text:
    John Copeliares for use of Louis Copeliares and Anton Copeliares, appellant, v. Christ Copeliares, appellee.
    Gen. No. 40,025.
    Heard in the second division of this court for the first district at the April term, 1938.
    Opinion filed December 13, 1938.
    George A. Bosomburg and Charles P. R. Macaulay, for appellant. Oscar M. Meusel and F. J. Karasek, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Friend

license: Public Domain

text:
    Sophie Majka, plaintiff, v. Metropolitan Life Insurance Company, defendant below. M. George Livingston and Leo T. Kaufman, trading as Livingston and Kaufman, appellants, v. Metropolitan Life Insurance Company, appellee.
    Gen. No. 40,151.
    Heard in the second division of this court for the first district at the June term, 1938.
    Opinion filed December 13, 1938.
    McKinley, Price & Quindry, for appellants. Laurence M. Fine and Emil M. Haranta, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


text:
    Sophie Majka, appellee, v. Metropolitan Life Ins. Co., defendant below. In the matter of petition of Leo M. Tarpey. Leo M. Tarpey, appellant.
    Gen. No. 40,164.
    Heard in the second division of this court for the first district at the June term, 1938.
    Opinion filed December 13, 1938.
    Theodore W. Schroeder and Leo M. Tarpey, pro se. Laurence M. Fine and Emil M. Haranta, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.


author: Mr. Justice Burke

text:
    Walter J. Flens and Frank W. Michalak, trading as Flens and Michalak, appellees, v. Polish National Alliance of United States of North America, appellant.
    Gen. No. 39,870.
    Heard in the second division of this court for the first district at the December term, 1937.
    Opinion filed December 13, 1938.
    Casimir E. Midowicz and Ewart Harris, for appellant. Walter J. Flens and Walter S. Vose, for appellees.
   Mr. Justice Burke

delivered the opinion of the court.


text:
    William Parrillo, appellee, v. Samual Bernstein, appellant.
    Gen. No. 39,959.
    Heard in the second division of this court for the first district at the February term, 1938.
    Opinion filed December 13, 1938.
    Moses, Kennedy, Stein & Bachrach, for appellant; Herbert H. Kennedy, of counsel. John A. Bloomingston, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.


text:
    George Polos, appellee, v. Gust Boussis et al., appellants.
    Gen. No. 40,184.
    Heard in the second division of this court for the first district at the June term, 1938.
    Opinion filed December 13, 1938.
    Fred M. Fagenholz and B. M. Steiner, for appellants. David Raymond, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.


text:
    People of the State of Illinois ex rel. John S. Rusch, appellee, v. Harry Gustison et al., appellants.
    Gen. No. 40,253.

      Heard in the second division of this court for the first district at the October term, 1938.
    Opinion filed December 13, 1938.
    Lawrence Dowd and Mayer Goldberg, for appellants. Thomas J. Courtney, State’s Attorney, for appellee; John F. Cashen, Jr., of counsel.
   Mr. Justice Burke

delivered the opinion of the court.


author: Mr. Justice John J. Sullivan

text:
    Milton G. Leibson, appellee, v. Metropolitan Life Insurance Company, appellant.
    Gen. No. 39,843.
    Heard in the second division of this court for the first district at the December term, 1937.,
    Opinion filed December 13, 1938.
    Rehearing denied December 27, 1938.
    Hoyne, O’Connor & Rubinkam, for appellant; Nathaniel Rubinkam and William S. Allen, of counsel. Edward D. Feinberg, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Claude W. B. Holman, appellant, v. Indianapolis Life Insurance Company et al., appellees.
    Gen. No. 40,038.
    Heard in the second division of this court for the first district at the April term, 1938.
    Opinion filed December 13, 1938.
    Ellis & Westbrooks and Claude W. B. Holman, for appellant; Richard E. Westbrooks and Claude W. B. Holman, of counsel. Deming, Jarrett & Mulfinger, for appellees.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


text:
    Crittall Manufacturing Company, Inc., appellee, v. Jacobson Brothers Company, appellant.
    Gen. No. 40,058.
    Heard in the second division of this court for the first district at the April term, 1938.
    Opinion filed December 13, 1938.
    Bayley, Webster, Gregory & Hunter, for appellant; Robert L. Hunter, Robert E. Covert and Herbert N. Woodward, of counsel. Goldman, Allshouse & Healy, for appellee; Robert G. Dreffein and M. M. Loman, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    Second District.
    Elmer E. Nystrom, appellee, v. Chicago, St. Louis Transfer Company, appellant.
    Gen. No. 9,318.

      Heard in this court at the May term, 1938.
    Opinion filed September 15, 1938.
    Rehearing denied November 14, 1938.
    Clarence W. Heyl, for appellant. Cassidy & Knoblock, for appellee; John E. Cassidy and John P. Sloan, Jr., of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr. Justice Hayes

text:
    Third District.
    Marie Quell, appellee, v. John Jachino, appellant.
    Gen. No. 9,124.
    Heard in this court at the April term, 1938.
    Opinion filed October 14, 1938.
    Dryer, Brown & Poos and Harry C. Miller, for appellant. Lester K. Vandever, for appellee.
   Mr. Justice Hayes

delivered the opinion of the court.


author: Mr. Justice Riess

text:
    Floyd E. Madden, administrator of estate of Helen M. Fear, deceased, appellant, v. W. H. Sampson, administrator, and Maude S. Brown, administratrix of estate of Charles W. Sampson, deceased, appellees.
    Gen. No. 9,122.
    Heard in this court at the April term, 1938.
    Opinion filed October 14, 1938.
    Ferguson & Ferguson, for appellant. Craig & Craig, for appellees.
   Mr. Justice Riess

delivered the opinion of the court.


author: Mr. Presiding Justice Murphy

text:
    Fourth District.
    People of the State of Illinois for use of R. D. Shepherd, conservator of estate of Meli Tomlonovich, incompetent, appellee, v. Marko Prpich et al., defendants. Appeal of T. I. Galloway, appellant.
    Heard in this court at the October term, 1937.
    Opinion filed November 7, 1938.
    Rehearing denied December 12, 1938.
    T. J. Galloway, pro se, and D. F. Moore, for appellant. Roy C. Martin and Moses Pulverman, for appellee.
   Mr. Presiding Justice Murphy

delivered the opinion of the court.


text:
    Viola Ellen Wollard, administratrix of estate of Francis Marion Wollard, deceased, appellee, v. M. Quinn, administrator of estate of Lester Norman, deceased, appellant.

      Heard in this court at the May term, 1938.
    Opinion filed November 7, 1938.
    Loyd M. Bradley and D. L. Duty, for appellant. Orville L. Wollard and A. D. Morgan, for appellee.
   Mr. Presiding Justice Murphy

delivered the opinion of the court.


text:
    Walter Chattillion, conservator of estate of George LaPerch, appellant, v. Jacob Dlugon and Charles Dlugon, appellees.
    Heard in this court at the May term, 1938.
    Opinion filed November 7, 1938.
    Rehearing denied December 12, 1938.
    Turner, Holder & Ackermann, for appellant. Kramer, Campbell, Costello & Wiechert, for appellees.
   Mr. Presiding Justice Murphy

delivered the opinion of the court.


author: Mr. Justice Edwards

text:
    Bradford National Bank of Greenville, appellee, v. Armoni J. Floyd et al., appellants.
    Heard in this court at the October term, 1937.
    Opinion filed November 7, 1938.
    Matheny & Welker, for appellants. J. H. Allio and Meyer & Meyer, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.


author: Mr. Justice Stone

text:
    Fred Preloger, Jr., appellee, v. Village of Maryville, appellant.
    Heard in this court at the May term, 1938.
    Opinion filed November 7, 1938.
    Manuel M. Wiseman, for appellant; Maynard H. Motz, of counsel. Terry, Gueltig & Powell, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.


text:
    H. F. Enloe, appellee, v. Consolidated Coal Company of St. Louis, appellant.
    Heard in this court at the May term, 1938.
    Opinion filed November 7, 1938.
    Leon A. Colp and Ralph D. Walker, for appellant; Whitnel, Browning, Listeman & Walker, of counsel. D. L. Duty, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.


text:
    Rush L. Craton, administrator of estate of Winifred E. Craton, deceased, appellant, v. Alton United Cab Company, Inc. and Warren Blanker, appellees.
    Heard in this court at the May term, 1938.
    Opinion filed November 7, 1938.
    Jacoby & Daly, for appellant. Cross & Gibbons, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.


text:
    Celia Styburski and Dorothy Styburski, Minor, by Frank Styburski, Her Father and Next Friend, Appellees, v. Riverview Park Company, Appellant.
    Gen. No. 40,080.

