author: Mr. Justice Scanlan

text:
    American Industrial Finance Corporation, Appellant, v. David Sholz, Also Known as David Scholz, Appellee.
    Gen. No. 37,474.

      Opinion filed February 1, 1935.
    Samuel A. & Leonard B. Ettelson, of Chicago, for appellant; Herbert A. Salzman, of Chicago, of counsel.
    Townley, Wild, Campbell & Clark, of Chicago, for appellee; J. Arthur Miller and Fred A. Bowes, both of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiff sued defendant upon a promissory note alleged to have been executed by defendant, payable to the order of Isaac Marks and by the latter indorsed to plaintiff. The statement of claim alleges that defendant failed to pay the note at its maturity. He was duly served with summons and on the return day filed a special appearance and a plea in abatement. Plaintiff moved to strike the plea from the files. The trial court, after argument, took' the motion under advisement. Pending a decision upon the motion, defendant, by leave of court, over the objection of plaintiff, filed certain affidavits in support of his plea. The trial court then overruled plaintiff’s motion to strike the plea, dismissed the suit, and entered a judgment for costs against plaintiff. It appeals from the judgment. Under the then rules of the municipal court of Chicago, the motion to strike acted as a demurrer to defendant ’s plea. That verified plea reads as follows:

1 ‘ 1. That the defendant hereinabove named is designated as David Sholz, also known as David Scholz, and that a writ of summons issued under the seal of this Honorable Court, directing service of the same on ‘David Sholz, also known as David Scholz, ’ whereupon said summons . . . were duly served upon David Sholtz, differing from ‘David Sholz’ or ‘David Scholz’ as sued and summoned herein. David Sholtz now appears and moves the Court to quash said summons and declare the service thereof as void for the reason of said variance in the names as designated and shown in the plaintiff’s statement of claim herein and the said writ of summons.

“2. As further grounds for the abatement of the above entitled cause, David Sholtz states that he is and has been for the past ten months or more, the duly elected and acting Governor of the State of Florida; . . . that . . . acting in said capacity as Governor he made an official visit to the City of Chicago in Cook County, Illinois, during the period of time when the American Legion was in convention in said City, to-wit, October 2 to 5, 1933; that he appeared before the said American Legion for the purpose of presenting an invitation on behalf of the State of Florida to the American Legion to hold its next convention in . . . Florida; that he was acting for and on behalf of the citizens of . . . Florida in said capacity in presenting the said invitation . . . ; that it was during the period of said time, while he' was in attendance at the said . . . Convention in his official capacity as Governor of . . . Florida, that he was served with a writ of summons in the above entitled cause; that he temporarily entered the State of Illinois in the County of Cook in the performance of a duty of a public nature, serving the public interests of . . . Florida as was incumbent upon him as the Chief Executive of the said State; that therefore, and by reason of the fact that David Sholtz as Governor of the State of Florida was in the County of Cook, State of Illinois, solely in the performance of an official duty, he is immune and exempt from the service of civil process and therefore such service, as was made upon him in the above entitled cause, should be declared void, ineffective, and not such as enables this Court to assume jurisdiction over the person of David Sholtz.

“Wherefore, by reason of the matters and things above alleged, . . . it is respectfully prayed that the plea in abatement filed herein be sustained, and that the above entitled cause be dismissed as to David Sholtz without cost to him.

“David Sholtz,

“By Townley, Wild, Campbell & Clark,

His Attorneys.”

(Here follows the verification, made by one of the attorneys.) The affidavits filed in support of the plea in abatement, over the objection of plaintiff, were made by defendant, W. Y. Knott and B. A. Gray. Defendant states:

“ . . . that he is the Governor of . . . Florida, and resides in . . . Tallahassee in . . . Florida; that his visit to Chicago, Illinois, during the latter part of September and the early part of October, 1933, was in his official capacity as Governor of . . . Florida, for the express purpose of inviting the American Legion to hold its 1934 convention in . . . Florida ; that in such official capacity as Governor . . . , your deponent presented in the open convention to the American Legion a warrant of the State of Florida in the sum of Ten Thousand Dollars, which sum . . .

was from the official advertising fund of . . . Florida; that the expenses of your deponent to said 1933 American Legion convention in such official capacity were paid by . . . Florida out of the contingent fund set by . . . Florida for the use of The Governor; your deponent further states that he would not have attended said 1933 American Legion convention, he having never participated in nor attended a national convention of the American Legion before, had it not been in accordance with a resolution of the Legislature signifying its desire to have such convention come to Florida.”

Knott’s affidavit states:

“ . . . that he is Treasurer of the State of Florida . . . ; that Honorable David Sholtz, Governor of . . . Florida officially attended the 1933 American Legion convention at Chicago, Illinois, in his capacity as Governor of . . . Florida for the purpose of inviting the American Legion to hold its next convention in . . . Florida; that the expenses for such trip to Chicago were paid by . . . Florida; that as such Treasurer of . . . Florida he knows of his own knowledge that the State of Florida delivered to Honorable David Sholtz, Governor . . . , a warrant in the sum of Ten Thousand Dollars of the funds of the State of Florida for the purpose of making deposit of said sum of money with the American Legion at its 1933 convention.”

Gray’s affidavit states:

“ . . . that he is Secretary of State of the State of Florida . . . ; that he has read the affidavit of Honorable David Sholtz, Governor of . . . Florida; that . . . David Sholtz officially attended the 1933 American Legion convention in his official capacity as the Governor of . . . Florida for the express purpose of inviting the American Legion to hold its next convention in . . . Florida; that the expenses for such travel were paid by funds of the State of Florida and that the facts as further set forth in such affidavit of the said Governor . . . are true and correct.”

Gray, as secretary of state of Florida, certified to a resolution passed by the Florida legislature extending an invitation to the American Legion to hold its next annual convention in Florida and authorizing the governor of Florida, or, in case of his inability, the secretary of state of Florida, to appear before the national executive committee of the American Legion and present to that body the resolution passed by the legislature and to express to the said committee the hope of the people of Florida that the national convention of the American Legion for 1934.be held in Florida.

Defendant concedes, in his brief, “that Governor Sholtz was not in this jurisdiction as a witness, judge, lawyer or litigant (in any pending lawsuit in this city) at the time of service of summons upon him; . . . that he was not brought into this jurisdiction by trick, fraud or artifice practiced upon him by the plaintiff for the purpose of obtaining service of process. Moreover, we admit that Governor Sholtz is not identified with the Legislature,” but claim that he, as “Governor of the State of Florida, is entitled to privilege, immunifv and exemption from service of civil process while within a foreign jurisdiction in an official capacity in attendance upon public duties.” Defendant contends that immunity from service of civil process is not limited to the judicial and legislative branches of government but is also extended to the executive branch of Government. He states that cases that extend immunity to the executive branch of the government are rare because proceedings involving the executive branch very infrequently arise.

In Lamb v. Schmitt, 285 U. S. 222, 225-6, the court states:

“The general rule that witnesses, suitors, and their attorneys, while in attendance in connection with the conduct of one suit are immune from service of process in another, is founded, not upon the convenience of the individuals, but of the court itself. Page Co. v. MacDonald, 261 U. S. 446; Stewart v. Ramsay, 242 U. S. 128, 130; Hale v. Wharton, 73 Fed. 739; Diamond v. Earle, 217 Mass. 499, 501, 105 N. E. 363; Parker v. Marco, 136 N. Y. 585, 32 N. E. 989. As commonly stated and applied, it proceeds upon the ground that the due administration of justice requires that a court shall not permit interference with the progress of a cause pending before it, by the service of process in other suits, which would prevent, or the fear of which might tend to discourage, the voluntary attendance of those whose presence is necessary or convenient to the judicial administration in the pending litigation. See Bridges v. Sheldon, 7 Fed. 17, 43 et seq. In Stewart v. Ramsay, the court said (p. 130), quoting from Parker v. Hotchkiss, Fed. Cas. 10,739:

“ ‘The privilege which is asserted here is the privilege of the court, rather than of the defendant. It is founded in the necessities of the judicial administration, which would be often embarrassed, and sometimes interrupted, if the suitor might be vexed with process while attending upon the court for the protection of his rights, or the witness while attending to testify. ’

