author: Me. Justice Gridley

text:
    Thomas C. Dickson, Administrator of the Estate of William O. Dickson, Deceased, Appellee, v. Great American Casualty Company and Pacific States Life Insurance Company, Defendants. Pacific States Life Insurance Company, Appellant.
    Gen. No. 36,187.

      Opinion filed February 21, 1933.
    E. E. Elliott, for appellant.
    Moran, Neltnor & Scolnik, for appellee; Silas A. Canada, of counsel.
   Me. Justice Gridley

delivered the opinion of the court.

In an action in assumpsit, based upon a policy of accident insurance, issued by the Great American Casualty Co. (hereinafter called the Casualty Co.) on-August 31, 1929, and reinsured by the Pacific States Life Insurance Co. (hereinafter called the Pacific Co.) by virtue of a written agreement between it and the Casualty Co., dated October 19, 1929, there was a trial without a jury on June 8, 1932, resulting in a finding and judgment for $1,000 against both defendants. The case was tried upon a stipulation of facts, “except upon the issue as to just how the deceased came to his death,” and, as to the details of his death, plaintiff introduced the testimony (by depositions) of four witnesses. No evidence was introduced by either defendant. From the judgment the Pacific Co. alone prosecutes the present appeal.

To plaintiff’s amended declaration, filed June 5, 1931, a copy of the policy and a copy of the reinsurance agreement were attached as exhibits and made parts of the declaration. And plaintiff therein alleged in substance that the policy was issued to William O. Dickson during his lifetime on August 31, 1929; that by the terms thereof the Casualty Co. insured him by the name of Ordie Dickson (hereinafter called the insured) against the loss of his life “by the wrecking or disablement of any private horse-drawn vehicle or private automobile in which the insured is riding or driving, ’ ’ and agreed to pay the sum of $1,000 to Olive C. Dickson (wife of the insured and named in the policy as beneficiary) in case said insured lost his life in that manner and in case she survived him, but that if she did not survive him then said sum should be paid to his estate; that on September 29,1929, when the policy was in force and effect, the insured came to his death, “while he was riding in and driving his automobile along a public highway . . . near Farmland, Randolph County, Indiana, by his automobile becoming so wrecked and crushed and demolished as to cause his immediate death”; that his wife (hereinafter called Mrs. Dickson) “came to her death on the same day ... in the same manner as the insured and at the same time”; that the Casualty Co. was notified of the insured’s death, and thereafter and within apt time proofs of death were made to it at its Chicago office by plaintiff, as administrator of the insured’s estate; that on October 19, 1929 (less than a month after the insured’s death), the Pacific Co., under its then corporate name of Mountain States Life Insurance Co., entered into an agreement in writing, with the Casualty Co., “whereby it agreed to accept all of the outstanding liabilities on all the various policies and contracts of accident and health insurance of said Casualty Co. which had been issued by it, and did assume all liability of every kind and character of said Casualty Co. ■ under, pursuant to and arising* out of said accident and health policies so issued, as aforesaid, by the Casualty Co., whether then existing or subsequently to arise”; that on July 1,1930, the Pacific Co. (while still doing business under the name of the Mountain, etc. Co.) filed with the secretary of state of Colorado an amendment to its original articles of incorporation, changing its name to the Pacific Co., and did after-wards, during July, 1930, file with the superintendent of insurance of Illinois a certified and authenticated copy of said amendment; that on October 4,. 1929, plaintiff was duly appointed administrator of the estate of the insured (copy of letters of administration attached) ; and that “the Casualty Co., by the issuing of said policy, and the Pacific Co., by reason of its agreement with the Casualty Co., have both become liable to pay to plaintiff the sum of $1,000, but that, nevertheless, said defendants, although often requested, have not paid to plaintiff the said sum or any part thereof and refuse so to do,” to plaintiff’s damage, etc.

To the declaration each defendant filed a plea of the general issue, and three special pleas, one of which denied that defendants were jointly liable to plaintiff. The Pacific Co. filed three other special pleas which, because of the stipulation of facts made and filed prior to the trial, it is not necessary to set forth.

In the stipulation the parties agreed in substance that, as charged in the declaration, the Casualty Co. issued the policy to the insured on August 31, 1929, that the insured and his wife “met their death in a common disaster ’ ’ while in an automobile on the mentioned highway in Indiana on September 29, 1929, that notice and proofs of death of the insured were given to the Casualty Co. within the required times, that plaintiff is the duly appointed administrator of the insured’s estate, that the Pacific Co. (under the name of the Mountain, etc. Co.) entered into the reinsurance agreement with the Casualty Co. on October 19, 1929, and that during July, 1930, the change of name was duly made by amendment and a copy of the amendment duly filed with the superintendent of insurance of Illinois. A copy of the policy and a copy of the reinsurance agreement were attached to the stipulation and made parts thereof.

After the stipulation had been filed and before the trial, the Pacific Co. by leave of court, filed two additional special pleas to plaintiff’s declaration, in substance as follows:

No, 8: That said reinsurance agreement between it and the Casualty Co. “was prepared and executed in accordance with the statutes of Illinois, was submitted to the Director of the Department of Trade and Commerce for his approval, and was by him approved on October 29, 1930;” that under said statutes the agreement ‘ could not and did not take effect until approved by said Director;” that the agreement “was not in force on the date the insured came to his death and did not take effect until long after his death”; and that because of the foregoing the Pacific Co. “is not liable to plaintiff, or to any other person, because of said policy and said agreement.”

No. 9: That said reinsurance agreement “is in law a contract of indemnity, and does not authorize plaintiff, who is not a party to said contract, to maintain any action thereunder against this defendant.”

On the trial plaintiff introduced the stipulation, the policy and the reinsurance agreement, and read the depositions (taken at Winchester, Indiana) of the four witnesses as to the happening of the unusual accident which caused the insured’s death. Plaintiff then rested and the court, upon defendants electing not to introduce any evidence, found the issues in plaintiff’s favor, assessed his damages at $1,000, and, after overruling motions for a new trial and in arrest of judgment, entered judgment against both defendants- in that sum.

In the policy, dated August 31, 1929, the Casualty Co. insured said Dickson for the term of one year “against death or disability resulting directly and independently of all other causes from bodily injury sustained through external, violent and accidental means, subject to the limitations and conditions herein contained.” Then follows a table of indemnities in which is the statement “For loss of life, $1,000, . . . provided such loss shall result, within thirty days from date of accident, from accidental bodily injuries, solely and independently of all other causes, and only if such injuries are sustained as follows: ’ ’ Then are stated in four sections various types of accidents, and in section 1, is the statement “by the wrecking or disablement of any private horse-drawn vehicle or private automobile in which the Insured is riding or driving, ? ?

In the reinsurance agreement, dated October 19, 1929, and duly executed by- the Casualty Co. (an Illinois corporation with principal office in Chicago) and the Mountain etc. Co. (a Colorado corporation with home office in Denver and executive office in Hollywood, California) is the paragraph:

“Whereas the Mountain etc. Co. is desirous of reinsuring the accident and health business of the Casualty Co. and . . . has agreed to accept all of the outstanding policy liability on all of the various policies' and contracts of accident and health insurance in said Casualty Co., and assume all liability of every kind and character of said Casualty Co. under, pursuant to or arising out of any of said accident and health policies whether now existing or to arise.”

In Articles II and III of the agreement it is provided :

“The said Mountain etc. Co. agrees to take into its own accounts all policies and contracts of accident insurance . . . now outstanding and in force, . . . and to adjust, settle or pay all claims arising thereunder, as well as any and all claims now existing, as fully as the said Casualty Co. might or should have done, and all this to do to the complete exoneration of said Casualty Co. from loss or expense on account of all such policies and contracts of accident insurance, . . . whether now existing or heretofore issued, and whether such claims shall now be pending or may hereafter arise.” . . .

“Upon execution of this agreement, and its approval by the Director of Trade and Commerce of Illinois, the Casualty Co. shall immediately deposit with the Mountain etc. Co. . . . the sum of $20,000, representing, an initial and partial payment of the entire amount due the Mountain etc. Co. under this contract of reinsurance.” . . .

“This agreement shall become and be effective on the date of the' approval of the Director of Trade and Commerce of Illinois, and the liability hereunder as of 12 o’clock noon, Central Standard Time, October 15, 1929, and shall continue at full force and effect until the succeeding expiration date thereafter of each and every policy reinsured by the Mountain etc. Co. hereunder. ’ ’

On the last page of the agreement and below the signatures of the parties is the statement of approval by said director as follows:

“Approved this 29th day of October, A. D. 1930, at Springfield, Illinois, by the Director of Trade and Commerce of the State of Illinois.

(Signed) Leo H. Lowe,

Director.”

