text:
    Anna L. Bauer, Appellee, v. Philip C. Lindgren et al., Defendants. Philip C. Lindgren and Heitman Trust Company, Appellants.
    Gen. No. 37,972.

      Opinion filed March 29, 1935.
    Hershenson & Hershenson, of CMcago, for appellants.
    Shulman, Shulman & Abrams and Salinger & Alexander, all of Chicago, for appellee; Meter Abrams, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Complainant, on November 1, 1934, filed her verified bill against Philip C. Lindgren, Heitman Trust Company, a corporation, et al., which prayed for the following relief: The removal of Heitman Trust Company, as trustee under a trust deed securing a principal indebtedness of $125,000; for the appointment of a successor trustee; for the appointment of a receiver during the pendency of the cause; for an accounting; that all funds received and wrongfully disbursed be returned; that the title acquired by defendant Lindgren be adjudicated as belonging to all bondholders and that he be declared to hold the title of trustee for them. As soon as the bill was filed, complainant’s solicitors notified defendants Lindgren and Heitman Trust Company that on Friday, November 2, 1934, at 10 a.m., they would appear before Judge Lewis and present “a motion for the appointment of a Receiver for the premises located at 915 Dakin Av. and for such other relief as the court, in its discretion may deem meet.” On November 2, 1934, Judge Lewis continued the motion until November 3, 1934, upon the condition that said defendants “will file no other bill to foreclose nor do any other act until the hearing of this cause on Nov. 3,1934.” On November 3 the chancellor entered the following order:

“This cause coming on to be heard on motion of Anna L. Bauer, plaintiff, by Salenger & Alexander, her attorneys, for the appointment of a Receiver for the premises located at 915-917 Daten Avenue, Chicago, Illinois, and the court having before it the sworn bill of complaint and having heard argument of counsel and being fully advised in the premises doth find that it is alleged in the bill of complaint.

“I.

“That Anna L. Bauer is the legal owner and holder of Bond No. 125 secured by a trust deed dated May 2, 1928, on the premises located at 915-917 Dakin Avenue.

“II.

“That on May 5, 1931, Heitman Trust Company, as Trustee, exhibited a sworn bill of complaint alleging therein

“(a) That Philip C. Lindgren and Heitman Trust Company are manipulating the proceeds of the property in such manner as to deprive the owner of the bonds outstanding from gaining the proceeds from the estate, as alleged in bill of complaint.

“(b) That Heitman Trust Company is wholly incompetent to proceed as trustee of the above entitled cause and that it would be for the benefit of all bondholders as well as for all persons interested in the said property to immediately remove Heitman Trust Company, as Trustee, and appoint a receiver to manage, control and operate the premises hereinabove referred to.

“Now Therefore, It Is Hereby Ordered that Oscar Weiner be and is hereby appointed Receiver of and for the premises located at 915-917 Dakin Avenue, Chicago, Illinois, and collect the rents issues and profits therefrom during the pendency of this suit, and use all such rents, issues and. profits to pay all receivership expenses and for repairs, insurance taxes and assessments upon the said premises due, or which may accrue during such receivership, and that the remainder of said rents, issues and profits of said property shall be applied toward the payment of interest on the bonds secured by the trust deed herein sought to be foreclosed, and that' the Heitman Trust Company attorn to the receiver herein.

“It Is Further Ordered that all moneys now on hand with the Heitman Trust Company or with Philip C. Lindgren be immediately turned over to the receiver.

“It Is Further Ordered that Heitman Trust Company be restrained from proceeding in any court with any foreclosure proceedings until the further order of this court.

“It Is Further Ordered that the receiver file his bond in the sum of $5,000.00 with good and sufficient surety, and that the complainant file her bond in the sum of $500.00 to the entry of which order the defendant Philip C. Lindgren and Heitman Trust Company duly object and except.

“Enter Harry A. Lewis

Judge.”

From that order this interlocutory appeal is prosecuted by defendants Lindgren and Heitman Trust Company.

In so far as it is material .to this appeal, the bill alleges the execution of 160 bonds and a trust deed, on May 2, 1928, by Harry Yavitch and his wife; that the sum of the principal indebtedness was $125,000; that complainant was the holder of one bond; that Article 9 of the trust deed provides for partial foreclosure by the holder of a single bond subject to the continuing and prior lien of the remaining bonds; that complainant has so subordinated her bond; that on May 5,1931, Heitman Trust Company, the trustee in said bond issue, filed a bill, as trustee, against Harry Tavitch et al. for the partial foreclosure of bonds numbered 19 to 24, aggregating $3,000, at the demand of defendant Lindgren, the alleged owner thereof; that thereafter an order was entered that the bill be dismissed, the receiver discharged, and the premises turned over to Heitman Trust Company, as trustee in possession; that no notice of such proceedings was given to complainant ; that Heitman Trust Company, not Lindgren, was the real legal holder and owner of the bonds; that thereafter Lindgren acquired the title to the premises and complainant “verily believes” that the funds to acquire the title were acquired from the income from the premises which the said trustee received while in possession; that on March 13, 1934, Heitman Trust Company wrote to complainant and other bondholders, suggesting a reduction of the interest to three per cent and requesting the bondholders to consent thereto; that the bondholders were led to believe from said letter that the Heitman Trust Company was attempting to obtain an extension for a bona fide holder, but that in reality it was attempting to obtain an extension for its own interest; that defaults were made in the payment of taxes but the bondholders were not informed thereof-. The bill further alleges:

“XVII.

“That plaintiff is also informed and verily believes the information to be true and so charges the facts to be that the Heitman Trust Company is managing the property and making repairs, but has secret views to receive a rake-off on such repairs, supplies and material in amounts unknown to plaintiff, and so it would appear upon the trial of this cause and that it is contrary to the conscience of the Court of Equity that permit such a trustee whose interest is in conflict with the interest of the bond holders and who has violated its true duty and obligations to manage and operate the premises and to use the income for its own purposes and that a receiver should immediately be appointed to collect the rents, issues and profits and to manage and operate the premises under the control of the court, and that the Heitman Trust Company should be required to attorn to such Receiver and to turn over all funds in its possession and file a true and accurate account of all moneys received and moneys disbursed.

“XVIII.

“Plaintiff further says that she was informed and verily believes the information to be true that it is the intent of the Heitman Trust Company and said Philip C. Lindgren to hold the property for their own use and benefit and to purchase the existing bonds at nominal prices so that they would acquire the property free and clear from the lien of the bond holders and due to the fact that under the terms and provisions of the trust deed, the exclusive right of action is in the said Heitman Trust Company, and no bond holder has the right to maintain any action unless a demand be made by the requisite number upon said Heitman Trust Company to foreclose; the said trust company has placed itself in a masterful position by which it can control the management of the property, the operation thereof and if any bond holder would desire to protect his rights, he must subordinate his bonds to that of the other bond owners; ...”