“It follows that the privilege should not be enlarged beyond the reason upon which it is founded, and that it should be extended or withheld only as judicial necessities require. See Brooks v. The State, 3 Boyce (Del.) 1, 79 Atl. 790; Netograph Co. v. Scrugham, 197 N. Y. 377, 90 N. E. 962; Nichols v. Horton, 14 Fed. 327; Iron Dyke Copper Min. Co. v. Iron Dyke R. Co., 132 Fed. 208. Limitations of it on this basis have been not infrequently made because the attendance upon the trial of a cause, however vital to the personal interests of those concerned, was not for the purpose of facilitating the progress of the cause (see Brooks v. State, supra; Vaughn v. Boyd, 142 Ga. 230, 82 S. E. 576; Sampson v. Graves, 208 App. Div. 522, 526, 203 N. Y. S. 729), or because the service was made on one whose attendance was not voluntary, and hence had no tendency to interfere with judicial administration. Netograph Co. v. Scrugham, supra.” Many other cases to the same effect might be cited, if it were necessary. It is also the general rule that in the absence of a constitutional, or statutory grant of immunity from the service of civil process, legislators are subject thereto, except where arrest is sought by the process, during their attendance upon legislative sessions, that is, while acting in their official capacities. (See Berlet v. Weary, 67 Neb. 75, 93 N. W. 238, wherein many cases bearing upon the subject are cited.) There are decisions which decide, or state as obiter dicta, that legislative officers are privileged from the service of all civil process during the sessions of the legislature, but our Supreme Court, in the ease of Phillips v. Browne, 270 Ill. 450, 455-6, concluded that such cases were against the great weight of authority and held that section 14 of article IV of the Illinois constitution, which provides • that “Senators and Representatives shall, in all cases, except treason, felony or breach of the peace, be privileged from arrest during the session of the General Assembly, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place,” intended only exemption from arrest with a view to imprisonment, and did not include exemption from service of civil process. In Long v. Ansell, 55 Sup. Ct. 21, recently decided by the Supreme Court of the United States, it was held that United States Senator Long, while serving in his official capacity, was not exempt from service of civil process in the District of Columbia under constitutional privilege (Art. I, see. 6, cl. 1, of the Constitution of the United States) from “arrest.” The court calls attention to the fact that many States, in passing upon similar constitutional provisions, have also so held. One of the cases cited by the court is Phillips v. Browne, supra. While it was not necessary to a determination of the case, the court, in Long v. Ansell, supra, saw fit to reapprove the rule laid down in Lamb v. Schmitt, supra. (See also the decision of the Court of Appeals of the District of Columbia in Long v. Ansell, 69 F. (2d) 386.)

It is the law of this State that one who voluntarily comes into a county of which he is not a resident for the purpose of taking part in the trial of a case in which he is the plaintiff, is not immune from service of civil process in such county. (See Sbertoli v. Clark, 263 Ill. App. 65, wherein the cases bearing upon the subject are reviewed.) This rule of law is important in the determination of the instant case for the reason that it is contrary to the rule that prevails in most of the States and in the federal courts, and it serves to show the general policy of this State as to exemption from the service of civil process.

We will briefly review the cases upon which defendant relies: He states that the trial court was practically governed in its decision by the case of Filer v. McCormick, 260 Fed. 309. That case was decided by a district judge. Defendant therein was the president of a national bank, which was a stockholder in a federal reserve bank, and at the urgent request of the governor of the federal reserve bank he attended a conference at the city where it was located, in another State, to consider means of selling government treas-

ury certificates for war purposes, and it was field that the defendant was engaged in a public service, and privileged from service of process in such State, not only during the conference, but during the next few days, while he was prevented by illness from returning home. The cases cited in support of the ruling (see p. 316) were all held to be against the great weight of authority by our Supreme court in Phillips v. Browne, supra, and they were also criticized in Berlet v. Weary, supra. From a reading of the decision in the Filer case (p. 317), it seems clear that the trial judge, in holding as he did, was governed, not so much by the law as by patriotic fervor, as the World War was then raging. The opinion states:

“It is not, and certainly may not be, claimed that in attending that conference he was not performing a public service of the greatest moment to the government and of interest to the country. One cannot readily conceive of a higher duty to their country — except it be on the battle front — than wás being performed by the members of that conference, when we consider the urgent and absolute necessities of the government for means with which to finance the gigantic struggle in which we were then engaged; money at such a time may be said to be the lifeblood of a nation.” Defendant also cites the case of The Roseric, 254 Fed. 154, but admits that the facts of that case are not at all similar to the facts in the instant case. The Roserie case was decided by a nisi prius federal judge. The case involved a libel against the steamship Roserie, which had been impressed into the service of the British navy as an ammunition carrier, and while acting as a British warship during the World War it collided with a barge in New York harbor, causing damage which brought about the action in question. During the hearing of the cause counsel for the British embassy appeared as amici curiae, by leave of court, and suggested that any interruption of the voyage of the

vessel by arrest or other process would interfere with the government business upon which the vessel was engaged, and thereby with the efficient prosecution of the war, and that the court should not exercise jurisdiction over a vessel in the service of a cobelligerent foreign government, as the British courts had refused to exercise jurisdiction over vessels in government service, whether of the British government or of the allied governments, and by comity the courts of the United States should also decline to exercise jurisdiction over vessels in the service of .the British government. The decision is not an authority in support of defendant’s position. Defendant also cites the following from Foster Fed. Prac. (5th ed.) sec. 167:

“A similar exemption tvould probably be applied to any person while temporarily within the district in the discharge of a public duty.” (Italics ours.) In support of this statement the author cites Lyell v. Goodwin, 4 McLean 29; Nichols v. Horton, 14 Fed. 327; and Fitzhugh v. Reid, 252 Fed. 234. The Lyell case decides that a judge, while his court is in session and while going to and from his court, is exempt from the service of civil process. The Nichols case holds that a nonresident witness is not exempt from the service of civil process in a case, the cause of action of which arose out of acts committed by the nonresident witness while in the foreign jurisdiction for the purpose of testifying. The Fitzhugh case states:

“It will be assumed, without deciding, that the official position of the defendant, mediator in labor disputes, entitles him to the same privilege of exemption from service in a civil action, while away from his home in the performance of his official duties, as litigants and witnesses in foreign courts, legislators, or judges.” (Italics ours.) After giving the defendant the benefit of the strongest case which could be urged in his behalf, the court held that he was not entitled to any exemption while he was in the jurisdiction in which he was served with summons, as he was not engaged in public business. Defendant also cites certain language from Bowers on Process and Service, sec. 367, but the author cites no authorities in support of his text. While defendant does not appear to rely upon the case of Zimmerman v. Buffington, 121 Neb. 670, 238 N. W. 115, we will briefly refer to it. The Supreme Court of Nebraska held that a Kansas officer, while acting under a requisition for extradition of an alleged fugitive from justice, was exempt from service of civil process while coming to, returning from, and attending upon the g’overnor of Nebraska in his line of dnty. After a careful reading of the decision we are of the opinion that the court • did not intend to change or modify its ruling in Berlet v. Weary, supra, and that its decision was based upon the theory that extradition relates to the due administration of justice and that the rule of exemption in favor of suitors and witnesses should apply to the accredited agent of a sister State. The court calls attention to the fact that it is only a judicial proceeding that can call into action the interstate extradition laws.

From a review of the cases it appears that in many of the States of the Union and in the federal courts a more liberal rule of the doctrine of exemption is followed than prevails in this State. But even in the courts which follow the liberal rule the doctrine of exemption from service of civil process is limited to nonresident parties, witnesses, judges, attorneys and other persons connected with the administration of justice. It is hardly necessary to state that we cannot be in any way influenced in our decision by defendant’s argument that it is unfair to the governor of a sister State to cause him the annoyance and expense of defending an action in a court located hundreds of miles from his place of residence.

After a very careful consideration of the major question involved in this appeal, we have reached the conclusion that the trial court erred in failing to sustain plaintiff’s motion to strike defendant’s plea in abatement. In view of this conclusion it is unnecessary for us to consider other points strenuously urged by plaintiff. We may say, however, that there is force in plaintiff’s contention that if it could be assumed that the law would exempt a governor of a sister State from the service of civil process if he entered the State of Illinois on purely public business to which a public interest attached, nevertheless, under the record in this case, the defendant would not be immune from the service of civil process. We take judicial notice that the American Legion is an organization of World War veterans, and we feel that its members are entitled to the gratitude and respect of all patriotic citizens. Nevertheless, we cannot hold that its convention bears any official relation to the government of the United States or the State of Florida, and we are of the opinion that plaintiff is justified in arguing that defendant, in attending the convention, was not acting in a governmental capacity. To show the consequences that would logically follow the sustaining of defendant’s plea, his counsel, in the oral argument, was compelled to contend that if the legislature of Florida had authorized defendant, as governor of the State, to appear in Chicago and secure for the State a very prominent prize fight or football game and that the defendant was present in Chicago solely by reason of the action of the State legislature, he would be immune from service while performing the duties authorized by the legislature.

Defendant has here abandoned that part of its plea in abatement in which it alleged a variance “in the names as designated and shown in the plaintiff’s statement of claim herein and the said writ of summons. ’ ’

The judgment of the municipal court of Chicago is reversed and the cause is remanded with directions to the trial court to strike defendant’s plea in abatement from the files, and for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

Gridley, P. J., and Sullivan, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Vasili Foale, Appellee, v. Ben Linsky, Appellant.
    Gen. No. 37,579.

