author: Mr. Justice Stone

text:
    George Coukoulis, Appellee, v. Rose Schwartz, Executrix of Estate of Ike Schwartz, Deceased, Appellant.

      Heard in this court at the May term, 1938.
    Opinion filed November 7, 1938.
    Wheeler, Oehmke & Dunham, of East St. Louis, for appellant; E. Fred Gerold, Jr., of East St. Louis, of counsel.
    Hiles & Newell, of Edwardsville, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

On March 23, 1938, defendant appellant, hereinafter called defendant, filed in this court her petition asking leave to appeal from an order of the trial court granting to plaintiff appellee, hereinafter called plaintiff, a new trial. We allowed this petition and the appeal is prosecuted in pursuance thereof. The trial court granted the new trial “for the reason of errors in the instructions given to the jury by the court.”

We do not feel that we are concerned here with the giving or refusal of peremptory instructions, or with the question of an intervening cause being the proximate cause of plaintiff’s injuries. Those questions are not within the scope of this review. Whether the court in granting to plaintiff a new trial for the reason stated by the court either abused its discretion or proceeded upon some clear or manifest misapprehension of a supposed controlling rule of law, is the question to be determined here.

In the early morning of April 21, 1934, fire broke out in the Star Hotel in Edwardsville. At that time plaintiff with his family of a wife and two daughters resided in room 25 of said hotel. In attempting to escape from the burning hotel plaintiff fell to the sidewalk and was seriously injured.

Plaintiff brought an action at law against Ike Schwartz, the owner of the hotel, for injuries to his person suffered when he fell to the sidewalk or pavement from a ladder while descending from a canopy over the entrance to the hotel. The hotel was partially destroyed by fire on that morning and plaintiff had climbed out of one of the windows of the room occupied by him on the second floor of the building to the canopy. The suit was tried on counts I and II of the amended complaint and additional counts I and II. At the conclusion of plaintiff’s evidence the court, on motion of the defendant, directed verdicts in favor of the defendant on counts I and II of the amended complaint and the second additional count, and denied the motion as to the first additional count. That count, as amended following the death of Ike Schwartz by substituting Eose Schwartz, as executrix of his estate, alleged the operation of the Star Hotel by Ike Schwartz in his lifetime, the occupancy of a room therein by plaintiff and his family, that the hotel was made throughout of wood and other combustible substances, except for the outer walls, which were of brick, and that on August 21, 1934, while the plaintiff was sleeping in a bed on the second floor of the two-story building, and while in the exercise of due care and caution for his own safety, the hotel caught fire and burned; the count alleged the maintenance by the city of Edwardsville of a fire department, with active firemen and available equipment, and that the engine house was supplied with telephone and fire alarm equipment; that it was the duty of the defendant, his agent and servant, in the exercise of ordinary care, to use due diligence upon the discovery of the fire to at once give the alarm to the fire department and to call the plaintiff or awaken him and warn him of said fire; that the defendant, after discovering the fire, wholly failed and neglected to call or awaken the plaintiff or warn him of said fire and waited and neglected to call the fire department or to give any alarm, until the proprietor of the restaurant returned and unlocked the door and an attempt was made to put out the fire by hand, in all of which time several minutes, to wit, 15 or 20 minutes, elapsed from the time the fire was first discovered by the defendant until the alarm was given to the fire department, during which time the fire had spread to such an extent that plaintiff, when awakened by the sound of the siren on the fire engine, found egress through the hallway and stairway cut off and blocked by fire and smoke, and that plaintiff’s only means of escape was to leap through an outer window onto a canopy over the entrance to the hotel on Main street which was partially enveloped in smoke and flames and from which it was necessary for him to escape by descending on a ladder; and that while so descending on said ladder, which was not securely fastened to said canopy and the street below, said ladder turned and fell to the pavement, throwing the plaintiff with great force and violence to the pavement, whereby he suffered great bodily injury and pain.

The answer of the defendant admitted the ownership and operation of the hotel, the existence of the fire department and other matters set forth by way of recital, but denied that defendant’s testate waited or neglected for 15 or 20 minutes or any other unreasonable length of time to call the fire department, and averred that the fire department was called and warning given to the plaintiff and others occupying rooms in the hotel as soon as was reasonably possible when the seriousness of the fire was discovered; denied the extent and progress of the fire, that all means of escape was gone except through the window, which opened on Main street, and averred that other means of escape were available; averred that if plaintiff was thrown to the street through the falling of the ladder, the same did not result from any carelessness or negligence of the defendant, and further averred that plaintiff’s fall from the ladder was the result of his own negligence or some person other than the defendant, and that such fall was a separate, intervening cause from any allegations of negligence against the defendant.

The case rests upon the allegation that defendant did not use due diligence in warning plaintiff of the fire and in calling the fire department. We are of the opinion that the facts and circumstances warranted the trial court in submitting this issue to the jury. The fire was discovered on the morning as best we can get from the evidence between 5 :30 and 5:40. The fire department was not called until about six. The call went through promptly. Apparently the fire department acted promptly. They arrived upon the scene about three minutes after six.

There is a strong suggestion in the evidence that Schwartz, Betzold and Christ tried to put the fire out with dishpans of water before the fire department was called. The ceiling was red hot for 15 feet by the time the department arrived. This indicates that some time, perhaps more than warranted, elapsed between the discovery of the fire and the calling of the department. The call for plaintiff and the other guests of the hotel was made after the department had been called. Maybe the warning given plaintiff was sufficient to awaken him, maybe it was not. Some one answered the call of Betzold, so he said; the evidence does not disclose who it was. The daughters of plaintiff say that they were awakened by the noise of the siren on the fire engine. On the other hand, the witness Betzold testified to a state of facts contradictory of many of the foregoing facts. According to his testimony, he called the fire department at once on seeing that the fire was under way, and immediately gave warning to the guests that the hotel was on fire. Betzold was corroborated in his testimony by the witness Walsh. Nevertheless an issue of fact was raised, one not easily determined from the evidence. It, therefore, became important that the jury which was to determine this issue of fact be correctly instructed. The plaintiff offered no instructions. The court gave a number of instructions tendered by defendant, No. 8 of which is as follows:

“If you believe from the evidence that when the witness, Betzold, discovered smoke from the fire in question, both he and the defendant’s intestate used reasonable and ordinary care in ascertaining the location and extent of the fire in question, and that after having done so, the witness, Betzold, exercised reasonable and ordinary care in notifying the Fire Department, after which he went immediately to the hallway where the plaintiff’s room was located, knocked on the doors and otherwise sounded a warning to the persons, including the plaintiff, occupying the rooms adjoining said hallway of the fact that said building was on fire, and if you further believe from the evidence that said witness, Betzold, used ordinary and reasonable care in an effort to warn the plaintiff of said fire, then under all such facts and circumstances, if you so find them from the evidence, it is your duty to return a verdict in favor of the defendant. ’ ’

This instruction should not have been given. It invades the province of the jury by telling them what acts constitute due care; it is peremptory in its nature without reciting important facts and circumstances which might be controlling in the case. It singles out and gives undue prominence to the testimony of one witness, and virtually tells the jury if they find these facts from the testimony of the one witness they would be warranted in finding the defendant not guilty. Such instructions have been condemned over and over. (Peters v. Madigan, 262 Ill. App. 417; Adamsen v. Magnelia, 286 Ill. App. 412; Tanner v. Clapp, 139 Ill. App. 353; Tracey v. Chicago Ry. Co., 185 Ill. App. 125.)

It is to the credit of a trial judge, who must pass upon instructions at the most difficult hour of the trial, to correct its errors, if errors intervene, at the earliest possible moment. The trial court did not err in this case in granting a new trial and its judgment in that regard is affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Catherine Voris, Appellee, v. Robert Rutledge, Administrator of Estate of Virgil Voris, Deceased, Appellant.

      Heard in this court at the May term, 1938.
    Opinion filed November 7, 1938.
    MacDonald, Meyer & Meyer, of East St. Louis, for appellant.
    T. A. Gasaway, of East St. Louis, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This appeal is prosecuted to reverse a decree of the city court of East St. Louis wherein plaintiff appellee was awarded by that court the proceeds of an insurance policy of her former husband Virgil Voris. The policy was issued by the Prudential Insurance Company of America. The policy was originally in the sum of $574 and was made payable to the executors or administrators of the said Virgil C. Voris. The policy contained a standard facility of payment clause and provided for extended insurance, of which provision the insured availed himself in 1934.