In the hearing of the motion on November 3 the counsel (Mr. Salinger) who appeared for the complainant informed the chancellor that the trustee had been in possession and control of the building since 1931. Counsel for defendants then called the attention of the chancellor to the fact that the bill was not one for the foreclosure of the trust deed but for the removal of the trustee and the appointment of a receiver, and that the bill “was on information and belief,” whereupon the chancellor stated, “I must assume that the allegations are true.” Counsel for defendants stated that Heitman Trust Company “is in possession of this building as trustee, for the benefit of the bondholders,” and argued that the chancellor would not be justified in granting the motion under the allegations of the bill, but that, in any event, the chancellor should not pass on the motion until he took evidence or referred the matter to a master to take evidence; that defendant Heitman Trust Company was a trust company authorized to do a trust business under the laws of this State and that it had $200,000 upon deposit with the State auditor but that it would put up a bond in any amount that the court might fix “in lieu of the appointment of a receiver.” The chancellor then stated that he wanted to find out what was the matter with the building and that he was going to appoint a receiver to investigate the Trust Company, and that if the receiver found that the trustee was not acting dishonestly he would remove the receiver and restore the trustee to possession. Defendants’ counsel called the attention of the chancellor to the fact that he was acting upon the bill only, whereupon the chancellor stated “and on the statement of counsel.” Complainant was then called to the stand to testify in her own behalf. It appears from her testimony that she had no personal knowledge as to any material facts bearing upon the charge that the trustee was guilty of dishonesty or misconduct in the performance of its duties, that her information as to “rake offs and secret deals” came to her from her lawyer, that he told her “that the Heitman Trust Company used the rents out of this building to purchase the title,” that she did not know of any bonds that the defendants purchased. The following then occurred: “Mr. Hershenson (solicitor for appellants): This is a suit to remove the trustee and appoint a receiver. Mr. Salenger (solicitor for complainant) : And ive allege it on information and belief. Mr. Hershenson: That is the whole thing. The whole bill is, in fact, on information and belief. Mr. Salenger : We show our information and show our belief and you dare not let it go through. Mr. Hershenson: Why don’t you let the matter go to a complete hearing ? The Court: I will appoint a receiver and if, • after three or four months we find that that is unnecessary, we will dismiss him. Mr. Hershenson: Why not let this matter go to a master? We can take testimony starting Monday morning, and finish it within a day or so. The Court: No, I don’t care to have this matter go to a Master. I haven’t confidence in them, as influence can be brought to bear upon them. Mr. Hershenson : If the Court please, you may refer it to your own Master, if you haven’t any confidence in the other Masters of this Court. The Court: I will not refer it to a Master. Whom do you want as receiver? Mr. Salenger: Oscar Weiner. Mr. Hershenson: Now, if the Court please, I want to offer some evidence here. The Court: I don’t care to hear any evidence from you. Mr. Hershenson: Well, will you permit me to make an offer of proof? The Court: No. Mr. Hershenson : I am objecting to the appointment of a receiver here. I think it is absolutely unfair for the Court to appoint a receiver based on the evidence that has been heard. The Court: I am sorry. I am going to appoint a receiver. Mr. Hershenson: Your honor, you are not going to appoint a receiver when there is a dispute as to the ownership of her bonds? Mr. Salenger: If we seek to remove the trustee on her say so, we have a right to a receiver anyway. Mr. Hershenson : If the Court please, this is a sworn bill based on information and belief. The Court: It may be. I just want to be fair. Mr. Hershenson: The evidence offered in this case has been all put in by the plaintiff. Mr. Salenger: You called them as your witnesses. The Court: I don’t need any evidence on the bill. Mr. Salenger: What is the bond, if the Court please? The Court: The income is $800.00 a month. Mr. Hershenson: The receiver’s bond ought to be $10,000.00. Mr. Salenger: We will give more than that if the receiver’s leases will warrant a larger bond. The Court: The receiver can do much. Mr. Salenger: We will get that old lease set aside. What is the bond? The Court: The income is $800.00 a month. I suppose $5,000.00 for the receiver and $500.00 for the plaintiff’s bond. Mr. Hershenson: I think it ought to be double that, if the Court please. Counsel has made a statement that they were willing to put up any amount of bond. We want a substantial amount for the plaintiff’s bond. The Court: You have a $5,000.00 bond. Mr. Hershenson : We ought to have a bond for $10,000. The Court: If we find out that this action is not necessary, we will turn the building right back to you. Mr. Hershenson: May I ask whom your Honor is going to appoint as receiver ? I ask if a receiver is going to be appointed, that you appoint a bank or a trust company. Mr. Salenger: No, no trust company. Mr. Hershenson: The Chicago Title and Trust Company, the Continental Bank, or any bank or trust company. Mr. Salenger: No bank and no trust company. There are no more trust companies. The Court: I will appoint Oscar Weiner as receiver. That is all. Mr. Hershenson: May I see a copy of the order? I don’t know how the Court got this order. I think I should have seen the order before it was entered.". Miss Reporter, will you just let the record show that the order has been entered without my having seen a copy of it? The Court: I will give it back so you can read it. Mr. Salenger: It is just an ordinary appointment for a • receiver, Judge; there is nothing in there out of the ordinary. (Handing document to counsel.) Mr. Hershenson: If the Court please, there are a lot of findings in here. Just let me read you one paragraph here. ‘That the Heitman Trust Company is wholly incompetent to proceed as Trustee of the above entitled cause, and that it would be for the benefit of all the bondholders, as well as for all persons interested in said property, to immediately remove the Heitman Trust Company as trustee, and appoint a receiver to manage and control and operate the premises herein above referred to.’ You are prejudging this case. The Court: I will insert: ‘as alleged in the bill of complaint.’ ”

Complainant attempts to justify the order of November 3 by a reference to pleadings subsequently entered in the cause. This interlocutory appeal is from the order of November 3 and we must determine the appeal by the record as it was on that date.

The order is based solely upon the allegations of the bill, and the chancellor assumed, apparently, that the allegations were sufficient to support the following finding in the order:

“That on May 5, 1931, Heitman Trust Company, as Trustee, exhibited a sworn bill of complaint alleging therein

“ (a) That Philip C. Lindgren and Heitman Trust Company are manipulating the proceeds of the property in such manner as to deprive the owner of the bonds outstanding from gaining the proceeds from the estate, as alleged in the bill of complaint.”

It was solely upon that finding that the chancellor made the following finding:

“(b) That Heitman Trust Company is wholly incompetent to proceed as trustee of the above entitled cause and that it would be for the benefit of all bondholders as well as for all persons, interested in the said property to immediately remove Heitman Trust Company, as trustee, and appoint a Receiver to manage, control and operate the premises hereinabove referred to.” We find no allegation in the bill that would support finding (a). Yet upon such an unwarranted and absurd finding the chancellor predicated the further finding (b), and the important and far-reaching orders that follow are based upon findings (a) and (b). Complainant asks us to consider the allegation “that on May 5, 1931, Heitman Trust Company, as Trustee, exhibited a sworn bill of complaint alleging therein,” as “a mere clerical error made by the draftsman of the decree,” and to disregard it and to read into the order, in lieu thereof, the following words, “that complainant’s sworn bill alleges therein.” We, of course, cannot follow this request. Nor do we find anything in the proceedings to warrant the assumption that the words that complainant now asks us to disregard were written in the order by “mere clerical error.” Complainant drew the order and it appears from the proceedings of November 3 that the solicitor for defendants did not see it until it had been entered. But even if we followed the suggestion of counsel, the allegations df the bill, as we have heretofore stated, would not warrant finding (a) nor (b). On November 3 the trustee under the trust deed was in possession and control of the premises for the benefit of the bondholders. The bill was brought by an alleged holder of one bond, who, in her bill, expressly subordinates it to the balance of the bonds secured by the trust deed. Neither the bill nor the evidence of complainant warranted a finding of misconduct on the part of the trustee and the chancellor had no right to disturb the possession of the trustee. (See Altschuler v. Sandelman, 264 Ill. App. 106; Consumers Bond & Mtg. Co. v. Sadin, 266 Ill. App. 141; Wolkenstein v. Slonim, 355 Ill. 306; American Trust & Safe Deposit Co. v. Eldred, 267 Ill. App. 176.) The position of complainant, a holder of a subordinated bond, is parallel to that of a second mortgagee and her legal status is the same: (Lavelle v. Steiner, 270 Ill. App. 131.) The chancellor refused to allow the trustee to offer any evidence touching the alleged misconduct and he was of the opinion that regardless of the fact that the material allegations in the bill as to the conduct of the trustee were made upon information and belief, he had the right to appoint a receiver to investigate the trustee upon the understanding that if after three months it was found that the trustee was not unfaithful to its trust the chancellor could dismiss the receiver and restore the possession of the premises to the trustee. The fact that the chancellor did not in express terms remove the trustee by the order is of no importance in determining the merits of this appeal, as the order, in effect, amounted to a removal of the trustee. It found Heitman Trust Company was wholly incompetent to act as trustee, and that it would be for the benefit of all bondholders as well as for all persons interested in the property “to immediately remove” the trustee; it took away from it the possession and control of the real estate and all the trust funds and enjoined it from taking steps to protect the rights of the bondholders. All that was left the trustee was the naked title.

The order went beyond the prayer of the bill, indeed, beyond anything asked by the solicitors for complainant in the notice or during the hearing. The order contains the following:

“It is further ordered that Heitman Trust Company be restrained from proceeding in any court with any foreclosure proceedings until the further order of this court. ’ ’

The instant bill does not ask for a foreclosure, yet by the aforesaid part of the order the trustee was prevented from taking any steps to protect the interests of the bondholders by foreclosing the trust deed. The bill does not ask for any injunction, nor does it allege any facts that would warrant the issuance of one, nor does it allege that any damages would accrue to the complainant if an injunction is not granted. We are aware that the new Civil Practice Act, Cahill’s Ill. Rev. St. 1933, ch. 110, 162, states that the prayer for relief “shall not be deemed to limit the relief obtainable,” but that paragraph also contains the following: “but where other relief is sought the court shall, by proper orders, and upon such terms as may be just, protect the adverse party against prejudice by reason of surprise.” Neither the allegations nor the prayer of the bill, nor the notice served on defendants, gave any notice that an injunction would be asked for, and from the record of the proceedings of November 3 we find that the solicitor for complainant made no request of the chancellor save for the appointment of a receiver. No bond was required by the order, as provided for in par. 9, ch. 69, Cahill’s Ill. Rev. St. 1933, nor is there any finding that for good cause shown the injunction was granted without bond.

