author: Mr. Presiding Justice McSurely

text:
    Rose Bandosz, Administratrix of the Estate of Thomas J. Bandosz, Deceased, Appellee, v. A. Daigger and Company, Appellant.
    Gen. No. 33,767.

      Opinion filed January 27, 1930.
    McKenna & Harris and Gottlieb, Schwartz, Markheim & O’Bryan, for appellant; James J. McKenna, Abraham W. Brussell and Claude A. Both, of counsel.
    James C. McShane, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff, as administratrix of the estate of Thomas . J. Bandosz; deceased, brought suit to recover damages for the wrongful death of Bandosz, a fireman of the City of Chicago, who was injured while on defendant’s premises in the discharge of his duties, which injuries resulted in his death. Upon trial a verdict was returned for the plaintiff in the sum of $10,000. The jury also returned a special finding that defendant was guilty of wilful and wanton conduct proximately contributing to the death of Bandosz. From the judgment on the verdict defendant appeals.

Plaintiff’s declaration alleged that on March 11, 1927, defendant was the occupant of premises at 159 West Kinzie Street, Chicago; that on that date there was a city ordinance prohibiting the storage of more than 10 gallons of benzol or ether in any building in the district in which defendant’s building was located, but that defendant wantonly and unlawfully stored several hundred gallons of benzol and ether in the basement of its building, and as a result thereof a fire broke out; that deceased was a fireman in the City of Chicago and entered the premises to extinguish the fire and while thus upon the premises another fire or explosion broke out as a result of the storage of benzol, causing the death of plaintiff’s intestate. It is also alleged that defendant unlawfully kept and delivered large quantities of inflammable liquids, including benzol and ether, in its basement in close proximity to an open flame, resulting in the fire. The third and fourth counts alleged substantially the same matters.

The evidence tended to show that on the day in question benzol was being removed from a tank on an automobile truck in front of defendant’s building into some tanks or drums in the basement by a hose which ran through the basement window. There were 9 or 10 of these drums holding 50 or 55 gallons each. Defendant’s employee in the basement would put the nozzle of the hose into a drum and when it was filled he would call to the driver of the truck to shut off the hose at the truck. He would then withdraw the hose from the drum and transfer it to the next drum. In doing this the benzol would splash out and run on the floor in a stream running within approximately a foot and a half from a lighted hot water heater. This heater was lighted with about 30 or 35 small gas jets which were about a foot above the floor. Defendant’s employees were doing this for about an hour and a half and had filled nine of the drums, when they saw the stream of benzol on the floor ignite near the heater and the flames travel toward the drums. They fled from the premises and shortly thereafter there was an explosion and the front part of the basement was in flames.

The fire department was notified, responded, and flooded the basement with water through the windows and apparently extinguished the fire. Then a crew of firemen was sent down into the basement for the purpose of examining closely to ascertain whether the fire was completely extinguished.. Bandosz was one of this crew. At this time there was approximately 12 inches of water on the floor and floating on this was a layer of oil of various kinds. There was then another flash or explosion and the fire marshal ran into the basement and found the top of the water all on fire and Bandosz attempting to reach the stairway. The marshal assisted him, but he was so badly burned that he died 12 hours later.

Plaintiff charges that defendant’s violation of city ordinances and the statute caused the fire. The ordinance limits the storage of inflammable liquids, such as benzol and ether, in such buildings as defendant’s, to an amount “not exceeding 10' gals.” It is not disputed that at the time of the fire, between 450 and 500 gallons of benzol and over 50 gallons of ether were in the basement. The ordinance forbids the storage of alcohol in an amount exceeding 120 gallons. At the time of the fire there were 1,130 gallons of alcohol in the basement. That the quantity of inflammable material in the basement far exceeded the amount permitted by the ordinance is established beyond any controversy.

. Defendant argues that the benzol was taken into the basement contrary to instructions given by the general manager. It was unloaded in the manner above described under the supervision and direction of Edward O’Connell, who had charge of the shipping department for defendant. The act of the agent within the scope of his employment is the act of the corporation which employs him, even though his conduct may be unknown to the officers of the company or contrary to orders. This is true even when the conduct of the agent constitutes wanton or wilful misconduct. Consolidated Ice Mach. Co. v. Keifer, 134 Ill. 481; Franklin Life Ins. Co. v. People, 200 Ill. 619; 26 Cyc. 1528.

It also might be suggested that the jury need not of necessity believe that O’Connell violated his instructions in placing benzol in the basement; when the manner of unloading the benzol was under discussion he remarked that he would “think the matter over,” indicating that it was left for him to decide.

Defendant says that, because it was its intention shortly to remove the drums when filled with benzol from the basement, therefore they were not “stored” in the basement. Webster’s Dictionary defines storage as “the act of depositing in a store or warehouse for safe keeping.” The ordinance does not fix any time limit for the storage of inflammable liquids. The jury might well believe that keeping such a large amount of benzol in the basement for an hour and a half violated the ordinance. Wright v. Chicago & N. W. Ry. Co., 27 Ill. App. 200. Also in view of the storage of unlawful quantities of ether and alcohol in the basement, the jury might reasonably doubt defendant’s intention to remove the benzol.

The ordinance also prohibits the drawing or handling of inflammable liquids “in the presence of or in close proximity to open flame or firg.” Section 2,300. Section 2,302 provides that “Handling or storing of any inflammable liquid within dangerous proximity to open flame or fire is hereby expressly prohibited.” The State statute, Cahill’s St. ch. 38, 326, provides that: “It shall be unlawful for any person, firm, association or corporation to keep, store, transport, sell or use any crude petroleum, benzine, benzol, gasoline, naphtha, ether or other like volatile combustibles, or other compounds, in such manner or under such circumstances as will jeopardize life or property.”

It is self-evident that the handling of the benzol in such close proximity to the open flame of the heater in the basement was a violation of both the provisions of the ordinance and of the statute.

Defendant argues that Bandosz, while on the premises, was a licensee by operation of law and the only duty it owed him was to refrain from wantonly Or wilfully injuring him (Gibson v. Leonard, 143 Ill. 182; Casey v. Adams, 234 Ill. 350), and that the ordinance in question does not apply to city firemen, citing Thrift v. Vandalia R. Co., 145 Ill. App. 414. This case involved a city ordinance providing that no railroad train should be started within the city limits without first sounding some warning. A police officer while in the yards of defendant company was run over by a backing train which gave no warning. It was held that the ordinance could only have been intended to protect those whose presence on the private right-of-way of the railroad company might reasonably have been anticipated and not to protect police officers who might appear in the yard “at rare intervals and at unexpected times and places.”

Here, the ordinance and statute are general in their terms and not limited in their operation to any particular class of persons. It is especially appropriate that firemen should receive the benefits of such ordinances, as their duties require them to go into places of danger which should not be increased by the presence of unlawful quantities of volatile combustibles. In Parker v. Barnard, 135 Mass. 116, a police officer was injured while on the defendant’s premises through the violation of a statute regulating the construction of elevator shafts. It was there held that the statute was not to be limited in its operation and that “those who enter in the performance of a lawful duty, and are injured by the negligence of the party responsible, have just ground of action.” We hold that plaintiff’s intestate was entitled to the protection and benefits of the ordinances and of the statute under consideration.

It is not the law in this State, as contended by defendant, that it owed no duty to the fireman until it knew of his presence in the building. Bremer v. Lake Erie & W. R. Co., 318 Ill. 11.

Much is said as to whether the immediate occasion of the so-called second fire or explosion was from a spark from the first fire or because of an open torch carried into the basement by one of the firemen. Although there is evidence from which the jury could properly believe that the fire was caused from a spark, yet we do not think it is important whether the explosion was occasioned by a spark or a torch. Defendant’s violation of the statute in having an excessive quantity of benzol in the basement and handling it near an open fire caused the original fire and it is responsible for the natural result of this fire. Illinois Cent. R. Co. v. Siler, 229 Ill. 390; Pullman Palace Car Co. v. Laack, 143 Ill. 242.

Whether defendant’s violation of the ordinance and statute constituted wanton and wilful conduct, resulting in the injuries to plaintiff’s intestate, was a question of fact for the jury. An intentional disregard of a known duty necessary to the safety of another and an entire absence of care for the life or persons of others, such as exhibits conscious indifference to consequences, make a case of legal wilfulness, which may be the basis of a charge of wilful and wanton infliction of injuries. Walldren Express & Van Co. v. Krug, 291 Ill. 472; Jeneary v. Chicago & I. T. Co., 306 Ill. 392; Brown, v. Illinois Terminal Co., 319 Ill. 326. The placing of an excessive amount of benzol in the basement was a conscious act by defendant and it therefore must be presumed to have intended to do so. Defendant’s president knew of the quality of benzol, testifying that “it is a very inflammable material.” The jury could properly find that the placing of such a large quantity of benzol and the keeping of other inflammable liquids in the basement, together with handling the same near the open flame, constituted wilful and wanton conduct on defendant’s part such as jeopardized life and property.

It is said that the court erroneously, at the instance of plaintiff, instructed the jury that the “plaintiff is not bound to prove her case beyond reasonable doubt, but is merely bound to prove it by a preponderance of the evidence.” A somewhat similar instruction was condemned in Molloy v. Chicago Rapid Transit Co., 335 Ill. 164, but that instruction contained the objectionable words. that the evidence need preponderate “but slightly” in plaintiff’s favor, and the instruction also directed a verdict. In both of these respects it differs from the instruction before us. Furthermore, at the instance of defendant, the jury was instructed that plaintiff was required to prove that the defendant was guilty of wilful and wanton negligence. Also other given instructions fully told the jury the essential elements of plaintiff’s case. The special interrogatory submitted to the jury, which was answered in the affirmative, read: “Was defendant guilty of wilful and wanton misconduct which proximately contributed to the deceased’s death, as alleged in the declaration?” We do not think that the instant instruction compels a reversal.

