text:
    William King, Appellee, v. Frank M. Meeker and Rebecca O’Dell, Appellants.

      Opinion filed January 23, 1933.
    Wilson & Wilson and June C. Smith, for appellants.
    Ward P. Holt and Wham & Wham, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

In the City of Centralia, Broadway is the main east and west street. Pittenger avenue, a paved street in the business center, runs north from Broadway. On the east side of the avenue 130 feet north of Broadway is the south wall of the Wilken building. The building is 15 feet wide north and south, fronts on the avenue, and extends east 30 feet. It is completely surrounded, except on the west, by an open space of at least 30 feet in width which is used by the public as an alley.

The Mid-West Dairy Corporation has a garage on the west side of the avenue, the entrance to which is opposite the alley on the south side of the Wilken building. The plant of that corporation is about four blocks from the said garage.'

Appellee was employed by that corporation to deliver its products to customers by means of a large truck. On Sunday, November 16, 1930, he loaded his truck at the plant so as to get an early start the next day. Intending to store the loaded truck in the garage until morning he drove it to that vicinity but it was too large to permit him to turn from the avenue'into the garage. He backed the truck into the alley close to the south side of the Wilken building and stopped with the front of the truck about even with the east line of the avenue. He then left the truck, walked across the avenue and opened the door of the garage. He returned to the truck and tried to start it but found he was out of gas. He went in search of gas and having secured it, he came back, raised the hood of the truck, disconnected the pipe to the vacuum tank and poured in the gas. While so engaged he stood on the south side of the truck and that part of the alley south of where he stood was about 20 feet wide. It was then about 11:45 a. m. After putting in the gas he was stooped reconnecting the pipe to the tank; a car came around the east end of the Wilken building and turned west toward the avenue. There was ample room for the car to pass appellee.on the south but the driver made such a short turn to go north on the avenue that the running board of the car caught appellee’s legs and pressed them against the truck with such force that both bones of one leg were broken between the knee and ankle.

The evidence clearly shows that appellant Meeker owned the car. He and appellant O’Dell had some furniture stored on Maple street. Mrs. O’Dell was talking to Meeker about taking his car to go to see about the furniture they had stored. He told her he would like for her to get his hunting suit out of storage and bring it back to him. She got in the car, started on that mission and ran into appellee before she left the alley. She was the agent or servant of Meeker and they may be sued jointly for any negligence on her part. Skala v. Lehon, 343 Ill. 602.

Under the evidence, negligence and contributory negligence were questions of fact for the jury and we would not be warranted in disturbing their conclusions with reference thereto. The court did not err in sustaining the demurrer to the special plea. O’Brien v. Chicago City Ry. Co., 305 Ill. 244. It is argued that the court committed numerous errors in permitting leading and suggestive questions over objections. Nearly all of the objections referred to were general and in the few instances where they were specific they were not well taken. Appellants tried to show on cross-examination of appellee that he had not paid his doctor and hospital bills and that those bills were paid by some other person or corporation. The objections to that line of examination were properly sustained.

It is argued that X-ray pictures were improperly admitted over the objection that there were no qualifications shown that they are within the rule. The witness has been engaged in X-ray and laboratory work since 1924 and in taking the pictures he had used the latest improved machine. There was no controversy as to the nature or extent of appellee’s injuries. Both bones of the leg between the knee and ankle were broken and one of them protruded through the flesh. We think the pictures were properly admitted in evidence but even if they should have been excluded we cannot see how their admission in evidence could have harmed appellants. The court did not err in refusing appellants’ refused instructions. Some of them were not accurate statements of the law and those that were proper were covered by some of the 11 instructions that were given on behalf of appellants. No reversible error has been called to our attention and the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Edwards

license: Public Domain

text:
    Harry W. Schumacher, Appellant, v. Walter C. Klitzing et al., Appellees.

      Opinion filed January 23, 1933.
    Byron Piper and Parker & Bauer, for appellant; A. D. Stevens, of counsel.
    G. F. Taylor, for appellees City of Altamont and its officers; Walter C. Klitzing, of counsel.
    Jones, Hooker, Sullivan & Gladney and Willard A. McCaleb, for appellee Fairbanks, Morse & Co.
    Poppenhusen, Johnston, Thompson & Cole, of counsel.
   Mr. Justice Edwards

delivered the opinion of the court.

The City of Altamont, a municipal corporation operating under the Commission Form of Government Act, Cahill’s St. ch. 24, ¶ 323 et seq., and maintaining an electric generating plant for use of the city and its inhabitants, on January 5, 1932, by ordinance, determined that an addition to its plant was necessary for its more efficient operation; that a Diesel engine and incidental appurtenances be purchased; that same should be paid for out of the net income of the plant; that the city should issue its certificates of indebtedness therefor, payable solely as aforesaid, and that no tax should be levied on account of same. Bids therefor were received, and on February 1, 1932, the council passed an ordinance accepting the proposal of •Fairbanks, Morse & Co., in the sum of $23,650.80, to be paid for in 60 equal monthly payments, evidenced by certificates as aforesaid, and directing the mayor and city clerk to enter into such contract, which was done.

The annual appropriation ordinance of the city, then in force, did not provide for such addition to the generating plant, and no vote of the people was had on-the question of the issuance of such certificates. The assessed valuation of the taxable property within the corporation at the time was $745,960, and the maximum indebtedness which could be legally incurred by the municipality was $18,649, of which there were then outstanding obligations amounting to $10,000. Said plant at such time, and previous thereto, had been operating at a net profit of $2,000 annually.

All the foregoing facts are alleged in the bill of complaint, which further averred that the net annual income of the plant, in the future, even with such addition, would be $2,000; also, that the pledge of the net income of the plant, theretofore owned and operated by the city as aforesaid, together with the proposed addition to same, amounted in law to a pledge and conveyance of the property itself, and constituted the certificates, so secured, debts of the city within the meaning of the law. That the city was without power to enter into such contract; that it had no legal warrant to issue such certificates, payable out of the net revenue of the plant, without the ordinance authorizing their issue being first submitted to the electors of the city, and approved by a majority thereof; that the ordinance of January 5, 1932, did not go into effect until 30 days after its passage, and that the ordinance of February 1, 1932, authorizing- the execution of said contract, was passed before the former act became operative.

