text:
    Louis Allegretti and Joseph Glaser, Trading as Leader Signs, Appellees, v. Murphy-Miles Oil Company, Appellant.
    Gen. No. 37,807.

      Heard in the second division of this court for the first district at the October term, 1934.
    Opinion filed May 24, 1935.
    Rehearing denied June 5, 1935.

      Charles E. Green, of Chicago, for appellant.
    Louis Wilson and Mayer Goldberg, both of Chicago, for appellees.
   Mr. Justice Sullivan

delivered the opinion of the court.

By this appeal defendant, Murphy-Miles Oil Company, seeks to reverse a judgment for $9,533 entered against it in an action tried by the court without' a jury for damages to personal property owned by plaintiffs, alleged to have been caused by reason of defendant’s negligence. At the close of all the evidence the court found the other defendant, Norwin Building Corporation, not guilty.

It appears that plaintiffs were in the business of manufacturing Neon and other signs, and occupied as tenants the first floor and basement, except the 15 by 25 feet portion thereof used as the boiler room, of the three-story and basement building at 1934-38 West North avenue, Chicago, Illinois, owned by the Norwin Building Corporation; that the basement was used as a shop for the manufacture of the glass tube part of Neon signs; that the boiler room contained the heating plant for the entire building, the boiler being operated by fuel oil; that located in the boiler room was a fuel oil tank of 1,000-gallon capacity with an intake pipe about two inches in diameter and an air vent about an inch or an inch and a half in diameter leading from the tank and terminating outside the building wall within one foot of each other; that on March 10, 1931, the janitor of the building, discovering that there were only 60 or 70 gallons of oil in the tank, ordered oil from defendant oil company which had been delivering oil to this building for three years; that about 10 a. m. the same day defendant’s driver arrived at the premises with his tank truck containing 822 gallons of oil; that he proceeded to the boiler room where the janitor indicated to him the amount of oil then in the tank, and it was agreed there was room in the tank for the 822 gallons of oil on the truck; that the driver, after going back to his truck, connected one end of a hose with the pump underneath the tank on his truck and the other end to the intake pipe, and proceeded to pump oil into the tank in the boiler room through the intake; that when he had pumped about 600 gallons of oil he heard an explosion; that he immediately shut off his pump and told the janitor, who was outside the building near him at the time, to run in and shut off his oil burner; that shortly thereafter defendant’s driver took the elbow off the vent pipe outside the building in the presence of the janitor and said that he found the air vent clogged with ice, while the janitor said that it was “plugged up” with dirt; that the explosion blew the end out of the tank in the boiler room and clear across said room, badly damaged or tore off part of the wooden partition between the boiler room and plaintiff’s premises and blew the door in said partition from its hinges.

Plaintiff Allegretti testified that the finished Neon signs were hanging from the ceiling and walls or were on benches in the shop, and that the force of the explosion destroyed all but a few of them.

Arthur Paulson, a city fireman who answered a fire call with his company, testified: “The oil tank was exploded. The end of the tank was blown out. We had the job of sweeping out the oil and stuff all over the floor.” He also testified that the signs were all “broke” in plaintiffs’ “place,” and that “there was glass hanging from the ceiling or something; it was all shattered and pieces hanging there.”

It is undisputed that the obstruction in the air vent, shutting off the egress of air from the tank, caused the explosion; that as the oil was pumped from the tank on plaintiffs’ truck to the almost empty tank in the boiler room it displaced the air in such tank, and there being no outlet for the air through the vent pipe it was compressed to the point where the tank could no longer withstand the pressure.

Walter Smith, the driver of defendant’s truck, testified in part on cross-examination, as follows:

“Q. Is there any particular method of determining whether or not air is coming out of a vent pipe?
“A. Yes.
“Q. Did you ever do that on a vent pipe?
“A. Once in a while I have done it.
“Q. Can you feel the air coming out?
“A. You can.
“Q. Is it quite perceivable, or just slight?
“A. Well it is detectable.
“Q. You can tell it without any difficulty?
“A. Yes. •
“Mr. Goldberg: Q. How often do you do that, test the vent pipe for air coming out?'
“A. Well, whenever I think of it.
“Q. Well, about how often?
“A. Maybe two or three times a year or a month.
“Q. Is that right?
“A. Sure.
“Q. How many deliveries, about, do you make a month ?
“A. We will make on an average of six a day.
“Q. And sometimes you will test a vent pipe with your hand?
“A. Yes.
“Q. How do you do that?
“A. Just hold your hand.
“Q. In other words, you have to step over to the vent pipe and put your hand on it while the oil is starting to pump?
“A. Yes.
“Q. And suppose you found there was no air, what would you do?
“A. Shut it off.
“Q. Why?
“A. Because there was no air coming out.
“Q. What difference would it make?
“A. Well, the air might be escaping out in the basement or some other place.
“Q. Well, would there be any danger if no air could come through?
“Mr. Green: I object to that.
“The Court: If he knows.
“The Witness: A. There would be danger if it did not come out some place.
. “Mr. Goldberg: Q. What would the danger be if
the air did not come out?
“A. It would break the tank possibly.
“Q. Possibly or certainly?
“A. Well, I couldn’t say.
“Q. Possibly or certainly?
“A. Possibly.
“The Court: The danger would be exactly what
happened there, wouldn’t it?
“A. Yes.”

The oil heating apparatus in the building in question, including the boiler, fuel oil tank, and all pipes, fittings and fixtures in connection therewith, was owned, operated, controlled and maintained by the owner of the building.

Defendant claims that, inasmuch as it did not own, maintain, possess, control, operate or install the heating apparatus or any of the pipes or vents in the building in which plaintiffs were tenants, it owed no duty to them, as a company furnishing fuel oil, to inspect such apparatus or pipes or to exercise reasonable care to ascertain whether or not the tank, intake pipe or air vent under the control of the property owner or customer were fit for the furnishing of that commodity; and that, therefore, it is not responsible for their condition or for their maintenance and cannot be held liable for injuries caused by a defect therein of which neither it nor its employees had knowledge or notice.

We think that defendant misapprehends plaintiffs’ theory of its liability. We glean from plaintiffs’ brief and argument that they do not rely on defendant’s knowledge or notice of the defect in the air vent as a basis of liability, nor do they contend that the duty violated by defendant was its failure to inspect the premises for the purpose of ascertaining possible defects. They contend rather that the duty violated by defendant was its failure to use reasonable care in the delivery of the oil, and that a reasonably prudent man in its driver’s situation would have reached over the space of one foot that intervened between the terminus of the intake pipe, to which his hose was connected, and the terminus of the air vent, and placed his hand over the op'en end of same, after he had started pumping the oil, to ascertain if there was free egress of air from the tank.

It strikes us that the use of this simple test was incumbent upon defendant’s driver as part of the operation of the delivery of the oil. Defendant was dealing in and delivering a dangerous commodity and it owed plaintiffs the clear and well defined duty of using reasonable diligence to discover a defect which was as readily ascertainable as the one in question here.

Every case must be governed by its own particular facts and it is apparent that defendant violated its duty and failed to guard against a danger that it could and should, by the exercise of even a slight degree of care, have discovered. Even though we assume that the driver was under no obligation to remove the elbow of the air vent outside of the building in connection with his delivery of the oil, either for the purpose of inspecting same or removing obstructions therefrom, we cannot perceive how defendant can escape responsibility for the failure of its driver to resort to the simple expedient of placing his hand over the opening of the air vent, an act that entailed neither inspection of the heating apparatus nor its pipes. Defendant, as we view it, as part of its contract to furnish oil, was at least bound to make this casual test of the vent pipe which would have immediately disclosed the danger. Such test would have involved nothing more than a mere matter of observation and would have averted the explosion. If its driver found that the air from the tank was not flowing freely through the vent, all that he had to do was to shut off his pump and refuse to make any further delivery until the vent was put in order, if he felt that it was not his duty to remove the obstruction.

Defendant’s driver’s evidence, heretofore quoted, clearly indicated that he knew that an obstructed air vent was fraught with danger and that he did test vent pipes “whenever I think of it.” There is no claim that plaintiffs’ conduct contributed in any manner to the explosion and resultant loss, and we are impelled to the conclusion that defendant is liable under the facts of this case. On its own evidence alone, defendant’s failure to use reasonable care in the delivery of the oil was the sole proximate cause of the bursting of the tank.

Something is said about the failure of the owner of the building to comply with the terms of the city ordinance in its installation of the vent pipe. There is no evidence as to when the vent pipe was installed, and, as far as the record discloses, it may have been installed long prior to the passage of the city ordinance and was not subject to its terms. In any event plaintiffs had nothing to do with its installation, and, regardless of when or how the vent pipe was installed, we fail to see how it could have affected defendant’s duty toward plaintiffs. The factual situation, as it was, controlled such duty.

To support its contention that neither under the law nor the facts in this case can it be held liable defendant relies upon and cites Clare v. Bond County Gas Co., 356 Ill. 241; Middleton v. DeKalb County Gas Co., 168 Ill. App. 353; Fritsch v. Atlantic Refining Co., 307 Pa. St. 71, 160 Atl. 699; Pressley v. Bloomington & Normal Ry. & Light Co., 271 Ill. 622; Niagara Fire Ins. Co. v. Standard Oil Co., — S. D. —, 257 N. W. 55.

