text:
    John Curran, by James A. McCallum and Oliver E. Roberts, Guardians, Appellee, v. Chicago & Western Indiana Railroad Company et al., on appeal of Chicago & Western Indiana Railroad Company et al., Appellants.
    Gen. No. 23,582.
    1. Municipal corporations, § 82

      —what constitutes amendment of railroad fence ordinance. An ordinance which provides for the fencing of railroad tracks in the city, at a time and at places (with reference to the tracks) to be directed by the city council, is to be regarded as an amendment rather than a repeal of a prior ordinance providing that the time and places of fencing shall be directed by the mayor and the commissioner of public works.
    2. Municipal corporations, § 82

      —when re-enactments of provisions of ordinance neutralize repeals. Where an ordinance regulating the fencing of railroad tracks in a city is, though several times repealed, continued in force and in substantially the same form as originally enacted and re-enactments of the ordinance are simultaneous with the provisions for repeal, such re-enactments neutralize the repeals with regard to the provisions carried from the earlier ordinance into the new.
    3. Railroads, § 532

      —what not condition precedent to liability for injury due to failure to fence track under ordinance. An ordinance providing that railroad companies operating railroads within the city limits shall, within such time and at such places as may be prescribed by the council, cause walls or fences to be erected, held not to make action by the council a condition precedent to liability for an injury arising through a failure to fence the track.
    4. Railroads, § 532

      —when shown that time and place for fencing designated by city authorities. In an action against a railroad company to recover for personal injuries alleged to have been caused by defendant’s failure to comply with a fencing ordinance, evidence held to support a finding that the municipal authorities designated by the ordinance had prescribed the time and place for fencing as provided in the ordinance.
    5. Railroads, § 532

      —when status of company as to fencing tracks is fixed by municipal authorities. Where the municipal authorities designated by an ordinance to prescribe the time and place for fencing railroad tracks in the city act thereunder, the status of a railroad company whose fences are so prescribed by them is thereby fixed and is not affected by the fact that the ordinance is subsequently repealed and simultaneously re-enacted in substantially the same terms, except that the new ordinance designates a different municipal authority to prescribe such time and place for fencing.
    6. Munich?ae corporations, § 100

      —when admission of impleaded fence ordinance not error. In an action against a railroad company to recover for personal injuries alleged to have been caused by its negligence in failing to comply with a fence ordinance, where it appears that the ordinance, though repealed several times, had been simultaneously re-enacted in practically the same terms, it is not error to receive in evidence the ordinance in force at the time of the injury, though such ordinance was not pleaded, where it is substantially the same as the ordinance which was pleaded.
    7. Evidence, § 145

      —when letter press copies admissible. Letterpress copies of purported comm unications by the commissioner of public works of a city to a railroad company, directing compliance with a fence ordinance, which are produced from the records of the department of public works by an employee in that department, who testifies that he is custodian of them and to facts showing that they were kept in the discharge of a public duty, are admissible on the question as to whether the railroad company accepted the ordinance.
    8. Infants, § 1

      —when boy is sui juris. A boy a little under 15 years of age who is in the seventh grade at school, and as to whose intelligence, capacity and experience there is nothing to show that he is subnormal, is sui juris.

    9. Ratero ad s, § 532

      —when fence ordinance applies to persons sui juris. An ordinance requiring every person owning, leasing or operating a steam railroad in the limits of the city to fence the tracks in such time and maimer and at such places, except at public street crossings, as shall be prescribed by specified municipal authorities, applies to persons sui juris as well as to those non sui juris, where there is nothing in the language of the' ordinance or in the specifications for the fences called for by it indicating that it contemplates only persons non sui juris.

    10. Raieboads, § 517

      —what duty owed to trespassers and licensees. The only duty which a railroad company owes trespassers and licensees on its right of way is not to injure them wantonly or wilfully.
    11. Raieboads, § 586

      —when not error to refuse to direct verdict on ground that plaiwtiff is a trespasser. In an action against a railroad company to recover for personal injuries through being struck by a train while standing near defendant’s track, where the action is based on defendant’s negligence in failing to comply with a fence ordinance, it is not error to refuse to direct a verdict for defendant on the theory that plaintiff was a trespasser nor to refuse instructions requested by defendant to the effect that, if plaintiff was a trespasser, he could not recover.
    12. Negligence, § 198

      —contributory as question of fact or law. The question of contributory negligence is ordinarily one of fact for the jury, and only when the undisputed evidence shows that the injury resulted from the injured party’s negligence can it be held to be a matter of law.
    13. Negligence, § 201

      —care required of child sui juris as question for jury. In an action to recover for personal injuries to a child sui juris, the standard of care required of the child varies with his age, capacity, experience, etc., and is usually a question for the jury.
    14. Railroads, § 589

      —when contributory negligence of boy struck by train is question for jury. In an action to recover for personal injuries to a boy about 15 years of age who was struck, while standing near defendant’s track, by an iron bar protruding from a train moving thereon, where it appears that, in using the track as he was, the boy was doing as many others, including adults, were accustomed to do, and that the point in question was on a beaten path extending from the end of a public street and crossing the right of way, there being nothing to indicate where the street ended and the right of way began, and that he stood two feet from the -track, the question, of his contributory negligence was one of fact for the jury. '
    15. Railroads, § 548

      —what one standing near train not required to anticipate. One standing 2 feet from a moving train is not bound to anticipate that an iron bar will be permitted to protrude that distance from the train.
    16. Negligence, § 196

      —when proximate cause is question of fact. Whether or not a particular act of negligence is the proximate cause of a subsequent injury is a question of fact for the jury.
    17. Negligence, § 49

      —when proximate cause of accident. Where the negligence of a defendant causes a condition which continues up to the time of the accident and, operating with other causes, .brings it about, it is a proximate cause thereof, if defendant, in the exercise of reasonable care, could have foreseen that some such injury would probably result from his negligence.
    18. Railroads—when shown that failure to fence was proxi

      mate cause of injury. In an action against a railroad company to recover for personal injuries alleged to have been caused by defendant’s failure to comply with, a fence ordinance, evidence that plaintiff was injured while standing on defendant’s right of way, at a point where it was not fenced, through being struck by a bar of iron protruding from a moving car, is sufficient to support a finding that the failure to fence was the proximate cause of the injury, and that defendant could have foreseen that some such injury would probably occur as a result of its negligence.
    19. Railboabs—failure to comply with fence ordinance as prima facie negligence. Failure of a railroad company to comply with an ordinance requiring it to fence its track is prima facie negligence.
    20. Negligence, § 47

      —number of proximate causes of injury. There may be more than one proximate cause for an injury.
    21. Railroads, § 532

      —when liable for injuries due to failure to fence track. Where, by an ordinance, the fencing of railroad tracks is required and the tracks of two roads run parallel and near each other, one of such roads is not relieved from liability for personal injuries alleged to have been caused by its failure to fence, by reason of the fact that plaintiff, before reaching its track, had crossed the track of the other road, which was also unfenced, as there is an absolute duty on each road to fence its track.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed December 24, 1918.
    C. G-. Austin, Jr., Beverly W. Howe and Loesoh, Scofield, Loesoh & Richards, for appellants.
    Francis X. Busch, William Wallace McCallum and Elmer M. Liessmann, for appellee.

      See Illinois Notes nicest, Vols. XI to XV, and Cumulative 'Quarterly, same copio and section number.

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

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

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

   Mr. Justice Matchett

delivered the opinion of the court.

Appellants, defendants below, appeal from a judgment entered upon the verdict of a jury, in an action on the case for personal injuries. The cause was submitted to the jury upon pleas of not guilty as to the first and second counts of the declaration, which charged defendants with negligence in that they failed to build or maintain fences alongside their tracks in the City of Chicago as required by certain ordinances.

The declaration set up an ordinance of March 26, 1890, which purported to fix the speed at which railroads might operate their trains within the city. The third section provided:

“Every person, firm, company or corporation owning, leasing or operating a steam railroad within the corporate limits of the City of Chicago, shall, within such time as may be prescribed by the mayor and commissioner of public works, construct, or cause to be constructed on each side of its tracks, and in such place with reference thereto as the mayor and commissioner of public works shall approve or direct, except where public streets shall intersect or cross the same, substantial walls or fences of such material, design, proportion and height as shall be determined and approved by the mayor and commissioner of public works.”

It also set up an ordinance of 1905 by which said ordinance of 1890 was repealed and substantially reenacted. They differed in that the one of 1890 provided for fencing at a time and at places (with reference to the tracks) to be directed by the mayor and commissioner of public works; that of 1905 at time and places to be directed by the city council. An ordinance of 1911, identical with that of 1905, was admitted in evidence over the objection of defendants, although not pleaded. It was enacted as a part of a general revision of the city ordinances which expressly repealed all ordinances not contained therein.

The admission of these ordinances in evidence is urged as error. It is claimed that the one of 1890 was repealed by that of 1905; that of 1905 by the ordinance of 1911, while that of 1911 was inadmissible because not pleaded. Appellants also argue against the ordinances of 1905 and 1911 that there was no proof in the record that the city council took any action directing the time or places where fences should be constructed, and this it is claimed was a condition precedent to liability thereunder.

