author: Mr. Justice John J. Sullivan

text:
    Agnes Kilroy, Appellee, v. The Retirement Board of the Park Policemen’s Annuity and Benefit Fund et al., Respondents. Appeal of The Retirement Board of the Park Policemen’s Annuity and Benefit Fund, Appellant.
    Gen. No. 39,859.

      Heard in the second division of this court for the first district at the December term, 1937.
    Opinion filed November 17, 1938.
    Rehearing denied December 7, 1938.

      Raymond A. Cavanagh, of Chicago, for appellant.
    Ralph O. Winkenwerder and Finn & Miller, both of Chicago, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This appeal seeks to reverse a judgment entered in a common law certiorari proceeding which quashed the return of the respondent, Retirement Board of the Park Policemen’s Annuity and Benefit Fund, and ordered that it “pay to the Petitioner, Agnes Kilroy, the annuity provided for the widow of a policeman whose death shall result from injury incurred in the performance of an act or acts of duty in accordance with the provisions of the legislative enactment creating the Park Policemen’s Annuity and Benefit Fund, being section 31 of said enactment, said payments to date from the day following the date .of the death of the husband of said Petitioner.”

Respondent contends that “Officer Kilroy did not die as the result of injuries incurred in the performance of an act of duty, and that there was no causal connection between the alleged injuries and the death of Officer Kilroy”; and that “the nisi prius court had no power to weigh the evidence and substitute the judgment of the court for the judgment of the defendant board.”

The theory of petitioner (hereinafter referred to as plaintiff) is that “she is entitled to compensation annuity as the widow of Fred J. Kilroy, a deceased member of the police force of the Lincoln Park Commissioners of the City of Chicago, who is alleged by the plaintiff to have died as the result of injuries incurred in the performance of an act of duty. ’ ’

Fred J. Kilroy was a park policeman in the city of Chicago, employed by the Lincoln Park commissioners. He entered the police service February 16, 1922, and died March 17, 1930. He was the husband of Agnes Kilroy, plaintiff, and the father of four children, namely, Dorothy, James, June and Shirley Kilroy. Following the death of officer Kilroy, the respondent board granted his widow, Agnes Kilroy, an annuity of $15.17 a month for life or until remarriage, together with an additional allowance of $10 a month for each minor child until such child attained the age of 18 years. Payment of such allowances began as of the day following Kilroy’s death.

In February, 1931, plaintiff presented to the board a petition requesting that she be paid “compensation annuity” as provided in section 31 of the act governing the park policemen’s annuity and benefit fund (Ill. State Bar Stats. 1935, ch. 105, par. 459 [Jones Ill. Stats. Ann. 100.584]) alleging that her husband’s death resulted from injuries incurred in the performance of an act of duty. Following an investigation by its attorney her application for such increased annuity “was laid on the table” at a meeting held April 8, 1931, the board finding that “the death of officer Fred J. Kilroy was not the result of an injury sustained by him on January 31, 1930, at Montrose avenue and Sheridan road, while in the performance of an act of duty.” In June, 1931, plaintiff requested that her application be set down for hearing. Thereafter, a partial hearing was had at a meeting of the respondent board on October 6,1931, but a motion made at that time that “Mrs. Kilroy’s application for increase in her annuity be taken from the table” failed to carry. Subsequently, plaintiff’s attorney appeared before the board on November 7, 1933, and outlined his version of the facts upon which she predicated her claim, but no action was taken by the board. On or about April 12,1935, plaintiff filed a proceeding in mandamus against respondent seeking to compel payment to her of the increased compensation annuity provided for in section 31 of the act, heretofore referred to. Thereafter hearings were had and testimony taken before the board in connection with plaintiff’s claim on May 6, June 10, August 5 and September 9, 1936. A synopsis of the testimony and affidavits, as well as of various reports theretofore made to the board by its attorney, was submitted to respondent on October 7, 1936. At a meeting of the board held November 4, 1936, plaintiff’s application for increased compensation annuity was denied. May 17,1937, an order was entered in the circuit court of Cook county allowing plaintiff’s petition for mandamus to stand as a petition for certiorari, with leave to respondent to file its return instanter. Respondent’s return, which included all the evidence presented in the matter of plaintiff’s application, was filed the same day.

' It appears from said return that on January 31,1930, at 4:45 p. m., Fred J. Kilroy was struck by an automobile and knocked down while attempting to assist a lady across a driveway in Lincoln Park; that he continued to perform his duties thereafter that evening, returning to his home at about 8 p. m.; and that Dr. William J. Schaffer was called to Kilroy’s home that same night to treat him.

The only question before the respondent board was whether or not Kilroy’s death occurred as a result of the injuries incurred by him in the performance of an act of duty on January 31, 1930.

• Plaintiff and three of her children testified before the respondent board and a number of her friends and friends of Kilroy submitted affidavits to said board to the effect that prior to his injury Kilroy was an affable, affectionate husband and father, with a pleasant disposition, and that after said injury there was a marked change in his personality in that he became sensitive, explosive and irritable. Evidence was also submitted to the board, either in the form of affidavits or the testimony of witnesses, that Kilroy, commencing about seven or eight days after his injury, suffered from severe and protracted head pains, as well as from hallucinations, especially as to his physical condition and the improbability of his recovering from his injuries.

Dr. Harold S. Hulbert, a specialist in mental and nervous diseases, called by plaintiff as an expert witness before the board, testified in answer to a hypothetical question which included the assumption that the hypothetical person “after a period of about seven or eight days [subsequent to his injury] began to show signs or symptoms of organic brain disease,” that it was his opinion that either “thememory defect, sensitivity to noises, the change in personality, profound change in mood, show that the brain tissue itself was involved . . . the combination of the pains plus this impaired brain condition, keeping him from thinking, was the cause of his deciding to die by suicide . . . the injuries were, within reasonable medical certainty, the proximate cause of his death . . . the personality change, the depressed mood, the emotional instability, 'and the head pains following the accident were unbearable, and he died because of the combination of these things. ’ ’

As heretofore stated, when plaintiff’s application for the increased annuity was first presented to the board the matter was referred to respondent’s attorney for an investigation of her claim and a report thereon. The first reports of the attorney furnished the b.asis for the original refusal of the board to act favorably on plaintiff’s application. These and subsequent reports of said attorney, although not sworn to, were incorporated in the proceedings of the board which were included in its return to the writ of certiorari. Plaintiff strenuously objects to these reports being afforded any consideration in our determination of the question as to whether there was any evidence in the record of the proceedings of the board, that fairly tended to show that the board was legally justified in denying plaintiff’s application for the compensation annuity. It is true that all the matters and statements contained in said reports were merely “hearsay” to the board’s attorney, that none of the statements contained therein was sworn to, that they contained some statements of a nature calculated to prejudice the board in its disposition of plaintiff’s application and that neither said reports nor any portion thereof would be admissible in the trial of a cause in a court of law. It might be said in this connection that “the niceties and refinements of the procedure or the forms of questions to and the answers of witnesses are not as strictly applied as on a hearing before a judicial body, but the substance of the law must be at all times regarded, as well as the competency and materiality of the evidence.” Schireson v. Walsh, 354 Ill. 40. Because of the incompetency as evidence of the major portion of their contents, no consideration should or will be given the aforesaid reports in our determination of the question as to whether there was any evidence before the board which fairly tended to disprove plaintiff’s claim that there was a causal connection between the injuries received by her husband and his suicide.

It was only upon satisfactory proof being made to the board that plaintiff’s husband received injuries in the performance of his duty from which his death resulted that the respondent was bound to order payment of the increased annuity. The burden was therefore upon plaintiff to present satisfactory proof to the board that Kilroy took his own life as a result of the injuries he received while on duty. Neither mere speculation nor conjecture was sufficient. Even though we assume that plaintiff made out a prima facie case before the board for the allowance of her claim, the board still had the right to consider the testimony of Dr. William J. Schaffer, Kilroy’s attending physician, and Dr. Francis Gferty on the question of whether or not there was a causal relation between Kilroy’s injuries and his death by suicide.

Dr. Schaffer, after examining a report made in his own handwriting and signed by him on February 25, 1930, testified, reading from said report: “The first visit was January 31, 1930. Contusion of right side of head, left side of chest, sprain and contusion of left knee.” He testified further that when he saw Kilroy at his home on the night of January 31, 1930, “he had a contusion on the right side of the head . . . and a bruise on the cheek ... he complained of pain . . . discoloration of his chest . . . complained of severe pain in his left knee . . . could not stand on it . . .1 examined it and found it quite swollen and inflamed ... I disinfected the bruise in his head . . . I do not believe I applied a dressing . . . I told him to keep off his knee and keep an ice bag on his knee until the next day . . . then I substituted hot applications and rest for the knee”; that “I saw him the next day, and every other day for about two or three weeks ... I think it was about ten or twelve times”; that he did not think at the time that the injury to the head was serious at all; that Kilroy suffered quite a sprain to his knee; that he treated him about six weeks, all told, and “it came along nicely ... as well as you could expect under the conditions ’ ’; that the last time he saw Kilroy was about the middle of March and ón that occasion “I told him I thought he had recovered completely and could return to work”; that the head bruise cleared in about a week or 10 days; that “he complained severely about his knee . . . much more than I thought was necessary . . . that he seemed to worry about the outcome of it . . .it was hard to get the idea out of his head that the knee was not going to be a bad knee ... he said he was never going to walk on it again ... it was never going to be right ... I told him his complaint was out of all proportion to his injury . . . but that was the way he felt”; that when he [the witness] told Kilroy that he had completely recovered “he hesitated ... he did not know whether to go back to work or not”; that “I said that if it causes trouble we would have to take you off the job again”; and that in his opinion when he last saw Kilroy on March 14, 1930, he had fully recovered and was capable of resuming his work. Dr. Schaffer also testified as to some circumstances that would tend to show that the relations between Kilroy and his wife and the other members of the' family were somewhat strained.