The provisions of the order “that all moneys now on hand with the Heitman Trust Company or with Philip C. Lindgren be immediately turned over to the receiver,” and that the “rents, issues and profits of said property, shall be applied toward the payment of interest on the bonds,” are obviously erroneous and unwarranted.

We are constrained to hold that the contention of defendants that the action of the chancellor in entering the order in question constituted a grave abuse of power is fully warranted by the record. Such orders produce an intolerable situation and tend to bring the courts of chancery into disrepute.

The interlocutory order of the superior court of Cook county of November 3, 1934, is reversed.

Interlocutory order of November 3, 1934, reversed.

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


source: Caselaw Access Project

author: Mr. Justice Sullivan

license: Public Domain

text:
    Emily Budek, Defendant in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 37,323.

      Opinion filed March 29, 1935.
    William H. Sexton, Corporation Counsel, and A. M. Smietanka, City Attorney, for plaintiff in error.; Qhin O’Brien, James J. Danaher and Adam E. Patterson, Assistant Corporation Counsel, of counsel.
    Joseph D. Ryan and Louis P. Miller, both of Chicago, for defendant in error. '
   Mr. Justice Sullivan

delivered the opinion of the court.

This writ of error seeks the reversal of a judgment for $50,000 entered in favor of plaintiff, Emily Budek, upon the verdict of a jury in an action of trespass on the case for damages for personal injuries received by plaintiff while riding as a guest in an automobile, caused, as she claims, by the negligence of the city in permitting a portion of the roadway to be broken, rough, depressed and uneven.

The accident happened Sunday evening, February 15, 1931, at about 7:45 p. m. Plaintiff was riding as a passenger in an automobile being driven south on Western avenue between 76th and 77th streets. She was sitting on the lap of her husband, who occupied the rear seat on the right-hand side; next to Mr. Budek sat Mrs. Ahrens, with her husband on the extreme left; the car was being driven by Mr. Swiss, whose wife sat to his right on the front seat beside him. The automobile was traveling between 30 and 35 miles an hour, and the street was rather poorly lighted. 76th street does not run through to the west beyond Western avenue. Sometime prior to the date of the accident defendant had commenced tearing up a portion of the street pavement on Western avenue for the purpose of repairing it; starting at about 80th street and moving north the pavement had been repaired to a point at about 77th street; there are double street car tracks in the center of Western avenue; when defendant’s employees quit work for the day on Saturday, February 14, 1931, the day before the accident, they had completed excavating a strip of pavement extending about 303 feet north from 77th street and just west of the west rail of the southbound tracks. The torn-up strip was from five to six feet wide except for a short distance at its north end where it was about 10 feet wide; the street was paved with asphalt, which in the excavated strip had been cut into pieces of varying size but averaging about one half by two feet; these pieces had been removed and then thrown back loosely and promiscuously into the space where the cut was made before the workmen left the job on Saturday; between the portion of the roadway under repair and the west curb there was room for cars to drive southward.

On the night before this accident several automobiles were damaged by running into this torn-up strip. As the automobile in question approached the excavation from the north, a street car was coming from the south. When the automobile was driven into the excavation the driver lost control and it “jumped” or “bounced” for a distance over the rough and uneven broken pieces of asphalt, and.then plunged southeast across the southbound tracks onto the northbound tracks, smashing head-on into the approaching street car and inflicting the injuries of which plaintiff complains.

It is well established that a city must use reasonable care to keep its streets in a reasonably safe condition for the use of the traveling public. (Purcell v. City of Chicago, 231 Ill. 164.) The real point in controversy is whether this excavation in the street was protected by lights and barricades so that the traveling public could discover the danger in time to avoid it. The motorman of the northbound street car says that he saw the automobile approaching the torn-up part and that there were no lights or barricades at this point. Another witness, who was in an automobile about 200 feet behind the one involved in the accident, testified as to the absence of any barricades or lights. Three other eyewitnesses to the accident testified either that there were no lights nor barricades or that they saw none at the time of the occurrence. Defendant pro-, duced no eyewitnesses to the accident.

The watchman, whose duty it was to safeguard the excavation and put up the barricades and lights, testified that, “it got dark about a quarter to six”; that he then put up six barricades at points in and around the torn-up portion of the street and hung one lighted lantern on the north side, one on the south side and one on the west side of the excavation; that he then went back to the shanty at the construction camp at 80th street; that about 6:30 p. m. a man came there and said that there were no red lights up and that people were running into the torn-up part of the street; that he returned to the excavation at 6:45 p. m. and found neither barricades nor lights at or near it; that he discovered the barricades on the lawn west of Western avenue; that, after returning to the shanty to get more lanterns, he again put up six barricades and three lanterns in the same positions as previously; that when he next went back to the excavation at 7:45 or 8 p. m. he saw the “fire department” and the “police department” at the scene of the accident; that at that time there were neither lights nor barricades to the north of the cut strip or at any other point near it; that he found the lanterns and barricades in the prairie west of Western avenue; and that after the accident he put up six barricades and five lanterns and again went back to the shanty at 80th street.

A number of witnesses testified that there were not only no barricades or lights at this place at the time of the accident, but that there was none on the preceding evening. There was an abundance of evidence from which the jury could properly conclude that there were no barricades or lights at this point either on the night of the accident or on the evening before, even the evidence of the city’s watchman being conclusive that there were neither lights nor barricades at or near the dangerous part of the roadway at the time of the accident. The court very properly submitted this question to the jury. (Ahrens v. City of Chicago, 277 Ill. App. 619 [Abst.].)

It is urged that plaintiff failed to affirmatively show that she was in the exercise of reasonable care for her own safety at and immediately prior to the time of the accident. She testified that she had no recollection as to what occurred from the time she entered the automobile until she regained consciousness in the hospital sometime after the accident. Her failure to remember the accident and the occurrences preceding it was explained by the undisputed medical testimony as a lapse of memory such as frequently results from injuries of the character sustained by her. Ahrens, the only other occupant of the automobile who survived the accident, and who sat on the left side of the rear seat, testified, that the automobile was “straddling” the west rail of the southbound tracks; that he was looking through the front.window over the driver’s shoulder, and that he could see quite a distance ahead; that there were no lights or barricades; and that the automobile, “hit' the side of the pavement that was torn up, why, it gave two leaps in the air, and then it swerved towards the east and that is all I remember. ’ ’

There is not a scintilla of evidence that the driver of the automobile was driving recklessly or at an excessive rate of speed. Nor is there a scintilla of evidence that the driver of the automobile or any of its occupants was drunk or crazy or had even a single drink of intoxicating liquor, notwithstanding that it was argued to the jury by defendant’s counsel that one and all of them were or must have been drunk or crazy, and, notwithstanding that the same argument is persisted in on this appeal.

The rule is well established that plaintiff was required to use care proportionate to the danger of which the facts conveyed knowledge to her. (Flynn v. Chicago City Ry. Co., 250 Ill. 460.) What facts were there as the automobile was driven along at a normal rate of speed, under the conditions then prevailing on that thoroughfare, to convey knowledge to her of any lurking danger ahead? The street was open for traffic and she had a right to assume that it was in a reasonably safe condition for ordinary travel thereon by persons exercising ordinary care for their own safety.

While, under the facts of particular cases, it has been held that a passenger in an automobile is bound to take positive action by warning the driver in time to avert a known danger, in the very nature of things it cannot be held as an unvariable rule that every passenger in an automobile who fails to warn the driver of danger in time to avoid it is guilty of contributory negligence. To hold that a passenger riding in the back seat of an automobile is bound to maintain a constant lookout for unknown dangerous conditions in the roadway ahead would be to establish a manifestly unreasonable and impractical rule. (Graham v. City of Chicago, 346 Ill. 638; City of Chicago v. Babcock, 143 Ill. 358.)

There is no evidence that plaintiff was not in the exercise of ordinary care for her safety. She was sitting on the lap of her husband on the right rear seat, and it was reasonable to believe that she could not see the condition of the street until the automobile had entered upon the excavation strip. Something is said concerning the crowded condition of the back seat, but we cannot see that this would have any bearing upon the accident or plaintiff’s exercise of care. (Ahrens v. City of Chicago, supra.) The fact that neither Ahrens nor plaintiff testified as to her conduct at and immediately prior to the time of the accident did not raise any presumption of lack of due care on her part. Whether or not she was in the exercise of such care as the law required was necessarily to be determined from the peculiar facts and circumstances of the case. We think that all the facts and circumstances, including the physical facts of this case and the inferences that might reasonably be drawn from the evidence, constituted a sufficient affirmative showing that plaintiff was free from contributory negligence to properly require the submission of that question to the jury.

