text:
    Robert E. Brand, Appellee, v. George C. Schmitz and Louise Rowen Schmitz, Appellants.
    Gen. No. 39,510.
    Opinion filed December 15, 1937.
    Packard, Barnes, McCaughey & Schumacher, of Chicago, for appellants; Russell J. McCaughey, of counsel.
    Eric F. Grundin, of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment for $15,275.87, entered against defendants in the above entitled cause. Robert E. Brand, plaintiff appellee, on April 23, 1936, confessed judgment against George C. Schmitz and Louise Rowen Schmitz, defendants appellants, on certain mortgage bonds in the aggregate of $15,275.87, and the defendants thereafter on May 20, 1936, made a motion to open the judgment and were given leave to appear, plead and defend and to file a counterclaim in equity. The counterclaim in equity was filed and when the matter came on for hearing the trial judge permitted the law case and the counterclaim in equity to be tried at the same time. The issues involved were tried without a jury. The cause was heard by the court upon an agreed statement of facts made orally together with certain documentary proof. The court entered a decree denying the prayer of the counterclaim in equity and decreed that the judgment as confessed on April 23, 1936, rendered against the defendants for $15,275.87, stand in full force and effect as of the date of rendition of judgment and that plaintiff have execution against defendants for said judgment together with costs and charges.

The facts and circumstances in this case are rather involved, but we shall set forth the pertinent points:

In the year 1924, the defendants George 0. Schmitz and Louise Rowen Schmitz were the owners of a fee title of a certain lot located in the City of Chicago, known as 1017-1021 North Dearborn street, upon which they built a hotel; that the defendants secured a construction loan in the sum of $200,000, of which the bonds being sued on in this present suit are a part. The bonds were signed individually by the defendants. The hotel was called “The Walton Hotel” and the bond issue was known as “The Walton.”

• In 1926 the defendants sold the hotel business, together with title to the real estate, to a corporation known as the Brons Hotel Company. The properly recorded deed by which the transaction was carried out contained no language by which the Brons Hotel Company assumed liability for the mortgage.

In November, 1927, the Brons Hotel Company sold to Alice Olhausen, and the deed of conveyance of title recited, “Subject to trust deed dated June 10, 1924,” . . . The trust deed therein referred to is the trust deed given to secure the bonds in question.

In August, 1935, Alice Olhausen, by quitclaim deed, conveyed the property in question to Walton Hotel Company, a corporation organized by her and a few others. This last named deed contained the following:

“Subject to balance dne on bonds secured by trust deed dated June 10, 1924, and recorded in the Recorder’s Office of Cook County, Illinois, on June 13, 1924, as Document No. 8465892, which said indebtedness the grantee hereby assumes and agrees to pay.”

Approximately 30 days later, on September 24, 1935, the Walton Hotel Company filed a petition in the District Court of the United States for the Northern District of Illinois, eastern division, No. 61,363, under section 77B of the Federal Bankruptcy Law, seeking reorganization.

The bonds were in default a considerable time prior to the transfer of the Walton Hotel Company, in fact, a bill of foreclosure had been filed in the circuit court of Cook county entitled, “The Chicago Title and Trust Company, Trustee, etc. v. George C. Schmitz, et al. No. B-215617,’’ and a decree of foreclosure and sale was entered therein on June 11, 1932. The property has not been sold under that decree. That suit is still-pending and undisposed of.

In the petition under section 77B of the Federal Bankruptcy Law, the debtor corporation informed the United States District Court that all the bonds had matured and were due and payable, that it did not have sufficient working capital and was too heavily indebted to do business with its present financial structure; that it then suggested to the court that a simple, general, complete, satisfactory organization of the affairs of the debtor was possible and that no other court, without the powers, of the United States District Court, would have the power to stay individual bondholders from exercising their liens. By the exercise of its power the courts can unify, simplify and make more harmonious the treatment of the situation pending a proper reorganization of the company’s affairs (viz. its mortgage indebtedness), and facilitate the preparation, consideration and effectuation of such a reorganization.

Among other things, the petition prayed for the appointment of a trustee and the granting of power and authority in the trustee as a receiver in equity, to operate the business, that the trustee be given the power to issue trustee’s certificates for operation expenses. It also requested the rejection of contracts of the debtor which were not beneficial to the estate, for reasonable time within which the claims and interests of creditors and shareholders might be filed, and for stay orders against the debtor corporation upon a claim from which a discharge would be a release and enjoin or stay the commencement or continuance of suits against the debtor corporation until after the final decree.

An order was entered in that proceeding approving the filing of the petition as having been filed in good faith, and at the same time a stay order was entered on October 7, 1935, which provided that “all creditors, bondholders, stockholders, noteholders and trustees, and all other persons claiming or acting by, through or under them, and their officers, agents, attorneys, representatives, servants and employees are enjoined and restrained from instituting or prosecuting any action at law or suit or prosecution in equity against the said debtor in any court of law or equity.” The stay order was entered several months prior to the filing of the suit with which we are presently concerned.

A temporary trustee was appointed in that proceeding and he reported to the Federal court, among other things, that there was an indebtedness of $155,500' with interest from June 10, 1929, “represented by Serial 7% Gold Bonds dated June 10, 1924, executed by George C. Schmitz and Louise Bowen Schmitz, his wife, and indebtedness thereof assumed by the debtor corporation herein, is still outstanding and unpaid.

The summary of assets is given as follows: “Cash, $4,446.36; tax warrants, $275'; judgment notes, $568.88; furnishings, unknown, and real estate, present value $157,500; or a total of $162,790.24.

“A plan of reorganization as amended and supplemented was filed on December 9, 1935, by the attorney for the debtor corporation.”

The plan of reorganization provided, in general, for the formation of a new corporation to own the premises free and clear of all claims except taxes and expense of reorganization; that the present unpaid, uncanceled and outstanding first mortgage bonds (of which the bonds upon which judgment was entered herein were a part) shall be canceled and the unpaid, uncanceled and outstanding interest coupons and the first mortgage bonds shall be canceled and turned over to the company and the trust deed upon the premises released; that the new corporation shall have a stated capital of $200,000, consisting of 2,000 shares of common, no par, stated value of $100 per share; that each bondholder shall receive stock, one share for each $100 of principal now held by them of first mortgage bonds ; that the old corporation, that is the debtor, is to receive 200 shares of stock in the new corporation in exchange for. conveyance of .title, in settlement of all-.interests of the debtor; that the hew company will receive all the personal property. upon giving Margaret Olhausen 150 shares of stock of the new corporation in payment for the furniture and fixtures.

The bonds upon which judgment was confessed in this case had all been made the subject matter of a proof of claim in that bankruptcy proceeding, each one bearing the legend: “Proof of claim respecting this instrument has been filed in that certain cause pending in the District Court of the United States, for the Northern District of Illinois, Eastern Division, entitled, ‘In the Matter of the Walton Hotel Company, corporation, Debtor, In Bankruptcy 61363/ No additional or other proof of claim in respect to this instrument may be filed in said proceedings. Charles A. McDonald, Special Master.”

The foreclosure suit in the State court had been carried through to a decree of sale but the sale has not yet been held. There was no personal service or attempt to get personal service on the two defendants here, Louise Bowen Schmitz and George C. Schmitz.

On the motion to set aside the judgment and their prayer for equitable relief, defendants admit the execution of the bonds and stated, however, that they had been released from liability thereon because of the suit pending in the United States court; that the bonds had been filed in the United States Court under the plan of reorganization and that that court had entered an order on October 7, 1935, that: “. . . all creditors, bondholders, stockholders, noteholders and trustees, and all other persons claiming or acting by, through or under them, and their officers, agents, attorneys, representatives, servants and employees, were enjoined and restrained from instituting or prosecuting any action at law or suit or prosecution in equity against the said debtor in any court of law or equity;”

The substance of defendants’ defense is that because the Walton Hotel Company filed a plan of reorganization under section 77B on December 9, 1935, in the United States District Court; that the "Walton Hotel Company is liable to these defendants, George C. Schmitz and Louise Bowen Schmitz upon its undertaking* to be responsible for the bonds; that they have been released and discharged from the liability, or in the alternative they argue that their liability upon said bonds is only to the extent and in the event that said reorganization under section 77B fails, or that the price realized from the sale under the foreclosure proceeding is inadequate to satisfy said bond issue, or upon a proper deficiency decree which may be entered in said foreclosure proceeding. In fact they pray in the cross complaint that the judgment be vacated and declared null and void, or in the alternative that the execution be stayed until such time as the proceeding in the United States District Court have been concluded; also that execution be stayed until a sale may be held under the foreclosure proceedings and that the amount realized from said sale be shown to be adequate to satisfy said bond issue, or until a proper deficiency decree shall be entered in said proceedings and for other relief.

Plaintiff denies that defendants are entitled to any relief and that the mere pending* of the suit of the Walton Hotel Company in the United States court does not prevent him from proceeding against the personal liability of the defendants.