      Opinion filed February 1, 1935.
    A. H. Brown and A. J. W. Appell, both of Chicago, for appellant.
    Reuben Freedman and Louis I. Gordon, both of Chicago, for appellee; Abraham Miller, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

An action on the case for personal injuries alleged to have been received by plaintiff while he was riding in defendant’s automobile, which was being driven and operated by defendant’s son. A jury returned a verdict in favor of plaintiff and assessed his damages at the sum of $1,800, but at the suggestion of the trial judge plaintiff remitted $500. A motion by defendant for judgment non obstante veredicto was overruled; also a motion to set aside the verdict. Judgment was entered for the sum of $1,300 and defendant has appealed.

Defendant contends that “plaintiff was a ‘guest’ within the purview of subdivision b of Section 43, Chapter 95a, Cahill Illinois Revised Statutes, 1933.” Subdivision b (par. 43) reads as follows: '

“(b) Provided, however, that no person riding in a motor vehicle as a guest, without payment for such ride, nor his personal representative in the event of the death of such guest, shall have a cause of action for damages against the driver or operator of such motor vehicle or its owner or his employee or agent for injury, death or loss, in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the driver or operator of such motor vehicle or its owner or his employee or agent and unless such wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.”

From an examination of the evidence we are of the opinion that the jury were warranted in finding, inter alia, the following facts: That defendant owned and operated two furniture stores in Chicago, one located on Fullerton avenue, which was in charge of defendant’s son Harry, and the other on Lincoln avenue, in charge of defendant; that the distance between the two stores was about six blocks; that sometime prior to the accident, plaintiff purchased a mattress at the Fullerton avenue store and on the evening of the accident he and his wife called at that store to have the mattress exchanged; that the son of defendant told plaintiff that the latter would have to pay an additional dollar to make the exchange; that plaintiff objected to paying this additional amount and said that if defendant were there he would not require such payment; that defendant was then alone in the Lincoln avenue store and could not come to the Fullerton avenue store and the son drove plaintiff and his wife to the Lincoln avenue store to have defendant settle the dispute as to the charge for making the exchange; that plaintiff and defendant settled the dispute and the son then drove plaintiff and his wife back to the Fullerton avenue store where plaintiff was to get the “exchanged mattress”; that on the way to that store the accident happened; that plaintiff and his wife, after the accident, were taken back to the Fullerton avenue store, and the exchanged mattress was delivered a day or two thereafter. It seems plain to us from these facts that the relationship between the parties was that of merchant and customer, that the trip was a business one, and plaintiff was not a guest within the meaning of the act. Both parties state that there are no Illinois decisions directly in point but there are a number of decisions of the sister States that construe like or similar statutes and that sustain our ruling. (See Knutson v. Lurie, 217 Iowa 192, 251 N. W. 147; Gage v. Chapin Motors, Inc., 115 Conn. 546; Russell v. Parlee, 115 Conn. 687; Kruy v. Smith, 108 Conn. 628; Sumner v. Edmunds, 130 Cal. App. 770; Sullivan v. Richardson, 119 Cal. App. 367; Crawford v. Foster, 110 Cal. App. 81; Hart v. Hogan, 173 Wash. 598; Dahl v. Moore, 161 Wash. 503; Labatte v. Lavallee, 258 Mass. 527; Jackson v. Queen, 257 Mass. 515; Lyttle v. Monto, 248 Mass. 340.) While in Massachusetts and Washington they have no “guest” statute, the rule has been established in both States that a guest cannot recover for injuries unless the owner or driver of the car is guilty of gross negligence, and therefore the Massachusetts and Washington cases we have cited are applicable to the case at bar in determining the question as to whether plaintiff was a guest. The “guest” statute of Connecticut was enacted in 1927, before our statute was enacted, and the two statutes are alike. Defendant cites, in support of his contention, the following1 authorities: Jacobson v. Stone, 277 Mass. 323; Silver v. Silver, 108 Conn. 371, and Romansky v. Cestaro, 109 Conn. 654. In the Jacobson case the plaintiff was suing her sister, who furnished her with a ride, and the court held that the evidence was “insufficient to indicate anything more than the friendly relations or the sense of mutual obligation arising between kindred.” In the Silver case the plaintiff was the wife of the defendant and upon his invitation was a passenger in an automobile operated by him. The opinion states “that a wife riding in her husband’s car at his invitation is a guest within the meaning of the statute is not questioned by the defendant.” In the Romansky case it was admitted that “on the afternoon of the day of the accident the plaintiff and six others went upon defendant’s invitation for a drive with him in this car. ” It is clear that none of these cases sustains the contention of defendant.

Defendant contends that “there was no proof that the defendant wilfully and wantonly injured the plaintiff, nor was there any such charge in the declaration.” The contention that there was no such charge in the declaration is an afterthought and is raised for the first time in defendant’s brief. No demurrer was filed to the declaration; no separate motion and instruction was offered at the close of plaintiff’s case nor at the close of all the evidence in reference to said count. No written motion for a new trial specifying any such objection to the said count was made. As to the claim that there is no evidence that defendant wilfully and wantonly injured plaintiff, we are of the opinion that the jury were warranted in finding from plaintiff’s evidence that the driver of the car at the time in question was driving at the rate of 40 miles an hour on a very rough thoroughfare in an attempt to pass a street car; that plaintiff repeatedly warned him not to drive the machine so fast; that there was an automobile parked at an angle on the street and that as defendant’s son was passing the street car he collided with the parked car with great force; that plaintiff, in addition to warning defendant’s son not to drive so fast, asked him if he wanted to kill plaintiff and his wife. Under the facts of this case it was for the jury to determine the question of wilfulness and wantonness. (See Streeter v. Humrichouse, 357 Ill. 234; Bremer v. L. E. & W. R. R. Co., 318 Ill. 11; Williams v. Kaplan 242 Ill. App. 166; Brown v. Illinois Terminal Co., 319 Ill. 326, 330; Heidenreich v. Bremner, 260 Ill. 439, 446; Seiffe v. Seiffe, 267 Ill. App. 23, 30.) We cannot say, after a careful consideration of the evidence, that the jury were not warranted in finding that defendant’s son was guilty of wilful and wanton negligence. It was not necessary, however, for plaintiff to prove wilful and wanton negligence in order to recover.

Defendant contends that “where a declaration contains some counts charging negligence and others charging wilful and wanton conduct and the evidence is insufficient to sustain the latter, a judgment entered upon a general verdict should be reversed as an injury cannot be caused wilfully or wantonly and negligently at the same time. ’ ’ Plaintiff contends that the instant contention of defendant is inconsistent with defendant’s theory in the trial court as is shown in one of the instructions offered by defendant. While this contention of plaintiff seems to have force, it is sufficient for us to say, in answer to defendant’s contention, that the law is not as he contends. (See Fickerle v. Seekamp, 274 Ill. App. 310, 322; Price v. Bailey, 265 Ill. App. 358, 364-5; Layton v. Ogonoski, 256 Ill. App. 461, 467; Wargo v. Buske, 273 Ill. App. 28, 32; Hawkins v. McClun, 266 Ill. App. 601; Provenzano v. Illinois Cent. R. Co., 272 Ill. App. 475, 482.)

In closing his brief defendant intimates that the presiding judge must have been satisfied that plaintiff was riding in defendant’s automobile as a guest. There is no warrant for any such intimation. We find in the record a statement made by the trial court to defendant’s counsel that the court was satisfied that plaintiff was a customer of defendant and that he did not think there was anything for the defense to do but to contest the amount of the verdict.

Defendant has had a fair trial and the amount of the judgment is reasonable under the evidence. The judgment of the superior court of Cook county is affirmed.

Affirmed.

G-ridley, P. J., and Sullivan, J., concur.


author: Mr. Justice Sullivan

text:
    The People of the State of Illinois ex rel. John S. Rusch, Defendant in Error, v. Joseph DeGiulio and Daniel Leopold, Plaintiffs in Error.
    Gen. No. 37,433.
    Opinion filed February 1, 1935.
    Elliodor M. Libonati, of Chicago, for plaintiffs in error; John M. Lonergan, of Chicago, of counsel.
    Thomas J. Courtney, State’s Attorney, for defendant in error; John F. Cashen,'Jr., of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

John S. Rusch, chief clerk of the board of election commissioners, filed a petition in the county court of Cook county against Joseph DeGiulio, Bill Marzano and Daniel Leopold, alleging that November 4, 1930, a general election was held in Chicago at which various candidates of different political parties were- voted upon; that respondents served as judges of election at that election in the first precinct of the 26th ward; “that certain misconduct and misbehavior, which is hereinafter alleged of the said respondents as such judges of said election at and during said election, constitute a criminal offense or criminal offenses against the People of the State of Illinois and also constitute contempt or contempts” of said court; and that respondents, while so serving, fraudulently and unlawfully made a false canvass and return of the votes cast in that precinct at said election and were guilty of corrupt and fraudulent conduct and practice in their duty as judges of said election. The petition prayed that a rule be entered upon respondents to show cause why they should not be held in contempt of court and such a rule was entered.

The respondents DeGiulio and Leopold served as Republican judges and the respondent Marzano as Democratic judge. Marzano was not apprehended.

