text:
    Wallenty Bunida, Appellee, v. Armour & Company, Appellant.
    Gen. No. 14,602.
    1. Master and servant—when obligation to furnish safe place arises. If an employer, either expressly or impliedly, directs an employe to perform work in a particular place, the law raises the duty on the part of the employer to use reasonable care to have and keep such place in a reasonably safe condition for the performance of such work, and a breach of such duty constitutes negligence.
    2. Master and servant—when obligation to furnish safe place does not arise. It is not sufficient to constitute negligence on the part of the employer, that an employe, of his own volition, engages in work he has not been directed by his employer, either expressly or impliedly, to perform, in a place where he has not been directed, either expressly or impliedly, to go, although such place he unsafe and dangerous. The duty of the employer to the employe to have and keep a place reasonably safe does not exist unless the employer or his representative knows or has reason to believe that the employe is serving his employer in such place.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.
    Heard in this court at the March term, 1909.
    Rehearing denied October 21, 1909.
    Reversed with finding of facts.
    Opinion filed October 7, 1909.
    Statement by the Court. In an action on the case brought by appellee, plaintiff, against appellant, defendant, to recover for a personal injury alleged to have been sustained by plaintiff through the negligence of the defendant, plaintiff had judgment for $8,000, and the defendant appealed. The declaration in a single count alleged that defendant operated a slaughtering establishment in Chicago; that plaintiff was employed by defendant to work therein; that it was the duty of defendant to use care, etc., to provide a safe place for plaintiff to work, etc.; that defendant “carelessly, negligently, knowingly, wrongfully and improperly allowed and permitted certain portions of the premises and buildings of the defendant there to be and to remain dark, without light, so that persons passing along and through said building and premises could not properly see their way; and while the plaintiff, with all due care and caution for his own personal safety, was, under the order and direction of the defendant, on, to-wit: the date last aforesaid, passing along and through a certain building of the defendant on defendant’s premises, by reason of the unlighted or deficiently lighted condition there existing, the plaintiff was then and there, by and through a certain servant or agent of the defendant, who was not a fellow servant of the plaintiff, wrongfully, carelessly, negligently and improperly struck upon and against his, plaintiff’s, body with a sharp pin or knife or instrument, without any fault on the part of plaintiff, so that plaintiff’s left arm and hand were greatly and severely injured, wounded and disordered, so that the plaintiff’s said left arm and hand were necessarily and unavoidably cut off,” etc.
    Plaintiff when injured was working on the fourth floor of a building of defendant, in which hams were cured in pickle. The room was upwards of one hundred feet long from north to south and its width somewhat less. It was not divided by any permanent partition. Near the middle of the room, from east to west, were double rows of posts, running north and south, thirteen feet apart, and the distance between the two rows was the same. The hams were cured in vats four feet in diameter and three and a half feet high. From each post in the east row, double tiers of vats, two vats high, were placed on the floor, extending back to the east wall. Similar tiers of vats extended from each post in the west row back to the west wall, and also extended four feet east from the posts. This left, between the ends of the tiers of vats on either side, a main aisle or passage, nine feet wide, called the main alley, extending from north to south across the room, and on each side of such main alley eight or nine aisles or passages called by the witnesses sections, each five feet wide and extending back east or west from the main alley to the end of the room. To cure hams, a vat was filled with hams and the vat then filled with pickle. A movable cover was then placed in the top of the vat to keep the hams under the surface of the pickle. The hams were left in pickle about sixty days, and during that time were overhauled three or four times in the manner hereinafter stated. The building was eight stories high. On some of the upper floors pork was cured in large casks called tierces. In curing such pork a tierce was filled with pork, the tierce then filled with pickle and headed up. In the process of curing it was necessary, from time to time, to roll the tierces. When the upper floors became crowded with tierces of pork in the process of curing, it was the practice to fill sections on the fourth floor with such tierces. When hams were overhauled, all of the vats facing a section on either side were overhauled at the same time. When a section was to be overhauled in which tierces of pork had been stored, the tierces were all rolled out of such section into another section before the work of overhauling was begun. The work of overhauling the hams in the vats was under the charge of foreman Lynn, who had three or four gangs of men, of four each, engaged in such work. The work of rolling and piling the tierces of pork was under the charge of foreman Kaufman, who had three or four gangs, of four to six men each, engaged in that work. When foreman Lynn desired to overhaul a section in which tierces of pork were stored, he notified foreman Kaufman and the latter then sent one of the rolling gangs under his charge to roll the tierces out from such section into another section. Before the day of the accident all of the tierces in section four, on the east side of the main alley, had been rolled out from that section by a rolling gang sent for that purpose by foreman Kaufman. On the morning of the day of the accident an overhauling gang of four men—Buzek, Kuzwske, Luchowicz and Lubruski—began the work of overhauling the hams in the vats facing section four. They began at the east end of the section and worked west. They had and used in their work a table, a truck on which stood a barrel containing pickle, a force pump which stood on the barrel and took pickle from it, and about six feet of hose leading from the pump, at the end of which was a hollow perforated needle, about the size of a lead pencil and six or eight inches long. In overhauling, one man took a ham from a vat and passed it to a second man, who inserted into it the needle'; a third man then operated the pump, which forced the pickle through the needle into the ham; the ham was then passed to the fourth man, who put it in another vat. When the hams had been so transferred, the pickle was also transferred by two men by the use of a bucket. The men then proceeded to overhaul another vat in the same manner, and so on until all the vats facing the section were overhauled. Section four was about sixty feet long, and at the time of the accident the overhauling gang had overhauled the vats from the east wall to about the middle of the section.
    Plaintiff, as has been said, belonged to one of the rolling and piling gangs, and had worked in such gang; five and a half months. About four o’clock in the afternoon of the day of the accident, foreman Kaufman took the gang to which plaintiff belonged from the fifth to the fourth floor, to a section next to the section in which the overhaulers were at work to clear the tierces of pork out of that section so that the overhaulers might begin overhauling the hams in it when they had completed the overhauling of section four. The men proceeded to roll the tierces from that section out into the main alley and then north in that alley into a vacant section. A few minutes before five o’clock foreman Kaufman returned to the section where his gang were at work. At that time all of the tierces but twelve or fourteen had been rolled out of the section. Plaintiff was the only member of the rolling.gang who testified on the trial. He testified that Kaufman, when he came back, sent all of the men in plaintiff’s gang, except himself and Touka, back to the fifth floor and “told me to remain there and finish the work.” On cross-examination he testified that Kaufman “says when he came, when he came over there, he sent the rest of the four men, the rest of the men, upstairs and told us to stay down there and finish the work. * * *
    Q. And the finishing of the work meant the rolling of certain of the barrels to some other place that had not been moved by the gang, did it not? That is right, is it?
    A. Tes, finishing the work.
    Q. How many barrels did you roll?
    A. Twelve or fourteen barrels.”
    He also testified that when the gang worked together they had a lantern; that the men who went away took the lantern; that he asked Kaufman for a lantern and Kaufman said he could not give him one. Kaufman testified that when he returned there were only a few tierces remaining in the section; that he told the men to go up to the next floor when they had finished the section; that he did not tell plaintiff and his partner, or either of them, to stay on the fourth floor; that plaintiff did not ask him for a lantern or say anything about a lantern to him.
    Plaintiff further testified that after Kaufman went away he finished the section where he was then working, went to another section, finished that, and then went to another section, where there was nothing; that he then passed along the main alley and saw Buzek in section four; that he asked him, “What are you doing here, John?” and he answered, “I am working here;” that he asked him if there were any tierces in that place, and Buzek answered that he did not know; that a little while later plaintiff started to walk east in section four; that he walked east thirty feet in that section, looking for tierces; that as he was so walking something struck him on the left wrist.
    In fact he came in contact with the needle used in overhauling hams, which was then held by Buzek. The wound inflicted by the needle became infected and it became necessary to amputate plaintiff’s arm near the shoulder. The overhauling gang had just before the .accident finished transferring the hams from one vat to another, and Luchowicz and Lubruski were engaged in transferring the pickle. While they were so engaged Kuzwske left the section and went into the main alley. Buzek went to near the main alley, had a conversation with plaintiff and then returned to the place where he had been at work. He testified that when he returned he went to the pump, “looked to see if the pickle was running right;” that he took the needle in one hand and started the pump with the other, and just then plaintiff’s wrist came in contact with the needle; that he did not see plaintiff after he saw him in the main alley until his wrist came in contact with the needle. Luchowicz and Lubruski testified that plaintiff and Buzek splashed pickle on each other from a vat at the end of section four next to the main alley; that Buzek came back in the section to the place where he had been working; that plaintiff followed him as he came back; that Buzek took the needle in one hand and the pump lever in the other, and plaintiff raised or thrust forward his hand to strike Buzek and struck the needle. The defendant introduced evidence tending to show that Buzek had made statements in conflict with his testimony on the trial, and corroborative of the testimony of Luchowicz and Lubruski.
    The overhauling gang had and used in their work a large lamp and two lanterns. The large lamp was attached to the lower end of a stick like a broom handle, at the upper end of which was a spear which was driven into the ceiling. By this means the lamp was suspended in the middle of the section above the vats, and was moved from place to place as the men moved from one vat to another. The smaller lamps or lanterns were placed on the vats. Kuzwske took one of the small lamps when he left the section, so that at the time of the accident there were in the section at the place of the accident only the large suspended lamp and one smaller lamp or lantern. Plaintiff and Buzek testified that the lamps gave very little light, that the section was dark. Plaintiff testified that he did not see any one in the section before his wrist came in contact with the needle, and Buzek that he did not see plaintiff just before he was injured. Luchowicz and Lubruski testified that they could see plainly from where they were to the main alley.
    Judah, Willard, Wolf & Reichmann, and A. R. Urion and A. F. Reichmann, for appellant.
    Henry B. Rathbone and Scott O. Cavette, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

