text:
    Clarence Scherb, Appellant, v. Randolph Wells Auto Park, Inc., Appellee.
    Gen. No. 40,586.

      Opinion filed October 3, 1939.
    Arthur W. Klein, of Chicago, for appellant; John O. Wilkinson and Joseph Harrow, both of Chicago, of counsel.
    Saimuel J. Winograd, of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In an action on contract of bailment for the negligent loss of an Oldsmobile.automobile stored with defendant in its parking station at 208 West Randolph street, Chicago, on December 11, 1935, and upon trial by jury, at the close of the evidence the defendant made a motion for an instruction in its favor, which was reserved. The cause was submitted to the jury, which returned a verdict for plaintiff in the sum of $700. Defendant then made a motion for judgment notwithstanding the verdict which was allowed by the court. Plaintiff’s motions for a new trial and in arrest were denied, and judgment entered for defendant, from which plaintiff appeals.

There is practically no conflict in the evidence, which shows defendant was, at the time in question, conducting- a parking station for the storage of automobiles, at Randolph and Wells streets in Chicago; that on December 11, 1935, plaintiff delivered his automobile to the servants of defendant, then in possession of and conducting the parking station; that after attending the theater with his family on the same evening he called at defendant’s parking station for his automobile and presented the ticket which had been delivered to him acknowledging the receipt of it; that neither the servants themselves nor they with the assistance of plaintiff and members of his family could find the automobile; that defendant called the police, who took one of defendant’s servants to the police station; that on January 6, 1936, thereafter the automobile was found in possession of a thief, who was not an employee of defendant. There was no explanation of how the automobile was taken out of defendant’s place of business, but defendant’s description of the parking lot indicates that it must have been by one of the driveways passing defendant’s office.

The record shows the court was of opinion that since the evidence showed the auto was stolen from the parking station by some person other than an employee of defendant, and since there was evidence tending to show that defendant used some care in selecting its employees, defendant was not liable under the law, as stated in Rhodes v. Warsawsky, 242 Ill. App. 101, and other similar cases. In Clemenson v. Whitney, 238 Ill. App. 308 (opinion by Mr. Justice Thomson) the court reviewed the Illinois authorities from Cumins v. Wood, 44 Ill. 416. The opinion states: “Of course the burden of proof is on the plaintiff to prove his or her case, and it remains there throughout the trial and never shifts to the defendant. That is true on the issue of negligence in a bailment case. But when the plaintiff has made out a prima facie case, as is done in a bailment case merely by showing delivery of the bailed goods to the bailee and failure of the latter to return them on demand or delivery in a damaged condition, then the burden of proceeding with the evidence falls on the defendant and remains there until the plaintiff’s prima facie case is overcome. The real question is, what must the defendant show, in order to overcome the prima facie case of negligence made out by the plaintiff? Is it sufficient to show the bare fact that the bailed articles have been burned up or stolen while in the bailee’s possession? Obviously not. They may have been lost in either of those ways by reason of the gross negligence of the bailee himself or his servants. If the bailed articles have been burned up or stolen while in the bailee’s possession, the prima facie case made out by the plaintiff’s proof that the bailee has failed to return the articles upon demand is not met or overcome unless the bailee shows that the fire or robbery was not due to his carelessness or that he has exercised the degree of care called for by the nature of the bailment. The reasons for that rule are clearly set forth by our Supreme Court in the Cumins case and we have already quoted them. ’ ’

Thereafter, this court granted a certificate of importance in the case of Byalos v. Matheson, 243 Ill. App. 60, the certificate stating that there was diversity of opinion among the different Appellate Courts on the question of on whom lay the burden of proof where suit was brought by a bailor against the bailee for failure to return the bailed article when the defendant interposed as a defense that the goods had been lost, stolen or destroyed by fire. In its opinion the Supreme Court said, 328 Ill. 269: “In the early case of Cumins v. Wood, 44 Ill. 416, the court held that where the bailor shows he has stored goods in good condition with the bailee and they were returned to him damaged or not returned at all, the law presumes negligence of the bailee unless he shows the loss did not result from his negligence. (Schaefer v. Safety Deposit Co., 281 Ill. 43; Miles v. International Hotel Co., 289 id. 320.) ” That rule has been followed by the Supreme and Appellate Courts in later cases. Lederer v. Railway Terminal & Warehouse Co., 346 Ill. 140; Till v. Material Service Corp., 288 Ill. App. 103, and Lindor v. Burns, 292 Ill. App. 201.

It is well settled that upon a motion for judgment notwithstanding the verdict, under the Civil Practice Act, Ill. Rev. Stat. 1939, ch. 110, § 68, ¶ 192, subpar. 3a [Jones Ill. Stats. Ann. 104.068], the trial court has no authority to weigh and determine controverted questions of fact; that in the consideration of such a motion the court is governed by the rules applicable to a motion for a directed verdict. Capelle v. Chicago, N. W. R. Co., 280 Ill. App. 471; Illinois Tuberculosis Ass’n v. Springfield Marine Bank, 282 Ill. App. 14, and Emge v. Illinois Central R. Co., 297 Ill. App. 344. The question presented by such a motion is whether there is any evidence to sustain plaintiff’s case, and plaintiff is entitled to the benefit of all the facts the evidence tends to prove and all just inferences that can be drawn therefrom most favorable to his case. Libby, McNeill & Libby v. Cook, 222 Ill. 206; Blumb v. Getz, 366 Ill. 273. Upon such a motion the plaintiff is not limited to his own evidence. He is entitled to the benefit of all evidence favorable to him, whether produced by him or by the defendant. Math v. Chicago City Ry. Co., 243 Ill. 114.

We hold that under the evidence in this case the question of defendant’s negligence was for the jury and that the court ought not to have decided this issue of fact as a matter of law. Styburski v. Riverview Park Co., 298 Ill. App. 1; Roberts v. Economy Cabs, Inc., 285 Ill. App. 424.

Complaint is made as to the evidence tending to prove damages. The evidence shows that the car was a new Oldsmobile; that it cost plaintiff $1,050, was a 4-door, 5 passenger sedan; that it was purchased in June prior to its loss, and that it had run about 5,000 miles. The evidence also shows that when the car was found it was completely demolished, the entire top gone, both front wheels smashed in and all the glass broken. The car was towed in and plaintiff received for it in trade for a new car $50. There was also expert evidence as to the value of the auto when found. This was sufficient.

It would serve no useful purpose to discuss all the cases cited in the briefs. The law on this subject is well settled and clearly stated in the authorities. The evidence abundantly justified the verdict, and it was error for the court to enter judgment for defendant notwithstanding. The judgment is therefore reversed and the cause remanded with directions to enter judgment on the verdict for plaintiff.

Reversed and remanded with directions.

McSurely and O’Connor, JJ., concur.


source: Caselaw Access Project

author:
Mr. Presiding Justice Matchett
      Mr. Justice O’Connor

license: Public Domain

text:
    Northwestern Yeast Company, Appellee, v. City of Chicago, Appellant.
    Gen. No. 40,625.
    O’Connor, J., dissenting.
    Opinion filed October 3, 1939.

      Barnet Hodes, Corporation Counsel, for appellant; Joseph F. Grossman, First Assistant Corporation Counsel, and J. Herzl Segal, Assistant Corporation Counsel, of counsel.
    Poppenhusen, Johnston, Thompson & Raymond and Aaron Soble, all of Chicago, for appellee; Max Chill and Jerome S. Klein, both of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

City of Chicago appeals from a judgment entered on the finding of the court. The pleadings disclose that the action was brought for interest claimed to be due upon a judgment obtained by the owners in an action brought by the City to appropriate certain premises under the Local Improvements Act [Ill. Rev. Stat. 1937, ch. 24, § 698 et seq.; Jones Ill. Stats. Ann. 76.003 et seq.]; that the judgment was obtained July 26, 1927, and after allowing for benefits was for the net amount of $231,737; that on September 27, 1930, defendant paid to plaintiff by check $231,737, being the net award, and plaintiff at the same time conveyed the condemned premises to defendant by deed; that interest at 5 per cent from July 26, 1927, to September 27, 1930, amounts to $36,723.88, for which amount judgment was entered against the City in this action.

The pleadings disclose only one issue of fact, in this, that plaintiff claims that on September 27, 1930, when the City paid the judgment rendered in the condemnation proceeding, it protested because of nonpayment of interest, while the City contends the payment was received without protest. On this issue the court took evidence and found for the City. Plaintiff contends this finding is against the clear preponderance of the evidence.' Three witnesses testified for plaintiff, one for defendant, on this issue. The testimony of two of plaintiff’s witnesses is quite indefinite and uncertain. One witness, the general superintendent of plaintiff, who was present when the payment was made, asked by the court what the attorney for plaintiff said to the representative of the City, replied, “We thought we were entitled to interest. He said, the City doesn’t pay interest. We said we would accept it as it is. As it ivas.” Another witness for plaintiff was one of its attorneys, who withdrew his appearance as attorney before testifying. He testified positively to a protest against nonpayment of interest but in the course of his cross-examination said that the decision in Turk v. City of Chicago, 352 Ill. 171 (the first case in which the Supreme Court held that judgments rendered under section 32 of the Local Improvements Act would draw interest) was handed down a few years after the settlement was made. The Turk case, 264 Ill. App. 619 (Abst.), was decided in this court December 28, 1931, and followed 10 similar cases decided by this court June 30, 1930. University of Chicago v. City of Chicago, 258 Ill. App. 189. On the other hand, the supervisor of condemnation awards for the City, who made payment in its behalf, states positively that there was no conversation relative to a claim for interest at the time the voucher was signed and the check delivered to plaintiff. The transaction occurred September 27, 1930. This suit was not begun until May 21, 1935. The voucher, indorsed by plaintiff, does not indicate that the matter of interest was under consideration. The trial judge saw and heard the witnesses. We cannot say that his finding of fact is clearly and manifestly against the weight of the evidence.