Plaintiff and insured were married in 1925, and divorced in 1935. Insured remarried and was killed January 30, 1936. Defendant was duly appointed administrator of the estate of Virgil Clarence Voris, deceased, on July 14, 1937. The administrator demanded payment on the policy from the company on July 15, 1937, and the company agreed to pay the policy to him. On August 31, 1937, plaintiff filed her complaint making the company and administrator defendants. On October 4, 1937, the company filed its answer and counterclaim, which was an interpleader and on the same date obtained an order of court making Garrett Voris, Ida Voris, Dovie Daniels and Euth Schmiehausen parties defendant to the counterclaim. On October 22, 1937, the administrator filed his reply to the company’s answer and counterclaim. On the same date Garrett Voris, Ida Voris, Dovie Daniels and Euth Schmiehausen filed their joint reply to the company’s counterclaim wherein they disclaimed any interest in the policy except as heirs of the insured and prayed that the proceeds from the policy be ordered paid to the administrator.

On October 25, 1937, the company filed a reply to the administrator’s reply to their counterclaim. On October 27,1937, plaintiff filed a reply to the company’s answer to the complaint. On October 29, 1937, the court entered an order allowing the company to pay the proceeds of the policy into court pending determination of the respective rights of the plaintiff and the administrator to said proceeds. On December 3, 1937, the administrator filed his answer to the complaint. On December 17, 1937, plaintiff filed her reply to the administrator’s answer to the complaint.

On December 17, 1937, a trial was had before the court. At the close of plaintiff’s case the administrator moved the court to dismiss plaintiff’s complaint for want of equity, which motion was renewed at the close of all the evidence. Both motions were overruled by the court.

On January 19, 1938, a decree was entered in this cause in favor of plaintiff ordering the clerk of court -to pay the proceeds of the policy to the plaintiff and further ordering plaintiff to pay the funeral expenses for the funeral of insured, Virgil Clarence Voris, deceased.

Plaintiff appellee remained in possession of the insurance policy until after the death of the insured when she turned it over to the insurance company. There is some evidence that plaintiff appellee paid in part at least, the premiums assessed by the company. Defendant appellant contends that the court erred in not dismissing plaintiff’s complaint for want of equity, and the court erred in allowing irrelevant and immaterial testimony, and in not entering a decree in favor of the administrator.

The facility of payment clause of the policy here is in words and figures as follows:

“It is understood and agreed that the Company may make any payment or grant any nonforfeiture provision provided for in this policy to any relative by blood or connection by marriage of the insured, or to any person appearing to said Company to be equitably entitled to the same by reason' of having incurred expense on behalf of the insured, for his or her burial, or for any other purpose, and the production by the Company of a receipt signed by any or either of said persons or of other sufficient proof of such payment or grant of such provision to any or either of them shall be conclusive evidence that such payment or provision has been made or granted to the person or persons entitled thereto, and that all claims under this policy have been fully satisfied.”

There is no evidence that the company elected to pay the insurance to appellee nor was there any overt act on the part of the company which can reasonably be construed to be an exercise of that option. It might well be concluded that appellee had such an interest in this fund as would have justified the company in paying it to her under the facility of payment clause. However, we are not concerned with that now. The fact is that it did not elect to make the payment to her and under the law she was not entitled to sue for it. In such a policy as the one under consideration, the administrator or executor of the deceased alone may bring such a suit. McDaniels v. Western & Southern Life Ins. Co., 332 Ill. 603. In the above case our Supreme Court held that where the beneficiary of a life policy is not named or the policy is made payable to the estate of the insured, to the executor or administrator of the insured or to the insured himself, only the executor or administrator or personal representative of the insured is entitled to sue on the policy.

The error in this case seems to be in the failure to distinguish between the right to receive under the facility of payment clause and the right to demand thereunder. This clause is for the protection of the insurer and while it might and does have the option to pay the fund to some one other than the beneficiary named in the policy it is not compelled to do so.

The case of Bishop v. Prudential Life Ins. Co., 217 App. 112, merely holds that the party claiming the fund was entitled to receive it had the company elected to pay it to her, which it did not do. That case holds that where an industrial policy containing a facility of payment clause is payable to the executor or administrator of the insured, payment to one of the class mentioned in such clause is optional with the insurer and one of such class cannot compel the insurer to make the payment to him. It also holds that where an insurer fails to exercise the option as to the person to whom it will pay, given it by the facility of payment clause in an industrial insurance policy payable to the executor or administrator, recovery may be had at the suit of the executor or administrator.

This is sound in law and in logic. A party who is in a position to receive the bounty if the insurer elects to pay it to him cannot compel the making of a new contract. Contracts are determined in pursuance of the positions and rights of the parties thereto. An outsider, in the absence of fraud, may not oust one party to a contract and place himself in that party’s place.

It makes no difference that appellee had a judgment against the insured for alimony, or that she paid the premium on the policy. That does not give her a right to sue. It only argues that she is in the class of those who had a right to receive the fund had the company elected to pay it to her under the above clause.

The trial court erred in not dismissing appellee’s complaint for want of equity.

The judgment of the city court is reversed with directions to order the clerk who holds the fund under the interpleader to pay said fund to defendant appellant.

Reversed and remanded with directions.


text:
    Myrtle Kellems, Appellant, v. Charles J. Schiele, Appellee.

      Heard in this court at the May term, 1938.
    Opinion filed November 7, 1938.
    Beasley & Zulley, of East St. Louis, for appellant.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This appeal is prosecuted to reverse a judgment in favor of appellee and against appellant notwithstanding the verdict in her favor in the sum of $1,500. It is a personal injury suit, the issue being on an amended complaint and the answer thereto. The complaint in substance charges that plaintiff on May 17, 1936, while in the exercise of due care was walking .upon the public sidewalk in front of a brick building at 606 Missouri avenue in East St. Louis; that she sustained personal injuries by falling into a hole which rendered said sidewalk unsafe and dangerous to pedestrians; that defendant was duly appointed receiver by the circuit court of St. Clair county at the September term, 1933, and by virtue thereof had the care, possession, management and control of the premises consisting of the building known as 606 Missouri avenue in East St. Louis; that his duties as such receiver were the collection of the rents, issues and profits arising from the income of said properties, and included the maintenance and keeping of them in repair; that said defendant as such receiver then and there carelessly kept and maintained and permitted to remain a large square hole in a public sidewalk, adjoining said premises, loosely covered with a thin sheet of iron, thereby making it unsafe and dangerous for pedestrians, including plaintiff, who walked thereon. Said hole was about 9 feet deep. It was a dangerous condition and remained so continuously for more than a year prior to May 17, 1936; that said hole was constructed for the purpose of providing ingress into the basement of said building and premises; that due to the negligence of defendant and as a proximate result thereof, plaintiff fell into said hole on the date aforesaid and was seriously injured.

The answer admits the position of appellee as receiver, but denies all other material allegations of the complaint. The answer also alleges that the hole in which plaintiff was injured was not used for any purpose by defendant; that no specific acts of negligence, nor any facts are set forth in the complaint from which it can be determined whether defendant was guilty of negligence; that no facts are set forth showing any duty on the part of defendant to keep the public sidewalk in good condition and repair.

It appears from the evidence that on May 17, 1936, in the nighttime plaintiff Myrtle Kellems, while walking along Missouri avenue at the point where the hole was described to be, fell into said hole and was seriously injured. The size of this manhole or coal chute was about 25 by 32 or 36 inches, in a square opening; that it was close to the front wall of the brick building fronting on the sidewalk, — from 5 to 8 inches from the wall. The building in question was known as 606 Missiouri avenue and consisted of a storeroom on the main floor, a basement under the storeroom, and below the level of the sidewalk; also rooms on the second floor. Defendant was receiver of the property as alleged in the complaint. As such receiver he took possession of the building in September, 1933 and held possession from then on continuously and was in possession of this building for two and a half years prior to plaintiff’s injuries. His duties were collecting rents and doing everything that was necessary in carrying on his receivership, and he was attending to the repairs. He made an inspection of the premises when he took charge as receiver, and there noted this manhole or coal chute; he saw the cover there on the sidewalk but did not look to see what was under it.

The cover on this manhole or coal chute consisted of a sheet of iron about a quarter of an inch thick. The sheet of iron was larger than the hole, overlapping it about two inches all around. There was nothing on the bottom of this sheet of iron to hold it in place; it was smooth on both sides. There was nothing to prevent it from sliding back and forth on the surface of the walk, leaving the manhole partly uncovered. The evidence shows there were times when the sheet of iron did not cover the entire hole.