The Glare case is readily distinguishable from the instant case. In that case the plaintiff’s shop was piped for gas 25 years previous to the accident. Defendant furnished a gas stove, which was connected by a plumber of plaintiff’s own choosing. An odor of gas was noticed, the cause of which several inspections failed to disclose, and the installation of additional pipes failed to rectify it. While a friend of the plaintiff was in charge of her shop, he struck a match in the meter closet and an explosion resulted. Thereafter it was discovered that holes in a rusted pipe under the floor had permitted leakage of gas, which caused the explosion. Our Supreme Court reversed a judgment in plaintiff’s favor, principally upon the theory that the pipes were upon the premises of plaintiff, and, being within her exclusive control, no duty devolved upon defendant to inspect them.

The Middleton case presents a radically different situation from that presented here. In that case the gas company installed pipes for the gas supply. The plaintiff procured a rubber pipe of his own selection to connect his stove with the supply pipe terminal, which connection was made by the company under a written contract with the plaintiff. After constant use of this apparatus for three and a half years a fire took place, which the plaintiff contended resulted from the escape of gas, but which the company claimed was caused by gasoline upon the plaintiff’s premises. There was a sharp conflict with reference to the cause of the fire, which was resolved in the trial court in defendant’s favor. The court held that the defendant gas company was under no obligation to inspect attachments upon the premises of a consumer where said attachments had been selected by and were under the control of the consumer.

In the Fritsch case the facts were essentially different from those in the instant case. There the defendant delivered gasoline to a garage which employed deceased. The storage tank was built below the concrete floor of the basement with its top even with said floor. A measuring pipe was installed in the tank with a removable cap flush with the basement floor. The intake pipe for the gasoline extended through a brick wall 14 feet in front of the garage. A coal stove in the basement, in which a fire was burning, was located 26 feet from the point where the intake pipe joined the tank and 14 feet from the measuring pipe. Defendant’s servant arrived at the premises and proceeded to pump oil from his supply truck through the intake pipe until he heard shouts from downstairs that the gasoline was overflowing. The driver cut off the supply from the truck, but a fire of dangerous proportions had already broken out in the basement, which resulted in the death of plaintiff’s intestate. There was no other point at which gasoline could have escaped from the tank except through the measuring pipe, the cap of which was later found in the yard behind the garage. The court held that defendant’s employee was under no duty to inspect the premises where the storage tank was located and all of the evidence showed that the cap might have been removed by the deceased or one of his fellow servants. “Furthermore,” the court said, “even if there had been a duty to inspect, the mere fact that the cap was off the measuring pipe when the gasoline was actually delivered would not be sufficient to charge appellee with negligence, for there is not a line of evidence to show that it had not performed that duty and that meanwhile the cap might have been removed by someone else.”

The Pressley case, to which our attention is called, is concerned with an entirely different question and the principles of law therein involved have no applicability to the case at bar.

In the Niagara Fire Ins. Co. case, one Powers owned a garage which was insured by plaintiff insurance companies. A fire occurred, the insurance companies paid the loss, and sued the oil company for its alleged negligence in causing said loss. In the basement of the Powers garage, and under the sidewalk, there were located large storage tanks from which gasoline was drawn and retailed through pumps in front of the garage. A flood occurred on a Sunday and water entered the garage basement, causing the gasoline tanks to get out of place, with resultant leaks in the pipes and equipment. The following Thursday an agent of defendant oil company delivered gasoline to the garage, and, without observing or knowing the condition of the equipment in the basement, attached his hose from the tank wagon to the intake on the sidewalk and started gasoline running into the intake. It had been the custom for the oil company to deliver gasoline to Powers without his ordering same whenever it appeared that he needed it. The evidence was disputed as to the condition of the intake pipe at the sidewalk and as to whether or not Powers saw and spoke to the driver of the tank wagon after same had been connected by the hose with the intake. A gas furnace had been started to help dry out the basement following the flood. An employee of Powers, noticing the gasoline being delivered, went into the basement with a flashlight and discovered that gasoline was running out of the intake pipe on to the basement floor from the tank room. This employee had no more than left the basement than an explosion occurred, followed by a fire which destroyed the building. The decision of this case was predicated upon the following facts: That Powers knew or by the exercise of ordinary care should have known that the pouring of gasoline into the fill pipe in its then condition might be dangerous in that it might leak on to the floor; that he knew that there was a fire burning in the basement within the vicinity of which gasoline might leak, and that he allowed the driver to deliver the gasoline; or that, knowing that the oil company was liable to make such delivery, he failed to notify it of the danger and failed to use reasonable care and precaution to prevent the delivery of gasoline.

In none of these cases are the facts comparable to those in the case at bar nor do we find anv principle of law enunciated in any of them that would relieve defendant from the duty of exercising reasonable care at the point of intake in the delivery of the oil.

In so far as we have been able to ascertain, the question of defendant’s liability is a new one in this State •and must be decided in accordance with fundamental and established principles. Two of these established principles are that one shall so use his own as not to injure another, and that the law demands what is reasonable under the circumstances to avert injury. The furnishing of fuel oil for heating plants is a necessity of modern civic and industrial life, but it is in strict line with the dictates alike of morals and law that one who sells and delivers such, a dangerous product should use proper care to avoid resulting harm. (Hoffman v. Leavenworth Light, Heat & Power Co., 91 Kan. 450; Pressley v. Bloomington & Normal Ry. & Light Co., supra.)

It is urged that there was a fatal variance between the evidence and the allegations of the amended declaration. It is sufficient answer to this contention to state that the question of variance was not raised in the trial court and that being so defendant cannot be heard to raise the question now. The record discloses that no objection was made on the trial to the admission of any evidence, nor was any motion made to strike any evidence because it was variant from the amended declaration. Neither in its motion at the close of plaintiffs ’ case for a finding in its behalf, nor in its motion for a new trial, did defendant rely upon or specifically point out to the court any variance between the proof and the declaration. An objection on the ground of variance is deemed to have been waived unless made promptly and specifically so that an opportunity may be afforded to amend the declaration to meet such objection. This principle is too well defined and settled to require the citation of authority.

It is next claimed that the court erred in admitting in evidence two certain written statements over defendant’s objection. Plaintiff Allegretti and plaintiffs’ bookkeeper testified that, because of the lapse of time, and the number, character and variety of the signs, they could not definitely remember the finished signs that were in the shop on the Saturday preceding the explosion which occurred on Tuesday, or the number and value of the finished Neon signs and the amount and value of other signs and material that had been destroyed by the explosion. As to the first of these statements both of the witnesses testified that because of labor union regulations plaintiffs’ employees did not work on Saturday and that it was the practice and custom for Allegretti and the bookkeeper on each Saturday to make and prepare a written inventory of all completed work in the basement shop and discard the previous inventory when the current one was completed.- The written inventory of the Saturday preceding the explosion showing signs to the number of 214 and their description, as well as 100 border tubes, was received in evidence without objection from this defendant. It is true that the other defendant offered an objection, but that could not inure to the benefit of the oil company unless it expressly joined in same. (Sline & Sons v. Hooper, 164 Md. 244, 164 Atl. 548.)

The other written statement admitted in evidence over defendant’s objection was what purported to be a written or hand printed statement or inventory of 202 signs destroyed as a result of the explosion, including figures which Allegretti and the bookkeeper testified represented the actual cost of the labor and materials that went into the construction of each specific sign.

It is urged that this document was inadmissible in that it was self-serving and was not made up from original records or books of account; and that the court should not even have permitted its úse as a memorandum for the purpose of refreshing the recollection of the witnesses.

After this statement had been admitted in evidence by the court the parties stipulated that, if Allegretti were permitted to testify from it in reference to the amounts thereon purporting to represent the actual cost of labor and materials of each destroyed sign, he would testify that the items and figures enumerated are the items and figures that were placed on the statement either on the afternoon of the day of the explosion or the next day, and that such figures represented the value of labor and materials as determined by Allegretti when the statement was made up. The total value of the labor and materials that went into the manufacture of all the signs destroyed was $9,533, as shown by this statement.

Allegretti testified in connection with this latter statement that the next day after the explosion he and the bookkeeper went down to the basement shop to ascertain what damage was done to the signs therein; that they took with them the inventory of the previous Saturday and checked the items thereon against the damaged and undamaged signs, and that the bookkeeper, in his presence and at his direction, wrote or printed this statement upon which she recorded the name or description of 202 signs that had been destroyed; that the fair and reasonable value of the labor and materials that went into the manufacture of the signs that were destroyed was about $10,000 or $12,000; that about two years after the explosion the business was incorporated and that he did not know where the books or records of the partnership were at the time of the trial; that, after the bookkeeper had written or printed on the statement the name or description of the signs that had been destroyed, he and the bookkeeper went upstairs; that in the construction of a sign each employee made out a separate time card, indicating the hours of labor he put in on the particular sign and that from these cards time sheets were prepared which indicated the total amount of labor performed in the manufacture of each sign; that from these time cards and time sheets, and his knowledge of the materials requisite for the manufacture of Neon signs, he advised the bookkeeper as to the value of the labor and materials which went into the manufacture of each sign; and that the bookkeeper, in his presence and at his direction, recorded on the statement, opposite each sign, figures showing the value of such labor and material.