However, assuming no formal protest was made, we agree Avith the trial judge that, as a matter of law, the issue of fact made was immaterial. The question of whether judgments in condemnation proceedings under the Local Improvements Act, as provided for in section 32 thereof, draw interest has been the subject of much litigation in the courts during recent years. This court granted a certificate of importance in the Turk case (University of Chicago v. City of Chicago, 258 Ill. App. 189) and the Supreme Court upon a rehearing granted affirmed the judgment of this court in Turk v. City of Chicago, 352 Ill. 171. The opinion reviews at length the Illinois cases, and holds that a judgment rendered pursuant to section 32 of the Local Improvements Act is a quod recuperet judgment to which section 3 of the Interest Act is applicable, and that the owner may recover interest even though the defendant is a municipality. It was argued the Supreme Court was committed to the rule that the Interest Act allowed interest in such condemnation cases only after possession had been taken.. The Supreme Court said that such a judgment bore interest by virtue of the statute, and that cases holding possession must first be taken were not applicable. To the same effect is the later case of Blaine v. City of Chicago, 366 Ill. 341.

In Feldman v. City of Chicago, 276 Ill. App. 142, the question was whether the interest on such a judgment could be collected after the judgment itself had been paid. This court, relying on Davis v. Harrington, 160 Mass. 278, and similar cases in many jurisdictions (all of which are cited in the opinion), held that interest on such a judgment was awarded as damages for delay in the payment of the award, was merely incidental to the debt, and that where the principal had been paid without interest the right to collect interest was lost, even though the payment was accepted under protest. In conformity with this view this court reversed the judgment of the municipal court of Chicag’o. Appeal was allowed by the Supreme Court and in 363 Ill. 247, the judgment of this court was reversed and that of the municipal court affirmed. The Supreme Court said (p. 254):

“The decision of the Appellate Court that the city was not liable for interest in this case was based largely upon an ingenious argument of counsel, repeated here, that when the owners accepted payment of the principal of the judgment they abandoned whatever claim they might have had to interest. This argument, however, finds no support either in the admitted facts before us, in the provisions of the statutes or in the decisions of this court. It ignores the essential fact that here the interest is purely statutory, and arises neither from an agreement, express or implied, nor by way of damages or penalty for delay in payment of the principal. None of the necessary elements of accord and satisfaction exist here, as the claim was for a sum certain, the amount was not in dispute, and there was no offer to pay or accept less than the judgment in full settlement. On the contrary, it is conceded that when the city paid the judgment the owners then demanded interest and accepted under protest the payment of the judgment without interest. Under these circumstances there was no waiver of the interest.”

In the later case of People v. Kelly, 368 Ill. 164, the Supreme Court held that the question of whether the City might set off the beneficial use of the property against the claim for interest on the judgment did not raise a constitutional question for the reason (quoting from the Turk case) that “it [the argument] ignores the essential fact that here the interest is purely statutory, and arises neither from an agreement, express or implied, nor by way of damages or penalty for delay in payment of the principal.” The opinion again cites the Turk and Feldman cases with Blaine v. City of Chicago, 366 Ill. 341, and Kamberos v. City of Chicago, 366 Ill. 471.

In People ex rel. Wieboldt Stores, Inc. v. City of Chicago, 368 Ill. 421, there was for the first time presented to the Supreme Court the question of whether the City could set off against a claim for interest the value of the beneficial use of the property by the judgment creditor who was allowed to remain in possession. That proceeding was by way of mandamus against the City to compel the payment of a judgment with interest, and the Supreme Court, reversing this court, held that the City could not set off such beneficial use of the property against the claim for interest, saying in its opinion: “No purpose would be served in further discussing these cases from foreign jurisdictions.”

In Blakeslee’s Storage Warehouses, Inc. v. City of Chicago, 369 Ill. 480, the Supreme Court again held that the recovery of interest, except when contracted for, found its only authority in the statute, and that if the owner of a judgment was entitled to interest on it, it was not by virtue of the judgment rendered in the judicial proceeding but arose solely under the provisions of the statute. The court said that interest was not recoverable on interest and that if the plaintiff was entitled to recover interest at all, it was only on the amount of the judgment from the date the judgment was entered until the date it was paid. It said (p. 484):

“The right to interest under the statute on a condemnation judgment is well settled. (Blaine v. City of Chicago, supra; Feldman v. City of Chicago, supra; Turk v. City of Chicago, supra; Girard Trust Co. v. United States, 270 U. S. 163, 70 L. Ed. 524.) . . . The claim is for interest which is solely of statutory origin.”

In that case the Statute of Limitations was pleaded and the court held that the 20-year limitation allowed for bringing suit upon a judgment was not applicable to an action for interest because the action was not upon the judgment, which had been paid. The court therefore held that the claim was barred by section 15 of the limitations statute.

In this case the City again insists that the claim of plaintiff to interest on the judgment was an incident of the principal and was extinguished, as a matter of law, when the principal was paid and accepted as full payment of plaintiff’s claim for compensation without protest or reservation of right to interest. It again cites Davis v. Harrington, 160 Mass. 278, 35 N. E. 771, with numerous cases from other jurisdictions which follow that decision. It would serve no useful purpose to again review all these cases.

Feldman v. City of Chicago, 363 Ill. 247, is on all fours with this ease except that here there is a finding of fact that no protest was made by plaintiff at the time the judgment was paid. Upon what legal theory this fact is material the briefs of the City do not advise. It is not argued that the Statute of Limitations is applicable, nor is it suggested that there are any facts which (assuming no protest was made) would amount to an estoppel as against plaintiff. There was no element of a novation present nor of accord and satisfaction, and no consideration therefor. There is a suggestion that by failing to protest plaintiff waived its claim. Defendant’s arguments are not consistent as to this. On the question of the issue of fact it is argued that plaintiff’s attorney did not protest because the Turk case had not been decided at the time the judgment was paid. But conceding this to be true, plaintiff could not waive a right of which it did not have knowledge, for waiver is an intentional relinquishment of a known right. Plaintiff could not have the intention to waive a right of which it had no knowledge. First Lutheran Church of Pontiac v. Rooks Creek Evangelical Lutheran Church, 316 Ill. 196; Feldman v. City of Chicago, 363 Ill. 247. We hold the mere failure of plaintiff to protest that interest was not included at the time the judgment was paid did not amount to a waiver, to a novation, to an accord and satisfaction, or to a gift.

The judgment is justified under the law and is affirmed.

Affirmed.

McStjrely, J., concurs.

Mr. Justice O’Connor

dissenting: The learned trial judge found at the time of the payment by defendant to plaintiff of the amount of the judgment plaintiff made no protest. The last expression of our Supreme Court on the nature of interest on a condemnation judgment, etc., is found in Blakeslee’s Storage Warehouses, Inc. v. City of Chicago, 369 Ill. 480. In that case suit was brought to recover interest on the amount of the judgment awarded in a condemnation proceeding. The suit was not brought until more than five years after the judgment was paid and the Supreme Court held the five-year Statute of Limitations barred the action. In that case the Supreme Court considered the nature of a judgment entered in a condemnation suit and section 3 of our Interest Act [Ill. Rev. Stat. 1937, ch. 74, par. 3; Jones Ill. Stats. Ann. 67.03], which provides that all judgments shall draw interest at the rate of 5 per cent from the date of entry until satisfied, and held that such judgments draw interest under that statute; and continuing said (p. 483): “On the other hand, the right to interest apart from contract, such an interest on a judgment, does not emanate from the controversy, or from the judgment, or from anything of a judicial nature. At common law, interest could be recovered in no case except where there was an express agreement therefor. Because of losses occasioned by delay in the payment of final judgments the legislature provided a remedy for such logses by way of interest thereon as fair compensation for such delays. The remedy is found in section 3 of the Interest act. The recovery of interest in this State, not contracted for, finds its only authority in the statute. It is purely statutory. Blaine v. City of Chicago, supra; Feldman v. City of Chicago, 363 Ill. 247; Turk v. City of Chicago, 352 id. 171.” The court then discusses section 3 of our Interest Act and refers to opinions of the Supreme Court; and continuing said (p. 484): “It is obvious that at the time the judgment was entered there was no interest due. Hence, the subsequently accruing interest, recoverable by virtue of the statute, could not be a part of the judgment when it was entered. . . . The conclusion is inescapable that interest on a judgment is not a part of it. ’ ’

The holding in the Blakeslee case followed what was said by our Supreme Court in People ex rel. Wieboldt Stores, Inc. v. City of Chicago, 368 Ill. 421, where the court approved the case of Whitman v. City of Providence, 44 R. I. 33, saying (p. 423): “It was there held that title to the land passed to the City when the final judgment was entered, and that interest was given, not as a part of the damages for the taking, but to indemnify the property owner for the detention of money rightfully due him.”

