text:
    Jacob J. Schwartz, trading as Schwartz & Schwartz, Appellant, v. Leander Akerlund, Appellee.
    Gen. No. 30,524.
    1. Brokers — when exclusive sales agency agreement becomes binding upon owner of property. Where the owner of property gave in writing to a licensed real estate agent an exclusive agency for the sale of the property, on terms therein specified, for a period of thirty days and until the agency was revoked in writing, the agent to show and advertise the property at his own expense, such contract became binding and irrevocable except as therein provided after the agent had advertised the property and shown it to prospective purchasers.
    2. Damages — measure for owner’s breach of exclusive agency for sale of property. Where the owner of property, after having given to a licensed real estate agent an exclusive agency to sell the same, on certain specified terms, for a period of 30 days, sold such property through another broker, the measure of damages recoverable by the holder of the exclusive agency contract in an action against such owner for compensation was the commission upon the price for which the property was actually sold as stated in such agreement.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. George B. Holmes, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Reversed and judgment here.
    Opinion filed May 5, 1926.

      John R McCabe, for appellant.
    Benjamin E. Cohen, for appellee; Wyman, Hopkins, MoKeever & Colbert, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.

The plaintiff, Jacob J. Schwartz, trading as Schwartz & Schwartz, brought suit in the municipal court, in a first-class case, against the defendant, Leander Akerlund, to recover $2,055, as real estate commissions. There was a trial before the court, without a jury, and a judgment in favor of the defendant. The plaintiff prosecutes this appeal.

In the statement of claim it is alleged that the plaintiff was a licensed real estate dealer; that, on August 3, 1923, the defendant gave him, the plaintiff, an exclusive agency, evidenced by a writing, for one month and thereafter until the agency was revoked in writing, for the sale of certain real estate; that the defendant, by the same writing, promised to pay him, the plaintiff, a commission of 3 per cent of the price obtained; that the price was $68,500, or any less sum which the defendant would agree to accept; that the plaintiff accepted the agency and performed certain services in endeavoring to secure a purchaser; that, while the agreement was in effect, the defendant sold the property through a third person, to the damage of the plaintiff in the sum of $2,055; that, although he, the plaintiff, has made a demand for payment, the defendant has refused to pay.

The defendant in his affidavit of merits denied that the plaintiff on August 3, 1923, was a licensed real estate dealer; denied that on that date he executed and delivered to the plaintiff the writing mentioned in the statement of claim; denied that the plaintiff accepted the agreement and performed certain services in regard to securing a purchaser for defendant’s property, and alleges that he, the defendant, sold the property through his own efforts, and is not indebted to the plaintiff in any sum whatever.

The evidence is substantially as follows: In 1923, the plaintiff was a licensed real estate dealer, with a place of business at 4408 Broadway, Chicago. On August 3, 1923, M. Schwartz, an employee and son of the plaintiff, at the request of the defendant, at the latter’s home, drew up the agency contract, here in question, and it was then signed by the defendant. It is as follows:

“I hereby give you the exclusive agency for the sale of my property described as 4501 to 5 Clifton Ave. a 1st morg. $35,000 7% due 1926 balance to take back 2nd morg. with prepayments of 125.00 per mo. 1% until paid with a release of 2nd when a new first is made, for a period of one (1) month from this date and thereafter until this agreement is revoked by me in writing, at a price of $68,500, or any less sum which I shall agree to accept. I agree to pay you a commission of three (3) per cent of the price obtained.

“With a cash payment down of $5,000 to $20,000.

“In consideration of having given you this exclusive sale agreement it is understood that you are to advertise and show the property without any expense to me.”

After August 3, 1923, according to the testimony of the plaintiff’s son, in an endeavor to sell the property, the plaintiff, through his office, had prospective purchasers, four or five times a week, taken to and through the property. Sometimes the defendant and sometimes his wife or son showed them through the property. The plaintiff, also, advertised the property for sale a number of times in The Chicago Tribune. On August 24, 1923, the defendant and his wife, through one Lapin, a real estate broker, entered into a contract in writing, by which they agreed to sell to one Goodkin, and the latter agreed to buy the property in question for $65,000, and, accordingly, on October 11,1923, the property was conveyed by warranty deed by the defendant and his wife to Goodkin. Lapin, the broker who negotiated the sale to Goodkin, testified that prior to the execution of the contract of August 24, he had received the information from the defendant that the plaintiff had the exclusive agency to sell the property. He further testified that he himself got his commission. The evidence of the defendant is that he could not read or write English; that he signed the exclusive agency contract; that he understood it was for 30 days; that later in the latter part of August he told Martin Schwartz, plaintiff’s son, that the 30 days would soon be up, and asked him, Schwartz, to give up the- exclusive agency as he, the defendant, wanted to give it to some other real estate people; that Schwartz said: “That’s all right, go ahead and sell”; that he asked Schwartz for something in writing, and Schwartz said: “It is not necessary, go ahead.” In October, after the defendant had sold his property to Goodkin, according to the plaintiff’s testimony, the defendant called and he, the plaintiff, asked him about the commission, stating that the record of the sale had just come out, but the defendant threatened to fight and refused to pay anything.

As the plaintiff was given an exclusive agency for one month from August 3, and thereafter until the agreement was revoked in writing, and was promised a commission of 3 per cent of the price obtained, and as he advertised the property for sale, and on a number of occasions showed various prospective customers through the premises, the question arises whether the sale of the property by the defendant on August 24, through another broker to Goodkin, not only put an end to the exclusive agency of the plaintiff, but deprived him of any right to compensation, either by way of damages or stipulated .commission. In other words, as the evidence shows that the plaintiff accepted the agency and undertook “to advertise and show the property without any expense” to the defendant, and as that was the status on August 24, only 21 days after the exclusive agency had been given, and while it still remained outstanding, unrevoked by any writing, does it follow that the defendant was entirely within his rights and that the plaintiff had no cause of action? The question arises whether what was done by the owner was merely the making of an offer which was revocable any time before complete performance, revocable because there was no complete contract between the parties; or whether the agent, having rendered some service, may be said by such service to have transmuted the offer into a binding promise, which binding promise became a part of a unilateral contract, but which unilateral contract was only partly executed by the promisee. Whether the defendant was liable to the plaintiff for a stipulated commission depends upon whether or not there was a contract between them. A mere offer is not a contract, but when the offeree pursuant to the offer has done some work and spent some money, which in and of themselves constitute some consideration, may it be said that the offer has been transmuted into a binding promise and become part of the contract between the parties, even though the offeree has only partly performed the consideration provided for in the offer? In a note to section- 2452 (p. 2059) Mechem on Agency, 2nd ed. vol. 2, the subject is discussed quite at large. In our judgment, speaking generally, such an offer is irrevocably accepted by the first unequivocal act which may be said to constitute something in, the nature of substantial consideration; otherwise the law would permit the capricious withdrawal of an offer when the consideration was all but completed and deprive the offeree of a remedy even for what he had done. We are of the opinion, therefore, that there was a binding contract.