      Opinion filed December 13, 1938.
    Richard P. Garrett, of Chicago, for appellant.
    Wright & Kamin, of Chicago, for appellees; Alfred Kamin, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This is an appeal from two judgments for $3,900 and $1,700 entered December 22, 1937, upon verdicts of a jury for said amounts, in favor of plaintiffs, Celia Styburski and Dorothy Styburski, respectively, against defendant, Riverview Park Company, as damages for personal injuries sustained by plaintiffs on July 1, 1936, while riding as passengers upon an amusement device known as the “Aerostat.” The claims of the two plaintiffs were asserted in one complaint and tried together before the same judge and jury.

For a clearer understanding of the issues it is necessary- to set forth the facts somewhat fully. On July 1, 1936, defendant, Riverview Park Company, owned an amusement park in Chicago wherein it operated various riding devices, one of which was called the “Aerostat. ’ ’ This consisted of a pyramidal steel lattice work tower from 50 to 60 feet high, about 18 feet square at its base and tapering to almost a point at the top. On top of this structure was a revolving member placed horizontally and consisting of 6 sweeps or arms about 15 feet long from the center of the top to their outer edges. About half way up the structure there was an electric motor connected to this top revolving member by a belt running to pulleys, shafts and gears above, so that the power imparted by the operation of the motor caused said top member to rotate in a horizontal plane. The motor was controlled by a switch near the ground level, where the operator of the device was stationed. Sustained from the sweeps, so that when at rest they hung clear of the structure about 5 or 6 feet at their lowest point, were 3 cars or gondolas to carry patrons. Each car was connected to 2 of the overhead sweeps by 8 lines of cables, 4 cables to each side of a car, spaced at intervals from front to rear of same. These cables were made of galvanized steel wire rope %ths of an inch thick and were about 100 feet long. A cable was looped through an eyelet or ‘ ‘ swivel-yoke ” in 1 of the 2 arms or sweeps from which each car was to be suspended, both lines of said cable descending to be fastened opposite to each other on said car. A short distance below the aforementioned eyelet the 2 hanging portions of the looped cable were fastened together by a clamp called a Crosby clip, sort of a U bolt. The free ends of the cable were then passed through attachments on the car, said ends doubled back upon the respective lines of cable and secured to them by cable clamps. The cables were flexible in themselves, but there was no bending or kinking in them in the operation of the device. The method of attachment at the sweep and the weight of the cars caused the cables to be stretched straight from the yokes to the cars, whether the cars were in motion or at rest. Each car carried 12 people, 2 to a seat. The cars were about 10 feet long with upholstered seats and backs. With a load of 12 persons the gross weight of each car was about 2,800 pounds. Each line of cable was capable of carrying a load of 11,000 pounds. With a set of 8 lines of cables to each car, this would provide cable equipment capable of carrying a load of 88,000 pounds to each set. The cars at rest hung near enough to the ground so that patrons could step directly into them. When the cars were loaded and ready to start the operator moved the switch which controlled the electric motor and the cars started slowly to revolve around the central structure. As their speed was increased, they gradually moved away from the central structure and up in the air. Their top speed and elevation were reached in about 15 to 17 revolutions around the tower and then as the power was cut off and their speed diminished they gradually returned to the starting point through force of gravity, there being no mechanical brakes on the device. The entire operation of one ride took about 3 minutes. The device operated each afternoon from 1 to 5 p. m. and from 7 to 11:30 p. m. The whole operating season was 16 weeks, beginning at the middle of May and ending about the middle of September. The device was exposed to the weather during this period. At other times the cables were put under shelter, given a coating of oil and grease and laid full length on a concrete floor inside a structure that protected them from the weather. An inspection of the cables, cars and other equipment was made by city of Chicago elevator inspectors each year prior to placing the device in operation. This inspection was made both before the cables and cars were taken from their place of storage and after the device was erected and ready for service. In addition to this, defendant had daily inspections made in the morning when a carpenter, one of its regular employees, climbed the tower and inspected the pulleys, gears, shafts, sweeps, cables and attachments at the top and also the cars at the ground level. The inspection of the top parts was done visually and by tapping the gears with a hammer. Inspection of the cables was made by this employee going out on the arms or sweeps and looking at the cables and their connections and by looking at them and their connections at the cars. The device was operated with the cars empty before being put into service each afternoon and evening. The cables were used 16 weeks in 1935 and about 6 weeks in 1936 before the accident in question occurred on July 1, 1936.

On that date plaintiffs, Celia Styburski and her cousin Dorothy Styburski, with their families were at Riverview Park for an outing. In the evening these girls, aged 17 and 15, bought tickets for the “Aerostat” and sat together on a seat toward the center of one of the cars. They had to wait a little while before they could get on because the ride was in operation and others were waiting ahead of them. The device and that portion of the park in its immediate vicinity were well lighted with electric lamps and, as plaintiffs saw said device, it seemed to be in good running order, When their ride started the cars moved off slowly and smoothly and nothing happened until the car in which plaintiffs were riding had made several revolutions around the tower and was about a story and a half off the ground. Suddenly the inside front cable on said car snapped and fell and the car tipped somewhat toward the inside and was pulled in toward the tower. It struck the tower, was wedged there and either struck or was struck by the other two cars on the device. Plaintiffs were injured and both of them claimed to have little or no recollection of anything that happened at the scene of the accident after the cable snapped and something fell across their car. Before the accident the device was operating “O. K.” and there was no evidence offered by any witness of anything of an unusual nature until the cable snapped. In addition to plaintiffs, Frank Styburski, the father of Dorothy Styburski, and his son George, testified as to the occurrence of the accident and the events just before and afterward. Their testimony varied somewhat from that of witnesses produced by the defendant as to the details of what occurred after the cable snapped, but there is no practical variance as to what occurred prior to the breaking of the cable.

Plaintiffs’ witnesses testified that the broken cable swished around in the air through trees and bushes, while defendant’s testimony had the loose end of the cable wedged into an angle in the lattice work of the structure and the other end attached to the car. All of the witnesses agreed that the car was pulled into the central structure as it went around it, but plaintiffs’ witnesses testified that when the car finally stopped it was a “story” high and defendant’s witnesses stated that it was about 10 feet high when it stopped. Plaintiffs were helped out of the car by Frank Styburski, his son George and employees of Eiverview Park. They were taken to the first aid station in the park and from there to St. Elizabeth’s Hospital.

Defendant contends that “any presumption of negligence raised by plaintiffs’ evidence was rebutted by the defendant’s evidence”; that “the plaintiffs failed to make a case for submission to a jury”; that “the defendant did all that could be done to make the ride safe”; that “the thing that happened could not have been foreseen and, therefore, prevented by any human intelligence and foresight consistent with the practical operation of the device”; and that “the court should have taken the case from the jury at the close of all the evidence.”

Plaintiffs’ theory as stated in their brief is that “the relationship of carrier and passengers existed between them and the defendant; that the facts of the case properly invoked the doctrine of res ipsa loquitur; that a prima facie case of negligence was made out from the facts and circumstances; that the question of the sufficiency of defendant’s rebuttal was one for the jury; that defendant’s evidence did not meet the charges of negligence, but confirmed such charges.”

It is conceded that the relationship of plaintiffs to defendant was that of passenger and carrier and that the doctrine of res ipsa loquitur was properly invoked. But defendant claims that “the doctrine of res ipsa loquitur is only a rule of evidence and, where properly applied, merely raises a presumption of negligence, which temporarily interrupts the flow of plaintiffs’ evidence, and holds the proof in statu quo, until the defendant has offered some evidence of the exercise of that care imposed upon it by law, whereupon the doctrine of res ipsa loquitur vanishes and the interrupted flow of plaintiffs’ evidence must be resumed.” In our opinion this quoted assertion by defendant is not a correct statement of the law. The plaintiff in Feldman v. Chicago Rys. Co., 289 Ill. 25, after stepping down onto the pavement from the back step of a street car to transfer to another street car, was struck by the rear end of the street car from which he had alighted by reason of the rear trucks of said street car leaving the car tracks. In that case, after concluding that the plaintiff at the time of his injury was a passenger, the court said at pp. 34, 35 and 36: “The doctrine of res ipsa loquitur may be stated thus: When a thing which has caused an injury is shown to be under the management of the party charged with negligence and the accident is such as in the ordinary course of things will not happen if those who have such management use proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the parties charged, that it arose from the want of proper care. (Chicago Union Traction Co. v. Giese, 229 Ill. 260.) . . . The charges of negligence in these counts were general and the doctrine of res ipsa loquitur applies. The rule is that negligence is never presumed, but that the circumstances surrounding the case where the maxim of res ipsa loquitur applies, amount to evidence from which the facts of negligence may be found; that is, in a case within the maxim of res ipsa loquitur, proof of the circumstances of such case and of the injury constitutes a prima facie case of negligence, and will justify a verdict unless such prima facie case is overcome by proof showing that the party charged is not at fault. (Chicago Union Traction Co. v. Giese, supra; Chicago Union Traction Co. v. Newmiller, 215 Ill. 383; Chicago City Railway Co. v. Rood, 163 id. 477; New York, Chicago & St. Louis Railroad Co. v. Blumenthal, 160 id. 40; Hart v. Washington Park Club, 157 id. 9.) The burden rested upon defendants in error to overcome the presumption of negligence arising from the circumstances in this case. The record contains no evidence explaining the cause of the accident or overcoming the presumption of negligence. We are of the opinion, therefore, that the plaintiff in error was at the time of the injury a passenger, to whom defendants in error owed the highest degree of care, and that under the first and second counts of the declaration and the circumstances in this case a prima facie case of negligence was made out under the doctrine of res ipsa loquitur. There was no explanation of why the injury occurred. It follows that there was no evidence on the part of the defendants in error to overcome this presumption, and the jury were therefore justified in returning a verdict finding defendants in error guilty of negligence.”