On hearing the evidence in open court DeGiulio and Leopold were found guilty of “knowingly, fraudulently and unlawfully making a false canvass and return of the votes cast in said precinct at said election” and “of misconduct and misbehavior as an officer of the county court of Cook County.” DeGiulio was sentenced to the county jail for a period of six months and Leopold for a period of four months. This writ of error was sued out by both respondents.

Respondents’ sole contention is that the evidence is insufficient to sustain the finding and judgment of the county court.

The instant proceeding was predicated upon the canvass and return of the votes cast for Stanley H. Kunz, Democrat, and Peter C. Granata, Republican, who were candidates for member of Congress- of the United States from the district which comprised the precinct in question in the election heretofore referred to.

It was stipulated on the hearing that the poll books, tally sheets and ballot boxes returned by ^respondents and the other precinct election officials be received in ■evidence and that the ballots contained in the ballot box be recounted in open court. The recount showed that 384 votes were cast in the precinct, that Kunz received 141 votes, that Granata received 207 votes, that 32 ballots were not voted for any candidate for the particular office, that two ballots were not initialed by any of the judges of election of the precinct and therefore void, and that there were two spoiled ballots.

Both respondents admit that 121 straight Democratic votes were cast in the precinct and 109 straight Republican votes. DeGiulio admitted that at the conclusion of the canvass and tally of the votes for this office the tally sheets of both clerks showed 121 votes recorded for Kunz on “straight” tickets and 5 votes on “split” tickets for an extended total of 126 votes, and 109 votes recorded for Granata on “straight” tickets and sufficient additional “split” tickets to make an extended total of 247 votes. DeGiulio testified that he then proceeded to check over all of the tallies and recorded figures of the clerks for possible mistakes, and, recognizing what he then considered an error in the Kunz-Granata count on the tally sheets of both clerks, that he scratched out the straight and total votes for both candidates as then recorded and substituted for the figures 121 in the Kunz straight vote column the figures 73, and in his total vote column for the figures 126 the figures 78; and that he substituted for the figures 109 in the Granata straight vote column the figures 157, and in his total vote column for the figures 247 the figures 297. The official return made by the respondents and other election officials of this precinct to the board of election commissioners was Kunz 78 votes and Granata 297 votes.

Leopold’s testimony was characterized by an almost complete failure to recollect anything that occurred while the votes were being called from the ballots, tallied and recorded. The following, however, was testified to by him on direct examination:

“Q. You heard Mr. DeGiulio testify about the change he made?

“A, Yes, sir.

“Q. Was that in your opinion the proper change to make when he made it, as far as you knew?

“A. Well, being on the board the first time, I made Joe (DeGiulio) take care of whatever mistakes there were.

“Q. Do you have any recollection of a mistake being corrected at that time?

“A. I do.

“Q. But you don’t know what the nature of the correction was?

“A. No, sir.”

Elizabeth Ruggio, one of the clerks of election, called as a witness, when asked if the tally sheets were changed by anyone and if she knew about the erasures on the Kunz and Granata counts, testified: “Joe De-

Giulio called my attention to an error I had made. I remember very well, after everything had closed, that he made a mistake and he was sorry he hadn’t got— now, I don’t know which mistake he referred to at that time. . . . Well, they were erasures made by Mr. DeGiulio. He called my attention to an error, I don’t know if it was one error or ten errors. He knew so much about ballots and things that he was always lending a helping hand, and we were sure he would be doing the right thing.”

A few weeks after the election when this precinct was reached on the official canvass by the board of election commissioners, the erasures and substitution of figures were obvious, as was the fact that Kunz was credited with only 73 straight votes when there were 121 straight Democratic votes cast in the precinct, and Granata was credited with 157 straight votes when only 109 Republican straight votes were cast.

Judge Jarecki, presiding over the board conducting the canvass, summoned respondents and the other judge and clerks of this precinct to appear before the board of election commissioners to explain the erasures and discrepancies in the votes of the candidates as shown on the tally sheets. DeGiulio testified on that occasion that he had make a mistake and that the figures “should have been corrected, which I did not do.” On DeGiulio’s statement that his recollection of the correct vote cast in the precinct was 121 straight votes and five split votes for Kunz, and 109 straight votes and 138 split votes for Granata, the board of election commissioners changed the official record of the return of the votes for this office from this precinct to 126 for Kunz and 247 votes for Granata.

The return by the judges and clerks of this precinct of 78 votes for Kunz and 297 votes for Granata, or a combined vote of 375, was only nine votes less than the total vote cast in the precinct. As heretofore shown there were 36 ballots cast that could not be counted for this office. It is therefore demonstrated to a mathematical certainty that not only were 65 votes taken from Kunz and credited to Granata, but that 27 of the 36 ineligible ballots were also credited to the latter.

In our opinion this character of evidence requires neither further comment, discussion nor analysis. It evinces a deliberate intention on the part of these respondents to prostitute the ballot and to frustrate the will of the voters of this precinct. Their guilt as charged in the sworn petition was established beyond a reasonable doubt and the judgment of the county court is affirmed.

Affirmed.

Gridley, P. J., and Scahlah, J., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. Securities Discount Corporation, Plaintiff in Error.
    Gen. No. 37,448.

      Opinion filed February 1, 1935.
    Harold S. Iglow, of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, J. Albert Woll and Henry E. Seyfarth, Assistant State’s Attorneys, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

This writ of error is prosecuted by plaintiff in error, the Securities Discount Corporation, a corporation (hereinafter referred to as the Discount Company), to reverse an order of the municipal court entered January 9, 1934, finding such corporation guilty of direct contempt of court for practicing law without a license and sentencing it to pay a fine of $250. This cause is presented to us for review on the common law record alone, consisting of the contempt order and sentence. In the same draft order in which the Discount Company was adjudged guilty of contempt its president, one Simon Sachs, and its secretary, one David Zevin, were also found guilty of contempt for practicing" law without a license, but the corporation alone prosecutes this writ of error.

This contempt proceeding was predicated upon case No. 2171765 in the municipal court, entitled Securities Discount Corporation, a corporation, v. L. C. Bernhardt and Mrs. L. C. Bernhardt, instituted by the Discount Company, which was actually on trial during the same session of court at which the corporation was found guilty of contempt.

The draft order heretofore referred to is as follows:

“Securities Discount Corporation, a corporation, vs. L. C. Bernhardt and Mrs. L. C. Bernhardt,

No.

1289516

1289517

1289518

“This cause coming on to be heard upon the motion of the People of the State of Illinois, ex rel Chicago Bar Association, and the Court being fully advised in the premises, and having heard the testimony of the various witnesses, including the testimony of Simon Sachs, president of Securities Discount Corporation, a corporation, and David Zevin, secretary of Securities Discount Corporation, a corporation, the Court finds:

“ (1) That it has jurisdiction of the subject matter of this cause and of the parties hereto;

“(2) The court further finds that the said Securities Discount Corporation, a corporation, filed its statement of claim herein against the defendants on the 10th day of December, A. D. 1932, wherein the said plaintiff claimed that there was due to it from the defendants, L. C. Bernhardt and Mrs. L. C. Bernhardt, the sum of One Hundred ninety-three ($193.00) Dollars, with interest at 5% per annum, amounting to Seven ($7.00) Dollars for services rendered to Mrs. L. C. Bernhardt by Dr. N. R. Snell, a duly licensed physician and surgeon. Among other things the Court finds that a statement of account was contained in said statement of claim purporting to be as follows:

“ ‘Exhibit A
April 14, 1931 to June 24, 1931 — Daily calls Treatment for high blood pressure and Bright’s disease $193.00
Interest at 5% per annum to date 7.00
$200.00’

“that said statement of claim purports to contain the statement that the plaintiff is the actual bona fide owner of said account, which was acquired by purchase from Dr. N. R. Snell on October 13th, 1932, and assigned to plaintiff on said date.

“ (3) The Court further finds that the said assignment was a sham and a fraud and no consideration was paid for said assignment, but on the contrary the said Snell advanced the sum of Seven and 50/100 ($7.50) Dollars to the said plaintiff for Court costs required by said plaintiff; that the plaintiff contracted with said Snell to collect the said account and various other accounts for said Snell on a contingent basis of 25% of the whole amount if collected without law suit and 50% if collected by law suit.

“(4) The Court further finds that the said plaintiff has commenced approximately six or seven hundred law suits in the Municipal Court of a similar nature in the last year upon similar assignments; that the statement of claim in the instant case was drawn up in the office of the plaintiff; that the said David Zevin made oath to said statement of claim, knew nothing about the facts save that the claim was procured by a representative of the Securities Discount Corporation, together with various other claims from the said Dr. Snell, and that said Zevin signs practically all the statements of claim before they are filed.

“(5) The Court further finds that at the time of the so-called assignment to-wit, October 13th, 1932, there was no bill annexed, but that on December 1st, 1932, the statement, or bill, was sent to the plaintiff.

“(6) The Court further finds that the claim was obtained by solicitation by an employee of the plaintiff corporation, who stated that they would collect the bill for Dr. Snell, but that he would have to advance $7.50 on each case, of which the aforesaid case was one; that fifteen (15) or eighteen (18) claims were turned over at one time.