As a result of the defendant’s written offer and the things done by the plaintiff in pursuance of that offer and as a consideration therefor, the question arises —in view of the defendant selling the property through another broker within the time covered by the exclusive agency, and thus voluntarily incapacitating himself from fulfilling his written offer — What is the measure of the plaintiff’s damages? The claim of the plaintiff is for $2,055, i. e., 3 per cent of $68,500, or 3 per cent on any less sum which the defendant would agree to accept, the price fixed in the written offer; in other words, for the specific amount that would be due upon execution of the contract by the plaintiff.

Many cases ate cited on the subject of damages, among which are the following: Rand v. Cronkrite, 64 Ill. App. 208; Harrison v. Augerson, 115 Ill. App. 226; Goodmanson v. Rosenstein, 144 Ill. App. 243; Hanlon v. Dunne, 189 Ill. 123; Novakovich v. Union Trust Co., 89 Ark. 412; Attix v. Pelan, 5 Ia. 336; Wozniak v. Siegle, 226 Ill. App. 619; Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 59; Green v. Cole, 127 Mo. 587; Crane v. McCormick, 92 Cal. 176; Woolf v. Sullivan, 224 Ill. 509, and Wentworth v. Mann, 178 Ill. App. 621.

Counsel for the defendant puts emphasis on the Wentworth case, supra, but in that case the offer did not contain the words obliging the agent as part of the consideration “to advertise and show the property without expense to the owner.” Here the owner said: “In consideration of having given you this exclusive sale agreement it is understood that you are to advertise and show the property without any expense to me.” And further in that case the court held that the judgment was not consistent with the pleadings. The owner here prescribed that when certain things were done by the agent they should constitute, at least, part of the consideration provided for in the contract, and so, those things having been done, the plaintiff having advertised the property for sale and having taken prospective purchasers to the property, some of them having been taken to the property after the defendant had sold the property, unknown to the plaintiff, and the offer of the defendant having thereby become a binding promise as part of the partly executed contract, we are of the opinion that the plaintiff is entitled to recover the specific amount agreed upon. The plaintiff having performed certain services under the contract, the defendant had no legal right to revoke this authority, and as the express terms of the contract fix the maximum loss with certainty, we see no reason why that amount should not be recovered. It may be that if the agency had not been revoked that the plaintiff would not have been able to make a sale. That, however, is mere conjecture, as it may well be that he would have been able to make a sale, particularly as he had within the time, but before he knew a sale had been made, prospective purchasers to whom he desired to show the property. The defendant being at fault, we do not think that he is entitled to the benefit of the more favorable conjecture or inference.

In the Harrison case, supra, the court said:

“Appellant having appointed appellee his agent to sell the property for a certain sum and agreed to pay him $200 for making the sale, and having given him one month in which to do it, and having before the time elapsed rescinded his contract and revoked the agency, we think appellee had the right to recover.” Citing Mechem on Agency, section 968; Gleason v. McKay, 37 Ill. App. 464; Rand v. Cronkrite, 84 Ill. App. 208; Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 59.

See, also, Green v. Cole, 127 Mo. 527; Durkee v. Gunn, 41 Kan. 496; Hawley v. Smith, 45 Ind. 183.

Considering what the evidence shows was actually <3one? that the property was sold for $65,000: th&t the defendant deliberately broke Ms contract rwith the plaintiff, and permitted that to be done by another broker which he had bound himself — within a certain time — to permit the plaintiff to do, it does not now lie in the mouth of the defendant to say that although he had promised to pay the plaintiff a commission of 3 per cent of the price obtained, there is nothing due save for advertising and actual labor. To recogmze that as sufficient would be to permit the defendant to profit by his own wrong.

It is urged for the defendant that the evidence showed a waiver of the agency; that the plaintiff’s son had said: “That’s all right, go ahead and sell.” No such defense was alleged, and, moreover, the evidence does not show but what that conversation took place after the defendant had sold the property.

The defendant in his affidavit of merits set up as his only affirmative defense — the rest being useless denials — that he sold his property through Ms own efforts. That, however, the evidence disproves. The defendant himself admitted that Lapin was his own broker and that the sale was made through him.

In our judgment, the measure of damages was fixed by the agreement, and is 3 per cent on $65,000 which was the price actually obtained.

The judgment will be reversed and judgment entered here in favor of the plaintiff and against the defendant in the sum of $1,950, being 3 per cent on $65,000.

Judgment reversed and judgment here.

Thomson, P. J., and O’Connor, J., concur.0


source: Caselaw Access Project

author: Mr. Justice Taylor

license: Public Domain

text:
    Irving A. Lilly, Appellee, v. Mabel A. Lilly, Appellant.
    Gen. No. 30,565.
    1. Appeal and error — scope of review in absence of bill of exceptions. Where no bill of exceptions is filed the reviewing court is limited, on the consideration of an appeal, to the contents of the common-law record.
    2. Forcible entry and detainer — dismissal of appeal from justice court where transcript fails to show fixing of amount of appeal bond. An appeal from the judgment of a justice of the peace in an action of forcible entry and detainer is properly dismissed where the transcript of the judgment of the justice fails to show that the justice fixed the amount of the appeal bond, as required by statute.
    3. Justices oe the peace — correction of defective transcript of judgment after filing in circuit court. Where the transcript of a judgment of a justice of the peace in an action of forcible entry and detainer is defective in that it fails to show that the justice fixed the amount of the appeal bond, such defect cannot be corrected by an informal letter from the justice to the clerk of the circuit court asking him to supplement the transcript by adding a paragraph supplying the omitted statement.
    4. Appeal and error — necessity of preserving motions and rulings thereon in bill of exceptions to procure review. Motions generally, and rulings of the court thereon, in order to be considered on review, must be preserved in a bill of exceptions.
    5. Justices oe the peace — entry of appearance by appellee as precluding right to move dismissal of appeal because of subsequently filed defective transcript of judgment. Where, because of the filing of a defective transcript of the judgment of a justice of the peace in an action of forcible entry and detainer, the circuit court failed to acquire jurisdiction of an appeal from such judgment, the appellee was not precluded to move the dismissal of the appeal because he had, prior to the filing of such transcript, entered his appearance in the case in the circuit court.
    6. Appeal and error — source of right of appeal. The right of appeal does not exist by virtue of the common law, nor of the constitution, but is dependent upon some statute creating it.
    Appeal by defendant from the Circuit Court of Cook county; the Hon. John A. Swanson, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed May 5, 1926.
    Rehearing denied May 18, 1926.
    E. M. Seymour, for appellant.
    Frank W. Swett, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.

The plaintiff, Irving A. Lilly, having obtained, before a justice of the peace, a judgment in forcible entry and detainer against the defendant, Mabel A. Lilly, and two other persons, and Mabel A. Lilly having appealed therefrom to the circuit court, and the latter court having ordered that the appeal from the justice’s judgment be dismissed, an appeal was taken from the order of the circuit court to this court.

The order of the circuit court, which was entered on June 12, 1925, is as follows: “Order of court that appeal of appellant be dismissed, procedendo issue, and appeal allowed upon filing appeal bond in the sum of $5,000 to be approved by the court in five days.” As no bill of exceptions has been filed, we are limited to the contents of the common-law record. That record shows the following: On March 23,1925, Mabel A. Lilly, the defendant in the suit before the justice of the peace (and hereinafter called the defendant) filed an appeal bond in the sum of $1,000 with the clerk of the circuit court. The clerk received and approved the bond. On the same day a summons was issued, and ' on March 26, 1925, served on Irving A. Lilly (hereinafter called the plaintiff).