Defendant complains of the conduct of plaintiff’s attorney upon the trial of the case. It was developed by him that four of the occupants of the automobile were killed in this accident. It was argued that this fact was immaterial and the statement made for the purpose of inflaming the minds of the jurors. We do not agree with this. Plaintiff’s counsel felt obliged to account for the failure to produce the occupants of the automobile as witnesses. The explanation that they had been killed was natural and proper. Furthermore the death of other occupants of the automobile was an incident of the accident under consideration.

We are of the opinion that all the facts occurring at the time were proper to present in evidence. In many cases similar evidence has been held admissible as tending to show facts growing out of or surrounding the accident. (West Chicago Street R. Co. v. Kennelly, 170 Ill. 508; Beggs v. Iowa Cent. Ry. Co., 187 Ill. App. 621; Ahrens v. City of Chicago, supra.)

It is claimed that the court erred in admitting evidence of the Caesarean operation upon plaintiff while she was in the hospital as a result of her injuries. Plaintiff was four months pregnant at the time of the accident, and her attending physician testified that when the time arrived for the birth of her baby her condition precluded a natural birth. The necessity for the Caesarean operation was directly attributable to injuries she received in the accident, and it is clear that such operation was a proper element to be considered by the jury in awarding plaintiff damages. Plaintiff was asked a question about the condition of her child, which she answered before objection was made by defendant’s counsel. She volunteered another answer before the court sustained the objection. Counsel made no motion to strike her answers. Inasmuch as the objection was sustained to this line of testimony and the jury was properly instructed as to the elements of damage that might be considered, we think the defendant was not thereby prejudiced.

It is urged that it was improper to admit evidence of prior accidents occurring at the same place. and under the same circumstances. It is sufficient to state that such proof was admissible for the purpose of showing that the unsafe thing or condition causing the particular accident was the condition or cause common to such independent accidents, and that the frequency of such accidents tended to show knowledge of such condition. (Moore v. Bloomington, D. & C. R. Co., 295 Ill. 63.) If other persons had met with similar accidents at the same place and for a like cause, it would tend to show knowledge on the part of the city that there was inattention on the part of its agent or agents charged with the duty of warning persons using the street of the danger, and that it had failed to provide adequate means for the protection of persons approaching the excavation. (City of Chicago v. Powers, 42 Ill. 169.)

Defendant strenuously insists that plaintiff’s counsel’s argument to the jury was improper and highly prejudicial in that he sought to inflame the minds and arouse the passions of the jurors against defendant We find no merit in this contention. After careful examination of the complete arguments of opposing counsel, we think that, considering the argument of defendant’s counsel, plaintiff’s attorney’s closing argument was essentially proper. Not a single objection was voiced during the course of such argument to the language which is criticized here. Defendant’s failure to object in the trial court to the purported objectionable features of the argument precludes it from raising the question now. While it is the duty of the trial court, without waiting for an objection from opposing counsel, to control counsel in argument before a jury, still, if counsel desires to take advantage in a court of review of improper remarks of opposing counsel made to the jury in argument, he must first give the trial court an opportunity to remove the evil effect of the remarks, if any, from the minds of the jurors by making specific objections at the time they are made, and if no specific objection be made the objection will not be considered in this court. (Illinois Cent. R. Co. v. Cole, 165 Ill. 334; Peterson v. Pusey, 237 Ill. 204; Waschow v. Kelly Coal Co., 245 Ill. 516.)

Defendant contends that the giving of plaintiff’s instruction No. 1 was erroneous. This instruction contained a correct statement of the law applicable to plaintiff’s theory of the casé under the evidence and the issues presented, and we do not think that the jury could possibly have been misled by it. In several instructions, stating its theory of the case, defendant used the same language now criticized and recognized its duty as set forth in this and its own instructions, and it cannot now be heard to question the correctness of this instruction.

Defendant complains of instruction No. 6, given at plaintiff’s request, which is as follows:

“If from a preponderance of the evidence, under the instructions of the court, the jury find the defendant guilty of negligence as charged in the plaintiff’s declaration, and that as a direct and proximate result thereof the plaintiff sustained injury as charged in said declaration, and if you further believe from a preponderance of all the evidence in the case that the plaintiff was at all times in the exercise of ordinary care for her own safety, then, even though it should appear from the evidence that the driver of the automobile in which the plaintiff was riding was also negligent in the management or operation of said automobile and that the negligence of the driver of said car— if you find from the evidence that he was negligent— contributed toward bringing about the accident and injury, if any, to the plaintiff, nevertheless, if the jury also find from a preponderance of the evidence that the plaintiff was riding as a passenger in said automobile and that she had nothing to do with its management or control, then any negligence of said driver— even if you should find he was negligent on the occasion in question — cannot be imputed to the plaintiff so as to make her responsible for or chargeable with the negligence, if any, of such driver.”

At defendant’s request the court g*ave the following instruction:

‘ ‘ The court instructs the jury that while it is a general rule of law that where a person is riding merely as a passenger in a vehicle which is being driven by another and where such passenger has nothing to do with its management or control, that then the negligence of the driver of such a vehicle cannot be imputed to such mere passenger, . .

It will be noted that defendant in this instruction recognized the rule of law presented to the jury in plaintiff’s criticized instruction. However, it is insisted that a similar instruction was condemned in the case of Opp v. Pryor, 294 Ill. 538. In that case the plaintiff was riding in the right-hand front seat of an automobile approaching a railroad crossing which was well lighted, and a train was backing over the crossing from plaintiff’s right, so that she was nearer to it than the driver of the car. On this train were several members of the train crew with lighted lanterns, which were observed by other witnesses at a distance considerably farther from the crossing than plaintiff. In the Opp case the court said at pages 547, 548:

“It was essential for the plaintiff to prove that she was in the exercise of ordinary care for her own safety in approaching and going upon the crossing, and she was not relieved from that duty because she was riding in an automobile. If she exercised such care any negligence of Ethel Shambaugh could not be imputed to her, but she would be responsible for her own negligence. The plaintiff sat at the right of the driver in front, with at least equal opportunity to observe danger and the approach of the train, and being bound to prove the exercise of ordinary care by herself, it was no less her duty than that of the driver to observe and avoid danger, if practicable, and to warn the driver. (Flynn v. Chicago City Ry. Co., 250 Ill. 460; Pienta v. Chicago City Ry. Co., 284 id. 246.) ... If Ethel Shambaugh was not guilty of any negligence in driving the car and could not see or hear anything to indicate the approach of the train, it would, perhaps, be a fair inference that the plaintiff could not, but the instruction was inconsistent and contradictory in substantially telling the jury that although Ethel Shambaugh did not exercise ordinary care for the safety of those in the automobile yet the plaintiff might have been in the exercise of such care herself, without the slightest evidence that she did anything at all. As a general rule one who has no control or authority over another is not responsible for the negligence of the other, but instructions should be given as an aid to the jury in deciding the case, and in view of the evidence this instruction was wrong. ’ ’

That case recognized the general rule that a passenger in an automobile, who is in the exercise of proper care, is not responsible for or chargeable with the negligence of the driver over whom he has no control, but held that a somewhat similar instruction was inconsistent and contradictory because, under the evidence in that case, facts conveying knowledge of the danger were at hand and were as readily available to plaintiff as to the driver. The facts there are not comparable with the facts in this cause, and the reasons advanced for condemning the instruction there are neither applicable nor controlling here. Certainly no duty devolved upon plaintiff to warn the driver of a danger of which she had no knowledge nor of which in the exercise of due care she could have learned in time to warn him to avoid it.

We think plaintiff’s instruction No. 6 contained a correct statement of law applicable to the facts of this case. Under the facts in the record it was clearly a question of fact for the jury to determine whether or not both plaintiff and the driver of the car were exercising due care at and prior to the accident. If the driver of the car was exercising due care, and there was ample evidence to justify the jury in so finding, then undoubtedly it would be a fair inference that plaintiff as a passenger in the rear seat was in the exercise of due care. (St. Clair Nat. Bank of Belleville v. Monaghan, 256 Ill. App. 471.) There is no evidence that even tends to show that the driver of the automobile was not in the exercise of reasonable care for the safety of himself and his passengers.

Defendant also complains of instruction No. 19 given at plaintiff’s request. We find no error in this instruction." An instruction of similar import was given in Chicago City Ry. Co. v. Anderson, 182 Ill. 298, where the court, answering the criticism of it, said at page 300:

“Objection is made to appellee’s instruction numbered 14, because thereby the jury were told that in estimating her damages they might, in connection with her personal injuries, take into consideration her pain and suffering, if any are proven, undergone by her in consequence of her injuries, if any are proved; and the criticism indulged in is, that thereby the jury were permitted to allow damages for any mental pain and suffering suffered by her. The mental pain that comes from the contemplation of a maimed body, and the humiliation of going through life in a crippled condition, is too remote to be considered an element of damage. The mental pain that may be considered and allowed for in this class of cases is such as is the direct result or concomitant of the physical pain suffered. Mental pain is always an attendant upon severe physical pain, — such is the relation of mind and body, — and the mental pain that is the direct and necessary result of the physical pain, but not otherwise, is a proper element of damages in personal injury cases. (Chicago City Railway Co. v. Canevin, 72 Ill. App. 81.) The instruction violated no rule of law regarding the element of pain, either mental or physical, suffered by an injured person.”