It is the duty of the employer to use reasonable care to furnish his employe a reasonably safe place to perform the work he is directed by the employer, either expressly or impliedly, to perform. The work of the employer is to be under his own control, and it is for him, or his representative, to give such orders and directions as he may deem proper in respect to the work to be performed by his employe and the place in which such work shall be done. If an employer, either expressly or impliedly, directs an employe to perform work in a particular place, the law raises the duty on the part of the employer to use reasonable care to have and keep such place in a reasonably safe coudition for the performance of such work, and a breach of such duty constitutes and is negligence. But it is not sufficient to constitute negligence on the part of the employer, that an employe, of his own volition, engages in work he has not been directed by his employer, either expressly or impliedly, to perform, in a place where he has not been directed, either expressly or impliedly, to go, although such place be unsafe and dangerous. The duty of the employer to the employe to have and keep a place reasonably safe does not exist unless the employer or his representative knows, or has reason to believe, that the employe is serving his employer in such place.

The defendant is a corporation, and could act and give directions only through its proper officer or agent. There is no claim that any one assumed, on behalf of defendant, to direct where the plaintiff should work, or what work he should perform, except his foreman, Kaufman. The room in which plaintiff was injured was lighted only by artificial lights. Near the middle of the room, from east to west, was a main alley running north and south. On the east side of this alley were nine aisles, called sections, each five feet wide and about sixty feet long, and on the west side, eight sections of the same width, but somewhat shorter. On each side of each section were two tiers of vats, in which hams were placed and covered with pickle, for the purpose of curing. This process occupied about sixty days, during which time the hams were overhauled several times by an overhauling gang, who were furnished lamps or lanterns. Plaintiff had nothing to do with the overhauling of hams. On the upper floors of the same building pork was cured in tierces, which were headed up. It was necessary to roll these tierces several times during the process of curing. When there was not sufficient room on the upper floors for the storage of tierces of pork, it was the practice to fill some of the sections on the fourth floor with such tierces. When the hams in any section in which tierces were stored were to be overhauled, it was necessary to roll the tierces of pork out of said section so that the overhauling gang might go through the section with the table and truck, with a barrel on it, which they used in their work. It was the duty of Kaufman, plaintiff’s foreman, on notice by the foreman of the overhauling gang that he desired to overhaul a section in which were tierces, to roll such tierces out of that section. The overhauling gang were overhauling section four, from which all the tierces had been removed, and their foreman notified Kanfman to clear out another section which he intended to overhaul when the overhauling of section four was completed. It was under these circumstances, and for the purpose above stated, that foreman Kaufman took the gang to which plaintiff belonged to the fourth floor and set them to work rolling the tierces from the section he had been so notified to clear ont. The only work that Kanfman had in hand on that floor was the clearing out of the section he had been so notified to clear out.

The only testimony as to any express directions of Kaufman to plaintiff, or the gang to which he belonged, was the testimony of plaintiff and of Kaufman. Plaintiff testified that when nearly all the tierces had been rolled out of the section in which his gang were working, Kaufman came back to the section, sent four of the gang upstairs, told plaintiff and another man to remain, “and told us to stay down here and finish the work,” and further testified as follows:

“Q. And the finishing of the work meant the rolling of certain barrels to some other place that had not been moved by the gang? That is right, is it? A. Yes, finishing the work.
Q. How many barrels did yon roll? A. Twelve or fourteen barrels. ’ ’

Kaufman testified that he came back to the section about the time stated by plaintiff. He denied that he then gave any order that a part of the men should go to another floor and plaintiff and another man remain. His testimony as to the direction he then gave is as follows: “I told them to go up to the next floor when they got through with that section. They had only a few tierces to roll when I was there.” Plaintiff’s testimony does not tend to prove an express direction by Kaufman to him, or any member of the gang to which he belonged, to go into any other section or perform any work on the fourth floor, except to finish the work in which they were then engaged, which was the clearing ont of the section in which they were then working ; and there is no evidence in the record tending to show an express direction to go to any other section or perform any other work on that floor.

There is no evidence tending to show that the rolling gang to which plaintiff belonged, or any member or members of it, had ever before, after clearing out a section on the fourth floor, gone into any other section on that floor for the purpose of removing tierces therefrom, or for any other purpose; no evidence that such rolling gang had ever performed any work on that floor except to clear out a section when directed so to do by their foreman. It is true the plaintiff testified that he had to go and “look over the sections,” and that he rolled tierces out of other sections than the one his gang was engaged in clearing out. But his statement that he had to “look over the sections,” was the statement of a conclusion, not of a fact, and he testified to no order, no previous practice, no fact, no circumstance, tending to show that it was his duty to look over any other section or remove tierces from any other section than the one he and the other members of his gang were clearing out. There is in the record no evidence from which the jury might properly find that the defendant impliedly directed the plaintiff, or any member of the gang to which he belonged, to go into said section four, or to go into any section on the fourth floor other than the sections from which they were rolling tierces and the section into which they rolled such tierces.

The evidence, in our opinion, fails to show that plaintiff went into the section of defendant’s building, in which he was injured, under or pursuant to any direction of defendant, or of any representative of defendant, either express or implied, or in the performance of any work he had been directed by defendant, either expressly or impliedly, to perform, or that defendant, or any representative of defendant, knew or had reason to believe that plaintiff had gone, or would go, into said section with the intention of serving the defendant. In the absence of any such direction or knowledge, the law did not raise on the part of the defendant the duty to the plaintiff alleged to have been neglected.

In our opinion it does not appear from the evidence that the defendant is guilty of the negligence alleged in the declaration in this case, and the judgment of the Circuit Court will therefore be reversed, with a finding of facts, and the cause will not be remanded.

Reversed with finding of facts.


source: Caselaw Access Project

author: Mr. Justice Freeman

license: Public Domain

text:
    Thomas Podlaski, Appellee, v. Adolph Bender et al., Appellants.
    Gen. No. 14,600.

      Damages—what not proof of. An estimate of profits by an interested witness does not constitute such evidence as will support a judgment for damages.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Tetiman E. Ames, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and remanded.
    Opinion filed October 7, 1909.
    Statement by the Court. This is an action in assumpsit brought originally before a justice, from whose judgment an appeal was taken to the Circuit Court of Cook county. In the latter court a jury returned a verdict in favor of the plaintiff for $200, upon which judgment was rendered, from which judgment this appeal is prosecuted.
    Appellee in- 1904 purchased certain saloon fixtures of the defendants, and paid for them. It is claimed, however, that they were delivered in bad condition, that a “brass arm railing” was missing and that the ice-box was in broken condition with parts wanting. There is evidence in appellee’s behalf to the effect that appellants agreed at the time they sold the goods to put them up in good order in appellee’s store; that no one having appeared to do the work appellee called on appellants and was told a carpenter would be at his place of business for that purpose the next day; that no one came, however, and that appellee again called at appellants’ store and was again promised that the carpenter would be at his saloon the next day; that appellee called on appellants a number of times and was finally told to hire a carpenter himself, and that he obtained one after waiting fourteen days. He testifies that he paid the carpenter $25 and paid over three dollars to replace seven new locks which were missing, and that he did no business during the fourteen days.
    Over appellants’ objection appellee was allowed to state what rent he was paying for the saloon, what wages he paid his barkeeper and porter, and that his profits would have been about eight dollars a day during the period he was “delayed by this furniture not having been delivered.” He was also permitted to state over objection that he paid $500 for his license.
    Appellants’ evidence is to the effect that there was no agreement as to when the fixtures were to be delivered, that they were all put in good shape before they left appellants’ place of business and were delivered as soon as ready; that appellee was never told to hire a carpenter nor that he would be paid for having the fixtures put up.
    D’Ancona & Pflaum, for appellants.
    Arthur W. McGovney and Chauncey M. Millar, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

