author: Mr. Presiding Justice Taylor

text:
    Andrew C. Paulsen, Appellee, v. McAvoy Brewing Company, Appellant.
    Gen. No. 25,525.
    1. Trial, § 132

      —when argument of counsel is error. Where the questions whether defendant was guilty of negligence or the plaintiff guilty of contributory negligence, or whether both were negligent, were close and required on the part of the jury a careful consideration of all the testimony, and counsel for the plaintiff indulged repeatedly in utterances which were extreme and beyond the limits of fair argument and tended to arouse the prejudice and passions of the jury, such conduct, even though the court sustained objections to it, was sufficient reason for reversal of the judgment in plaintiff’s favor.
    2. Trial, § 132*—what statements of counsel in argument are erroneous. Statements of plaintiff’s counsel in his closing argument severely castigating defendant’s counsel whose conduct had been wholly proper, asking that defendant be punished for employing such an attorney and charging that in the absence of a defense, defendant’s counsel had sought to cast aspersion upon the plaintiff, held prejudicial.
    3. Trial, § 130*—what is proper argument of counsel. An attorney in his argument has the right to challenge the credibility of the plaintiff.
    4. Damages, § 124*—when verdict is not excessive. A verdict of $5,000, where plaintiff sustained a compound fracture of the tibia and fibula which prevented him from returning to work for 11 months and thereafter from following his former occupation, was not excessive.
    Appeal from the Circuit Court of Cook county; the Hon. George A. Sentel, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Reversed and remanded.
    Opinion filed December 22, 1920.
    Statement by the Court. The plaintiff having recovered a judgment for $5,000 and costs in the circuit court of Codk county' against the defendant, for personal injuries alleged to have been sustained by him on August 27, 1917, when a collision took place be'tween him and one of the defendant’s beer wagons drawn by a team of mules at or near the north crosswalk of the intersection of Randolph street and Wabash avenue in the City of Chicago, this appeal was taken by the defendant to reverse that judgment.
    The plaintiff’s declaration filed on September 5, 1918, and which consists of a single count, alleges, among other things, that the defendant through its agents and servants so carelessly and negligently operated, managed, drove and maintained a certain wagon or truck and team, in a northerly direction on Wabash avenue, that it collided with the plaintiff, knocking him down and injuring him. The defendant filed a plea of the general issue.
    Wabash avenue in the City of Chicago runs north and south and intersects Randolph street at right angles. There are two sets of street car tracks, known as the northbound and southbound tracks, in Wabash avenue. Wabash avenue from curb to curb is about 50 feet wide and Randolph street from curb to curb, about 47 feet wide. About 2 feet north of the north line of the intersection of these two streets and about 3½ feet east of the east rail of the northbound track is a steel pillar about 18 by 24 inches, embedded at its base in concrete and then rising to the elevated structure which it helps to support.
    The plaintiff, Andrew Paulsen, at the time of his injury was a man 56 years of age, a tile setter, employed by the Interior Tile Company. A few minutes after 7:00 a. m., August 27,1917, the plaintiff got off a street car at State and Randolph streets and walked east on the north side of Randolph street, intending to go to the Randolph street station of the Illinois Central Railroad, which is about 2 blocks east of Wabash avenue. His hearing and eyesight were both good and it was a bright day so that everything around could be easily seen. When the plaintiff reached the northwest comer of Wabash avenue and Randolph street, he was in such a position that he could look south and north in Wabash avenue. Walking east on the north side of Randolph street, he undertook to cross Wabash" avenue at the intersection. His testimony is as follows: “When I was stepping off the sidewalk to cross Wabash avenue, I looked to see if there was a car. I didn’t see none, and I go about,— I walk when I come over to the northbound track I looked south, and I saw a wagon coming. It was coming' north in the northbound track, between 30 and 40 feet south of me, and after I had crossed the track I heard a woman scream on the sidewalk, and I looked up, that is about all I remember, and I was struck at the same time.”
    On cross-examination he said that he always looked both ways and that on this occasion when he got over to the northbound track he looked south; that he did not remember whether he looked south before he reached the northbound car track; that he did not remember whether he looked south until he had gotten into the northbound car tracks; that he did not see any mules coming from the south when he looked south; that the team of horses and wagon were the only things he saw coming. The evidence shows that after the plaintiff had passed the northbound car track a few steps he was struck by the mule team or the shaft of the wagon drawn by the mule team and was knocked down and run over.
    The distance from the northbound street car track to the point where the plaintiff was struck was somewhere between 6 and 8 feet. There is some conflict in the testimony as to whether the collision took place on the north crosswalk at Randolph street or a few feet north.
    On the morning in question the mule team with the brewery wagon belonging to the defendant was driven north on Wabash avenue. With its load of bottled beer it weighed nearly three tons. The driver of the mule team testified that as he approached Randolph street going north the mules were going at a slow trot; that they collided with the plaintiff a little north of the north crossing on. the east side of Wabash avenue between the pillar and the sidewalk; that he noticed the plaintiff pass out in front of the pillar when he was about 8 feet from'him; that he started to whistle to the plaintiff but he paid no attention; that the team then reached him and he was struck with the pole or with the collar; that that frightened the mules and they began prancing and went on about 7 or 8 feet; that there was a garbage wagon alongside of the pillar; that he did not see the man coming out until he stepped out from behind the pillar; that the man was walking in a northeasterly direction and looking up at the elevated; that he, the driver, whistled and pulled in his lines and called “Hey”; that he had a full tight line and tight rein all the time; that at no time while the mules were approaching Randolph and Wabash were they galloping; that the right front wheel ran over the plaintiff. On cross-examination he said that there was a garbage wagon in the car track and that when the plaintiff was struck the heads of the mules were about opposite the center of the garbage wagon; that Wabash avenue was clear with the exception of the garbage wagon and his own vehicle; that there was no street car in the neighborhood.
    Six occurrence witnesses were called and testified for the plaintiff: Benson, an accountant, Forsberg, a salesman, Mr. and Mrs. Magnuson and Florence Peterson, all of whom were standing together at the time at the northeast comer of Wabash and Randolph street and Whitfield, a sales manager, who at the time of that accident had started to go west from the southeast corner of Randolph and Wabash. Benson stated that when he first saw the mules which were drawing the defendant’s brewery wagon they were near the north curb and he saw the plaintiff coming across the street; that he was struck between the street car track and the sidewalk a little north of the north line of the intersection. On cross-examination he stated that just before the accident he heard the driver holler “Hey”; that he did not see a garbage wagon there but that there was a wagon or a car, he did not know which, coming from the south on Wabash avenue. Forsberg stated that he saw the brewery wagon coming on the east side of Wabash avenue in the center of Randolph street; that it was going very fast ; that he saw the plaintiff crossing the street going east; that he saw the wagon or the pole of the wagon strike the plaintiff; that the plaintiff “sort of grabbed on to the shaft of the wagon which dragged him along. The shaft or mules rather were going from one side to another and * * * throwed Mr. Paulsen underneath the mule on the right-hand side.” That the plaintiff was knocked underneath the mule and the mule stepped on him and the front wheel on the right-hand side went over his leg. Forsberg puts the place of the collision about 4 or 5 feet west of the east curb of Wabash avenue and about 8 or 10 feet north of the north curb of Randolph street. On cross-examination he stated that just before the accident he did not see any street car nor any garbage wagon; that he only saw the McAvoy brewing wagon with two black mules; that when he first saw them in the middle of Randolph: street on the east side of Wabash avenue coming north they were galloping and the wagon was making considerable noise and the driver was pulling on the lines and trying to stop them; that he did not remember whether he heard the driver holler “Hey” just before the accident; that the plaintiff did not stop from the first time he saw him. Mrs: Magnuson stated that she heard the clatter of hoofs and just happened to turn around and saw the shaft strike the plaintiff; that she screamed and turned away; that she saw the occurrence just as the plaintiff was struck; that the plaintiff was then between the car track and the curb. On cross-examination she stated that the brewery wagon was not in the street car track; that she did not hear the driver shout; that she saw the driver pulling on the mules just/ before the accident. Her husband stated that he saw the team of mules come north at quite a speed; that they turned out from the center of the street and came along close to the curb; that they left the street car tracks near the southeast comer; that they were trotting, galloping, “kind of jumping from one side to another”; going fast; that the plaintiff was between the car track and the sidewalk, a little nearer the former than the latter when he was struck; that he tried to grab hold of the shaft but fell to the ground; that the mules were bucking and jumping from one side to the other; that he saw one mule step on him and saw the right front wheel of the wagon run over his left leg; that he saw the driver jerking on the lines as soon as the mules got out of the car track. On cross-examination he stated that he saw no street car and that no other wagon was going north except the one drawn by the mules; that he did not hear the driver shout; that the driver was seesawing the mules practically all the time after starting to cross Randolph street. In describing what he meant by galloping or prancing, he stated, “I meant that they were dancing from one side to another very much as a team— I don’t know whether they were scared or what was the matter, or from jerking the lines.”
    The witness Florence Peterson stated that she did not see a team coming; that she saw the plaintiff crossing between the last structure and the curb and heard a very loud noise of horses feet; that the next thing she saw the pole struck the plaintiff. On cross-examination she testified that she first saw him between the street car tracks and that she did not see any other wagon but the brewery wagon. Whitfield stated that when he was about even with the first pillar of the elevated at the southeast corner he started to go west and noticed a gathering of people and then saw the wagon with a span of mules approaching him at a gallop; that when he first saw them they were at the southeast corner of the intersection about 15 feet south of where he was; that he ran diagonally across the street and stopped about 6 feet from the curb; that he heard some one scream and turned around and saw the plaintiff underneath the wagon about 25 feet north of Randolph street. On cross-examination he stated that when he got about 6 feet from the comer of the intersection the team of mules was galloping north; that when he first saw them they were south of him; that he ran in front of them.
    On behalf of the defendant, Burnham, an employee of the Chicago Hat Company, Horving, the driver of a garbage wagon, and Muck, a surgical instrument maker, testified. Burnham stated that he got off a southbound street car at the northwest corner of Randolph and Wabash avenue and started east across Wabash on the north side of Randolph; that he saw a team coming north; that when he arrived at the elevated pillar he stopped; that a wagon and team of mules went by him when he was standing just north of the elevated pillar; that they were between the pillar and the curb; that after they passed him he saw them strike the plaintiff and knock him towards the curb; that when they struck him they were about 3 or 4 feet north of where he was standing; that he had not seen the man before that time; that as the team of mules passed him they were walking; that the driver was trying to keep the mules from the curb, pulling them towards the car track; that he heard no one shout before the accident. On cross-examination he testified that the driver just before the mules struck the plaintiff was trying to get his team out from the curb and was pulling them away from the curbstone; that he, the witness, stood about 3 feet north of the pillar; that .the plaintiff when struck was north of him and about 3 feet east of him. Horving stated that on the morning in question he was hauling cinders and drove' an empty garbage wagon drawn by two horses north on Wabash avenue in the northbound car track; that when they crossed Randolph street they were walking; that he did not ‘see any southbound street car come on the other track; that he saw a man in front of him walking across the street about 10 feet in front of his horses; that he was not on the crosswalk but about 20 feet north of the Randolph street crosswalk; that he drove in the street car track and did not see anything behind him in the track; that there was a beer wagon drawn by two mules alongside of him but back about 20 feet; that the mule team was going north on the east side of the street between the car tracks and the east curb and were trotting; that when the man crossed 10 feet in front of him the beer wagon and mules were about 20 feet behind him going north; that they were going at about a normal trot; that when the man crossed in front of him he heard the driver of the beer wagon shout and whistle; that he did not see the man look to the south at any time; that he looked east and looked the way he walked; that the driver of the mules was holding the lines as tight as he could hold them and he was seesawing them; that he pulled the left side line so that he would avoid the man, that is pulled the mules to the west; that the next thing he saw the plaintiff was struck with the pole and knocked down; that after he was struck he grabbed at the mule and the mule got scared and got wild. On cross-examination he testified that he first saw the beer wagon when he was just over the north crosswalk; that he did not see it until he got completely across Randolph street; that when he first saw the plaintiff he was about 20 feet north of the north curb of Randolph street and was walking straight east; that he did not notice him until he was in front of his horses on the northbound track; that when the driver of the beer wagon whistled his mules were about even with his seat and at that time the mules were trotting; that he stopped as soon .as possible after he saw the plaintiff; that when he started to whistle he was not more than 5 or 6 feet from the plaintiff, the mules of the brewery wagon being then just about even with his, the witness’, seat.
    Muck stated that on the morning in question just before the accident he started to cross Wabash avenue and Randolph street from the northwest corner; that when he had just gotten across the street he heard some people shouting and when he turned around he saw the plaintiff hit by the pole of the brewery wagon and fall under the mule on the right-hand side; that at the time he was struck he was north of the crosswalk. On cross-examination he testified that when the plaintiff was struck he was a little north and west of him; that he was crossing on the same crosswalk as the witness; that at the time he was struck the mules were between the car track and the curb going directly north, the wagon and the mules being in a straight line; that he, himself, saw the mules coming when they were about in the center of Randolph and Wabash avenue and at that time he was about the center of the space between the car tracks.
    As to the plaintiff’s injuries, the evidence showed the following": The plaintiff- received a compound fracture of the tibia and fibula of the left leg about 3 inches above the ankle. He was taken to St. Luke’s hospital where he remained for 5 weeks. He was operated on and a Parom band was placed around the bones of the injured leg. After leaving St. Luke’s hospital he went home for 3 weeks and later was removed to the Norwegian hospital where he was for 3 weeks and the Parom band was removed and a Lane plate substituted. Prior to the injury the plaintiff received wages at the rate of $6 per day. He did not work until about 11 months after the injury. He then set tile for about 3 weeks but had to stop on account of his leg hurting him. He found that he was unable to do tile setting, the work he had been accustomed to do, and he went to work in an automobile truck factory operating a milling machine, which work he could do while sitting down. That work he did for about 7 months and he was then compelled to stop on account of the condition of his leg. At the time of trial it still had a running sore.
    At the close of the evidence eight instructions were given for the plaintiff and twenty instructions for the defendant. The jury brought in a verdict for the plaintiff in the sum of $5,000, and judgment was entered thereon. This appeal is from that judgment.
    Winston, Strawn & Shaw, for appellant; Charles J. McFadden, Harold Beacom and Rodney C. Glover, of counsel.
    Wilkerson, Cassels, Potter & Gilbert, for appellee ; Ralph F. Potter and Kenneth B. Hawkins, of counsel.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