Complaint is made of other instructions which we do not think are important.

The court properly admitted in evidence the ordinance as contained in the Code of 1922, which purports to contain the general ordinances of the City in force November 22, 1922. The legislative act of 1919, Ca-hill’s St. ch. 38, Ü 327, section 2, giving the Department of Trade and Commerce power to make and adopt reasonable rules and regulations concerning gasoline and volatile oils, by its terms does not apply to cities and villages already having regulatory ordinances upon the subject. The Code of 1922 purports to include all the parts of the Chicago Code of 1911 and the Code of 1922 did not change the prior Code regulating volatile substances but re-enacted the same in a modified form. The ordinance was valid and properly in evidence.

Upon the record before us we would not be justified in disturbing the verdict of the jury, and as there were no reversible errors upon the trial, the judgment is affirmed.

Affirmed.

Matchett and O’Connor, JJ., concur.


source: Caselaw Access Project

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

license: Public Domain

text:
    John Krumin, Appellee, v. Vincent Bruknes, Appellant.
    Gen. No. 33,818.

      O’Connor, J., dissents.

      Opinion filed January 27, 1930.
    Ode L. Rankin, for appellant.
    Harold O. Hulks, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit seeking damages for an alleged libel and upon trial had a verdict and judgment of $500. Defendant appeals, claiming that the alleged libelous documents were confidential communications absolutely privileged.

Plaintiff is the brother-in-law of defendant, defendant’s wife being plaintiff’s sister. Plaintiff was an automobile mechanic and defendant a butcher clerk, but in 1921 they formed what was called the S ahitaras Drug and Chemical Company and operated a drug store, employing a registered pharmacist. Defendant withdrew from the copartnership in 1925. Defendant and his wife separated and divorce proceedings were instituted. Apparently plaintiff favored, his sister’s side in the controversy with her husband, the defendant. Plaintiff was born in Europe and in 1925 applied for citizenship in the United States District Court at Chicago. Defendant heard of this and went to the Naturalization Bureau, which is under the jurisdiction of the Labor Department of the Federal Government, in the Federal building at Chicago, and there made affidavits, charging, in substance, that plaintiff was a bootlegger and conducted a “fake” drug store; that he sold moonshine and was. engaged in the illegal sale of intoxicating liquor; that he had abandoned his wife and that he was the cause of the discord between defendant and his wife. These affidavits contained the matter which plaintiff claims is libelous. Upon the trial defendant offered to show that the officer in the Naturalization Bureau promised the defendant that the communications would be considered as private and privileged and not disclosed, and that the officer had suggested that defendant use an assumed name for the purpose of secrecy in making the affidavits, which was done. The court sustained an objection to this offer.

A subpoena duces tecum was served on the District Director of the Naturalization Bureau directing him to produce the two affidavits in question. The director appeared upon the trial,- admitted that the affidavits were in his official possession but declined to produce them or to testify as to their contents on the ground that he was prohibited from doing so by the rules of the Department of Labor of the United States, which rules provided that no one should produce documents in the jurisdiction of his office for the purposes of evidence. A copy of the rules and regulations was produced in court and upon objection the trial court ruled that the District Director could not be compelled to divulge the affidavits. Plaintiff’s counsel seems to have acquiesced in this ruling. It is not claimed that the State court could compel the production of the original documents.

In the spring of the following year, 1926, the parties apparently became friendly and defendant indicated that he was willing to retract some of the statements made in the affidavits and to help plaintiff to obtain his citizenship papers. The parties called at the office of the United States District Attorney with their respective attorneys. Defendant then told the District Attorney that some of the things in the affidavits were right and some were wrong. After questioning the parties further, the District Attorney announced that in his opinion “it was a family trouble and nothing else,” and advised defendant to make up his differences with his wife. Citizenship papers were shortly thereafter issued to plaintiff. Subsequently there was a meeting of all the parties to adjust their differences, including the trouble between defendant and his wife. Apparently one of the terms of the settlement was that defendant should pay plaintiff’s attorneys’ fees and for his trouble in procuring his citizenship papers, and defendant promised to pay $500, but the parties could not agree with reference to some household silverware, so that hostile relations were resumed.

Were the communications in question absolutely privileged? Privileged communications are of two kinds: (1) those absolutely privileged; and (2) those only conditionally privileged. Speaking generally, communications absolutely privileged are those so much to the public interest that the informer should speak out his mind fully and fearlessly so that all actions in respect of words thus spoken are absolutely forbidden, even though it be alleged that the words Were spoken falsely, knowingly and with express malice. Communications conditionally privileged are where the interests of the public do not demand that the speaker should be free from all responsibility but merely require that he should be protected so long as he is speaking honestly for the public good. In such cases a plaintiff may recover damages in spite of the privilege, if he can prove that the defendant in using the defamatory words was not acting in good faith but was actuated by some improper motive, such as malice. Odgers on Libel and Slander, 6th Ed., p. 187. In Iddings v. Houser, 237 Ill. App. 236, this classification is stated, with many supporting cases. As a general rule, public policy forbids the maintenance of any suit, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential and with respect to which it will not allow the confidence to be violated. Totten v. United States, 92 U. S. 105; Jones on Evidence, 2nd Ed., vol. 5, section 2201. And on like grounds of public policy a privilege exists against the disclosure of official documeats and communications, the publication of which would be injurious to the government as destructive of freedom of official communication in furtherance of duty.

A leading case on the subject is Hoske v. Comingore, 177 U. S. 459, opinion by Mr. Justice Harlan. There, a collector of internal revenue had been imprisoned by order of a State court of Kentucky for refusing to produce certain monthly reports in his custody made by a certain manufacturer. In holding the imprisonment improper the court held that such reports were executive documents which the United States in its sovereign capacity acquires for the sole purpose of administering its own governmental affairs; that such documents are quasi-confidential; that any demand for their use by an outside party must depend for success upon the courtesy of the government and upon its notion as to the public policy of complying with the request ; that no litigant has any right to their use upon any other basis than such as may be fixed by the United States or under its authority, and that the head of the United States department has lawful authority to control or to make regulations for controlling that property and its custody; that a State court has no lawful jurisdiction or power to impose upon the United States officer the duty of making copies of such communications or of permitting others to make them, or of compiling information from their contents; and that the effort to make the custodian testify to their contents is virtually an attempt to compel the United States to produce them. The proposition underlying these holdings is that no one can acquire any right or control over this class of papers belonging to the United States except by its authority.

May voluntary communications from citizens and informers to the United States government be absolutely privileged? The fundamental principle on which the rule is based is stated by Mr. Justice Gray, subsequently in the United States Supreme Court, in Worthington v. Scribner, 109 Mass. 487:

“It is the duty of every citizen to communicate to his government any information which he has of the commission of an offense against its laws. To encourage him in performing this duty without fear of consequences, the law holds such information to be among the secrets of state, and leaves the question how far and under what circumstances the names .of the informers and the channel of communication shall be suffered to be known, to the absolute discretion of the government, to be exercised according to its views of what the interests of the public require. Courts of justice therefore will not compel or allow the discovery of such information, either by a subordinate officer to whom it is given, by the informer himself, or by any other person, without the permission of the government. The evidence is excluded, not for the protection of the witness or of the party in the particular case, but upon general grounds of public policy, because of the confidential nature of such communications.”

There is a seeming diversity of opinion on this question. The weight of authority, however, seems to hold that such communications are absolutely privileged because persons having knowledge regarding the commission of a crime ought to be encouraged to reveal the same to the proper authorities fully, freely and unreservedly; that the possibility that what they say under such circumstances will be used against them tends to impose a natural restraint upon their conduct and to deprive the officer of the benefit of their services. Michael v. Matson, 81 Kan. 360, in which the cases on the subject are collected; 5 Jones on Evidence, section 2203. In State ex rel. Douglas v. Tune, 199 Mo. App. 404, it was sought to mandamus the members of the Complaint Board of the City of St. Louis to produce certain letters in their custody and which were sent by writers voluntarily. It was claimed that these letters established the right of an action for libel in the relator against the writers of the letters. After considering a number of cases it was held that the respondents were justified in their refusal to permit the relator to inspect the letters and in refusing to allow him to make a copy of them on the ground that such communications were confidential in their character.

In Vogel v. Gruas, 110 U. S. 311, plaintiff obtained a judgment for damages in an action on the case based on alleged defamatory communications made by defendant concerning the plaintiff to the State’s Attorney. The Supreme Court reversed the judgment on the ground that such communications were absolutely privileged. There was a similar decision in Hott v. Yarborough, 112 Tex. 179, in which a defendant wrote a letter to the foreman of a grand jury and the county attorney charging the plaintiff with the commission of a crime and requesting an investigation. A libel suit followed, and upon trial plaintiff had judgment against defendant, but upon appeal it was held that the communications were absolutely privileged. To the same effect is Schults v. Strauss, 127 Wis. 325. There are many cases holding that defamatory statements in papers filed in a judicial proceeding are absolutely privileged. Strauss v. Meyer, 48 Ill. 385; Jones v. Brownlee, 161 Mo. 258; Michael v. Matson, 81 Kan. 360; Shinglemeyer v. Wright, 124 Mich. 230; Rall v. Donnelly, 56 Ill. App. 425; Beggs v. McCrea, 70 N. Y. S. 864.

We have examined the cases cited by plaintiff’s attorney which it is said hold to the contrary; in most of them, except one, the alleged defamatory statements were irrelevant to any question or issue in the proceedings in which they were made. Kints v. Harriger, 99 Ohio St. 240, is the exception cited by plaintiff. We have read this eloquent opinion by Mr. Justice Wanamaker and are not disposed to accept all that is said therein. There, the alleged libelous matter was information given by a witness testifying before the grand jury. The opinion concedes that “the weight of precedent for a century or more, in both American and English ruling cases, is undoubtedly to this effect,” namely, that statements made under such circumstances are absolutely privileged; but the opinion very frankly proceeds to consider the same “in the light of fundamental facts and primary principles, rather than upon mere precedent.”

