text:
    Julius F. Smietanka, Trustee, Appellee, v. Harry O. Myers et al., Defendants. Appeal of Helen J. Ostrowski and Walter Konieczka, Appellants.
    Gen. No. 41,701.

      Heard in the first division of this court for the first district at the April term, 1941.
    Opinion filed June 30, 1941.
    Rehearing denied July 14, 1941.
    Ostrowski & Noel and William Vihon, both of Chicago, for appellants; William Vihon, of counsel.
    Smietanka, Conlon & Nowak, of Chicago, for appellee; Leon J. Nowak, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

This appeal by the intervening petitioners, Ostrowski and Konieczka, is from an order entered December 20, 1940, which dismissed their petition, set aside an order entered November 10, 1938, approving and confirming a sale held February 16, 1938, and directed the special commissioner to advertise and resell the premises.

Smietanka is trustee named in a trust deed executed by Harry A. and Bertha L. Myers on January 15, 1929, to secure payment of 210 bonds of the aggregate amount of $45,000. He filed his complaint to foreclose this trust deed March 22, 1933. January 10, 1936, a decree was entered in complainant’s favor finding that $48,872.81 was due on outstanding bonds and $2,375.82 for fees and charges. The decree provided that in case of default of payment, with interest at 5 per cent from October 22, 1935, the date of the commissioner’s report, the premises should be sold “for cash.” The decree also directs “that should anybody purchase at the aforesaid sale other than Julius F. Smietanka, trustee, the said Julius F. Smietanka, as trustee, upon receipt by him of the net proceeds of said sale, shall pay to the various owners of the bonds and interest coupons, their pro rata share of the proceeds of said sale”; that the court retains jurisdiction to appoint a receiver to collect the income from the premises pending the period of redemption and for the purpose of entering a deficiency decree against Harry O. and Bertha L. Myers.

The special commissioner upon whose report the decree was entered, filed his report of sale and distribution November 10,1938. The report was in usual form and recited that “said Complainant, Julius F. Smietanka, as Trustee, offered and bid therefor the sum of $52,459:70 cash,” and this being the highest' and best bid was accepted. The report showed payment of the items of costs and expenses and credited on the decree the amount of $49,540.68. It also stated the delivery to the purchaser of the usual certificate of sale and that there was still due to complainant the sum of $5,000. Vouchers are attached for the respective payments running to the special commissioner and signed “Julius F. Smietanka, Trustee, Complainant’s Solicitor.”

The intervening petitioners, while not made parties defendant to the original bill, entered their appearance in the cause. They filed no answer. They were subpoenaed as witnesses upon the hearing before the commissioner, produced their bonds and the amount due to each of them was found in the report and set forth in the decree. Their appearance in the cause was entered by their solicitors who seem to have had notice of all proceedings.

January 26, 1939, the petitioners filed their petition setting up their ownership of certain bonds, averring that they had not authorized the trustee to bid at the sale in their behalf, and praying that their respective pro rata share of the proceeds of the sale might be paid to them in cash. The petition alleged (the answer admits) there was no clause in the trust deed authorizing the trustee to bid in the mortgaged property on behalf of the holders of the unpaid bonds and interest coupons.

The trustee and the special commissioner answered. The commissioner stated he held the sale as directed by the decree. The trustee admitted the bonds of the petitioners were not deposited with him as were the bonds of all other owners and that petitioners had not given him written authority to use their bonds as he several times requested. However, the trustee averred there was no other bidder; that he therefore bid the amount of $52,459.70, not in cash but on the indebtedness due him as trustee; that no cash was paid; that he receipted the special commissioner as on the indebtedness; further (and this was the gist of his defense) that petitioners through their solicitors of record, prior to the approval of the report of sale and distribution, had full information as to the facts and circumstances of the sale, knew that it was not actually for cash, and with such knowledge acquiesced, consented to and approved the order of confirmation. The court heard the evidence and dismissed the petition. It appeared petitioners made no demand for their pro rata share of the proceeds of sale until after the term of court had expired at which the report of sale was approved. The trustee, Mr. Conlon (who presented the report of sale and distribution to the court), Mr. Migrom (an attorney in the office of the trustee), and attorney Ditchie of the trustee’s office, gave testimony tending to show that Mr. Noel and Mr. Ostrowski (solicitors for petitioners) had full knowledge of all the facts and circumstances connected with the sale and full knowledge that the trustee (in default of other bidders) bid in behalf of all the bondholders. Mr. Bieg, from the office of special commissioner Doyle, testified (and his evidence is uncontradicted) that no cash passed through the special commissioner’s office on account of the sale.

Noel and Ostrowski were called as witnesses under § 60 of the Civil Practice Act. Both said Noel attended court before Judge Klarkowski on November 10, 1938, when the order was finally entered approving the sale. Michael V. Ostrowski (whose wife, Plelen, is one of the petitioners) admits that when the court asked Noel whether there were any objections to the confirmation of the sale he answered “No.”

Without analyzing the evidence in detail we state we have given careful consideration to it and that any finding for petitioners would be against the manifest weight of the evidence. The finding of the trial court on issues of fact on appeal has the same weight as the verdict of a jury. The situation upon the confirmation of the report of sale was this. Petitioners might have objected and taken an appeal. They might possibly have availed themselves of a bill of review to correct supposed error manifest on the face of the decree. They did neither. They did not object to the order approving the sale to the trustee, in fact their representative stated there was no objection. They waited until the time elapsed within which the court had jurisdiction to set aside the order and then demanded the trustee pay them in cash their pro rata share of the amount he bid for the property. On clear principles we hold they are estopped. Bondy v. Samuels, 333 Ill. 535; Provident Mut. Life Ins. Co. v. Norcott, 366 Ill. 82; Chicago Title & Trust Co. v. Prendergast, 335 Ill. 646. Silence would have estopped petitioners. They went further and affirmatively assented.

It is well settled an order approving a report of sale and distribution is a final order from which an appeal may be taken but after term time cannot be vacated except upon appeal or writ of error or bill of review. Madison & Kedzie State Bank v. Cicero-Chicago Corrugating Co., 351 Ill. 180; Bushnell v. Cooper, 289 Ill. 260; Mellin v. Phillips Trust & Savings Bank, 296 Ill. App. 205.

Petitioners rely on Chicago Title & Trust Co. v. Robin, 361 Ill. 261. Under the law as stated there the trustee here was without authority to bid and buy in behalf of nondepositing bondholders who had not authorized him so to do. The report of sale to the trustee (presumably) would not have been approved if petitioners had objected. The order approving the sale and distribution to the trustee could have been challenged by appeal, writ of error or bill of review. In the Robin case the order was objected to when entered and an appeal taken. Here petitioners, with notice and knowledge, did not object or appeal or file a bill to review. Even now they say they wish the erroneous order affirmed with directions to the trustee to pay to them in cash their pro rata share. The complainant in the suit was the trustee. The report of sale said the sale was made to him as trustee. The vouchers attached showed payment to the trustee by application of the indebtedness found to be due to him as trustee. The practice is usual, well known and has been approved by the courts. Slack v. Cooper, 121 Ill. App. 485 (aff’d 219 Ill. 138); Himmel v. Strauss, 288 Ill. App. 566.

The thing petitioners ask would be unfair to the trustee and to other bondholders. It is suggested that solicitors Ostrowski and Noel, in the absence of express authority from their clients, were without power to consent to the action of the trustee in buying the mortgaged premises in their behalf. 7 Corpus Juris Secundum, 897, 922 and 932, and Village of Dolton v. S. Ellen Dolton Estate, 331 Ill. 88, are cited. It is true, as held in the Dolton case, attorneys may not act in fraud of their clients. The Dolton case, however, expressly says: “If an attorney acted without authority from his client the remedy of the client is against his counsel.”