Dr. Francis J. G-erty, a specialist in mental and nervous diseases, who is superintendent of the Cook County Psychopathic Hospital, in answer to a hypothetical question propounded to him by tthe board’s attorney, testified that in his opinion there was no causal connection between the injuries received, by the hypothetical person on January 31,1930, and his death on March 17; that there was nothing to indicate that such person was suffering from an organic brain disease ; and that his suicide could have been due to worry over what he thought was his wife’s lack of sympathy or his wife’s neglect.

The respondent board was the judge of the weight and sufficiency of the evidence and the credibility of the witnesses. Its finding was unquestionably based on the failure of plaintiff to produce what it considered satisfactory evidence as to the alleged causal connection between Kilroy’s injuries and his death by suicide, as well as upon the testimony of Dr. Schaffer, the attending physician, and of Dr. Grerty. Where the inferior tribunal is not arbitrary in its finding and there is evidence in the record of its proceedings which fairly tends to support said finding, the reviewing court is not justified in substituting its judgment for the discretion and judgment of such inferior tribunal.

Under the settled law of this State, where it is sought by the common law writ of certiorari to review a decision or an order of an inferior tribunal, such as the respondent board, the record of such board must show that it acted upon evidence and contain the testimony upon which the decision was based in order that the court may determine whether there was any evidence fairly tending to sustain the order. (Funkhouser v. Coffin, 301 Ill. 257; Tazewell Coal Co. v. Industrial Commission, 287 Ill. 465; Glos v. Woodard, 202 Ill. 480.) As long as the board had jurisdiction to hear and determine the issue presented by plaintiff’s petition and application, which it clearly had, and followed the form of proceedings legally applicable, which it did, the trial court was without power to disturb the order of the respondent board, where there was, as here, evidence which fairly tended to sustain such order, merely because in the opinion of the court the board erred in its finding and order. (Campbell v. Civil Service Commission, 290 Ill. App. 105; People ex rel. Maloney v. Lindblom, 182 Ill. 241.)

In Hopkins v. Ames, 344 Ill. 527, in which a writ of certiorari was directed to members of the civil service commission of the city of Chicago, commanding them ‘ ‘ to certify and bring up a complete report of the proceedings of said commission,” which resulted in the discharge of the petitioner therein from his position as patrolman in the department of police of the city, in passing upon the power of a reviewing court in a common law certiorari proceeding, the court said at pp. 531 and 532: “ ‘The court has no power to pass upon the findings and conclusions of the inferior tribunal but it may examine the proceeding to determine whether the inferior tribunal had jurisdiction, and the facts upon which the jurisdiction is founded must appear in the record, which also must show that the inferior tribunal acted upon evidence. If the inferior tribunal had jurisdiction to hear and determine the case and it proceeded legally, the court is powerless to review the order on the ground that the inferior tribunal wrongfully removed the defendant from office. People v. City of Chicago, 234 Ill. 416; Joyce v. City of Chicago, 216 id. 466; City of Chicago v. People, 210 id. 84; People v. Lindblom, 182 id. 241; Wilcox v. People, 90 id. 186.’

“In the present case the return of the civil service commission shows that specific charges were filed against Hopkins; that he was served with notice; that he appeared in person and by counsel; that evidence was heard on the charges and that he was found guilty thereon. The record shows that the civil service commission had jurisdiction of the parties and of the subject matter, that it acted upon evidence, and that it did not exceed its jurisdiction. The circuit court, therefore, had no jurisdiction to review the findings of the civil service commission and determine whether or not its findings were erroneous. (People v. Lindblom, supra.) After a trial is had before the civil service commission in the manner pointed out by the statute and evidence is taken tending to show the guilt of the person charged, the action of the civil service commission is final and not reviewable by the courts. (People v. City of Chicago, supra; City of Chicago v. People, supra.) To allow a review of the evidence of the courts on investigations conducted by the civil service commission or under its direction would be the exercise of executive powers, which the separation of departments of the government precludes the courts from exercising. (People v. City of Chicago, supra; City of Aurora v. Schoeberlein, 230 Ill. 496.)” What was said in the Ames case is equally applicable to the instant case.

In the present case plaintiff filed her application with the retirement board for an increase in her annuity payments. She appeared in person and by counsel and evidence was heard upon her petition and application. The report of its proceedings shows that the respondent board had jurisdiction of the parties and of the subject matter, that it acted upon evidence and that it did not exceed its jurisdiction. The circuit court, therefore, was without jurisdiction to review the finding and order of the respondent board and it was in' error in holding that there was no evidence fairly tending’ to support the order of the board denying plaintiff’s application.

For the reasons indicated herein the judgment of the circuit court is reversed and the cause remanded with directions to quash the writ of certiorari issued by the circuit court.

Judgment reversed and cause remanded with directions.

Friend, P. J., and Burke, J., concur.


source: Caselaw Access Project

author: Mr, Justice John J. Sullivan

license: Public Domain

text:
    Bridget Heffernan, Appellee, v. Mandel Brothers, Inc., Appellant.
    Gen. No. 39,945.

      Heard in the second division of this court for the first district at the February term, 1938.
    Opinion filed November 17, 1938.
    Altheimer, Woods & Smith, of Chicago, for appellant; A. B. Manion and Lewis L. Levin, both of Chicago, of counsel.
    James F. Lyons, of Chicago, for appellee; Elwyn E. Long, of Chicago, of counsel.
   Mr, Justice John J. Sullivan

delivered the opinion of the court.

This appeal seeks to reverse a judgment for $350 rendered against defendant, Mandel Brothers, in an action brought by plaintiff, Bridget Heffernan, for damages for personal injuries claimed to have been received while she was a passenger on an escalator in defendant’s store.

After alleging that she became a passenger on the escalator for the purpose of being carried from one floor to another, plaintiff’s complaint averred:

“That while plaintiff was such passenger as aforesaid, and while she was at all times in the exercise of due care for her safety, the defendant by its servants and agents, so negligently and carelessly managed and operated its said escalator, upon which the plaintiff was a passenger, that said escalator became out of order and vibrated violently.

“ . . . That the said escalator used by the Defendant Company for the carrying of customers from one department of the store to another upon another floor was improperly constructed and improperly installed, all of which was unknown to the plaintiff, and while plaintiff was a passenger upon said escalator then and there in said store for trade, the said escalator had some defect in its construction and installation and in consequence of and by reason of said defect, that the plaintiff while then and there in the exercise of due care and caution for her safety, while a passenger upon said escalator, and as a customer in said store, was thrown violently and forcibly upon her back and was bruised and injured. . . .”

No evidence was presented on the trial of this cause in support of the allegation in the paragraph of the complaint last above quoted, that “the said escalator had some defect in its construction and installation and in consequence of and by reason of said defect . . . plaintiff . . . was thrown violently and forcibly upon her back. ’ ’

Plaintiff testified that on April 8,1936, she went into Mandel Brothers’ department store, at Madison and State streets, Chicago; that she walked down the stairs to the first subway to make a purchase; that “I wanted to get up on the main floor and I stepped onto the escalator”; that “I stood on the escalator as I usually did”; that “I was up about the third step, I should judge, and it started to vibrate, and it pushed me from one side to the other, and then it gave some ldnd of a jerk and threw me off my feet and . . . I fell backwards ... an employee of the store . . . was on the escalator at the time I was on there . . . he ran ... I screamed when I fell, I hollered and he grabbed me . . . this young man held onto me ... he tried to get me on my feet, which was a hard thing to do under the conditions”; that “I must have been half way up the steps” before the escalator stopped; and that she had frequently ridden on escalators before and was familiar with their operation.

Harry Wolf, Jr., who was in the employ of defendant at the time of plaintiff’s injury but who was not at the time of the trial, testified that he was on the escalator at the time the accident occurred; that there was another man on the escalator between bim and plaintiff; that he did not see her fall or know what caused her to fall, but that there was no unusual motion of the escalator at the time she fell; and that the escalator was operating smoothly and “to the best of my knowledge it operated O.K.”