At the time of her injuries plaintiff, together with her husband and two neighbors, were returning from a Salvation Army Church. They were walking over this sidewalk all abreast, plaintiff nearest to the building. She saw this sheet of iron apparently lying flat on the sidewalk, but did not know there was a hole under it. When she stepped on the edge she fell into the hole, which was about 9 feet deep, and was rendered unconscious; the sheet iron had tipped up; her body was suspended in the manhole; only her shoulders could be seen; her chin was caught on the slanting corner of this sheet of iron. With the assistance of her husband and another man plaintiff was removed from the hole and taken to a hospital. She was seriously injured. The amount of the verdict is not questioned here, and, therefore, it is unnecessary to set out the nature and character of her injuries.

The next morning a member of the comptroller’s force of the city called defendant and called his attention to the hole in question, and the damage of the night before, and told him that either the city or the defendant ought to close up the hole. Accordingly defendant made the repairs, so that now the sidewalk is continuous; there is no hole there. The cost of this work was charged up to defendant’s account as receiver. The purpose of this hole was to provide ingress to the space under the building; there are openings in this wall underneath the building, so that a person can go from the basement under the sidewalk and back again if he wants to, and carry things.

The evidence fairly tends to prove the allegations of the complaint as to plaintiff’s injuries and her exercise of due care. The hole in question was a dangerous condition. It was highly probable that someone would be injured there. The condition was well known to appellee. That the plaintiff was in the exercise of reasonable care for her own safety was obvious.

Appellee’s main contention is that he is not responsible for the condition and is guilty of no act of negligence. If appellee, by virtue of his possession of the premises, was charged with the responsibility of this place of injury to plaintiff, then he was guilty of negligence in allowing this place of danger to exist there for a long period of time without proof of any other act. That appellee owed to the public the duty of keeping this place reasonably safe for the public use, seems to us to appear. This hole connected the sidewalk with the basement to appellee’s premises. It did not come there by chance. Obviously it was put there by someone for a definite purpose. It was much like the iron grating covers of holes which we are accustomed to see in front of buildings. These holes furnish light to basements, and are often used for purposes of storage in basements. There was storage of lumber in this basement. The lumber could be seen when the iron covering of the hole was pushed to one side.

The evidence does not show whether the opening was made by the city or by someone with the consent of the city. In either case the city would be jointly liable with the owner or person in possession of the building, if the hole was for the use and benefit of the building, and not solely liable. Loyd v. City of East St. Louis, 235 Ill. App. 353; Geary v. City of Chicago, 161 Ill. App. 461.

If this hole in question was not put where it was with the consent of the city, then the person who put it there was a trespasser who created a nuisance in connection with the building. This was not an ordinary hole in the sidewalk. It was a connection between the sidewalk and the building, to the basement of which it entered. The owner of this building who made this connection, or suffered it, is charged with the duty of keeping it in a reasonably safe condition, so as not to injure any person in the exercise of reasonable care for his own safety. That responsibility passed to said owner’s grantees, assignees or tenants who were in exclusive possession. West Chicago Masonic Ass’n v. Cohn, 192 Ill. 210; Trustees v. Foster, 156 N. Y. 354. Appellee was in one of these classes.

It appears from the evidence that appellee knew and felt that he was responsible for the saféty of his building and its connections, especially this connection of his basement with the outside sidewalk by means of this hole. He virtually admitted the same when he testified that the next morning after the injury he made necessary repairs, so as to make a place of safety of the hole which he had suffered to remain dangerous. While our courts have held that proof of improvements subsequent to an injury may not be made for the purpose of proof of negligence, they have also held that such proof is admissible for the purpose of proving ownership of an instrumentality which causes injury. City of Taylorville v. Stafford, 196 Ill. 288. This was a case for the jury. It would have been error for the trial court to have directed a verdict. It was error for the trial court to render judgment notwithstanding the verdict.

The court at the request of plaintiff gave to the jury the following instruction:

“The Court instructs the jury that if you believe from the preponderance of the evidence that the hole in the sidewalk referred to in the evidence has been made or used for the purpose of the access to the building or into the basement, and that the same was there at the time when the defendant, Charles J. Schiele, was appointed receiver on the 15th day of September, A. D. 1933, then it was the duty of the defendant as such receiver to keep and maintain the said hole or opening in a reasonably safe condition for the pedestrians to walk thereon.” This instruction should not have been given. It places responsibility on appellee at the moment of his appointment as receiver, without regard to his possession of the premises and without regard to whether he leased a part of or all of said premises under conditions which would have rendered the tenants of particular premises liable for their unsafe condition. The instruction is broader than the law.

Appellee complains of the refusal by the court to give to the jury the following instructions:

“You are instructed that the defendant, Charles J. Schiele, Receiver, is not responsible for any dangerous condition of the sidewalk abutting the property of which he is receiver, unless he caused such condition, and if you find from the evidence in this case that he did not cause the condition of the sidewalk as alleged by the plaintiff in her complaint, then you should return a verdict of not guilty as to said defendant. ’ ’

‘1 The jury is instructed that a public sidewalk in a city, is under the control of the city authorities, and the duty of keeping such public sidewalk in repair and in a safe condition is imposed upon such city, and not upon the owner of abutting property.” The first of these instructions assumes that this hole in question was a defect in a sidewalk which the city alone had the duty of keeping in a safe condition. It ignores the fact that this was a connection between the sidewalk and the basement of the building. It also assumes that appellee could not be held responsible unless he actually constructed the hole in question.

The second refused instruction is subject to the same criticism as the first.

For the errors enumerated the judgment of the trial court is reversed, and the cause remanded to said court for another trial.

Reversed and remanded.


author: Mr. Justice Burke

text:
    James G. Barber, Appellee, v. City of Evanston, Appellant.
    Gen. No. 39,535.

      Heard in the second division of this court for the first district at the June term, 1937.
    Opinion filed November 17, 1938.
    Rehearing denied December 14, 1938.
    Alfred W. Craven, Jr., Corporation Counsel, and Crittenden C. Jarvis, of Evanston, for appellant; Crittenden C. Jarvis, of counsel.
    John Tone Kelly, of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

Plaintiff, a justice of the peace, elected in the town of the city of Evanston, expended $30 for his official bond in the years 1934-1935. He sued the city of Evanston and a police magistrate rendered judgment against the city. Defendant prosecuted an appeal to the circuit court where on a trial de novo, without a jury, a judgment for the amount claimed was entered against the city of Evanston.

On this appeal the city seeks a reversal, asserting that plaintiff is not an officer of the city of Evanston and that the laws, rules or regulations of the city of Evanston do not require a justice of the peace in the town of the city of Evanston to furnish an official bond. Paragraph 16, ch. 103, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 92.17], provides: “That the state, or any county, township, municipality, public board or body whether organized under general or special act shall pay out of the funds of said state, county, municipality, township, board or body the cost of any official bond furnished by any officer of said state, county, township, municipality, public board or body required by the laws, rules or regulations thereof to execute the same, in case said officer shall furnish the same with a surety company or companies authorized to do business in this state under the laws thereof . . . .” We agree with the contention of defendant that the meaning of the paragraph is that the municipality shall pay out of the funds of said municipality the cost of any official bond furnished by any officer of said municipality required by the laws, rules or regulations thereof to execute the same, and that the township shall pay out of the funds of said township the cost of any official bond furnished by any officer of said township required by the laws, rules or regulations thereof to execute the same. When an officer of a township furnishes á bond 1 ‘ required by the laws, rules or regulations thereof to execute the same,” it is plain that such township is obligated to pay out of its funds the cost of the bond, and when an officer of a municipality supplies an official bond “required by the laws, rules or regulations thereof to execute the same” the municipality is bound to pay for the cost of the same. In the case at bar the city did not by any ordinance, rule or regulation require a justice of the peace of the town of the city of Evanston to furnish an official bond. Paragraph 9, ch. 79, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 71.005], provides that “Every justice of the peace or constable, before entering upon the duties of his office, shall execute and deliver to the county clerk of the proper county, and within twenty days after his election, a bond, to be approved by said clerk, with two or more good and sufficient securities, in the sum of not less than two thousand dollars ($2,000) nor more than ten thousand dollars ($10,000), conditioned that he will justly and fairly account for and pay over all moneys that may come to his hands under any judgment or otherwise, by virtue of his said office, and that he will well and truly perform every act and duty enjoined upon him by the laws of this state, to the best of his skill and ability. Such bonds shall be made payable to the People of the State of Illinois, and shall be held for the security and benefit of all suitors and others who may be injured or aggrieved by the official acts or misconduct of such justice of the peace or constable, as the case may be.” Plaintiff declares that the paragraph quoted requires him to furnish an official bond, and there can be no dispute that it does. He contends that the direction to furnish a bond need not necessarily be contained in an ordinance or regulation of the municipality, but that it may be contained in a statute. While section 16 of the chapter on official bonds states in substance that the municipal corporation shall be bound where such corporation requires an official bond of its officers by the “laws, rules or regulations thereof to execute the same,” we are of the opinion, after a thorough consideration of the statute, that an officer who is required by the State law to execute an official bond has the right to collect the cost of such bond. In that view we construe the word “thereof” to include the State laws pertaining to municipalities. Where an officer of a municipality is required by statute to furnish a bond it would be an act of supererogation for the municipality to adopt an ordinance or order to the same effect. The statute requiring a justice of the peace to supply a bond is, in our view, binding on the municipality or township and therefore is a “law thereof. ’ ’