The same authority points out that even in case of fraud on the part of the solicitor the court is not thereby deprived of jurisdiction. There is no suggestion of fraud here.

Petitioners argue the order approving the report of sale is erroneous but they do not ask to have it reversed. On the contrary they seek to have it carried out as construed by them. Their contentions are in this respect inconsistent. On the authorities already cited we hold that the time within which the order of sale might be set aside having expired, the circuit court was without authority to enter that specific part of the order which set aside the sale to the trustee and directed another sale to be made. That part of the order will be reversed. On the other hand, the petition of these intervenors is without equity and was properly dismissed. That part of the order will be affirmed. The trustee will hold the certificate of sale for the benefit of intervenors and other bondholders.

Affirmed in part and reversed in part.

O’Connor, P.J., and McSurely, J., concur.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    James C. Hoskins, Appellant, v. Chicago Park District, Appellee.
    Gen. No. 41,594.
    Heard in the first division of this court for the first district at the February term, 1941.
    Opinion filed June 30, 1941.
    Rehearing denied July 14, 1941.
    Edgar A. Jonas and Frederick C. Jonas, both of Chicago, for appellant; J. J. Cooke and John A. McElligott, both of Chicago, of counsel.
    John O. Rees, of Chicago, for appellee; Martin G. Loeff and Harry P. Hensel, both of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff (the lessee of certain real estate which lies on the east and west sides and underneath the Outer Drive viaduct and north of the bridge near the mouth of the Chicago River) filed his complaint in chancery against the Chicago Park District for a mandatory injunction to compel the removal of railings, pilasters, ornaments and trimmings which constitute the railings along the west side of the Outer Drive, so as to permit him to have free ingress and egress from the Drive to a building which he proposed to erect on the west side of the Drive. The building would have a direct frontage on the Drive of about 40 feet and about 65 feet on the south and west bordering on a plaza. The cost of the improvement, exclusive of land, was $11,400,000.

Defendant filed its answer denying plaintiff was entitled to the relief. The case was referred to a master in chancery who took the evidence, made up his report and found that the Outer Drive — the bridge and approaches — were a part of the boulevard connecting the parks located on the north and the south sides of the city and were “a part of the park system and do not constitute a public street or highway”; that plaintiff was guilty of laches in failing to bring his action while the approach and bridge were in the course of construction, and recommended the suit be dismissed for want of equity. After objections and exceptions were overruled, a decree was entered substantially in accordance with the recommendation of the master and plaintiff appeals.

The record discloses that the Outer Drive consists of an eight-lane roadway for vehicular travel commencing at Ohio street on the north. The roadway inclines from Ohio street until it reaches the Chicago River where it is about 38 feet above the ground. From that point south it declines until it reaches the level at Monroe street, a total distance from north to south, if the direction were straight, of a little less than a mile. But the roadway does not proceed in a straight direction. After the river is crossed from the north, it turns to the west, a distance of approximately one and a half blocks, then turns directly south for about five blocks to Monroe street. The driveway then continues south along the lake and through Jackson Park. North of Ohio street the drive runs along or near the lake to Evanston. At Randolph street there is a viaduct which now consists of four lanes for traffic, leading from the Outer Drive to Michigan avenue. There is a sidewalk on each side of the roadway of the Drive.

Defendant constructed on each side of the viaduct' ornamental balustrades, railings and pilasters from Ohio to Randolph street. As stated by counsel for plaintiff, “As a part of the general design and construction of the viaduct and bridge, a certain plaza was worked in the design of the bridge, which plaza forms a half circle on each side” of the viaduct near the river. “Plaintiff’s property abuts the west side of the viaduct and the north west side of the plaza.”

Before the improvement was begun a condemnation suit was brought and a stipulation entered in that case whereby $1,500,000 was paid to the property owners, one of which, was the lessor of plaintiff. The period covered by the lease is from June 1, 1935, to April 30,1945, at a rental of $1,333.33 per month. A deed was made of the property conveying the fee simple title by the lessor of that part of the premises where pillars and supports were erected to support the roadway. The air rights as to the balance of the property also passed to the Park Commissioners. In constructing the driveway from the north to the bridge is was necessary to remove a section the width of the improvement, of a large building known as the Pugh Terminal Warehouse which was located a short distance north of the Ogden Slip. On each side of the driveway when completed new fronts were put in the Terminal building and they now abut the roadway on each side with no railings or ornaments in front of them so that there is access to these buildings on each side of the roadway.

For a number of years plaintiff has conducted a coal business on the ground near the mouth of the Chicago River, extending from the river on the south to the Michigan Canal or Ogden Slip on the north, a distance of several hundred feet, part of which property is underneath the viaduct of the driveway. Plaintiff’s business office was at 10 South La Salle street and he desired to construct a building on the property west of the roadway and north of the river where he could display his products and conduct his coal business. Underneath the north approach are railroad tracks which are in use. Before the construction of the viaduct and since, plaintiff has conducted his coal business by driving over east North Water street, an east and west street, and other streets in that vicinity. In making the improvement defendant constructed two stairways from the ground up to the roadway, a distance of 38 feet, one on the west and one on the east side of the roadway so that one could walk up and down these stairways.

The evidence shows that in June 1937, plaintiff had a conversation with Mr. Donoghue the superintendent in charge of defendant, Chicago Park District, at which time he told Donoghue the kind of building he intended to construct. This was before the work of the improvement was completed and before any obstructions were made in front of plaintiff’s property. Plaintiff again saw Donoghue in July and August 1937, talked on the same subject and Donoghue again stated the Park Board would want any building constructed to conform with the general contour, outline and architecture of the bridge. The work, including the balustrades, etc., in front of plaintiff’s property, was completed about September 1937. No action was taken by the Park Board after the conversation between plaintiff and Mr. Donoghue — the matter was not taken up with the Park Commissioners. But in November 1937, plaintiff obtained a permit from the City of Chicago for the erection of the building on the west side of the Drive and north of the River which was to extend two stories above the roadway in front of his property. It was to be supported by a number of pillars or posts extending from the ground up to the roadway or viaduct. The foundations were put in and steel work erected for the support of the building below the roadway at an expense of about $15,000. Plaintiff began the work shortly after he obtained the permit and continued until January or February 1938, when it became apparent defendant would not remove the railings and balustrades in front of the proposed building. The building when completed would represent an investment of about $60,000.

Defendant offered evidence that it had been put to an expense in building the ornamental balustrades in front of plaintiff’s property of $2,959.85 and $16,926.05, which counsel for defendant says was for “ornamental piers and spandrels, which the park district engineers testified would not have been necessary had plaintiff asserted his rights promptly,” and that to remove the balustrades and pier tops to the sidewalk level would cost $2,771.

Plaintiff contends that “The Outer Drive, including the bridge and its approaches ... is a public highway, boulevard or street for all purposes, and particularly in the sense that abutting property owners are entitled to ingress and egress to their property from the Drive,” — while defendant’s position is as stated by its counsel, “The Outer Drive bridge is not a public highway so as to afford abutting owners the right of ingress and egress.”