It will be observed from the statement of the evidence that the questions whether the defendant was guilty of negligence or the plaintiff was guilty of contributory negligence, or whether both were negligent, were somewhat difficult to answer and required, on the part of the jury, a careful consideration of all the testimony of the various witnesses and a proper appreciation, of the law applicable thereto as set forth in the instructions given by the court, and in order that that might be accomplished and justice done to both parties, it especially behooved counsel for both sides to conduct the trial with a due regard to proper practice and a recognition of the importance of endeavoring according to the well-recognized rules of procedure to elicit the truth and present it to the jury fairly and without sinister reflections and innuendoes. The determination of the rights of the parties in such a case is a matter of very serious import to all concerned, and where the questions to be answered by the jury are difficult as in the instant case, it is especially essential that no ulterior influences such as may arise from inflammatory utterances of counsel shall be used and endanger an unprejudiced verdict of the jury.

When counsel for the plaintiff was making his closing argument to the jury, the following colloquy took place:

“It is a cardinal principle with a certain class of attorneys, that when they have no case they must abuse the plaintiff’s witnesses and his lawyer. Now, counsel has followed that out implicitly in this case. He has no case. There is no defense to this action. He knows it; I know it; you know it. So he conceived that it is his duty, in the interests of this brewery company, to come in here and compel this poor man Paulsen to sit here in the front seat—

“Mr. McFadden: Just a minute.

“Mr. Potter (continuing):—and endure—

“Mr. McFadden: I wish to object to the remarks of counsel, in • referring to this defendant as ‘this brewery company’ and ‘this poor plaintiff sitting here on this seat. ’

‘ ‘ The Court: Don’t make any inflammatory remarks to the jury.

“Mr. Potter: I am making none.

“Mr. McFadden: Just a minute. I wish, if the court please-—

“Mr. Potter: I want this taken ont of my time.

“Mr. McFadden: Yes, I wish, if the court please, to preserve an exception to the remarks and conduct of counsel before the jury.

“The Court: The exception will be allowed. Go ahead.

“Mr. Potter (continuing): It is a brewing company, isn’t it? I say that the'conduct of counsel representing this brewing company, in compelling this plaintiff to sit here on this front seat and listen to him, in his defenseless position, call him a liar and a perjurer, is shameful, absolutely shameful.

“Mr. McFadden: Just a minute, please. I wish, if the court pleases, to object to the remarks of counsel to the jury.

“The Court: Note the objection.

“Mr. McFadden: I would like to preserve an exception to counsel’s remarks and to counsel’s argument to the jury.,

“The Court: Yes, go ahead.

