author: Mr. Presiding Justice O’Connor Mr. Justice Thomson,

text:
    The People of the State of Illinois, Defendant in Error, v. A. William Benson and Irvin Hutchinson, Plaintiffs in Error.
    Gen. No. 29,451.
    1. Homicide — degree of proof of assault with deadly weapon consisting of reckless automobile driving. Although the Supreme Court has held that where the conduct of the driver of an automobile was so reckless, wanton and wilful as to show an utter disrégard for the safety of pedestrians a conviction for assault with a deadly weapon would be warranted, the proof must show the guilt of the defendant beyond a reasonable doubt, before a conviction will be sustained.
    2. Homicide — when assault with deadly weapon by reckless automobile driving established by evidence. A conviction for an assault with a deadly weapon — an automobile — was sustained as to one of two defendants, where the defendant whose conviction was sustained was operating his Ford automobile with one hand, and going at a speed of between twenty-five and thirty miles an hour, the other arm being around the young woman sitting at his side, and where a few minutes before the accident another automobile had passed, and the driver of the Ford car speeded up and passed the other car and In passing struck and overturned it, injuring the occupants, although such car had pulled out to permit the Ford car to pass.
    3. Homicide — insufficiency of evidence of assault with deadly weapon. The conviction of the companion of the driver of an automobile for an assault with a deadly weapon was set aside under the rule that the guilt of the defendant must be established beyond a reasonable doubt, although the conviction of the driver was sustained, where there was no evidence that such companion in any way directed the driving of the car in question, except the slight circumstance that he stated after the accident that he thought it would be fun to pass the other automobile.
    Thomson, J., dissenting.
    Error by defendants to the Criminal Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1924.
    Affirmed as to Benson and reversed as to Hutchinson.
    Opinion filed June 17, 1925.
    William P. Churchill and P. A. Rattray, for plaintiffs in error; Henry L. Cowlin, of counsel.
    Robert E. Crowe, State’s Attorney, Edward E. Wilson and Clarence Nelson, Asst. State’s Attorneys, for defendant in error.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

A. William Benson and Irvin Hutchinson were indicted for an assault with a deadly weapon — an automobile, — a jury was waived and after a hearing the court found both defendants guilty. Benson was sentenced to six months in the county jail and to pay a fine of $50, and Hutchinson was sentenced to three months in the county jail and a fine of $10 imposed.

Convictions for manslaughter, where the death was caused by the reckless driving of an automobile, have been upheld by the Supreme Court and in such cases it has been held that no intent to kill or malice need be shown. People v. Falkovitch, 280 Ill. 321; People v. Camberis, 297 Ill. 456; People v. Schwarts, 298 Ill. 218. And it has also been held that where the conduct of the driver of an automobile was so “reckless, wanton and wilful as to show an utter disregard for the safety of pedestrians, a conviction for assault to commit a bodily injury would be warranted. ’ ’ People v. Anderson, 310 Ill. 389; People v. Clink, 216 Ill. App. 357; People v. Adams, 289 Ill. 339; Aiken v. Holyoke St. R. Co., 184 Mass. 269; State v. Schutte, 87 N. J. L. 15; People v. Anderson, 229 Ill. App. 315. Obviously before such conviction will be sustained, the proof must show the guilt of the defendants beyond a reasonable doubt.

The record discloses that about 8:30 o’clock, Sunday morning, October 14, 1923, the defendants, two young men about twenty-one years of age, together with two young women, left Chicago in a Ford coupé for Crystal Lake, Illinois; that about 9:30 o’clock they had reached a point about two miles beyond Desplaines and were traveling northwesterly on the Rand road toward Crystal Lake. At that time the defendant Benson was driving. One of the young women sat next to him and Hutchinson, the other defendant, was sitting on the right-hand side of the seat. The other young woman was sitting on Hutchinson’s lap. There was but one seat in the Ford coupé. Behind the Ford, traveling in the same direction, was a Chevrolet touring car, driven by Leo T. Addison, who was taking his family, consisting of himself, wife and two children and his friends, Mr. and Mrs. Maierhofer to Crystal Lake. Addison was driving the Chevrolet and Maierhofer was sitting on the front seat by him, the women and children seem to have been on the rear seat of the automobile. Both cars were traveling about twenty-five or thirty miles per hour. The Chevrolet passed the Ford, and when they had proceeded a distance of about two city blocks Addison heard the honk of the Ford automobile, indicating that it was about to pass him and Addison pulled toward the right for this purpose. The occupants of the Chevrolet car testified that as the Ford was passing it struck the Chevrolet and turned it completely over, injuring the occupants of the Chevrolet. The Ford car continued on for a distance of about a block. It then stopped and the defendants and the two young women went back to see what damage had been done. In the meantime other citizens had gathered around and lifted the Chevrolet so that the persons could get out from under it. Some of them were severely injured and Addison, the driver, was bleeding from injuries he had received. There is no conflict in the evidence up to this point, except that the occupants of the Ford testified that the Ford car did not strike the Chevrolet when passing it and that they did not know that any accident or injury had befallen the Chevrolet or its occupants until one of the young women, who was sitting on Hutchinson’s lap, looked back and saw that the Chevrolet had turned over.

Addison, who was driving the Chevrolet, testified that when he passed the Ford car on Band road the driver of the car “was driving with his arm around one of the girls and that the other boy was holding the other girl on his lap.” That after having gone what would be the length of two city blocks, he got a horn from somebody to pass and he pulled over to give them the road; that “as they came opposite to me I could see them heading right for me. They hit my front wheel which locked the driving power of my car”; that the Chevrolet then turned over; that the Ford was going between twenty-five and thirty miles an hour.

George Maierhofer, who was on the seat with Addison, testified “the driver had his arm around the girl.” The defendants and the two women denied that the driver had his arm around one of the girls when they passed the Chevrolet.

After the defendants rested, Addison testified in rebuttal that three or four days after the accident he went to Crystal Lake and interviewed the defendants; that he talked with the defendant Hutchinson and that Hutchinson said he thought it would be fun to pass us, but he didn’t know he was so close when he hit us; that he then went to Benson’s home at Crystal Lake and that Benson said, “I didn’t know they were so close as to hit us.” There is further evidence in the record, but we have stated the substance of all that is material.