From the depositions of the witnesses, three of whom arrived on the scene of the accident shortly after it had happened, the following facts appear: Early on Sunday evening, September 29,1929, the insured was driving his two-seated Ford automobile northerly on the public country road in Indiana mentioned in the declaration. He was seated on the left (or west) side of the front seat; no one was seated on the back seat; next to him on the front seat sat a Mrs. Eeed and next to her Mrs. Dickson. Just east of and near to the highway there was standing a large tree, upon which some workmen had on the previous day been doing some work preparatory to removing it.- They had taken away some of the earth around the trunk and had severed some of the roots, and had carelessly left it standing in that condition. On the evening in question a strong wind was blowing. As the insured’s automobile came about abreast of it, the tree fell over across the road, and, in falling, crashed through the top of the automobile, striking the three occupants, breaking the back of the seat and pinioning them down inside the car, killing the insured and Mrs. Dickson, and so seriously injuring Mrs. Eeed as to render her unconscious for several days. The automobile was otherwise badly wrecked, disabled and damaged. The testimony of the witness who first arrived at the scene of the accident disclosed that upon his first examination, made before he went away to summon assistance, Mrs. Dickson was dead but that the insured and Mrs. Reed were still living; and that upon his return he found that the insured, before he was taken from the wreck, had also died.

One of the contentions of counsel for the Pacific Co. on this appeal is that the judgment should be reversed because the accident that caused the insured’s death “is not such an accident as is covered by the policy,” or, as he puts it in other words, “is not one of the perils insured against by the Casualty Co.” We find no merit in the contention. While it is probably true, as argued, that the falling of the tree was the proximate cause of the insured’s death, it is also true that he met his death because of “the wrecking or disablement of a . . . private automobile in which the insured is riding or driving.” The construction of the language of the policy, as urged, is a narrow one, and one which courts do -not favor. (Kaplan v. United States Fidelity & Guaranty Co., 343 Ill. 44, 48.) In Niagara Fire Ins. Co. v. Scammon, 100 Ill. 644, 649, it is said: • “ Such insurance contracts being signed by the insurer only, and prepared by persons acting in the exclusive interest of the insurance company, the language is that of the insurer, and hence the rule is, that the provisions and conditions of the policy are construed most favorably for the insured.” In Healey v. Mutual Accident Ass’n, 133 Ill. 556, 561, it is said: “No rule in the interpretation of a policy is more fully established, or more imperative and controlling, than that which declares that in all cases it must be liberally construed in favor of the insured, so as not to defeat, without a plain necessity, his claim to the indemnity which, in making the insurance, it was his object to secure. ’ ’

The main contention of counsel is that, even though the Casualty Co. may be held liable under the policy, the Pacific Co. cannot be held liable under its reinsurance agreement with the Casualty Co. because that agreement is a mere ‘1 contract of indemnity, ’ ’ to which the insured was neither a party nor in privity therewith. • In our opinion this contention is also without merit. As we read the agreement it is much more than a “contract of indemnity,” or one for reinsurance merely. In its Article II, above set forth, the Pacific Co.,- by its then corporate name, agreed “to take into its own accounts all policies and contracts of accident insurance . . . now outstanding and in force, . . . and to adjust, settle or pay all claims arising thereunder, as well as any and all claims now existing,” etc. In the leading case in Illinois of Weil v. Federal Life Ins. Co., 264 Ill. 425, where it appears that the Federal Co., by written contract containing somewhat similar provisions, had undertaken to reinsure policies issued by the Inter-State Assurance Co., it is said that the contract “was more than one of reinsurance,” and it is further said (p. 433): “By assuming and guaranteeing the policies, the defendant (Federal Co.) undertook to discharge the obligations of the Inter-State to its policyholders, and under such an agreement the insured may sue the reinsurer.” This decision is in accord with the general current of authority in this country, as appears from an extensive annotated note in 35 American Law Reports, at page 1349, where it is said that while “the insured cannot enforce the liability of the reinsurer upon a mere reinsurance contract, for the reason that he is neither a party thereto nor in privity therewith” (citing* among other cases that of Vial v. Norwich Union Fire Ins. Society, 257 Ill. 355), yet it is the law (p. 1351) that “Where, however, the contract of reinsurance is more than a mere contract of indemnity, and is made for the benefit of the policyholders of the reinsured, and assumes the liability of the latter upon its policies, the liability of the reinsurer may be directly enforced by the insured, or his privies. ’ ’

Counsel also contends that plaintiff cannot recover from the Pacific Co. in the present action, because “the contract of reinsurance was not in effect when plaintiff’s cause of action arose.” The evidence discloses that the insured met his death on September 29, 1929, while the policy issued by the Casualty Co. was in force and effect; that plaintiff was appointed administrator of the insured’s estate on October 4, 1929; that the reinsurance agreement was executed on October 29, 1929, but that by its terms it was not to become in force until it was approved by the director of trade and commerce of Illinois; that it was not approved by said director until October 29, 1930, when it became in full force and effect; and that the present suit was commenced by plaintiff subsequent to said approval. We find no merit in counsel’s contention, especially when consideration is given to Article- II of the reinsurance agreement, wherein it is provided that the Pacific Co. (under its then corporate name) “agrees to take into its own accounts all policies and contracts of accident insurance, . . . now outstanding and in force, . . . and to adjust, settle, or pay all claims arising thereunder, as well as any and all claims now existing.” When the reinsurance agreement became in force and effect by said .approval of said director, plaintiff’s present claim was then existing and unsatisfied, and by said agreement the Pacific Co. agreed to pay said claim and save the Casualty Co. harmless therefrom.

Counsel also contends that the judgment against both defendants should be reversed because it does not appear that they are jointly liable. In 47 Corpus Juris, p. 68, sec. 142, it is said: “Persons liable on several and distinct contracts or obligations, although with the same person or set of persons, cannot be joined as defendants in one action at common law, but each must be sued separately.” In Imperial Hotel Co. v. Claflin Co., 175 Ill. 119, it appears that the plaintiff, Claflin Co., sued the defendants, Imperial Hotel Co. and A. C. Mills & Co., as joint debtors; that the evidence disclosed that a cause of action existed in favor of Claflin Co. against the Hotel Co., by virtue of a certain contract; that Mills & Co. by another contract assumed the indebtedness of the Hotel Co. to Claflin Co., and that by such assumption a relation was created in favor of Claflin Co. that would have authorized it to recover against Mills & Co.; that the trial court, on the theory that the Hotel Co. and Mills & Co. were joint debtors, entered judgment against both the Hotel Co. and Mills & Co. for the full amount of Claflin Co. ’s demand. In reversing the judgment and remanding the cause our Supreme Court said (p. 123): “No liability existed in favor of Claflin Co. against both these defendants as joint debtors. In an action ex contractu against several it must appear that their contract was joint, and that fact must be averred by the pleadings and shown by the proof on the trial, otherwise no recovery can be had.” We do not think that these principles of law ought to here be applied under the existing facts. In the present case the theory of plaintiff’s right of recovery, as disclosed from the allegations of his amended declaration, was not that the defendants, Casualty Co. and Pacific Co. were jointly liable to him, but that each defendant was severally liable to him for $1,000, — the Casualty Co., because of its primary liability on the policy, and the Pacific Co., because of the provisions of the reinsurance agreement. To the declaration the Pacific Co. did not demur, but filed a plea of the general issue and the special pleas as above mentioned. Subsequently the cause was tried on a stipulation of facts, except as to the issue regarding the particular manner in which the insured met his death, which was disclosed by the undisputed testimony of plaintiff’s witnesses. By the terms of the policy, which was made a part of the stipulation, and by said testimony, it appeared that the Casualty Co. was liable to plaintiff in said sum, and by the terms of the reinsurance agreement it appeared that the Pacific Co. agreed to save the Casualty Co. harmless from its said primary liability, and to make payment to that end. No defense was made on the trial by the Casualty ■ Co. and it is not on this appeal contesting the judgment against it. We regard the contention of counsel of the Pacific Co. as a mere technical one. It is in effect that, although the Pacific Co. is liable to plaintiff in said sum of $1,000, plaintiff can only recover the sum in a suit brought against it as sole defendant. Under the peculiar facts disclosed, and as there has been a trial upon the merits, we are satisfied that justice does not demand that the judgment against both defendants should be reversed, thereby compelling plaintiff to commence a new suit against the Pacific Co., to collect from it a sum for which it has been shown it is clearly liable.-

The judgment of the circuit court of June 8, 1932, should be affirmed and it is so ordered.

Affirmed.

Scanlan, P. J., concurs.


source: Caselaw Access Project

author: Mr. Justice Gridley

license: Public Domain

text:
    Ruth Smutny and Nona Thome, Appellees, v. Irving Park District et al., Appellants.
    Gen. No. 36,235.

      Opinion filed February 21, 1933.
    Gorman, Schmidt & McGrath, for appellants; Anthony J. Schmidt, of counsel.
    No appearance for appellees.
   Mr. Justice Gridley

delivered the opinion of the court.

Upon complainants’ amended bill praying for an injunction against the defendants and their answer, and upon a full hearing, the court on July 23, 1932; entered a final decree, finding that the allegations of the bill were true, that the equities were with complainants, and that the prayer of the bill should be granted — “the action of defendants herein being unreasonable and inequitable.” And the court ordered that a writ of permanent injunction issue forthwith, “enjoining and restraining the defendants, their servants and agents, from molesting, interfering with, or in any manner prohibiting complainants from playing tennis in ‘shorts’ on any of the grounds or tennis courts under the control or supervision of the Irving Park District, or any of defendants.”