Felix Bozwick testified that he was employed by Handel Brothers as a stockman; that “at the time I was taking the escalator from the first subway to the first floor, and I just got in on the first step of the escalator, I. saw a lady on the front of me . . . she was starting to walk from one step to another one, but she didn’t step right on the steps, she stepped . . . on the edge ... of the steps, and fell on her back”; that he was about six or eight steps behind her and that “she was moving”; that “I jumped right away to that lady and helped pick her up . . . and another man came and helped me to get up with the lady and somebody stopped that escalator”; that “the escalator had risen six or eight steps . . . right on the center between them floors” before plaintiff fell; that he did not notice “any.jerking or wobbling of the escalator” from the time it ascended above the subway floor level until the accident to plaintiff happened; and that the escalator did not “wobble at any time from side to side” and it did not “jerk back and forth at any time. ’ ’

Henry George Cleves, chief engineer for Mandel Brothers, testified that, immediately after the accident and before the escalator in question was again placed in operation, he and two assistants examined and tested same and found it to be in good operating condition and that when they started it a short time thereafter, it ran smoothly and in the customary manner. He further testified as to the construction and operation of the escalator that “the steps of the escalator travel, they average about ninety feet per minute”; that “there are two sets of rails” that hold the steps up; that “there is a rail that the step itself rides on . . . and then there is another set of rails that carry the step frames . . . then each step has on this rail four flange wheels, wheels that are similar to a railroad wheel, only smaller of course . . . that flange is what keeps the escalator on the rail, and keeps it traveling true . . . clearances on the escalator have to be held down fairly close because of the railings on the sides, otherwise it would skip if it were not held in pretty fine alignment”; that the steps of the escalator, when it is in operation, “could move sideways very, very little”; that “when the escalator is in operation, and in motion, it is physically impossible for the steps of same to jerk back and forth”; that “there naturally has to be enough clearance so that the wheels, the flange of those wheels do not bind the rails in any way . . . the result is that it must have . . . around one-thirty second of an inch clearance . . . that is the extent of the movement that it can have from one side to the other”; and that it is impossible “for the rate of speed of the escalator to decrease or increase to any extent at all while it is in motion.”

Albert J. Wells, a mechanical engineer employed by the Otis Elevator Company, which installed the escalator in question, testified substantially to the same effect as the witness Cleve as to the construction and operation of the escalator and that it was impossible for such escalator or any of its steps, when it was in operation, “to wobble from side to side” or to “jerk back and forth.”

Defendant contends that the relationship of the parties was that of invitor-invitee and that under such relationship liability could only be imposed upon it for its failure to keep its premises in a reasonably safe condition. On the other hand plaintiff insists that it was defendant’s duty to exercise the highest practical degree of care for the safety of passengers on its escalator. Plaintiff also insists that the owner and operator of an escalator should be required to exercise the same degree of care as the owner of a passenger elevator and that it has been repeatedly held in this State that since passenger elevators are common carriers the owners of premises wherein same are constructed and operated must exercise the highest degree of care for the safety of passengers riding therein. (Beidler v. Branshaw, 200 Ill. 425; Walsh v. Cullen, 235 Ill. 91; Springer v. Ford, 189 Ill. 430; Steiskal v. Marshall Field & Co., 238 Ill. 92.) The rule as to the duty one owning and operating an elevator owes to a passenger riding in same, who is injured through some defect in its operating mechanism, is predicated upon the fact that a person riding in an elevator cannot possibly know or show, if such elevator gets out of control, what caused it to do so, while the owner being in sole control of the elevator and the machinery used in its operation, an inference of negligence on the part of said owner arises out of the circumstances.

In so far as we have been able to ascertain no case has been presented to or determined by a court of review in this State involving an injury claimed to have occurred on or alleged to have been caused by negligence in the operation of an escalator and there is a rather sharp conflict in the authorities of other jurisdictions as to the degree of care that should be required of owners of establishments where accidents alleged to have been caused by negligence in the management and operation of escalators installed therein have been considered..

In McBride v. May Department Stores Co., 38 Ohio App. 420, 177 N. E. 773, the plaintiff alleged in her petition “that the moving part of said escalator, upon which customers are invited to stand, consisted of slats or cleats so arranged that narrow slots exist between these slats just wide enough to allow the heel of a lady’s shoe to become wedged therein, so that, when descending, and the bottom is reached, and the customer attempts to step off, she finds it difficult, if not impossible, to do so, if her heel has become so wedged; further, that said slats or cleats had become defective by reason of long use, so that they were dangerous, all of which dangers and defects the defendant, in the exercise of ordinary care, should have known.” After holding that the plaintiff had presented evidence tending to prove the material allegations of her petition, the court there said at p. 775 of the last mentioned report:

“We further hold that there is no difference in principle between the ownership and operation of an elevator and an escalator. They are installed for the same purpose; the only difference being that one runs in a perpendicular fashion and the other at an angle of approximately forty-five degrees. Both are constructed for the benefit of customers of the owners. Both are intended as inducements to prospective cus: tomers to visit the establishment of the owner. Undoubtedly the owner profits from the installation and operation of each. An innkeeper profits because of the supposed increased patronage of his inn due to the installation of such a conveyance as an elevator. A storekeeper profits due to the supposed increased patronage of his store by the installation of an escalator, which is simply a moving stairway. Both are taken into account by the proprietor and by the customers as part of the commodity bought or sold; in the one case, personal services, in the other, merchandise.

“We hold, therefore, that it is the duty of the storekeeper owning and operating such an escalator to exercise the highest degree of care in its management and operation, and that the common pleas court, in charging the jury that only ordinary care was required, committed reversible error.” (This decision of the court of appeals of Ohio was affirmed by the Supreme Court of Ohio in 124 Ohio St. 264, 178 N. E. 12.)

In Petrie v. Kaufman & Baer Co., 291 Pa. 211, 139 Atl. 878, defendant has a large department store on Smithfield street, Pittsburgh, occupying several floors of the building and, among other conveniences for its patrons and employees, has escalators in the nature of moving stairways, on which people stand and are carried from one elevation to another. Plaintiff’s evidence, corroborated by two disinterested witnesses, was that on March 3, 1925, while a customer in the store, she stepped on an escalator to pass from the fifth to the fourth floor and had been carried about a third of the distance when the escalator momentarily stopped and then started forward with such a sudden and violent jerk as to throw her down, causing her head and body to strike forcibly against the moving stairway. There the court in affirming a judgment entered for plaintiff said at pp. 879, 880:

“As an escalator and an elevator perform the like service of conveying people from one elevation to another, they are subject to like duties and responsibilities. The passenger is at least as powerless to influence the action of the former as the latter. Hence the rule that an elevator is deemed a common carrier applies equally to an escalator. While a carrier is not an insurer of the safety of the passengers, he is bound to exercise the highest practical degree of care for their safety, and where a passenger is injured through some defect in the means of transportation or the manner of operation, the burden is upon the carrier to show it could not have been prevented by human foresight. ‘But though in legal contemplation, they [common carriers] do not warrant the absolute safety of their passengers, they are yet bound to the exercise of the utmost degree of diligence and care. The slightest neglect against which human prudence and foresight may guard, and by which hurt or loss is occasioned, will render them liable to answer in damages. Nay, the mere happening of an injurious accident raises, prima facie, a presumption of neglect, and throws upon the carrier the onus of showing it did not exist.’ Laing v. Colder, 8 Pa. 479, 481, 482 (49 Am. Dec. 533.) See, also, Bickley v. Phila. & R. Ry. Co., 257 Pa. 369, 101 A. 654; McBride v. McNally, 243 Pa. 206, 89 A. 1131, 52 L. R. A. (N. S.) 259; Meier v. Pennsylvania Railroad Co., 64 Pa. 225, 3 Am. Rep. 581. That this rule applies to elevators is expressly stated and the reasons therefor clearly set forth in the opinion of the court, by Justice (later Chief Justice) Brown, in Fox v. Philadelphia, 208 Pa. 127, 57 A. 356, 65 L. R. A. 214, and by Justice Kephart, speaking for the court, in McKnight v. Kresge Co., 285 Pa. 489, 132 A. 575. See, also, Riland v. Hirshler, 7 Pa. Super. Ct. 384; 10 C. J. 1039. The description of the occurrence, in general language, as a sudden violent jerk of the escalator, was sufficient (Kleine v. Pittsburgh Railways Co., 252 Pa. 214, 97 A. 395) and, when plaintiff was injured thereby, created a prima facie presumption of negligence against the defendant. That such presumption may be rebutted by exculpatory proof is clear; whether it was or not in the instant case was for the jury. ’ ’

Although a different rule is enunciated in Stratton v. Newberry Co., 117 Conn. 522, 169 Atl. 56, and Fuller v. Wurzburg Dry Goods Co., 192 Mich. 447, 158 N. W. 1026, where accidents occurred on escalators under somewhat similar circumstances, we prefer to follow the rule announced in McBride v. May Department Stores Co., and Petrie v. Kaufman & Baer Co., supra, that “while a carrier is not an insurer of the safety of the passengers, he is bound to exercise the highest degree of care for their safety, and where a passenger is injured through some defect in the means of transportation or in the manner of operation, the burden is upon the carrier to show it could not have been prevented by human foresight,” since this rule is in harmony with the established law of this State relative to the care required in the operation of passenger elevators by their owners.