Plaintiff who is the owner of a bond may, unless prohibited by the terms of the trust deed, obtain relief not only by foreclosure but may commence suit at law on the note against the makers.

In Rohrer v. Deatherage, 336 Ill. 450, it was said: “Upon default in the condition of the mortgage the mortgagee has the right to possession against the mortgagor, his grantee, lessee or anyone claiming under him by any right. In such case the mortgagee has several remedies which he may pursue to enforce the payment of his debt. He may sue the mortgagor in assumpsit for a judgment upon the personal obligation; he may sue in equity for the foreclosure of the mortgage; or he may recover the possession of the mortgaged property by an action of ejectment. These remedies are concurrent or successive, as the mortgagee may deem proper, and he may pursue any two or all three of the remedies simultaneously.”

Defendants contend that the proceeding in the United States court should prevent the plaintiff from further proceeding against them on their personal liability on the bonds and that the State court should aid defendant by compelling plaintiff by an injunctive order, the effect of which would be to make plaintiff wait until the decision is reached in the Federal court, in order to determine how much, if any credit, was to be allowed on said bonds.

In support of its contention defendants cite the case of Barnett v. Gitlitz, 290 Ill. App. 212, wherein an opinion was filed on May 4, 1937, by the second division of this court and a rehearing was denied on May 18,1937. That case is somewhat similar to the case at bar, but it differs in a very material way as evidenced by the language used by the court on page 217:

“This appeal raises the following question: Where the United States District court, under its bankruptcy powers, and particularly under section 77B of the Bankruptcy Act, has, in a reorganization proceeding pending in that court, ordered a satisfaction of the decree entered in the superior court case (which decree found that there was due complainant in that case as successor trustee, for and on behalf of all of the bondholders, the sum of $118,628.19, and that the defendants Morris Gitlitz and Mary Gitlitz, his wife, Gus Bagan and Sadie Bagan, his wife, and Dora Git-litz, a widow, were personally liable for that amount), and also ordered the release of the trust deed securing the bonds, and the decree of the superior court has been satisfied and released in accordance with said order, is plaintiff, who confessed judgment in the municipal court while the proceedings in the United States District court were pending, entitled to have his judgment in the municipal court remain in full force and effect, where the amount of the stock he is entitled to under the decree of the United States District court is tendered to him?”

In the Barnett case, supra, defendant contended that the satisfaction of the decree éxecuted by Carl R. Chindblom, special master, in accordance with the decree of confirmation entered in the United States District Court satisfying the decree of sale in the Superior Court case No. 567,515, satisfied the entire indebtedness including the bonds owned by the plaintiff and did not merely release the lien against the property. The court at page 218, said: “By an order of the United States District court the debt due on all of the bonds secured by the trust deed was satisfied. To sustain the position of plaintiff it would be necessary to ignore the provisions of a law of the United States and the orders and decree of the United States District court.”

The Barnett case, supra, further shows that the plan of reorganization provided that stock in the new corporation should be given to the owner of the bonds in lieu thereof, and that the same had been tendered to the owner of the bonds in that case and had been deposited as a tender for him in lieu of the bond.

In the instant case no such order has been entered. The case is pending in the Federal Court and is somewhat similar as to the plan to reorganize, but no action has been taken thereon nor have we any knowledge as to what action may be taken or when. Manifestly, if no further action of approval or decree is entered in that case, it would have no effect upon the primary liability of the defendants in this case. To deny plaintiff the right to proceed to collect upon the bonds would not in our opinion be an equitable procedure as there is no equitable consideration therefor. Should the defendants be compelled by legal procedure to pay the full amount of their notes upon which they are liable they would then become subrogated to the rights of the owner of said bonds for any claim which might arise on anything* that is realized either in the foreclosure proceedings or in the Federal Court in the bankruptcy proceedings. As before stated we do not think defendants are entitled to have the present proceeding’s delayed until the happening* of such future event. Defendants’ primary obligation is to pay the notes and, as before stated, what will be received from the future disposition of the assets of the defunct corporation in the Federal Court is a matter that only the passage of time will disclose.

For the reasons herein given the judgment of the superior court and the order in equity denying* the delay asked for by defendants is hereby affirmed.

Judgment and decretal order affirmed.

Hebel, P. J., and Hall, J., concur.


source: Caselaw Access Project

author: Mr. Justice Denis E. Sullivan

license: Public Domain

text:
    George D. Gaw, Appellant, v. The Lake Erie Chemical Company et al., Appellees.
    Gen. No. 39,536.

      Opinion filed December 15, 1937.
    V. Bussell Donaghy, of Chicago, for appellant ; David A. Schallman, of Chicago, of counsel.
    Miller, Gorham, Wescott & Adams, of Chicago, for appellees; Edward B. Adams, Herbert C. De Young and Bobert E. English, all of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment entered in favor of defendants for costs, based on a verdict by a. jury finding defendants not guilty in an action brought by plaintiff to recover for personal injuries sustained as the result of an explosion and the firing of a tear gas pen which was manufactured by one of the defendants and purchased by the plaintiff from the other defendant.

Plaintiff’s theory is that the defendants and each of them, represented and warranted to him — both orally and in writing — that certain tear gas fountain pen guns manufactured by the defendant The Lake Erie Chemical Company, a corporation, and sold by it and its agent or salesman, William P. Northcott, the other defendant, were safe and were a positive protection without danger of permanent injury; that he, the plaintiff, had no previous knowledge concerning said gun or had never had any experience with it, or similar instruments, or with the chemicals therein contained; that he relied upon the representations and warranties made by defendants at the time defendant Northcott solicited him for the sale of said device; that he purchased the said device and that subsequent thereto while placing the loaded tear gas gun in his pocket, it discharged, causing serious injuries to his hand and eyes, which resulted in the amputation of the index finger of his right hand and the partial permanent loss of vision of his left eye; that the representations made by defendants and upon which he relied, were false, untrue and incorrect and he contends that he is entitled to recover from defendants for breach of warranty for the injuries and damages which he sustained.

The defendant, The Lake Erie Chemical Company, made a motion to quash service of summons on the ground that William P. Northcott, upon whom service of summons was had, is not an agent or employee of The Lake Erie Chemical Company in Illinois and that the sale of said pen took place in Cleveland and that said company was not transacting any business and had no agents in Illinois. This motion was continued and later overruled by the court.

Plaintiff further charges negligence on the part of defendants prior to the delivery of the pen or gun to him in that they neglected to exercise due and ordinary care in the manufacturing, assembling and shipping of same, and to test and inspect the said tear gas gun, device or fountain pen, the cartridges, refills, contents thereof and tear gas, so that the said tear gas would be harmless and incapable of causing permanent injury.

The answer of defendant The Lake Erie Chemical Company, admits that it manufactures tear gas guns, but denies that said tear gas guns were dangerous because of their likelihood to explode.

Said answer further denies that William P. North-cott was the duly authorized agent of the defendant, but that Northcott acting as an independent salesman sold a certain tear gas gun to plaintiff; denies that it was its duty, before the sale of the tear gas gun, etc., and delivery thereof to plaintiff, to exercise due care and caution in manufacturing, assembling and shipping the same, to test and inspect the said tear gas gun, etc., as alleged by plaintiff; denies that plaintiff was in the exercise of due care and caution as alleged by him and further denies that the warranties alleged by plaintiff, or any or either of them, were false, incorrect or untrue; that the tear gas gun did permanent injury; that it was not safe to carry and handle and that the gun and tear gas were harmful.

Said answer alleges that defendant has no knowledge or information sufficient to form a belief as to the truth of the allegations wherein the plaintiff states he received, accepted and relied on the -warranties and each of them; that the damages in question were not caused by any negligence on the part of this defendant, its agent or servant, but were due to plaintiff’s own negligence at or before the time and at the place mentioned in plaintiff’s complaint.

Defendant’s theory is that they are not liable for the injuries which plaintiff suffered or sustained; and that plaintiff was negligent and careless when he placed the instrument into his pocket.

The evidence tends to show that The 'Lake Erie Chemical Company was a manufacturer of an appliance known as a “Chemical Warfare Gas Fountain Pen,” which resembles the average fountain pen and has a clip on the side to aid in carrying it in the pocket. Instead of being filled with ink, the instrument is filled with a chemical, which when exploded and discharged forms a tear gas which affects a person’s eyes and the nasal and air passages and could be used as a defense against highwaymen or others who might attempt to assail or harm the possessor of such pen.

The evidence further shows that the method of discharging the tear gas or chemical is by means of a cartridge which contains black powder and is discharged by means of a cap containing fulminate of mercury, which ignites the powder which is held in its place in the cartridge by a paper wad which is expelled when the cartridge is discharged, forcing* the said tear gas from the pen or gun.

