text:
    Mary E. Lecklieder, Appellee, v. Chicago City Railway Company, Appellant
    Gen. No. 14,047.
    Evidence-what not part of res gestae. A statement by the plaintiff that the conductor “said that he caught my foot with his handle raising the lever and pulled me off; that is just what he said,” is not competent as part of the res gestae, even though made within a minute after the accident complained of.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed July 14, 1908.

      Statement by the Court. This is an action by appellee to recover for personal injuries, alleged to have been sustained while in the act of boarding one of appellant’s electric street railway cars at or near the intersection of Halsted street and Archer avenue, Chicago. The accident occurred between the hours of five and six p. m. of November 2, 1904.
    Appellee’s testimony as to the way in which the accident occurred is that she was in company with her son, a man of mature age, and that the two started to get on a car which had stopped for passengers, she having hold of her son’s arm. She states that the son “grabbed one side of the car and I grabbed on the other side of the handle and he mounted the car about a step ahead of me. Of course we were holding right together, and as I stepped my foot on the car and was just about to raise this one on the car, the car started very suddenly, and as it started very suddenly it pulled my hand, kind of loosened it, and the other one pulled off, I think if lean figure it straight—lean remember it perfectly—and that swung me down like and as I swung down something caught my foot.” She fell on the street, receiving, it is claimed, the injuries complained of.
    The declaration charges that plaintiff’s foot was caught by a “certain iron switch handle # * * violently and negligently raised above said track and approaches thereto by a certain employe of the defendant in the performance of his duty, at the time plaintiff was attempting to enter said car,” and that plaintiff was thereby caught by the foot and “violently and forcibly thrown upon the ground.” It appears that the switch referred to was operated by a lever about three feet long which when lowered fitted into a small iron frame. The west end of the lever is said to have been about twelve inches from the east rail of the track.
    Appellant’s theory of the accident is that the conductor had raised the lever and was holding it to permit the car to continue its journey northward, and that while he was so holding it and after the car on his signal had started smoothly in the usual manner, the plaintiff who was, it is said, then standing upon the east sidewalk in Halsted street, ran northwesterly towards the car and from behind the conductor, who had no notice or knowledge of her approach until she passed between him and the car and tripped and fell.
    The cause was submitted to a jury and a verdict was rendered finding the defendant guilty and assessing plaintiff’s damages at $2,250, upon which judgment for that amount was entered, from which defendant appeals.
    William J. Hynes, James G. Condon and Watson J. Ferry, for appellant.
    Horton, Brown So Miller, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

It is sought to reverse the judgment upon the grounds that the verdict is not justified by the evidence, and is against its manifest preponderance, that there was error in the admission and exclusion of evidence and that the court erred in refusing instructions requested in defendant’s behalf. There is conflict in the testimony and defendant’s counsel in their briefs review it at length. As the cause must be retried because of what this court deems reversible error in the admission of evidence, we refrain from considering the objection that the evidence does not justify the verdict and that the latter is against the manifest preponderance of the evidence.

Upon her direct examination the plaintiff stated that when she fell on the street, the conductor and others picked her up. She was then asked to tell what happened and started to relate what she stated the conductor said. She was interrupted by an objection made by defendant’s counsel and in reply to the objection her counsel urged that “what the conductor said right there is a part of the res gestae.” She was then asked how long it was after she fell when the conductor said what she had attempted to repeat and she testified that it was “right away afterwards, just a minute;” that it was “just a minute or two; I don’t know as it was that long; it was right away as quick as he could get to me; ’ ’ thatz ‘ I don’t believe it was a minute; it might have been; that is my best recollection.” She was thereupon permitted over the objection and exception of defendant’s counsel to state that the conductor “said that he caught my foot with his handle raising the lever and pulled me off; that is just what he said.” It is insisted that this alleged declaration by the conductor was no part of the res gestae. In this contention we concur. In C. &. N. W. Ry. Co. v. Fillmore, 57 Ill. 265-266, it was said to be error to allow the declarations of the conductor of a train, “made after the accident had happened, to be introduced to the jury;” that “whatever knowledge the conductor has as to the condition of the bridge at the time should have been stated by himself.” In C. W. D. Ry. Co. v. Becker, 128 Ill. 545-548, which was an action to recover for personal injuries resulting in the death of a boy, it was claimed that after the boy was thrown from a car and injured he got up and walked to a sidewalk and sat down, and that he then stated in answer to a question that the conductor threw him off the car. The alleged statements were admitted in evidence and the admission was held erroneous on the ground that “the declarations were not a part of the res gestae,” that “they • were made after the injury was received.” In Chicago City Ry. Co. v. Uhter, 212 Ill. 174-183, it is said: “An act or declaration can only be considered as a part of the res-gestae when it illustrates, explains or interprets other parts of the transaction of which it is itself a part.” Citing the Becker case, supra. In Pennsylvania Company v. McCaffrey, 173 Ill. 169, where it was held that a certain act was not a part of the res gestae because it took place some time after the accident occurred, we said: “That which occurs before or after the act is done is not a part of the res gestae, although the interval of separation is very brief. See also Montag v. The People, 141 Ill. 75.” In that case the court quotes with approval from G-reenleaf on Evidence, Vol. 1, Sec. 108, as follows: “The principal points of contention are whether the circumstances and declaration offered in proof were contemporaneous with the main fact under consideration and whether they were so connected with it as to illustrate its character.” In the case at bar, as was said in Chicago City Ry. Co. v. White, 110 Ill. App. 23-25, we are of opinion that the declaration referred to, alleged to have been made after the accident had occurred, cannot be regarded as a part of the res gestae; that “it was history and not a part of the accident.” Counsel for plaintiff cite among other cases claimed to support the contention that the alleged declaration under consideration was properly admitted as part of the res gestae Springfield Consolidated Ry. Co. vs. Hoeffner, 71 Ill. App. 162, the same case in 175 Ill. 634-643, and Springfield Consol’d Ry. v. Welsch, 155 Ill. 511. The conditions and the nature of the declaration alleged to have been made by the conductor in the case at bar differ materially from the statements held res gestae in those cases. In the Welsch case, moreover, the declaration of the motorman that “he could not reverse the car” as a reason why he did not stop it, had a direct bearing on the question of the defendant’s negligence, while the alleged statement in the case at bar to the effect that the conductor said he caught the plaintiff’s foot by raising the lever and pulled her off, do not relate to any defect in machinery but solely to an alleged explanation of an alleged act of the conductor himself. Such explanation made after the plaintiff’s fall appears in the nature of an apology to the plaintiff. It does not purport to be given in the exact words of the conductor, and a part of it at least—“pulled me off” —apparently purports to state a conclusion of the conductor formed as well as expressed after the accident had occurred. The alleged statement was, as said in Springfield Consol. Ry. Co. vs. Puntenney, 101 Ill. App. 95-98, “at best a mere recital of what had occurred, and its binding character as res gestae is therefore lost.”

Reporters’ Note. The Doctbine of Res Gestae.