We think this is the controlling point in the case and its solution is not free from difficulty. The driveway in question was constructed by defendant, Chicago Park'District, by virtue of the statutes of this State. Counsel for plaintiff say, ‘‘There is no question but that the Park District can invoke regulatory powers in connection with park property under its jurisdiction. We concede that it can establish needful rules and regulations for the government of parks, boulevards and driveways under its jurisdiction, that it may exclude all objectionable travel and traffic, and may enforce reasonable traffic and other regulations.” But they contend defendant has no power to exclude abutting property owners from all access to boule vards under its jurisdiction. That thousands of automobiles use the Outer Drive — viaduct and bridge across the river and its approaches — daily in passing from the North to the South side and from the South to the North side. Other thousands living on the North side and in the suburbs north of Chicago also use it to drive into the Loop by way of the Randolph street viaduct and other streets a few blocks south of Randolph street for business purposes.

The Lincoln Park Commissioners (who controlled Lincoln Park prior to the passage of the law authorizing the turning over of the parks to defendant, Chicago Park District) in proceedings authorizing the construction of the improvement, passed a resolution, part of which is: “Whereas, The Commissioners of Lincoln Park adopted a resolution on February 14, 1929, to construct one-half of a bridge across the Chicago River and an approach or approaches to the north end of said bridge, which approaches include a bridge over the Michigan Canal, otherwise known as the Ogden Slip, thus forming an elevated boulevard or thoroughfare running southerly from the intersection of Lake Shore Drive and East Ohio street to the north bank of the Chicago River, and connecting Lincoln Park and the boulevards under the control of The Commissioners of Lincoln Park with the boulevards under the control of the South Park Commissioners, which said proposed elevated boulevard or thoroughfare is commonly known as the Lincoln Park Outer Driveway, . . . and . . . have instituted a condemnation suit for the purpose of acquiring the real estate necessary.”

The driveway from the time of its completion has been open to the public, may be used by anyone and it is used daily by thousands of citizens of Chicago and suburbs in going to and from their places of business. We think it is a public highway. People v. County of Westchester, 282 N. Y. 224; Chicago Park District v. Canfield, 370 Ill. 447; Anzalone v. Metropolitan Dist. Commission, 257 Mass. 32; Goodfellow Tire Co. v. Commissioner of Parks & Boulevards of Detroit, 163 Mich. 249.

In the Westchester case, the Park Commissioners attempted to collect tolls from persons using the parkway which had been constructed by them. In the opinion the Court of Appeals of New York said: “That parkway consists of a four-lane roadway for vehicular traffic, two lanes moving in each direction, and extends through the county of Westchester in a northeasterly direction for a distance of some 16 miles. The roadway has been so constructed, by means of bridges, underpasses, overpasses and traffic circles, as not to cross at grade any highway or other public road or the right of way of any public utility. Certain portions of the parkway consisting of direct continuations and extensions thereof at either end, constructed in similar manner, extending into the city of New York at the southerly end and to the boundary line between the States of New York and Connecticut at the northerly end and there connecting with the Merritt Parkway extending into the State of Connecticut, were constructed. . . . These extensions total three and seven-tenths miles in length and are maintained by the 'Westchester County Park Commission.” The board of supervisors of the county adopted a local law providing for the collection of tolls on the Hutchinson River Parkway. The State of New York contended there was no authority to collect the tolls. Continuing the court stated that one of the questions was ‘ ‘whether the Hutchinson River Parkway is a public highway” and said the statutes defined what constituted a public highway as follows: “ ‘Public highway’ shall include any highway, road, street, avenue, alley, public place, public driveway or any other public way.’ . . . Elliott on Roads and Streets, in section 3, page 4, gives the test for determining when a way is a highway, as follows: ‘If a way is one over which the public have a general right of passage, it is, in legal contemplation, a highway, whether it be one owned by a private corporation or one owned by the government, or a governmental corporation, and whether it be situated in a town or in the country. No matter whether it be established by prescription or by dedication, or under the right of eminent domain, it is a highway if there is a general right to use it for travel. ’ ’ ’ The court then refers to the four-lane roadway and says it is “ clearly a highway. Landscaping the right of way does not make ‘an ordinary park’ out of what is essentially a highway. ...

“Indeed, the contention that the Hutchinson River Parkway is not a public highway would not be claimed to be serious except for the decision in Matter of County of Westchester (Hutchinson River Parkway) (246 N. Y. 314), where this court decided that this very parkway was not a ‘street, avenue, highway, or road’ within the meaning of section 90 of the Railroad Law.” The court held "the law (passed by the board of supervisors, which purported to authorize the collection of tolls) was in conflict with the general law of the State and invalid.

In the Canfield case (370 Ill. 447), Canfield was charged with violating an ordinance passed by the Chicago Park District (defendant in the instant case) which prohibited driving, in the park system, of a vehicle upon which was displayed commercial advertisement. On hearing he was discharged and on a direct appeal to the Supreme Court the judgment was affirmed. The court there referred to section 7 of the act creating the Chicago Park District approved in 1933 (Ill. Rev. Stat. 1939, ch. 105, par. 333.7 [Jones Ill. Stats. Ann 96.557.]) and said that the power to regulate traffic or to exclude it is vested in the State but may be delegated as a part of the police power where its exercise bore some relation to public health and safety and which made for public welfare, and that the ordinance was unreasonable. Continuing the court said: “The issue here presented falls under two principal heads: May appellant exclude vehicular advertising from the parks, and, may such advertising be excluded from the boulevards connecting the public parks, which boulevards are under the jurisdiction of the Chicago Park District? Much of appellee’s argument is devoted to the latter phase of this question. He insists that sixty-five per cent of the travel of the city goes over these connecting boulevards, and that it is not a proper regulation to keep automobiles, bearing advertising signs or placards from traveling over them. While this question is one of grave doubt because of the fact these connecting boulevards are, after all, public highways, and do not bear exactly the same relation to the park purposes as the boulevards lying within the public parks, . . . .” So in the instant case we think the Outer Drive, although it is a connecting boulevard is after all, a public highway and does not bear “exactly the same relation to the park purposes as the boulevards lying within the public parks.”

In the Anzalone case (257 Mass. 32), plaintiff filed a petition for a writ of mandamus to require the Metropolitan District to grant permission for the right of entrance from the park property to his premises. “One of the purposes for which the right of entrance is sought by the petitioner is for the use of automobiles resorting to a gasoline filling station upon a part of his premises.” The application was refused “solely because the way was intended in part for access to a gasoline filling station.” The court continuing said: “The question presented is not whether the proposed entrance is at an appropriate place or of a proper width or construction, but whether the petitioner can be deprived of any access to his property from the roadway because the entrance would be used to some extent in connection with the business conducted on his premises. The provisions of the deed do not prevent the petitioner from using the restricted area for going to and from his gasoline station constructed on the part which is not restricted.

“The roadway in question was constructed by the Commonwealth . . . and is a public way. . . . Access to a public way is one of the incidents of ownership of land bounding thereon, and this right is appurtenant to the land and exists when the fee of the way is in the municipality as well as when it is in private ownership. ...

“The easement of access in the petitioner was not created by the deed to the Commonwealth but by the later conveyance to him of land to which the easement was appurtenant, and the decisions holding that a reservation of a right of way in a deed does not create an easement for the benefit of a stranger to the deed have no bearing on the case. . . .

“The rule of the respondents relating to entering or leaving the Parkway by regular designated entrances was not intended to take away property rights, in the discretion of the commission. If construed to mean that under it the commissioners may in their uncontrolled discretion take away from abutting owners their easement of access to a roadway the rule would be void. . . .

“The respondents’ duty was to grant a way of access upon the petitioner’s application subject to such reasonable regulations and requirements as to location, construction and use as it deemed to be necessary for the public safety and convenience. See Goodfellow Tire Co. v. Commissioners of Parks & Boulevards of Detroit, 163 Mich. 249.” The writ was awarded.