The several ordinances are not inconsistent with each other. The subject-matter thereof is the same. Neither appears to be a substitute for any other so as to operate as a repeal of it in the absence of an express provision therefor, as was the case in State Public Utilities Commission v. Cleveland, C., C. & St. L. Ry. Co., 283 Ill. 374, which is cited by appellants. We think the change from mayor and commissioner of public works to the council itself as the agency to supervise the time and places of construction must be regarded in the nature of an amendment to the original ordinance: The record shows that since its first enactment in 1890, the ordinance in question has been continually in force and substantially in the same form in which it first existed. In each instance there-enactment of the ordinance was simultaneous with the enactment of the provision for its repeal. “Where a statute is expressly repealed but a portion or all of it is re-enacted in the repealing statute, the re-enactment neutralizes the repeal so far as the provisions of the old law obtain in the new one, and as to the portions unchanged in form or substance the repealing act is a mere continuation of the original act.” People v. Cairo, V. & C. Ry. Co., 265 Ill. 637; Merlo v. Johnston City & B. M. Coal & Mining Co., 258 Ill. 332; White Sewing Machine Co. v. Harris, 252 Ill. 366; Bear Lake & R. Waterworks & Irrigation Co. v. Garland, 164 U. S. 11.

As to the objection that action by the council was a condition precedent to liability under the ordinances of 1905 and 1911, we do not think it was, but at any rate there is proof in the record as to all defendants from which, we think, the jury were justified in finding that the mayor and commissioner of public works, shortly after the original enactment thereof, March 26, 1890, prescribed the time and manner within which defendants should comply with the ordinance, and that defendants accepted the same.

We are further of the opinion that the status of the defendants under said ordinance was thereby fixed and that the status was not changed by the subsequent repeal and simultaneous re-enactment of the ordinance. At that time inchoate statutory rights had accrued under the ordinance as it was originally passed, and these rights were not to be defeated by the subsequent amendatory ordinance. State v. Kates, 149 Ind. 46, 48. When the status was fixed by the acceptance of the ordinance, an inchoate right arose in favor of all those who might be injured by failure of the defendants to comply with its provisions. There is nothing in the ordinance of 1905 to indicate an intention on the part of the council to change any duty which had been fixed under the prior ordinance.

We think the language used in Re Prime’s, Estate, 136 N. Y. 355, is appropriate here:

“Where the amended act re-enacts provisions in the former law, either ipsissimis verbis or by the use of equivalent, though different words, the law will be regarded as having been continuous, and the new enactment as to such parts will not operate as a repeal so as to affect a duty accrued under the prior law, although as to all new transactions the later law will be referred to as the ground of obligation.”

We think, too, the court did not err in receiving in evidence the ordinance of 1911, although it was not pleaded, it being substantially the same as the pleaded ordinance. Hamilton v. Titus, 185 Fed. 142; Knoup v. Piqua Branch of State Bank of Ohio, 1 Ohio St. 607.

The Western Indiana Company contends that the evidence as to its acceptance of the ordinance is insufficient, and in this connection urges that the court erroneously admitted certain records kept in the office of the commissioner of public works of the City of Chicago. These records were letter-press copies of purported communications to defendants directing compliance with the ordinance. They were produced by an employee in that department of the city who testified that he was the custodian of them, and also to facts showing that the same were kept in the discharge of a public duty. While the weight of this evidence was for the jury, we think under the rule laid down in Village of Evanston v. Gunn, 99 U. S. 666, and Wheeler v. Sanitary District, 270 Ill. 470, it was admissible, and, taken in connection with other evidence, was sufficient to prove prima facie acceptance of the ordinance. No evidence to the contrary was offered.

There is little contradiction as to circumstances under which the accident in question happened. It occurred April 15, 1915, about 7:40 a. m. Appellee was then 14 years and 10 months of age. He lived at 9721 Houston avenue, a public street in the City of Chicago, extending north and south. This street was intersected by 97th street, which extended east and west. As 97th street approached the tracks of the defendant companies, it stopped a few hundred feet west of them. One block east of 97th street was Baltimore avenue, which extended north and south and at which 97th street ended. Walking east on 97th street one would first reach the two tracks of the Pennsylvania Company, and further east of these the three tracks of the Western Indiana Company. There was a space of about 6 feet between their tracks, which at this place paralleled each other, running in a general northerly and southerly direction. Beyond the tracks farther to the east was a chicken farm to which plaintiff was going on an errand for his mother. While 97th street was never extended eastward across the railroad tracks by public authority, it appears that for a period of 30 years the public had crossed the tracks in the line of 97th street so much as to make a beaten path, and there was nothing to indicate where the public street ended and the private right of way of the railroad companies began.

The plaintiff had lived at his then home for 2 years. He was familiar with the neightborhood and the location of the tracks. He had been accustomed to cross the railroad tracks at his pleasure. On this particular occasion as he walked towards Baltimore avenue he saw a freight train on the first or most westerly track of the Chicago & Western Indiana Company. The train was moving towards the south. He walked eastward towards it on the line of 97th street and crossed over both tracks of the Pittsburgh, Fort Wayne & Chicago Railway Company. He stood between the Pittsburgh, Fort Wayne & Chicago Railway Company’s tracks a little more than 2 feet from the moving train, waiting for it to pass. As he did so he faced south in the direction the train was moving.. While thus standing he was struck on the back of the head by some instrument projecting from one of the moving cars and thrown forward. His left arm was cut by the car wheels of the moving train which passed over him. He jumped up and ran home; was taken to the hospital and his left arm was amputated within a short distance from his shoulder. When about 8 years of age he had lost his right arm in a street car accident under circumstances .which the record does not disclose. He was in the seventh grade at school and there is nothing in the record to indicate that in intelligence, capacity, experience, etc., he was other than the normal boy of his age.

We think, as appellants contend, that he was sui juris within the meaning of that term as used by the courts. It is conceded that the ordinance is intended to protect human beings as well as dumb animals under the rule laid down in Heiting v. Chicago, R. I. & P. Ry. Co., 252 Ill. 466, but appellants contend that its application is limited to human beings who are non sui juris and that the plaintiff, therefore, cannot maintain his suit. There is nothing in the language of the ordinance itself to indicate such limitation. The specifications for the prescribed fences do not indicate that the construction contended for was in contemplation. These were to be “in no case less than 7 feet high from the surface of the ground.” Such fences seem well fitted to protect adults as well, or even better, than younger persons, and at any rate would serve tile purposes of notice and warning to everybody.

The ordinance in question has been construed by our Supreme and Appellate Courts in Heiting v. Chicago, R. I. & P. Ry. Co., supra, and 162 Ill. App. 403. These cases are cited by both appellants and appellee. The plaintiff who there sued was a boy over 10 years of age. There is nothing in the opinion of either court to indicate whether he was considered sui juris or non sui juris. Neither is there language in the opinion of either court which would limit the application of the ordinance in the way appellants contend. The Supreme Court there said:

“The age of the child injured is, of course, one of the circumstances to be considered by the jury in determining the question of proximate cause.”

The authority relied on in the Heiting case, supra, was Baltimore & P. R. Co. v. Cumberland,. 176 U. S. 232, and that was a case in which the plaintiff was apparently considered by the reviewing court to be non sui juris, although the case below was tried upon the theory that he was sui juris. 12 App. Cas. (D. C.) 598.

While most of the cases arising under such ordinances are brought by persons who have not yet reached the age of responsibility, we have found no decision in which the courts have held that the protection of similar ordinances and statutes is limited to such persons. On the contrary, in the case of Union Pac. Ry. Co. v. McDonald, 152 U. S. 262, which was a suit upon a statute requiring the fencing of privately owned slack pits (the suit being brought by a boy of 12 years of age who was ordinarily intelligent and therefore sui juris), the plaintiff was held to be within the proteotion of the statute. The contention of appellants on this point is not sustained.

It is further the contention of appellants that plaintiff cannot recover because he was on their right of way as a trespasser or licensee, and in either case the only duty which the defendant companies owed to him was that they should not wantonly or wilfully injure him. That such is the general rule of law there can be no question. McGuire v. Chicago & E. I. R. Co., 120 Ill. App. 111; Wabash R. Co. v. Jones, 163 Ill. 167; Illinois Cent. R. Co. v. Eicher, 202 Ill. 560.

Appellee admits the general rule, but contends that under the facts here the plaintiff was not a trespasser, relying on Heiting v. Chicago, R. I. & P. Ry. Co., supra. In that case the court apparently followed the authority of Baltimore & P. R. Co. v. Cumberland, supra. It is claimed, however, that the last-named case is distinguishable from the Heiting case, supra, as well as the instant one, in that the track crossed by plaintiff at the time of his injury was laid in a public street over which the plaintiff had a right to pass and in which he would, therefore, not be a trespasser. The point seems well taken. Appellee contends, however, that the general rule does not apply where the plaintiff sues, as here, on an ordinance passed for the protection of persons, for the reason that the practical effect of so holding would be to nullify the ordinance. The principle contended for has, we think, been recognized by our Supreme Court in cases analogous to the instant case. In Streeter v. Western Wheeled Scraper Co., 254 Ill. 244 [1 N. C. C. A. 828], the plaintiff sued on a statute which required the employer to guard dangerous machinery, and it would seem that under the evidence the common-law defense of assumed risk would apply. It was held, however, that the application of the rule would, in effect, nullify the statute and it, therefore, would not be applied. The court said: “If the employee must assume the risk of the employer’s violation of the statute, the act is a delusion so far as the protection of the former is concerned.” In Union Pac. Ry. Co. v. McDonald, supra, the defendant was held liable, although the plaintiff was admittedly a technical trespasser, the court holding that the usual trespasser rule could not be applied. It is clear that the application of the general trespasser rule would render the ordinance here sued on a practical nullity and entirely defeat its purpose. In view of the authorities above cited; and the holding of the Supreme Court in the Ileiting case, supra, we think the contention of appellants cannot be sustained, and that not only was there no error in the action of the trial court in refusing to direct a verdict for defendant on the theory plaintiff was a trespasser, but also that the trial court properly refused to give instructions asked for by the defendant to the effect that, if plaintiff was a trespasser, he could not recover.