In the Wieboldt case the court held that the interest statute applied to condemnation judgments and that interest was to be paid the property owner so that he would receive fair compensation for delay in payment of the judgment.

In the instant case, the interest being no part of the judgment (following the rule announced by the Supreme Court in the Blakeslee case, that its allowance is authorized by section 3 of the Interest Act to compensate the property owner for the delay in payment of the condemnation judgment) and plaintiff having accepted without protest the amount of the judgment, his right to interest was gone. Stewart v. Barnes, 153 U. S. 456, 38 L. Ed. 781, 14 Sup. Ct. 849; Davis v. Harrington, 160 Mass. 278; Bassick Gold Mine Co. v. Beardsley, 49 Col. 275; Pacific R. R. Co. v. United States, 158 U. S. 118, 39 L. Ed. 918, 15 Sup. Ct. 766; Cutter v. Mayor of New York, 92 N. Y. 166; King v. Phillips, 95 N. C. 245.

The rule announced in the above cases is well stated by the highest court of Massachusetts in the Davis case (160 Mass. 278) where it is said: “But interest which is allowed by way of damages and for the neglect to pay promptly is a mere incident of the debt, which falls when the debt itself is extinguished. It is well settled that in such a case, if the debt is paid, there can be no recovery afterward for the interest which might have been collected. ’ ’


author: Mr. Presiding Justice Matchett

text:
    C. W. Kent, Trading as Consumers Co-Operative Sales, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 40,704.

      Opinion filed October 3, 1939.
    Rehearing denied October 18, 1939.
    Thomas J. Courtney, State’s Attorney of Cook County, pro se; Barnet Hodes, Corporation Counsel, for appellants; Jacob Shamberg, Assistant State’s Attorney, and Charles P. Horan, Assistant Corporation Counsel, of counsel.
    Ditchburne & Lounsbury, of Chicago, for appellee; Charles E. Lounsbury and Philip H. Kelley, both of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

November 23,1938, plaintiff, Kent, doing business as Consumers Co-operative Sales, filed his bill in equity against Edward J. Kelly, Mayor, Allman, Superintendent of Police, and Courtney, State’s Attorney, praying an injunction temporarily pending the suit and permanently upon the hearing, restraining defendants from interfering with plaintiff in the business conducted by him, by causing plaintiff or his employees to be arrested or by seizing his books and records, and for other relief. The bill was duly verified. Plaintiff’s motion for a temporary injunction was referred to a master to take the evidence and report his conclusions of law and fact and recommendations as to the temporary injunction within a short day.

The master filed his report February 10, 1939, finding plaintiff had proved the allegations of his complaint and was entitled to an injunction. Objections of defendants to the report of the master having been overruled stood as exceptions and were overruled by the chancellor and an injunction issued. This appeal followed.

The City and State officials contend the scheme adopted by plaintiff in carrying on his business is a lottery, and a court of equity without authority to enjoin defendants from enforcing the law against it. Plaintiff contends the business is not illegal and that the court properly ordered the injunction.

In support of the injunction plaintiff invokes the rule that the purpose of a temporary injunction is to maintain the status quo pending a final determination of the cause on the merits, and this, it is said, is all that was accomplished by this injunction. It was not, it is urged, necessary to its issuance that the court should find the business of plaintiff as conducted by him was legal, but only that there was doubt as to plaintiff’s right to have the injunction. A large number of cases so holding under the circumstances appearing are cited.

The rule is not applicable to this record. This case was not considered on the well pleaded averments of the bill alone. The cause, as already stated, was referred to a master who took the evidence and reported his conclusions of fact and law. An examination of the report shows that the inquiry was not limited to the question of whether the status should be maintained; but on the contrary, the cause was considered on its merits. We therefore are not limited in our review of this record. The controlling question is whether the business of plaintiff is illegal. If it is, then the court was without power to enjoin the enforcement of the criminal law. The reason for that rule is not, as plaintiff supposes, based upon any distinction between powers of courts of law as distinguished from courts of equity. The fundamental reason for the rule is that the prosecution of a criminal case is carried on in the name of the People of the State. Article IV, sec. 26 [Jones Ill. Stats. Ann. vol. 1, p. 326], of the Constitution provides that the State may not be made a party defendant to any action at law or in equity. Where the suit is in effect to enjoin the State the court is ordinarily without power to issue an injunction. (Chicago Public Stock Exchange v. McClaughry, 148 Ill. 372.) There are exceptions recognized in this and other States. These are, first, when property rights are invaded under color of statutes which are in fact unconstitutional, the prosecution by the public authorities of a claim under the unconstitutional statute is fundamentally without authority and may be enjoined; second, if officers in the enforcement of the law act wholly outside their authority they may upon a proper showing of irreparable injury be enjoined. (Hagan v. McAdoo, 113 App. Div. 506, 99 N. Y. Supp. 255; McGorie v. McAdoo, 113 App. Div. 271, 99 N. Y. Supp. 47; Olms v. Bingham, 116 App. Div. 804, 101 N. Y. Supp. 1106; Fairmont Athletic Club of Greater New York v. Bingham, 61 Misc. 419, 113 N. Y. Supp. 905; Burns v. McAdoo, 113 App. Div. 165, 99 N. Y. Supp. 51.)

The controlling question upon this appeal therefore is whether the business conducted by plaintiff is illegal. If it is, officers of the law should not be enjoined from enforcing the law.

Plaintiff points out that prior to the bringing of this action two cases were filed against plaintiff and warrants issued; that in each case after trial by a judge of the municipal court, plaintiff was found not guilty. He contends this court should, therefore, hold the business conducted by him to be legal. These particular cases might properly be pleaded in bar of any action brought for the offenses charged in the respective complaints. But this is far from a determination that the business of plaintiff is in fact legal. The prosecution in those cases was in the name of the People. The People had no right of appeal or writ of error. The cases, therefore, did not authoritatively determine the legality of plaintiff’s business, and that is the real question here.

Defendant officials contend that the business of plaintiff is in fact a lottery. If so, it is contrary to the public policy of this State as expressed in the Constitution of 1848, to the effect that the Legislature should have no power to authorize lotteries for any purpose, continued and extended in the Constitution of 1870 to include “gift enterprises.” The statute of the State is, therefore, made pursuant to the mandate set forth in the fundamental law of the State, and the statute makes the operation of a business of the kind denounced by the Constitution a misdemeanor. Neither the Constitution nor the statute attempt to precisely define what a lottery is. The apparent intention was not to define except as particular cases should arise. In Iris Amusement Corp. v. Kelly, 366 Ill. 256, the Supreme Court suggested a possible definition might be a scheme for the distribution of prizes by lot or chance, and said that a lottery was composed of three elements — a chance, a prize and a price. There is, as all concede, an element of chance in every business and, indeed, in every human transaction. The controlling fact in the determination of whether a given scheme or business is a lottery is determined by the nature of the appeal which the business makes to secure the patronage of its customers. If the controlling inducement is the lure of an uncertain prize, then the business is a lottery.

The business of plaintiff is described by him as a promotional sales and advertising campaign. It is conducted at 330 South Wells street, Chicago. The scheme or method was designed by John W. Sprinkle, who has secured a copyright for it. Plaintiff operates under license from Mr. Sprinkle. In brief, it is this: Plaintiff has contracts with various proprietors of merchandising establishments whereby these proprietors agree to honor certain coupons contained in coupon books issued by plaintiff according to the terms set forth in the books. One of these terms is that the proprietors agree to allow the owner of the coupon a discount upon purchases of the proprietor’s goods to the extent of 10 per cent. These coupon books are sold by plaintiff to its customers for $3 a book upon the customer making written application therefor. Each application contains in a space provided therefor on the application the names and' addresses of nine persons who have previously purchased coupon books and signed applications agreeing to co-operate in the sale thereof and to participate in commissions thereby earned. These applications may be procured 'only from the person whose name appears in the ninth position, or someone acting for him. Upon the purchase of the coupon book and presentation of the application signed by a new applicant whose name becomes the tenth name thereon, the person whose name appears in the first position is paid a commission of % of the sales price of the book, or $1.50. The applicant then receives two additional applications containing nine names of previous applicants with their addresses. The name of the person whose name was in first position and who has received $1.50 being omitted, the second name is moved up to first position, the third to the second, the fourth to the third, etc., the new applicant’s name appearing in the ninth position. The new applicant agrees in his application that he will give these two applications to others who will execute the same and purchase discount books at $3 each. They each receive two new applications upon which their names appear in the ninth position and the previous applicant’s name in the eighth position. The bill avers: “The plan is based upon a mathematical progression whereby one sale will result in the delivery of two applications which in turn, when executed, will result in two sales and the delivery of four applications which, when executed, will result in four sales and the delivery of eight applications and so on until there have been 512 sales at which time the name of the original applicant will be in the first position on each of 512 applications and he will be entitled to receive a commission of $1.50 on each coupon book sold as a result of the execution of said 512 applications. It is not necessary, however, that the name of any one applicant appear in first position on all of said applications before said applicant is entitled to receive a commission but he receives the sum of $1.50 upon each coupon book sold as a result of the execution of any application upon which his name appears in first place irrespective of the position of his name on other applications.”