On March 23,1925, a writ of supersedeas was issued, and on March 26, 3925, duly served on the justice of the peace by the sheriff of Cook county. On April 2, 1925, the attorneys Kraft, Kraft & Erskine filed the following appearance for the plaintiff: “We hereby enter the appearance of Irving Lilly * * * in the above entitled cause.”

On May 11, 1925, the defendant filed a “Transcript of Judgment,” signed, sealed and certified to by W. P. Martin, justice of the peace, in the office of the circuit clerk. The transcript of judgment recites, among other things, that on March 21, 1925, the plaintiff and the defendant were present; that three witnesses were sworn and examined, and documentary evidence ad- • mitted, and that judgment was entered, finding the defendant guilty of unlawfully withholding possession of the premises from the plaintiff; “that A. F. Lilly, Agent, be restored to the possession of the premises, that the defendants William Fish, Mabel Lilly, and Helen Lilly, be dispossessed of said premises, and that the plaintiff recover costs of the suit.” It also recites that the transcript was furnished to the circuit court, pursuant to supersedeas issued on March 23, 1925, by that court.

On June 8, 1925, there was filed in the office of the clerk of the circuit court a paper containing the following :

‘ ‘ Clerk, Circuit Court, City Hall, Chicago, Illinois. “Dear Sir:

“Supplementing my transcript filed in the case of A. F. Lilly, Agent v. William Fish, Mabel Lilly, and Helen Lilly, it has been called to my attention that I failed to stipulate the amount of bond that was decided on. Will you please enter the following as a supplement to this transcript:

“ ‘In the above mentioned case it was decided after discussion of both parties concerned that a bond of one thousand dollars be set in the, forcible entry and detainer judgment. ’

“Verv truly yours,

“W. P. Martin, “Justice of the Peace.”

The signature, W. P. Martin, is in typewriting, and over it, in pencil, are written the initials W. P. M. Below the signature are the words, in typewriting, “Filed and registered June 9, 1925, Thomas 0. Wallace, Clerk, Per Tyrell.”

On June 12, 1925, an order was entered by Judge Swanson, of the circuit court, as follows:

“On motion of plaintiff’s attorney, it is ordered that the appeal bond herein be and the same is hereby dismissed for failure to comply with the statute, at defendants’ costs, and that a procedendo issue herein to the court below,” and that the plaintiff recover his costs from the defendants.

It also shows that the defendants prayed an appeal from that judgment to the Appellate Court, and that it was allowed, upon the defendants filing an appeal bond in the sum of $5,000, to be approved by the court within five days from date.

On June 17, 1925, on motion of the defendants’ attorney, the time to file the appeal bond was extended for fifteen days, and the amount of the bond reduced to $2,000.

On the same day, an appeal bond in the sum of $2,000, signed by the defendants and assured, was approved by the trial judge.

This appeal is from the above mentioned order of June 12, 1925, which dismissed the appeal from the justice for failure of the defendant to comply with the statute.

We are of the opinion that the transcript filed by the justice did not comply with the statute. It failed to fix the amount of the bond. The informal letter of June 8 was not a substantial compliance with the requirements of the statute. It does not even purport to be a “transcript of his docket.” It has been held that a justice of the peace is not allowed to change or vary the transcript of his record by testimony in .open court, even where he is subject to cross-examination— Zimmerman v. Zimmerman, 15 Ill. 84, 85 — and certainly a letter to the clerk, as this was, informally ■ signed, is too casual and uncertain to be taken as compliance with the statute. The proceedings before a justice of the peace, as the court intimates in the Zimmerman case, are as important and as solemn as those of other courts, so, where the statute calls for a “transcript of his docket in the case with a certificate under his hand that said transcript and papers contain a full and perfect statement of all the proceedings before him” (chapter 79, ¶ 116, Cahill’s St. 1925), it is not sufficient merely to send by mail to the clerk such a letter as that of June 8, 1925. Drewitz v. Sault, 228 Ill. App. 385.

It is urged that the defendant failed to file an appeal bond with the justice of the peace or made any attempt to do so. The Forcibly Entry and Detainer Act (Cahill’s St. ch. 57, ¶ 19) provides that he “may have an appeal, to be taken to the same courts, in the same manner and tried in the same way as appeals are taken and tried in other cases. Provided, the appeal is prayed and bond is filed within (5) days from the rendition of the judgment.” Section 19 [Cahill’s St. ch. 57, ¶ 20] provides that the amount of the bond shall be fixed by the court. In Fairbank v. Streeter, 143 Ill. 226, the court said: “We think the language of these two sections clearly manifests an intention on the part of the legislature, that, whether a forcible entry and detainer case is tried in a justice’s court or a court of record, the defendant can only perfect an appeal from a judgment there rendered by praying the same, and filing his bond, in an amount fixed by the trial court, within five days from the rendition of such judgment.”

The cases of Drewitz v. Sault, supra, and Voorhees v. Schrieber, 183 Ill. App. 626, are not in accord with what appears to be the clear intimation of the Supreme Court in Fairbank v. Streeter, supra, nor with the provisions of the statute, which in our judgment do not require that the bond shall be filed with the justice of the peace.

It is urged for the defendant that the trial judge dismissed the appeal on account of the signature on the appeal bond filed on March 23, 1925. The trouble with that contention is that in the absence of a bill of exceptions, we do not even know what the motion was, nor when, if ever, it was made; nor what proceedings took place. Motions generally, and rulings of the court thereon, in order to be considered on review, must be preserved in a bill of exceptions.

It is also urged that the plaintiff having filed his appearance in the circuit court on April 2, precluded bimself from the right to urge a dismissal of the appeal. That contention we think is untenable. As no appeal was perfected, the motion was apt.

It is also urged that some constitutional rights of the defendant, as to his appeal from the justice, were ignored by the trial judge. The right of appeal does not exist by virtue of the common law, nor of the constitution, but is dependent upon some statute creating it.

Finding no error in the record, the judgment is affirmed.

Affirmed*

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


text:
    F. A. Bedtke, Appellee, v. City of Chicago, Appellant.
    Gen. No. 30,632.
    1. Municipal cobpobations — cleaning of streets and alleys as action for local purpose rather that one under police power. Where a city undertakes, although voluntarily and without exacting compensation from the property owners particularly benefited, the cleaning of its streets and alleys, it acts in so doing for a local purpose and not in an exercise of its police power.
    2. ' Municipal corporations — cleaning of streets and alleys as ministerial rather than governmental function. The undertaking of a city to clean its streets and alleys, although carried out without exacting compensation from the property owners directly benefited, is an exercise of a ministerial function as distinguished from a governmental function.
    3. Municipal corporations — application of principle respondeat superior to city in respect of street cleaning activities. Where a city undertakes the ministerial function of cleaning its streets and alleys, it is responsible under the principle of respondeat superior for injuries resulting from the negligence of its servants doing such work.
    Appeal by defendant from the Superior .Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed May 5, 1926.
    Francis X. Busch, Corporation Counsel, for appellant; Lawrence J. Fenlon and Frank A. Wright, Assistant Corporation Counsel, of counsel.
    Newton R. Gilmore, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.

