author: Mr. Justice O’Connor

text:
    John M. Klonowski, Administrator, Appellee, v. Crescent Paper Box Manufacturing Company et al., on appeal of George C. J. Schmidt, Surviving Executor, Appellant.
    Gen. No. 24,721.
    1. Workmen’s Compensation Act, § 18

      —when action will not He against third person. If the employer, the employee and the owner of the building occupied by the employer,'whose alleged negligent placing of a water tank on his building caused the employee’s death, were all three bound by the Workmen’s Compensation Act, an action will not lie to recover for the employee’s death.
    2. Workmen’s Compensation Act, § 3*—mere ownership of building insufficient to bring owner within act. The mere ownership of a building which is rented by an employer who comes under the Workmen’s Compensation Act does not bring the owner within the act where it has no employees on the premises and is not there engaged in any enterprise or business.
    3. Workmen’s Compensation Act, § IS*—right to cover against third person not engaged in extrahamrdous occupation. An action may be maintained against the owner of a building to recover for the death of an employee of the lessee caused by the fall of a tank on such building though such employee and lessee were both under the Workmen’s Compensation Act, where the owner was not engaged in an extrahazardous business, in the meaning of the act, so far as the building where the accident occurred was concerned.

      4. Workmen’s Compensation Act, § 18

      —sufficiency of declaration against third person not engaged in extrahazardous occupation. Where, in an action against the owner of a building to recover for the death of an employee of the lessee of such building, it clearly appears from the allegations of the declaration that such owner was not engaged in any extrahazardous occupation, enterprise or business; within the meaning of the Workmen’s Compensation Act, it is not necessary that the declaration allege that the act was inapplicable or make any reference to the act.
    5. Death, § 67*—when damages not excessive. A verdict of $7,000 for the death of a 14-year-old girl is not excessive where it appears that she was in good health, could read and write English, worked in a factory and also helped'with the household work and left parents, brothers and sisters surviving her.
    6. Negligence, § 120*—sufficiency of declaration charging negligence resulting in fall of tank. Though the declaration, in an action against the owner of a building to recover for the death of an employee of the lessee of such building caused by the fall of a water tank installed thereon, is primarily based on defendant’s violation of a city ordinance, set up in the declaration, regulating the placing of water tanks on buildings, such declaration is sufficient after verdict, at least, to sustain a judgment for plaintiff based on the fact that the tank had been properly installed, where it not only alleges the violation of the ordinance in the construction of the tank, but also avers that the tank fell “by reason of the fact that the foundation and supports of the tank were then and there insecure, weak, and out of repair.”
    7. Pleadings, § 459*—waiver of demurrer by stipulation admitting evidence proper under any plea, etc. Where, at the time the demurrer to the declaration is overruled, on the stipulation of the parties, there is embodied in the order the provision that “upon the trial of this cause said defendants may introduce any material evidence that can or could be introduced by them under any plea or rejoinder that might be filed herein, or upon any issue that might be raised under any pleadings filed or which might be filed herein, and such evidence so introduced shall be given all the weight it would receive if supported by the proper pleadings,” the question of' the propriety of the court’s ruling in overruling the demurrer is not saved.
    8. Pleading, § 136*—when order based on stipulation obviates necessity for rejoinder. Where, by stipulation of the parties, the order overruling a demurrer to the declaration provides “that upon the trial of this cause said defendants may introduce any material evidence that can or could be introduced by them under any plea or rejoinder that might be filed herein, or upon any issue that might be raised under any pleadings filed or which might be filed herein, and such evidence so introduced shall be given all the weight it would receive if supported by the proper pleadings,” such order relieves defendant from filing a rejoinder, but permits him to introduce evidence without the filing of it, that otherwise would be improper.
    9. Appeal and ebbob, § 1454

      —reversal not granted to permit of issue being more formally raised. A judgment will not be reversed in order to permit the parties to raise in a more formal way an issue upon which they have already had the benefit of a full trial.
    ■ 10. Negligence, § 187*—when finding that fall of tank ioas caused by bending of supporting beams sustained. In an action against the owner of a building to recover for the death of an employee of the lessee through the falling of a water tank which had been placed by the defendant on the building, where it is undisputed that the tank fell over through the bending of the steel beams supporting it and evidence is introduced tending to show that such beams were insufficient to carry the weight, a finding that the beams were of insufficient strength is. supported by the evidences notwithstanding there is evidence that the beams were of sufficient strength and that there was a high wind and defendant contends that such wind caused the toppling over of the tank.
    11. Landlobd and tenant, § 240*—lohen provision requiring lessee to keep premises in repair inapplicable in action for injury to employee of lessee. In an action against the owner of a building to recover for the death of an employee of the lessee of the building through the falling of a water tank installed on the building by the owner during the life of the lease, such fall being caused by the bending of the beams supporting the tank, the provision of the 'lease requiring the tenant to keep the premises in repair is inapplicable.
    12. Evidence, § 10*—ordinances not judicially noticed by circuit court. The circuit court does not take judicial notice of city ordinances.
    13. Negligence, § 193*—when compliance with ordinance question for jury. In an action against the owner of a building to recover for the death of an employee of the lessee of such building caused by the fall of a water tank installed on the building by defendant, where the evidence tends to show a violation of the ordinance, set up by the declaration, regulating the installation of such tanks, and defendant’s evidence tends to show that it had complied with the ordinance, the question whether defendant complied with the ordinance is for the jury,

      14. Appeal and error, § 1460

      —when failure to prove ordinance harmless. In an action against the owner of a building to recover for the death of an employee of the lessee of the building through the falling of a water tank which the declaration alleges to have been installed in violation of a city ordinance, where the record discloses that proof was offered on both sides as to whether or not the ordinance had been violated, and defendant also offered an instruction as to its nonliability as for a nuisance, where it had complied with the ordinance, the jury were instructed that the burden of proving his case as laid in his declaration was on plaintiff, and in the conduct of the case generally both parties assumed that the ordinance was in force and effect, it is not ground for reversal that no proof was made of the ordinance in question.
    15. Appeal and error, § 1539*-—refusal of abstract instruction not ground for reversal. The refusal of instructions which are inapplicable to the facts of the case is not ground for reversal.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 18, 1920.
    Rehearing denied March 31, 1920.
    O’Donnell & O’Donnell, for appellant.
    David K. Tone, for appellee.

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

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

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff as administrator of the estate of Elizabeth Frankowicz, deceased, brought suit against the Crescent Paper Box Manufacturing Company and the surviving executor and trustee of the estate of Kaspar Gr. Schmidt, deceased, to recover damages on account of the wrongful death of the deceased. At the close of plaintiff’s ease there was a directed verdict in favor of the defendant, Crescent Paper Box Manufacturing Company. The case proceeded against the other defendant and there was a verdict and judgment in favor of plaintiff for $7,000, to reverse which the representative of the K. Gf. Schmidt estate prosecutes this appeal.

The record discloses that the Schmidt estate owned a four-story brick building located at Nos. 450-452 West Ohio street, Chicago, and had, for a number of years, leased it to the Crescent Paper Box Manufacturing Company; that the box company occupied the entire building and was engaged in the business of manufacturing paper boxes; that some few years after the box company had entered into possession it requested appellant to construct a water tank on the roof of the building for purposes of fire protection; that in accordance with the request a tank, having a capacity of about 3,000 gallons, was installed in 1907 or 1908; that the deceased, Elizabeth Frankowicz, about 14 years old, was employed by the box company, and on the 21st day of May, 1915, the tank fell or was blown over, crashed through the roof of the building and killed her.

The appellant strenuously insists that this suit will not lie' for the reason that the liability occasioned by the death of the deceased is governed by the Workmen’s Compensation Act, because the deceased, her employer the. box company and appellant were all bound by the Compensation Act at the time of the fatal injury. Of course, if all three were bound by the act, appellant’s contention would necessarily be correct and this suit would not lie. Section 29, Compensation Act [Call. 1916 Stat. ¶ 5475(29)]; Friebel v. Chicago City Ry. Co., 280 Ill. 76, 16 N. C. C. A. 390. It seems to be conceded that the box company and the deceased were bound by the act, so that the only question to be determined on this phase of the case is whether appellant came within the purview of the act. Counsel for appellant argues (1) that since the declaration charges that appellant was the owner of the building and improperly built and maintained the tank it comes within paragraph b, sec. 3 of the Act [Call. 1916 Stat. ¶ 5475(3)], which provides that every employer engaged in maintaining, repairing or demolishing any structure shall he subject to the act; and (2) that the evidence shows appellant had four or five employees who were engaged as engineers and janitors of buildings other than the one in question; that these other buildings were equipped with elevators, steam boilers and water tanks and, therefore, the act applied to these employees; that where the death is occasioned by the act of a third party, as in the instant case, if the third party, as to its own employees, is bound by the act, the act determines the measure of liability. It is contended that the Friebel case is exactly in point.

The estate had no employees upon the premises in question. It was not there engaged in any enterprise or business, and the fact that it owned the building and tank was not sufficient to bring it within the act. Johnson v. Choate, 284 Ill. 214.