In Commissioners of Parks & Boulevards of Detroit, 163 Mich. 249 (referred to with approval in the Anzalone case ), it was held that the owner of property abutting on a boulevard has ordinarily a right of ingress and egress to and from his property, and that the commissioners were not warranted in denying the application of an abutting property owner to construct a driveway across his property to the boulevard. The court there referred to Dillon on Municipal Corporations and said: “Our attention has not been called to a case holding that an abutting owner might be deprived of ingress and egress by means of a driveway to and from his property to the highway in front of it. Certainly, when the legislature, in 1879, gave to the commissioners authority ‘to make all reasonable rules and regulations concerning the use of said boulevard,’ no one supposed they might deny the right of the abutting owner to construct a driveway to the boulevard.”

In the instant case, so far as we are advised by the record or briefs, nothing was said or done in the condemnation proceedings brought to acquire the property, touching the question of the right of plaintiff of ingress or egress to the roadway of the Outer Drive and it is held that such right need not be reserved by deed or otherwise but is a right appurtenant to the abutting property owner, and an incident of such ownership. Anzalone v. Metropolitan Dist. Commission, 257 Mass. 32.

In support of defendant’s contention that the Outer Drive is not a public highway, its counsel cite the statutes of this State, the decisions of our Supreme Court and cases from Massachusetts, New York and Michigan, and other States, but we think none of the cases is in point and the statutes do not cover the point in question. We think the law of Massachusetts, Michigan and New York on the question involved is as announced in the cases hereinbefore discussed.

In Burke v. Metropolitan Dist. Commission, 262 Mass. 70, one of the cases cited by counsel for defendant, a petition for writ of mandamus was filed by the property owner seeking to compel the commissioners to grant a permit for two driveway openings in Memorial Drive 25 feet wide so as to afford a way to and from a gasoline filling station located on his property. The prayer of the petition was denied, the court saying: “Roads and boulevards, built under authority of St. 1894, c. 288 (G. L. c. 92, sec. 35), have been held to be public ways” [citing a number of Massachusetts cases including the Anzalone case above discussed]. Continuing the court said: “But roadways constructed as a part of public parks, by park commissioners acting under the general authority conferred by St. 1893, c. 407 (G. L. c. 92, sec. 33), and amendments thereof, are not public ways, but an integral part of the park or open space for recreation. . . .

“The roadway in question was to be constructed by the city of Cambridge within the park, and as a part of its park system. ’ ’ The writ was denied.

We think the opinion in that case in no way modifies the Anzalone case. In that case, as the court said, the driveways were to be within the park. “The driveways petitioned for would pass over a sidewalk and cut through an adjacent strip of grass or lawn in which trees have been planted. One of these trees is in the proposed location of one of the driveways.”

The cases cited from Illinois, such as People v. Chicago Motor Bus Co., 295 Ill. 486 (which held that the Lincoln Park Commissioners were authorized to require the bus company to pay for using the streets under the jurisdiction of the commissioners), and LePitre v. Chicago Park District, 374 Ill. 184 (which held the District was not liable in damages for negligence which resulted in personal injuries) are not in point.

Counsel for defendant further contend that the “present means of ingress and egress enables plaintiff to have full access to his property and is reasonable and sufficient,” and that “The construction of the Outer Drive bridge did not take away any means of ingress or egress that existed prior thereto, nor confer any such right upon plaintiff. ’ ’

Holding as we do, that the Outer Drive is a public highway and that plaintiff has a right of ingress and egress, the points urged are not of controlling importance. As stated, there are two buildings now abutting on the roadway of the Drive, one on the east side and the other on the west side which have direct access to the Drive. We think it unreasonable for defendant to say that plaintiff has no such right. He ought to be permitted to construct his building in a proper manner considering all the surrounding circumstances and be permitted to conduct his business so as not to unreasonably interfere with the use of the drive.

Defendant contends plaintiff was guilty of laches in failing to take court action to assert his rights while the bridge was in the course of construction citing Brandenburg v. Country Club Bldg. Corp., 332 Ill. 136, and other cases. We think the facts in that case are not applicable to the facts in the case at bar. There a large apartment building was being constructed in violation of building restrictions. Plaintiff lived nearby and the court said: “The complainant, with knowledge of this work as it progressed, expressed no dissatisfaction and made no protest.” In the case at bar, plaintiff took the matter of the construction by him of a proposed building up with the Superintendent of Parks before the work had progressed very far — before any balustrades were constructed in front of his property, and told the superintendent he desired access to the building when constructed.

A case more nearly in point is Gerstley v. Globe Wernicke Co., 340 Ill. 270, where a bill was filed for a mandatory injunction to compel the removal of certain bridges built across an alley. The question of laches was discussed and it was held that a mandatory injunction was warranted.

We are not impressed by the witness who testified for defendant that if it had been known plaintiff was to construct a building such as proposed and had brought suit, the expenditure of $16, 926.05 for ornamental piers and spandrels would have been unnecessary. But in any event we think laches is not a defense under the facts in the instant case.

For the reasons stated, the decree of the superior court of Cook county is reversed and the cause remanded with directions to award a mandatory injunction as prayed for in the complaint.

Reversed and remanded with directions.

McSurely, P. J., and Matchett, J., concur.


author: Mr. Presiding Justice Friend

text:
    J. L. Oakes, Jr., Appellant, v. Chicago Fire Brick Company, Appellee.
    Gen. No. 41,167.

      Heard in the second division of this court for the first district at the April term, 1940.
    Opinion filed July 1, 1941.
    Levinson, Becker, Peebles & Swiren, of Chicago, for appellant; Harold M. Keele, Halbert O. Crews and Don M. Peebles, all of Chicago, of counsel.
    Alfred Roy Hulbert, of Chicago, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

J. L. Oakes, Jr., plaintiff herein, appeals from an order of the superior court striking his complaint and dismissing the cause on the sole ground that the action was barred by the Illinois statute of frauds.

The facts alleged in the complaint and which are taken to be admitted by the motion to strike may be briefly summarized as follows: March 8, 1937, plaintiff and W. J. Gilbert, defendant’s president, entered into an oral agreement at Haverford, Pa., by the terms of which defendant employed plaintiff to act as its sales manager for a period of one year beginning March 28, 1937, at a salary of $6,000 a year, payable in monthly instalments of $500 each. Plaintiff assumed his duties in accordance with the terms of the agreement March 28, 1937. May 31, 1937, he is alleged to have been discharged by defendant without cause. Thereafter defendant refused to pay the monthly instalments of salary provided by the contract. As the result of the alleged breach plaintiff filed suit to recover the unpaid balance of his salary. The court allowed defendant’s motion to strike the complaint and dismissed the cause on the sole ground as heretofore set forth that the action was barred by the Illinois statute of frauds.

Under the laws of Pennsylvania oral contracts not to be performed within a year from the date of their making have been uniformly held to be valid and enforceable by the courts of that State. (Bernstein v. Lipper Mfg. Co., 307 Pa. 36.) Since the validity and enforceability of the contract in Pennsylvania was alleged in the complaint, this must be held to have been admitted by the filing of defendant’s motion to strike under the provisions of the Illinois Practice Act. (Ill. Rev. Stat. 1939, ch. 110, par. 169, sec. 45 [Jones Ill. Stats. Ann. 104.045].) It follows, therefore, that unless the action is barred by the Illinois statute of frauds, plaintiff is entitled to prosecute his suit in this State.

The applicable portion of the Illinois statute of frauds (Ill. Rev. Stat. 1939, ch. 59, sec. 1 [Jones Ill. Stats. Ann. 55.01]) is: “That no action shall be brought ... to charge any person upon any agreement . . . that is not to be performed within the space of one year from the making thereof, unless the . . . agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing. ...”