Thelma Stein, the bookkeeper, testified to substantially the same effect as Allegretti. She also testified that the time cards and time sheets had been destroyed, not being kept for any considerable length of time after the employees had been paid.

There was no countervailing testimony as to the damages suffered by plaintiffs. Allegretti and the bookkeeper both testified that they were unable to definitely state the value of the labor and material involved in the manufacture of the individual signs without referring to the written statement of same made immediately after the explosion, which occurred more than three years before the trial.

While Allegretti, upon defendant’s objection, was not permitted to answer a direct question as to whether the entries on the statement accurately set forth the items thereon and the figures evidencing the value of the labor and materials that went into their manufacture,' the substantial effect of his testimony was that the statement constituted a contemporaneous record of his past recollection of such items and figures, and that same were truly and correctly recorded at the time of the occurrence. It has been held that where a writing has been made by the witness or at his direction at the time of the fact, for the purpose of preserving the memory of it, if at the time of testifying he can recollect nothing further than that he had accurately reduced the whole transaction to writing, the writing itself may be admitted in evidence. (People v. Greenspawn, 346 Ill. 484; Farmers’ & Mechanics’ Bank v. Boraef, 1 Bawle (Pa.) 152; Smith v. Lane, 12 S. & B. (Pa.) 80, 84; Merrill v. Ithaca & Oswego R. Co., 16 Wend. (N. Y.) 586; Haven v. Wendell, 11 N. H. 112; Curtis v. Bradley, 65 Conn. 99; State v. Brady, 100 Iowa 191; Republic Fire Ins. Co. v. Weide, 14 Wall. (U. S.) 375.)

In this case where there was no recollection, or at best an indistinct recollection, except that Allegretti directed the bookkeeper to make, and that she made under his direction,' a true record of the facts as they existed on the Saturday before the explosion and as they existed almost immediately after the explosion, in our opinion, that record is entitled to be received in evidence.

It is contended that plaintiffs’ amended declaration failed to state a cause of actionable negligence and that the trial court erred, therefore, in overruling defendant’s motion in arrest of judgment. We find no merit in this contention. While the law is well settled that, even after a demurrer to a declaration has been overruled and the demurrer waived by pleading over to the merits, a defendant may invoke a motion in arrest of judgment if there are substantial defects in the declaration which would render it insufficient to sustain a judgment, such motion cannot avail against a declaration if it states a cause of action, even though defectively. In discussing* this question in Chicago & A. R. Co. v. Clausen, 173 Ill. 100, the court said at pp. 103, 104:

“At the common law, independently of any statute, the rule was and is, ‘that where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict. ’ (1 Chitty’s PI. 673.) This rule was quoted and approved in Keegan v. Kitnare, 123 Ill. 280, and Chicago and Eastern Illinois Railroad Co. v. Hines, 132 id. 161. The intendment in such cases arises from the joint effect of the verdict and the issue upon which it was given, and if the declaration contains terms sufficiently general to comprehend, by fair and reasonable intendment, any matter necessary to be proved, and without proof of which the jury could not have given the verdict, the want of an express statement of it in the declaration is cured by the verdict. Under this rule a verdict will aid a defective statement of a cause of action, but will never assist a statement of a defective cause of action. (1 Chitty’s PI. 681.)”

Although not very well drawn in respect to plaintiffs’ theory of the case as developed on the trial, we are satisfied that both counts of the amended declaration state an actionable cause of negligence against defendant and that, after the court’s finding of guilt, either count is clearly sufficient to sustain the judgment. The only charge that we see that could be properly lodged against either count of the amended declaration is that of variance and that has been heretofore considered.

It is reasonable to assume that the very purpose of placing the open end of the air vent in juxtaposition to the receiving end of the intake pipe outside the building wall was to afford drivers delivering fuel oil an opportunity to test the flow of air from the reserve oil tank in the basement. Convinced that so long as the air vent could have been tested by defendant’s driver after he began to pump oil through the intake, by simply placing his hand over the open end of such air vent, which was within easy reach, to ascertain if the air was coming through the vent as it was displaced in the tank by the oil, it is our opinion that defendant was guilty of actionable negligence and that the assessment of plaintiffs’ damages at $9,533 was not excessive in view of the evidence as to the loss suffered by them.

For the reasons indicated herein the judgment of the circuit court is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: Mr. Presiding Justice Wolfe

license: Public Domain

text:
    Blanche Seron, Assignee of W. W. Mollan, Appellee, v. Walter J. Carlson, Appellant.
    Gen. No. 8,886.
    Heard in this court at the October term, 1934.
    Opinion filed April 22, 1935.
    Rehearing denied June 26, 1935.
    Lewis M. Levinson, of Joliet, for appellant.
    Pence B. Ore, of Joliet, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Blanche Serón, as assignee of W. W. Molían, started suit in a justice of the peace court in Will county, against Walter J. Carlson, to recover rent for certain property in said county. The case was heard on the 29th of January, 1934, before the justice. Before the trial the defendant demanded and was furnished a bill of particulars, which was filed in the justice of the peace court. The justice of the peace heard the evidence without a jury and found in favor of the plaintiff and entered judgment against the defendant in the sum of $175. From this judgment the defendant perfected an appeal to the circuit court of Will county. In due course the case was called and set for trial on May 28, 1935, before the Honorable Edwin L. Wilson, presiding judge. At the time but before the hearing commenced, the defendant, by his counsel, by way of an oral motion demanded a trial by a jury. The court overruled the motion and proceeded to hear the evidence. The defendant refused to go to trial without a jury and took no part in the hearing of the case.

Mr. W. W. Molían, a witness called on behalf of the plaintiff, testified to renting the premises and to the amount due as rent for the same and that he assigned his claim for the rent to Blanche Serón. At the conclusion of the hearing the court found the issues in favor of the plaintiff and assessed her damage at $175 and entered judgment against the defendant for this amount. From this judgment the case is brought to this court on appeal. While there are six assignments of error, or points relied upon for reversal of the case, we have grouped these into two classes. The first is: The court erred in refusing the demand of the defendant for a trial by a jury; the second is that the suit was not properly brought by Blanche Serón as assignee.

Article 1, section 1, of the Illinois Practice Act of 1933, Cahill’s St. ch. 110, f 129, provides as follows: “The provisions of this Act shall apply to all civil proceedings, both at law and in equity, unless their application is otherwise herein expressly limited, in courts of record. . . . As to all matters not regulated by statute or rule of court, the practice at common law and in equity shall prevail.” Section 64, Article 1, of the Practice Act is as follows: “A plaintiff desirous of a trial by a jury shall make his demand for a jury in writing, and file such demand with the clerk at the time suit is commenced, and a defendant desirous of a trial by a jury shall make such demand and file the same at the time of filing appearance; otherwise such party shall be deemed to have waived a jury.”

The question presented for our consideration is whether the Illinois Practice Act of 1933 applies to appeals from a justice of the peace. In the case of Industrial Loan Co. v. Kezirian, 259 Ill. App. 47, in discussing a similar case the court use this language: “It is the contention of the plaintiff in error that the trial court was without authority to enter a default against him and to hear evidence in the case without the intervention of a jury, without the plaintiff in error having waived his right to a jury trial.

“In all actions that originate before a justice of the peace the pleadings are ore tenus and no written pleadings are required. In contemplation of law such pleas as are necessary to present the defense of the defendant are on file and before the court. (Davies v. Apperson, 146 Ill. App. 348; Latham v. Sumner, 89 Ill. 233.) The record in this case does not show that a jury was waived by the plaintiff in error, and it was reversible error for the trial court to proceed to try the issues in this case without the intervention of a jury, when the defendant to the action did not waive a trial by jury.” (Klein v. Wells, 82 Ill. 201; Tongeln v. Knoll, 227 Ill. App. 317; Barnett v. Craig, 38 Ill. App. 96.)

There is no question but that on a hearing of an appeal from a justice of a peace in the circuit court that the trial is de novo and written pleadings are not required. At common law the only way a party litigant could be deprived of his right to a trial by a jury was by expressly waiving the same. Any statute that attempts to deprive a litigant of this right should be strictly construed. It is our opinion the Practice Act of 1933 does not apply to appeals from a justice of the peace, but they are governed by the Justice of the Peace Act, Cahill’s St. ch. 79, and that the court erred in refusing to grant the defendant a jury trial.

The appellant contends that the evidence does not sustain the findings of the trial court and that the suit was improperly brought. We have examined the evidence and we think that it fairly tends to show that the defendant was indebted to the plaintiff and had promised to pay the indebtedness. As written pleadings are not necessary on an appeal from a justice of the peace to the circuit court, the objections to the plaintiff’s pleadings are not well taken.

Because of the error committed by the trial court in not granting the defendant’s demand for a jury trial, the judgment of the circuit court of Will county is hereby reversed and the case remanded.

Reversed and remanded.


text:
    Jefferson Trust and Savings Bank, Appellee, v. W. Heller and Son, Inc., et al., Appellants.
    Gen. No. 8,869.