It is apparent appellants’ contention that the trial court erred in admitting evidence as to appellee’s estimated profits during the fourteen days and the wages of his employes is well taken. The actual question to which appellants’ objection was overruled was, “Can you state what your profits were per day during the period that you were delayed by this furniture not having been delivered?” and the answer was “Eight dollars a day.” Clearly this question as put was entirely irrelevant from every point of view. It appears to have been assumed that the question was intended to ascertain what the witness supposed or believed his profits would have been had the fixtures been in place during that time. Giving it such an interpretation the evidence was still improper. On cross-examination appellee testified that he took in an average of $20 a day in September, 1904, upon which his profit was eight dollars a day after paying all expenses. In Green v. Williams, 45 Ill. 206, 209—an action on a covenant of a lease—it is said that a party “is not entitled to recover profits she might have made by conducting her business on the demised premises. Such damages are too remote, speculative and incapable of ascertainment.” In Chapman v. Kirby, 49 Ill. 211, 218—an action on the case and not on contract—evidence was admitted to show the extent of appellee’s business and profits during the six months previous to the act complained of, and it was held that compensation for such profits as would have been so made could be recovered in that form of action, although the precise extent of the damages could not “be shown by demonstration,” but could “be ascertained with a reasonable degree of certainty.” In Benton v. Fay, 64 Ill. 417, 422—a suit to recover damages for non-delivery of a machine—the court said that “no evidence should he received as to probable profits, as they would be purely speculative,” distinguishing the case from Chapman v. Kirby, supra. In Ill. & St. L. R. R. & Coal Co. v. Decker, 3 Ill. App. 135, 140—an action of tort—the profits of a month were adopted by the trial court as a basis for estimating the loss of profits the “appellee would have probably realized from his business if he had been permitted to carry it on to the extent of the lease.” The court said: “A month is adopted as a standard where but one has elapsed. Certainly this could not be adopted as a measure which could with reasonable certainty guide the jury in the calculation of profits,” and that the testimony in regard to profits should not have gone to the jury. And it was held that an instruction which told the jury “that in assessing damages they could take into consideration such profits as the appellee would have probably realized from his business if he had been permitted to carry it on to the extent of his lease” * * * “sent the jury into the fields of conjecture and speculation to determine the amount of damages they should give appellee.”

We have referred to the above cases because appellee seems to rely upon them as supporting the judgment. We are of opinion that, as said in Central Coal & Coke Co. v. Hartman, 111 Fed. Eep. 96, 102, “the basis of this judgment is nothing but the guess of an interested witness,” mere conjecture and affords no substantial evidence justifying a judgment of such amount.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    Anheuser-Busch Brewing Association, Appellee, v. William G. Dwyer et al., Appellants.
    Gen. No. 15,337.
    1. Injunctions—enforcement of negative covenants. Equity-will restrain the violation of negative covenants contained in a contract or lease even though no substantial injury may result from such violation, and even though, further, the damages sustained might be recovered at law.
    2. Injunctions—enforcement of negative covenants. An injunction lies to restrain the purchase of beer from any other than the complainant if the defendant by contract and lease has negatively covenanted not to so purchase.
    Holdom, P. J., dissenting.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed October 7, 1909.
    Statement by the Court. This is an appeal from an interlocutory order of the Superior Court granting an injunction, upon the face of a bill filed on behalf of the appellee.
    The bill, avers that the complainant is engaged in the manufacture and sale of domestic beer, and was so engaged February 25, 1907, at which time the appellants were and still are engaged in the sale of domestic beer at retail under the name of W. Gr. Dwyer & Company, in the store floor and basement of the building known as 191 East Lake street and 36 Fifth avenue, Chicago; that complainant and Hannah & Hogg, a corporation which is made co-defendant, acquired a lease of said premises from one James W. Sheridan; that at the time it was so acquired the said Hannah & Hogg was and still is engaged in the sale of liquors and cigars at wholesale in Chicago, and that at the time said lease was so acquired from said Sheridan it was agreed between appellee and said Hannah & Hogg that the lease should be taken in the name of said Hannah & Hogg, but for the benefit of both Hannah & Hogg and the complainant, appellee herein, and that the premises should be sublet or relet, but only for use as a buffet and saloon in which only beer manufactured by appellee and wines and liquors sold by Hannah & Hogg should be used and sold thereon during the term of the lease; that in consideration that only domestic beer of appellee should be sold on said premises during the entire term of said lease, appellee guaranteed in writing to Hannah & Hogg the payment of one-half the rent for said premises during the entire term of said lease, appellee making said arrangement in order that complainant might thereby secure an outlet for sale of domestic beer manufactured by it; that the lease from said Sheridan was taken in the name of said Hannah & Hogg for a period of ten years ending April 30, 1914; that in August 1903 Hannah & Hogg at appellee’s instance executed a lease of said premises to David Lewinsohn Company for a term commencing May 14, 1904, and ending April 30, 1914. This lease contained the following clause:
    “It is further expressly covenanted and agreed by and between the parties' hereto, in consideration of the within lease, that the said party of the second part shall buy all the draught beer to be used or sold in the said buffet or saloon aforesaid from and of the Anheuser-Busch Brewing Association of St. Louis, Missouri, which is in the business of manufacturing and selling beer; that said party of the second part shall not, directly or indirectly, buy, take, or sell any draught beer whatsoever manufactured or sold by any other brewery than that belonging to said Anheuser-Busch Brewing Association of St. Louis, Missouri. Any violation of the covenants in this paragraph shall at once work a forfeiture by said second party of this lease; and said demised premises shall thereupon immediately revert to said party of the first part with all the rights to said party of the first part of re-entry and possession as herein provided in case of forfeiture.”
    The bill alleges that on March 1, 1905, this lease with the consent of appellee and of Hannah & Hogg was assigned by the lessee, Lewinsohn & Company, who had complied with its covenants, to one Elizabeth C. Behm; that at the same time appellee loaned to said Behm $10,000 to enable her to purchase said leasehold, said loan being evidenced by thirty-four notes made by her, dated February 28, 1905, due respectively from one to thirty-six months after their date, the first note being for $200 and the last for $3,400, all of said notes being secured by chattel mortgage given by said Rehm to appellee covering all the fixtures and personal property in said premises; that contemporaneously with said loan, appellee and said Elizabeth C. Rehm entered into a written agreement which, after reciting the making of said loan and the execution of said notes securing the loan and that one of the inducements for making the loan was the making of the said written agreement, contains the following clause:
    ‘ ‘ This Agreement Witnesseth: That the said Elizabeth C. Rehm, for and in consideration of the premises and of one dollar to her in hand paid, the receipt whereof is hereby acknowledged, has promised and agreed'and does hereby promise and agree to and with the said Anheuser-Busch Brewing Association that during the term of nine and one-half years next after the date hereof she will carry on and conduct a saloon business on the premises described in said chattel mortgage, to-wit, the southwest corner of Lake street and Fifth avenue, known as No. 36 Fifth avenue, in the city of Chicago in the state of Illinois; that during said term of nine and one-half years she will purchase of said Anheuser-Busch Brewing Association, for sale and use upon said premises beer manufactured by said Association of a grade not inferior to that known to the trade as ‘Budweiser’; and that during such term she will not suffer or permit any domestic beer other than that manufactured by said Association to be used on said premises; and that she will pay for all beer so purchased in cash upon delivery the current market price of said Association for its said beer of that quality in Chicago.
    “And the said Anheuser-Busch Brewing Association, in consideration of the premises, promises and agrees that during the same term it will sell to said Elizabeth Rehm all the domestic beer needed or required by her in her said business on said premises at its current market price for the same in Chicago at the time of delivery as aforesaid. ’1