The testimony shows that the injury to plaintiff occurred at a Halloween party in 1932, when the plaintiff and some of his friends attended a costume party or masquerade which was held at the home of one of his friends; that in the early morning* hours, after an evening* of festivity and some drinking, the plaintiff, who was dressed as a pirate, took the tear gas gun out of his overcoat pocket to show it to some of his friends; that plaintiff in exhibiting this gun to his friends, took out the cartridge and after it had been examined to the satisfaction of those present, plaintiff replaced the cartridge in the gun and returned it to his inside overcoat pocket and whilst putting it into the pocket, in some way, which is not explained, the gun was discharged thereby forcing* some of the tear gas into plaintiff’s eyes and also injuring the index finger of his right hand; that plaintiff was taken to a hospital where he remained for a period of several months, during* which time the injured finger was amputated because of gangrene infection and his eye which had been injured by the tear gas was being treated, which eye injury resulted in almost a complete loss of vision in one eye.

The testimony further shows that at the time defendant Northcott was endeavoring to sell one of the guns to plaintiff, he gave plaintiff a pamphlet, plaintiff’s exhibit 1, which pamphlet describes the pen and explains its uses and was used by the defendant The Lake Erie Chemical Company to advertise the instrument. A picture of the pen appeared on the pamphlet and another picture entitled, “Preventing an Auto Holdup.” The first paragraph of the pamphlet reads as follows:

“A Chemical Warfare Gas Fountain Pen discharged in the face of a bandit, thug, or bully, will render him instantly helpless, blinding him with terrible pain in eyes, nose, and throat, yet inflicting no permanent injury.

‘ ‘ The average citizen or peace officer hesitates to take another’s life, often hesitating too long and giving all the advantage to the crook. You need not hesitate to defend yourself with this weapon.

“While the Tear Gas itself can not produce any permanent injury, it must be remembered that otherwise the shell acts just like a blank cartridge and therefore, at extremely short range, might cause powder burns or cut the skin with the paper ivad. At shorter ranges than five feet, therefore, it is recommended that the Pen Gun be pointed at upper part of chest rather than directly at the face of target.’’ Said pamphlet also bore several testimonial letters and above the name of The Lake Erie Chemical Company, appears the following: “Positive Protection without danger of permanent injury or death to anyone. A wonderful new chemical weapon. ...”

As to what ivas said at the time the defendant North-cott sold the pen to the plaintiff Gaw, the stories differ.

Northcott in testifying stated:

“At the time I made the sale to George D. Gaw, I represented to him that the gun was positive protection without danger or permanent injury, or both, to anyone, if properly used. I didn’t tell him at the time' I had a conference with him with reference to selling the merchandise, that the fountain pen could be discharged in the face of a bandit and would render him instantly harmless, yet inflict no permanent injury.

“At the time I sold him the gun, I knew that it was not dangerous to both life and limb if it was properly used, and that it might be dangerous to both life and limb if it was improperly used. . . .

“The gun has a safety notch on which the fire knob rested. The only way the gun could be fired would be by putting the point at that notch.”

Gaw, the plaintiff testified that at the time of the sale Northcott said to him: “Here is something absolutely harmless, . . . don’t you think inasmuch as these guests depend upon you for protection, you should have some too ... he said it was something that would give complete protection, and absolutely no danger.”

Further testifying the plaintiff stated that he bought one of these pens or guns and also three cartridges; that on the night of the accident the gun was in his overcoat pocket, and the overcoat was lying on the bannister; that the inside pocket of the coat was exposed; that the coat had only one inside pocket on the right side; that he told one of the guests not to touch what she thought was a fountain pen as there was a shell in it; that he took the shell out and held it in his hand; that he put the shell back into the gun and was putting it into his pocket when it went off; that he could not say which hand he used in putting the gun into his pocket, but being right-handed he presumed he used his right hand; that in putting the gun in his pocket the gun was facing downward toward the floor; that at no time during the evening did he look into the barrel of the gun; that he did not point the gun to anyone’s face; that he certainly would not fire a blank cartridge in his face or hand intentionally; that when the gun was dismantled he looked through the barrel.

No evidence was introduced to support the charge of negligence as to manufacture, shipping, testing or inspection of said gun as charged in the complaint.

In the briefs filed there is quite a lengthy discussion as to the facts and as to the law. Plaintiff claims that he relied upon the warranty, which is exemplified by two exhibits heretofore referred to which were introduced in evidence, and the statements of the defendant Northcott. Opposed to this position is plaintiff’s statement when testifying, as follows: “I didn’t read the pamphlet that was given me by Mr. Northcott at the time he sold me the gun, as he told me practically everything. I only glanced over it.” If, as plaintiff says, he did not read the pamphlets or know of their contents at the time the gun was purchased and in his possession, he could not possibly have relied upon the language as set forth in said pamphlets. Plaintiff also stated that what he relied upon were the statements of the salesman Northcott, some of which statements are denied by Northcott, the defendant.

Again the plaintiff states in his testimony, which is in contradiction of statements made by witnesses on his behalf relative to what occurred at the time of the accident: “I cannot recall any occasion I had to either demonstrate or show the gun to anyone in particular prior to this explosion. I don’t recall any people requesting me to demonstrate the gun. I was afraid of it. . . . Of course I wouldn’t shoot the gun off with my hand over the muzzle. I certainly wouldn’t fire a blank cartridge in my face or hand intentionally, I had no occasion to do so. I wouldn’t do so even if I knew that there would be no injury, as Mr. Northcott said it would blind one and render him helpless. ... I did not shoot the gun and did not illustrate it to anyone. It just accidentally went off.”

From the evidence before us it is not plain just what negligence or tortious action on the part of the defendant was the proximate cause of the accident, as contended by plaintiff. If the pamphlets were not read by plaintiff and he was afraid, as he states, of the gun, he must have known there was danger lurking therein and this rather supports the statement of Mr. Northcott that there was no danger to the possessor thereof if properly handled.

This takes us to the circumstances surrounding the accident. When plaintiff attended the party, his overcoat was lying on a bannister and the “pen” in the inside pocket of the overcoat was seen by someone at the party who wanted his autograph. He told the person it was not a. pen and undertook to demonstrate that it was a “gun.” In order to prevent the gun from being discharged he extracted the cartridge and explained why he carried the gun. After the spectators had been told of the contents of the gun and its uses, the plaintiff in preparing to replace the gun in his pocket, put the cartridge back in the gun, and as he put the gun into his pocket the gun discharged resulting in the injuries which are the basis of this suit.

Just what defendants had to do with this accident which occurred at the party, we cannot comprehend. No defect in the gun was shown and it is quite apparent that plaintiff did not rely upon any representations which he claims were made to him by Northcott. Plaintiff knew the gun was dangerous and no explanation is given as to what caused the gun to discharge, other than plaintiff’s statement that it was “accidental.” If the gun was accidentally discharged, the negligence was plaintiff’s as he had control and possession of the gun for, in his testimony, he said: ‘ ‘ Something discharged my shell and the wadding went into my hand. I assume that it fired like any other gun, that it would shoot from the direction from which it is fired. ... I presume my hand was over the muzzle when it was discharged if this wad got in there. ’ ’

There are many questions raised as to the instructions that were given to the jury and as to the vacation of a judgment rendered by the court on this verdict in November which was vacated the following August. It seems that on November 21, 1935, the verdict of the jury finding the defendant not guilty was rendered and judgment entered on such verdict. Notice of appeal was not filed until October 26, 1936, although sec. 76 of the Civil Practice Act, Ill. Rev. Stat. 1937, ch. 110, § 200; Jones Ill. Stats. Ann. 104.076, provides that “no appeal shall be taken to the Supreme or Appellate Court after the expiration of ninety days.”

On August 11, 1936, plaintiff filed, a petition asking that an order be entered nunc pro tunc as of November 21, 1935, striking from the records of the superior court all reference to a judgment on the verdict on November 21, 1935, and the court entered an order pursuant to the prayer of said petition.

We are also asked to consider the question as to whether or not Northcott was the authorized agent of the defendant The Lake Erie Chemical Company, so that service upon him would be upon an agent and be binding upon the said The Lake Erie Chemical Company and give the court jurisdiction with regard to said corporation. Nothing could be gained in discussing these questions at length, for the reason that we are convinced that the evidence shows plainly that the proximate cause of the injury was the negligence of the plaintiff in the careless manner in which he handled the tear gas gun and we believe the verdict of the jury was correct.

The instructions to the jury fairly instructed them as to the law applicable to the facts and we have been unable to find any errors on the part of the court which would seriously affect plaintiff’s rights. The finding of the jury was correct. Had the jury returned a verdict in favor of plaintiff and judgment had been entered thereon, we feel it would be the duty of this court to have set the same aside as being against the manifest weight of the evidence.