The test applied as to whether a declaration, is part of the res gestae is: Does it illustrate, explain, or interpret other parts of the transaction of which it is itself a part, or is it merely the history of a completed, past transaction? O. & M. Ry. Co. v. Cullison, 40 Ill. App. 67; Lamb v. Kerrens-Donnewald Coal Co., 140 Ill. App. 195; C. & E. I. R. R. Co. v. Chancellor, 165 Ill. 438; City of Chicago v. McKechney, 205 Ill. 372; Chicago City Ry. Co. v. Uhter, 212 Ill. 174. But concurrence in time alone, nor separation in time alone, is not the test. Lamb v. Kerrens-Donnewald Coal Co., supra; Chi. Union Traction Co. v. Brethauer, 125 Ill. App. 204 (aff. 223 Ill. 521). In fact, there is no inflexible rule fixing the time within which a statement must be made to make it part of the res gestae; if the exclamations of pain and the statements of the injured party explaining and characterizing the manner in which the accident occurred, are substantially concurrent with the shock occasioned by the collision, and there is no time for deliberate fabrication, they are part of the res gestae. East St. Louis, etc. Ry. Co. v. Allen, 54 Ill. App. 27; Muren, etc. Co. v. Howell, 107 Ill. App. 1 (affl. 217 Ill. 190). In Pennsylvania Co. v. McCaffrey, 173 Ill. 169, cited in the opinion, it was said that a declaration made before or after the accident is not part of the res gestae, although the interval of separation is very brief. Elguth v. Grueszka, 57 Ill. App. 193; Chi. Union Traction Co. v. Lowenrosen, 125 Ill. App. 194 (affl. 222 Ill. 506). Indeed, a declaration made a minute or more after the transaction in question is inadmissible. Boyd v. W. Chi. St. Ry. Co., 112 Ill. App. 50. So declarations of the injured person made hours after his injury, as to its cause, are not part of the res gestae. Globe Accident Ins. Co. v. Gerisch, 163 Ill. 625. A conversation had with the foreman under whom deceased worked, about a week after the death of deceased, and a conversation with the foreman before the injury which caused the death occurred, are not a part of the res gestae. Swift & Co. v. Griffin, 109 Ill. App. 414. A declaration of a fellow-servant of the plaintiff, subsequent to the injury, that he was responsible therefor, is not admissible as part of the res gestae. Hellmuth v. Katschke, 35 Ill. App. 21. A statement by the plaintiff in the presence of a conductor, just after the injury, in answer to the question how the accident happened, that “he (meaning the conductor) let me fall,” is not admissible as part of the res gestae. C., B. & Q. R. R. Co. v. Johnson, 36 Ill. App. 564. In an action for causing the death of a person, statements of the deceased as to the manner in which he received his injury and the cause of it, made after the injury was received, with consciousness of impending death, are not admissible on such ground. C. & N. W. Ry. Co. v. Howard, 6 Ill. App. 569. Declarations of an agent are admissible only when part of the res gestae, or when they accompany and are a part of the act performed on behalf of the principal, within the scope of his agency. W. St. L. & P. Ry. Co. v. Fenton, 12 Ill. App. 417; McCarthy v. Muir, 50 Ill. App. 510; East St. Louis, etc. Ry. Co. v. Allen, 54 Ill. App. 27; D. & H. Canal Co. v. Mitchell, 92 Ill. App. 577; C. & E. I. R. R. Co. v. Keegan, 112 Ill. App. 338. Admissions by a conductor of a train made after the accident occurred, are inadmissible. H. & St. J. R. R. Co. v. Martin, 11 Ill. App. 386; C. & A. Ry. Co. v. Fietsam, 19 Ill. App. 551; Gould v. Aurora, Elgin & Chicago Ry. Co., 141 Ill. App. 344. However, declarations made at the time of the accident are admissible. East St. Louis Ry. Co. v. Allen, supra; Muren Coal & Ice Co. v. Howell, 217 Ill. 190; Springfield Consolidated Ry. Co. v. Hoeffner, 175 Ill. 634. On this principle, in an action of unlawful ejectment from a street car, all that was said and done by the conductor in making such ejection is competent as part of the res gestae. Chi. Union Traction Co. v. McClevey, 126 Ill. App. 21; Chi. Union Traction Co. v. Brethauer, 223 Ill. 521; and generally whatever took place at the car where the accident occurred is part of the res gestae and properly admitted in evidence (E. St. L. Ry. Co. v. Burns, 77 Ill. App. 529), although it may appear that other persons than the plaintiff were injured. West Chicago St. Ry. Co. v. Kennelly, 170 Ill. 508; Galena & Chicago R. R. .Co. v. Fay, 16 Ill. 558. A motorman’s treatment of a sign of danger and his remark in connection therewith made almost contemporaneous with the accident, are parts of the res gestae. Chi. City Ry. Co. v. McDonough, 221 Ill. 69. In an action by a party injured in a collision, declarations of the conductor, in charge of the train as to the precautions he had taken to guard against the danger of collision, and made on the eve thereof, are admissible as part of the res gestae. C. & E. R. R. Co. v. Holland, 122 Ill. 461. The action of the court in admitting statements of the driver of a street car just after the car was stopped and while the plaintiff was under it, is supportable under the doctrine of res gestae. Quincy Horse Ry. Co. v. Gnuse, 137 Ill. 264. But it seems the statement in the last cited case was one showing the driver was then drunk and not a statement of anything which had before happened, for see Elguth v. Grueszka, supra. Declarations of pain and suffering are competent only when part of the res gestae or when made to the physician during treatment or an examination prior, thereto and without reference to the bringing of an action for the recovery of damages for the injury, unless the examination should be made at the instance of the defendant with a view to a trial. I. C. R. R. Co. v. Sutton, 42 Ill. 438; Chicago City Ry. Co. v. Mauger, 128 App. 512; West Chicago St. Ry. Co. v. Kennelly, supra; Lake St. El. Ry. Co. v. Shaw, 203 Ill. 39; Chicago City Ry. Co. v. Bundy, 210 Ill. 39; Greinke v. C. C. Ry. Co., 234 Ill. 564. A statement made to a physician with a view to enabling him. to become a witness, is inadmissible. Thus, a statement made shortly before the trial: “She tells me she suffers pain,” is inadmissible. Bates Machine Co. v. Crowley, 115 Ill. App. 540; West Chi. St. R. R. Co. v. Carr, 170 Ill. 478; City of Chicago v. McNally, 227 Ill. 14; Chi. Union Traction Co. v. Giese, 229 Ill. 260; Shaughnessy v. Holt, 236 Ill. 485. On the other hand statements of the plaintiff made to a physician, describing her condition during actual treatment, and in direct connection therewith, are admissible. Chi. City Ry. Co. v. Bundy, 210 Ill. 39. But declarations by the plaintiff to a physician made three years after the injury, and while not under such physician’s care, are inadmissible. City of Aurora v. Plummer, 122 App. 143; C. & E. I. R. R. Co. v. Donworth, 203 Ill. 192. Groans and exclamations of the injured party are not part of the res gestae and are incompetent. Donnelly v. Chi. City Ry. Co., 131 Ill. App. 302. Declarations made by the injured person to his attending physician are admissible when they relate to the injured part of his body, his sufferings, symptoms and the like, but not if they relate to the cause of his injury. Globe Accident Ins. Co. v. Gerisch, supra.

For the reasons indicated the judgment of the Superior Court will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Freeman

license: Public Domain

text:
    Anna E. Johnson, Appellee, v. Charles M. Coey, Appellant. Laura Johnson, Appellee, v. Charles E. Coey, Appellant. Lydia Johnson, Appellee, v. Charles E. Coey, Appellant.
    Gen. Nos. 14,052, 14,053 and 14,054
    Consolidated for Hearing.
    1. Negligence-when question as to whether collision result of, to he determined hy jury. Held,, that the question as to whether or not the collision involved in this case, which was between an automobile and a street car, was the result of the negligence of the chauffeur, was a question of fact to be determined by the jury.
    2. Negligence-when existence of latent defects resulting in accident does not constitute. The owner or operator of an automobile is not liable for an accident resulting from a collision if such accident was occasioned solely by latent defects in materials employed in the construction of the machinery of such automobile which the usual and well-recognized tests afforded by science and art for the purpose fail to detect, nor is such owner or operator liable for accidents by which injury is caused when skill and experience are not able to foresee and avoid them.
    3. Automobile-care required in handling of. No matter how great the rate of speed which the law and the ordinance permit, “as a general rule the owner or operator of an automobile still remains bound to anticipate that he may meet persons at any point in a public street, and he must keep a proper lookout for them, and keep his machine under such control as will enable him to avoid a collision.” Quoted with approval from Thies v. Thomas, 77 N. Y. Supp. 276.
    4. Evidence-who competent to testify to rate of speed,. One not an expert may testify as to the speed of a railroad train or other vehicles, and state his opinion, based upon observation of the vehicle while in motion.
    5. Instructions-when refusal of correct, will not reverse. The refusal of a correct instruction is not ground for reversal where the substance of such refused instruction is contained in others given.
    Action in case for personal injuries. Appeals from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed July 14, 1908.

      Statement by tie Court. These appeals are prosecuted from judgments rendered in actions brought by appellees respectively to recover damages for personal injuries received in a collision between an automobile belonging to the appellant and operated by a driver in his employ, with a street car. The collision occurred on Thirty-fifth street at its intersection with Indiana avenue, Chicago. The plaintiffs had hired the automobile of the defendant, together with the services of a driver or chauffeur. At the time of the accident the automobile was running west on Thirty-fifth street, approaching Indiana avenue, upon which a northbound car was crossing Thirty-fifth street. There are two street car tracks running east and west on Thirty-fifth street and also two street car tracks running north and south on Indiana avenue. The north-bound street car on Indiana avenue had partly crossed the north of the two tracks on Thirty-fifth street, and was apparently about to stop on the north side of Thirty-fifth street, when the rear end of the car was struck by the automobile. The accident occurred between eight and nine o’clock in the evening of the 20th of July, 1904. The force of the collision was such that plaintiff Anna E. Johnson, who was riding on the front seat of the automobile, was thrown out upon the street and sustained injuries complained of, which were apparently of a serious nature. A deep cut was inflicted upon her forehead above the left eye, her legs were injured and there is evidence tending to show she suffered a severe shock to the nervous system. The other two plaintiffs were riding on the rear seat of the automobile and received injuries upon th’eir lower limbs. It is claimed in behalf of the defendant that when within about twenty feet of the street car the driver of the automobile applied the brake, that the brake-rod broke, and that it was in consequence of the breaking of the rod that the collision occurred.
    Each of the plaintiffs began a separate suit. The declarations are substantially the same in each case, and charge that the injuries complained of were caused by the negligence of the driver of the automobile. By stipulation, the three cases were tried at one time, upon the same evidence. The issues were submitted to a jury and verdicts were returned in each case, finding the defendant guilty and assessing the damages of the plaintiff Anna E. Johnson at the sum of two thousand dollars, and of the plaintiffs Laura Johnson and Lydia Johnson at the sum of one hundred and fifty dollars each. Judgments were rendered accordingly.
    The causes have been consolidated for review in this court and are presented upon the same abstracts and briefs.
    Benjamin Levering, for appellant.
    Frank A. Rockhold and Francis X. Busch, for appellees.
   Mr. Justice Freeman

delivered the opinion of the court.