“Mr. Potter (continuing): He'said he was a liar, didn’t he? He said he lied under oath, didn’t he? And the plaintiff had to sit here quietly, gritting his teeth and,listen to it, didn’t he? Counsel did a thing in this court room which he would not have the nerve to do, or the courage to attempt, outside of the court room.

“Mr. McFadden: I object to that.

“Mr. Potter (continuing): Do you think for a minute that Paulsen lied?

“Mr. McFadden: Just a minute, please, Mr. Potter, I wish again to say that I object to the argument of counsel to the jury. I object to the inflammatory remarks of counsel.

“The Court: Don’t make any inflammatory remarks to the jury. Confine yourself to the evidence in this case.

“Mr. Potter: I have a right to reply to the argument of counsel.

“Mr. McFadden: I wish to preserve an exception to the remarks of counsel, and to the conduct of counsel.

“The Court: Tes.

“Mr. Potter: Does the court hold that my remarks are inflammatory?

“The Court: Gro fhead. I am not passing on'that.

“Mr. Potter (continuing): No court would hold any such thing. In the absence of a meritorious case, in the absence of any possible defense to this action, counsel contents himself by getting up and stating that this plaintiff is a liar and a perjurer, because, forsooth, he said that he did not see the brewery wagon coming down the street behind another wagon, when counsel conceives it is to the interest of his client that he should have seen it. And this defendant, this brewing company, adds to the vice of running this man down unwarrantably in a public street, by employing, an attorney to come in here before twelve of his fellow citizens and say that he is a liar and a perjurer. I say that sort of thing is not warranted in any case, in any court room, and it is a dangerous thing for any lawyer to attempt. Now, further, in addition to calling him a liar and a perjurer—

“Mr. McFadden: .1 did not call him a liar.

“Mr. Potter (continuing):—he said he was a fakir— you said he lied.

“Mr. McFadden: He did.

“Mr. Potter: He did not lie; you know he did not lie.

“Mr. McFadden: I maintain that he did.

“The Court: Gro ahead with the argument, gentlemen. Proceed.

“Mr. Potter: And counsel now says that he lies, doesn’t he, and is a liar? I say that every defendant who employs such a lawyer ought to be adequately punished.

“Mr. McFadden: If the court please, I object to these inflammatory remarks. I am not on trial here. I wish the court to rule on them.

“The Court: The objection will be sustained.

“Mr. McFadden: I wish to preserve an exception to counsel’s remark, and counsel’s conduct and his attack upon me.

“The Court: The objection will be sustained on that.

“Mr; Potter: Now, I say that the conduct of any attorney—and I say it guardedly, coolly and without any passion, and without—

“The Court: Confine yourself to the case.

“Mr. Potter: I am arguing now as to the conduct of this case by the defendant’s attorney.

“The Court: Confine yourself to the evidence.

“Mr. Potter (continuing):—the conduct of any attorney, who not only says that plaintiff lies, but who takes occasion during the attempted defense of that plaintiff to repeat that statement to the jury, that conduct, I say, is reprehensible. Now, then, if the court please, in addition to saying the man lied upon the stand, counsel says that he is a fakir; that he attempts to exaggerate his injuries. He cites, as evidence of that, that his counsel would not allow him to stand down in front of this jury and permit a slick attorney with a Cheshire cat grin upon his face to put him through a' lot of paces.

“Mr. McFadden: Just a minute, I object to that, if the court please.

“The Court: I cannot remember what it was he said.

“Mr. McFadden: Will the reporter please read it?

“The Court: Well, go ahead, the exception will be allowed.

“Mr. McFadden: I desire also to preserve an exception to counsel’s remarks.

“The Court: Co ahead.

“Mr. Potter (continuing): Counsel would have had him stand up here; counsel would have stood this plaintiff up before this jury and would have attempted to get in front of him and have him go through with a lot of motions; he would thereby have attempted to cover this plaintiff’s case with ridicule. Now, this plaintiff has at no time claimed that he cannot bend his knee. He has at no time claimed that he cannot bend his ankle. You gentlemen have seen him walk about this court room. There has not been a single action of his which has been an attempt or was an attempt to impress this jury with the extent of his injuries. He has not said that he could not do work, but he has said that he could not do the work which he formerly did, which required him to be on his knees for a long time at a stretch; that he tried to do it for three weeks and found out that he could not do it. His doctor says that he cannot do it. He has told you the condition of his leg. You have an X-ray which shows the condition of his leg, establishes the condition of his leg. Counsel could have shown his leg to the jury if he had wanted to. He could have done that. It was entirely proper, and I was entirely within my rights and those of the plaintiff when I refused to .permit this attorney for this defendant to cast ridicule upon this plaintiff, by putting him through a lot of ridiculous motions before ting jury. I say that the claim of the defendant’s attorney that this claim is not made in good faith, that this plaintiff has not told the truth, or attempted to, that he is a perjurer, that he lied, that he is a fakir—those contentions are all of them absolutely unwarranted by this evidence. And I say that they arise, not out of anything that has occurred on this trial, but out of the desperation of this defendant’s attorney, and out of the fact that the defendant has no defense.”

In the course of that argument and colloquy, the trial judge twice admonished counsel for the plaintiff with the remark: “Don’t make any inflammatory remarks to the jury.” In one instance, when counsel for the defendant objected to the remarks of counsel for the plaintiff, the court announced that an exception would be allowed, and on another occasion, when counsel for the defendant objected to the remarks of counsel for the plaintiff, the court said: “Note the objection.” And, later on, when counsel for the defendant expressed a desire to preserve an exception to the remarks and the conduct of counsel for the plaintiff, the court said: “Yes.” Then .counsel for the plaintiff asked the trial judge if he held that the remarks of counsel for the plaintiff were inflammatory, in answer to which, the court said: “Go ahead, I am not passing- on that. ’ ’ Further, on one occasion, when counsel for the defendant asked the court to rule on the utterances of plaintiff’s counsel as inflammatory, the trial judge said: “The objection will be sustained.” Then, a moment later in the case, the trial judge twice told counsel for the plaintiff to confine himself to the case or to the evidence.

From the foregoing it will be seen that none of the inflammatory utterances of the plaintiff’s counsel were withdrawn from the record, and, although various objections were sustained, those rulings of the trial judge did not sensibly diminish the prejudicial effect of those utterances. The statement of counsel for the plaintiff in the course of his closing argument, “I say that every defendant who will employ such a lawyer ought to be adequately punished,” is an effort to persuade the jury to bring in a verdict in part based on the ground that the defendant should respond to the plaintiff in damages because it had employed the particular counsel that then represented it in court. The mere statement of those facts demonstrates not only the unreasonableness of the utterances but gives rise to the conclusion that the only effect it could have on the minds of the jury was obviously prejudicial to the defendant.

Further, the words of .counsel for the plaintiff, “Now I say that the conduct of any attorney—and I say it guardedly, coolly, without any passion, and without * * * the conduct of any attorney, who not only says that the plaintiff lies, but who takes occasion during the attempted defense of that plaintiff to repeat that statement to the jury, that conduct, I say, is reprehensible. Now, then, if the court please, in addition to saying the man lied upon the stand, counsel says that he is a fakir; that he attempts to exaggerate his injuries. He cites, as evidence of that, that his counsel would not allow him to stand down in front of this jury and permit a slick attorney with a Cheshire cat grin upon his face to put him through a lot of paces,” were not only unjustifiable, when the conduct of the defendant’s attorney is considered as the record shows it, but highly improper and must be considered as having been uttered with the intention of wrongfully influencing the jury to consider, in arriving at their verdict, the conduct of the defendant’s counsel. That whole statement was not only improper and misleading but tended to give rise in the minds of the jurors to notions and thoughts prejudicial to the just rights of the defendant. The language of counsel for the plaintiff, “There is no defense to this action. He knows it, I know it, you know it. So he conceived that it is his duty in the interest of this brewery company to come in here and compel this poor man Paulsen to sit here on the front seat—” was not proper. Williamson v. Hirsh, Stein & Co., 147 Ill. App. 500; Pierce v. L. Wolff Mfg. Co., 154 Ill. App. 660. Both Paulsen and the brewery company had rights, and counsel for the plaintiff was not entitled under the law to undertake to make any invidious distinction between them. Such a statement might easily have given rise in the minds of the jurors to an unwarranted prejudice against the defendant.