      Heard in this court at the October term, 1934.
    Opinion filed May 1, 1935.
    Rehearing denied June 26, 1935.
    Cassidy & Knoblock, of Peoria, and Alvin D. Blieden, of Chicago, for appellants.
    Bartley & Youngs, of Peoria, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Peoria county denying the defendants’ motion to open up a judgment against the defendants in the sum of $18,602.05, and for leave to the defendants to plead to the original declaration. The action was on a narr and cognovit on account of a promissory .note of the principal sum of $17,261.87, with interest at the rate of seven per cent per annum, due the Jefferson Trust & Savings Bank of Peoria, Illinois. The note is purported to have been signed by W. Heller & Son by Samuel Heller, as secretary and I. M. Heller, as president. The note was indorsed individually by R. A. Heller, Samuel Heller and I. M. Heller. The defendants filed affidavits in support of their motion to vacate and open up the judgment. On January 27, 1934, the court denied the motion to open up the judgment and give defendants leave to plead. To review this order the case is brought to this court on appeal.

The affidavit filed by the defendants is in substance as follows :

No. 1. “That said defendants believe that the defendants have a meritorious defense to the whole of claimant’s demand, and that the defendants and each of them have good legal and equitable grounds for granting a motion to vacate the judgment and set aside and recall the execution in said cause and in support of said affidavit the nature of the defenses and the grounds relied upon were outlined as follows:
“That on December 21st, 1933, was filed in the Circuit Court of Peoria County, Illinois, a certain bill in equity entitled W. Heller & Son, Inc., a corporation, et al. v. Jefferson Trust & Savings Bank of Peoria, a banking corporation, et al., a copy of which bill is as follows:
14-23 “State of Hlinois, County of Peoria.
}
ss.
“In the Circuit Court of Peoria County in Chancery.
“W. Heller & Son, Inc., a Corporation; Rufus Heller, I. M. Heller, vs. Jefferson Trust & Savings Bank of Peoria, a banking corporation; John C. Wynd, individually and as Trustee; Harry A. Frankel, Robert Silberstein, Sam Heller. No
“To the Honorable Judges of the Circuit Court in Chancery Sitting:
“Bill for Reformation, Etc.
“1. Your orator, W. Heller & Son, Inc., respectfully represents that it is a corporation duly organized and existing under and by virtue of the laws of the State of Illinois, having its principal office in - the City of Peoria, State of Illinois; your orators Rufus Heller and I. M. Heller respectfully represent unto this Honorable Court that they are residents of the City of Peoria, County of Peoria, and State of Illinois.
“2. That at various and divers times one of the defendants herein, Sam Heller, purchased certain shares of the common capital stock of the State Trust and Savings Bank, a banking corporation located in the City of Peoria, State of Illinois; that said State Trust and Savings Bank employed Sam Heller to purchase said stock, and the said Sam Heller acted as an agent of the State Trust and Savings Bank for the purchase of said stock; that the said Sam Heller purchased in all a total of one hundred and fifty-five (155) shares of the common capital stock of the said banking corporation ; that as the shares of said stock were purchased, the said stock was taken and held as collateral by the State Trust and Savings Bank to secure certain advances made to the defendant Sam Heller to cover the purchase price of each of the particular transactions involving the acquisition of said shares in the said bank.
“3. That although the facts are peculiarly within the knowledge of the defendants and others, your orators believe that the said State Trust and Savings Bank ceased to do business as a banking institution during the month of February, 1931, and from that day until the day hereof continues to cease from doing business as a banking institution in the State of Illinois.
“4. That following the closing of said bank certain officials of the State Trust and Savings Bank and others, entered into negotiations for the purpose of formulating a plan whereby a reorganization of the affairs of the State Trust and Savings Bank would be accomplished and said bank opened for the purpose of doing business in the City of Peoria, State of Illinois; that your orators have been informed and believe that said plan of reorganization provided that a new banking corporation was to be organized, and that said banking corporation was to assume and pay all deposit liabilities of the State Trust and Savings Bank in full, at the date of the closing of said State Trust and Savings Bank, and said plan further provided that there was to be organized a certain corporation which was to receive certain assets of various description and kind, which were formerly a part of the assets of the State Trust and Savings Bank, and which assets were to have a face value of, to wit, $500,000; that said plan further provided that the stockholders of the State Trust and Savings Bank in lieu of their stock liability to said bank were to subscribe for share and share alike of the common capital stock of a corporation to be formed, and that said stockholders should subscribe and pay in a total sum of two hundred thousand dollars ($200,000.00) in cash; that the total amount of the assets transferred from the State Trust and Savings Bank to the new corporation should act as collateral to reimburse the stockholders for the funds which they were to raise when, as and if said assets were liquidated.
‘ ‘ 5. That pursuant to said plan of reorganization one of the defendants herein, Harry Frankel, and others of the City of Peoria, exerted their efforts towards obtaining from the stockholders the two hundred thousand dollars ($200,000.00) required, and in making such other necessary arrangements to permit the new bank to open.
“6. That on the seventeenth (17th) day of October, A. D. 1931, there was executed by one of the defendants herein, Sam Heller, and delivered to Harry Frankel a certain promissory note in the principal sum of $15,500.00, with confession of judgment clause, the said note being payable to John C. Wynd, trustee, said note appearing more specifically as Exhibit A herein and attached hereto and made a part of this bill of complaint. ■
7. That said note was executed by Sam Heller and delivered to Harry Frankel in lieu of the purchase of one hundred and fifty-five (155) shares of the common capital stock of the corporation to be formed for the purpose of procuring the funds required of the stockholders of the State Trust and Savings Bank; that Sam Heller was unable to pay for his subscription in cash and was permitted to give his note as appears in Exhibit A herein.
“8. That on, to wit, the twenty-seventh (27th) day of October, A. D. 1931, a charter was issued to the Jefferson Trust and Savings Bank of Peoria, a banking corporation authorized to do a banking business in the City of Peoria, State of Illinois; that there was also authorized by the Secretary of State of Illinois a corporation to be known as Peoria Investment Company, which corporation was to procure the two hundred thousand dollars ($200,000.00) in cash required from the stockholders and to hold and liquidate'the five hundred thousand dollars ($500,000.00) face amount of assets for the benefit of the stockholders in said Peoria Investment Company, a corporation.
“9. That thereafter, prior to the opening of the Jefferson Trust and Savings Bank of Peoria, the said Harry Frankel demanded that Sam Heller procure the signature of W. Heller & Son, Inc., a corporation, on said note; that Harry Frankel represented that said note could not be discounted without the signature of the corporation; that Sam Heller informed Harry Frankel that he would be unable to get the corporation to pass a resolution authorizing the execution of a corporate obligation by the proper authorities; however, Frankel insisted upon obtaining the signature of said corporation, and in fact returned to the offices of the corporation many times attempting to induce the officers of said corporation to execute said instrument along with Sam Heller.
“10. That on or about, to wit, the twenty-seventh (27th) day of October, A. D. 1931, Harry Frankel came to the office of the complainant corporation, located at 1000 South Washington street, in the City of Peoria, State of Illinois, and did again then and there demand that the said corporation execute the aforesaid note in favor of John C. Wynd, trustee; the said Harry Frankel stated that if the said Sam Heller did not obtain the signature of the aforementioned corporation that it would be necessary for the trustee of the said State Trust and Savings Bank to enforce stock liability against the said Sam Heller; your orator further states that on the same occasion the said Harry Frankel did then and there promise to the president of the complainant corporation, I. M. Heller and to Sam Heller that if he, the said I. M. Heller, would execute said note in the name of the corporation, although he, the said Harry Frankel, already well knew that the corporation would not authorize the necessary and proper resolutions confirming the acts of its officers for the execution of such an. instrument that he, the said Harry Frankel, would procure the return of such instrument to the corporation from the Jefferson Trust and Savings Bank of Peoria; that he further stated to Sam Heller that he would take it upon himself to procure the return of the said note to the complainant corporation and permit Sam Heller to substitute his personal note in the sum of fifteen thousand five hundred dollars ($15,500.00) in lieu thereof.
“11. That said Harry Frankel represented to your orators that it was contemplated that he would be a director of the Jefferson Trust and Savings Bank of Peoria, and that he would obtain the return of said note signed by the corporation; that relying upon said representations, promises and inducements the said I. M. Heller signed the corporate name and delivered said instrument to the said Harry Frankel conditioned upon the return of said instrument within a reasonable time in exchange for a new note to be signed solely by Sam Heller.
“12. That during the month of November, 1931, the Jefferson Trust and Savings Bank of Peoria opened as a banking institution and began regular banking business in the City of Peoria, State of Illinois, and the said Harry Frankel became a director thereof, and is at the date hereof a director of said bank.
“13. That on or about, to wit, March fifteenth (15th),' 1932, the said Sam Heller and Bufus Heller were called to the offices of George Shurtleff, in the City of Peoria, and were advised that he had been instructed to procure from them a note in lieu of the original note which he stated was then in possession of the Jefferson Trust and Savings Bank of Peoria, and that said George Shurtleff demanded that the new note be in favor of Jefferson Trust and Savings Bank of Peoria in the sum of fifteen thousand seven hundred fifty dollars ($15,750.00); that Sam Heller and Bufus Heller advised George Shurtleff, who was then and is now a director of the Jefferson Trust and Savings Bank, that the note herein known as Exhibit A was signed and delivered by I. M. Heller, as president of W. Heller & Son, Inc., upon a certain condition that it be returned to the corporation within a reasonable time and substitution thereof be made for the personal note of Sam Heller, and Sam Heller and Bufus Heller did thereupon refuse to execute the new note as requested by the said George Shurtleff; that they were then advised by George Shurtleff that he had been instructed to file suit against the complainant corporation herein and to sell a certain first mortgage held by the Jefferson Trust and Savings Bank of Peoria as collateral for a certain indebtedness of eight thousand dollars ($8,000.00) due and owing to said bank by the complainant corporation.
“14. That your orators and-Sam Heller not desiring to enter into litigation and because of the general depression throughout thé country and particularly with the desire to prevent the forced sale of the first mortgage upon their property at public auction on the courthouse steps, held by the Jefferson Trust and Savings Bank of Peoria as collateral to the indebtedness of eight thousand dollars ($8,000.00) due and owing by W. Heller & Son, Inc., to said Jefferson Trust and Savings Bank did procure the corporate signature on the note as requested by George Shurtleff; that your orators, Rufus Heller and I. M. Heller, having a financial interest in the W. Heller & Son, Inc., corporation, and hoping to avoid litigation against the said corporation, at the request and demand of George Shurtleff, lent their personal endorsement to the said note; that the said Rufus Heller and I. M. Heller received no money, property or any benefit whatsoever in lending their signature to the aforementioned note, and that the same was affixed thereto solely because of the threats and coercion of the said George Shurtleff.
“15. That neither the note dated October seventeen (17), 1931, nor any of the notes issued subsequent thereto was ever intended to be or is an act of W. Heller & Son, Inc., and your orators further state that said corporation received no benefit whatsoever from the execution of any of said instruments, nor did said corporation receive any property or moneys in return for its execution of said instruments.
“16. That on, to wit, March fifteenth (15th), 1932, and many times following thereafter, the said Sam Heller, pursuant to the terms and agreement heretofore entered into, at the request of the complainant corporation, did offer and tender his personal note for the unpaid principal balance due for the purchase of one hundred and fifty-five (155) shares of the common capital stock of Peoria Investment Company in lieu of the note signed by the complainant corporation, and that said Jefferson Trust and Savings Bank of Peoria refused to accept said personal note in lieu of or substitution of the note signed by the complainant corporation.
“16. (a) That on the 21st day of December, A. D. 1933, your orators made a legal tender to the Jefferson Trust and Savings Bank of Peoria of the sum of eight thousand dollars ($8,000.00) in full and complete payment of all money due and owing by W. Heller & Son, Inc., to the said Jefferson Trust and Savings Bank of Peoria, and demanded the return of a certain note held by said bank and the release and cancellation of a certain trust deed, which tender was refused by the Jefferson Trust and Savings Bank, all of which appears more specifically under Exhibit C herein, which is made a part of this bill of complaint.
“17. That your orators are informed and believe and upon such information and belief state the fact to be that the Jefferson Trust and Savings Bank of Peoria will offer for sale the certain mortgage held by it at public auction; that your orators aver the fact to be that the offer to sell said mortgage will cause your orators irreparable injury; that your orators further are informed and believé and upon such information and belief state the fact to be that the Jefferson Trust and Savings Bank of Peoria will confess judgment against your orators upon said note; that your orators are informed and believe and upon such information and belief state the fact to be that the Jefferson Trust and Savings Bank of Peoria will sell or transfer or offer for sale or transfer the certain note held by it signed by the complainant corporation.
“That by reason of the matters and things herein-before set forth your orators are entitled to have the said note now in the possession of the Jefferson Trust and Savings Bank of Peoria reformed and changed according to the allegations in this bill of complaint; that your orators are further entitled to the immediate issuance of a writ of injunction directed to the said Jefferson Trust and Savings Bank of Peoria, restraining it from, negotiating, selling or transferring the aforementioned note; that your orators are further entitled to the immediate issuance of a writ of injunction directed to the said Jefferson Trust and Savings Bank of Peoria, restraining it from confessing judgment or taking any action whatsoever upon said note; that your orators are further entitled to the immediate issuance of a writ of injunction directed to the Jefferson Trust and Savings Bank of Peoria, restraining it from disposing of or selling the said first mortgage covering a certain portion of the property commonly known as 1000-1030 South Washington street, Peoria, Illinois.
“Forasmuch, therefore, as your orators are without remedy in the premises save in a court of equity and to the end that the said Jefferson Trust and Savings Bank of Peoria, a banking corporation, John C. Wynd, individually and as trustee, Harry A. Frankel, Robert Silberstein and Sam Heller, all of whom your orators hereby make parties defendant to this bill of complaint, may make answer hereto, but not under oath, answer under oath being hereby expressly waived as to all defendants, that upon a hearing in this cause the Court will find and adjudge that the matters and things set forth in this bill of complaint are true, and that the said defendant, or any other of the defendants herein, may be compelled by the decree of this Honorable Court to specifically perform the said agreement with your orators; that the defendant Jefferson Trust and Savings Bank of Peoria be required to deliver to your orators the note according to the tenor and effect of said agreement; that upon its failure so to do'that a Master in Chancery of this court may be delegated and directed to make or cause to be made such delivery as hereinbefore prayed; that your orators may have such other, further and different relief in the premises as the nature of this case may require and that to your Honors may seem meet.
“And may it further please the Court to grant unto your orators the People’s writ of injunction to be directed to the said Jefferson Trust and Savings Bank of Peoria, a banking corporation, restraining them, their agents and attorneys, and to each and every one of them from selling or transferring the said note or from confessing judgment under direction of said note or instituting suit thereon, or from selling or offering for sale the aforesaid first mortgage upon a portion of the premises commonly known as 1000-1030 South Washington street, Peoria, Illinois, until the further order of this Honorable Court.
“May it please your Honors to grant unto your orators the usual writ of summons in chancery, directed to the Sheriff of Peoria County, commanding that he summon all of the above-mentioned defendants personally to be and appear before this Court on the 1st day of the........Term thereof, to be held at the courthouse in the City of Peoria, State of Illinois, in the said Peoria County on the......day of........., A. D. 19.., then and there to answer all and singular the premises and to stand to, abide by and perform such order and decree in this cause as may be in accordance with equity and good conscience.
“And your orators will ever pray, etc.
“W. Heller & Son, Inc.
■ By I. M. Heller,
R. A. Heller,
I. M. Heller.
“Alvin D. Blieden,
Solicitors for Complainants.”