“(7) The Court further finds that at no time did Dr. Snell employ Marcus D. Henshel, attorney for the plaintiff; that said attorney was employed by the plaintiff in this case, as in others, without authorization, knowledge or selection of said attorney by the so-called assignor.

“ (8) The Court further finds that the said assignment was a fraud and a sham and merely a subterfuge for the purpose of enabling plaintiff to commence the law suit in its own name; that the plaintiff solicited said claims as a collection agency and agreed to prosecute said claim to judgment and to render a portion of

the proceeds to the said Shell if the said Shell would advance the Court cost's, which the said Shell did.

“(9) The Court further finds that said plaintiff, Securities Discouht Corporatioh, a corporation, has been engaged in practicing law without being authorized so to do, and has perpetrated a fraud upon the Court; that the said Simoh Sachs, president of said Securities Discouht Corporatioh, a corporation, and David Zevih, secretary of said Securities Discouht Corporatioh, a corporation, have actively aided and assisted said corporation in said activities, and that neither of them have been admitted to practice law in the State of Illinois, and it is considered and adjudged by the Court that the said Securities Discouht Corporatioh, a corporation, and the said Simoh Sachs, president of said Securities Discount Corporation, a corporation, and David Zevih, secretary of said Securities Discount Corporation, a corporation, are guilty of a direct contempt of this Court, and that said contempt has tended to bring the administration of justice into contempt.

“It Is, Therefore, Ordered that the said Securities Discouht Corporatioh, a corporation, as punishment for said contempt be and it is hereby directed to pay a fine in the sum of $500.00 to the Clerk of the Court and that execution issue forthwith. ’ ’

(Then follows the order of the court fixing the punishment of Sachs at a fine of $500 and a sentence of one day in the county jail, and of Zevin of a fine of $50 and one day in the county jail.)

“Ehter:
Eugehe J. Hollahd
Jan. 9, 1934.
Judge.”

The draft order comprehended all three eontemnors and what apparently is an abbreviated form of that portion of the order pertaining to the Discount Company appears on the next succeeding page of the record as follows:

“The People of the State of Illinois, vs. Securities Discount Corporation, a corporation.

No. 1289518 Criminal.

“It is hereby found that the Securities Discount Corporation of Chicago, Illinois, is Guilty of Contempt of Court because this day while the Court was in open session in Branch Court No. 8-906, City Hall, Chicago, Illinois, and in the trial of case No. 2171765, entitled Securities Discount Corporation, a corp., — versus L. C. Bernhardt, Mrs. L. C. Bernhardt, said Corporation has been engaged in practicing law without being authorized so to do and has perpetrated a fraud upon the Court that Simon Sachs, President of said Securities Discount Corporation, a corp., and David Zevin, Secretary of said Securities Discount Corporation, a corp., have actively aided and assisted said corporation in said activities and that neither of them has been admitted to practice law in the State of Illinois, and it is considered and adjudged by the Court that the said Securities Discount Corporation, a corporation, is Guilty of direct Contempt of Court and that said Contempt has tended to bring the administration of Justice into Contempt.

“Judgment on finding', defendant, Securities Discount Corporation, a corporation, Guilty of Contempt of Court, Defendant Five Hundred Dollars ($500.00) and costs taxed at Six Dollars ($6.00).

“It is further ordered by the Court that Execution issue herein.”

The order, finding plaintiff in error guilty of direct contempt committed in the presence of the court and within its own knowledge, having been entered without information or affidavit having been filed or a rule to show cause entered or process of any kind served upon it, the only record required to be made was the contempt order of the trial court. That order should set out the facts constituting the offense so fully and certainly as to show that the court was authorized to make the order, and the facts stated must be taken to be true. The object of requiring these facts to be shown in the record is to enable reviewing courts to see whether or not they amount to a contempt and thus to determine from them the jurisdiction of the trial court. (People v. Saylor, 238 Ill. App. 142, 144.)

The record brought before us for review contains both of the orders heretofore set forth. It is urged that the order sought to be reversed is the latter, entitled People of the State of Illinois v. The Securities Discount Corporation, No. 1289518, and that the draft order signed by the trial judge should not be consid-' ered by us because that order was entered in the civil case out of which this contempt proceeding arose.

It is true that a contempt proceeding is a criminal prosecution and as such is required by the constitution to be carried on in the name and by the authority of the People of the State of Illinois. (Rawson v. Rawson, 35 Ill. App. 505.) While the draft order is entitled as of the civil case, it will be noted that it does not bear the civil case number 2171765, but bears the same People’s case number 1289518 as the other order and two other criminal case numbers that were apparently assigned to the contempt proceedings against Sachs and Zevin. It will also be noted that the text of the order contained the following recital: “This cause coming on to be heard upon the motion of the People of the State of Illinois, ex rel. Chicago Bar Association, . . . .”

The draft order indicates by the number it bears and by its text that the proceeding for the contempt or contempts therein enumerated was brought in the name and by the authority of the People of the State of Illinois, and, in our opinion, it is the order of the court in this cause. Under the circumstances we think that the manner in which the draft order was entitled was simply due to inadvertence and is inconsequential.

Plaintiff in error further contends (1) that the court had no jurisdiction to enter the contempt order because it was never brought before the court by virtue of any complaint, petition or information filed against it or by any summons or other process, and that it was not given an opportunity to purge itself of the alleged contempt; (2) that the order is void in that it does not sufficiently show that the Discount Company was present in open court when the order was' entered; and (3) that it is invalid because no facts appear in the order from which it can be determined that it was guilty of contempt of court.

We find no merit in plaintiff in error’s first contention. The right to punish an offender for a contempt of court is a right inherent in the municipal court independent of any statute, and when the act constituting such contempt is committed in the presence of the court it is a direct contempt, and upon the court’s own knowledge it may immediately punish the contemnor without the filing of an information or affidavit or the entry of a rule to show cause. (People v. McDonald, 314 Ill. 548.) That plaintiff in error was unlawfully engaged in practicing law, and committed a gross fraud upon the court in attempting to collect and in prosecuting before the court the claim of Dr. Snell against the Bernhardts, is fully and completely established by the court’s order. That its conduct, as clearly set forth in the draft order, constituted direct contempt must be conceded.

It is' sufficient answer to plaintiff in error’s second contention to state that it was present in court as plaintiff in the civil case prosecuting that case before the court. The record also affirmatively shows that plaintiff in error was present in court by and through its president, Sachs, its secretary, Zevin, and its attorney.

We are of the opinion that plaintiff’s third contention is equally without force. An examination of the draft order demonstrates that it sets out the facts constituting the contempt with particularity and recites fully what plaintiff in error’s contemptuous conduct consisted of. The finding of the trial court on the facts clearly showed that it had jurisdiction to punish the contemnor for direct contempt of court. While facts are included in the order that would not of themselves constitute direct contempt, an abundance of facts are shown that do.

A corporation can neither practice law nor hire lawyers to carry on the business of practicing law for it. (Midland, Credit Adjustment Co. v. Donnelley, 219 Ill. App. 271.) Plaintiff in error is shown by the findings of fact contained in the order to have engaged both in the practice of law before the court and to have engaged licensed counsel to practice law for it, which conduct on its part was a fraud upon the court and a contumacious affront to its power, authority and dignity.

It is also pertinent to observe that plaintiff in error recognized the validity of the order it now seeks to reverse when, on January 15, 1934, it moved the trial court for a reduction of the fine imposed by the order as punishment for its offense, which motion was allowed, and its fine was reduced from $500 to $250.

Perceiving no error in the court’s finding that plaintiff in error was guilty of direct contempt, the order of the municipal court should be and is affirmed.

Affirmed.

G-ridley, P. J., and Scaxlax, J., concur.


text:
    Bessie Simon, Appellee, v. City of Chicago, Appellant.
    Gen. No. 37,480.

      Opinion filed February 1, 1935.
    William H. Sexton, Corporation Counsel, and A. M. Smietanka, City Attorney, for appellant; Quin O’Brien and James J. Danaher, Assistant Corporation Counsel, of counsel.
    Leopold Saltiel, of CMcago, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.

Plaintiff brought this action to recover for personal injuries received while she, alighting from the front end of a street car, stepped into a hole which she claims the city negligently permitted to remain in the street in close proximity to the step of the car. The receivers of the corporations constituting the Chicago Surface Lines were also named defendants, but the suit was dismissed as to them and proceeded against the city alone. The jury rendered a verdict of $2,250, upon which judgment was entered, and defendant seeks a reversal.

