. If there was no issue in that case, in which malice was not the gist of appellee’s right to recover, and the verdict was general, then the judgment in that case is res judicata on the question whether malice was the gist of the action, and having been once determined, the judgment would be an effectual bar to any further dispute of that question between the parties. Jernberg v. Mix, 199 Ill. 254.

“The term ‘malice,’ as used in section 2 (of the insolvent debtors act) signifies a wrong inflicted on another with evil intent or purpose.” Keller, Ettinger & Fink v. Norton, 228 Ill. 356. “It implies that the guilty party was actuated by improper motives and requires the intentional perpetration of an injury or a wrong on another.” Jernberg v. Mix, supra, and cases there cited.

The declaration in the case in which the ca sa involved in this case issued consisted of one count and was in the usual form of declaration in trespass vi et armis for assault and battery, and charged that appellant with force and arms assaulted and injured him. The appellant filed the plea of the general issue and two pleas setting up self-defense as justification. Issue was joined on all these pleas and the trial resulted in a general verdict finding the defendant guilty, and assessing the appellee’s damages. Under the issues as formed the verdict was a finding that appellant was guilty of inflicting on appellee injuries by an assault and battery committed without justification. It has been uniformly held that “the intention to do harm is the essence of an assault.” Salomon v. Buechele, 127 Ill. App. 421, and cases there cited. The judgment on the verdict in question was, therefore, res judicata and conclusive on the parties that malice was the gist of the action, and is a bar to any further dispute between them on that question.

It follows that the court in disposing of the petition of appellant for discharge committed no error in refusing to consider the testimony offered in the original case. The fact that the evidence was offered by appellee is of no significance. When it was offered, it was only conditionally admitted, subject to the later determination by the court as to its competency. After a consideration of the question, the court rightly held it to be incompetent and refused to consider it. The judgment of the court is affirmed.

Judgment affirmed.


text:
    Thomas J. Healy, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,887.
    1. Negligence—when collision not result of. Negligence cannot bo imputed to a motorman where the collision results, not at a street intersection, from the act of the driver of a vehicle suddenly driving Ms horse upon the track in front of the approaching ear. The motorman is not bound to anticipate such an occurrence and keep Ms car in such control as to avoid a collision so rendered imminent.

      2. Contributory negligence-—when person driving across street ear tracks guilty of. Held, under the evidence, that a driver who undertakes, not at a street intersection, to drive upon street car tracks in front of an approaeMng ear is guilty of such contributory negligence as will bar a recovery.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of facts.
    Opinion filed October 4, 1911.
    West, Eckhart & Taylor and Watson J. Ferry, for appellant.
    Wolfner, Healy & Young and Thomas J. & Daniel M. Healy, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

On February 26, 1908, one William J. Verburg .died as the result of injuries received by him two days before in a collision on 39th Street just west of Vernon avenue in Chicago, between a street car of appellant and a wagon in which the deceased was riding. This is a suit by appellee, as administrator of the estate of William J. Verburg, for damages sustained by the heirs and next of kin of deceased. The judgment in the court below was for the appellee for the sum of $2,000.

The proof shows that 39th street runs east and west; that Vernon avenue runs north and south; that the north end of Vernon avenue opens into, but does not cross, 39th street; that on the north side of 39th street, close to the curb, and 28 feet west of where the west line of Vernon avenue would, if extended north, intersect with the north line of 39th street, there was on the day of the accident a watering trough; that between the watering trough and the north rail of the street car track that ran east and west along 39th street, there was a space fourteen feet and ten inches in width; that when the car of appellant that was involved in the accident was approaching Vernon avenue from the east, the horse of the deceased stood at the watering trough, drinking; that the horse faced in an easterly or northeasterly direction; that the wagon to which the horse was hitched stood in a westerly or southwesterly direction from the horse and was loaded with mouldings; that the body of the wagon projected about two feet back from the hind wheels of the wagon and the mouldings projected about two feet back of the back end of the body of the wagon. There is a controversy as to whether the wagon and the load on it, as it stood there, was far enough from the street car track to permit the car to pass without touching any part of it, but the preponderance of the evidence is that there was ample room for the car to so pass.