In their briefs the parties assume that a justice of the peace elected in a township whose territory is not coextensive with a municipality is a township officer, and this court, in People ex rel. McDougall v. O’Toole, 60 Ill. App. 534, 544, said:

“It must be borne in mind that justices of. the peace in the city of Chicago, although recommended, nominated, confirmed and appointed, as hereinbefore set forth, are yet township and not city officers; they are appointed as officers of the various towns in which they live, and not as residents or citizens of the city of Chicago.” In 1916 the city of Evanston adopted a resolution providing for the admission of additional territory and making the town of Eidgeville and the additional territory (now the town of the city of Evanston) coextensive and coterminus with the city of Evanston and requesting the board of commissioners of Cook county to approve such action. The board did approve the action and thereby organized the town of the city of Evanston. The name was changed from the town of Eidgeville to the town of the city of Evanston. The theory of plaintiff appears to be that as the territory of the town and the city is coextensive, the two municipalities are united and the city has assumed and is chargeable with performing the ministerial and governmental duties and functions of the town. Section 131, ch. 139, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 133.135], provides that “The city council in such city and town, may by ordinance, provide that the officers [offices] of city "and town clerk shall be united in the same person; that the officers [offices] of city treasurer and town collector shall be united in the same person; that the office and election of highway commissioners shall be discontinued. The poor master in such city and town shall be appointed by the county board.” It will be observed that this section does not make it mandatory on the city council to provide that the offices of city and town clerk shall be united in the same person and that the offices of city treasurer and town collector shall be united in the same person. Worthy of mention likewise is the fact that the statute does not give any authority to the city over a justice of the peace. Section 127, ch. 139 [Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 133.131] also provides that the city shall designate the name of the township. Counsel for plaintiff cites the case of People v. Hazelwood, 116 Ill. 319, in support of his theory. That is a case in which the Supreme Court held that the town and city of Quincy had followed the statute and that the city, following the organization of the township by the county board, provided by ordinance that the offices of city and town clerk should be united in the same person and that the offices of town collector and city treasurer should be united in the same person. The court held that after such action “the offices have become inseparable, and the duties and burdens of one may not be accepted and those of the other rejected.” The court was speaking of the offices of town collector and city treasurer, and the case is not in point. No one disputes that the city of Evanston and the city of Quincy had the right to provide that the duties of such offices should be exercised by the same individual. Had the legislature intended to provide that a justice of the peace (in territory where the town and the city are coextensive) should be an officer of the city, it could easily have said so. From a careful reading of the statute it is apparent the legislature had no such intention. In fact, the town and city” are permitted to have different names. Our Supreme Court in Tissier v. Rhein, 130 Ill. 110, 114, 115, says:

‘ ‘ Section 29 of article 6 of the constitution provides as follows: ‘All judicial officers shall be commissioned by the Governor. . . . ’ A justice of the peace is a judicial officer, and . . . the Legislature has required his commission to be issued by the Governor. A court has been defined to be that ‘body in the government to which the public administration of justice is delegated.’ (1 Bouv. Law Dic. 373.) The public administration of justice is delegated to justices of the peace. They are among the bodies, in whom the constitution vests the judicial powers of the State. (Cons. Art. 6, sec. 1). While engaged in the performance of their public duties as judicial officers, they are ‘ courts ’ within the meaning of said section 29. ... A justice of the peace, though elected by the people of the town, has a jurisdiction which is'co-extensive with the limits of the county, in which such town is located. His process issues to any part of the county, and suits may be brought before him by persons residing anywhere in the county. (People v. Meech, 101 Ill. 200.) Therefore, no classification of towns can be made, which is based upon their relations to justices of the peace. The territorial jurisdiction of a justice is not circumscribed by the territorial limits of a town.” In Cook county, because of the organization of the municipal court of Chicago, a justice of the peace has jurisdiction within the entire county except the city of Chicago.

From a careful consideration of the record we are of the opinion that plaintiff was not an officer of the city of Evanston and that he was not required by any law or ordinance to furnish the city of Evanston with a bond. At pages 16, 17 of plaintiff’s brief appears the statement that “the Defendant cannot deny that it has in its control, available for disbursement upon resolution of its City Council, funds of the Town of the City of Evanston. Therefore, if the Town of the City of Evanston is in any way obligated, under the Statutes of Illinois, to pay the Plaintiff any moneys for the cost of his official bond, or otherwise, then the Defendant through its City Council, in whom the powers of the Town are vested, is duty bound and is required to perform such obligations of the Town of the City of Evanston.” In that statement plaintiff implies that the city has available for disbursement funds of the town of the city of Evanston. If it is a fact that the city has funds of the town, we do not see how that would have any bearing on the proposition as to whether a judgment should be rendered against the city. The collection of a judgment is something that arises after the rendition thereof. Being fully satisfied that plaintiff is not an officer of the city, it follows that the city is not obligated to pay for a bond that he supplies. A town may sue and be sued, and should plaintiff sue the town of the city of Evanston and obtain a valid judgment then the matter of collecting the judgment would arise. We are not now expressing any opinion as to whether a justice of the peace may recover from the town the cost of the bond that he furnishes, as that proposition is not before us.

For the reasons stated the judgment of the circuit court of Cook county is reversed.

Judgment reversed.

Friend, P. J., and John J. Sullivan, J., concur.


author: Mr. Presiding Justice Hall

text:
    John F. Cuneo, Appellee, v. City of Chicago, Appellant.
    Gen. No. 39,957.
    Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed November 30, 1938.
    Rehearing denied December 16, 1938.
    Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Resa, Assistant Corporation Counsel, of counsel.
    John L. McInerney and Campbell, Clithero & Fischer, both of Chicago, for appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

Defendant, the city of Chicago, appeals from a judgment for the sum of $217,345, entered against it in the superior court of Cook county on June 15, 1934, for damages alleged to have been sustained by plaintiff to his building and land located on the northeast corner of Michigan avenue and Bandolph street in the city of Chicago. It is charged by plaintiff that the damages resulted from the construction by the Illinois Central Railroad Company of an elevated approach to a viaduct, extending east from the east line of Michigan avenue across the Illinois Central and Michigan Central yards and tracks, which structure, with certain appurtenances, is immediately south of and abutting upon plaintiff’s land. Prior to the building of the structure, plaintiff had entered into the following contract with the Illinois Central Railroad Company, on February 10,1931:

“In consideration of the sum of Forty-eight Hundred Dollars ($4800.00) to me in hand paid by the Illinois Central Railroad Company, the receipt of which is hereby acknowledged, for myself, my heirs, executors, administrators, grantees, assignees, lessees and tenants [I] do hereby forever release and discharge the said Illinois Central Railroad Company of and from any and all claims, demands and causes of action, of whatsoever kind, nature or description, whether past, present or future, and whether permanent, continuing or otherwise, which may arise out of damages occasioned to the building on the premises above described, and the effects therein, and to the occupants of said building, by virtue of the construction of the East Randolph Street viaduct now being carried on adjacent to said property by said Illinois Central Railroad Company.

“This release is and shall be a covenant running with the lands hereinabove described and is and shall be binding on all future owners thereof and on all persons who may now have or who may hereafter acquire any interest therein, or to any part thereof, or who may be in possession of or occupy the same, or any part thereof; hereby binding not only myself, but my heirs, executors, administrators, legal representatives, grantees, assignees and lessees, the same as if each and all of them had signed this release.