In the Friebel case, which counsel contends is controlling, an employee of the Hartman Furniture & Carpet Company brought suit against the street car companies to recover damages for personal injuries sustained by him. It was held that since all three of the parties were within the provisions of the act, the action would not lie. In that case the plaintiff was struck by a street car and injured. There the street car company was engaged in its extrahazardous business at the time and place of the accident. In the instant case, however, the deceased was not injured by appellant or his employees in the conduct of his business and the case, therefore, is clearly distinguishable. In Vaughan’s Seed Store v. Simonini, 275 Ill. 477, 14 N. C. C. A. 1075, it was held that an employer might conduct one branch of his business which would be hazardous and within the act, and another branch which was nonhazardous and not affected by the act, and that if an employee was injured while engaged in the nonhazardous branch of the business, the act did not apply. Since we havé held that appellant was not engaged in an extrahazardous business within the meaning of the act, so far as the building in question where the accident occurred is concerned, the act does not apply and plaintiff may maintain this suit.

Counsel further argues that the declaration fails to set up a cause of action in that there was no allegation that the Compensation Act was not applicable and that in the absence of such allegation the presumption is that the act applies, citing Beveridge v. Illinois Fuel Co., 283 Ill. 31, 17 N. C. C. A. 463. This objection might be available to the box company, but we think it is ndt applicable to appellant. The act provides that every employer mentioned shall be conclusively presumed to be bound by the act unless he has given the required notice not to be bound by it, and the Beveridge case holds that unless the declaration contains an allegation that the act does not apply, it does not state a cause of action, and it has been held that the same presumption applies where a suit is brought against a third person. Vose v. Central Illinois Public Service Co., 286 Ill. 519. But from the allegations of the declaration it clearly appears that appellant was not engaged in any occupation, enterprise, or business that was extrahazardous within the meaning of the act, therefore, no reference to the act need be made. Bowers v. Claxton, 212 Ill. App. 609.

Counsel next argues that the damages are grossly excessive. The deceased was 14 years old, in good health; could read and write the English language, and in addition to working at the box factory helped with the household work. She left her surviving her parents, brothers and sisters. In these circumstances we think the verdict cannot be held excessive. Chicago City Ry. Co. v. Strong, 129 Ill. App. 511; Swan v. Boston Store of Chicago, 177 Ill. App. 349, 7 N. C. C. A. 938; Delohery v. Quinlan, 210 Ill. App. 321.

It is further argued that the judgment is wrong since the tenant, the box company, under the terms of the lease, was required to keep the premises in repair, and at the time of the accident was in sole and exclusive control of the premises, and therefore it would have no right of action against the landlord for damages suffered on account of the premises being out of repair, and that the representative of the deceased would have no greater right than the tenant. Counsel admit there is an exception to this rule which permits a recovery against the landlord where a dangerous and defective condition by which the injury was caused existed when the premises were leased, or where the landlord installs inpprovements which are unsafe, but argue there is nothing in the record to indicate that the tank was out of repair at the time of the accident or unsafe when erected. Furthermore, it is said that the declaration which consisted of but one count contained no averment that it was erected in an improper manner in 1907, but the charge was that the tank was improperly maintained at the time of the accident, May 21, 1915, in violation of a city ordinance. It is insisted that this defect in the declaration was not cured by plaintiff’s replication, which for the first time .endeavored to bring into the ease the contention that the tank had been improperly constructed in 1907, and was insecure and unsafe; that plaintiff could not inject this matter into the case by way of replication, and although the trial court overruled appellant’s demurrer to this replication, yet the point was saved because appellant did not plead over by way of rejoinder, but stood by his demurrer. We think neither of the contentions can be sustained. While plaintiff’s declaration is primarily based on the violation of the city ordinance, which is set up in the declaration, and which makes it unlawful for any person to construct, maintain or allow, or permit to remain upon any roof any tank having a larger capacity than 400 gallons unless the tank shall rest upon a good and sufficient foundation of brick or stone masonry, or upon iron or steel construction, without first submitting plans to and obtaining the approval of the building commissioner and a permit for the construction of the tank, yet we think it is sufficient after verdict, at least, to sustain a judgment based on the fact that the tank had been improperly installed. It alleges a violation of the ordinance in the construction of the tank, and in addition it is averred that the tank fell “by reason of the fact that the foundation and supports of the tank were then and there insecure, weak, and out of repair.” Moreover, we think appellant failed to save the question of the propriety of the ruling of the court in overruling his demurrer to plaintiff’s declaration for the reason that at the time the demurrer was overruled and as part of the same order, on stipulation of the parties it was ordered “that upon the trial of this cause said defendants may introduce any material evidence that can or could be introduced by them under any plea or rejoinder that might be filed herein, or upon any issue that might be raised under any pleadings filed or which might be filed herein, and such evidence so introduced shall be given all the! weight it would receive if supported by the proper pleadings.” We think it clear that this order relieved appellant from filing a rejoinder, but permitted him to introduce evidence without the filing of it, that otherwise would be improper. No objection was made to any of the evidence introduced showing the time and method of the construction of the tank. But, in any event, with the whole record before us, we would not be warranted in reversing the judgment for the purpose of permitting the parties to raise in a more formal way an issue of which they have already had the benefit of a full trial. Lyons v. Kanter, 285 Ill. 336. There was evidence introduced tending to show that the steel “I” beams which supported the tank were insufficient in strength to carry the weight. It is true that there was evidence to the contrary, but the tank fell by reason of the “I” beams bending down and permitting the tank to fall over. This is undisputed. We think, therefore, that the evidence was ample to warrant the jury in finding that the beams were not of sufficient strength to support the tank. There was evidence tending to show that there was a high wind, and there is some contention by defendant that this wind, which almost reached the velocity of a cyclone, caused the tank to topple over, but we think after a careful consideration of all the evidence, that the jury were warranted in finding that the “I” beams were of insufficient strength. The landlord constructed the tank and, of course, the provision in the lease requiring the tenant to repair is not applicable and the ease, therefore, comes within the exception mentioned by counsel.

The evidence also tends to show that there was a violation of the ordinance set up in the declaration in the matter of the foundation on which the tank rested, as well as the “I” beams; that no permit had been issued and that the plans and specifications had not been submitted to the proper city officials. There was evidence offered by appellant tending to show a compliance with the ordinance, but this clearly was a question for the jury. But appellant argues very strenuously that although the ordinance is set forth in the declaration, no proof was made of it, and that since the circuit court does not take judicial notice of city ordinances, and since the declaration was based solely on the violation of the ordinance, the case must fall for the reason that the allegations were not proven. It is true that the circuit court does not take judicial notice of city ordinances. It is also true that no ordinance was introduced in evidence, and we regret to say that opposing counsel has made no attempt to answer the point, although he argues throughout his brief as though the ordinance had been received in evidence. Upon examination of the record, however, we find that witnesses were interrogated as to whether a permit had been issued; whether plans liad been submitted to the city officials, and in fact proof was offered by both sides tending to show on the one hand that the terms of the ordinance had been violated, and on the other that the ordinance had been complied with. Witnesses for appellant, on direct examination, testified that they were familiar with the city ordinances in reference to the erection of tanks and that the method of construction followed in installing the tank in question was in compliance with the ordinance. Counsel for appellant also submitted an instruction, which was given by the court, which told the jury that ownefis of buildings were permitted by ordinance to erect tanks on roofs of buildings, provided they were constructed in accordance with the ordinances of the city; that if the jury believed that the tank was erected in compliance with the ordinance, then it was not a nuisance. In these circumstances we think appellant is in no position to urge that the ordinance was not offered in evidence. The jury were supposed to be familiar with the declaration and they were instructed that the plaintiff was required to prove his case as laid in the declaration! We think that since both parties assumed that the ordinance declared on was in force and effect, by the manner in which the case was tried, and since plaintiff offered proof tending to show a violation of the terms of the ordinance and appellant offered proof tending to show the contrary, there is no substantial error in this regard.

We think it unnecessary to discuss the errors claimed to have been committed by the trial judge in the refusal of instructions offered by appellant for the reason that in most part they ¿re based on the theory of the legal responsibilities of the landlord for damages sustained by a servant df the tenant for failure to keep the premises in repair when the written lease required the tenant to do the repairing, and others on the theory that appellant was not liable even if it created a nuisance on the premises in the construction of the tank for the. reason that it was the duty of the tenant to abate the nuisance after learning of it. We think these were not applicable to the facts in the instant case and were properly refused. Among other things, some of them failed to take into consideration the fact of the violation of the' ordinance. It would serve no useful purpose to extend this opinion in a discussion of these instructions. We have gone over them carefully and believe that in these circumstances and under the evidence the refusal of the court to give them, even if it could be considered technically erroneous, would not warrant a reversal of the judgment.

On the whole we think the record is free from substantial error, and the judgment of the circuit court is, therefore, affirmed.

Affirmed.