The bill further charged that as a consequence of the foregoing allegations, the contract, and the ordinance purporting to authorize same, were void; that the city officers, and Fairbanks, Morse & Co., the appellees herein, treat the same as valid, and intend to carry them into effect unless restrained. The bill prayed that all of appellees, their agents and employees, be enjoined from carrying* out or taking any steps to execute such contract in any manner whatever.

To this bill was filed a demurrer, which the court sustained. The complainant below, appellant here, elected to abide by his bill, which was dismissed, and from the order he has appealed.

Appellant contends that inasmuch as this cause involves the validity of a municipal ordinance, the appeal should have gone directly to the Supreme Court, and that we should order it transferred to that court. In section 118 of the Practice Act, Cahill’s St. ch. 110, If 118, designating which appeals should be taken, in the first instance, to the Supreme Court, it is provided, among* others, “and in cases in which the validity of a municipal ordinance is involved and in which the trial judge shall certify that in his opinion the public interest so requires”; which section was quoted approvingly in Village of LaGrange Park v. Jarecki, 321 Ill. 177. In the instant case there is no such certificate of the trial judge, hence the appeal was properly perfected to this court.

As before stated, the bill alleges that the pledge of the net income of the generating plant, in its entirety, to secure the certificates of indebtedness, amounts to a pledge and conveyance of property itself, and consti-. tutes the obligations, thereby secured, debts of the city. This conclusion, in our opinion, is not warranted.

In Ward v. City of Chicago, 342 Ill. 167, and Maffit v. City of Decatur, 322 Ill. 82, it was held that where an enlargement of a public utility is authorized by ordinance, and the certificates of indebtedness are to be paid solely from the revenues derived from the operation of the utility, their payment does not create an indebtedness of the city, even though payment is not limited to the increased revenues arising from the improvement.

These are the last expressions of the Supreme Court on the subject, and consequently are the law of the State. This is the only allegation in the bill, to the effect that the ordinance and contract create a debt against the municipality," and under the cases last cited, such position is not tenable.

A private citizen who seeks to restrain city officials from entering1 into an unauthorized contract, unless the same involves the assessment of a tax for an illegal purpose, or the misappropriation or waste of public funds or property, must show that he will suffer an injury differing in kind, and not merely in degree, from that borne by the public generally.

Seager v. Kankakee County, 102 Ill. 669, was a case where a taxpayer sought an injunction to restrain a county board from unlawfully issuing a license to sell intoxicating liquors. The writ was denied, the court holding that whatever of injury would result from the issuance of the license, would be common to all the inhabitants of the township, affecting all alike, with no special injury to the complainant; that the rule was established that where public officers are about to violate a duty, public in character, one not suffering any special injury cannot maintain a bill to restrain the violation. This decision is cited with approval in Bistor v. Board of Assessors of Cook County, 346 Ill. 362, at page 373, see also City of Chicago v. Union Building Ass’n, 102 Ill. 379, where it is said: “In no case has it ever been held that a private individual may maintain a bill to enjoin a breach of public trust (in the absence of statutory authority) without showing that he will be specially injured thereby.”

In Fellows v. Walker, 39 Fed. 651, an injunction against the execution and sale of bonds for a gas plant, in the City of Toledo, Ohio, was refused where the act under which they were proposed to be issued provided that the revenue derived from the sale of the gas waste be applied to the payment of the principal and interest of such bonds, for the reason that it did not appear that it would be necessary to resort to taxation to meet such obligations.

Rice v. City of Indianapolis, 183 Ind. 203, 108 N. E. 584, was a suit by a taxpayer to restrain the city, and an electric light company, from carrying- out a contract for public lighting, on the ground that the contract was void. The court ruled that complainant had no interest in the contract, except in so far as its performance would affect the city treasury, and where he fails to aver that any of the public funds are in danger of being illegally dissipated, his bill does not state a cause of action.

The Supreme Court of Wisconsin, in Berger v. City of Superior, 166 Wis. 477, 166 N. W. 36, in a suit by taxpayers to restrain performance of a street paving contract, on the ground that same was invalid, stated the law to be that the bill of complaint must affirm a.tively set forth that loss to the general taxpayers will follow, otherwise it is insufficient as a pleading.

The rule as above stated was also similarly declared in Strickland v. Knight, 47 Fla. 327, 36 So. 363; Clark v. Interstate Independent Telephone Co., 72 Neb. 883, 101 N. W. 977; Anderson v. City of Montevideo, 137 Minn. 179, 162 N. W. 1073; Andrews v. City of South Haven, 187 Mich. 294, 153 N. W. 827.

In the instant case, there is no charge in the bill that the contract will impose any tax burden upon the municipality, nor in any way affect the city treasury. It does not aver that, as a consequence, the service rate for electricity will be increased, nor that property of the corporation will be taken or appropriated to further the performance of the terms of the contract; neither does it aver that appellant would sustain any special damage. On the contrary, it appears from the allegations that whatever of injury would result to him, would be common to all the inhabitants of the city. In such case, within the rule of the authorities cited, he, as a taxpayer, would have no recourse to equity to enjoin the performance of the terms of the contract.

In order to state a cause for equitable interference, it was imperative that appellant aver that as 'a result of the contract’s performance, he would sustain some special injury. The bill contains no such allegation; for which reason it was insufficient, and the court properly sustained the demurrer. • ■

Decree affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Union Colliery Company and Edward Leming, Plaintiffs in Error.
    Opinion filed January 23, 1933.
    Isaac K. Levy, for plaintiffs in error.
    Fletcher Lewis, State’s Attorney, Boy C. Martin and W. B. Kee, for defendant in error.
   Mr. Justice Edwards

delivered the opinion of the court.

The State’s attorney of Jackson county filed an information in the county court, charging plaintiffs in error, Union Colliery Company and Edward Leming, its superintendent, with violations of what is known as the “"Shot Firers’ Act.” Cahill’s St. ch. 93, If 36 et seq. The information contained two counts; the first of which charged the violation of the act by neglecting and refusing to employ a sufficient number of practical, experienced miners, to be designated as shot firers, and to make their duties exclusively confined to inspecting and doing the firing of all blasts, prepared in a practical workmanlike manner, in the mine in question, and permitting and requiring shot firers to do and perform other duties in and about the mine. The second count set forth that shot firers were permitted and required to interchange with each other in the drilling of holes, preparing blasts, and in the inspection and firing of such blasts prepared by each other.