“And I do hereby agree that I will indemnify and save harmless the said Illinois Central Railroad Company of and from any claims, demands and causes of action which may be made against it by any of the tenants or occupants of said building, arising out of any damage which may be done to the said building, or the occupancy thereof, by virtue of the aforesaid work and improvements.

“It is understood that the question of providing access between that part of the station of the Illinois Central Railroad Company on Randolph Street and the building on said premises is left open for future consideration and is not affected by this release. ’ ’ On the trial, this document was offered in evidence by defendant and rejected by the court. The premises in question is bounded on the west by Michigan avenue, on the south by Randolph street, on the east by Beaubien court, and on the north by other land and buildings, in private holdings. The lot in question has a frontage on North Michigan of 89 feet, 4% inches, and an eastern frontage on Beaubien court of 89 feet, 4 inches, and a frontage on Randolph street of 69 feet, 8% inches. The evidence discloses that the building on the premises is a five-story basement and brick structure of “mill .construction,” covering the entire lot, and that the building was erected some 60 years prior to the date of the trial. Prior to the erection of the structure in Randolph street, upon which plaintiff bases his cause of action, and long subsequent to the erection of the building described, the character of Michigan avenue had been entirely changed, the surface of this street raised to approximately the second floor of the building in question, and the street widened by practically doubling its former width. In describing the building on the premises and the condition remaining after the Michigan avenue improvement was made, a witness testified that it (the building) “is an old warehouse with what we call a ‘shirt’ front put on it. They cut the old warehouse in two and put in a front on Michigan avenue and one on Randolph street and spent some little money in remodeling it. That was after the City took away the west portion of it for the Michigan avenue improvement.” Prior to the construction of the Randolph street improvement in question, the evidence discloses that there existed immediately south of an adjoining plaintiff’s land, a sidewalk 7 feet in width, running eastward and down towards Beaubien court, on about a % per cent grade, a drop of approximately 8 feet in 70 feet, the last 10 feet of which consisted of 5 steps leading to the last named street; that immediately south of and adjacent to this sidewalk was a 26-foot ramp, or roadway, extending down from the grade of Michigan avenue from the west line of the property in question to the east line of Beaubien court, and that immediately south of this ramp, which was paved with a cobble stone or granite block pavement, was a 7-foot walk, or ramp, leading to the Illinois Central station, which was just north of Randolph street and east of Beaubien court. Thereafter, this was all changed, when the structure complained of, consisting of a new sidewalk 24 feet in width, immediately south of and adjacent to the property in question, and south of this sidewalk the superstructure of the present roadway together with a cement surface 84 feet in width, were constructed. Also, adjoining the roadway on the south a 20-foot cement sidewalk was built. The total width of the new roadway and sidewalks is 128 feet. Before the structure complained of, was built, and south of the ramp described, there was a roadway leading to what the witness termed, the old Randolph street viaduct, which was built in the year 1881 by the Illinois Central and Michigan Central Railroads. One witness described this roadway as “a poorly built road of a temporary nature.” This Randolph street viaduct, which was destroyed to make room for the new structure, to which the roadway in question led, is described in the record as a steel structure with a wooden deck and floor, and it is shown that at the time of the beginning of the erection of the present structure, the steel work and the wooden surface, or deck, of the viaduct “was in bad condition.” The evidence indicates that the planking was badly worn and loose, and was only kept in repair by occasionally putting in a few new planks, and that for a number of years prior to the wrecking of this old viaduct, the speed of automobiles over it was limited to 5 miles an hour, and heavy loads were forbidden. In 1928 and 1929 notice was served on the railroads that this viaduct would have to be rebuilt.

By an ordinance of the city of Chicago, enacted in the year 1919 and amended by a further ordinance enacted in 1929, it is provided that 1 ‘ There shall be constructed [by the Illinois Central Railroad Company], in lieu of and as a substitute for the East Randolph Street Viaduct provided for in said ordinance [the ordinance of 1919], a new East Randolph Street Viaduct of a width of one hundred twenty-eight (128) feet instead of sixty-four (64) feet from the east curb line of North Michigan avenue to connect with Field Boulevard as extended. The north line of said viaduct shall coincide with the north line of East Randolph street extended east from North Michigan avenue.” This ordinance also provided that in the construction of the new East Randolph street viaduct, extending from the east line of Michigan avenue easterly, the labor and materials for the construction of the north half thereof were to be supplied by the Illinois Central Railroad Company at its own expense, and for the south half by the south park commissioners at their own expense. The ordinance also provided that “The Central Company [Illinois Central Railroad Company] shall assume and pay all damages to private property, if any, resulting from the changed grade of said street, occasioned by the actual construction of the inclined approach of that portion of the said new Bast Randolph street viaduct west of the westerly boundary line of the lands of the Michigan Central Railroad Company, provided, however, that if the north half of the new East Randolph street viaduct is constructed before the south half thereof, then all changes and alterations in the pavement, sidewalks and curbs at and near to the intersection of North Michigan avenue and Bast Randolph street shall be made at the time the north half of said viaduct is constructed. The expense thereof to be borne in the manner provided in this section.” As to the expense, the same section makes provision for the division thereof between the Illinois Central Railroad Company and the South Park Commissioners.

On December 15, 1930, the City Council of the City of Chicago, recognizing the widespread unemployment in the City of Chicago, passed the following ordinance:

‘ ‘ Section 1. That the Illinois Central Railroad Company, its licensees, lessees or assigns, be, and they are hereby authorized and permitted to proceed, without delay, with the work of constructing the new Bast Randolph Street Viaduct, west of the lands of the Michigan Central Railroad Company and the suburban station facilities thereunder, in accordance with the terms and conditions of an ordinance duly passed by the City Council of the City of Chicago on October 24, 1929, entitled ‘An ordinance amending Section 1701 of the Chicago Municipal Code of 1922 and amending also an ordinance entitled ‘ ‘ An ordinance for the establishment of Harbor District Number Three; the construction by the Illinois Central Railroad Company of a new passenger station; electrification of certain of the lines of the Illinois Central and Michigan Central Railroad Companies within the City; and the development of the Lake Front.” ’

1 ‘ Section 2. That the Commissioner of Public Works and the Commissioner of Buildings be, and they are hereby ordered and directed to issue any and all permits as may be necessary to do the work of constructing the viaduct and the suburban station facilities at East Randolph street, as provided for in said ordinance of October 24, 1929.

“Section 3. Nothing in this ordinance shall be construed to in any way change the covenants, agreements and obligations of the Illinois Central Railroad Company, its licensees, lessees or assigns, as provided in the ordinance duly passed by the City Council of the City of Chicago on October 24,1929, entitled, ‘An ordinance amending Section 1701 of the Chicago Municipal Code of 1922 and amending also an ordinance entitled “An ordinance for the establishment of Harbor District Number Three; the construction by the Illinois Central Railroad Company of a new passenger station; electrification of certain of the lines of the Illinois Central and Michigan Central Railroad Companies within the City; and the development of the Lake Front.” ’

“Section 4. That this ordinance shall be in full force and effect from and after its passage.”

As stated, the structure was completed as provided in the various ordinances referred to, and plaintiff seeks to recover on the theory, as stated in his complaint, that “the said real estate and building have been greatly damaged and depreciated in their fair cash market value.” The main contention of defendant is that plaintiff cannot recover because of the fact that plaintiff’s release of the Illinois Central Railroad, also released the City. In reply to this contention, plaintiff contends that the release was only partial, and that it relates solely to damage to the building on the premises as a structure and not to a diminution of the market value of the property as a whole, caused, among other things, by the interference with ingress, egress, light, air and view, resulting from the improvement as a whole.