The record discloses that after the evidence was all in and during the argument of counsel, reference was made to the case of People v. Schwartz, 298 Ill. 218, as well as other cases and that the Sclvwartz case was tried before the judge who presided at the trial of the instant case. In that case a judgment of manslaughter was upheld by the Supreme Court. The evidence showed that about 9:30 o’clock of the evening of November 30, the defendant, a licensed taxicab driver, while driving at about twenty miles per hour in Ashland avenue, a short distance north of 19th street, struck two young women who were crossing the street about 100 feet north of 19th street — not at a street crossing, — injuring one of them so badly that she died within a few hours. After referring to that case, the learned trial judge said: “There isn’t any doubt as to the guilt of the driver here. This driver Benson is guilty. There is altogether too much of this reckless driving by these young bloods along the streets of the cities and out in the country endangering the lives of the people on the streets.” He then stated there was some doubt of Hutchinson’s guilt, but that he was in general a part of the group with Benson and afterwards held them both guilty, and said speaking of both: “They had these two girls with them. They were showing off before the girls.” He further stated that an automobile was a dangerous instrument with a powerful engine and that: “It is not the fault of either of these two young bloods that, the people in that automobile were not killed. * * * I don’t know whether the other defendant (Hutchinson) is guilty or not.”

We think the evidence is insufficient to warrant the finding that Hutchinson was guilty beyond a reasonable doubt. He was sitting on the seat, but there is no evidence that he in any way directed the driving of the machine at the time in question, except the slight circumstance testified to by Addison which occurred three or four days after the accident, when Hutchinson told him that he thought it would be fun to pass the Chevrolet. Upon consideration of all the evidence, we think it is insufficient so far as the defendant, Hutchinson, is concerned. We are of the opinion, however, that the court was warranted in finding Benson guilty. The evidence tended to show that he was driving in a reckless maimer without any regard for the rights of other people traveling on Band road; that he was driving with one hand, the other arm being around the young woman sitting by his side; that a few minutes before the accident the Chevrolet had passed the Ford; that the driver then speeded up and passed the Chevrolet. And upon a consideration of all the evidence in the record, we are of the opinion that the learned trial judge was warranted in finding that the defendant was reckless, negligent and driving without any regard for the rights of others. We think the facts in the record show more wanton negligence than the facts in the Schwarts case where a conviction for manslaughter was upheld.

The judgment of the criminal court of Cook county as to the defendant Benson is affirmed and as to the defendant Hutchinson it is reversed.

Reversed as to Hutchinson and affirmed as to Benson.

Taylor, J., concurs.

Mr. Justice Thomson,

dissenting: In my opinion

the judgment appealed from in this case should be reversed, not only as to the defendant Hutchinson but as to the defendant Benson, as well. In my opinion there would never have been any thought of chargmg these defendants with such a degree of negligence as to make it criminal and support a complaint charging assault with a deadly weapon, if it had not been for the contention that the driver was attempting to guide his car along the road with one hand while his arm was around the girl sitting next to him. As I read this record there is little to substantiate any such fact, except that the other girl was sitting on Hutchinson’s lap, — there being but one seat in the car and four people riding in it. The prosecuting witness did testify on direct examination that “there was one of the boys driving with his arm around one of the girls,” but in my opinion that testimony was shown not to be very reliable on cross-examination. This witness was asked whether the arm he saw around the girl was in a shirt sleeve or a coat sleeve and he said he didn’t know. He was asked whether it was the driver’s right arm or left arm and he didn’t know. He was further asked whether the arm was around the girl’s waist or neck and he could not say. There was some further testimony by witnesses for the prosecution tending to show that Benson had his arm around the girl next to him, but it was not of a very positive or satisfactory nature. Benson denied that he had his arm around the girl and testified that he was driving with both hands and the girl testified to the same effect.