It is contended that the amount of the verdict, $50,-000, is excessive. Plaintiff, 22 years old and in good health, was four months pregnant at the time of the accident. When removed to the hospital she was unconscious and in a state of profound shock; she had a compound fracture of the left femur and a simple fracture of the right femur and of the left fibula; the left side of her skull was fractured just above the temporal bone, and she had received crushing fractures of the left sacro-iliac synchrondosis and of the symphysis pubis; there was a large piece of her scalp, about two inches square, missing entirely, and what remained of it was torn from her head almost from ear to ear; five of her upper and three of her lower front teeth were knocked out; and she was vomiting and had lost considerable blood For several weeks she was rational at times and unconscious at other times. Stimulants and narcotics were administered to her for over a period of several months to relieve her intense pain. Her wounds became infected and foul-smelling. Gangrene developed in the compound fracture of her left leg. No X-rays could be taken when she was first taken to the hospital because she could not be moved. On the third day she was placed in a body cast. For three months she was unable to perform her bodily functions and was given enemas and catheterized. The broken ends of her femurs overlapped, resulting in the shortening of her legs, but conditions were such that nothing could be done to correct the shortening for two months. During that period plaintiff was in two successive body casts and Thomas splints were applied. After about two months Stineman pins were put through both of her heels while she was under an anaesthetic. Weights were suspended from her legs to get and keep the bones in apposition, remaining on one leg five and on the other six months, and she was unable to move when her baby was delivered by the Caesarean operation. An obstinate infection of the wounds prevented normal healing and necessitated frequent operations to remove pieces of bone and to permit the escape of pus. A bony union was finally established in her right leg, but in her left femur, where the infection persisted, there was only a soft callus formation. The muscles at the site of the fracture of the left femur had all united with and grown into the callus on account of the infection and swelling. She was taken home from the hospital June 16, 1932, 16 months after the accident. At the time of the trial, 20 months after the accident, an X-ray examination revealed incomplete repair of her fractured pelvis. The left femur showed about 25 degrees angulation with about two inches gone from the broken ends of the bone, due to pieces of the bone “stuffing” off. A soft callus formation like the “handle of a teapot” connected the broken ends of the bone. There was some overriding and deformity of the fibula of the left leg. This leg was crooked from knee to ankle. Her left knee and left hip were stiff at the time of the trial from prolonged immobilization, which condition “would require many years to correct, if it could be corrected at all.” At the time of the trial she was unable to stand or walk without assistance, and with the aid of crutches she could take but a few steps. She wore a leather brace over the fractured left femur. It is impossible for her at any time in the future to give normal birth to a child. Her attending physician was of the opinion that by operating and rebreaking her left leg he might improve its condition. Another doctor was of the opinion that the chances were all against improvement by such an operation and advised against it. At the time of the trial plaintiff was suffering from headaches and dizzy spells in addition to the pain experienced from her numerous fractures, and she was in a delicate, weak and anemic condition. It was testified that her condition at the time of the trial was permanent. Prior to the accident she had earned $14.85 a week in one position and $17 in another. Her earning power was totally and permanently destroyed. Her hospital bill was $4,806.05, her doctors’ bill $2,500, and her nurses’ bill $2,600.

Considering the nature of plaintiff’s injuries, the permanency of her crippled and practically helpless condition, the pain she suffered and is destined to suffer, her loss of earning power, her inability to bear children naturally, the fact that she will be deprived of the privileges and enjoyments common to people of her class, and her hospital, doctors’ and nurses’ bill aggregating about $10,000, we do not think the amount awarded is excessive.

There was ample evidence to justify the jury in finding that defendant’s negligence was the sole, proximate cause of the accident, and, as there were no prejudicial errors upon the trial, the judgment is affirmed.

Affirmed.

Friend, P. J., and Scanlan, J., concur.


text:
    Anna Berent, Appellant, v. Metropolitan Life Insurance Company, Appellee.
    Gen. No. 37,607.

      Opinion filed March 29, 1935.
    Boyal W. Irwin, of Chicago, for appellant; John M. Falasz, of Chicago, of counsel.
    Hoyne, O’Connor & Bubinkam, of Chicago, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.

This appeal seeks the reversal of a judgment against plaintiff, Anna Berent, entered upon a directed verdict in an action brought by her against defendant to recover for personal injuries sustained through the alleged negligence of defendant.

Plaintiff’s declaration consists of three counts. The first alleges that defendant carelessly and negligently permitted the glass in one of the windows “maintained” by it in a building “possessed” by it to be forcibly and violently thrown and precipitated upon plaintiff. The second alleges that the frames, sashes and glass in the windows were loose, broken, worn out and rotted, and that defendant had due notice of such condition. The third count alleges that defendant was possessed of the building; that it “carelessly and negligently caused, permitted and allowed a certain piece of glass to fall and precipitate from said building to and upon the body of plaintiff while she, in the exercise of ordinary care for her own safety, was then and there rightfully and lawfully passing in and over said highway near to and adjacent to said building. ’ ’

It appeared that June 18, 1930, there was located on the southwest corner of Harding and North avenues a two-story building, on the second floor of which were the offices of defendant; that the entrance to these offices was on North avenue, with the name of the Metropolitan Life Insurance Company on the door; that a number of windows of defendant’s offices faced Harding avenue; that on the upper half of those windows the name “Metropolitan Life Insurance Company” was printed in gold lettering about three inches high; that when plaintiff, accompanied by her two children and on her way to visit the home of her mother two blocks south of North avenue, reached the southwest corner of Harding and North avenues, she proceeded to walk south on Harding avenue about two or three feet away from the building wall; and that, when she had taken a few steps, something struck her on the head and she became unconscious for a few minutes.

Fred M. Dollnig, an employee of the Stearn Clothing Company, which occupied the first floor of this building and a portion of the second, testified in plaintiff’s behalf that he heard a crash and immediately ran out of the store, thinking it was one of the Stearn Clothing Company’s windows which had broken; that he ran to the Harding avenue side of the building and saw plaintiff leaning against the wall; that there was glass in her hair, a piece of glass imbedded in her chest and another in her arm; that there was broken glass about % of an inch thick on the sidewalk around her; that he looked up to the second floor and saw an open window, in the lower half of which there still remained about a one-fourth portion of a broken pane; and that upon the upper half of the window, above the lower half containing the broken portion of the pane of glass, the name “Metropolitan Life Insurance Company” was printed.

The real question presented for our determination on this appeal is whether the doctrine of res ipsa loquitur is applicable to plaintiff’s case. The proof showed that the premises wherein the window was located, from which the glass fell, was in the possession and management of defendant. In fact no proof was necessary on this point, because under the settled law of this State where possession and management are charged and no special plea is filed denying possession, control and management, it is admitted. It was also shown that a large portion of the broken pane of glass which fell from the window of defendant’s offices injured plaintiff. We think this made out a prima facie case under the res ipsa loquitur maxim.

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 party charged, that it arose from the want of proper care. (Feldman v. Chicago Rys. Co., 289 Ill. 25; Chicago Union Traction Co. v. Giese, 229 Ill. 260.) Many cases of this and other jurisdictions have been cited wherein injuries received by passersby from objects falling from buildings have been held to be governed by the doctrine of res ipsa loquitur, and, in our opinion, the applicability of the doctrine to the facts in the instant case requires neither elaboration nor the citation of authorities.

It is conceded that no specific negligence was shown in this case and that where only specific acts of negligence are charged they must be proved and the doctrine of res ipsa loquitur cannot be applied. Defendant insists that plaintiff’s declaration charged specific negligence and she is, therefore, precluded from invoking the res ipsa loquitur doctrine.

It is true that the first two counts of her declaration charge specific negligence, but we are constrained to hold that the language of the third count, as heretofore set forth, constitutes such a general averment of negligence as affords plaintiff the right to invoke such doctrine. In the case of Feldman v. Chicago Rys. Co., supra, where it was admitted that two of the four counts of the declaration contained special charges of negligence, the court said at pp. 34, 35:

“In the case just cited (the Giese case) the first and second counts of the declaration charged that the defendant, by its servants, carelessly, improperly and negligently drove and managed a train consisting of two coaches so that the rear car struck the wagon of the plaintiff in which he was riding and thereby he received the injury complained of. In those two counts the charges of negligence were held to be general and it was held that the doctrine of res ipsa loquitur applied. The same rule is laid down in O’Callaghan v. Dellwood Park Co., 242 Ill. 336. The charges of negligence in the first two counts in the case at bar are in substantially the same language as those in Chicago Union Traction Co. v. Giese, supra.