Applying the foregoing rule, proof of the facts of the occurrence to plaintiff and of her injuries constituted a prima facie case of negligence and justified the verdict against defendant unless such prima facie case was overcome by proof showing that defendant was not at fault or that plaintiff’s injury resulted from her failure to exercise ordinary care for her own safety or that her fall and injury did not occur in the manner stated by her. The question then presented is whether the mere statement by plaintiff that the step of the escalator upon which she was standing vibrated and jerked causing her to fall is sufficient to sustain the verdict upon which the judgment in this cause is based in view of all the other evidence in the record.

The two other witnesses who were on the escalator at the time of plaintiff’s accident said that there was no unusual vibration or movement of same and the engineer who examined its operating mechanism while it was still stopped after plaintiff’s injury and again after it was placed in operation, stated that he found no defect in said operating mechanism and that same was in good working order and ran in a normal manner. Both engineers testified that there could have been no movement of any step of the escalator from side to side of more than one thirty-second of an inch and that it was impossible for the escalator or any step thereof to move or jerk from back to front. In our opinion plaintiff’s uncorroborated testimony that the step of the escalator on which she stood vibrated and jerked violently, causing her to fall, is insufficient to sustain the verdict and judgment when all the other evidence in the record showed that such step not only did not but could not “vibrate” or “jerk” as she said. We are impelled to hold that the verdict of the jury was clearly against the manifest weight of the evidence.

Other points have been urged but in the view we take of this cause we deem it unnecessary to discuss them.

For the reasons stated herein, the judgment of the municipal court is reversed and the cause remanded.

Judgment reversed and cause remanded.

Friend, P. J., and Burke, J., concurs.


text:
    Ruth Walker Sewell, Appellee, v. Arthur Sewell, Appellant.
    Gen. No. 40,013.

      Heard in the second division of this court for the first district at the April term, 1938.
    Opinion filed November 17, 1938.
    Teed, Kammermann & Johnson, of Chicago, for appellant; Hugh E. Johnson, of counsel.
    Alva L. Bates, of Chicago, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

A decree was entered September 30, 1937, which granted separate maintenance to plaintiff, Ruth Walker Sewell, from her husband, Arthur Sewell, defendant. Said decree ordered defendant to pay plaintiff $900 a year for her support in instalments of $75 a month, commencing October 1,1937, and $600 for her solicitor’s fees in instalments of $50 a month, commencing on the same date. Pursuant to a petition filed by plaintiff, a rule to show cause was entered against defendant for his failure to pay the instalments for maintenance and solicitor’s fees dne October 1, 1937. This rule was discharged on November 8, 1937, by the payment by defendant of $125. Having failed to pay the instalments for maintenance and solicitor’s fees due November 1, 1937, and December 1, 1937, another rule to show cause was ordered to issue against Sewell pursuant to plaintiff’s petition of December 9, 1937. Defendant filed an answer to said petition and rule asserting substantially that he had not made the payments ordered because of his inability to do so. December 20, 1937, an order was entered finding defendant guilty of contempt for his failure to make the payments aggregating $250 for maintenance and solicitor’s fees due up to and including December 1, 1937, and committing him to the county jail for such contempt. This appeal is prosecuted to review this order of commitment, as well as the decree for separate maintenance.

Following are the material allegations of plaintiff’s complaint bearing on her right to an award of separate maintenance:

1 ‘ That plaintiff was lawfully married to the defendant on the 19th day of October, 1926, at Detroit, in the State of Michigan, and from time to time until on or about the 18th day of April, 1937, they lived together as man and wife.

“That during the entire period from the date of said marriage to the present time, the plaintiff has faithfully performed all her duties and obligations as a wife, always conducting herself towards the said defendant with kindness, love and affection.

“That there were no children born to or adopted by the parties to the said marriage.

“That the said Arthur Sewell, not regarding his marriage vows and obligations, has since his marriage to plaintiff been guilty of extreme and repeated cruelty towards plaintiff in this, that he has used toward plaintiff on many occasions obscene and abusive language, and on numerous occasions has used personal violence towards her; that particularly on the 24th day of December, 1935, the said Arthur Sewell struck plaintiff severely and chased her with a gun; that again on the 6th day of January, 1936, the defendant struck the plaintiff in her face with his hand, severely and seriously injuring her, using toward her, at the same time, vile and opprobrious epithets; that on numerous other occasions Arthur Sewell struck, beat, bruised and scratched plaintiff, and that at all of said times herein-before mentioned, his conduct was without reason or provocation.

“That the conduct of the defendant towards the plaintiff, as hereinabove mentioned, resulted in a separation of the plaintiff and the defendant. That on March 26, 1937, the plaintiff returned to the home of the defendant at 4911 Vincennes Avenue, Chicago, and sought a reconciliation of their differences, but that the said defendant used vile and abusive language toward the plaintiff, told her to get out of his home, changed the locks on the doors of said home so that if she ever found it necessary to go out of the home she could not reenter; that the said defendant locked the door of the kitchen so that she could not prepare food, locked the linen in his bedroom, disconnected the telephone so that she could not order food, and humiliated and embarrassed her by telling her friends not to come to the home.

“That the defendant lives at 4911 Vincennes Avenue, Chicago, that said premises are owned by the two minor sons of the defendant by a prior marriage, and that the Probate Court of Cook County, Illinois, has jurisdiction of said minors’ estate; that the defendant, Arthur Sewell, plotting and conspiring to compel the plaintiff to live separate and apart from him, caused Arthur W. Sewell, one of his minor sons, to file a petition in the Probate Court of Cook County requesting that the plaintiff be evicted from said premises; that an order was entered in said Probate Court directing the plaintiff to vacate said premises and that pursuant to said order, and against her will, the plaintiff was compelled to and did leave the home of the defendant, April 18, 1937, and plaintiff without any fault on her part is now living separate and apart from the defendant. That during the period from March 26, 1937, to the present time, the defendant has contributed the sum of $5.00 towards the support of the plaintiff.” Defendant’s answer denied plaintiff’s charges as set forth in her complaint and asserted that “the parties were living separate and apart by reason of the fault of plaintiff and not the fault of defendant. ’ ’

For a clearer understanding it is necessary that the evidence be set forth somewhat fully. Plaintiff testified that she' and defendant were married October 19, 1926, at Detroit, Michigan; that they have been residents of Chicago for more than 10 years; that no children were born of the marriage; that her husband had two children born of a previous marriage, who lived in the home with her and her husband; that she last separated from her husband on April 18, 1937; that, while they lived together as husband and wife, “I did those things that were necessary for his comfort and happiness . . . took care of the children, cooked, and housekept, and things of that nature, entertained friends”; that “in September, 1930, we were on the front porch of our home, and my husband told me that he had been downtown in the afternoon to consult a specialist ... he had been having a physical disability for some time ... he said that after he made a diagnosis he suggested that we occupy separate rooms for an indefinite period ... he asked me if I would agree that we should occupy separate rooms for the time being, he couldn’t say how long, and I told him that if it would benefit his health, as he thought it would, I would be glad to do so”; that they continued to occupy separate rooms from September, 1930, until about May, 1932; that her husband furnished the money for her to take a trip to California in 1932; that when she returned, from California in August of that year “he told me that he would remain separated in the home permanently, that we should occupy separate rooms continuously, and that he didn’t want me to enter his bedroom without his permission at any time, that he was through with me, and he pointed to the door and he said ‘I have no more feeling for you than I have for that door,’ ... he said, ‘get yourself another man, and you can remain in this house so long as you conduct yourself all right, you can do all you want on the out side,’ and of course I argued with him a few minutes about it, and I asked him if he were physically well again and he said yes, he was, but he didn’t care to argue the point, to do as he said”; that “on January 5, 1935, about midnight, my husband knocked on the door, and entered . . . my bedroom door, and asked me to come back to his room . . . he would like to have a conversation with me, and I immediately went in and when I entered he said— asked me if I noticed that he spoke to me on New Year’s Day for the first time in a long time, and I told him yes ... he said some sort of a change had come over him and that he would like to talk the matter over with me, he hadn’t had peace for a long time, and with the coming year he would like to experience some’ measure of peace, and asked me if I would aid in making this peace, bringing this peace, and I was rather overjoyed and I readily agreed to do so”; that the defendant’s sons (Arthur Sewell became of age in September, 1937, and John W. Sewell will become of age in November, 1939) left Chicago in September, 1935, and “went away to school, one to the University of California and one to Tuskegee”; that “after his sons went away to school defendant said he wouldn’t eat there at home ... he spent very little time at home after they went away”; and that, her husband having failed to furnish her with sufficient money to buy food for herself, she wrote him the following note in October, 1935:

“Each week I have to spend close to $5.00 for food and last week my bill amounted to $4.90. $3.00 was left on the table so toward the end of the week had to . charge $1.90 expecting to receive the $2.00. This week the bill amounts to $4.82 making a total of $6.72. I left the $3.00 on the desk Sunday because I cannot feed myself properly on that amount.”