An identification number appears on each application. The applications are issued in duplicate. The original is delivered to the applicant upon his execution thereof and the copy is retained by plaintiff as a part of his permanent records. On each copy retained is indorsed the numbers of the new applications delivered to the applicant, so the plaintiff is able to ascertain at all times the names and addresses of all persons holding applications which have not been executed by others, and the plaintiff is able to ascertain the names and addresses of all applicants holding unexecuted applications upon which any particular applicant’s name appears. Plaintiff, on request, furnishes to any applicant a list of names and addresses of subsequent applicants holding unexecuted applications upon which his name appears. He is thus able to take steps to induce other applicants to transfer their applications to persons who will use them or to recover the applications and transfer them to others who will use the same and purchase the discount books. The printing on the application is in part as follows: ‘ ‘ Consumers Co-operative Sales. Save with Our Book of 3,200 One-Cent Discount Coupons. Gfood until used. Price $3.00. Subscribers Are Eligible to Receive Cash Commissions up to $768.00. Subject to Conditions Below.”

Section 180, par. 406, of the Criminal Code (see Ill. Rev. Stat. 1937, p. 1151 [Jones Ill. Stats. Ann. 37.354]), provides that whoever sets up or promotes any lottery for money, or by way of lottery disposes of any property of value, real or personal,1 ‘ or under pretense of a sale, gift or delivery of any other property, or any right, privilege or thing whatever, disposes of, or offers or attempts to dispose of any real or personal property with intent to make the disposal of such real or personal property dependent upon or connected with any chance by dice, lot, numbers, game, hazard or other gambling device, whereby such chance or device is made an additional inducement to the disposal or sale of said property, and whoever aids, either by printing or writing, or is in any way concerned in the setting up, managing or drawing of any such lottery, or in such disposal, or offer or attempt to dispose of property by any such chance or device, shall, for each offense, be fined not exceeding $2,000. ’ ’

Plaintiff contends that the business as conducted by him amounts to no more than the mere payment of commissions due to customers. Careful consideration of the facts, however, discloses that this is not the real transaction. It is apparent the coupon books (mere slips of paper) are without real value. The contract provides that the merchants will accept these coupons to the amount of 10 per cent of the purchase price in payment for goods, but there is no restriction put on the price upon which the discount is computed. Indeed, one of plaintiff’s witnesses who testified she had paid a total of $15 for five different applications, said she had not used the coupons in making any purchase. Another witness said that as a result of his efforts he had received about $100. He had not made any purchases from any of the merchants; it did not seem attractive to him to be able to buy groceries from the grocery on Eidge avenue at a discount. It is apparent that the real consideration upon which the customers were persuaded to invest was that by putting in $3 they had a chance to obtain $768. That the business was apparently conducted in an honest way is, of course, beside the point. In essence the plan is one by which through payment of $3 for worthless pieces of paper, there is an opportunity to win $768. Nor is the proprietor unaware of the nature of this transaction. The evidence shows that the mails are not used in the solicitation of customers or in the transaction of any other business connected with the enterprise.

Plaintiff argues that the business as conducted by him does not constitute a lottery as that term is usually understood or within the meaning of section 180 of the Criminal Code. He says that conceding the commissions which may become payable to plaintiff’s customers constitute a prize, and the payment of $3 for coupon books constitutes a price, still it is clear that the element of chance within the meaning of the definition of a lottery in the statute and in Iris Amusement Corp. v. Kelly, 366 Ill. 256, is lacking. Plaintiff cites Harlow v. Snow, 147 Ill. App. 369, but the chance element there was only an incidental feature of a contract for the conveyance of real estate. As Lord Hewart in Director of Public Prosecutions v. Phillips, [1935] 1 K. B. 391, said in regard to a case similar to this:

“In regard to cases of this nature — I do not mean of this particular species only, but of this genus — one may quote the words of the Lord Justice General in Barnes v. Strathern (1) : 1 There is no limit to the ingenuity of the devisers of projects such as this, and there is, accordingly, no end to the variety of schemes which may constitute a lottery. ’ (2) It may well be, as Mr. Slade in his able argument has contended, that there is no case exactly on all fours with this case in its detail, but the principle involved is, I think, familiar. The Court has to disengage, if it can, the reality of the transaction from the appearance which for obvious reasons it is made to assume, and when one reads this document headed ‘The Farm and Road Engineering Company, Ltd.,’ it is, I think, perfectly clear that the real consideration for the sum of I l. which the recipient of the leaflet is invited to part with is not the note case of the price of I s. 6 d. or thereabouts, but is, as appears to be frankly conceded, the prospect that by laying down that sum of 11. upon the terms set out in this leaflet he may find himself the possessor of a sum varying from 10 s. up to a maximum of 20,000 l. In my opinion, this was not a commercial transaction. The object of the seller and the object of the buyer were not concerned with note cases. They were concerned with the chance which the buyer might procure of obtaining a large sum of money by the operation of persons over whom he had no more control than he has over ‘the countless laughter of the sea’ (3), which does not laugh when the sun is not shining. If this transaction had been, or could reasonably be regarded as, a commercial transaction, it may be that other considerations might apply; but wherever one looks in this undoubtedly ingenious scheme one finds it impossible to discover anything of a really commercial nature. What one. finds everywhere is the chance of drawing a large sum of money of which the maximum in any particular case is 20,000 Z.”

Plaintiff, however, appeals to the statute and contends that (whatever the rule in other States) in Illinois this statute was never intended to, and does not, prohibit an enterprise of the kind in question, because it is said the statute defines and limits the mechanical device which may be used and is not applicable to any plan in which the particular mechanical device denounced by the statute is not used. We do not so construe the statute. The statute covers not only distribution of prizes by mechanical devices but also any other sort of distribution. In Public Clearing House v. Coyne, 194 U. S. 497, 48 L. Ed. 1092, 24 Sup. Ct. 789, at page 514, a plan not unlike this is well described as “a plan for securing money from a constantly increasing large number for the benefit of a constantly increasing smaller number, with an absolute certainty that when the enterprise should reach its end for any reason, a large number will lose every dollar they have put into it, and in the meantime the smaller number will realize such amounts as may have resulted from the growth of the larger number, but no one can predict what that growth will be.” We hold the plan as designed and carried out is contrary to the statute and illegal. It was improper to issue an injunction against the officers of the law forbidding the enforcement of the statute. For these reasons the judgment is reversed and the cause remanded with directions to dissolve the injunction.

Reversed and remanded with directions.

McSurely and O’Connor, JJ., concur.


author: Mr. Justice McSurely

text:
    Eileen Tapscott, Administratrix of Estate of Richard Tapscott, Deceased, Appellee, v. City of Chicago, Appellant.
    Gen. No. 40,589.

      Opinion filed October 3, 1939.
    Rehearing denied October 18, 1939.
    Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Besa and L. Louis Karton, Assistant Corporation Counsel, of counsel.
    John A. Dougherty and Joseph W. Cox, both of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This action is brought by plaintiff as administratrix of the estate of Bichard Tapseott, deceased, seeking to recover damages for his death from injuries received in an accident while a passenger in an automobile proceeding north on Halsted street in Chicago, caused by the failure of defendant to keep the street in repair; the jury returned a verdict finding defendant guilty and assessing damages at $7,500. Defendant appeals from the judgment.

The accident occurred about eight o ’clock in the evening of November 7, 1936; as the automobile, driven north on Halsted street by Donald Shaw, approached 103rd street it ran into a hole in the street which threw it against a truck; Tapseott was in the back seat, apparently asleep. It was stipulated that he died from injuries suffered in this accident. The hole was in the center of the northbound traffic way on Halsted; it was between 3 to 5 feet square and about 12 inches deep at its greatest depth in the center; it had been there practically all the summer of 1936, and was gradually getting worse.

Defendant in its brief asserts that Halsted street between 103rd and 104th streets, which includes the point where this hole was, is State Highway Ho. 1, under control of the State, and therefore defendant, City of Chicago, is not liable for injuries occurring through any neglect in its upkeep.

There was no formal proof that this was a State highway. There was only the unsupported statement to this effect of an assistant engineer for the State highway department. On the contrary it was shown that the street at this point was paved and used by general traffic and street cars, patrolled by city police officers and had the customary green and red stop lights. This was prima facie evidence that it was a city street. Brenner v. City of Chicago, 182 Ill. App. 348 (Abst.). Moreover, this point was not raised upon the trial and all the instructions given at the request of defendant assumed that defendant was charged with the duty of maintaining and keeping the street at this point in repair. The whole theory of the case presented to the jury assumed it was a city street under defendant’s control.

We might at this point rest the question of the liability of defendant without further comment. However, there is in evidence a contract between the State and the city of Chicago, dated June 28, 1937, in which the city of Chicago agreed to maintain certain streets, including “all necessary repairs.” At other places in the contract the city undertakes to make “repairs.” Assuming that this contract covers Halsted street at the point in question, defendant is liable for its negligence in failing to keep the street in repair. Hanrahan v. City of Chicago, 289 Ill. 400; Schmidt v. City of Chi cago, 284 Ill. App. 570; Village of Palestine v. Siler, 225 Ill. 630; People v. Willison, 237 Ill. 584.