The plaintiff, F. A. Bedtke, claiming that the defendant, the City of Chicago, through the negligence of its servants, in the use of a portable incinerator in an alley back of the plaintiff’s premises, caused the destruction by fire of certain personal property belonging to him, began a suit of trespass on the case in the superior court against the defendant, the City of Chicago, and after a trial before the court, without a jury, recovered a judgment in the sum of $2,225.17. This is an appeal by the City from that judgment.

The declaration consists of two counts. The first alleged that the plaintiff on September 15, 1922, was the lessee of 2013 W. Division Street, Chicago, where he conducted a general trucking business and stored certain merchandise of the value of $2,000, which property he guarded with appropriate care; that prior to September 15, 1922, the City had adopted the Cities and Villages Act of 1872 as its charter; that that charter not only delegated certain governmental powers to the City, but also empowered it, without compelling it, to undertake certain ministerial functions; that, among other things, the Act of 1872 authorized the city council to provide for the cleaning of its streets; that the city council, prior to September 15, 1922, created the department of public works, with a commissioner of public works, a superintendent and assistant superintendent of streets and had by ordinance fixed their duties and authorized them to employ laborers to perform the ministerial duties of cleaning the streets and alleys of the City; that the City had undertaken to exercise complete control of cleaning the streets and alleys of the City and thereby became bound to perform that duty — voluntarily assumed— in such a manner as not to injure the plaintiff’s property; yet, the City, not regarding its duty and while in possession of the alley in question, through its employees engaged in cleaning it, did on September 15, 1922, negligently and wrongfully perform its ministerial duty of cleaning the alley in the rear of the property occupied by the plaintiff; that, through its employees, it collected waste papers and other combustible materials in the alley in the rear of plaintiff’s place of business and negligently there set fire to them and negligently failed to watch or control the fire, so that, as a result, the plaintiff’s place of business was set on fire and his tools, appliances, fixtures and merchandise were consumed.

The second count alleged somewhat similar facts to the first, but charged in addition that there was a city ordinance entitled “Bonfires in Streets,” etc., which provided: “Whoever is concerned in causing or making a bonfire, or sets fire to or burns any hay, straw, shavings or other combustible material in any street, alley or public place within the city, shall be fined not less than twenty-five dollars for each offense”; that the City, in burning the refuse as it did, was guilty of a violation of the ordinance, and in consequence liable for negligence.

On May 6, 1924, the City filed a general demurrer, and on March 14, 1925, it was overruled,, and the City ordered to plead to the declaration. On March 23, 1925, the City filed a plea of the general issue. On April 30, 1925, the case came up for trial, and a jury was impanelled. On May 1, 1925, by agreement of the parties a juror was withdrawn, the jury discharged, and the cause continued to June 15, 1925. On June 23, 1925, the demurrer to the second count was sustained. On the same day, the following stipulation of facts was entered into:

“The City of Chicago, a Municipal Corporation, in September, 1922, employed through its department of streets, certain employes known as alley cleaners, and whose duty it was to go through the alleys in the particular section of the wards to which they were assigned by their immediate superiors, and gather from those alleys all waste matter which is inflammable, particularly paper and rubbish, and to place said material so gathered by them in a container which is provided for them by the City of Chicago, and which is in the form of a barrel-like structure made of heavy wire with meshes about one and one-quarter inches, having a cover of same material, and mounted on wheels, with a handle similar to a pushcart, and burn said material in said container in the alley from which said particular rubbish was gathered. The City does not derive any income or revenue from this work, no fee being charged any individual for said service.

“The aforesaid Bureau of Streets, which bureau is a regularly established part of the municipal government of the City of Chicago and is under the jurisdiction of the Department of Public Works, an executive department of the municipal government, in addition to other duties, has charge of the cleaning of streets and alleys of the City, including the removal and disposition of garbage, filth, litter, dirt, rubbish, ashes, manure, offal, swill and other materials and substances from the streets and alleys.

“In September, of the year 1922, one Christian Gulbranson was employed in said capacity by the City of Chicago, and, among the alleys assigned to his charge were an alley running east and west from Robey street to Hoyne avenue, and an alley running south from said east and west alley to Haddon avenue, in the block bounded by Robey street and-Hoyne avenue on the east and west and by Division street and Haddon avenue, on the north and south, in the City of Chicago.

‘1 On the 15th day of September, 1922, said employe was sent to said particular alleys above described by his immediate superior and gathered papers and rubbish, placed them in his incinerator and set fire to them, while said incinerator was standing a distance of from four to six feet from the rear door of a garage and warehouse situated at 2013 West Division street, Chicago, Illinois. After setting fire to the rubbish and paper contained in said incinerator, said employe went up and down the alley picking up other rubbish and papers, leaving said incinerator in the position above described, and, while so doing, fire was communicated from said burning incinerator to the rear door of the premises above mentioned, which fire burned practically all of the garage and warehouse, being a building fifty (50) feet wide by about seventy (70) feet deep, and destroyed all the contents of said building.”

It was stipulated, also, that the fair and reasonable value of the plaintiff’s property which was destroyed by fire, was $2,225.17. Based upon the stipulation of facts above set forth, the learned trial judge found the City guilty and assessed the plaintiff’s damages at the sum of $2,225.17. Motions for a new trial and in arrest of judgment were made by the City, and were overruled, and judgment entered in favor of the plaintiff and against the City for the above-mentioned sum.

At first blush, it would seem to be reasonable to hold that, where private property is destroyed by fire through the carelessness of a city employee in manipulating a portable incinerator of refuse gathered up and burned in the course of cleaning an alley for the City, there should be a right to recover damages commensurate with the loss. That would seem to be a matter of common sense and in accord with the general precepts of the law. But, the history of the liability of municipalities for negligence shows that in this State, as in many others, some seemingly arbitrary distinctions, usually not well defined, have been made between cases where the negligence of the municipality occurred while its servants were in the exercise of what is called the municipality’s public and governmental functions, and cases where it occurred while they were in the exercise of the municipality’s private corporate or ministerial functions, and that, generally, there is no liability in the former, but there is in the latter.

The following cases are illustrative of the subject: Wilcox v. City of Chicago, 107 Ill. 334; City of Chicago v. Seben, 165 Ill. 371; Johnston v. City of Chicago, 258 Ill. 494; Hanrahan v. City of Chicago, 289 Ill. 400; Stedwell v. City of Chicago, 297 Ill. 426; Flannagan v. Bloomington, 156 Ill. App. 162; Curtis v. City of Paris, 234 Ill. App. 157.

In the Wilcox case, where suit was brought to recover damages sustained by the plaintiff by reason of a collision between his carriage and a hook and ladder wagon of the City, through the alleged negligence of the driver of the hook and ladder wagon while in the service of the City in saving property from destruction by fire, it was held, on the ground of public policy, that there'was no liability. The court there said:

“On turning to the reported cases of the courts of other States, we find a uniform line of decisions holding that cities are not liable for the negligent acts of the officers or men employed in their fire departments whilst in the discharge of their duty, thus creating an exception' in this class of cases to the general rule of respondeat superior.” Citing Dillon on Mun. Corp., 1st ed. sec. 774, and a series of cases from Massachusetts, New York, Connecticut, Iowa, Missouri and California.