The law is well stated by the Supreme Court in Bishop v. Chicago Junction Ry. Co., 289 Ill. 63, in which case a judgment for $15,000, which had been affirmed by the Appellate Court, was reversed on account of the prejudicial remarks and conduct of counsel. The opinion in that case contains the following language:

“While it is true that at times, in closely contested cases, counsel may inadvertently say that which is prejudicial, the influence of such a statement may generally be overcome by sustaining objections thereto and by retraction on the part of offending counsel made in good faith, yet where it would appear, as it does here by frequent instances, that counsel has in the presence of the jury indulged in acts and statements prejudicial to the rights of the opposite party, and which tend to indicate that he was seeking what might be gained from such prejudice of the jury, such misconduct will amount to a mistrial of the cause, unless it can be seen that it did not result in injury to the plaintiff in error. We cannot so hold here. The evidence was conflicting and the verdict returned was for a large sum. While it is unfortunate that this case must be reversed for these reasons, yet it is a misfortune visited upon defendant in error by his own attorney. When intelligent counsel persists in conduct which he knows may result in setting aside the verdict of the jury if he secure one, he is thereby deliberately taking chances with his client’s rights. As was said in Bale v. Chicago Junction Ry. Co., 259 Ill. 476, where prejudicial remarks were made, objected to and objection sustained: ‘This kind of argument cannot be justified, and if wilfully persisted in will justify the reversal of a judgment, even though the court has sustained objections to it. It is,, of itself, sufficient reason for granting a new trial. ’ ”

In Illinois Cent. R. Co. v. Seitz, 111 Ill. App. 242, the court said:

“There is enough natural and inherent prejudice in the minds of jurors against railroads and other corporations without having it augmented by direct and improper appeals calculated to arouse the sympathy, passion or prejudice of jurors.”

In Eilers v. Peoria Ry. Co., 200 Ill. App. 487, the court said:

“The whole purpose of the law to obtain a trial by fair and impartial jury is defeated if appeals to their passions and prejudices are to be permitted during the course of the trial.” Bale v. Chicago Junction. Ry. Co., 269 Ill. 476; McCoy v. Chicago & A. R. Co., 268 Ill. 244; Chicago & A. R. Co. v. Scott, 232 Ill. 419.

The argument made by counsel for the defendant to the jury was fair and temperate. He challenged the credibility of the plaintiff, but that he had a right to do. Chicago & A. R. Co. v. Scott, 232 Ill. 419. On the other hand, we are of the opinion that a number of the utterances of counsel for the plaintiff were extreme and-beyond the limits of fair argument and tended to arouse the prejudice and passions of the jury.

As. to the contention of counsel for the defendant that the verdict and judgment were against the clear and manifest weight of the evidence, we are of the opinion that, quite obviously, there was ample proof on the part of the plaintiff to justify its submission to the jury and, further, to support a verdict for the plaintiff; and, as to the contention that the verdict and judgment were excessive, we are of the opinion that that claim is untenable Believing as we do, therefore, that the defendant did not have a fair trial, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

O’Connor and Thomson, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Abraham Bernstein, Appellant, v. Jacob Weinstein and Louis Weinstein, Appellees.
    Gen. No. 25,641.
    1. Landlord and tenant, § 465

      —when acceptance of payment of rent is waiver of forfeiture. Where, in a forcible detainer action, the defendants, who occupied the premises under a lease which provided for the payment of rental “in advance on the first day of each and every month,” mailed a check to the plaintiff on the fifth day of the month, which was received by him on that date, and the plaintiff had on the third day of the month served notice of forfeiture for nonpayment of rent, the act of the plaintiff lessor in receiving the rent constituted an affirmance of the lawful possession of the defendants’ lessee and terminated the lessor’s rights under the prior notice.
    2. Landlord and tenant, § 464*—effect of 'acceptance of delayed payments on right to require strict performance. Where the strict and exact performance in the matter of payment of rental under a lease at the exact time therein specified has been waived, for a portion of the time of such lease, and such delayed payments have been accepted without complaint for' a considerable time, reasonable notice thereafter of an intention to return to the strict and exact terms of the lease must be given before a forfeiture of the lease can be- declared.
    3. Landlord and tenant, § 464*—when slight delay in payment ’of rent not ground for forfeiture. A delay of 4 days in payment of rental "is negligible and not a substantial breach of the lease, where there is evidence of some indulgence between lessor and lessee in dealing with each other as to the payment of rent.
    Appeal from the. Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed December 22, 1920.
    Schoenbrod & Rosengard, for appellant.
    McInerney & Power, for appellees; John S. Burns, of counsel.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On April 7, 1919, the plaintiff filed a complaint "in forcible detainer in the municipal court, against the defendants, setting forth that he was entitled to possession of the store on the ground floor of 1722 West 12th street and the front part of the basement thereunder. The cause was tried without a jury and on April 23, 1919, there was entered the following finding or order: “The court finds the defendants, J. W. Weinstein and Louis Weinstein, not guilty.”

The evidence shows that the complaint was based upon the alleged failure of the defendants to pay the rent for the month of April, 1919, in advance on .the first day of the month as provided in the written lease. The lease was originally entered into between the defendants as lessees and Beifeld and Hirsch as lessors, but subsequently the lessors assigned their interests in the lease to the plaintiff. The lease provided that the premises were to be occupied by the defendants as undertakers from November, 1915, until September 30, 1920, at a rental of $2,950, “payable in monthly instalments of fifty dollars ($50.00) each in advance on the first day of each and every month of said term at the office of Beifeld and Hirsch, 76 West Monroe St., Chicago, Illinois.” One of the clauses of the lease contains the following:

“It is expressly agreed between the parties hereto, that if default be made in the payment of the rent above reserved, or any part thereof, or in any of the covenants or agreements herein contained, to be kept by the party of the second part, it shall be lawful for, and the party of the second part requests the party of the first part or —— legal representatives at —— or their election without notice, to declare said term ended, and to re-enter said demised premises or any part thereof, either with or without process of law, and the said party of the second part, or any other person or persons occupying the same, to expel, remove and put out, using such force as —— may deem necessary in so doing, and the said premises again to repossess and enjoy as in —— first estate; and in order to enforce a forfeiture of this lease for default in any of its conditions, it shall not be necessary to make demand or to serve notice upon the party of the second part, and said party of the second part hereby expressly waive right to any demand or notice from said party of the first part of —— election to declare this lease at an end or of declaring it so to be; but the fact of the nonperformance of any of the covenants of this lease, shall in itself at the election of the party of the first part, without notice or demand, constitute a forfeiture of said' lease, and at any and all times after such default, the said party of the second part shall be deemed guilty of a forcible detainer of said premises. It is further agreed by the parties hereto, that after the service of notice, or the commencement of a suit, or after final judgment for possession of said promises; the first party may receive and collect any rent due and the payment of said rent shall not waive or affect said notice, said suit or said judgment.”

The evidence shows that a check for the rent for the month of April, 1919, was sent by mail to the plaintiff by the defendants on April 5, 1919, but that on April 3, 1919, at 4 p. m., the plaintiff had served the following notice upon the defendants:

“You and each of you are hereby notified that.I have elected to terminate any interest you or either of you may have in and to a certain agreement entered into by and between yourselves and Alexander Beifeld and Morris Hirsch, dated October 15th, 1915, leasing to you the premises known as the store on the ground floor of the building No. 1722 West 12th street, Chicago, Illinois, and front part of the basement thereunder, which said agreement was assigned to me by the said Beifeld and Hirsch.

“This election to terminate, is in accordance with the terms and provisions of said lease and because of your default and failure to pay the rent for the month of April on the first day of said month in accordance with the terms of said lease. Yon are hereby ordered to quit the premises immediately.”

The evidence of Howard Weinstein, one of the defendants, is that, he mailed a check to the plaintiff on April 3, 1919, at about 11:00 o’clock in the morning; that the plaintiff had. always said that if he were around the first or second of the month he (the defendant) could give him a check but, if not, that he could mail the check; that the reason he did not pay the plaintiff the rent on the first of April, 1919, was because he was waiting for him to come around “as was his custom”; that he did not come into the office on the first of April.

A receipt for $50 dated April, 1919, “in full for one-month’s rent, to 4-30-1919,” purporting to be signed by A. Bernstein, was offered in evidence. The witness Howard Weinstein said that he received that receipt from the janitor; that the janitor told him that the plaintiff wanted to know if they were “sore” because he had handed them (the defendants) a notice; and that when he, the janitor, said to the plaintiff, “Don’t he always pay the rent?” that Bernstein then said, “Sure, I have the check in my pocket”; that it was after that that the janitor gave the defendants the receipt. The plaintiff, Bernstein, testified that he gave to the janitor the receipts for all the tenants and by mistake put in that receipt for April; that as to the checks for the rent, one of which was for the premises in question, he did not receive them until Saturday morning, April 5; that he mailed a receipt to one of the Weinsteins on April 5, as soon as he opened the mail and found the checks in it; that he mailed it about 9:00 o’clock or 10:00 o’clock the same morning he got the checks.