Even if the evidence seemed to be sufficiently strong on this point to establish beyond a reasonable doubt that Benson was driving with one hand, I am of the opinion that, on the whole record, a case of criminal negligence was not made out. There was no other vehicle within the immediate vicinity of these two cars; the Ford was passing the Chevrolet, and as Benson steered back toward the right side of the road, his ear apparently came into contact with the left front corner of the Chevrolet. That the part of the Ford which came into contact with the Chevrolet must have been the rear part is evidenced by the fact that the occupants of the Ford, according to the testimony of all of them, would never have known anything had happened if the girl who was sitting on Hutchinson’s lap had not had a view to the rear and saw the Chevrolet turn over. As Benson drove the Ford past the Chevrolet his view to the right was necessarily interfered with materially by the girl who was sitting on Hutchinson’s lap. In my opinion that furnishes the explanation of how this accident came about. Benson not having a clear view in that direction, assumed that he was entirely past the Chevrolet, when, in fact, he was not, and he turned over too soon. From the testimony of some of the witnesses for the prosecution, they would seem to give the impression that Benson deliberately steered, his car into the Chevrolet. In my opinion there is no reasonable basis for any such contention. Such a course would have involved a greater danger to himself and the occupants of his car than to those in the Chevrolet. As I view this evidence the collision that occurred was an accident. That Benson was guilty of negligence in causing the accident is apparent. That his negligence was shown to be of such a character as to amount to criminal negligence, beyond a reasonable doubt, I think the record fails to establish. In that respect it seems to me the finding of the trial court was against the manifest weight of the evidence.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    O’Keefe Brothers Company, Appellee, v. Harold J. Finder et al., on appeal of Harold J. Finder, Appellant.
    Gen. No. 29,469.
    1. Appeal and ebbob — conclusiveness of recitals of record. Assuming that the contention that after a judgment of the municipal court of Chicago has been set aside a new judgment could not properly be entered without the intervention of a new trial and the hearing of evidence be correct, it was unavailing on appeal where, a judgment having been entered against two defendants, the record of the second judgment against one of such defendants recited that the court heard evidence and then made its finding and entered judgment on the finding.
    2. Appeal and ebbob — presumptions on appeal in absence of bill of exceptions. Although the rule is that when an action is brought upon a joint contract judgment must be rendered against all or none, unless a personal defense is interposed by one or more of the defendants of such character as infancy, bankruptcy or the like, in the absence of a bill of exceptions, in an action claimed to have been based upon a joint contract, and in which judgment was entered against only one of several defendants, showing what evidence was heard at the trial, it was presumed that the other defendant interposed a personal defense.
    3. Appeal and ebbob — affirmance of judgment against one of several defendants. Failure of the record to show any disposition of an action on an alleged joint contract as to one of several defendants sued “jointly or severally” will not, in itself, prevent the judgment from being affirmed in the absence of any showing of prejudicial error as to the defendant appealing.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1924.
    Affirmed.
    Opinion filed June 17, 1925.
    Dulsky, Friedman, Schimberg & Komie, for appellant; S. D. Friedman, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against Harold J. Finder, John B. Miller and Louis Polakow “jointly or severally” to recover $321.32, claimed to be due plaintiff from the defendants for goods, wares and merchandise sold and delivered. All of the defendants were served with process and the defendant, Finder, filed an affidavit of merits denying that plaintiff had sold or delivered the goods, wares and merchandise mentioned in the statement of claim and denied that he was jointly liable with the other two defendants. The other two defendants, Miller and Polakow, filed a joint affidavit of merits, in which they set up that they had never ordered or received the goods, wares and merchandise referred to in the plaintiff’s statement of claim and denied any indebtedness. They further set up that Miller ordered coal as alleged by plaintiff on behalf of the defendant Finder for certain premises as he was authorized to do by Finder. The cause came on for hearing and the suit was dismissed as to the defendant Polakow and after hearing the evidence the court found the issues against Finder and Miller for the sum of $321.32, the amount of plaintiff’s claim. Judgment was entered upon the finding and Finder and Miller prayed and were allowed an appeal to the Appellate Court, upon filing a bond and a bill of exceptions within a specified time. Two days after-' wards, plaintiff moved the court to vacate the finding and judgment. The motion was allowed and it was ordered that the finding and judgment be vacated and set aside. The order then recites: “And the court having heard the evidence and the arguments of counsel and being fully advised in the premises enters the following finding, to-wit: ‘The court finds the issues against the defendant, Harold J. Finder, and assesses the plaintiff’s damages at the sum of Three Hundred twenty-one and 32/100 dollars ($321.32) ’ ” Judgment was entered on the finding and the defendant, Finder, was allowed an appeal to this court upon filing a bond within thirty days and a bill of exceptions within sixty days. He has perfected his appeal by filing the common-law record in this court. There is no bill of exceptions in the record, so that we do not have the evidence that was heard by the trial judge before us.

The defendant first contends that when the court set aside the first judgment entered, a new trial should have been awarded; that it was error for the trial judge to enter a new judgment “without the intervention of a new trial,” that is, that the second or new judgment could not properly be entered without the court hearing evidence. If we assume that defendant’s position is in accordance with the law, we think it is of no avail because when the second or new judgment was entered, the record states that the court heard evidence and then made its finding against Finder and entered judgment on the finding. In these circumstances, it is clear that according to the record the court did hear evidence before entering the second or new judgment.

The defendant, Finder, further contends that since the suit is one in contract against several defendants, plaintiff must have judgment against all or none, and it was error to enter judgment against him without disposing of the case against the defendant, Miller. The law is, as contended by the defendant, that when an action is brought upon a joint contract, judgment must be rendered against all or none (Kingsland v. Koeppe, 137 Ill. 344) unless a personal defense is interposed by one or more of the defendants of such character as infancy, bankruptcy or the like. Merrifield v. Western Cottage Piano & Organ Co., 238 Ill. 526. But in the absence of a bill of exceptions showing what evidence was heard on the trial, we must presume that the defendant, Miller, interposed a personal defense such as infancy, bankruptcy or the like since it is the law that every intendment must be presumed in favor of the validity of the judgment. And while the record shows no disposition to the case as to the defendant, Miller, it is not pointed out how this in any way prejudiced the defendant, Finder. It is only for prejudicial error, in the absence of some positive rule of law to the contrary, that warrants us in reversing a judgment. Since the defendant, Finder, has failed to indicate in what manner he had been prejudiced by the failure of the court to dispose of the case against Miller, he cannot be heard to complain.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Thomson and Taylor, JJ., concur.


text:
    J. D. Watson, Appellant, v. Canadian Pacific Railway Company, Appellee.
    Gen. No. 29,517.
    1. Carriers — admissions as to applicability of foreign lam by demurrer. In an action against a Canadian railroad as initial carrier for damages for failure to safely carry and deliver freight to a point in the United States, plaintiff admitted the allegations of a special plea setting up that the carriage was under a special contract which limited the defendant’s liability to its own acts and exempted it from liability for acts or omissions of connecting carriers, that the damage or loss in question was all sustained on the lines of connecting carriers and that none of the services rendered by it were to be rendered in the United States, by demurring thereto and standing on his demurrer without taking issue on the allegations of the plea, so as to exclude the operation of the Interstate Commerce Act for want of extraterritorial effect.
    2. Conflict of laws — territorial limitations of Interstate Commerce Act to United States. The Interstate Commerce Act did not apply to a shipment transported from a foreign country, where all of a railroad’s services were to be performed in such foreign country, as the Act cannot be given extraterritorial effect.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. John H. Marshall, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1924.

      Affirmed.
    Opinion filed June 17, 1925.

      Certiorari denied by Supreme Court (making opinion final).
    Blum, Blum & DeLaney, for appellant.
    Winston, Strawn & Shaw, for appellee; Frank H. Towner, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action of trespass on the case against the defendant and others to recover the damages claimed to have been sustained by him by reason of the defendant’s failure to transport seven carloads of cattle from Calgary, Canada, to Chicago, Illinois, within a reasonable time and without injury to the cattle. The suit was dismissed as to all of the defendants except the railway company. It filed a plea of the general issue and two special pleas. Plaintiff filed a demurrer to the two special pleas which was overruled as to one of the special pleas and sustained as to the other. He elected to stand by his demurrer, his suit was dismissed and he appeals.