Appellant, Chicago & Western Indiana Bailroad Company, argues that the evidence failed to show that plaintiff was in the exercise of due care at the time he was injured, and asks us to hold as a matter of law, or, if we may not do this, that we shall find as a fact that the plaintiff was guilty of contributory negligence which bars his recovery. The question of contributory negligence even as to adults is ordinarily one of fact for the jury, and only when the undisputed evidence shows that the injury resulted from negligence of the injured party can it be held to be a matter of law. Chicago & J. Elec. Ry. Co. v. Wanic, 230 Ill. 530. As to a child sui juris, the standard of care varies with the age, capacity and experience, etc., and it is usually, if not always, a question for the jury. Siegel, Cooper & Co. v. Trcka, 218 Ill. 559. In traveling the beaten path in which plaintiff walked just prior to his injury, he seems to have been doing the same thing as many others, even adults, were accustomed to do. There was nothing to indicate to him just where the public way ended and the private right of way began. He stood a little more than 2 feet from the moving train. On this point the ultimate question is, was it under all the circumstances contributory negligence in law or fact for a youth of plaintiff’s age, discretion and experience to so stand. We do not think plaintiff was bound to anticipate that an iron bar would be permitted to protrude from the moving car. There was no proof the railroad company itself was negligent in this respect. It was, however, an unusual circumstance. He was not bound to anticipate that another would be negligent, or that the extraordinary and unusual would occur. St. Louis S. W. Ry. Co. of Texas v. Wilcox, 57 Tex. Civ. App. 3; Lake Shore & M. S. Ry. Co. v. Enright, 227 Ill. 409; Henry v. Cleveland, C., C. & St. L. Ry. Co., 236 Ill. 219; New York, C. & St. L. Ry. Co. v. Mushrush, 11 Ind. App. 192. Under all the circumstances which appear in evidence, the question of due care on the part of the plaintiff must be considered as settled by the verdict of the jury.

Appellants next contend that the negligence proved was not the proximate cause of plaintiff’s injury. Their argument is that conceding the failure to fence was negligence, this negligence did nothing more than furnish a condition by which the injury was made possible; that the injury to plaintiff came about as a direct and immediate consequence of his being struck by an iron bar projecting from the side of a belt-line freight train over which defendants had no control; that but for this the accident would not have occurred; that there is no causal connection between the neglect to fence and the blow which struck plaintiff; that the blow from the projecting iron was a subsequent intervening and independent act of a third person which directly caused the injury, and that the law will, therefore, refer the damage to the last or proximate cause and refuse to refer it to the more remote one. In support of their contentions, appellants cite Seith v. Commonwealth Elec. Co., 241 Ill. 252; Cooley on Torts (3rd Ed.), 99; Hartnett v. Boston Store of Chicago, 185 Ill. App. 332, and many similar cases, including the Heiting cases, supra, which they urge sustain their contention.

In the Heiting case the Supreme Court said:

“If it can reasonably be concluded from the evidence that the accident would not probably have happened except for the failure of the appellant to fenoe its track, then it follows that the neglect to fence was the proximate cause of the accident, unless some other disconnected, efficient cause which could not have been foreseen by the exercise of ordinary care has intervened.”

In this connection it quotes with approval the language of the Supreme Court in Hayes v. Michigan Cent. R. Co., 111 U. S. 228:

“It is further argued that the direction of-the court below was right, because the want of a fence could! not reasonably be alleged as the cause of the injury. In the sense of an efficient cause, causa carnans, this is no doubt strictly true, but that is not the sense in which the law uses the term in this connection. The question is was it causa sine qua non,—a cause which, it it had not existed, the injury would not have taken place, an occasional cause, and that is a question of fact, unless the causal connection is evidently not proximate.”

It must be remembered that whether or not a particular negligence is the proximate cause of a subsequent injury, it is a question of fact for the jury. As said in Illinois Cent. R. Co. v. Siler, 229 Ill. 390:

“What is the proximate cause of an injury is ordinarily a question of fact, to be determined by the jury from a consideration of all the attending circumstances. Fent v. Toledo, P. & W. Ry. Co., 59 Ill. 349; Pullman Palace Car Co. v. Laack, 143 Ill. 242; West Chicago St. R. Co. v. Feldstein, 169 Ill. 139. It can only arise as a question of law or pleading when the facts are not only undisputed, but are also such that there can be no difference, in the judgment of reasonable men, as to the inferences to be drawn from them.’’

We think the Heiting case, supra, must be considered as conclusive against the contention of appellants unless it can be said that the fact that after plaintiff went upon defendant’s right of way he was struck by the projecting iron, was an “other disconnected, efficient cause which could not have been foreseen by the exercise of ordinary care” which intervened. In that alone, if at all, is this case distinguishable on this point from the Eeiting case. It was argued there that plaintiff’s selection of the ends of the railroad ties near the moving train as a place to run on was such an intervening cause, but the court held otherwise. Here the instrument projecting from the car was without doubt an efficient cause of plaintiff’s injury. It was not, however, disconnected from the negligent violation of the ordinances by defendants. On the contrary, the condition caused by said negligence continued up to the time the bar struck plaintiff, and operating in conjunction with it was a proximate cause of the resulting injury. Where negligence of a defendant causes a condition which continues up to the time of the accident and operating with other causes brings it about, it is a proximate cause thereof if the defendant in the exercise of reasonable care could have foreseen that some such injury would probably result from his negligence.

In Siegel, Cooper & Co. v. Trcka, supra, plaintiff alleged the negligent construction of a passenger elevator in a department store whereby he was injured. It appeared that the injury occurred as the direct result of Ms being thrown in a playful scuffle by a fellow employee. The court said:

“It is first contended that appellant is not liable in tMs action because the proximate cause of the injury was the negligent act of the boy who threw appellee upon the floor of the elevator. If, however, appellant was guilty of the negligence charged in the declaration and without which the injury in question would not have occurred, then it would make no difference, as to its liability, that some act or agency of some other person or thing also contributed to bring about the result for which damages are claimed. Both or either of the contributing agencies were liable for the injury occasioned by their negligence, appellee being without fault and not held to have assumed the risk involved in the improper construction.”

In Waschow v. Kelly Coal Co., 245 Ill. 516, the Supreme Court says:

“When an injury proceeds from two causes operating together, the party putting in motion one of them is liable the same as though it was the sole cause. (Bishop on Non-Contract Law, secs. 39,450.) The negligent act or omission must be one of the essential causes producing the injury but need not be the sole cause nor the last or nearest cause.”

In Pullman Palace Car Co. v. Laack, 143 Ill. 242, the court expressed the opinion that:

“It is well settled that where the injury is the result of the negligence of the defendant and that of a third person; or of the defendant, and an inevitable accident; or an inammate thing has contributed with the negligence of the defendant to cause the injury, the plaintiff may recover, if the negligence of the defendant was an efficient cause of the injury.”

In Elgin, A. & S. Traction Co. v. Wilson, 217 Ill. 47, the failure to lock a switch by an employee of the railroad company was set up as negligence against him. TMs was proved, but it also appeared that the collision of the trains which occurred was directly caused by some mischievous boys who threw the switch. The railroad company was nevertheless held liable.

In American Exp. Co. v. Risley, 179 Ill. 295, the Supreme Court said with reference to the injury there sued for:

“It would seem clear, however, that the injury was caused by the concurrence of three facts, the first being the chute placed in the manner shown; second, the coal car on the sidetrack; and third, the movement of the train. Certain it is, the careless handling and placing of the chute caused a condition which continued up to the time of the accident and contributed thereto. That other causes co-operated does not absolve the defendant for its careless or negligent act.”

See also Annen v. W. F. McLaughlin & Co., 189 Ill. App. 261; Illinois Cent. R. Co. v. Siler, 229 Ill. 390; Commonwealth Elec. Co. v. Rose, 214 Ill. 545. We think the jury could reasonably find that the neglect to fence was the cause of plaintiff’s injury, and that defendants could have foreseen some such injury would probably occur as a result of the negligence proved. The violation of the ordinance was prima facie negligence.

In this connection appellant, Chicago & Western Indiana Railroad Company, has urged as error the refusal of the court to give at its request instructions numbers 24 and 31 which in effect asked the court to instruct the jury that if they found the proximate cause of the injury was the failure of the other defendants to erect and maintain a fence on the west side of their tracks, there could be no recovery against the Chicago & Western Indiana Railroad Company. These instructions were evidently offered upon the theory that as plaintiff walked from the west towards the east he would first reach the tracks of the Pennsylvania lines, and that the cause of his injury was the absence of the fence west of the Pennsylvania tracks, and that if this was the first and proximate cause of the subsequent injury, there could be no liability on the part of the Western Indiana for its failure to fence. These instructions proceed on the theory that there can be only one proximate cause for an injury. Within the meaning of the law this is not true. There may be several such causes. Waschow v. Kelly Coal Co., supra. It has been held in this and other States that where by statute the fencing of railroad tracks is required, and the tracks of two or more companies run parallel and close together, the duty is absolute as to each or all of such companies to fence their respective tracks. Illinois Cent. R. Co. v. Davidson, 225 Ill. 618; Shepard v. Buffalo, N. Y. & E. R. Co., 35 N. Y. 641; Gillam v. Sioux City & St. P. Ry. Co., 26 Minn. 268. This seems to be true even though the tracks of the respective companies are so dose that the erection of fences by each might be unnecessary, impractical or even dangerous. Kelver v. New York, C. & St. L. R. Co., 126 N. Y. 365, 27 N. E. 553.