It is contended in behalf of the defendant that the accident occurred by reason of the breaking of the brake-rod of the automobile, occasioned by a flaw in the metal. It is said, that the driver was experienced, that he put on the brake in apt time, that the flaw in question was one that could not be discovered by examination, that the machinery had been properly examined and tested before the car was allowed to go out, and that the chauffeur did all that could be done to stop the automobile as soon as the danger presented itself. It is contended that the defendant cannot be held legally liable for the accident and its results, under these circumstances ; that a carrier is not liable to passengers “for damages incurred through latent defects which could not have been discovered by examination by any usual and practicable tests,” citing Wharton on Negligence, 2nd ed., sec. 631. There is evidence tending to show the automobile was thoroughly inspected before it left the garage, and that it was not possible by inspection or otherwise to discover the alleged flaw in the brake-rod. The rod in question was produced by defendant at the trial and the latter testified it was the identical rod used on the machine at the time of the accident. Whether, however, the rod was broken by reason of the alleged flaw or by reason of a sudden and severe strain put upon it in the effort of the driver to bring the automobile to a stop in order to prevent the collision, or whether it was .broken, as were other parts of the machine, by the force of the collision itself, were questions of fact under the evidence for the jury. The only evidence fending to show that the rod broke at the time the brake was being set by the driver in an effort to stop the machine, is contained in an affidavit filed in support of a motion for continuance made by the defendant in the trial court. From that affidavit it appears that the chauffeur who was in charge of the car at the time of the accident was in Wisconsin and that for some reason he refused to attend the trial. To avoid a continuance the plaintiffs admitted that if the said chauffeur was present he would testify that the brake-rod broke when he applied the brakes and that this prevented him from stopping the car. There is no other evidence as to what caused the breaking of the rod, except the flaw alleged to exist in the rod at a place where it appears to have been fractured. There is on the other hand evidence tending to show that the automobile was going at a high rate of speed at the time the collision occurred. There is testimony in behalf of the defendant tending to show that an automobile like the one in question could be stopped within fifteen or twenty feet by the application of the brakes, even though going at the rate of twelve or fifteen miles an hour, and it is claimed that in the case at bar the chauffeur would have testified, had he been present, that the machine would have stopped more than six feet from the car if the brake-rod had not broken. It is apparent, however, from the evidence that in order to stop within fifteen or twenty feet a heavy motor car like the one in question, while going at a rapid rate of speed, a severe strain would be applied to the brake-rod and other parts of the machinery. It was, we think, a proper question for the jury as to whether or not it was negligence on the part of the driver, under the circumstances in evidence, to run the automobile at a high rate of speed, if it was so running, when approaching a cross street upon which a street car was slowly proceeding in full view and which could be plainly seen by the driver of the automobile in ample time to check the speed of his car gradually and without strain upon its machinery. We cannot say a jury is not justified in finding the driver of an automobile guilty of negligence, who under such circumstances plunges ahead at a full rate of speed until within barely stopping distance of a car crossing the street in front of him, and so close that he can only stop his machine, if at all, by putting a great strain upon its parts. There is evidence tending to show that the automobile in this case was moving at a rapid rate of speed; that it “was going very fast.” It appears from the evidence that its front part was badly damaged by the collision and the machine disabled ; that it had to be dragged away by another machine, and during the fifteen or twenty feet before it struck the street car it was running at least twelve or fifteen miles an hour. One of the witnesses testifies that “It seemed to me to be going mighty fast. The Indiana avenue car was going north, when all of a sudden the automobile just bounded into the car.” This witness says he first saw the automobile when it was half a block away and saw it from that time until it struck the car. The jury were evidently justified in concluding that it was proceeding at a rapid rate of speed, in view of unquestioned facts. The collision occurred with such force as to violently throw the plaintiff Anna E. Johnson upon the" street and to inflict severe injuries upon the lower limbs of other oceupauts of the machine.

The automobile is a machine of great power and capable of a high rate of speed. In Thies v. Thomas, 77 N. Y. Supp. 276, it is said that no matter .how great the rate of speed which the law and the ordinances permit, “as a general rule the owner or operator of an automobile still remains hound to anticipate that he may meet persons at any point in a public street, and he must keep a proper lookout for them, and keep his machine under such control as will enable him to avoid a collision. ’ ’ The power and capacity for high speed of an automobile affords no excuse for negligence in its operation on the highway. This power and capacity rather call for a higher degree of care on the part of the operator, to prevent serious accident and injury to persons and property of others, than would be necessary under the same circumstances on the part of the driver of a vehicle of less power and speed. In the case at bar the street car with which the machine collided was plainly in view, slowly crossing the street in front, when the automobile was at least half a block away from it. The plaintiffs were passengers in the defendant’s machine, and as such were entitled to the exercise of care and caution in the operation of the automobile in which they were riding*. It was for the jury to determine whether or not, in the present case, negligence of the driver was the approximate cause of the collision and of the injuries resulting (Pullman Palace Car Co. v. Laack, 143 Ill. 242), or whether, as defendant’s counsel contends, a latent defect in the machinery of the automobile was the sole cause of the accident. It is undoubtedly true that the defendant could not he held to answer for a latent defect in materials employed in the construction of the machinery of his automobile, which the usual and well-recognized tests afforded by science and art for the purpose fail to detect, nor for accidents by which injury is caused, when skill and experience are not able to foresee and avoid them; but the jury have found against the defendant’s contention and we are of opinion their finding is warranted by the evidence.

It is claimed in behalf of the defendant that the court erred in permitting the introduction of testimony as to the speed of the automobile at the time of the accident, by witnesses who “did not first testify as to their experience in judging of the rate of speed of automobiles, nor their qualifications for forming an opinion as to such rate of speed.” The objection is not well taken. One not an expert may testify as to speed of a railroad train or other vehicles, and state his opinion, based upon observation of the vehicle while in motion. Louisville & St. L. v. Gobin, 52 Ill. App. 565-567.

It is contended that the court erred in refusing an instruction requested in behalf of the defendant. The instruction is as follows:

“The court instructs the jury that the plaintiff has charged in -her declaration in this case that she received her injuries by reason of the negligent running of the automobile by the driver of the defendant, and does not allege any other ground of recovery; and the court further instructs the jury that if they believe from the evidence in this case that the plaintiff received injuries and that they were caused by an accident resulting from defective machinery, the plaintiff cannot recover because the plaintiff has not alleged said cause as a ground of recovery. ’ ’

We find no error in the refusal of the court to give this instruction, in view of the fact that other instructions given at the defendant’s request contained the substance of the instruction refused. Instructions seven and eight, given in behalf of the defendant, expressly told the jury that if they believed from the evidence the accident was caused by the breaking of a part of the apparatus for applying brakes to said automobile, and that the breaking of such part was not caused by the negligence of the driver in operating the automobile, the plaintiffs could not recover.

-Finding no material error in the record, the judgment of the Superior Court will be affirmed.