Motion to quash the information, and each count, was made and overruled, to which ruling exception was saved; trial by jury was waived, and the cause submitted to the court. After a hearing, the court found both plaintiffs in error guilty, upon both counts, and assessed a fine of $100 against each one, upon each count. This writ of error is sued out to reverse such judgment.

Plaintiffs in error contend that the information does not charge a crime; that the statute does not provide that persons engaged as shot firers shall not be permitted to do any other work than inspecting and firing-shots or blasts, and that the act does not preclude shot firers from interchanging with other shot firers in drilling and preparing holes for blasting, and inspecting- and firing such blasts.

On page 15 of the brief and argument of defendants in error, it is stated that section 2 of the act prescribes the duties of shot firers, and that the first information count is predicated upon that section; also, that the conduct, as charged in the second count, is a subterfuge to avoid the provisions of the Shot Firers ’ Act, and is not in compliance with the intent or purpose of said section 2, Cahill’s St. ch. 93, ¶ 36. Hence it is manifest that the prosecution is based upon the second section of the act, and to determine whether the information states a violation of its terms, it is necessary to consider the section, which is as follows:

“In all mines in this State where coal is blasted, and where more than two pounds of powder is used for any one blast; and, also in all mines in this State where gas is generated in dangerous quantities; a sufficient number of practical, experienced miners, who shall be citizens of the United States, and able to speak and understand the English language, to be designated as shot firers, shall be employed by the company, at its expense, whose duty it shall be to inspect and do all the firing of all blasts, prepared in a practical, workmanlike manner, in said mine or mines. ’ ’

Section 8 of the act, Cahill’s St. ch. 93, ¶ 42, provides that for a violation of any of its terms, the offender shall be subject to a fine or jail sentence, or both, in the discretion of the court.

The statute, being penal, is to be strictly construed, and not to be held, by construction or implication, to embrace matters which are not clearly within its terms. Atchison, T. & S. F. Ry. Co. v. People, 227 Ill. 270; State Board of Health v. Ross, 191 Ill. 87, at page 93.

It is evident that the purpose of the enactment is to promote the safety of mineworkers, and to further the efficiency of coal mining operations in certain cases, by requiring that in such situations the inspection and firing of blasts shall be under the direction of miners whose experience and skill fits them for the performance of such hazardous work, and that it be not left to the inexperienced and incapable employees. The matter is of such gravity that the operators of mines, of the classes mentioned in the statute, are required to provide a sufficient number of shot firers to inspect and fire all blasts within such mines, and if they fail to comply, are subject to a penalty.

The questions for decision are, Does section 2, when interpreted, require that persons, employed as shot firers, be precluded from doing any work in or about the mine other than inspecting and firing all blasts therein? Further, Does the construction of such statute prohibit persons so employed from interchanging, with each other, in the drilling of holes and preparing blasts, and in the inspection and firing of blasts prepared by each other?

The section, by its terms, refers to but one duty of the shot firers, and that is, the inspection and firing of all blasts, prepared in a workmanlike manner, in the mine. In section 3 it provides the further duty, that immediately upon the completion of their work, they shall post a notice in the mine, which shall indicate the number of shots fired, also the number not fired, specifying the number of the room and designation of the entry, together with the reason for not firing same, and shall keep a daily record, in permanent form, of such matters, which shall remain in the custody of the mine manager, and be subject to inspection at all times by interested parties.

Section 6 prohibits a shot firer from firing any unlawful shot or blast which, in his judgment, based upon his inspection, is not a workmanlike, proper and practical shot. No other duties are enjoined upon shot firers by any section of the act, nor does it contain any prohibition against their doing any other work around the mine, when not occupied by their duties of inspecting or blasting, nor is there any inhibition that they may not interchange in the performance of their duties in the drilling of holes and preparing blasts, and in the inspection and firing of such blasts, so prepared by each other.

The act is a criminal statute, to be strictly construed, and is not, by interpretation, to be held as including matters and situations which are not manifestly within its provisions. Atchison, T. & S. F. Ry. v. People, supra; Siegel v. People, 106 Ill. 89, at page 97; People v. Peacock, 98 Ill. 172. The second section is clear and understandable, and apparently fully covers the subject it is designed to meet.

To hold that said section requires that shot hirers may not be employed to do any work about a mine, except the inspection and firing of blasts, where such other work in no way conflicts or interferes with their duties as shot hirers, or that they may not interchange with each other in drilling and preparing blasts, and in the inspection and firing of same, is to read into the section a provision not appearing therein, and which a court is without power to do.

In our opinion, the information did not, in either count, charge a criminal offense, and the court erred in overruling the motion to quash. For which reason the judgment will be reversed.

Judgment reversed.


text:
    Franklin Laury Greene et al., Appellants, v. United American Benefit Association, Appellee.

      Opinion filed January 23, 1933.
    E. Spencer Miller and Kasserman & Kasserman, for appellants.
    Albert E. Islet, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

On April 29, 1929, appellee issued its mutual benefit certificate to Isaac Baker Greene, by which it promised to pay to appellants, as beneficiaries, at his death, the sum of $500, according to the terms of the certificate. Mr. Greene died on March 18, 1930; proofs of death were duly made, appellee disclaimed liability, and this suit was instituted to recover the face of the certificate. Trial by jury was waived, and the cause submitted to the court, who, after a hearing, rendered judgment for appellants in the sum of $50, holding that the amount of appellee’s liability was limited by a certain section of the certificate, hereinafter set forth, and known as the ‘‘Chronic Diseases” clause. From this judgment appellants have appealed.

Two principal questions are involved; first, the application and interpretation of the clause mentioned ; second, the nature of the malady which occasioned the death of Mr. Greene.

The “Chronic Diseases” clause was in the following words:

“Chronic Diseases:• — In all fairness to the members and in order to guard against the undesirable and physically unfit risks, it is hereby stipulated that: Should the member die within thirty days from the date hereof, from heart disease, liver or kidney trouble, Bright’s disease, diabetes, cancer, arterio sclerosis, cerebral hemorrhage, pernicious anemia, tuberculosis, or any chronic disease, the maximum benefit hereunder shall be one-fiftieth of the face value of this certificate, and shall increase one-fiftieth of the face value each sixty days thereafter during the life of the member, until such chronic benefit reaches the full face value of the certificate in accordance with the conditions relating to death benefit as stipulated on the first page hereof.”