The injuries in this case were very serious and of the kind that would enlist human sympathy. Plaintiff, a man 44 years of age in full possession of all his faculties, suddenly received painful injuries which were accidentally self-inflicted and which deprive him of almost the entire vision of one eye and the loss of the index finger on one hand and caused him much pain and suffering. These injuries prevent the discharge of business duties to a great degree and also prevent his participation in many of the other activities and pleasures of life, but as we have already stated his claim against defendants for damages is not supported by the manifest weight of the evidence.

Therefore, inasmuch as the evidence does not support the contention of plaintiff, nothing would be gained by setting forth and discussing abstract principles of law. "

For the reasons herein given the judgment of the superior court is hereby affirmed.

Judgment affirmed.

Hebel, P. J., and Hall, J., concur.


text:
    Minnie Fina, Administratrix of the Estate of Edward Fina, Deceased, Appellant, v. Guy Richardson et al., Trading as Chicago Surface Lines, Appellees.
    Gen. No. 39,572.

      Opinion filed December 15, 1937.
    Rehearing denied December 28, 1937.
    Ben A. Stewart, of Chicago, for appellant.
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, all of Chicago, for appellees; John R. Guil-liams, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This appeal is from a judgment entered for costs against the plaintiff, notwithstanding that a verdict was rendered by a jury in favor of plaintiff and against the defendants for $7,500, which the court set aside.

Plaintiff, as administratrix of the estate of Edward Fina, deceased, brought this action for the benefit of herself, as the widow, and her children as the next of kin of said deceased, to recover damages from defendants under the Injuries Act, because of the death of said decedent, which it is alleged was due to the wrongful act, neglect or default of said defendants.

A trial was had before a court and jury upon the issues presented by plaintiff’s complaint and the answer of the defendants.

At the close of plaintiff’s case defendants moved the court to direct the jury to find the defendants not guilty as to the wilful and wanton charges contained in plaintiff’s complaint. The motion was sustained and the wilful and wanton charges were withdrawn from the jury’s consideration. As to the charges of negligence and carelessness contained in plaintiff’s complaint the motions were refused.

At the close of all the evidence defendants renewed their motions to direct the jury to find the defendants not guilty of the charges of negligence as contained in plaintiff’s complaint. Upon these motions the court reserved its rulings.

As heretofore stated, the trial resulted in a verdict finding the defendants guilty and assessing plaintiff’s damages in the sum of $7,500.

Thereafter defendants filed a motion for a judgment notwithstanding the verdict, and in the alternative for a new trial, and upon the hearing of said motion the court entered a judgment against plaintiff for costs, notwithstanding the verdict of the jury in plaintiff’s favor.

Plaintiff’s complaint alleges that on September 15, 1935, in the city of Chicago, the decedent was driving a certain Buick automobile in a southerly direction upon and along Wentworth avenue in the south 5700' block thereof; that another automobile, then parked along the west curb of Wentworth avenue, and facing south, without any notice or warning to him, suddenly drove away from said curb in a southeasterly direction directly in front of and into the path of said Buick automobile; that in order to prevent an accident decedent was compelled to and did swerve and drive his Buick automobile upon the west rail of the northbound tracks of the street railway on Wentworth avenue; that defendants were then and there operating an electric trolley or street car upon the northbound rails and that while plaintiff’s intestate was in the exercise of due care and caution for his own safety, the defendants by reason of their carelessness and negligence ran said street car upon and against said Buick automobile, whereby plaintiff’s intestate sustained injuries which resulted in his death.

In addition to the foregoing charge the complaint also specifically alleged that defendants negligently failed to bring said street car to a stop before striking the Buick automobile; that defendants operated said street car at such a high and excessive rate of speed that they were unable to stop said street ear before striking said automobile; that defendants having noticed that plaintiff’s intestate was in a position of great danger and in peril of being injured, nevertheless, ran and operated said street car upon and against said Buick automobile; that with a conscious indifference to the surrounding circumstances and conditions, and with a conscious indifference for the safety of plaintiff’s intestate, the defendants wilfully and wantonly ran and propelled said street car upon and against said Buick automobile.

Defendants ’ answer denied all of the material allegations of the pláintiff’s complaint.

The evidence taken at the trial tends to show that the accident occurred about 8 o’clock on the evening of September 15, 1935, on Wentworth avenne between 57th and 58th streets, Chicago, Illinois; that Wentworth avenue runs north and south and that defendants operated a street car line with two tracks running parallel; that Wentworth avenue is a 50 foot street from curb to curb; that the pavement is a combination of brick and asphalt, brick where the car tracks are laid and asphalt from the outer street car rails’to the curbing; that the distance from the west rail of the southbound track to the west curb is about 18 or 19 feet; that the distance from one outside rail to the other outside rail is about 15 feet; that the car tracks are practically in the center of the street and that the accident occurred about 125 feet north of 58th street in the center of the street car tracks; that the night of the accident was clear and that there was good artificial lighting and the road was in good condition.

The evidence further shows that on the night of the accident several automobiles were parked along the curb on the west side of Wentworth avenue, facing south; that just prior to the accident plaintiff’s decedent was driving his automobile in a southerly direction on the west half of the street, straddling the west rail of the southbound street car tracks and driving approximately 25 or 30 miles an hour; that the headlights of his automobile were lighted; that suddenly an automobile which had been parked at the curb turned out to the left and onto the southbound street car tracks and in front of decedent’s Buick; that apparently to avoid hitting said automobile, the decedent turned his Buick to the left and drove upon the rail of the northbound street car track; that at the time a street car was proceeding north on the east rails and the automobile of decedent and the street car collided, which resulted in the death of Edward Fina, the decedent herein mentioned.

The evidence further shows that at the time of the collision, the left front of the street car and the left front portion of the automobile crashed together, damaging the left wheel, the left fender, the left side portion of the hood of the automobile and also damaging the left front portion of the street car; that the force of the impact threw the decedent against the steering wheel in the automobile, injuring him so severely that he died four days later.

The evidence further shows that the person, whose automobile had been parked at the curb and who drove out in front of decedent’s automobile, continued on south and disappeared and his name is not mentioned in the record.

The evidence further shows that when the decedent’s Buick automobile went on the east side of the street, the street car was from 50 to 60 feet away; that the motorman put on his brakes, sanded the rails and reversed his motor; that at the time of the accident the motorman slowed the street car down to about 5 or 6 miles an hour in the process of stopping; that the automobile was traveling at approximately 20 miles an hour when it came in contact with the street car; that at the time of the impact the automobile was just a little past the center of the street, toward the east side; that after the impact, when both the street car and the automobile were standing still, the front end of the street car was about 15 or 20 feet from the rear end of the automobile.

William Merrick, a witness called on behalf of plaintiff, testified that he was a passenger on the Went-worth avenue street car on the night of the accident; that there was a crash and the applying of brakes, which jerked the car to a stop; that the crash and the applying of brakes came simultaneously or the brakes came afterward; that the street car was moving just before the accident.

Ann Swierske, another witness called in behalf of plaintiff, testified that she also was a passenger on the Wentworth avenue street car the night of the accident and that prior to the accident the car seemed to be going along at the regular rate of speed; that at the time of the screeching of the brakes and the impact she could not say exactly how far the car moved before it came to a full stop; that it seemed to be making an awful effort to stop, but it moved along after the screeching of the brakes, but was trying to stop.

Other witnesses for plaintiff testified that the street car was moving at from 25 to 30 miles an hour and that the street car moved at least 25 feet before coming to a stop after the crash; that the motorman put on his brakes but that he could not stop and that the street car hit the Buick automobile; that the vicinity where the accident happened was a neighborhood of small stores and that there was no traffic on the street!

We have gone very carefully through this record in an endeavor to find out wherein the defendants were guilty of negligence. What did the motorman do or fail to do that could be considered as negligence? The evidence does not sustain the charge of excessive speed. The evidence of plaintiff’s witnesses shows that the motorman put on Ms brakes, reversed his motor, sanded the tracks so that the street car would not slip and made every effort to stop the street car and avoid the collision. No evidence was introduced by plaintiff tending to show how qrnckly after notice of the impending collision, the street car could have been or should have been stopped by the motorman. The street car, it must be remembered, was on a track and was limited to move in only two directions — forward or backward — and could not be turned aside to avoid the collision.

On the other hand, plaintiff’s decedent was driving an automobile and suddenly, in order to avoid crashing into another automobile which had pulled out from the curb and was in front of him, turned his automobile into,the path of the oncoming street car. He was traveling along at the rate of 25 or 30 miles an hour south, whilst the street car was traveling north at approximately the same speed. Mathematically, it would take less than a few seconds for the inevitable collision to occur. It could with equal force be said that the automobile ran into the street car instead of the street car ran into the automobile.

