text:
    Jessie Midira, Appellee, v. Globe Life Insurance Company of Illinois, Appellant.
    Gen. No. 38,133.
    Opinion filed December 27, 1935.
    Fulton, Fulton & Sheen, of Chicago, for appellant.
    N. E. Caruso, of Chicago, for appellee; Ernest C. Beniff, of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from the municipal court, wherein a judgment of $1,000 was entered in favor of the plaintiff and against the defendant on an insurance policy dated July 31, 1933, upon the life of one Marie Midira in which the plaintiff here was the beneficiary.

By the terms of said policy it was agreed to pay the plaintiff the sum of $1,000 upon the death of the said Marie Midira. The cause was tried before a jury who returned the verdict upon which the judgment was entered.

The principal defense made when the cause was before the trial court was that there had been no compliance with the terms of the policy by the insured; that the premium had not been paid nor had the policy been delivered and that, consequently, the contract was not in force.

The plaintiff contends that one-half of the first year’s premium was paid by the agent of the insurance company and that the agent kept the policy and had never delivered it to her or asked her to repay him the money which he had advanced.

It was agreed that the policy had never been delivered to the plaintiff or the insured and that the insured died on or about December 9, 1933.

The policy which was offered in evidence contained in part the following provisions:

“No. 100902 Age 14

G-lobe Life Insurance Company of Illinois.

agrees to pay . . . upon receipt of due proofs of death of the insured to Jessie Midiri, mother, the sum of One Thousand Dollars, subject to the provisions of the policy.

“This insurance is granted in consideration of the application therefor, a copy of which is attached hereto and made a part of this contract, and in further consideration of the payment of an annual premium in advance of the sum of Fourteen and 18/100 Dollars, and a further payment ... in every year thereafter during the continuation of this contract, or until the prior death of the insured.

“The benefits and provisions printed or written by the Company on the following pages are a part of the contract as fully as if they were recited at length, over the signatures hereto affixed.

‘ ‘ General Provisions.

“No person except the President or the Secretary has power to change, modify or waive the provisions of this contract and then only in writing. The Company shall not be bound by any promise or representation heretofore or hereafter made by or to any agent or person other than as above.

“This insurance will not take effect until the first premium is actually paid in full during the good health of the insured. ’ ’

The application attached to the policy was in words and figures in part as follows:

“Statement of Applicant to the Globe Life Insurance Company of Illinois.

“1. What is your full name? Marie Midiri.

“4. By whom will premiums be paid? Parents.

“ (1) That I have read the foregoing statements and answers and that the same are full, complete and true; (2) That this application, supplements and the policy-applied for, if issued, shall constitute the entire contract of life insurance between me and the company; (3) That the insurance applied for shall not take effect until this application has been accepted by the company at its Executive Office at Chicago, Illinois, and until the policy issued thereon has been actually delivered to me while I am alive and in good health, nor until the first full premium thereon shall have been paid to and accepted by the company, or by an authorized agent thereof; (4) That all provisions of law forbidding any physician, surgeon or other doctor who has heretofore attended or examined me or who may heretofore attended or examined me, from disclosing any knowledge or information, thereby acquired, are hereby expressly waived.

“Dated at Chicago, this 29 day of July, 1933.

“Jessie Midiri.

“Signature of life proposed if over 15 years. If younger, must be signed by Parent or Guardian.”

The question to be decided in this case is not a new one. Policies containing similar provisions have been before this court many times, as well as before other courts of this State. In the case of Weber v. Prudential Ins. Co., 208 Ill. App. 117, it was said: “Where it was agreed by an applicant for life insurance that the policy should not take effect until it should be issued and delivered by the insurer, while the health of the applicant was in the same condition as described in the application, there can be no recovery on the policy, though the premium thereon was paid the day after the application was made, where it appears that while the policy was thereafter executed by the insurer on the day on which the premium was payable and was returned to the agent, it was not- delivered by him to the applicant, though he received it before the latter’s death.” The Weber case was affirmed in 284 Ill. 326.

In the case of Devine v. Federal Life Ins. Co., 250 Ill. 203, the Supreme Court in discussing the question, at page 206, says: ‘ ‘ The application may or may not provide that the insurance shall take effect only upon the delivery of the policy to the insured. Unless expressly made so by the contract itself, an actual delivery of a policy of insurance to the insured is not essential to the validity of the contract, and the rule under such circumstances is, that a policy becomes binding upon the insurer when signed and forwarded to the insurance broker to whom the application for insurance was made, to be delivered to the insured.” By stipulation and from the evidence it appears that the policy of insurance when issued was delivered to the agent of the defendant who paid one-half of the first year’s premium and kept the policy in his possession. No money was paid by the plaintiff or the insured on the policy.

In the case of Ellis v. State Mutual Life Assurance Co., 206 Ill. App. 226, the court said on page 230:

“We are of the’ opinion that the stipulation in the application and policy in question, providing that the policy shall not take effect until actual delivery to the applicant while alive and in the condition of health he was in at the time the application was taken, is a condition precedent and, unless such stipulation has been performed, appellee would not be entitled to recover in this case.”