From a consideration of the above cited cases and. many others which might be produced, we are of the opinion that the affidavits in question come under the head of absolutely privileged communications. The trial court was correct in ruling that the District Director in the Federal office could not be compelled to produce the documents or disclose the contents of same; that the production of these was solely within the control of the United States government, and when the head of the department issued a rule to the effect that such documents were State secrets not open to the public, the District Director was under compulsion to obey such regulations and properly refused to produce them upon the trial.

It would seem to follow as a natural corollary that secondary evidence or copies of the documents were inadmissible as evidence, for if such secondary evidence was competent, the very purpose of the rule regulating the control of the originals as secret documents of State would be defeated. The record before us does not indicate how these alleged copies of the affidavits were procured, but this is unimportant. The originals being absolutely privileged communications, copies or any secondary evidence of the contents of the same were also incompetent. This is in accord with the holding in Boske v. Comingore, 177 U. S. 459, above referred to, where it is said that the State Court has no right or power to permit the making of copies or of compiling information of the contents of such documents.

The -power to naturalize aliens is judicial and must be exercised by the court. 2 C. J. 1120; Behrensmeyer v. Kreitz, 135 Ill. 591. 90 days previous notice must be given of the time and place of the hearing by posting in a public place; this is to give ample time for the government officials to ascertain the facts as to the applicant’s qualifications. It is also, in effect, a summons to the public to impart any information it may have as to the applicant. Good character is one of the chief qualifications of citizenship and upon the hearing the possession of this attribute is perhaps the most important issue to be determined. Persons having relevant information should be encouraged to impart it and should be free to speak freely, unfettered by fear of being held to respond in damages. It is of vital importance to the perpetuity of our institutions that the gateway to citizenship be carefully guarded. This is the policy of the United States. This can be done only when communications touching applications for citizenship are protected as absolutely privileged. Any other rule would violate the spirit and purpose of our naturalization laws with deplorable results. Inevitably, in some cases this rule will produce hardships, if not wrong, to individuals. We apprehend the number of such instances, however, will be negligible; in fact, we find no case like this in the books. As against such infrequent and individual wrongs, the larger interests of the public must be paramount.

We hold that the alleged libelous communications are absolutely privileged. For the reason indicated the judgment is reversed with a finding of fact, and, as under the law there can be no recovery in this case, the cause will not be remanded.

Reversed with a finding of fact.

Matchett, J., concurs.

O’Connor, J., dissents.

We find as an ultimate f act that the alleged libelous documents described in plaintiff’s declaration were confidential communications absolutely privileged, and that plaintiff is not entitled to prosecute this action thereon.

Hr. Justice O’Connor

dissenting: The rule in reference to privileged communications stated in the majority opinion has been repudiated by the Supreme Court of Ohio in the case of Kints v. Harriger, 99 Ohio St. 240. But in my opinion the rule does not apply in the instant case because it appears that the contents of the affidavit filed by the defendant with the government officials in charge of naturalization was known to all parties in this case. It was exhibited by the government official to plaintiff and other parties and the contents of it retracted by the defendant. The government official, after discussing the matter with the parties, reached the conclusion that the affidavit was made by the defendant as the result of a family quarrel and the charges made in it were disregarded by the government in permitting plaintiff to be naturalized. A copy of the affidavit was produce'd on the trial.

Dean Wigmore of the Northwestern University Law School, in his work on Evidence, section 2374, 2nd Ed. (after recognizing the rule of privileged communications by information to the government and after stating that such communications ought to receive encouragement, and after citing a number of authorities where the rule was applied, including opinions by the Supreme Court of the United States, some of which are cited in the major opinion) says:

“This privilege is well established, and its soundness cannot be questioned. But it is subject to certain limitations, inherent in its logic and its policy:

“(I) The privilege applies only to the identity of the informant, not to the contents of his statement as such, for, by hypothesis, the contents of the communication are to be used and published in the course of prosecution. Much less does the privilege apply to prevent merely the proof of contents which have already been ‘de facto’ disclosed, — as in an action against the informant for libel. To deny production in such a case is in effect to declare that the libel is privileged from liability. If that is indeed the judicial belief and the law, it should be frankly declared; if not, the action should not be defeated by an evasion which- pretends to \ keep secret that which is not secret.

“ (2) If the identity of the informer is admitted or known, then there is no reason for pretended concealment, and the privilege of secrecy would be merely an artificial obstacle to proof. . . .

“(4) Even where the privilege is strictly applicable the trial court may compel disclosure, if it appears necessary in order to avoid the risk of false testimony or to secure useful testimony.”

In the instant case, since the contents of the affidavit were known to all the parties to the suit, its “pretended concealment,” as Dean Wigmore says, is merely an artificial obstacle to proof. The contents of the affidavit having become public, the reason for the rule, even if it were sound, ceased and the court erred in excluding it.


text:
    William Jenson, Appellant, v. Joe Muting, Appellee.
    Gen. No. 33,827.

      Opinion filed January 27, 1930.
    Monahan & Monahan, for appellant.
    Vito B. Cuttone, for appellee; Louis J. Leo, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

. Plaintiff appeals from an adverse judgment entered upon the finding of the trial court in an action for money paid to defendant for the purchase of shares of stock but by mutual mistake shares of stock were delivered other than those contemplated by the agreement of purchase.

Plaintiff and defendant, who had had business relations with each other, had a conversation about April 21, 1928, in which defendant told plaintiff that he had some stock, eight shares in the Radio Corporation of America, and asked plaintiff if he did not wish to buy it. Plaintiff was favorable to the proposition but not knowing the market value called up a stock brokerage concern and inquired as to the market value of preferred and common stock of this corporation and also looked at the newspaper to ascertain the market value. Prom the information thus derived plaintiff figured the value of the preferred stock at $55 a share and of the common stock at $170 a share, which would make the total value of the eight shares about $1,800. He agreed to pay defendant this amount, and his checks were drawn and delivered to defendant and the stock certificates were assigned to plaintiff, who left them with his bank with instructions to send them to New York for the purpose of having new certificates issued to himself. In about a week plaintiff learned that the certificates did not represent the stock of the Radio Corporation of America that was on market at the time he purchased the same, but represented stock that had been called in for cancellation by action of the stockholders and directors of the company in May, 1924, some four years prior to the time of the instant transaction, and that their value was $350'. When plaintiff learned this, he told defendant and asked him to go to the bank to confirm the facts for himself. Defendant promised to do so, but did not. Plaintiff then wrote and mailed a registered letter to defendant, who refused to receive it, and the letter was returned to plaintiff marked “refused.” This suit followed.

A mere recital of the transaction shows that it is a case calling for the application of the well established rule that money may be recovered which- has been paid under a mistake as to a material fact, and when there has been a mutual mistake of facts money paid under such circumstances may be recovered. McLean County Bank v. Mitchell, 88 Ill. 52; Stempel v. Thomas, 89 Ill. 146; Bradford v. City of Chicago, 25 Ill. 411; Wolf v. Beaird, 123 Ill. 585. There are many other cases holding, in effect, that an action will lie for money had and received for the use of plaintiff, wherever by means of a contract relation defendant has obtained money which, in justice, he ought to return. Arnold v. Dodson, 272 Ill. 377; Citizens’ Gas-Light & Heating Co. v. Granger, 118 Ill. 266; Drennan v. Bunn, 124 Ill. 175; May v. Disconto Gesellschaft, 211 Ill 310.

The trial court seems to have applied the doctrine of caveat emptor and held that in the absence of any misrepresentation on the part of the seller, the buyer was bound by whatever amount he had agreed to pay. This might be the rule where by inspection of an article the buyer could ascertain all the material facts. In the instant case nothing could be determined by inspection of the certificates which are not the stock itself but simply muniments of title. Wuller v. Chuse Grocery Co., 241 Ill. 398. Both parties supposed that they were negotiating for current stock of the Radio Corporation of America, and plaintiff made a proper investigation of the value of such stock and the transaction was closed on this basis.

It was not necessary to entitle plaintiff to recover that defendant should purposely perpetrate a fraud upon plaintiff. If defendant did not know that his certificates represented old stock, then the minds of plaintiff and defendant did not meet and there was no valid sale. On the other hand, if defendant did know that these certificates represented stock which had been called but sold them for current stock at the market value of such stock, he perpetrated a fraud upon plaintiff.

Plaintiff has elected to retain the certificates which were delivered to him at their value of $350, and seeks to recover $1,450, which is the difference between this amount and the $1,800 he paid defendant. Plaintiff has a right to do this. 2 R. C. L. 759; Kellogg & Co. v. Turpie, 93 Ill. 265; Bates v. Bates Mach. Co., 230 Ill. 619.

For the reasons above indicated the judgment is reversed with a finding of fact, and as the case was tried by the court judgment will be' entered for the plaintiff in this court for $1,450.

Reversed with finding of fact and judgment here for plaintiff.

Matchett and O’Connor, JJ., concur.

We find, as a fact, that plaintiff paid defendant $1,800 under the mutual mistaken belief that the stoik for which the money was paid was the current market stock of the Eadio Corporation of America and not stock which had been called some years before.


author: Mr. Justice Matchett

text:
    The 1500 Sherman Avenue Building Corporation, Plaintiff in Error, v. Paul Perkovic and Nikica Perkovic, Defendants in Error.
    Gen. No. 33,672.

      Opinion filed January 27, 1930.
    Rehearing denied February 10, 1930.
    Weightstill Woods, for plaintiff in error; Ralph D. Shanesy and George Dietrich, of counsel.
    Thomas B. Lantry, John J. Corcoran and William Cullen Burns, for defendants in error.
   Mr. Justice Matchett

delivered the opinion of the court. .

Complainant filed a bill in equity for the specific performance of a contract for a lease with an option to buy certain real estate. Defendants demurred generally and specially. The court sustained the demurrer, and plaintiff electing to abide by its bill, the same was dismissed at complainant’s costs. Complainant seeks by this appeal to reverse that order.