» Mr. Presiding Justice Thomson and Mr. Justice Taylor concur,


source: Caselaw Access Project

license: Public Domain

text:
    A. Goldsmith, trading as A. Goldsmith & Company, Appellee, v. Florida East Coast Railway Company, Appellant.
    Gen. No. 24,730.
    1. Carriers, § 96

      —what law governs rights arising through delay. The rights of the shipper and the carrier of an interstate shipment arising through a delay in transportation are governed by the federal law.
    2. Carriers, § 98*—when evidence insufficient to show delay. In an action against a carrier to recover damages alleged to have been caused by a delay in transportation, evidence examined and held insufficient to establish a delay in transportation.
    3. Carriers, § 166*—construction of clause limiting time for presentation of claims. The provision in a bill of lading that claims for “loss or damage” must be made in 10 days after the arrival of the shipment at the ultimate destination is not limited to claims based on injury to the shipment, but covers also loss suffered by reason of delay in shipment.
    4. Carriers, § 166*—effect of application of limitation on time for presenting claims to claims based on delay. .The application of the requirement in a bill of lading that 10 days’ notice be gjven of "claims for loss or damage” to claims for damage caused by delay does not work a hardship on the shipper, ■ but puts in permanent form the evidence of an intention to claim damages and serves to call the carrier’s attention thereto, giving it an opportunity to investigate which might be lost if it were not notified until just before the statute of limitations had run.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed.
    Opinion filed March 18, 1920.
    Charles R. Young and John A. Sheean, for appellant.
    Charles A. Butler, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against defendant to recover damages claimed to have been sustained by reason of the delay in transporting a carload of potatoes from Hastings, Florida, to Chicago. There was a finding and judgment in his favor for $357, to reverse which defendant prosecutes this appeal.

The record discloses that plaintiff bought a carload of potatoes at Hastings, Florida; that a through bill of lading was issued by defendant company; that the car of potatoes left Hastings some time after 5 o’clock of the evening of April 15, 1914, and arrived in Chicago at 4:30 a. m. April 21, 1914; that it was placed for unloading at 6:50 a. m. of the same date, and the plaintiff, consignee, notified at 9:30 a. m. of the same day. Plaintiff’s claim was that if the car had been transported with reasonable dispatch it would have arrived in Chicago April 20, 1914, and by reason of the delay in the arrival of the car plaintiff lost the amount of his claim caused by a decline in the market. As the shipment in question was an interstate one, the rights of the parties are governed by national law. Adams Exp. Co. v. Croninger, 226 U. S. 491. It has been held that failure to transport goods from one State to another with reasonable dispatch renders the initial carrier liable for loss sustained by reason of a decline in the market. New York, P. & N. R. Co. v. Peninsula Produce Exchange of Maryland, 240 U. S. 34; Fox v. Chicago & N. W. Ry. Co., 199 Ill. App. 453.

Defendant contends that the evidence failed to prove that there was any delay in the arrival of the shipment in Chicago; that plaintiff’s claim, if any, is barred by reason of the fact that he failed to give written notice of his claim within 10 days after the arrival of the potatoes, as provided in the bill of lading. We think both of these contentions must be sustained. Plaintiff testifiéd in his own behalf that the usual and customary time required to transport a car of potatoes from Hastings to Chicago was 5 days; that he had purchased other cars of potatoes at Hastings and they arrived in Chicago on the morning of the fifth day after leaving Hastings. On cross-examination he admitted that he did not know what time of day any of these cars left Hastings. It was stipulated that the" car in question left Hastings after 5 p. m. and he testified: “If it starts at 5:00 p. m. or later on the 15th at Hastings, my idea is that it should be here on the 20th at 5 o’clock in the morning.” This is far from saying that if the shipment left Hastings later than 5 o’clock in the evening it would arrive here at 5 o’clock on the morning of the fifth day, which is the interpretation plaintiff’s counsel puts upon the testimony we have quoted. We think it clear that plaintiff did not know what time a car would arrive in Chicago which left Hastings after 5 o ’clock in the evening. His testimony simply is that it is his idea that it should arrive on the morning of the fifth day. James H. Giroux testified for plaintiff that 5 days was the usual time required for the transportation of a car of potatoes from Hastings to Chicago. On cross-examination he admitted that whether the car would arrive at Chicago on the fifth or sixth morning after shipment “depends entirely on what time the shipment moves out of the point of origin.” On redirect examination he further testified that the time the trains should leave Hastings depended upon the number of cars “that were presented to the carrier for transportation.” For the defendant, John F. Boylan testified that he was chief tracing clerk for one of the railroad companies and that the usual and customary time for shipment from Jacksonville, Florida, to Chicago was 5 or 6 days and that one day additional should be added for shipments originating at points south of Jacksonville, and that one day should be added to the Jacksonville time for cars coming from Hastings, which was 50 odd miles south of Jacksonville. Herbert A. Hellstrom testified for the defendant that he was a traveling freight agent for a railroad company, and that the usual and customary time required for transporting a car of potatoes from Hastings to Chicago was 6 days; that the car should arrive on the evening of the sixth day. Of course the time of day that the shipment started from the point of origin would be very material. For instance, if a car left Hastings early in the morning and was transported with reasonable dispatch, it might arrive in Chicago on the morning of the fifth day, while if the same car did not leave Hastings until late in the evening, it might not arrive until the morning of the sixth day. Upon a careful consideration of all the evidence, we think it insufficient to warrant the finding that there was a delay in the transportation of the shipment.

The bill of lading provides “that claims for loss or damage must be made in writing' to this company within ten days after the arrival of the goods at their place of ultimate destination, in case of fruit, vegetables and other perishable articles.” The plaintiff contends that while this provision may be valid, yet it is not applicable to the facts in the instant case, for the reason that there was no damage to the potatoes themselves, but that the only claim is that plaintiff suffered damage by reason of delay in the arrival of the car due solely to a decline in the market. It is contended that the reason for the rule requiring that notice be given as provided in the bill of lading is that the delivering carrier may make an examination of the fruit, vegetables, or the goods claimed to have been damaged, and in such case unless the claim is filed within the stipulated time, the defendant has no opportunity of making a defense. It is pointed out that in a case such as the one at bar, the market price of potatoes can be ascertained at any time whether notice of the claim is given within the time provided in the bill of lading, and therefore, the provision requiring notice is not applicable here. In support of this contention counsel cites Newman v. Union Pac. R. Co., 210 Ill. App. 13; Georgia, F. & A. Ry. Co. v. Blish Milling Co., 241 U. S. 190; St. Louis, I. M. & S. R. Co. v. Starbird, 243 U. S. 592; Jett v. Southern R. Co. (Tenn.), 169 S. W. 767; Chicago, R. I. & P. R. Co. v. Cunningham Commission Co., 127 Ark. 246, 192 S. W. 211; Illinois Cent. R. Co. v. Smith, 119 Miss. 308, 80 So. 776.

In the Newman case this court held that the provision of the bill of lading requiring notice must be complied with. That case involved a shipment of sheep, and we said that the requirement of notice was to afford the railroad company an opportunity to make an investigation and that “the requirement in some instances may seem harsh, but it is the voluntary obligation of the shipper for a consideration, and has an entirely practical and useful purpose,” citing Georgia, F. & A. R. Co. v. Blish Milling Co., 241 U. S. 190. In the Blish case it was held that the requirement in the bill of lading that notice be given within a specified time must be complied with and could not be waived. The subject-matter of that suit was a carload of flour which had been damaged in transit. The Court of Appeals of Georgia held the provision in the bill of lading requiring notice inapplicable, but the Supreme Court of the United States held this error, and that the notice must be given and could not be waived. The court said (p. 197): “A different view would antagonize the plain policy of the act (Carmack Amendment) and open the door to the very abuses at which the act was aimed.” In the Starbird case the bill of lading required that claims for damage be made within 36 hours after notification of the arrival of the freight. In that case a shipment of peaches was transported to New York City arriving in bad condition. The Supreme Court of Arkansas in passing on the question said the stipulation in the bill of lading requiring notice was reasonable, but as there was proof that a representative of the railroad company knew of the damaged condition of the peaches there was no necessity of giving notice. This was held to be erroneous by the Supreme Court of the United States. In the argument it was said that the necessity for giving notice promptly was to afford the railroad company an opportunity to examine the nature of the damage before the fruit was sold or destroyed. The court said (p. 605): “It is not difficult for the consignee to comply with a requirement of this kind, and give notice in writing to the agent of the delivering carrier. Such notice puts in permanent form the evidence of intention to claim damages, and will serve to call the attention of the carrier to the condition of the freight, and enable it to make such investigation as the facts of the case require while there is opportunity so to do.” In the Jett case there was a delay in the transportation of poultry during which some of the poultry died, and there was also a decline in the market. The court held that the requirement in the bill of lading that notice of claim be given was not applicable to the damage suffered by reason of the decline in the market, but that it was essential to warrant a claim for damages for the poultry that died while the shipment was in transit. The court said (p. 768): “As to the claim for damages on account of the depreciation in value by reason of the break in the market, the provision in the bill of lading respecting notice is not applicable. The damages contemplated by this clause of the bill of lading are those resulting to the live stock 'through injury or loss' in transportation. There would be no reason for applying this provision to damages occasioned by a fall in the market. Market fluctuations of well-known commodities are matters of record, and the carrier may make investigations and protect itself at one time as well as another against claims so arising.” To the same effect is the Smith case where the. court held that the loss mentioned in the bill of lading referred to “is the loss of the thing shipped, and the word ‘damage’ means some physical impairment of the article shipped, which physical impairment damaged the shipper’s pocketbook.’’ The holding in the two cases last mentioned is contrary in principle to the holding of the United States Supreme Court in the Peninsula Produce Exchange case. In that case, Mr. Justice Hughes, speaking for the court, held that it had been decided in the Croninger case, that the Carmack Amendment provided for the issuance of a bill of lading and the liability which a railroad company assumed thereunder. That act requires a common carrier receiving property for interstate shipment to issue a bill of lading, and further the carrier “shall be liable * * * for any loss, damage, or injury to such property caused by it or by any common carrier,” etc. It was there contended that loss or damage within the meaning of the Carmack Amendment meant loss or damage to the goods that were transported, and did not reach “the case of the failure to transport with reasonable dispatch.” It is there further said (p. 38): “The words ‘any loss, damage, or injury to the property,’ caused by the initial carrier or by any connecting carrier, are comprehensive enough to embrace all damage resulting from any failure to discharge a carrier’s duty * * *. The duty to transport with reasonable dispatch is none the less an integral part of the normal undertaking of the carrier.” By a parity of reasoning we think the provision in the bill of lading in the instant case requiring “claims for loss or damage” should be held to cover damage suffered by reason of delay in shipment. Since the bill of lading required notice to be given within 10 days, and since it is conceded that this was not done, the claim is barred. In this connection we might say that there would be no hardship in requiring notice of a claim for damages to be filed within 10 days. Snch notice, as was said in the Starbird case, would put in permanent form the evidence of an intention to claim damages and would serve to call the attention of the railroad company to that fact. They would then be afforded an opportunity to investigate the evidence as to whether there was a delay in the shipment of the car. But if no notice were required and the suit were not brought until just before the statute of limitations had run, it might be difficult, if not impossible, to secure the evidence on this point. The records might be lost or mislaid, employees might be dead or no longer working for the company or otherwise unavailable, and a great many other matters that might readily be suggested could easily prevent the production of the necessary evidence. We think the provision of the bill of lading was reasonable, that it was applicable to the case at bar, and the court should have so held, as requested.