In Joyce on Insurance, Yol. 1, page 131, paragraph 70, it is said:

“§ 70. Prepayment of Premium Condition Precedent. Where it is expressly provided that the policy shall not take effect until the premium is paid, there is no binding contract until such payment is made. . . . ”

The contract in the instant case provides that no changes in the policy can be made by any agent, and only by the secretary and president of the company in writing*.

It is next contended that the payment of the premium by the agent made the insurance binding upon the defendant. In the case of New York Life Ins. Co. v. Manning, 124 N. Y. 8. 775 (1910) at page 779, the court said:

“Nor could the payment of the premium by Moore make the insurance binding on the plaintiff. Moore made the payment of his own accord without request from Nicchia or promise of repayment by him. He was the plaintiff’s agent at the time and made a payment of only 40 per cent., retaining the 60 per cent, commission to which he was entitled on the first annual premium. A payment by an agent under such circumstances is certainly not the payment of the premium contemplated by the contract. The company does not insure for the first year for a 40 per cent, premium. It insures for a full premium and pays its agent 60 per cent, commission, expecting to be repaid for this commission by the probable subsequent annual payments. It receives full consideration for its commission only when the agent obtains for it an actual bona fide client who accepts the insurance and who may be expected to pay future premiums.”

Evidence was introduced by the plaintiff that she had arranged with the agent so that she would not have to pay premiums on the policy for two years. The premium notice for the additional six months’ premium was sent out by the company between December 20th, and December 25th, 1933. This was approximately two weeks after the death of the insured.

In order to recover damages on an insurance policy contract, it is necessary for the plaintiff to show that the contract is in force according to its terms and that the terms have been complied with, or have been waived by the insurer. In the instant case the provisions of the policy, which are contained in the document itself, and the application thereto, which by its terms is made a part of the policy, provide:

“That the insurance applied for shall not take effect until this application has been accepted by the company at its Executive Office at Chicago,- Illinois, and until the policy issued thereon has been actually delivered to me while I am alive and in good health, nor until the first full premium thereon shall have been paid to and accepted by the company, or by an authorized agent thereof.”

It is agreed that the policy was never delivered and the premiums thereon never paid by the insured. We think these provisions of the policy are controlling in this case and that there can be no recovery because of such failure to comply with the terms thereof.

A motion was made in the trial court to instruct the jury at the close of the plaintiff’s evidence to find the issues for the defendant and again at the close of the evidence a similar motion was made. We think the motions at the close of plaintiff’s evidence should have been granted, as the evidence presented failed to make out a sufficient case for recovery against the defendant.

Inasmuch as there can be no recovery upon this policy for the reasons herein stated, there is no reason for remanding the cause and, consequently, the judgment is reversed, and judgment is entered here for defendant.

Judgment reversed and judgment here for defendant.

Hall, P. J., and Hebel, J., concur.


source: Caselaw Access Project

author: Mr. Justice Denis E. Sullivan

license: Public Domain

text:
    J. Frank King, Plaintiff in Error, v. Automobile Bonding Company, Defendant in Error.
    Gen. No. 38,172.
    Opinion filed December 27, 1935.
    Rehearing denied January 7, 1936.
    Alden, Latham & Young, of Chicago, for plaintiff in error.
    Bothbart, Peterson & Bosenfield, of Chicago, for defendant in error.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is a writ of error prosecuted to reverse a judgment of the superior court in favor of the defendant Automobile Bonding Company and against the plaintiff J. Frank King, for costs. The suit was brought originally against two defendants, Automobile Bonding Company, a corporation, and Samuel A. Segall. At the close of plaintiff’s case the court instructed the jury to find the Automobile Bonding Company not guilty.

The amended declaration contained two counts. The first count set forth, a cause of action for malicious prosecution, and the second count for false imprisonment. Defendant filed a plea of the general issue to the amended declaration and at the close of plaintiff’s case the second count of the amended declaration was withdrawn by agreement of the parties.

Plaintiff’s theory of the case is that Samuel Segall was the duly authorized agent of the defendant and was acting within the scope of his employment at the time he caused plaintiff to be arrested, which constituted the basis of this suit; that Segall thereby rendered defendant, Automobile Bonding Company, liable to respond in damages to the said J. Frank King because of Segall’s said acts.

On the other hand defendant contends that plaintiff failed to show that Segall was the agent .of the defendant Automobile Bonding Company at the time of the acts complained of and that whatever acts he performed were not within the scope of his express or implied authority so as to render defendant, Automobile Bonding* Company, liable.

The cause was tried before a court and jury and, at the conclusion of the plaintiff’s evidence, the court instructed the jury to find the defendant Automobile Bonding* Company not guilty.