The main issue presented to the jury was whether plaintiff’s decedent was guilty of contributory negligence ; it is said the evidence shows he was under the influence of liquor and submitted himself to be driven by Shaw who was also intoxicated. They had been attending a football game; there was evidence that each had two "drinks of whisky about 3:30 o’clock in the afternoon, and later on had a sandwich and a glass or two of beer. Shaw, the driver, testified he was not intoxicated when the accident happened; that as he crossed 104th street, going north on Halsted, he was going about 35 or 40 miles an hour; that before he reached the hole a car passed him on the right and he was watching it; that after it passed him he looked down at the road and saw “a big hole in the street” and tried to apply his brakes and turn away from it. The question of whether plaintiff was guilty of contributory negligence was entirely for the jury to determine and we cannot say that its verdict in this respect is manifestly against the weight of the evidence.

We see no good reason for disturbing the judgment and it is affirmed.

Affirmed.

Hatchett, P. J., and O’Cohhor, J., concur.


author: Mr. Justice McSurely Mr. Presiding Justice Matchett Mr. Justice O’Connor

text:
    Kaspar American State Bank, Appellee, v. Oul Homestead Association et al., Appellants.
    Gen. No. 40,600.
    O’Connor, J., dissenting.
    Opinion filed October 3, 1939.
    Leon A. Semebak, of Chicago, for appellants.
    Abrams, Sherman & Lewis, of Chicago, for appellee; Irving S. Abrams and Morris J. Gahb, both of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Judgment by confession was entered against defendants for $4,372.34; they subsequently filed a petition asldng that the judgment be vacated and set aside; plaintiff was given leave to file a counter-affidavit; after hearing, defendants’ motion was overruled and they appeal.

The first question is whether the note, with its power to confess judgment, authorized a personal judgment against the individuals named as defendants. The note is in the following form:

“Chicago, Ill. June 10, 1932.

“Two months after date, for value received, the undersigned jointly and severally promise to pay to the order of the Kaspar American State Bank Four Thousand ($4,000.00) Dollars. . . .

“Said Bank or the legal holder hereof is hereby authorized ... to apply to the payment of any liabilities ... of the undersigned jointly and severally, to said bank, or to the legal holder hereof, ... all property, ... of the undersigned. . . .

“And to secure the payment of said sum and interest, authority is given irrevocably to any attorney of any Court of Record, to appear for the undersigned jointly and severally in said Court, in term time or in vacation in any state or Territory of the United States, at any time hereafter and confess a judgment without process, in favor of the holder of this note for such amount as may appear to be unpaid or owing thereon, together with costs and reasonable attorney’s fees.

Oul Homestead Association

Albert Hornik, Pres.

James L. Preisler, Sec’y

James Bican, treas.”

Defendants Hornik, Preisler and Bican say they signed the note in a representative capacity and that under the Negotiable Instrument Law [Ill. Rev. Stat., ch. 98, par. 40, p. 2131; Jones Ill. Stats. Ann. 89.040] they are not personally liable, citing sec. 20 of that act, which reads in part as follows: “Where the instrument contains, or a person adds to his signature, words indicating that he signs for or on behalf of the principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized ...” Defendants cite cases construing this statute to mean that where persons sign their names with their official titles they are signing for the purpose of attesting the signature of the corporation, and the instrument constitutes the obligation of the corporation alone. Tampa Investment & Securities Co. v. Taylor, 272 Ill. App. 541; Scanlan v. Keith, 102 Ill. 634; Thompson v. Hasselman, 131 Ill. App. 257, and other similar cases. To this plaintiff replies that in none of the cases cited by defendants do the words “jointly and severally” appear in the note, and that these words in the instant case impose an individual liability upon the signers. They appear three times in the note. Webster’s Dictionary defines the word “jointly” to mean “to become liable to a joint obligation,” and the word “severally” to mean “individually.”

In 8 Corpus Juris, page 166, sec. 277, the author discusses the use of the words “jointly and severally” in the body of an instrument and says they are held to be decisive of the meaning of the instrument and to import individual liability. Many English cases are cited in support. In Healy v. Story, 3 Exch. (Eng.) 3, the court in discusping the meaning of the words “jointly and severally” said, “The plain grammatical meaning of the words is, ‘we jointly promise, and we severally promise’; that is to say, we personally promise. That is clearly the true meaning of the words.” In Bradlee v. Boston Glass Manufactory, 16 Pick. (Mass.) 347, 351, where the note read, “. . . we, the subscribers, jointly and severally, promise to pay . . . ” it was held that these words were decisive, and that the word “severally” bound each of the signers. These words were given the same effect in Savage v. Rix, 9 N. H. 263, 270.

Defendants rested their case upon the language of the note itself and argue that the phrase “the undersigned jointly and severally promise” is overbalanced by the form of the signatures and should be rejected as surplusage. Defendants concede that they find no case supporting this proposition. All the cases which pass upon the effect of these words hold that they import a personal liability upon the parties who sign the note, and no convincing reasons are presented which persuade us to hold otherwise.

Defendants’ argument is based upon the assumption that the parties did not mean what they repeatedly said in the body of the note, and that all words, however definite, importing individual liability must be disregarded if after the names of the signers appear words indicating their official positions. This cannot be. The entire note must be considered. Farmers Exchange Bank, of Elvaston v. Sollars, 353 Ill. 224.

In their petition to vacate the judgment defendants assert that the Oul Homestead Association, defendant, was in liquidation on January 17, 1936, under ch. 32, par. 246, § 34, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 14.36] and that having filed the requisite resolutions on January 17, 1936, and the liquidators having been appointed, no judgment could subsequently be confessed against it. Nowhere in the petition to vacate the judgment is it alleged that the Oul Homestead Association has complied with the statute by giving notice to plaintiff or to other creditors to file claims. Moreover, we find nothing in the statute which prohibits a claimant from reducing his claim to judgment. In fact there is language in the statute implying the contrary. The Oul Homestead Association was a mutual building loan and homestead association, and under the Liquidation Act the liquidators must report to the auditor of public accounts semiannually or oftener, and their term of office expires at the end of one year. There is in defendants’ petition to vacate the judgment no allegation that the liquidators have done any of the things required by the statute. There is only the bare allegation that the liquidators were appointed in January, 1936; apparently they have done nothing since. The judgment in question was entered June 13, 1938.

We hold that the note in question binds the Oul Homestead Association; that the abbreviations, “Pres.,” “Sec’y” and “Treas.” written after the names of the individual signers are merely descriptio personae, and that they are personally liable.

The judgment is affirmed.

Affirmed.

Mr. Presiding Justice Matchett

concurring: I concur on the ground that the affidavit to open up the judgment was not sufficient under Supreme Court Rule 26. Smith-Hurd Anno. Stats., ch. 110, par. 259.26, page 562.

Mr. Justice O’Connor

dissenting' in part: The note which is the basis of the suit is dated June 10, 1932, and is for $4,000, payable two months after date to the order of plaintiff bank. A number of payments are indorsed on the note, so that, according to plaintiff’s computation as set forth in its complaint, there was $2,858.12 of principal due on the note and $1,227.45 interest. The instant suit was brought June 11, 1938, and judgment by confession for $4,372.34 was entered 2 days later, June 13, for principal, interest and attorneys’ fees. The suit was brought and judgment entered against Oul Homestead Association, a corporation, Albert Hornick, James L. Preisler and James Bican. Defendants, pursuant to notice given counsel for plaintiff on July 13, filed their petition to vacate the judgment. July 15th an order was entered reciting that on motion of counsel for defendants to vacate the judgment it was ordered “by agreement of counsel for plaintiff and defendants, that the judgment against Albert Hornick, James L. Preisler and James Bican is hereby vacated and set aside and declared null and void. ’ ’ And it was further ordered that the motion of the other defendant, Oul Homestead Association, a corporation, be set for hearing at a later date and leave given plaintiff to file counter-affidavits within 15 days. July 20th counsel for plaintiff served notice on defendants ’ counsel that they would move to vacate the order of July 15th by which the judgment against the three named individual defendants had been vacated and set aside, and that plaintiff’s counsel would further move “to file a counter-affidavit against the entire petition filed herein by attorney for defendants.” July 21st an order was entered vacating the order of July 15th and giving plaintiff leave to file a counter-affidavit and the matter was continued to the contested motion calendar. July 26th plaintiff’s counter-affidavit was filed in which it is set up that the note upon which judgment was confessed “is not the obligation of the Oul Homestead Association solely, but also the obligation of Albert Hornik, James L. Preisler and James Bican.” The counter-affidavit further set up that plaintiff was never notified that the Oul Homestead Association “had filed a resolution for liquidation with the Auditor of Public Accounts of the State of Illinois, and denied that plaintiff had any knowledge that Hornik, Preisler and Bican were appointed a liquidating committee on the 17th of January, 1936, as alleged in defendants’ petition to vacate the judgment.” There are further averments and references to this liquidation proceeding which I think unnecessary to refer to here.

Defendants in their verified petition (to vacate the judgment, which was filed July 15, 1938, as above stated) averred among other things that the note in suit was the obligation of the Oul Homestead Association, a corporation, and was executed by the three individual defendants as officers of the corporation and not as individuals.

