text:
    Marguerite E. Schoen, Appellee, v. Henry Wolfson, Appellant.
    Gen. No. 8,514.

      Opinion filed November 4, 1931.

      Hoopes & Pefferle, for appellant.
    Knotts & Knotts, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

Marguerite Schoen, appellee, plaintiff in the court below, recovered a verdict and judgment in the sum of $4,500 against Henry Wolfson, appellant and defendant, as damages sustained in an automobile collision on November 28, 1929.

The declaration consists of but one count and charges, in substance, that while appellee was riding in an automobile then owned and being driven by her husband at a point about two miles southeast of the City of Carlinville, Illinois, on State highway route No. 4 with due care and caution and while she was also exercising due care and caution for her own safety, appellant carelessly and negligently managed and drove his said automobile in such an improper and dangerous manner that it ran off the paved portion of the highway and that he then quickly and sharply turned the automobile to the left at great speed across said pavement against the automobile in which she was riding whereby she was thrown with great force and violence against the front and side parts thereof and was struck by divers broken and flying pieces of the same; that by means thereof her lower jaw was broken and shattered, her right arm was broken, a portion of her tongue was cut out and bitten off, her lower lip was twice deeply cut and partially paralyzed, her knees cut and bruised and her nervous system greatly shocked and injured.

The accident happened on Thanksgiving Day, November 28, 1929. Appellee and her husband, Adolph Schoen, together with their four children, three girls and one boy, were riding in Mr. Schoen’s car on State highway No. 4 toward the City of Girard. The accident occurred about two and a half miles southeast of Carlinville. At this point the State highway, known as Route No. 4, runs in a northwesterly and southeasterly direction, and consists of a concrete road 16 feet wide with dirt shoulders on either side 9 or 10 feet wide and the usual depressions or ditches running alongside either shoulder. The car in which appellee was riding was proceeding in a northwesterly direction on the right hand side of the road at a speed of between 25 and 30 miles an hour. The automobile driven by appellant was proceeding in a southeasterly direction on the right-hand side of the pavement. The evidence for appellee tends to show that as the two cars approached each other, and when they were about 75 or 100 feet apart, the one driven by appellant ran off the south side of the pavement onto the shoulder so that the two right wheels were on the shoulder for a distance of between 15 and 40 feet according to the judgment of the different witnesses, and appellant in attempting to bring his car back onto the highway turned it to the left and ran it directly across the highway into the car in which appellee was riding causing the collision and the injuries to appellee. In the car with appellant were his wife, three children and an adult young lady, none of whom testified at the trial except appellant himself. There was some snow on the pavement and it had been thawing mailing the same wet and somewhat slippery. Appellant testified that he first saw the car in which appellee was riding when it was about 1,000 feet from him and that he was driving about 25 miles an hour prior to and at the time of the accident; that his car never got off the pavement onto the shoulder at all and that before the time of the accident it had commenced to skid and it zigzagged back and forth across the road and had turned completely around three or four times. There are many contradictions in his testimony. At one time he testified that he had been skidding for a distance of three or four city blocks and another time he testified that he didn’t think he made any move forward at all but kept skidding in the same place. His testimony that his car was skidding on the pavement before the accident is refuted by every, other witness in the case including two disinterested witnesses who were riding in a car following the one in which appellee was riding. In one part of his testimony he stated: “I tried to straighten it out and I was helpless. I couldn’t on account of the slippery condition of the road., It went around perhaps two or three times and then shot across the road and if it wasn’t for the. approaching car there my car would have stopped on account of the soft dirt on the shoulder, or perhaps it would have gone into the ditch. This man Sehoen came and got in my way. ’ ’ The testimony of all of the other witnesses in the case tended to show that there was no such skidding of appellant’s car; that.the right wheels did go off on the south shoulder of the road; that appellant in attempting to get the wheels back on the pavement jerked the front wheels so far to the left that either on account of the speed at which he was driving or the slippery condition of the pavement the car shot directly across the pavement into the car in which appellee was riding. There is not a scintilla of evidence tending to show that appellee’s husband or herself were guilty of any contributory negligence whatever. The husband of appellee was driving his car on the proper side of the highway at a slow rate of speed and could not have anticipated that appellant’s car would suddenly dart across the highway at right angles and run into his car.

The fourth instruction given on behalf of appellee is as follows:

“4. You are further instructed by the court that if you find the issues for the plaintiff in the case of Marguerite E. Sehoen against Henry Wolfson, then in assessing the damages of said plaintiff, if any, you may and should take into consideration the nature and extent of the physical injuries received by her in the automobile collision in question and the pain and suffering she has endured and will in the future endure by reason thereof, if any such injuries and pain and suffering are shown by the evidence; also the permanent injuries and scars she has sustained by reason of the automobile collision in question, if any such injuries and scars are shown by the evidence; and from these considerations, together with all the other evidence in the case, you should assess said plaintiff’s damages, if any, at such sum as you may find from the evidence will fairly compensate her for the actual damages she has sustained, if any, as the direct result of the automobile collision in question.” It is contended by counsel for appellant that it was improper for the jury to assess any damages on account of any scars which appellee may have received from the accident.

The virtue of an instruction depends upon the facts in the case to which it is applied. The evidence shows that appellee had two lacerations through the lower lip a little to the left of the center of the chin which extended through and into the mouth. They were about an inch and a quarter long. She had a compound fracture of the lower jaw to the left of the mid-line ; there is a great amount of scar tissue where the cuts were on the jaw, both external and internal, and at the site of the fracture along the gum margin; it is a permanent condition and interferes with the use of the lower lip; the joint is extremely sensitive at the point of this scar as is also the tooth near the site of the fracture; in opening the mouth there is a slight drawing of the fractures and a slight drawing of the lower lip to the left of the center with reference to the corner of the mouth; the jaw bone has united at the site of the fracture and there is a considerable amount of callous and scar tissue; the scar tissue is sensitive and painful; there is no remedy for that because of the scar tissue at or near the site of the fracture where there is an opening in the bone through which a nerve passes; the nerve that passes through the opening in the bone is called the mental nerve; its function is to operate the lower lip and chin; the fracture is approximately at that part of the jaw bone and as a result of the union of this fracture and the scar tissue that was formed from the lacerated tissues this nerve is encased in that scar tissue causing it to be extremely tender and painful; it cannot be improved by treatment and is permanent; this nerve supplied the lower lip and the chin; as a result of the scar, there is an involvement of the lower lip and its use; the scar interferes with the motion of the lip; there is a drawing at the site of the scar when she opens and shuts her mouth; the scar extends from the portion of the chin and lower lip directly to the jaw -bone; the scar tissue runs from the jaw bone through; the scar tissue that goes through the jaw bone has attached the lip or part of the lip to the bone so that it has become immobile although she can smile and pucker up her lips; the nature of the involvement now is pressure from callous and scar tissue; she cannot masticate food and keep her lips closed well enough to prevent the drooling of saliva due to the drawing of the scar tissues.

Appellee herself testified, “My jaw and my scars are very sensitive; the jaw bone is not the same as it was before; it hurts now; at times there is a tingling feeling in there; I can only masticate my food on the right side of the mouth because my teeth are sensitive on the left side; at the time of mastication I have difficulty in retaining the saliva in my mouth and it runs down the corner of my mouth on the left side and I am unable to prevent that — there are times that it is going down my mouth that I do not know it until someone directs my attention; it seems as though my face on that side is lower than on the other side and my chin where these scars are is tight.”

We have mentioned sufficient of the facts to show that the scars referred to in the instruction were not mere physical disfigurements of the face but were actual physical conditions resulting from the fracture of the jaw and the lacerations of the lips which bore directly upon the . use of the jaw and the lips impairing the functions thereof and also upon the pain and discomfort of appellee. The instruction does not suggest that any damages might be awarded for future humiliation or mental anguish on account of the disfigurements of the face by reason of the scars, and in view of the facts above noted, we do not believe the jury could have been misled in awarding any damages for disfigurements of the face. In fact, there is nothing in evidence which tends to show that there were any material disfigurements caused by the scars. Counsel for appellant rely on the case of Cullen v. Higgins, 216 Ill. 78. In that case the court said: “The first instruction given on behalf of appellee informed the jury that in estimating her damages, if they found in her favor, they might take into consideration whether or not she had been ‘marred physically. ’ The jury, we think, would understand the word ‘marred,’ as used in the instruction, to mean the same as the word ‘ disfigured, ’ and that the instruction in the form in which it was framed should not have been given to the jury. ’ ’ The instruction in that case is not set out in the opinion and it is uncertain in what form it was framed or what the facts were as to the extent the plaintiff there was “marred physically.” In the case of Illinois Cent. R. Co. v. Cole, 165 Ill. 334, two instructions given for the plaintiff were considered by the court. One of them defining the measure of damages contained this clause: “and you may also consider whether or not he has been permanently injured, and to what extent, and also to what extent, if any, he has been injured or marred in his personal appearance, and to what extent, if any, he may have endured physical and mental suffering as a natural and inevitable result of such injury.” In discussing the propriety of remarks made by counsel for the plaintiff in his argument the court held: “These remarks of counsel are improper to the extent that they seek to have the jury infer that their verdict might include damages for future mental anguish which might be suffered by the plaintiff from a contemplation of what might occur. This is not the law nor is it a proper element of damage.” The court then, after holding that the error in regard to said remarks was not well taken because no objection had been made thereto, further states: “No discussion of the two instructions given for the appellee is necessary. They in substance state correct principles of law. We have no right to surmise that the jury disregarded these plain instructions of the court and based their verdict on the improper remarks of counsel in argument.”