    Said agreement was executed by said Elizabeth C. Rehm and by appellee.
    The bill states that said Rehm conducted thereafter in said premises a buffet and saloon until February 25, 1907, complying with the express covenant contained in said lease and agreement.
    It is further set forth that on the 25th day of February, 1.907, the appellants herein, with appellee’s consent, purchased from said Elizabeth C. Rehm the entire interest of said Rehm in and to the said leasehold, buffet and saloon theretofore conducted by said Rehm, and said Rehm assigned and transferred to appellants all her right, title and interest in and to said lease; that appellants accepted said assignment and agreed to make all payments and perform all covenants and conditions in said lease mentioned to be performed by the party of the second part, and expressly agreed to perform the covenant and condition in said lease as respects the sale and use on said premises of the beer manufactured by complainant and to perform the agreement respecting the sale of wines and liquors of the co-defendant, Hannah & Hogg, and expressly accepted the contract between appellee and said Rehm dated February 28, 1905, by writing at the end of said contract, “We hereby accept the above contract. T. J. Burns, W. Gr. Dwyer, February 25, 1907; ’ ’ that said appellants assumed and agreed to pay the portion of the indebtedness remaining unpaid and owing by the said Rehm to appellee and procured from said Rehm a bill of sale of the buffet and saloon and other property subject to the said chattel mortgage, and agreed with appellee, by acceptance of said contract in writing, that they would during the remainder of the term of said lease conduct a saloon and buffet upon the said premises and purchase from appellee for use thereon domestic beer manufactured by appellee, and the latter by the acceptance of said agreement agreed that it would sell to appellants all the domestic beer needed or required by the latter in their business upon said premises at complainant’s market price for said beer in Chicago at the time of delivery of the same; that afterwards appellants entered into possession of said premises and conducted a buffet and saloon and evidenced their acceptance of said assignment of lease and contract by purchasing domestic beer for use and sale on said premises which was manufactured by complainant; that by various payments appellants reduced the amount due appellee on said chattel mortgages from $5,800, due when appellants took over the business from said Eehm, to $3,400 due February 20, 1908; that on said last mentioned date appellants paid one of said notes for $200 and for the remainder due appellee executed sixteen notes each for $200 and also a chattel mortgage covering the property and fixtures in said premises to secure said notes, and have since paid certain of said last mentioned notes; that until September 1, 1908, all domestic beer sold or used on said premises was bought from appellee, and that appellee during said time fully performed its obligations under said contract and sold and delivered to appellants all the domestic beer needed or required by them in their business on said premises at the current market price until on or about September 1, 1908, when appellants refused to receive the domestic beer manufactured and sold by appellee and stated they would no longer receive any of said beer for use and sale on said premises, but would use and sell upon said premises the domestic beer made and sold by other brewing companies ; that on various dates since September 1, 1908, appellee has tendered and offered to deliver to appellants all domestic beer required by them for use and sale on said premises and appellants have refused the tender and stated they would not receive any domestic beer manufactured and sold by appellee.
    That on September 1, 1908, appellants informed appellee that they had been offered a large inducement by the Seipp Brewing Company to discontinue the sale upon said premises of beer manufactured by complainant and to sell and use upon said premises only the beer manufactured by said Seipp Brewing Company; that the amount offered was stated to be approximately $3,000, and appellants informed appellee that the inducement was so great that they intended to and would accept said offer; that on September 25, 1908, appellee caused to be delivered to said appellants a written demand that said appellants comply with the terms of said lease and contract; that said appellants did not recognize said demand and refused to receive any domestic beer of complainant for use and sale on said premises or to carry out said contract as respects the sale of beer, and this without just cause.
    Appellee charges that to enable them to terminate their contractual relations with appellee under the said lease and agreement and to enter into an agreement with the Seipp Brewing Company to be supplied with all domestic beer required by them and to safeguard themselves from attack by Hannah & Hogg, appellants entered into a tacit agreement and understanding with said Hannah & Hogg that the latter as nominal lessor in said lease would in no case proceed to enforce the negative covenant of said lease in favor of appellee, and as a further inducement to said Hannah & Hogg to refrain from adverse proceedings against them, appellants have continuously since September 1, 1908, used and sold in and about the premises in said lease described wines and liquors purchased exclusively of said Hannah & Hogg at the current market prices in conformity with the provisions of the lease of February 28, 1907; that prior to the filing of this bill and on November 9, 1908, appellee made a formal demand in writing on said Hannah & Hogg to take appropriate steps to institute an action in the nature of a bill of complaint in equity to protect appellee’s rights and interests and enforce the duties and obligations of said appellants and enjoin their wrongful acts and offered to pay Hannah & Hogg all expenses of such proceedings, including solicitor’s fees, and to indemnify and save harmless the said Hannah & Hogg from any loss or damage by reason of said proceeding; that appellee further requested Hannah & Hogg in case the latter refused to institute such proceedings to give appellee permission to do so in the name and on behalf of said Hannah & Hogg, offering to pay all expenses of said proceedings and to indemnify and save harmless said Hannah & Hogg from any loss or damage by reason of such use of the name of the latter or of such proceedings; but Hannah & Hogg refused to institute such proceedings or to permit appellee to do so in the name of said Hannah & Hogg, and appellee has therefore been unable to join Hannah & Hogg as complainant herein and has made it co-defendant.
    The bill contains other averments which it is not necessary to set forth at length for the purposes of this appeal, and prays inter alia that appellants be decreed not to sell or permit to be sold upon the premises described any domestic beer other than that manufactured by complainant as long as they occupy said premises and up to and including April 30, 1914; that they be restrained from either directly or indirectly selling or permitting to be sold upon said premises any domestic beer other than that manufactured by appellee, and from in any wise either directly or indirectly violating said negative covenant in said lease and in the contract contained, and that an injunction to that effect be issued pendente lite; that as respects all the defendants, appellee be decreed to have a bene ficial interest in the leasehold and that the rights of appellee under said lease be fixed and determined by the court and for other relief.
    Upon hearing before the chancellor an injunction as prayed was issued on the face of the bill, and from the order to that effect this appeal is prosecuted.
    Walter H. Jacobs, for appellants.
    Moses, Rosenthal & Kennedy, for appellee; Joseph W. Moses, of counsel
   Mr. Justice Freeman

delivered the opinion of the court.

It is sought to set aside the injunction order entered in this case upon the ground, first, that it restrains the breach of a contract, is a negative specific enforcement of the contract and should therefore be governed by the same doctrine and rules which control in cases of specific performance. On the other hand, appellee’s counsel urge that the bill at bar was filed not with a view of compelling a direct specific performance of" the affirmative covenants of the lease and contract by way of injunction, but by means of that remedy to enforce and prevent a violation of the express negative covenants of those instruments. The injunction order complained of restrains appellants from permitting “any domestic beer other than that manufactured by the Anheuser-Busch Brewing Association” to be used upon the premises in question, and “from directly or indirectly buying, taking or selling on said premises any draught beer whatsoever manufactured or sold by any other brewing company than the complainant.” This is not in our opinion a mere indirect attempt to enforce the specific performance of the affirmative covenants of the lease and contract. Appellants are not compelled under this injunction to ‘ ‘ carry on and conduct a saloon business on the premises described in said chattel mortgage,” nor to “purchase of said Anheuser-Busch Brewing Association for sale and use upon said premises beer manufactured by said Association.” They are not required to specifically perform any of these agreements; they are by the. language of the injunction merely restrained from selling or using any other beer save appellee’s on the said premises. It is conceded by appellants’ counsel that Illinois cases hold “that equity will enjoin the breach of negative covenants in contracts and deeds and in such proceedings is not governed by the ordinary rules in cases for specific performance.” The injunction in this case does not forbid appellants closing their saloon on these premises and going elsewhere if they see fit, nor forbid their ceasing to use or sell domestic beer on the premises. Neither does it require appellants to buy any draught or domestic beer from appellee. It merely forbids them from buying such beer for use or sale on the premises from any one else than appellee until the further order of the court.

In Carlson v. Koerner, 226 Ill. 15, 19, cited by appellants’ counsel, it is said: “It is no doubt the rule that in respect to purely negative covenants annexed to or contained in contracts or leases, courts of equity frequently interfere by injunction and indirectly enforce specific performance of such negative covenants by prohibiting their breach; and it is equally well settled that where there is such an express negative covenant, courts of equity will entertain jurisdiction by injunction, although the same will occasion no substantial injury, or even though the injury, if any, be recoverable at law. This is upon the principle that the owner of land selling or leasing it may insert in his deed or contract just such conditions or covenants as he may see fit touching the use or enjoyment of the land, and in case of the breach thereof he is not to be defeated by the opinions of any number of persons that he is not substantially injured thereby.” See also Star Brewery Co. v. Primas, 163 Ill. 652, 658, where it is said that “the owner of land selling or leasing it may insist upon just such covenants as he pleases touching the use and mode of enjoyment of the land,” and the breach of such negative covenant may be enjoined.