From the abstract before us it appears that the plaintiff was the owner of an automobile and that he borrowed $300 from the defendant, Automobile Bonding Company, who was in the automobile loaning business and as security gave a mortgage on said car; that thereafter the plaintiff in driving the automobile had an accident which damaged the said automobile and the same was taken to a repair shop in Aurora, Illinois, to be repaired. The cost of repair was $100. The said defendant, Automobile Bonding Company, had employed the codefendant Seg*all to reclaim automobiles and he obtained from his employer the mortgage and notes made by King and found out where the automobile was and how it got into the Aurora repair shop and notified the credit manager who instructed Segall to get a writ of replevin; thereafter the said Segall, as agent for the Automobile Bonding Company, sued out a writ of replevin, but did not obtain the automobile until a settlement was made with the repairman in Aurora; that thereafter the said Segall went before a justice of the peace in Kane county and swore out a warrant charging the plaintiff with concealing the automobile and disposing of the automobile without the consent of the mortgagee in violation of the statute; that he had the plaintiff arrested and put in jail in Chicago where he remained for an hour or two until he was taken to Aurora, Illinois, and obtained a bond in the sum of $1,000; that thereafter a hearing was had before a justice of the peace who held plaintiff to the circuit court of Kane county to await the action of the grand jury. The record shows that nothing was done by the grand jury to return either a true bill or a no bill up to the time of the trial.

The testimony on behalf of the plaintiff further shows that Segall was employed by the defendant company in repossessing automobiles and collecting money, and adjusting loans.

The question for review in this court is whether or not the trial court was justified in instructing the jury to find for the défendant, Automobile Bonding* Company, at the conclusion of plaintiff’s evidence.

In the case of Glenn v. Lawrence, 280 Ill. 581, at page 585, the court said:

“The facts which will sustain an action for malicious prosecution are (1) the commencement or continuance of an original, criminal or civil judicial proceeding; (2) its legal causation by the present defendant against plaintiff, who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to the plaintiff. ’ ’

The first of these propositions has been proven by the commencement of the suit before the justice of the peace in Kane county who, after a hearing, held the plaintiff herein to await the action of the grand jury of Kane county under a bond of $1,000.

The second proposition as to whether the legal causation by the present defendant, Automobile Bonding Company, against the plaintiff, who was the defendant in the original proceeding, is one of the main questions in the case. .

The proof and circumstances in evidence tend to show that Segall was engaged by the Automobile Bonding Company to repossess automobiles and make collections of money; that he worked on a commission basis and was paid only if he obtained the automobile or collected the money and that he also had power to adjust loans. When Segall learned that King’s automobile was in the possession of a repairman at Aurora, he called up the office of the defendant and talked with one Kerwin, the creditman, who advised him to obtain a lawyer in Aurora and to “get a writ.” As a result of this advice, he went to see a lawyer, a Mr. Stephens, and took out a writ of replevin, placed it in the hands of a constable and went to the garage, but the automobile was not there. Thereafter said Segall swore out a warrant before a justice of the peace as heretofore stated. The State’s attorney of Kane county did not present the matter before the grand jury and no further action was taken.

The evidence offered by the plaintiff in support of his contention that Segall was the agent of the Automobile Bonding Company in taking out the warrant charging plaintiff with violation of the law in concealing the automobile is substantiated by Segall’s own testimony, where upon cross-examination he said:

“As soon as the mortgage came into my possession, I started to apprehend Mr. King.” On direct examination in answer to questions propounded to him he admitted that he had an arrangement with the Automobile Bonding Company on this mortgage; that in the event he collected the money he was to receive a certain percentage. He further stated on cross-examination, when referring to the amount that would be required to take the car out of the garage at Aurora:

“I immediately got in touch with the collection department of the Automobile Bonding Company by telephone in their office. I talked to Joe Kerwin. I believe Mr. Kerwin said to me at that time that $100.00 was too much money and then he asked me where I was and the phone number, which I gave him, and he said to stay there and he would get in touch with our attorney and then I will call you back. He did call me back. He said, ‘I just got in touch with our attorney and his advice was to go up and see Samuel Stephens, a lawyer in Aurora, and get a writ. . . . ’ ”

The evidence further shows that the affidavit for replevin reads as follows:

“State of Illinois, ) County of Kane j

“Samuel A. Segall being duly sworn, deposes and says that he is the agent of Automobile Bonding Company, a corporation............................... the owner and now lawfully entitled to the possession of the following* Goods and Chattels, viz.: etc.”

The replevin bond which was given was signed, “Automobile Bonding Co. Per S. A. Segall.”

At the time of the hearing* before the justice of the peace on the criminal charge, Mr. Stephens, the lawyer, for the Automobile Bonding Company was present and took part in the examination.

Was there sufficient evidence adduced by the plaintiff which, with the inferences to be drawn therefrom entitled the plaintiff to have the cause submitted to the jury?

In the case of Field v. Kane, 99 Ill. App. 1, the court said:

“In determining the liability of the principal for a wrongful arrest by his agent, the criterion is, was the act within the general scope of the implied authority conferred upon the agent. If so, the wrongful exercise of it, though not expressly directed by or contemplated by the principal, will render him liable. ’ ’

In the Field case, the court in quoting from the case of Arasmith v. Temple, 11 Ill. App. 39, said:

‘ ‘ That a master is liable for a trespass committed by his servant bona fide as such and in the line of his employment, although wilful on the part of the servant, has been often declared by the Supreme Court of this State. ...” Citing West Chicago St. Ry. Co. v. Luleich, 85 Ill. App. 643.