The scientific term for a scar is “cicatrix” and is defined as a mark left by a sore or wound. It is hypertrophic when it is a hard, rigid tumor formed by hypertrophy of the tissue of a cicatrix, and is vicious when it causes a deformity or impairs the function of a part. (The American Illustrated Medical Dictionary. Dorland.) The evidence shows that the scars in this casé come under the latter' classification of vicious. There was no error in the instruction on account of the inclusion of the scars as an element of damages.

Instruction No. 11 given on behalf of appellant defines what negligence is under the law. Instruction No. 12 instructs the jury that the plaintiff cannot recover unless they believe from the evidence that she has proved by a preponderance of the evidence, first, that she was exercising ordinary care for her own safety at and just prior to the time of the injury in question; second, that the defendant was guilty of negligence in the manner charged; and third, that such negligence was the proximate, direct cause of the injury to the plaintiff. Instruction No. 14 stated that if the jury believed from the evidence that the plaintiff by using her faculties with ordinary and reasonable care in looking out for danger and could have warned her husband Adolph Sehoen in time to have avoided the injury on the occasion in question and that she negligently failed to do so and thereby contributed to the injury, then she cannot recover in this case. Instruction No. 19 told the jury that if they believed from the evidence that the collision in question was not the result of negligence on the part of the defendant but was the result of an unavoidable accident then they should find the defendant not guilty.

The court refused to give the following instruction:

“The court further instructs the jury that if you believe from the evidence that the direct and immediate cause of the collision in question was the condition of the road in question at the time in question and that said collision was not caused by negligence on the part of the defendant in such case you should find the defendant not guilty.” There was no error in refusing to give this instruction. The instructions which were given, especially No. 19, covered the same principle announced in the refused instruction. Another instruction which the court refused to give -for the defendant directed the jury that if they believed from the evidence that the plaintiff was guilty of any negligence which contributed to the injury in question even though such negligence be slight as compared to the negligence of the defendant, if any, then the plaintiff could not recover. It is insisted by counsel for appellee that this instruction attempts to revive the old discarded doctrine of comparative negligence, and it is as strenuously insisted by counsel for appellant that the true meaning of the instruction is the antithesis of that doctrine. Without attempting to discuss this question we hold that the instructions given by the court covered sufficiently the issue of contributory negligence. Another instruction refused by the court was to the effect that in considering the amount of damages the jury should not take into consideration any disfigurement resulting from the injury. If this instruction states a correct proposition of law in the form in which it is drawn, which is unnecessary to decide, it but negatives an element of damages for which no claim was made and it was not error to refuse it.

It is also assigned as error that the amount of the verdict is excessive. In addition to the compound fracture of the lower jaw and the injury resulting from the formation of the scar tissue in connection therewith, plaintiff’s tongue was lacerated and laid open and a piece bitten off; she had a laceration about one and a half inches long on the left wrist; she had a comminuted fracture of the lower end of the ulna of the right forearm which was an irregular, jagged break with small particles of bone entirely broken off; her knees were injured; she suffered intense pain and the arm which was fractured at times gives her pain; she remained in the hospital two weeks and at a friend’s home for two more weeks during which time she received constant nursing and after she returned to her own home was unable to work for eleven weeks. Under these facts and taking1 into consideration the permanent character of the injury to her jaw and mouth by the formation of the scar tissue we do not feel that we should disturb the judgment of the jury on the amount of damages.

We find no reversible error in the record and the judgment of the circuit court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Eldrbdge

license: Public Domain

text:
    The People of the State of Illinois for the Use of Edward G. White, Administrator of the Estate of Edward C. Cady, Appellant, v. Samuel H. White et al., Appellees.
    Gen. No. 8,521.
    Opinion filed November 4, 1931.
    Jesse Heylin and Wm. C. Worley, for appellant; Bussell E. Townsend, of counsel.
    Burnett M. Chiperfield, Claude E. Chiperfield and Bobert B. Chiperfield, for appellees.
   Mr. Justice Eldrbdge

delivered the opinion of the court.

This is an action of debt brought to recover damages for a breach of the official bond of Samuel M. White, constable. The bond was in the penal sum of $2,000 and was executed by Samuel M. White as principal and appellees H. H. Swartz and John Luman as sureties and the suit was originally brought against White, Swartz and Luman as defendants. Before the case was tried White died whereupon leave was granted to proceed against the surviving defendants Swartz and Luman and an amended declaration was filed to which a demurrer was sustained and appellant abiding by its declaration, judgment was entered against the plaintiff, appellant, here. °

From the facts as alleged in the declaration it appears that one Boden was a justice of the peace for the town of Young Hickory in the county of Fulton; that the village of London Mills is situated partly in Fulton county and partly in Knox county; that Samuel M. White was a constable in the town of Young Hickory in Fulton county; that one Frank M. Graver instituted a replevin suit before said justice of the peace against the beneficial plaintiff Edward Gr. White as administrator of the estate of Edward C. Cady, deceased, for the possession of an automobile; that a proper complaint was made and the writ of replevin was delivered by said justice of the peace to the constable, Samuel M. White, to serve; that by inadvertence or mistake the venue on the writ of replevin was laid in Knox county and the defendant in the replevin suit was summoned to appear before the said justice of the peace at his office which was in Fulton county; that the constable served the writ of replevin by taking’ possession of the automobile and delivering it to the plaintiff in the replevin suit; that when the case came to trial the defendant by his attorney limited his appearance for the purpose of entering a motion to dismiss said suit for want of jurisdiction “and for other causes appearing on the record.” On motion of the plaintiff in the replevin suit the court allowed the plaintiff to amend all the files in the cause by striking out the word “Knox” wherever it appeared therein and inserting in lieu thereof the word “Fulton” and overruled the motion of defendant to dismiss the suit, heard the evidence of the plaintiff and entered a judgment finding that the latter was entitled to the possession of the automobile.

The theory of the declaration is that the justice of the peace never acquired any jurisdiction of the person of the defendant in the replevin suit and that the constable acted without any authority of law in seizing the automobile in question.

The principal cause of demurrer is that under the allegations of the declaration the appearance of the defendant in the replevin suit was a general appearance and not limited in the motion to dismiss the suit solely on the ground of lack of jurisdiction but embraced as reasons for the motion, “other causes appearing1 on the record.” A number of other points are advanced for sustaining the demurrer to the amended declaration, but, in our opinion, it is necessary to notice but the one above mentioned because if the justice obtained jurisdiction of the defendant in the replevin suit the action on the constable’s bond necessarily fails. It is a universal rule that where one desires to object to the jurisdiction of his person he must limit his appearance to that purpose alone for if he appears for another purpose he waives the objection to jurisdiction of his person and is held to have appeared generally. Supreme Hive Ladies of Maccabees v. Harrington, 227 Ill. 511. In the case cited it was also held: “If the defendant appears and makes a motion or files a plea or takes any other step which the court would have no power to dispose of without jurisdiction of the defendant’s person, such action on the part of the defendant will be a submission of his person to the jurisdiction of the court and will be a waiver of any objections to the jurisdiction. He cannot, by his voluntary action, invite the court to exercise its jurisdiction and at the same time deny that jurisdiction exists.” The motion made in the replevin suit by the defendant therein embraced other causes appearing on the record beside that of jurisdiction of the person of the defendant as reasons for the dismissal of the suit. By inviting the court by his motion to consider other reasons for the dismissal of the suit than that of jurisdiction which could not have been disposed of or determined without the jurisdiction of the defendant’s person the question of such jurisdiction was waived. Kelly v. Brown, 310 Ill. 319; People v. Smith, 281 Ill. 538; Louisville & N. R. Co. v. Industrial Board, 282 Ill. 136; Thomson v. Patek, 235 Ill. 341.