This bill was sworn to.by the Hellers.

“(2) Affiants further state that each allegation of said complaint is true and correct and that the facts therein are true and correct. The affiants subscribe to the allegations and facts thereof as part of the affidavit therein and expressly make oath to the truth and correctness of each allegation and thing set forth in said bill of complaint, and the defenses of all the defendants appearing from the allegations and facts set forth in such bill of complaint are herewith set forth for the purpose of showing that all said defendants have a meritorious defense to the whole of plaintiff’s demand.
‘ ‘ (3) Immediately following the filing of said bill for reformation wherein the prayer was requested a temporary restraining order to preclude the plaintiff from negotiating said note in the principal sum of $17,261.87, from taking judgment, selling or offering a certain collateral first mortgage held by the plaintiff, there appeared in court plaintiff and defendant, by and through their respective attorneys, and before the Honorable Henry J. Ingram, when it was understood and directed by the court that the motion for temporary restraining order prayed for in said bill for reformation should be continued to the 12th day of January, 1934; that two days following said direction by Judge Ingram, i. e., December 23, 1933, the plaintiff, by and through the same law firm, nevertheless appeared before another judge of the same circuit court, i. e., Hon. John M. Niehaus, and then and there obtained judgment by confession against the defendants and an order that execution issue immediately and, pursuant to said orders, defendants were served with execution December 27, 1933.
“(4) Affiants further state that on December 27, 1933, there was a second hearing before Judge Ingram, at ‘which time solicitor for defendants renewed his motion for temporary restraining order including the restraining of the prosecution and enforcement of the judgment herein. Wherein the judgment was entered for the sum of $8,583.30 in cause No. 10,382 as well as in canse No. 10,383, wherein judgment was entered in the sum of $18,602.05, and that in said second hearing John Niehaus, Jr., appeared for the plaintiff, and it was then agreed in open court that all these transactions should remain status quo until January 12, 1934, which date had been previously set by Judge Henry J. Ingram for final disposition of said motion of defendants.
“(5) Defendants further state that defendants would tender the sum of $8,000 lawful money of the United States of America to plaintiff bank if complete payment of this certain note herein referred to could be had and on which judgment had been taken in this cause, said note being in the principal sum of $8,000 which is the total amount due at that time. Affiants further state that defendants at this time likewise requested that certain collateral security in the form of a note and mortgage be surrendered, canceled and released of record pursuant to the terms of such collateral security.
“ (6) Affiants further state that plaintiff bank then and there refused to accept such $8,000 so tendered, and refused at such time to surrender, cancel and release of record the collateral security, as herein stated.
(7) Affiants also state that defendant corporation was at such time ready, willing and able and did make a legal tender of such sum to plaintiff bank, and is now ready, willing and able and herewith offer to pay such sum of $8,000 in satisfaction of such, herein referred to upon the surrender, cancellation and release of the collateral security pledged, as herein stated.
(8) Affiants further state that this affidavit and the motion filed herein are being made at the earliest opportunity, that execution was served upon the defendant corporation in this cause on the 27th day of December, 1933, and that the further hearing, herein referred to, was had on this day, the 28th day of December, 1933, at 9 o’clock in the morning.
“Wherefore, affiant respectfully prays that an order vacating and setting aside the said judgment in the sum of $18,602.05, hereto entered, as herein referred to, and setting aside and recalling the execution, as herein referred to.
“ (Signed) B. A. Héller,
“As Vice President of W. Heller & Son, Inc., and Individually.
“I. M. Heller,
“As Pres, of W. Heller & Son, Inc., and Individually.
“Subscribed and sworn to before a notary public December 28, 1933.”