Defendant does not cite a single authority, where all of the essential elements are present for the application of the res ipsa loquitur maxim, to support its position that such maxim vanishes when some evidence is introduced by it of the exercise of that care imposed upon it by law, but relies upon Bollenbach v. Bloomenthal, 341 Ill. 539 and Coal Creek Drainage District v. Sanitary District, 336 Ill. 11. In the Bollenbach case plaintiff sought unsuccessfully to invoke the doctrine of res ipsa loquitur and in the Sanitary District case said doctrine was not even involved. Naturally neither of these cases limited the effect of the doctrine of res ipsa loquitur in properly applicable cases. It is true that a mere presumption is not evidence and that it vanishes in the face of evidence contrary to such presumption, but, as has been repeatedly held, negligence is never presumed, even where the doctrine of res ipsa loquitur is properly invoked. Tinder the doctrine circumstances surrounding the case amount to evidence from which the fact of negligence may be found and which may make out a prima facie case.

In discussing the maxim of res ipsa loquitur in Chicago Union Traction Co. v. Giese, 229 Ill. 260, the court said at pp. 263 and 264:

“That the burden of proving the existence of the duty, its breach and the resulting injury is on the conir plaining party, is so well settled in the law of negligence that it requires no elaboration or citation of authority to sustain it. While this is true, there is a class of cases which are made out by showing the injury and connecting the defendant with it. When a thing which has caused an injury is shown to be under the management of the party charged with negligence, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from the want of proper care. This rule of law results from the maxim res ipsa loquitur. Many cases are to be found illustrating the application of this rule. In some of them it is said that the rule is an exception to the general rule that negligence will never be inferred, while in others it is not treated as an exception but is treated' as an evidentiary rule, under which the charge of negligence is regarded as proven, prima facie, by proof of facts showing that the thing which caused the injury was under the management and control of the defendant or his servants, and that the accident is such as in the ordinary course of things does not happen if those who have the management use proper care. . . . The more accurate statement of the law is that negligence is never presumed, but that the circumstances surrounding a case where the maxim of res ipsa loquitur applies amount to evidence from which the fact of negligence may be found. . . . It is a matter of common knowledge, however, that it is possible, by the exercise of ordinary care, to so construct and operate these conveyances that they will not leave the tracks, and when they do so and inflict an injury upon another who is lawfully in the street and free from contributory negligence, we think that no hardship is imposed upon these corporations to hold that such an injury is within the maxim res ipsa loquitur, and that proof of the injury, under the circumstances stated, will justify a verdict unless such prima facie case is met by proof showing that the company is not at fault. ’ ’

In outlining the considerations which ought to limit the application of the res ipsa loquitur doctrine and the reasons underlying same in 5 Wigmore on Evidence, sec. 2509 (2d edition, 1923) the author states:

“(1) The apparatus must be such that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection, or user; (2) Both inspection and user must have been at the time of the injury in the control of the party charged; (3) The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured. It may be added that the particular force and justice of the presumption, regarded as a rule throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.”

In Chicago Union Traction Co. v. Newmiller, 215 Ill. 383, the court said at p. 386: “Where an injury occurs to a person who is a passenger, in the exercise of ordinary care, upon the car of a common carrier, by some defect in the machinery wholly under the control of the carrier, a prima facie ease of negligence on the part of the carrier is established, and the burden of proof is upon it to show that the accident was without its fault. . . . The facts proved made a prima facie case of negligence against the appellant and were clearly sufficient to support the verdict, and therefore justified the court in overruling the motion to take the case from the jury. The question as to whether this prima facie case was rebutted by the appellant’s evidence was one for the jury.”

So in the present case it is not even intimated that plaintiffs were in any wise at fault and, a prima facie case of negligence having been established against defendant by the facts of the occurrence and the injury to plaintiffs, the burden of proof was upon defendant to show that the accident was without its fault. In answer to defendant’s contentions that the trial court erred in refusing to instruct the jury to find it not guilty and that the verdicts are against the manifest weight of the evidence, it is sufficient to repeat that the facts of the occurrence proved a prima facie case of negligence against defendant, which was not overcome or rebutted by any evidence in the record and furthermore the question as to whether such prima facie case was overcome or rebutted by defendant’s evidence was clearly one of fact for the jury.

Defendant’s claim that the evidence produced by it showed that it complied with its duty to exercise the highest degree of care and caution consistent with the practical operation of device in question is refuted by the facts and circumstances in evidence, including its own testimony. Defendant was in exclusive control of the construction, maintenance, inspection and operation of the “Aerostat” and having such control it was its duty to present evidence of the true cause of the accident, under the established rule that such evidence is accessible to it but inaccessible to the injured person. Was any evidence produced as to the true or real cause of the occurrence? Of course the cable snapped, but there is no evidence in the record as to what actually caused it to break or snap. Defendant did introduce evidence as to the condition of the broken ends of the cable after the accident.

William Gierke, the operator of the device, testified that the broken ends of the cable “appeared to be torn”; that the ends were sort of frayed; and that “after these cables have been out in the elements, strands wear off.”

John Sundberg, employed by defendant as a carpenter, testified “my duties was every day to inspect the cars, cables, connections, belt, gears and bails”; that his inspection of the cables consisted merely of looking at them and their connections; that to inspect the cables and their attachments at the upper portion of the device, he “climbed right on the arms where they were suspended from to give them a thorough examination”; that from that position he simply looked down at the cables to see if they were all right; that he had no experience in the construction of cables; that when he saw the broken ends of the cable in question after the accident “it seemed that it just snapped off ... it just snapped”; that the broken ends did not appear frayed nor were the strands of the cable ‘1 separated or mushroomed out”; that the break in the cable was “almost square cut, almost like you would take a hack saw and cut them in two”; that “the break was what I determined to be right in the connection or below the cable clamp where the cables were clamped together ... I should judge about fourteen inches” below the arm or sweep; that the cable snapped just below the Crosby clip or clamp; and that the break in the cable had the appearance of “a cut” as far as he was able to determine.

Frank Gaynor, chief elevator inspector for the city of Chicago, testified that upon inspecting the device the morning after the accident “we found that one cable had broken right up near the top where the ship would be suspended from the sweep, as we call it, overhead”; that the cable parted “right below where the Crosby clip was put on the cable to pinch the cable together .... probably three inches below the Crosby clip .... It is a hard thing to determine, whether the tightening of the nuts on that Crosby clip may have pressed the cable together and broke some of the wires by pressing and tightening it or whether crystallization had set in on the cable . . . it is hard to determine ’ ’; that from his inspection he could not tell what caused the cable to break; that the cable consisted of 6 braided strands with 12 wires to a strand; that this type of cable cannot be cut very easily but that “universally ... a strand at a time breaks until the stress becomes too g*reat for the remaining strands ’ ’ and then the entire rope breaks; that “as long as one of the five or six strands would be there, the other five might be broken out a little, but they would not separate very much” but this condition could be determined by looking* at the cable; that the strands of the cable were broken; that “they always part to a ragged edge like” ; that the break was not clean cut; that it indicated “not a wearing condition, a kind of tearing condition . . . it would stretch the wire a little and make the wire a little smaller and then finally separate”; and that if there was wear on the cable from friction or otherwise in swinging* back and forth, it would occur “not any more than a foot below” the Crosby clip.