The appearance of the defendant in the replevin suit was a general one and the justice of the peace obtained jurisdiction of the person of the defendant in that case. It follows that the circuit court did not err in sustaining the demurrer to the declaration and the judgment is affirmed.

Affirmed.


author: Mr. Justice Eldredge

text:
    M. B. Grimes, Appellee, v. Russell B. Rodgers, Appellant.
    Gen. No. 8,524.

      Opinion filed November 4, 1931.
    Graham & Dysert and Steely & Steely, for appellant. • •
    Jones, MoIntire & Jones, for appellee.
   Mr. Justice Eldredge

Appellee M. B. Grimes, as sheriff of the county of Vermilion, obtained a judgment in the sum of $864 in an action of trover for the conversion of certain corn which had been levied upon by appellee by virtue of three executions issued upon three judgments rendered in the circuit court of said county in favor of the Commercial Trust & Savings Bank of Danville, Illinois and against W. H. Hill and Marguerite Hill, his wife.

On June 25, 1927, W. H. Hill owned a farm of 160 acres situated in said county.. On this date he executed his note in the sum of $100 payable to the Commercial Trust & Savings Bank of Danville 90 days after date. On July 9, 1927, he executed a note for $470 payable to said bank 90 days after date and on August 17, 1927 he executed a $300 note payable to said bank 90 days after date. On September 6, 1927, W. H. Hill was declared a spendthrift by inquest in the probate court of said county and one John Saults was appointed conservator of his estate. At this time Winfield Scott was a tenant on said farm paying grain rent under a verbal lease and continued as such tenant during the following years and was such tenant at the time of the trial of this suit. On January 9, 1929, judgments were taken by confession against Hill on the above mentioned notes for the respective amounts due thereon, and executions were issued thereon on said day and returned “No property found.” Alias executions were issued on August 13, 1929 and were returned “No property found.” Pluries executions were thereafter issued, one on November 12, 1929 and the other two on November 15, 1929. These last three executions were levied by appellant upon 12,000 bushels of corn, in the crib located on the farm of said Hill hereinbefore mentioned on the 4th day of December, 1929, and a notice of such levy was nailed on said crib. The corn levied upon was the landlord’s portion of the rent.

On September 4, 1929, the following contract was entered into by John Saults and appellant Bussell B. Bodgers doing business as the Bodgers Grain'Co.:

“Sept. 4, 1929.
“This is to certify that I, John Saults have this day contracted and sold to Bodgers Grain Co., 1400 bushels of y. corn at 85 cents per bushel (-lbs. per bushel) to be clean, sound and dry and to grade No. 4 to be delivered into Muncie elevator or cribs at Muncie, Ill., on or before the 1st day of January, 1930.
“If damaged or inferior grain is delivered and accepted on this contract, the market difference at which such grain is selling under the contracted grade day of delivery shall be deducted from the contract price. Any extension of time to be at buyer’s option.
“I certify that this grain is in my possession and free of all liens and incumbrances.
Johh Saults.
“Beceived of State Bank of Oakwood, Oakwood, Ill., Three Hundred Dollars to apply on this contract.
John Saults.”

On September 28, 1929, appellant paid the balance due on said contract in the amount of $800. ' On December 31, 1929, Saults caused to be shelled and delivered to appellant the corn in question which was two weeks after it had been levied upon by appellee.

On the date of the contract for the sale of the corn executed by Saults and appellant the corn was growing in the field, unmatured and unhusked. It is contended by appellant that the suit was improperly prosecuted to judgment in the name of M. B. Grimes as sheriff for the reason that his term of office had ex-spired. The suit was commenced January 7,1930. The term of Grimes as sheriff expired December 1, 1930. The trial was had on December 17 and 18, 1930. Cahill’s St. ch. 125, jf25, provides: “Every sheriff going out of office at the expiration of his term, and having any execution or free bill which he may have levied but not collected, . . . may proceed and collect the same in the same manner as if his term of office had not expired. ’ ’

We held in the case of Clark v. Main, 232 Ill. App. 640 (opinion unpublished), that a public administrator after his term had expired was authorized to settle an estate then pending and to bring a suit to recover damages alleged to have been sustained by reason of the death of said deceased and to continue administration of any estate upon which he might have entered when his term of office expired. In the case of Ramsay v. Van Meter, 300 Ill. 193, the court held that where the term of a public administrator expired, or he is removed from office, his powers as such officer cease when his successor qualifies, and he has no further duties to perform except to complete the administration of estates theretofore begun by him, in which he continues in the capacity of an ordinary administrator. By analogy in our opinion and in view of the statute above quoted this suit was properly maintained by the sheriff in view of the fact that the cause of action accrued to him as such sheriff and the suit had been commenced by him in his official capacity prior to the time of the expiration of his office.

Another error assigned is that when Hill had been declared a spendthrift and a conservator appointed for the administration of his estate, that the power of attorney to confess judgment in the notes respectively became void and that the judgments were a nullity. The notes were executed by Hill before he was declared a spendthrift. The power of attorney to confess judgment is a part of a note itself and is irrevocable. Johnson v. National Bank of Mattoon, 320 Ill. 389. In this case it is held: 1 The power of attorney to plaintiff in error to confess judgment was irrevocable during Hoots’ lifetime. The judgment could not have been entered under the power after his death because no valid judgment could be rendered against a dead man, but if the power was a valid one when executed by Hoots it was irrevocable by him and was not revoked by his being adjudged insane. ’ ’

It is claimed by appellant that the title to the corn in question passed from Saults to appellant by virtue of the contract executed by them on September 4, 1929. To this we cannot agree. The contract does not purport to be executed by Saults as conservator but by himself as an individual. There is nothing in this contract which designates what particular corn is to be sold or was sold or even where it is located. Under this contract Saults could deliver any corn not raised on the Hill farm that he might personally have possessed at the time for delivery. Moreover, appellant never by any act of his, manual, symbolical, constructive or otherwise took possession of the corn before the levies of the executions. He seeks to avoid this on the ground that where goods are ponderous and incapable of being handed over from one to another, there need not be a manual delivery of the same. This rule may obtain as between the purchaser and seller but where the rights of creditors are involved there must at least be a symbolical delivery. In the case of Lefever v. Mires, 81 Ill. 456, the court held: “The rule undoubtedly is, as contended by appellant, where the goods are ponderous or bulky, or cannot be conveniently delivered manually, there may be a symbolical delivery; but we are unable to see why there could not have been an actual delivery of, at least, the cow, here, even if it shall be conceded the shocks of corn and hay were too ponderous for manual delivery. But what act tending to show symbolical delivery can be claimed to have been proven? We have been unable to find evidence of any. It does not appear that the property was present when the contract for sale was made, or that anything else was done between the parties than merely to make the agreement to sell. The property remained in the possession, and, so far as the entire world could see, was still owned by Brewer, after as well as before the sale. This, as against creditors, in our opinion, was insufficient to pass the title. ’ ’

A very complete discussion of this question is found in the case of Jacobson v. Patterson, 190 Ill. App. 266, and it was there held that a purchaser of corn in a corn crib upon which he had made payments, where it appeared that the purchaser did not go to the corn, or nail up the crib, or post any notice of-his purchase upon it, or put a custodian in possession, or take any of the corn away, that he could not properly prevail as against the sheriff representing execution creditors.

The point is made that to acquire a lien on personal property an execution must be issued, placed in the hands of an officer, and levied upon the personal property. A lien attaches to personal property as soon as an execution on the judgment is delivered to the hands of the sheriff. Cahill’s St. ch. 77, If 9. Saults testified that after the sheriff had levied the executions on the corn he asked the latter what he would do if he was in his place and that the sheriff told him he would deliver the corn to appellant and that by so doingappellee waived the lien; Appellee emphatically denies that he made any such statement and this issue of fact is settled by the verdict of the jury.

We have examined the instructions given on behalf of appellee and refused on behalf of appellant which are criticized by appellant. Eight instructions were given for appellant and fourteen were refused. The instructions given on behalf of appellant in our opinion fully protected all his rights. But two instructions were given for appellee and we think are not subject to the criticisms made thereto.

We find no reversible error in the record and the judgment is affirmed.

Affirmed.


author: Mr. Justice Shurtlefe

text:
    G. C. Gordon for the Use of Security Insurance Company, Appellee, v. Charles Current, Appellant.
    Gen. No. 8,504.

      Opinion filed November 4, 1931.
    H. M. Steely and H. M. Steely, Jr., for appellant.
    Lewman & Carter, for appellee.
   Mr. Justice Shurtlefe

delivered the opinion of the court.