Affirmed.


text:
    John Steiskal, Appellee, v. Marshall Field & Company, Appellant.
    Gen. No. 14,059.
    1. Pleading—when declaration states cause of action for injuries occasioned by falling of elevator. Held, that the declaration in this case sufficiently charged that the plaintiff was a passenger in the elevator in which the accident happened, and that such declaration was sufficient after verdict.
    2. Statute oe Limitations—when amendment does not state new cause of action. An amendment to a declaration does not state a new cause of action which consists in the striking out of the word “owned” from the averment that the defendant “owned, controlled and carried on” the store in question.
    3. Personal injuries—when person upon premises impliedly there by invitation. Held, that a great mercantile establishment open to the public for the transaction of business, impliedly gives an invitation to all persons having business with such establishment to enter upon such premises.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed July 14, 1908.
    Rehearing denied July 24, 1908.
    Statement by the Court. This is an action by appellee to recover for personal injuries received in the fall of a passenger elevator in the store operated by the appellant. There is evidence tending to show that the plaintiff went into the store for the purpose of seeking employment, that he took an elevator and went to the ninth floor to see the superintendent with reference to his errand. Not finding the superintendent in, he took a passenger elevator at the ninth floor to descend to the first floor. There was no one else in the car except the operator of the ear. Almost immediately after the descent began, “something happened,” it is said by defendant’s counsel, to put the car beyond the control of the operator and it descended with great velocity to the basement of the store, wrecking the elevator, killing the operator of the car and inflicting the injuries complained of, upon the plaintiff.
    The issues were submitted to a jury, which returned a verdict in favor of the plaintiff, awarding him damages in the sum of ten thousand dollars. Judgment was rendered accordingly and the defendant appeals.
    Frank P. Leffingwell, for appellant.
    Winston, Payne, Strawn & Shaw, for appellee; John Barton Payne, of counsel.
   Mr. Justice Freeman

delivered the opinion of the court.

It is contended in the defendant’s behalf that the court erred in denying a motion in arrest of judgment, based on the ground that the declaration failed to state a cause of action; that it was error not to overrule the demurrer to the defendant’s plea of the Statute of Limitations to the plaintiff’s amended declaration, by which plea the question was presented whether an amendment to the declaration on the trial, striking out the word “owned” where it is said to have been applied to the building and elevator in question, stated a new cause of action; that it was error to deny defendant’s motion to strike out all the evidence on the ground of variance between the allegations of the declaration and the proofs as to ownership of the building and elevator; that it was error not to sustain defendant’s motions which it is said raised the question whether plaintiff had properly alleged and proved on the trial that he was an invited passenger in the elevator instead of a mere licensee; that the court erred in refusing to direct a verdict of not guilty and in refusing certain instructions requested in behalf of the defendant.

As to the alleged error in not sustaining the defendant’s motion in arrest of judgment, the declaration alleged that the defendant controlled and carried on a retail business in its store building and operated the elevator for carrying passengers from floor to floor in the building, that plaintiff was rightfully in the store and was a passenger in the elevator and that it was the defendant’s duty to carry him safely, in which it failed, owing to the fact that the machinery of the elevator broke down and precipitated the plaintiff into the basement by reason of the defendant’s negligence. It is urged the allegations that the plaintiff was rightfully in the store and was a passenger in the elevator are mere statements of conclusions. Whether this be deemed true or not as to the averment that plaintiff was rightfully in the store, the objection is not well taken as to the averment that he was a passenger and entered the elevator as such passenger at the ninth floor to be carried to the main floor, and that while a passenger in the descending elevator he was injured in consequence of defendant’s negligence. The declaration avers a state of facts showing that the plaintiff had become a passenger in the elevator and had been accepted as such by the defendant before the accident. The objections to the declaration urged at great length in defendant’s behalf are purely technical and it must suffice to say that in any event the declaration is amply sufficient to sustain the judgment after verdict. If it should be conceded that it defectively stated a cause of action, such statement must be deemed sufficient after verdict. C. &. A. R. R. Co. v. Clausen, 173 Ill. 100-105.

We find no error in the action of the court below sustaining the demurrer to the defendant’s plea of the Statute of Limitations. The declaration contained an averment that the defendant corporation ‘i owned, controlled and carried on a certain retail dry goods and general store in its store building, ’ ’ etc. A witness for the defendant testified that Marshall Field was the owner of the store at the time of the accident, and that it was occupied by the defendant corporation, Marshall Field & Company, as lessees of the whole building, including the elevators; that the building and elevators were erected expressly to be used for the store of Marshall Field & Company and were never used for any other purpose. The evidence tends to show without contradiction that the defendant “owned” the store and operated it in the building which it leased and controlled, and which, under the evidence, was in a sense, while so leased and occupied, “its store building.” The averment is not that defendant “owned” the building, but that it “owned, controlled and carried on” the store. The amendment striking out the word “owned” caused the declaration to state no new or different cause of action. We are of opinion also that the objection that the trial court erred in denying a motion to strike out all of the plaintiff’s evidence on the ground of variance is not well taken, and that the declaration stated a cause of action sustained by the evidence.

It is argued that it was error to refuse certain instructions asked for by the defendant. It appears to be conceded that where the cause of action is based on the relation of passenger and common carrier the rule res ipsa loquitur is applicable, and that the law is well settled in this state that persons operating passenger elevators in buildings are common carriers of passengers. Hartford Deposit Co. v. Sollitt, 172 Ill. 222. As we have said, the declaration avers in substance that plaintiff was a passenger and had been accepted as such by the defendant before the accident to the elevator. It is contended, however, the evidence tends to show that he was not a passenger, but was at the most a mere licensee not using the elevator by invitation of the defendant, and that the latter’s sole duty toward him was to refrain from wilful or affirmative acts to his injury. The evidence tends to show that these elevators were used to carry persons having business there with the defendant, and there was, we think, a clearly implied invitation to use them extended to all such persons, whether customers, possible customers or having other business there with the defendant or with persons rightfully in the defendant’s store. In a great store like that of defendant making use, as there is evidence tending to show, of a large building, the presence of the elevators, the use to which they are constantly put, the number of persons presumably making use of them to ascend and descend from one floor or department of the store to another, necessarily implies a general invitation to' any one in the store on business or even sightseeing to make free use of the elevators at all proper times.. To hold otherwise under the evidence would border on absurdity. It was, however, a question of fact for the jury as to whether the plaintiff was lawfully on the elevator and had become a passenger, accepted as such by the defendant at the time of the injury. Springer v. Ford, 189 Ill. 430-438. If he had been so accepted, the question of whether there was a previous implied invitation is, we think, immaterial. The finding of the jury must be deemed conclusive on the question of fact. See Elliott on Railroads, sec. 1578; Hutchinson on Carriers, vol. 2, sec. 997; Ill. Cent. R. Co. v. O’Keefe, 168 Ill. 119.

Defendant does not complain of the amount of the verdict and judgment.

Finding no material error, the judgment of the Circuit Court will be affirmed.

Affirmed.


author: Mr. Justice Smith

text:
    R. Hall McCormick, Trustee, Appellee, v. The Unity Company, Appellant.
    Gen. No. 14,126.
    1. Bonds—when obligor estopped to deny validity of obligations. Held, under the evidence in this ease, that the obligor of bonds secured by trust deed was estopped to deny that the same were valid and enforceable obligations.
    2. Bonds—when obligor estopped to deny validity of obligations. An obligor having received the benefit of bonds cannot question their validity or assert that they were wrongfully disposed of by its officers.
    3. Solicitob’s fees—when allowance of, not unreasonable. Held, that an allowance in a foreclosure proceeding of $7,308 as solicitors’ fees, was not, under the evidence, unreasonable.
    4. Cobpobations—when estoppel to question authority of official acts arises. Where directors have allowed a particular officer to control and conduct the affairs of the company without protest or objection, the law presumes that all of such directors knew of or acquiesced in what such officer has done and treats such acquiescence as equivalent to formal authority.
    Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. Judian W. Mack, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed July 14, 1908.
    Rehearing denied July 24, 1908.
    Statement by tlie Court. The bill in this ease was filed to foreclose a trust deed dated January 1, 1895, conveying the Unity building and leasehold to secure certain bonds, one hundred of which bonds numbered 301 to 400, both inclusive, of the issue of January 1, 1895, are in issue here.
    The trust deed and bond in dispute originated by virtue of the following resolution:
    “Minutes of a meeting of the board of directors of the Unity Company held December 13, 1894, at the office of the Company, 1420 Unity Building, Chicago, Illinois. Meeting called to order by Mr. Lanehart. In the absence of the president, Charles J. Ford was chosen chairman pro tern. On call of the roll it appeared that the following directors were present: Charles J. Ford, Elmer A. Kimball, Isaac M. Kuebler and John W. Lanehart.
    The following resolution was introduced by Mr. Lanehart, who moved its adoption:
    Whereas, it is deemed advisable to refund the outstanding indebtedness of the Unity Company, issuing new bonds for the purpose of providing money to pay off such indebtedness now outstanding:
    Be it, therefore, resolved by the.board of directors of the Unity Company, that the president and secretary of said Company are hereby authorized and directed to execute and deliver four hundred (400) principal bonds of this Company, under its corporate seal, in the principal sum of one thousand dollars ($1,0.00) each, payable in gold coin of the United States of the present standard of weight and fineness, numbered in series from One (1) to Four Hundred (400) inclusively, bearing date January 1, A. D. 1895, and to be payable twenty (20) years from the date thereof, with interest coupons thereto respectively attached, evidencing such interest at the rate of six (6) per cent, per annum, payable in like gold coin, quarter-yearly on the first days of January, April, July and October of each year; such bonds and coupons to be made payable at the Equitable Trust Company in Chicago, Illinois; the proceeds and avails of all such bonds so issued to be used and applied by the officers of this Company to retire all outstanding bonds, notes and other indebtedness of this company; and further that the president and secretary of this Company are hereby authorized and directed to execute and deliver a trust deed or mortgage under the corporate seal of this Company to the Equitable Trust Company as trustee, to secure the payment of said bonds so to be issued and the interest thereon as aforesaid, thereby conveying and pledging for the purposes aforesaid the entire property of the Unity Company aforesaid, now held by said Company or which may hereafter be acquired by said Company.