At the trial, such clause was regarded by the court, and the parties, as being of first importance; and in this court both appellants and appellee have argued that said provision is the element which controls the decision of the cause. Both are agreed that, by its terms, if the insured should die of any of the causes specified therein, within 30 days of the issuance of the certificate, that the beneficiaries would receive one-fiftieth of its face value; that should the insured live for 90 days after its issuance, and then pass away of any of such disorders, appellants would receive two-fiftieths of the certificate’s face; should he live for five months after the certificate was issued, and then die, from one of the said maladies, they would be entitled to three-fiftieths of its face, and would, for each succeeding 60 days, which he should thereafter live, receive an additional one-fiftieth of the amount of the certificate, if he should die from one of the prohibited causes, until the chronic benefit reached the full face value of the certificate; which would necessitate the insured’s living in the neighborhood of eight years to entitle his beneficiaries to the full value of the certificate. They, however, differ as to the character of the disorders which are designated. Appellee insists that it has reference to all diseases which are enumerated, whether they be acute or chronic, while appellants’ position is that only diseases which are chronic are contemplated by the clause.

The parties have treated the interpretation of the section as the chief element of the case; have argued their respective contentions as to its meaning, and ask that we construe the clause, in order to determine whether the specified maladies comprehend both those which are acute, as well as those which are chronic, or whether it has regard alone to those which are chronic.

In bold type, this clause is headed, “Chronic Diseases.” Manifestly this is for the purpose of attracting attention to same, and emphasizing the fact that it relates to chronic disorders, which have been defined to be ailments of long standing, and unyielding to treatment. State Medical Board v. McCrary, 95 Ark. 511, 130 S. W. 544; see also City of Chicago v. Fitzgerald, 75 Ill. App. 174, at page 180. If it has reference to maladies which are not chronic, why the necessity, or the reason, for designating the clause as “Chronic Diseases,” and doing so in large type, the obvious purpose, as well as the effect of which, is to draw it to the attention of parties interested, and create the impression that it related to disorders, chronic in character. After enumerating certain specified diseases, it follows with the phrase, “or any chronic disease,” and then, after making provision for increase of maximum benefits, as the age of the certificate shall increase, during the life of the insured, refers to the benefits as “such chronic benefit.”

The last quoted phrase, used broadly and without reserve, relates to all benefits which are conferred by the clause, and by referring to them collectively as “such chronic benefit,” denotes a purpose that the section should include only chronic diseases. If not, why characterize them all as “such chronic benefit.” Why not simply designate them “such benefit”; as in such situation the word “chronic” would be meaningless' and superfluous. We see nothing in the clause to indicate that the word was not intended to be used in any other than its ordinary sense, and be given its usual meaning.

Counsel for appellee argues that the words, 1 ‘ or any chronic disease,” indicate that the enumerated disorders, preceding the phrase, are within the purview of the clause, whether they be acute or chronic. The fundamental rule of construction is that the entire clause must be considered, in order to determine its meaning; that the relation and connection of one phrase, to the others, must be taken into account, in ascertaining the significance of each part, as well as the whole, and that a single phrase may not be considered alone, and separated from the other parts. Chicago Home for Girls v. Carr, 300 Ill. 478. 45 Corpus Juris 24, sec. 22. Considering the clause as an entirety, we are impelled to the conclusion that it was intended to cover only diseases which are in their nature chronic.

The insured died, while riding on a street car, on his way to work. The cause of his death was admittedly cerebral hemorrhage or valvular heart disease. He had apparently been in usual health, without indication of disease; had worked each day, and over a long period of time had only been medically treated for minor ailments, such as colds. Dr. Sylvis, who knew him for many years, and had attended Mm at times for the lesser infirmities referred to, testified, by deposition, that he saw decedent the day preceding his death, and that there was no indication of any disease, either acute or chronic, at that time; that his condition was apparently normal; that after his death, he examined him, by inspection only; that where cerebral hemorrhage is the cause of death, there are no signs of the malady discoverable, just before decease. The same doctor furnished written proofs of death, wMch same were introduced in evidence by appellee, in which, in response to questions, he made answers which were somewhat contradictory, giving the cause of death as valvular heart disease, of six months’ duration, and cerebral hemorrhage as a contributory cause. In the same statement, in answer to other questions, he declared that deceased, in his opinion, was not afflicted with disease or ailment of any nature, two months, six months, or twelve months, prior to death; and in reply to the question: “Did deceased, have any chronic disease or ailment!” answered, “No.” He also stated that he had no constitutional disease or ailment, and was in apparent good health for seven years prior to death.

The depositions and statements of the other witnesses, including members of his family, who knew deceased, and who had come into contact with him for a considerable number of years before his death, was that he performed clerical work, each day, in the office of a steel corporation. His health seemingly was good; nothing to indicate the contrary. The coroner and undertaker, neither of whom was shown to have known decedent in his lifetime, stated their belief that he died of heart trouble, without expressing any opinion as to whether it was acute or chronic.

The evidence, in our opinion, establishes the fact that Mr. Greene did not die of any chronic disease.

The clause of the certificate, which is in question, being applicable only to chronic diseases, and the evidence Showing that decedent did not pass away as a result of such disorder, the court erred in holding that the “Chronic Diseases” clause had the effect of reducing the amount of the benefit to which appellants are entitled.

The judgment is reversed, and the cause remanded, with directions to render judgment for the face value of the certificate, together with interest in accordance with its terms.

Reversed and remanded with directions.


text:
    Helen C. Pollard, Appellee, v. Broadway Central Hotel Corporation, Appellant.

      Opinion filed January 23, 1933.
    Josiah Whitnel, H. L. Browning and J. R. Mc-Murdo, for appellant.
    Wm. Baird & Sons and Pope & Driemeyer, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

The Broadview Hotel, in East St. Louis, is situated on Broadway street, facing south. It extends easterly and westerly from Fourth to Fifth streets, has two public entrances, the main one on Broadway, and the other on Fourth street; the latter opens into a vestibule, thence into a corridor leading to the lobby of the hotel. This corridor, about 60 feet in length and 12 feet wide, is upon a lower level at the street than at the lobby floor, the difference being met by two step-ups, each about six inches high, the first located 20 feet from the street entrance, and the second about 16 feet further toward the lobby.