No. 2. A supplemental affidavit was filed July 16, 1934, in support of the motion to open up the judgment, which supplemental affidavit is as follows:

“Sam Heller, being duly sworn and under oath, deposes and says that on the 17th day of October, A. D. 1931, there was executed by this affiant, Sam Heller, a certain promissory note in the principal sum of fifteen thousand five hundred ($15,500.00) dollars, with a confession of judgment clause, said note being payable to John Wynd, trustee; said note, this affiant states, appearing more specifically as Exhibit A, attached to the motion already filed herein, to set aside judgment and for leave to plead, and for stay and recall of execution.
“Affiant states that said judgment entered by this Honorable Court on the 23rd day of December, A. D. 1933, is in favor of Jefferson Trust & Savings Bank of Peoria, a corporation, and against W. Heller & Son, Inc., a corporation, B. A. Heller and I. M. Heller, in the sum of eighteen thousand six hundred and two and 5/100 ($18,602.05) dollars.
“Affiant states that the signatures on said note, i. e., the signature of W. Heller & Son, Inc., by I. M. Heller, Pres., were attached on or about, to wit, November 2nd or November 3rd, A. D. 1931.
“Affiant states that said signatures, W. Heller & Son, Inc., by I. M. Heller, Pres., and I. M. Heller, individually, on the reverse side of said note, were attached after a charter had been issued to the Jefferson Trust & Savings Bank of Peoria, a banking corporation, which is the same Jefferson Trust & Savings Bank of Peoria, as is the plaintiff in this cause of action.
“Affiant states that said signatures of W. Heller & Son, Inc., by I. M. Heller, Pres., and I. M. Heller, individually, on the reverse side of said note were procured and attached to said note subsequent to and for a long period following the time the said Jefferson Trust & Savings Bank of Peoria had been granted a charter to enter in and follow the banking business in the State of Illinois.
“Affiant states that said signature of W. Heller & Son, Inc., by I. M. Heller, Pres., and, as stated, I. M. Heller, individually, were obtained from I. M. Heller, Pres., by Harry Frankel, Albert Kahler and George Shurtleff on or about, to wit, November 2nd or November 3rd, A. D. 1931.
“Affiant states that on the day and date when the signature of W. Heller & Son, Inc., by I. M. Heller, Pres., and the signature of I. M. Heller, individually, on the reverse side of said note were procured, said note had prior thereto been placed in the custody and possession of the plaintiff herein, Jefferson Trust .& Savings Bank, that is to say, that at the time the Jefferson Trust & Savings Bank of Peoria received and took possession of said note, the signature of W. Heller & Son, Inc., by I. M. Heller, Pres., and the signature of I. M. Heller, individually, on the reverse side of said note were not on said note, and that after the Jefferson Trust & Savings Bank of Peoria had taken custody and.become possessed of said note the Jefferson Trust & Savings Bank of Peoria then and there, acting through those agents, Harry Frankel, a corporate director of said Jefferson Trust & Savings “Rank of Peoria, and also George Shurtleff, vice-chairman of the board of directors of said Jefferson Trust & Savings Bank of Peoria, and also Albert Kahler, secretary of the corporate board of directors of said Jefferson Trust & Savings Bank of Peoria, did procure and obtain the signature of W. Heller & Son, Inc., by I. M. Heller, Pres., and also the signature of I. M. Heller, individually, on the reverse side of said note.
“Affiant further states that at the time said Harry Frankel obtained said signatures of W. Heller & Son, Inc., by I. M. Heller, Pres., and the signature of I. M. Heller, individually, on the reverse side of said note, the said Harry Frankel, George Shurtleff and Albert Kahler were acting as authorized agents of the plaintiff, Jefferson Trust & Savings Bank of Peoria, and then and there, and at said time, John C. Wynd, the corporate vice-president of the Jefferson Trust & Savings Bank of Peoria, and George Shurtleff, vice-chairman of the board of directors of the Jefferson Trust & Savings Bank of Peoria, and Albert Kahler, secretary of the corporate board of directors of the Jefferson Trust & Savings Bank of Peoria, with full knowledge and information, participated in their corporate official capacity, in the action of Harry Frankel, George Shurtleff and Albert Kahler, as aforesaid, in procuring the signature of W. Heller & Son, Inc., by I. M. Heller, Pres., and the signature of I. M. Heller, individually, as alleged.
“ (Signed) Sam Heller.
“Subscribed and sworn to before a notary public.”

It is the contention of the defendants that their motion to set aside the judgment and for leave to plead, supported by affidavits, presented facts that constituted a number of adequate and separate defenses to the claim of the plaintiff of the note in question. They claim that there is a failure of consideration; that the execution of the note in question was ultra vires on the part of W. Heller & Son, Inc.; that there was fraud in the procurement and execution of the promissory note; that there was misrepresentation in obtaining the note; and that there was a conspiracy to defraud the defendants.

The appellee replied that the motion which the defendants filed was to vacate the judgment and give leave to plead, whereas the only relief to which they are entitled in the event they have shown a defense as against the appellee, is to have the judgment opened and stand as security for the note. They claim that the abstract of record does not contain the judgment sought to be set aside, and in order to obtain a reversal of such judgment it must appear in the abstract ; also that the affidavits are not positive but are largely made on information and belief; that the facts should be stated in positive language; that the alleged defenses of the appellant are not sufficient in law even if they had been stated in positive language.

The abstract does not set forth the original judgment obtained on the note, but this app.eal is not from that judgment. This is an appeal from the judgment of the court in overruling the defendants’ motion to open up the judgment and for leave to plead to the merits. This judgment does appear in the abstract of record. In the case of Boyles v. Chytraus, 175 Ill. 370, it is stated: “If the plaintiffs in error had made a motion in proper time in the court below to vacate the judgment entered, and that motion had been overruled, and the action of the court had been presented by a proper bill of exceptions, this court could review a refusal of the court below to vacate the judgment in accordance with such motion. A writ of error will lie to review the overruling of a motion to vacate the judgment, but will not lie to review the judgment itself when errors are waived and released in the manner above stated.”

It will be observed from the language used in the Boyle case that the motion evidently was to vacate the judgment and for leave to plead. While the motion may not have been technically correct, in the present case, it is one that is used frequently in motions to open up the judgments and we think it is proper if supported by sufficient affidavits.

We cannot agree with the appellee that the affidavits in question are on information and belief, but giving the language used in the affidavits a reasonable construction, it is our opinion they state facts and not conclusions of the pleader.

Counsel for appellee in their argument have made numerous suggestions relative to the facts in the case that do not appear in the record. In considering the sufficiency of the motion and affidavits we can only consider the facts as set forth in the affidavits and motion. It is our opinion that sufficient facts are set forth in the affidavits to warrant the court in allowing the motion to open up this judgment and for the defendant to have leave to file pleas setting forth his defense to the action on the note in question; and that the trial court erred in overruling the motion of the defendant for this purpose. The judgment of the circuit court of Peoria county is hereby reversed and the case remanded.

Reversed and remanded.


text:
    Elna Adamsen, Appellee, v. August L. Magnelia, Appellant.
    Gen. No. 8,898.

      Heard in this court at the October term, 1934.
    Opinion filed May 1, 1935.
    Rehearing denied June 26, 1935.
    North, Gibboney & North, of Rockford, for appellant.
    Smith & Menzimer, of Rockford, for appellee; Lisle W. Menzimer, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Winnebago county granting the plaintiff’s motion for a new trial. At the close of the plaintiff’s evidence, the defendant made a motion for a directed verdict which was granted. Under the instruction of the court, the jury returned a verdict finding the defendant not guilty. The court did not render a judgment on the verdict and the plaintiff filed a written motion specifying twelve grounds for new trial. The record does not disclose the reasons the trial judge gave for granting a new trial. It has been suggested by the Appellate Court that trial judges state for the record their reasons for granting a new trial. Gavin v. Keter, 278 Ill. App. 308.

This action is based on a complaint which charges the defendant, a practicing physician, with the negligent treatment of the plaintiff in the application and use of an electric apparatus, known among physicians as a Fisher Electro-Therapeutic machine. The plaintiff had a swelling or bruise on her cheek just below the left eye. The defendant, while treating her, applied a small metal plate to the swelling. The other point of contact, also a small metal plate, was placed on the right cheek of the plaintiff. The plates are attached by wires to the machine which is operated by an electric current. After the plates were removed from her face it was discovered that the plaintiff had sustained a burn on her right cheek where the defendant had placed one of the plates.