In the Seben case, supra, the plaintiff having stepped into a sewer inlet at the corner of two streets and being injured thereby, brought suit against the City and recovered a judgment for damages which was affirmed. The court there said: “Municipal corporations will not be held liable in damages for the manner in which they exercise, in good faith, their discretionary powers of a public, or legislative, or quasi judicial character. But they are liable to actions for damages when their duties cease to be judicial in their nature, and become ministerial.” Citing 2 Dillon on Mun. Corp., secs. 949, 832; and Tiedeman on Mun. Corp., sec. 324. And the court there proceeds to distinguish between judicial and ministerial action on the part of the City. The court said: “The adoption of a general plan of sewerage involves the performance of a duty of a quasi judicial character, but the construction and regulation of sewers and the keeping of them in repair, after the adoption of such general plan, are ministerial duties, and the municipality, which constructs and owns such sewers, is liable for the negligent performance of such duties.” Citing Beach on Public Corp., sec. 766; Johnston v. District of Columbia, 118 U. S. 19; Seifert v. Brooklyn, 101 N. Y. 136.

In the Johnston case, supra, it was held that the City was liable for injuries caused by an employee of the city library, negligently driving a library automobile. That decision was based on the ground that the library was for the exclusive benefit of the City and the function being exercised was ministerial and not governmental. There the court said: “The mere fact that a particular work may incidentally benefit the public does not necessarily exempt the city for torts committed by its employees.”

In the Hanrahan case, supra, where the plaintiff was injured as the result of a wooden awning, which extended out over a sidewalk, falling down and striking him, the court said: “Where a municipal corporation is acting, within its authority, in a ministerial capacity in the management of its property or in the discharge of its duties in repairing or removing obstructions from streets, or is negligent in failing to discharge its duties of keeping its streets in repair and in safe condition for travel, it is liable for all injuries caused by such negligence when the party injured is exercising due care for his safety.” It further said: “A municipal corporation acts judicially when it selects and adopts a plan for the construction of a public improvement, but in carrying out such plan or in removing obstructions or dangers from its streets it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner.” Citing City of Chicago v. Seben, 165 Ill. 371.

In the Stedwell case, supra, where a boy climbed up a lattice-work structure in a public street and was injured by touching a wire charged with electricity, it was held that in lighting its streets the City was not exercising a governmental function and that the City was “bound to know the dangers incident to lighting its streets with electricity, and to guard against accident by the exercise of a degree of care commensurate with the danger.” Citing the Johnston case; Hausler v. Commonwealth Electric Co., 240 Ill. 201; Rowe v. Taylorville Electric Co., 213 Ill. 318.

In the Flannagan case, supra, an owner of private property used as a home brought suit against the City for damages caused by the City making an obnoxious dumping ground of certain property nearby or contiguous to her home, and recovered a judgment. The court held that the dumping of refuse on the neighboring property was not an exercise of the police power for which there was no liability. Citing City of Chicago v. Seben, 165 Ill. 371.

In the Curtis case, supra, the court intimated that where a dangerous condition exists in the streets of a City, which is caused by the servants of the City acting in a ministerial capacity, the City may be liable for injuries resulting therefrom.

We think it becomes quite obvious that, in this State, . cleaning a city alley by collecting the refuse and debris and burning it, as was done here, (1) was for a local city purpose and did not constitute an exercise of police power, and, further, (2) is as a matter of law, a ministerial function as distinguished from a governmental function, and, (3) as regards the negligence of a servant doing such work, the principle of respondeat superior applies and the City is liable. And applying those principles to the negligence and its result, which the evidence here shows, it follows, in our judgment, that the City is liable for the damages suffered by the plaintiff as the result of the destruction of his property by fire.

In our judgment, bearing in mind that the present ill-defined doctrine seems to have arisen from a misconception of early law, the ordinary principles of the law pertaining to torts ought to apply to a municipal corporation; in other words, such a corporation, like any other principal, should be liable for the torts of its agents, and the distinction between governmental and ministerial functions, used in determining the liability of a mumcipal corporation for negligence in affirmative conduct, should be abandoned. 24 Yale Law Journal 229; 4 Dillon, Mun. Corp. p. 3002.

“Injuries caused by negligence of municipal employees are proper items of expense to be borne by the community. For omission to perform public •duties running to the community as a whole there should of course be no municipal liability to private individuals. But in the undertaking of an affirmative course of conduct it is immaterial that the duty being performed is a public one from which the municipality derives no profit. Liability should be based upon the exaction of the law that everyone, in the performance of an affirmative course of conduct, must at his peril measure up to a standard of due care.” 34 Harv. Law Rev. p. 68.

Finding no error in the record, the judgment is affirmed.

Affirmed.

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


author: Mr. Presiding Justice Niehaus

text:
    Dave Feigenbaum, Appellee, v. Aetna Casualty and Surety Company, Appellant.
    Gen. No. 7,908.
    1. Ihsubance — when loss by holdup at insured’s “place of bustness” within terms of policy. Under a policy of insurance against robbery or holdup covering the insured’s place of business, a loss by holdup of the insured by persons entering the rear door of the building in which insured conducted his business and made his residence who compelled the insured to conduct them to an inner room fitted up and used by insured as an office, from which they took the day’s receipts of insured’s business, was a loss from a part of the building covered by the policy.

      2. Insurance — insured residing in rooms in rear of store building as “custodian regularly at worh on premises” within meaning of policy. Where a policy of insurance against loss by robbery or holdup provided that there should be no liability for a loss unless a custodian, defined as the insured or some person in his employ, was regularly at work on the premises at the time of the loss, the conditions of the proviso were sufficiently met where the insured resided in rooms in the rear of the building in which he carried on his business, and he was awakened by the robbers in the nighttime and fraudulently induced to open the rear door, after which he was compelled to conduct them to an inner room used as an office, where the actual robbery was perpetrated.
    3. Insurance — conditions governing construction of insurance contracts. In construing a policy of insurance the court should consider the instrument as a whole and endeavor to ascertain the intention of the parties from the written words used, taking into account the situation of the parties, the nature of the subject matter with which they are dealing, and the purpose which the parties sought to accomplish.
    4. Insurance — construction of policies to avoid loss of indemnity contracted for. Policies of insurance should be construed in favor of the insured so as not to defeat, without a plain necessity, his claim for indemnity, which, in taking the insurance, it was his object to secure.
    5. Insurance — construction of policies' against insurer in case of ambiguity. Where there is ambiguity in contracts of insurance, or where the meaning is uncertain, the construction should be strictly against the insurer, for the obvious reason that insurance contracts are prepared by the insurer.
    Appeal by defendant from the Circuit Court of Macoupin county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed April 15, 1926.
    William L. Patton, for appellant.
    Truman A. Snell and Jesse Peebles, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This is an appeal from a judgment for $620 rendered in the circuit court of Macoupin county in an action of assumpsit brought by Dave Feigenbaum, the appellee, against the appellant, Aetna Casualty and Surety Company. The suit was instituted to recover a loss suffered by the appellee on a policy of insurance against robbery or “holdup.”