The evidence of defendant’s witnesses just recited did not exculpate it from liability for plaintiffs’ injuries but tended rather to show laxity in the inspection of the cable and that the defect in same might well have been discovered by the exercise of even ordinary care. While the device was constructed entirely of metal, a carpenter was assigned to inspect it. According to his evidence he climbed daily 50 or 60 feet to the top of the tower and then 15 feet out to the end of the sweep, from which point he made his inspection of the cable and its attachments. His inspection consisted of merely looking down at the cable; There is no evidence in the record that he could see the cable at the point where it broke approximately 3 inches below the Crosby clip. Above this clip was a thimble and above the thimble was the swivel yoke, through which the cable looped. It was not shown whether he looked downward at the cable through the eyelet in the sweep or over the side or end of said sweep. At the most the inspection was perfunctory and not made by one qualified to inspect this all-metal device. This character of inspection alone clearly showed that defendant failed in its duty to exercise the degree of care required of it for the safety of passengers riding on its device.

Defendant claims that plaintiffs’ counsel was guilty of prejudicial misconduct on the trial, which affected the verdicts, in that in his closing argument he made the following statement:

“He claims that that ride would have to swing or ride around a good many times before they would collect sufficient money to pay these girls what they are justly entitled to. He forgets at the same time it is not the only ride in the park, that it is only one of the attractions, and there are many other rides and devices for them to take the money from people who may go there and they have plenty of opportunity to bring it up from everybody who may go in there and enjoy the rides, and they get your money by games of chance and games of shill, besides the rides.” (Italics ours.)

It is urged that the italicized portion of this excerpt is objectionable since it might have affected the verdicts because of its content. The statement was immediately objected to, the remarks withdrawn, the objection sustained and the jury instructed to disregard said remarks. The first part of the quoted statement was apparently made in response to the remarks of defendant’s counsel in his closing argument. As already stated, the remarks were immediately withdrawn and the jury advised to disregard them. There was no persistent misconduct on the part of plaintiffs’ counsel and that complained of we consider harmless rather than prejudicial. In order for the alleged misconduct to justify reversal, it must appear from the record that upon another trial a different result might be expected if the same error did not intervene, so that the alleged misconduct would deprive the defendant of some substantial legal right. (Johnson v. Chicago City Railway Co., 174 Ill. App. 148.) It is inconceivable how a different result might be expected in this case in the event of another trial.

Defendant’s final complaint is that the verdicts and judgments are excessive. Defendant merely urges á general objection to the amount of damages awarded without specifying any reasons therefor. After stating in its brief that “there is no criterion by which to judge the proper size of a verdict,” it asks the question: “What should be the relation between damages for pecuniary loss and damages for pain and suffering'?” This question does not admit of a definite answer since the damages awarded in any case must necessarily be determined by the facts and circumstances of the particular case. In passing upon a similar objection in Metz v. Yellow Cab Co., 248 Ill. App. 609, the court said at p. 621:

“The amount of damages to be allowed is peculiarly a question for the jury and this court will not disturb a verdict unless it is clearly excessive or inadequate, indicating passion or prejudice on the part of the jury.”

We have carefully read and considered all of the evidence in the record as to the nature and extent of plaintiffs’ injuries and the money necessarily expended in being treated therefor, and such evidence furnishes ample justification for the amount of damages awarded plaintiffs.

For the reasons stated herein, the judgments of the circuit court are affirmed.

Affirmed.

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


text:
    Louis H. Freise, Appellee, v. Mid-City Trust and Savings Bank of Chicago and Mid-City National Bank of Chicago, Appellants.
    Gen. No. 40,179.
    Opinion filed December 13, 1938.
    Rehearing denied December 27, 1938.
    Gustav E. Beerly, of Chicago, for certain appellant.
    John M. Lee and Carl M. Loos, of Chicago, for certain other appellant.
    Kinne, Scovel, Robson & Murphy and Nordstrand & Riley, both of Chicago, for appellee; Harry C. Kinne, of Chicago, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

Plaintiff, Louis H. Freise, filed his amended complaint in this action against Mid-City Trust & Savings Bank (hereinafter referred to as the State Bank) and the Mid-City National Bank of Chicago (hereinafter referred to as the National Bank) on November 13, 1933, seeking an accounting against both banks for real estate and insurance broker’s commissions aggregating $750,000, alleged to have been collected by the State Bank for services performed by plaintiff and retained by that bank. It was also alleged that the National Bank purchased all of the assets and assumed all of the liabilities of the State Bank. Both the State Bank and the National Bank demurred to the complaint. The trial court overruled the State Bank’s demurrer, sustained that of the National Bank and dismissed the complaint as to the latter. Plaintiff appealed to this court in the case of Freise v. Mid-City Trust & Savings Bank, 280 Ill. App. 622 (Abst.), and the decree of the trial court sustaining the demurrer of the National Bank was reversed and the cause remanded with directions to overrule said demurrer. The National Bank’s petition for leave to appeal to the Supreme Court was denied. The mandate of this court was thereupon filed in the trial court May 16, 1936. The answer of the State Bank to the amended complaint was filed May 11, 1934, and that of the National Bank, August 10, 1936. April 17, 1937, while the cause was pending on the trial calendar of Judge Grover C. Niemeyer and also on his contested motion calendar, it was dismissed by Judge James P. Pardy for want of prosecution on a special no progress call of cases filed prior to January 1,1934, and not disposed of, which call was directed to be made up by Judge Niemeyer of cases on his calendar. This no progress call was transferred by Judge Niemeyer to Judge Pardy, to be heard by the latter on April 14, 1937. Notice of the special or no progress call and its transfer to Judge Pardy for hearing appeared in the Chicago Daily Law Bulletin of April 13, 1937, the instant case being listed along with many others and the dismissal order in short form appeared in the Law Bulletin of April 17, 1937. On plaintiff’s motion Judge Niemeyer on February 10, 1938, entered an order vacating the order of dismissal of April 17, 1937, and reinstating the case, from which order this appeal is prosecuted by defendants.

After first having presented a motion for the same purpose on November 3,1937, plaintiff on December 31, 1937', filed his amended petition to vacate the order of dismissal of April 17, 1937, alleging inter alia that at the time of its' dismissal for want of prosecution on April 17, 1937, this cause was pending on the regular 1936 trial calendar of Judge Niemeyer; that plaintiff’s motions to strike the answers of defendants and for a rule on them to answer interrogatories and to produce documents were then pending on said judge’s contested motion calendar; that said motions were continued from time to time and were argued by counsel for the respective parties subsequent to the entry of the order of dismissal; that no order of the executive committee of the judges of the superior court was ever entered “directing the preparation of said ‘no progress call’ or directing the dismissal of any cases for want of prosecution when placed upon said call”; and that Judge Fardy had no jurisdiction to dismiss this cause upon such call for want of prosecution.

The State Bank filed a written motion to dismiss plaintiff’s amended petition to vacate, which alleged that “this court does not have jurisdiction to grant the relief prayed for as against this respondent in this cause”; that “said Amended Petition cannot be maintained, for the reason that the order dismissing this cause was entered by the Court on April 17, 1937, and the period within which to vacate said dismissal order of April 17, 1937, is long passed”; that “the court, does not have jurisdiction in this cause to entertain said Amended Petition and is without authority to enter an order reinstating the cause and thus revest itself with jurisdiction”; and that “the order of dismissal of April 17, 1937, was a final order and after the thirty day period passed, this cause was no longer in court nor did any power remain in the Court to entertain jurisdiction in said cause.”

The National Bank filed an answer to plaintiff’s amended petition to vacate the order of dismissal, which admitted that on June 4 and June 7, 1937, its counsel argued before Judge Niemeyer plaintiff’s motion to strike its answer but denied that by so doing it at any time “acknowledged or admitted the jurisdiction of this court over the subject matter and of the parties or that it ever consented to the reinstatement of this cause or to the vacation of the order dismissing this cause for want of prosecution of April 17, 1937, and denied that it ever at any time waived any rights respecting the jurisdiction of this court over this cause”; admitted that Judge Niemeyer’s clerk prepared a list of cases assigned to said judge which had been filed prior to January 1,1934, to be called by said judge from time to time; admitted the transfer to Judge Fardy by Judge Niemeyer of the latter’s no progress call for April 14, 1937; admitted that a printed form of order was entered April 17, 1937, by Judge Fardy, dismissing the cause on the no progress call for want of prosecution; denied that plaintiff had no means of knowing that the cause was dismissed by Judge Fardy; averred that the Law Bulletin of April 13, 1937, carried the following notice: ‘1 Owing to the case on trial before Judge Niemeyer, the call of chancery cases filed prior to January 1, 1937, scheduled to be called tomorrow, will be heard by Judge Fardy tomorrow, in room 829 commencing at 2 p. m. A list of the cases can be found under the latter’s call for tomorrow. ’ ’ It was also averred that the same edition of the Law Bulletin carried under Judge Fardy’s name the no progress call, including the instant case, which had been transferred to him by Judge Niemeyer to be heard April 14, 1937, and that the Law Bulletin of April 17, 1937, under the heading “Judge Fardy” showed this case as having been dismissed by him for want of prosecution; that Judge Niemeyer’s minute book for April 17, 1939, carried an entry of the dismissal order of Judge Fardy and that the chancery docket of the superior court likewise contained an entry of such dismissal order; and that “more than six months had passed since the entry of the order of April 17, 1937, and that by reason of the order of April 17, 1937, and further by reason of the fact that more than thirty days had elapsed from the date of the entry of such order until plaintiff’s motion to vacate same was presented and filed, the court lost jurisdiction and has never been reinvested therewith. ’ ’