In the case at bar the lease and the contract each contains a condition or covenant “touching the use or enjoyment of the leased premises, which in effect is that the premises shall not be employed for the use or sale of any draught beer whatsoever manufactured or sold by any other brewery than that of the appellee. This restriction by the terms of the lease is made binding upon and to apply and inure to the “respective successors and assigns” of the parties to the lease. We deem it unnecessary, in view of previous decisions, to discuss at length the question as to whether an injunction will lie to prevent violation of express negative covenants or agreements of a lease or contract. The question was presented in Garden City Sand Co. v. The Southern Fire Brick Company, 124 Ill. App. 599, 607, and the judgment of the Appellate Court was affirmed by the Supreme court in a comprehensive opinion. Southern Fire Brick Co. v. Sand Company, 223 Ill. 616, 624. It is said by appellants’ counsel that in the case at bar the negative agreement set out in the lease does not purport to restrict the use to which the premises shall be put and cannot be brought under the head of a covenant restricting the use of the demised premises. In Carlson v. Koerner, 226 Ill. 15, 19, it is held in substance that where there is an express negative covenant annexed to or contained in contracts or leases, courts of equity will entertain jurisdiction by injunction, although the same will occasion no substantial injury or even though the injury, if any, be recoverable at law. But in order to give courts of equity jurisdiction on that ground the covenant must be a negative one and must be certain and the use of the premises for a specific purpose must be clearly fixed by the agreement of the parties. “If the negative covenant is only implied from a positive stipulation, courts are not so ready to lend their jurisdiction.” It is evident we think that by the restrictive clauses in the lease, as well as the more explicit phraseology of the contract, it is “expressly covenanted and agreed” that the lessee “shall buy all draught beer to be used or sold” on the demised premises from appellee and ‘ ‘ shall not directly or indirectly buy, take or sell any draught beer whatsoever manufactured or sold by any other brewery,” and that such covenant and agreement come within “the principle that the owner of land selling or leasing it may insert in his deed or contract just such conditions or covenants as he may see fit touching the use or enjoyment of the land. ’ ’ Carlson v. Koerner, supra, pp. 19, 20. Whether in actual terms or express restriction upon the use of the premises, the language used in the lease does, we think, in substance restrict the lessee to “the use of the demised premises in a particular manner or for a specified purpose”; and in such case “a violation of the covenant by the use of the premises in a different manner or for another purpose forms ground for the interposition of equity by injunction, and in all such cases a court of equity is. regarded as the appropriate forum for administering relief.” High on Injunctions (4th ed.), vol. 1, sec. 436. See also Pomeroy’s Equitable Remedies, vol. 1, sec. 285. Restrictive covenants in deeds and leases relating to the use of demised premises are enforced, as is conceded by appellants’ counsel, “without regard to questions of irreparable injury, the financial responsibility of the parties or mutuality of remedy or obligation.” The contention is that the negative agreement in question “does not purport to restrict the use to which the premises demised shall be put.” Whether, or not, as above stated, we regard it as an express restriction in exact terms upon the use of the premises, it is clear that such is its purport and that it was intended to restrict the lessee from the use and sale of any beer on the demised premises other than that made and sold by appellee. It is subject to no other construction. And such restrictive covenants in leases “will be specifically enforced in equity by means of injunction not only between the immediate parties, but also against subsequent purchasers with notice, even when the covenants are not of a kind which technically run with the land.” Pomeroy’s Equity Jurisprudence, vol. 4, sec. 1342 (3rd ed.).

It is urged that appellee has a plain, adequate and complete remedy at law. In addition to what is above said upon this point, the objection has been considered by the Appellate Court in Stafford v. Swift, 121 Ill. App. 508, 510, where it was said: “It is argued that appellee has a complete remedy at law in an action for damages since it does not appear that such a judgment could not be collected. But the exercise of the preventive jurisdiction of courts of* equity in eases of violation of negative or restrictive covenants annexed to leases is sustained by abundant authority, and is based £in part upon the necessity of preventing a constantly recurring grievance resulting from the continuous breach of the covenant which cannot be adequately compensated by an action for damages. ’ (High on Injunctions, 3rd ed., Sec. 436). In Consolidated Coal Co. v. Schmisseur, 135 Ill. 371, 378, it is said that courts will interpose by injunction and indirectly enforce specific performance of negative covenants in contracts or leases even though their breach may occasion no substantial injury or though damages, if any, may be recoverable at law. See, also, United States Trust Co. v. O’Brien, 18 N. Y. Supp. 798-800, where it is said that such a covenant as that here in question could be more effectually enforced at the time with perfect and complete justice in equity, than afterward by the uncertain character of proof available in an action at law for compensatory damages.”

Whatever view may have been taken in some other jurisdictions, we are of opinion that the law as above stated is sustained by sound reasoning as well as by the greater weight of authority.

It is further urged that ££a contract calling for a succession of acts, whose performance cannot be consummated by one transaction and which requires protracted supervision will not be specifically enforced in equity.” Inasmuch as the injunction under consideration merely restrains appellants from violating, not implied, but express negative covenants of the contract and lease in controversy, no question of specific performance is now involved. It may be said, however, that it is certainly equitable to dispose of the questions presented by this bill in one proceeding if the alternative would be a multiplicity of suits at law during the five years yet remaining before the expiration of the term of the lease and contract. It appears, moreover, that appellee is not by the terms of the lease made a party thereto, and it is said could not maintain an action thereon at law for a breach of the covenants in its favor. The bill shows that appellee sought permission of the alleged nominal lessor, Hannah & Hogg, to bring suit in the name of the latter corporation for the alleged breach of the covenants of the lease and such permission was refused. We think it immaterial that, as argued by appellants, the effect of the injunction is to specifically perform the contract, that appellants must either go out of business or purchase beer of appellee; and the objection that the court must exercise continual supervision over the subject-matter is we think rather fanciful than real, but in any event furnishes no ground for disturbing the injunction complained of.

The cause has been elaborately presented by counsel, but inasmuch as the views stated seem to us controlling, we deem it unnecessary to extend the discussion. For the reasons indicated the injunction order of the Superior Court complained of will be affirmed.

Affirmed.

Mr. Presiding Justice Holdom dissenting.


author: Mr. Presiding Justice Dibell

text:
    John H. Ruch, Appellee, v. Aurora, Elgin & Chicago Railroad Company, Appellant.
    Gen. No. 5,068.
    1. Passenger and gabbier—when relation established. If a person enters a car at a place where the carrier is accustomed to receive passengers with the purpose of becoming a passenger and has the means with which to pay his fare and intends to pay it, the relation of passenger and carrier is established even without actual payment of the fare.
    2. Passenger and carrier—obligations of latter. A carrier of passengers is required to exercise the highest degree of care consistent with the practical operation of its road. It is bound to do all that human care, vigilance and foresight can reasonably do consistent with the mode of conveyance, the practical operation of its road and the exercise of its business as a carrier.
    3. Passenger and carrier—what negligence. If a carrier in entering a switch runs its car with unusual force and speed and with a speed and force highly calculated to overturn or destroy the equilibrium of passengers standing upon the platform and aisle of the car, negligence as a question of fact is established.
    4. Passenger and carrier—what not contributory negligence. It is not contributory negligence as a matter of law for a passenger compelled to stand in a street car to have a package in each hand.
    5. Passenger and carrier—when declaration states cause of action. Held, that the first count of the declaration in this case stated a good cause of action predicated upon the negligence of a carrier. Chicago City Ry. Co. v. Jennings, 157 111. 274, and other cases followed.
    6. Pleading—how legal duty should be shown. A count of a declaration is not bad merely because it incorrectly states the duty of the defendant; the statement of the duty is but the statement of a legal conclusion and is unnecessary. The declaration can state the facts from which the law implies the duty, and if it does so state the facts and the duty appears, it is sufficient.
    7. Instructions—effect of reference to tad count. An instruction will not reverse merely because it refers to a count of a declaration which does not state a cause of action if there is another count contained in such declaration which does state a cause of action and will support a recovery.
    8. Measure of damages—when instruction properly limited. Held, that the instruction in this case upon the measure of damages in an action for personal injuries was so limited as not to authorize the jury to fix the amount of the award regardless of legal rules.
    Action in case for personal injuries. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Hopkins, Peffers & Hopkins, for appellant.
    Botsford, Wayne & Botsford, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellee was thrown from a street car operated by appellant, as it was being driven upon a switch in the city of Elgin, and was seriously injured. He brought this suit against appellant to recover damages for said injuries, and upon a trial had a verdict and a judgment for $6000, from which defendant below appeals.