There was offered in evidence an envelope—which had contained the check for the April rent—with the printed address of the defendants in the upper left-hand comer, addressed to the plaintiff. That envelope had been mailed by the defendants and had on its face the stamp of the post office, as follows: ‘ ‘ Chicago, April 4, 1:30 a. m. 1919,” showing that it was mailed at that time. There was also offered in evidence an envelope from the plaintiff—which has contained a receipt for the April rent—on the face of which was the superscription Howard Weinstein, and the stamp of the post office, “Chicago, Ill. April 5, 11:00 a. m. 1919.” There was also offered on behalf of the plaintiff a number of receipts for past rents which were signed by the plaintiff. They showed that some of the instalments of rent had been paid after the first of the month.

At the close of the evidence, certain findings of law and of fact were presented to the court, some of which were allowed and some of which were refused. There was then a finding in favor of the defendants.

From the evidence it appears that the defendants, who occupied the premises under a lease which provided for the “payment of a rental of $2,950, payable in monthly instalments of fifty dollars ($50) each in advance on the first day of each and every month,” etc., undertook to pay the rent for the month of April, 1919, by a check which was mailed to the plaintiff, at 11:00 a. m. April 5, 1919, and which was received by him on that date. Claiming that the payment of the rent on the fifth of the month, instead of the first was a breach of the terms of the lease, the plaintiff, seeking an application of the rigor of the law, on April 7, 1919, brought suit to oust the defendants from the possession of the premises and to terminate that lease. In Collins v. Canty, 6 Cush. (60 Mass.) 415, the court said: “The acceptance of rent, as rent, for any time subsequent to the expiration of the notice was an admission of the continuance of the tenancy and a waiver of the notice; so that the plaintiff cannot recover.” In Crawford v. Waters, 46 How. Pr. (N. Y.) 210, the court said: “If any part of the rent be received by the landlord which accrued subsequent to the breach, he again consents to and establishes tenancy, which it was competent for him to have avoided. ’ ’ In the instant case, the notice of forfeiture recited that the election of the plaintiff to terminate the lease was “because of the default and failure to pay the rent for the month of April on the first day of said month,” etc.

If we are to consider the plaintiff as having the right to terminate the lease as of the first of April pursuant to his notice and that he is entitled to have the defendants ousted for failure to pay the rent for the month of April on the first of the month, it could only be on the assumption that he had not, prior to the beginning of the suit or trial, accepted the rent for that month. It hardly lies in the mouth of the plaintiff to say that he is both entitled to the rent for the month of April and to oust the defendants for failure to pay it on the first of the month. In Kenny v. Seu Si Lun, 101 Minn. 253, the court said: “The general principle is certain that money tendered by the tenant and received by the landlord as rent is paid as- rent, and operates to bar the landlord from asserting against the tenant past causes of forfeiture under the terms of the lease which were known to him at the time of such payment.” In the instant case, the act of the lessor in receiving' the rent constituted an affirmance of the lawful possession of the lessees. The acceptance of rent by a lessor puts an end to his rights under a prior notice of forfeiture for nonpayment of rent. Webster v. Nichols, 104 in. 160.

Further, the evidence shows that in the course of the preceding year on a number of occasions the plaintiff had received and accepted without question checks from the defendants which were dated after the first of the particular months for which they were given as payment; and, also, it is the evidence that the plaintiff told one of the defendants that if he was around the first or second of the month he could give him a check but if he was not around he could mail him a check, and that as to the payment of the rent for April, 1919, the witness said, when asked why he did not pay the April rent, “I was waiting for him to come around, which was his usual custom.” In Jakes v. North American Union, 186 Ill. App. 1, the court said: “Where strict and exact performance in the matter of payments on a contract at the exact times therein specified have been waived for a portion of the time of such contract, and such delayed payments have been accepted without complaint for a considerable time, reasonable notice thereafter of an intention to return to the strict and exact terms of the contract must be given before a forfeiture or a rescission thereof can be declared in law by either party. Palmer v. Ford, 70 Ill. 369; Vider v. Ferguson, 88 Ill. App. 136; Finch & Co. v. New Ohio Washed Coal Co., 156 Ill. App. 589.” Cicero & Proviso Ice Co. v. Natoma Dairy Co., 214 Ill. App. 636,. Abst.

It does not require evidence of much indulgence between lessor and lessee in dealing with each other as to the payment of rent under a written lease, which provides that an instalment shall be paid on the first of each month, to justify holding that a delay of 4 days is negligible, and not a substantial breach of the lease.

Finding no error in the record the judgment is affirmed.

Affirmed.

O’Connor and Thomson, JJ., concur.


author: Mr. Justice O’Connor

text:
    H. N. Maffei, Appellant, v. Louis Ginocchio et al., trading as Ginocchio, Costa & Company, Appellees.
    Gen. No. 25,461.
    1. Sales, § 73

      —when contract of sale is modified. Where a contract of sale provided that the goods “should be shipped about the middle of October," and thereafter a letter of credit was mailed to the seller, which provided that it should “be in force until October 31,” the contract was modified so as to permit shipment any time prior to October 31.
    2. Sales, § 200*—when title to property sold passes. Under the Uniform Sales Act, par. 2, sec. 20 [Callaghan’s 1916 Stat. ¶ 10021(23) ] and paragraph (a), sec. 22 [Callaghan’s 1916 Stat. ¶ 10021(25) ], where goods have been delivered to a vessel for transportation to the buyer and the bill of lading is retained by the seller in accordance with a contract stipulation that such retention is “only for the purpose Qf securing performance by the buyer of his obligations under the contract,” the goods are at the buyer’s risk from the time they are put on the vessel, and the loss of the goods at sea thereafter is on the buyer.
    3. Sales, § 158*—when failure to notify of shipment does not relieve buyer of loss. Under the Uniform Sales Act, par. 3, sec. 46 [Callaghan’s 1916 Stat. ¶ 10021(49)], a seller is not required to notify the buyer of the delivery of goods to the steamship company, for the purpose of effecting insurance, where the contract of sale expressly provides “Marine and war insurance to be covered by consignees,” and a letter of credit to seller states that such insurance has been effected.
    Appeal from the Municipal Court of Chicago; the Hon. Leo J. Doyle, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Reversed and judgment here.
    Opinion filed December 22, 1920.
    Fisher, Boyden, Kales & Bell, for appellant; Darrell S. Boyd, of counsel. .
    Culver, Andrews, King & Stitt, for appellees.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against defendants to recover $2,545, being the contract price for 300 bags of Mountain Naples walnuts. The case was tried before the court without a jury and at the close of plaintiff’s case, on motion of defendants, there was a finding and judgment in favor of defendants, to reverse which plaintiff prosecutes this appeal.

The record discloses that plaintiff was a dealer in nuts and other alimentary products in Naples, Italy, and defendants were dealers in food products in Chicago; that on or about August 5,1916, they entered into a written contract whereby plaintiff agreed to sell and defendants agreed to buy 300 bags of No. 1 Sorrento walnuts and 300 bags of Mountain Naples walnuts for a certain specified price. The contract provided that payment should be made within 90 days, “Confirmed bankers’ letter of credit,” and that the nuts should be shipped about the middle of October, 1915, on a direct steamer to New York,' in bond to Chicago. It further provided, “Marine and war insurance to be covered by consignees,” and that plaintiff should not be held responsible for any failure in shipping on account of shortage of tonnage, lack of steamers, or other reasons beyond his control. The 300 bags of Sorrento walnuts were shipped about October 24, later received and paid for. The 300 bags of Mountain Naples walnuts were placed on board the S. S. Ancona at Naples, Italy, on October 30, 1915. This boat left Naples for New York about November 6, and on that or the next day it was torpedoed and sunk, apparently by a submarine of the Central Empire then engaged in the. World War.