In our opinion the trial court erred in directing a verdict for defendant and entering judgment thereon. The judgment of the superior court is reversed and the cause is remanded.

Reversed and remanded.

Friend, P. J., and Scanlan, J., concur.


text:
    John E. Merrion, Appellee, v. Julia V. O’Donnell et al., Defendants. Appeal of Julia V. O’Donnell, Appellant.
    Gen. No. 37,702.
    Opinion filed March 29, 1935.
    Sheehan, Rooney & Egan, of Chicago, for appellant.
    Charles J. Trainor, of Chicago, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.

This appeal seeks to reverse an order of the municipal court entered May 14,1934, denying the motion of Julia Y. O’Donnell to vacate a judgment by confession for $20,497.56, entered March 17, 1933, against her, James Y. Garvin and Margaret C. Garvin.

August 21,1925, the defendants, together with Simon O’Donnell, executed their promissory note for $25,000 payable to their own order five years after date with interest at six per cent per annum, and indorsed and-delivered it to plaintiff. At the same time they executed a trust deed conveying certain premises to sedare said note. Simon O’Donnell died February 7, 1927.

The note contained the following warrant of attorney:

“And any attorney at law is hereby irrevocably authorized to appear for the undersigned in any court of record in term time or vacation, at any time after maturity, and confess a judgment in favor of the holder of this note, for such amount as may be unpaid thereon, together with costs and reasonable attorney’s fees, and to waive and release all errors which may intervene in any such proceedings, hereby ratifying and confirming all that such attorney may do by virtue hereof. ’ ’

When the note became due $5,000 of the principal was paid and the surviving makers, defendants below, entered into a written extension agreement with plaintiff August 21, 1930, under the terms of which the time for the payment of the $20,000 balance due on the principal note was extended, same to be paid in instalments over a period of five years, at the same rate of interest, which interest was evidenced by interest coupons executed and delivered to plaintiff by defendants.

This extension agreement also provided:

“And the said parties hereto further mutually agree that all the provisions, stipulations, powers and covenants in said principal note and in said Trust Deed contained shall stand and remain unchanged and in full force and effect for and during said extended period, except only as the same are herein and hereby specifically varied or amended.”

Two thousand dollars more was paid on "the principal note September 17, 1931, and thereafter the defendants defaulted in the payment of principal and interest.

As heretofore stated judgment was confessed for $20,497.56, including interest and attorney fees, March 17, 1933, against Julia V. O’Donnell, James V. Garvin and Margaret C. Garvin, under the warrant of attorney contained in the $25,000 judgment note executed by them and Simon 0 ’Donnell, August 21, 1925. April 23, 1934, Julia V. O’Donnell filed her verified petition, alleging that Simon O’Donnell died February 7,1927; that his death invalidated the joint warrant of attorney in said note; that the court was without jurisdiction to enter the judgment by confession under such warrant of attorney; that the attempt to exercise the warrant of attorney was not in conformity with its terms and provisions; and that the judgment so entered by confession was, therefore, null and void and of no force or effect. The petition prayed that the judgment be vacated and set aside.

Plaintiff concedes that the warrant of attorney con-. tained in the note in question was joint, and that the general rule is that a joint power of attorney to confess judgment on a note is strictly construed and terminates upon the death of one of the persons executing such power of attorney, but claims that the real question presented for our determination is the construction to be given to the extension agreement executed by defendants upon the maturity of the principal note after the death of Simon O’Donnell.

It is urged that it was the obvious intention of the parties to incorporate in the extension agreement by reference the power of attorney contained in the note as the power of attorney of its surviving makers, and that the extension agreement, therefore, authorized the entry of the judgment.

The difficulty of this position is that there was no authorization to confess judgment in the extension agreement. The only note in this cause which contained a warrant of attorney was the note of August 21,1925, executed by Simon 0 ’Donnell and the defendants and that was the note and warrant, of attorney declared upon in plaintiff’s statement of claim. That warrant of attorney was shorn of its power, life and authority by Simon O’Donnell’s death. Begardless of, and notwithstanding the purpose and intention of the parties when they executed the extension agreement, we are at a loss to understand how they could by any act of theirs revitalize this warrant of attorney which was long since dead. The law looks not to the intent alone, but to the fact whether that intent has been executed in such a manner as to possess a legal validity. In our opinion, it is impossible to construe the extension agreement either separately or coupled with the note containing the warrant of attorney in any manner that would authorize the entry of the judgment by confession in this cause.

Inasmuch as the motion to vacate was not presented until more than a year after the entry of the judgment, it is urged that the trial court did not abuse its discretion in refusing to vacate it since no equitable ground was advanced for its vacation nor a good defense set forth to plaintiff’s claim on the note. It is sufficient to state that the motion was not directed to the equitable powers of the court and that it was not requisite that defendant Julia V. O’Donnell present a meritorious defense on her application to vacate a judgment void upon the record.

In the recent case of Genden v. Bailen, 275 Ill. App. 382, where questions similar to those presented here were considered, this court said at pages 384, 385:

“Mayer v. Pick, 192 Ill. 561, is the leading case on this subject. There the note was joint and several— the power of attorney joint; one of the makers died before the judgment against the survivor was entered. The court, after citing a large number of cases, held that as the warrant of attorney was joint, the trial court properly vacated the judgment.

“We are also inclined to hold that an application to the court to vacate a judgment void upon the record is not an application to the equitable powers of the court in the sense that such words are used in a proceeding in equity. In a chancery proceeding the parties must show a willingness to do equity, but in a proceeding in a suit at law where, as we have said, a judgment is void as shown by the record, it is not necessary for the mover to do more than call attention of the trial court to the lack of jurisdiction to enter the judgment. •

“If a judgment is entered by confession without authority of the defendant it will be void for want of power to confess it. (Stein v. Good, 115 Ill. 93; Whitney v. Bohlen, 157 Ill. 571.) In such cases the judgment is to be considered as absolutely void. (Blake v. State Bank of Freeport, 178 Ill. 182; White v. Jones, 38 Ill. 159.)”

For the reasons indicated herein the order of the municipal court of May 14,1934, overruling the motion of defendant Julia V. O’Donnell to vacate the judgment by confession is reversed, and the cause is remanded with directions to vacate such judgment.

Reversed and remanded with directions.

Fbiend, P. J., and Scan lam, J., concur.


author: Mr. Presiding Justice O’Connqr

text:
    Oscar F. Mayer, Appellee, v. William M. Collins, Impleaded with Dario L. Toffenetti, Appellant.
    Gen. No. 37,649.

      Opinion filed April 1, 1935.
    Rehearing denied April 15, 1935.
    Rosenthal, Hamill & Worm see, of Chicago, for appellant ; Lessing Rosenthal, F. Howard Eldridge and Willard L. King, all of Chicago, of counsel.
    Mayer, Meyer, Austrian & Platt, of Chicago, for appellee; Carl Meyer, Frederic Burnham and M. Paul Noyes, all of Chicago, of counsel.
   Mr. Presiding Justice O’Connqr

delivered the opinion of the court.

Oscar F. Mayer, the lessee of defendant, William M. Collins, under a 99-year lease expiring 1991, filed his bill to enjoin defendant from forfeiting the lease. After answer filed, an interlocutory injunction was issued as prayed for and defendant prosecuted an appeal to this court where, upon consideration, the interlocutory order was affirmed, Mayer v. Collins, 263 Ill. App. 219. Afterward the cause was referred to a master who took the evidence, made up his report and recommended that a decree be entered enjoining the defendant. Thereafter the master’s report was approved, a decree was entered making the temporary injunction permanent, and defendant appeals.

The record discloses that in 1910 complainant became the owner of a leasehold estate, and at the same time purchased the building on the premises at 57-59 West Randolph street, Chicago. The leasehold estate was for 99 years beginning March 1, 1892, and ending February 28, 1991. In 1921 the defendant, Collins, subleased the building from complainant for a period of 10 years and Collins in turn sublet the premises to a Chinese restaurant company which occupied the premises until about April, 1931. In 1925 defendant, Collins, became the owner of the fee. A short time prior to the expiration of the 10-year sublease to Collins complainant executed a new sublease to Dario, L. Toffenetti. This sublease expired in 1991. The premises were improved by a four-story building which had been built shortly after the Chicago fire in 1871. When the Chinese Restaurant company vacated the premises in 1931 at the expiration of the 10-year sublease, plaintiff took the position that the building was in a very bad and unsafe condition, and by the terms of the sublease Toffenetti was obligated to spend not less than $60,000 in improving, repairing and remodeling the building in order to put it in good condition so that it could be used for restaurant purposes.