From the decree defendants perfected the present appeal. No appearance or brief has here been filed by complainants.

In the bill complainants alleged that they are citizens of Chicago and reside in what is known as the Irving Park District in Cook county, Illinois; that the district is a duly constituted and legal subdivision of the State of Illinois; that it has five “Commissioners” (naming them as above) and a “Director,” one Eugene Utz, appointed by the commissioners,- — all of whom are now acting in their respective capacities; that among the functions of the district is to operate and maintain parks and playgrounds for the use and benefit of the public of the District; that on July 4, 1932, and for a long time prior thereto, the district was exercising its said functions; that Eugene Utz, as such director and under the commissioners, then was and had been in charge of all the parks and playgrounds of the district, including tennis courts, gymnasiums, etc.; that there was and had been for a long time on the market a type of suits, used by women and “made especially for playing tennis,” known as “shorts”; that such suits, consisting of a blouse or waist and short trousers with bloomers, “facilitate movement, permit greater effort to be made and a better game of tennis to be played by their use”; that they “fulfill all the canons of decency”; that similar suits “are used by girls in the gymnasium and outside track in said park system, and by women at the Olympic games”; that complainants as players of the game of tennis are interested in it as being a healthful form of exercise, etc.; and that “the medical profession has recommended said suits as beneficial to health because they permit of more assimilation of sun-rays.” And complainants further alleged that on July 4, 1932, the commissioners, and especially Eugene TJtz, director, etc., “willfully and without cause refused and prohibited complainants from playing in the parks and playgrounds of the district because they wore ‘shorts’ ”; that “no reason was given to them for said refusal, except an arbitrary one, to permit them to play in the parks and playgrounds”; that “there is no ordinance or rule of the district prohibiting the use of said suits”; that on said day “they appeared in said costume to play in one of the parks of the district and were evicted, and permission to play tennis in said costume was refused”; and that such refusal was “arbitrary and without sanction of law.”

The prayer of the bill was that an injunction issue against the defendants and each of them, enjoining them “from molesting, interfering with, stopping or refusing to permit complainants, and the public, from playing tennis in, or otherwise using, any of the parks or playgrounds of the district in said athletic costume, known as ‘shorts’.”

In defendants’ answer they admitted that the district is a municipal corporation and that it has the five named defendants as commissioners; admitted that the district, on July 4, 1932, and prior thereto, operated and maintained parks and playgrounds; admitted that then and prior thereto there was on the market a type of suits known as “shorts,” but denied that such suits fulfilled all the canons of decency, etc.; denied that any of the defendants wilfully and without cause refused and prohibited complainants from playing tennis in said parks and playgrounds; alleged that they only prohibited them from wearing said suits known as “shorts” while engaged in playing tennis, and that said refusal and prohibition was occasioned because of a rule or regulation, which had duly been adopted by the commissioners, requiring that while playing tennis “all girls and women must wear a blouse and skirt or dress”; denied that on July 4, 1932, or at any other time, complainants were refused permission to play tennis on the grounds of the district or that they were evicted therefrom; alleged that complainants were only refused permission to play that game upon their insistence to do so while clothed in said suits known as ‘ ‘ shorts ’ ’; and denied that such refusal was arbitrary and without sanction of law.

On the hearing both complainants, as well as other witnesses called by them, gave testimony. Euth Smutny testified in substance that on July 4, 1932, she was playing tennis in one of the parks of the district, and that she was wearing one of the suits known as “shorts”; that she was told “to get off the court unless she played with a skirt on,’ ’ and that “it would be perfectly all right if she put her skirt on”; that said suits “are three-piece costumes and one wears a skirt outside, and when you get to the court one takes off the skirt, and the ‘shorts’ are underneath the skirt, and underneath the ‘shorts’ are little bloomers”; that at the time she and her cocomplainant stopped playing and left the courts; that on the following day they called on Mr. Utz, director of the district, and made complaint to him; and that he said that “nobody in ‘shorts’ would be allowed to play on the courts, but that we could play there with our skirts on. ”

Nona Thome, the other complainant, testified in substance that on July 4,1932, she had been playing tennis in Kilbourn Park (one of the parks in the district) in the style of suit called ‘ ‘ shorts ’ ’ and was just coming off the court and was about to put her skirt on, when she was accosted by “a Mr. Harris, who is manager of Kilbourn Park”; that he said to her “you won’t be allowed to play in those”; that upon being asked the reason he replied, “there is a rule forbidding it”; that upon her stating* that she had several times played in other parks clothed in “shorts,” he further stated “You can’t here; there is a ruling against it; you had better go and see Mr. Utz”; that the next day she (the witness) and her cocomplainant, Euth Smutny, had a conversation with Utz; and that upon his being-asked why complainants could not play tennis in such “shorts,” Utz.replied that it was the adopted rule of the district and that he had received orders from the commissioners to enforce the rule and was doing so. The witness further testified that the costume is “a three-piece outfit,” that we wear the skirt “on the street,” and that “when we reach the courts we take the skirt off and hang* it right at the edge of the courts”; and that the costume, with the skirt off, makes it “much more comfortable in running and hitting the ball, because you are freer and haven’t any binding on your legs.”

Another witness, a Chicago physician, called by complainants, after stating that he was familiar with the costume used in playing tennis and commonly called “shorts,” expressed the opinion that some of such costumes were not immodest and were beneficial to the health of the player because of the “influence of sunlight. ’ ’

Complainants ’ two other witnesses, both tennis players, expressed opinions that the costumes known as “shorts” were “appropriate” and “proper” for the game. And one of them stated it to be her opinion that “there is nothing immodest about them, because they are not as short as bathing suits or gymnasium suits. ’ ’

At the opening of defendants’ case their solicitor directed the court’s attention to a statute of the State, — being section 11 of the “Act to provide for the organization of park districts,” etc., in force July 1, 1895 (Cahill’s St. 1931, ch. 105, 11305, p.'2053), in which it is provided in part as follows :

“The commissioners elected in any park district organized under this Act shall constitute the corporate authorities of such district, and a majority thereof shall constitute a .quorum at any meeting thereof. They shall have power to pass all necessary ordinances, rules and regulations for the proper management and conduct of the business of said board and of said corporation, and for carrying into effect the objects for which said park district is formed. They shall have full power to manage and control . . . all parks, boulevards and driveways maintained by such park district, or committed to its care or custody. . . . They may by ordinance regulate and restrain the use by the public or by individuals of any or all such parks, boulevards and driveways, . . . ”

Defendants’ only witness was T. B. McG-rath, the general manager of the district, appointed by the commissioners. He testified that he had held his position for about 15 years, under yearly appointments. He produced a record or minute, book of the commissioners, showing the passage some years before of a general ordinance regarding the government of the district, from which it appeared in substance that at annual meetings of the commissioners the president was empowered to appoint certain named standing-committees and such special committees as necessity might require; that in accordance with the power the president had appointed a special committee of three of the commissioners, known as the “Athletics and Playgrounds Committee”; that the committee had formulated and recommended the passage of certain rules and regulations to be in force in the gymnasium, the swimming pool, the children’s playgrounds, the tennis courts, etc.; that as to the playing of tennis in the courts of the district five rules or regulations were recommended, one of which was (5) “that all girls and women must wear a blouse and skirt or dress”; that at the annual meeting of June 14, 1932, said rules and regulations, as so recommended, were unanimously adopted by the vote of the four commissioners who were present, and that it was at the meeting ordered: “That the General Manager be instructed to see that the rules and regulations, as recommended in said report, governing athletic and playground facilities of the parks of the District be in force immediately, and that said manager is to enforce such rules and regulations under the jurisdiction of the Board.” The witness further testified that he immediately took steps to enforce all of said rules; that as to the playing of tennis by women he notified the athletic director and others that “shorts” on the tennis courts would not be permitted, and for the reason that “the Board had passed such a rule. ’ ’ The witness further testified that before said rule was passed, numerous residents in the vicinity and certain women’s clubs had protested to the board against the playing of tennis on the courts of the district by women when clad' only in “shorts.”