What we have already said disposes of the objections of appellants to the rulings of the court upon giving and refusing instructions. The case was properly submitted to the jury under instructions which fully and accurately stated the law applicable to the case, and while the verdict is high, we do not regard it as excessive to an extent which would indicate passion or prejudice on the part of the jury.

The judgment will therefore be affirmed.

Affirmed,.


source: Caselaw Access Project

author: Mr. Justice Matohett

license: Public Domain

text:
    Elgin, Joliet & Eastern Railway Company, Appellant, v. Rockwell Lime Company, Appellee.
    Gen. No. 24,001.
    1. Commerce, § 5

      —what is effect of Interstate Commerce Act. The Interstate Commerce Act has superseded all State laws and regulations upon the same subject.
    2. Carriers—what law governs recovery by interstate carrier of demurrage and other charges against consignee. The law applicable to an action by a carrier of interstate commerce against a consignee to recover demurrage, switching charges and customs fees, alleged to be due on goods transported in interstate commerce, is to he found in the Interstate Commerce Act and the decisions of the federal courts construing it.
    3. Carriers, § 201a

      —when consignee grima facie liable for charges. The consignee of freight is presumptively the owner and prima facie liable for transportation charges thereon, and by accepting the shipment agrees, prima facie, to pay all lawful charges.
    4. Carriers, § 201a

      —when consignee not relieved from liability for freight charges. That the consignee of an interstate shipment had paid the bill rendered for transportation charges and deducted such amount from the purchase price due the consignor, who thereafter went out of business, does not relieve the consignee from liability to the carrier for a balance found to he due on such charges under the proper and legal tariffs in force at the time of the carriage.
    Appeal from the Municipal Court of Chicago; the Hon. Leo J. Doyle, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Reversed and judgment here with finding of facts.
    Opinion filed December 24, 1918.
    Knapp & Campbell, for appellant; Denis H. Grady, of counsel.
    No appearance: for appellee.

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

   Mr. Justice Matohett

delivered the opinion of the court.

The plaintiff in this case sued in the Municipal Court of Chicago for a balance alleged to be due it for freight demurrage, switching charges and custom fees on a shipment of wooden laths from Enderby, British Columbia to South Chicago. The facts are stipulated. It is agreed that the plaintiff and transportation companies named are common carriers engaged in interstate commerce, and are subject to the provisions of the act to regulate commerce and acts amendatory thereof and supplementary thereto; that the plaintiff is subject to the rules of the Interstate Commerce Commission and the Public Utilities Commission of the State of Illinois; that the shipment on which transportation charges accrued was shipped from Enderby, British Columbia, about August 10, 1914, by the Alliance Lumber Company; that the original consignee was F. W. Duttweiler Company, Joliet, Illinois; that the shipment was reconsigned to John Brennan & Company, Chicago, Illinois; that the authority for such reconsignment is the Elgin, Joliet & Eastern Bailway Company; that the lath was sold by John Brennan & Company to the Boekwell Lime Company f. o. b. cars private tracks of the Boekwell Lime Company, September 21, 1914; that John Brennan & Company reeonsigned the car to the Boekwell Lime Company; that the Elgin, Joliet & Eastern Railway Company, through its agent at South Chicago, Illinois, presented a bill for $224.32 for transportation charges to John Brennan & Company, who referred it to the Boekwell Lime Company, by whom it was paid October 9, 1914, to plaintiff, and the Boekwell Lime Company deducted the amount paid for the transportation charges from the purchase price of the lumber. After so collecting, plaintiff’s agent discovered he made an error in stating the charges and claimed the balance due. In the meantime, the Alliance Lumber Company went out of business and it was no longer possible to recover from it the balanee claimed. The proper and legal charge, according to the proper and legal tariffs then in force, was $55.03 more than the amount collected, and it. is agreed that, if anything is due, said $55.03 is the correct amount. The hill for unpaid charges was presented to defendant by plaintiff in November, 1916. It refused to pay.

The case was tried by the court without a jury. The finding was for the defendant upon the stipulated facts and judgment entered thereon. The law applicable to this case must be found in the Interstate Commerce Act and the decisions of the United States courts construing it. That legislation has superseded all State laws and regulations upon the same subject. Gamble-Robinson Commission Co. v. Union Pac. R. Co., 262 Ill. 400. We regret appellee has not seen fit to appear or file any brief in support of the judgment entered. The authorities cited by appellant indicate that the law on the subject is well settled. The consignee is presumptively the owner of the goods and prima facie liable for the payment of transportation charges thereon. The ordinary contract of the carrier is to deliver the goods to the consignee, or his assigns “he or they paying freight,” and whoever accepts the goods under such circumstances is liable for the charges. Hutchinson on Carriers (3rd Ed.), secs. 807, 808. It seems that by accepting the shipment the consignee, prima fade at least, agrees to pay all lawful charges.

In Union Pac. R. Co. v. American Smelting & Refining Co., 202 Fed. 720, the court said:

“The reason for this rule is that the consignee accepts the goods with knowledge that the carrier looks to him for payment of the transportation charges and waives his lien for them by delivery in reliance upon the consignee’s implied promise, evidenced' by his ac-. ceptance of the goods, that he will pay the charges. But this reason exists in all its force, in the absence of a bill of lading, wherever the consignee accepts the goods knowing that the carrier looks to him for payment, waives his lien and delivers the goods in the faith that he will pay the charges.”

In Frontier S. S. Co. v. Central Coal Co., 234 Fed. 30, the court quotes the rule laid down in Hatch v. Tucker, Swan & Co., 12 R. I. 501:

“The weight of authority, therefore, seems to be that where there is a bill of lading, and the acceptance by the consignee is proven and unexplained, the law will imply a promise to pay freight.”

The evidence in that ease was held sufficient to rebut the prima facie case made by proof of the acceptance of the goods by the consignee. It was held that the facts showed that the goods were released without any intention of holding the consignee for the freight charges. We find no facts in the stipulation upon which the instant case was tried which would rebut the presumption that by accepting the goods the defendant agreed to pay the transportation charges. In the absence of such evidence, appellee was liable- and the extent of its liability must be as set forth in Louisville & N. R. Co. v. Maxwell, 237 U. S. 94:

“Under the Interstate Commerce Act, the rate of the carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext. Shippers and travelers are charged with notice of it, and they as well as the carrier must abide by it, unless it is found by the commission to be unreasonable. Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed. This rule is undeniably strict, and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by Congress in the regulation of interstate commerce in order to prevent unjust discrimination.”

Alabama Great Southern R. Co. v. George H. McFadden & Bros., 232 Fed. 1000; Pennsylvania R. Co. v. Titus, 78 N. Y. Misc. 347, 138 N. Y. Supp. 325. It has even been held that the failure to post or the quotation of an erroneous rate by the agent of the car-tier will not permit deviation from this rule. Illinois Cent. R. Co. v. Henderson Elevator Co., 226 U. S. 441.

The court erred in finding for the defendant and entering judgment thereon. It should have found for the plaintiff and entered judgment for the stipulated amount. This will be done here.

Reversed with judgment here with finding of facts. Finding of facts. We find as facts that the defendant, Rockwell Lime Company, a corporation, was the consignee of the goods described in the statement of facts herein; that said goods moved in interstate commerce; that on the 9th of October, appellee, as con-

signee, paid freight charges thereon amounting to the sum of $224.32; that the lawful rates and charges as prescribed by the Interstate Commerce Commission at that time were $279.35; that there is a balance due from appellee to appellant on account of said charges of $55.03.


author: Mr. Presiding Justice O’Connor

text:
    Charles A. Belke, Appellee, v. B. F. Bush, Receiver, and Wabash Railway Company, Appellants.
    Gen. No. 24,108.
    1. Appeal and erbob, § 469

      —when entering rule to answer interrogatories not preserved for review. A judgment for plaintiff will not be reversed for the entering of a rule on defendant to answer certain interrogatories filed by plaintiff where the answers to the interrogatories are not in the record on appeal and it does not appear that they were brought to the trial court’s attention.
    2. Municipal Couet op Chicago, § 13

      —when error in denial of motion to strike statement of claim waived. Error in denying a motion to strike a statement of claim from the files is waived on appeal where defendant failed to stand by his motion and subsequently filed an affidavit of merits on which the case was tried.

      3. Trial, ' § 304

      —When refusal of propositions of law improper. Even though, after plaintiff has concluded his evidence, defendant has declined to introduce any evidence and the court has stated, “Judgment for the plaintiff,” it is not proper practice for the court to deny the request of defendant, thereupon made, to he allowed to submit propositions of law.
    4. Receivebs, § 46

      —what is proper form of judgment against. In a judgment against a receiver no execution can be awarded, but the judgment should be made payable out of the funds in the receiver’s hands in the due course of administration.
    5. Judgment, § 190

      —when against only one defendant improper. In a suit against two defendants, judgment cannot properly be entered against one without disposing of the case as to the other.
    6. Receivebs, § 46

      —when judgment against receiver and corporation in same suit improper. A judgment cannot be entered against a receiver and a corporation in the same suit, as the judgment against the receiver is that it be paid in due course of administration, while the judgment against the corporation should award execution.
    7. Judgment, § 190

      —necessity of running against all parties alike. A judgment in an action at law is a unit and must run against all alike.
    8. Appeal and ebbob, § 1661

      —when error in rendering judgment against corporation and receiver not cured. Error in rendering judgment and awarding an execution against a receiver and a corporation will not be cured on appeal by reversing the judgment and entering judgment against the corporation, nor by reversing and remanding with direction to the trial court to do so, even though the record discloses that plaintiff has a valid claim against the corporation.
    Appeal from the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Reversed and remanded.
    Opinion filed December 31, 1918.
    John Gibson Hale, for appellants.
    Pomeroy & Martin, for appellee.