Appellant contends that the court erred in giving certain instructions requested by appellee, which it is claimed assumed that he was a passenger upon said car, and that the question whether he was such a passenger should have been left to the jury. The car, upon which this accident happened, was going north on Douglas avenue in said city. Division street crosses Douglas avenue at right angles. Seventy-three feet and three inches north of the north line of Division street was the south rail of a track of the C. & N. W. Ry. Co., crossing Douglas avenue diagonally from southeast to northwest. Eighty-one feet north of the north rail of said track was a switch of said street car line. Shortly after five o’clock in the evening of May 23, 1906, four extra cars, called “trippers,” were going north on said avenue, such trippers being run at that hour of the day especially to accommodate the employes of the Elgin watch factory. On the main track, north of the south head of said switch, were two south bound cars, waiting for the trippers to pass north. The third of said trippers was car No. 102 and was 44% feet long. When the car passed north of Division street and approached the C. & N. W. Ry. Co.’s tracks, it was customary for the car to stop and for the conductor to go ahead on the railroad crossing and flag the car across. If the car stopped so that its rear was at the north side of Division street, this would make two stops necessary between Division street and the railroad tracks. It was therefore customary, especially with cars the length of No. 102, not to stop exactly at the north line of Division street, but to go about ten feet beyond, and one stop then accommodated passengers who wished to leave or en,ter the car at the rear and also enabled the conductor to go upon the track and flag the car over. On the evening in question, car No. 102 stopped when the rear was about ten feet north of the north line of Division street. The conductor went ahead on the east side of the car to flag it over the crossing. Appellee and one or more others got upon the rear platform from the west side. The car then moved forward and went over the crossing and went north to and entered the switch. Appellee’s purpose in entering the car was to become a passenger and to ride to his home. He had the means with which to pay his fare and intended to pay it. The car was crowded, and when the conductor got on as the car passed over the railroad he did so at the front end of the car and, as he was on the east side of the car and appellee got on at the west side, he had not yet seen appellee when the accident happened and had not asked for his fare. It was not only proved that it was customary to stop to let passengers on a few feet north of Division street, but the statements of counsel for appellant at the trial, contained on pages 172-3-4 of the record, were an admission that that was where appellant stopped its car for passengers to get on. In West Chicago St. R. R. Co. v. Manning, 170 Ill. 417, and in authorities there quoted, it was held that it was not necessary that there be an express contract nor a consummated act, in order to create the relation of carrier and passenger ; that the contract may be implied from slight circumstances, and that the payment of the fare was not necessary to give rise to liability; that the relation depends upon the intention of the person at the time he enters the car; that he who in an orderly way enters a street car as a passenger is not to be regarded as a trespasser until he has made a special contract with the conductor, based upon the payment of the fare. “The carrier may demand its payment, if he chooses to do so, but if he permits the passenger to take his seat or to enter his vehicle as a passenger without such requirement, the obligation to pay will stand for the actual payment, for the purpose of giving effect to the contract, with all its obligations and duties. Taking his place in the carrier’s conveyance with the intention of being carried creates an implied agreement upon the part of the passenger to pay when called upon, and puts him under a liability to the carrier, from which at once spring the reciprocal duty and responsibility of the carrier.” In Petersen v. E. A. & S. Traction Co., 238 Ill. 403, the court approved the following instruction: “The court instructs the jury that to establish the relation of carrier and passenger the payment of fare is not always necessary; that if the carrier permits the passenger to get upon the car without requiring payment in advance, the obligation of the passenger to pay will stand for the actual payment, for the purpose of giving effect to the contract to carry, with all its obligations and duties. Taking his place upon the car with the intention of being carried creates an implied agreement upon the part of the passenger to pay when called upon to do so by the carrier.” We are of opinion that the relation of carrier and passenger was undoubtedly established in this case; that there was no conflict in the evidence upon that subject; and that the court could properly assume that relation in the instructions. But the instructions referred to, in our judgment, did not assume that the relation existed; and the instruction given at appellant’s request and appearing on page 403 of the record submitted to the jury the question whether appellee was a passenger, and laid down the rules of law on that subject favorable to appellant with fullness of detail. As appellee was a passenger upon this car, operated by appellant as a common carrier, it owed to appellee the duties laid down in North Chicago St. R. R. Co. v. Polkey, 203 Ill. 225, as follows: “A railroad company, as a carrier of passengers, is held by the law to the use of the highest degree of care consistent with the practical operation of its railroad. It is bound to do all that human care, vigilance and foresight can reasonably do, consistent with the mode of conveyance, the practical operation of its road and the exercise of its business as a carrier.”

The car was crowded when appellee got upon it. The seats were all filled. At least six persons were standing in the aisle, but the aisle was not filled. The rear platform or vestibule was crowded. Several witnesses testified that there were about ten men standing upon it. Appellee went upon it from the west side, went up the step and advanced about one foot from the step, saw that the aisle was not filled and planned to enter the car. He carried in one hand an umbrella and in the other a package of bananas. As he was standing thus, with his back to the west, in the crowd of men, the car struck the switch and took the turn upon the switch rail with such speed and force as to cause appellee to lose his equilibrium and fall backwards out of the car. He struck the ground upon Ms head or shoulders about five feet from the car. He was caused to fall, not only by the suddenness in the change of the direction of the car when it struck the switch, but also by the fact that this change in direction also affected the other passengers and caused them to sway against him. Appellant contends that as no one testified that it was dangerous to run the car upon the switch at the speed then actually used, therefore the proof makes no case. Without determining whether any witness could have been permitted to testify that the speed was dangerous, it is obvious that the question whether it was dangerous may be determined from the testimony of the witnesses who described the manner in which the car went upon the switch and its effect upon passengers standing. Many witnesses testified upon that subject, and, without detailing the testimony of each, we think it sufficient to say that the great preponderance of the proof shows that the car entered the switch with unusual force and speed and with a speed and force which was highly calculated to overturn or destroy the equilibrium of those passengers who were standing both on the rear platform and in the aisle. The conductor was bound to know that many passengers were standing, and it was his duty to see that the car was run upon this switch, where its direction was suddenly changed, no faster than was essential to protect his passengers. In North Chicago Street R. R. Co. v. Polkey, supra, speaking of a passenger who was permitted to stand upon a footboard, it was said that if no seat is furnished and the carrier permits a passenger to ride in that way, the carrier assumes the duty of exercising the care demanded by the circumstances. And again, “in this case it was not inconsistent with the mode of conveyance to operate the car at such a slow rate of speed as to prevent the occurrence of any accident. ’ ’ We are of opinion that the jury were warranted in finding from the evidence that this car was driven upon this switch at a speed which was dangerous to the safety of the passengers who were standing, and that it was negligence to so drive the car when about sixteen passengers were standing, and that the speed and force with which the car was driven upon the switch caused the injury to appellee and made appellant liable therefor. Among the cases in Illinois where a standing passenger has been thrown from a car or the platform or footboard thereof, or has been forced off by the overcrowding of platform or car, and has been injured, and a recovery of damages awarded for such injuries has been sustained in our Supreme Court, are the following: C. & A. R. R. Co. v. Fisher, 141 Ill. 614; West Chicago St. R. R. Co. v. McNulty, 166 Ill. 203; L. S. & M. S. Ry. Co. v. Kelsey, 180 Ill. 530; Chicago City Ry. Co. v. Morse, 197 Ill. 327; C. & W. I. R. R. Co. v. Newell, 212 Ill. 332; and Alton Light & Traction Co. v. Oller, 217 Ill. 15. The principles underlying a recovery are approved in North Chicago St. Ry. Co. v. Polkey, supra. The case is also similar in principle to Petersen v. E. A. & S. Traction Co., supra.

After appellee got upon the car, it went north from 150 to 175 feet before appellee was thrown off. Appellee knew of the existence of the switch and that this car would pass upon it, because he regularly rode upon this line. It is contended that he did not exercise due care for his own safety, and that this lack of due care contributed to the accident. It is urged that before the car reached that point he should have passed into the aisle, where he could not have fallen off the car, or that he should have taken hold of the railing in the vestibule on the rear, and that he should not have had both hands occupied. While some of the evidence indicates that he could have immediately passed into the aisle, other evidence indicates that there were about ten men on the rear platform, between whom he could not instantly pass into the car. Some of the testimony tends to show that he could have taken hold of the railing, while other testimony indicates that there were persons between him and the railing. There was no proof that he ever before rode into this switch upon a car driven so rapidly as to endanger the ability of passengers to stand upright. It was a question of fact for the jury whether he was in the exercise of due care. We cannot say as a matter of law that it is negligence for a passenger, compelled to stand upon a street car, to have a package in each hand. We do not feel warranted in disturbing the conclusion of the jury that appellee was in the exercise of due care.