In Chicago & E. I. R. Co. v. Loeb, 118 Ill. 203, an action was brought against the railroad company to recover damages sustained from the operation of defendant’s railroad by throwing smoke, cinders and ashes upon plaintiff’s premises. After a trial by the court without a jury, a judgment was entered for plaintiff. Plaintiff’s action'was brought more than 5 years after the railroad was built and in operation, plaintiff suing upon the theory that he could recover for recurrent damages. In sustaining defendant’s plea, the Supreme Court said:

“We think it to be within the true intent and meaning of this provision as to damage, that there should be but one proceeding for recovery of damage, in which there should be recovery for the entire damage, past, present and future; that it should be similarly regarded, in this respect, as the provision in regard to the talcing of property, where there is but one proceeding, and an assessment of compensation and damages once for all. The two provisions are coupled together, and are both in restriction of the exercise of the power of eminent domain. In respect to the awarding of compensation for the taking of private property for public use, Mills, in his work on Eminent Domain, sec. 216, says: ‘ The appraisement embraces all past, present and future damages which the improvement may thereafter reasonably produce.’ ”

Each of the witnesses for the plaintiff, in estimating the amount of the alleged damage, took into consideration the property as a whole, and did not attempt to separate any damage, alleged to have been caused to the building upon the land, from the damage to the land itself. For instance, one witness for plaintiff testified that “in my opinion, the highest and best use of this property before the commencement of the work at Randolph Street and Michigan Avenue, was the same use. ... In my opinion, the highest and best use since the work was completed in 1932, is the same. ’ ’ Another of plaintiff’s witnesses testified that because of the change in the grade, effecting the first floor and the entrance to the present building, the building has been depreciated. Also, this witness testified to the effect that a piece of property like this Cuneo property, on a grade like the grade in question, practically destroys the first floor (of the building) and renders it useless for “this use as far as the first floor is concerned.” All the testimony offered by plaintiff is to the same effect, and there is nothing in the record to indicate what portion, if any, of the damage awarded was to the land as land, and what portion for depreciation, if any, in the value of the building. Nowhere is it indicated that any consideration was given to the admitted fact that all damage to the building had been paid for and a release given by plaintiff in consideration for the amount paid. Should plaintiff’s theory be held to be correct in that the release had to do with damage to the building only, then, in our opinion, the cause should have been submitted to the jury upon the question alone as to the damage to the land as land, without any consideration as to any alleged damage to the building now upon the land, whether physical or to its use. Any other conclusion would amount to the nullification of the release. Under these circumstances, we hold that the court was in error in refusing to admit the release in evidence, and in not confining the issue, as to damages, to the single question here suggested.

The judgment of the superior court of Cook county is reversed and the cause is remanded for a new trial.

Reversed and remanded for a new trial.

Hebbl and Denis E. Sullivan, JJ., concur.


text:
    Claim Adjusters Association and James J. Manion, Appellants, v. Hine’s Legal Directory, Inc. et al., Appellees.
    Gen. No. 40,010.
    Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed November 30, 1938.
    Rehearing denied December 16, 1938.
    Eugene Quay, of Chicago, for appellants.
    Thomas D. Huff and Mitchell Dawson, both of Chicago, for certain appellees; Herbert A. Huff, of Chicago, of counsel.
    Campbell, Clithero & Fischer, of Chicago, for certain other appellee.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

Plaintiffs appeal from an order and judgment of the circuit court of Cook county, striking their amended complaint. The substance of the complaint is that plaintiff corporation, together with plaintiff Manion, its president and manager, are engaged in the business of publishing a list of insurance lawyers and adjusters called “The Insurance Claims Who’s Who,” and that they rate these lawyers without reference to whether or not they are subscribers, and, it is stated, that plaintiffs are “under no obligation or duty, legal or ethical, to have such lawyers ‘authorize their listing and rating. ’ ” It is charged that defendants issued and published a document as follows:

“The Lawyers’ Coneidential Cuide
1936-1937
“A Complete List of Legal Directors, Law List Publishers, Service Bureaus and Associations, Selling Listings or Memberships to the Attorneys in the U. S. A. and Canada— with ratings
“8th Annual Edition
Published by
Lawyers’ Coneidential Cuide
A. M. Washburn, Sec’y.
33 So. Clark St. Chicago
“Foreword
“We present herewith the eighth annual edition of the ‘Lawyers’ Confidential Cuide,’ published annually in the interests of the American and Canadian attorneys as a rating guide in arranging their budgets for Legal Directories or Law Lists subscriptions, and to protect all lawyers against fraudulent advertising schemes, service bureaus, and worthless lists.
“The ratings are based on the consensus of opinion of the leading lawyers’ associations, Directory and List publishers, Insurance Companies, Commercial Agencies, and leading law firms. It is revised annually.
“Subscription Rates
1 year, $5.00
3 years, $10.00
“Hine’s Insurance Counsel
Insurance Legal
Hine’s Legal Directory, Inc.
. Business and Claim
Adjustment 1908 A-l
1st Nat’l Bank Bldg. Chicago
Eastern Office: 220 Broadway, New York.
“Insurance Claim Who’s Who
Claim Adjusters Assn. Inc.
James J. Manion, Mgr.,
175 West Jackson Blvd.,
Chicago
Insurance List 1924 (Note. — New Policy of arbitrarily rating attorneys as to ability, character and trial
efficiency in Insurance defense matters, and publishing such ratings without the consent of listees has caused such conflicting reports to reach us that we are unable to assign a suitable rating.)
“Warhihg
“Beware of the traveling representative of any list or directory who offers an alibi for a poor rating or implies that our ratings are not based on a reliable consensus of opinion.
“If in doubt, verify rating by communicating with any A-l publisher or other reliable source of information.
“If solicited for subscription or membership in any ‘List,’ ‘Directory,’ ‘Bureau’ or ‘Association’ not listed herein, wire or write this office: or if you are a member of the Commercial Law League communicate with the Secretary’s office before subscribing.
Copyright, 1936, by A. M. Washburn,
Printed by the Cuneo Press.”

Plaintiffs’ claim is that the statements as to them are libelous per se, and that by this publication plaintiff Manion was damaged in the sum of $50,000, the corporation in the sum of $100,000, and that in addition to the actual, damages sustained, the further sum of $300,000 should be assessed against the defendants as punitive damages. In brief, after reading a long and complicated statement of alleged facts set forth in the complaint, we conclude that, when summed up, plaintiff’s charge is that the Hine’s Legal Directory, Inc., by certain of its officers and directors, published a directory of law lists known as “The Lawyers’ Conti- ( dential Guide,” which contained a statement to the effect that the publishers of this directory, for certain stated reasons, set forth in the document, were unable to give a rating to the law list published by plaintiffs, and that plaintiffs have thereby necessarily and inevitably been damaged in the amounts mentioned. It is charged that the Cuneo Press Inc., is liable because it printed the document complained of. Our conclusion is that by no stretch of the imagination can it be said that the document, standing alone, contains any words which can be said to be libelous per se. There is no charge in the complaint that defendants were under any obligation to give plaintiffs a rating, nor that defendants, in declining to give plaintiffs a rating,- were induced to do so by malice. Therefore, we are of the opinion that the court was correct in striking the complaint.

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

Judgment affirmed.

Hebel and Denis E. Sullivan, JJ., concur.


text:
    William Perry Taylor, Administrator of Estate of Harry A. Taylor, Deceased, Appellee and Cross Appellant, v. City of Berwyn and Thomas Bartunek, Appellants, Ward Baking Company, Cross Appellee.
    Gen. No. 40,036.
    Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed November 30, 1938.
    William E. Oplatka, of Berwyn, for appellant; Golan, Blumenthal & Golan, of Chicago, of counsel.
    Guy C. Guerine, of Melrose Park, and Louis Jaffe, of Chicago, for appellee and cross appellant; Guy C. Guerine, of counsel.

      McKenna & Harris, of Chicago, for cross appellee; James J. McKenna and Burrell J. Cramer, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

Shortly after 6 o’clock on the morning of September 3,1936, a police squad car of the defendant, city of Berwyn, driven by defendant Thomas Bartunek, a police officer of that city, accompanied by Frank Prazek, also a Berwyn police officer, was cruising west on 22nd street within the limits of the city. At the time mentioned, these officers received a radio call which announced that all squad cars should be on the lookout for a small dark sedan with three persons in it, a woman and two men, who were wanted for the murder of a police officer in Lombard, Illinois. At about the time of receiving the call, the officers turned north on Harlem avenue, which is a north and south street, 22nd street running east and west, and while still in the city of Berwyn, and after they had seen a car containing three persons, a woman and two men, turn from 16th street north into Harlem avenue at a high rate of speed, the police officers followed this car into Oak Park, where both cars turned west on Lake street, at which time both cars were still going at a high rate of speed. From Lake street, both cars proceeded south at the same high rate of speed to Washington boulevard, where, the car being pursued and the police car, both turned' west. At 19th avenue, in the village of Maywood, a north and south street intersecting Washington boulevard, while still pursuing the other car, the police car collided with a delivery truck of the Ward Baking Company, being driven north across Washington boulevard, by means of which the truck of the Ward Baking Company was thrown over to and upon the northwest corner of the intersecting streets, where plaintiff’s intestate, Harry A. Taylor, was standing waiting for a street car. The Ward Baking Company car struck Taylor, who died a short time thereafter as a result of injuries inflicted.