The robbery by which the appellee suffered the loss in question occurred on February 9, 1924, at his store and residence, located at 235 Rice Street in Carlin-ville, where he carries on a general merchandise business. The appellee’s testimony in reference to the robbery and the place where it occurred, is as follows: “The storeroom is in the north end and immediately south of the storeroom are my living quarters and office. The office is right south of the south part of the store and you enter it from the store through aglass door. I had an office desk and filing cabinet and that is where I wrote my letters. The office is 50 feet from the front door and persons coming in there to go to the office would have to go the length of the store and through the glass door. * * * On Saturday, February 9, I opened the store about 8 o’clock in the morning and closed the business for that day about 9 o’clock at night. My wife and I conducted all the business in the store that day. I had a sale on shoes that day and took in $700, none of which was banked, because I was too busy to go down to the Bank to make the deposit. My Bank was about a mile and a half or two miles from my place of business. On that afternoon I counted my money and placed it in the filing cabinet ready to go down to the Bank, but I got busy waiting on people and when I got an opportunity to go to the Bank it was closed. * * * After I closed the store we had lunch and retired to bed about 10 o’clock. The bedroom in which I slept that night is marked ‘bedroom’ on the plat, Exhibit 1. The space marked ‘hallway’ is where I kept my filing cabinet and desk and my office was in the corner of that hall at the place where the plat is marked ‘ office. ’ * * * The room north of the bedroom I call the ‘stock room’ and the large room south of the kitchen is the dining room. The large room in front of all these rooms I have named is the store. After retiring I was awakened by my wife and got up and went towards the door leading into the kitchen from the east side. That is an outside rear door to the building and there is no other entrance door to the building from the south side. The only other entrance is the store' door at the north end of the building. "When I went to the rear door I had not quite opened the door when two men shoved in with guns. I asked them who it was and they said they wanted to call the doctor, some one being sick. They wanted to use the phone. I am accustomed to being waked up at that time of night by people wanting to use the telephone. I did not know the two men and they were masked with black cloths over their faces and said ‘Stick ’em up or we will blow your brains out.’ They said that to me and my wife and we did stick ’em up. They saw a ring on my wife’s finger and they said they would bite it off if she didn’t give it to them and she took it off and they took it. They made me show where the money was kept by putting their guns against my ribs and I showed them where the money was in the filing cabinet in the corner of the room that I call my office. They ransacked my cabinet, throwing things out and emptied my desk drawer and got the money out of the filing cabinet. It was in a roll and there was $608.00 in cash and $15.50 in checks. * * * I lost $620.00. After they got the money they told us to stay there for thirty minutes and not move or we would have our heads blown off and they then ran out through the door that they came in. I then gave my wife some water as she had fainted when they took off her ring and I then went for my gun which was in my dresser in the bed room and ran outside and shot. I then woke my neighbor, Mrs. Hoy, who lives right across from the rear part of our store and then called up the police^”

Appellant contends that there is no legal right of recovery under the facts presented by the record, for two reasons, which it insists are apparent:

6‘ First — that the robbery was not from the premises covered by the policy, to-wit: the place of business of appellee; and,

Second — that at the time of the robbery there was no custodian regularly at work within the premises. ’ ’ The policy in question contains two paragraphs with reference to the custodianship of the property covered by the insurance, namely:

“4. CUSTODIAN, within the meaning of this policy is limited to either the Assured or a person in the Assured’s employ (excluding watchman) not less than seventeen years of age and not more than sixty-five years of age, and authorized by the Assured to act as the Assured’s messenger, paymaster, collector or cashier, and while so acting to have the actual care and custody of property covered under this policy. * * * A. The Company shall not be liable for any loss: 11. Under Insuring. Clause B unless a custodian as herein defined is regularly at work within the premises at the time of loss.”

It may be said with reference to the first contention that the robbery in question was committed in the office of the appellee, which is directly and specifically mentioned in the policy, and covered by the policy. As to the second contention, namely, that at the time of the robbery there was no custodian regularly at work within the premises, it may be said that this involves a construction of that part of the policy relating to custodianship. In this case the custodian was the assured himself, and, by the terms of the policy, the assured could act as his own custodian or he could employ some other person to act as custodian, within certain limitations' defined by the clause referred to, and if he employed some other person, such person while acting must have had the actual care and custody of the property covered under the policy. It is reasonably clear, considering all the clauses in relation to custodianship together, that the words “unless a custodian as herein defined is regularly at work within the premises at the time of the loss,” does not have reference to the assured himself, but to another person when employed by the assured to act as custodian. The words “regularly at work within the premises ’ ’ can have no reasonable significance except in the sense that the custodian employed was performing the work involved in his duty of taking care of, or guarding, the property in his custody. But assuming that the clause mentioned did refer to the assured as custodian, the evidence shows that he was on duty in caring for his property and guarding it, otherwise the robbers would not have found it necessary to make him “stick ’em up” while consummating the robbery. In construing a policy of insurance, the court should consider the instrument as a whole, and endeavor to ascertain the intention of the parties from the written words used, taking into account the situation of the parties, the nature of the subject matter with which they are dealing, and the purpose which the parties sought to accomplish. Grand Lodge Knights of Pythias v. Fidelity & Deposit. Co. of Maryland, 223 Ill. App. 516, 520. It is well settled: “Policies of insurance should be liberally construed in favor of the insured so as not to defeat, without a plain necessity, his claim for indemnity, which, in taking the insurance, it was his object to secure. ’’ Tucker v. American Bonding & Casualty Co., 223 Ill. App. 266; Hartsock v. Kaskaskia Livestock Ins. Co., 223 Ill. App. 433; Weisguth v. Supreme Tribe of Ben Hur, 194 Ill. App. 17, 19. “Where there is ambiguity in contracts of insurance; or where the meaning is uncertain, the construction should be most strictly against the Insurance Company, for the obvious reason, that insurance pontracts are prepared by the insurer, and ambiguous words or terms will therefore be construed against the insurer.” Oberman v. United States Fire Ins. Co., 313 Ill. 172. Christ v. Mutual Life Ins. Co., 312 Ill. 525, aff’g 231 Ill. App. 439.

The judgment is affirmed.

Judgment affirmed'.


text:
    The People of the State of Illinois ex rel. Dora Lucy Gaddis, Plaintiff in Error, v. Wilford Gaddis, Defendant in Error.
    Gen. No. 7,930.
    1. Infants — considerations controlling determination of child’s custody. The best interests and welfare of the child are the controlling considerations in awarding its custody.
    2. Parent and child — preference to mother in awarding custody of children of tender years. Children of tender years will not, in general, be taken from the custody of their mother, where she is physically, morally and by general environment a proper person for them to live with and be controlled by.
    3. Habeas corpus — sufficiency of evidence to warrant giving mother of girl of four years. sole custody as against father where parents living apart. On petition for modification of a decree in habeas corpus proceedings awarding a bi-weekly alternation of custody of a child of parents living apart, a decree awarding sole custody to the mother should be entered where the evidence is that since the entry of the original decree the child has attained the age of four years and will soon be of school age, that being a girl, she has present and future special need of a mother’s care in the interest of her moral, mental and physical welfare, and that the mother is so situated as to minister adequately to her daughter’s needs.
    Error by plaintiff to the Circuit Court of Moultrie county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded with directions.
    Opinion filed April 15, 1926.