This suit was instituted by appellee for the use of the ^Security Insurance Company, a corporation, before" a police magistrate of Vermilion county, to recover damages for the injury to an automobile, charged to have been caused by the negligence of appellant, in a collision. There was a judgment for appellee in the magistrate’s court and, upon appeal, a verdict and judgment for appellee in the sum of $360.80, in the county court of Vermilion county, from which this appeal is taken.

Appellant to reverse the judgment insists that a police magistrate had no jurisdiction to try a cause for injury to personal property, the result of negligence or a tort. Cahill’s St. ch. 79, 16, clause 2, confers jurisdiction upon justices of the peace, “In actions for damages for injury to real property, or for taking, detaining or injuring personal property.”

The contention of the appellant has been answered adversely by the Appellate Court of this district in a number of cases. In Griffith v. Pennington, 158 Ill. App. 314, suit was started before a justice of the peace to recover damages for injury to a horse occasioned by a collision. The court, in rendering its decision in that case, said:

“The statute specifically provides that justices of the peace shall have jurisdiction in actions for damages for taking, detaining or injuring personal property and this jurisdiction obtains whether the damages sought to be recovered for such injury are direct or consequential. The identical question here involved has been considered and determined by this court adversely to the contention of the defendant in Skinner v. Morgan, 21 Ill. App. 209; Northrup v. Smothers, 39 Ill. App. 588; Smithley v. Snowden, 120 Ill. App. 86; C., C., C. & St. L. Ry. Co. v. McNutt, 138 Ill. App. 66; and we are content to abide the conclusion there announced. ’ ’

Doubtless the reason that these later decisions cited above differ from earlier cases cited by the appellant is disclosed by the case of Gallery v. Davis, 35 Ill. App. 619, in which case we find the following.:

“The statute of 1845 did not confer jurisdiction on justices in actions on the case, and it was so held in I. C. R. R. Co. v. Reedy, 17 Ill. 580. But the act now in force gives such jurisdiction in actions for injuring personal property, without specifying any class of injuries. This action is certainly of that kind, and the jurisdiction was rightly sustained. ’ ’

Appellant complains because the court did not, at the close of appellee’s testimony, instruct the jury to find a verdict for appellant. The basis of this complaint is that appellee did not offer or present any affidavit and statement by the Security Insurance Company that it was the bona fide owner of the claim and the facts how and when it became the owner under section 18 of the Practice Act, Cahill’s St. ch. 110,. jf 18, until just before appellee closed its ease in the county court. The showing of this proof has been held necessary in McKinnon v. Studebaker Sales Co. of Chicago, 245 Ill. App. 596. The affidavit is sworn to March 17,1930. The summons was issued by the police magistrate upon March 31, 1930. The record does not show whether this affidavit was presented to the police magistrate or not. The cause was in the county court for trial de novo. Upon the presentation of the affidavit, which is in proper form, appellant expressed no surprise and did not ask to withdraw a juror or continue the case. In Oberman v. Camden Fire Ins. Ass’n, 314 Ill. 264, it has been held that by section 39 of the Practice Act, Cahill’s St. ch. 110, H 39, amendments may be allowed in a civil suit at any time before final judgment, including a change of parties plaintiff, and by said section the adjudication of the court allowing such amendment is made conclusive evidence of the identity of the action. Appellant was in no way injured by the delay in presenting this affidavit and proof.

Appellant assigns error upon the court’s refusal to give the following instruction: ‘ ‘ The court instructs the jury that if you believe from the evidence that the collision and damage to plaintiff’s car was the result of an accident caused by the pavement being wet, and one, or both, of the cars skidded when the brakes were applied as they approached each other, and was not caused by carelessness or negligence upon the part of the defendant, but was the result of a mere accident, then the plaintiff cannot recover, and your verdict should be for the defendant, and you should find him not guilty. ’ ’ The jury had already been instructed at the request of appellant as follows: “That before the plaintiff can recover in this case, he must show and prove by a preponderance of the evidence that the collision between the cars was caused by the carelessness, or negligence, of the defendant, Current, and that he, plaintiff, at and just before the time of the accident was using and exercising due care and caution for his own safety and the safety of the car that he was driving ; and if the plaintiff has failed to prove or establish either of these elements or propositions by a preponderance of the evidence, then the plaintiff cannot recover, and your verdict should be for the defendant, and you should find him not guilty.” Two other instructions, also, given on behalf of appellant, pointed out the necessity of appellee establishing negligence by a preponderance of the testimony offered by appellee against the appellant, so that we are of the opinion that appellant was not prejudiced by the refusal of the court to give the added instruction. No instructions were offered or given in behalf of appellee.

Appellant presents a considerable argument upon the proofs tending to show that the highway was slippery and that the collision was the result of a pure accident, and that no negligence was involved. Appellant had been driving at the rate of 40 miles an hour and was several hundred feet behind a truck. He testified that when he saw appellee’s car approaching* him and coming past the truck he took his foot off the accelerator and let his car drift, and that his car had slowed down to 15 to 20 miles an hour, and that when he attempted to use his brake the car skidded and nearly turned around. Testimony was presented tending to show that appellant lost control of his car, and two witnesses testified that-appellant stated at the time that the accident was his fault. Appellant complains also that nearly all of the injured parts of appellee’s car were replaced by new parts and not repaired. The witness who repaired the car testified that the new parts were necessary and this testimony was not contradicted. All of these questions were for the jury to pass upon, and having read the testimony we cannot say that the verdict is ag’ainst the manifest weight of the testimony.

Finding no error in the record, the judgment of the county court of Vermilion county is affirmed.

Affirmed.


author: Mr. Justice Shurtleff

text:
    W. C. Wright, Appellee, v. Asbury M. Loring, Appellant.
    Gen. No. 8,523.

      Opinion filed November 4, 1931.

      Acton, Acton & Baldwin, Bearick & Meeks and Jones, MoIntire & Jones, for appellant.
    Walter V. Dysert, Hall & Holaday and Hutton & Clark, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an action of debt upon a penal bond. The bond involved is in the words and figures following, viz.:

Bond of Depositary Bank

Whereas, W. C. Wright of Bismarck, Illinois, has been duly elected by the Trustees of Schools of Township No. 21 North, Bange No. 11 West of the Second Principal Meridian, in Vermilion County, Illinois, as the Township Treasurer of said Township, and has duly executed a good and sufficient bond payable to said Trustees of Schools and conditioned upon the faithful discharge of his duties, and

Whereas, said Township Treasurer desires to deposit in certain State Banks, all moneys of which he is to have the custody and from which he is required to pay all lawful orders issued by the School Directors or the Board of Education of any School District in his Township; and

Whereas, since said Treasurer is required by law to give Bond to secure the payment of all such lawful orders, whenever sufficient moneys shall have come into his hands for such purpose, he feels that it is right and proper that, as part of the consideration for depositing Township funds, in said Banks, the Directors of each such Depositary Bank should execute and deliver to him, as such Township Treasurer, a good and sufficient Bond to secure the prompt payment, upon presentation of all lawful orders, of all moneys that he may have deposited in their Bank; therefore

Know All Men by These Presents, That we, the State Bank of Illiana, an Illinois Corporation, as principal, and A. M. Loring and D. L. Andrews, Directors of said Corporation, acting in their individual capacity, as sureties, are held and firmly bound unto W. C. Wright, as Township Treasurer of Township No. 21 North, Range No. 11 West of the Second Principal Meridian, and unto his successors in office, in the penal sum of $5,000.00 Dollars, good and lawful money of the United States to be paid to the said W. C. Wright, Township Treasurer aforesaid, or to his successors in office, for which payment well and truly to be made we bind ourselves, our heirs, executors, administrators, representatives and assigns, jointly and severally, firmly by these presents.

Dated this 2nd day of August, A. D. 1928.

Now, therefore, the condition of this obligation is such that if the above bounden State Bank of Illiana, or the above bounden sureties, or either of them, their heirs, executors, administrators, representatives or assigns shall well and truly pay or cause to be paid without delay, any and all lawful school orders which may be drawn against the funds on deposit in said bank, then the above obligation to be void, otherwise to remain in full force and virtue.

Signed, sealed and delivered by:

Illiana State Bank.
Fred R. Bell, Cashier
A. M. Loring (Seal)
D. L. Andrews (Seal)
State oe Indiana, 1 Warren County, j
I, Fred R. Bell, Notary Public in and for the County and State aforesaid, hereby certify that A. M. Loring and D. L. Andrews who are each personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that they signed, sealed and delivered the said instrument as their free and voluntary act, for the uses and purposes as herein set forth.
Given under my hand and notarial seal this 2nd day of August, A. D. 1928.
(Seal) Fred R. Bell, Notary Public.
My commission expires Nov. 16, 1930.