The declaration alleged that the defendant was a common carrier and that plaintiff at Calgary, Alberta, Canada, delivered to it seven carloads of cattle of great value which the defendant agreed to transport safely and securely to Chicago in consideration of a certain reward to the defendant; that the defendant failed to safely and securely deliver the cattle to plaintiff at Chicago and as a result plaintiff sustained damages. The substance of the special plea, which was held good upon demurrer, was that at the time the cattle were delivered by plaintiff to the defendant at Calgary, the contract of shipment was contained in and was a part of defendant’s tariffs on file with the Board of Railroad Commissioners of the Dominion of Canada, which provided that if a shipper made shipments subject to the terms and provisions of the contract, they would be transported at a rate of freight lower than would be charged if the shipment were not transported subject to the provisions and conditions of the contract; that plaintiff in making the shipments secured the benefit of the lower rate of freight provided for by the defendant’s tariffs then on file with the Board of Bailroad Commissioners ; that the contract entered into between the parties for the transportation of the cattle provided that the defendant would not be liable for anything done or omitted to be done off the lines of railway operated by it, and that where the destination to be reached was not on the lines which were operated by the defendant, it was to act only as the agent of owner or shipper in handing over the cattle to the connecting carriers and would not be liable or answerable for any acts or omissions of such carriers. The plea further set up that none of the loss or damage claimed by the plaintiff occurred on the defendant’s line of railway; that the defendant transported the cattle from Calgary, Canada, over its line of railway and delivered them to a connecting carrier in the Dominion of Canada, and that none of the services performed by the defendant was within the United States. By this plea the defendant further alleged that under the facts thus set forth in the plea and under the law of the Dominion of Canada, as declared by the statutes and the courts thereof, all the provisions of the contract entered into between it and the plaintiff were valid and binding.

Plaintiff contends that under the contract entered into for the transportation of the cattle, the services were to be partly performed in the United States and partly in Canada, an adjacent foreign country, and, therefore, defendant was liable for the damages claimed as initial carrier under section 20 of the Interstate Commerce Act. That section provides that: “Any common carrier, railroad or transportation company, subject to the provisions of this act, receiving property for transportation * * * from any point in the United States to an adjacent foreign country, shall issue a receipt or bill of lading and shall be liable to the lawful holder thereof, for any loss, damage or injury to property caused by it or by any common carrier, railroad or transportation company to which said property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country * * * and no contract, receipt, rule, regulation or other limitation of any character whatsoever shall exempt such comm,on carrier, railroad or transportation company from liability herein imposed.” It is argued that, although the statute provides that the common carrier receiving property for transportation from any point in the United States to an adjacent foreign country, it likewise applies to the transportation of such property from a foreign adjacent country to the United States. In support of this the case of Galveston, H. & S. A. Ry. Co. v. Woodbury, 254 U. S. 357, is cited. In that case it appeared that Mrs. Wood-bury bought a round-trip ticket from a railway company in Canada, entitling her to travel over the railroad in Canada and connecting lines to El Paso, Texas; that when she was returning, her trunk, which she had checked, was lost by a railroad company in Texas. She brought suit against the Texas railroad company for the value of the trunk and contents and it was held that the Interstate Commerce Act applied and that the liability for the loss of such trunk was limited to $100 in accordance with the provisions of the tariffs filed with the Interstate Commerce Commission. In passing on section 1 of the Interstate Commerce Act (not section 20, as counsel for plaintiff contends), the court held that although section 1 of the Act provided that it should be applicable to the transportation of passengers and property “from any place in the United States to an adjacent foreign country” that it would be equally applicable to a common carrier engaged in transportation to the United States from an adjacent foreign country. The court there in considering this question said (p. 359): “The test of the application of the act is not the direction of the movement, hut the nature of the transportation as determined by the field of the carrier’s operation.” We think the language of section 20 of the Interstate Commerce Act in this respect is not materially different from that employed in section 1, and that there would be much force in plaintiff’s argument if it appeared from the record that part of the services agreed to be rendered by the defendant was to be performed in the United States as plaintiff contends. While plaintiff in his declaration alleged that the defendant agreed to transport the cattle from Calgary, Canada, to Chicago, the plea traverses this allegation and sets up that the defendant’s agreement was not to transport the cattle to Chicago, but to deliver them to a connecting carrier as agent for plaintiff in Canada; that it did so deliver the cattle to such carrier and that it did not perform or agree to perform any services in the United States. If plaintiff desired to take issue on the allegations of the plea he should have replied, but, having demurred the allegations were admitted to be true, and, therefore, since it appears from the allegations of the plea that all of the defendant’s services were to be performed in Canada, the Interstate Commerce Act cannot apply, because it cannot be given any extraterritorial effect.

The judgment of the circuit court of Cook county is affirmed.

Affirmed.

Taylor, J., concurs.

Mr. Justice Thomson,

specially concurring: I con-

cur in the decision of this case, but not in all that is said in the foregoing opinion. I do not agree with all that is said in comparing sections 1 and 20 of the Interstate Commerce Act. I agree that the defendant would probably be liable in this case if its own service had extended into the United States, but not for reasons advanced by plaintiff in his argument presented in this case.


text:
    Union Pacific Railroad Company, Appellee, v. Denney and Company, Appellant.
    Gen. No. 29,542.
    1. Evidence — admissibility of freight tariffs approved and published by Interstate Commerce Commission. The tariffs as approved and published by the Interstate Commerce Commission were proper evidence in an action by a carrier to recover for reicing cars of perishable commodities under paragraph A of section 15 of the Interstate Commerce Act, 4 Fed. St. Ann. (2nd Ed.), p. 459.
    2. Carriers — jurisdiction of courts to construe freight tariffs published by Interstate Commerce Commission without precedent action by commission. Where no question of fact is involved the court has jurisdiction to decide the meaning of a tariff provision published by the Interstate Commerce Commission without first submitting such matter to the commission.
    3. Carriers — construction of freight tariffs published by the Interstate Commerce Commission relative to reicing. The provisions of rule 200, par. D, and rule 225, pars. A and D, of the tariffs published by the Interstate Commerce Commission, effective February 28, 1920, considered in an action by a carrier to recover for icing cars of perishable commodities, and held that the provision that when cars are stopped or held at intermediate points, awaiting reconsignment instructions from the shipper, a charge will be made for the ice supplied during that time, did not preclude the making of a charge for ice furnished after the giving of reconsignment orders and before the cars could conveniently be moved forward, where the necessity for reicing was brought about by the shipper and there was no question of negligence on the part of the carrier.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. James W. Gordon, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1924.
    Affirmed.
    Opinion filed June 17, 1925.
    Rehearing denied July 1, 1925.