      Bryan H. Tionen, for plaintiff in error; Thomas B. Figenbagm and Carus S. Icenogle, of counsel.
    McLaughlin & Billman, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

It appears from the record in this case that Dora Lucy Gfaddis and Wilford Gaddis, who are husband and wife, are living separate and apart from each other, and have been so separated since November, 1922; that they have a daughter who was born on October 1,1920, and is at this time between five and six years of age. Since the separation of the husband and wife, she has been living with her father in his home in the city of Mattoon, and Gaddis has continued to reside in the home of his father on a farm in Moultrie county. After the separation, a controversy arose with reference to the custody of the child, Annette Pauline Gaddis. The wife filed a petition for habeas corpus in the circuit court of Moultrie county to procure the custody of the child, which proceeding resulted in a decree entered May 5,1923, which disposed of the matter by agreement of the parties. The agreement of the parties, which was embodied in the decree, was that the custody of the child be awarded alternately to the mother for two weeks, and to the father for two weeks, and under this arrangement the custody of the little girl has alternated between the parents since that time. On April 13, 1925, however, a petition was filed, on the relation of the mother, to modify the decree concerning the custody of the child, so as to give the mother the full care, custody and control thereof. A hearing was had upon the petition, and upon the hearing the prayer of the petition was denied, and it was ordered by the court that the decree alternating the custody of the little girl remain in force and effect. A writ of error is now prosecuted from the order and finding of the court.

It is alleged in the petition for modification of the decree first entered, “that since the entry of said order material changes have taken place in the conditions and circumstances affecting the best interests and welfare of said child upon the one hand, and the separate. rights of her father and mother upon the other. * * * That the said child is now past four years of age, * * * that she will soon be of school age, and soon must attend school, and that if the father have the child for two weeks, and the mother have the child for two weeks, it will obstruct and seriously hinder the child’s opportunities for a fair schooling, and make her attendance at school impracticable and valueless; that the relator, the mother of said child resides at the city of Mattoon, Illinois, in a prosperous and comfortable home of her father, where she and the child are given every necessity and comfort amid beneficial, pleasant and helpful surroundings, close to church and school and hospital; that the approaching girlhood and impressionability of said infant child, and her tender years, and need for a mother’s kindness and affection, make the terms of the present order a menace to her mental, moral, and physical future; that the- existing order of the court has become impracticable under the new existing conditions, and that the said girl child is attaining an age immediately approaching such a stage in life that her welfare as a girl can best be subserved by her mother, the relator; that said Wilford Gaddis has not provided, and under his present circumstances cannot provide suitable care and suitable home for said child, and that the health, education, training, interests and future moral and physical welfare of said child are jeopardized by his inability, and by the circumstances herein set forth.”

It is apparent from the averments in the petition, which are verified by the facts proven, that at the time of the entry of the first decree, alternating the custody of the child in question between the parents, nothing more than the custody of the child was involved, the child being only about two and a half years old; but that since that time, there is a change of conditions involving the custody, which require a modification of the decree for the best interests of the child, the child being now at approximately school age, and therefore her intellectual and moral training becomes a matter of serious concern, and it now becomes a matter of far reaching importance who should have the custody and control. It is well stated that the best interests and the welfare of the child are the controlling considerations in awarding the custody of children, and “that children of tender years will not be taken from the custody of their mother, where she is physically, morally and by general environment a proper person for them to live with and be controlled by.” Gillett v. Bryant, 203 Ill. App. 322; Pearson v. Pearson, 179 Ill. App. 127; 2 Bishop on Marriage and Divorce 532; Umlauf v. Umlauf, 128 Ill. 378. And it has often been emphasized that the necessities of a girl’s upbringing are provided best by the ministrations of a good woman. People v. Weeks, 228 Ill. App. 262. And in Miner v. Miner, 11 Ill. 35, the Supreme Court concisely stated the reasons for the rule above referred to, namely: “While the affection of parents for daughters may be equal, yet the mother, from her natural endowments, her position in society, and her constant association with them, can give them the care, attention and advice so indispensable to their welfare, which a father, if the same children were left to his supervision, would be compelled in a great degree to confide to strangers.” The evidence adduced, in support of the petition for modification of the decree, makes it clear that the best interests of the child demand a modification of the former decree, and that the mother be given the charge, custody and control of the child, and its education, subject to the rights of visitation by the father, which are already provided for in the former decree. The order of the court is therefore reversed, and the cause remanded with directions to modify the decree in accordance with this opinion.

Reversed 'and remanded with directions.


author: Mr. Presiding; Justice Niehaus

text:
    John West, Appellee, v. The Cincinnati, Indianapolis & Western Railroad Company, Appellant.
    Gen. No. 7,946.
    1. Master and servant — due care of employer in furnishing brake shoe to oar repairer injured by flying sliver as jwry question. Evidence in an action under the Federal Employers’ Liability Act for an injury to the eye of a car repairer, alleged to have been caused by a sliver of iron flying from a brake shoe when he tapped it with a hammer while fitting it to a brake beam, held to raise an issue for the jury as to the due care of the employer in furnishing the brake shoe to plaintiff as a safe appliance with which to do his work.

      2. Master and servant — question for jury as to causal relation between alleged latent defect in brake shoe and injury to eye of car repairer by flying sliver. Evidence 'in an action under the Federal Employers’ Liability Act for an injury to the eye of a car repairer, alleged to have been caused by a sliver of iron flying from a brake shoe when he tapped it with a hammer while fitting it to a brake beam, held to raise an issue for the jury as to whether the sliver flew from the brake shoe and injured plaintiff in consequence of a latent defect in the material or workmanship- of the brake shoe.
    3. Master and servant — when instruction directing verdict in action under Federal Employers’ Liability Act erroneous for omAssion of essential element of proof. Instructions, in an action under the Federal Employers’ Liability Act for injury to- the eye of a car repairer alleged to have been caused by a sliver of iron flying from a brake shoe when he tapped it with a hammer in fitting it to a brake beam, which purport to recite the elements of proof requisite to a verdict for plaintiff, but omit to direct attention to the essential element as to whether the injury was caused by a latent defect in the brake shoe, held fatally defective and their giving reversible error.
    Appeal by plaintiff from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed April 15, 1926.
    Geo. B. & Geo. M. Gillespie, for appellant; F. J. Goebel, A. P. Dohadio and Louis F. Gillespie, of counsel.
    Johh G. Friedmeyer, for appellee.
   Mr. Presiding; Justice Niehaus

delivered the opinion of the court.

In this case the appellee, John West, brought suit in the circuit court of Sangamon county against The Cincinnati, Indianapolis & Western Railroad Company, appellant, to recover under the Federal Employers’ Liability Act for damages suffered by him, by the loss of his right eye, while in the employ of the appellant.