After reviewing the present record we are of the opinion that there is no equity in complainants’ bill and that the superior court erred in granting the permanent injunction as first above mentioned. It appears from the findings of the court, as contained in the decree, that the court was of the opinion that the rule in question, as well as the acts of defendants in the preventing of complainants playing on the tennis courts while clad in “shorts,” were “unreasonable and inequitable.” It is well settled by decisions in this State that the courts are very reluctant to declare regulations, as contained in ordinances of municipal corporations, invalid because of their claimed unreasonableness. In Troy v. Village of Forest Park, 318 Ill. 340, 343, it is said: “In determining whether the ordinance is reasonable or not the court must take into consideration the object to be accomplished, the means for its accomplishment and all existing conditions and circumstances. The presumption is always in favor of the validity of an ordinance, and to justify the court in interfering upon the g'round that the ordinance is unreasonable requires a clear and strong- case, and if there is room for a reasonable difference of opinion the action of the council is final.” (See, also, Klever Shampay Karpet Kleaners, Inc. v. Chicago, 323 Ill. 368, 375.) The question herein involved is not strictly whether an ordinance of a municipality is unreasonable, but rather whether a certain rule or regulation passed by the governing body of the municipal corporation is unreasonable or not, particularly when such body is expressly empowered by statute to pass all necessary rules and regulations for carrying into effect the objects for which the municipal corporation was created. We think that the same principles of law, as above stated, should apply to rules and regulations as well as to ordinances. In 44 Corpus Juris, p. 1101, sec. 4022 (under the heading “Public Parks, etc.”) -it is said: “The municipal authorities may make all necessary and proper regulations with regard to the government and management of the property, and how it shall be used by the public, . . . and to secure to the public its common enjoyment; and so long as they act within the legitimate scope of their authority their discretion is not subject to outside interference or judicial revision or reversal, but to be valid the regulations adopted must be reasonable; . . .” Under the pleadings and all the facts and circumstances as disclosed in the present record, we are unable to say that the rule or regulation in question was so unreasonable as warranted the entry of the injunctional decree appealed from.

For the reasons indicated the decree is reversed and the cause remanded with directions to dismiss complainants’ bill for want of equity. ,

Reversed, and remanded with directions.

Soahlah, P. J., concurs.


author: Mr. Justice Gridley Soanlan, P. J.,

text:
    Carl Johnson, Appellee, v. William J. Kushler, Trading as Kushler Chevrolet Sales, Appellant.
    Gen. No. 36,260.
    Opinion filed February 21, 1933.

      Andrew J. Farrell, for appellant; Albion M. Griffin, of counsel.
    Donald J. Seeley, for appellee; Melville, Block, Samuels & Seeley, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

In a 4th class action in tort to recover damages for personal injuries received by plaintiff in an automobile collision early in the morning of January 24, 1932, as well as for property damage to his automobile in which he then was riding, there w,as a trial without a jury on May 18, 1932, resulting in the court finding defendant guilty “in manner and form as charged in plaintiff’s statement of claim,” assessing the damages at $500, and entering judgment against defendant in that sum. The present appeal followed.

In his statement of claim plaintiff alleged in substance that on January 24, 1932, in the nighttime, defendant, by his driver or employee, had been operating his autotruck, with trailer attached, easterly on a public highway known as Higgins road in Cook county, Illinois; that defendant’s driver had stopped the truck and trailer, and they were standing in the highway facing east; that plaintiff was riding in his automobile, “driven by his agent,” traveling easterly in the highway and was in the exercise of due care for his own safety; that it was defendant’s duty not to permit the truck and trailer to remain in a stationary or immobile position in the highway, during the period of one hour after sunset until sunrise of any day, “without exhibiting therefrom lighted lamps, as required by a statute of Illinois, showing a tail-light and three red lights in the reverse direction, so as to warn users of the highway, approaching or passing said truck and trailer, of their position on the highway”; that defendant by his driver, not regarding said duty, then and there “negligently and carelessly,” and “wantonly, willfully and maliciously, ’ ’ caused the truck and trailer to stand and remain on the highway without exhibiting said lights from the rear, and without giving other warnings or signals; that by reason of defendant’s negligence and wanton conduct, plaintiff’s automobile “ran into, collided and struck with great force and violence upon and against said trailer”; that as the result of the collision plaintiff received serious personal injuries to his damage in the sum of $500, and in addition his automobile was damaged to the extent of $500; and that plaintiff’s total damages amount to' the sum of $1,000, etc.

The statute referred to in plaintiff’s statement of claim is evidently section 16, as amended, of the present Motor Vehicle Law of this State (Cahill’s St. 1931, ch. 95a, ¶ 17, page 1924), which reads in part as follows (italics ours) :

“(a) When upon any public highway in this State, during the period from one hour after sunset to sunrise, every motor bicycle shall carry one lighted lamp and every motor vehicle two lighted lamps showing-white lights, . . . visible at least two hundred (200) feet in the direction toward which each motor bicycle or motor vehicle is proceeding, and each motor vehicle, trailer or semi-trailer shall also exhibit at least one lighted lamp which shall be so situated as to throw a red light visible in the reverse direction. . . .

“(c) After October 1, 1931, every motor vehicle of the second division as described in section 2 of this Act (i. e., one ‘designed and used for pulling- or carrying freight’), the length of which, together with any trailer or trailers in tow thereof, is more than 25 feet . . . , while being operated on the public highways of this State outside the corporate limits of cities, towns and villages, during the period one hour after sunset to sunrise, shall display, ... on the rear thereof in a horizontal line approximately six inches apart, three red lights plainly visible at a distance of at least 200 feet; . . . also on the rear of the body of said vehicle, not more than 12 inches from the lower left hand corner, one red reflector. . . .

“(f) During the period from one hour after sunset to sunrise every . . . motor vehicle, which is standing on any road, highway or street, shall display a light on the front and at the rear of the same. However, etc.” (Here follow provisions for parking without lights in any city, town or village, under rules prescribed by ordinance.)

In defendant’s .affidavit of merits, sworn to by an agent, it is denied that at the time and place plaintiff was in the exercise of due care for his own safety, or that defendant by his driver was guilty of the negligence or wanton conduct as charged, or that the truck and trailer were standing in the highway or were without the rear lights as required by statute, or that the collision was proximately caused by any negligence of defendant’s driver.

On the trial plaintiff testified in his own behalf as to the happening of the accident, and he called five witnesses, passengers in his car, who gave their versions of the collision, which occurred about 2:15 o’clock, a. m., on a clear night in an open country district. Five men and three young women were in the car, which was of the sedan type for five passengers. One of the young women (not called as a witness) was the driver. She was seated on the left side of the front seat, and next to her sat plaintiff and next to him George Siegman. On the back seat were three men and in the laps of two were seated the two other young women. Plaintiff also called as witnesses a man named Crane, and a motorcycle policeman named Barnes, both of whom arrived on the scene of the accident after it had happened. The occupants of the car were on their way to Chicago. They had been to a party, given by friends on a farm near Dundee, Illinois.

Plaintiff testified that he was the owner of the car; that the young woman driver “was driving the car for me”; that she had never driven it before; that he was sitting on the front seat between her and Siegman, and was looking forward; that she was driving the car at a speed “around from 35 to 38 miles per hour”; that he “had the front lights on, but the dimmers instead of the brights,” and that they “would throw light ahead about 35 feet”; that “it is possible that I could have seen farther ahead if I had had the bright lights on”; that “travelling at a speed of 35 or 40 miles an hour, it is possible to stop my car within 10 or 12 feet”; that just before the crash he was looking ahead; that “in a fraction of a second I saw a car with no lights on it, and, as there was no chance to turn, we crashed head on into Kushler’s trailer”; that “we were about three or four feet from the trailer the first time I saw it”; that he “didn’t see any red lights or any red reflectors on the trailer ’ ’; that after' he was taken out of the car and before taken to a hospital in Elgin for treatment he “looked at the trailer, saw that his car was about 8 or 10 feet behind it,” that “he didn’t notice” whether or not there were any lights on the rear of the trailer.

George Siegman, also seated on the front seat, testified that just before the collision we were “travelling about 30 to 35 miles an hour ’ ’; that the headlights of our car “would throw a light forward, maybe, 35 or 40 feet”; thát “I didn’t see any red lights, or red reflectors, or trailer lights”; that there “was a crash” and he “was knocked unconscious”; that he saw the trailer “just before the crash” and “it looked to me as if it was standing still on the highway.”

The testimony of the three men on the back seat was to the effect that just before the collision each was “looking forward” and “didn’t see” any red lights or red. reflectors; and that the headlights on the car were throwing light forward a distance of “about 35 feet.”

Plaintiff’s witness, Crane, testified in substance that he was driving that night in his automobile, with his sister-in-law, westerly on the highway and .“came across an accident”; that “there was one girl laying-out in the highway and one of the young fellows of the party and myself picked her up and put her in our car and the rest of them got in themselves ’ ’; that he took all of them to a hospital in Elgin, Illinois; that before he left the scene of the accident he “didn’t notice whether there was a light on the rear end of the trailer or not ’ ’; that the “lights on the truck were lit ”; that as he approached the scene of the accident he saw the “smash-up” by means of the headlights on his car when he ‘ Svas two blocks away’ ’; that when he arrived “all of the lights on the sedan car were out.”

Plaintiff’s witness Barnes testified in substance that early in the morning in question he received notice and went to the scene of the accident; that he traveled easterly on his motorcycle with his headlight burning; that he first noticed the sedan car and the trailer, “when I was about a block from the wreck, because I had a master spotlight”; that no persons were then at the scene of the accident; that he noticed “a skid mark of about 10 feet on the highway caused by the iron that connects the trailer to the truck where it had been shoved ahead”; that he examined the trailer and “found a 1931 license plate”; that there were no burning lights or any reflectors on the trailer; but that he saw there were some lights which had been broken.