      Be it resolved, that for the better securing of the holders of the bonds of this Company, that said president and secretary shall execute and deliver three hundred (300) of the bonds so issued, which shall be deposited by this Company with The Equitable Trust Company, for the purpose of exchange for an equal number of the bonds of this Company, now outstanding, dated July 1, A. D. 1891, and that said The Equitable Trust Company, trustee, shall be authorized to make such exchange and to certify to and issue the three hundred (300) bonds so to be deposited with it, in exchange for an equal number of bonds of this Company of the issue of July 1, A. D. 1891.
    After due and proper consideration, the above resolutions- were unanimously adopted. Whereupon the meeting adjourned.
    Charles J. Ford, President pro tern., Elmer Alleh Kimball, Secretary.”
    On July 1, 1891, The Unity Company, appellant corporation, made its trust deed to secure four hundred bonds of that date for one thousand dollars each, of which three hundred were issued and disposed of and the other one hundred bonds were afterwards can-celled. This trust deed was made to the Jennings Trust Company, whose name was afterwards changed to The Equitable Trust Company, as trustee, and conveyed appellant’s leasehold estate in lots 4 and 5 in Assessor’s Division of Original Lots 3, 4 and 5 in Block 37, in the Original Town of Chicago, created by a lease for the term of ninety-nine years from May 1890, made January 25, 1890, by Tobias C. Bichardson as lessor to John P. Altgeld as lessee, which lease had been assigned to appellant by Altgeld and wife on June 15, 1891. This trust deed is hereinafter referred to as the first mortgage.
    The Jennings Trust Company had agreed to take these bonds at ninety-five cents on the dollar, and by resolution of the directors the president and secretary of appellant were authorized to execute a contract with the Trust Company for the sale of the bonds, and providing that the proceeds thereof were to be used by The Unity Company for the purpose of erecting a building on the above described premises.
    This agreement was subsequently modified to the extent of reducing the authorized loan from $400,000 to $300,000; and 300 of the bonds were delivered to the Trust Company and the other 100 were cancelled.
    On January 1, 1895, appellant executed another trust deed to The Equitable Trust Company, as trustee, under the above resolution, covering the same property, to secure another issue of four hundred bonds of that date, for $1,000 each, of which three hundred bonds were reserved to be exchanged for the three hundred outstanding first mortgage bonds as contemplated by the above resolution, but were never in fact exchanged or issued, and the remaining 100 bonds were certified, issued and disposed of.
    In 1899 The Equitable Trust Company, as trustee under the first mortgage, instituted a suit in the Circuit Court of Cook county to foreclose their mortgage, and that suit resulted in a decree of foreclosure entered on October 11,1901. This decree was afterwards affirmed by the Supreme Court in the case of the The Unity Company vs. The Equitable Trust Company, 204 Ill. 595. The holders of ninety-three of the second mortgage bonds now in question and afterwards acquired by McCormick, Trustee, appellee herein, were parties defendant to that suit, and such bonds and the second mortgage were adjudged by the decree to be valid obligations and to constitute a lien upon the mortgaged property. Under that decree a sale of the mortgaged premises was made on January 11, 1904, to Herbert W. Holcomb, who acted for the trustee, for the sum of $240,000. On December 29, 1904, Albert M. Johnson, as owner of said ninety-three second mortgage bonds, duly redeemed from the sale by paying $253,920, the amount necessary for the purpose, and shortly afterwards, appellee McCormick, as trustee of the estate of Leander J. McCormick, deceased, purchased said ninety-three bonds and the certificate of redemption, paying Johnson therefor the sum of $350,-348.07.
    On January 3, 1905, interest on said ninety-three bonds having been defaulted, McCormick as trustee instituted the present suit to foreclose the second mortgage for the purpose of realizing the amount due him, both on account of the redemption and upon the ninety-three bonds so purchased. The Unity Company and the trustee of the mortgage were made defendants to the bill, and as McCormick only held ninety-three of the one hundred outstanding bonds, the unknown owners of the other seven bonds were likewise made defendants, as were also some persons holding judgment liens subordinate to the mortgage. Charles C. Adsit came in and answered the bill as one of the unknown owners, admitting the truth of its allegations and averring that he was the owner and legal holder of five of the seven bonds, whose ownership was stated by the bill to be unknown to the complainant.
    After all the answers and replications were filed, the cause was referred to a master in chancery to take proofs and to report his findings and conclusions thereon. . During the progress of the case before the master, appellee McCormick produced and offered in evidence two bonds in addition to the ninety-three which he claimed in the bill of complaint to own, and thus the entire one hundred outstanding bonds were accounted for, ninety-five being held by McCormick as trustee and five by Adsit. As to the two bonds offered in evidence by McCormick, it was stipulated that they “may be offered in evidence by the complainant the same as if they had been properly described in the bill of complaint heretofore filed herein, and the necessary allegations made in the bill for that purpose.”
    The master filed his report on November 30, 1906, recommending a decree of foreclosure as prayed for by the bill. To this report one exception was filed by appellee McCormick, setting forth that the master should have allowed him interest at 6 per cent, per annum on the redemption money instead of 5 per cent. Appellant filed many objections to the report, and tho objections were ordered to stand as exceptions. On final hearing of the cause a decree was entered July 1, 1907, approving and confirming the master’s report in all respects, except that the decree allowed complainant 6 per cent, per annum on the redemption money and reduced the allowance given by the master for complainant’s solicitor’s fees from $10,000 to $7,308. This decree ordered a sale of the property to pay complainant $290,960.48, being the amount of the redemption money, with interest at 6 per cent, per annum from the date of redemption to the date of the decree, and also to pay complainant $146,165.78, being the amount of principal and interest due on the ninety-five bonds held by complainant, and also to pay Adsit $8,325.92, it being the amount of principal and interest due on the five bonds held by him, and also to pay said solicitor’s fee of $7,308 and certain other sums that were taxed as part of the costs.
    The bill, after stating that it was filed on behalf of all holders of the outstanding bonds of 1895, sets forth the making of the mortgage, the execution of the 400 bonds to be thereby secured, the fact that 300 of such bonds, numbered from 1 to 300, both inclusive, were deposited with the trustee to be used in retiring the 300 first mortgage bonds, but were never so used or issued; the fact that the remaining 100 of the second mortgage bonds were certified and issued and were outstanding; the material fact concerning the suit foreclosing the first mortgage, including the fact that the then holders of the 93 bonds were parties defendant to that suit and appeared therein; the foreclosure sale; the redemption by Johnson on December 29,1904, when he was the legal holder of said 93 bonds; the subsequent acquisition of McCormick from Johnson of said 93 bonds, and the certificate of redemption, and the default in interest entitling McCormick under the terms of the mortgage to elect and his election that all the bonds should become due at once and to foreclose.
    It is unnecessary to state the contents of the answers filed by the several defendants to the bill, except that of The Unity Company, appellant.
    By its answer The Unity Company admits the making of the second mortgage, the signing and sealing of the 400 bonds pursuant to authority of its board of directors, and the deposit with the trustee and the non-issuance of 300 of such bonds; denies that the remaining 100 of the bonds have been by the defendant issued or disposed of for value; denies that the 93 bonds claimed to be held by McCormick were in fact held or owned by him; denies that the other of the bonds were ever issued and disposed of for value by this defendant to any person; alleges that none of the 100 bonds were ever disposed of by this defendant for value; states as to the allegations of the bill to the effect that it was determined in the suit foreclosing the first mortgage, that 64 of the bonds now held by McCormick were then held and owned by Edwin A. Potter, as receiver of the National Bank of Illinois; that Potter held such bonds under and by virtue of a collateral agreement made by and on behalf of John P. Altgeld and John W. Lanehart with the National Bank of Illinois, and by and on behalf of a certain collateral agreement made by Lanehart with E. S. Breyer & Company, and by and on behalf of a collateral agreement between Altgeld and the National Bank of Illinois. The answer denies or puts complainant to proof of all other allegations of the bill, and avers that the mortgaged premises are worth $750,000.
    On May 2, 1907, The Unity Company obtained leave to file an amendment to its answer instanter, without prejudice to the proceedings already taken. At that time the evidence had been taken before the master and the report of the master had been filed in court, and the final hearing upon the exceptions to the master’s report was in progress. Appellant filed an amendment alleging that the 100 second mortgage bonds numbered 301 to 400 were issued and disposed of wrongfully by the officers and agents of the defendant without authority and right from the defendant, and were disposed of for the purpose of procuring credit to themselves as individuals and for a purpose which was ultra vires and beyond the charter powers of the corporation.
    Appellant prosecutes the present appeal to reverse the decree of the Circuit Court.
    Rogers & Mahoney and Chilton P. Wilson, for appellant.
    Isham, Lincoln & Beale, for appellees.
   Mr. Justice Smith

delivered the opinion of the court.