The Broadway entrance is about 25 feet wide, and about the middle of the building, from east to west; opens into a small vestibule off the main hotel lobby, which is a large room approximately 75 feet square ; the desk is at the north side of the lobby, and about due north of the Broadway entrance. The elevators are in the southwest corner of the lobby, and to the south of the corridor leading to the Fourth street entrance.

The ceiling of the main lobby is about 25 feet from the floor, while the passageway to Fourth street, as shown by the photographs in evidence," is about one-half as high. The lobby was illuminated by ceiling lights on either side of the passageway, from the desk to the door, on Broadway; also by two suspended chandeliers, one directly in front of the desk, the other near the Broadway entrance. The corridor from the lobby to Fourth street was illumined by two suspended lights, which were turned off each night at 11 o’clock, and at which time the door to Fourth street was locked, and so remained until the following morning.

On October 7, 1930, plaintiff, in the late afternoon, en route by motor from Omaha, Neb., to Atlanta, Ga., in company with her daughter, three grandchildren, and a maid, drove up to the Fourth street entrance; plaintiff entered by that door, passed through the corridor to the office, registered, retraced her steps, via the passageway, to the street, parked her car, and again entered the hotel through the same aisle. She left a call for five o’clock the next morning; being called, pursuant to her request, she, before daylight, went to the desk in the lobby, paid her bill, and requested the bell boy to get her bags; at this time the lobby was lighted, as well as the Broadway entrance. The clerk, according to custom, had turned off the lights in the passageway, leading to Fourth street, at 11 o’clock the previous evening, and had locked the street door. At the time plaintiff came to the office in the morning, the door was still locked, the lights turned off, and the corridor in darkness, except for such rays of light as might penetrate its entrance, coming from the ceiling lights which were 25 feet above the floor.

The testimony of the clerk and bell boy is to the effect that when plaintiff’s bags were brought down, they were placed in the Broadway entrance, and that she then started for such doorway; the clerk testifying that he watched her, and saw her enter the vestibule leading out onto Broadway, after which his attention was diverted, and he did not again see her until after the accident, hereinafter to be described.

Plaintiff denies that she was in the Broadway vestibule, and states that after she directed her bags be brought down, she returned to the room to inform the other members of her party that they were about to start; that she returned to the lobby, started through the Fourth street corridor, toward the outer door, fell at the first step-down, sustaining a fracture of the left arm or wrist, which injury forms the subject matter of this suit; that the bell boy, hearing her fall, came to her assistance, turned on the lights, and helped her to the office. She further testifies that when she fell, it was dark; that when she started for the corridor, she did not notice whether or not it was lighted, and that the lights were not on when she fell.

Plaintiff brought suit against the defendant to recover damages for the injury sustained, upon the theory that it was the duty of defendant to maintain the corridor in a reasonably safe condition; that it failed so to do, in consequence of which she sustained the injury referred to, and that at the time she was in the exercise of due care for her own safety. A jury, upon the trial, found for plaintiff, and awarded her $9,000 as damages; the court required a remittitur of $1,500, and entered judgment for $7,500, from which defendant has appealed.

One of the controlling questions in the case is whether plaintiff, at the time of the accident, was using due care for her own safety. There being no charge of wilful or wanton conduct, it was incumbent upon plaintiff to aver, and affirmatively to prove, that at the time she sustained her injury, she was in the exercise of ordinary care for her own safety. Illinois Cent. R. Co. v. Oswald, 338 Ill. 270; Wilson v. Illinois Cent. R. Co., 210 Ill. 603. The ordinary care which she must use is that caution which a reasonably prudent person would take to avoid injury, under like circumstances. Chicago & Alton R. Co. v. Adler, 129 Ill. 335. If the plaintiff has failed affirmatively to show that she was, at such time, using such degree of care and caution, a recovery in her favor would not be warranted.

It thus appears that plaintiff had a perfectly safe and well lighted way to the Broadway street entrance; that there was no necessity that she shoiild attempt to go through the unlighted corridor to Fourth street, and no reason has been shown why she did so. She testified that, as she approached the entrance to the corridor, she did not notice whether it was lighted; yet she voluntarily entered the passageway. Whether so confident of her steps as to be indifferent to their course or termination, or whether mentally preoccupied and oblivious to her surroundings, she apparently entered without a thought of consequences which are likely to attend walking through darkened passageways.

The corridor was dark; its lights were turned off, and the only possible illumination which could reach it were the rays from the ceiling lights of the lobby, 25 feet above the floor, and probably 10 or 12 feet above the ceiling of the passageway, and which, as a physical fact, could not penetrate beyond the entrance to any considerable distance. She had, about 12 hours previously, gone over these same steps at least three times, and knew, or should have known, of the two step-downs; moreover, the darkness of the corridor was, of itself, a warning to exercise caution. As was said in Central Pub. House v. Flury, 25 Ohio App. 214, 157 N. E. 794, “darkness is nature’s own warning to arouse the natural instinct of self-protection, the first law of nature.”

As above observed, the exit to Broadway street was lighted; that to Fourth street, unlighted. This fact, of itself, should have charged plaintiff with asking whether the latter was subject to use, by the guests of the hotel, at the time. A person of ordinary prudence and caution, under such circumstances, would have made inquiry concerning same, before assuming the hazards of walking through the corridor. The darkened condition of the passageway called for ascertainment, by plaintiff, that same was safe, before she entered, and justified no presumption that she might traverse it in security, without first seeking to learn such was the fact. Had she but inquired of the clerk or bell boy, as we think a reasonably cautious person would have done, either the way would have been lighted for her, and the door unlocked, or she would have been told the corridor was not then for public use, and directed to take the other exit.

In our opinion that proof does not show that plaintiff exercised ordinary caution for her own safety, in the face of circumstances which would have been a warning to one of ordinary prudence, but rather proceeded upon her own initiative, and assumed the risks of her voluntary action.

While the question of due care on the part of a plaintiff is ordinarily one of fact for the jury, yet when, as in this case, the facts bearing upon such matter of her care and caution, rest solely upon her own testimony, and the attendant circumstances that are not in dispute, as to whether she was exercising such care, then in such cases the court rests under the obligation of determining, as a matter of law, whether she in fact used ordinary caution for her own safety. Illinois Cent. R. Co. v. Oswald, supra; Beidler v. Branshaw, 200 Ill. 425.