On defendant’s behalf Alfred E. Foster, the driver of the truck and trailer, and several other witnesses gave testimony. Foster testified in substance that he left Janesville, Wisconsin, about 11 p. m., bound for Chicago; that on the truck he carried as freight an automobile and on the trailer two other' new automobiles ; that the tail lights on the two automobiles on the trailer were lit; that on the rear of the trailer there was one burning red tail light and two reflectors; that one of the reflectors was red, called the “King Bee” reflector; that he examined all lights upon leaving Janesville and found them in good working order; that when he reached Crystal Lake, about 17 miles away from the scene of the accident, he stopped and before starting on again “checked up” the lights; that all were lit and in good working order, and nothing happened to exinguish any of them before the accident; that when it happened he was not standing still but was traveling on the right-hand side of the road easterly about 15 or 20 miles an hour and up a slight grade; that suddenly, without hearing- any horn or other warning, he felt a severe “impact” from the rear and heard much “screaming and hollering”; that he stopped, went back and found that the sedan car had crashed into the rear of the trailer; that one of the doors of the car was jammed, so that passengers could not get out; that he procured a crank handle and opened the door and otherwise rendered assistance; that after all the passengers had been taken away in another automobile, he remained there for about 20 minutes; that he noticed that, because of the impact, the wire connecting the trailer with the battery on the truck had been severed, that all lights on the trailer were extinguished, and that the tail light and reflectors on the rear of the trailer were “busted” and the remains of them scattered on the road; that there “were marks on the pavement about 8 or 10 feet long where the tongue of the trailer had dropped and scraped.”; that he left the scene of the accident with the truck for Chicago, leaving- the trailer standing where it was and returned in his own automobile as soon as possible.

Clark Stevers, defendant’s witness and employee, .testified that he went from Chicago, in company with Foster, to the scene of the accident, arriving* there before daylight; that the trailer was standing on the right-hand side of the road; that its rear lights were broken, but that the rear red lig*ht of the rear automobile which was on the trailer was still burning; that he put on both the headlights and rear light of the front automobile which was on the trailer; that the rear of the trailer was badly “banged up”; that he saw no police officer there when he arrived; and that he returned to the scene of the accident during the afternoon.

J. B. Watson, defendant’s witness and employed by him as a mechanic, testified that on the afternoon of January 23, 1932, he “checked the lights and electric system on the trailer and truck” which were after-wards in the accident; that the lights “were all in good condition and all working”; that “the battery that lighted these lights was in the truck”; that there were two lights on the rear of the trailer, — the “stop and the tail,” and also two reflectors; and that they “all were clear” when he examined them.

Joseph Derrig, superintendent of the company that manufactures the “King Bee” reflectors, gave testimony as to certain tests which he had made of them, and a red reflector just, like the one that was on the trailer at the time of the accident was offered and admitted in evidence, and is attached to the present record. Derrig*’s testimony, as to the results of said tests, is to the effect that, if such a reflector is attached in the usual way to the rear of a moving or standing automobile, and about two feet above the surface of a concrete road, and if another automobile with the usual headlights burning* is approaching from the rear, such reflector will on a clear night reflect the rays of light so that they will “loom up 200 feet ahead.” And the witness expressed the opinion, based upon said tests, that “it would make no difference whether or not there was. any light on the back (of said moving or standing automobile), because the headlights (on said approaching automobile) would reflect on the reflector.” And the witness further testified that the particular type of reflector was “approved by the Secretary of State of Illinois on August 28, 1931.”

After reviewing the present record, and considering all the facts and circumstances in evidence and the briefs of respective counsel, we have reached the conclusion that the judgment appealed from cannot stand. We do not think that defendant is under any liability to plaintiff because, in our opinion, it appears from a clear preponderance of the evidence that the damages suffered by plaintiff were proximately caused by his own negligence and that of the young woman driving his car at the time as his agent or servant. (See Hanusik v. Hanlon, 258 Ill. App. 114, 119; Johnson v. Newman, 168 Ark. 836, 839, 840.) Bach was guilty of contributory negligence in not keeping a sufficient lookout ahead that would have enabled them, had they been looking, to have discovered defendant’s trailer and truck as they were approaching them, and to have checked or stopped the automobile in which they were riding in time to have avoided the collision. (See Johandes v. Chicago, M. & St. P. R. Co., 260 Ill. App. 328, 331, 332; Phillips v. Davis, 3 F. [2d] 798, 799; James v. Motor Transit Management Co., 260 Ill. App. 246, 257.) Furthermore, it clearly appears under all the facts and circumstances in evidence in this case that plaintiff was negligent in allowing his car to be driven on a dark, though clear, night on a highway in a country district without having his bright headlights burning. (Johnson v. Gustafson, 233 Ill. App. 216, 223; Sugru v. Highland Park Yellow Cab Co., 251 Ill. App. 99, 102, 103.) In the first of the last cited cases it was held that the provisions of section 16, par. (a), of the Motor Vehicle Law, above quoted, “were intended for the guidance and benefit of the person driving the automobile as well as for the protection of others who may use the highway” (233 Ill. App. 221).

The judgment appealed from is reversed, with finding of facts, and cause is not remanded.

Reversed with finding of facts.

Soanlan, P. J.,

concurs.

Finding of facts: We find as facts in this case that both plaintiff and his agent, who was driving his automobile at the time and place, were guilty of negligence, and that the collision in question, as well as the resulting damages to plaintiff, were proximately caused by said negligence.


author: Mr. Presiding Justice McSurely

text:
    Henning R. Arling, Appellee, v. Andrew R. Zeitz, Appellant.
    Gen. No. 36,211.

      Opinion filed March 6, 1933.
    Chaveriat & Chaveriat, for appellant; J. M. Cameloh, of counsel.
    F. W. Jaros, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought an action in tort to recover damages caused by the freezing and bursting of water pipes in the premises he occupied as a tenant of defendant, alleging that this was caused by the negligence of the defendant, resulting in damages to plaintiff’s goods. Upon trial he had a verdict for $1,197.30, and defendant appeals from the judgment thereon.

The principal point argued here is the alleged error of the trial court in refusing to admit in evidence the written lease between the parties, which contained a clause exempting the' landlord from liability, under certain circumstances; this is the crux of the controversy in this court. This clause of the lease provides that the

“Lessor shall not be liable to lessee for any damage or injury to him or his property occasioned by the failure of Lessor to keep said premises in repair and shall not be liable for any injury done or occasioned ... by or from any defect of plumbing, . . . water pipes ... or from the bursting, leaking or running of any . . . water closet, or waste pipe, drain, or any other pipe or tank in, upon or about said building or premises . . . nor from any damage occasioned by water, snow or ice, being upon or coming through the roof ... or any other place upon or near said premises or otherwise . . . nor from any damage arising from any act, omission or negligence of co-tenants or other persons, occupants of the same building or of lessor’s agents or lessor himself, all claim for any such damage or injury being hereby expressly waived by lessee. ’ ’

Plaintiff says that this being an action in tort and not in contract, this provision of the lease was immaterial, as it would not prevail as a defense against defendant’s negligence. Defendant admits that it would not avail as a defense against any affirmative act of negligence on the part of the landlord, but says that it did exonerate him from the result of mere passive negligence and that he was entitled to have the jury instructed that there could be no recovery by the plaintiff if the jury should find that the defendant landlord was not guilty of any affirmative act of negligence.

Plaintiff had leased from defendant, under a written instrument, the first floor of a two-story building, using this floor as a workshop and for storage of material and supplies used in his business of manufacturing picture frames; the second floor was unoccupied; three pipes supplied water to both floors; one pipe led from the basement to a sink on the first floor and continued on up through the ceiling to a sink on the second floor, thus supplying both the first and second floor sinks; there was a shut-off rod at the first floor sink but no shut-off on the second floor; when the water was shut off at the first floor sink no water would flow into the second floor sink; this was the only shut-off in this pipe except one in the basement operated with plumber’s tools.

The other two water pipes in the building served the toilet rooms on the first and second floors respectively ; these pipes were independent of each other and there was a shut-off rod on each floor; there was testimony that about a month before the occurrence in question the water was shut off from the second floor toilet room and the water drained from this pipe. On the night of January 8,1930, when the weather was extremely cold, the water pipe supplying the sinks froze and burst between the floor of the second floor apartment and the ceiling of plaintiff’s premises and water escaped from the pipe, flowing down and damaging plaintiff’s goods ; plaintiff testified that it was the bowl in the toilet room which burst, hut the greater weight of the evidence showed that it was the water pipe supplying the sinks which burst. A plumber was called who shut off the water from the leaking pipe by using the shut-off under the sink in plaintiff’s premises. It thus appears that the means of shutting off the sink pipe was under the control and in the possession of the plaintiff. It should be noted that even if there had been another shut-off at the second floor sink and this had been closed, this would hardly have prevented .the freezing of the pipe under the floor of the second floor premises.