It appears from the records of The Unity Company, appellant, that said company was organized in March, 1891, by John P. Altgeld, with a capital stock of $1,000,000, consisting of 10,000 shares of $100 each. Ford, Lanehart, Altgeld and Kuebler subscribed for one share each and Kimball, the attorney who drew the papers at Altgeld’s request, subscribed for 9,996 shares, but shortly afterwards assigned 9,993 of the shares to Altgeld on the subscription book of the Company. The five subscribers were elected directors for one year, and the first officers were Lanehart, president ; Ford, treasurer; and Kimball, secretary.

The record shows that on June 15, 1891, Altgeld and wife transferred to the Company the 99-year lease of the premises on which the Unity Building was after-wards built. Kimball, who always had been and still is secretary of the Company, testified that at the time he transferred the 9,993 shares to Altgeld, the latter stated that if the Company would issue to him the stock he would put up the building and transfer the building and leasehold over to the Company, subject to such mortgage as they might determine to place upon the property. Kimball also testified that there was a general conversation among the directors at the time that the funds raised from the $400,000 of first mortgage bonds should be deposited to John P. Altgeld’s credit, and that he would check out of those funds and out of any of his own funds to pay the bills for constructing the building.

The witness Oliver testified that Altgeld told him in the spring of 1891, at the time when Altgeld was borrowing money of Oliver to aid in the construction of the building, that he, Altgeld, had organized the Company and was going to turn over his leasehold to it, and that the Company was going to make a bond issue of $400,000, and that he, Altgeld, was to build the building and was to get all the capital stock and bonds. In 1904, when Oliver was trying to buy some of the second mortgage bonds, Kimball told Oliver that the Company’s record book had been lost and that before the transfer of the lease there had been an agreement between Altgeld and the Company whereby Altgeld was to assign the lease and build the building, and as a consideration therefor was to receive all the stock, together with a bond issue of $400,000.

Kimball testified that he had always supposed there had been such an agreement set out in the lost minute book, but after the minute book had been found he noticed that it had not been set out therein, and that this surprised him very much, as he had supposed the Company had in fact held all the meetings they should have held.

On June 17, 1891, a meeting of the stockholders was held authorizing the acceptance of an offer made by the Jennings Trust Company, now The Equitable Trust Company, to make a loan of $400,000 on the leasehold, for the purpose of constructing the building, and on the same day the board of directors of appellant Company authorized the issuance of the first mortgage bonds for that amount.

On June 27, 1891, an agreement was made with the Jennings Trust Company whereby it undertook to purchase all of the proposed $400,000 of first mortgage bonds at 95 cents on the dollar.

After the mortgage and bonds were executed under date of July 1, 1891, Altgeld went ahead and built the building, and he did this in his own name. Kimball testified that Altgeld attended to all the financial affairs and never made any report to the directors and was not called upon for any; that Altgeld and Lane-hart attended to everything and had full authority to pay all bills; that Altgeld’s personal checks paid for the building, that the Company itself never paid anything; that he, Kimball, did not know when the Company first had a bank account in its own name, and had nothing to do with any money received during the first year of the Company’s existence; that the proceeds of the first mortgage bonds were used in constructing the building; that as such proceeds were received Altgeld deposited them in his own bank account and then paid the bills as he could—a thing which Lanehart knew, because Lanehart had charge of Alt-geld ’s bank account in the latter’s absence; that Alt-geld expended on the building more than the avails of the first mortgage bonds, and personally put into the building all the additional money that was expended; that Altgeld’s course in erecting the building and paying all the bills was in pursuance of the arrangement whereby he was to do so and received the stock and bonds as consideration' therefor, and that the proceeds of the first mortgage loan was turned over to him under that arrangement and with the knowledge of the directors. Oliver testified that the $70,000 which Altgeld borrowed from him in 1891 went into the construction of the building, as did $350,000 of Altgeld’s personal fortune.

In August, 1891, Altgeld was elected president in place of Lanehart. Of the four directors Lanehart was Altgeld’s brother-in-law; Ford was also his brother-in-law, Kuehler was the bailiff in the court of which Alt-geld was judge, and he had a little grocery business in Palestine, Illinois; and Kimball, the secretary, was a young attorney who drew the organization papers and who, after the building was finished, had only the duties of writing up the minutes of the meetings and collecting delinquent rents. No stock was ever issued to Ford or Kuebler, under their subscriptions. It appears from stubs of the only stock certificate book that the Company had, that from the time of the Company’s organization down to the time of Altgeld’s death, in 1902, Altgeld held of record 9,740 shares; the Sextons 150 shares; Lanehart 105 shares, and Kimball 5 shares of the 10,000 shares constituting the entire capital stock of the Company.

The Company never had any by-laws, and no stockholders’ or directors’ meetings were held except those which had to do mainly with the authorization of the two bond issues.

It appears that before McCormick, appellee, purchased the 93 bonds of the Company, he employed as his attorney Mr. A. M. Pence, who examined the records of the former foreclosure suits, and that it was upon his advice that appellee McCormick purchased the bonds. The record contains no evidence showing or tending to show that at the time appellee McCormick purchased the bonds he had any knowledge of how the bonds were originally put in circulation. No evidence was offered that either McCormick or Adsit at the time of their acquisition of the bonds held by them, had any knowledge or notice of any claim by the Company or any of its officers, directors or stockholders that the bonds were wrongfully issued, or that any defense to them existed.

From the evidence shown in the record we are of the opinion that when the appellant company was organized by Altgeld it was for the purpose of facilitating the issue and sale of securities upon which he could borrow the necessary funds with which to erect the building upon his leasehold above described. The capital stock of appellant was all subscribed for in Ms interest and was either assigned to Mm or held for him. We think that, notwithstanding the meagre records of the Company and the death of AItgeld and Lanehart, who knew all the facts connected with the organization of appellant company, and the issue and disposition of its securities and the agreement or agreements between the appellant and AItgeld, it clearly appears from what was actually done, and the testimony in the record, that AItgeld organized appellant company for the purpose stated above; and that the agreement and understandmg between AItgeld and the appellant company, through its directors, was that AItgeld was to transfer his leasehold to the company and erect the bmlding thereon in payment for its capital stock, and that the appellant was to issue at least $400,000 in bonds and turn them over to Mm or the proceeds thereof, which were to be used by him in the erection of the building. The record shows, we think, that this agreement was substantially carried out in good faith by AItgeld, and that from the funds borrowed upon the faith of the securities issued by appellant and from his own private funds AItgeld erected the building in question.

The evidence further shows, we think, that the proceeds of the securities issued by appellant were all applied to the erection of the building, and in addition thereto AItgeld contributed for that purpose large sums of money from his private resources. In our opinion the contention of appellant that the bonds in question were unlawfully issued and disposed of for the private and individual benefit of AItgeld, and not for the benefit of appellant, is not sustained by the record.

When The Equitable Trust Company refused to purchase more than 300 of the bonds of the 1891 issue and the remaining 100 were cancelled, AItgeld was deprived of the proceeds of one hundred of the bonds to which he was entitled under the arrangement; and without doubt the intention of the issue of the bonds in January, 1895, under the resolution quoted in the statement preceding this opinion, in which it was provided that 300 of the bonds should be deposited with The Equitable Trust Company for the purpose of exchange for an equal number of the 1891 bonds, was to increase the loan and thereby to deliver to Altgeld the full amount of the securities originally agreed to be issued on the property.