The judgment of the county court of Cook county is reversed.

Reversed.

Mr. Presiding Justice Thomson and Mr. Justice Taylor concur.


text:
    Felsenthal Brothers and Company, Appellant, v. Ben Gradwohl, Appellee.
    Gen. No. 24,739.
    1. Masteb and sebvant—liability of employee for advances in excess of commissions. Where a salesman’s contract with his employer provides that he is to have a weekly expense allowance and a monthly drawing account and is to receive a percentage of the profits on sales made by him and that the expense account and drawing account are to he charged against him and deducted from profits that he makes on the merchandise he sells for the employer, it is not intended that the money advanced the salesman shall he repaid the employer in case the salesman’s commissions did not equal the advances.
    2. Account stated, § 4

      —When not shown. In an action by an employer against a salesman to recover amounts advanced in excess of commissions earned, evidence held insufficient to entitle plaintiff to recover on the .theory of an account stated in that it did not show a demand for payment.
    3. Account stated, § 4*—second refusal not required where payment previously refused.. Where payment of a statement rendered is once refused, it is not necessary to refuse it again, when it is sent a second time, to prevent an account stated.
    4. Tbial, § 191*—when verdict properly directed. Where there is no conflict in the testimony and it is not such that conflicting inferences may reasonably be drawn therefrom, the direction of a verdict is proper.
    Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Keajbns, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed March 18, 1920.
    Frank Schoenfeld, for appellant.
    Mayer, Meyer, Austrian & Platt, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against defendant claiming $2,704.30 for money had and received and on an account stated. Defendant denied that he was indebted to the plaintiff for money had and received or on an account stated, but admitted that he owed plaintiff $74.14 for merchandise and tendered this amount. The case was tried before a judge and a jury and at the close of plaintiff’s case there was a directed verdict for plaintiff for $74.14, the amount which defendant admitted he owed. Plaintiff prosecutes this appeal to reverse the judgment.

The record discloses that plaintiff was engaged in the wholesale 'jewelry novelties business in Chicago and employed defendant, a resident of Nebraska, as salesman. The terms of employment were evidenced by a written contract dated September 2, 3913, which, so far as material, provided that defendant was to receive 40 per cent of the profits of goods sold by him, $45 per week traveling expenses while on the road, and a drawing account of $250 per month. The traveling expenses and the drawing account were to be charged against defendant and deducted from his 40 per cent of the profits. The agreement was to run for 12 months unless other arrangements were made. It further provided that it would “continue in force, renewing itself, until canceled by either party. ’ ’ Plaintiff began work under the contract and continued until December, 1915, when he left the employ of plaintiff. During that time, he drew weekly $45 traveling expenses, and-the $250 monthly until March, 1915, when the monthly drawing account was reduced to $200 and the basis of his commission changed from 40 per cent of the profits of his sales to 16% per cent of the gross sales. February, 1916, plaintiff mailed to defendant a statement of the account covering the entire period of employment, which concluded:

“Total charges $10,862.17

Less Commissions 8,157.87

Overdraft 2,704.30”

About a year afterwards, January 13, 1917, defendant mailed plaintiff a cheek for $74.14, the amount he admitted he owed plaintiff for merchandise, which check bore the following: “In full of all claims.” This check was received by plaintiff in due course, and on March 7 following, plaintiff wrote defendant inclosing a statement of the account and asking payment. The check for $74.14 was returned as it was stated plaintiff could not accept it in payment in full as it was marked. It appears that during substantially the entire period of employment the money which defendant drew was more than his commissions amounted to. The witnesses all testified that the weekly and monthly amounts drawn by defendant were to be charged against the amount which he earned as commissions. The court held that there was no personal liability on defendant to repay the plaintiff, but that defendant would be only liable in case his commission account , exceeded the • advances' made to him. In this we think the court was clearly right. The question resolves itself into an interpretation of the contract entered into by the parties. It is expressly provided» that the expense account and the drawing account “is to be charged against me, and to be deducted from profits that I make on the merchandise that I sell for them.” This language is clear and unambiguous. It clearly means that there was no intention of the parties that the money advanced the defendant from time to time should be repaid to plaintiff in case defendant’s commissions did not equal tile advances. Auerbach v. Ramer, 80 N. Y. Misc. 645, 141 N. Y. Supp. 848; Gannon v. Tyree, 148 Ill. App. 99; Schlesinger v. Burland, 42 N. Y. Misc. 206, 85 N. Y. Sapp. 350.

But plaintiff contends there was an account stated and that he was entitled to a judgment on that theory. We cannot agree with this contention. The evidence is far from sufficient to establish an account stated. So far as the record discloses there was never a demand on defendant for payment except when he received a statement through the mail March, 1917. The evidence shows the account was checked over by the parties in March or April, 1915, but no demand was made for any payment nor was any claim made that there was aiiy balance due plaintiff at that time, although plaintiff’s commissions were less than the money drawn by him. Afterwards when the account was again checked over, September, 1915, there is no evidence of any demand made for payment, nor is there a word of evidence that any claim was made that there was a balance due plaintiff. An itemized statement of February, 1916, appears in the record showing an overdraft which is the amount of plaintiff’s claim, but there is no evidence that plaintiff demanded this sum be paid at that time, unless it might be inferred from the fact of mailing the statement. After this was received, however, defendant mailed a check for some merchandise which was included in the statement. If it could be held that this last statement might be construed as a demand for payment, defendant, by mailing the check, in effect refused to pay it, and having done so he was not called upon, when afterwards plaintiff mailed another statement, to again refuse to pay it in order to prevent an account stated.

We think it clear that there was no question of fact to be submitted to the jury as plaintiff contends, and the court did not err in directing the verdict, but on the contrary it was his duty to do so. There was no conflict in the testimony nor was it such that conflicting inferences might reasonably be drawn from it. Therefore, the verdict was properly directed. St. Louis Nat. Stock Yards v. Wiggins Ferry Co., 102 Ill. 514.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Mr. Presiding Justice Thomson and Mr. Justice Taylor concur.


author: Mr. Justice Taylor

text:
    N. C. Sorensen, Administrator, Appellant, v. Chicago Railways Company et al., Appellees.
    Gen. No. 24,720.
    1. Street railroads, § 66

      —duty to driver of automobile in dangerous situation. Even though one driving an automobile along a street car track gets himself, through his own negligence, into a dangerous situation, if, after he finds himself in danger, he exercises ordinary care, it is the street-car motorman’s duty to avoid colliding with the automobile, if by the exercise of ordinary care he can do so, and a breach of that duty on the motorman’s part may entail liability upon the street railroad company for injuries caused by the collision.
    2. Street railroads, § 66*—care required as to automobile in dangerous situation. A motorman seeing an automobile approaching on the car track ahead of him and another street car approaching behind the automobile on the other track is chargeable with the knowledge which ordinary care will give him, and, having that knowledge, is bound to exercise ordinary care appropriate to the particular situation.
    3. Street railroads, § 131*—sufficiency of evidence in action for death of driver of automobile caught between two cars. In an action against'a street railway company to recover for the death of one killed when the automobile which he was driving was crushed between cars coming from different directions on a street, the snowbanks on the sides of 'which prevented the automobile from getting away from the car lines, evidence examined and held sufficient to sustain a judgment for defendant.
    • 4. Evidence, § 277*—admissibility of photographs of scene of accident. In an action against a street railway company to recover for the death of one killed when the automobile which he was driving was crushed between two street cars approaching from opposite directions, photographs of the locus in quo taken the morning after the accident and not purporting to show the relations of the cars and the automobile at the time of the accident but offered merely to give the jury a general picture of the surface of the street as it existed about 14 hours after the accident are admissible.
    5. Trial, § 91*—when objection to admission of photographs insufficient. A statement by plaintiff’s counsel, “I will preserve my objection,” upon the introduction of photographs of the locus in quo of an accident, is not a sufficient objection to their admission in evidence.