Plaintiff testified in her own behalf that she was married, lived with her husband and two children and that in addition'to keeping house for her family she conducted a small candy and grocery business in a store in front of her living rooms; that about 10 a. m., May 10, 1932, she left her home and boarded a northbound Kedzie avenue street car, which carried her to Chicago avenue, where she alighted and boarded an east-bound Chicago avenue car; that when that car stopped at or near its regular stopping place at Ash-land avenue to discharge and take on passengers she walked to the front platform, took hold of the handrail on the east side of the door opening with her left hand, stepped with her right foot on to the step of the ear, brought her left foot down to the step and then stepped to the street with her right foot and into a hole; that as she alighted from the car she looked down at the step and then south; that in answer to a question as to whether she looked straight ahead of her when she got off the car she said “straight”; that “I stepped right into a hole, and I felt a sharp pain, so I sat down on the step”; and that she was assisted to the office of a Dr. Block nearby, who gave her emergency treatment and sent her home in a cab.

The motorman of the street car, testifying in plaintiff’s behalf, stated: “I saw a woman fall in a hole, slipped rather. . . . She got off and walked a little bit to the right and some people got off ahead of her and after her, but I seen her when she was down. . . . I helped the lady to the corner store. . . . The conductor took her to the doctor . . . there was a hole there, I should judge about two feet by two and one-half and I should say between three and six inches deep. . . . The asphalt was gone. . . . Just the heel of the step covered one corner”; that this hole had been in the street around a month or so; and that there was usually a policeman on that corner, but that he did not see one at that time.

On cross-examination the motorman testified that he did not see plaintiff fall but that “somebody hollered and I looked and happened to see this woman”; that she was “down on one knee and said she was hurt and I said do you want to call a doctor and she said yes. . . . there was a machine ahead of us that stopped us back twenty or twenty-five feet from the corner ’ ’; that he noticed this hole a couple of weeks or more before that day and it seemed to be getting larger all the time, just like it “was working away” from machines hitting it; and that the hole was one and a half or two feet south of the south rail of the eastbound tracks.

Henry Bay testified in plaintiff’s behalf that he measured the hole and surrounding roadway May 14, 1932; that “the hole was about four to six inches deep and about two feet by four feet in dimension and about, twelve feet north of the south curb of Chicago avenue and about twenty feet west ... of the west crosswalk of Ashland avenue.”

Defendant offered no evidence.

That the city must use reasonable care to keep its streets in a reasonably safe condition for the use of the traveling public is the settled law of this State. (Purcell v. City of Chicago, 231 Ill. 164.) There was ample evidence from which the jury might fairly conclude that the city was negligent in permitting a hole of the kind and character described by the witnesses, and situated as it was, to remain in the street, and the court very properly submitted the question of defendant’s negligence to the jury.

We find no evidence in the record that plaintiff was not in the exercise of ordinary care for her own safety. Passengers got off ahead of her and behind her. She took hold of the grab rail, looked at the step of the car and safely landed on it with both feet. She then looked ahead and stepped with her right foot to what she had a right to expect was the pavement at the street level. Her foot landed instead in the hole, causing her to fall and receive the injuries complained of. Whether her conduct constituted contributory negligence under all of the facts and circumstances in evidence in this case was properly submitted to the jury and its verdict in her favor determined that question. To hold that a person alighting from a street car is absolutely bound to keep her eyes fixed upon the street alongside of the stopping place of the car in search of defects and dangerous places would be to establish a manifestly unreasonable and impractical rule. (Graham v. City of Chicago, 346 Ill. 638; City of Chicago v. Babcock, 143 Ill. 358.)

It is earnestly contended that the trial court should have directed a verdict for defendant and dismissed plaintiff’s action because of her failure to prove all of the matters required by statute in the notice of the accident served upon the city as a condition precedent to her right to commence her suit. Such a notice was served. Plaintiff averred and proved it upon the trial, where no objection was offered to its admission in evidence. It bears an indorsement indicating its receipt by the city clerk, corporation counsel and city attorney. The statute does not require a plaintiff to furnish proof of each and every matter set out in the notice. It merely requires proof of service of the notice. If there is nothing .in the proof to contradict the recitals of the notice or if there is nothing to show that a recital is untrue, there is no ground for a motion to dismiss. The statute provides that the notice must be given and the rules of practice require that proof of service of the notice shall be made upon the trial. In this case the notice was introduced in evidence and proof was made of its service. Nothing appeared in the evidence to contradict any recital, and we see no good reason why plaintiff should be required to make affirmative proof of the truth of recitals of this character unless they are challenged and put in issue. No objection was raised by defendant and the court’s attention was not called to any variance between the proof and any recital of the notice. (Graham v. City of Chicago, supra.)

It is claimed that plaintiff failed to prove venue and that such failure is fatal to her judgment. It is sufficient to state that the notice to defendant, which is in evidence, apprising it of the accident, definitely shows that she resided in the city of Chicago and that the intersection of Ashland avenue and West Chicago avenue is in the city of Chicago, county of Cook and State of Illinois. In any event no mention was made of this objection or of defendant’s objection that plaintiff failed to prove the matters set out in her statutory notice either in its motion for a directed verdict, in its motion for a new trial, in its motion of arrest of judgment or in its assignments of error. It is too late for these objections to be made at this time. (Graham v. City of Chicago, supra; Pickett v. Kuchan, 323 Ill. 138; Highway Com’rs v. City of Bloomington, 253 Ill. 164; Tucker v. Duncan, 224 Ill. 453; Chicago, B. & Q. R. Co. v. Dickson, 143 Ill. 368.)

It is also claimed that it was not shown that the city had either actual or constructive notice of the defect in the street in time to have repaired same before the accident. The motorman testified that the hole existed for a month before the accident; that it kept getting larger from automobiles going over and through it; and that the asphalt was “working away.” At least one side, corner or edge of the hole was directly underneath the heel of the step of the street car. It was so situated and of such size and character as to be dangerous to passengers alighting from street cars at that point. A police officer was usually stationed at that busy street intersection. These facts, which were undisputed, showed that the street was out of repair and in a dangerous condition for such a length of time that the public authorities of the city, by the exercise of reasonable care, might have learned of the condition, and under such circumstances no actual notice need be shown to render the city liable for an injury caused by such a defect. (City of Chicago v. Dalle, 115 Ill. 386.) Under' the facts of this case whether the duration of the condition constituting the defect in the street was sufficient to warrant the presumption of notice was a question of fact for the jury. (City of McLeansboro v. Trammel, 109 Ill. App. 524.)

It is insisted that the amount of the verdict, $2,250, is excessive. Plaintiff suffered chip fractures of the lower end of the fibula and of the front end of the astragalus. A cast was placed upon her foot for five weeks. For several weeks she could walk only with the aid of crutches and then with the aid of a cane.. She was incapacitated for a long period from performing her duties in her home and store. She testified that at the time of the trial she occasionally had pain in her ankle and instep “when I walk or sometimes I am too much on my feet or the change of weather bothers me quite a bit.” There was 25 per cent limitation of motion of her ankle a year and a half after the accident. We are of the opinion that the amount awarded plaintiff is not excessive.

It is strongly argued that plaintiff’s first and third given instructions were erroneous and prejudicial, the first in singling plaintiff out and glorifying her as a witness, and the third because it improperly assumed that plaintiff was entitled to damages, and because it did not limit same to her physical injuries or as to such mental suffering on her part as was connected with her physical injuries.

We perceive nothing prejudicial in plaintiff’s first instruction. It merely pointed out her right to testify in her own behalf and advised the jury that her testimony was to be considered with all of the evidence in the case, and that it was to be given such weight and credit as the jury might believe it to be entitled from all of the facts and circumstances in evidence. We think the objection to this instruction is untenable.

While plaintiff’s third instruction is somewhat inaptly drawn, in our opinion, it neither assumes defendant’s liability nor that plaintiff suffered damage. It merely advised the jury as to the elements of damage that might be considered by it if it properly found the city guilty and that plaintiff suffered damages because of such guilt. Not even by a strained construction of the instruction can it be said that it even intimated that damages might be included in its verdict for worry, humiliation or grief. It did not even include the element of mental suffering attendant upon or arising from and connected with her physical injuries, which it properly might have done. (Klatz v. Pfeffer, 333 Ill. 90; Chicago City Ry. Co. v. Anderson, 182 Ill. 298.) The instruction is not entirely free from objection, but we are of the opinion that it could not have misled the jury and that defendant was not materially prejudiced by it.

The evidence amply justified the verdict of the jury and as there were no prejudicial errors upon the trial,' the judgment is affirmed.

Affirmed.

Gridley, P. J., and Scanlan, J., concur.


author: Mr. Presiding Justice Edwards

text:
    August Kortylak, Appellee, v. Johnston City Building and Loan Association of Johnston City, Appellant.

      Opinion filed January 4, 1935.
    Rehearing denied February 25, 1935.

      David A. Warford, for appellant.
    D. L. Duty, of Marion, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion of the court.

In 1921, appellee became the owner of 10 shares of the capital stock of appellant, Johnston City Building and Loan Association, each of the par value of $100, and represented by a stock certificate. On May 1,1927, having paid up in full for such shares, he approached the appellant, through its secretary, and asked for the payment of the $1,000 due on the certificate, as a result of which there was indorsed upon the back of the certificate the following: “This is to certify that, this

certificate is fully paid and matured, and will draw interest at the rate of 6 per cent per annum until paid, and is payable on demand of the owner or of the undersigned. Dated this 1st day of May, A. D. 1927. Johnston City Building & Loan Assn. By D. B. Kenshalo, Secy.” Thereafter, four instalments of interest were paid thereon, following which the appellant, becoming financially unstable, made no further payments, and in 1931 went into liquidation.