We do not agree with counsel for defendant that the clause of the lease above quoted would bar any recovery except for an affirmative act of negligence on the part of the landlord. There may be passive negligence or acts of omission on the part of the landlord with reference to defects of which he had notice or should have known, where the lease would not exonerate him from liability. We are of the opinion the lease should have been admitted in evidence as furnishing the basis for an instruction to the jury that the clause in question would be a bar to any recovery unless the jury should find that the freezing of the water pipe was caused by the negligence of the defendant.

However, upon the record in this case, the greater weight of the evidence fails to prove negligence of the defendant but rather tends to prove that the water in the pipes froze by reason of the negligence of plaintiff in failing to shut off the sink water pipe when extreme cold weather threatened.

We do not find in the many cases cited by both counsel any case where the facts are precisely the same as those presented here. The case which plaintiff says is directly in point is Moroder v. Fox, 155 Wis. 503. That case involved a three-story building, the second floor vacant; there was only one shut-off to the pipe which supplied all of the three flats and which froze, and this was in the basement, to which landlord and tenant had access; if the water were turned off at this point the supply would have been shut off from the third floor tenant. It was held that the landlord, knowing that the second floor was vacant and unheated and that it was necessary to keep the water pipe running through the same to supply the tenants on the third floor, should have covered and protected from frost the pipes leading through the second floor.

Evans v. Kirson, 88 W. Va. 343, cited by plaintiff, involved the question whether the tenant of the first floor and basement knew of the presence of a shut-off valve in the basement of the premises. Neither, of the two upper stories was occupied by tenants but they were used by the landlord for storage purposes. The court held that the evidence showed" that plaintiff did not know of the presence of the shut-off valve in the basement, but that if he had known that the valve in the basement governed the water supply in the building and failed to turn it off in the cold weather, he might have been chargeable with contributory negligence. In Priest v. Nichols, 116 Mass. 401, the damages were caused by the breaking of a water pipe out of repair through negligence of the landlord. There is no claim in the instant case that the pipes were out of repair. In fact, new pipes had been installed not long before the occurrence. Other cases cited by plaintiff can readily be distinguished from the one at bar.

There are many cases holding under somewhat similar circumstances that the landlord is not liable. In Taylor v. Bailey, 74 Ill. 178, the tenant had access to a crank by which to turn off the water to prevent freezing. It was held that because of his neglect to turn off the water and thereby prevent a freezing* and bursting pipe, he could not recover for ensuing damages. In Hopkins v. Sobra, 152 Ill. App. 273, a large number of cases are cited supporting the provision of a lease exempting the lessor from liability. See also, Tuttle Co. v. Phipps, 219 Mass. 474. In Chapman & Smith Co. v. Crown Novelty Co., 175 Ill. App. 397, it was held that the clause in the lease exempting* the lessor from liability from leaking water pipes was effective where the testimony did not tend to show any negligence on his part. In Hunter-Smith Co. v. Gibson, 119 Va. 582, the facts are very similar to those before us. The court held the tenant could not recover, saying:

“It is obvious that the plaintiff had been provided with ample means to protect its goods from the accident of freezing and bursting pipes by cutting the water off from the entire building; and yet, after dark on a freezing night, without using the means of protection right at hand, or requesting anyone else to do so, the store was locked and left by the occupants for the night without any concern whatever.” This language fits the instant case.

In 36 C. J. 235, par. 935, is a concise statement to the effect that agreements exempting the lessor from liability for damages are not void as against public policy, but that the landlord will be held responsible when the injury results from his own affirmative negligence, or where he has actual knowledge of defects and has failed to repair. As there is an absence of evidence in the instant case showing* either of these elements of negligence, the defendant was entitled upon the trial to present the clause of the lease as a defense. It was therefore error to exclude it.

For the reasons indicated the judgment is reversed and the cause is remanded.

Reversed and remanded.

Matohett and O’Connor, JJ., concur.


text:
    Betty Lou Schluraff, a Minor, by Verne Schluraff, her Father and Next Friend, Appellee, v. Shore Line Motor Coach Company and Yellow Cab Company, Appellants.
    Gen. No. 36,234.

      Opinion filed March 6, 1933.
    Cooke, Sullivan & Ricks, for appellant Shore Line Motor Coach Co.; George A. Cooke and Oliver R. Barrett, of counsel.
    John E. Kehoe and Samuels, Costello & Green-berg, for appellant Yellow Cab Co.
    H. H. Patterson, for appellee; Edmund C. Maurer, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

On the afternoon of October 12, 1927, plaintiff was injured through a collision between the cab in which she was a passenger, belonging to the Yellow Cab Company, a corporation, and a coach or bus belonging to the Shore Line Motor Coach Company, a corporation. She brought suit and upon trial had a verdict against both companies for $10,000, on which judgment was entered. Both defendants appeal.

The accident happened at the intersection of Michigan boulevard, which runs north and south in Chicago, and Jackson boulevard, which runs east and west. The cab in which plaintiff was riding was going east on Jackson boulevard and was crossing Michigan when it was struck by a southbound bus belonging to the Shore Line Motor Coach Company. Plaintiff was injured in the collision. The bus was one of three chartered with drivers at $35 a day by the American Gas Association, which was holding meetings in the Stevens hotel, for the convenience of the visiting delegates and their wives in driving about the city. At the time of the accident the three buses were going south on Michigan, headed by a police officer of the south park commissioners on a motorcycle. At the intersection of Jackson and Michigan is a traffic signal light; when the red light showed it was the signal for traffic to stop, and when the green light showed traffic could proceed. The drivers of the buses had been ordered by the police officers to ignore the red lights and to follow the motorcycle officer. The day before the accident the driver of the bus involved had stopped his bus when the red light was against him, but a police officer had specifically instructed him to proceed, keeping his proper distance from the bus ahead of him, — that the police officers would look after the red lights. There is a safety island in the center of Michigan boulevard at Jackson; the westerly half of Michigan is used for southbound traffic; there were four lanes of traffic on the southbound driveway used by vehicles going south; the fourth lane was next to and directly to the right of the safety island; this lane was generally used by vehicles intending to turn around the island proceeding east; this lane was also used by the south park police for convoys under their direction.

The convoy in question consisted of a motorcycle officer with a siren; following him were the three buses about 50 feet apart, the entire convoy moving south on Michigan at a speed which various witnesses estimated at from 12 to 35 miles an hour, most witnesses estimating it at 20 to 25 miles an hour; the siren was sounded continuously, making a loud noise that could be heard for a block or a block and a half away; as the convoy approached Jackson the red light was against it but the police officer on the motorcycle proceeded south across Jackson, followed by the buses; all the other southbound traffic on Michigan was at a standstill. At this time the eastbound traffic on Jackson consisted of the Yellow cab in which plaintiff was riding and a number of other automobiles; the drivers of these vehicles testified that they heard the siren and knew it was a warning to keep the street clear; when the green light was flashed toward Jackson boulevard all of the traffic on that street remained still, regarding the warning of the southbound siren, except the Yellow cab which started east just as the second bus in the convoy was entering Jackson. The evidence shows that as soon as the cab started the driver of the bus put on his brakes and came to a stop within about a bus length; the Yellow cab continued east in about the center of Jackson and was struck by the southbound bus on the side just about the time the bus had come to a standstill; the cab was not tipped over and the coach and cab were still in contact in the center of the intersection after the accident.

Defendant Shore Line Motor Coach Company argues that the court should have instructed the jury to find it not guilty, for the reason that the driver of the bus was not at the time the servant of the Shore Line Company but of the American Gas Association and the police officers. The district passenger agent of the Shore Line Company had procured the contract from the American Gas Association to furnish three motor coaches or buses, with drivers, for a service of three days. The drivers of the buses were told by the passenger agent to report to the Stevens hotel and wait there for orders from the Gas Association; the coach dispatcher of the Shore Line Company gave the drivers directions to follow the motorcycle escort. This service was rendered to the Gas Association on October 11; at the end of the day’s work the buses returned to the garage of the Shore Line Company; the next morning the drivers with their buses again reported at the Stevens hotel and conveyed a party made up of the wives of the delegates of the Gas Association to the Drake hotel and waited there in order to take the women back to the Stevens hotel; in the afternoon they started on their return trip to the Stevens hotel, a motorcycle officer leading and another police officer in the first bus, directly behind the driver. The officer who led the convoy testified that he received no instructions as to speed; that he determined the rate of speed and the buses were directed to follow him; that he went through all the red lights. The officer who was riding in the first bus testified that he had charge of the speed and was in control of the traffic and that there was a siren assigned to the convoy and that the bus drivers obeyed his orders and followed through the red lights; that his instructions to all the drivers were “to keep close together and bunch up and follow their leader, regardless.” All the bus drivers were paid by the Shore Line Company.