      6. Street railroads, § 148

      —when instruction properly modified 6y requiring driver to use care to extricate himself from position of peril. In an action to recover for the death of a person killed when the automobile which he was driving was crushed between two street cars approaching from opposite directions on different tracks, an instruction which does not require that it be shown that deceased, after he was in danger, exercised ordinary care to extricate himself, is properly modified by adding that it was his duty, after having exposed himself to the risk, to make such efforts to avoid injury to himself as an ordinarily reasonable man in the exercise" of due care for his own safety would exercise under such circumstances, since a failure on his part to exercise such care would make his negligence as much the proximate cause of the injury as was the motorman’s negligence.
    7. Appeal and error, § 1637*-—when instructions not ground for reversal. Instructions in an action to recover for the death of one killed when the automobile which he was driving was crushed between two street cars, while in some measure inapt to the declaration in charging upon the question of wilfulness and wilful injury, since the declaration charged wilful negligence, held not to be ground for reversal since the law applicable to the facts was properly presented in other instructions.
    8. Appeal and error, § 1411*—consideration of verdict in conflicting evidence. Where, in a personal injury case in which the evidence is conflicting, the jury find for the defendant, the reviewing tribunal will treat the jury’s finding with considerable respect.
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed March 18, 1920.
    Cleland, Lee & Phelps, for appellant; Lester E. Lee, of counsel.
    Harry P. Weber, George W. Miller and Arthur J. Donovan, for appellees; John R. Guilliams and Robert J. Slater, of counsel.

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

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

   Mr. Justice Taylor

delivered the opinion of the court.

The plaintiff, as administrator of the estate of Alfred Sorensen, deceased, brought suit against the defendant, the Chicago Surface Lines, for damages for the death of Alfred Sorensen who was killed when an automobile which he was driving was crushed between two street cars belonging to the defendant. A trial was had and the jury brought in a verdict finding the defendant not guilty. This appeal is taken therefrom.

The declaration consists of three counts. The first count alleged that the deceased was driving an automobile northwesterly along Milwaukee avenue, on which the defendant was operating street cars; that the deceased was in the exercise of due care; that it was the duty of the defendant to use ordinary care; that the defendant did not regard their duty or exercise due care but did then and there “operate and move in a highly wilfully and grossly negligent and grossly reckless rate of speed, and in other respects show carelessness and wilfully, negligently and grossly negligently drive and operate said street car, which was then and there being driven in a northwesterly direction; that by and because of the wilful, careless, reckless and wilfully and grossly negligent conduct of the defendant, * * * both of the said street cars then and there entrapped and ran against said automobile ” and crushed it; that the said Milwaukee avenue was in an unsafe condition and unfit to travel and dark and obstructed on each side by a barrier of great size of snow, ice and street accumulations; that the automobile necessarily and unavoidably slipped towards and was forced and confined between and entrapped between the street cars of the defendant so that both of said street cars of the defendant ran against and crushed the automobile with great force and violence and thereby “because of the recklessness, carelessness and wilful and gross, negligence ” of the defendant, Alfred Sorensen, was struck and crushed with great force and violence and killed.

The second count is similar to the first count except that its allegations of neglig’ence, etc., pertain to the driving of the street car which was traveling southwest along Milwaukee avenue.

The third count is similar to the first count except that the allegations of negligence, etc., pertain to the operation of both of the street cars referred to in the first count. The ad damnum is $10,000.

The defendant filed a plea of the general issue. The suit was originally brought against the Surface Lines and the City of Chicago. On February 21, 1918, the plaintiff discontinued as to the latter.

The accident occurred somewhere between 7:00 and 7:30 p. m., after dark, on Sunday, January 24, 1915, on Milwaukee avenue, about 10 feet south of the south line of Catón Place. It was a cold day and the ground was covered with snow. The automobile, which belonged to N. C. Sorensen, the father of the deceased, was an Abbott-Detroit seven-passenger touring car. Alfred Sorensen worked for his father in the express business; he had had experience in driving a truck for about 4 years; he had driven the Abbott-Detroit for about 3 or 4 months. On the Sunday in question, he had taken the touring car out, for a ride, and at about 5 o’clock in the afternoon, he had with him in the machine three friends, Deichstetter, Wittig and Sodman, having met them at Fullerton and Milwaukee avenues. Sorensen drove the machine through Lincoln Park along the Lake Shore Drive, down Michigan avenue to Madison street then on Madison street to Delphino’s saloon, where another associate, one Arrighi, got into the machine. That was about 6 p. m. The young men were intending going to the Star and Garter Theater on Halsted and Madison streets, where they generally went on Sunday evening. At about 6 p. m., for about 20 minutes, they stopped at Delphino’s saloon and some of them had some drinks. Sorensen did not drink anything intoxicating. After .Arrighi got in, they drove west on Madison to Eobey street, north on Robey street to another saloon where they stopped about 10 minutes in order that Wittig could pay a debt to the saloonkeeper. Sorensen, there drank nothing intoxicating. They then drove north on Robey street to Milwaukee avenue. Sorensen, the deceased, was driving and Deichstetter was sitting with him in the front seat; Arrighi was in the middle, on the back seat; Wittig on his right and Sodman on his left. They were going to take the automobile to 1800 North Western avenue, and take a Western avenue street car back to Madison street and then an eastbound Madison street car to the Star and Garter Theater to attend a play which began at 8:15. They turned northward into Milwaukee avenue at Robey street.

Milwaukee avenue runs northwesterly and southeasterly. The top was up on the automobile and the side curtains down. Sorensen drove in the northwesterly bound track for about a half block when, hearing a street car' bell behind, he turned into the southeasterly bound track. Arrighi states that the automobile went some distance and then started to turn back, but then another car, called the Armitage avenue car, going northwesterly, came up; that as soon as they turned on the southeasterly bound track they saw a southbound Milwaukee avenue car about two blocks away; that Sorensen tried to get ahead of the Armitage avenue car, but he did not have time; that they ran about half a block before the automobile was struck. He further stated that Sorensen tried to get over on the west side but could not owing to a ridge of snow 8 or 12 inches high along the track; that the speed of the automobile was increased towards the last, when they saw the Milwaukee avenue car was right on top of them, and tried to get ahead of the Armitage avenue car; that car increased its speed too; that they did not have time to get behind it; that the collision occurred about 400 or 500 feet from North avenue; that both Wittig and he spoke to Sorensen about pulling out to the left just after trying to get on the northbound track.

Deichstetier’s evidence is that he was in the automobile from about 5 o’clock p. m. until 7:30, just before the accident, save for the time he spent in certain saloons with his friends; that he had his first drink that day at Delphino’s and had about a dozen drinks of beer before the accident; that he did not remember anything that happened after they turned from Robey street into Milwaukee avenue; that he was not under the influence of liquor. His inability to remember is unexplained.

The evidence is conflicting as to the exact relation of the two street cars and the automobile just before and at the time of the collision. It is a fair inference, however, that just before the disaster Sorensen had driven the automobile partly over towards the west rail of the northbound track, and that, at the moment of impact, he either was going northwesterly and was struck by the Milwaukee avenue car and the automobile crushed between it and the Armitage avenue car —and the greater weight of evidence favors that conclusion—or simply caught about evenly between the two street cars and crushed. There is evidence that just before the collision the' two cars were going 15 miles or more per hour and that the antomobile was going faster than the Armitage avenue car. The cause was tried before a jury and a verdict rendered finding the defendant not guilty. Judgment was entered on the verdict. This appeal was taken therefrom.

It is the contention of the plaintiff (1) that even though the plaintiff had negligently put himself in a place of danger and thus exposed himself to risk of injury, yet, if such injury was proximately caused by the defendant’s omission or failure, after such notice of plaintiff’s danger as would put a prudent man upon his guard to avoid the injury, and the defendant did not use ordinary care to avoid injury to the plaintiff, then the defendant would be liable; (2) that the admission of certain photographs was erroneous; (3) that error was committed in the refusal and giving of certain instructions.