Plaintiff also testified that on said note defendant wrote an answer as follows:

‘‘ Get your man to help feed you. I am through with you and if you have pride enough to leave you would find out that I would have more respect and consideration for you than I have. I don’t want you and I am sure you don’t want me. I told you that if I ever got anything I would try to make a settlement with you. If you’ll leave I am willing to have my lawyers draw this up. My children don’t want you here either and you make yourself lower than a dam dog to stay where you are not wanted and you are not worthy of staying. I can prove that you are having men and have been having them for years. I would have a jip before I would you again, and that is that. ’ ’

Plaintiff further testified that “on December 24, 1935, my husband left the home in the morning and returned about an hour later and ran in and I was in my room changing my dress and I heard the door slam downstairs and simultaneously I heard him say 1 Give me my money, give me my money’ and he ran all the way up the stairs yelling 1 Give me my money, ’ and he ran through my bedroom door into the room and I was changing my dress and he ran up to me, of course my attention had been aroused by the noise and he ran up and said 1 Give me my money, I will kill you if you don’t give me my money’ ... I said ‘What money?’ He said ‘You took $25.00 out of my pocket in my room’ ... I said ‘I can’t go in your room how can I take.$25.00?’ He said ‘Give me my money woman I will kill you’ and before I could answer he slapped me in the face and slapped it in such manner the blood started falling from my face, and he ran out of the room in the direction of his own room and in a few minutes after that came with the gun yelling he would kill me ... I ran to the door and locked it, he stood outside trying to make me open the door and I didn’t do that . . . later on he found his money and passed by the door and said ‘if I hadn’t found my money I would kill you’ and went out and slammed the door”; that “on January 6, it was after dinner that he returned home . . . around six-thirty, and two men came in with him ... I had had my dinner and was upstairs preparing to go out . . . after they had dined he came upstairs and walked down the hall towards his bedroom and he ran into a door that was open, and he immediately yelled out that I had left the door open for him to run into ... he was swearing, and knowing that these men were guests in the house, I came out of my room door into the hall and tried to quiet him, and as I came out of tíre door he slapped me in my face, I couldn’t see for a moment, the eye was discolored after that, and the housekeeper who had prepared his dinner was coming up the stairway saying ‘Mr. Sewell you don’t know that Mrs. Sewell left the door open I might have left it open, any one could have left it open, remember you have company’ ... he was standing there, he had just struck me and she was about to go down, and she came upstairs and said ‘Any one could have left it open, I haven’t heard Mrs. Sewell in that part of the house all afternoon.’ . . . he. went on swearing, saying everything imaginable, calling me names I wouldn’t care to repeat ... he called me whore, bitches, called me a cow . . . and other vile names”; that she left defendant’s home in August, 1936, and returned to same March 26,1937; that after she returned “he was very abusive, he resented very much when I came home ... he tried to strike me on several occasions ... he had a man to make keys to all the doors, he locked me out of the kitchen, I couldn’t get meals from one day to the other in many instances . . . the next day after I was there he sent up $5.00 by a man he had hired to lock me out if I went out and to watch me generally ’ . . he sent this man up on Saturday evening after I had gone back Friday, and he said ‘here’s $5.00 for you, you are to get your food with. ’ . . . I thanked him for the $5.00 . . . next morning Sunday I called up for some groceries, and Mr. Sewell heard me . . . he said I shouldn’t use that money calling for groceries, ‘I want you to go out and get your groceries. ’ ... I was locked out from the kitchen for many days, ... he would tell the maid when I did get in the kitchen . . . ‘lock up our food, don’t let her have any of our food’ ... he locked the linen up in the linen closet . . . his room door had a Yale lock on it . . .he ordered me up from listening to the radio, he ordered me up to my room ... he said ‘Get upstairs, get in that room’ . . . the very next morning after I ordered these groceries the telephone was taken out, was out seven or eight days, just about'nine days”; and that her friends were refused permission to enter the home or talk to her on the telephone.

Plaintiff then testified that on March 17, 1936, she filed a complaint for separate maintenance against defendant and that pursuant to a restraining order entered in that case she vacated the premises in which she had been living with her husband on August 16, 1936; that she was awarded temporary support in that proceeding from July 17, 1936, until it was dismissed by her on October 21, 1936; that on the same date, after her bill for separate maintenance had been dismissed, defendant brought an action for divorce against her in the circuit court and again obtained an order restraining her from entering his home; that defendant’s bill for divorce was dismissed on March 25, 1937; that on March 26, 1937, she returned to the home of defendant; that he then told her that he would see his lawyer and have the probate court put her out and that he would not live in the same house with her; that on or about April 7, 1937, she was served with a notice and petition signed by one of defendant’s sons to appear in the probate court October 9, 1937, at which time an order would be sought requiring her to vacate the premises; that on April 9, 1937, she was ordered to vacate said premises and forever restrained from entering same; that in compliance with said order she vacated the premises used as a home by defendant and his sons on April 18, 1937, and that this proceeding was instituted May 18,1937.

Mattie Williams, who worked for defendant as a maid in January, 1936, and from April to August, 1937, testified as to the occurrence related by plaintiff on January 6, 1936, that “he called her cow, bitch, whore and a whole lot of things like that”; that “there were two men there to dinner, they tried to calm him down . . . they said, I wouldn’t talk like that”; that during all the time she .worked for Sewell “he told me not to pnt a plate on there for her ... I used to put a plate on but she never ate there, she eat afterwards, but he told me not to put a plate, not to set the table until he came home”; and that on numerous occasions she gave plaintiff a portion of her own food.

Gertrude Miller testified that she worked as a housekeeper for defendant from January, 1937, to April, 1937, and that plaintiff was in the home for 8 or 10 days while she was there. She corroborated plaintiff’s testimony as to the defendant’s treatment of her during that period and that she heard the defendant on numerous occasions call plaintiff vile names.

Sara Proffitt testified that on April 9, 1937, she went to the Sewell home and inquired for plaintiff; and that defendant slammed the door in her face and told her to find some other means of talking to Mrs. Sewell.

Ola May Coty testified that “she was a beautician and that while she was at the Sewell home fixing plaintiff’s hair on April 15, 1937, the defendant came in, told her to get out and not bring messages to plaintiff and that he was having the Probate court put the plaintiff out in a day or two.”

Defendant denied that on December 24, 1935, he slapped plaintiff’s face, causing blood to flow or that he threatened her with a gun on that occasion. However, he admitted that he accused her at that time of taking his money and that he used bad language to her. He stated that he changed the locks on the doors of his home once or twice to keep her from entering same because she was a nuisance. He denied that he struck plaintiff January 6, 1936, or at any other time. He also denied that he had anything to do with having her removed from their home in April, 1937, when she was ordered out of same by the probate court. He testified that the premises in which they made their home belonged to the Sewell estate, of which his sons were the beneficiaries, and that it was on the petition of his oldest son that her removal was ordered. Although plaintiff lived in the home with defendant and his sons for almost 10 years, there is not a word of credible evidence in the record of any unchaste or other improper conduct on her part. According to the evidence, she treated defendant as a wife should as long as he permitted her to do so and took care of his home and children. Neither of his sons testified and in his testimony, while defendant insinuated and charged generally that plaintiff was a thief and that she was guilty of adultery, he stated no fact or circumstance which tended to prove or from which it could be inferred that she was other than a faithful wife, ready to perform her duties and assume hep obligations as such, if she were permitted by him to do so.

It is true that one Hall, a private detective, who had been employed by defendant to investigate or “shadow” plaintiff, testified that he saw her with a man in her home and in an automobile under compromising circumstances, but his testimony is so unworthy of belief, we feel that it should be entirely disregarded.

Sewell claims that the acts of cruelty charged by plaintiff were not proven and more especially that there was no corroboration of her testimony as to same. While there was no direct corroboration of defendant’s testimony as to the specific acts of cruelty, it must be held that plaintiff’s evidence considered in the light of the reasonable probabilities and in connection with all the other evidence in the case sufficiently proved such acts.

In passing upon a somewhat similar situation in Harris v. Harris, 109 Ill. App. 148, the court said at p. 151:

“It is not claimed in argument that if the testimony of the complainant is true it fails to establish a case entitling her to relief under the statute. But it is said that her testimony, so far as it relates to the acts of cruelty complained of, is uncorroborated, and is explicitly denied by the defendant in every detail. Such is the state of record. But that does not call for a reversal of the finding of the chancellor; the rule of evidence is too well settled to need the citation of authorities, that the preponderance of the evidence does not necessarily depend upon the number of witnesses. Testimony is weighed, not counted. The chancellor saw the witnesses and had superior opportunities for determining their relative credibility. He believed and gave credence to the testimony of the complainant, and from an examination of the entire record we fail to see any reason why he should not have done so. It is insisted that if complainant’s testimony is true she could very easily have had corroboratory proof. She was not beaten by her husband upon the public streets. He did not summon the neighbors to witness the acts of brutality testified to by the wife which she says were inflicted when they were alone in the solitude of the home. The fact that she did not exhibit the evidences of his misconduct, but bore her sadness and suffering in silence, does not militate against the truth of her testimony.”

Even though the specific acts of cruelty alleged and testified to by plaintiff were entirely eliminated from consideration, the evidence abundantly proves not only that plaintiff is living separate and apart from defendant without fault on her part but that defendant’s treatment of her over a period of years was harsh, cruel, insulting and abusive. Plaintiff did not leave defendant’s home. She was driven out of same. The right to live apart from one’s husband and to be entitled to separate maintenance not only arises when the husband’s conduct directly endangers the life, person or health of the wife, but also “where the husband pursues a persistent, unjustifiable and wrongful course of conduct toward her, which will necessarily and inevitably render her life miserable, and living as his wife unendurable.” Johnson v. Johnson, 125 Ill. 510; Short v. Short, 265 Ill. App. 133. We are impelled to hold that the evidence in this case amply justified the entry of the decree for separate maintenance.