The courts of some States have followed the early English decision of Leroux v. Brown, 12 C. B. 801, 138 Eng. Rep. 1191, holding that statutes of frauds employing phraseology similar to that of this State are remedial, but Illinois and many other jurisdictions have taken the opposite view and hold that a statute of frauds is substantive in nature and affects the validity of the contract. The leading case on the question in this State, Miller v. Wilson, 146 Ill. 523, enunciates the doctrine that the Illinois statute of frauds is substantive in nature, and not remedial. In that case an action of assumpsit was brought to recover a balance due on the purchase price of certain lots in Kansas, under an alleged contract of sale made by Miller with Wilson. The contract was made in Kansas and was valid and enforceable in that State, but it did not comply with the provisions of the Illinois statute of frauds, .and the defendant contended that the action was barred in Illinois by reason of that fact. The Appellate Court had reversed a judgment rendered in the circuit court in favor of plaintiff on the ground that there was no memorandum in writing by the defendant, and hence that an action could not be enforced upon it. The Supreme Court pointed out that the record contained no evidence whatever showing any law in the State of Kansas requiring a contract relating to the sale of lands to be in writing, and then proceeded to consider the question whether the validity of the agreement was to be determined under the laws of Kansas or those of this State. After citing and reviewing numerous authorities the Supreme Court concluded that a contract, valid in the. State where executed, may be enforced in another state under the doctrine of comity existing between States, and summed up its conclusion as follows (p. 531): Under the authorities cited, the laws of Kansas entered into and formed a part of the contract, and if the' contract was valid in that state, although it may be prohibited by our statute of frauds, our courts, under the doctrine of comity, in an action on the contract, could do no less than enforce it.” The significance of this decision is that the Appellate Court (Wilson v. Miller, 42 Ill. App. 332) had concluded, directly contrary to the Supreme Court, that no action can be brought in this State to enforce an oral agreement made in a sister State, whether valid there or not, which, if made in Illinois, could not, by reason of our statute of frauds, be enforced in this State. The decision of the Appellate Court was in effect that the Illinois statute of frauds was remedial, but the Supreme Court took the opposite view and in reversing the Appellate Court held that our statute is substantive in nature and affects the validity of the contract, Miller v. Wilson thus placed Illinois in line with those jurisdictions which have repudiated the doctrine of Leroux v. Brown. In the later case of Murdock v. Calgary Colonization Co., 193 Ill. App. 295, the court followed the rule in Miller v. Wilson, and held that an action brought in Illinois on an oral agreement executed in Alberta, Canada, for commissions in connection with the sale of land, cannot be enforced in Illinois because the statute of frauds of the Province of Alberta, where the contract was made, rendered it unenforceable. In commenting on the question under consideration, the court said (pp. 297, 298): “It is contended by the plaintiffs in error that the Statute of Frauds in question (the Alberta Statute of Frauds) affects merely the remedy, and that, therefore, the lex fori applies to this action, and not the lex loci contractus. This view has been upheld in England, in the case of Leroux v. Brown, 12 C. B. 801, and in this country the courts in some of the States have accepted the authority of that decision. . . . But we think the clear weight of authority is to the effect that Statutes of Frauds affect the obligation and the validity of contracts, and that hence the lex loci contractus applies and controls. . . .

“But whatever may be the rule in other States, it is clearly the settled law in this State that the subject-matter of a Statute of Frauds comes within the lex loci contractus, and therefore does not merely pertain to the remedy, but affects the legal obligation, and the validity of contracts (Miller v. Wilson, 146 Ill. 523);..."

In another Appellate Court decision, Brown v. Shubert Theatrical Co., 166 Ill. App. 322, the court, after citing Miller v. Wilson, held that a suit brought in Illinois upon a contract made in Wisconsin involving the laws of real estate, was controlled by the Wisconsin statute of frauds, and that the statute of this State was not applicable.

Although some States have held to the contrary the weight of modern authority seems to follow Miller v. Wilson. The case of Cochran v. Ward, 5 Ind. App. 89, 29 N. E. 795, is one of the early cases upon which the Supreme Court of Illinois relied in Miller v. Wilson. In that case it was held that the Illinois statute of frauds must be applied by the Indiana courts in a suit brought in that State on a parol agreement made and entered into in Illinois. In the course of its opinion the court pointed out (p. 797) that “It is impossible to consider a contract separately from the remedy given by the law for its enforcement, because it is this that supplies it with legal vitality. The law is an essential factor in every contract, and is presumed to be considered by the parties in their deliberations. If the law of the place stamps upon an agreement the quality that it shall be voidable, and that its performance shall be a pure matter of conscience or grace with the parties, that quality becomes a part of the substance of the agreement, and characterizes it wherever it may be. A right without a remedy for its enforcement is a mere fiction.”

Wharton, in Conflict of Laws (sec. 690f), observes that “in view of the anomalous results that follow from a strict application of the distinction made in Leroux v. Brown, and the tendency, already noted, to repudiate that distinction, the better view is, perhaps, to regard a provision of the statute of frauds as substantive, rather than remedial, if it declares that no action shall be brought on the contract, or that the contract shall be invalid or void, even though the rest of the language of the provisions . . . may, taken by itself, indicate that the statute was merely intended to prescribe a rule of evidence, rather than a rule of substantive law.”

Both Williston on Contracts, at p. 1521, and Goodrich on Conflict at Laws, sec. 88. p. 173, recognize and discuss the division of authority upon the question, and other States have followed the decision in Miller v. Wilson.

Defendant in its brief has avoided a discussion of Miller v. Wilson, and utterly disregards the extensive comments thereon by plaintiff. It relies on the decisions in the other States holding to the contrary. We are not unmindful of the fact that all States are not in accord on this question, but the rule in Illinois is definitely established in Wilson v. Miller, and we therefore hold that the superior court erred in striking the complaint and dismissing plaintiff’s cause of action. The judgment of the superior court is reversed and the cause remanded with directions to overrule the motion, require defendant to plead, and proceed with the trial of the cause upon its merits.

Judgment reversed and cause remanded with directions.

Scanlan and Sullivan, JJ., concur.


author: Mr. Presiding Justice

text:
    Louis Kulesza et al., Appellants, v. The Chicago Daily News, Inc. et al., Appellees.
    Gen. No. 41,401.

      Heard in the second division of this court for the first district at the October term, 1940.
    Opinion filed July 1, 1941.
    Harold O. Mulks, of Chicago, for appellants.
    Bell, Boyd & Marshall, of Chicago, for appellees; Thomas L. Marshall and James P. Johnson, both of Chicago, of counsel.
   Mr. Presiding Justice

Friend delivered the opinion of the court.

Plaintiffs, representing themselves as the elected officers and persons constituting a committee of the “Elbert R. Robinson Club,” brought a libel suit against the Chicago Daily News, Inc., and Frank Knox, its publisher, because of an article that appeared in the Daily News, June 19, 1939. Defendants’ motion to dismiss the complaint was sustained by the court and plaintiffs’ appeal from an order dismissing the suit at plaintiffs’ costs.