Complaint is made of the ruling of the court in sustaining objections to certain questions put by appellant to its witness, Overton. The questions were leading and suggestive. Moreover, an examination of the entire testimony of Overton shows that substantially all that was sought to be ascertained by these leading questions was afterwards obtained from the witness in answer to questions by appellant to which no objection was interposed.

It is contended that no count of the declaration states a cause of action or is sufficient to support the verdict. Each count sets out that appellant operated an electric railway along Douglas avenue in the city of Elgin, and operated this car thereon, and that appellee became a passenger thereon and was exercising due care, and that he was thrown from the platform, and it describes the character of the injuries he received by reason of that fall. The first count charged that it became the duty of appellant to so run, manage and control its car that appellee would be safely carried northerly along said Douglas avenue; but that appellant did not regard its duty or exercise due care in that behalf, hut on the contrary, so carelessly and improperly drove and managed the car that by and through the negligence, mismanagement and unskillfullness of appellant, the car was run into and upon said switch with great force and violence, thereby causing the car to turn so suddenly and violently from the main track into the switch track that appellee was thrown with great violence from the rear platform of the car to and upon the ground. This count seems to be a perfect statement of a cause of action, under Chicago City Ry. Co. v. Jennings, 157 Ill. 274; City of Chicago v. Selz, Schwab & Co., 202 Ill. 545; Chicago City Ry. Co. v. Pural, 224 Ill. 324. The second count charges that the rear platform was filled with passengers before appellee got upon it and that the aisle in the interior of the car was free of standing passengers ; that it was the duty of appellant to cause the rear platform to be cleared of obstructions by causing the passengers standing thereon to move into the interior of the car, so that appellee could at once pass into the interior of the car; that defendant did not regard its duty nor use due care in that behalf, but on the contrary, permitted said passengers to stand on the rear platform and did not require them to enter the interior of the car, so that as appellee was proceeding to pass through the crowd of passengers upon the rear platform to the interior of the car, appellant ran the car on a certain switch or turnout, and because of appellee’s insecure position upon said crowded platform, by reason of said crowd of passengers thereon, as the car ran into said switch or turnout, appellee was thrown with great violence from the rear platform to and upon the ground. The additional count, called also the third count, charged that when appellee stepped upon the rear platform, it was filled with passengers, and the aisle in the interior was free of standing passengers; that it became the duty of appellant to cause the rear platform to be cleared of the obstructions by causing the passengers to move into the interior of the car, so that appellee could at once pass into the interior of the car; that appellant did not regard its duty nor use due care in that behalf; but, on the contrary, permitted the passengers to congregate and stand on the rear platform, and did not require them to enter into the interior of the car, so that when appellee was about to proceed and was proceeding to pass through the crowd of passengers on the rear platform into the interior of the car, appellant ran the car into a certain switch or turnout and the crowd of passengers, so congregated on the rear platform, were by the motion of the car as the same was run upon the switch or turnout, thrown and forced over and against the appellee, whereby he was forced off and pushed from the platform to and upon the ground. It will be conceded for the purposes of this decision that no legal duty rested upon appellant to cause the standing passengers to move into the interior of the car so as to free the rear platform from the obstruction caused by their presence there. It does not follow, because these counts incorrectly stated the duty of appellant, that they do not state a cause of action. The statement of the duty is but the statement of a legal conclusion, and- is unnecessary. The declaration should state the facts from which the law raises the duty, and the omission of the duty and the resulting injuries. In Taylor v. Felsing, 164 Ill. 331, the court said: “Whether the liability rests upon the disregard of duty or upon the contract to replace the catch-pulley, it was not necessary that either such disregard or failure to comply with the agreement should be characterized in the declaration as careless or negligent. If there was any disregard of duty it was necessarily negligent, whether so averred in the declaration or not. Where facts are stated which in law raise a duty, and the disregard of duty and consequent injury are properly averred, the count will be regarded as sufficient. The pleader must state facts from which the law will raise a duty, and show an omission of the duty and resulting injury, but when that is done an allegation that the act was negligent is unnecessary.” In Ill. Steel Co. v. Ostrowski, 194 Ill. 376, this doctrine was stated in the following language: “It is not necessary, in a declaration, to explicitly say of the defendant that he was guilty of negligence. It is sufficient if the facts stated are such as to raise a duty and show a failure to perform that duty, and consequent injury, from which the law will attach to such failure of duty the charge of negligence.” To the same effect is C. & A. R. R. Co. v. Swan, 176 Ill. 424. The averment of the duty of appellant in the second and third counts was therefore immaterial. Each of these counts charges that appellant was operating the car, that appellee was a passenger thereon, that he was exercising due care, that his position on the rear platform was insecure by reason of the crowd of passengers thereon, and that appellant ran the car upon the switch in such a way that he was thrown from the platform and injured, the third count adding that the passengers were thrown against appellee and that this caused him to be forced off the car. We conclude that, while these counts are inartificially drawn, especially the second, yet they do state a cause of action, and therefore the court did not err in giving instructions which told the jury that if appellee was a passenger and if he exercised due care for his own safety and if he was injured by the negligence of appellant, as charged in the declaration or some count thereof, then appellant was liable. But if the second count is so inartificial in form as not to state a cause of action, yet we regard it as so clear that a good cause of action is stated in the first count, and so clear that that cause of action is established by the proof, that we are of opinion the judgment should not be reversed because of the reference in said instructions to the second count.

It is contended that the instruction on the measure of damages, given at appellee’s request, permitted the jury to give appellee such damages as they thought he ought to recover, regardless of all legal rules. This criticism arises from these words used after naming four different elements of damage: “The third and fourth of these elements are from necessity left to your sound discretion, but your conclusion should be based upon all the facts and circumstances in evidence before you. ’ ’ This criticism is only made plausible by omitting to consider an earlier part of the same instruction, which told the jury that “the measure of his recovery is such damages as will compensate him for such injuries.” The third and fourth elements, referred to in the part of the instruction criticised, were such sums as would compensate him for the loss of the power to earn money in the future, if such injuries had impaired that power, and such reasonable sum as the jury may award on account of pain, if the evidence shows that he had suffered pain by reason of such injuries. When the entire instruction is considered, we are of opinion that it does not turn the jury loose to award what they please nor to award vindictive damages, but requires them to confine their award to such sum as will compensate appellee for his injuries. In I. C. R. R. Co. v. Cole, 165 Ill. 334, an instruction had been given in substantially the same language, and that judgment was affirmed. In Chicago City Ry. Co. v. Hagenback, 228 Ill. 290, wherein a similar instruction had been given, the judgment was affirmed, although the language used implies that the instruction was not regarded as free from criticism.

There is, however, a more serious objection to this instruction. The first element of damage stated in the instruction was “such sum as will compensate him for the expenses, if any the evidence shows, which he has paid or become liable for, in his efforts to effect his cure, and for his care and nursing during the period that he was disabled by the injuries, if the preponderance of the evidence shows that he was so disabled.” Appellee called and was attended by his own physician, Dr. Burlingame. He was then treated by Dr. Terrill while Dr. Burlingame was on a vacation. Dr. Burlingame resumed treatment of the case upon his return. Appellee was afterwards treated by Dr. McCall, an osteopath. Appellee testified that Dr. Burlingame told him his bill was $75. Counsel for appellant then stated to counsel for appellee: “I agreed with you this morning, in order to save Dr. Burlingame from coming down again, that if you knew what his bill was, I would admit it and save the Doctor from coming.” Counsel for appellee then stated that he had telephoned Dr. Burlingame for the amount of his bill, and that he replied that it was $75. Counsel for appellant said: “I will admit that.” Counsel for appellee then stated that Dr. Terrill’s bill was $12 and counsel for appellant then said that he would admit that. While the admission did not state that the bill was reasonably and necessarily incurred in the treatment of appellee for the injuries received by this accident, nor that these were the usual and customary charges therefor, yet counsel for appellant obviously made the admission to save the physician the necessity of attending, court again at the county seat, some distance from Elgin, and he obviously meant to admit all that the doctor could testify on that subject to make the sum named a charge against appellant. Immediately thereafter appellee testified that the amount of Dr. McCall’s bill for his services was $81 and this was not objected to, and he then testified without objection that his wife’s sister assisted in taking care of him for six weeks after the accident, and that he had to either keep her at home or get a nurse, and that she was employed at that time at the watch factory at about $2 per day. He did not prove that Dr. McCall’s charges were customary and usual charges nor that his services were reasonably necessary in endeavoring to be healed of these injuries, and he did not testify that he had paid or agreed to pay his sister-in-law for the services she rendered as a nurse, nor what was the usual and customary charge for such nursing. The presence of this evidence in the record is not error, because it was not objected to, but it is claimed that under the first element stated in the instruction above quoted in part, the jury may have allowed these bills without proper proof. It will be seen that the instruction only allowed him for the expenses which the evidence showed he had paid or become liable for, in his efforts to effect a cure, and for his care and nursing while disabled by the injuries. If the evidence did not show that he had paid or become liable for those items, then they were not within the elements of damage described in the instruction. The instruction is correct, but appellee was very careless in making proof of these expenses, led thereto very likely by the admissions which counsel for the appellant had so freely made. We cannot say that the instruction is erroneous, since it is properly guarded. We cannot say that the evidence was improperly admitted, for it was not objected to. If the damages awarded by the jury were excessive, we might conclude that the services of Dr. McCall and the sister-in-law entered into the award. But appellant in its printed brief and argument has not contended that the damages awarded are excessive. If the damages awarded are not excessive, then we may rightfully assume that the jury strictly followed the instruction in question and only allowed such expenses as the evidence showed appellee had paid or became liable for in his efforts to effect a cure while disabled by these injuries. We .therefore find in these instructions no reversible error.