The question for determination is whether the court erred in sustaining the demurrer and dismissing the bill. In considering that question the bill is of course construed most strongly against complainant. Only allegations of material facts (not legal conclusions averred) are regarded as admitted. Big Creek Coal Co. v. Tanner, 303 Ill. 297; Gage v. Village of Wilmette, 315 Ill. 328; Fowler v. Marion & Pittsburg Coal Co., 315 Ill. 312.

The bill alleges that complainant is a corporation under the laws of Illinois, formed for the purpose of acquiring, owning, erecting, leasing or operating one building and the site therefor; that defendant Paul Perkovie, being the owner and possessed of the premises described, in the. City of Evanston, county of Cook and State of Illinois, together with a one-story building situated thereon, and said defendant and his wife being desirous of letting the same, on or about November 17,1928, proposed and agreed to lease the same to the complainant, and that a memorandum of agreement was made between said parties which witnessed that, in consideration of mutual agreements, it was agreed by the parties thereto:

“ (1) That said party of the first part will and does hereby agree to lease to said second party the land and improvements heretofore described; and
(2) Said party of the first part shall within fifteen days from the date hereof submit to the party of the second part, an indenture of lease demising said premises for a term of one hundred (100) years from May 1st, 1929, to April 30, 2029, at the following rental: $6,000.00 per year for the first five (5) years of said term, payable quarterly in advance and $7,000.00 per year for the balance of 95. years payable quarterly in advance.
“(3) Said lease shall grant the lessee the option and privilege of purchasing the fee title to said real estate for $130,000.00 at any time during the term thereof; and provide for the erection by lessee of a new building on said premises or any part thereof on or prior to May 1, 1939, at a cost of not less than $20,000.00.
(4) Said lease shall contain such other provisions as the attorneys for said parties may think expedient and necessary, and if said attorneys cannot agree the form of lease now used by Northwestern University shall be followed, except as specifically modified by this agreement.
“ (5) In consideration hereof, the lessee shall pay to the lessor, upon execution of said lease, the sum of Fifteen Hundred Dollars ($1,500) being rent for the first quarter of said term, i. e. from May 1, 1929, to July 31, 1929.
“ (6) The lessors agree to pay Smart & Guide, Inc., a sum of money equalling one-half average years rental as heretofore stipulated as commission for negotiating said lease.
“In Witness Whereof, the parties hereto have set their hands and. seals the day and year first above written.
“Paul Perkovie (Seal)
Nikiea Perkovie (Seal)
1500 Sherman Avenue Building Co. By: B. L. Dowdall.”

The bill further alleges that in confidence that a lease would be executed, complainant expended divers sums of money in procuring tenants, plans for alteration and improvement of the building and in arranging finances; that complainant has always been ready to perform its part of said agreement and to accept a lease in pursuance of the terms thereof; that defendants have never submitted a lease but that complainant, through the brokers for defendants, has “submitted to said defendants a lease for said premises in accordance with the terms of said agreement, and said lease has been tenderd to the said defendants for their approval and execution, but that they have refused to either approve or to execute the same, and that your orator has frequently applied to the defendants and requested them to execute to your orator a lease of said premises conformable to the terms of said agreement, but that the defendants refuse to comply with your orator’s reasonable requests or to perform the aforesaid agreement,- and pretend that said agreement is of no force and effect, and pretend that said agreement is meaningless and without any standing at law or in equity.”

We have stated quite fully the material averments of the bill, and taking the statement of facts, as we must, most strongly against the pleader, we are constrained to hold that this bill does not contain such averment of facts as would justify the relief prayed for. In the first place, it is defective in that it fails to set up facts from which the court could be informed that the contract, which it is prayed may be specifically performed, is fair and just and not unconscionable. That such averments are necessary and material is held in Edwards v. Brown, 308 Ill. 350; and Grove v. Templin, 320 Ill. 597.

In the second place the bill is deficient in that the contract set up does not purport to give an absolute right without further negotiations. That the parties did not intend that the writing into which they entered should convey absolute rights is apparent from the second provision thereof, which states in substance that an indenture of lease shall be submitted within 15 days from that date, and from the fourth provision, which states that the lease shall contain such other provisions as the attorneys for the parties shall think expedient and necessary. It is true that it is stated that if the attorneys cannot agree that the form of lease used by the Northwestern University shall be followed, but provisions of such form of lease are left entirely to conjecture.

In London v. Doering, 325 Ill. 589, a bill was brought to secure a decree for the specific performance of a contract for the sale of real estate which, after stating in detail the terms of the contract as to the property described, the price and terms of payment, provided that the broker was authorized to bring two parties together for signing a regular real estate contract within three days. The bill was dismissed for want of equity, and the Supreme Court in its opinion affirming the decree said:

“The contract here sought to be specifically per-, formed shows on its face that it was a preliminary con-, tract in the negotiations for the exchange of properties and was to be followed within three days by a ‘regular real estate’ contract.”

Westphal v. Buenger, 324 Ill. 77; Gammon Co. v. Standard Trust & Savings Bank, 327 Ill. 489; Shaver v. Wickwire, 335 Ill. 46, and Sluka v. Bielicki, 335 Ill. 202, are other cases which sustain this general rule.

Complainant relies upon Miller v. Gordon, 296 Ill. 346, and Bournique v. Williams, 225 Ill. App. 12. The contracts in both these cases are, however, easily distinguishable from that which appears here, and in each case a decree had been entered upon the merits after the respective parties had introduced evidence to sustain their contentions. In neither case was the construction of a building involved, as here.

For the reasons indicated the judgment is affirmed.

Affirmed.

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


text:
    Sherman Budd, Defendant in Error, v. Joseph Wagner, Sr., Plaintiff in Error.
    Gen. No. 33,701.

      Opinion filed January 27, 1930.
    W. G. Anderson, for plaintiff in error.
    Channing L. Sentz, for defendant in error.
   Mr. Justice Matchett

delivered the opinion of the court.

This writ of error is brought by defendant, Joseph Wagner, Sr., to secure the reversal of a judgment against him in favor of Sherman Budd for the amount of $141.10.

Defendant has brought to this court only the common-law record. The matter was heard in the circuit court upon appeal from a judgment of a justice of the peace in favor of Budd and against Wagner, Sr., for a like amount.

It appears from the transcript of the justice that Budd sued Wagner, Sr., and Wagner, Jr., copartners trading as the Wagner Dairy; that a summons issued and was returned served on Wagner, Sr., and not found as to the other defendant; that on October 16, 1926, plaintiff and defendant Wagner, Sr., appeared before the justice. Ten witnesses were sworn and examined and documentary evidence admitted. The court found that $141.10 was due to plaintiff and entered judgment for that amount.

Thereafter Wagner, Sr., perfected an appeal to the circuit court by filing a bond in that court, whereupon a supersedeas issued and was served on the justice and constable. Plaintiff Budd then entered his appearance in the circuit court. The cause was submitted for trial without a jury, and there was a finding and judgment against defendant for a like amount, motions by him for a new trial and in arrest of judgment having been overruled.

Defendant prayed an appeal to this court, which was allowed. He filed a bond, secured numerous extensions of time for filing a bill of exceptions in the trial court but failed to file a transcript of the record here within the time required by law, and on May 24, 1929, his appeal was dismissed by this court for that reason. Thereafter, this writ of error was sued out.

Defendant contends that the transcript of the justice of the peace is insufficient to confer jurisdiction in that (1) it does not show upon its face the nature of the cause of action; and (2) it fails to show that the amount of the alleged claim was within the jurisdiction of the justice court. It is further contended that since it appears from the transcript of the justice that the suit was against two as copartners, while only one was served, the circuit court was without jurisdiction until a summons should issue against the partner not served as required by statute.

As to the sufficiency of the transcript, plaintiff cites Jackson v. Sherman House Hotel Co., 120 Ill. App. 507; Dickerson v. Johnson, 119 Ill. App. 325, and Demilly v. Grosrenaud, 201 Ill. 272. It will not be necessary to review these cases at length. It is held in all of them that the filing of a transcript of the judgment of a justice court with the circuit or superior courts is essential to the jurisdiction of those courts upon appeal. In this case a transcript was filed, and if defendant wished to take any advantage of any informality in it he should have made objection thereto before trial. By going to trial, he waived formal technicalities. Buettner v. Norton Mfg. Co., 90 Ill. 415.

The contention that it was error to enter judgment in the circuit court against one partner without serving or attempting to serve the other, raises a more difficult question. Defendant contends that the judgment was erroneous for this reason upon the theory that section 70 of the Act of 1872 (see Cahill’s St. ch. 79, If 178, § 70; Smith-Hurd’s Ill. Rev. Stat., ch. 79, par. 181) was not repealed by the Act of June 26,1895, which revised the law in relation to justices óf thé peace and constables. The second division ,of this court held that the Act of June 26,1895, did not repeal said section 70 in the case of Tongeln v. Knoll, 227 Ill. App. 317. In that case the plaintiff did not appear and apparently authorities to the contrary were not cited. However, in our view, a decision of that point is not necessary in this case. We express no opinion on it and shall assume that said section 70 is in full force and effect. That section is as follows:

“When an appeal shall be taken by one of several parties from the judgment of a justice of the peace, the clerk of the court shall issue a summons against the other parties, notifying them of the appeal in the said court, and requiring them to appear and abide by and perform the judgment of the court in the premises; which summons shall be served' as other process issued in appeal cases; and in case such summons shall be returned that parties are not found, the cause shall, at the first term of the court, be continued, but at the second term may be tried; and the court shall have power to give the same judgment as though all the parties to the judgment had joined in the appeal, unless the appearance of the appellee shall be entered as herein provided.”