About the time the premises were sublet to Toffenetti complainant negotiated with defendant, Collins, with a view to remodeling or replacing the building but they were unable to reach an agreement. Complainant offered to guarantee to defendant, during the building operations, payment of rent, taxes and all other covenants of the lease; that upon completion of the new building it would be fully paid for and free of liens; that such guarantee would be evidenced by a bond executed by a surety company to be approved by defendant, in an amount satisfactory to defendant, or by the deposit with some trust company to be designated by defendant, “cash or marketable securities approved by you for the full amount of the cost of such improvements. ’ ’

About June 1, 1931, Toffenetti, under his sublease, started to improve the premises by tearing down the building except the side walls, and the building was practically all removed except the side walls on June 17, 1931, and a new building, except such walls, was constructed and completed about November, 1931. Shortly thereafter Toffenetti proceeded to conduct his restaurant business in the building.

The master found that it cost Toffenetti approximately $145,000 to complete the building, and counsel for defendant point out in their brief that the new building actually cost between $185,000 to $189,000. The cost of the building has been paid.

The evidence further shows that on June 2,1931, the day after Toffenetti began to take down the old building, defendant, Collins, caused a notice to be served on complainant that the tearing down of the building “is a serious and substantial default in the covenants” of the lease to be kept and observed by complainant as lessee, in that complainant covenanted to keep and maintain on the premises after the first of May, 1903, a building worth not less than $35,000, in good repair and condition during the period covered by the lease; that the erection and removal of the old building constituted waste and that Collins, the lessor, “may exercise . . . the remedy of forfeiture and entry or action thereon” ;■ that if the work were persisted in,. Collins, without waiving any of his other rights, would “be at liberty to terminate said lease as in said lease provided, or otherwise proceed as by a law in such case provided.” Fifteen days thereafter Collins served another notice on complainant, Mayer, notifying him that on account of the removal and erection of the building he had elected to determine the lease, and further notified Mayer “to quit and deliver up possession of the said lands and premises to me within ten (10) days of this date.” Eight days thereafter complainant filed the bill in the case now before us to enjoin defendant from forfeiting the lease.

Complainant offered evidence tending to show that when the Chinese Restaurant company vacated the premises they were left in a bad state of repair and in an unsafe condition, which resulted in a great measure through the fault of the Chinese company or its lessor, Collins; that the most feasible and practical way of putting the premises in proper condition was to remove the building, except the side walls, and construct a new one; and that the construction of such new building was necessary even though the condition of the old building was not the result of any neglect or default on the part of Collins or his subtenant.

On the other side, defendant offered evidence tending to show that the old building was not in an unsafe condition when the Chinese Restaurant company vacated ; that it could have been put in good condition by making repairs; that it was not necessary to demolish the old building and construct a new one; and that any repairs that were necessary after the Chinese Restaurant company vacated should have been made by Mayer, as required by the 99-year lease.

Defendant contends that the allegation of the bill to the effect that defendant, Collins, under his sublease was required to keep the building in a good state of repair, was not sustained by the proof; that there is a total lack of proof in this respect; that the word “repair” is scrupulously omitted from Collins’ sublease; that it was complainant, Mayer’s duty under the terms of his long term lease to keep the premises in good repair and condition; that “Collins’ only obligation under his sublease was ‘to keep said building in a safe, clean and wholesome condition’ and ‘conformable to the requirements of the City of Chicago and all public authorities.’ ” The defendant further contends that complainant failed to prove the allegations of his bill, in that the evidence failed to show that the old building, at the time it was vacated by the Chinese Restaurant company was in a bad state of repair and in an unsafe condition. In support of this contention counsel for defendant discuss in considerable detail the evidence as to the condition of the basement walls, the inadequacy of the floors, the stressing of the joists and other defects.

As to the contention with respect to the condition of the building, we think it sufficient to say that the evidence was conflicting. The master saw and heard the witnesses testify; he found the building was in a very bad state of repair. The decree entered by the chancellor concurred in this finding, and upon a careful consideration of all the evidence we are of opinion that the finding of the master and the chancellor was justified. Certain it is we could not say that such finding is against the manifest weight of the evidence. In these circumstances we would not be warranted in disturbing the decree.

Was it the default of Collins under his sublease, or the default of Mayer under the long term lease, that caused the condition of the building at the time it was vacated by the Chinese Restaurant company? As stated, defendant, Collins, contends he was not obligated to repair the premises but that the duty devolved upon Mayer to do so under his long* term lease; that under the terms of that lease Mayer was obligated “at all times during the continuance of this lease . . . keep and maintain upon said demised premises a building worth not less than Thirty-five Thousand Dollars ($35,000.) ” Under his sublease Collins covenanted and agreed that during the period covered by the sublease he would keep the premises free and clear of all liens, claims and charges caused by reason of any act or failure to act on his part; that “during said demised term said demised premises shall at all times be kept and maintained in a safe, clean and wholesome condition and in conformity with the requirements of all health and police regulations of the City of Chicago.”

Counsel for complainant say that since the provision just quoted required Collins to keep the premises in a safe, clean and wholesome condition in conformity with the requirements of all health and police regulations of the city, this required Collins to keep the premises in repair during the period of his sublease, although the word “repair” was not specifically used, and that the evidence shows that through Collins ’ breach of his lease the building was rendered unsafe. Counsel further says that whether Collins was obligated under his lease to keep the premises in repair is wholly immaterial, because the building was, in fact, in a bad state of repair and in an unsafe condition, and therefore it was imperative that the building be repaired or removed and a new building constructed to render the premises safe. We think the evidence sustains this latter contention. This was the finding of the master and the chancellor.

We are further of opinion that since Collins, by his sublease, was obligated to keep the building in a safe condition “conformable to the requirements of the City” it was his duty to see that the building was maintained in a safe condition.

Moreover, the contention that complainant failed to prove the allegations of his bill, viz., that Collins was required to repair the premises, seems to have been raised, for the first time, in this court. There was no objection to the master’s report in this respect, and the only exception on this point filed before the chancellor was the general exception that the master ‘ ‘ erred in finding that the material allegations in the bill of complaint have been proven.” The objection and exception should have specifically pointed out the alleged failure of proof to render the contention now made available to Collins.

Complainant takes the position that it was necessary for him to reconstruct the building to render the premises safe and that it was impractical to reconstruct the building piecemeal, that he was advised to this effect by reputable architects and engineers. In reply to this counsel for defendant say that this fact, if it be a fact, is of no significance where, as here, it appears that the tenant, Mayer, under the long term lease, violated his covenant to repair until the building could not be easily repaired, and in these circumstances Mayer did not have the right to demolish the building and erect a new one, “in the teeth of a covenant ‘at all times to keep and maintain a building on the premises.’ ” And he further contends that “the evidence does not sustain the contention that the making of the repairs piecemeal was not practicable, ’ ’ and that practically all the witnesses testified that all the defects pointed out in the old building could readily be remedied.

We have considered all the evidence in the record and are of opinion that while the building might have been reconstructed in piecemeal, yet it was clearly inadvisable to do so. The evidence shows the new building could be and was constructed in a short time— probably a shorter time than the work would have taken done piecemeal. All the evidence is to the effect that it would be much more advisable to construct a new building, as was done.

Under the laws of this State we hold complainant had a right to construct the new building under the circumstances as disclosed by the evidence. Hawes v. Favor, 161 Ill. 440; Northern Trust Co. v. Thompson, 336 Ill. 137.

In the Hawes case the lessee of a long term lease was given an option to purchase the freehold upon compliance with the covenants of the lease. Afterward the lessee filed a bill for specific performance to compel a conveyance of the property, claiming the lessee had complied with all of the terms of the lease. One of the defenses interposed was that the lessee had been guilty of “pulling down and destroying the dwelling house on these lots, without the consent of her lessor. ’ ’ The covenant of the lease was that the dwelling house on the lot should be taken and held as part and parcel of the realty, and shall “in no case be removed therefrom.” The price to be paid for the property was $4,000. The old building was remodeled and a substantially new building constructed costing from $8,000 to $15,000. The court said (p. 447): “It is insisted by appellants that under the covenant that any building on the premises, . . . should be a part of the realty . . . and be in no case removed therefrom, and be kept in repair, etc., the lessee was bound to keep and maintain the building just as she found it when the lease was made. In construing these covenants, as in the construction of every contract, the circumstances and conditions surrounding the parties and property must be taken into consideration. The manifest object of the parties in putting these covenants in the lease was to protect the lessor against loss resulting from permitting the property to go into decay or to be removed from the premises. It can scarcely be seriously contended that it was expected that a building of the description of the one on the lots in 1874 should be maintained during the whole period of ninety-five years. In fact the evidence shows that at the time the improvements were made thereon they were necessary to prevent its becoming unsafe as a residence and falling into decay. That injury or danger of loss to the lessor was occasioned by the change is not pretended. More than double the security which the lessor had in the old building was furnished by the improvements made on it. There was no violation of the covenant in the lease by ‘pulling down’ or destroying or removing the house.”