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

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Charles A. Belke Brought suit against B. F. Bush, as receiver of the St. Louis, Iron Mountain & Southern Bailway Company, and the Wabash Bailway Company, to recover the value of two carloads of coal. The case was tried before the court without a jury; there was a finding and judgment in favor of plaintiff for the amount of Ms claim, $430.06, to reverse wMch defendants prosecute tMs appeal.

The evidence tends to show that the St. Louis-Carterville Coal Company shipped two carloads of coal from Herrin, Illinois, to the East Coal Company at CMcago, over the defendants ’ railroads, and wMle the cars were in transit plaintiff purchased the coal and the cars were recpnsigned to Mm. The coal was not delivered to plaintiff nor to any one at Ms request, but apparently through some mistake it was delivered to other parties, so that it was entirely lost to plaintiff.

The defendants’ first point is that the court erred in entering a rule on them to answer certain interrogatories filed by plaintiff. The answers to the interrogatories are not in the record, and it does not appear that they were brought to the attention of the trial court. Furthermore, the questions seem to be entirely proper.

The next point is that the court erred in denying defendants’ motion to strike plaintiff’s amended statement of claim from the files. This point is not before us, as it has been waived, the defendants having failed to stand by their motion, but subsequently filed an affidavit of merits on wMch the case was tried.

It is further argued that the court committed error in denying the defendants’ motion for a continuance. It would serve no useful puipose for us to pass on this-point, since the judgment must be reversed for another reason and a new trial had. This is also true of the point made upon the rulings of the court on the admission of evidence.

Complaint is also made of the refusal of the court to pass upon propositions of law submitted by the defendants at the close of the evidence. The record discloses that when plaintiff concluded his evidence, the court asked the defendants if they wished to introduce any evidence, and upon counsel’s replying in the negative, the court said: “Judgment for the plaintiff.” Thereupon counsel stated he would like to submit certain propositions of law. The court replied: “You are too late; judgment has been entered.” The court then computed the amount due and entered judgment. We think the court should have permitted the propositions of law to be submitted and should have passed upon them. We are not at all in favor of the idea that the trial judge should endeavor to have the record in such condition that it cannot be reviewed by an Appellate tribunal, but on the contrary we think the policy of the law should be to permit such review, unless the party submitting slept on his rights, which we do not believe was the fact in the instant case. We do not hold that any of these propositions of law should have been held, nor would we reverse the judgment for this error, but since there must be a retrial, what we say may be of some assistance to the trial judge.

The judgment in this ease runs against both the defendants and awards execution. In a judgment against a receiver no execution can be awarded, but the judgment should be made payable out of the funds in the hands of the receiver in due course of administration. McNulta v. Ensch, 134 Ill. 46. Counsel for plaintiff admit this to be the law, but say that since the record discloses that plaintiff has a valid claim against the Wabash Railway Company, we should reverse the judgment and enter judgment here against that company, or reverse and remand the case with directions to the trial court to do so. Since this suit is against two parties, judgment cannot properly be entered against one without disposing of the suit as to the other. Umlauf v. Chacamas Tropical Products Co., 209 Ill. App. 291. Moreover, a judgment cannot be entered against a receiver and another corporation in the same suit, for the judgment against the receiver is that it be paid in due course of adminstration, while the judgment against the other party should award execution. A judgment in an action at law is a unit and must run against all alike. Eckels v. Henning, 139 Ill. App. 660.

For the error in the judgment, which is one of substance, the judgment of the Municipal Court of Chicago is reversed and the cause remanded.

Reversed amd remcmded.


author: Mr. Justice Taylor

text:
    Francis Goetz, Appellee, v. Richard J. McCormick, on appeal of John A. McCormick, Individually and as Executor, Appellant.
    Gen. No. 24,036.
    1. Appeal and error, § 269

      —what is test in determining whether judgment is final. In determining whether or not a judgment is a “final” judgment from which appeal will lie to the Appellate Court, the test is not in the words employed in the judgment, but in its substance and intention.
    2. Appeal and error, § 269

      —when judgment is final. If the substance of the litigation and merits of the controversy have been finally adjudicated, the judgment therein is final so that appeal will lie therefrom.
    3. Appeal and error—m>M# is a final order in garnishment proceedings. An order of a trial court which finds that the plaintiff is entitled to recover a certain amount and costs from one garnisheed as executor, but that no execution shall issue and the judgment shall not “be or be made final until after the entry of an order of distribution or for payment of said legacy” to the defendant by the Probate Court, and that upon the entry of an order by such court for the payment of the legacy to defendant, the judgment shall, by a supplemental order in the cause, be made final and thereupon execution shall issue against defendant, is a final order from which appeal will lie to the Appellate Court.
    4. Garnishment, § 24

      —when binding and, valid, assignment of legacy to garnishee shown. On garnishment against one individually and as executor, wherein the garnishee claimed that he was a bona fide assignee of defendant’s legacy, uncontradicted evidence that the garnishee had advanced money to defendant to the amount claimed by him and promissory notes by defendant and memoranda by garnishee to a like effect and a signed and sealed assignment of the legacy by defendant to the garnishee, all of which were placed in evidence, held, to show a binding and valid assignment of the legacy to the garnishee.
    5. Garnishment. § 1

      —nonretroactive effect of Act of 1915. The Garnishment Act, effective July 1, 1915 (Callaghan’s 1916 St. Supp. f 5936), has not a retroactive effect.
    Appeal from the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Reversed and remanded.
    Opinion filed December 31, 1918.
    Thomas F. Burke and Boy 0. Merrick, for appellant.
    Vincent D. Wyman, Harry C. Kinne and Charles E. Carpenter, for appellee.

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

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

   Mr. Justice Taylor

delivered the opinion of the court.

This appeal is from a judgment which it is claimed by the appellee is interlocutory and not final.

The plaintiff, Francis Groetz, brought suit in the Municipal Court in attachment against Bichard J. McCormick and garnisheed John A. McCormick, individually, and as executor of the will of Margaret McCormick, deceased. The plaintiff in his statment of claim alleged that he had advanced moneys to one Helen McCormick, the wife of Richard J. McCormick, for the support of herself and her minor child, amounting in the aggregate to $1,104.33. Richard J. McCormick was served by publication only, and his default subsequently entered. John A. McCormick, individually, and as executor of the will of Margaret McCormick, deceased, was served as garnishee and filed an answer denying that he had, in either capacity, any property or effects belonging to Richard J. McCormick, and setting up also that Richard J. McCormick had assigned to him, in his individual capacity, all his interests in the estate of the said Margaret McCormick. At the trial the plaintiff put in evidence as to various items of his claim and introduced the will of Margaret McCormick, who was the mother of Richard J. McCormick and John A. McCormick. According to the will the testatrix bequeathed $1,000. to Richard J. McCormick, which was one of a number of legacies aggregating in all $29,000, which were made to her nine children. The will further provided that, in case the property of her estate should be sold for more than $29,000, Richard J. McCormick should receive a one twenty-eighth part of all the proceeds in excess of $29,000. The evidence showed that the executor had sold property belonging to the estate to a total amount of $49,705.16, and that there remained unsold sixteen lots, the market value of which lots, according to the various judgments of the witnesses, was from $85,000 to $319,000.

John A. McCormick, garnishee (appellant), offered in evidence a written assignment from Richard J. McCormick to himself, individually, which assignment was dated August 12,1913, and recited the assignment and transfer to him of all the interest of Richard J. McCormick in his legacy, under the will of Margaret McCormick. The garnishee put in evidence undertaking to prove that the consideration for the assignment was the loan or advance of various sums of money, aggregating over $2,000 by Mm to Bichard J. McCormick, and no evidence to the contrary was introduced. The original written assignment was filed neither with the clerk of the Probate Court nor the county clerk.

The finding of the trial court was: (1) That the plaintiff, Francis Goetz, was entitled to a judgment against the defendant in the sum of $901.75 and costs of suit; (2) that the garmshee, John A. McCormick, is the executor of the last will and testament of Margaret McCormick, deceased; (3) that the defendant, Bichard J. McCormick, was one of the legatees thereunder; (4) that the garmshee, John A. McCormick, possessed and holds as such executor moneys and properties belonging to the estate' of said Margaret McCormick, deceased; (5) that the defendant, Bichard J. McCormick, has an interest therein and is entitled to a one twenty-Mnth part thereof; (6) that bis- share therein would exceed the sum of $1,800; (7) that that amount is not yet due and will become due and payable to Bichard J. McCormick, defendant, as one of the beneficiaries under the last will and testament of Margaret McCormick, deceased, on the entry of an order of distribution in the estate of Margaret McCormick, deceased, pending and undisposed of in the Probate Court of Cook county.

The order of the trial court was: (1) That the defendant, Bichard J. McCormick, recover from the said garnishee, John A. McCormick, executor, the sum of $1,800, together with the costs; (2) that the recovery be for the use of the said Francis Goetz as to the sum of $902.22, being the amount of the original judgment with costs—said judgment and costs being first satisfied out of any moneys to be paid or collected under the judgment—“the residue to be paid and collected” for the use of the defendant, Bichard J. McCormick; (3) that no execution shall issue herein against said garmshee “nor shall tMs judgment be or be made final until after the entry of an order of distribution or for payment of said legacy to said Richard J. McCormick by the Probate Court of said Cook County, and that upon the entry of an order by said Probate Court for payment of said legacy to said Richard J. McCormick this judgment shall, by supplemental order herein, be made final, and thereupon execution shall issue against said defendant, John A. McCormick.”