What is now known as the Uniform Negotiable Instruments Law went into effect July 1, 1907. (Ch. 98, III. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 89.040].) Section 20 of the act provides: “Where the instrument contains, or a person adds to his signature, words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent or as filling a representative character without disclosing his principal, does not exempt him from personal liability. ’ ’

Under the provisions of this section I think it is clear that none of the defendants, Albert Hornik, James L. Preisler or James Bican is personally liable. The note is signed: “Oul Homestead Association, Albert Hornik, Pres., James L. Preisler, Sec’y> James Bican, treas.” In my opinion it is clear that the note is the obligation solely of the corporation and was signed by the three individual defendants as president, secretary and treasurer of the corporation. The note comes specifically within the provisions of section 20, and indicates that the three individuals signed “for or on behalf of the principal ... in a representative capacity” and therefore they are “not liable on the instrument,” if they were authorized to execute the note. In the instant case there is no contention but that they were so authorized. And this conclusion is not altered by the fact that the body of the note says, “the undersigned jointly and severally promise to pay” because the entire note must be considered. We have examined the original note and it is a printed form prepared and used by plaintiff bank.

In Tampa Investment & Securities Co. v. Taylor, 272 Ill. App. 541, in considering the question whether individuals who signed “as trustees” were personally liable, we said (p. 549): “Section 20 [above quoted] changed the previous rule that a name followed by a designation as to some relationship to another would be considered only descriptio personae and the maker therefore personally liable. Professor Brannan says (Brannan’s Negotiable Instruments Law, 4th ed., p. 164):

“ ‘The plain language of this section indicates that it was the intention of the draftsman and the commissioners to clear up the unnecessary and unpardonable confusion caused by the failure of some of the courts to exercise a little common sense and to recognize mercantile usage. Much of the difficulty found in this subject is purely manufactured and would not trouble a business man for a moment. ’ ” It was there held the individuals who signed the notes as trustees were not personally liable.

As sustaining the position I have reached in the instant case, compare Mathis v. Liberty Straw Spreader Co., 238 Ill. App. 467; Decowski v. Grabarski, 181 Ill. App. 279; Reed v. Fleming, 209 Ill. 390; Cannon v. Miller Rubber Products Co., 128 Ohio St. 72; Jump v. Sparling, 218 Mass. 324; Consumers’ Twine & Machinery Co. v. Mt. Pleasant Thermo Tank Co., 196 Iowa 64; Myers v. Chesley, 190 Mo. App. 371; Second Nat. Bank of Akron, Ohio v. Midland Steel Co., 155 Ind. 581; Daniels on Negotiable Instruments, sec. 461, p. 533, vol. 1, 7th ed.


text:
    Universal Credit Company, Appellee, v. A. E. Antonsen, Appellant.
    Gen. No. 40,701.
    Opinion filed October 3, 1939.
    Rehearing denied October 18, 1939.
    Simon Herr, of Chicago, for appellant.
    Goldman, Allshouse & Healy, of Chicago, for appellee; Robert G. Dreeeein, M. M. Loman and Hiram T. Gilbert, all of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal by the defendant, Antonsen, from an order finding him guilty of contempt of court for failure to turn over certain automobiles described in a writ of replevin valued at $6,500, and ordering him committed to the county jail until he complied with the order of the court.

February 8, 1938, plaintiff filed its statement of claim in replevin in the municipal court of Chicago to recover 14 automobiles from defendant; the return on this writ shows it was served on defendant but unexecuted as to any of the property sought to be recovered ; thereafter the appearance by counsel of defendant was filed and an order was entered upon bim to file an affidavit of merits in five days, but none was filed. When the writ was served the bailiff of the municipal court demanded of defendant that he deliver the automobiles described in the writ but defendant refused to do so or to disclose their whereabouts; thereupon plaintiff, upon due notice to defendant’s attorney, presented a verified petition to the court to have defendant adjudged in contempt of court in accordance with Rule 238 H of that court; a rule was entered upon defendant to file an answer within two days but no answer was filed.

March 1,1938, the petition for contempt came on for hearing before the court and after hearing the court entered an order finding that all the automobiles described in the writ were under the control and custody of defendant at the time of the service of the writ and since that time; that although the bailiff at the time of service of the writ demanded possession of the automobiles from defendant he failed and refused to deliver up their possession or any part thereof, and was concealing them so that they could not be found; defendant was thereupon adjudged in contempt of court, a writ of attachment was issued and defendant was brought before the court.

April 14, 1938, defendant was given leave to file his answer instanter and after a second hearing on the petition and on the answer of defendant the court entered a second order adjudging defendant in contempt of court by authority of Rule 238 H of the municipal court.

Defendant appealed from that order directly to the Supreme Court, asserting among other things that Rule 238 H of the municipal court of Chicago is unconstitutional in that (a) it deprives defendants of liberty and property without due process of law; (b) it is an unlawful usurpation of legislative power, and (c) it permits an unlawful seizure of goods in violation of sec. 6, art. 2, of the constitution of Illinois. The Supreme Court in transferring the case to this court held that no constitutional question was involved; that the only question presented was whether Rule 238 H is invalid because it conflicts with the replevin statute, and that this presents a question involving the construction of the statute and the rule. Universal Credit Co. v. Antonsen, 370 Ill. 509.

Rule 238 H is as follows: “Whenever the property described in the writ, or any part of such property, is so concealed that it cannot be found by the bailiff, or other officer, he shall, if the plaintiff so requires, make demand upon the defendant for the delivery of the property not so found, and upon such demand being made, it shall be the duty of the defendant, if such property is in his possession or under his control, to comply with such demand and deliver the same to the officer and his failure so to do shall be deemed a contempt of court and may be punished as such accordingly, and the court may enter and enforce all orders necessary to compel the delivery of such property to the officers; Provided, however, that the defendant in any such case may, in the discretion of the court, be permitted to secure redelivery of the property by the giving of a forthcoming bond as provided by Rule 238d, or the court may order the property placed in the custody of a custodian or receiver to be disposed of in accordance with the rights of the parties as determined by the final judgment in the action, or the court may make such other order as the court may deem necessary or proper for the protection of the rights of the parties.” The meaning of this rule is not difficult to ascertain. It clearly provides that if the property is in the defendant’s possession or under his control and he refuses to deliver the same to the officer, “his failure so to do shall be deemed a contempt of court and may be punished as such accordingly.”

Does this rule conflict with the replevin statute ? Sec. 18 of the Replevin Act [Ill. Rev. Stat. 1937, ch. 119, par. 18, p. 2613; Jones Ill. Stats. Ann. 109.517] as amended in 1935, is as follows: “When the property or any part thereof has not been found or delivered as aforesaid, and the defendant is summoned or enters his appearance, the plaintiff may proceed, under original or amended complaint, as in an action for the wrongful taking and detention of such property or so much thereof as is not found and delivered to the sheriff, constable or other officer, and as to the property not found and delivered, the plaintiff, if he shall recover, shall be entitled to judgment for the value thereof or his interest therein, and such damages as he shall have sustained by reason of the wrongful taking and detention. ’ ’

It cannot be said that the provisions of Rule 238 H are in conflict with the provisions of the Replevin Act just quoted. The act provides that where the property has not been found or delivered the plaintiff may proceed in an action for wrongful detention and recover judgment to the value of the property not found. We have held that where, in a proceeding under the Replevin Act, it is alleged and proven that the defendant maliciously refused to deliver the property he may be imprisoned. Bird-Sykes Co. v. McNamara, 252 Ill. App. 262. The rule of the municipal court does not conflict with this but provides that under the same circumstances the defendant may be deemed in contempt. This is in addition to the right granted the plaintiff in the Replevin Act.

Section 20 of the Municipal Court Act gives the judges of that court “power to adopt in addition to” the provisions prescribing the practice, in the municipal court, “such rules regulating the practice in said court as they may deem necessary or expedient for the proper administration of justice in said court.” Rule 238 H comes under this provision as an addition to the provisions regulating the practice in actions for the recovery of personal property.

Defendant argues that all rules of court must be subordinate to the general laws of the State, citing Rozier v. Williams, 92 Ill. 187, and Yott v. People, 91 Ill. 11. Even if this were true, which is not admitted as to municipal court rules, Rule 238 H is not in conflict with the general laws of the State but is an addition to them.

Rule 238 H is not a rule of substantive law. The purpose of the rule is to secure possession of the property for the plaintiff. Section 7 of the Replevin Act prescribes that the writ of replevin shall require the officer to whom it is directed “to take the property . . . from the possession of the defendant, and deliver the same to the plaintiff” unless the defendant executes a bond. The statute gives the right to the defendant to retain the property upon his giving bond double the value of the property and conditioned that the defendant will appear and defend the action and deliver the property in accordance with the order of the court. Yet defendant’s argument seems to be based upon the proposition that the defendant could conceal the property and thus retain it without giving a bond. Rule 238 H provides a method of assisting the officer in the proper execution of the writ. It deals with a matter which is purely a matter of practice.