Briefly summarizing, this cause was instituted in 1933 and answers were filed by both defendants to plaintiff’s amended complaint after their demurrers to same had been disposed of. The case was placed upon Judge Niemeyer’s chancery trial calendar. Motions which had been presented and filed on January 13, 1937, to strike defendants’ answers and for a rule on them to answer interrogatories and to produce certain documents were pending on said judge’s contested motion calendar, where such motions had been continued from time to time until subsequent to the order of dismissal of April 17, 1937. Thereafter said motions were again continued from April 20, 1937, until May 10, 1937, and argued by counsel for all of the parties on June 4 and June 7, 1937. It appears that neither plaintiff or his counsel nor defendants or then-counsel had any knowledge of the order of April 17, 1937, dismissing the case for want of prosecution until November 2 or November 3, 1937.

Defendants contend that the order of February 10, 1938, vacating the order of dismissal of April 17, 1937, is void because “when the order of dismissal of April 17, 1937, was entered, the court lost jurisdiction of the subject matter of the suit and of the parties; by virtue of the entry of the said dismissal order of April 17, 1937, the court was without power or authority to enter the order of February 10, 1938; and the court had no jurisdiction to vacate the order of dismissal upon the expiration of 30 days after April 17, 1937, where no motion to vacate the said dismissal order was made within 30 days after April 17, 1937.” Defendants further contend that “the court erred in granting relief to a plaintiff who was negligent in connection with the no progress call and the dismissal of the suit on April 17, 1937”; and that “the court erred in holding that the defendants waived the dismissal order of April 17,1937. ’ ’

Plaintiff’s theory, as stated in his brief, is that “the trial court was without jurisdiction to dismiss this case for want of prosecution on April 17, 1937, on a special call, without actual notice to the parties to the cause”; that “said special call was not a trial call . . . said cause was never called for trial, but at the time of dismissal was pending upon both the regular trial call of Judge Niemeyer and his contested motion calendar on motions of plaintiff to strike the answers of both defendants and for a rule on both defendants to answer interrogatories and produce documents”; that “Judge Fardy had no jurisdiction under the statutes of this state, the rules of the Supreme Court of Illinois, or the rules of the Superior Court of Cook County, to dismiss this case for want of prosecution on said special call . . . said order of dismissal was void and of no effect”; that “by appearing, through their counsel, at the time of the entry of the orders of April 20, May 10 and June 4, 1937, and at the time of the argument of the motions in question on June 4 and June 7, 1937, defendants submitted themselves to the jurisdiction of the court and waived the effect, if any, of the order of dismissal”; and that “the order of February 10, 1938, vacating the order of dismissal and reinstating the case was proper and should be affirmed.”

Of the numerous contentions made by the parties only one need be considered. Even though it be assumed that the case was properly dismissed April 17, 1937, did not defendants’ subsequent appearances before Judge Niemeyer on April 20, 1937, and May 10, 1937, when the motions in this cause on his contested motion calendar were continued, and their appearances later on June 4 and June 7, 1937, when such motions were argued, revest the court with jurisdiction? In our opinion defendants, by actively participating in proceedings in the cause after its dismissal, voluntarily submitted themselves to the jurisdiction of the court although neither the parties nor their counsel had any notice or knowledge of the order of dismissal until long after its entry. We think that defendants’ conduct as indicated revested the court with jurisdiction regardless of whether plaintiff could in the instant cause successfully invoke the principle either of waiver or estoppel against defendants.

A somewhat similar situation was" presented in Redwine v. Horrocks, 297 Ill. App. 638 (Abst.). The cause there, which was on the regular trial calendar, was placed through misprision of the clerk on a “No Progress Calendar,” dismissed on the call thereof and the order of dismissal vacated several months thereafter, the case having been tried on its merits by a judge and jury in the interim between its dismissal and the vacation of the order of dismissal and in that case the first division of this court said:

“Furthermore, we think all we have said and all of the contentions made in the briefs are of no importance even if we assume that the case was properly dismissed December 30, 1936, for the reason that within 30 days thereafter, viz., January 26th, an order was entered resetting the case for trial, and for the further and controlling reason that the parties went to trial and tried the case on its merits without any objection. Ill these circumstances both parties would be estopped to say that the court was without jurisdiction to hear the cause because the case had been dismissed more than 30 days prior to the trial, although neither party had any notice of the dismissal until long afterward. Zandstra v. Zandstra, 226 Ill. App. 293; Herrington v. McCollum, 73 Ill. 476.

“In the Zandstra case we said (p. 306): ‘In the Herrington case [73 Ill. 476] the bill was dismissed in 1863. The cause was reinstated in 1865 without notice, and it was contended that the court had no jurisdiction to reinstate the case. The record there showed that after the case was reinstated orders were entered at the request of each of the parties and the case was tried. The court there said (p. 479) : “The court, unquestionably, had jurisdiction of the subject-matter of litigation ; and it has never been questioned that the parties may so far control jurisdiction over their own persons, in such a case, as to confer upon the court the right to proceed, by voluntarily entering an appearance.” ’ ”

After the entry of the order of dismissal all of the parties having participated in proceedings that involved the merits of this cause, the court had jurisdiction of them and of the subject matter. "We are impelled to hold that the order of the trial court vacating the order of dismissal was properly entered and it is affirmed.

Affirmed.

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


author: Mr. Presiding Justice McSurely

text:
    Alice H. Greene, Individually and as Administratrix of Estate of Earle D. Greene, Deceased, Appellees, v. John Citro et al., Defendants. Paul C. Noonan and Joseph Duffy, Appellants.
    Gen. No. 40,178.

      Opinion filed December 21, 1938.
    Rehearing denied January 5, 1939.
    John A. Bloomingston, of Chicago, for appellants.
    Lederer, Livingston, Kahn, Adler & Adsit, of Chicago, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

On the evening of March 5,1935, a Chrysler automobile driven by defendant Paul Noonan collided with a Nash automobile, injuring some of those riding in the Nash car; Alice H. Greene brought suit and had a verdict and judgment against Paul C. Noonan and Joseph Duffy for $1,000; her husband, Earle D. Greene, died from injuries received in the accident, and his administratrix, also suing, had a verdict and judgment against the same defendants for $10,000. Both these defendants appeal.

The Chrysler car belonged to John Gitro, originally made one of the defendants, but under instructions from the trial judge was dismissed from the cause, as was also defendant John Noonan.

Joseph Duffy operated a garage; Paul Noonan was an employee and was driving the Chrysler from Citro’s residence back to the garage, going south on Spring • field avenue when his car collided with the Nash, going west at the intersection of Gladys avenue. Plaintiffs’ complaint alleged general negligence on the part of Noonan in driving the Chrysler car, and also that he wantonly and maliciously drove it at a high and dangerous rate of speed. Defendant Noonan says he was driving his car carefully; that he was approaching from the right of the Nash car and entitled to the right of way at the street intersection; that the Nash was not lighted at the time and the Chrysler was lighted; that the driver of the Nash and its occupants were negligent in failing to see the Chrysler car.

The accident happened about 10 o’clock in the evening; the Nash car was driven by Frank Peterson, although it was owned by a Mr. Wand, who was not in the car at the time; Grace Peterson was sitting on the front seat beside her husband; Mr. and Mrs. Greene, Mary J. Farley and a small boy were in the rear seat; they had been to a church meeting and were returning home, going west on Gladys avenue, when their car collided at the street intersection with the Chrysler car going south on Springfield avenue. At the time of the collision the street lights at the intersection were not lit and it was very dark at that point. The Chrysler headlights were lighted but no one of the five persons in the Nash saw the Chrysler at any time before the collision; Paul Noonan did not see the Nash until just before the collision. The Chrysler struck the right side of the Nash towards the rear when the cars were on the north side of Gladys avenue and the west side of Springfield; the Nash was pushed sideways across Gladys avenue, against the curb on the southwest corner; its axle was broken and the right rear side was very badly damaged.