The record further shows that on August 14, 1915, defendants obtained from the Continental & Commercial National Bank of Chicago a letter of credit to plaintiff at Naples, drawn on a bank in that city. This letter authorized the Naples bank to pay plaintiff for the nuts upon presentation of the bills of lading drawn to the shipper’s order and by him indorsed. It contained the following: “Insurance, including war risk, effected by the importers. - * * ® This credit to be in force until October 31, 1915.” The letter of credit was inclosed in a letter written by defendants to plaintiff dated August 16, 1915, wherein they stated that they inclosed the letter of credit in payment for the 600 bags of nuts. This letter with the inclosure was apparently received in due course by plaintiff. The evidence further tends to show that plaintiff endeavored to make shipment of the nuts on or about October 20, but was unable to do so on account of the shortage of ocean tonnage; that on October 26 the 300 bags of No. 1 Sorrento walnuts were shipped on the S. S. Patria, were delivered to defendants in due course and paid for; that afterwards, on October 30, plaintiff delivered to the steamship company at Naples the 300 bags of Mountain Naples walnuts and received from the steamship company a bill of lading made out to his own order which he indorsed. This, the evidence shows, was on Saturday and too late for the plaintiff to go to the bank that day with the letter of credit and the bill of lading to obtain payment for the nuts. The next day was Sunday and the following Monday and Tuesday were legal holidays in Italy, so that the first day presentation could be made to the bank was Wednesday, November 3. On that day plaintiff presented the letter of credit together with the bill of lading properly indorsed and demanded payment, but the bank refused on the gnound that the letter of credit authorized payment only until October 31. On November 1, plaintiff cabled his New York agent that he had placed the 300 bags of walnuts on board the Ancona for defendants. On the same day plaintiff’s New York agent wrote defendants as follows: “Have cable advice from H. N. Maffei to the effect that on the 8. 8. Ancona, which will sail from Naples on the 9th inst., he will make shipment of 300 bags of Mountain Naples walnuts on account of your contract.” On November 3, defendants acknowledged receipt of this letter. "When the Naples bank refused payment to the plaintiff for the nuts on November 3, he took the matter up by cable with defendants and on November 8, defendants wrote plaintiff’s agent in New York City stating: that they had countermanded the letter of credit but that on that date they had again authorized payment of the letter. Upon ascertaining that the Ancona had been torpedoed and sunk, payment not having been made, the bills of lading were forwarded to defendants and payment demanded, which was refused. The evidence further shows that on account of the war the time when vessels would sail, the number of them and the available cargo space were so uncertain that no one could tell whether a vessel would sail on the date scheduled, or at another date, or at all. Nor could it be known that a particular boat would carry merchandise even though it did sail at the appointed time, because there was a great shortage in this respect.

Defendants first contend that the judgment of the municipal court was right and should be affirmed for the reason that the nuts were not shipped within the time provided in the contract, viz.: “About the middle of October”; that they were not put on the boat at Naples until October 30, long* after the time they should have been loaded, and, therefore, defendants were not obliged to accept them at that late date. It is true that the contract of August 5 for the sale and purchase of the nuts provided that they should be shipped about the middle of October, but it is also true that on August 16 defendants wrote plaintiff a letter, in which they inclosed the letter of credit from the Chicago bank to the Naples bank which letter of credit read: “To be in force until October 31; 1915.” But counsel for defendants argued that this provision only extended the time within which payment might be made, but did not extend the time within which the shipment was to be made. We think this argument is unsound for it is obvious that the Naples bank would have paid the letter of credit upon presentation to it of a proper bill of lading transferring the nuts to the defendants up until October; 31, without regard to when the nuts were actually placed on board the vessel. This letter of credit, while prepared by the Chicago bank, was inclosed by defendants in a letter from them to plaintiff and thereby became a part of defendants’ letter just as if it had been incorporated therein. We hold, therefore, that the contract was modified so as to permit the shipment of nuts any time prior- to October 31.

Defendants further contend that the judgment should be affirmed for the reason that the title to the nuts never vested in them because the bill of lading was not delivered to them, and that in order to pass title the bill of lading should have been properly indorsed and delivered to them; that since this was not done defendants did not own the nuts at the time the boat sunk and, therefore, the loss is that of the plaintiff. In support of this, defendants cite the cases of Brandenstein v. George Rasmussen Co., 192 Ill. App. 545, and Brown v. Max Matter Co., 184 Ill. App. 621. These two cases were decided before July 1, 1915, the date on which the Uniform Sales Act became effective in this State, and the law as announced in the two cases cited has been changed by that act. Paragraph 2 of section 20 of the Act [Callaghan’s 1916 Stat. ¶ 10021(23)] provides: “Where goods are shipped, and by the bill of lading the goods are deliverable to the seller of [or] his agent, or to the order of the seller or of his agent, the seller thereby reserves the property in the goods. But if, except for the form of the bill of lading, the property would have passed to the buyer on shipment of the goods, the seller’s property in the goods shall be deemed to be only for the purpose of securing performance by the buyer of his obligations under the contract.” Paragraph (a) of section 22 [Callaghan’s 1916 Stat. ¶ 10021(25)] provides: “Where delivery of, the goods has been made to the buyer, or to a bailee for the buyer, in pursuance of the contract and the . property in the goods has been retained by the seller merely to secure performance by the buyer of his obligations under the contract, the goods are at the buyer’s risk from the time of such delivery.” The only reason that defendants urge for the contention that the title to the nuts did not pass to them at the time the nuts were put on board the ship at Naples is that plaintiff, the shipper, retained possession and control over the bill of lading. But under the two provisions above quoted, we think plaintiff retained the bill of lading merely to secure payment for the nuts—“only for the purpose of securing performance by the buyer of his obligations under the contract.” This being true, the nuts, from the time they were put on the vessel, were “at the buyer’s risk from the time of such delivery.” It is obvious that it was the intention of both parties that the bill of lading was not to be delivered up by plaintiff to the Naples bank except upon payment for the nuts, and undoubtedly that bank would have paid plaintiff if the bill of lading and letter of credit had been presented before closing on Saturday, October 30. It follows, therefore, that the nuts were at the buyer’s risk at the time the boat was sunk, and defendants must pay for them unless they are excused, as they claim they are, by the failure of plaintiff to seasonably notify them of the date the ship was to sail, so as to enable them to effect marine and war insurance. In support of this contention defendants’ counsel refer to paragraph 3, section 46 of the Uniform Sales Act [Callaghan’s 1916 Stat. ¶ 10021(49)], which is as follows: “Unless otherwise agreed, where goods are sent by the seller to the buyer under circumstances in which the seller knows or ought to know that it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their transit, and, if the seller fails to do so, the goods shall be deemed to be at his risk during such transit.” It is argued that on November 1 plaintiff notified defendants by letter that the shipment was to be made on the S. S. Ancona, sailing from Naples on November 9 and, therefore, the boat having sailed on November 6, the notice was wrong and misled defendants; that defendants attempted to effect insurance on November 9, but were advised on November 10 by their agents that it was too late to effect the insurance for the reason that prior to that time the boat had been sunk. Of course, if the boat was to sail on November 9 from Naples, as a practical matter, it would have been too late for defendants in Chicago to first set about to insure the nuts on the same date.. And, furthermore, in view of the great uncertainty of shipping occasioned by the war, such notice as might have been given could at best have been but very inaccurate. But in any event the correspondence from the plaintiff and his agent to defendants notifying them of the date when the boat was to sail was not given with a view of informing defendants so they could effect the insurance, for nothing of the kind is mentioned in the correspondence, but it appears that the purpose of the notification was so that defendants would be advised when to expect to receive the nuts in New York City or Chicago. Moreover, we think the plaintiff was not required to notify defendants of the delivery of the nuts to the steamship company for the purpose of effecting insurance, for the contract of August 5, 1915, expressly provides, “Marine and war insurance to be covered by consignees,” and the letter of credit of August 14 expressly said that such insurance had been effected by defendants. It stated; “Insurance, including war risk, effected by the importers.” Paragraph 3, section 46 of the Uniform Sales Act, above quoted, provides that the seller must give notice to the buyer so as to enable the latter to effect insurance during the transit unless it - has been otherwise agreed between them. In the instant case it had been otherwise agreed between them for the contract provided that the defendants were to insure the nuts, and the letter of credit stated that such insurance had been effected.

It follows from what we have said that defendants cannot be relieved for want of any notice in regard to the insurance.

Plaintiff asks that the judgment of the trial court be reversed but that the cause be not remanded for the reason that the facts are all before this court, and, therefore, judgment can be entered here in favor of plaintiff, a jury having been waived. While the case was decided for defendants at the close of the plaintiff’s evidence, yet we think the evidence introduced brings before us all the facts and that there is nothing set up in defendants’ affidavit of merits that might be supported by any other evidence. Therefore, the judgment of the municipal court of Chicago is reversed, and since the amount is not in dispute and a jury was waived, judgment will be entered in this court for $2,545 in favor of the plaintiff and against the defendants.

Judgment reversed and judgment here.