From the salient allegations of the complaint, which cover some 18 pages of the printed abstract, it appears that letters patent from the Commissioner of Patents of the United States had issued to Elbert E. Robinson in 1908, relating to a process for the manufacture o'f steel; that for the purpose of prosecuting various suits for the infringement of this patent, Robinson had induced some 3,000 persons to advance various sums of money to him, and had in turn promised these persons that they would receive enhanced sums of money from him in consideration of the loans when and if Robinson should be successful in recovering damages for the infringement of his patent; that upon Robinson’s death in 1925 those who had made advances to him formed what was called “The Elbert R. Robinson Club of Chicago,” for the purpose of determining the appropriate steps to be taken for enforcing their rights in the premises, and they had selected a committee, consisting of plaintiffs, to act for them; that in 1929 the committee brought suit in the U. S. District Court for the Northern District of Illinois for the infringement of Robinson’s patent, which was dismissed by Judge Wilkerson in February 1939; that thereafter plaintiff committee held meetings at various times and places in behalf of all the members of the club, for the purpose of discussing the advisability of taking an appeal from the order of dismissal, and they were seeking to raise funds to cover the expense of prosecuting such an appeal; and it is alleged that concerning these meetings, and shortly after one of such meetings, the following article appeared in the Daily News:

“They dream of millions while paying to ghost.
By Laurin Healy.
“ ‘The Rev.’ Elbert R. Robinson has been in his grave these 15 years, but his dreams of wealth go marching on among thousands of Chicagoans who still believe they will soon be millionaires through his activities.
“ ‘Dr.’ Robinson, it may be remembered, was once a Nashville Chiropodist, who came to Chicago before the turn of the century and became an inventor, and became known equally well as the South Side’s leading ‘philanthropist’ and as ‘The Negro Ponzi.’ In 1908 he was given a patent for a process of molding hard and soft steel that is used in the manufacture of railroad car wheels. Soon afterward he launched a dozen suits, against such companies as the American Car & Foundry Co., the Ford Motor Company and the Chicago Surface Lines, alleging infringement of his patents.
“Dr. Robinson was no piker. The smallest of his suits was for $50,000,000. One was for $1,200,000,000. At any rate the sums were too alluring for many of Chicago’s Negroes and white people to resist. When ‘Dr.’ Robinson went around selling ‘interests’ in his lawsuits, he found ready buyers.
“For $50 Robinson would sign a note saying: ‘When suit ends, I promise to pay John' Doe $50,000.’
“Drove gold-trimmed oar.
“By 1919 Robinson was reputed to have $500,000. He drove around in an Italian automobile of rakish lines trimmed in gold. His lawsuits were not going so well, but Dr. Robinson did not seem to mind, while they dragged through the federal courts, Dr. Robinson kept on selling ‘interests.’
“In 1920 the romantic Negro was sentenced to one to 10 years in prison for operating a confidence game. A month later he was liberated by Gov. Len Small and went back to his court litigations. When the good ‘doctor’ died in 1924 he had an estate of only $500—exclusive of his nebulous patent rights — which showed how well he shared his wealth.
“But this is not the end of the story. ‘Dr.’ Robinson’s Noteholders still cherish the yellowed paper which tells them that when the suit ends they will have many thousands of dollars. Some of his note-holders say there are 30,000 such notes existent in Chicago today. And 90 per cent of the holders are optimistic.
“In 1929 no less a statesman than the late James Hamilton Lewis came to the aid of those noteholders and attempted to have Congress extend the mystic patent.
“Who owns the patent?
‘‘The chief trouble now is that no one group of note-holders has proved clear title to the Robinson patent. Louis Kulesza of 1950 West Potomac street claims to be the rightful heir. Every Sunday morning he holds a meeting of his faithful, hopeful ‘Robinson Club’ members at the Atlas Hall, on Cortez street east of Ashland avenue, and whips up enthusiasm for pressing the suits.
“Right now the principal litigation is against the American Car and Foundry Company, asking $50,000,000 for alleged infringement of the Robinson patent. On Feb. 15, 1939, Federal Judge Wilkerson dismissed the bill against the company. Two weeks later he denied a motion to vacate that order. On March 16, 1939, he denied to the plaintiffs, Kulesza and his flock, the leave to file an amended bill.
“But the hopes go marching on nonetheless. Tester-day Mr. Kulesza held another meeting at the Atlas Hall. More than 500 of the faithful kept the tryst. Attorney Newell Mecartney who now represents the plaintiffs, declared that the case would be appealed at the October term of the Circuit Court of Appeals. There were cheers. Mecartney assailed the enemies of the Kulesza group — noteholders who have not joined in the law suit against the foundry company.
“A man from Milwaukee, who said he had spent $179 so far to keep up his note, said: ‘United we stand, divided we fall. We must get all the noteholders together to establish the fact that we have clear title. ’
“And more money needed.
“Hopeful Polish-Americans, Negroes and others, who had saved all week to get 14 cents carfare to attend, cheered when speakers said they would get their money. Kulesza spoke in Polish for 10 minutes, urging all to wait and they would be made rich.
“It is not the.original cost of the Robinson notes that is expensive, but the upkeep.
“ ‘We need $1,400 to appeal our case,’ said a speaker. His hearers, which have heard that story for lo these 30 years, were not dismayed. As they have many times in the past, they filed up to the front of the hall, signed a petition blank and plunked a dollar on the table.
“ ‘We’ll have the $1,400 by next Sunday,’ said a committee member.”

The gravamen of the complaint is that plaintiffs, who were officers of the club and members of the committee representing the large body of contributors to the Robinson project, were law abiding citizens, engaged in various lines of business and vocations, all giving their services to the organization gratuitously and exercising their best judgment on behalf of the members of the club, and that defendants in publishing the foregoing article, “wilfully, maliciously and, illegally; designing and contriving to malign and libel the plaintiffs, and to cause it to be falsely believed by the hundreds of thousands of persons who were then and there the readers and subscribers of the Chicago Daily News, that the plaintiffs were dishonest and dishonorable, and were falsely and fraudulently deceiving and misleading the various persons who constituted the membership of said Elbert R. Robinson Club, and were inducing and persuading the persons ... to advance money to the members of the committee . . . upon the representation, statement and promise that the same was to be used for the purpose of maintaining and conducting a litigation which the said plaintiffs knew to be devoid of merit; and to cause it to be falsely believed by the hundreds of thousands who are the readers and subscribers of said newspaper so known as ‘The Chicago Daily News,’ that the plaintiffs, and each of them, were operating and maintaining what is commonly known as a ‘racket,’ and were falsely, wilfully and intentionally misleading the membership of said Elbert R. Robinson Club, and were collecting large sums of money from said persons through the false and fraudulent representation, that by giving said sums of money said persons would, in all probability, receive therefor great gains, out of said litigation, when the said plaintiffs, and each of them knew, that there was no possibility of any of said persons recovering anything by said litigation; . . . and to cause the plaintiffs to be considered and regarded by intelligent citizens, as dishonest and disreputable persons, who obtained and procured money from other persons by false and fraudulent representations. ...”

Plaintiffs set forth some eight separate propositions by which they seek to reverse the order from which the appeal is prosecuted, but their principal contention may be briefly stated as follows: If the language claimed-to be libelous is susceptible of two or more constructions, one of which renders it libelous and the other not, and defendants join issue, then the meaning of the language becomes a question of fact for the jury; but where defendants move to strike, they admit by doing so that the language is susceptible of the meaning attributed thereto by plaintiffs in their complaint, and consequently the granting of the motion to strike the complaint constituted error.

It is evident from a reading of the article that this was a newspaper’s description of a campaign for the solicitation of money, and that the subject matter of the article constituted matter of public interest and concern, which under the current weight of authority is legitimate subject of criticism and comment by a newspaper, so long as it does so fairly and with an honest purpose. ‘ ‘ Such comments or criticisms are not libelous, however severe in their terms, unless they are written maliciously.” (17 Ruling Case Law, Libel & Slander, sec. 100, p. 352.) The evident purpose of the public gatherings sponsored by the members of the club and conducted by plaintiffs was to enlist further and continued support for the infringement suits and to get new and additional contributions. The conduct of the litigation had long been a matter of public interest, and was therefore the subject of legitimate criticism and comment by the press.