Confining ourselves to the motion made at the close of plaintiff’s case, to instruct the jury to find defendant not guilty, we note the case of Harrison v. Bingheim, 350 Ill. 269, which case is similar to the instant case and the Supreme Court had occasion to determine who was responsible as a matter of law for a collision which occurred under circumstances almost identical to the circumstances in the instant case. In the Harrison case, Mrs. Harrison accompanied by her niece was driving east to the right of the track at a speed of 15 to 20 miles an hour; that a number of cars were parked along the curbing on both sides of the street; that defendant’s automobile was traveling in the opposite direction on the other side of the street when suddenly an automobile which had been parked at the curb pulled out in front of him and in order to avoid crashing into it he turned his automobile on to the street car tracks; that the street car rails were slippery and that he was unable to keep from going on them; that he saw plaintiff’s car coming and attempted to turn his car to the right but was unable to get it from the rails until it struck a stone or something* which caused the front wheels to veer to -the left and the left front of his car collided with the left front of plaintiff’s car, which resulted in injury to plaintiff. Mrs. Harrison brought suit against Bingheim and at the close of the evidence the court directed a verdict against Bingheim and entered judgment on the verdict in favor of plaintiff. The Appellate Court affirmed the judgment of the trial court and the defendant brought the case before the Supreme Court on certiorari. In affirming the judgment the Supreme Court said at pages 272 and 273: “If the position of his car on the rails rendered a collision inevitable, it must be determined whether or not. he was guilty of negligence, as a matter of law, in placing his car in the path of the plaintiff. As the driver of a car going west it was his general duty to remain to the right of the center of the street. He was a resident of Belleville and had been a driver of a truck in that .city for nine and one-half years. He was acquainted with the street upon which the accident occurred and with the fact that automobiles were frequently parked along its sides. In the exercise of reasonable care he was bound to anticipate that cars so parked might turn into the street. (Sullivan v. Ohlhaver Co., 291 Ill. 359.) It was his duty to use reasonable care to have his automobile under such control as would enable him to avoid collision with other automobiles, whether parked along the curbing or traveling in the accustomed line of traffic. In the Ohlhaver case the plaintiff parked his automobile on the side of a street. He was fixing the tail light. An automobile owned by James Feece was parked to the rear. Feece attempted to put out into the street, and while doing so his car was struck from behind by a truck belonging to the Ohlhaver Company. The force of the impact drove Feece’s car forward against Sullivan’s car, crushing Sullivan between them. Sullivan brought suit against the Ohlhaver Company and recovered a judgment, which this court affirmed. We held that the driver of the truck was bound to anticipate that cars parked along the curb might turn into the street, and that it was his duty to keep a proper lookout for them and to use care to have his truck under such control as to enable him to avoid collisions. Under this doctrine it is no less the duty of a driver to use reasonable care to avoid colliding with a car in its proper line of traffic than to avoid a collision with a car which is pulling out from a parking space. If a driver omitting to use reasonable care in the control of his automobile and about to collide with another suddenly changes his course and collides with a car traveling in its proper place he cannot escape liability for striking the latter car. Here the center line of the street was midway between the street car track. The defendant’s testimony shows that his'car was traveling astride this line and that the plaintiff’s car was south of it. Her car was where it should have been. It was his duty to anticipate that cars would withdraw from the parking-space and that cars would be going east on the opposite side of the street. It was his further duty to use reasonable care not to collide with either. The undisputed evidence shows that he ignored both duties.

“The defendant contends that plaintiff was guilty of contributory negligence because she did not turn to her right and give him room to pass. The evidence furnishes no basis for this contention. She was on the south side of the street, where it was her duty to be. She was going along* the line which other vehicles were traveling. The defendant’s car suddenly turned into her path. She testified that she did not notice it until the instant of the collision. Her niece testified that when defendant turned out of his line of traffic he was not over ten feet from them. He testified that he did not see the plaintiff’s car until he was about that distance away. There was no testimony in the record which even remotely tends to show contributory negligence on the part of the plaintiff.”

In Calumet Iron & Steel Co. v. Martin, 115 Ill. 358, the court at page 368, said:

“From the earliest reported case in our Reports, where the question was passed upon, to the present. time, — a period of more than thirty years, — the general rule has been declared and recognized in opinions announced from time to time, that in order to recover for injuries from negligence it must be alleged and proved that the party injured was, at the time he was injured, observing due or ordinary care for his personal safety.”

In Hooper v. Adams Express Co., 289 Ill. 169, at page 171, it was said: “It is as essential to plaintiff’s right to recover to show that deceased was in the exercise of ordinary care for his own safety as to show that the defendant was negligent. ’ ’

Applying these principles of law as laid down by the Supreme Court, to the actions of plaintiff’s decedent, would lead to the following conclusion:

Plaintiff’s decedent had been in the automobile business for years and had been a manufacturer of automobile bodies, and was evidently familiar with driving automobiles. He had lived for many years not far distant from the place where the accident occurred and evidently was familiar with the neighborhood. On the night of the accident, while driving his automobile, he suddenly left a section of the roadway where he was legally entitled to be, and turned his automobile to the other side of the street in front of an oncoming street car. We have been unable to discover any negligence which could be attributed to the defendant company. The street car was on the east side of the street where it had a right to be. At the time of the accident the decedent was also on the east side of the street, traveling in the opposite direction, and under the circumstances he should not have been there. It appears to us that the driver of the Buick automobile, plaintiff’s decedent, was solely to blame for the collision and its consequences, inasmuch as he should have anticipated that one of the automobiles parked at the curb might pull out in front of him.

As before stated, the trial judge refused at the close of plaintiff’s evidence to direct a verdict in favor of defendants as to the negligence charges and upon the motions to instruct for defendants made at the close of all the evidence the court reserved its rulings. The statute provides that a court may reserve his rulings on such motions until the verdict of the jury is returned. The purpose or value of this statutory provision is not instantly apparent, but it vests discretion in the trial court as to when he may pass upon such motions.

We are of the opinion that since there is no evidence which tends to show negligence on the part of the defendants, but on the contrary that the negligence was on the part of plaintiff’s decedent, he having placed himself in the path of an oncoming street car under the circumstances described, the motion to direct a verdict at the close of plaintiff’s evidence could well have been granted. This decision to reserve the court’s decision to instruct the jury for defendant was'cured later, however, by the action of the court in entering the judgment of the court non obstante veredicto.

For the reasons herein given the judgment of the circuit court is affirmed.

Judgment affirmed.

Hebel, P. J., and Hall, J., concur.


text:
    W. E. Boylston and Clara A. Boylston, Appellants, v. Senate Apartment Building Corporation et al., Appellees.
    Gen. No. 39,581.
    Opinion filed December 15, 1937.

      Teller, Levit, Silvertrust & Levi, of Chicago, for appellants.
    A. Edmund Peterson and Scott, MacLeish & Falk, both of Chicago, for appellee Chicago Title & Trust Co.; George W. Swain, Harold D. Burgess and Merrill A. Bussell, all of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

An order was entered in the superior court in the above entitled cause on a motion made by defendants to dismiss plaintiffs’ complaint and costs were rendered against the plaintiffs, from which order plaintiffs bring this appeal.

It appears from the complaint that on or about March 20, 1928, the Senate Apartment Building Corporation, a corporation, one of the defendants herein, issued bonds in the aggregate of $140,000, secured by certain real estate located in the city of Chicago; that the maturity date of said bonds covered the period beginning July 10, 1930 to July 10, 1935.

The complaint further alleges that the trust deed securing this bond issue by its terms made the Chicago Title & Trust Company, trustee; that said trustee certified as to the validity of the bonds and that they were secured by said trust deed; that all of said bonds, prior to the date of their respective maturities, were negotiated and sold for good and valuable considerations to certain owners and holders thereof; that the rents, issues and profits were included in addition to the conveyance of the premises for the pro rata benefit and security for the holders of the above mentioned bonds; that in performance there shall be no priority of one bond over another for the uses and purposes in said trust deed declared.

The complaint further alleges that the trust deed provided in case of default in the due and punctual payment of the principal or interest on any bond and shall continue for a period of 20 days, then the whole of said principal sum secured hereby, together with interest accrued thereon, shall, at once, without notice, at the option of the holder of any one of said bonds then unpaid, become due and payable, or “in case default shall be made in the due observance or performance of any other covenant, condition or agreement herein required to be kept or performed by the party of the first part, the said last mentioned default shall continue for a period of thirty (30) days after written notice thereof, to the party of the first part from the Trustee, then the Trustee may and upon written request of the holder of not less than twenty per cent (20%) of the principal amount of the bonds then outstanding hereunder and upon being indemnified to its satisfaction, shall, without further notice, declare the principal of all bonds hereby secured and then outstanding, together with accrued interest thereon, to be due and payable immediately.”

The complaint further alleges that the trust deed further provided that the trustee in lieu of, or in addition to the right of entry as hereinabove provided, in case of default and the continuance thereof, in the payment of principal or interest, as provided, may on written request of the holder of any one or more of the then outstanding bonds and upon being indemnified to its satisfaction, shall, in case of such default, either cause the indenture to be foreclosed and the mortgaged property or any part thereof, to be sold or proceed to protect and enforce the rights of the trustee and the bondholders thereunder by appropriate proceedings at law or in equity, and for the enforcement of such legal or equitable remedy as may in the opinion of counsel be found effectual to protect the rights aforesaid.