These facts are very similar to those involved in Densby v. Bartlett, 316 Ill. 616. In that case Bartlett had a contract with Saracino who was in the business of letting automobiles with drivers, for hire, whereby he was to furnish Bartlett transportation of Bartlett’s customers; one of these, while riding in one of Saracino’s automobiles, was injured in an accident; a verdict was rendered against both Bartlett and Saracino. The Supreme Court held that Bartlett was not liable, on the ground that the driver of the car was not the servant of Bartlett but was the servant of Saracino. After citing and discussing many cases the court rested its conclusion upon the fact that Bartlett did not have the power to discharge the drivers; that this power was in Saracino who hired them. The court held, in substance, that the right of Bartlett to direct the driver when and where to go, whom to haul and the route to travel, did not place the driver under his control as to the manner of driving the car; that in that regard the driver is doing the work of the general employer and was not subject to the control of Bartlett.

In Warput v. Reading Coal Co., 250 Ill. App. 450, the defendant loaned two trucks to the sisters of a church for carrying school children to a picnic; on the way back one of the children riding on the back of one of the trucks was injured through the negligence of its driver, who was defendant’s employee. The court held that the right of the sisters to tell the driver when and where to go and whom to haul was implied, and that this was the only right they exercised; that the employer of the driver had complete control over him, including the right to discharge him. In Meyer v. Industrial Commission, 347 Ill. 172, it was said: “This court has held that an unfailing test in determining the relation of master and servant is whether the control of the servant includes the power to discharge him, and unless that power exists the relation of master and servant does not exist, ’ ’ citing cases. Shannon v. Nightingale, 321 Ill. 168, involved the question of whether the negligent driver of a truck was at the time the servant of the defendants. Upon trial a motion was made for a directed verdict in their favor, which was denied, and this was assigned as error. It was held that this was proper, as .the question should be passed upon by the jury.

Applying these cases to the facts before us, it is quite clear that the Gas Association had no control over the driver of the bus, except to direct him where and when to go and whom to haul; that the Shore Line Company alone had the right to discharge him, and therefore he was not at any time the servant or employee of the Gas Association. Neither can it be said that the driver ceased to be the servant of the Shore Line Company because he was acting under the immediate direction and control, with reference to speed and traffic regulations, of the south park police officers. The drivers had been instructed by the Shore Line’s coach dispatcher “to follow the motorcycle escort,” so that the drivers were following instructions from their superior officer of the Shore Line Company. No case is presented where it has been held that because an automobile driver at the time of an accident is obeying the directions of a police officer, the relation of master and servant between such driver and his employer is thereby suspended or destroyed. While the control of the police officer may bear some relation to the conduct of the driver, whether negligent or otherwise, yet it does not affect the relationship of the driver with his general employer. If the driver is negligent generally, the employer is liable.

While we are of the opinion that the court properly refused to direct a verdict in favor of the Shore Line Company, yet we are also of the opinion that the evidence "fails to show that the accident was caused by any negligence on the part of the driver of the Shore Line Company’s bus. The driver of the bus in question was following definite instructions both of his employer, the Shore Line Company, and of the police officers; the day before, the driver had stopped on the red light signal but was in effect reprimanded by the police officer for so doing and was instructed to follow along with the other buses behind the motorcycle policeman regardless of the red lights; he was simply following instructions. This does not mean that he could blindly and wilfully run into an intercepting vehicle, but the evidence exonerates the bus driver from such conduct. The evidence shows that the lanes of traffic standing at his right on Michigan boulevard would prevent the driver of the bus from seeing the traffic in Jackson boulevard until he had gone past them; at this time the Yellow cab had started out from the standing traffic in Jackson; as soon as it- started out the driver of the bus put on his brakes, coming quickly to a stop; a passenger directly behind the driver was thrown by the sudden stopping of the bus. We fail to see wherein the driver failed in any respect to exercise due care.

We are of the opinion, however, that the evidence justified the verdict against the Yellow Cab Company. The driver of the cab admitted he heard the siren and saw the motorcycle officer going south with a bus following him after the green light was toward Jackson boulevard traffic; he says he failed to see the second bus until he was in the middle of Michigan; that he went into Michigan about 30 feet before he looked to the north; that he was watching out for cars on the south side of Jackson boulevard which make a left-hand turn from Michigan into Jackson. He testified, “I was watching out for them and also going, looking-straight ahead.” Witnesses who were in eastbound automobiles on Jackson testified that they heard the siren, knew what it meant, and waited for the southbound convoy to pass. The Yellow cab driver, although he heard the siren, negligently started across Michigan before ascertaining whether the convoy had passed. There was also evidence that the bus was larger than the ordinary vehicles, standing much higher, so that if the driver of the Yellow cab had merely glanced to the north he could have seen the bus following the motorcycle convoy.

As tending to support its defense that its drivers were under the control of the police officers, the Shore Line Company requested the court to give an instruction to the jury to the effect that there was in full force at the time an ordinance of the south park commissioners which provided that no person should refuse to obey the directions of any police officer in reference to the management of vehicles in the parks or boulevards, under penalty of a fine. Instruction No. 4 also set out the ordinance and instructed the jury that if the driver obeyed the direction of the police officer they should find the Shore Line Company not guilty of negligence in passing across Jackson boulevard at a time when the red lights were against him. We think the ordinance was admissible. The Shore Line Company was entitled to have the jury know that there was a definite ordinance upon the subject of the regulation of traffic by the south park police officers.

The Shore Line Company’s instruction No. 7 was refused. It is open to the criticism that nowhere in the instruction is there any requirement that the driver of the bus must exercise ordinary care; it relieves the driver of all care and caution.

■ The Shore Line’s instruction No. 10 was refused. It does not undertake to direct a verdict but only tells the jury that it is the duty of anyone using the boulevards to obey the directions of the police officers. This instruction might well have been given; however, instructions Nos. 42 and 44 tendered by the Shore Line Company were given, which in substance covered the material elements in refused instruction No. 10. The Yellow Cab Company argues that the giving of these two instructions prejudiced its defense and therefore constituted reversible error. The criticisms against these instructions seem captious. They only repeated in general terms that the drivers of vehicles on boulevards must obey directions of the south park police officers. We cannot hold that the court committed reversible error in giving these instructions. Given instruction No. 45 at the request of the Shore Line Company is open to the criticism that in reciting the elements which should move the jury to find the Shore Line Company not guilty, the element of ordinary care on the part of the driver of the bus is omitted. Instruction No. 46 was properly given as it contained all the necessary elements which would justify the verdict of not guilty as to the Shore Line Company.

There was no need of so many instructions attempting to say the same thing with different words. Altogether, 48 instructions were tendered, some of them lengthy and most of them given. Plaintiff requested only seven, and these are well known stock instructions. The giving of such a large number of instructions was wholly unnecessary and could only serve to confuse the jury. The character and number of these instructions also serves to lessen our critical faculty toward them. Asmossen v. Swift & Co., 243 Ill. 93; Daubach v. Drake Hotel Co., 243 Ill. App. 298; Adams v. Smith, 58 Ill. 417.

Criticism is made of the remarks and argument of counsel for plaintiff, which in many respects is justified. However, the instances complained of will hardly occur upon the second trial.

It is said the court improperly gave an oral instruction to the jury. During the argument by counsel for the Yellow Cab Company an objection was made by plaintiff’s counsel, which was sustained; the court thereupon remarked that he might ask the jury to disregard any statements made by counsel which were not supported by the evidence. This was not intended as an instruction to the jury and would not have been so understood. The criticism against its form may have merit. People v. Ambach, 247 Ill. 451.

The Shore Line Company requested the trial court to submit an interrogatory to be answered by the jury, as follows:

“If you find the defendant, Shore Line Motor Coach Company, guilty, then you will be required to answer the following interrogatory:

“Interrogatory — Was the driver of the bus of the Shore Line Motor Coach Company, at the time of the accident, hired out by the Shore Line Motor Coach Company to do the business of the American Gas Association?”

This was refused, and we think properly. It was awkwardly constructed. The words “hired out ... to do the business of the American Gas Association” are ambiguous and not applicable. Furthermore, the question did not relate to an ultimate fact, but merely an evidentiary matter. Such interrogatories ate never proper. Wicks v. Cuneo-Henneberry Co., 319 Ill. 344; Smith v. Sanitary Dist. of Chicago, 260 Ill. 453; Nosko v. O’Donnell, 260 Ill. App. 544.

As there must be another trial, we do not discuss the amount of the damages awarded.

We conclude that the verdict finding the defendant Shore Line Motor Coach Company, a corporation, guilty of the negligence charged, is manifestly against the weight of the evidence, and the judgment as to it demands a reversal. We see no sufficient reason to disagree with the finding that the Yellow Cab Company, a corporation, was guilty of the negligence charged. Following the well known rule that a judgment against several defendants is a unit and cannot be reversed as to one or more and affirmed as to the others, we must reverse the judgment in this case and remand for a new trial. Livak v. Chicago & Erie R. Co., 299 Ill. 218.

Reversed and remanded.

Matchett and O’Connor, JJ., concur.


text:
    Francis Price, Appellant, v. Illinois Bell Telephone Company et al., Appellees.
    Gen. No. 36,290.