It may well be true, as is pointed out by defendants, that some of the “unfortunate note holders,” after reading the article, gave more careful and intelligent consideration than theretofore to the pouring of their savings into this project, and it was not amiss for a newspaper to point out to the uninformed element of the population the pertinent facts of the enterprise. The attention of the Daily Hews was called to the situation by reason of public hearings that were being held at the time, in which noteholders were being urged to invest more money in what was undoubtedly a hazardous undertaking, since the litigation had been dismissed by the U. S. District Court, and the newspaper committed no libel upon the committee in printing its comments on the project. In so doing, no attack was made upon the individuals who sponsored the enterprise, and neither plaintiff committee nor the noteholder group were charged with perpetrating a fraud; the article merely commented upon the history of the litigation and its recently unsuccessful termination before Judge Wilkerson, together with an implication that investors would probably lose their hard-earned savings and that the time had come when not too many gullible persons should continue to join in supporting the cause with their contributions. In Williams v. Chicago Herald Co., 46 Ill. App. 655, the court in commenting upon a newspaper’s description of a campaign for the solicitation of money, which was charged to be libelous, said (p. 665): “We cannot treat seriously, and thereby give a sort of dignity to the claim of the appellant to damages, for a publication, the tendency of which was simply to warn gullible fools against loss.”

Hone of the plaintiffs (except Kulesza) was named in the article, and there is no allegation that Kulesza and his coplaintiffs were injured, since in their public meetings they were able to convince noteholders to continue, after both sides of the project had been considered.

With reference to plaintiffs’ principal contention that the motion to dismiss should not have been allowed, since it admitted that the language of the article was susceptible of the meaning attributed to it by plaintiffs in their complaint, the law is well settled that a motion to dismiss will be sustained if the words claimed to be libelous are not reasonably or fairly capable of the construction placed upon them by plaintiffs, and that it is for the court to decide whether the publication was reasonably capable of the meaning ascribed to it in the innuendo. (Clarkson v. Book Supply Co., 170 Ill. App. 86, and numerous cases cited therein.) See also, Creitz v. Bennett, 273 Ill. App. 88; Payne v. Evening American Pub. Co., 267 Ill. App. 610; Davis v. Ferguson, 246 Ill. App. 318; McLean v. Caverne, 175 Ill. App. 273; Campbell v. Morris, 224 Ill. App. 569.

Plaintiffs stress the headline of the article, “They Dream of Millions While Paying to Ghost,” as affording a basis for the charge of defamation, but it is fundamental that in judging an article all the article must be considered and read, and that a headline will be read in connection with the language which follows. (LaGrange Press v. Citizens Pub. Co., 252 Ill. App. 482; Marshall v. Chicago Herald Co., 185 Ill. App. 224.) We think the words in the article upon which this suit is predicated are not reasonably and fairly susceptible of the charge that the acts of Kulesza and his associates were fraudulent. Defendants argue all through their brief that plaintiffs were merely zealots, trying to sell others to their point of view, although in a most hazardous undertaking for themselves as well as for any who might join them, and we think that the tenor of the article cannot reasonably and fairly be interpreted in any other light.

So far as defendant Knox is concerned the complaint contained no allegation charging him with responsibility for the article; it is merely alleged that the article appeared in the Chicago Daily News, published by defendant Chicago Daily News, Inc., and that Frank Knox was editor and publisher of the paper and supervised and controlled its publication and circulation and directed and controlled the policies of the corporation. There is no allegation in any way connecting him with the article; it is not even charged that he knew of it. Under these circumstances, it is the settled law in this State that “to make an officer of a corporation liable for the negligence of the corporation there must have been upon his part such a breach of duty as- contributed to, or helped to bring about, the injury; that is to say, he must be a participant in the wrongful act.” (Cyclopedia of the Law of Private Corporations, p. 3773; Simon v. Pelouze, 263 Ill. App. 177, 184; Frorer v. Baker, 137 Ill. App. 588, 594.)

We think the court properly dismissed the complaint upon the motion made by defendants, and the order or judgment appealed from is affirmed.

Affirmed.

Scanlan and John J. Sullivan, JJ., concur.


author: Mr. Justice Scanlan

text:
    Maria Halowatsky, Also Known as Maria Halowe, Appellant, v. Central Greyhound Lines, Inc., Appellee.
    Gen. No. 41,451.
    Heard in the second division of this court for the first district at the October term, 1940.
    Opinion filed July 1, 1941.
    Alfred M. Loeser, of Chicago, for appellant; Harold Z. Novak, of Chicago, of counsel.
    Ryan, Condon & Livingston, of Chicago, for appellee; John M. Tuohy and Robert I. Livingston, both of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiff sued to recover damages for personal injuries sustained by her as a result of an accident that happened while she was a passenger on a coach of defendant, a common carrier. At the close of all the evidence the trial court sustained a motion to find for defendant and the jury upon an instruction by the court returned a verdict of not guilty. Plaintiff appeals from a judgment entered upon the verdict.

The first count of the complaint alleges that on April 14, 1937, defendant was a common carrier operating passenger automobile buses through the States of Michigan, Indiana and Illinois for the purpose of carrying passengers for hire and reward to certain cities, villages and towns; that on the date aforesaid plaintiff became a passenger upon one of defendant’s buses operating between Detroit, Michigan, and Chicago, to be carried from Detroit to Chicago; that when the bus reached Michigan City, Indiana, it passed over a highway in said city known as Pine street, and while operating the bus on said street, defendant negligently operated the bus so that plaintiff was knocked to the floor and that she sustained certain injuries; that “at the time and place above mentioned, the defendant did one or more of the following acts and as a result thereof wrecked the motor bus operated by it, causing the damages and injuries to the plaintiff as aforesaid: a. Wantonly, recklessly and maliciously drove and operated said motor bus having no regard for the safety of others, b. Drove and operated said motor bus contrary to and in violation of Ordinance 1385 of the G-eneral Ordinance of the City of Michigan City, Indiana, c. Drove and operated said motor bus contrary to and in violation of Section 47-516 of the Uniform Act regulating traffic on highways, d. Otherwise so negligently drove and managed said motor bus that it ran into the pavement causing the damages and injuries as aforesaid.” The count further alleges that plaintiff, at the time, was in the exercise of due care and caution for her own safety; that she sustained serious injuries and also lost “great sums of money, jewelry and other valuables” to the extent of $500; that the injuries she received are permanent, and she prays for $25,000 damages. The second count charges general negligence.

The accident happened as the bus was proceeding down Pine street in Michigan City.' Plaintiff testified that she boarded the bus in Detroit to go to Chicago; that she took a trip between Detroit and Chicago on one of defendant’s buses three and four times a year; that on the time in question she had a seat next to the chauffeur so that she “could watch the dials, his clock — watch and see those things;” that upon former trips the bus did not proceed down Pine street; that the bus was “going very fast. It was between 45 and 50;” that she told the driver “he should be a little bit careful because we might have an accident because the bus was bumping up and down;” that the driver did not slow down the bus after she talked to him and the bumping continued; that “all of a sudden I saw myself lying on the floor and to my mind it came that the bus is going to the water, like to the lake, something like this, and I thought it was the end of me and that’s all I know. When I woke I was right outside of the bus. From there I went in an ambulance to the hospital.” Upon cross-examination the witness testified that the accident happened in the evening between eight and nine o’clock. Several doctors testified as to the injuries sustained by plaintiff. This concluded the evidence for plaintiff, save the testimony of the witness Robinson, that we will hereafter refer to. A motion by defendant for a directed verdict was denied.