Although numerous defaults had occurred in the payment of principal and interest, the trustee did nothing about it, and on November 13, 1936, the trustee, Chicago Title and Trust Company, received the following letter:

“Chicago, Illinois, November 13th, 1936.

“Chicago Title & Trust Company, a Corporation, as Trustee under that certain Trust Deed dated the 20th day of March, A. D. 1928, and recorded in the Recorder’s Office of Cook County, Illinois, as Document Number 9994295:

“69 West Washington Street,

Chicago, Illinois.

‘ ‘ Gentlemen:—

“You Will Please Take Notice that the undersigned are the owners and holders of bonds numbered 13 to 14, in the principal sum of $1,000.00 each, together with interest coupons of Series 6, 7 and 8 attached to each of said bonds, made and executed by Senate Apartment Building Corporation, and secured by Trust Deed upon real estate in Cook County, Illinois, recorded in the Recorder’s Office of Cook County, Illinois, as Document Number 9994295.

“You Are Further Notified that default in the payment of said principal bonds numbered 13 and 14, and interest coupons of series numbered 6, 7 and 8 attached to each of said bonds, has existed for more than twenty (20) days from the due date thereof.

“Therefore, pursuant to the provisions of said Trust Déed, the undersigned, as the owners and holder's of said bonds and interest coupons thereto attached, secured by the lien of the said Trust Deed, does hereby request and demand that you, as Trustee, institute foreclosure proceedings, and the undersigned do hereby offer to produce and deposit said bonds and interest coupons for said purpose, and do hereby offer to establish their title thereto, and do hereby offer to give you indemnity as provided in said Trust Deed.

“Kindly advise the undersigned as to the time, and place, when and where you desire the undersigned to produce the said indemnity, bonds and interest coupons. The undersigned are at all times ready and able to produce the same at a reasonable time to be appointed by you.

“Yours very truly,

W. E. Boylston Clara A. Boylston

“Received a copy of the above demand this 13th day of November, A. D. 1936.

“Chicago Title & Trust Company, as Trustee,

By A. E. Peterson

“Registered No..........”

Said letter was sent by the plaintiff, relying* upon that section of the trust deed which provides that one or more bondholders may commence foreclosure after having given notice to the trustee of the default after a period of 30 days upon indemnifying the trustee for any costs in relation thereto.

The complaint further alleges that after serving notice upon the Chicago Title & Trust Company, as trustee, that the trustee failed and refused to act for the protection and benefit of the plaintiffs and owners and holders of the outstanding bonds and interest coupons; that Baird & Warner, Inc., was the concern who issued said bonds; that no bill to foreclose or any other proceedings in law or equity had been filed at the instance of either the said bondholders or the Chicago Title & Trust Company, as trustee; that plaintiffs have been informed that the county treasurer on June 19, 1933, and again on June 26, 1934, filed petitions for the appointment of a receiver for failure to pay the general taxes on said premises; that thereafter on June 19, 1931, the original owners of the equity conveyed title to Mildred C. Sandley, a nominee for certain bondholders, and that thereafter the said Mildred C. Sandley conveyed said premises to the Chicago Title & Trust Company, in trust; that thereafter the Chicago Title & Trust Company, as trustee under said trust, conveyed title to Harry Haiman and that plaintiffs have been unable to ascertain the reason why said conveyances have been made and what benefit such conveyances have been to them and the other bondholders nor have plaintiffs been informed as to the numerous considerations given for said conveyances, but plaintiffs believe that the same amounts to several thousands of dollars and that there has been considerable expense in connection with the making, executing and recording of said conveyances; that plaintiffs have not been able to ascertain from what source the moneys have come to pay such considerations.

The complaint further alleges that under said trust deed, the holder of any bond or coupon secured thereby shall have the right to institute any suit, action or proceeding in equity, or at law for the foreclosure of said trust deed, or for the execution of any trust thereof, or for the appointment of a receiver, or any other remedy, where the trustee having been notified has refused to act in accordance with said notification; that upon any holder of any bond or coupon secured thereby, filing any bill to foreclose, or taking any other step by proper proceedings, either in law or equity, does so with the same rights and privileges as if the trustee named in said trust deed had filed a bill to foreclose, or taken such other step by proper proceedings either in law or in equity; that the plaintiffs filed their bill to foreclose and that the plaintiffs filed their bill of complaint not only for themselves as legal holders of bonds numbered 13 and 14 and interest coupons thereto attached, but for the benefit of the owner or owners, holder or holders of all other outstanding and unpaid bonds and interest coupons secured by the lien of the trust deed.

The complaint further alleges that the bonds have been sold to the general public, and that the legal holders and owners thereof are very numerous and some of them reside out of the State of Illinois, that some of them are widely scattered and some are unknown ; that it is impracticable to make all of the holders of said bonds parties to this complaint by name, and to do so would be difficult and in all likelihood impossible and would entail a very large additional expense in connection' with the foreclosure of said trust deed, and would greatly delay these proceedings and the entry of a decree herein; that the interest of all the holders and owners of said bonds and coupons are in no respect in conflict with the interests of plaintiffs who bring this suit for and on behalf of themselves and of all owners of said bonds and coupons, and that any action taken by this honorable court on behalf of plaintiffs shall inure to the benefit of each and every one of the owners and the holders of the bonds and coupons secured by said trust deed herein sought to be foreclosed.

The complaint further alleges that the premises are located at 1627-41 Pratt boulevard, Chicago, Illinois, and are improved with a brick building containing 12 five-room apartments, 18 four-room apartments and basement apartment; that said real estate is of the present market value of approximately $85,000, and that the building’ was built in and about the year 1922; that the premises sought to be foreclosed are meager and scant security for said indebtedness and a receiver should be appointed to take charge and possession of the premises herein described and to collect the rents, issues and profits therefrom and disburse the same according to the order of court; that the receiver have and take immediate possession; that after paying the expenses of said receivership, including all moneys disbursed by the receiver for rents, insurance, taxes and assessments on said premises and reasonable receiver’s fees and fees for receiver’s attorneys and other charges, the remainder of the rents and income from said premises should be applied towards the payment of any deficiency not paid by the proceeds of the sale of said premises or property.

The complaint further alleges that on March 5, 1930, an assignment of rents was issued to Baird & Warner, Inc., which said assignment was recorded in the recorder’s office of Cook county on March 11, 1930, as document No. 10611788.

The complaint further alleges that on petition of the county treasurer of Cook county, setting forth that the taxes covering said premises were in arrears,- Baird & Warner, Inc. was appointed receiver and thereafter took possession and is now in control and management of said premises as such receiver; that the taxes due and owing amounted to upwards of $15,000, which, together with interest and penalties thereon, amounted to approximately $21,696.23.

The complaint further alleges that by reason of the default in the payment of the said interest coupons, as aforesaid, a receiver having been appointed for said Senate Apartment Building Corporation, as aforesaid ; that by. reason of all the bonds secured by said trust deed having been matured and past due and unpaid; that plaintiffs herein have elected to and. do hereby elect to declare immediately due and payable, all of the bonds unpaid, outstanding and secured by said trust deed.

The complaint further alleges that there is now due and owing to plaintiffs herein and to other owner or owners, holder or holders of all the other outstanding bonds and interest coupons, the principal sum of $140,000.

No briefs were filed on behalf of Baird & Warner, Inc., in this court and the trustee’s principal contention appears to be that the notice given by the plaintiffs was not sufficient to apprise said trustee as to what action was expected of it. We think this contention is hypercritical. Article III, sec. 4 of the trust deed, which is made a part of the bill of complaint, reads as follows: “. . . and on the written request of the holder of any one or more of the then outstanding bonds and upon being indemnified to its satisfaction, shall, in case of such default, either (a) cause this Indenture to be foreclosed and the mortgaged property or any part thereof, to be sold or (b) proceed to protect and enforce the rights of the Trustee and the bondholders hereunder by appropriate proceedings at law or in equity. . . .” Tender of indemnity in their letter was sufficient compliance with the provision therefor as set forth in the trust deed. One has but to read the portions of the trust deed submitted to us and the demand of plaintiffs to the trustee, to understand that the plaintiffs by their notice, and demand letter of November 13,1936, fully informed the trustee that they were serving notice and demand in accordance with the terms of the trust deed.

As was said in the case of Gage v. People, 223 Ill. 410: “This court has held, in construing notices in chancery proceedings and other instances where notices were required, that the real question is and should be, not whether the notice is formally and technically correct, but whether the object and intent of the law were substantially attained thereby.”