The conversation between appellee (a foreigner who speaks brokenly) and the secretary, at the time when the indorsement was made, as told by the former, is substantially as follows:

“Kenshalo say, ‘Hello, August; you got thousand dollars coming, but we no got. You want to loan it to us?’ I say, ‘Well, I no need the money. I loan it.’ He say, ‘Well, we pay you six per cent.’ I say, ‘Give me note.’ He say, ‘You no need note. I write on back of certificate. That’s just as good.’ ”

The secretary testified, concerning the transaction, that appellant did not have the money; that he (appellee) said he did not want the money, and that he would leave it; and that he told appellee that he would indorse the certificate so it would draw interest. On cross-examination he was asked whether or not he said the indorsement would be as good as a note, and he replied, “I don’t know”; further stating that he,did not recall that appellee asked for a note, but was almost positive that he did not. He further testified that the association wanted the money that was represented by the stock; that appellant, at the time, did not have the money to pay it, and that it was willing to give some kind of security and pay interest; also, that the record did not show any resolution of the board of directors authorizing him to make a loan for appellant.

Appellee sued in assumpsit to recover upon the alleged agreement. There was a trial by jury, a verdict for $1,200, and judgment thereon; from which this appeal has been perfected.

The action of the court, in permitting appellee to testify to the conversation with the secretary, is claimed as error for the reason that the indorsement in writing constituted the agreement, and that it could not be varied by parol testimony.

As has been stated, appellant called its secretary, who testified fully as to this conversation. Where a party offers similar testimony to that to which it objected when offered by the opposing party, it is in no position to claim error, as a party cannot complain of an error which it also committed; as held in Bogart v. Brazee, 331 Ill. 160, 181; Bupolski v. Ferguson & Lange Foundry Co., 272 Ill. 82, 89; Kuhn v. Eppstein, 239 Ill. 555; Huling v. Century Publishing & Engraving Co., 108 Ill. App. 549. And for the reason as stated in Kuhn v. Eppstein, supra: “If the evidence for the appellee was incompetent, so was that for the appellants, and they ought not to be heard to complain that evidence of the same character which they offered was not competent.”

On page 1 of its reply brief and argument, appellant states: “As was pointed out in defendant’s origjp.q.1 brief, the question of the relationship of plaintiff and defendant after the indorsement was placed on the stock certificate, whether stockholder and corporation or debtor and creditor, is the only question in the case”; and we shall so regard it.

At the time in question, Cahill’s St. ch. 32, If 386 (ch. 32, Smith-Hurd E. S. 1931) provided that when such shares matured, “with the consent of the directors, there may be issued in lieu of such shares, matured stock certificates upon which the interest to be paid shall not exceed the actual net earnings of the association, payable at such times and in such manner as may be expressed in said certificate. ’ ’

Appellant insists that in view of such statute, it is immaterial that the indorsement provided for a straight rate of interest, with no provision limiting the interest to be paid out of the net earnings, as the section requires. Whether appellant was authorized to bind itself, by such indorsement, is not before us for consideration, as the want of power to so act, or, in other words, that same was ultra vires the powers of the association, could only be availed of by appellant’s specially pleading such as a defense. Lake Street El. R. Co. v. Carmichael, 184 Ill. 348, 351, affirming 82 Ill. App. 344; McLean Co. v. Sidebottom, 277 Mass. 158, 178 N. E. 284; Dyer v. Broadway Central Bank, 252 N. Y. 430, 169 N. E. 635; Blackwood v. Lansing Chamber of Commerce, 178 Mich. 321, 144 N. W. 823; City of Williston v. Ludowese, 53 N. D. 797, 208 N. W. 82; Chicago Pneumatic Tool Co. v. Munsell, 107 Ill. App. 344. No such plea having been filed, no issue thereon was raised, and the power to so act cannot be questioned.

Appellee, by replication, set up a contract of borrowing of said sum by appellant, acting through its secretary; asserting that thereby the relationship of stockholder and corporation ceased, and that of debtor and creditor was created. No rejoinder was filed to the replication, nor was the want of authority of appellant to enter into such contract, raised by any appropriate pleading. As we have seen, such act, if ultra vires, should have been specially pleaded in order to raise the question as a defense in the case. This was not done; hence, whether or not appellant had the power to enter into the contract, acting through its secretary, is not in issue.

Paragraph 2 of section 35 of the Civil Practice Act, Cahill’s St. ch. 110, If 163, provides that the allegation of the execution of any written instrument shall be deemed to be admitted, unless denied by a pleading verified by oath, or unless such verification is excused by the court. Section 52 of the former Practice Act contained a like requirement. Hence, regardless of which Practice Act governs the pleadings of the instant case, the effect is the same.

The replication averred that the written indorsement was the contract, and its execution was not denied by any verified pleading.

In City of Chicago v. Peck, 196 Ill. 260, where the authority of the mayor to enter into a written lease in the name of the city was called into question, and no verified plea denying its execution was filed, the court said, on page 262: “Where an instrument purports to be executed by an agent, the authority of the agent is a material part of the execution, and to admit the execution is to admit all the essentials to the execution. To require proof of the execution is to require proof of the authority to execute the instrument, and if the execution is denied by a verified plea, the authority of the agent constitutes an essential part of the plaintiff’s proof. A corporation necessarily acts by its ag'ents, and if the execution of the instrument is not denied by verified plea, it is not necessary to prove the authority of the agent. Delahay v. Clement, 2 Scam. 575. The failure to deny the execution of the lease by verified plea was an admission that it was executed by the city, necessarily including the fact that the mayor, acting for the city, had authority to execute it. It was not error to admit the lease in evidence without proof of its execution or of the authority of the mayor to execute it.” And to the same effect are Schuyler County v. Missouri Bridge & Iron Co., 256 Ill. 348, and Walsh v. Marvel, 130 Ill. App. 305, 307, 308.

The written contract of indorsement was alleged to he the act of appellant, acting through its secretary, and not that of the secretary as an individual. If the secretary had no authority to so execute, then no such contract was entered into by appellant. Hence, to dispute the authority of the agent to so act involved the execution of the contract, which could only be questioned by a verified pleading denying such execution. Same was not so pleaded, nor was it excused by the court; therefore appellant, under the statute, has admitted that the secretary had authority to execute the contract of indorsement, in the name of, and for, appellant. If the latter had wished to raise the defense that the directors had not conferred power upon the secretary to enter into such contract of borrowing, it should have pleaded such fact, as the statute requires.

The testimony of the secretary was to the effect that when such certificates matured, it was the custom and practice of appellant, with the knowledge of the directors, and acquiesced in by them, to make indorsements thereon, as was done in the case of appellee; that interest was paid thereon, and in some instances payments were made on the principal sum represented by the certificate; that, at times, notes were executed by appellant, to order of the holders of the certificates, as in the case of the Citizens State Bank aggregating $11,000, to H. V. Ferrell in the sum of $763.20, and to Leo Baker for $1,000, the notes being signed by the president and secretary, and those just mentioned being executed in 1927, about or near the time of the transaction with appellee.

That appellee desired a note, or its equivalent, and was told by the secretary that the indorsement amounted to such, is evident from the proof. Nor can it be seriously doubted that had appellee insisted upon a formal note being given him, appellant would have executed same; as evidenced by the giving of notes to others, similarly situated, about this time. Appellee no doubt believed the indorsement was what the secretary told him it was, — the same as a note.

It is claimed that appellee is precluded from claiming such to be the case by the fact that in 1931 he attended a stockholders ’ meeting, held for the purpose of considering the voluntary liquidation of appellant; that at such meeting, the number of shares owned by each stockholder was read off; that the shares represented by the certificate in question were contained in the number credited to appellee, and read off at the time, and that the latter made no objection thereto.

We do not so understand the evidence. Gordon Pillow, who at the time was secretary, testified that appellee was present; that “he was mumbling something.” “I understood him to say, ‘I want my money.’ ” This certainly does not prove that he regarded himself as still a stockholder, but on the contrary indicates that he understood he was a creditor who wished to be paid. It is not likely that appellee, for the reasons mentioned, fully understood the purport of the meeting, but was present for the purpose of demanding his money.

We think the jury were warranted in finding that the evidence established that the transaction between appellee and appellant, acting through the secretary, Kenshalo, was understood by both to be a loan to appellant of the moneys represented by the certificate, drawing interest, and payable on demand. Kenshalo testified that the association did not have the money to pay it, and was willing to give some kind of security therefor, and to pay interest.