Defendant, both at the close of plaintiff’s case, and at the close of all evidence, asked the court for a directed verdict in its favor. Considering all the evidence, as favorably to plaintiff as is warranted, we are of opinion that she failed affirmatively to prove that she was in the exercise of ordinary care for her own safety. This was a vital element of her case, and without it she .has no right of recovery. " The trial court should have directed a verdict in favor of defendant.

For the above reason the judgment is reversed.

Reversed with finding of fact.

Finding of fact: The court finds, as a fact, that the plaintiff was not, at the time of her injury, in the exercise of ordinary care for her own safety.


author: Mr. Justice Fulton

text:
    James C. Shaw, Appellee, v. Firemen’s Insurance Company of Newark, New Jersey, Appellant.

      Opinion filed January 23, 1933.
    D. L. Duty, for appellant.
    L. A. Cranston, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

This is an action on a fire insurance policy for loss occasioned by fire to a dwelling house, household goods and grain, all located on a farm near Sparta, Illinois. The declaration consisted of . one count which set forth the insurance policy in haec verba and alleged a waiver of all the conditions precedent to a right of recovery. Appellant filed a general issue and later a stipulation was entered into providing that any defense that might be made under special pleas might be present under the general issue. Appellant seeks to reverse a judgment of the circuit court of Perry county, entered upon the verdict of the jury for $1,673 and costs. The execution and delivery of the policy, its provisions and a loss by fire are not in question.

It appears from the evidence that on November 22, 1931, during the term of the policy, the fire occurred, destroying the dwelling house and its contents. The policy was written and delivered by Homer Beever of the Beever-Moffat Insurance Agency at Sparta. The appellee because of some illness removed from the property on May 28, 1931, and was living 'with a brother in premises 60 rods away. The brother testifies that about a week later he went to see Beever in behalf of his brother and asked for a vacancy permit. Beever replied that one would not be necessary for six months; also that later Beever was again asked about a permit for vacancy and that.he made the same reply. The policy provided that the entire policy should become void if the risk was increased or if any of the buildings should become vacant, unoccupied or uninhabited for more than 10 consecutive days without the consent of the vice president of the company at its western department office. The appellant contends that this provision of the policy was not complied with and that appellee cannot therefore recover. It argues that the testimony of appellee’s brother is not worthy of belief, but with this we do not agree. There were sufficient facts in the proof, if true, to constitute a waiver on the part of the company of the above provision and the existence of such facts was a question for the jury. Baxter v. Metropolitan Life Ins. Co., 318 Ill. 369.

The policy further provided that in case of loss by fire the company should be notified by mail in writing to appellant at its Chicago office within 15 days, and appellant further urges that appellee cannot recover because he made no proofs of loss as required by the policy. The testimony again discloses sufficient facts to warrant the jury in finding that the proofs of loss were waived. A nephew of the appellee on the morning of the fire told Homer Beever about the loss and the latter said he would notify the company and they would send a man out to settle the loss. About three days after the fire an adjuster for the appellant, Dewitt Jones, went to the home of A. H. Shaw, brother of appellee, and requested that a nonwaiver be signed by appellee. On December 21, 1931, appellee mailed a letter to appellant’s western department office in Chicago, containing proofs of loss and referring to the notification to Homer Beever on the day of the fire. If an agent induces the assured to believe that a strict compliance with the conditions of the policy would not be demanded, the furnishing of the proof of loss is waived. Fray v. National Fire Ins. Co., 341 Ill. 431.

The record contains other corroborative evidence in support of the waivers. At the time of the trial and on a motion for continuance on the part of appellant it developed that Homer Beever was absent from the State and in the affidavit filed in support of the motion it was stated that if Beever were present he would testify that no waiver or attempted waiver was ever made by him in any manner or form whatsoever, and that in discussing the matter of a vacancy permit with the brother of appellee the said Beever explained to A. H. Shaw that permission for a vacancy on farm property would have to be indorsed on the policy or it would become null and void. It was stipulated that if Beever were present he would testify to the facts set up in the affidavit. We do not feel that the finding of the jury on this question of waiver should be disturbed.

We have examined the instructions given in behalf of appellee hut do not find any substantial error in the ones complained of and do not believe there is sufficient error anywhere in the record that would justify the returning of this case for a new trial. The judgment of the lower court is therefore affirmed.

Affirmed.


text:
    Joe Ingram, Appellee, v. Hammer Brothers White Lead Company, Appellant.
    Opinion filed January 23, 1933.
    Kevin Kane and Frank A. Wesley, for appellant.
    Frank M. Summers, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

The appellee filed a bill in equity for specific performance of an agreement with appellant, praying that appellee be decreed to pay him $8 a week for life. The bill states that appellee had been employed by the appellant, Hammer Brothers White Lead Company, for a period of 21 years preceding June, 1925, and that while so employed he contracted chronic lead poisoning, which disabled him to such an extent that he -could no longer perform Ms duties in that employment; that because of such disability the appellant, through its agents, entered into an agreement to pay appellee the sum of $8 per week for life, and that payments were made on such contract from June 1, 1925, until June 30, 1931, at which time such weekly payments were discontinued.

' The appellants filed a general and special demurrer to the bill of complaint, and also a motion to dismiss for want of equity, all of which were overruled and to which action of the • court the appellant excepted. Thereupon the appellant answered the bill denying that appellee contracted lead poisoning or became disabled as a result of lead poisoning while employed by appellant. The answer also alleged that a claim for compensation had been filed under the Workmen’s Compensation Act, Cahill’s St. ch. 48, ¶ 201 et seq., by appellee and had been denied, and also prayed the same advantage of the answer as if it had demurred.

The cause was referred to a master in chancery who found for the appellant. Exceptions to his report were argued in the city court, sustained and a decree entered for specific performance of the contract by the trial court.