In that case there was an express negative covenant in the lease prohibiting the removal of the building, while in the instant case the covenant is that the tenant “in consideration ... of this lease and as security for the payment of the rents . . . and the performance of the covenants,” agreed that he would “at all times during the continuance of this lease . . . keep and maintain upon said demised premises a building worth not less than Thirty-five Thousand Dollars ($35,000.)” Obviously it was known that the old building would not last the 99 years mentioned in the lease and the value of the building to be kept on the premises as security for the payment of the rents was to be not less-than $35,000. And as said in the Hawes case, “That injury or danger of loss to the lessor, was occasioned by the change is not pretended. More than double the security the lessor had in the old building was furnished by the improvements made on it.” So, in the instant case, it is not pretended that the demolition of the old building and the construction of the new resulted in “injury or danger of loss” to the lessor, but on the contrary more than four or five times the security the lessor had in the old building was furnished by the construction of the new on the premises.

The Hawes case was followed by our Supreme Court in the Thompson case, 336 Ill. 137, where it was held that a lessee of a long term lease may erect a new building in place of the old one on the premises; the court said (p. 149): “All interests in the Haskell property and income from it, will be unimpaired by the proposed construction of the building. . . . The improvement contributes to the income and adds greatly to the value of the corpus of the trust property. . . . There is no provision in the lease restricting the right of the lessee to erect a building of any size or of any cost or value or for any purpose. The right to occupy the land, under the terms of the lease, without restriction as to the character of building for the long period necessarily implies the right to replace the old with a new and better building so long, only, as the security of the lessor is not impaired. Hawes v. Favor, 161 Ill. 440.

“In the case just cited the lease contained covenants that the dwelling house on the lot should be held and taken as part and parcel of the realty and in no case to be removed therefrom. . . . There was also a covenant that the lessee should keep the premises in good repair during the term. Construing the negative covenants and denying their effect as a bar to the relief sought, (the construction of new buildings) it was said:” The court then quoted from the Hawes case and continuing said (p. 153): “Where a demise is made for a great number of years — say one hundred or two hundred — for a fair rental value of the premises, it must be presumed that the parties intended that the tenant for years should have .well-nigh unrestricted use of the premises, provided he does not reduce their rental value, for in such case the reversion, independent of the rent, is of mere nominal value. Klie v. Von Broock, 56 N. J. Eq. 18.

“No case in this State has been cited and no principle announced by any authoritative source that requires a lessee under a long-term lease to refrain from improving the subject of the lease until absolute necessity requires it. To forbid improvement is to require that the subject of the lease shall remain until it has fallen into a state of desuetude, and therefore to deny the right to devote the property to the highest and best use to which it may be suited. . . . It is not contended that security for the income of the ultimate beneficiaries is imperiled by the new building. It is manifest that it is not. The objections go only to the removal of the old building and the erection of a new building as provided for in the agreement. ... No precaution for the protection of the beneficiaries has been omitted. Under the agreement Thompson is required, before demolishing the building, to furnish an undertaking, to be approved by the trustee, binding him and his personal and legal representatives and assigns within a reasonable time to erect and complete the new building.”

In the instant case Mayer, before demolishing the old building, offered security to Collins by which there would be a guarantee to pay all rents and other claims and that a new building costing not less than $60,000 would be constructed and paid for, so that no precaution was omitted for the protection of Collins.

Counsel for defendant, Collins, in contending that Mayer had no right to demolish the old building and construct the new one, refer to Chicago Auditorium Ass’n v. Cramer, 8 F. (2d) 998, and Willing v. Chicago Auditorium Ass’n, 277 U. S. 274, which is the same case. In that case, suit was filed in the United States District Court by the lessee for the construction of long term leases to determine the lessee’s right to remove a building from the premises incidental to the erection of a new building of greater value, and it was held that the bill was not sustainable as a bill of peace. An appeal was taken to the United States Circuit Court of Appeals where the decree was reversed with directions to the District Court to hear the evidence and determine the issues involved. [20 F. (2d) 837.] The case was then taken to the United States Supreme Court where it was held that the proceeding was not a controversy within the meaning of Article III of the Constitution of the United States, “since no defendant had wronged or threatened to wrong the plaintiff and no cause of action arose from the threatening of plaintiff’s plans by its own doubts or by the fears of others. ’ ’

We hold that the principle announced in the Hawes and Thompson cases, supra, decided by the Supreme Court of this State, announces the correct rule of law applicable to the case at bar.

The decree of the superior court of Cook county is affirmed.

Decree affirmed.

McSurely and Hatchett, JJ., concur.


author: Mr. Presiding Justice O’Connor

text:
    The People of the State of Illinois, Plaintiff in Error, v. Henry Gardner, Defendant in Error.
    Gen. No. 37,781.

      Opinion filed April 1, 1935.
    Thomas J. Courtney, State’s Attorney, for plaintiff: in error; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel.
    No appearance for defendant in error.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

December 22, 1933, an information was filed in the municipal court of Chicago, charging that defendant, Henry Gardner, was guilty of an assault with a deadly weapon. January 11, 1934, the defendant entered a plea of not guilty and waived a trial by jury. The cause was then continued until January 25, and again to February 15, when it was tried, the defendant found guilty, sentenced to 90 days in the House of Correction and a fine of $25 was imposed. Apparently defendant was confined to the House of Correction. On March 2, following, a notice by attorney for Gardner appears in the record addressed to the State’s attorney, in which it is stated that defendant would ask the municipal court to grant him a new trial in accordance with his motion made under section 72 of the Civil Practice Act, or section 21 of the Municipal Court Act. On the same day defendant filed his verified petition, setting up his conviction and the sentence imposed upon him by the municipal court.

The petition further sets up that defendant was not able to engage counsel, and by reason thereof was unable to make a proper defense; “that there are certain facts of which the Court ought to be apprised, which would raise new issues in his favor which thereby would result in a finding and judgment in his favor; and thus he was deprived of a fair and impartial trial, contrary to the law of the State of Illinois”; and the prayer was to vacate and set aside the judgment of conviction and to grant a new trial. An order was entered at the time of the filing of the notice and the petition, namely, March 2,1934, reciting that the cause came on to be heard on motion of attorney for defendant for “Writ of Error Goram Nobis to be directed to Edward Deremark, Superintendent of the House of Correction,” and it was ordered that the writ issue directed to Denemark, as superintendent commanding him to produce the body of Henry Gardner on March 3rd before the municipal court. On the same day, March 2,1934, another order appears in the record which recites that the cause came on .to be heard upon the “petition filed and notice to State’s attorney. ’ ’ The court found that it had jurisdiction of the subject matter and it was ordered that the defendant be brought from the House of Correction before a branch of the municipal court to be held on the next day, March 3, ‘ ‘to appear at a hearing on a petition for new trial under section 72 of the Civil Practice Act.” On the next day an order appears which recites that the defendant moved for a new trial. The People were represented by the State’s attorney; defendant appeared in person and by counsel; defendant was arraigned on the charge alleged against him in the information; that he waived a jury and entered a plea of not guilty, and the cause was by agreement submitted to the court for trial. The court heard the evidence and argument of counsel, found the defendant not guilty and he was discharged. The evidence taken on this hearing is not preserved in the record. The record is irregular because there was no order entered specifically vacating a judgment of conviction in accordance with the motion made by defendant, but this is a mere irregularity. What was done, in effect vacated the judgment of conviction.

The People contend that the petition states no facts sufficient to warrant the court in vacating the judgment under the motion. If the question were properly before us, the contention would have to be sustained, as there is an entire lack of facts alleged; but as we read the case of People v. Green, 355 Ill. 468, that question was not saved. It was there said (p. 475) that the proper method to test the sufficiency of a motion or petition under section 21 of the Municipal Court Act was to raise such question “by demurrer, plea of nullo est erratum, by motion to dismiss, by pleading special matters in confession and avoidance, or by making an issue of fact by traversing the allegations. ’

It was there further held that if the court erred, where the question was so raised by the People, the error “may be corrected on review. (People v. Ehler, 353 Ill. 595.)” In the instant case, as stated in the Green case, 355 Ill., p. 474: “The petitions filed purported to state such errors in fact. Whether they did state errors sufficient to justify setting aside the judgment is a question of law, and if the State desired to present that question to this court it should have saved it by raising it in the trial court and securing a ruling thereon.” That procedure was not followed and the question of the sufficiency of the petition is not before us.

The sufficiency of the petition as a matter of law riot having been raised, the judgment of the municipal court is affirmed.

Judgment affirmed,

McSurely and Matchett, JJ.? eoncqr,