      Blum, Blum & DeLaney, for appellant; J. V. DeLaney & Leo N. McGlinn, of counsel.
    John A. Sheean, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendant to recover for the icing of nine cars of perishable commodities which were transported by plaintiff for the defendant from Washington, Idaho and Utah to North Platte and Omaha, Nebraska and other eastern points. There was a finding and a judgment in plaintiff’s favor for the amount of his claim, $57.21, and the defendant appeals.

The material facts in the case were stipulated and from them it appears that plaintiff transported for the defendant perishable commodities in refrigerator cars from points in Washington and other western States to North Platte, Nebraska, and other cities. For this service the defendant paid plaintiff in addition to the freight rates stated refrigeration charges as fixed by the Interstate Commerce Commission in the published tariffs. When a car reached North Platte or other points in that vicinity, it was, upon order of the defendant, held at that point for further instructions. Upon the arrival of a car at North Platte, plaintiff filled the bunkers with ice for which it received compensation as part of the stated refrigeration charges. Afterwards and while the car was being held awaiting instructions from the defendant, the car would be reiced and the charges paid for by the defendant and it is admitted that the railroad company was paid by the defendant for the icing for that period. Later when the defendant gave to plaintiff reconsigning orders, it was sometimes necessary for the plaintiff to reice the cars before they could be moved forward and it is to recover the charges for such icing that plaintiff sues.

The defendant contends that under the published tariffs plaintiff was not authorized to charge for any reicing of the cars after the defendant had given plaintiff the reconsigning orders. The tariffs, as approved and published by the Interstate Commerce Commission, were introduced in evidence. They were proper evidence under a provision of paragraph A of section 15 of the Interstate Commerce Act. 4 Fed. St. Ann. (2nd Ed.), p. 459. This tariff became effective February 28, 1920. The pertinent parts of such tariffs are paragraph B of rule 200 and paragraphs A and B of rule 225. Paragraph B of rule 200 provides that: “Stated refrigeration charges shown herein include the services of icing and reicing from point of origin to final destination, except as otherwise provided in rules Nos. 75, 215 and 225.” Paragraph A of rule 225 is headed as follows: “At Intermediate Points” — “Reicing at Intermediate Stops or Hold Points, at Reconsigning Points and at Final Destination” and the rule is: “ (A) When cars are stopped or held at any intermediate point between origin and final destination on orders of or awaiting reconsigning or other instructions from shipper, owner, or consignee, carrier will examine bunkers or tanks daily and when such cars require additional ice they will be re-iced to capacity and when ordered forward from such intermediate points bunkers or tanks will be re-iced to capacity before forwarding” (see paragraph D) Paragraph D is as follows: “When cars are stopped or held at any intermediate point or points between point of origin and final destination on orders of, or awaiting reconsigning instructions from, shipper, owner or consignee, a charge as published in Section No. 4 of this tariff will be made for all ice which will be supplied at such intermediate stop or reconsigning point and collected in addition to all other charges. Exception. When the point at which the car is stopped or held is an established icing station at which shipment would have been re-iced in any event, no charge will be made for the ice necessary to fill the bunkers upon arrival of car at such icing station.”

It is admitted that all matters were stipulated, except as to the interpretation and meaning of the tariff provisions.

The defendant contends that the court erred in permitting witnesses to testify on the trial in explanation of the provisions of the tariff. Witnesses were called for this purpose by plaintiff, but an examination of the record discloses that the trial judge refused to allow testimony to this effect, stating that the meaning of the provisions of the tariff was a question of law for the court. It is obvious that the ruling of the trial judge was proper, but the defendant in its reply brief makes the point that the court had no jurisdiction to construe the tariffs, hut that this matter must first be submitted to the Interstate Commerce Commission. If counsel for defendant’s contention were sustained, no court would have jurisdiction to ever decide the meaning of any tariff provision as a matter of law. This, of course, is obviously unsound. And since no question of fact was involved, the court had jurisdiction. Great Northern Ry. Co. v. Merchants Elevator Co., 259 U. S. 285. But the defendant further contends that in any event the interpretation placed upon paragraph D of the tariff is erroneous, because that paragraph provides that when cars are stopped or held out at intermediate points, awaiting reconsigning instructions from the shipper, a charge will be made for ice supplied during that time, but that this does not authorize the charging for ice supplied after the reconsigning order is given; that since the ice involved was furnished by the plaintiff after the defendant gave the reconsigning orders and before the cars moved forward, the tariff did not authorize plaintiff to make a charge for such ice. We think this construction of the language of paragraph D is too narrow. That paragraph provides that: “A charge ” * * will be made for all ice which will be supplied at such intermediate stop or reconsigning point and collected in addition to all other charges,” with but one exception, viz., “When the point at which the car is stopped or held is an established icing station at which shipment would have been re-iced in any event, no charge will be made for the ice necessary to fill the bunkers upon arrival of the car at such icing station.” The ice supplied at such intermediate stop or reconsigning point includes all ice supplied at that point whether before or after reconsignment instructions are given and up to the time the shipment moves forward in compliance with the reconsignment orders. The only exception to that involves the ice necessary to fill the bunkers on arrival of the shipment at the intermediate stop when that is a regular established icing station. The necessity for reicing was brought about by the direction of the defendant in ordering the cars held awaiting reconsigning orders.