In the case of West Chicago St. Ry. Co. v. Luleich, supra, the court said:

“The chief contention of appellant’s counsel is, that the causing* the arrest was outside of the scope of the conductor’s duty, and he argues that authority to cause the arrest cannot be implied. We think appellant’s counsel misconceives the sense in which the words within the scope of his authority are used in the text books and judicial opinions. It is not essential to the liability of the master, as counsel assumes, that the servant should be authorized, either expressly or by implication, to do the very act for which the master is sought to be made liable.”

In Wood on Master and Servant, sec. 285, the author says:

‘ There is an implied authority to do all those things that are necessary for the protection of the property intrusted to the person. ’ ’

In the case of Vrchotha v. A. M. Rothschild, 100 Ill. App. 268, the court said:

“The fact that the employes of a mercantile establishment acting in .behalf of their employer, and in the ■line of their employment, arrest a party in front of the establishment, charge her with theft and take her inside, where a search is directed and carried on by persons employed therein, makes a prima facie case of false imprisonment against the proprietor, sufficient to be submitted to a jury. ” •

In the instant case Segall was given a mortgage and notes by the defendant, Automobile Bonding Company, to collect from the plaintiff King or repossess the automobile upon which there was a mortgage securing the notes, which were the property of the defendant. In pursuance with the instructions and his employment he sought out King and after some time located him and found that the car had been wrecked and placed in a garage for repairs in Aurora, Illinois. He then called up and talked with the creditman of the defendant, one Kerwin, who told him to ■ get a lawyer in Aurora by the name of Samuel Stephens and get a writ. In pursuance of this an affidavit for a writ of replevin was made by Segall, in which he swore that he was the agent for the Automobile Bonding Company. He gave the replevin bond required by statute and signed the name of the Automobile Bonding Company by S. A. Segall. While in pursuit of the property Segall swore to a warrant charging the plaintiff King with crime. When the case came up before the justice of the peace, Stephens, the lawyer whom he hired in Aurora, for the Automobile Bonding Company was present before the justice of the peace questioning the witnesses. Prior to this King had asked Segall to readjust the loan so that he could pay $25 a month instead of $50 a month, as the notes provided. Segall sent King to one •Bussell in charge of the office of the Automobile Bonding Company, who after talking with King referred him back to Segall, thereby implying that Segall had the power of adjusting this loan. All of this was done while he was in pursuit of the business of the Automobile Bonding Company in search of their property.

For whom was he performing all this service! Apparently not for himself. Whether he had authority, either express or implied, to do what he did was a question of fact which should have been submitted to the jury. Authority can be implied from the circumstances, as well as from direction by the principal.

A peremptory instruction should not be given where there is any evidence, with all the inferences that the jury may justifiably draw therefrom, which fairly tends to prove the cause of action set out in the declaration.

Counsel for the defendant has cited many cases which they construed as supporting the court’s position in giving the directed verdict. These cases, however, we do not think are determinative of the question involved here.

Inasmuch as this case must be tried again, we do not deem it necessary to pass on the other points raised in the briefs.

We think the court erred in instructing the jury at the close of plaintiff’s evidence to* find the defendant not guilty. Consequently, for that reason and other reasons herein given, the judgment is reversed and the cause remanded for a new trial not inconsistent with the views herein expressed.

Judgment reversed and cause remanded.

■ Hall, P. J., and Hebel, J., concur.


author: Mr. Presiding Justice Scanlan

text:
    Marie Helen Muesig, Appellee, v. George Harz et al., Defendants. The Sanitary District of Chicago and Tessville, an Incorporated Village, Appellants.
    Gen. No. 37,988.

      Opinion filed December 30, 1935.
    Elmer J. Whitty, Edward A. McCarthy and Thomas F. Donovan, all of Chicago, for appellant Sanitary Dist. of Chicago.
    Wells & Liddell, of Chicago, for appellant Village of Tessville.

      John A. Bloomingston, of Chicago, for appellee; Ben W. Goldman, of Chicag'o, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

Plaintiff sued George Harz and Ernest A. Warfield; Tessville, an incorporated village, and the Sanitary District of Chicago, a corporation (hereinafter called Sanitary District), in case. The death of defendant Warfield was suggested and the cause proceeded to trial against the other three defendants. A jury returned a verdict finding* the three defendants guilty and assessing plaintiff’s damages in the sum of $3,000. The motion of defendant Harz for judgment in his favor notwithstanding* the verdict was allowed. The motions of Villag*e of Tessville and Sanitary District for a new trial were overruled and they have appealed from a judgment entered upon the verdict.