In the complaint filed in the cause by the administrator of the estate of Taylor charging negligence, the city of Berwyn, police officer Thomas Bartunek and the Ward Baking Company were made parties defendant. After issues joined, the cause was submitted to a jury, which returned a verdict finding the Ward Baking Company not guilty, and finding both the city of Berwyn and Bartunek guilty. The jury assessed damages against the city of Berwyn and Bartunek in the sum of $10,000 each. Motions for a new trial were made by the plaintiff, in which it was urged that the verdict finding the defendant, the Ward Baking Company, not guilty, be set aside, and by the city of Berwyn, praying that the judgment against it be set aside. Both motions were denied, as was a further motion by plaintiff for judgment against the Ward Baking Company, notwithstanding the verdict. Judgment was entered against the city of Berwyn and Bartunek for $10,000 each, and in favor of the Ward Baking Company for costs. Notices were filed by the city of Berwyn and by Bartunek of an appeal from the judgments against them. Notice of appeal was also filed by plaintiff of an appeal from the order denying its motion for a new trial, from the verdict and judgment in favor of the Ward Baking Company and from the order of the court denying his motion for a judgment against the Ward Baking Company, notwithstanding the verdict.

A witness produced by the plaintiff testified that at the time of the occurrence, he was acting lieutenant of police in the village of Maywood; that on the morning in question at about 6:25, he received a call to go to the scene of the accident at 19th avenue and Washington boulevard; that Washington boulevard is a macadam surfaced road 38 feet 2 inches wide and runs east and west, and that 19th avenue is a concrete road 32 feet 2 inches wide and runs north and south, and that two street car tracks are located in the center roadway of 19th avenue; that he immediately proceeded to the scene of the accident and arrived there in a very short time; that he saw a Dodge truck lying on its right side on the northwest corner of the street intersection across the sidewalk, and that he saw the police car standing on its wheels about 25 feet north of the north curb of Washington boulevard; that the Dodge truck was to the south of the police car, and that he there found the intestate lying under the overturned truck; that at that time, the intestate was still conscious and had marks and bruises on his head, a broken right arm and compound fractures of the legs. Referring to a plat, this witness testified that the parkways on Washington boulevard are 8% feet in width, and that barring certain space near the intersection, the roadway on Washington boulevard is open to continued view from the south intersection fot about a city block. This officer further testified that there are stop and go lights on poles located at the northeast and southwest corners of the street intersection; that on the morning of the accident, the surface of the street was dry, and that there was a light fog or mist; that he found skid marks extending a distance of 29 and a fraction feet, in a southerly direction from the edge of the curb at the northwest corner of the intersection, and that there were three distinct skid marks, but that these skid marks did not lead to either of the vehicles; that the police car was 10 feet 6 inches north of the Ward Baking Company truck, and that a mail box on the west side of the sidewalk line on 19th avenue and north of the north walk of Washington boulevard, was damaged.

The driver of the Ward Baking Company truck testified to the effect that the vehicle driven by him was a one and one-half ton truck, in good condition, and that it had been overhauled a short time prior to the accident ; that he was familiar with the intersection in question; that just before approaching Washington boulevard, he was traveling at a speed of about 18 miles an hour, that he could stop his truck in 18 feet, and that the left side of his truck was in the center of the highway; that there was some shrubbery on the southeast corner of the intersection; that his seat in the truck was about 8 feet from the ground, and that he could see over the shrubbery mentioned; that he observed the stop and go sign about 50 feet south of the intersection, that he glanced to the right and left, saw nothing coming, and kept watch for the stop and go signal, and that the light turned green shortly before he proceeded north; that the pavement was dry and that it was daylight and the visibility was good. He also testified to the effect that when he first saw the police car, which was after he had proceeded to about the center of Washington boulevard, he attempted to stop, but was struck before he could do so.

The defendant Bartunek, the driver of the police car, was called by plaintiff, and he described the route taken by the car up to its approach to the intersection where the accident occurred, and stated that at that time, it was misty and foggy; that as he approached the intersection of 19th avenue and Washington boulevard, he observed that the stop and go lights were working; that as he approached the intersection going west, he observed the green light for the east and west traffic when he was about 200 feet from the intersection; that the vehicle with which he collided did not stop at all and came from the south on his left-hand side; that he then made an effort to slow down and stop and swung into 19th avenue, where he collided with the Dodge truck. He also testified to the effect that as he came west on Washington boulevard the siren on his car was blowing intermittently, and that it was blowing immediately prior to the accident; that at the time of the accident, he was proceeding about 30 miles an hour, but that just prior to that time, he had been going 60 to 70 miles an, hour, and that at the intersection he took a look both to the right and left to ascertain whether there was any traffic; that at this intersection his eyes were on the automobile ahead and the green light; that at that time, there was a car ahead of him proceeding at a high rate of speed about three blocks away. The above testimony was given by Bartunek as a witness for plaintiff and as a witness on his own behalf. In addition to the statements already made, this witness testified that at the time of the accident, he was in pursuit of a car which he ‘1 suspected as being someone the law desired to apprehend.” Frank Prazek, the other police officer, testified substantially to the same state of facts as that outlined by Bartunek.

Catherine Novy, the only witness produced by either party other than the bakery wagon driver and the two occupants of the police car, who had witnessed the accident, testified to the effect that a moment prior to the accident she was on the front porch of her home, which is the second house from the corner of the intersection where the accident occurred; that she saw the truck coming out of the intersection from the south, and that as it drove up to the intersection, it stopped for the light; that the light turned green and that the .truck started across Washington boulevard, and that she then “went into the house”; that the green light was for 19th avenue going north and south; that the truck was going very slow; that it was a bright morning, and she saw the man standing on the northwest corner, close to the edge of the sidewalk towards 19th avenue. She identified the truck as a bakery truck. She testified to the further effect that “at that moment,” evidently meaning the time when she witnessed the events just related, she turned and went into the house, and “just then” heard a crash; that she immediately went back on the porch and for the first time saw the police car as it hit a tree.

In view of the evidence, and in view of the fact that the jury saw and heard the witnesses, we feel that we should not disturb the verdict in favor of the Ward Baking Company.

The question then arises as to whether or not, under the law, the city of Berwyn can be held liable in this case. Counsel for the municipality contend that a municipal corporation performing the duty imposed upon it as an agent of the State, in the exercise of strictly governmental functions, is not liable for injuries resulting from the negligence of its officers or agents, and insists that the evidence shows conclusively that at the time of the occurrence, the defendant, the city of Berwyn, a municipal corporation, through its police officer, the driver of the police car, was engaged in the exercise of a governmental function. In his brief, plaintiff’s counsel states that he concedes that if the police of the city of Berwyn were in “fresh pursuit” at the time of the accident, the city of Berwyn would not be liable to plaintiff. He contends, however, that because of the fact that the police were outside of the city of Berwyn at the time of the accident, even though they were in the performance of their police duty, that then and in that case the municipality is liable. The evidence discloses that the officers, while in the exercise of their police duty, were notified that a murder had been committed in a neighboring village, and that they should be on the lookout for a car containing the persons suspected of this crime. Shortly after receiving this message and while within the city of Berwyn, they observed a car going at a high rate of speed, containing persons who answered the description of those described to them over the radio, and they would have been derelict in their duty if they had not immediately used every effort to apprehend these people. We will take judicial notice of the fact that the village of Oak Park, through which they went, is immediately north of and adjacent to the city of Berwyn, that the village of Forest Park, through which they were also compelled to go in following these suspected persons, is immediately west of and adjoining Oak Park, and that the village of Maywood, in which the accident occurred, is a short distance west of Forest Park, and that all the territory through which the police passed is in Cook county. The evidence clearly discloses that at the time the accident occurred, the officers were still in pursuit of this car. An act to define police districts, and the powers and the duties of the police therein (Ill. Rev. Stat. 1937, ch. 24, secs. 421 and 422 [Jones Ill. Stats. Ann. 21.447, 21.448]) provides:

“421. That the territory which is embraced within the limits of adjoining cities, villages and incorporated towns, within any county in this State shall be a police district.