Pleadings

The suit when first filed, and the original declaration, was by the Trustees of Schools of Township Nó. 21 North, Range 11 West of the 2nd P. M., in Vermilion county, Illinois, a school corporation, and W. C. Wright, as Township Treasurer of Township No. 21 North, Range 11 West of the 2nd P. M., aforesaid, as plaintiffs against the State Bank of Illiana, a corporation, and Asbury M. Loring and D. L. Andrews, as defendants.

By numerous amendments, changes and dismissals, before the trial, the case was finally entitled and maintained by W. C. Wright, as Township Treasurer, aforesaid, as sole plaintiff, against Asbury M. Loring, as sole defendant. The pleadings were quite voluminous, before the issues were finally settled and issues joined. The case, however, was finally tried upon an amended declaration and the pleas and replications filed, presenting issues on said amended declaration.

The amended declaration consisted of two counts. The first count alleges in substance that there was a mistake in the name of the bank mentioned in the bond; that the name, “State Bank of Illiana,” as used in the bond, was intended to be “Illiana State Bank,” the true corporate name; that plaintiff, as treasurer, had deposited in said bank certain school moneys amounting to more than $5,000; that D. L. Andrews is a bankrupt; that the Illiana State Bank, D. L. Andrews and Asbury M. Loring, each signed and sealed the bond in question, which is set out in said first count; that at all times there was more than $5,000 of school money on deposit in the bank; that on June 14, 1930, the Illiana State Bank closed its doors and ceased to do business; that said bank has been in the hands of the Auditor of Public Accounts since that date.

The second count of the amended declaration alleges in substance that there was a mistake in the name of the bank, the same as in the first count, also the same general allegations with the following additional allegations in substance: that plaintiff had, by means of checks, at various times, withdrawn a portion of the deposits; that neither the bank nor its officers had made any objection to paying said checks; that on the day before the bank closed plaintiff made a verbal demand upon the cashier for the balance of his money on deposit; that said demand was refused; that the refusal was not based upon the form of the demand; also alleges that on June 14, 1930, the officers and directors of the bank, including Loring and Andrews, passed a resolution closing- the bank; also that on June 14, 1930, the Auditor of Public Accounts took charge of the bank and appointed Wilbur P. Craig as receiver; that thereafter the court appointed Craig as receiver; that Craig, as such receiver, has since had possession of the assets of the bank; also, that plaintiff had made a verbal demand upon the receiver for his money; that the receiver refused to pay him; that thereafter he filed a written claim with the receiver; that the receiver has not paid him; also that the bank, since June 14, 1930, has been and is insolvent; that because of said insolvency defendant waived all requirements by plaintiff to present any lawful school order.

Appellee in the declaration assigned eight various breaches of the bond by appellant.

There were various pleas by appellant, among which a plea under oath that the instrument was not his deed; that the bond had not been breached and a denial of damages. There were various replications, demurrers to a part of the same, rulings of the court and finally issues joined. There was a verdict and judgment for appellee in the sum of $5,000 and appellant has appealed.

We shall only give consideration to the substantial issues as brought to this court. The issues that appellant’s signature to the bond was a forgery has been abandoned. The chief contention on this appeal is, that the condition of the bond provides only that the bank shall well and truly pay or cause to be paid without delay any and all lawful school orders which may be drawn against the funds, and that in this respect the bond has not been breached. The proofs show that in various instances appellee drew funds from the bank by check, but that in no case was a formal school order, signed by school directors under Cahill’s St. ch. 122, jf 124 (section 124 of chapter 122 of Smith-Hurd’s Rev. Stat. 1929) ever presented to the bank and payment refused. This leads to the question as to what is meant in the bond by the term “lawful school orders,” and whether it is confined to the orders as described in said section 124. Must such orders, in form, be presented to the bank and payment be refused before there can occur a breach of the bond? There are various duties of the township treasurer and different funds of which he is the custodian. There áre the tax funds, the permanent township funds, the State distributive fund, sale of school property fund, the district teachers’ fund and possibly other funds. , School purposes mean anything those in charge had the right to do in regard to school purposes. (Words and phrases, 2nd ed. vol. 4, 69; Chicago & Alton R. Co. v. People, 205 Ill. 625, 629.) Cahill’s St. ch. 122, fl 71 (section 71 of chapter 122, Smith-Hurd’s Stat. 1929) provides: “The township treasurer shall be the only lawful depositary and custodian of all township and district school funds, and shall demand, receipt for and safely keep, according to law, all bonds, mortgages, notes, moneys, effects, books and papers of every description belonging to his township.” Section 72 provides: “The township treasurer shall keep the principal of the township fund loaned at interest,” etc., and provides the methods of loaning the moneys and funds. Some light is thrown upon this question by the preliminary clauses of the bond. It recites that appellee, of Bismarck, Illinois, has been duly elected by the trustees of schools of Township No. 21 North, Range No. 11 west of the Second Principal Meridian, in Vermilion County, Illinois, as the township treasurer of said township, etc., the facts of his qualification and giving bond, etc., and recites: “Whereas, said Township Treasurer desires to deposit in certain State Banks, all moneys of which he is to have the custody and from which he is required to pay all lawful orders issued by the School Directors or the Board of Education of any School District in his Township; and . . . he feels it is right and proper that, as a part of the consideration for depositing Township funds in said banks, the Directors of each said Depositary Bank should execute and deliver to him, as such Township Treasurer, a good and sufficient Bond to secure the prompt payment, upon presentation of all lawful orders, of all moneys that he may have deposited in their Bank,” etc. The preliminary clause and necessity is a bond “to secure prompt payment ... of all moneys that he may have deposited in their hank,” etc. It says also, “upon presentation of all lawful orders,” not necessarily when lawful orders are presented to the Bank, but merely upon their presentation — presumably to the treasurer. Neither does the condition of the bond require that any “lawful school orders” be presented to the bank, but its real requirement is that when “lawful school orders” are presented, presumably to the Treasurer, drawn against the funds in the Treasurer’s hands which have been deposited in the Bank or “on deposit in said Bank,” then the makers of the bond will well and truly pay or “cause to be paid,” the said orders. This does not require any order in form to be presented to the bank. The bond covers the payment of any lawful school order presented to the Treasurer, as required by law; the bank will cause it to be paid. What is a “lawful school order?” A form order, as provided by Statute, made by a Board of Directors, that is one. The Statute requires the Treasurer to loan the funds. That is a lawful school order by Statute and when a loan is effected it is the duty of the Treasurer to hand ovér the funds in some manner to the borrower, for which no special form of words or markings are pointed out in the Statute, nevertheless, it is a “lawful school order” just the same as an order made by the Board of Directors of a school district, although no particular form order is pointed out by statute. No particular form of order is pointed out except as to school district moneys. The Statute points out other school orders for which no particular form is provided, nevertheless they are equally “lawful school orders.” In no case, under the terms of the bond, must these orders be presented to the bank in form. The bond requires that the bank and sureties will cause them to be paid out of the funds on deposit. This payment may be by check or otherwise, as the parties may agree and determine. The moneys were placed in the depositary in a checking account to the credit of appellee, “Treas. Bismarck, Ill.” and this construction of the account was so established by the depositary bank and its board of directors, of which appellant was a member. Checks were cashed by the bank, drawn by appellee as school treasurer, and it is to be presumed that all the acts of this official were legal and lawful in the uniform line of his duty, unless the contrary is shown and it is to be presumed that all checks drawn by him as school treasurer were for lawful school orders, unless the contrary is shown. State National Bank v. Reilly, 124 Ill. 464. There is breach of a depositor’s bond where there is failure to make payment on demand; action may be brought against the sureties when such breach has arisen. 18 Corpus Juris, 594. Where the depositary has put it out of its power to fulfil the conditions of the bond, as by going into insolvency, no demand is necessary before action brought on the bond, and in any event a demand on the receiver is sufficient. (18 Corpus Juris, 595; Buck v. Eaman, 18 Ill. 529; Scott v. Armstrong, 146 U. S. 499.) There can be no question in this case as to the breach of the bond and the sufficiency of the demand. It is insisted that the verdict is excessive in the amount of damages allowed; that it cannot be determined what the actual loss will be until the Bank is finally liquidated. Such is not the rule. Appellee has been deprived of his entire deposit amounting to double the. amount of the bond. Appellee is entitled to the full amount of the bond. (Queenan v. Palmer, 117 Ill. 619, 630.)