On May 18, 1930, at about 11 p. m., plaintiff was riding southward on McCormick road near Devon avenue, in Tessville, Cook county, Illinois, in an automobile driven by her husband. “It was a bad . . . rainy night, very hard to see”; “just before the accident there was a blinding rain storm.” The right front of the automobile came in contact with a “timber” lying* on the road, the “steering mechanism” of the automobile was thereby “broken,” and the car, out of control, angled to the west curb, jumped it, hit an electric light pole, and turned on its side. Immediate investigation showed marks on the roadway from the timber to the overturned automobile. “This timber was made of two pieces nailed together. A small plank or ridge was nailed to an ordinary size plank and was the same length as the larger plank. It was about one-half the width of the big plank and about two inches in height.” There was evidence that this timber had been seen lying in the road along* the west curb that afternoon and that it had been in the street in that position on many other occasions prior to the accident; that defendants Harz and Warfield operated a “practice golf course” immediately west of the curb at the point of the accident and used the timber to enable their patrons to drive over the hig'h curb of McCormick road to the golf course; that defendant Sanitary District, with knowledge of the presence in the street of the timber, had permitted it to remain alongside of the curb in the street without even requiring defendants Harz and Warfield to anchor it to the curb so as to prevent it from being moved by automobiles or other causes into the drive. McCormick road was constructed and maintained by the Sanitary District on its own property along the North Shore Channel of the Sanitary District of Chicago and was policed by its officers. The highway was traveled by thousands of motorists daily. The police of the Sanitary District had seen this board along the curb in the highway and had received instructions not to allow it to be placed there, but, nevertheless, they permitted it to remain in the road and to be used by patrons of defendants Harz and Warfield. McCormick road at the point in question was within the limits of the Village of Tessville, and its police officers also patrolled it. These officers had been instructed to see that the timber was taken up before dark, but to permit it to remain there during the daytime. As a result of the accident plaintiff sustained serious injuries.

Defendant Village of Tessville filed a plea of the general issue and later filed a special plea of non ownership, operation and control. After a general demurrer to the declaration filed by defendant Sanitary District was overruled it filed a plea of the general issue. Neither of the two defendants filed a special demurrer.

The two defendants now remaining in the case contend that the declaration “does not state a cause of action” and that such “failure to state a cause of action is properly considered under a motion in arrest of judgment.” In Plew v. Board, 274 Ill. 232, 234, the court states:

“After judgment, the rule by which pleadings before judgment are construed most strongly against the pleader is reversed and the pleading upon which the judgment is based is liberally construed for the purpose of sustaining the judgment. (Chicago and Alton Railroad Co. v. Clausen, 173 Ill. 100; Klawiter v. Jones, 219 id. 626; Sargent Co. v. Baublis, 215 id. 428; Diamond Glue Co. v. Wietzychowslci, 227 id. 338.) If" the statement of claim filed in this cause stated a cause of action, however defectively or imperfectly, and the issue joined was such as necessarily to require proof of the facts defectively stated, it would be sufficient. ’ ’

Plaintiff concedes that the declaration is not a perfect one, but she contends that it alleges, somewhat imperfectly, sufficient ultimate and evidentiary facts to state a good cause of action; that had defendants seen fit to file a special demurrer imperfections could have been cured, and that this court must now construe the pleading liberally for the purpose of sustaining the judgment. Plaintiff’s contention is a sound one, and in this connection it must be borne in mind that the new Practice Act (sec. 33, par. 161, ch. 110, Ill. State Bar Stats. 1935) provides:

“(3) Pleadings shall be liberally construed with a view to doing substantial justice between the parties. ’ ’ As we read the record plaintiff has certainly a good cause of action against the Sanitary District, and its able counsel have been practically forced to rely upon technical points in support of their general contention that the judgment should be reversed. As to the instant contention defendants argue that “at no place in the declaration can there' be found a statement or even an indication that McCormick Road was a public highway or that it had been traveled by the public or was being traveled by the public or that the public had been invited to use said highway, or had been using it such a length of time that it was presumed to be a public highway. For aught that appears in the declaration, McCormick Road may have been owned, operated and controlled for municipal purposes only. In other words, the public may have been excluded and the plaintiff may have been a trespasser, or she may have been a licensee, or McCormick Road may have been a private road constructed, maintained and controlled for private purposes of The Sanitary District of Chicago or for private purposes of the Village of Tess-ville, or both, which purposes may have been contrary to the general public use.” The declaration alleges that plaintiff was riding in an automobile “south' bound on a certain then road known as to-wit, McCormick Road in Cook County, Illinois at or near to-wit, between Devon Avenue and Tuohy Road and in to-wit, at or near Tessville in said Cook County, Illinois”; that “the said road aforesaid, . . . McCormick Road was a road in the said Village of Tessville, Illinois; . . . that the said defendants, and each of them, and all of them, knew or in the exercise of ordinary care should have known- that the said log or timber was in the said street.” The declaration also alleges “that while the plaintiff was so riding, to-wit, south on McCormick Road at the point aforesaid between Devon Avenue and Tuohy Road aforesaid . . . there was a certain then large log of wood in the said street.” From the allegations of the declaration it appears that the “said road,” or “said street” was curbed. In Carlin v. City of Chicago, 262 Ill. 564, 566, it is said:

“Webster defines a street to he ‘a city road.’ The word ‘ street ’ is a generic term, and includes all urban ways which can be, and are generally, used for ordinary purposes of travel. It is a highway free to all, and maintained not for private gain but public benefit. (Elliott on Roads and Streets, 12; see 7 Words and Phrases, title ‘ Street. ’) ”