It seems obvious that plaintiff could not always be in a position to immediately move the cars forward upon receiving the reconsigning orders. Some delay must inevitably take place, and in the instant case it being stipulated that there was no negligence on the part of the plaintiff we think defendant was required to pay for the icing in question by virtue of paragraph D of the tariff.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Thomson and Taylor, JJ., concur.


text:
    Rose Fitzgerald, Appellee, v. John L. Davis and Joseph Shlay, Appellants.
    Gen. No. 29,560.
    1. Highways and streets — negligence of both codefendants as jury question. In an action against two drivers of automobiles, where one struck the other and the latter skidded and collided with the automobile in which plaintiff was riding, and one defendant claimed that he was not liable because his car was north of the center line of the boulevard and he was driving at moderate speed, and that the plaintiff’s injury was brought about by the fact that the other defendant came over north of the center line, which resulted in the collision, the question whether both of the defendants were negligent was for the jury to decide.
    2. Appeal and error — estoppel to complain of refusal to give instruction requested by codefendant. A codefendant in a collision case against the drivers of two automobiles could not complain because the court refused to give an instruction on behalf of the other defendant.
    3. Damages — excessiveness of verdict for damages for personal injuries. A verdict for $2,500, reduced to $1,750 was held not excessive where the injured party sustained a cut in the cheek and slight bruises about the head and shoulders, and the cut in the cheek left a permanent scar, and where plaintiff was under a physician’s care for about three weeks and confined to bed about a week, and where plaintiff still suffered pain in her shoulder nearly two years after the accident, and there was evidence that the facial nerves were involved.
    4. Harmless error — when improper argument of counsel not reversible. Improper argument of counsel for plaintiff in a personal injury case in referring to a permanent scar on her cheek resulting from the accident, repeated after an objection was sustained on the ground that humiliation was not an element of damages, was not reversible error where the case was not a close one, the damages were not excessive and an instruction was given, as to recovering damages for disfigurement, more favorable than the defendant was entitled to.
    5. Damages — personal disfigurement as an element of damages. A party may recover for disfigurement resulting from an accident; the law only prohibits the recovery of damages in such a case for mental suffering resulting from disfigurement or chagrin, and which suffering has no relation to physical pain.
    6. Judgments — when judgment properly entered for full amount of verdict against each defendant in tort action. Where the verdict in a personal injury case against two defendants assessed the damages at “twenty-five hundred dollars ($1,250) each,” the words stating that the amount be divided equally were treated as surplusage, and judgment below for the full amount was properly entered after the remittitur against both defendants.
    Appeal by defendants from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1924.
    Affirmed.
    Opinion filed June 17, 1925.
    Frank M. Cox, Richard D. Brown and Hall & Spitz, for appellants.
    John Foster, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendants to recover damages for personal injuries claimed to have been sustained by her on account of the negligent manner in which the defendants drove their automobiles so as to cause a collision with the automobile in which plaintiff was riding. There was a verdict in plaintiff’s favor for $2,500, a remittitur of $750 and judgment for $1,750 against both defendants. Both defendants prayed and were allowed an appeal to this court. They filed their appeal bond, but the defendant Davis filed no brief and argument in this court. The only brief filed was on behalf of the defendant Shlay.

The record discloses that about 8:45 on the evening of September 7, 1922, plaintiff, who was a housewife about 53 years of age, was riding in a Paige automobile which was being driven by her son east on Jackson boulevard, Chicago; that the roadway of the street was dry and there was a great deal of traffic at that time; that the defendant Davis was driving also east in a Ford automobile fifty or seventy-five feet ahead of the automobile in which plaintiff was riding; that the Ford automobile collided with a Velie automobile driven, by the defendant Shlay, west in Jackson boulevard, causing Shlay’s automobile to skid around to the south side of Jackson boulevard, striking the Paige car and as a result of the collision plaintiff’s head was forced through the wind shield of the car in which she was riding and she was injured. It is admitted that there was no negligence on the part of the plaintiff. On the trial the defendant Davis took the position that he was not to blame, because he was driving south of the center line of Jackson boulevard and that his car was struck by the defendant Shlay’s car. On the other hand, Shlay took the position that he was driving north of the center line of the boulevard when the collision between his car and the Ford took place and that he was not at fault.

1. As stated, the defendant Shlay alone filed a brief in this court and the first point made by him is that the verdict is contrary to the manifest weight of the evidence. The argument being that since the evidence disclosed that his car was north of the center line of the boulevard at the time of the collision and he was driving at a moderate rate of speed, he was in no way negligent and that plaintiff’s injury was brought about by the fact that Davis, in the Ford car, came over north of the center line of the street which resulted in the collision and caused his, Shlay’s, car to skid around to the south side of the roadway and strike plaintiff’s automobile. We have carefully considered all the evidence in this record and are clearly of the opinion that the finding of the jury that both of the defendants were guilty of negligence is not against the manifest weight of the evidence. The question was for the jury to decide.

2. The defendant Shlay contends that the trial court erred in refusing to give to the jury instruction No. 27, requested by the defendant Davis. We think it clear that the defendant is not in a position to urge this. While, under the law, Shlay might complain of the giving of an instruction on behalf of Davis which was prejudicial (MacDonald v. Chicago Rys. Co., 286 Ill. 239) he is not in a position to complain of the fact that the court refused to give instructions on behalf of the defendant Davis.

3. Shlay next contends that the damages are excessive in that the evidence shows that the injuries sustained by plaintiff were a cut in her left cheek about 2% to 3 inches long and some superficial bruises about the head and shoulders which plaintiff’s physician described as slight, little lacerated wounds; that all of the bruises healed, the one on her cheek leaving a permanent scar; that plaintiff was under the care of a physician for about three weeks, during which the physician visited her approximately ten times; that plaintiff was confined to her bed as a result of the accident for about one week and incurred a doctor’s bill of about $25. In this argument plaintiff’s counsel refers to the fact that plaintiff testified that she still suffered pain because of the cut in her cheek; that the pain in her shoulder lasted about three months and thereafter periodically up to and until the time of the trial which took place on June 12, 1924, nearly two years after the accident. There was further evidence to the effect that the facial nerves were involved. We cannot say that the damages are of such an amount as would warrant interference on our part. As we said in the case of Posch v. Chicago Rys. Co., 221 Ill. App. 241, in discussing the question of damages: “We cannot, however, be unmindful of the fact that the money value of life and health is appreciating and the purchasing power of money depreciating during recent years.”