It is objected on the part of appellant that it is not shown that Bell, the cashier, had any authority to sign the bond for the bank, and that the bank seal is not attached and. therefore appellee is not liable on the bond. But it was held in Trustees of Schools v. Sheik, 119 Ill. 579, 584:

“We have given the authorities bearing on the question due consideration, and we are not inclined to adopt the view held by the courts, that a bond signed by the sureties without the signature of the principal may not be binding upon those who execute it, as was held in the case cited from Missouri, and other like cases. If the sureties saw proper to bind themselves without the principal executing the bond and becoming bound, we think they might do so, and their undertaking is one that may be enforced in the courts by an appropriate action. The fact that the principal obligor in this case failed to sign the bond, was a mere technicality, which ought not to affect the rights of any of the parties concerned. In what way are the sureties injured by the omission of the principal obligor to sign the bond? If they are compelled to pay the trustees any sum of money on account of the default of the treasurer, they can recover the amount back from him whether he signed the bond or not. So far, then, as' they are concerned, they are in as good a position as if Beitz, the treasurer, had properly executed the bond. If Beitz is insolvent, a judgment in favor of the trustees, against him, could be of no benefit to the sureties.” (Same case, 10 Ill. App. 51.)

Some contention is made as to the name of the Bank set out in the body of the bond as State Bank of Illiana and purporting to have been signed under the name of Illiana State Bank. It appears that State Bank of Illiana is the correct name of the Bank. From what we have stated in this opinion 'it is needless to discuss this assignment of error.

Appellant assigns error that the verdict is against the manifest weight of the testimony and that the jury should have found that appellant never signed the instrument. Appellant does not argue this assignment of error.

The jury saw- and heard the witnesses and testimony and we cannot hold under the circumstances that the verdict is not correct. Finding nó error in the record that will warrant a reversal, the verdict and judgment of the circuit court of Vermilion county are affirmed.

Affirmed.


author: Mr. Justice Shurtlepp

text:
    Carp and Company, Appellant, v. Samuel Goldstine, Appellee.
    Gen. No. 8,532.

      Opinion filed November 4, 1931.
    A. E. Tapp and Floyd F. Putman, for appellant.
    Burnett M. Chiperpield, Claude E. Chiperpield and Egbert B. Chiperpield, for appellee.
   Mr. Justice Shurtlepp

delivered the opinion of the court.

This is a suit to recover the rent for premises of appellant, leased to appellee and vacated by appellee during the term. Appellant leased to appellee the balcony and island window of their store in Canton for a term, commencing on June 1,1925, and to extend for a period of two years. The rent was based upon a percentage of appellee’s sales but was to be not less than $100 a month. Appellee occupied the balcony and island window from June, 1925, until September 1, 1926, and then abandoned the lease. The declaration contained three counts, based upon the written lease. To the declaration, appellee filed a plea of the general issue, with notice of defenses and an affidavit of merits. This notice of defenses and affidavit of merits are as follows:

That after the 1st day of September, 1926, the appellant re-entered upon the premises leased and repossessed itself of the same, and used the same from .the 1st day of September, 1926, until the 31st day of May, 1927; that upon the vacation and surrender of the premises on the 1st day of September, 1926, the appellant re-entered and took possession of the island window referred to in the agreement and continued to possess and use the same in connection with its business, and that the reasonable rental value of said window was $75 per month, which the appellee was entitled to set off by way of recoupment against the claim for damages of the appellant;. that after the alleged vacation and surrender of the premises on the 1st day of September, 1926, appellant did, on or about the 1st day of October, 1926, cause to be built a partition extending north and south across the said store room from the level of the floor to the ceiling, which cut off and separated the balcony referred to in the appellant’s declaration, whereby the appellant prevented and destroyed the said balcony for use for any of the purposes specified in said agreement, and did appropriate the said balcony to its own use, by reason whereof the appellee was discharged from liability to pay the appellant any rents or sums demanded in its declaration, and that after the 1st of September, 1926, the appellant re-entered and repossessed itself of said premises and used the island window referred to in the declaration for the purpose of displaying its goods, wares and merchandise kept by it for sale at retail, and by reason of the construction of the partition separating the balcony referred to in appellant’s declaration from the store room, did thereby ratify, confirm and acquiesce and consent to the abandonment of said premises by the appellee, and did thereby release and discharge the defendant from any liability to pay rent or damages under said agreement; that after the 1st of September, 1926, it became the duty of the appellant to take charge of said premises and make reasonable effort to rerent the same for the balance of the unexpired term, which the appellant wholly failed to do, but, instead, made a re-entry on the premises on the 1st day of September, 1926, and during the remainder of the term did use said balcony and island window, by reason of which the appellee was released from the payment of damages claimed by the appellant; that the leasehold interest to the written agreement set forth in the appellant’s declaration, after the vacation of the same on September 1, 1926, was an assignable interest, and as such its value to the appellant was of the sum of $800, and by taking over and occupying the window and construction of the partition, the assignable interest in and- to the leasehold was destroyed, and that the appellee was entitled to set off by way of recoupment the damages sustained by him.

There was a trial by jury. Proofs were heard and upon the motion of appellee the court instructed the jury to find a verdict for defendant, appellee, and there was a verdict and judgment for appellee from which appellant" has appealed.

On the proofs appellant showed the execution- of . the lease and occupancy by appellee. This was also shown by correspondence of appellee, and a letter written by him, giving the reason why he was abandoning the premises September 1, 1926. Sufficient testimony was introduced by appellant from which the jury could have inferred that appellant performed all of the covenants of the lease binding upon appellant to be performed.

Appellant’s witness testified that appellant did not take possession of the balcony for the display of crockery; that appellant did not occupy the balcony with any part of its goods until after the expiration of the lease. It was further shown by appellant that it did not build a partition between the main part of the store and the part of the store where the balcony was located; that there has been no partition built in the store. It was shown that appellant used the island window to display merchandise for the reason that “if nothing was there it would have the appearance that the store was vacant.” Appellant’s proof showed that appellant never accepted a surrender of the lease or the premises and only used a portion of the premises after appellee moved out. No proofs were offered or tendered tending to show the reasonable value of the use of the premises or any portion of them, nor what appellant did in an attempt to procure another tenant. Appellee offered no proofs. The court instructed the jury to find a verdict for appellee and the jury so found. All of the above proofs as to appellee’s defenses were brought out by cross-examination of appellant’s witness without objection.

Numerous questions, such as eviction, surrender of the premises, the landlord taking exclusive possession and other questions are discussed in the briefs at length, based upon no proofs in the record. It was held in United Cigar Stores Co. v. Friend, 257 Ill. App. 359, 367: “It has always been the law that when a tenant abandons leased premises, without fault of the landlord, the landlord may re-enter and rerent the premises, crediting the former tenant with the proceeds, and the landlord so taldng possession does not relieve the tenant from liability for the stipulated rent. (West Side Auction Co. v. Connecticut Mut. Life Ins. Co., supra; Marshall v. Grosse Clothing Co., 184 Ill. 421; Humiston, Keeling & Co. v. Wheeler, 175 Ill. 514; Grommes v. St. Paul Trust Co., supra; Hirsch v. Home Appliances, Inc., supra; Harmon v. Callahan, 214 Ill. App. 104; Hicks v. Simons, supra; Scanlan v. Hoerth, supra; Spikings v. Fox, 145 Ill. App. 337; Rau v. Baker, 118 Ill. App. 150; Bradley v. Walker, supra; Gaines v. McAdam, 79 Ill. App. 201.)

“In Humiston, Keeling & Co. v. Wheeler, supra, the court held:

‘In order to constitute an eviction, the tenant must abandon the premises on account of the act of the landlord, and if defendant had already abandoned them, the entry by plaintiff would not constitute an eviction. In cases showing abandonment without fault of the landlord, or as a result of his acts, he may re-enter and again rent premises and credit the lessee with the proceeds, and his so taking possession does not relieve from the payment of rent. ’ ”

Appellee insists there is no appeal before this court from the judgment entered in the circuit court of Fulton county in this cause at the September Term, 1930. The verdict was entered in this cause November 13, 1930, and the court entered judgment at the same time on that day. Later, on the 19th of November, 1930, the same September Term of court, appellant presented his motion to set aside the verdict and for a new trial. The hearing on this motion was continued for the term. It was argued at the January Term, 1931, and the motion for a new trial overruled, another identical judgment entered and appealing-orders taken. It is contended that the appeal does not bring up the judgment of November 13, 1930, for review. In this, appellee is in error. The judgment of November 13, 1930, never became a final judgment until the motion for a new trial was disposed of. In Hosking v. Southern Pacific Co., 243 Ill. 320, 327, the court held:

“It must be admitted that what is said in these cases tends to support the position of plaintiff in error, but National Ins. Co. v. Chamber of Commerce did not really involve the question here under discussion, for the appeal in that case brought up for review nothing- but the decision of the trial court in denying the motion to vacate the judgment, and that case has been overruled in the subsequent cases of Hibbard v. Mueller, 86 Ill. 256, and Hearson v. Graudine, 87 id. 115. In the Hibbard case it was held that where a motion is made at the term at which judgment is rendered to vacate and set it aside and is continued to a subsequent term, the court retains control over the judgment and has' power to allow the motion at a subsequent term. In Hearson v. Graudine it was held that where a motion is made to vacate and set aside a judgment the court retains jurisdiction at a subsequent term to allow it, and that the judgment does not become final, in a technical sense, until the motion is disposed of.” (See other cases cited in the same opinion.)