Appellant urges among other grounds for reversal that the bill has no foundation in equity and that the complainant has full and adequate remedy at law. We do not find anything in this bill of complaint, or in the facts proven, that warrants the exercise of equity jurisdiction. The suit is brought to enforce the terms of a contract concerning the payment of money. As a general rule a court of equity will not decree the specific performance of a contract relating to personal property unless there is some .element or feature in it to show that the relief at law might not be adequate, as where the measure of damages resulting from the nonperformance of the agreement is uncertain or difficult to ascertain, or where the thing contracted for has to the complainant some intrinsic or special value and the like. Cohn v. Mitchell, 115 Ill. 124. Equity will not decree specific performance unless something more is to be done by it than the mere payment of money, or anything which ends in the mere payment, because the law is adequate to this. Pierce v. Plumb, 74 Ill. 326. So far as the injuries claimed by appellee in this case are concerned, we are of the opinion there was a complete remedy at law, and no exceptions or peculiar circumstances surround the contract which warrant the action in equity. The decree is therefore reversed with instructions to the city court of East St. Louis to dismiss the bill for want of equity.

Reversed.


author: Mr. Justice Pulton

text:
    Martin Koester, Appellant, v. Robert Litherland, Appellee.

      Opinion filed January 23, 1933.
    M. J. White, for appellant.
    P. J. Kolb, for appellee.
   Mr. Justice Pulton

delivered the opinion of the court.

An action in assumpsit was instituted by appellant against appellee in the circuit court of Wabash county to recover the amount due on a promissory note secured by mortgage on a tract of real estate. A demurrer was sustained to the declaration, which consisted of five counts, and appellant electing to abide by his declaration, judgment was rendered against him in bar of action and for costs. To reverse said judgment this appeal is prosecuted.

The first count of said declaration sets forth substantially that on November 21, 1916, one Sarah Shurtleff owned 72 acres of land in Edwards county, Illinois, and on that date mortgaged the same to a man named Kiesler to secure a loan of $2,400, due January 1, 1922; that shortly thereafter she sold the land to a man named Beach for the sum of $4,500 and deliveredPim a deed wherein it was recited 1 ‘ This deed is made subject to an incumbrance of twenty-four hundred (2,400) dollars which the purchaser assumes and agrees to pay.” The count further avers that on February 22, 1917, said Beach sold the land to appellee for the sum of $5,040, and the deed of conveyance contained the same recital with respect to the assumption, by the grantee, of the incumbrance of $2,400; that the said incumbrance given by Sarah A. Shurtleff to J. H. Kiesler has been duly and regularly transferred by successive assignments to the appellant, who is now the holder and legal owner of the note and mortgage, and brings suit to recover amount due on same. The deeds, mortgage and assignments are all set up in haec verba in the count together with apt allegations concerning consideration, recording, and delivery.

Count two is drawn upon the same theory as count one, but sets out the substance of the written instruments rather than pleading them in haec verba.

Count three charges in addition to the matter set up in the first two counts, the execution of an extension agreement between appellant and appellee on December 17, 1926, and alleges the same to be a promise to pay on the part of appellee. Count four is practically the same as count three, and in the extension agreement set out in these counts it is stated: “It is mutually agreed that the said balance due on said mortgage indebtedness shall be and become due and payable January 1, 1930.”

Count five develops the fact that in the mortgage deed from Sarah A. Shurtleff to J. H. Kiesler, the 72 acres were correctly described but in all of the subsequent deeds and assignments there was a mistake in the description as to 32 acres, although it is alleged in each instrument it was intended to describe the same land as that included in the mortgage deed. The count avers that upon the delivery of the deed of conveyance to appellee he took possession of the lands intended to be conveyed, has had possession ever since and paid taxes upon the same. Appellant urges that the declaration and each and every count thereof is sufficient. It is contended by appellee that the first, second, third and fourth counts of the declaration are framed on the theory that the deed in question was correct and conveyed the land that was intended to be conveyed; that the fifth count avers that the description in the deeds from Shurtleff to Beach and from Beach to appellee was erroneous and that appellee took possession of the land described in the mortgage; that therefore the first four counts are inconsistent with and contradict the fifth count and cannot be joined in the same declaration. This point is not well taken. The test by which to decide as to the joinder in separate counts of the same declaration is thus stated in Chitty’s Pleading and with approval in Puterbaugh’s Common Law Pleading and Practice, Par. 47, Tenth Ed.: “The result of the authorities is stated to be, that when the same plea may be pleaded and the same judgment given on all the counts of the declaration, or whenever the counts are of the same nature and the same judgment is to be given on them all, though the pleas be different, as in case of debt upon bond and on simple contract, they may be joined. ’ ’ Another test is whether the same evidence will support all counts. Wabash R. Co. v. Bhymer, 214 Ill. 579. It is further contended by appellee that the counts do not sufficiently allege acceptance of the deed made by Beach to appellee. This objection is without merit and a close reading of the declaration discloses allegations in each count from which acceptance must be inferred. If a party accepts a deed and places it on record, such acceptance of the instrument with the knowledge of its contents binds him as effectually as though the deed had been executed by him. Gage v. Cameron, 212 Ill. 146.

It is the opinion of this court that the counts of the declaration are sufficient and the judgment of the trial court will be reversed and the cause remanded.

Reversed and remanded.


text:
    Charles C. Willson, Receiver of the Jefferson State Bank of Mt. Vernon, Illinois, Appellant, v. Irving U. Labhart and Jennie Morgan, Administratrix of the Estate of Lewis C. Morgan, Deceased, Appellees.

      Opinion filed January 23, 1933.
    Curtis Williams and Conrad Schul, for appellant.
    June C. Smith, for appellees.
   Mr. Justice Fulton

delivered the opinion of the court.

This is a suit in equity brought by appellant, as receiver of the Jefferson State Bank of Mt. Vernon, Illinois, for the purpose of setting aside three transactions, a note and mortgage, a transfer of 10 shares of stock in the above mentioned bank, and a deed, all executed or negotiated by one Lewis C. Morgan to Irving U. Labhart or for his benefit.

The Jefferson State Bank closed its doors on December 19, 1930, and on January 22, 1931, appellant was appointed receiver for the bank, duly qualified, and has been acting as such receiver since that date, for the purpose of liquidating the assets and closing up the affairs of the bank.

With reference to setting aside the note and mortgage, the bill charged that on December 16, 1930, Lewis C. Morgan, who was then the president of the Jefferson State Bank, together with his wife, executed a mortgage to appellee, Irving U. Labhart, to secure an indebtedness of $10,000, on real estate described in said bill. It was alleged therein that at the time Dr. Morgan executed the note and mortgage he was insolvent and that said note and mortgage were executed and delivered in fraud of the other creditors of Dr. Morgan; that at that time, Dr. Morgan well knew the condition of the bank and executed the note and mortgage in fraud of the rights of the stockholders through appellant.