(1) The plaintiff blames the defendant because the motorman of the Milwaukee avenue car, after he had notice of the plaintiff’s danger, did not do those things which would have prevented the collision. He claims that the proximate cause of the disaster was the motorman’s failure to act with ordinary care after he saw the situation of the two street cars and the automobile, and knew approximately their speed and what would normally take place unless something was done by him to prevent it. He insists that the motorman, under the circumstances, if he had exercised ordinary care, had a fair chance to prevent the collision; that, although Sorensen, through his own negligence, had gotten into a seemingly dangerous situation, the disaster would not have occurred if the motorman had been careful. And, if the evidence sufficiently proves those facts and that Sorensen, after he found himself in danger, exercised ordinary care, we are inclined to agree, and to submit that it was the motorman’s duty to prevent the collision, if by the exercise of ordinary care he could do so; and that a breach of that duty might entail liability. In Illinois Cent. R. Co. v. Godfrey, 71 Ill. 500, where the plaintiff being unlawfully upon the track of the defendant railroad was injured by a passing train, the court said: “And if defendant’s servants, who were in the management of the engine,' after becoming aware of plaintiff’s danger failed to use ordinary, care to avoid injuring him, deféndant might be liable.” Swanson v. Chicago City Ry. Co., 242 Ill. 388; Chicago West Div. R. Co. v. Ryan, 131 Ill. 474. But, although, in the instant case, the motorman was chargeable with the knowledge which ordinary care would give him, and, having that knowledge, was bound to exercise ordinary care, appropriate to the particular situation, it was for the jury to say whether his actual conduct, as shown by the evidence, in driving the street car as he did, was negligent, and also whether 'Sorensen, after being in danger, was negligent.

It may lie argued that Sorensen, when he found himself faced with the Milwaukee avenue car, and first undertook to go over to the west and failing there then undertook to get ahead of the Armitage avenue car, was in the exercise of ordinary care, was exercising “the degree of care required of him under the circumstances”—Mr. Justice Cartwright in the Swanson case—and so was not guilty of that negligence which was the proximate cause of the injury; that is, considering the three participants, the two motormen of the street cars and the driver of the automobile, just prior to the collision, when the three vehicles were all in motion, and near to each other, the proximate cause of the disaster was the omission of the motorman of the Milwaukee avenue car, Sorensen, having done all he could, with at least ordinary care, after he found himself entrapped. In other words, that the only one who failed to exercise ordinary care, after the three moving vehicles were in imminent danger of. a collision, was the motorman of the Milwaukee avenue car; and that, therefore, his omission, or failure to act with ordinary care, was alone the proximate cause of the disaster.

Counsel for the plaintiff admit that the automobile, being in a trap, was undoubtedly speeded up to get ahead of the Armitage avenue car, and argues that that was the only means of escape, there being ice and snow as a barrier to the west; that the only chance to escape injury was to do what he did and rely upon the motorman on the Milwaukee avenue car to exercise ordinary care and slow up or stop.

The question arises, did Lamby, motorman of the Milwaukee avenue car, have an opportunity, with the exercise of ordinary care, to avoid the collision. Lamby was 27 years of age and had been a motorman for about 3 years. He had driven over the place in question for 2 years. On the night in question his last stop was at Bloomingdale road, two blocks north. He says he first saw the automobile when it was about 300 feet away, and that it came out from behind, the Armitage avenue car and crossed the southbound track and went over between the curb and the southbound rail, that its speed was then increased and it crossed back over the southbound track and ahead of the Armitag-e avenue car, for about 50 feet, and then turned back on towards the southbound rail, and “was zigzagging back and forth from the south to the northbound rail”; that then his car and the automobile collided, the southeast corner of the car striking the left side of the automobile. He says, that he had the power on when he first saw the automobile, but that lie threw it off when he saw the automobile go out on his track, and that he put fit back on when he saw the automobile driven in front of the Armitage avenue car. Throwing off the power, he says, had decreased the speed of his car about 5 miles an hour. Further he says that when the automobile again went back on his track he threw off the power, applied the brakes and reversed and put on the sand, and that after his car struck the automobile the front end of the car ran within 10 feet of the south end of the Armitage avenue car, and that the rear trucks on his car left the rails towards the west; that he, himself, was cut about the face and stunned; that the fuse on his car blew out just before the accident, that being usually caused by reversing the motors; that the Armitage avenue car was moving slowly at the exact moment of the collision. He also states that if his car was going 24 miles an hour it could be stopped in about 200 feet, and at about 15 miles an hour, in about 75 feet. On cross-examination he stated that when he first saw the automobile he was on eight points going 15 or 18 miles an hour; that he generally threw his power off and on once or twice in a block. Also, that at the time the automobile began to zigzag he was going from 15 to 18 miles an hour and that for 25 feet, before his car collided with the automobile, he was running with the motors reversed and the sand going. As to the speed of his car, he stated that he did not believe it was 12 miles an hour.

On the subject of the speed of the Milwaukee avenue car, besides Lamby, six witnesses testified: Boss puts it at between 16 and 20 miles an hour; Winn; the conductor, at 17 to 18 miles an hour about 4 seconds before the accident; Hanson, that the car was going faster than usual in going from Bloomingdale road up to the time of the accident; Cuyeci, that it was running on nine points up to the time of the accident; Frederickson, that it was going 30 miles an hour; and Kellner, that it went 25 miles an hour from Bloomingdale road to the time of the accident.

The evidence as to the conduct of the motorman, that is, in driving the Milwaukee avenue car, is contained in the testimony—outside of his own—of the witnesses Boss, McGrath, Winn, Hanson, Cuycci, Frederickson and Kellner. All those witnesses were on the Milwaukee avenue car at the time and all on the front platform, except Alice McGrath and Winn, the conductor. The evidence of Boss is that he suddenly felt a jolt when the automobile was 90 to 100 feet away; that of McGrath, that the motorman put on the brakes just before the crash; that the car gave a jerk and then the collision occurred; that of Winn, that there was an application of air at Catón street; immediately afterwards there was a flash and a fuse was blown; that between the flash and the collision one or two seconds elapsed; that of Hanson, that previous to the impact he felt no noticeable diminution of the speed of the car from the time it was a block away until a second before; that of Cuycci, that the car was running on nine points; that the motorman did not turn the controller off at any time up to the time of the accident; that before the impact he did not feel any jar; that he did not know whether air was applied or the motors reversed before the impact; that he did not see the motorman do anything to shut off the power or put on the brakes before the collision; that of Frederiekson, that from Bloomingdale road it made no stop until the impact; that the controller was wide open when he first saw the automobile 100 feet ahead; that he did not see the motorman turn off the power or at any time do anything; that he felt no jar until the collision; that the speed of the car did not appear to lessen previous to the final impact; that a fuse was blown after the ear left the rails; that he did not know whether the motorman applied the air and reversed at time; that of Kellner, that the car was going 25 miles an hour when it left Bloomingdale road and did not slacken its speed previous to the accident; that the controller handle was turned over all the way and the power was all on; that the motorman did not appear to do anything up to the time he struck the automobile; that he did not see him put on the brakes or reverse the motor or turn off his power before the collision.

Concerning the speed of the Armitage avenue car, Speckt, a bookkeeper who was on that car at the time, says that it was going at a pretty fair rate of speed but that it seemed to come to a dead stop at the time of the collision. Blonsky, a peddler who was standing at the comer of Milwaukee avenue and Wabansia, puts it at 15 miles an hour. Disseldorf, the conductor of the Armitage avenue car, puts it at 20 miles an hour about 4 seconds before the accident. Blake, the motorman, at about 15 mileis an hour when the automobile was trying to pass, but t-Ufit- he slackened the speed and was at a dead stop at the time of the collision. Cuycci and Frederickson, both of whom were on the front platform of the Milwaukee avenue car, put it at 30 miles an hour.

From the foregoing analysis of the testimony of the various witnesses concerning the speed of the two cars and the actions of the motorman of the Milwaukee avenue car, it is obvious that there is a sharp conflict, especially as to the speed of the Milwaukee avenue car and the conduct of the motorman Lamby. Lamby says he threw the power off when he first saw the automobile and then threw it on again when he saw the automobile go out on the north track. He further says he was going 15 to 18 miles an hour when the automobile was zigzagging and about 25 feet before the collision he was running with the motors reversed and the sand going. That, by itself, tends to prove that he not" only recognized the dangers of the situation but exercised appropriate care. Boss, in part, corroborates Lamby in that he says he felt the jolt when the automobile was 90 to 100 feet away. Likewise the witness McGrath indicates that at least the brakes were put on before the crash came. Winn’s testimony is also in corroboration of Lamby as he says there was an application of air at Catón street and then a fuse was blown and then one or two seconds afterwards the collision. On the other hand, the testimony of Hanson, Cuycci, Frederickson and Kellner is to the effect that the speed of the Milwaukee avenue car was not decreased prior to the collision, save that Hanson limits it to a second before. Cuycci and Frederickson also testified that they felt no jolt until the collision, and they, and also Kellner, testify that they did not see the motorman turn off the controller up to the time of the accident.

Having given painstaking consideration to all the evidence, and bearing in mind that there is evidence tending to prove that the motorman of the Milwaukee avenue car was in the exercise of ordinary care in endeavoring to avoid the disaster, and that the jury brought in a verdict for the defendant, we feel bound to sustain the judgment.