In this case, if the rule stated in Reddig v. Looney, 208 Ill. App. 413; Cooper v. Anderson, 246 Ill. App. 322, 1; Spengler v. Eiger, 255 Ill. App. 322, 329, is adhered to, it is a serious question if appellant was required to submit any proofs in this cause in the first instance. The only issues made were presented by the plea and the affidavit of merits, and matters occurring after September 1, 1926, when appellee vacated the premises. The court erred in instructing the jury to find a verdict for appellee.

For the reasons stated, the judgment of the circuit court of Fulton county is reversed and the cause remanded for another trial.

Reversed and remanded.


text:
    T. E. Savage, Appellee, v. University State Bank of Champaign, Appellant.
    Gen. No. 8,539.

      Opinion filed November 4, 1931.
    Little & Finfrock, for appellant; Roger F. Little and David Gr. Moyer, of counsel.
    F. T. Carson and C. H. Swick, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an action in assumpsit, brought in the county court of Champaign county by appellee to recover from appellant for failure to remove a concrete bank vault from appellee’s building. Appellant had been tenant under a written lease of a building owned by the appellee. This lease had been canceled by agreement of the parties before its termination according to" its terms. There was no written memorandum of the agreement to cancel, but there is no dispute that there was such agreement. Neither is there any question but that the lease was actually canceled and surrendered. There is no claim by appellee for rent under the lease, and no claim by appellant of a right to possession.

Appellant had occupied appellee’s building for some six years prior to its removal about July 2,1927. The lease in effect at that time was dated May 21, 1924, and did not expire until June 1, 1929.

.The lease contained the following provisions: “Said lessee agrees to surrender the possession of said, premises to said lessor upon the termination of the term above created or the forfeiture of this lease, as hereinafter provided; and further agrees, during the occupancy of said demised premises to maintain and keep the same in as good condition and repair as the same shall be upon taking possession thereof, natural wear, injury by .fire, or other inevitable accidents excepted.

“The foregoing covenants shall be obligatory upon the heirs, executors, administrators and assigns of the parties hereto. It is further agreed and understood that the vault and fixtures, which were rightfully built in the building, will continue to be the property of the lessee. Lessee is to have an option of five years at the expiration of the lease at a rental value to be later determined.”

There had been a prior written lease between these parties of the same building. It is in evidence and is not disputed that prior to the lease dated May 21, 1924, appellant had built in the building a concrete vault for use in connection with its operation of a banking business in the building. This lease made reference to the vault as appellant’s property.

When appellant removed from appellee’s building it did not see fit to remove this vault. It will not be disputed that the vault was never mentioned or referred to in all the negotiations leading up to an agreement to cancel the lease or in the agreement itself, and the first time it ever was referred to in any way was at least two weeks after the building was vacated by the appellant. Appellee made no demand on appellant to remove the vault, and gave no notice to appellant that he expected it to remove the vault or that he would remove it and hold appellant for the expense of its removal, but he voluntarily employed a contractor to remove this vault. In so doing he claims he incurred an expense of over $1,100. He further paid this bill without any demand on the appellant and then more than a year and two months after the work was done brought this action.

The cause was tried before a jury and a verdict given for the full amount of the ad damnum and judgment rendered. Appellant brings the matter before this court seeking to have said judgment reversed and assigns a number of errors, both as to findings of fact and as to rulings of the court.

No contract on the part of appellant, either express or implied, is shown either to remove the vault or bear the expense. There is no covenant in the lease requiring appellant to move the vault. The vault was in the building at the time the lease was made. There are no provisions in the lease authorizing appellant to remove the vault unless the ownership by appellant implies that the vault is personal property. It is quite possible that the respective parties to the lease, or one of them, intended to continue each an owner of an aliquot part of the real estate. By the modern cases it is a question of intention whether appliances are or are not fixtures. Arnold v. Crowder, 81 Ill. 56. It would be impossible in this case to arrive at the intention of the parties without a knowledge or some knowledge of the value of the lot and building to which the vault was attached. Appellee expended over $1,000 in the removal of the vault. Was the property worth more or less than that amount before or after the removal? On this subject the record is bare. Was the property increased in value or damaged by the construction of the vault for all general purposes? We do not know. Carson did not care to use the vault to store furs. Still it might have been of value to many other tenants in many other lines. Counsel for each party seek to minimize the proofs to the extent that we are unable, from the written lease and their testimony, to gather much of an idea as to the intention of the parties. It does appear plainly that their intentions do not now agree, regardless of what was in their minds when the vault was constructed. It has been held that the lessee is not required to remove improvements made by him with the consent of the landlord, or under authority of the lease, in the absence of express requirement thereof. (36 Corpus Juris, 199, 200; Perry v. J. L. Mott Iron Works Co., 207 Mass. 501, 93 N. E. 798.) The right of the tenant to remove fixtures exists only while he remains in possession in his character as tenant. (Fellows v. Johnson, 183 Ill. App. 42; Dreiske v. People’s Lumber Co., 107 Ill. App. 285.)

For the reasons stated, the judgment of the .county court of Champaign county is reversed.

Reversed.


author: Mr. Presiding Justice - Gridley

text:
    Anya Carpenter, Administratrix of the Estate of John J. Carpenter, Deceased, Appellee, v. Grand Trunk Western Railway Company, Appellant.
    Gen. No. 35,066.
    Opinion filed November 24, 1931.
    McCordic, Dent & Freeman, for appellant.
    Joseph D. Rían, for appellee; Frank Johnston, Jr., of counsel.
   Mr. Presiding Justice - Gridley

delivered the opinion of the court.

On October 30, 1929, plaintiff, as administratrix, commenced in the circuit court an action for damages against defendant, based upon the Federal Employers’ Liability Act, Cahill’s St. ch. 114, If 321 et seq., for the negligent killing of John J. Carpenter on the afternoon of August 31, 1929, in defendant’s 12th street yards in Chicago, where he then was employed and acting as a switchman. A trial was had before a jury in December, 1930, resulting in a verdict finding defendant guilty and "assessing plaintiff’s damages at $20,000. Judgment on the finding was entered against defendant and the present appeal followed.

The declaration consisted of three counts, but the third was withdrawn on the trial at the close of plaintiff’s evidence. In both the first and second counts it is alleged that on and prior to the day of the accident defendant was a common carrier by railroad, engaged in interstate commerce in the City of Chicago and State of Illinois and other States; that deceased was employed by defendant in interstate commerce as a switchman, and was in the due course of his employment in a certain yard used by defendant in said city and State; that he then was engaged with other of defendant’s servants in switching and assembling certain freight cars along and upon divers tracks and crossovers, which cars were then and there being used and moved in interstate transportation; and that it was defendant’s duty to furnish the deceased with a reasonably safe place in which to perform his work and to exercise reasonable care in the management of all cars and engines, while being operated upon and over the premises, so as not to injure him and not to expose him to unusual and extraordinary hazards. In the first count it is also alleged that, while deceased was engaged in the due course of his employment with defendant’s other servants, and while he was then “standing or walking between certain of said tracks,” and while “he was in an obviously dangerous position in the event that any locomotive engine or car should be propelled toward him from the rear,” the defendant, not regarding its said duty, so negligently “operated, controlled and bached” a locomotive engine toward and up to the place where deceased was working that, as the proximate result, the engine struck and ran over him, whereby he received severe bodily injuries causing his death, etc.

In the second count it is alleged that on the day of the accident deceased was engaged, as a member of a switching crew which included an engineer and fireman of a locomotive engine, in switching and assembling cars along and upon certain tracks “extending in a general northerly and southerly direction at said place,” and upon and over “certain crossovers extending respectively from the centermost track to certain adjacent tracks in a northeasterly and northwesterly direction”; that the tracks and crossovers were also then being used by the members of another switching crew of defendant, who were then moving cars by means of another locomotive engine; that in the course of his employment deceased was required to be upon and near the crossovers and “to operate and turn a certain ground switch by means of a switch-handle thereto attached, in order that a locomotive engine or cars could be moved along, and upon said centermost track”; that the switch-handle was in such close proximity to one of the adjacent parallel tracks that an employee engaged in operating the same would, of necessity, be compelled to stand close to or upon said adjacent parallel track, and that, while so engaged, engines or cars could not safely be moved upon or along said adjacent parallel track and past the place where such employee was at work; and that all of these facts defendant knew or should have known in the exercise gf reasonable care for the safety of deceased. And it is charged that on said day, while deceased was engaged in operating said switch, defendant, “through its other servants in charge of said other locomotive engine,” so carelessly and negligently “drove, operated and bached said locomotive engine in a southerly direction along and upon said adjacent parallel track, and up to, toward and past the place where deceased was so engaged,” that, as the proximate result thereof, said" engine struck, ran against and over said deceased, causing his death, etc.