Noonan says he could see 50 or 60 feet ahead of him with his headlights; that as he approached Gladys he slowed down to about 12 miles an hour and blew his horn, when the Nash suddenly appeared in front of him. It is argued that the lights on the Nash were not burning as the car approached Springfield avenue, but there was testimony to the contrary. Peterson stated to the police and at the inquest that the Nash was going 20 to 25 miles an hour across Springfield. At the trial he testified to 12 miles an hour.

No one in the Nash car saw the Chrysler before the collision, although it is not disputed that its headlights were burning. Noonan’s testimony that he was going 12 miles an hour as he approached the intersection is not denied by any witness.

A controverted point is whether the headlights on the Nash car were on before the collision. It was conceded that they were off after the collision, and defendant Noonan accused Peterson of driving without lights. The owner of the car, Mr. Wand, testified that the lights were in good condition, that they had been checked two weeks before the accident and that he saw them burning properly when Peterson left the church with the car. Peterson and Grace Peterson, his wife, testified that the headlights were on as they approached Springfield, as did Mary Farley, who was riding in the back seat. No one who saw the Nash car prior to the accident contradicted this testimony. A bystander, Sortino, testified that immediately after the accident he felt the reflectors of the Nash headlights and they were warm. Under the circumstances it cannot be said that the jury could not properly reach the conclusion that the lights on the Nash were burning as it approached Springfield avenue, and that they were put out by the force of the collision. Plaintiffs’ counsel seem to question whether the headlig'hts on the Chrysler car were burning, but there is no dispute of Noonan’s testimony that what he called “regular driving lights” were on at the time.

Photographs of the intersection of the streets are in the record which show that all four corners contain buildings built up to the inner edge of the sidewalk, so that it would be impossible for anyone approaching the intersection to see another approaching on an intersecting street until both cars were fairly close to the respective crosswalks.

While Peterson, the driver of the Nash, may have been negligent in driving into the intersection without seeing the Chrysler, yet, as the court properly instructed the jury, his negligence cannot be imputed to plaintiff Alice H. Greene or her deceased husband, Earle D. Greene.

At the conclusion of the evidence defendants Paul Noonan and Joseph Duffy requested the court to instruct the jury to find them not guilty under the wilful and wanton count, which request was refused. On the motion for a new trial the court gave as his reason for denying this motion that no special interrogatory had been presented for the jury to pass upon the question of wilful and wanton conduct. The court further said: “I therefore hold that the verdict as rendered by the jury in this case is a general verdict, and is not a verdict based upon wilful and wanton conduct.” Defendants argue that by the refusal to instruct the jury as to the wilful and wanton count they were deprived of the defense of contributory negligence. One of plaintiffs’ requested instructions was predicated upon the necessity of Earle D. Greene being at all times in the exercise of ordinary care for his own safety.

There was no evidence from which the jury could properly conclude that either Earle Greene or Alice Greene was not in the exercise of ordinary care for his or her own safety. There is no evidence whatever as to what Earle Greene did, and plaintiff Alice Greene, who was sitting in the back seat to the left, was in no position to do anything* which might have avoided the collision. As we said in Schultz v. Live Stock Nat. Bank, 278 Ill. App. 623 (Abst.), quoting in part from St. Clair Nat. Bank v. Monaghan, 256 Ill. App. 471, “if a guest were required at street intersections to look out and warn the driver of approaching cars, ‘a most uncomfortable and hazardous position might be created for the driver of a car who happened to have several passengers as guests.’ If all the passenger-guests should constantly be warning and directing the driver how to proceed he would be so distracted as to be unable to drive the car carefully. Back seat driving should not be encouraged.”

The witness Jaffe testified that the Chrysler, going south, stopped at Jackson, which is a short (half) block north of Gladys avenue; that after it had continued south on Springfield and he had walked a distance estimated at about 70 feet he heard the crash of the collision at Gladys and Springfield. Gladys is approximately 400 or 4.50 feet south of Jackson, and defendants ’ counsel submitted figures, which do not seem to be disputed, that Jaffe’s testimony indicates the Chrysler moved from Jackson to Gladys at the rate of approximately 15 miles an hour. At least, the evidence of this witness is not sufficiently definite as to the speed of the Chrysler as to justify any conclusion that it was going at “terrific speed.” It is also sought to support the wilful and wanton count alleging excessive speed by the damaged condition of the Nash car. As was said in Glover v. Southern Transp. Co., 16 La. App. 63, 133 So. 474, “. . . it is difficult to account for the antics of a car after a collision. ...” Under somewhat similar circumstances in the case of Larsh v. Strasser, 183 Iowa 1360, where it was argued that an excessive rate of speed could be inferred from the circumstances, it was held that there was no basis on which to found deductions as to the rate of speed of either vehicle. Peterson was the only witness testifying to the exact damage to the Nash, although there were general statements by other witnesses. Peterson says there was a dent in the side and the chassis bent and a wheel broken and axle damaged. There is no evidence as to how much of this was caused by the respective speeds of the cars. At least, there was no sufficient basis for the jury to conclude that the Chrysler was being driven with wilful and wanton negligence.

Defendants criticise the instruction given at plaintiffs ’ request touching the right of way. The criticism is technical and the instruction on this subject, given at the request of the defendants, properly covered the question. Moreover, even if Peterson was in the wrong in this respect, which is not conceded, his conduct could not be imputed to Earle or Alice Greene, and while there is no direct evidence as to the position of either car as it entered the intersection, it is apparent that the Nash was well across the intersection before the Chrysler entered the intersection. The statute does not give to one entitled to the right of way license to run into the other car regardless of its position. The fact that the drivers of both cars testified that they were ignorant of the position of the other car removes to some extent the applicability of the statute.

We cannot say that the verdicts are sufficiently large to indicate passion and prejudice on the part of the jury. Mr. Greene at the time of his death was 46 years of age, had a responsible position with Sears, Roebuck & Company, was the father of three children, and at the time of his death was earning more than $3,000 a year and also participated in the profit sharing plan of his employer. The amount of the verdict is not excessive. Neither is the verdict of $1,000 for Alice Greene.

Defendants’ counsel makes some criticism of the conduct upon the trial of counsel for plaintiffs, and there is some justification for this, but we do not think there is anything of sufficient importance to require a reversal.

We are in accord with the statement of the trial court that the verdict rendered is a general verdict and is not a verdict based upon the wilful and wanton count. (See special concurring opinion of Mr. Presiding Justice O’Connor in Price v. Bailey, 265 Ill. App. 358.)

The judgments, based upon the verdict of general negligence, are affirmed.

Affirmed.

Hatchett and O’Connor, JJ., concur.,


author: Mr. Justice O’Connor

text:
    Martin Burton, Appellant, v. Jed Harris et al., Appellees. United Booking Office, Inc., and Lake City Theatre Operating Company, Appellees.
    Gen. No. 40,241.

      Opinion filed December 21, 1938.
    Willard C. Walters and Thomas H. Fisher, both of Chicago, for appellant.
    Bernstein, Zolla & Bernstein, of Chicago, for appellee J. H. D. H., Inc. and certain appellees.
    Bell, Boyd & Marshall, of Chicago, for certain other appellees.
   Mr. Justice O’Connor

delivered the opinion of the conrt.

December 3, 1937, plaintiff brought an action against Jed Harris and J. H. D. H., Inc., a corporation, to recover damages claimed to have been sustained by reason of defendants’ breach of a contract. Plaintiff alleged that he had suffered damages of $15,000. “UnitedBooking Office, Inc., individually and as Booking Agent for the Grand Opera House, Chicago, ’ ’ was named as garnishee and the ‘ ‘ Supplemental Statement of Claim” alleged that the amount claimed from the garnishee was limited to $1,000, and on December 3, the conrt fixed the attachment bond at $2,000. On the same day there appears in the record “Amended Statement of Claim” in which it is alleged “The plaintiff claims as follows: 1. As set forth in plaintiff’s original statement of claim.” On the back of this it is averred that the two defendants are residents of New York City. A “Writ of Attachment and Garnishee Summons” was issued December 3, and the bailiff’s return recites that he has been unable to find any property on which to levy the writ and “by order of Plaintiff’s Attorney I have served this writ on the within named Lake City Theatre Operating Company” etc., by delivering a copy of the papers together with interrogatories to Sam Gerson, agent of the Lake City Theatre Operating Company. The return is dated December 3. There also appears in the record another writ of attachment and garnishee summons dated December 3, in which “United Booking Office, Incorporated individually and as booking agent of and for Grand Opera House Chicago” is named as garnishee; and on the same day two sets of Interrogatories were filed by plaintiff, in one of which the Lake City Operating Company, etc., is named as garnishee and the other, the United Booking Office and Lake City Theatre Operating Company, etc. On the same day plaintiff filed his attachment bond; on December 4, each of the garnishees filed separate answers to the interrogatories answering “no funds” in their possession belonging to defendants.