Counsel for defendants, in the closing argument, called McCormick road “this highway,” and directed attention to the fact that the evidence showed “that it is a very fine highway, forty feet ... on either side is a curb, . . . and they maintained a very fine lighting system there. . . . The volume of light produced by one of these lights was equivalent to ten times the amount of light produced by the moon on an unclouded night.” At another point in the argument counsel stated, “He (plaintiff’s husband) was driving down the street there.” Counsel also calls attention to the fact that a policeman of the Village of Tessville testified “that he patrolled that street at various intervals, and that he saw no obstruction in the street.” In concluding his argument the counsel stated: “The Sanitary District, as I have said at the outset, owns that, or rather maintains that road to a certain extent. It provided a fine road for the people’s use. It is doing its best to serve the people. It is well lighted and it is well policed.” William Stolberg, a police officer of the village, testified that he “patrolled this street,” and that it was also patrolled by the Sanitary District police; that McCormick boulevard from curb to curb was about forty feet wide; that it had “a four-lane highway’’; that “McCormick Boulevard is a very popular thoroughfare. There is a lot of traffic on it. ’ ’ We might well take judicial notice of the fact that McCormick boulevard is a public thoroughfare. Here we have a case where the evidence and the admissions of counsel for defendants strengthen the allegations of the declaration. (See Plew v. Board, supra.) If the instant contention had been raised before the trial court by special demurrer, that court, in passing upon it, would have been governed by Rule 11 of the Rules of Practice and Procedure of the Supreme Court, which provides, inter alia, that if facts are adequately stated in one part of a pleading they need not be repeated elsewhere in such pleading.' Defendants argue that the declaration does not allege “that the log in itself was dangerous nor that it was in a dangerous position at the time of the accident, nor that the defendants knew, it was dangerous or placed in a dangerous position where it is alleged to have been. The declaration merely says that the defendants knew it was there but that does not imply that defendants knew it was dangerous or knew that it was in a dangerous position or knew that it should have been removed.” Allegations of facts from which the law will raise a duty, rather than mere allegations that it was the duty of a defendant to do certain things, have always been preferred. The declaration alleges that defendants, “and each of them, and all of them, knew or in the exercise of ordinary care should have known that the said log or timber was in the said street, it having been there for such a length of time that each and all of the said defendants knew about the same, and each and all of the said defendants knew that the said timber was loose and not fastened or attached to the curbstone and could be easily moved ’ ’; that defendants knew that the said timber was moved from its accustomed place and was extending across the road; that the log had extended across the road such a length of time that defendants and each of them “in the exercise of ordinary care should have known thereof.” The declaration alleges that McCormick road “was owned, maintained and operated by The Sanitary District of Chicago, a corp., ’ ’ and also by the other defendant, and it is idle to argue that defendants, under all the allegations of the declaration, owed no duty to keep the timber off the highway, as it is plain from the facts alleged that the timber on the highway would constitute a positive menace to traffic on a dark and stormy night. The law raises the duty from the facts alleged. The record shows that defendants, during the trial, understood clearly the theory upon which plaintiff predicated a recovery.

Defendants contend that “where the negligence charged is a defect or obstruction in a public highway the evidence must show whether or not the municipality had actual notice of the same or that the defect existed for so long a time that in the exercise of ordinary care the defendants should have known it.” Defendants argue that “the only evidence introduced tended to show that a log or piece of wood was customarily used along the curb of McCormick Road in the vicinity where the accident occurred, but there is no evidence to show how or when or in what manner such piece of wood was removed, as alleged, from its customary place along the curb to a right angular position extending across the said road.” The evidence is undisputed that both defendants knew that a loose, unattached, easily movable “timber” was customarily placed in the road along the curb at the point in question. Policeman Stolberg testified that he received instructions that if there were any planks lying on the boulevard he was to take them off, but that “if a plank were lying on the boulevard near the curb used for a driveway we would allow it to remain”; that he noticed the timber or plank on the curb on McCormick road at Arthur avenue during the daytime “up until before darkness”; that it was about eight by twelve inches and was made in an angle so as to fit closely to the curb; that it was about ten or twelve feet in length; that Harz and Warfield operated the Stop and Sock course at Arthur and McCormick road at the time in question; that he had been instructed to see that the plank against the curb on McCormick boulevard “in front of Arthur Avenue” was up before darkness, but that they were permitted to allow it to remain there during the daytime. Fred Sandstrom, a motorcycle policeman for the Sanitary District patrolling McCormick road, testified that his duties were to remove from the road anything that could cause damage, or have it removed; that the Harz and Warfield golf course, “a practice course,” was at Arthur avenue and McCormick road; that there was no break in the eight to twelve-inch high curbstone on the west side of McCormick boulevard between Devon and Tuohy; that there was a ramp, or “inclined planks or timbers” placed along the curb where Arthur avenue, if extended, would intersect McCormick road; that defendants Harz and Warfield placed a solid log along the curb occa-' sionally; that it was probably about eight or ten feet long, “long enough for an automobile to drive over it”; that the Sanitary District instructed him not to 'allow it to be “placed down there.” “When I saw them it was during the day and they didn’t always have to have them up during the day, for the simple reason that anybody going on the boulevard could see them during the day, but they were compelled to take them up at dusk”; that he permitted the log to remain in the road during the daytime in spite of his orders; that he used his own judgment in the matter. Raymond Schofield, a motorcycle policeman for the Sanitary District on May 18, 1930, testified that while he had instructions not to allow any planks or timbers to . remain on the road, that he had seen the timber “laying on McCormick Boulevard up against the curb” in the daytime, and it was not fastened. The instructions given by defendants to their police oEcers show that they realized that the presence of the timber in the highway near the curb, unattached to the curb, was a menace to the public driving vehicles along the high-, way. The injury to plaintiff was the natural consequence of defendants’ police oEcers’ using their own judgment in the matter. Vehicles had the right to use the highway from curb to curb, and even if the plank customarily lay near the curb, it nevertheless, in that position, constituted a dangerous obstruction. Heavy rains might cause it to float away from the curb, or a vehicle might strike it a glancing blow as it lay near the curb and cause it to be moved farther out into the road and into the path of passing cars. The jury were justified in finding that the accident was caused by the automobile striking a timber upon McCormick road at a point where Arthur avenue, if extended, would intersect that road, and they were further justified in find- . ing that the timber was the one that was used by defendants Harz and Warfield for the purpose of enabling automobiles to cross over the curb and into their golf practice course. It is true, as defendants argue, that there is no direct evidence to show how or just when the timber was moved from the curb to the point on the roadway where the automobile hit it, but the jury were justified in finding, from all the facts and circumstances, that, shortly before the accident, a downpour of rain or the passing traffic on the road, or both, caused it to be moved from the curb to the point where the automobile hit it.