In Fleischman v. Walker, 91 Ill. 318, the term “practice” was defined, “The mode and order of procedure in obtaining compensation for an injury by action or" suit in the legally established courts, from the inception of such suit until it ends in the final determination of the court of last resort, is all comprehended in the term ‘practice.’ ” See also to the same effect City of Chicago v. Williams, 254 Ill. 360, 364; People v. Callopy, 358 Ill. 11, 18; Funk v. United States, 290 U. S. 371, 78 L. Ed. 369, 54 Sup. Ct. 212. As we have already noted, section 20 of the Municipal Court Act [Ill. Rev. Stat. 1937, ch. 37, par. 375; Jones Ill. Stats. Ann. 108.045] empowers the judges to adopt rules of practice.

It is not necessary in the instant case to pass upon the question as to whether the municipal court judges have the power to pass rules regulating practice in that court which are contrary to statutory provisions regulating the same matter. We are basing our decision upon the conclusion that the municipal court judges have the power to pass rules of practice touching proceedings for the recovery of personal property in addition to those passed by the legislature.

Where the defendant conceals the property sough! to be recovered, the replevin statute gives the plaintiff no remedy except by what is in effect another suit. Section 14 of the Replevin Act allows the defendant to retain the property by giving a forthcoming bond; but why should he give such a bond if all he is required to do to prevent the officer from taking the property is to conceal it? The additional remedy given by Rule 238 H is to discourage defendants in replevin proceedings from concealing the property and disobeying the commands of the court. The judges of the municipal court could reasonably deem the rule necessary and expedient for the proper administration of justice.

The value of the property sought to be recovered exceeds $1,000, and this is a case of the first class. Section 28 of the Municipal Court Act [Ill. Rev. Stat. 1937, ch. 37, par. 383; Jones Ill. Stats. Ann. 108.051] provides that such cases may be commenced and prosecuted in the manner provided by rules of court. Rule 238 H is concerned with the practice in such cases, and the order of the municipal court in favor of plaintiff and finding the defendant in. contempt of court is affirmed.

Affirmed.

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


author: Mr. Justice O’Connor

text:
    Oscar Heyman and Brothers, Inc., Appellee, v. Marshall Field and Company, Appellant.
    Gen. No. 40,583.

      Opinion filed October 3, 1939.
    Wilson & McIlvaine, of Chicago, for appellant; J. F. Dammann, Sidney K. Jackson and William It. Dickinson, Jr., all of Chicago, of counsel.
    Bell, Boyd & Marshall and Seymour M. Lewis, all of Chicago, for appellee; Earl K. Schiek, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover $8,500, the value of a piece of jewelry it had delivered to defendant and which had not been returned or paid for. The case was tried before the court without a jury, there was a finding and judgment in plaintiff’s favor for the amount of its claim and defendant appeals.

The record discloses that plaintiff was engaged in the jewelry business in New York City, and from time to time over a period of years had been selling jewelry to defendant which sold such jewelry and other merchandise in its retail store in Chicago. December 8, 1936, Mr. George, an employee of defendant in Chicago, telephoned plaintiff in New York, talking to Nathan Heyman, plaintiff’s representative. Plaintiff’s version of this conversation is that Mr. George said defendant, Marshall Field & Company, had a customer interested in an exceptionally fine large cat’s-eye brooch, who would be in its store in the morning to see such brooch, and defendant wished to obtain the brooch from plaintiff; that Heyman said plaintiff had such a brooch in Chicago and he would have it sent over to Mr. George “on memorandum immediately”; that Mr. George said “That would be fine.” Defendant’s version of this conversation is that Mr. George told Mr. Heyman that Marshall Field & Co. had a customer for such a brooch, that the customer would be in New York and would call on plaintiff within the next day or two, and for plaintiff to sell the brooch to the customer. Mr. Heyman testified to plaintiff’s version of this conversation; but since Mr. George died prior to the trial defendant’s version of it could not be directly proved.

The evidence further shows that the next morning, December 9, 1936, Leon Carteaux, a retail jeweler at 55 E. Washington street, Chicago, received a letter from plaintiff inclosing a memorandum requesting Carteaux to go to the Drake hotel in Chicago, there obtain the brooch and deliver it to Mr. George in Field’s store. Carteaux obtained the brooch and between 11:30 and 12 o’clock on the morning of December 9th delivered it to Mr. George as directed together with the memorandum inclosed in the letter. What was said at the meeting between George and Carteaux was excluded because of the death of Mr. George.

The memorandum was on one of plaintiff’s printed blanks, addressed in typewriting to Marshall Field & Company and dated December 8. The printed part is as follows: ‘ ‘ The goods described and valued as below are sent to you for your examination only at your own place of business. They remain our property to be returned on demand. Until the goods are actually received by us, they are at your risk from all hazards. Possession of the goods described below under the terms of this agreement in no way constitutes you our agent or factor. The receipt and retention by you of the goods described below is your acceptance of the terms and conditions of this agreement which is the entire agreement in respect to such goods and may not be varied by any oral statements, prior course of dealing, or custom in the trade.” Following- this printed matter appears in typewriting, “1 Plat. Baguette Diamond Catseye Brooch #17239 $8500.00.”

Margaret Strasser, called by defendant, testified she was employed by defendant and that her duties were to keep a record of the diamond stock; that shortly before noon on December 9th she received the cat’s-eye brooch from Mr. George, but on plaintiff’s objection she was not permitted to state what Mr. George told her. She further testified that the brooch was wrapped in tissue paper; that she opened the packag-e, looked at the brooch and put it in the safe; that shortly after noon Mr. George came to her, and she took the brooch out of the safe, wrapped it up and took it down to the value room in the subbasement of Field’s store for the purpose of having it sent by express to plaintiff at its New York place of business; that she made out a memorandum — which is in evidence — from defendant to plaintiff, charging plaintiff with the value of the brooch; that at the bottom of this document she wrote in a blank space that the reason for the charge was “Sent to us by mistake.” Upon objection of plaintiff these quoted words were stricken by the court. Miss Strasser testified that what she did in this connection was the usual custom in such cases.

The evidence further shows that about 4:30 o’clock on the afternoon of December 9th one of defendant’s employees in the value room noticed a certain package was missing; an exhaustive investigation and search were immediately made and it was discovered that four other packages were missing. No packages were sent out of the room between 1:00 p. m. and the discovery of the loss. Defendant’s employees were questioned by house detectives and city policemen. The next day, December 10th, it was discovered that the other missing articles were four watches in separate packages and one package from the jewelry section, but it was not until several days later that defendant learned that the brooch was in one of the missing packages. It is conceded that defendant made every effort to locate the brooch but was unsuccessful.

The evidence further shows that the value room in the subbasement was about 15 feet by 20 feet, that it had an opening about 4 feet wide where packages were received; that it had two doors, one of which went into an adjoining room known as the special delivery room, where six or seven persons worked, and these employees went back and forth between the two rooms at different times as business required; the other door opened into the subbasement and the locks on these doors were spring locks which opened from the inside, into the delivery department in the subbasement, where about 200 persons worked. “The brooch was kept in an open container placed along the south wall of the value room.” The merchandise which passed through the value room consisted of jewelry, small radios, shotguns, revolvers and a number of other items.

The complaint was in six counts. At the close of the evidence, on motion of defendant, the court found in favor of defendant as to 4 of the counts; overruled the motion as to the remaining 2 counts, and gave judgment for plaintiff on those 2 counts.

In the view we take of the case it is unnecessary to discuss the allegations of the counts except to say that one of them charged defendant was a bailee of the brooch and that it was guilty of negligence whereby the brooch was lost to plaintiff. The court found against plaintiff on this count, holding that defendant was guilty of no negligence; on a cross appeal plaintiff contends the court was in error as to this count because the evidence shows defendant was guilty of negligence.

Plaintiff contends the printed memorandum delivered to Mr. G-eorge by Mr. Carteaux, plaintiff’s representative, which we have quoted, and what was done under it constitute a contract; that since defendant “breached its contract in that it did not return the brooch on demand” as it stated in the memorandum it would do, it was liable; and that it was liable for the further reason that the memorandum provided that “until the goods are actually received by us, they are at your risk from all hazards.” There is a great deal of argument by counsel for both sides as to whether this memorandum and what was done under it constituted a contract between the parties. The only evidence as to what was done by Mr. George at the time he was given the brooch and memorandum was, as testified by Mr. Carteaux, that Mr. George looked at the memorandum. Without going into the question in detail we think it clear that the handing- of the memorandum and the brooch and what was done at the time did not constitute a contract between the parties. We think the evidence is wholly insufficient to show that defendant agreed to the terms of the memorandum. Maynard v. James, 109 Conn. 365.

Defendant contends the court erred in permitting the witness, Heyman, to testify as to the long distance telephone conversation he had with Mr. George, since the latter died prior to the trial; that the court erred in striking from the memorandum prepared by Miss Strasser (which she made as a preliminary to returning the brooch to plaintiff in New York) the words “Sent to us by mistake.” And plaintiff contends the court erred in refusing to allow to be read in evidence the deposition of Herman Arnold, an employee of defendant at the time in question, taken by plaintiff before the trial; that the court erred in refusing to admit in evidence a certified copy of the conviction of one of defendant’s employees who was working in the value room at the time in question, which conviction took place before he was employed by defendant. In the view we take of the case we think it unnecessary to pass on all these contentions except to say that the words written on the memorandum by Miss Strasser were, we think, clearly admissible as a part of the transaction as tending to show the intention of defendant in what was being done with the brooch, for we are of opinion that in any view of all the evidence defendant is liable because of its negligence in handling the brooch. Evans v. Williams, 232 Ill. App. 439; Maynard v. James, 109 Conn. 365; National Liberty Ins. Co. of America v. Sturtevant-Jones Co., 116 Ohio St. 299; 6 Amer. Juris., sec. 224.