Taylor, P. J., and Thomson, J., concur.


text:
    John Berndt, Appellant, v. Chicago Railways Company et al., operating under name of Chicago Surface Lines, Appellees.
    Gen. No. 25,509.
    1. Workmen’s Compensation Act, § 3a

      —what is extrahazardous business. The operation of an electric street railway system is an extrahazardous business within the meaning of clause 3, par. (b), sec. 3 of the Workmen’s Compensation Act of 1913 [Callaghan’s 1916 Stat. ¶ 5475(3)].
    2. Workmen’s Compensation Act, § 2*—when Compensation Aot applies. In a suit for personal injury by an employee against a third person, where the record discloses that the plaintiff and his employer were operating under the Workmen’s Compensation Act, and that the plaintiff’s injury arose out of and in the course of his employment, and that defendants were engaged in an extrahazardous business, the defendants are presumptively within the act, and no recovery can be had unless the plaintiff alleges in the declaration and proves that the defendants had elected not to be bound by the act.
    3. Workmen’s Compensation Act, § 18*—when suit will not be continued. A suit for personal injury by an employee against a third person, where it is found that all of. the parties—plaintiff, his employer and defendants—are under the act, will not be continued for the benefit of plaintiff’s employer under clause 1, sec. 29 of the Act [Callaghan’s 1916 Stat. If 5475(29)], where no such suggestion is made at the trial.
    4. Appeal and error, § 1718*—when question of validity of statute is waived. By an appeal to the Appellate Court, the question of the validity of section 29 of the Workmen’s Compensation Act [Callaghan’s 1916 Stat. ][ 5475(29)] is waived.
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed December 22, 1920.
    Thomas D. Nash and Michael J. Ahern, for appellant.

      Charles LeRoy Brown, for appellees; John B. Guilliams and Joseph D. Ryan, of counsel.

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

   Mr. Justice O’Connor

delivered the opinion of the court!

Plaintiff brought an action against the street railways companies operating in Chicago under the name and style of the Chicago Surface Lines, to recover damages for personal injuries. At the close of the plaintiff’s case, on motion of defendants, there- was a directed verdict in favor of defendants, to reverse which plaintiff prosecutes this appeal.

Both counts of the declaration substantially alleged that the defendants owned, possessed and operated a street railway in Wells street, Chicago; that on March 2, 1917, plaintiff, while in the exercise of all due care and caution for his own safety, was driving a team of horses hitched to a loaded wagon south in Wells street and that one of defendants’ street cars coming from behind was so carelessly operated that it struck the wagon and threw plaintiff to the ground; that one of the wagon wheels ran over and crushed his left leg so that amputation was necessary. There was no averment that the Workmen’s Compensation Act applied. To the declaration defendants filed a plea of general issue.

On the trial the evidence tended to show that on the day in question plaintiff was employed as a teamster by one Dominic Marubio, who was engaged in the teaming business; that plaintiff was driving a heavily loaded wagon south in Wells street on the morning of March 2, and that the street was icy and slippery; that one of defendants’ cars was coming from behind and that plaintiff attempted to pull his wagon out of the track to the west but before he had succeeded in clearing the track the car collided with the wagon and threw plaintiff to the ground, one of the wheels of the wagon passing over his left leg crushing it, so that it was necessary for the surgeon to amputate it. On the cross-examination of the plaintiff and Marubio it developed that both of them were operating under the Workmen’s Compensation Act, and that plaintiff had filed a claim against his employer under that act and had been allowed $9 per week for 175 weeks, doctor’s and hospital bills and some other matters. This together with the testimony tending to show how the accident; happened, and the nature and extent of plaintiff’s injuries was all of the evidence that was offered.

Counsel for defendants make no claim that the declaration does not state a good common-law cause of action, and we think it clear that if the Compensation Act did not apply, plaintiff made out a prima facie case under his declaration.

Plaintiff contends that the act does not apply, (1) for the reason that there is nothing in the declaration or evidence that tends to show that the defendants were employers engaged in hazardous occupations, and (2) that even if defendants were employers conducting a hazardous business, there is no presumption that they were under the act.

(1) The declaration avers and the evidence shows that defendants were street car companies operating electric street railway systems in Chicago, and that these cars were being operated by defendants’ employees and, therefore, the business of the defendants was extrahazardous within the meaning of clause 3, par. (b), sec. 3 of the Workmen’s Compensation Act. of 1913 [Callaghan’s 1916 Stat. ¶ 5475(3)]. Chicago Rys. Co. v. Industrial Board, 276 Ill. 112.

(2) Plaintiff contends that although he and his employer, Marubio, were under the Compensation Act, and even though defendants were engaged, in extra-hazardous business within the terms of the Compensation Act, yet there is no presumption that the defendants had elected to be bound by the act, but defendants, if they would relieve themselves from liability, must plead specially or at least introduce evidence under the general issue that they had elected to be bound by the act. It is argued that although the Supreme Court of this State has held that where an employee sues his employer and it appears from the record that the business is extrahazardous within the meaning of the act, then the presumption obtains that the employer is under the act, but it has not been held that this presumption prevails where the suit is brought against a third person, as is the instant case. The difficulty with this argument is that it has been held otherwise by this court in the case of Klonowshi v. Crescent Paper Box Mfg. Co., 217 Ill. App. 150, and the Supreme Court in the cases of Vose v. Central Illinois Pub. Service Co., 286 Ill. 519; Johnson v. Choate, 284 Ill. 214.

In the Klonowshi case, which was a suit by the administrator of an employee against a third person for negligently causing the death of the deceased where the deceased and her employer were admittedly under the act, we held that the presumption that the third person, if engaged in extrahazardous business at the time and place of the accident, was under the act obtained, and in support of this holding cited the Vose case. In the Vose case the court said (p. 523) : “Plaintiff in error argues that the presumption that a person engaged in one of the hazardous occupations enumerated in the statute is under and subject to the act applies only as between the employer and the employee but does not apply where the action is against a third party. This question was decided contrary to that contention in Johnson v. Choate, 284 Ill. 214.”

In the instant case, since the record discloses that plaintiff and his employer were operating under the Compensation Act, and that plaintiff’s injury arose out of and in the course of his employment, and since it further discloses that defendants were engaged in an extrahazardous business and, therefore, presumptively within the act, no recovery could be had unless plaintiff would allege in the declaration and prove that defendants had elected not to be bound by the act. The court in the Vose case on this point said (p. 523): “If the recovery had been sought under the second clause of said section (29), it would have been necessary to have averred that plaintiff in error had elected not to be bound by the act.” Plaintiff in his declaration set up a good cause of action at common law against the defendants, but his proof did not sustain that action. Therefore, the court was bound under the law to instruct the jury to return a verdict for defendants.

Plaintiff also argues that even if all of the three parties—plaintiff, his employer and defendants—were presumed to be under the Workmen’s Compensation Act, the suit should have been continued for the benefit of plaintiff’s employer under clause 1, sec. 29 of the Act [Callaghan’s 1916 Stat. ¶ 5475(29)]. It is sufficient to say that no such suggestion was made at the trial.

It is also argued that section 29 of the Act is unconstitutional. The Supreme Court has held otherwise a number of times. Friebel v. Chicago City Ry. Co., 280 Ill. 76 [16 N. C. C. A. 390]; Keeran v. Peoria, B. & C. Traction Co., 277 Ill. 413; Gones v. Fisher, 286 Ill. 606. However, the plaintiff by bringing his appeal to this court, waived such question. Clark Teachers’ Agency v. City of Chicago, post, p. 319; Armour & Co. v. Industrial Board, 275 Ill. 328.

It is unfortunate that plaintiff should be deprived of a good cause of action on the presumption that defendants were under the Compensation Act, if the facts would show that defendants had elected not to be bound by it, but, under the decisions as we understand them, plaintiff should have alleged and proved that defendants had elected not to be bound by the act.

The judgment of the superior court of Cook county is affirmed.

Affirmed.

Taylor, P. J., and Thomson, J., concur.


text:
    E. P. Wolf, Appellee, v. D. M. Ladd, Appellant.
    Gen. No. 25,558.
    1. Appeal and error, § 1245

      —when error cannot he alleged on appeal. Where parties to a suit involving a lease try the case in the trial court on the theory that the lease may be varied by oral evidence, the defendant should not be permitted to shift his position on appeal and contend that the oral evidence was inadmissible.
    2. Landlord and tenant, § 476*—when oral notice of termination of lease is proper. A provision in a written lease for a year, requiring that 60 days’ written notice be given the lessee by the lessor of the' lessee’s intention to terminate the lease at the end of the term, may be waived and such notice given by parol, and the question whether this was done is one of fact.
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed December 22, 1920.
    McMahon, Graber & Edward, for appellant.
    Charles M. Haft, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action of forcible detainer against defendant claiming that defendant was illegally withholding possession of a flat in the building known as 1463 East 68th street, Chicago. The case was tried before the court without a jury and there was a finding and judgment in favor of plaintiff, to reverse which defendant prosecutes this appeal.