In both counts it is alleged that deceased left him surviving Anya Carpenter, his widow (administratrix herein), and a minor daughter, as his only next of kin, each of whom was dependent upon deceased for support, etc. To both counts defendant filed a plea of the general issue and a special plea not necessary now to be considered.

On the trial the evidence disclosed the following: South of 12th street there are three tracks, running north and south, called respectively the “house,” the “wash” and the “long” tracks. The wash track is the center track, and the two others (“house” and “long”) are respectively to the west and east of it. North of 12th street the “long” track is called the “Sullivan” track. About 160 feet south of 12th street is the commencement of a crossover track, leading-northwesterly from the wash track to the house track. There is a “jack-knife” switch there, which is operated by throwing a handle crosswise between the wash track and the long track. About 30 feet south of this switch, and in the wash track, is the commencement of another crossover track (having a length of about 180 feet) leading northeasterly from the wash track into the long track and to the Sullivan track beyond. This switch is a “ball switch,” which is operated lengthwise between the tracks. On the afternoon of August 31, 1929, and prior to the accident, there were as usual two crews of five men each, working in the yard, called respectively “Fox’s” crew and “Van Vlack’s” crew. Each crew had a locomotive engine to move and switch cars. Fox was the “conductor” of his crew, which included himself, the engineer and fireman of one locomotive, a head switch-man (Carpenter, the deceased), and another switchman (Faunier). Van Vlack was the “conductor” of his crew, which included himself, the engineer (Spars) and fireman (Patterson) of the other locomotive, No. 7524, a head switchman (McCotter) and another switchman (Hart). Fox and Van Vlack, as well as all others of the latter’s crew, were called as witnesses, some by plaintiff and some by defendant. Van Vlack’s crew began work about 3 o’clock p. m. and thereafter and until -about 4:30 o’clock p. m., were engaged in switching divers freight cars, when Fox’s crew came up the wash track from the south into the yards, with their engine-, headed north and pulling two or three cars and a caboose. Cars had been and were then being switched by Van Vlack’s crew for the purpose of assembling them in the yards, as usual, into two trains which were afterwards to be moved south to Elsdon, near 51st street. Each train was to be made up of an engine, cars and a caboose. Fox’s crew, of which deceased was head switchman, was, however, to move its train, after it had been assembled, out of the yards and to Elsdon, ahead of Van Vlack’s train. The situations and movements of cars and the actions of the crews, just prior to the accident, were: A section of the Fox train was standing north of 12th street on the wash, or center, track. It was necessary for certain switching of other cars to be made, requiring the throwing of the switches of the crossover tracks. Van Vlack’s crew coupled their engine, which was headed north, onto the two cabooses, standing on the wash track south of said switches and pushed them over the north easterly crossover track and on to the Sullivan track, north of 12th street, out of the way of other switching of cars then about to be done by Fox’s crew. Hart, plaintiff’s witness and a switchman on Van Vlack’s crew, testified that just before this movement was made he had a conversation with Carpenter and gave him directions as to “lining the switches#” told him of the proposed movement of Van Vlack’s engine and the two cabooses, and further told him that “after we get through he could line up the switches,” and that “we were going in on the long track to stay there.” Following this conversation and movement, Van Vlack’s engine was uncoupled from the cabooses, then on the Sullivan track, and it started backing south and into and on the long track. None of the crew was on the footboard of the tender (then front) of the moving engine, keeping a lookout. McCótter and Hart were riding on the footboard at the head (then rear) of the engine. While this backing movement was in progress, Carpenter went to the “jack-knife” switch, lying crosswise between the wash and long tracks and close to the long track, for the purpose of throwing the handle thereof. To do this it was necessary for him to stand very near or over ithe west rail of the long track, and while in the act Of throwing the switch he was struck and run over by the engine and killed. No witness actually saw the engine strike and run over him. Patterson, the fireman and who was' on the west side of the engine, testified that he did not see the happening of the accident, but saw Carpenter’s body immediately thereafter. Carpenter was lying on his back with head to the west about four' feet south of the switch. The hook was out of the switch and the handle in a position to throw, but it was not thrown. Hart testified that, after Carpenter’s death “his feet were inside the west rail of the long track towards the wash track and his body was cut in two.” The engine came to a stop on the long track about 20 feet south of the jack-knife switch. The evidence was conflicting on the question of the necessity of backing said engine at all, or as far south on the long track as the switch in order not to interfere with the intended future switching movements of cars to be made by Fox’s crew. Carpenter was 32 years old at the time of his death, had been regularly employed as a switchman, had received for his work from $140 to $200 per month, and left him surviving his widow and a daughter, four years old, who were dependent upon him for support.

Three points, and only three, are made and argued by defendant’s counsel as grounds for a reversal of the judgment. One is that there is no. showing of negligence on the part of defendant, or any of its employees, which proximately caused the death of deceased. We cannot agree with the contention. In our opinion there was evidence showing that the members of Van Vlack’s crew were guilty of negligence in .backing the engine, at the time and as far as they did, without having a proper lookout thereon to warn employees, including deceased, in the yards of its approach. There was also evidence tending to show that this backing movement, at the particular time and after the cabooses had been pushed onto the Sullivan track, was unnecessary and unusual. And we think that the questions whether said crew or the members thereof were guilty of negligence, and whether their negligence was the proximate cause of the deceased’s death, were questions which were peculiarly within the province of a jury to determine, under all the facts and circumstances in evidence.

Counsel also contend that the evidence discloses that the death of the deceased was caused solely by his own negligence in not looking and seeing the approaching engine. And counsel argue, in substance, that, when Hart told him that he might “line up the switches” and that “we were going in on the long track to stay there,” deceased was warned in advance that the engine, after pushing the cabooses onto the Sullivan track, would immediately back onto the long track and go as far south as to pass the switches. We do not think that there is any substantial merit in the contention or argument. In our opinion it was for the jury to say, under all the facts and circumstances in evidence, whether or not the deceased at and immediately before the time of his death was in the exercise of ordinary care for his own safety. By their verdict, after being properly instructed by the court, they determined that he was not guilty of contributory negligence at said time, and we are not disposed to disturb the verdict upon the ground urged.

Counsel further contend that “under the undisputed evidence, viewed in the light most favorable to plaintiff, the death of decedent is shown to have been the result of a risk which he 'must be held to have assumed as a matter of law.” And counsel argue in their brief that, “if the approaching engine constituted a risk, it was a risk which Carpenter himself created by choosing the moment when the engine was nearest to the switch as the time for throwing it, and by failing to heed Hart’s warning to wait until ‘after we get through, ’ and by failing to use his senses of sight and hearing or by placing himself in a position where he could not use them.” We do not think there is any merit in the contention or argument. There was no evidence that Carpenter had knowledge that the engine, after having put the cabooses on the Sullivan track, would then immediately back so far south on the long track as to pass the switches and the place where he properly was at work. And there was evidence tending to show that the backing of the engine for so great a distance at the particular time was an unusual and unnecessary movement. In Davis v. Crane, 12 Fed. (2d) 355, 356, it is said: “An employe assumes the ordinary risks incident to the business in which he engages, but does not assume extraordinary risks arising from the employer’s negligence unless and until he is aware of the same and appreciates the danger therefrom, or unless, under the circumstances, they are so plainly observable that he is presumed to know them and to appreciate the danger.” And in Chesapeake & Ohio Ry. Co. v. De Atley, 241 U. S. 310, 315, it is said: “According to our decisions, the settled rule is not that it is the duty of an employee to exercise care to discover extraordinary dangers that may arise from the negligence of the employer or of those for whose conduct the employer is responsible, but that the employee may assume that the employer or his agents have exercised proper care with respect to his safety until notified to the contrary, unless the want of care and the danger arising from it are so obvious that an ordinarily careful person, under the circumstances, would observe and appreciate them.” (See, also, Chicago, R. I. & P. Ry. Co. v. Ward, 252 U. S. 18, 22.)

No complaint is made of the amount' of the verdict and judgment or that the court erred in giving any instruction offered by plaintiff or in refusing to give any instruction offered by defendant.

In our opinion the judgment appealed from should be affirmed and such will be the order.

Affirmed.

Keener and Scanlan, JJ., concur.