After the building was completed by Altgeld, in the spring of 1892, it was turned over to the appellant company, which, up to that time, had taken no part in the business of constructing the building. It had no bank account, and had paid no money to contractors and material men. Upon receiving possession of the building, the appellant proceeded to rent it and collect the rents and manage the property. It paid interest on the bonds in question for four and one-half years, that is to say, the interest that accrued during 1895, 1896, 1897 and 1898 and the first half of 1899. Appellant opened books of account and a bank account and these payments of interest were duly entered in its books in the regular course of business. The Company received the cancelled coupons and.kept them in the Company’s vault in its office among its papers. During 1895 and 1896 there were five directors living, and unquestionably the active directors: Altgeld, Lanehart and Ford, all of whom died before this bill was filed, knew of the interest payments on these bonds, for they all occupied the offices of the appellant company during those years. Lanehart died in the latter part of 1896, but the vacancy created by his death was never filled. Altgeld certainly, and probably Ford, knew of the interest payments made for the years 1897, 1898 and 1899. The remaining* two directors, Kuebler and Kim-ball, had nothing to do with any of appellant’s disbursements or financial matters. They testify that all these matters were left entirely to Altgeld and Lane-hart.

These facts, in connection with the allegations and issues and the decree in the foreclosure proceedings upon the bonds and trust deed of 1891, appearing in the record, estop appellant, in our opinion, from denying that the bonds held by appellees are valid obligations against it. Ragland v. McFall, 137 Ill. 81, 91; Hartford Deposit Co. v. Calkins, 109 Ill. App. 579, 584. The directors having allowed Altgeld and Lanehart to control and conduct the affairs of the company, without protest or objection, the law presumes that all of them knew of and acquiesced in what was done, and treats such acquiescence as equivalent to formal authority. Smith v. Smith, 62 Ill. 493, 496; 1 Morawetz on Private Corporations, sec. 538; Taylor on Private Corporations (3rd Ed.), sec. 237; 4 Thompson on Corporations, 4883; Martin v. Webb, 110 U. S. 7.

Moreover, the evidence in the record shows that the bonds in question were used for the benefit of the appellant, when they were originally issued. Having received the benefit of these bonds appellant cannot now question their validity or assert that they were wrongfully disposed of by its officers. Pomeroy v. New York, etc., Co. (N. J. Eq.), 48 Atl. Rep. 395.

Hpon a consideration of the record we are of the opinion that the allowance of $7,308 for solicitors’ fees was not unreasonable. We think also that the decree is not erroneous in allowing interest at the rate of six per cent, on the redemption money, for the reason that the first mortgage bonds bore that rate of interest, and further, the party redeeming was obliged to pay that rate upon the amount of the sale. Moshier v. Norton, 83 Ill. 519; Harper v. Ely, 70 Ill. 581; McMillan v. James, 105 Ill. 194, 203.

In our opinion, the decree is just- and without error, and must be affirmed. The cost of the supplemental abstract of record prepared by counsel for appellee must be taxed against appellant.

Affirmed.


text:
    People ex rel. Plotke, Appellant, v. Elton W. Lower et al., Appellees.
    Gen. No. 14,474
    Civn, Service Act-to what does not apply. The head of a principal department of the government of a city which has adopted the Civil Service Act is exempt from the provisions thereof, even though such principal department and the office designated as its head were created after the adoption of such act. People v. Kipley, 171 Ill. 44, distinguished.
    Mandamus. Appeal from the Superior Court of Cook county; the Hon. Geoeoe A. Dupuy, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed July 14, 1908.
    Statement toy tine Court. The substance of the petition is correctly stated by appellant as follows:
    “On the 18th day of December, 1907, the appellant filed his petition in the Superior Court of Cook county, Illinois, praying that a writ of mandamus issue under the seal of said court directed to Elton W. Lower, Zina B. Carter and Michael L. McKinley, Civil Service Commissioners of the City of Chicago, respondents and appellees in this cause, commanding them that they forthwith proceed to advertise and give notice in the manner provided by law of a civil service examination for the office of Chief Smoke Inspector, and that after such examination has been advertised for the period required by law, that said Civil Service Commission proceed to hold an examination for the office of smoke inspector under the terms of the Civil Service Act and the rules of said Civil Service .Commission.
    On the 3rd day of January, 1908, the respondent filed a general demurrer to the petition and on the 14th day of January, A. D. 1908, the court entered an order sustaining the demurrer, denying the petition for a writ of mandamus and dismissing said petition; thereupon an appeal was prayed by the relator and allowed to this court.

      The petition sets forth that the relator is a citizen of the United States and of the State of Ulinois and a resident and a taxpayer of the City of Chicago in the County of Cook; that the City of Chicago is a municipal corporation duly incorporated under the laws of the State of Illinois; that there is now in full force and effect in said State an act entitled ‘An Act to regulate the Civil Service of Cities, ’ and that said act was adopted in accordance with the provisions thereof at a general election held in the City of Chicago; that the respondents, appellees in this cause, are now the Civil Service Commissioners of said city; that by the terms and provisions of the said Civil Service Act, and the amendments thereof, it is made the duty of the Civil Service Commissioners to classify all the offices and places of employment in the City of Chicago, with reference to the examination provided for in said act, except those offices and places mentioned in Section 11 of the act and under the provisions of said act, the offices and places so classified by the commission constitute the classified civil service of the City of Chicago; that by the terms of said act no appointments to any such offices or places of employment shall be made except under and according to the rules therein provided for, and it is made the duty of the Civil Service Commission to make rules to carry out the purposes of said act and for examinations, appointments and removals in accordance with its provisions; that said act further provides that all applicants for offices and places in said classified service except those mentioned in Section 11 thereof, shall be subject to examination, which shall be public, competitive and free to all citizens of the United States, with specified limitations as to residence, age, health, habits and moral character; that the commission, by the terms of said act, is given control of all such examinations, and it is made the duty of said commission to give notice of the time, place and scope of every examination by publication for two weeks preceding such examination in a daily newspaper of general circulation published in said city, which notice shall also be posted by said commission in their office for two weeks before such examination; that the only offices and positions under the government of the City of Chicago that are not by the terms of said act required to be classified are those mentioned in Section 11 thereof.
    That the first Civil Service Commission proceeded as required by Section 3 of the Civil Service Act to classify all the offices and places of employment in the City of Chicago (except those exempted from such classification by Section 11 of the act) by making, adopting and publishing, as provided by said act, Buie I; that said rule has ever since been continued in full force and effect by the Civil Service Commission of said city and is now one of the existing rules of said commission; that said Civil Service Commission has from time to time made and adopted and now continues in force and effect numerous rules to carry out the purposes of said act in accordance with the provisions thereof; that prior to July 8, 1907, there existed under the government of the City of Chicago, in the department of steam boilers and steam plants, the position of chief smoke inspector, which position was subordinate to that of the chief inspector of steam boilers and steam plants, the head of the department; that on the 8th day of July, 1907, the City Council of the City of Chicago passed an ordinance by which the position of chief smoke inspector was abolished and a new principal department of the city government, known as the Department of Smoke Inspection was created; that Chapter LXIY of the Bevised Municipal Code of Chicago of 1905, as amended, so far only as the same refers to smoke inspection, was repealed by said ordinance and the position of chief smoke inspector created by said chapter abolished; that said ordinance provides that it shall take effect on and after its passage and publication; that said ordinance was passed by a two-thirds vote of all the aldermen of said city duly elected and holding office as such; that by the terms of said ordinance of July 8, 1907, some of the duties which were theretofore by the ordinances of the' City of Chicago imposed upon said chief smoke inspector were by the terms of said ordinance required to be performed by the smoke inspector under said last mentioned ordinance, and that other and additional duties than those required of said chief smoke inspector were by the terms of said ordinance of July 8, 1907, imposed upon the smoke inspector; that said ordinance created the office of smoke inspector and provided that said smoke inspector be the head of the department of smoke inspection; that on the 9th day of September, 1907, the mayor of the City of Chicago by and with the advice of the City Council of said city appointed for the full term of service Paul P. Bird, as smoke inspector, under the provisions of Section 2 of said last mentioned ordinance and that the said Paul P. Bird thereupon .executed a bond to said city as required by the terms of the ordinance and thereupon entered upon the duties of the office of smoke inspector, and that said Bird has continued to occupy said office and perform the duties thereof until the present time, and that he now occupies said office and is performing the duties thereof; that said Department of Smoke Inspection as created by said ordinance is one of the principal departments of the government of the City of Chicago and that said department and said office of smoke inspector have been established and created subsequent to the passage and adoption of the Civil Service Act; that the office of chief smoke inspector is not an office or place of employment mentioned in Section 11 of the Civil Service Act and is not exempt from classification as an office or employment under the Civil Service Act; that although more than five months have elapsed since the office of smoke inspector was created as aforesaid, the Civil Service Commissioners have taken no steps toward advertising, calling and' holding a civil service examination for such office and that it is the duty of the Civil Service Commissioners of the City of Chicago under the Civil Service Act to hold and conduct an examination for the office of Chief Smoke Inspector after giving notice of such examination as provided by law; that petitioner has since the creation of the office of smoke inspector aforesaid, demanded of the said Civil Service Commission that it hold such examination in compliance with the terms of the Civil Service Act and under the rules of said commission, but that said Civil Service Commissioners refused to hold such examination, and claim that said office of smoke inspector was, by the terms of Section 11 of the Civil Service Act, exempt from classification and advised your petitioner that they would not advertise or hold such examination unless directed so to do by a court of competent jurisdiction.”
    Respondents to the petition, the Civil Service Commissioners of the City of Chicago, filed a general demurrer which was sustained by the court, and the petition was dismissed.
    Fred Plotke, for appellant.
    Clyde L. Day and Emil C. Wetter, for appellees; Edward J. Brundage, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The question presented by the petition is, whether or not the head of a principal department of the government of a city which has adopted the Civil Service Act is exempt from the provisions of that act, where such principal department and the office designated as its head were created after the adoption of that act.