In the view we take of the case, it is unimportant whether the wagon, as it stood there, was far enough from the track to clear the car or not. The evidence further shows that, as the car approached Vernon avenue, it was running at a “good speed, as fast as usual;” that the motorman was constantly sounding his bell; that when the car had approached to within about one hundred feet of the watering trough, he sounded the bell violently; that the deceased, who was then sitting on the wagon, looked up, and, although he saw the car approaching, he immediately turned his horse to the right and urged him across the street car track immediately in front of the approaching car; that when the horse had crossed the track and the front wheels of the wagon were on the track, the car collided with the wagon and the deceased was thrown to the ground, and received the injuries that resulted in his death; that when the deceased started to turn across the track, the motorman turned off the power, put on the brakes, sanded the tracks and stopped the ear in the shortest possible distance in view of the rate of speed at which he had been approaching, but not in time to avert the collision.

The evidence further shows that between the car and the watering trough there was ample room for the horse and wagon to stand or be driven east in safety, and that, even if the rear end of the wagon or load was on the track while the horse was drinking, it would have been taken out of danger of collision, if thé horse had been driven east a very few feet. The location of this collision was not at the intersection of streets crossing each other, where the appellant and all others have equal rights to the use of the streets, but was at a point where appellant had a paramount right to the use of so much of the street as was covered by its tracks. Hewlett v. Brooklyn Heights Ry. Co., 71 N. Y. Supp. 531. While it is true that appellant in the exercise of that paramount right would not be justified in running its .car at a high and dangerous rate of speed, or to run down a person who was on its tracks, or was likely to go on its tracks, it had the right to run it at an ordinary rate of speed with reference to perils that were apparent or that might reasonably be expected to occur, and was not called upon to stop the car or slacken its ordinary speed until a necessity for so doing became apparent. Rack v. C. C. Ry. Co., 173 Ill. 289.

There was absolutely no evidence in this case of anything to indicate to the servants of appellant that the deceased was about to turn his horse to the south and drive across the track until he started to do so, and then the car was so close to him that it was impossible to stop it in time to avoid the collision. The motorman was not bound to assume from the fact that the horse and wagon were standing near the track, but out of line of contact with the car, that after he had approached so near that it would be impossible to t stop the car, the deceased would suddenly turn his horse and attempt to drive across the track in front of the approaching car. Negligence cannot be imputed to the motorman on that state of facts. C. U. T. Co. v. Browdy, 206 Ill. 615; Bloomington & Normal Ry. Co. v. Koss, 123 Ill. App. 497. Even if the conduct of the motorman had been negligent, that would not have excused the deceased from the duty to exercise ordinary care for his own safety, and that he certainly did not do. He saw the car coming towards him at a distance of not more than one hundred feet and at a ‘ ‘ good speed. ’ ’ He had ample room to stay where he was or drive east on 39th street and be safe.- Notwithstanding these facts, he deliberately turned across the track in front of the car, and was injured, as he must have known he inevitably would be, unless the motorman should be able to stop his car in time to avert it.

The evidence, instead of showing due care on his part for his own safety, shows the most reckless disregard of manifest danger. It would be hard to conceive a state of facts showing more clearly contributory negligence.

The motion of appellant, made at the close of all the evidence, to instruct the jury to find appellant not guilty, should have been allowed and the instruction given.

Other errors have been assigned and argued, but as we see no reason for remanding the cause, it is unnecessary to dispose of them.

The judgment of the court below is reversed without remanding the case, with the finding of facts to be incorporated in the judgment that the deceased, appellee’s intestate, was guilty of contributory negligence.

Judgment reversed with finding of facts.