Examining the brief of the plaintiff, who is the appellee here, it appears that the reasons given for asking for a new trial are: That the trial court erred by excluding evidence offered by the plaintiff which she contends was admissible and material and of such a nature as to overcome any objection raised by a motion for a directed verdict; that the plaintiff had not produced any evidence tending to prove the essential allegations of her complaint; that the treatment of a patient by a physician may be so grossly negligent that the jury may say it was negligent per se "without the testimony of expert witnesses, and that the rule of res ipsa loquitur applies to the facts shown in evidence.

There is, however, the appellee’s contention, of a broader scope, namely, that the trial court is vested with a broad discretion in granting a motion for a new trial, and upon appeal from an order granting it, a court of review will not reverse the order except in case of a clear abuse of discretion by the trial court. This contention should be considered first by this court.

In a jury trial the motion of the defendant at the close of the plaintiff’s evidence for a directed verdict raises a question of law respecting the legal sufficiency of the evidence to sustain a verdict against the defendant. If the motion is sustained, and the appellate tribunal, on review, holds that, as a matter of law, the trial court erred in granting the motion, the judgment of the trial court will be reversed and the cause remanded for a new trial. (John Deere Plow Co. v. Carmer, 350 Ill. 104.) Whether the evidence, with all legitimate and natural inferences to be drawn therefrom, necessarily leads to a certain conclusion, is a question of law. Ferrero v. National Council of Knights & Ladies of Security, 309 Ill. 476.

In general, the application for a new trial is addressed to the judicial discretion of the trial court. Appel v. Chicago City Ry. Co., 259 Ill. 561. Notwithstanding the provision of the recently enacted Civil Practice Act authorizing an appeal from an order granting a new trial, the trial courts are, generally speaking, clothed with a discretion, as at common law, to be exercised in such manner as will best answer the ends of justice when granting motions- for a new trial. Hewitt v. Jones, 72 Ill. 218. The discretion exercised by a trial court where it grants a new trial is now subject to review. Section 77 of Civil Practice Act, Ca-hill’s St. ch. 110, Ti 205; Yarber v. Chicago & Alton Ry. Co., 235 Ill. 589. In cases on appeal where it was contended that the trial court erred in granting a motion for a new trial, the Appellate Court has held that where such motion is based on questions of fact arising at the trial, or on matters which occur in the presence of the court during the trial, a court of review will not interfere with the order granting the new trial unless the record shows a clear abuse of discretion of the trial court in granting the motion. Barthelman v. Braun, 278 Ill. App. 384; Village of La Grange v. Clark, 278 Ill. App. 269; Gavin v. Keter, 278 Ill. App. 308. This position is sustained by the authorities. Smith v. Shultz, 1 Scam. (Ill.) 490; Yarber v. Chicago & Alton Ry. Co., 235 Ill. 589.

Before the enactment of the Act of June 21, 1873, which authorized exception to he taken to an order overruling a motion for a new trial and the assignment of error on an order so excepted to, the Supreme Court held that the granting or refusing a motion for a new trial was a question to be determined in the sound discretion of the court to which the application for a new trial was addressed and a refusal to be no ground for error. Yarber v. Chicago & Alton Ry. Co., supra. Until the passage of the Civil Practice Act, an order of a trial court granting a motion for a new trial was not reviewable in an appellate court because the granting of the motion was within the discretion of the trial court. However, before the passage of the Act of June 21,1873, a writ of error would lie to the Supreme Court on the question of law if the trial court erred allowing a motion for a directed verdict. Mellick v. De Seelhorst, Beecher’s Breese, 221. Our Supreme Court has held that as section 77 of the former Practice Act was not mandatory, it was not necessary that a motion for a new trial should be made to save for review the legal question whether the court erred in passing on a motion for a directed verdict; that the question if the evidence is sufficient to support a verdict, after a jury trial, is one of fact. Yarber v. Chicago & Alton Ry. Co., supra; Shannon v. Nightingale, 321 Ill. 168. If the legal question — that there is no evidence tending to support the issues of the case— is decided against the plaintiff, the court must grant a new trial. Shannon v. Nightingale, supra. In other words, if the motion for a directed verdict is overruled and the case is submitted to a jury on the merits, on a motion for a new trial the trial court passes on the question of law as to whether there is any evidence tending to prove the essential allegations of the plaintiff’s complaint, and, also, the question of fact, whether it is sufficient to support such allegations, or the verdict. The question of fact is addressed to the discretion of the trial court and the trial court must weigh the evidence and consider the credibility of the witnesses. Shannon v. Nightingale, supra. As before stated, the discretion of the trial court in passing on a question of fact arising under a motion for a new trial on appeal to this court will not be lightly disturbed. On this latter point, attention is called to the cases of Belden v. Innis, 84 Ill. 78, and Reeve v. Dennett, 137 Mass. 315.

From the foregoing it is clear that when the trial court directs a verdict it takes the case from the jury, and the verdict returned by the jury, is in fact, a decision of the court on a question of law, although the verdict is nominally the action taken by the jury. 64 C. J. 421.

Strictly speaking the purpose of a motion for a new trial is to secure a re-examination in the same court of an issue of fact after a verdict, or a decision by the court. 14 Ency. of PI. & Pr. 715; 46 O. J. 58. A new trial must be granted if the court erred in directing a verdict. Specifying in a motion for a new trial, made to a trial court, that it erred on the question of law for a directed verdict as a ground for a new trial, has been sanctioned by usage and practice in the courts of this State. The question whether there is any evidence in the record tending to prove the issue and the questions of the alleged error of law of the exclusion of competent and material evidence tending to prove the issue, arising at the close of the plaintiff’s evidence, are closely allied. It seems logical and consistent, and also a practical procedure, to raise both questions for the consideration of the trial court by a motion for a new trial. Attention by the trial court to section 68 of the Civil Practice Act, Cahill’s St. ch. 110, 1Í196, would shorten litigation and avoid two appeals in the same cause of action. Nawrocki v. Chicago City Ry. Co., 248 Ill. 101.

The question of law as to whether there is any evidence in the record tending to prove the issue, is not addressed to the discretion of the court. Knoxville Traction Co. v. Brown, 115 Tenn. 323, 89 S. W. 319; Odalovich v. Weir, 132 Wash. 57, 231 Pac. 170. We are not aware that in passing on the question whether a trial court erred in acting on a motion for a directed verdict, that courts of review of this State have examined the question in the light of discretionary power exercised by the trial court. The evidence of the plaintiff, on a motion for a directed verdict, must be accepted as true and the trial court, under such a motion, does not weigh the evidence. Whether the court correctly applied the law to the facts is a question of law. Nawrochi v. Chicago City Ry. Co., supra. A jury trial is a matter of right. It cannot be said that when a trial judge has erred on a question of law that he has abused his discretion. Griffin v. State, 12 Ga. App. 615, 77 S. E. 1080; Mehan v. Chicago, R. I. & P. R. Co., 55 Iowa 305, 7 N. W. 613.

As before stated, it is the contention of the plaintiff that the trial court properly granted a new trial, because the court erred in sustaining the motion for a directed verdict, on the ground that the court erroneously excluded evidence offered by the plaintiff tending to prove specific acts of negligence of the defendant; also, that the plaintiff’s evidence made out a prima facie case under the doctrine of res ipsa loquitur. ' These contentions are apparently inconsistent for the reason that if the evidence explains or shows the cause of the occurrence complained of, there is no room for a presumption under the doctrine of res ipsa loquitur. O’Bourke v. Marshall Field & Co., 307 Ill. 197. If a plaintiff relies on the doctrine of res ipsa loquitur, his complaint should be so drawn as to permit the application of that doctrine. Feldman v. Chicago Rys. Co., 289 Ill. 25.

In this case the court must determine if there is evidence in the record tending to prove acts of specific negligence of the defendant as charged in the complaint and if there is such evidence, whether them was a causal relation between the negligence proved and the injury complained of. The same is true if competent evidence was improperly excluded by the trial court which would tend to prove specific acts of negligence. There must be direct proof, or evidence from which the inference could be naturally drawn, that such negligent acts were the proximate cause of the injury. If the evidence in the record by itself, or if aided by improperly excluded evidence, tends to prove any specific acts of negligence charged in the complaint and that there was a causal relation between such negligence and the injury complained of, the necessity of raising a presumption as to the cause of the accident under the doctrine of res ipsa loquitur does not exist.

There are seven counts in the complaint all of which allege as follows: That the defendant is a practicing physician and surgeon in the City of Rockford; that as such physician he treats persons with ailments with a therapeutic machine operated by electricity; that plaintiff on August 19, 1933, was suffering from a bruise and hard swelling on her face just below the left eye, and that she employed the defendant as such physician to examine said bruise and advise her with reference thereto; that the defendant accepted such employment and examined the swelling on plaintiff’s face and told her he could successfully treat the same by the use of said machine, and that such treatment was the only treatment that would help said injury.

The first, second, and third counts allege that the plaintiff had no knowledge with reference to said machine or its use; that she relied wholly on the statements of the defendant and that she accepted defendant’s advice and submitted to the treatment.