December 7 there appears in the record a summons in which Joseph Glick, Lake City Operating Company and United Booking Office, Inc., are named as additional defendants to the suit. This was done by leave of court, and on the same day, plaintiff filed an amended praecipe and “Supplemental Statement of Claim” in which the amount claimed is $15,000, and counsel for both sides say in substance that this supplemental statement of claim alleges an action in tort.

On the same day a summons issued against the three additional defendants and the bailiff’s return shows that December 8 he served the three additional defendants, Lake City Operating Company and United Booking Office by delivering a copy of the papers to Sam Gerson, agent, and that he served defendant Glick personally.

December 20, each of the five defendants, the two original and three additional defendants, filed a special and limited appearance questioning* the jurisdiction of the court and moved to quash the service of summons. The three additional defendants, Glide, Lake City Theatre Operating* Company and United Booking-Office, Inc., asked that the cause be dismissed as to each of them. December 20, an order was entered which recites, among other things, that plaintiff contests the answer of the two garnishees, Lake City Theatre Operating Company and United Booking Office, Inc.

February 23, on motion of plaintiff an order was entered that “the Garnishee, United Booking Office, Inc., a corp., be discharged as to all garnishments. ’ ’ February 25, an order was entered on motion of defendant “United Booking Office, Inc., ... to quash summons dated December 7th, 1937, and the Court being fully advised in the premises, sustains said motion.”

February 28 an order was entered which recites that on motion of defendant, J. H. D. H. Inc., “to quash attachment writs as to Lake City Theatre Operating Co., as garnishee, and the Court being fully advised in the premises, sustains said motion.” The order continues that plaintiff moves to compel defendant, Lake City Theatre Operating* Co., to file a general appearance, but the motion was overruled. The order then recites that defendant, Lake City Theatre Operating Company moves to dismiss the cause stated in paragraph 2 of the Statement of Claim filed December 7, for want of jurisdiction over the subject matter, which motion was sustained.

March 17 plaintiff filed a notice of appeal in which he states he appeals from “that part of the judgment entered ... on the 25th day of February, . . . which sustained the motion of the defendant, United Booking Office, Inc.,” etc., to quash the summons dated December 7, and from that part of the judgment entered February 28, which sustained the motion of defendant, J. H. D. H. Inc., to quash the attachment writ as to the Lake City Theatre Operating Company, garnishee. The notice of appeal continues and prays that the judgments mentioned in the Notice of Appeal be reversed so that the United Booking Office, etc., be required to file a general appearance or be defaulted and so that the Lake City Theatre Operating Company be made a defendant garnishee and required to file a general appearance “as such garnishee-defendant.”

While we have not referred to all that appears from the record, we think it sufficient to show, as stated by counsel for defendants, that “the case clearly shows a very complicated and confused piece of litigation,” and we regret to say that counsel' for defendants have not clarified the matter very much, but on the contrary, on the cover of their brief listed the names of the parties upside down, a practice that has been abandoned for more than 30 years in this State. (See old Practice Act, sec. 99, ch. 110, Hurd’s Eev. Stats. 1908; sec. 21 Civil Practice Act, Ill. Rev. Stat. 1937, p. 2386 [Jones Ill. Stats. Ann. 104.021].)

As we understand the briefs, the point made by defendants, that the amended and supplemental statement of claim filed by plaintiff on December 7, in which $15,000 is claimed, alleges a claim based upon a tort, and that the municipal court has no jurisdiction in such a case, where the amount claimed is more than $1,000. And this seems to be conceded in plaintiff’s reply brief; therefore the court properly struck the 2nd paragraph of the supplemental statement.

The principal point, however, made by plaintiff, as stated by counsel, is ‘ ‘ Can a garnishee defendant in an attachment suit, in which it has filed a sworn answer by a corporate officer or duly authorized agent to interrogatories and appeared by counsel in support of such answer, thereafter contest jurisdiction of the court over its person on the ground that summons upon it as a principal defendant was upon a" person not its agent?” The argument is that since the two garnishees entered their respective unlimited appearance when they answered the interrogatories, they cannot urge that the court did not obtain jurisdiction of them when they were made additional parties to the suit because no proper service was had upon them,— the person ivho was served, not being the agent of either of the parties. We are unable to agree with this contention. It is true that the two garnishees filed answers to the interrogatories and did not limit their appearance in the technical sense but at that time they were not defendants to the main suit. The only question as to them was whether either of them had in its possession any property or effects of defendants. Afterward plaintiff by leave of court, added them and another as additional defendants to the main suit and took out a summons and had the bailiff attempt to serve them. In these circumstances he ought not how be permitted to attempt to stultify himself and say that no summons was necessary to make them a party defendant to the main suit. Moreover, ;we are clear that the two garnishees would have to be summoned in the regular way before they could be made defendants to the main suit. They did not enter their appearance as defendants to the main cause of action when they answered the interrogatories.

The orders of the municipal court of Chicago appealed from are affirmed.

Orders affirmed.

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


author: Mr. Justice Fulton

text:
    O. M. Wilkin et al., Appellants, v. Citizens National Bank of Paris et al., Appellees.
    Gen. No. 9,119.

      Opinion filed October 14, 1938.
    Rehearing denied January 3, 1939.
    Jones, Grant & Jones and Reariok & Rbariok, both of Danville, for appellants.
    Acton, Acton & Baldwin, of Danville, Riley McClain and Benjamin H. Redman, both of Paris, and Craig & Craig, of Mattoon, for appellees.
   Mr. Justice Fulton

delivered the opinion of the court.

This is a suit brought by certain stockholders of the First National Bank and Trust Company of Paris, Illinois, now the appellants, against the Citizens National Bank and the Edgar County National Bank, both of Paris, Illinois, and others, the appellees, arising out of a certain contract dated January 18, 1931, between the three above named banks.

The complaint alleges that the plaintiffs are all stockholders of the First National Bank and Trust Company of Paris, Illinois, and that on January 18, 1931, a written contract was entered into between the three banks above named. All three were national banks and actively engaged in the conduct of the banking business in the city of Paris, Illinois. Under the second paragraph of said contract the Citizens Bank of Paris, Illinois, and the Edgar County National Bank, of Paris, Illinois, undertake as follows:

“We the undersigned hereby promise and agree to guarantee and assume the Liabilities of the First National Bank and Trust Company of Paris, Illinois, as shown by the books of the First National Bank and Trust Company of Paris, Illinois, as of the close of business January 17, 1931. (See Statement attached.)”

In paragraph three of the contract it is stated; “Immediate credit will be given all creditors of the First National Bank and Trust Company of Paris, Illinois, on their deposits and liabilities at either of the banks named upon the request of the customers or creditors.”

Paragraph four of the contract reads as follows: “ All of the assets of the First National Bank and Trust Company of Paris, Illinois, of any character whatsoever will be immediately turned over to the Trustee or Trustees to be selected by the banks who are parties under the terms of this agreement. ’ ’

Paragraph eight of said contract provided: “It is understood that none of the liabilities of the old shareholders of the First National Bank and' Trust Company of Paris, Illinois, will be affected by this agreement, and it is specifically agreed that all rights as to the stockholders assessment, if such assessment becomes necessary, will be preserved for the benefit of the parties signing this agreement.”

Paragraph ten of the contract provides:' “ The Directors of the First National Bank and Trust Company will immediately proceed to call a meeting of the' stockholders as required by law and vote to place the bank in voluntary liquidation. ”

A statement of the resources' and liabilities of the First National Bank and Trust Company was attached to the contract. The complaint further alleges that at the time of the execution of said contract said. First National Bank and Trust Company had assets and resources as set forth in the schedule attached to said contract in the amount of $1,176,598.81; that contemporaneous with the execution of the said contract and as a part of the consideration therefor a contract of indemnity was entered into between the directors of the said First National Bank and Trust Company and the said • Citizens National Bank-and Edgar County National Bank wherein and whereby- the directors guaranteed payment of deficits up to $50,000.

The complaint further charges that no accounting has ever been given to the stockholders of the First National Bank and Trust Company and particularly that the defendants did not carry out .their obligation to guarantee, assume and discharge the liabilities specified in said contract as capital stock, surplus fund or undivided profits. The complaint prays for an accounting and that damages might be assessed in favor of the plaintiffs and against the defendants on account of the alleged breach above recited, or in the alternative that a decree be entered to specifically perform the terms of said contract.