It is urged that the amount allowed in the decree for plaintiff’s support is unreasonable and excessive in view of the circumstances of the parties and of defendant’s inability to pay same, and that the attorney’s fees allowed are likewise unreasonable and excessive.

Defendant is about 62 years old and it may be conceded that he is suffering from serious bodily ailments and has no present earning power. He is, however, not only living in comfort but in comparative luxury with his sons. Plaintiff, although an able-bodied woman, has been unable to find employment and is without means of support.

Plaintiff’s complaint alleged and it was not denied' that defendant is the owner of an estate by curtesy consummate and is entitled during his natural life, after his two sons by a prior marriage reach their respective majorities, to all the rents, issues and profits arising and accruing from 160 acres of land situated in Ouachita county, Arkansas; that, as heretofore stated, his son, Arthur W. Sewell, became 21 years of age in September, 1937, and his son, John W. Sewell, will become 21 years of age in November, 1939; that defendant and his sons executed a gas and oil lease on said land and for a number of years it has been and is now producing gas and oil; that “all funds arising from the said oil and gas lease of said 160 acres of land, including the consideration of $65,000 originally paid for the execution of said lease or the properties and securities in which said funds have been invested (but not the income earned on such funds) is a corpus of the estate of the defendant’s said minor children; that the present value of the corpus of said estate is $500,000 and is constantly increasing; that the minor sons of defendant under their homestead in said 160 acres of land are entitled to all of the usufruct, rents, issues and profits arising during their respective minorities from said land and to the earnings upon all the funds which have arisen, or shall arise during their respective minorities from the said oil and gas lease ’ ’; and that “defendant, as the owner of an estate by the curtesy consummate, is entitled during his natural life, in all of the usufruct, rents, issues and profits from and after the majority of said minors . . . thereafter arising from said 160 acres of land, and to the earnings from and after the majority of said minors upon all the funds which have arisen or shall hereafter arise from the said oil and gas lease.”

There was evidence that defendant was the guardian of the estate of his minor sons for a number of years and that several items in his report as such guardian have been objected to by his successor guardian in an attempt to surcharge him with the amount of such items. There is also evidence that defendant had assigned his interest in the Arkansas land as security to the bonding company, which was and is the surety on his bond as guardian.

Since it is admitted that the corpus of the estate from which defendant will receive the entire income, commencing in November, 1939, amounted at the time of the trial to $500,000 and that such corpus is constantly increasing, it is not unreasonable to anticipate that Sewell’s income after said time will be approximately 4 per cent of said corpus or $20,000 a year. Does the fact that defendant does not come into the enjoyment of the income from his estate until his youngest son becomes of age in November, 1939, leave him so personally devoid of property as to render the allowance in the decree for support and solicitor’s fees improper Í This precise question was considered and determined in Reifschneider v. Reifschneider, 144 Ill. App. 119 (affirmed 241 Ill. 92) wherein the deceased maternal grandfather of the defendant husband left property in trust of the value of $150,000. The mother of said defendant was given a life estate in the property and at her death it was to be distributed among the surviving children or their descendants. The defendant husband had no present enjoyment of his interest, he did not know what his interest would be and he would have to survive his mother to get anything from the estate. There the court said at p. 127: “It is evident from the record that appellant, so far, has not developed the capacity to earn much money, his ability in this line extending to not more than $15 a week. He is not possessed of any money. But he has admittedly an interest in property, subject to a life estate in his mother, under the will of Mathew Gottfried, the deceased maternal grandfather of appellant. The estate in the hands of the trustees of the Gottfried estate, in which appellant is the remainder man, exceeds $150,000 in value.

“In view of this prospective inheritance, the allowances made both for support and solicitor’s fee and suit money must be regarded as moderate and in every way reasonable, and in accordance with the condition in life of appellant. He has property from which he can realize money, if he chooses, to support his wife. This the law requires him to do.”

The customary manner in which to “realize” money on one’s interest in property is to sell same in whole or in part or to pledge it as security for a loan. There is no evidence in the record that defendant made any attempt to do either and the vague, indefinite evidence in the record as to a possible surcharge against him on his guardian’s report or the possibility that the surety on his bond as guardian of his sons’ estate, will take over his interest under his assignment or assignments to it, cannot affect his obligations toward his wife.

In Johnson v. Johnson, 36 Ill. App. 152, the court in determining the financial means of a husband for the purpose of fixing the amount of alimony he should be ordered to pay considered his interest in his father’s estate, which would come into his possession after his mother’s death. In Parker v. Parker, 61 Ill. 369, the court said at pp. 371, 372: “The court only decreed that he should, in discharge of a legal duty, pay a certain sum every three months to defendant in error. It does not order him to labor to earn it. He is left at liberty to raise the means by the sale of his personal property or real estate, or produce it from his regular pursuits, as may suit his inclination or his interest. ... It can not be that the court would have no power to decree alimony in money, simply because the defendant has no productive property, as seems to be contended by counsel, or even if he was destitute of property. ’ ’

In Muir v. Muir, 133 Ky. 125, 92 S. W. 314, 4 L. R. A. (N. S.) 909, the court discussing what property of a husband may be considered as a basis for the allowance of alimony said at p. 316 of the last mentioned report:

“But this does not mean that, if the husband have no present estate, his wife shall not be entitled to alimony. His contemplated probable earnings may be the basis for such allowance. Canine v. Canine, 16 S. W. 367, 13 Ky. Law Rep. 124. Nor do we perceive why, if probable earnings, as a reasonable expectation, may properly be considered, probable accretions of wealth from any other source may not also be considered. . . . It is not essential that the husband should own the fee-simple title to the land in order to have the value of his interest considered in fixing alimony.”

In view of defendant’s vested interest in the Arkansas property and the amount of his prospective income from same, commencing in November, 1939, surely the allowance of $75 a month for his wife’s support and $600 for her solicitor’s fees, payable at the rate of $50 a month, was neither excessive nor unreasonable.

No objection having been raised in the trial court as to the extent of plaintiff’s attorney’s services or as to the reasonableness of the fees allowed for same, it cannot be urged for the first time in this court that such fees are excessive. In any event, it cannot be said that the chancellor abused his discretion in allowing either the support or solicitor’s fees in the amounts ordered.

As to defendant’s contention that “before a party can be held in contempt of court for failure to pay money it must be shown that the party commanded to pay has the ability to comply and has willfully refused to do, ” it is sufficient to say that the financial condition and circumstances of defendant were exactly the same when the order of December 20, 1937, was entered holding him in contempt as they were when the decree was entered, that defendant had an estate in property upon which he could have realized money to meet Ms obligations under the decree and under the order of December 20, 1937, and that he deliberately and willfully refused to so do.

The motion heretofore made by plaintiff appellee and reserved to hearing to strike the abstract filed by defendant appellant is now denied.

For the reasons stated herein the decree of the superior court and its order of December 20,1937, committing defendant to the county jail for contempt are affirmed.

Decree and order affirmed.

Friend, P. J., and Burke, J., concur.


author: Mr. Presiding Justice McSurely

text:
    Nick Pappas, Appellant, v. George W. Cappell, Jr. et al., Defendants. Victor Jambor et al., Appellees.
    Gen. No. 40,120.
    Heard in the first division of this court for the first district at the June term, 1938.
    Opinion filed November 21, 1938.
    James Percival Pio, of Chicago, for appellant.
    Joseph Randall Shapiro and Henry Pollenz, both of Chicago, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff appeals from an amended foreclosure decree entered December 1, 1937, altering a prior decree entered October 24,1936.

The trust deed sought to be foreclosed was executed August 1, 1929, by George W. Cappell, Jr., conveying to Daniel V. Harkin, trustee, certain real estate in Chicago to secure 23 promissory notes, notes 1 to 16 inclusive being for $500 each, and notes 17 to 23 inclu.sive for $1,000 each, all due five years from date, to wit, August 1, 1934.

February 20,1934, plaintiff filed his complaint seeking to foreclose this trust deed, asserting that he was the owner of two principal promissory notes, Nos. 4 and 5 for $500 each, on which .the interest due February 1,1934, was in default, and alleging that the complaint was filed on behalf of plaintiff, individually, and as representative of the owners and holders of the other promissory notes.

September 17, 1935, an amended complaint was filed which asserted ownership by plaintiff of notes 4 and 5 only; also an affidavit of lack of knowledge as to the residence of the unknown owners of the other principal promissory notes described in the trust deed, who were served by publication and defaulted; summons was served on Daniel Harkin, the trustee, and an order of default entered against him. The cause was referred to a master in chancery, who took evidence, and a decree was entered October 24, 1936, finding that notes Nos. 4 and 5 and 13 and 19 were owned by plaintiff; that there was due plaintiff on the notes owned by him $3,056.67, and to the unknown owners of notes, $15,283.34, and the property was ordered sold; the master’s report of sale was filed January 25, 1937, reporting that the property had been sold to plaintiff for $4,250, with a deficiency of $16,011.84; an order was entered approving the master’s report of sale.