This section was considered in Ernst v. Friedl, 93 Ill. App. 5, the court there in substance holding that when an appeal was taken by one of several parties from the judgment of a justice of the peace, the statute required the clerk of the court, to which the appeal was taken, if the appearance of the parties was not entered, to issue a summons against the other parties, and that it was error to proceed with the trial of the case without doing so. No authorities were cited and apparently other cases construing this section were not called to the attention of the court.

In Fabbri v. Cunio, 1 Ill. App. 240, the plaintiff sued Charles Fabbri and Sarah, his wife, in a justice court. Both were served and on trial judgment was rendered for plaintiff against Charles but for defendant Sarah. Charles appealed to the circuit court, where the cause was again tried and judgment entered against him in favor of plaintiff. He appealed to this court, urging that the judgment was erroneous because no summons was issued against Sarah in the circuit court as required by section 70. This court held in an opinion by Justice Bailey that under this section it was necessary to bring before the circuit.court only the persons “who were the parties to the judgment appealed from.” The court said that the object of the statute was “to provide, in cases where one of several joint parties to a judgment appeals, for bringing before the court the other joint parties, so that upon trial a proper judgment may be rendered against all of them.” It was held there was no error in the proceeding of the circuit court.

In Gormley v. Hartray, 105 Ill. App. 625, Gormley sued J. W. Hartray and Company, copartners, before a justice of the peace. Thomas It. Hartray was served, and the summons as to J. W. Hartray, the other partner, was returned not found. Judgment was rendered against Thomas R., who appealed to the circuit court, where judgment was again entered upon a verdict against him.

On appeal to this court it was urged by Thomas R. Hartray that the cause had never been at issue because he, only, had been served; that his partner had never been served in either court and that a summons had not been issued in the circuit court, as provided by this section 70 of the statute. This court said:

“Upon the hypothesis that this section is still in force, as to which we express no opinion, appellant is not helped thereby, for we think that it has no application to this case, because it applies to those parties only against whom the justice rendered, judgment, and does not in any way affect parties defendant who were not served before the justice and against whom no judgment was or could be rendered. ’ ’

The opinion cites as authority Fabbri v. Cunio, 1 Ill. App. 240; Smith v. Irwin, 5 Gilm. 268; Stephens v. Cross, 27 Ill. 35, and Sherburne v. Hyde, 185 Ill. 580, 582.

This interpretation of the statute seems to be consistent with section 14 of the Practice Act and also section 46 of chapter 79, which provides:

“If any summons or capias is served on any one or more, but not on all the defendants, the plaintiff shall be at liberty to proceed to trial and judgment in the same manner as if all the defendants were in court, and judgment may be entered and execution issued against the defendant served with process.” (See Cahill’s St. ch. 110, K14 and ch. 79, ft 46; Smith-Hurd’s Ill. Rev. Stat. 1929, section 14, chapter 110, and section 46, chapter 79; Mulligan v. Alsen, 222 Ill. App. 615, 616.) Ernst v. Friedl, 93 Ill. App. 5, must, we think, be held contrary to the weight of authority.

The judgment of the trial court is affirmed.

Affirmed.

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


text:
    Bohumil Fronek, Defendant in Error, v. Wladyslaw Wroblewski and Clementina Wroblewski, Plaintiffs in Error.
    Gen. No. 33,784.
    Opinion filed January 27, 1930.
    Pines, Morse & Stein and Joseph Wojnowski, for plaintiffs in error; Clarence T. Morse, of counsel.
    Charles J. Michal, for defendant in error; Otto Ade Arnston, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiff caused judgment to b.e entered upon a promissory note signed by defendants, to the order of plaintiff, for the sum of $3,000. The judgment was set aside on defendants-’ motion supported by an affidavit, which was ordered to stand as pleas to the declaration.

There was a trial by jury. Plaintiff offered the note in evidence and rested. Defendants then proved that a contract in -writing between the parties for the exchange of certain real estate was executed and delivered contemporaneously with the note and as a part of the same transaction. „ The contract was offered in evidence, and one clause of it provided:

“It is further agreed by and between- the parties to this contract that each will execute to the other judgment notes in the sum of three thousand dollars each to secure the faithful performance of this contract.” Defendants also offered evidence tending to show that the note sued on was given in conformity with this provision of the agreement.

They further offered evidence tending to show that plaintiff induced defendants to sign the contract by falsely representing that plaintiff’s lot was 27 feet wide and that there was an easement appurtenant to the lot; that, as a matter of fact, the lot was only 25 feet wide and that there was no such easement appurtenant thereto; further that the building on plaintiff’s lot encroached upon a lot to the north of it owned by a third person and that plaintiff declined to remedy these defects.

They also offered evidence of conversations between the parties tending to show that the delivery of the note was conditional and that it was intended by the parties to become effective only in case of default by defendants in performing the covenants of the written agreement for the exchange of property.

During the trial defendants asked leave to file additional pleas, one of these being the general issue. The motion was denied, and at the conclusion of plaintiff’s case, the court, on motion of plaintiff, instructed the jury to return a verdict in favor of plaintiff for $3,135. Motions of defendants for a new trial and in arrest were overruled, and there was judgment on the verdict for that amount. .

The evidence offered by defendants was excluded apparently upon the theory that parol evidence was inadmissible to vary the terms of the note. The note and the 'written agreement were executed contemporaneously and as a part of the same transaction and concerned the same subject matter, and the note and the contract were therefore admissible and should have been construed together. Kraft v. Hora, 159 Ill. App. 363, and the cases there cited.

The evidence showed beyond any reasonable doubt that the delivery of the note was conditional; that it was intended only as security, was to be returned to the maker when the contract was performed, and that it was to become unconditional only in case defendants should fail on their part to faithfully perform their covenants under the contract. Parol evidence is admissible to establish such defense to a promissory note under the Negotiable Instruments Act (Cahill’s. St. ch. 98, If 36; Smith-Hurd’s Ill. Rev. Stat. 1929, ch. 98, sec. 16, p. 1952.) Brannan’s Negotiable Instruments Law Annotated, 4th Ed., p. 129, sec. 16; Straus v. Citizens State Bank, 164 Ill. App. 420.

There is no proof, as this record stands, that defendants ever defaulted in the performance of their contract nor is there any proof tending to show that damages were sustained by plaintiff. Under these circumstances, it was clearly error to instruct the jury to return a verdict for the face of the note with interest. We think, too, the motion of defendants for leave to file additional pleas should have been allowed.

For the errors indicated, the judgment is reversed and the cause remanded for another trial.

Reversed and remanded.

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


author: Mr. Justice O’Connor

text:
    City of Chicago, Appellee, v. Van Schaack Brothers Chemical Works, Appellant.
    Gen. No. 33,790.
    Opinion filed January 27, 1930.
    Rehearing denied February 10, 1930.
    Arndt, Gavin, Griffin & Hanley and Defrees, Buckingham, Jones & Hoffman, for appellant; Don Kenneth Jones and Robert E. Wright, of counsel.
    Samuel A. Ettelson, Corporation Counsel and Frank Peska, City Prosecutor, for appellee; George Sugarman and Ransom E. Walker, Assistant City Prosecutors, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought a quasi-criminal action against the defendant to recover the maximum penalty provided by a city ordinance claimed to have been violated by the defendant. A jury was waived and at the conclusion of the evidence the court found defendant had violated the ordinance described in plaintiff’s statement of claim, imposed the maximum fine of $200 and this appeal follows.

The charge against the defendant, as alleged in the city’s statement of claim, was that the defendant had violated section 2,193 of the Municipal Code of Chicago, 1922, in that from November 8, 1927, to November 23, 1928, the defendant “failed to prevent fumes and odors escaping (from its factory) into the outer air”; that the fumes became a nuisance and detrimental to the public health.

The evidence shows that the defendant operated a plant at 3358 Avondale Avenue, Chicago, in which were manufactured two principal products, namely, amyl acetate, which is commonly referred to as “banana oil,” and ethyl acetate, both used as solvents in the manufacture of lacquers. Lacquer is a varnish consisting of a solution of shellac and alcohol. All of the evidence which was offered on behalf of the city shows, without dispute, that offensive odors were emitted from the factory. These odors were described by some of the witnesses as nauseating and by others as a chemical odor from lacquer and that it was nauseating. The evidence further shows that this odor was noticeable for a considerable distance from the factory, depending on the direction of the wind. The defendant offered no evidence except the introduction of a city ordinance, so that the offensiveness of the odor is established without dispute.

The defendant contends that its plant did not come within the provision of the ordinance mentioned in plaintiff’s statement of claim, with the violation of which defendant was charged, and that this is shown not only by an examination of the ordinance mentioned in the statement of claim, but by another ordinance introduced by the defendant which defendant claims is •applicable to a factory such as the one operated by the defendant.

The question for decision therefore is whether the factory operated by the defendant comes within the meaning of section 2,193 of the Municipal Code of Chicago, for no matter how offensive the odors emitted from defendant’s factory, the judgment in the instant case cannot be sustained unless the ordinance applies. Section 2,193, so far as is material, is as follows: “Manufactory or foundry — refuse and cinders to be removed — emission of odors and smoke prohibited.

“The owner, lessee, tenant, occupant or manager of every blacksmith or other shop, forge, coal yard, brick yard or place where bricks are manufactured, . . . shall cause all ashes, cinders, rubbish, dirt, and refuse to be removed . . . nor shall any such owner, lessee, tenant, occupant or manager cause or allow any dense smoke, cinders, dust, ggs or offensive odor to escape from any such building, structure, place or premises, which shall be offensive or prejudicial to the health or dangerous to the life of any person or persons not being therein or thereupon engaged; and it is hereby declared to be a nuisance to permit any ashes, cinders, rubbish, dirt or refuse to accumulate on any of the above mentioned premises . . . and become filthy or offensive, or to cause or allow any dense smoke, cinders, dust, gas or offensive odor to escape from any such building, structure, place or premises, and the commissioner of health or any officer designated by him may summarily abate the same.”