“422. It shall be lawful for the police of any city, village or incorporated town in such district to go into any part of such district to suppress riot, to preserve the peace and protect the lives, rights and property of citizens, and for such purposes it shall be the duty of the mayor of any city, the president or the president and board of trustees of any village or incorporated town in such district, and the chiefs of police therein, to use the police forces under their control anywhere in such district.” Under this statute, the police of the city of Berwyn were empowered to and it was their duty to do just what they did. We are of the opinion that the contention of the plaintiff is without merit.

The judgments against the city of Berwyn and Bartunek are reversed, and the judgment for costs in favor of the Ward Baking Company is affirmed.

Judgment against city of Berwyn and Bartunelc reversed.

Judgment for costs in favor of Ward Baking Company affirmed.

Hebel and Denis E. Sullivan, JJ., concur.


author: Mr. Justice Hebel

text:
    Central Trust Company of Illinois, Appellee, v. Elizabeth Harvey et al., Appellants.
    Gen. No. 40,032.
    Heard in the third division of this court for the first district at the April term, 1938.
    Opinion filed November 30, 1938.
    Edward G. Berglund, of Chicago, for appellants.
    William J. Flaherty, of Chicago, for appellee; John F. Cashen, Jr. and James Conger, both of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

The action in the superior court of Coble county, was commenced by the Central Trust Company of Illinois, as trustee under the last will and testament of John C. Chambers, deceased, by filing its complaint to have said will construed, which is the subject of this litigation. Most of the beneficiaries mentioned in said will, including all of the life tenants, all of the charities receiving about four-sevenths of the principal, upon the death of the testator’s widow, and six of the eight residuary legatees, filed their appearances and answers to the bill of complaint. On April 26, 1937, Charles H. Albers, as receiver for the Central Republic Trust Company, filed his supplement to the original bill, by leave of court, and obtained a rule on all parties to answer, which was complied with. Charles H. Albers, as receiver, also filed a petition to have the account which he filed on behalf of himself, as receiver, and on behalf of the Central Republic Trust Company, as trustee, approved, and to have a successor trustee appointed. The court entered an order on April 26, 1937, requiring all parties to file objections to the receiver’s account within 10 days or that the same stand as approved. Objections to the account were filed but later withdrawn.

On June 8, 1937, by leave of court, the defendants, Elizabeth Harvey, Ida Harvey, Lessie Harvey, and Ralph R. Harvey, filed their cross-bill for the construction of said will, making Mary Alice Chambers and Kathleen Clarice Chambers, minors, parties defendant, who were the children of Edwin Chambers, mentioned in the will as a nephew of John C. Chambers, deceased, and who are the only grandchildren of the late testator, John C. Chambers.

Certain of the life tenants represented by counsel signed and delivered to the chancellor in the trial court a petition praying that the court appoint not an individual as successor trustee but the Trust Company of Chicago, or any other trust company qualified under the Illinois statutes to do business in Chicago. There also was introduced in evidence before the trial judge a signed letter of the Trust Company of Chicago, showing that it would accept its appointment as successor trustee, if appointed. After several hearings the court appointed E. Gr. Swanson as successor trustee to the trust created by the last will and testament of John C. Chambers, deceased. It is from that decree, which was entered on November 12,1937, this appeal is taken.

In the decree appointing E. Gr. Swanson as successor trustee, the court dismissed the Central Republic Trust Company and also Charles H. Albers, as receiver out of the case; approved the accounts of the latter, and ordered that Charles H. Albers be indemnified by E. Gr. Swanson, successor trustee, against any further claims which might arise against the Central Republic Trust Company and Charles H. Albers, as receiver, and the court reserved jurisdiction over the successor trustee to approve the accounts of the successor trustee annually. The court further ordered that all assets of the trust be delivered immediately to E. Gr. Swanson, as successor trustee, and that out of the income of the trust estate E. Gh Swanson, as successor trustee, pay the premium of the $35,000 surety bond which he furnished regarding the trust estate.

The defendants contend as a matter of law, it was an abuse of discretion to appoint E. Gr. Swanson, successor trustee under the last will and testament of John C. Chambers, deceased, disregarding the unanimous written request of all the attorneys of record for the beneficiaries mentioned by name in said will, asking that the court appoint the Trust Company of Chicago, or any other trust company qualified under the law to do business in Chicago.

The defendants submit to the court that the chancellor in the trial court, having authority to appoint a successor in trust under the last will and testament of John C. Chambers, deceased, abused his discretion in appointing E. G-. Swanson, summarily in disregard of the unanimous written request of all attorneys of record for the beneficiaries mentioned by name in the last will and testament of John C. Chambers, deceased.

The question to be considered is whether the court was justified in appointing a successor in trust to take the place of the trustee who resigned and who had been appointed under the last will and testament of John C. Chambers, deceased, when all the parties who were beneficiaries under the terms of the will recommended the appointment of the Trust Company of Chicago, or any other trust company qualified under the law to do business in Chicago.

The testator in drafting his will named these various beneficiaries and, of course, they are interested in the litigation, and it does not' seem reasonable that the court should disregard the recommendation made by the beneficiaries of the appointment of a successor trustee to take the place of the trustee named in the last will and testament. It is rather unfortunate that the court did not permit the defendants in this action to present their reasons for recommending the appointment of a trust company, or hear objections to the suggestion of the court that E. Q-. Swanson be appointed.

As we have intimated in the statement of facts, this is a bill to construe the will, and under the terms of the will the provisions are to be performed and carried out by a successor trustee, and while we have not the terms of the will before us on this appeal, other than as alleged, we assume that the performance of this duty will require a reasonable time in which to carry out the intention of the testator.

A case which has been called to our attention by the defendants is that of Cohen v. Central Republic Trust Co., 282 Ill. App. 569 in which this court filed an opinion upon a question similar to the one here before us. The words used by this court are:

“Plaintiff says that the court was justified in selecting a trustee of its own because the parties could not agree upon a suitable person. It is doubtful whether the selection made can be called the selection of the court alone. The person appointed was proposed by plaintiff. From an exhibit attached to a petition subsequently filed by plaintiff it appears that the individual bondholders were polled and asked to state their preference as to a successor-trustee. No one resisted the selection of City National Bank and Trust Company by the bondholders’ committee and the owner of the equity, or suggested the appointment of another trustee. The court seemed to have acted upon the objections made in argument by plaintiff’s attorneys. In view of her doubtful standing in court and her meager interest, these objections should not have influenced the court. We hold that it was an abuse of discretion to appoint Howard K. Hurwith successor-trustee in opposition to the expressed reqommendation and desires of the owner of the fee and the holders of 93 per cent of the outstanding bonds, and that the chancellor should, in accordance with this request, have appointed the City National Bank and Trust Company of Chicago as successor-trustee. Strauss v. Rogers Park Bldg. Corp., 281 Ill. App. 612 (Abst.).”

In litigation of the character before us, it would be proper to consider the interests of the parties who are beneficiaries under the terms of the last will and testament and their desire as to who would manage the property in which they are interested, and it is but reasonable to presume they would be interested in the selection of an appointee who would meet the expectations of the litigants and who would properly administer his duties as successor trustee. While there is nothing in the record which would suggest that E. G. Swanson is subject to criticism, still the court should have considered the interests of the beneficiaries under this will and given them the right to present their views on the selection of a successor trustee under the terms of the provisions of the last will and testament of John C. Chambers, deceased.

From all the facts before us in this case we are of the opinion that the court abused its discretion in making the appointment of the successor trustee, E. Gr. Swanson. It therefore will be necessary to reverse this cause with directions to the court to consider the matters that may be presented by the parties in interest in the selection of a successor trustee to be appointed.

There is one other question in the record which must be considered and that is the question of the dismissal of the trustee and the receiver as parties, as well as the approval of the account which was made at the time, and which was considered by the court and approved. We believe it will not be necessary to go into this question again, for it seems that no objections have been made, or called to our attention, to the part of the order that the trustee, as well as the receiver appointed for this trustee, be removed and that the account filed be approved, and for the reason that there is nothing here which would cause this court to hesitate as to this question, it seems but proper under the circumstances that this part of the order should be approved. The decree, therefore, in so far as the appointment of E. Gr. Swanson is concerned, is reversed and the cause remanded to the court with directions- to!hear the parties; and that part of the order dismissing the trustee and the receiver appointed for the trustee is approved and the order approving the account of the receiver is affirmed.

Affirmed in part and reversed in part.

Hall, P. J., and Denis E. Sullivan, J., concur.