The declaration alleges that the appellant negligently and carelessly provided and furnished the appellee with a certain brake:shoe with which to make on its cars and brakes thereof, which was defective in workmanship and material, and was unfit for use for the purpose for which it was provided by the appellant in repairing the brakes. To this charge in- the declaration, the appellant in defense filed the general issue and a special plea. The special plea avers that the appellee well knew at the time and place he was doing the work for the appellant, as alleged in the declaration, of the risk and danger necessarily incident in the performance thereof; that in performing said work the appellee assumed all the ordinary risks, hazards and dangers of the employment, and that the injury resulted to the appellee because of hazards, risks, and dangers ordinarily incident to the performance of the character of work which was performed by the appellee. To the special plea the appellee filed a replication averring that the materials and tools placed in his possession by the appellant contained latent defects, which were not apparent, and could not have been seen by inspection; that at the time the material and tools were placed in appellee’s possession to make the repairs alleged in the declaration, the appellee was not advised of such hidden defects, and that they could not be observed by the appellee in handling the same. The matters contained in the special plea and the replication formed the subjects of contention in the trial of the issues. There was a trial by jury, which resulted in a verdict and judgment in favor of the appellee, for $1,000. This appeal is prosecuted from the judgment.

The appellee, who was' a witness in his own behalf, testified, in reference to his employment and concerning his injury, that the duties of his employment were to repair and inspect all cars, passenger, freight, flat cars and box cars that were found to be defective, and which included automatic brakes, as well as hand brakes on cars. And in reference to the repair work on the particular car in question, and the manner in which he did the work, his testimony is as follows: “I had to take the whole shoe off and put on a new one, by lifting the pin and using bar and hammer. I slipped the bar to lift the pin that holds the brake-shoe to the head and then I pried the beam back and removed the old shoe and slipped a new one in place and it didn’t set up quite evenly, so I took my hammer and tapped it on the bottom to drive it in place. I was on my knee and Jake Money, was helping me. * * * A brake-shoe is made of cast iron, and is the part that fits, over the wheels to apply the brake. Weighs about 50 pounds, or about 25 pounds. Curved to fit the wheel, and got a lug on the back to slip a key through to hold it onto the head. The part of the brake that holds the brake-shoe onto the beam brake-head is made of steel. The brake-shoe is attached by one lug. When in position the brake-shoe should be firm and works against the wheels. When' the brake-shoe is not in use it drops away from the wheel, and when the air is set it pulls it right up to the wheel. The hand brake just draws it up. The cast-iron is about two and a half or three inches thick, four inches wide, twelve inches long. Used an old pinch bar in removing the shoe. Pinch bar is made of steel, about one inch in diameter, and two or three feet long. I used a heavy hand hammer like a blacksmith’s hammer. They call them truck-hammers. About two pounds in weight made of steel. There is nothing you could see that was wrong with the hammer. It looked all right. * * * When I repaired this car it was out on the switch track. The brake I removed was completely worn out and wearing the brake-head. After removing defective brake I went down the yards and got a brake-shoe. Took it up and put it on. I picked it up and looked at it to see that it was all right. It appeared in good condition. Then I put the shoe on. The man with me pried the brake beam back and I slipped the shoe in place. It wouldn’t set down on to the lugs as it should and I struck from the bottom to bring it into position so that the lugs on the brake-shoe would fit the lugs on the brake head. I tapped it lightly with the ball of the hammer. A little piece flew off and hit me in the eye. I had tapped it two or three times but not hard. The splinter struck me in the right eye. Brake-shoes are of cast-iron and moulded. The cast-iron was too brittle in this shoe and caused a sliver.”

It is assigned as error that the court, on motion of the appellant, refused to direct a verdict finding the appellant not guilty. It may be said in reference to this contention that whether the appellant used reasonable care in furnishing the brake-shoe to the appellee, as a safe appliance with which to do his work, and whether the sliver flew off of the brake-shoe and injured the appellee, as a consequence of a latent or hidden defect in the material or workmanship of the brake-shoe, were controverted questions of fact about which there was a conflict in the evidence, and the refusal of the court, therefore, to direct a verdict was not error.

Error is also assigned on the giving of instructions 1 and 3 for the appellee. The instructions are as follows:

“The court instructs the jury that if you believe from preponderance of the evidence that the defendant was engaged in operating a railroad as a common carrier of inter-state freight and passengers as alleged in the declaration or some count thereof, and that the plaintiff was in the employ of the defendant before and at the time of the injury alleged in the declaration as a car inspector and repairer, and that it was his duty under his employment with the defendant, to inspect and repair the railroad cars, appliances and equipment upon such cars with tools and material provided by the defendant for such purpose, and that the plaintiff was in the exercise of reasonable care for his safety; and while engaged in his employment with the defendant, the defendant negligently provided the plaintiff with a certain brake-shoe which was defective in material and workmanship, to make the repairs on a certain railroad car of the defendant loaded with interstate freight, and in course of interstate transportation, and that the defects in said material were not open and apparent, so that such defects could be ascertained or seen by the plaintiff, and in fitting the brake-shoe and putting the same in position, the plaintiff was injured in manner and form as alleged in the dec^ laration, then you should find the defendant guilty.

“The court instructs the jury that if you believe from a preponderance of the evidence that the plaintiff while engaged as an employee of the defendant in repairing the brakes upon a certain railroad car in the possession of the defendant for interstate shipment, used certain material or brake-shoes supplied to him by the defendant to make such repairs, and that the plaintiff used said brake-shoes, so supplied by the defendant to repair said car, and in doing so used the tools supplied by the defendant, and undertook to place said brake-shoe in position according to the usual and effective manner in so doing, and was in the exercise of reasonable care and skill in making repairs and putting said brake-shoe in position, and in so doing, the material of said brake-shoe splintered and broke, and injured and destroyed the sight of the right eye of the plaintiff in manner and form as alleged in the declaration; and if you further believe from the evidence that said brake-shoe was defective and that any defective condition of said brake-shoe could not have been seen or observed by the plaintiff before using the same, by the exercise of reasonable care on his part, and that the defendant was negligent in supplying the plaintiff with said brake-shoe, . then the plaintiff is entitled to recover damages in this case, and in such case you should find your verdict for the plaintiff.”

Both of the instructions referred to direct a verdict, and both of the instructions in reciting the elements of proof, necessary to be considered and passed upon by the jury and entitle the appellee to a verdict, fail to direct the jury’s attention to one necessary element of proof which they should pass on, namely, whether the injury to appellee, which came from a sliver flying from the brake-shoe, when appellee was pounding the shoe with a hammer, was caused by the alleged latent, or hidden defect in the material or workmanship of the brake-shoe. This omission could not be supplied by merely using the language that “in fitting the brake-shoe and putting the same in position, the plaintiff was injured in manner and form as charged in the declaration. ’ ’ Whether or not it was a latent or hidden defect in the material or workmanship of the brake-shoe that caused the sliver to fly from the brake-shoe when the appellee was hammering it, was one of the vital issues in the case, and a controverted question; hence instructions which purport to recite the necessary elements of proof which the jury should consider and pass upon in finding a verdict in favor of the appellee, should have directed attention to that element of proof, and the failure to do so is reversible error. Cromer v. Borders Coal Co., 246 Ill. 451; Illinois Cent. R. Co. v. Smith, 208 Ill. 608; Bradley v. Vandalia R. Co., 207 Ill. App. 592.

For the reasons stated, the judgment is reversed and the cause remanded.

Reversed and remanded.