4. The defendant Shlay further contends that the court erred in its ruling on the motions and objections of his counsel made to plaintiff’s counsel’s argument to the jury, which argument tended to arouse the passion, prejudice and sympathy of the jury, the principal objection being that plaintiff’s counsel in his argument referred to the fact that plaintiff had a scar on her face which she could not hide. “You know what that means to a woman. Every time she goes to a party, somebody will look at the sear and folks will whisper about it.” It was objected that humiliation was not an element of damages, to which counsel for the plaintiff agreed, and the court then said that he would instruct the jury on that question. Counsel for plaintiff then continued and said that while it was true no damages could be recovered on account of a marred physical beauty, but again repeated the objectionable part of his argument, to which objection was made, the court saying “go ahead.” The argument was wrong and if this were a close case, or the judgment was excessive, it might warrant a reversal, but in our opinion it had little or no tendency to prejudice the defendant’s case. The' court gave the jury an instruction which told them that if they believed from the evidence plaintiff received a cut on her face as a result of which there was disfigurement which marred her face, then the court instructed them that, under the law of this State, plaintiff could not recover any damages on account of the disfigurement or marring of personal appearance. This instruction was given on behalf of Shlay and was more favorable to him than he was entitled to under the law. The law only prohibited the recovery of damages in such a case for mental suffering which results from embarrassment or chagrin and which suffering has no relation to physical pain. Chicago City Ry. Co. v. Anderson, 182 Ill. 298. She might recover for disfigurement which resulted from the accident. We think the argument of counsel taken in connection with the facts in the case was clearly insufficient to warrant us in disturbing the verdict and judgment.

5. The jury’s verdict was as follows: “We, the jury find the defendants John L. Davis and Joseph Shlay guilty and assess the plaintiff’s damages at the sum of $2,500 Twenty Five Hundred Dollars ($1,250.00) each,” And the defendant Shlay contends that a verdict in a tort case is indivisible since there can be no contribution between tort-feasors. The judgment entered by the court after a remittitur of $750 was for $1,750 against both defendants. We think this was entirely proper. Both defendants were found guilty of the negligence charged and the damages fixed at $2,500. The fact that the jury stated in their verdict that this should be divided equally may be treated as surplusage. The court followed the right course in entering judgment for the full amount, after remittitur, against both defendants. 27 R. C. L. 893; Post v. Stockwell, 34 Hun (N. Y.) 373.

The judgment of the superior court of Cook county is affirmed.

Affirmed.

Thomson and Taylob, JJ., concur.


author: Mr. Justice Taylor

text:
    R. F. Trevellick, Plaintiff in Error, v. Western Vaudeville Managers Association, Defendant in Error.
    Gen. No. 29,431.
    1. Master and servant — construction of employment contract as to right of discharge for unsatisfactory services. Under a contract providing that an employee “agrees to perform his services to the satisfaction of the general manager of said association,” the defendant had the right to discharge the plaintiff if his services were not satisfactory to it, but it did not- have the right to discharge plaintiff on the pretended ground of dissatisfaction with his services if the real reason was his refusal to make a new contract.
    2. Master and servant — when verdict improperly directed for master in action by servant for compensation. In an action on a written contract by a discharged employee to recover for the balance of wages and commissions under a contract which gave the employer the right to discharge the employee if his services were unsatisfactory, where plaintiff’s evidence taken alone tended to show that he was not discharged by reason of the terms of the contract but for a reason outside the contract, it was for the jury to determine whether the defendant acted by reason of being dissatisfied with plaintiff’s services or because he would not accept a new contract providing for different compensation, and a verdict was improperly directed for the defendant.
    Error by plaintiff to the Municipal Court of Chicago; the Hon. Thomas J. Peden, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1924.
    Reversed and remanded.
    Opinion filed June 17, 1925.
    Berezniak & Dittus, for plaintiff in error.
    George A. Trude, David W. Kahane and Frank T. Platka, Jr., for defendant in error.
   Mr. Justice Taylor

delivered the opinion of the court.

The plaintiff, Trevellick, having a written contract of employment with the defendant, Western Vaudeville Managers Association, a corporation, and having been discharged, brought suit, in a fourth-class case in the municipal court, for an alleged balance of wages and commissions. There was a trial before the court with a jury and at the close of all the evidence the trial judge directed a verdict for the defendant. A verdict, accordingly, was returned and the trial judge entered judgment that the plaintiff take nothing by his suit. This writ of error is prosecuted to reverse that judgment.

The plaintiff had worked as a traveling representative in the theatrical business for over thirty years. The defendant, with offices in Chicago, was a corporation that made contracts with fair committees and other similar organizations to furnish circus, theatrical, acrobatic and other “acts” for a fixed price. On November 23, 1914, the plaintiff and the defendant entered into a written agreement of employment. The term of the employment was from November 23, 1914, to September 1, 1915, defendant having the privilege of extending it for a year. The plaintiff was to act as a traveling representative and solicitor for the defendant’s fair and park department. It was provided, further, as follows: “Said Trevellick hereby enters the service of said association in the capacity aforesaid and agrees to devote all of his time, energy and ability for the best interests of said association in procuring business and contracts with fairs, parks, expositions, celebrations, circuses, carnivals and other similar places of amusement, and further agrees to perform his services to the satisfaction of the general manager of said association and at all times to abide by and conform to all of the rules and regulations of said association and to obey and act in accordance with the directions and instructions of the directors and general manager of said association and of the manager of the park and fair department of said association.” He was to receive for his services a salary of $100 a week, and, in addition thereto, a sum equal to 10 per cent of the net profits derived from the business procured by him. The clause of the contract on that subject is as follows: “From the gross receipts realized from contracts and business procured by the said Trevellick, there shall be deducted the salary paid to said Trevellick; all salaries paid to performers; all railroad fares, excess baggage and cartage charges and all traveling expenses paid by the said association, all telephone and telegraph charges and all other expenses directly chargeable against any of the contracts or business procured by the said Trevellick, any and all losses arising out of contracts or business procured by the said Trevellick including losses sustained by the failure of either party to said contract to fulfill the same and all losses sustained by the failure to collect the amount due under said contracts. The amount remaining after making the deductions herein above provided shall be deemed the ‘net profits’ as referred to herein and said Trevellick shall be entitled to receive ten per cent thereof. It is expressly understood and agreed that said Trevellick shall pay his own railroad fares, hotel bills and other traveling expenses.” It was provided that an adjustment and settlement of the amount of net profits earned and the compensation due the plaintiff should be made about December 1, 1915, and that his salary of $100 a week should begin on February 1,1915.