(2) It is claimed by counsel for the plaintiff that the. trial court erred in admitting in evidence certain photographs of the locus in quo. The witnesses, Deutsch, a photographer, testified that he took some photographs of Milwaukee avenue in the vicinity of Alice and Catón Place in January, 1915. "When asked if he made a record or memorandum of it, at the time, he answered: “I had a card, yes sir.” He was then asked, if, by looking at the memorandum, he could refresh his recollection so as to state correctly the date. To that, counsel for the plaintiff objected unless his recollection was exhausted. Then counsel for the defendant asked the witness if, without looking at the memorandum that he made, his recollection was clear as to the date, and then if he could not recollect the exact date to say so, to which the witness answered: “No" sir, I can’t recollect it, it is on the card.” Following that, he was asked the question, on what date did you take the photographs, and he answered Januarv 25. When asked the hour he stated: “About 10:25.”

When counsel for the defendant, after showing by the witness that the two photographs were correct representations of the street as it existed at that time, offered it in evidence, counsel representing the plaintiff merely said: “I will preserve my objection.” To that the court responded: “The objection is overruled,”

On cross-examination the witness stated that he received a card in the morning, did his work, and returned with the card filled out, and that it was put away by his superior. He further stated that the original card, which his chief made out, was at the office, and that the one then before him in court was not the original card but that he put the time down on the card he had. Counsel for the defendant then said: “Well then I don’t need to send over to get that.” Counsel for the plaintiff responded: “Oh, not in this case.” The witness further stated on cross-examination that the pencil memorandum on the card was made by him at the time, and when asked whether he had an independent recollection, he stated that the date was January, 1915, and that in a way he had an independent recollection and that what was on the card was the truth. A close examination, of what the record contains concerning the proffer and admission of the photographs, shows that not only no sufficient objection was made, but that counsel for the plaintiff quite properly waived sending for certain evidence as to the time mentioned and was satisfied to let the evidence, that was in, stand.

As the two photographs were taken on the morning of January 25, 1915, “of Milwaukee avenue in the vicinity of Alice Place and Catón Place,” as the photographer testified, and that being the locus in quo, we know of no reason why they were not competent. They did not purport to show the relations of the cars and the automobile at the time of the disaster; they were offered merely to give the jury a general picture of the surface of the' street as it existed about 14 hours afterwards. We are of the opinion that their admission was not error.

(3) It is contended that the trial judge erred in making an alteration in a certain proffered instruo tion. The latter instruction did not require that it be shown that Sorensen, after he was in danger, exercised ordinary care to extricate himself. The court interjected the words “after having exposed himself to such risk and injury, he thereupon made such efforts to avoid injury to himself as an ordinary reasonable man in the exercise of due care for his own safety would exercise under such circumstances,” Those words were essential. As said in Dyerson v. Union Pac. R. Co., 74 Kan. 528: “If just before that climax only one party had the power to prevent the catastrophe, and he neglected to use it, the legal responsibility is his alone. If, however, each had such power and each neglected to use it, then their negligence was concurrent, and neither can recover against the other. ’ ’

If the jury believed that Sorensen was negligent up to the last moment, that he could and should have gone, if he exercised ordinary care, over to the north between the tracks and the curb, or that he should have tried to stop, and did neither, then, even though they were of the opinion that the motorman of the Milwaukee avenue ear was guilty of negligence, there would be no liability; the reason being that the proximate cause was as much the - negligence of Sorensen as the motorman.

Complaint is made that error was committed in giving certain instructions to thé jury wherein the word “wilfulness” and phrases “wilfully injure” and “wilfully injured” were used, the theory of the plaintiff being that the declaration did not charge the defendant with any wilful injury but charged that the defendant operated and moved its cars at a “high wilfully and grossly negligent and grossly reckless rate of speed,” and did “so careless and wilfully negligently and grossly negligently drive and operate,” etc. In the declaration the words “wilful” and “wilfully” are used as adjectives modifying the words “negligently” and “negligent conduct.”

One of the twenty instructions given for the defendant is as follows:

“Before the plaintiff can recover against the defendants on account of wilfulness, he must prove by a preponderance of the evidence that the conduct of the defendants was wilful. Wilfulness sometimes implies an intention to inflict an injury or damage, and sometimes it is evidenced by such a want of care and regard for the rights and safety of others as implies a complete disregard of consequences. You cannot find the defendants guilty of wilfulness unless you believe from a preponderance of the evidence that the servant or servants of the defendants, in charge of the car or cars in question, intentionally inflicted the injury to the deceased complained of, or that his or their conduct indicated such a want of care for the safety of others as implied a complete disregard of consequences. And if you believe from the evidence, under the instructions of the court, that the conduct of none of the servants of the defendant was wilful, you must find in favor of the defendants as to the charge of wilfulness.”

Although that instruction was in some measure inapt as the. declaration did not charge wilfulness or wilful injury but wilful negligence, we are of the opinion that instructions 14 and 15 sufficiently clearly and exhaustively announced to the jury the law that was actually applicable to the evidence presented.

Although we have found great difficulty with this cause and do not feel strongly convinced that our judgment is right, we are necessarily impressed with the fact that the evidence was conflicting, and also, that the jury found for the defendant; and as we said in Levinson v. Morse, 216 Ill. App. 637, “Where in a personal injury case, after a fair trial, a verdict has been rendered for the defendant, it is but reasonable that a court of review, detached as it is from the pregnant atmosphere of the trial court, should treat that conclusion with considerable respect.”

Finding no error in the record the judgment is affirmed.

Affirmed.

Mr. Presiding Justice Thomson and Mr. Justice O’Connor concur.


author: Mr. Presiding Justice Niehaus

text:
    Ole L. Nielsen, Appellee, v. Maude C. Gail, Administratrix, Appellant.
    Gen. No. 6,632.
    1. Equity, § 537

      —when motion to vacate decree properly denied. Where a motion to vacate a decree for complainant and dismiss the bill or re-refer the cause to take ■ further proofs to be offered by defendant does not state sufficient grounds for setting aside the decree and the additional proof which defendant desires taken is not set out in the motion nor in defendant’s affidavit in connection therewith, the motion is properly denied.
    2. Specific performance, § Tl*^-when ability and‘Willingness to perform sufficiently averred. The averment in a bill for the specific performance of a contract for the sale of an interest in land that complainant is ready and willing and offered to perform said agreement on his part and to pay the residue of the purchase money to the defendant who might be decreed entitled thereto is substantially, if not technically, a compliance with the requirement as to averring that complainant aver that he is ready, willing a,nd able to perform.
    3. Equity, § 291*—what defects in bill waived by answer. The right to question the legal sufficiency of the averment in a bill for specific performance that complainant is ready, able and willing to perform is waived by filing an answer to the bill.

      4. Specific performance, § 93

      —when decree may require accounting for rents and profits. On a bill for specific performance of a contract for the sale of an interest in real estate, where, under the contract, complainant has the right to one-half of all of the profits arising from the income of the property and there is nothing therein precluding the application of the net amount of rents to which he is entitled to the payment of any balance due from him on the purchase money, the decree for complainant may properly require an accounting to be had of the rents and profits.
    5. Specific performance, § 29*—-when complainant not deemed to have abandoned rights under contract. On a bill for specific performance of a contract for the sale of an interest in realty, the fact that complainant stated to one of the defendants who had purchased the property from the other defendant that he was willing to take the amount which he, complainant, claimed to have put into the property and forego his rights under the contract, is not sufficient to show that complainant abandoned his rights under contract and led such defendant to believe that he did not intend to enforce it, where the evidence also shows that such defendant never manifested any disposition to pay the amount and settle the controversy, and that complainant energetically continued and persisted in his efforts to maintain his rights.
    6. Executors and administrators, § 70*—status of surplus on mortgage foreclosure sale. The surplus remaining of the purchase money paid by the purchaser of real estate on foreclosure is not impressed with the character of real property but is personal property belonging to the owner of the foreclosed property, and becomes, upon his" death, a part of his personal estate and passes to his personal representative, and it is not necessary, therefore, to make such owner’s heirs parties to a proceeding to reach such balance.
    7. Equity, § 435*—how accounting before master may be questioned. To question, in either the circuit or Appellate Court, the correctness of an accounting had before a master, the party objecting should file specific objections to the master’s report, calling attention to the particular items claimed to have been improperly allowed or disallowed, general objections to the master’s conclusions and the result of the accounting being insufficient.
    Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed March 9, 1920.
    David H. Jackson, for appellant; Ernest L. Gail, of counsel.

      Cooke, Pope & Pope, for appellee.

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

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case, we filed an opinion, at the last, April term and afterwards granted a rehearing to re-examine some of the questions involved. in the controversy. We have not reached any different conclusions however, either as to the facts shown by the record, or the law applicable to them.