Defendants contend that “McCormick Road was constructed by The Sanitary District of Chicago on its own property and is being maintained by it along the North Shore Channel of The Sanitary District of Chicago under legislative authority granted it by an act of the legislature provided for under section 347, chapter 42, Cahill’s Revised Statutes of the Drainage Act. . . . Under authority of this legislative enactment the Village of Tessville has been divested of its power and authority to control, maintain or operate McCormick Road, and therefore could not by any stretch of the imagination be under a duty to the plaintiff to maintain said road or to keep said road free from obstructions or to protect her in any manner whatsoever while she may be on said road”; that it is a joint judgment against the two defendants and as the judgment against the village must be reversed the judgment must be reversed in toto. Plaintiff answers that it is now the law that a tort judgment rendered against two defendants can be reversed as to one and affirmed as to the other. Judgment was entered in August, 1934, and the new Civil. Practice Act governs the situation. Section 92 of that act, which came into force on January 1,1934, obviates the necessity of reversing as to all defendants. (See Fogel v. 1324 N. Clark St. Bldg. Corp., 278 Ill. App. 286; also Adkins v. Strathmore Co., 278 Ill. App. 183.) While the instant suit was commenced in 1930, Buie 1 of the Buies of Practice and Procedure adqpted by the Supreme Court provides:

“All provisions of the Civil Practice Act with respecj; to review in civil proceedings by the Supreme or Appellate Courts shall apply to orders, determinations, decisions, judgments or decrees entered by trial courts on or after January 1, 1934. ...”

In their reply brief counsel for defendants, confronted with plaintiff’s answer to their contention, abandon it and argue, as we understand it, that there is a joint judgment and that it is essential, to sustain it as to both or either of the defendants, that there be apt allegations of joint liability in the declaration, that there are no such allegations, and therefore the judgment must be reversed. This contention, not raised in the brief, is an afterthought, and we would be justified under our rules (Buie 7, Buies of Practice, Appellate Court, First District of Illinois) in disregarding it entirely. However, we find no merit in it. The declaration alleges that McCormick road was owned, maintained and operated by the Sanitary District, and further alleges that McCormick road was a road in the Village of Tessville and was also owned, operated and controlled by that village. The rule in assumpsit which requires that where joint promises are charged such promises by all must be proved, has no application to actions of tort, but the rule is that all persons who join in the commission of a wrong are jointly and severally liable and the injured party may sue all or any of them. Nor is it necessary in actions ex delicto to prove all of the allegations of the declaration. (See Kovell v. North Roseland Motor Sales, 275 Ill. App. 566, and cases cited therein.) Under the allegations of the declaration plaintiff had the right to prove a case against both defendants or one of them, and the judgment entered is the ordinary one entered in an action in case where more than one defendant is found guilty.