Appellant complains of the refusal of certain instructions. Some of them are not based upon the evidence; others ignore undisputed testimony, and others are fully covered by the given instructions. We find no reversible error in the refusal of these instructions, when the entire series of given instructions is considered in connection with the evidence in the case.

While the second and third counts of the declaration are subject to criticism, and the evidence in regard to the services of Dr. McCall and the nurse is incomplete, and in these respects we are not fully satisfied with the condition of the record before us, yet, in view of the very serious injuries suffered by the appellee and the fact that in argument appellant does not claim that the sum awarded as damages is excessive, we conclude that there is no reversible error in the record, and the judgment is therefore affirmed.

Affirmed.


text:
    Western Telephone Mfg. Co., Appellant, v. David T. Foley et al., Appellees.
    Gen. No. 5,129.
    1. Corporations—when ultra vires defens'e; when not. The plea of ultra vires may be successfully interposed in a collateral proceeding where the corporation is alleged to have performed an act which it was not under the circumstances authorized to perform. But where the act is a mere abuse or an excessive or improper exercise of the general power which the corporation has, such a plea cannot be successfully interposed.
    2. Corporations—estoppel as affecting defense of ultra vires. In equity the defense of ultra vires will not be permitted if the effect would he to enable those interposing it who have received a benefit, to escape from the payment of their equitable obligations.
    3. Corporations—powers. It may be that a corporation has power, irrespective of express authorization, temporarily to invest in good interest-bearing commercial paper funds temporarily idle but which later will be required for corporate purposes.
    Bill in chancery. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded.
    Opinion filed October 19, 1909.
    Charles T. Farson, for appellant.
    Underwood & Manieres and Edward L. Upton, for appellees.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

The record before us contains a cross bill filed in an original cause entitled David T. Foley et al. v. Winthrop Harbor and Dock Company et al., in which cross bill the Western Telephone Manufacturing Company was complainant, and David T. Foley and Elizabeth M. Heinroth, executors of the last will and testament of Eliza W. Foley, deceased, Caroline Both and F. H. T. Potter, were defendants; a demurrer to said cross bill by Potter; an order dismissing the cross bill as to Caroline Both, on motion of cross complainant; an amendment to the cross bill; a plea thereto by the defendants; an order showing the matter of the plea argued before the court and adjudging the plea sufficient and sustaining the plea, and dismissing the cross-bill for want of equity; and the usual steps to bring said order before this court upon appeal.

The cross-bill refers to the pleadings and proceedings in the main cause, but does not set them out; and we have, therefore, very slight knowledge, from the record, of the nature of the main cause.

It seems, however, that one of the objects of the original bill was to foreclose an instrument called the Underwood trust deed, securing twelve promissory notes made by the Winthrop Harbor and Dock Company, and payable to the order' of J. H. Van Vlissingen; that in said suit, up to the entry of a decree of sale, the holder of one of said notes for $600, was a party only by the name of ‘ ‘ the unknown owner of said note;” that Van Vlissingen had owed Almira J. Chase a note for $500, and had delivered to her, as collateral security therefor, said note of $600, secured by the Underwood trust deed, and that during all the time of the pendency of said suit till a decree of sale said Almira J. Chase had been the legal holder of said note; that afterwards the cross complainant purchased said $500 note, and still later Van Vlissingen sold the collateral note to the cross complainant in payment of the balance due upon his $500 note; that thereafter cross complainant filed a petition in said original cause asking that it and said Almira J. Chase be made parties defendant; that they were made parties defendant and had leave to file answers, and did file answers, and that the issues presented thereby were referred to a master, who reported his findings, with certain exceptions thereto, to the court, where they remained pending and undetermined when this cross bill was filed. The cross bill sets up that cross complainant found that there had been certain tax sales of the real estate involved in the original foreclosure suit, and that the period of redemption had nearly expired, and that cross complainant thereupon made the necessary redemptions for the protection of the security of said $600 note, paying out for that purpose $1035.76. The cross bill prayed that said sums, with interest, might be included in the decree to be entered upon the answer of the cross complainant, and that the defendants be decreed to pay said sums “in addition to the amount of the claims of your orator as set forth in its answer herein,” and that cross complainant might have further relief respecting the payment of said taxes.

The defendants filed a plea in which they set out the organization of cross complainant as a corporation, and set out in detail the objects for which it was formed, all relating to the manufacture and sale of telephones and electrical appliances and inventions, and franchises relating thereto, and the construction of telephone plants and lines and the operation thereof. The plea averred that the corporation had never changed or enlarged the object for which it was formed, and it set up in detail the alleged facts concerning the $600 note, and averred that the cross complainant did not take either said $500 note or said $600 note in the regular course of its business, but purchased them as independent business ventures, either for speculation or as matters of accommodation to Van Vlissirigen, and that cross complainant was without the power or authority to purchase them, and did not and could not acquire any legal or equitable title to them, and that therefore it had no power or authority to make said redemptions from said tax sales, which were in futherance of the unlawful and void purchases of said notes.

When this cause was first submitted we held that the case was still pending in the court below and that the appeal was premature, and that the case could not be brought here by piecemeal. Thereafter both parties asked for a rehearing and agreed that all controversies in the court below are ended, except that involved in this cross bill, and that it would be very expensive to bring up the large record necessary to present the entire case. We therefore granted a rehearing.

The plea of ultra vires may be successfully interposed in a collateral proceeding where the corporation is alleged to have performed an act which it was not under any circumstances authorized to perform; but where the act is a mere abuse or an excessive or improper exercise of a general power which the corporation has, such a plea cannot be successfully interposed. In such a case the question of ultra vires can only be raised by the State. Rector v. Hartford Deposit Co., 190 Ill. 380; Daniels v. Belvidere Cemetery Assn., 96 Ill. App. 387, and 193 Ill. 181, and many cases cited in the foregoing authorities. It is conceded that appellant could purchase, and hold promissory notes for some purposes, as, for example, it could receive such note in payment of a debt, and where, as here, the note was perhaps of dubious value, it could still receive it in settlement of a desperate claim. We are not prepared to say that it might not also temporarily invest, in good interest-bearing commercial paper, funds which were temporarily lying idle, but which would at a later date be required for corporate purposes. If, therefore, the corporation could purchase and hold commercial paper for some purpose, we are disposed to hold that its power to do so in this particular case cannot be collaterally questioned.

But if we concede that appellant was without authority to buy this note, other considerations arise. Appellees admit that in such case appellant could sue Mrs. Chase or Van Vlissingen and recover back the money it paid for this note. If so, it would have to tender back the note and whatever security it held for that note, and in order to protect that security and put itself in a position to tender back the note as well secured as when it received it, it would have a right to redeem from outstanding tax sales on real estate by which the note was secured. Again, if appellant had tendered this note back to Van Vlissingen or Mrs. Chase before it redeemed from this tax sale, he or she would have had a right to protect the security by making this redemption. The legal holder of this note was a party to this suit from the beginning by the name of the unknown owner of said $600 note, and, as such unknown owner, had a right to redeem from the tax sale. We do not think it equitable that those who may have been benefited by the redemption from the tax sale shall be relieved from the duty of contributing to defray that expense by this plea of ultra, vires so interposed, if such duty would otherwise equitably rest upon them. Being a defendant in equity, even by the name of unknown owner, if the holder of this note has paid taxes which resulted beneficially to other parties, equity requires that those who have been benefited should not escape paying their equitable proportion of that which has resulted in their benefit, by such a plea as that here interposed, if the other facts entitled the holder to reimbursement.

The decree is therefore reversed and the cause is remanded with directions to overrule the plea.

Reversed and remanded.