The proof shows that Ole L. Nielsen, the appellee, on the 19th of March, 1912, entered into a written contract with Gustav D. Carlson and Ida Carlson his wife, by the terms of which he became the purchaser of an undivided half interest in two lots in the City of Highwood, which are described in the contract, and for which he was to pay to Carlson the sum of $750; $400 was to be paid in cash, and the balance in one year after the date of the contract. This contract of purchase however was made subject to a trust deed, which was a lien upon the lots, and which Carlson had given to secure the payment of $1,250. The contract also provided that the appellee should pay 6 per cent interest on the unpaid balance, and was to assume and pay half of the mortgage incumbrance on the property, and to pay one-half of the taxes and expenses on the property. There was a building on the lots from which rents accrued at the time the appellee purchased his interest, and the agreement provided that the appellee should be entitled to one-half of the profits arising from the property. After the execution of the contract in question, Carlson remained in possession of the premises and collected the rents. After November 1, 1913, the appellee and Carlson had a settlement of their accounts, and it was agreed between them that the appellee was entitled to be credited with the sum of $625 as paid upon the purchase price; afterwards on February 18, 1914, the contract of purchase, together with a statement of this settlement of their accounts written thereon, was recorded. Thereafter on March 6,, 1914, the Carlsons by warranty deed conveyed the premises in question to one Thomas H. Gail, who then took possession of the property, and collected the rents and profits arising therefrom until the commencement of this suit, and thereafter. After the conveyance of the property to Gail, the appellee demanded from Gail a recognition by Gail of his right and interest in the premises under his contract with the Carlsons, but Gail refused to concede any rights to the appellee, and denied that he had the interest of the property which appellee claimed. Thereupon, on the 25th day of September, 1914, appellee filed a bill in equity against Gustav D. Carlson and Ida Carlson, and Thomas H. Gail, setting forth in the bill his contract of purchase entered into with the Carlsons, the amount claimed to have been paid thereon by him, and his readiness and willingness to perform his part of the agreement, to repay the amount remaining unpaid under the contract; and also setting out the complication in the title brought about by the conveyance of the premises by the Carlsons to Gail; and that Gail refused to recognize appellee’s rights under the Carlson contract, and had. refused to make any deed to the appellee for a half interest; but Gail had insisted that appellee was only entitled to a one-third interest in the property, also that the appellee was unable to determine who was entitled to the balance due on the purchase price agreed to be paid by him, whether the same should be paid to Carlson or to Gail, because Carlson was claiming that the deed to Gail for the premises in question was obtained from him by fraud and circumvention. Thomas H. Gail filed a demurrer to the bill; the demurrer was overruled, and he thereupon filed his answer. Gustav Carlson and Ida Carlson also filed a cross-bill directed principally against Thomas H. Gail. The cross-bill is of no importance in the consideration of the questions involved in this controversy. A replication was filed to the answers, and the cause was referred to the master. Afterwards on July 28, 1915, the appellee filed a supplemental bill, setting forth the matter- of the collection of rents and profits from the premises by Carlson and Gail, and asking for an accounting, also alleging that since the filing of the original bill the trust deed, subject to which the appellee had purchased, had been foreclosed by decree of court, and a master’s sale had been made thereunder; and that the sale resulted in satisfying the amount due under the trust deed, and had left a balance of $620:05, which balance had been brought into court by the master, and ivas in the hands of the clerk of the court for distribution among the parties in. interest. Under the averments of this supplemental bill the complainant sought the appointment of a receiver, which however was denied by the court. Afterwards on October 8, .1915, the special master to whom the original bill was referred made a report finding the issues raised by the original bill in favor of the appellee, and that the appellee was entitled to a one-half interest in the property under his contract of purchase. Objections and exceptions were filed to the master’s report, which were overruled, and a decree entered in conformity with the report; but afterwards, at the same term, this decree was set aside and vacated. Appellee thereupon obtained leave to file an amended bill, and an amended bill was filed, which includes substantially all the averments of both the original and supplemental bills, and prays for specific performance and an accounting of the rents and profits of the premises. A demurrer was filed by Thomas H. Gail to the amended bill, but the demurrer was overruled, and the court thereupon granted him leave to file an answer, which was done. The case, including the matters of accounting, was again referred to the special master, and he filed his report December 13, 1915. On January 29, 1917, the death of Thomas H. Gail was suggested and after-wards on motion of the appellee, Maude C. Gail, as administratrix of the estate of Thomas H. Gail, deceased, was made a party defendant. The Maude O. Gail as administratrix appeared and filed her answer to the amended bill. Thereafter on the 8th day of May, 1918, the cause came on for hearing upon the report of the special master, and upon the proofs taken by him, to which exceptions had been filed. The exceptions to the master’s report were overruled and the report approved and confirmed. The court finds, in the decree, the facts to be substantially as alleged in the original and amended bills filed, and the appellee is entitled to specific performance, and to an accounting of the rents and profits of the premises in question; and that it appears from such accounting that the balance due from the appellee for the purchase price of the premises has been fully paid by his share of the rents and profits; and that there was a balance of $45.54 due him from Thomas H. Gail; and that appellee made no claim to said balance and he had waived his right thereto; that since the filing of the original bill the premises had been sold under foreclosure of the mortgage subject to which the appellee purchased, and that a surplus of $620.05 arising from said foreclosure sale had been paid into court by the master, and had remained in the hands of the clerk; but that Thomas H. Gail had claimed and withdrawn one-half of said surplus, and appropriated the same; and that the other half, amounting to $310.03, rightfully belonged to the appellee; and the decree directs the clerk to pay the same to him. The decree also directs that the appellee pay the costs of the proceeding. From this decree the appellant, Maude C. Gail, as administratrix of the estate of Thomas H. Gail, is prosecuting an appeal to this court.

The appellant also made a motion to vacate the decree and dismiss the bill of complaint, or refer the cause to the master in chancery, to take further proofs in said cause, to be offered by her, which motion was denied. No sufficient grounds are stated for granting the motion or setting aside the decree, or for a reference of the cause, to take additional proof for the appellant the additional proof which the appellant desired to have taken on the re-reference is not set out in the motion, nor in the affidavit made by the appellant in connection with the motion. The motion was therefore properly denied.

As a ground for a reversal of the decree, appellant argues that it does not appear from the allegations of the original bill of complaint that the complainant had performed his part of the contract, nor that he was ready, willing and able to perform the same. An examination of the bill, however, discloses that there is an averment in the bill to the effect that the appellee averred that he was ready and willing and offered to perform the said agreement on his part, and to pay the residue of the purchase money to the defendant who might be decreed to be entitled thereto. This was a substantial compliance with the legal requirements in that regard; but even if it were not technically sufficient, the appellant by filing her answer waived her right to question the legal sufficiency of the bill on that point. Kesner v. Miesch, 204 Ill. 320.

It is also contended that the court erred in requiring an accounting to be had of the rents' and profits. Under the contract, the appellant had the right to one-half of all profits arising from the income of the property, which would mean one-half of the rents after deducting the expenses and taxes of the property for which the appellee was liable to pay his half. There is nothing in the contract which precludes the application of the net amount of rents to which the appellee was entitled, to the payment of any balance due on the purchase money. The accounting was therefore directly pertinent for a determination of the question of how much, if anything, was due from the appellee on the purchase money; and was germane to the general purpose and scope of the bill of complaint. It is also contended that appellee abandoned his contract, and led Gail to think that he did not intend to enforce it, and for that reason was not entitled to the relief prayed for. It is true the evidence shows that he told Gail he was willing to take $625, that being the amount which he claimed to have put into the property, and to forego his rights under the contract ; but the proof also shows that Gail never manifested any disposition to pay this amount and settle the controversy. This feature in the case cannot be regarded as an abandonment by the appellee of his rights. On the contrary it appears that the appellee made energetic, continued and persistent efforts to maintain his rights, and there is nothing in his conduct or statements to Gail which could be reasonably construed to mean that he intended to abandon those rights, or his interest in the property. It is also argued that the surplus remaining from the foreclosure sale was impressed with the character of real property, and that therefore the heir of Thomas II. Gail, as well as the administratrix, should have been made a party to the suit in order to give the court jurisdiction to dispose of it. This contention cannot be sustained. The surplus, which was merely the balance remaining of the purchase money, paid by the purchaser at the foreclosure sale distinctly had the character of personal property; it belonged to the owner or owners of the property which had been sold in foreclosure; and became upon the death of the owner a part of the personal estate of the deceased owner, and payable to his administrator. The proof shows that the appellee at the time of the foreclosure sale was the equitable owner of one-half of the real estate in question, and that he was entitled to a deed for the same at that time; and that Gail was the owner of the other half. Gail had taken his one-half of the surplus prior to his death, and equitably the appellee was entitled to the other half; and the court properly decreed that the same should be paid to him. We find no error in the proceedings which would warrant a reversal of this decree; and under the pleadings and evidence it works out substantial justice between the parties. In appellant’s petition for rehearing, and in the briefs • filed by her -counsel, the correctness of the accounting had before the master is attacked. But, in order to raise a question for review either in the circuit or in this court, it is necessary that the party objecting to thes correctness of an acounting should file specific objections to the master’s report calling attention to the particular items which it is claimed were improperly allowed' or disallowed by the master. Snell v. DeLand, 136 Ill. 533. In this case only general objections were filed to the conclusions of the master, and to the results of the accounting. It is apparent, therefore, that the appellant is not in position to have the details of the accounting reviewed, having made her specific objections for the first time in this court.

The decree is affirmed.

Decree affirmed.