The plaintiff went to work under the contract, traveling practically continuously for some time in Minnesota, Wisconsin, Kansas, Nebraska and other States, securing, altogether, about 38 contracts with State and county fairs, and mailing them into the offices of the defendant. From time to time he telephoned in from wherever he was to the defendant in Chicago and received, also, from time to time, letters of advice from his employer, the defendant.

On July 11 or 12, 1915, he was requested by the defendant to come back to Chicago. He came back and went to the offices of the defendant and was there told either by Singer, the general manager of the defendant, or Marsh, also a manager, that he was discharged. After that time he did no further work under his contract.

Inasmuch as the trial judge, upon motion of the defendant at the close of all the evidence, gave a peremptory instruction to the jury, directing them to find the issues for the defendant, the question arises whether there was evidence on the part of the plaintiff which should have been submitted to the jury.

It is the claim for the defendant that it had the right under the contract to discharge the plaintiff if his services were not satisfactory to the defendant, and that it did discharge him because his services were not satisfactory to it. In answer to that, it is claimed for the plaintiff that there was evidence tending to show that the plaintiff was not discharged on account of his unsatisfactory services, but because the plaintiff refused to enter into a new and different contract with the defendant.

The plaintiff testified that before being discharged he was called to Chicago and offered a new contract, and upon his refusal to accept it, before the expiration of the one that existed, he was discharged, and it is urged that that testimony was sufficient to make it necessary to submit the case to the jury in order that they might determine whether the defendant’s alleged dissatisfaction was genuine, and the real cause of plaintiff’s dismissal.

The words of the contract are that the plaintiff “agrees to perform his services to the satisfaction of the general manager of said association.” According to the law, as we understand it, under the contract in question the defendant had the right to discharge the plaintiff if his services were not satisfactory to it, but it did not have the right to discharge him on the pretended ground of dissatisfaction with his services, if the real reason was his refusal to make a new contract. We know of no case where the employment and the words of the contract are in any close way similar to those here, where it has been held that the contract might be canceled, even though the defendant did not act in good faith. Even in such a case as Bishop v. Bloomington Canning Co., 307 Ill. 179, where the contract in question was one for the personal services of an agricultural adviser, and the contract provided that it might be canceled by either party “in the event results are unsatisfactory to either party,” the court held that the right of revocation might be exercised by either but “provided he acted in good faith and without fraud.” Further, the court said in that case, “It seems quite clear that in construing contracts of this kind, each particular case must rest on the contract as well as on the facts shown with reference thereto.” In such a case as this the employee makes out a cause of action if he proves that he was discharged before the expiration of the time provided for in the contract of employment, and either (1) that the employer was not dissatisfied with him, or (2) that the employer, whether dissatisfied or not, did not discharge him on account of dissatisfaction.

Was there enough evidence tending to show that the defendant did not discharge him because he did not render services to its satisfaction, to justify submitting it to the jury? The plaintiff testified that when in July he came back and talked with his employer for two or three days, that he and Marsh, one of the managers, talked over business in general; that Marsh asked him if it were agreeable to him to go with the defendant, after his contract expired, on a 50 per cent commission basis; to go anywhere and everywhere he could pick up business and after his expenses were taken out to split the profits; that he, the plaintiff, was agreeable to that; that he then asked Marsh about the balance of his contract; that Marsh went upstairs to see Singer, the general manager; that after that Marsh asked him to let the rest go on the new proposition and put it on a fifty-fifty basis; that he, the plaintiff, asked that the defendant complete the other contract as there were only a few weeks to go before starting on the new contract; that that was all they disagreed on; that they talked another day, off and on, and Marsh said “it was either do as they said or get out”; that he afterwards reported about daily to work under his contract; that they refused to let him and wanted him to go out on the new basis; that he wanted to fill out the contract for the remaining weeks and then go on the new contract; that the defendant did not pay him anything after he was told to go on the new basis or quit; that he lost seven weeks, from July 16 to September 1, and 10 per cent on the net profit on the sales, which latter was due at the time he was discharged; that he had no notice at any time that the defendant was dissatisfied with him; that Marsh did not say so until after the contract had expired.

It is needless to recite the evidence of Marsh and Singer for the defendant, save to say it was to the general effect that the plaintiff was discharged because as Singer says, “His services did not prove satisfactory.” Taking alone the evidence for the plaintiff, and it is quite obvious that it tended to show that he was not discharged by reason of the terms of the contract, but was discharged for a reason dehors the contract, and there was, therefore, a question of fact which the plaintiff had the right to have the jury pass upon. Under the circumstances, it was for the jury to determine whether the defendant acted by reason of being dissatisfied with the plaintiff’s services or— whether dissatisfied or not — by reason of some other motive. The inference from the plaintiff’s evidence is that he was discharged because he would not accept a new contract which provided for different compensation. If that were proved, then the discharge was a breach of contract. Delano v. Columbia Machine Works, 179 App. Div. 153, 166 N. Y. Supp. 103; Gwynn v. Hitchner, 67 N. J. L. 654; Summers v. Colver, 38 App. Div. 553, 56 N. Y. Supp. 624; Diamond v. Mendelsohn, 156 App. Div. 636, 141 N. Y. Supp. 775.

The judgment will be reversed and the cause remanded for a new trial.

Reversed and remanded.

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