Section 11 of the Civil Service Act exempts from the classified service provided for in the act of the head of any principal department of a city government by the following language: “Heads of any principal department of the city shall not be included in such classified service.”

The contention of appellant is that the act should be so construed that, while it confessedly excludes from its operation the heads of principal departments of the city government which were in existence in 1895, when the act went into force and effect, the heads of all principal departments which have been created since the act became operative, and those which may hereafter be' created, are included in the classified service.

The position of appellees, the Civil Service Commissioners of the City of Chicago, is that the law should be so construed as to make its operation uniform upon all principal departments, whether in existence before the act went into effect or created since that date; and that the office of smoke inspector, being the head of a principal department of the city government, is one of the offices which falls within the exemptions from the operation of the act, provided for in Section 11 of the act.

For support of the construction contended for by appellant, petitioner, reliance is placed mainly upon certain expressions in the opinion in People v. Kipley, 171 Ill. 44. The court say, on page 78 of the opinion:

“There can be no doubt that the words, as used in Section 11, were intended by the legislature to refer to heads of the principal departments as they existed under ordinances then in force.”

And again on page 79 of the opinion the court say:

“It might be that the legislature could or would create some department besides and outside of those existing at the time of the passage of the act, which should consist of several persons as heads, instead of one person. In such case such heads would come within the meaning of Section 11. But so far as the City of Chicago is concerned the departments at the time of the passage of the act had each only one head, and therefore the words used in Section 11 must refer to such heads as then existed.”

From these excerpts from the opinion it is argued that the only authority which can create additional departments with heads exempt from the operation oí the law is the General Assembly of the State, and not the legislative body of a municipality; and that the Civil Service Act repealed those portions of the Cities and Villages Act in conflict with it. And it is further inferred that the Supreme Court considered those portions of the Cities and Villages Act which authorize the city council to provide for the appointment of public officers otherwise than under the civil service law were in conflict with it, and were no longer in effect.

In considering the meaning of the expressions in the opinion in the Kipley case, it should be borne in mind, we think, that that case presented a very different situation from that shown by this record. It was there contended, and it was sought to have the court declare, that certain officers in rank under the chief of police, but who were heads or in charge of different divisions of the police department, to be heads of principal departments of the city government; and it was also sought to have the court hold that the city council might create offices which were not heads of principal departments, and by making the appointments to such offices subject to confirmation by the city council, bring them within the exemption provisions of the Civil Service Act. No new principal departments had been created, as shown by the petition in this case. We are of opinion, therefore, that the question here presented was not involved in the Kipley case, and was not passed upon by the Supreme Court.

Furthermore, we think the language of the opinion in the Kipley case above quoted was used by the court in discussing the question whether or not a department could have more than one head, and it appears clearly that what was there said referred to heads as they existed at the time of the passage of the act, and not to the departments. This appears from the sentences on page 78 of the opinion immediately following the one above quoted, namely: “At that time there was no principal department of the city government of Chicago which had more than one head. Each department had a single head. ’ ’ And this is further made clear by what is said on page 79 of the opinion from which it appears that the court, by way of argument, anticipated the creation at some future day of new principal departments of the city government, with several persons as heads, and stated such heads would come within the meaning of Section 11.

In our opinion no good reason exists for the application of one rule of construction to the heads of new principal departments created by the legislature of the State and another rule of construction to new principal departments created by the city council. In the one case the legislature exercises its power directly, and in the other the city council exercises the same power delegated to it. Nor is there any good reason for so construing the law that the head of a principal department created before the passage of the act shall be exempt under the act, while the head of a principal department which is created after the passage of the act shall be included in its operation. Such a construction would be a strained construction and would destroy the uniform operation of the act.

"We thinlr the judgment of the Superior Court in sustaining the demurrer to the petition is correct, and it is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Thompson

text:
    The People, Defendant in Error, v. Fred Warning, Plaintiff in Error.
    Gen. No. 4,940.
    Finding of court—how reviewed wpon questions of fact. Where a trial is had hy the court as to the facts, the court stands in the place of the jury and the decision would be reversed or affirmed hy the same rules which govern where facts are tried by a jury.
    Action commenced before justice of the peace. Error to the Circuit Court of Will county; the Hon. A. O. Marshall, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed August 10, 1908.
    J. L. O’Donnell and F. F. Donovan, for plaintiff in error.
    William D. Heise, for defendant in error.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The thistle commissioner of Frankfort township in Will county on December 28, 1906, filed a complaint in the name of the people of the state of Illinois, before a justice of the peace against Fred Warning to recover a fine for the violation of section 40 of the Criminal Code, which provides that whoever shall permit any Canada thistle to mature its seed on any land owned or occupied by him, so that the same is or may be disseminated, shall be fined not less than $10 nor more than $100. The defendant appealed from the judgment of the justice of the peace to the Circuit Court of Will county. In the Circuit Court a jury was waived and the case was tried by the court, resulting in the imposition of a fine of $10 and costs upon defendant in error. The defendant has sued out a writ of error from this court to test the validity of that judgment.

Propositions of law were presented which the court held satisfactorily to the plaintiff in error, except wherein the court was asked to hold that plaintiff in error could not be found guilty under the law and the evidence in the case. The only question presented for our consideration is, does the evidence justify the judgment? The evidence shows that the plaintiff in error for six years prior to the filing of the complaint occupied a farm of about four hundred acres situated partly in Will county and partly in Cook county, as a tenant of one Thompson, who resides in Chicago. Over two hundred acres of the farm are in meadow and pasture. In the lease the defendant in error specifically assumes the care and responsibility of destroying the Canada thistles, of which there are about thirty patches on the farm. In the latter part of August, 1906, the thistle commissioner found two patches of Canada thistles in a pasture on this farm, in Will county, in which thistles had gone to seed, about forty rods from the defendant’s residence. The commissioner gathered thistles from these patches, that had matured their seed, and produced them in court. ■ The commissioner testified that these patches, one of which was about fifty by one hundred feet in area and the other not so large, appeared as if they had not been cut that year. The defendant testified that there were about as many thistles on the farm when he went there as there was in 1906; that he knew where the patches were and hired men to cut them; that the men did cut them and the thistles were not permitted to go to seed. Other witnesses also testified that the thistles were cut and not permitted to mature. There was also testimony concerning the nature and characteristics of Canada thistles.

' Plaintiff in error contends that the word “permit” as used in the statute concerning Canada thistles is more positive than to “allow” or “suffer;” that to permit as used in this act “denotes decided assent.” The proof by plaintiff in error shows that he knew of these patches of thistles, and that they were in a pasture near his residence. We conclude from a review of all the evidence, that even if the construction is given the statute that plaintiff in error contends for, the Circuit Court was justified in finding that the plaintiff in error was guilty of such negligence as to be in law deemed to have intentionally permitted Canada thistles to mature on the land occupied by him. Commonwealth v. Curtis, 9 Allen, 266; 2 Burrill's Law Dict. 657.

“Where a trial is had by the court as to the facts, the court stands in the place of the jury, and the decision will be reversed or affirmed by the same rules which govern where the facts are tried by a jury.5 ’ Field v. C. & R. I. Ry., 71 Ill. 458; Podolski v. Stone, 186 Ill. 540. The trial court having found against the plaintiff in error we cannot say the evidence did not justify such finding. The judgment is, therefore, affirmed.

Affirmed.