Within the year, as permitted by subpar. 8 of sec. 50 of the Civil Practice Act, ch. 110, par. 174, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.050], with respect to parties defendant served by publication, petitions were filed on behalf of Victor Jambor, Jacob Hansen and Daniel Trotter, respectively, alleging that they were the owners of notes secured by the trust deed, and the petitioners challenged that part of the decree that found, among other things, that plaintiff had the right to declare the entire indebtedness due and payable, and asserted that plaintiff had no right to institute legal proceedings on behalf of the holders of all note owners. Answers were filed by plaintiff to these petitions and at the conclusion of the hearing the amended decree from which plaintiff appeals was entered.

Plaintiff says that the ownership of notes by the petitioners was put in issue by plaintiff’s answer to the petitions and that no evidence as to this was heard. The decree appealed from recites that the court not only heard the petitions and answers but the testimony of witnesses and admissions of facts made by counsel for plaintiff. An inspection of the record supports this conclusion. Counsel for plaintiff testified before the master and also upon the hearing before the court, that after filing the complaint he had conferences with some of the noteholders whose names and addresses became known to him and who were petitioners. The ownership of the notes by the petitioners was sufficiently proven.

Upon the hearing a certified transcript of proceedings in the municipal court was introduced in evidence, showing that judgment for $1,170 had been entered upon the aforesaid notes 4 and 5, and that on May 6, 1932, a satisfaction piece of this judgment was duly filed for record. The amended decree properly found that notes 4 and 5 were without validity and that plaintiff had no right to institute foreclosure proceedings predicated on these notes. Where judgment is entered upon a note the note ceases to exist as a separate cause of action and the trust deed is security for payment of the judgment. Jocelyn v. White, 201 Ill. 16; Continental Nat. Bank & Trust Co. v. Chicago Builders Bldg. Corp., 283 Ill. App. 64. It is also true that when a judgment on a note has been satisfied this operates to extinguish it. Galway v. City of Chicago, 207 Ill. App. 304; Cleiman v. Murphy, 34 Ill. App. 633.

■ Counsel for plaintiff argues that the original parties to the judgment did not intend that these notes should be canceled. There is nothing to support this assumption and by filing the satisfaction piece a contrary intention is indicated. Chicago Title & Trust Co. v. Bidderman, 275 Ill. App. 457, 473.

Although the decree finds that plaintiff is the legal owner and holder of notes 13, 14 and 19, the original and amended complaints do not allege ownership by plaintiff of these notes. The foreclosure proceeding is predicated upon the ownership by plaintiff of notes 4 and 5, and, as we have held, plaintiff had no right to do this.

But even if plaintiff had properly alleged the ownership of notes 13, 14 and 19, he could not maintain a foreclosure on behalf of the owners of the other notes. The only provision of the trust deed authorizing foreclosure is as follows:

“In The Event of a breach of any of the aforesaid covenants or agreements the whole of said indebtedness, including principal and all accrued interest, shall, at the option of the legal holder thereof, without notice, become immediately due and payable, and, with interest thereof, from the time of such breach, at seven per cent per annum, shall be recoverable by foreclosure hereof, or by suit at law, or both, the same as if all of said indebtedness had then matured by express terms.” This provision does not fit the present situation, where the notes are held by various parties and all mature on the same day. This provision is the same as that under consideration by us in Seidel v. Holcomb, 249 Ill. App. 10, and Rocco v. Chicago City Bank & Trust Co., 272 Ill. App. 303. We there held that the power granted was to the holder of the whole of the indebtedness and that the owner of only a part thereof had no power to act on behalf of the holders of the other notes.

The decree appealed from held that the legal effect of a foreclosure by plaintiff, as holder of some of the notes, was to subordinate his lien to that of the remaining notes. Defendants say this was proper under the decisions in Boyer v. Chandler, 160 Ill. 394, and Northern Trust Co. v. Sanford, 308 Ill. 381. An examination of these cases does not support this conclusion. In the Boyer case plaintiffs, as owners of a note maturing first, sought to foreclose a trust deed; the holders of the other notes not maturing were not made parties; the opinion holds that the plaintiffs were not obliged to delay their foreclosure until the maturity of the other notes, and the decree directed a sale of the premises to produce the amount found due the plaintiffs, subject to the continuing lien of the trust deed for the security of the other notes. Moreover, the plaintiffs sought no relief which might injuriously affect the holders of the notes not due but sought a foreclosure of notes held by them, subject to the lien of the other notes. Like facts were in the Northern Trust Co. case. In the instant case the facts are quite different. Here all the notes mature on the same day, and we find no authority for holding that the lien of a part of them should be subordinated to the lien of the others. We hold that the decree in this respect was erroneous.

We find in the record reference to a foreclosure proceeding brought by Daniel V. Harkin, trustee, seeking to foreclose this same trust deed. The complaint in that case was filed December 2, 1937, and the case is now pending in the circuit court, No. 370-14539,

We are of the opinion that there should not be two foreclosure suits of the same trust deed where all the notes mature on the same date. We hold that both the original complaint and the amended complaint in the instant case should be dismissed for reasons above indicated. We are also of the opinion that all the parties in interest may have their rights adjudicated in the proceedings brought by the trustee.

For the reasons indicated the decree is reversed and the cause is remanded with directions to vacate and set aside all the orders entered therein, including the sale by the master, and that an order be entered dismissing plaintiff’s complaint and amended complaint, and that the costs of this appeal be taxed against the plaintiff.

jReversed and remanded with directions.

Hatchett and O’Connor, JJ., concur.


text:
    Rose Brandt, Appellant, v. Lee V. Brandt, Appellee.
    Gen. No. 40,146.

      Heard in the first division of this court for the first district a,t the June term, 1938.
    Opinion filed November 21, 1938.
    Rehearing denied December 5, 1938.
    Owens & Owens, of Chicago, for appellant; Thomas L. Owens and Vincent G. Rinn, of Chicago, of counsel.
    Joseph Z. Willner, of Chicago, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

In Brandt v. Brandt, 286 Ill. App. 151, the history of this case is given in part. The suit was brought by plaintiff against Lee V. Brandt, her former husband, and I. Val Freedman, alleging in the first count that they had unlawfully conspired to commit plaintiff to a hospital for the insane; the second count was in the usual form, charging malicious prosecution without probable cause. When the case was tried, at the conclusion of plaintiff’s evidence the court instructed the jury to find defendant Freedman not guilty, which was done; at the same time he instructed the jury that by having dismissed Freedman from the case there could be no recovery against Brandt on the conspiracy count and that the trial should proceed aguinst him on the malicious prosecution count only; to this plaintiff made no objection; the trial proceeded against Brandt, resulting in a verdict against him of $17,500; plaintiff appealed to this court from the order that Freedman be found not guilty, and in our opinion in 286 Ill. App. 151, we considered only that order, which we affirmed.

On motion the trial court set aside the verdict of the jury against Brandt and granted a new trial. When the case again came up for trial defendant withdrew his plea of the general issue and filed a motion to dismiss on the ground that the findings of fact in our former opinion in the Freedman case disposed of the decisive questions of fact alleged in plaintiff’s second count, with special reference to there being probable cause for the institution by defendant Brandt of the proceedings in the county court to have plaintiff declared insane. The trial court sustained the motion and dismissed the suit and plaintiff appeals.

The motion to dismiss because of insufficiency of the complaint was in the nature of a demurrer, and all facts well pleaded in the complaint are taken as true. Joliet Trust & Savings Bank v. Ingalls, 276 Ill. App. 445. On this technical ground the motion should have been denied.

The motion inartificially attempts to set up a "plea of former adjudication. While the plea is inept in this respect, we have considered it as properly raising the question of former adjudication.

While something is said in the briefs touching the first or conspiracy count, plaintiff in her reply brief states that she submits the question in this court upon the issue raised by defendant’s motion to dismiss the second count. Plaintiff’s second count states a good cause of action. It alleges that Brandt falsely and maliciously and without probable cause caused a sworn petition to be filed in the county court of Cook county alleging that plaintiff was insane and unsafe to be at large and that she should be committed to some hospital or asylum for the insane; that on hearing the county court quashed said petition; that subsequently another sworn petition alleging the same matters was filed in the county court of Cook county; that plaintiff was taken into custody by an officer of the law and confined in jail and in the psychopathic hospital for a long space of time; that subsequently, after hearings were had, the county court quashed the writ and ordered the petition dismissed.

Did our opinion in the Freedman case decide questions of fact which compelled dismissal of plaintiff’s complaint of malicious prosecution against Brandt? Examination of the abstract filed in that case shows that after the order was entered dismissing Freedman considerable testimony was taken touching the charges of malice against Brandt. In our opinion we expressly stated we did not consider any of this evidence but had under consideration only the evidence received up to the close of plaintiff’s case. Beading the opinion shows clearly that we were passing only upon the evidence touching Freedman and not upon that touching the conduct of Brandt. We held the evidence showed the proceedings were in conformity with the statute and that Dr. Freedman had no ulterior motive in making the statements made by him — that he acted in good faith. We held the evidence failed to show defendant Freedman guilty under either count of the complaint and affirmed the judgment of the trial court as to him.