Defendant’s evidence demonstrates how and why the accident occurred. Richard P. Frame testified that on April 14, 1937, he was city civil engineer of Michigan City; that the condition and maintenance of the sewage system came under his supervision; that he was called to the place of the accident about 9:30 p. m., and found that the pavement had given way under a Greyhound bus; that the bus was still in the hole in the street; that he made an immediate investigation to find the cause of the accident; that he found that the sewer had broken as a result of a heavy storm, and that the water had washed away all of the sand between the surface of the pavement and the sewer itself and that the pavement had caved in from the weight of the bus; that the hole was about five feet deep; that the next morning he found that the sewer had been cracked vertically and horizontally for some period and that the excessive storm and large volume of water that evening had caused the sewer to collapse; that just before the accident the pavement had been repaired and was in fairly good condition. Upon cross-examination the witness testified that the Greyhound buses going toward Chicago usually used Spring, Pine or Franklin streets; that at this time they were repairing Pine street. Upon redirect the witness stated that “this street was all right to be used. There was no connection between the breaking of the sewer and the work they were doing on the surface of the road. ’ ’ John Ramion, a street commissioner of Michigan City, testified that on the day in question there were some surface repairs being made on Pine street and that after the accident he saw the bus with the back end of it down in the hole; that the next morning he found a broken sewer tile about five or six feet below the surface of the street. Upon cross-examination the witness stated that he did not think the bus could have cracked the sewer. Upon redirect examination the witness testified: “On April 14, there was a heavy rain storm. Between Franklin, Pine and Spring streets, Pine street was the worst of all. ’ ’ Paul Buell, a contractor, testified that at the time of the accident he was a sewer maintenance man and that he was called to the scene of the accident to put up barricades and lights; that there was a hole in the pavement and the left rear wheel of the bus was down in the hole; that the hole was about six feet wide, four feet long and about six feet deep; that when he looked in the hole he found that the tile was broken at the south end of the hole; that the next morning when he went to repair the sewer he found that the tile was broken “in four sizes and I removed the tile with my hands by throwing it out.. I removed three lengths of sewer pipe;’’ that on the day of the accident they had “a heavy downpour . . . , about the heaviest I have seen in Michigan City since I have lived there;” that it was still raining at the time of the accident. William J. McCarthy testified that he lived in Burlington, Wisconsin, and worked for a feed manufacturer; that he was a passenger on the bus at the time of the accident; that while the bus proceeded over Pine street it stopped suddenly and the rear left end dropped; that it seemed to him that the left rear wheel had broken off; that when he got off the bus he saw that the right front corner of the bus was raised off the pavement about a foot and that in the left rear corner there was a hole in the street and the pavement had given way through the weight of the bus; that at the time of the accident it was raining quite hard. D. L. Becker, the driver of the bus, testified that there were nine or ten passengers on the bus; that as he was proceeding on Pine street, in Michigan City, at a speed of about fifteen miles per hour, “all at once the bus stopped and kind of tilted to the rear a little bit and I turned on the inside lights, told the passengers to be calm, and got out to see what was' the matter. I saw the street had given way underneath the rear of the coach. There was a hole in the street there, and the left rear wheel was in the hole.” Upon cross-examination he testified that he always used Pine street in proceeding through Michigan City. Upon recross-examination the witness stated that the bus was about seven and one-half feet wide, thirty feet long, and weighed, when empty, about 18,000 pounds. A number of passengers that were on the bus testified that at the time of the accident the bus was going about fifteen miles per hour, but this evidence cannot be considered in passing upon the ruling of the court in directing a verdict for defendant.

Plaintiff contends that by showing that she was a passenger at the time of the injury she made out a prima facie case of negligence against defendant and that defendant was thereupon called upon to rebut or overcome a presumption of negligence that follows from the mere fact of injury. This contention is without merit. That the doctrine of res ipsa loquitur does not apply unless all the instrumentalities contributing to the accident are under the carrier’s control, see Chicago City Ry. Co. v. Rood, 163 Ill. 477; Letush v. New York Cent. R. Co., 267 Ill. App. 526. But in the instant case, as we have heretofore stated, defendant showed conclusively the cause of the accident. While the pavement gave way under the weight of the bus, the cave-in that caused the pavement to give way resulted from a broken sewer under the street, the water from the sewer having washed away the sand that had been between the pavement and the sewer. Defendant had no control over the sewer nor the street, and there is nothing in the evidence from which it could be inferred that defendant could have foreseen the sudden collapse of the pavement. Plaintiff argues that there is evidence to show that Pine street was in a bumpy condition and that defendant operated the bus over that street when it had the opportunity to proceed over either one of two nearby streets that were not bumpy. It is a sufficient answer to this contention to say that plaintiff was not injured because Pine street was in a bumpy condition, nor did that condition proximately contribute to bring about the accident. Plaintiff also urges that her evidence shows that at the time of the accident defendant was proceeding at a high rate of speed, in violation of the Indiana statute, and that a jury would be justified in finding that the high rate of speed of the bus might have contributed to the collapse of the pavement. We are unable to see any causal connection between the speed of the bus and the accident. Indeed, the pavement would be more likely to collapse if the very heavy bus had been standing on it. Plaintiff contends that the testimony of her witness Robinson tends to support her claim that the excessive speed of the heavy vehicle had a direct bearing upon the accident. We do not think so. Robinson made no personal observation of the situation after the accident, nor at any other time, and his testimony amounts to no more than a conjecture that there might be several causes for the breaking of the sewer, “too much weight, defects of the fill above the sewer, poor circulation or poor runoff. . . . The rate of speed of a vehicle together with weight could have something to do with the breaking of the sewer.” It would be idle to argue that while the bus speeded over the spot where the accident occurred, traveling only a few feet, it broke the sewer and thereby caused the water from the sewer to escape and wash away all the sand between the sewer and the pavement. In the face of the positive evidence of witnesses as to the cause of the collapse of the pavement the conjectural evidence of Robinson that the speed of the bus, or several other causes, could have something to do with the breaking of the sewer, has no probative weight in determining the cause of the accident. Photographs showing the situation, after the accident, strongly support the testimony of the witnesses for defendant as to the cause of the collapse. The general rule is that a fact cannot be regarded as proven where the evidence merely gives rise to conjecture or suspicion of its existence. (17 Cyc. 754.)

Plaintiff contends that the court abused its discretion in refusing to admit competent evidence offered on behalf of plaintiff. There is no merit in this contention. At the close of all the evidence, after the trial court had heard arguments upon defendant’s motion for a directed verdict and was ready to pass upon the motion, counsel for plaintiff stated that he would like to have the cause reopened for the purpose of having a witness testify, whereupon counsel for defendant objected to reopening the case upon the ground that the court was ready to make a ruling upon the motion to direct a verdict. Counsel for plaintiff then stated that he realized that it was a matter that rested in the sound discretion of the court, but he thought that in justice to plaintiff the witness should be heard. The counsel made no statement to the court as to who the witness was nor what counsel expected to prove by the witness, but he undertakes to inform us of the nature of the evidence that he expected to prove by the witness. We must pass upon the trial court’s action in the light of the record that was presented to the trial court. It is evident from the statement made by plaintiff’s counsel to the trial court that he did not place much reliance upon the testimony of the witness he sought to introduce. The instant contention is without the slightest merit.

The accident was a deplorable one, but after a careful consideration of all the evidence in the case we are satisfied that the trial court was justified in directing a verdict for defendant.

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

Judgment affirmed.

Friend, P. J., and John J. Sullivan, J., concur.