Before discussing these authorities we think we ought to say that the argument made by counsel for defendant (to the effect that where a bailor proves he has delivered goods to the bailee and they are not returned on demand, the law presumes negligence on the part of the bailee unless he shows that the goods were lost, stolen or destroyed by fire, and that if the bailee makes such proof then the burden of showing negligence on the part of the bailee is on the bailor) is not the law. In such case the bailee, before he is relieved from liability, must show that the loss, theft or destruction by fire was not the result of any negligence on his part; (Clemenson v. Whitney, 238 Ill. App. 308; Byalos v. Matheson, 243 Ill. App. 60, affirmed in 328 Ill. 269; Till v. Material Service Corp., 288 Ill. App. 103; Lindor v. Burns, 292 Ill. App. 201) although we might say there are a number of authorities from other States and some opinions of other Appellate Courts of this State sustaining defendant’s contention.

In the Glemenson case this court reviewed the authorities and held that a bailor suing for the value of property lost must in all cases prove that the bailee was negligent; but that when he shows the goods intrusted to the bailee’s care were not delivered upon demand, he has made out a prima facie case .or created a presumption of negligence which the bailee may overcome by offering evidence showing he was not negligent. In sustaining this presumption we there quoted from Miles v. International Hotel Co., 289 Ill. 320, and also from Schaefer v. Washington Safety Deposit Co., 281 Ill. 43; Cumins v. Wood, 44 Ill. 416, and other authorities, refused to follow Nichols v. Union Stock Yards & Transit Co., 193 Ill. App. 14, and said (p. 315) : ‘1 The fallacy of such a doctrine seems apparent. Why should the bare showing that the loss of the bailor’s goods was through a robbery of the bailee’s premises or their destruction by fire, ‘prima facie exonerate’ the bailee when it may well be that a loss from either of these causes may have been due directly to the carelessness and negligence of the bailee himself?” We then discussed a number of other authorities and continuing said (p. 320): “Of course the burden of proof is on the plaintiff to prove his or her case, and it remains there throughout the trial and never shifts to the defendant. That is true on the issue of negligence in a bailment case. But when the plaintiff has made out a prima facie case, as is done in a bailment case merely by showing delivery of the bailed goods to the bailee and failure of the latter to return them on demand . . . then the burden of proceeding with the evidence falls on the defendant and remains there until the plaintiff’s prima facie case is overcome. The real question is, What must the defendant show, in order to overcome the prima facie case of negligence made out by the plaintiff? Is it sufficient to show the bare fact that the bailed articles have been burned up or stolen while in the bailee’s possession? Obviously not. They may have been lost in either of those ways by reason of the gross negligence of the bailee himself or of his servants. If the bailed articles have been burned up or stolen while in the bailee’s possession, the prima facie case made out by the plaintiff’s proof that the bailee has failed to return the articles upon demand is not met or overcome unless the bailee shows that the fire or robbery was not due to his carelessness or that he has exercised the degree of care called for by the nature of the bailment. ’ ’

And in the Byalos case (243 Ill. App. 60) in passing-on the same question we followed the Glemenson case and granted a certificate of importance in which we certified to the Supreme Court that one of the questions involved was, “On whom is the burden of proof where suit is broug*ht by the bailor against the bailee for failure to return the bailed article when the defendant interposes as a defense that the goods have been lost, stolen, or destroyed by fire % ’ ’ And the rule announced by us in that case was affirmed by the Supreme Court in 328 Ill. 269. Subsequently we again announced the same rule in Till v. Material Service Corp., 288 Ill. App. 103. To the same effect is the holding in Lindor v. Burns, 292 Ill. App. 201. So it would seem that the question ought to be settled and put at rest.

In Evans v. Williams, 232 Ill. App. 439, suit was brought by the owner of an automobile he had placed in defendants’ garage for safe keeping, charging that defendants failed in this respect. One of defendants ’ employees took plaintiff’s car out of the garage for a “joy ride” and wrecked it by running- into a freight train. It was contended defendants were not liable for the damages caused to the automobile through the, wrongful act of their employee because the employee when he took the car did so without authority and was acting- wholly outside the scope of his employment. We held this contention untenable and said (p. 442): “It is well established that the bailee is not an insurer and is liable only for the exercise of ordinary care in protecting the property intrusted to him, but it does not follow that the limitations on liability for a servant’s negligence, in the usual action by a third party sounding in damages for tort alone, should be extended to an action for breach of a contract of bailment. In bailment the contract is in its nature a direct and personal obligation by which the bailee undertakes personally to keep safely the property committed to his care. It is an obligation from which he cannot relieve himself without the other’s consent. Jacobs v. Grossman, 310 Ill. 247. The actual work of guarding the property may be delegated to an employee, and in the customary way of conducting many businesses this must be done during certain hours of the day, but the bailee is not thereby relieved from the personal obligation of his contract. An employee to whom such duty is delegated stands in the place of his employer and any negligence of this employee in protecting- the property is the negligence of the employer, who can be made to respond in damages caused thereby. Any other rule would have a tendency to tempt a bailee to lessen his personal liability for damages by delegating to irresponsible servants the care of the property. This would be unjust to the bailor as increasing the risk to the property 'and decreasing his chances of obtaining adequate compensation for damages thereto. The primary and essential object of this contract of bailment was the safety of the automobile, and no rule of law should tend to diminish this by putting a premium on lack of personal attention. ’ ’

In Maynard v. James, 109 Conn. 365, suit was brought tp recover damages for injuries to plaintiff’s automobile alleged to have been caused by the failure of defendants, as bailees for hire, to exercise ordinary care. Plaintiff had judgment, which was affirmed on appeal. One of defendants ’ employees took the car out of defendants’ garage and wrecked it by driving it against a wall and a telephone pole. The court said (p. 367): “The argument of the defendants is largely based upon the thesis that they are not liable for the negligence of the helper because at the time of the accident he was not acting within the scope of his employment. However that may be, their contention overlooks a clear breach of duty which fastens an unquestionable liability upon them. . . . When the plaintiff left the car in the garage the defendants, as bailees for hire, assumed the obligation not only to use due care in the performance of the services required, but to keep it in their garage . . . for redelivery to the plaintiff when he should come for it. . . . The driving of the car out of the driveway into the street and its subsequent operation was a wholly unauthorized use which, had defendants done it themselves, certainly would have constituted a clear breach of duty. . . . [p. 368.] This duty of the defendants was contractual in its nature; it required performance, and while no doubt they might delegate that performance to another, for a breach of it, whether by themselves or by that other, they would be liable. ’ ’ The court then discusses with approval Corbett v. Smeraldo, 91 N. J. L. 29, and quoted the following from that case: “We think this case does not involve the question of the master’s responsibility for the tortious acts of his servant. It involves rather the question of the master’s liability for breach of his own contract. . . . What were the terms of the contract? Those terms are rarely expressed at length. Much must be left to implication and be determined in accordance with the business usages and customs of the times. . . . The jury could hardly avoid the inference that the automobile was left with the defendant for storage in his garage. Storage involved keeping the automobile there and not permitting it to go out without the plaintiff’s authority. If the defendant chose to intrust that duty to his night man, he was liable, hot because the night man was negligent, but because the defendant himself had been guilty of a breach of his contract of storage. . . . There was a breach of the contract to store as soon as the automobile was taken out of the garage. For what subsequently happened, the defendant might or might not be liable under the rule of respondeat superior.” The court then refers with approval to Evans v. Williams, 232 Ill. App. 439. To the same effect was the holding of the Supreme Court of Ohio in National Liberty Ins. Co. of America v. Sturtevant-Jones Co., 116 Ohio St. 299.

After stating the rule announced in the three cases last mentioned, it is said in 6 Amer. Juris., sec. 224, p. 309:1 ‘ The foregoing reasoning has likewise been applied in a number of the more recent decisions in which a bailee has been held liable for loss of property through the theft of his employee.” See also Hasbrouck v. New York C. & H. R. R. Co., 202 N. Y. 363, 374. If we assume that the bailment in question was gratuitous, defendant was bound to take reasonable care to protect plaintiff from loss. And reasonable care in such a case is such care as a bailee is bound to exercise in the preservation of property intrusted to it, and such as every prudent man takes of his own goods of like character. Miles v. International Hotel Co., 289 Ill. 320; Transcontinental Ins. Co. v. Rosenbloom, 274 Ill. App. 341.

In the instant case the brooch was lost, misplaced or stolen while in the possession of the defendant, and under the authorities above cited and in view of the evidence we have set forth, we think defendant was guilty of negligence and that the finding of the trial judge to the contrary is against all the evidence. The trial judge in entering judgment for plaintiff reached the right conclusion, and for the reasons stated the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Hatchett, P. J., and HcSurely, J., concur.