It must be assumed that the trustee in this ease occupied a fiduciary relationship with the bondholders and it was the trustee’s duty to protect the interests of said bondholders. When this is not done by the trustee and the matter is called to the attention of a court, in a proper case, it is the duty of the court to see that the cestuis que trustent’s interest is preserved and that the trustee performs its duty. Most of the bonds have been in default for seven years. We do not say that because the default has extended over that period of time and no action taken by the trustee, it is prima facie evidence of neglect on the part of the trustee, but it does create a status which calls for an answer and explanation on the part of the trustee. People v. Bordeaux, 242 Ill. 327.

The property has been conveyed and reconveyed until now the defendant Baird & Warner, Inc. is in possession of the property which, as the bill alleges, was conveyed since the defaults herein mentioned occurred.

We are of the opinion that the plaintiffs alleged sufficient in their bill to withstand the motion which was made to strike the complaint and the court erred in dismissing plaintiffs’ complaint.

For the reasons herein given the order is reversed and the cause is remanded with directions to overrule the motion to dismiss plaintiffs’ complaint and to proceed with said cause in accordance with the views herein expressed.

Order reversed and cause remanded with directions.

Hebel, P. J., and Hall, J., concur.


text:
    H. A. Thulin, Appellee, v. National Ice and Fuel Corporation et al. Appeal of National Ice and Fuel Corporation, Appellant.
    Gen. No. 39,790.
    Opinion filed December 15, 1937.
    Samuel Arthur Karlin and Sabath, Perlman, Goodman & Rein, both of Chicago, for appellant; Isaac M. Mills, of Chicago, of counsel.
    Keane & O ’Leary, of Chicago, for appellee; Thomas E. Keane and John A. Zvetina, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Defendant, National Ice and Fuel Corp., brings this interlocutory appeal under the statute from an order granting an injunction without notice on July 23,1937.

Plaintiff’s complaint consisted of two so-called counts, the first of which alleges in substance that he is now and has been for the past 11 years engaged in the retail ice -distributing business doing business in the district bounded on the north by Harrison street, on the east by Pulaski road, on the south by Taylor street and on the west by Kildare avenue, in the city of Chicago; that prior to April 1937, he purchased all his ice requirements at wholesale from the National Ice and Fuel Corp. for resale at retail in the territory heretofore mentioned and paid said National Ice and Fuel Corp. $4 per ton, which is the prevailing wholesale price of ice to dealers.

Said first count further alleges that subsequent to April, 1937, plaintiff ceased purchasing ice from said defendant and commenced purchasing ice from an--' other wholesale ice distributing company located in Chicago; that immediately following plaintiff’s discontinuance of the purchase of ice from said defendant,. threats were made by agents of said defendant, National Ice and Fuel Corp.; that if plaintiff did not resume purchasing ice from said defendant it would cause ice to be sold at retail to the customers of plaintiff in the territory in which plaintiff did business at a price at which plaintiff would be unable to compete ; and further that said defendant would sell ice at wholesale to Johnson and McGeeney, who were customers of said defendant and were plaintiff’s sole competitors selling ice at retail in plaintiff’s territory, at a price which would permit the said Johnson and McGeeney to also sell ice at retail in said territory' at a price at which plaintiff would be unable to compete and which would, therefore, destroy plaintiff’s business.

Said first count further alleges that plaintiff refused to resume doing business with defendant, National Ice and Fuel Corp., and that as a result of its acts, combinations, conspiracies and agreements between the defendants, Johnson, McGeeney and itself, did maliciously and with intent to destroy the plaintiff’s business and property, in May 1937, commenced to solicit the business of and sell ice at retail to the customers of plaintiff at a price of approximately 50 per cent of the then prevailing* retail price of ice and did in May, 1937, commence to sell to the defendants, Johnson and McGeeney, ice at wholesale at a price of approximately 50 per cent of the then prevailing market price of ice to dealers selling ice to the class of consumer to whom the plaintiff sold; that Johnson and McGeeney were the only purchasers of ice from the defendant National Ice and Fuel Corp. at a price less than the prevailing wholesale price of ice; that Johnson and McGeeney, in accordance with said combination, conspiracy and agreement with the defendant, did in May, 1937, commence to sell ice in the same territory in which plaintiff was doing business at a price of approximately 50 per cent of the then prevailing retail price of ice; that Johnson and McGeeney continued to sell ice outside of the territory in which plaintiff did business at a price greatly in excess of the price at which they sold ice in plaintiff’s territory and did in said other territories sell ice at the then prevailing market price of ice.

Said first count further alleges that the defendant National Ice and Fuel Corp. prior to its combination, conspiracy and agreement with Johnson and Mc-Geeney, was engaged solely in the wholesale distribution of ice and did not until May, 1937, engage in the retail sale of ice and that the defendant National Ice and Fuel Corp. is not engaged in the retail sale of ice in any district in Chicago except that in which the plaintiff does business; that said defendant has continued to sell ice at retail in the territory in which plaintiff has been doing business at a price of approximately 50 per cent of the prevailing sales price of ice and that the defendant has continued to sell to Johnson and McGeeney ice at wholesale at a price approximately 50 per cent of the prevailing wholesale price of ice, so that Johnson and McG-eeney might cooperate with the defendant in furtherance of a combination and conspiracy to control prices and to destroy plaintiff’s business and property; that by reason thereof plaintiff’s business and property were injured and plaintiff suffered a loss of many of his customers and was deprived of his just profits and income and asks judgment for the amount of damages so sustained amounting to $25,000.

The second count is substantially the same as the first and.prays that the National Ice and Fuel Corp., its officers, agents and solicitors be enjoined from selling ice at wholesale to H. L. Johnson Ice Company, and Owen McGeeney, or to any person, firm or corporation for the purpose of resale in plaintiff’s territory at a price less than the prevailing wholesale price of ice to other wholesale distributors similarly situated and that the National Ice and Fuel Corp., its officers, agents, employees and solicitors be restrained and enjoined from selling ice at retail in the territory bounded on the north by Harrison street, on the east by Pulaski road, on the south by Taylor street and on the west by Kildare avenue, which territory is located in the city of Chicago, Illinois, at a price less than the prevailing- retail price of ice in said territory and that National Ice and Fuel Corp., H. L. Johnson, doing business as H. L. Johnson Ice Company and Owen McGeeney, their officers, agents, employees and solicitors be restrained and enjoined from continuing their illegal combination, conspiracy and agreement to control the retail sales price of ice in the aforementioned territory for the purpose of injuring plaintiff’s business to the extent that they shall force Turn to discontinue in the operation of his business.

Plaintiff further asks that, as the matter is urgent and does not admit of notice of motion for a preliminary injunction, a temporary restraining order issue enjoining defendants, National Ice and Fuel Corp., H. L. Johnson, doing business as H. L. Johnson Ice Company, and Owen McG-eeney, their officers, agents, employees and solicitors, from performing any of the aforesaid acts until the further order of court.

The complaint is verified in the following manner:

“State of Illinois, )

County of Cook. ) ss‘

“H. A. Thulin, being first duly sworn, on oath deposes and says that he is the Plaintiff in the above entitled cause; that he has read the foregoing complaint by him subscribed and that the same is true in substance and in fact.

“H. A. Thulin

“Subscribed and sworn to before me this 21 day of July, 1937.

(Seal) Allan I. Wolff, Jr.

Notary Public.”

We have set forth the substance of the complaint quite fully and the affidavit thereto attached, for the reason that we are met at the outset by the charge that the complaint and affidavit accompanying the same is not sufficient to authorize the court to grant an injunction without notice.

Ch. 69, par. 3, sec. 3, Ill. State Bar Stats. 1935, provides as follows:

“If 3. notice of application.] § 3. No court, judge or master shall grant an injunction without previous notice of the time and place of the application having been given to the defendants to be affected thereby, or such of them as can conveniently be served, unless it shall appear, from the [complaint] or affidavit accompanying the same, that the rights of the [plaintiff] will be unduly prejudiced if the injunction is not issued immediately or without such notice.”

As will be seen from the complaint and the affidavit thereto attached, there is no reason given as to why the injunction should issue without notice, except the statement in the bill of complaint which reads: “Plaintiff further asks that, as the matter as above set forth is urgent and does not admit of notice of motion for a preliminary injunction, a temporary restraining order issue enjoining said defendants. ...”

No facts have been set forth either in the complaint or affidavit which would justify a court in issuing an injunction without notice. The question with regard to courts issuing injunction on the face of the complaints without complying with the requirements of the statute has been before the courts of this State many times.

In the case of Christian Hospital v. People, 223 Ill. 244, the court cites the rule that is to be followed in a complaint and the affidavit accompanying the same, which would justify the issuance of an injunction without notice. In that case a temporary injunction was issued without notice, restraining the defendants from using the plaintiff’s name or signature or picture in connection with the Christian Hospital; from sending out any more literature of the same kind or similar to that sent out on or about May 12, 1903; restraining them from using or distributing any of the letters written upon the letter-heads on which plaintiff’s name appeared; from using plaintiff’s name, signature or picture in connection with the certificate or literature of the hospital relating to its business; and from representing in any manner that plaintiff was then or ever had been connected with the hospital.