Counsel for the city contend that the chemical factory operated by the defendant as shown by the evidence comes within the ordinance because the ordinance, after naming blacksmith shops, to which it expressly applies,- contains the following: “or other shop” and it is contended that the factory in question is brought within the terms of the ordinance by the words, “or other shop.” In support of this the argument is made that the purpose of the ordinance was to enable the city to suppress offensive odors arising from any shop and that the defendant’s factory is a shop within the meaning of the ordinance. We think this contention cannot be sustained. In the construction of statutes and ordinances, general words following an enumeration of particular things, such general words are held to apply only to cases or things of the same kind as those which are referred to specifically. City of Clinton v. Wilson, 257 Ill. 580. Under this well established rule of construction, we think the words “or other shop” used in the ordinance which follow the word “blacksmith,” apply to other shops of the same kind and cannot be held to apply to a shop or factory where chemicals are made. We are therefore of the opinion that the ordinance mentioned in plaintiff’s statement of claim does not apply to the defendant’s chemical factory, and it therefore follows that the judgment of the municipal court of Chicago must be reversed.

The judgment of the municipal court of Chicago is reversed.

Judgment reversed.

McSurely, P. J., and Matchett, J., concur.


author: Mr. Presiding Justice Barry

text:
    Mattie Oswald, Appellee, v. Illinois Central Railroad Company, Appellant.

      Opinion filed July 26, 1929.
    Kramer, Kramer & Campbell and R. E. Costello, for appellant; Vernon W. Foster, of counsel.
    Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Near the east end of the Free Bridge connecting St., Louis and East St. Louis, appellant has several tracks which pass under the said bridge. Between ten and eleven o’clock at night on February 11, 1927, appellee and her husband were driving east across the bridge when they observed a large volume of dense black smoke ahead of them. They stopped the car and waited for ten or twelve minutes for the smoke to clear away and while so waiting another car came up from the west and struck their car, the driver not being able to see appellee’s car on account of the smoke. Appellee then got out of the car and went to the rear of it to see what damage had been done, and while she was between the two cars a third car came up and struck the second and caught her between the cars and she was severely injured. The driver of that car was unable to see the cars ahead of him on account of the smoke. At the time appellee and her husband stopped on the bridge, the smoke was crossing the bridge to the north and while they waited the wind shifted and the smoke enveloped them.

The smoke was coming from an engine of appellant’s which was standing oh one of its tracks just a short distance south of the bridge and according to the evidence offered by appellee, and which seems to be undisputed, this' dense black smoke had been coming from the engine for ten or twelve minutes before appellee’s car was struck. The declaration set up the foregoing facts and the trial resulted in a verdict and judgment for $5,000.

Appellant contends that it was not guilty of negligence, that the smoke from the engine was but the natural result of the conduct of its business. If an engineer carelessly and negligently permits steam to escape from his engine at or near a highway crossing when a horse-drawn vehicle is approaching and a team is thereby caused to run away and injury results, the railroad company is liable. Toledo, W. & W. Ry. Co. v. Harmon, 47 Ill. 298; Chicago & A. R. Co. v. Heinrich, 157 Ill. 388; Ft. Wayne Cooperage Co. v. Page, 23 L. R. A. (N. S.) 946, note. In an action for personal injuries alleged to have resulted from the plaintiff’s horses, while being driven along a public highway parallel to the right of way of the defendant railway company, becoming frightened by steam allowed to escape-from a passing engine on to the highway and enveloping the horses, the question whether or not the defendant was negligent in blowing off steam in the manner and place alleged was a question of fact for the jury. Neer v. Pryor, 201 Ill. App. 79.

We are of the opinion that if appellant permitted its engine to stand so near to- the bridge and unnecessarily permitted a large volume of dense black smoke to pass across the bridge, enveloping cars and drivers thereon, for ten or twelve minutes, we would not be warranted in holding that no negligence was proven. No excuse was shown for the engine standing in one place for ten or twelve minutes emitting large quantities of black smoke. Under the circumstances of this case we think it was a question of fact for the jury and that the verdict should not be disturbed unless for other reasons.

Appellant contends that appellee was guilty of contributory negligence which was the proximate cause of her injury. We are also of the opinion that this was a question of fact for the jury.

The next contention is that the court gave to the jury improper instructions on behalf of appellee. The seventh instruction was to the effect that when it is said in the instructions that the plaintiff was required to exercise ordinary care for her own safety, it is meant that she was required to exercise that degree of care which an ordinarily prudent person, situated as she was, before and at the time of the accident, would have exercised, for his or her own safety. It is argued that this instruction was bad because it confined appellee’s due care to the time before and at the time of the accident. Appellant’s eighth given instruction informed the jury that the plaintiff was required to prove that she was in the exercise of due care and caution to avoid injury “immediately before and at the time of the accident in question.” There is no material difference between the two instructions and appellant has no cause to complain of appellee’s seventh given instruction.

Appellee’s ninth and tenth given instructions informed the jury as to what constitutes proximate cause. It has been said to be the general rule that what is the proximate cause of an injury is ordinarily a question for the jury, the court instructing them as to what the law requires to constitute it, and the jury applying the law to the facts. 22 R. C. L. 148. The court should define proximate cause to enable the jury to determine whether the negligence alleged was the proximate cause, since, in order for negligence to create liability, it must be the proximate cause of the injury. Missouri, K. & T. Ry. Co. v. Perino, 118 Okla. 138, 247 Pac. 41.

The only criticism of appellee’s ninth instruction is that it would lead the jury to believe that inasmuch as an accident and an injury had occurred, it must appear from the evidence that it was the natural and probable consequence of appellant’s negligence. It is said that the instruction directs a verdict in stating to the jury that the mere fact that an injury has occurred that it must appear that it was the natural and probable consequence of appellant’s negligence. The instruction was clearly intended to simply inform the jury as to what would constitute the proximate cause of the injury complained of and nothing more. It does not assume that appellant was negligent and it does not direct a verdict. The criticism of this instruction is not well founded.

Appellee’s tenth instruction informs the jury as to the rules of law for determining whether appellant’s alleged negligence was the proximate cause of the injury. It does not assume that appellant was negligent and it does not direct a verdict. The only criticism made by appellant is that this instruction might lead the jury to believe that if appellee was guilty of negligence and her negligence was one of the causes which acted at the same time and in combination with appellant’s alleged negligence that then she could recover. Appellant’s sixth and eighth given instructions informed the jury that if appellee was guilty of negligence which contributed to her injury, she could not recover. While the instruction may not be technically accurate, yet as it did not direct a verdict and the jury . was fully instructed, we are of the opinion there was no reversible error. A similar instruction was approved in Harrold v. Clinton Gas & Electric Co., 205 Ill. App. 12, and in Ft. Worth D. C. Ry. Co. v. Morrow (Texas), 255 S. W. 674.

We are of the opinion that none of the objections urged against the instructions aforesaid is of such a nature as would require a reversal. No reversible error having been pointed out, the judgment is affirmed.

Affirmed.


author: Mr. Justice Newhall

text:
    Bertha Hines, Administratrix of the Estate of Joseph G. Hines, Deceased, Appellee, v. Pennsylvania Railroad Company, Appellant.
    Opinion filed October 31, 1929.
    Whitnel & Browning, for appellant.
    Beasley & Zulley, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This is an appeal from the city court of East St. Louis to reverse a judgment for $20,000 in favor of appellee in an action brought by her under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, Ü 321 et seq., for damages on account of the death of appellee’s husband, Joseph G. Hines, while alleged to have been on duty as an employee of appellant. The declaration alleges that while appellee’s intestate was working for appellant, engaged in interstate commerce, the latter, through its servants, “without any knowledge or warning to the plaintiff’s intestate . . . carelessly, negligently and improperly drove” an engine over and thereby caused the death of appellee’s intestate.

The tracks of the Pennsylvania Railroad Company run in an easterly direction out of East St. Louis and the relay depot, the terminal point of its passenger trains in East St. Louis, is several miles westerly from the point where the railroad crosses Ninth Street, from which crossing the road extends to the east. At Ninth Street the railroad consists of two main tracks and three side tracks which cross Ninth Street at an angle.

At and prior to May 25, 1927, appellant maintained watchmen or flagmen at this crossing who worked in shifts of 8 hours each. The deceased’s, Joseph G. Hines, regular shift as flagman or watchman was from 7:00 a. m. to 3:00 p. m. daily.

On May 25, 1927, Hines worked his regular shift until 3:00 p. m. when he was relieved by another watchman by the name of Marshall. At about 10:45 p. m. on the night in question Wiggins, whose time of duty as watchman began at 11:00 p. m., appeared at the crossing and within a few minutes thereafter Marshall, who had been on duty as a watchman, left. Marshall testified that although Wiggins ordinarily relieved him, on the evening in question he turned the crossing over to Hines, who took a white lantern out of Wiggins’ hand and proceeded to flag traffic at the crossing.

It is contended by appellee that by an agreement made pursuant to a custom Wiggins had traded shifts with Hines and arranged with Hines to substitute for him on the night in question from 11:00 p. m. to 7:00 a. m. and to support this theory appellee offered evidence by Wiggins who testified that he had been told by the foreman that in the event he was sick he should arrange with some other watchman to take his place.

On the part of appellant it is contended that the evidence shows that Wiggins was not sick on the evening in question and that he did not request Hines to take his place, and that Hines in going to the crossing in question and in assuming to work as flagman or watchman on the midnight shift was a mere volunteer.