The next charge in the bill respecting* the transfer of 10 shares of bank stock alleges that on December 16, 1930, Dr. Morgan caused 10 shares of the capital stock of the Jefferson State Bank to be transferred upon the records of the bank from Irving U. Labhart to Dr. Morgan, and that this transaction was made for the purpose of avoiding an assessment on the stock of the bank against Labhart and made for the sole purpose of avoiding financial responsibility of appellee, Lab-hart.

The third transaction sought to be set aside was set forth in an amendment to the original bill which alleged that on November 1, 1926, Dr. Morgan conveyed another property by deed to Irving U. Labhart without any consideration. The prayer of the bill is that the note and mortgage and the transfer of the shares of stock of the bank aforesaid be canceled, set aside and vacated, and that the same be held for naught against the rights of the complainant and the creditors of the bank aforesaid; that the title to the shares of bank stock be decreed to be in Labhart and the title to the real property be decreed to be in the complainant for the use and benefit of the creditors of the bank.

An answer was filed by appellees, denying all of the allegations of the bill and averring that the bill of complaint was wholly insufficient to entitle complainant to relief.

At the conclusion of the evidence on motion of counsel for appellees a decree was entered, dismissing the bill for want of equity. This appeal is brought to reverse that decree.

Appellant proved by one witness that the fair cash market value of the property mortgaged on December 16, 1930, was $9,500 at the time the mortgage was executed; also that the property conveyed on November, 1926, was worth about $5,000 in December, 1930. By another witness he proved that the building and loan association had a mortgage on another property owned by Morgan at the time of his death amounting to $2,500 and that such mortgaged property was worth about $3,000. This property was not involved in this "suit. By another witness he proved that the rentals on the property covered by the deed of November, 1926, had, subsequent to that date, been collected by Morgan and it was stipulated that Morgan paid the taxes on said property in the years 1927, 1928 and 1929, and his widow paid the taxes in 1931. By the county clerk he proved that no inventory had been filed in the estate of Lewis C. Morgan at the time the suit was tried. By appellant it was proven that he was receiver of the Jefferson State Bank; that Dr. Morgan had been president of the bank for some years before it closed; that at the time the bank failed, Dr. Morgan was indebted to the bank to something over $11,000 and owned 80 shares of stock. By the circuit clerk it was proven that on December 16, 1930, Dr. Morgan brought the mortgage of that same date for the purpose of having it recorded. The cashier of the closed bank testified that Dr. Morgan was more or less familiar with the condition of the bank for some months before it closed. Also that on November 1, 1926, a loan was made by the bank to Labhart on the property that day conveyed to him by Morgan, the loan being secured by a mortgage executed by Lab-hart and his wife on the same property; that this note and mortgage was afterwards paid off and discharged.

Labhart was a son-in-law of Morgan.

Disregarding the insufficiency of the allegations in the bill, it was necessary for the complainant to prove that Dr. Morgan was insolvent, to. set aside the mortgage of December 16, 1930; that said mortgage was executed in fraud of his other creditors and that Lab-hart participated in and was a party to the fraud, .or he must prove that the mortgage was executed without any consideration whatever. Statute of Frauds, Ca-hill’s St. ch. 59, ¶ ¶ 4, 5 and 8; secs. 4, 5 and 8, chapter 59, Smith-Hurd Bevised Statutes. Fraud is never presumed, but must be proved by such clear and convincing evidence as leaves the mind well satisfied that the allegations are true. The relationship of the parties is merely a circumstance which may excite suspicion, but it will not, alone and of itself, amount to proof of fraud. Garrett v. Garrett, 343 Ill. 577. The Supreme Court has repeatedly held that in order to set aside a conveyance on the ground that it was made to hinder and delay creditors, it must appear that both parties participated in the fraud and that the conveyance may have the effect to delay and hinder creditors does not of itself bring the case within the statute. Behrens v. Steidley, 198 Ill. 303. It was incumbent on complainant to prove the insolvency of Dr. Morgan. The testimony shows that certain real property of Morgan was badly incumbered; that he was indebted to the bank; that he executed the mortgage to Labhart just before the bank failed; that no inventory has been filed in his estate and other suspicious circumstances but the record does not conclusively show that he did not have other property of value. There is no evidence in the record to show that the execution of the mortgage to the son-in-law Labhart was not in good faith, to secure some existing indebtedness between the parties, and positively no evidence to show that Labhart knew of or participated in the fraud. The burden of proof was upon the complainant to establish the charge of fraud alleged in his bill. Every transaction is presumed to be fair and honest until the contrary is established. Even a husband may deal with his wife in business matters and protect her by conveyances in satisfaction of existing indebtedness. So may he protect relatives standing as creditors, if done in good faith. Such relationship is not proof of fraud or that there is no bona fide indebtedness. Ayers Nat. Bank of Jacksonville v. Barber, 287 Ill. 182. The proof in this case is not sufficient to warrant a court in setting aside said mortgage.

The proof in support of the second transaction to set aside the transfer of the bank shares was equally lacking in sufficiency. In the first place our courts have held that a complainant in a bill to enforce a stockholder’s constitutional and statutory liability must first establish the fact that he is a creditor of the bank before he can maintain such action. The receiver appointed by the State auditor to liquidate the assets of the bank has no such standing and that is the capacity in which he filed this bill. Further there is no showing of fraud or intention to hinder and delay creditors on the part of Morgan and Labhart as is necessary in a case of this character and as heretofore stated.

Regarding the transfer of real property on November 1, 1926, the allegation of the bill was that the conveyance was made without consideration. There is no proof whatsoever of that fact. The son-in-law lived in Kansas City, and Morgan continued to collect the rent and pay the taxes on the property, but the deed on its face purports a valid consideration; there is no proof of the insolvency of Morgan at that time, or that the conveyance was made to hinder and delay creditors.

We feel that the proof in this record is not sufficient to prove either the allegations of the bill or to establish fraud for the purpose of hindering or delaying creditors and that the decree of the circuit court dismissing the bill for want of equity was right and proper and should be affirmed.

Affirmed.