If appellee were to remain a stockholder, why give him security? He would not he entitled to same, and no reason existed for so doing. The giving of security, as universally understood, is to insure the payment of a debt, or the performance of an act, and in a situation such as this, can only mean that a debt exists; hence, it is obvious that the secretary understood, as did appellee, that he had ceased to be a stockholder, and had become a creditor. Nor did the retention of the certificate carry with it, necessarily, a contrary inference. Appellant was not observing the statute, or its by-laws, in dealing with the holders of , matured stock, and appellee, unlearned in business matters, was justified in trusting to the word of the secretary that the indorsement was the same as a note.

Moreover, appellant did not file a motion for a new trial; hence cannot question the sufficiency of the evidence to sustain the verdict. Armour v. Pennsylvania R. Co., 353 Ill. 575; Yarber v. Chicago & Alton Ry. Co., 235 Ill. 589; People v. Moritz, 238 Ill. 494; Law v. Fletcher, 84 Ill. 45.

It is contended that the court erred in denying appellant’s motion for a directed verdict, made at the close of all the evidence. As previously stated, we think there was ample proof tending to sustain appellee’s case, and where this is true, such a motion must be overruled; as said in Libby, McNeill & Libby v. Cook, 222 Ill. 206, 212: “If, however, there is in the record any evidence from which, if it stood alone, the jury could, ‘without acting unreasonably in the eye of the law, ’ find that all the material averments of the declaration had been proven, then the cause should be submitted to the jury.” We are of opinion that the motion was properly denied.

Appellant insists that the court erred in failing to incorporate in its charge certain suggestions made by it. No specific reason is assigned, nor is any argu-

ment made, as to why the court erred in refusing any one of the suggestions. It appears to be the settled law of this State that alleged errors of instructions, given or refused, will not be considered on appeal, where the appellant fails to point out in his brief in what respect there was error. Spring Valley Coal Co. v. Buzis, 213 Ill. 341; Jacksonville & St. L. Ry. Co. v. Wilhite, 209 Ill. 84; Metropolitan Nat. Bank v. Merchants’ Nat. Bank, 182 Ill. 367. In Razor v. Razor, 142 Ill. 375, the rule is declared to be that a general objection to the giving or refusal of instructions, without pointing out any specific error, will not be considered on appeal. It is not the duty of a court of review to search out errors in the record, upon which to base its judgment. There is nothing for us to consider in this regard.

It is also urged that the court erred in giving to the jury the fifth paragraph of the charge. The judgment was entered on May 5, 1934, hence the trial and appellate procedure is governed by the Civil Practice Act, section 67 of which provides that a copy of the court’s charge shall be given to each party prior to the arguments to the jury, and each party may make objection to the same, or any part thereof, which objections shall be specific, and if not made before the jury retires from the bar, shall be deemed to have been waived. The abstract does not disclose that appellant objected to any portion of the charge as given, hence any objections it might have made thereto are waived, and cannot be raised, for the first time, on appeal.

We have considered the record with care, and are constrained to hold that no sufficient reason is shown why the judgment should be reversed. It will accordingly be affirmed.

Affirmed.


author: Mr. Presiding Justice

text:
    Ollie Collins et al., Appellees, v. Cosgrove-Meehan Coal Company, Appellant.
    Opinion filed January 4, 1935.
    Rehearing denied February 25, 1935.
    Warder & Zimmerman, for appellant.

      J. Boy Browning, of Chicago, for appellees; Harold E. Bailey, of Chicago, of counsel.
   Mr. Presiding Justice

Edwards delivered the opinion of the court.

Appellees recovered a verdict and judgment against appellant, amounting to $1,000, in the circuit court of Williamson county, for damages alleged to have been sustained through the overflow water from the coal mine of the latter, over the farm lands of the former.

It appears that appellant, in 1930, began pumping water from its mine into a ditch which flowed through appellees’ farm; that the ditch, due to a sediment in the mine water, became filled, and the water overflowed the banks and filled a depression caused by a subsidence of the earth, due to mining beneath, to a depth of about three feet; that this pond, thus formed, covered three and one-half acres; that when heavy rains came, it caused the flooded area to reach out until it covered in the neighborhood of five acres; that the water was charged with mineral settlings, and was known as copperas water; that the effect of such water was to kill the vegetation, and that when it evaporated it would leave a white sediment resembling salt upon the surface of the land.

In 1931, appellees brought suit for damages, and in 1933 the cause was tried, with the result before mentioned.

In 1926, appellee, Ollie Collins, who was the mother of the other appellees, gave appellant a written consent to flow its mine water into the ditch, provided such water was to be confined to the channel of the natural watercourse. Appellant was also therein given authority to enter the land for the purpose of deepening and defining the channel, as might be necessary in order that the water should be confined therein, and not overflow the adjoining ground. It appears that appellant failed to keep the channel clear, with the resultant overflow and consequent damage.

The trial court permitted appellees to make proof of the market value of the land that actually overflowed, as well as the whole 40-acre tract constituting the farm, both before the overflow and also thereafter, on the theory that a permanent injury was shown, and that appellees would be- entitled to recover therefor the amount of the depreciation in the value of the land, resulting from such overflow. Appellant objected to this testimony, as not the proper measure of damages, and the court’s ruling thereon is the principal ground urged for a reversal of the judgment.

The competency of such testimony as to damages is dependent upon whether the injury sustained was temporary or permanent; the rule being: “If a private structure or other work on land is the cause of a nuisance or other tort to the plaintiff, the law will not regard it as permanent, no matter with what intention it was built, and damages can therefore be recovered only to the date of the action. But in the case of permanent injury caused by lawful public structures properly constructed and permanent in their character, damages may be allowed for the whole injury, past and prospective.” Schlitz Brewing Co. v. Compton, 142 Ill. 511; Fairbank Co. v. Bahre, 213 Ill. 636.

In Canteen Hunting & Fishing Ass’n v. Schwartz, 128 Ill. App. 224, this court held that in cases of permanent injury to land or other realty, the true measure of damages is the depreciation in value of the land, arising from the injury, together with any special items of damages which may be shown; while in instances of temporary nuisance or tort, resulting in detriment to the landowner, the right of recovery is continuing, a cause of action arising upon each recurrence of the injury, for the particular damages occasioned as a consequence, until the cessation of the nuisance, but that depreciation of the market value of the premises is not a proper item of damage, it not being presumed that the illegal act will continue perpetually, and that the continuing right to sue for each recurring injury compensates for the damages sustained, as long as it may continue.

To apply the rule, it is necessary to consider the proof, to determine whether the injury sustained was permanent or temporary. Appellees insist that the testimony shows the chemically and minerally laden water from the mine so poisoned the soil that it was rendered unproductive and valueless, and would thus continue for so long a period of time as to amount to practical irremediability; hence it was a permanent injury. If the evidence justifies such conclusion, appellees were entitled to make the proof allowed by the trial court, as ruled by this court in Vogler v. Chicago & Carterville Coal Co., 180 Ill. App. 51.

The evidence bearing upon the question of permanent impairment of the fertility and productiveness of the soil, resultant from such overflowage, is the testimony of three witnesses. Bob Richmond stated that the mine water destroyed the vegetation; that after it ceased flowing over the land, the soil would after a time regain its fertility, but that same would not result before two or three years.

Ed Thome testified that he had never known of land, overflowed by mine water, that' was any good; that he had known one piece for 15 years, and the vegetation consisted of cat-tails; that he would not say the land could not be made again productive.

It will be observed that Thome’s testimony is indefinite and vague. It does not appear from his statements that any of the overflowed land which he observed had been made the object of any effort to recultivate when the water subsided. For aught that appears, it may have been permitted to lie idle and fallow, with no attempt to restore its productivity.

Charles Iken was called as a witness and testified that he had seen such lands, for 14 years, with nothing but cat-tails growing upon them, and that timber and trees thereon would die. It does not appear whether his testimony related to the condition of the land while covered by mine water, or afterwards; furthermore, he did not state any opinion as to whether the land, when free of the water, would regain its fertility, or could be made productive by proper husbandry.

The evidence bearing upon the question of the permanency of the injury to the soil lacked in definiteness to establish that its condition, after the subsidence of the water, would be one of practical irremediability. For all that is shown by the proof, the land might with proper care and attention, as testified to by Richmond, regain its productive qualities after the lapse of two or three years, and if so it certainly was not permanently injured.

It may be, as a fact, that appellees’ land has sustained an injury permanent in its nature, but such is not established by the evidence, and the burden was upon them to make such proof. Upon this record it is our conclusion that the proof does not establish that the overflow inflicted a permanent injury; hence we are of opinion that the court should not have permitted appellees to offer evidence of permanent damages concerning depreciation in the value of the land. Vogler v. Chicago & Carterville Coal Co., supra.

Appellant states that the case should be reversed without remanding, for the reason that Ollie Collins is not entitled to recover by reason of her written permit to appellant to pump water into the ditch, and that her children have no cause of action.

With this we do not agree; and inasmuch as appellees, upon a retrial of the cause, may make further, additional or more certain proof as to the permanency of the injury to the soil, or, if not able so to do, may offer proof as to the damages actually sustained up to the commencement of the suit, as for a temporary injury, the cause will be remanded for a new trial.

Reversed and remanded,