Shortly after 11:00' p. m. a long freight train, commonly known as a drag, moved westerly over the crossing on one of the passing or switch tracks. At this time Hines was on the crossing with his white lantern protecting automobile traffic. The freight train stopped for a short time on the crossing and considerable numbers of automobiles collected on both sides of the tracks waiting for a clearance. It appears that Hines stood between the rails of the second track and was facing the passing freight train, and while so doing an engine was running backwards from the relay depot towards the crossing. The engineer and fireman testified that the automatic bell oh the engine was ringing, and had been from the time the engine left the relay depot; that lights were burning on the back of the engine and that the usual crossing whistle was given as the engine approached. Wiggins, who was also on duty as a watchman at the time in question, testified on behalf of appellant that he saw the engine and heard the whistle; that when the engine was about 40 feet away he tried to warn. Hines, who, on account of the noise of the passing train, evidently did not hear the warning. Two witnesses, Clark and Ostendorf, who were in an automobile on the opposite side of the tracks, testified that they heard the whistle and the bell and that they could see the top of the engine over the intervening cars at least a block away. Crain, who was in an automobile which Hines had stopped and ordered to back from the crossing, testified that he saw the engine when it was a hundred feet away and heard the bell and whistle and that at the time he also shouted a warning to Hines. The witness Marshall testified that he had left the crossing about fifteen minutes before 11:00 p. m. and proceeded to his automobile which was parked about 250 feet away where he remained for about three-quarters of an hour; that he did not hear a bell or whistle on any locomotive on appellant’s road. The record shows that the foreman of the watchmen had instructed them that when two watchmen were on duty one should stand on the south side of the tracks and the other on the north side of the tracks in order to avoid the possibility of injury from passing trains.

The engineer on the engine of appellant, which caused the death of appellee’s intestate, testified that as he approached the crossing he whistled; that the automatic bell was ringing; that he approached the crossing at from 6 to 10 miles an hour and he noticed that there was a white lantern swinging at the crossing which he knew as an engineer was the crossing watchman’s light; that he saw this white light until he was about 50 feet from the crossing when the light disappeared from view on account of the back part of the tender being between the engineer and the swinging light on the crossing; that he assumed that the man bolding the light had stepped from the track and out of danger. The engine proceeded to the crossing and Hines, not heeding the warnings that had been given him. by others, evidently did not see or hear the approaching engine and was struck and killed as he stood between the rails of the main track.

Appellant contends that the verdict was against the evidence, there being no competent evidence to support a finding that Hines was on duty at the time of the accident; that the evidence establishes that appellant was not guilty of the negligence charged in the declaration; that the risk of this particular accident was assumed by Hines, his own negligence being the alleged proximate cause thereof; and that the court erred in" the giving and refusing of instructions.

Motion for a directed verdict was made by appellant at the close of appellee’s evidence and renewed at the close of all the evidence, which was overruled and error has been assigned on such rulings.

It is admitted by counsel for appellee in their brief that the evidence shows the usual crossing signals had been given prior to the time that the engine proceeded upon the crossing where the deceased was engaged in flagman duties.

It is also contended by appellee that her declaration does not base a right of action upon the statutes of Illinois with reference to blowing a whistle, or sounding a bell on approaching a public highway but it is claimed that the evidence establishes that the engineer

on the engine saw appellee’s intestate in a place of danger and made no effort to warn appellee’s intestate as alleged in her declaration.

The declaration alleges that the servants in charge of the engine, without any knowledge or warning to appellee’s intestate, negligently drove the engine backwards over the crossing and as a result of such negligence appellee’s intestate was killed.

The principal inquiry is whether under the evidence most favorable to appellee there is shown any failure of appellant’s servants, the trainmen, to perform any duty owed appellee’s intestate; whether, under ordinary circumstances, a railroad company owes a duty to its flagmen or watchmen employed at public crossings to protect the travelers thereon, to warn them of the approach of trains that are running in the usual and ordinary manner in the conduct of railroad traffic.

In the case of Toledo, St. L. & W. R. Co. v. Cross, 127 Ill. App. 204, a flagman, who had been stationed near a trestle over the railroad property for the purpose of warning trainmen in case that high water in a creek underneath the trestle endangered the same, was killed by a passing train and it was alleged that the trainmen failed to warn the flagman of its approach. A right of recovery in the case was predicated solely on the alleged failure of the trainmen to sound a locomotive whistle as a warning to the watchman or flagman before passing over the trestle. The court held in this case that the railroad company owed no duty to the deceased to sound a whistle or give other warning of the approach of its trains. In passing on this issue the court said, “The deceased was stationed at the place in question in the capacity of a watchman, to keep a lookout that the waters of the creek did not wash away the fill or embankment so as to endanger the foundations of the trestle, and to display, as occasion required, signals of danger or safety for the information of the servants of appellant operating its trains. He was an experienced railroad man, familiar with appellant’s road and must be held to have known that appellant’s trains were liable to pass over its track at any time. He was stationed there for the express purpose of watching for the approach of trains and signaling them. It is anomalous to say that appellant, under such circumstances, owed the deceased a duty to warn him of approaching danger.”

In Doering v. Peoria & P. U. Ry. Co., 196 Ill. App. 129, the court had under consideration the case of ay injury of a crossing flagman on the public highway who was struck by a railway train crossing the same and it was urged that the railroad company failed to warn the flagman of the timely approach of the train. The court held that the flagman owed his employers the duty to ascertain the approach to the crossing of all trains and engines and to give timely warning and signals to stop all foot passengers and to the drivers of all vehicles that a train or an engine was approaching. And it was further held by the court in this case, “This is not the case of a servant of a railway company upon and about the tracks to perform some other duty and with a right to rely upon the railway company to give all statutory and customary signals while he is performing that other duty. This was one of the servants of the railway company whose duty it was to ascertain the approach of the train and give signals therefor. He entirely failed to perform that duty. The train was in sight for four blocks. He could not fail to see it if he looked, for the weather was clear and the time was midday. Under these circumstances the fact that he did not see it proves conclusively that he did not properly look in that direction. It has been held that under such circumstances a person upon whom such a duty rested cannot recover for an injury to himself which he would not have received if he had performed his duty. Ruane v. Lake Shore & M. S. Ry. Co., 64 Ill. App. 359; Loettker v. Chicago City Ry. Co., 150 Ill. App. 69; Shea v. Chicago & O. P. El. R. Co., 183 Ill. App. 380.”

The undisputed facts in the case at bar show that as the engineer approached the crossing in question, he observed a white light was being swung presumably by a flagman at or near the crossing, and under such circumstances he had the right to act upon the assumption that the flagman would perform his duty and step out of danger of the approaching engine, there being nothing to indicate to the engineer that the flagman was trapped or was oblivious to the danger. See Aerkfetz v. Humphreys, 145 U. S. 418, 36 L. Ed. 758.

In Toledo, St. L. & W. R. Co. v. Allen, 276 U. S. 165, 72 L. Ed. 513, it was held that an injured employee cannot bold his employer liable under the Federal Employers Liability Act for injuries received in the course of his employment in the absence of negligence on the part of the employer.

It was further held in this case that employees engaged in switching cars in a railroad yard, are ¡not, in the absence of knowledge that a car checker is in a place where he is liable to be struck by the movement of the cars, and oblivious of that danger, required to vary the switching practice customarily followed, in the yard, or warn, or take other steps to protect him.

There is no evidence tending to show that appellee’s intestate was in any danger other than such as was usually incident to his employment or that any member of the engine crew knew or had-any reason to believe that he was oblivious of surrounding conditions.

We are of the opinion that there is no evidence to sustain the allegations of appellee’s declaration and that appellant owed no duty to the deceased to give, him warning of the approach of its trains.

In the view we have taken of this case, we deem it unnecessary to discuss the other questions argued by counsel.

The judgment of the city court of East St. Louis is reversed with findings of fact to be incorporated in the judgment of this court.

Reversed with findings of fact.

Findings of fact: We find that appellant was not guilty of any negligence charged in the declaration.


author: Mr. Justice Wolfe

text:
    John M. Weger, Appellee, v. The Robinson Nash Motor Company et al., Appellants.
    Opinion filed October 31, 1929.
    Rehearing denied December 9, 1929.
    Jones & Lowe, for appellants.
    Parker, Cox & Eagleton, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

■The Robinson Nash Motor Company, a corporation, was organized in May, 1924, and at once began business at Robinson, Illinois. The Wegers were stockholders in the corporation, and held stock therein from the organization of the corporation to the time of the hearing of this case.

About March 1, 1925, it was found that the Motor Company did not have sufficient available money to carry on the business as desired, and on March 20,1925, John M. Weger and Charles Weger executed a note to the Robinson State Bank for $3,000. The proceeds from said note were placed to the credit of the Motor . Company at said bank. Prior to this time the bank held extended to the Motor Company a line of credit to the amount of $6,000. After this was done the Motor Company became indebted to the bank considerably in excess of $6,000;

The business relation between the bank and the Motor Company became unsatisfactory to the cashier of the bank, and Adlai A. Weger, the manager of the Motor Company was so notified. At the same time the cashier of the bank told Mr. Adlai A. Weger, the manager of the said Motor Company, that the bank would extend a line of credit to the Motor Company to the amount of $15,000 if they would give a guarantee signed by persons connected with the Motor Company, as designated by the cashier of the bank. The suggestion of the cashier to Mr. Weger was satisfactory, and a written guarantee was signed. After the guarantee was signed, one of the guarantors wished to be released, and for that purpose a second guarantee contract was signed which is as follows: “We, the undersigned Directors and Stockholders of the Robinson Nash Motor Company do hereby guarantee the payment of notes of said Company given the Robinson State Bank of Robinson, Illinois, and hereby agree to be personally liable therefor and to all the conditions and requirements written in said notes in consideration of said Bank extending to said Robinson Nash Motor Company a credit of ($15,000.00) bearing interest at the rate of (6) per cent per annum, with the privilege of paying off said notes at any time and stopping the interest thereon, made in duplicate this 28th day of October, A. D., 1925.

J. M. Weger,
Charles J. Weger,
A. A. Weger.”
“Accepted by The Robinson State Bank this 5th day of November, 1925.”
“O. M. Davis, Cashier.”