As this court exercises Appellate jurisdiction (with certain statutory exceptions) only in matters of appeal or writs of error from final judgments, the question arises whether the judgment in this case, from which the appeal is taken, is such a final judgment as gives this court jurisdiction, or whether it is merely interlocutory. The Garnishment Act as amended and in force July 1, 1915 (Callaghan’s 1916 St. Supp. ft 5936), provides that administrators and executors as garnishees may be garnisheed “with respect to any moneys * * * or other estates belonging to any devisee or legatee under any will * * * but no final judgment shall be rendered against such administrator or executor until after an order of distribution has been made by the County Court out of which his letters testamentary or of administration issued.”

The order of the trial court finds that Richard J. McCormick is entitled to recover $1,800 and costs from John A. McCormick, garnishee, but that no execution shall issue against said garnishee “nor shall this judgment be or be made final until after the entry of an order of distribution or for payment of said legacy to said Richard J. McCormick by the Probate Court of said Cook County, and that upon the entry of an order by said Probate Court for payment of said legacy to said Richard J. McCormick, this judgment shall, by supplemental order herein,' be made final, and thereupon execution shall issue against said defendant, John A. McCormick,”

Although the decisions, and they are many, concerning what constitute a final judgment are not harmonious (Black bn Judgments, sec. 20), as the act which gives this court jurisdiction uses the expression “final judgments,” and the Garnishment Act provides “but no final judgment shall be rendered * * * until after an order of distribution,” etc., and, as the judgment order of the trial court provides, “that no execution shall issue herein against said garnishee nor shall this judgment be, or be made final, until after the entry of an order of distribution,” etc., it is difficult at first blush to refrain from the conclusion that the judgment here appealed from is interlocutory and not final. But an analysis of the decisions in this State which deal with the subject of appealable judgments strongly, in fact, irresistibly, leads to the conclusion that the adjective “final” is not exclusively determinative; that the test is not one of mere words but rather of substance and intention. If the substance of the litigation and merits of the controversy have been finally adjudicated the judgment is final. Rosenthal v. Board of Education of City of Chicago, 239 Ill. 29; Barber v. Tolman, 176 Ill. App. 123; De Grasse v. H. W. Gossard Co., 236 Ill. 73; Klein v. Independent Brewing Ass’n, 231 Ill. 594. The judgment of the trial court involves the following findings: (1) That the defendant owes the plaintiff $901.75; (2) that the garnishee is the executor of the last will and testament pf Margaret McCormick, deceased; (3.) that the defendant is one of the legatees; (4) that the gariushee, as executor, has in his possession property of the estate, in which the defendant has a one twenty-ninth interest, which latter will exceed $1,800; (5) that the alleged assignment of the defendant’s legacy to the garnishee individually is void; (6) that there will be due to the defendant from the garnishee as executor upon the entry of an order of distribution in the Probate Court more than the sum of $1,800; (7) that the amount to be recovered by the garnishee as executor, over and above $902.22 by the garnishee, as part of the legacy, shall be collected for the use of the defendant. It also provides that execution shall issue only after an order of distribution in the Probate Court and a supplemental order in the trial court. It will be seen, therefore, that the merits and all of the substantial controversies and issues have been decided and finally consummated in the particular judgment that was entered.

All that remained to be done was to present—after the order of distribution in the Probate Court—the evidence as to the amount the garnishee, as executor, held for the defendant as legatee, and upon that have the proper order entered. Obviously, such supplemental proceedings would not affect in any way the matters already predetermined and finally adjudicated. Further, as some reason for considering the judgment final and appealable, it might easily be a serious hardship to hold that the garnishee must lie by and wait, possibly for years, for the order of distribution in the Probate Court, before he can have the judgment against him reviewed. He alleged and undertook to prove that he owned outright, by assignment, the legacy of the defendant. The trial court held against him. Must he wait upon the uncertainties of Probate administration, the future sale of real estate, hazarding, also, the death of witnesses and loss of evidence? As said before, the question is new, and its answer is fraught with some difficulty, especially as the line of cleavage between final and interlocutory orders is not yet scientifically prescribed— in some States it is fixed by statute—yet, after careful consideration, we are of the opinion that the order of October 15, 1917, was final and appealable. Rice v. Dougherty, 148 Ill. App. 368.

It is contended by the garnishee that the trial court erred in failing to hold that he, individually, was a bona fide assignee of the legacy of the defendant, Bichard J. McCormick. The garnishee offered in evidence a written assignment, signed and sealed by Bichard J. McCormick. It was dated August 12, 1913, and purported to “assign, sell, transfer, convey and set over unto said John A. McCormick,” the said legacy —describing it—for one dollar and other valuable considerations. The only evidence as to the consideration for the assignment is the testimony and memoranda of the garnishee. His evidence shows that between 1900 and March 1, 1915, he advanced to the defendant, for the latter’s use, upwards of $2,000. Various promissory notes signed "by the defendant and memoranda made by the garnishee were offered in evidence to that effect, and there is no evidence to the contrary. Such being the state of the record, we are bound to hold that the assignment was valid and binding. The plaintiff in his brief has not argued the merits of the controversy, but has confined his brief to the single consideration of the finality of the judgment. Why the trial court did not find the assignment valid and binding, the record does not disclose. Inasmuch as the evidence shows that the assignment was valid and binding, and was executed and delivered before the garnishment statute became effective on July 1, 1915—and which could have no retroactive effect (Porter v. Glenn, 87 Ill. App. 106)— the judgment must be reversed and the cause remanded.

Reversed and remcmded.


author: Mr. Justice Thomson

text:
    Max L. Teich and Carl C. Roessler, Defendants in Error, v. Edward H. Ayer, Plaintiff in Error.
    Gen. No. 24,055.
    1. Landlobd and tenant, § 300

      —when assignor of lease liable on guaranty irrespective of deposit. Where the assignor of a lease makes a deposit and gives a written guaranty to the lessors to secure payment of the rent by the assignee throughout the term of the lease and a default occurs before the expiration of the term, the lessors are not obliged to apply the deposit to the default, but may sue on the guaranty, and their right so to do is not affected by the fact of their having written the assignor on the occasion of a prior default by the assignee, which was after-wards met, that unless such assignor took care of the matter they would have to apply the amount of the default on his deposit.
    2. Landlobd and tenant, § 300

      —what no defense in action against assignor of lease on guaranty of rent. Where the assignor of a lease deposits with the lessors as security for performance by the assignee a chattel mortgage given by a third person on chattels used by the assignee on the leased premises, it is no defense to an action by the lessors against the assignor to recover on his written guaranty of the performance of the lease by the assignee, that by foreclosing the mortgage on the maturity of the mortgage note they made it difficult, if not impossible, for the assignee to carry on his business on the premises.
    3. Judgment, § 192

      —when against all joint defendants necessary in action on contract. Notwithstanding the statutory provision that “all joint obligations and covenants shall be taken and held to be joint and several obligations and covenants” (Hurd’s Rev. St. ch. 76, sec. 3, J.'& A. f 6746), where a plaintiff chooses to sue several defendants jointly in a contract action and they all remain parties throughout the action, plaintiff must have judgment against all or none, and in such case it is error to enter a judgment against one defendant only.
    4. Dismissal, nonsuit and discontinuance, § 36

      —when dismissal as to one or more defendants proper. Under Hurd’s Rev. St. ch. 110, sec. 39 (J. & A. jf 8576), in an action ex contractu against several defendants, a plaintiff may dismiss as to one or more at any time during the trial and before final judgment and proceed to judgment as to those remaining.

      5. Judgment, § 192

      -—when against all joint defendants unnecessary. The rule that to recover in an action ex contractu, a cause of action must he established against all of the defendants and that a dismissal or discontinuance as to one codefendant effects a discontinuance as to the entire action, so as to make a judgment against the remaining defendant or defendants erroneous, does not apply where one is joined as a defendant who is an improper or unnecessary party, nor where the proof shows that one of the defendants is not liable.
    6. Appeal and brbob, § 1703

      —when objection as to variance between pleading and judgment waived. An objection that after a motion to dismiss as to several of the defendants was allowed there was no amendment of the statement of claim and the suit remained entitled as a suit against all of them, whereas the judgment entered was only against the defendant, who was not dismissed, is waived where no motion in support of it is urged in the trial court.
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed December 31, 1918.
    Rehearing denied January 15, 1919.
    Edward J. Kelley, for plaintiff in error.
    Ryan, Condon & Livingston, for defendants in error.

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

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

   Mr. Justice Thomson

delivered the opinion of the court.

This was an action by lessors for rent under a lease and assignments thereof. Defendant has sued out this writ of error, following judgment against him for $125, based upon a verdict for the plaintiffs.

The lease under which the rent in question became due was from the plaintiffs to one Lewis, who later assigned it to one Simpson and he in turn to the defendant Ayer. There was then an assignment of the lease by Ayer to Nick Vrettos and James Ganoukos. This was on September 16,1914. At this time Ayer entered into a written guaranty of the performance by his assignees of all the covenants of the lease. On June 11, 1915, Vrettos and Ganoukos assigned the lease to Greene, and at this time the defendant joined with Vrettos and Ganoukos in a written guaranty of the performance of all the terms of the lease by Greene.