The answer of the defendants admitted all the allegations of the complaint except the following: As to the written contract of January 18, 1931, between the three, banks they aver that if said instrument should be construed to mean that thereby the defendant banks guaranteed to assume and discharge the liabilities of said First National Bank and Trust Company-specified as capital stock, surplus fund or undivided profits, the execution of said instrument was not authorized by the directors of said respective banks, or any of them, and is not a valid and binding contract, the only authority being given to the officers of said respective .banks was to execute a contract whereby the said defendant banks would assume the deposit liabilities of said First Ñational Bank and Trust Company. The answer further denied that upon the execution of the contract the defendant banks took possession of the assets and resources of the First National Bank and aver that said assets were transferred to the trustees appointed pursuant to said contract, which trustees now file with said answer an accounting as prayed.

The answer further denies that the defendants failed to carry out their contract; deny that the capital stock, surplus fund or undivided profits are included among the liabilities to be assumed and discharged in said contract, averring that the true construction of the contract as understood by the contracting parties was that only the deposit liabilities were to be assumed; admit that the plaintiffs were entitled to an accounting which was attached to and made a part of the answer.

The defendants also filed a counterclaim asking that the contract of January 18, 1931, be reformed to correct an error of fact and to show that word “liabilities” should have read that they assumed the “deposit liabilities.” A formal replication was filed by the plaintiffs to the said counterclaim.

In the statement attached to the contract under the page entitled “Liabilities” the following three items appeared:

“Capital Stock ...............$150,000.00
Surplus Fund............... 20,000.00
Undivided Profits ........... 7,254.07”

The cause was referred to the master in chancery who heard the evidence and reported his conclusions recommending that the complaint be dismissed for want of equity. A final decree was entered November 18, 1937, overruling exceptions to the master’s report and dismissing the complaint for want of equity. From that decree the present appeal has been perfected,

It is the' contention of the appellants that the contract in this case was full and complete and was not ambiguous in any of its terms and therefore the negotiations leading up to its execution, what was said by the parties at that time and their subsequent conduct, could not be considered in its interpretations. They rely entirely upon the premise that the word “liabilities” legally and technically includes, “Capital stock, surplus and undivided profits,” and can have no other meaning.

The appellees insist that the word “liabilities” under the contract in this case does not mean to include “Capital stock, surplus and undivided profits”; that the relation of a stockholder to a corporation is not that of a creditor but merely as a part owner of its assets after its debts are paid. They further urge that the appellants cannot maintain their position in this case unless they succeed by competent proof in showing as a matter of construction that the word “liabilities” was used in the contract in this case with the intention of the contracting parties to include “capital stock, surplus and undivided profits.”

The issue involved in this case is therefore, whether under this contract the liabilities assumed by the two banks were limited to what is known as deposit liabilities or whether said banks were answerable and accountable for capital stock, surplus fund and undivided profits to the stockholders.

It is manifest that if the contract in question had a definite fixed meaning and was free, from ambiguity that the court should not concern itself with the negotiations- of the parties, the surrounding circumstances or the intention at the time of the execution of the instrument. It is well established by the decisions of our courts that a court of equity may not under the guise of construction make a new or different contract for the parties. Gibbs v. People’s Nat. Bank, 198 Ill. 307. Neither does the court have any power to import into a contract other or additional provisions. Burt v. Garden City Sand Co., 237 Ill. 473. It is also definitely settled that in determining whether or not there is such an ambiguity as calls for an interpretation of a contract the whole instrument must be considered and not an isolated part thereof. West v. Ranney Refrigerator Co., 261 Ill. 560., An examination of the entire contract leads us to believe that there might be some doubt about the meaning of the word “liabilities” as used in the second paragraph of the contract. It is a well known principle of law.that a stockholder of a. corporation is not a creditor of said corporation and that a stockholder in a bank is not entitled to share in the proceeds of what a receiver shall realize out of the assets until all the debts are paid. Chicago Title & Trust Co. v. Central Trust Co., 312 Ill. 396.

It is clear from a reading of this contract that the assets of the First National Bank and.Trust Company were not sold to the guarantor banks but were turned over to the trustees. If this were not a fact there would have been no need of providing for trustees in the contract. Its provisions show that the money advanced by the guarantor banks was simply a loan or advancement upon which they were to receive 5 per cent interest upon the money advanced; The two guarantor banks were to participate' in the trusteed assets only to the extent necessary to reimburse them. The contract further provides for immediate credit to be given to the creditors of the First National. Nothing is said about the stockholders. It is further provided in the contract that none of the liabilities of the old shareholders of the First National Bank will be affected by this agreement and that all rights as to the stockholders’ assessment will be preserved for the benefit of the parties signing the agreement. It seems inconsistent with the intention of the contracting'parties that the stockholders should be guaranteed the par value of their stock and their proportionate share of undivided profits and surplus and also provide that they remain liable for their assessment under their stock liability. The mere parenthetical reference ‘ ‘ See statement attached” which included under liabilities the capital stock, surplus and undivided profits would not of itself in our judgment make those items a liability of the corporation. Because of the facts above stated we believe there is considerable doubt as to the meaning of the word “liabilities” as used in this contract. Before it can be said there is no ambiguity the court must conclude that the word in question is only capable of one interpretation, and that conclusion must be determined from a consideration of the entire contract and not from some single portion thereof. By reason of the doubt arising as to the true sense and meaning of the word “liabilities” the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument, and in such case parol evidence is necessarily admissible,, and the court in order to place itself as nearly as possible in the situation of the parties at the time will consider all the facts and circumstances leading up to and attending the execution of the contract. In the case of Weber v. Adler, 311 Ill. 547, the- court said:

“A latent ambiguity occurs where a writing appears on its face clear and unambiguous, but which, in fact, is shown by extrinsic evidence to be uncertain in meaning, or where a description apparently plain and unambiguous is shown to fit different pieces of property, and in such case, the ambiguity being raised by extrinsic evidence, the same kind of evidence may be admitted to explain it or identify the property referred to in the writing.” The same principle is discussed and announced in the case of Ouska v. Pearson, 291 Ill. App. 6. The latter case also holds that, “considering the document then as a whole and not as expressing an agreement in any single provision or word we hold that the contract, literally construed, would be unusual, inequitable, and such as reasonable men would not likely enter into.” Concluding therefore, that the contract was of such doubtful meaning as to permit the court to take into consideration all the facts and circumstances surrounding the parties at the time it was signed the following testimony was competent for the court to consider. On October 9, the First National Bank of Paris was examined with the result that an impairment of the capital stock of $132,825 was clearly shown. The comptroller notified the bank that the stockholders must pay in that amount within three months or the bank would have to close its doors. Being unable to raise the required amount, the chief national bank examiner, W. S. Cutler, called in the presidents of the two other banks and laid the situation before them. After many conferences and negotiations in which Cutler told the other banks they would have to take over the deposit liability of the First National, if they wished to prevent the closing of such bank, the contract in question was entered into. At all of the discussions there was only mention made of deposit liabilities and the other two banks refused to ass.ume the deposit liabilities without a further guarantee being signed by the directors of the First National Bank herein before mentioned. He further testified that the intention was that all the assets should be trusteed and that the two banks would be paid in full for the deposit liabilities they assumed; that the shareholders of the First National Bank would get .only what was left and that they would receive nothing unless there was an excess of assets to pay the deposit liabilities. There is no contradiction to the testimony of the witness Cutler., The minutes of the board of directors of both the guarantee banks stated substantially that they approved of the contract assuming the deposit liabilities of the First National Bank and taking in payment thereof the assets of the First National Bank, said assets to be trusteed under a special agreement. A motion was carried authorizing the president and cashier to sign agreements to carry out such arrangements. A full accounting appears to have been made by the trustees as to their management of the assets.

To our minds it is plainly apparent from the record in this case that all contracting parties fully understood that the liabilities assumed by the creditor banks were only the deposit or public liabilities of the First National Bank. The directors and officials of both the Citizens and Edgar County Banks so understood it as expressed in the minutes of their meetings. Cutler at all of the conferences explained that to be the contract and there is no intimation by any person connected Avith the case, either as a stockholder or othermse, that it was contended that the creditor banks had to pay off the stockholders. To hold the guarantor banks to such a literal construction of the contract would in this case be unusual, inequitable and such as reasonable men Avould not likely enter into.

Under our view of the necessity for a construction of this contract by extrinsic evidence, Ave think it Avas proper for the trial court to deny the appellees relief on their counterclaim asking for reformation of the contract.

For all of the reasons hereinabove expressed, we hold that the decree of the circuit court dismissing the complaint for want of equity was entirely warranted by the record in this case; that the same is supported by the competent proof and is therefore affirmed.

Affirmed.