The first count charges that the defendant placed a portion of said machine in contact with said swelling, and another portion of said machine in contact with the right cheek of the plaintiff, and, while the plaintiff was exercising due care and caution for her own safety, the defendant turned on the electric current without protecting in a proper manner the right side of the plaintiff’s face, and, by reason thereof, the right side of the plaintiff’s face, was, from the contact with said machine, burned over a large surface.

The second count, after alleging that the defendant applied said machine to plaintiff’s face as recited in the first count, charges that he turned on the electric current, and thereafter negligently and carelessly left the room and permitted the said machine to remain too long on the plaintiff’s face, and so negligently, carelessly and improperly administered the said treatment that the right side of the plaintiff’s face was unnecessarily burned, etc.

The third count charges that it was the duty of the defendant, in treating the plaintiff properly, to remain in attendance while the machine was applied to the face of the plaintiff, and to fit the said machine tightly to the face of the plaintiff, and to exercise due and ordinary care to prevent injury to the plaintiff by the application of said machine to the face of the plaintiff, but that nevertheless, the defendant disregarding his aforesaid duties applied said machine in a loose and careless manner to the face of the plaintiff, and, after turning on the electric current, left the room, and permitted the plaintiff to remain therein with no one in attendance for a long period of time, to wit, 30 minutes, etc.

The fourth count charges: ‘ ‘ That the plaintiff thereupon submitted to such treatment by the defendant, being then and there in the exercise of due care for her own safety and well being, but the defendant then and there so unskillfully and negligently conducted himself in that behalf that through his want of skill and care the right side of the plaintiff’s face was deeply burned over a- large part thereof. ’ ’

The fifth count charges that the machine was not in proper condition for use on the plaintiff’s face, but on the contrary, and unknown to the plaintiff, said machine was not working properly, and, on account thereof, when the electric current was turned on, she was burned, etc.

The sixth count charges that it was the duty of the defendant to examine said machine to see that it was working properly before applying it to the face of the plaintiff, and to apply the same to the face of the plaintiff in such a way that it could not become loose and slip down or move down from the surface to which it was applied, yet the defendant disregarded his aforesaid duties and applied the machine to the face of the plaintiff when the machine was not working properly, and in such a negligent manner that it became loose and slipped away from the surface to which it was applied, without the knowledge or act of the plaintiff, by reason thereof, etc.

The seventh count charges that it was the duty of the defendant to remain in attendance while the machine was applied to the face of the plaintiff, but that the defendant disregarding his duty in that behalf left the room and permitted the plaintiff to remain therein with no one in attendance for, to wit, 30 minutes when a nurse employed by the defendant came into the room and removed said machine; that the defendant had left his office and remained away therefrom for, to wit, one hour; that by reason of said defendant leaving the plaintiff unattended in his office, the plaintiff was injured, etc.

■ The answer of. the defendant admits that he is a licensed physician and surgeon and that he was employed as such by the plaintiff to treat a bruise or swelling on her face. He denies that he told the plaintiff that he could successfully treat said bruise by the use of an electric therapeutic machine, and that it was the only treatment that would help the injury. He also denies that the plaintiff was in the exercise of due care for her own safety and avers that the plaintiff was to report to the defendant if she felt any excess heat or burning sensation and that the plaintiff failed to report any such feeling at any time during the said treatment. He further says that the treatment administered to the plaintiff by the defendant was a proper, safe and accepted method of treating said injury.

The defendant was called as a witness by the plaintiff. He testified that he treated the plaintiff by the use of a Fisher Electro-Therapeutic machine; that it is operated by a high frequency electric current; that it is necessary to have two points contact in order to apply the current. The plaintiff testified that the defendant applied the machine to her face by placing a metal plate in contact with the bruise and another plate in contact with her right cheek; that the plates were held in place by a gauze bandage around her head; that the defendant turned on the electric current; that she called the defendant’s attention to a prickling sensation on her right cheek and the defendant told her, “that is good for you”; that the right plate became loose and the plaintiff so informed the defendant; that the defendant pushed the plate back under the gauze and said, “I think it will stay there”; that defendant was afterwards again informed by the plaintiff of the prickling sensation; that the defendant left the room and building and plaintiff was wholly unattended by anyone for a period of about 25 or 30 minutes when a nurse who is employed by the defendant came into his office; that the nurse was dressed in street clothes; that she put on a nurse’s uniform; that she then removed the plates from the face of the plaintiff and it was discovered that her right cheek was severely burned and the left cheek of the plaintiff was unchanged; that there was nothing wrong with the right cheek of the plaintiff before she went to the office of the defendant and it had no marks on it; that plaintiff felt no burning sensation during the treatment; that after the nurse removed the plates she called the defendant on the telephone and it was about 30 minutes later that the defendant arrived at his office. He conversed with the nurse about the matter and advised the plaintiff to return to his office on the next day. The plaintiff also testified as to the nature' and extent of the burn.

Dr. Wright, whose qualifications as an expert were admitted by the defendant, testified, in answer to a hypothetical question embodying facts that the plaintiff felt a prickling sensation on her right cheek after the plate slipped and had been replaced, “that a Fisher electro-therapeutic machine could cause such an injury as sustained by the plaintiff if sufficient electric current were used and the plates remained in contact with the body of the plaintiff for twenty-five to thirty minutes; that it was possible to control the amount of electricity that goes through the machine and through the patient being treated therewith.”

The following testimony was admitted, but on motion of the defendant that it was not part of the res gestae, it was stricken from the record. Charlotte Christenson, mother of the plaintiff, testified that on August 28, 1933, she had a conversation with the defendant as follows: “I said to Dr. Magnelia that I couldn’t see how that could happen if the machine was put on tight, it must have been loose, otherwise it would not have happened and it all happened through carelessness.” Dr. Magnelia said, “I know it and I can’t tell you how had I feel about it.” A voluntary admission by a party to a suit against his interest is admissible, even though made to a person who is not a,party to the suit. Freet v. American Elec. Supply Co., 257 Ill. 248; Johnson v. Marshall, 241 Ill. App. 80. Before Mrs. Christenson testified, the plaintiff had stated that the plate slipped and was put back in place by the defendant. This evidence of the plaintiff must be accepted as true on a motion for a directed verdict. The evidence of the plaintiff was proof that the plate was “loose.” The excluded statement by the defendant that the plate was loose was cumulative and it would not have added any probative evidence, if admitted, under the motion for a directed verdict. As we understand counsel for the plaintiff, they contend the excluded admission also tends to prove that the slipping of the plate was the cause of the accident, and as the defendant is a physician and an expert, his statement that his carelessness in failing to securely fasten the plate to the face of the plaintiff was the cause of the accident. There is no evidence in the record that the defendant is an expert on the question of the use and application of an electric therapeutic machine. An expert is not permitted to testify that a certain cause, in a given case, produced the injury complained of. Fitzgerald v. Chicago, 144 Ill. App. 462; Chicago Union Traction Co. v. Roberts, 229 Ill. 481.

It is a reasonable inference from the evidence that sufficient electric current was passed into said machine by the defendant to burn the plaintiff as charged and that the plaintiff in fact was so burned by the electric current. The amount of electric current passing into and through said machine could be controlled by the defendant.

We are of 'the opinion that there is direct and circumstantial evidence in the record tending to prove that the defendant was negligent in leaving the plaintiff without proper attendance and supervision during the administration of the said treatment, especially after the plate on the right cheek of the plaintiff had slipped and the plaintiff had informed the defendant that she felt a prickling sensation while the said plate was being readjusted by the defendant. The evidence tends to prove, from reasonable inference therefrom, that there was a causal connection between the said negligence and the burn suffered by the plaintiff. Frisk v. Cannon, 110 Minn. 438, 126 N. W. 67; Reeves v. Lutz, 179 Mo. App. 61, 162 S. W. 280; Longfellow v. Vernon, 57 Ind. App. 611, 105 N. E. 178; McLaughlin v. Alton R. R., 278 Ill. App. 551. The facts of the case are of such a character as to enable a jury to find negligence in the treatment of the plaintiff without the aid of expert testimony other than was given at the trial. Vergeldt v. Hartsell, 1 F. (2d) 633; Evans v. Roberts, 172 Iowa 653, 154 N. W. 923; Benson v. Dean, 232 N. Y. 52, 133 N. E. 125; Francis v. Brooks, 24 Ohio App. 136, 156 N. E. 609; James v. Robertson, 39 Utah 414, 117 Pac. 1068; Cornwell v. Sleicher, 119 Wash. 573, 205 Pac. 1059.

While the cases on the question whether the doctrine of res ipsa loquitur applies to a malpractice case against a physician using and controlling an electric machine while treating a patient are in an unhappy discord (Lewis v. Casenburg, 157 Tenn. 187, 7 S. W. (2d) 808, 60 A. L. B. 254) this court is committed to the rule that the doctrine is applicable to malpractice cases under the evidence in this case. Johnson v. Marshall, 241 Ill. App. 80; Holcomb v. Magee, 217 Ill. App. 272; Higgins v. Byrnes, 274 Ill. App. 440.

We are of the opinion that the trial court did not err in granting the motion for a new trial, and its order so doing is hereby affirmed.

Affirmed.