The record discloses that plaintiff, the owner of the premises in question, entered into a written lease with defendant demising the apartment from May 1, 1918, to April 30, 1919, at a monthly rental of $34 payable in advance. The premises were demised “from the 1st day of May, A. D. 1918, until the 30th day of April, A. D. 1919, provided sixty days written notice is given lessor by lessee of lessee’s intention to terminate this lease on said last mentioned date, otherwise this lease shall continue from year to year until terminated by like notice in some ensuing year. Lessor is entitled to terminate this lease upon like notice to lessee at like dates.”

On the trial plaintiff introduced the lease in evidence and testified that on March 2, 1919, he had a conversation with the defendant in reference to the tenancy. He testified as follows: “I told him other tenants in the building were complaining of the noise made by his children, and asked him to move. He said he did not wish to live where he was not wanted and that he would move on April 30, 1919: * * * I immediately caused the premises to be leased to another tenant. Mr. Ladd did not move on April 30. He is still in possession.” Plaintiff also introduced in evidence a letter from his agents to defendant dated April 26, 1919, replying to defendant’s letter of April 24, wherein defendant stated he wanted to remain in the flat another year. The agents’ letter advised him that his notice was too late, and that:

“On March 2 last, the writer called on you in regard to same and on your saying that you would not stay, he put up a ‘For rent’ sign and rented the apartment, of which fact you have been aware since March 5 last.

“Please take notice that we demand possession on the morning of May 1 next, of the apartment which you are now holding from us, namely, the second floor of No. 1463 East 68th street.

“We wish to call your attention to clause 8 in your lease which calls for $10.00 per day for each day that you remain in said apartment after May 1. Trusting that you will vacate said apartment at the proper time, without any further trouble, we remain,” etc.

Defendant testified on behalf of himself that he had a conversation with plaintiff on March 2, 1919: “He (plaintiff) said other tenants in the building at 1463 East 68th, street were complaining about the noise made by my children and asked me to guarantee that they would make no noise. I told him I could make no such'guaranty. He then asked me if I would move into a lower flat in the same building. * * * I did not tell him I would vacate the premises on April 30.” Defendant further testified that he was still in possession and desired to remain and was willing to pay the rent. This is substantially all of the material evidence in the case.

The defendant in his original brief argues that the judgment is wrong and should be reversed for the reason that the 60 days’ written notice provided in the lease was not given; that the evidence shows that the only notice given was the notice contained in the ..letter from plaintiff’s agent dated April 26, 1919, which was only 4 days’ notice instead of 60 days’ notice. Plaintiff in his brief argues that the oral notice given March 2 was a sufficient compliance with the provisions of the lease, and that defendant waived the provision requiring the written notice. Defendant, in his reply brief, takes the position that the lease being under seal and requiring a written notice would not be satisfied by the giving of an "oral notice for the reason that a sealed instrument cannot be modified by a subsequent parol agreement. In support of this defendant cites the cases of Baltimore & O. & C. R. Co. v. Illinois Cent. R. Co., 137 Ill. 9; Leavitt v. Stern, 159 Ill. 526; Starin v. Kraft, 174 Ill. 120, and other cases. On the trial both the plaintiff and defendant testified concerning the oral notice of March 2. On the one hand, plaintiff testifying that at that time it was orally agreed between them that defendant would vacate the premises on May 1, and on the other hand, defendant denying that he said he would do so. No objection was offered by either side to the introduction of this testimony, but both parties tried the case as though this evidence were competent apparently on the theory that a lease under seal could be varied by parol. Therefore, we might without further discussion say that having taken this position in the trial court the defendant could not shift his position here, but we prefer to base our decision on the legal proposition presented. We think the authorities cited by defendant are not in point. In the Baltimore & O. & C. R. Co. case there was a lease under seal between two railroad companies concerning the use of certain land. It was held that after the execution of the lease it could not be modified by a subsequent parol agreement whereby the lessee sought to elect to take different land from that demised in the lease. In the Leavitt case, which was an action for rent on a lease under seal, "it was held that the tenant could not set off damages he had sustained by the breach of a subsequent oral contract which provided for the leasing of the same premises for a period of 6 years. The Starin case was an action of assumpsit brought by Starin to recover damages for the breach of an option contract for the sale of a tract of land. The agreement entered into by the parties provided that plaintiff was to purchase from defendant a certain tract of land estimated to contain 45 acres, the precise acreage to be ascertained by a survey. No survey was made within the time specified in the option contract but Starin contended that the parties had by a subsequent parol agreement modified the written contract which was under seal whereby the defendant, agreed to accept the estimate of 45 acres as the contents of the tract to be sold. It was held that the contract under seal could not be modified by such parol agreement. The court there said (p. 122): “That question was raised upon the trial both by the admission of the offered proof of the parol agreement, over the objection of the defendant, and the refusal of the court to give instructions asked by the defendant. * * * It is not denied that an executory contract under seal cannot be changed by parol. * * * But it is contended by counsel for appellee, that where, by parol, a condition of a sealed instrument is waived, and the parties act, or fail to act, because of such waiver, the doctrine of estoppel will preclude a denial of the effect of the parol agreement. ’ ’ The court then cites authorities, among them Worrell v. Forsyth, 111 Ill. 22, and continuing the court said that in that case “the parol agreement had been fully executed. In each of the other cases it will be found, upon examination, that the facts constituted a waiver of the terms or conditions in question, which waiver was in the nature of a release, surrender or discharge, and hence would come under the rule here obtaining', that a contract under seal may be released, surrendered or discharged by matters in pais. No one of these decisions announces that any such parol waiver of a condition could operate to introduce any new element into the sealed contract, so that thereby a new executory contract would be created, which would depend partly upon the conditions under seal and partly upon the conditions by parol for its enforcement. * * * The attempted modification here cannot be treated merely as abrogation, surrender or release, by parol, of a condition of the sealed instrument. There is not here the mere subtraction of an element or condition of the sealed contract without changing its import, but, on the contrary, there is the attempted substitution of new matter which is essential to sustain the right of action. The parol agreement must operate, if at all, not only to waive the agreement to sell a number of acres, to be ascertained by survey, at a fixed price per acre, but as well to substitute therefor an agreement to sell a larger number of acres at a smaller price per acre. Nor can we concede that the doctrine of equitable estoppel may be applied at law to enforce such a change by parol in a sealed executory contract.” From the foregoing it will be seen that none of the cases cited sustains defendant’s position, for in the instant case the giving of the oral notice for the termination of the lease was simply a' release of that condition and did not leave the contract partly in writing under seal and partly oral. It is a well-established rule of law that a condition of a contract under seal may be released by parol. Dauchy Iron Works v. Toles, 76 Ill. App. 669; White v. Walker, 31 Ill. 422; Vroman v. Darrow, 40 Ill. 171; Smith v. Snyder, 168 Pa. 541. The Toles case was an action brought to recover rent under the terms of a lease under seal. There was no dispute but that the rent claimed had not been paid and was due, but the tenant claimed damages by reason of the failure of the landlord to furnish steam power as was provided for in the lease. It was conceded that the power had not been furnished, but the landlord contended that after the execution of the lease the tenant told him that steam power would not be needed for some time and that the landlord thereupon stated that he would furnish the power when requested, and that this was agreed to. The tenant denied this. Afterwards all of this evidence was, on motion of the tenant, stricken out. The court held that this was error and that the evidence should have been submitted to the jury for their determination of the question of fact presented. In delivering the opinion of the court, Mr. Justice Sears said (p. 671): “The evidence which was stricken out by the court tended to show a waiver of that condition of the lease which provided for the furnishing of steam power during all the term of the tenancy. Counsel for appellee contends that the'ruling was proper, because the lease, being under seal, its provisions could not be altered by parol agreement. In other words, the contention is that because the conditions of this sealed instrument provided for the furnishing; of power throughout the term of the lease, no waiver of such provision could be effected by parol, and whatever the agreement and consent of the parties may have been, yet the very fact that no power was furnished was conclusive as to the right of appellee to damages for breach of the contract. The rule governing is not so harsh and unreasonable.

“It is true, as contended by counsel, that the terms of an executory contract, under seal, cannot be so changed by parol as to leave a contract to be enforced which rests partly upon the agreement under seal and partly upon agreement by parol. But it does not follow that a discharge or release of any condition of a contract under seal may not be effected by parol. On the contrary, the well-established rule is that such a release may be made by parol. White v. Walker, 31 Ill. 422; Vroman v. Darrow, 40 Ill. 172; Moses v. Loomis, 156 Ill. 392.” Since no point is made that .the landlord had no authority to maintain this suit as he had relet the apartment to another (Gazzolo v. Chambers, 73 Ill. 75), we do not pass on the question.

We are, therefore, of the opinion that the provision in the lease requiring 60 days’ written notice could be waived and such notice given by parol, and the question whether this had been done was one of fact for the court.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Taylor, P. J., and Thomson, J., concur.