Defendant argues on the present appeal that when we held Dr. Freedman acted in good faith and from no ulterior motive, it was in effect a finding that defendant Brandt acted in the same way. This does not necessarily follow. Our opinion indicates there was a background of hostility between the parties. Plaintiff had obtained a decree of divorce from defendant for his fault; she was awarded custody of the two children; he was found in contempt of court for failure to pay an award to plaintiff for support of the children and for failure to return certain personal effects, and was sentenced to the county jail for six months for contempt of court. Another woman was in the background. There were circumstances tending to show a feeling of hostility on the part of defendant toward plaintiff and a situation fertile to produce malicious conduct on his part. Nothing of this would affect Dr. Freedman. Brandt could have maliciously instituted the insanity proceedings regardless of the motives and good faith of Dr. Freedman.

The whole argument of defendant upon this appeal seems to be based upon the proposition that because the insanity proceedings were regular in form and one of the parties acted according to his honest belief, there could be no malice on the part of the other party. As we have indicated, this does not follow. Cases cited by defendant are not helpful. In Carboni v. Bartlett, 290 Ill. App. 351, the controlling fact had been adjudicated in a former suit between the same parties. And in Hooper v. General Elec. X-Ray Corp., 283 Ill. App. 174, 181, the opinion held that the question of laches had been adjudicated in a prior proceeding between the identical parties.

Maliciously filing a complaint charging a person with being of unsound mind, upon which such person is arrested and restrained of his liberty, constitutes an action for malicious prosecution. Lindsay v. Woods (Tex. Civ. App.), 27 S. W. (2d) 263; Pickles v. Anton, 49 N. D. 47.

When the trial court in the first instance set aside the verdict for plaintiff against Brandt, she was entitled to another trial. We hold that the present order dismissing her suit must be reversed, and the cause is remanded to be tried.

Reversed and remanded.

Matchett and O’Couxor, JJ., concur.


author: Mr. Justice Matchett

text:
    Fred R. Vandercook and Janet Reed Vandercook, Appellees, v. Earl F. Mayer, Appellant.
    Gen. No. 40,166.

      O’Connor, J., dissenting.
    Heard in the first division of this court for the first district at the June term, 1938.
    Opinion filed November 21, 1938.
    Milton Hart, of Chicago, for appellant; Max Raphael, of Chicago, of counsel.
    Ashcraft & Ashcraft, of Chicago, for appellees; Alan E. Ashcraft, Jr., of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

In an action on contract for interest claimed on balance due under the terms of a written contract, at 5 per cent from June 2, 1937, when due, to August 21, 1937, when the balance was paid, upon trial by the court at the close of all the evidence there was a finding against defendant in the sum of $67.90 with judgment, from which defendant appeals.

The material facts were stipulated by the parties in substance as follows: On April 28, 1937, plaintiffs entered into a written contract with defendant, whereby he agreed to buy and they to sell at the price of $15,000 certain improved real estate situated in Evanston, Cook county. On May 5 thereafter defendants were given possession of these premises and have since continuously occupied them. On May 18, 1937, plaintiffs, according to the terms of the contract, deposited at the office of W. Gr. Buggies & Company the preliminary report on title made by the Chicago Title and Trust Company, showing good title in the plaintiffs. By the terms of the contract payment of the entire balance was to be made 15 days thereafter, namely, June 2, 1937. On May 28, 1937, defendant represented to plaintiff that he wished to obtain a mortgage on the property for the sum of $7,500 from Baird & Warner, who required an escrow agreement to be executed for the purpose of consummating the mortgage. On the same day (May 28) a written escrow agreement (Chicago Title and Trust Company Escrowee) was executed by plaintiffs and defendant. The escrow agreement is attached to the stipulation. On that day also (May 28) plaintiffs delivered through this escrow to defendant a general warranty deed with release of dower and homestead rights, conveying the premises to defendant and also delivered the guaranty policy of the Chicago Title and Trust Company in the amount of $15,000. At the same time plaintiffs received a portion of the purchase price, leaving a balance of $7,082.03, which was paid August 21, 1937, by the Chicago Title and Trust Company out of the proceeds of the mortgage loan made through Baird & Warner.

August 14, 1937, Baird & Warner deposited in the escrow department of the Chicago Title and Trust Company the sum of $7,000. August 21, 1937, plaintiffs received a check dated August 20, 1937, issued by the Chicago Title and Trust Company Escrow Department, payable to the order of plaintiffs, reciting, “payment in full proceeds of sale to Earl F. Mayer,” in the sum of $7,082.03. Plaintiffs deposited this check and received payment of the proceeds of it in due course. Plaintiffs demanded payment of the balance of the principal prior to August 21, 1937, and on August 26, 1937, first made a demand that defendant also pay interest at 5 per cent on the balance of $7,082.03 from June 2, 1937, the date upon which it was due under the contract, to August 21, 1937, when payment was made, amounting to $67.90. The escrow agreement recites that Ashcraft & Ashcraft deposits with the Chicago Title and Trust Company the deed, insurance policy and other papers which are described in detail, and states that Baird & Warner will deposit the proceeds of the mortgage ($7,500), and that when the mortgage policy guaranteeing the title is issued and certain other items have been paid, the balance of funds shall be paid to plaintiffs. The escrow writing was executed by Ashcraft & Ashcraft and Baird & Warner and is dated May 28, 1937. Attached to it is a writing signed by defendant and one of the plaintiffs in substance that it shall not be construed to abrogate or supersede any of the terms of the contract of April 28,1937.

The sole question for decision is whether under the facts as stipulated, plaintiffs as a matter of law are entitled to recover interest at the legal rate from June 2, 1937, the date when under the terms of the contract payment of the balance was due up to August 20, 1937, when payment was in fact made. Section 2 of the interest statute (Ill. Rev. Stat. 1937, ch. 74, p. 1885 [Jones Ill. Stats. Ann. 67.02]), provides:

£ 1 Creditors shall be allowed to receive at the rate of five (5') per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance; on money received to the use of another and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.”

. It is the theory iff plaintiffs (there being no provision in the contract to the contrary) that plaintiffs not having waived their rights and not being in any way estopped are entitled to recover interest under this section of the statute. On the other hand defendant contends that where (as here) by the terms of the contract no promise to pay interest is made and payment of the principal is offered and accepted after due date, the payment of the principal extinguishes the right to recover interest. Defendant cites Stewart v. Barnes, 153 U. S. 456, 38 L. Ed. 781, 14 S. Ct. 849; Vider v. City of Chicago, 164 Ill. 354, 45 N. E. 720; aff’g 60 Ill. App. 595, 100 A. L. R. 10A-114.

The Vider case is not in point. There plaintiff contracted with the city to do work required by a special assessment improvement, payment not to be due until the assessment had been collected. The collection of the assessment was delayed for a year. Plaintiff asked for interest. The court said, interest could not be recovered because the payment was not due by the terms of the contract. The other cases cited are also inapplicable for the reason that the suits were not based on contractual obligations.

Defendant also contends that interest was not collectible for the reason that it could be allowed only as damages, being merely incidental to the debt and not a part of it. He cites Bank of the United States v. Moskowitz, 150 N. Y. Misc. 629, 100 A. L. R. 96; McDonald v. Holdom, 208 Ill. 128; Hoblit v. Bloomington, 71 Ill. App. 204. These cases are not applicable where (as here) the liability grows out of a direct contractual obligation. 13 C. J. 560; Matthias v. Cook, 31 Ill. 83; Illinois Bankers Life Ass’n v. Collins, 341 Ill. 548. Nor are the cases applicable where (as here) the contract is one which by express provision of the statute bears interest. 100 L. R. A. 98; 33 C. J. 255; Girard Trust Co. v. United States, 270 U. S. 163, 70 L. Ed. 524; Crane v. Craig, 230 N. Y. 452, 130 N. E. 609.

Defendant also contends that plaintiff waived interest by entering into the escrow agreement which made no provision therefor and did not provide a specific time for closing the deal, by failing to make a demand for interest on August 20, when the balance of principal due was paid, nor until 6 days thereafter, by accepting the check of August 20 “in full payment of sale,” and by failing to protest in any way that interest also was due when the payment of the balance of principal was made. These facts, it is argued, show the intention of the parties that interest should be waived. The facts enumerated are not sufficient to show waiver by plaintiffs nor to create an estoppel against them. Plaintiffs’ claim for interest was not against the Title and Trust Company. Plaintiffs received from the trust company all they were entitled to receive. There was no reason why plaintiffs should demand interest from the escrowee or refuse to give a receipt in full to it. The demand for interest was made within a reasonable time and to the proper party. There was no occasion for protest to the Chicago Title and Trust Company. The obligation to pay interest was imposed on defendant by the statute that existed when the contract was made and became a part of it just as much as if it had been incorporated into it. Matthias v. Cook, 31 Ill. 83; Illinois Bankers Life Ass’n v. Collins, 341 Ill. 548. Feldman v. City of Chicago, 363 Ill. 247, construing section 3 of the same statute is conclusive against defendant.

The judgment is affirmed.

Affirmed.

McSurely, P. J., concurs.

O’Connor, J., dissents.