The evidence showed that Ayer held a note for $400 signed by Vrettos and Ganoukos secured by chattel mortgage on some restaurant fixtures, used by them in the premises here involved. At the time the lease was assigned by Ayer to Vrettos and Ganoukos, he, Ayer, assigned this note and chattel mortgage to the plaintiffs as security for the performance of the covenants of the lease by the assignees, and at the same time Ayer entered into a written agreement with the plaintiffs that, when the mortgage note was paid, they, the plaintiffs, might retain the proceeds as security for the performance of the covenants in the lease by the assignees. It seems that at the same time the defendant Ayer deposited $500 with the plaintiffs as further security for the performance of the covenants of the lease by the assignees, which, the aforesaid agreement provided, was to be retained by the plaintiffs as such security, until the expiration of the lease in April, 1919.

The same agreement further provided that in case it became necessary to foreclose the chattel mortgage, and such foreclosure resulted in a deficiency, Ayer would make up the deficiency, “so, that at all times during the life of the said leases, there shall remain on dteposit with the parties of the first part (plaintiffs) cash or securities acceptable to the parties of the first part aggregating the sum of $9*00.”

Greene ■ defaulted in the payment of the rent for March, 1915, and the plaintiffs duly notified Ayer of such default and also advised him that the mortgage note would mature April 1, 1915, at which time $300 would be due, $100 having apparently been paid on it. This notification occurred some time in March. It seems that G-reene also defaulted in the payment of the rent for April and May, 1915.

Some time in the latter part of April or the early part of May (the date is not certain from the record), the plaintiffs proceeded to foreclose the chattel mortgage and a bailiff took possession of the restaurant fixtures. Under date of May 13, 1915, the plaintiffs received a check for $300 in payment of the chattel mortgage note, whereupon proceedings to foreclose were discontinued and the bailiff was withdrawn, after having been in possession about 2 weeks.

The plaintiffs received a check for rent amounting to $125 on May 29,1915. This seems to have been the rent for the month of March. On June 17, 1915, this suit was brought to recover the rent for the months of April, May and June. After suit was started the plaintiffs were paid the amount of the rent for April and May. The judgment recovered represents the rent due for the month of June. The defendant Ayer contends that the judgment against him was erroneous and must be reversed because the plaintiffs should not be permitted to recover for any arrears in rent from him on his contract of guaranty so long as they hold cash as security for any rent not paid, nor after they had said, in the letter notifying him of the default of G-reene in the payment of the March rent, that they wished he would take care of the matter, otherwise they would “have to apply this month’s rent on the deposit you made at the time we assigned this lease.” This point is not well taken. The deposit in question was according to the written agreement of the parties, to secure payment of the rent by the assignee of the defendant, throughout the term of the lease, which was for 4 years beyond the time of this default. The plaintiffs were not obliged to apply this cash deposit to the defaults involved here but they had a right to do as they did and bring suit on the written guaranty signed by the defendant, nor was the situation changed in any way by the letter they had written.

It is also urged that the default in June was caused by the action of the plaintiffs in foreclosing the chattel mortgage which made it difficult, if not impossible, for the assignee tenant G-reene to carry on his business in the premises in question. This is entirely beside the question. The plaintiffs were wholly within their rights in foreclosing the chattel mortgage, and if that action on their part had the result suggested, that cannot affect the question of the rent. This action of the plaintiffs cannot be construed as an act of a landlord interfering with a tenant’s possession, thus relieving the tenant from the payment of rent thereafter coming due. The disturbance in the tenant’s possession was primarily due to the former tenants’ failure to meet a note, secured by a chattel mortgage on the fixtures on the demised premises, and being used at the time by the tenant, in the conduct of his business.

There is a further point involved in this case which seems to us of greater importance. This suit was originally brought against several defendants, including the plaintiff in error, all of' them being successive assignees of the lessee. All of the defendants but one were served. One of those served was defaulted and three of them, including the plaintiff in error, entered their appearances and filed affidavits of merits. Upon the trial, the plaintiffs dismissed the suit as to all the defendants except plaintiff in error. The trial then proceeded, resulting, as before stated, in a verdict for plaintiffs, upon which, judgment was entered against plaintiff in error alone.

This is assigned as error, the plaintiff in error contending that in all actions ex cmitractu, the judgment must be against all who are served or appear, or none.

While that proposition may be true under some circumstances, standing alone, it is a very inaccurate statement.

Although our statutes provide that “all joint obligations and covenants shall be taken and held to be joint and several obligations and covenants” (Rev. St. Ill. ch. 76, sec. 3, J. & A. ¶ 6746), where a plaintiff chooses to sue several defendants jointly in a contract action, and they all remain parties throughout the action, the plaintiff must have a judgment against all' of them, or none, and it would be error to enter a judgment against one defendant only. McConnel v. Swailes, 3 Ill. 571, 573; Wight v. Meredith, 5 Ill. 360; Dow v. Rattle, 12 Ill. 373; Fuller v. Robb, 26 Ill. 246, 248; Faulk v. Kellums, 54 Ill. 188, 191; Goodale v. Cooper, 6 Ill. App. 81; Cooper v. McNeil & Higgins Co., 43 Ill. App. 350.

It was early held in this State that in such a case a plaintiff could not dismiss as to any one or more of the defendants and proceed to final judgment against the others. Archer v. Spillman, 2 Ill. 553; Tolman v. Spaulding, 4 Ill. 13; Briggs v. Adams, 31 Ill. 486. But in 1872 our legislature passed a law now found in our Practice Act, ch. 110, sec. 39 (J. & A. ¶ 8576), reading as follows:

“At any time before final judgment in a civil suit, amendments may be allowed on such terms as are just and reasonable, introducing any party necessary to be joined as plaintiff or defendant, discontinuing as to any joint plaintiff or joint defendant, changing the form of the action, and in any matter either of form or substance, in any process, pleading or proceeding which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought or the defendant to make a legal defense.”

Following the enactment of that statute, our courts have held that in an action ex contractu against several defendants, a plaintiff might dismiss as to one or more at any time during the trial and before final judgment and proceed to judgment as to those remaining. Cogshall v. Beesley, 76 Ill. 445; Black v. Womer, 100 Ill. 328, 330; MacLachlan v. Pease, 171 Ill. 527, 531; Franklin Life Ins. Co. v. Hickson, 197 Ill. 117; Metropolitan Life Ins. Co. v. People, 209 Ill. 42, 49; Malleable Iron Range Co. v. Pusey, 148 Ill. App. 344, 348, affirmed 244 Ill. 184, 200; Douglas v. Newman, 5 Ill. App. 518, 520; Brown v. Tuttle, 27 Ill. App. 389, 390; Willoughby v. Brown, 190 Ill. App. 51; Leisteko v. Smith, 190 Ill. App. 313. Our courts have said that the rude which was the law prior to the enactment of section 39 of our Practice Act, namely, that, in order to recover in an action ex contractu, a cause of action must be established against all of the defendants, and that a dismissal or discontinuance as to one codefendant effects a discontinuance as to the entire action, so as to make a judgment against the remaining defendant or defendants erroneous, is subject to certain exceptions. One of these exceptions is where one is joined as a defendant in the action who is an improper or unnecessary party. This role has been applied in cases where the proof showed that one of the defendants was not liable, and in such cases the dismissal of such defendant and the recovery of judgment against the defendant remaining were upheld. Mayer v. Brensinger, 180 Ill. 110, 118, 119; Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61, 77, 79. In these cases the defendant dismissed out of the case was shown by the proof to be an improper party to the suit. That is not the case at bar, however. The same rule has been applied in an action of debt against the principal and sureties upon a guardian’s bond in which, during the trial, the suit was dismissed by the plaintiff as to the principal on the bond and one of the sureties, and judgment rendered against the other surety alone. Kaspar v. People, 230 Ill. 342. In upholding that action our Supreme Court pointed out the section of our Practice Act permitting amend-meats, and further said: “The appellant (who was the defendant remaining in the case, after the suit had been dismissed as to the others) could have been sued alone upon said bond, had the appellee seen fit to have thus sued him. * * * If the appellant could have been sued alone in the first instance upon said bond, then the guardian, Josef Lurie, and the appellant’s co-obligor, Joseph Babka (the principal and cosurety on the bond,—the two defendants as to whom the suit had been dismissed), were not necessary parties, and under the section of the Practice Act above referred to, a joint suit having been brought against Josef Lurie, Joseph Babka and the appellant, the appellee had the right to dismiss as to Josef Lurie and Joseph Babka at any time prior to final judgment, and to take judgment against appellant alone. ’ ’ This is precisely the situation in the case at bar. All of the defendants dismissed out of the case on plaintiffs’ motion were unnecessary parties to the suit.

It was not error to allow the motion to dismiss the suit as to them nor thereafter to enter judgment against appellant, the remaining defendant, alone.

After the trial court allowed the plaintiffs’ motion to dismiss as to all defendants except the plaintiff in error, there was no ameiidment of the statement of claim, and the suit remained entitled as a suit against all the original defendants, whereas the judgment entered was against plaintiff in error alone. Such variance as might be said to result from that situation was waived by plaintiff in error in failing to urge it in support of any motion in the trial court. Mayer v. Brensinger, supra, p. 118. Had the point been raised, it could of course have been cured by proper amendment of the statement of claim.

Finding no error in the record, the judgment of the Municipal Court is affirmed.