In setting aside a conviction for contempt for a violation of the injunction that had been issued, the court said: “There was nothing in the bill from which it could be inferred that the rights of the complainant would be prejudiced if notice was not given, and the injunction was issued without notice, upon the affidavit of complainant stating his conclusions that his rights would be unduly prejudiced if the injunction were not issued immediately and without notice. It is the court, judge or master to whom it must appear, from the facts stated in the bill or affidavit, that the rights of the complainant will be unduly prejudiced, and not the complainant himself. The facts from which the inference arises are to be stated, and as the affidavit in this case stated nothing except the opinion of the complainant, it was not sufficient to make it appear to the court that he would be prejudiced in any manner.”

In the instant case it appears there is nothing to show, either in the bill of complaint or in the affidavit thereto attached that the plaintiff would be unduly prejudiced if the injunction were not issued without notice.

We are not passing upon any of the other questions in controversy which have been presented in the briefs.

For the reasons herein given the order of the superior court granting the injunction without notice is hereby reversed.

Order reversed.

Hebel, P. J., and Hall, J., concur.


author: Mr. Justice Matchett

text:
    Western-United Dairy Company and Milk Wagon Drivers’ Union of Chicago, Local 753, Appellees, v. Ike Nash, Appellant.
    Gen. No. 39,929.

      Opinion filed December 30, 1937.
    Summer C. Palmer, of Chicago, for appellant.
    David A. Riskimd and Robert Memdelsom, of Chicago, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.

Upon the filing of a bill of complaint by the dairy company and Chicago Local 753 of the Milk Drivers’ Union on July 19, 1937, upon due notice, the court entered a temporary injunction against defendant, Ike Nash, restraining him from soliciting the business of 120 customers of the dairy company, whose names are in the bill and set up in the order. The complaint, consisting of 20 paragraphs with prayers for an injunction and further relief, is verified by M. S. Dick, president of the dairy company, and Steve C. Sumner, secretary-treasurer of the local union. Defendant has not in any way denied the facts averred in the bill. The order for an injunction provided that each of plaintiffs should give bond in the sum of $750, which was done, and the respective bonds were duly approved by the court. September 23, 1937, defendant moved that the injunction be dissolved and the complaint stricken. On October 28 thereafter the motions were denied, and defendant has appealed.

The dairy company is a duly organized corporation. The union is a voluntary association consisting of about 7,300 persons who serve milk companies operating in the Chicago area as drivers of milk wagons. Defendant contends that only one bond should have been given instead of two, and that the condition of both bonds was insufficient. We are not able to see how the defendant was injured in any way by the fact that two bonds were executed in his favor. Nor has he pointed out wherein the condition of either bond is defective. If the bonds are defective in any way, this might be ground in the trial court for a rule on plaintiffs to file a new bond, to file new bonds, or one joint bond, but is not sufficient reason for reversing the order.

Defendant contends that there is a misjoinder of parties, but this (if true) is not a valid reason for reversing. (See Ill. Civil Practice Act Annotated, McCaskill’s 1936 Edition, sec. 26, p. 60.) Defendant urges that a voluntary unincorporated association has no standing to maintain a suit at law or in equity. That is not the law in this State. Cahill v. Plumbers, Gas & Steam Fitters’ & Helpers’ Local 93, 238 Ill. App. 123; Biller v. Egan, 290 Ill. App. 219. Even if this were true it would not justify the reversal of an order not erroneous in so far as the dairy company is concerned. It is urged that certain parts of the complaint should be stricken because of the absence of allegations of fact supposed to be necessary. Plaintiffs were not required to plead their evidence and an examination of the complaint shows that it is not substantially defective in these respects. It is urged that the complaint, should have been stricken because it discloses that plaintiffs are in court with unclean hands by reason of a provision in the contract between the dairy company and the union set up verbatim in the bill, which provides that the union shall not be required to pay costs of any order which may restrain a driver from “stripping his route,” and that the dairy company shall advance all necessary costs for enforcing this provision. It is suggested that this amounts to maintenance. We hold the maintenance statute is not applicable to a situation of the kind set up in the contract. Ill. Rev. Stat. 1937, ch. 38, §66; Jones Ill. Stats. Ann. 37.041. The facts set up in the bill which affect the real merits of the controversy appear to be as follows: Beginning on the second day of May, 1923, and ending on July 10, 1937, Nash was employed by the plaintiff as a milk wagon driver, and during that time called upon and served customers and consumers of the dairy company. A list of the customers he served is attached to the complaint as Schedule “ C. ” On or about July 15,1923, Nash became a member of the union, and when the dairy company employed Nash he agreed to be governed and to act in accordance with all of the by-laws, rules and agreements entered into by a majority of the members of the union. On the first of May, 1937, an agreement was entered into between the members of the union and plaintiff dairy company, a copy of which is attached to the bill and marked Exhibit “A.” By that contract it was agreed Nash would not, while in the employ of the plaintiff dairy company nor within 24 months after the termination of his services, call upon, solicit or interfere with or divert the customers and consumers which he formerly served while in the employ of the dairy company, that Nash agreed to be governed by all agreements then existing between the dairy company and the union of which he was a member, and any agreements which should thereafter be made. Nash was discharged July 10, 1937, while the contract in question was in force. A by-law of the union passed September 10, 1916, by the members of the union and in force when Nash was discharged provides :

“The customers and consumers of the dairy companies employing Union labor belong to and are a part of the assets and good-will of the said dairy companies; that any milk wagon driver, a member of this Milk Wagon Drivers’ Union of Chicago, Local 753, solicits, serves and sells such customers and consumers in a representative capacity only, and if for any reason whatsoever any member of the said Union terminates his employment, or is discharged, or dismissed, or for any other reason said employment ceases and is terminated, it is understood and agreed that any such member shall not call upon, solicit, sell or interfere with or divert the customers and consumers, formerly served by them on behalf of their former employer for a period of two (2) years from the date of the termination of their employment.

“It is further understood that if a member of the said Union were to resign as a member of the said Union, in no event would this abrogate the agreement into which he entered until the space of two (2) years from the date of his designation or discharge had elapsed. ’ ’

The complaint avers that defendant Nash with full knowledge of this agreement is violating it and since June 27, 1937, has persisted in soliciting* the customers and consumers of the dairy company and attempted to sell them dairy products produced by firms other than Western-United Dairy Company; that the plaintiffs have repeatedly requested and demanded that he cease his activities, but he has refused to do so. The complaint alleges that unless Nash is restrained the dairy company will suffer-irreparable injury for which there is no adequate remedy at law, and that the acts of Nash have aroused among the members of the union internal dissension and quarrels with the plaintiff dairy company and other dairy companies similarly situated; that the union has been injured because of these violations, and that unless Nash is enjoined he will continue to cause dissension among the members of the union; that by reason thereof the union is threatened with destruction and ruin, for which it has no adequate remedy at law.

In American Cleaners & Dyers v. Foreman, 252 Ill. App. 122, this court gave consideration to the question of the right of an employer to enjoin a former employee from soliciting his old customers, and after a review of the authorities held that in the absence of an express contract, equity would not enjoin an employee after the termination of his employment from dealing with old customers, soliciting new ones, or from soliciting' business from the customers of his former employer, where no list of names was taken when he left the employment and no fraud was committed. While there is a conflict of authority, the rule announced in that case is supported by well considered decisions of other jurisdictions. Witkop & Holmes Co. v. Boyce, 112 N. Y. Supp. 874; Empire Steam Laundry v. Lozier, 165 Cal. 95; Messinger Pub. Co. v. Mokstad, 257 Ill. App. 161. These authorities also hold that wnere by contract the employee has promised that he will not make such solicitation during a reasonable time, such provision will be enforced by a court of equity. The fact that defendant was a member of the union, that he knew the terms of its by-laws and the provisions of the contract of the union with the plaintiff dairy company is not denied. In Corpus Juris, vol. 63, p. 692, sec. 62, the author states the rights and liabilities of members of a trade union in general to be as" follows:

“On joining a labor union the constitution and bylaws become a part of the member’s contract of membership, under which he agrees to become bound by the constitution and governing rules of the union so far as is not inconsistent with controlling principles of law. The constitution and by-laws of an unincorporated trade union express the terms of a contract, which define the privileges and rights secured to, and duties assumed by, those who have become members. The agreement of a member on joining a union to abide by its laws and comply with the will of the lawfully constituted majority does not require a member to submit to the determination of the union any question involving his personal rights. ’ ’ '

Under the facts as stated in the complaint (which as already stated) are not denied, we hold the defendant was obligated to refrain from soliciting the former customers of his employer; that he was violating his obligations in that regard; and that the order for a temporary injunction was not erroneous. The order will therefore be affirmed.

Affirmed.

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