At the time of executing the guarantee contract in-question the Motor Company was indebted to the Robinson State Bank in the amount of $14,365.91, evidenced by seven promissory notes. These notes are known as Exhibits Nos. 4, 7, 8, 9, 10, 21, and 23. On March 13, 1926, the bank and the Motor Company agreed there was due on the notes marked Exhibits Nos. 4, 7, 9, 10, and 12, respectively, the sum of $12,797.92. The Motor Company paid on this amount $97.92, and a new note for $12,700, known as Exhibit No. 5, was executed. Notes marked Exhibits Nos. 4, 7, 9, 10¡ and 12, respectively, were marked “Paid.”

On January 13, 1926 the bank and the Motor Company agreed that there was due on the note marked Exhibit No. 23, $832 and a new note marked Exhibit No. 13, was executed and the note marked No. 23 was marked “Paid.” Later on a note marked Exhibit No. 3 was paid by the appellee. The amount due with interest was $753.42. On March 13,1926, the Bank and the Motor Company ^agreed that there was due on the note marked Exhibit No. 18, the sum of $188.50. The note was marked “Paid” and “Canceled,” and the note marked Exhibit No. 6 was executed. Said note was later paid by the Motor Company and is not now in controversy.

The note of $12,700 given on March 13, 1926, was made payable on demand. This note was canceled and marked “Paid” on January 13, 1927, and a new note was given from the Motor Company to the bank being marked Exhibit No. 14.

The bank was demanding payment of the indebtedness on the note of $12,700, which is marked Exhibit No. 14, and other indebtedness owing from the Motor Company to the bank, and gave notice to the Motor Company and all of the guarantors on the guarantee contract that this indebtedness should be paid. John M. Weger, the appellee herein, has paid the bank on said indebtedness an amount in excess of $5,000.

John M. Weger, appellee herein, started a suit in chancery in the September Term, 1928 of the circuit court of Crawford county, Illinois, making the Robinson Nash Motor Company, Chas. J. Weger, appellant, the Robinson State Bank, and Adlai A. Weger, defendants therein, whereby he prayed for an accounting between himself and the defendants. On a hearing of the case the court decreed that the appellant, Chas. J. Weger pay to John M. Weger, the appellee, the sum of $5,526.16, and that John M. Weger pay to the Robinson State Bank $7,671.97; that the appellee and appellants should each pay one-half of the costs.

From the decree the appellant, Charles J. Weger, perfected his appeal to this court and has assigned numerous errors in support of his contention that the findings of the court are incorrect. The appellee has filed cross errors that the decree is not supported by the law and evidence in the case.

We are of the opinion that it is only necessary to discuss one assignment of error raised in the case, viz: “Was the appellant Charles J. Weger released from liability on the notes which were guaranteed by the contract, when the Motor Company executed new notes for the then existing notes at the date of the guarantee, and whether , by so doing the first, or old notes, were paid at the time the renewal notes were executed ? ’ ’

Our Supreme Court has held that the giving of a new note is prima facie payment of the old one. Trego v. Cunningham, Estate of, 267 Ill. 367, 376. In the later case of Boulter v. Joliet Nat. Bank, 295 Ill., at page 594 the court says: “The giving of a promissory note in renewal of another does not, of itself, operate as a satisfaction of the original note. Whether it does so or not is a question of fact for the determination of a jury and depends upon the intention of the parties. If it is made and accepted for such purpose the former note is satisfied. Belleville Savings Bank v. Bornman, 124 Ill, 200; Jansen v. Grimshaw, 125 Ill, 468,”

In the Boulter case, stock was pledged for the payment of the note and unbeknown to the owner of the stock, the old note was canceled and a new note given to the bank. The court held that under the circumstances the bank had considered that the first note was paid and therefore the owner of the stock pledged, was entitled to recover the stock and the bank had no claim upon it. The Appellate Court of the First District in the case of West Madison State Bank v. Mudd, 250 Ill App. 258, in passing upon a similar case to fhis, held that there is a distinction between an extension of time to pay a note and a renewal, and we think that the language used in the Mudd case is applicable to this case. (See also Kimbell Trust & Sav. Bank v. Hartford Accident Co., 248 Ill. App. 23.)

The same subject was discussed by the court in the case of Childs v. Pellett, 102 Mich. 558, 61 N. W. 54, in which they say: “Unless there is evidence of a contrary intention, ‘renewals at a bank ought always to be regarded as payments because the banks themselves so regard them.’ ” Numerous cases decided by the Supreme Courts of other States could be cited in which it is held that when a note given to a bank has been taken up and marked “Paid” by the bank and a new note given in its stead that this will be in law considered a payment of the old note, and any sureties or guarantors of the original note will be discharged from further liability upon the original note. Practically all of the decisions which we have' examined hold that the giving of the new note is prima facie evidence that the original note was intended to be paid. This presumption however may be rebutted by evidence.

From the facts and circumstances in this case we are of the opinion that the written agreement was as to the existing notes at the time the contract of guaranty was signed and there was no provision for a renewal of the same. The notes were renewed and the time of payment extended, the old notes marked “canceled and paid.”

We find no evidence in the record that Charles J. Weger consented to the renewal of -these notes, nor do we find any ratification of the same. The extension of time of payment by renewal of the notes in the absence of consent or subsequent ratification of the same, by the appellant, operated as a discharge as to him from further liability on these notes.

The judgment of the circuit court of Crawford county, Illinois, is hereby reversed.

Reversed.


author: Mr. Justice Jones

text:
    The People of the State of Illinois, Defendant in Error, v. Peter San Filippo, Plaintiff in Error.
    Gen. No. 7,938.

      Opinion filed November 15, 1929.
    Rehearing denied February 4, 1930.
    J. E. Goembel, for plaintiff in error.
    William D. Knight, State’s Attorney, for defendant in error; A. B. Louison, Assistant State’s Attorney, of counsel.
   Mr. Justice Jones

delivered the opinion of the court.

Plaintiff in error was tried and convicted in the county court of Winnebago county on an information charging the unlawful sale of intoxicating liquor. After a jury trial, he was sentenced to pay a fine of $1,000 and to be imprisoned in the county jail for a period of six months.

The only ground urged for a reversal of the judgment is that the information is insufficiently verified. The verification is as follows:

“State of Illinois, Winnebago County. ss.

“I, Robert E. Nash, of said County and State, being duly sworn according to law, do on'oath say that the matters and things set out and stated in the within information are true.

Robert E. Nash.

“Subscribed and sworn to before me this 8th day of June, 1928.

Martha R. Freeland, Deputy Clerk of the County Court.”

It is insisted that a deputy clerk must perform all official acts in the name of his principal, and is not empowered to perform them in his own name.

The weight of authority is that while a deputy may generally perform all of the official acts which his principal can perform, every such act must be done in the name of the principal, and not in the name of the deputy. (46 C. J. Officers, sec. 381.) In Village of Auburn v. Goodwin, 128 Ill. 57, a surveyor’s certificate signed ‘‘Cortes Fessender, Dep’t. Surveyor, S. Co.,” was held invalid, because it was not in the name of the principal. In Village of Augusta v. Tyner, 197 Ill. 242, it was held that a survey and certificate made by a deputy county surveyor in his own name as deputy, and not in the name of the county surveyor, was invalid and did not have the effect to convey the fee of the street. (See Wilder v. Aurora, DeKalb & Rockford Elec. Tractiqn Co., 216 Ill. 493.) The text in 22 R. C. L. pp. 583-584 lays down the rule that the authority of a deputy must be exercised in the name of him in whom it exists and not in the name of him who has no recognized authority.

Where this doctrine prevails, whatever official act is done by a deputy must be done in the name of his principal and not in the name of the deputy. If he undertakes to act in his own name in his own authority, he no longer acts as deputy, but in an independent capacity, and his acts can no longer be recognized as official. A distinction is sometimes made between deputies who are recognized by law as independent public officers and those who are mere agents of the principal. In Illinois, the courts have held that deputy clerks of county courts belong to the latter class, and that their powers are derivative, the actual authority being given to the principal. (Village of Auburn v. Goodwin, supra; Hope v. Sawyer, 14 Ill. 254; Woodward v. Donovan, 167 Ill. App. 503.) Under the authorities, the jurat in the instant case should have been executed in the name of the clerk and not in the name of the deputy.

A prosecution upon an information which contains no sufficient verification is an invasion of a constitutional right and a denial of that right is an error for which the judgment must be reversed on a writ of error, unless the right is waived by a failure to insist upon it in the trial court. (People v. Leinecke, 290 Ill. 560.) Plaintiff in error made a proper objection to the defective jurat by a motion in arrest of judgment. The objection is properly preserved when raised'either by a motion to quash or by a motion in arrest of judgment.

In People v. Honaker, 281 Ill. 295, the defendant was prosecuted under two informations charging him with desertion of his infant children. The informations were not supported by affidavits. The evidence in the two cases being identical,- they were heard together under a stipulation, and the defendant was found guilty. No motion to quash the informations was made, but motions in arrest of judgment were entered and overruled by the trial court. The judgments were reversed by the Supreme Court, which held that, ‘ The only authority for the arrest of the defendant and bringing him to trial was the warrants disregarding the bill of rights, which prohibits the issue of a warrant upon an information not supported by oath or affirmation. (People v. Clark, 280 Ill. 160.) To say that although the warrants were void, they furnish a sufficient basis for a trial would be trifling with constitutional rights. ’ ’

In People v. Arey, 318 Ill. 305, the affidavit endorsed on the information was insufficient because it was based on information and belief. It is there stated that an affidavit to an information must be sworn to positively so that a charge of perjury will lie if the affidavit is false and that the objection may be made by motion to quash or in arrest. To the same effect are People v. Bell, 212 Ill. App. 144; People v. Ross, 243 Ill. App. 427, 428.

It therefore appears that the conviction in this case was had under an information with a fatally defective and insufficient verification, and that objection was properly made by motion in arrest. The trial court erred in overruling the motion in arrest of judgment and on that account the judgment of conviction must be reversed.

Judgment reversed.