Affirmed.


text:
    National Plumbing & Heating Supply Company, Appellant, v. B. Stevenson, Appellee.
    Gen. No. 24,089.
    1. Bills and notes, § 279

      —when cheek should be presented for payment. Where the bank on which a check Is drawn and all of the parties interested reside in the same city, it is the holder’s duty to present it for payment on the day it is received, or, at the furthest, on the next day.
    2: Bills and notes, § 279

      —when cheek not presented for payment in reasonable time. The holder of a note does not present it for payment in a reasonable time, where, 2 days after it comes into his possession, he deposits it by mail in a bank in a distant part of the city and not in a bank in the same general neighborhood as the drawee, in both of which he regularly keeps accounts.
    3. Bills and notes, § 283

      —when drawer not discharged for want of due presentment. The want of due presentment of a check does not discharge the drawer unless he suffered some loss or injury thereby, and then only pro tanto.

    4. Bills and notes, § 406

      —who has burden to show no injury from delay in presentment of cheek. The burden is on the holder of a check who has not duly presented it to show that his delay did not result in loss or injury to the drawer.
    Taylor, X, dissenting.
    Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trtjde, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed December 31, 1918.
    Rehearing denied January 15, 1919.
    Morris Frisch, for appellant.
    No appearance for appellee.

      See Illinois Notes Digest, Vols. XI to XY, an4 Cumulative Quarterly, same topic and section number.

   Mr. Justice Thomson

delivered the opinion of the court.

This was an action brought by the appellant, hereinafter referred to as the plaintiff, against appellee, hereinafter referred to as the defendant, to recover the amount of an unpaid check which it had received from the defendant in part payment of an account. There was a hearing before the court without a jury, resulting in a finding of the issues for the defendant. Judgment was entered against the plaintiff for costs, from which it has appealed. The check in question was for the sum of $761.57.

The defendant’s place of business is at 79th and Morgan streets, in the City of Chicago, while that of the plaintiff is at 61st and State streets. A. collector or salesman, employed by the plaintiff, called on the defendant at his place of business between the hours of 8 and 9 o’clock in the morning on May 21, 1917, and received the check in question. He then went on about his business, apparently visiting other places throughout the day and on the following morning, May 22nd, he delivered the check to the plaintiff’s cashier. The plaintiff maintained accounts in two banks, one being the Citizens’ Trust & Savings Bank, located at 55th and State streets, a few blocks away from the plaintiff’s place of business, and the other the Lake View State Bank, located on the opposite side of the city, 10 or 15 miles away from the plaintiff’s place of business. It was the habit of the plaintiff to make deposits in one or the other of these banks depending upon their anticipated needs. On the evening of May 22nd, the plaintiff’s cashier made up a deposit of a number of checks, including the one in question, and sent it by mail to the Lake View State Bank. The latter bank upon receipt of this check (the record does not show just when) sent it to the First National Bank of Englewood, through which it cleared. However, the check was never put through the clearing house, but the First National Bank of Englewood sent the check by its messenger to the bank on which it was drawn, the Auburn State Bank. The check was not paid, as the Auburn State Bank had closed its doors and ceased doing business before the check was presented. The check was returned to the plaintiff on May 25th. The Auburn State Bank was located at 79th and Halsted streets.

It is further shown by the evidence and by the agreed statement of facts, submitted to the trial court, that on May 21st and 22nd the defendant had more than $1,200 on deposit in the Auburn State Bank, and further that this bank honored all checks presented to it on May 21st and also on May 22nd up to 5 o’clock on the afternoon of that day, when its doors were closed and its business ceased.

The trial court ruled that under the evidence the plaintiff was shown to have failed to present the check within a reasonable time and that had it done so the check would have been paid and that therefore the loss was the plaintiff’s and it could not recover.

In contending that the court was in error and that the judgment should be reversed, the plaintiff urges that, upon receipt of the check, it proceeded to collect it in the customary manner by depositing it in its bank, and second, that even if its presentment of the check be held insufficient under the law, the defendant should not be relieved of liability as the drawer of the check, unless he is shown to have suffered some loss or injury thereby, and that no such loss or injury is shown by the evidence. The defendant has not filed an appearance nor presented a brief in this court.

The Negotiable Instruments Act (Rev. St. Ill. ch. 98, sec. 185, J. & A. ¶ 7825) provides that: “A check must be presented for payment within a reasonable time after its issue, and notice of dishonor given to the drawer as provided for in the case of bills of exchange, or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.” As to what is a reasonable time for the presentment of a check, it has been held that where the bank on which the check is drawn, and all the parties interested reside in the same city, it is the duty of the holder of the check to present it to the bank for payment on the day the check is received or, at furthest, the next day. Brown v. Schintz, 202 Ill. 509-514.

The plaintiff urges that this rule should not be held to apply in the case of a large city like Chicago, which is composed of widely separated portions which were separate towns before they came to be part of the City of Chicago by annexation. This argument, applied to the facts here involved, works against the plaintiff rather than in its favor. All parties in interest, including one of plaintiff’s banks of deposit and the bank on which the check was drawn, were located in the same general part of or “town” in the City of Chicago, but instead of depositing this check in its bank located there, plaintiff sees fit to deposit it by mail in a bank located 10 or 15 miles away in a distant part of or “town” in the City of Chicago. We do not wish to be understood as saying that one engaged in business in a large city like Chicago is obliged, in complying with the requirements of the statute as to the presentment of a cheek for payment, to note the locality of the drawer of the check or the drawee bank and be governed by that fact in selecting Ms bank of deposit, but we do hold that the requirements of the statute have not been complied1 with under all the facts presented in.tMs case. The holder of a check cannot be considered to have presented it for payment to the drawee witMn a reasonable time, where, 2 days after coming into Ms possession, he deposits it by mail in a bank in a distant part of the city and not in a bank in the same general neighborhood as the drawee, in both of which he regularly keeps accounts.

Our Negotiable Instruments Statute also provides (Rev. St. Ill. ch. 98, sec. 192, J. & A. ¶ 7832) that “in determining what is a ‘reasonable time’ or an ‘unreasonable time,’ regard is to be had to the nature of the instrument, the usage of trade or business (if any) with respect to such instruments, and the facts of the particular case.” If the plaintiff had deposited the check in question in a local or central bank, in time for it to have passed through the clearing house on the 22nd, or been presented at the drawee bank for payment at any time within banking hours on that day, it might be considered that the requirements of the statute had been complied with. Northwestern Iron & Metal Co. v. National Bank of Illinois, 70 Ill. App. 245, 248. But in holding the check as long as it did and then putting it in course of presentment, in the circuitous route it did, notwithstanding it had an account in the same general part of the city as that in which the drawee bank was located, the plaintiff cannot be said to have presented the check for payment “within a reasonable time after its issue,” as required by section 185 as further defined by section 192 of our Negotiable Instruments Statute. First Nat. Bank of Chadwick v. Mackey, 157 Ill. App. 408.

The rule laid down in Brown v. Schintz, supra, has been applied where the drawer or holder of the check resided in the country, some 2 miles from the town where the bank was located. McDonald v. Mosher, 23 Ill. App. 206.

Plaintiff has called our attention to the case of Sublette Exchange Bank v. Fitzgerald, 168 Ill. App. 240, where the court interpreted the requirement, that a check be forwarded directly to the bank upon which it is drawn, as not meaning that “a check shall be sent in a direct line as a bird may fly, but by the usual commercial route.” Under the facts in that case the check there in controversy was held to have been presented to the bank on which it was drawn, by the bank which cashed it, properly, and through the usual commercial channels. The bank which cashed the check was located in Lee county, Hlinois, nearly due west of Chicago, and the day the bank cashed the check it was forwarded to its correspondent, the Corn Exchange Bank of Chicago, and that bank immediately forwarded it to the Fort Worth National Bank of Fort Worth, Texas, and the latter immediately sent it to the First National Bank of Plainview, Texas, the bank on which it was drawn, where it was protested.

As to the other point urged by the plaintiff, it may be said that the want of due presentment of a check does not discharge the drawer unless he has suffered some loss or injury thereby, and then only pro tanto. Heartt v. Rhodes, 66 Ill. 351; Industrial Bank of Chicago v. Bowes, 165 Ill. 70, 76. In contending that the defendant in the case at bar suffered no loss as a result of the delay in presenting the check in question, the plaintiff argues that the Auburn State Bank could not operate unless it had a capital stock of $200,000, and that the stockholders were liable in a further sum of $200,000 over and above the capital stock, and that the State auditor called for a report of the bank’s resources and liabilities every 3 months, citing the statutory provisions on those matters, and it was further urged that with a strict supervision of the State auditor it could be safely assumed that at the very lowest the bank’s creditors would get 25 per cent of their claims. All these matters are presumptions in which the court cannot indulge. There is no evidence whatever in the record concerning them. While it is true that in case of an unwarranted delay in the presentment of a check, resulting in its nonpayment, the drawer of the check will not be relieved unless he has suffered some loss or injury by reason of the delay in the presentment of the check, and then only to the extent of such loss or injury, it is also true that the holder of the check has the burden of proving that his delay in presenting it has not resulted in loss or injury on the part of the drawer. 2 Greenleaf on Evidence, sec. 195a; Story on Promissory Notes (7th Ed.), sec. 498; Stevens v. Park, 73 Ill. 387; Arnold v. Mangan, 89 Ill. App. 327; Little v. Phenix Bank, 2 Hill (N. Y.) 425, 428; Daniels v. Kyle, 1 Ga. 304, 306.

In the case at bar the plaintiff, holder of the cheek, presented no evidence whatever on this subject.

For the reasons stated, the judgment of the Municipal Court is affirmed.

Affirmed.

Mr. Justice Taylor dissents.