      Opinion filed March 6, 1933.
    Walter A. Brendecke, for appellant.
    Cutting, Moore & Sidley, for appellee Illinois Bell Telephone Co.; Kenneth F. Burgess, James F. Oates, * Jr., and Ralph F. Himmelhoch, of counsel.
    Kirkland, Fleming, Green & Martin, for appellees Four Wheel Drive Auto Co. and Robert W. Pachaly; David Jacker and William H. Symmes, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff, while riding in an automobile as a guest, was injured through a collision with a truck; he brought suit and upon trial the court directed a verdict against him on the ground that the evidence showed that the automobile did not have two lamps in front casting sufficient light to comply with section 16 of the Motor Vehicle Act, Cahill’s St. ch. 95a, ¶ 17, and hence he was guilty of contributory negligence. Plaintiff appeals from the adverse judgment.

It is too well established to require citation that on a motion to direct a verdict all of the evidence, together with reasonable inferences therefrom tending to support plaintiff’s claim, must be assumed as proven.

The accident happened on 22nd street, which runs east and west in Chicago, between 4:30 and 5 o’clock on a dark morning, October 8, 1929; the automobile in which plaintiff was riding belonged to and was driven by Joseph Terrese; the two men were returning from a business errand and were going east on 22nd street; a large truck consisting of a platform with stakes was standing on 22nd street on a slant, facing-southeasterly and extending from close by the south curb to within two or three feet of the south street car track on 22nd street; it was about 75 to 100 feet east of the only street light in a distance of 533 feet on the south side of 22nd street, and this street light had only a small bulb or globe; the truck had no light on it; it was very dark and the truck, being without any body, was difficult to see. Plaintiff was sitting on the right-hand side; they drove along- on the south side of 22nd street between the curb and the street car track with dimmed automobile lights burning, with which, Terrese testified, he could see 25 to 30 feet in front.

After they had passed a street light and were in the dark shadows they suddenly saw the truck parked in the roadway about 25 or 30 feet away; plaintiff called “look out”; at this time the automobile was going about 15 or 20 miles an hour, and Terrese says he could have stopped within 25 or 30 feet; but he attempted to go around the truck by turning to the north, expecting to clear it, but, when too late, he saw that the truck extended so far into the street that he could not clear it, and the right front of the automobile and the left rear corner of the truck collided. Plaintiff was crushed and became unconscious; the pelvic bone was broken and the hip dislocated; his injuries were said to be permanent.

• It is not controverted that the question of the negligence of the parties responsible for leaving the truck unlighted in the street was. a question of fact to be. determined by the jury.

Section 16, of the Illinois Revised Statutes (1929), Cahill’s St. ch. 95a, ¶ 17, provides that every motor vehicle upon the public highway shall during the nighttime carry “two lighted lamps showing white lights, - or lights of a yellow or amber tint, visible at léast two hundred (200) feet in the direction toward which each . . . motor vehicle is proceeding. ” As plaintiff had testified that his headlights were dimmed, with which he could see 25 to 30 feet ahead, the court held that" he was violating this statute, and hence as a matter of law was guilty of contributory negligence. Defendants seek to support this ruling by the decision of this court in Johnson v. Gustafson, 233 Ill. App. 216. In' that case the trial court gave an instruction to the effect that this statute did not mean that such lights must be of such power as to light up the road for a distance of 200 feet in front of the automobile or for any other distance; that the statute only required lamps which a person coming from the opposite direction could see at a distance of 200 feet. This court held that this instruction was erroneous; that such lights are not only for the benefit of those who are approaching from the opposite direction, “but also to enable those in driving the car to avoid accidents.” This has been the construction of similar statutes in other States. Elrich v. Schwaderer, 251 Mich. 33; Frazier v. Hull, 157 Miss. 303. See also 1 Berry, Automobiles (6th ed.) 198; Blashfield’s Cyc. of Automobile Law, page 385. We adhere to this construction and in a proper case would hold that the violation of this statute constituted contributory negligence as a matter of law.

However, it is an established principle that the violation of a statute will not defeat recovery unless the violation, considered in connection with all the other facts and circumstances surrounding the case, establishes that plaintiff was negligent and that such negligence proximately contributed to the injury. A violation of the statute is only prima facie evidence of negligence. United States Brewing Co. v. Stoltenberg, 211 Ill. 531; Commonwealth, Electric Co. v. Rose, 214 Ill. 545; Miller v. Burch, 254 Ill. App. 387, and the many cases cited in this last case. Applying this rule to the facts before us, we are of the opinion that the jury should have been permitted to pass upon the question of whether or not plaintiff was guilty of contributory negligence.

Here are two men riding on a public lighted street in Chicago at a time when, in all probability, there was very little if any traffic on the street; they are proceeding in their proper place on the street with no reason to anticipate that there would suddenly loom out of the shadows an unlighted vehicle squarely obstructing the roadway. Whether or not, under the circumstances, the driver of the automobile would be expected, in the exercise of due care, to keep his lights fully turned on, is a question which should be presented to the jury. It also should be noted that according to ‘Terrese’s testimony he first saw the truck at a distance within which he could have stopped without colliding, but naturally he attempted to go around the truck and evidently miscalculated as to the distance the corner of the truck extended toward the center of the street.

Even if Terrese should be considered negligent (upon which we express no opinion) it does not follow that plaintiff, a passenger guest, was negligent. Plaintiff is responsible for his own conduct, and the negligence of Terrese cannot be imputed to him. Flynn v. Chicago City Ry. Co., 250 Ill. 460; Nonn v. Chicago City Ry. Co., 232 Ill. 378; Eckels v. Nuttschall, 230 Ill. 462. Plaintiff was watchful, as indicated by his warning cry as soon as the truck became visible. The only thing1 which it is claimed constituted contributory negligence was the fact that he was riding in an automobile belonging to another which did not have lights sufficiently bright to disclose objects in front for a distance of 200 feet away. It cannot be said, in view of all the surrounding circumstances, that all reasonable minds would agree that in so doing plaintiff negligently contributed to the accident. The evidence presented a case for the jury and the peremptory instruction should not have been given.

The defendant Illinois Bell Telephone Company filed a special plea admitting ownership of the truck but denying possession and operation; defendant Robert W. Pachaly, doing business as Four Wheel Drive Auto Company, filed a plea of nonownership, nonpossession and nonoperation. Defendant Four Wheel Drive Auto Company, a corporation, admitted possession and operation. The record supported the pleas of the first named defendants, and plaintiff in this court concedes this. So that while the judgment in favor of these two defendants is correct, it must be reversed as to the defendant Four Wheel Drive Auto Company, a corporation. Defendants argue that since the judgment is proper as to two of the defendants and the judgment is a unit, it must be affirmed as to all defendants, citing Livak v. Chicago 3 Erie R. Co., 299 Ill. 218, and other cases. Where a judgment is against several defendants it cannot be reversed as to one or more and affirmed as to the others, however desirable such a practice might be. In the old case of McDonald v. Wilkie, 13 Ill. 22, which is relied upon in Livak v. Chicago & Erie R. Co., it was held that as a judgment with reference to several defendants is an entirety, they must therefore stand or fall together, and that where a judgment is in favor of all the defendants and erroneous as to one, it must be reversed as to all. If the evidence adduced upon the second trial is substantially the same with reference to the possession and operation of the truck, either the plaintiff should dismiss as to all the defendants except the Four Wheel Drive Auto Company, a corporation, or the court should instruct the jury to find for the other two defendants.

Pleas of the statute of limitations were filed on behalf of two of the defendants, which asserted in substance that in view of the fact that the accident happened October 8, 1929, and suit was commenced as to these two defendants on October 8, 1931, the two years’ limitation had run; demurrers were filed to these pleas and sustained by the court, and defendants elected to stand by their pleas.

Defendants present the case of Irving v. Irving, 209 Ill. App. 318, in support of their contention that the last day of the two-year period expired on October 7. In that case we were considering the statute then in force which provided that when a divorce has been granted, neither party shall marry again within one year from the time the decree is granted. We there held that paragraph ll, section 1, chapter 131, did not apply. This statute provides that “The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Sunday, and then it also shall be excluded.” Cahill’s St. ch. 131, ¶ 1, subpar. 11. Following the many decided cases, we hold that by excluding the day on which the accident happened, the day suit was commenced against these two defendants, October 8, 1931, was within the statutory two-year period. Chung v. Blue Island Oil Products Co., 336 Ill. 439; Colonial Mut. Fire Ins. Co. v. Ellinger, 112 Ill. App. 302; Pugh v. Reat, 107 Ill. 440. The distinction between computation from an act done, and computation from a day and not from the act done, seems not to be recognized in most jurisdictions. “The tendency of recent decisions is very strongly toward the adoption of a general rule which excludes the day as the terminus a quo in such cases. And in some jurisdictions it is so provided by statute.” 37 C. J. 1054.

For the reasons indicated the judgment is reversed and the cause remanded.

Reversed and remanded.

Hatchett and O’Connor, JJ., concur.'