Should the judgment, in so far as it applies to the Village of Tessville, be affirmed or reversed 1 By its plea of the general issue the Sanitary District admitted ownership, maintenance and control of McCormick road. (See Mueller v. Hayes, 321 Ill. 275, 278.) In the trial of the cause, and here, both defendants contended that the Sanitary District, alone, owned, maintained and controlled McCormick road. Defendant Village of Tessville filed a special plea denying that it owned, operated or controlled McCormick road. Plaintiff contends that “the defendant, Village of Tessville, did have the right of supervision over the highway as a village street”; that the statute does not give exclusive control over the road to the Sanitary District; that for the purposes peculiar to each both exercised concurrent jurisdiction over it and it was the common law duty of the Village to keep the road (street) free from obstructions. Defendants call attention to the well recognized principle of law that there cannot be at the same time and within the same territory two distinct corporations exercising the same powers, jurisdiction and privileges. (See West Chicago Park Com’rs v. Chicago, 152 Ill. 392, 406; Zeigler v. Douglas, 283 Ill. 407, 413.) Both defendants contend that McCormick road was constructed and maintained by the Sanitary District on its own property along the North Shore Channel of The Sanitary District of Chicago under the following act of the legislature:

“Par. 347. Power to build, maintain and repair highways.) Sec. 10a. Any district organized under this Act shall have power to build and maintain highways along or near any canal or channel built by the district, upon land owned by said district, and to repair and maintain public highways near or along any such canal or channel, whenever such highways so constructed, or so repaired or maintained, are necessary, in the discretion of the board of trustees, to make accessible and available for convenient use dock property owned by the district.” (Cahill’s Ill. Rev. St. ch. 42.)

They direct our attention to the fact that not only was there no intersecting street at the point of the alleged accident, but that none of the streets of the Village of Tessville intersects McCormick road, and that there is no break in the unusually high curbstone of McCormick road between Devon avenue and Tuohy road. Upon both sides of the road “from Devon to the end of the drive” signs were placed “bearing the caption or name ‘The Sanitary District of Chicago.’ ” Village of Tessville “is not very well built up.” It contains about 475 people. Its officials never authorized the expenditure of any money for the maintenance of McCormick road and never authorized the policing of the road by its officers. Sanitary District strenuously contends that the village had nothing to do with the construction or maintenance of the road. The authority of the Sanitary District to construct and maintain McCormick road is not questioned in this proceeding. Plaintiff relies upon South Park Com’rs v. Chi cago City Ry. Co., 286 Ill. 504, 508, and Chicago City Ry. Co. v. Park Com’rs, 257 Ill. 602, 613, in support of her position, but these two cases hold that the City of Chicago and Park Commissioners had an equal right, but for distinct and different purposes, within the areas covered by the intersections. If the accident to plaintiff had happened at a place where a street of the Village of Tessville intersected McCormick road the cases cited by plaintiff might then apply. After giving careful consideration to the instant question we have reached the conclusion that the judgment, in so far as it applies to the Village of Tessville, should be reversed.

The judgment of the circuit court of Cook county, in so far as it applies to the Sanitary District of Chicago, a corporation, is affirmed; in so far as it applies to the Village of Tessville, an incorporated village of Illinois, it is reversed.

Judgment affirmed as to the Sanitary District of Chicago, a corporation; reversed as to Village of Tess-ville, an incorporated village of Illinois.

Sullivan and Friend, JJ., concur.


author: Mr. Presiding Justice Soanlan

text:
    Mary Elizabeth Fleming McCarthy, Appellant, v. James Rorrison et al., Defendants. James Rorrison, Appellee.
    Gen. No. 38,050.

      Opinion filed December 30, 1935.
    Ryan, Condon & Livingston, of Chicago, for appellant; John M. Tuohy, of Chicago, of counsel.
    Eckert & Peterson and George C. Bliss, all of Chicago, for appellee; A. R. Peterson and Owen Rall, of Chicago, of counsel.
   Mr. Presiding Justice Soanlan

delivered the opinion of the court.

Plaintiff sued James Rorrison, Chicago Auditorium Association, a corporation, and Melvin E. Berg in case. The amended declaration proceeds against Rorrison and Berg only. At the close of plaintiff’s case a verdict was directed for Berg and' Rorrison’s motion for a directed verdict was overruled. At the close of all the evidence Rorrison submitted a like motion, which was overruled. A verdict was returned finding Rorrison guilty and assessing plaintiff’s damages at $5,000. Rorrison then moved the court to enter judgment for him ‘‘notwithstanding the verdict,” for the following reasons:

“1. The Court erred in refusing to instruct the jury at the close of all of the evidence to find the defendant, James Rorrison, not guilty.

“2. The Court erred in refusing to instruct the jury at the close of all the evidence that there could be no recovery under the first or second counts of the amended declaration.

“3. The evidence does not fairly and reasonably tend to show that John Johnson, the driver of the automobile which collided with the motor vehicle in which plaintiff was a passenger, was at the time and place in question the agent and servant of the defendant, James Rorrison.

“4. The preponderance of the evidence established the fact that John Johnson was not authorized to drive or operate defendant’s automobile at the time and place in question.”

The trial court sustained the motion and entered judgment in favor of defendant. Plaintiff appeals.

On December 30, 1930, at about 10:15 p. m., plaintiff was in an automobile owned by Berg, which was being driven in a westerly direction upon a public highway in Chicago, then known as Seventh street, and while it was crossing the intersection of that street with another highway, then known as the inner Outer Drive, an automobile owned by defendant Rorrison and operated by John Johnson, and driven in a northerly direction in the inner Outer Drive, crashed into Berg’s ear, seriously injuring plaintiff. The accident occurred in a part of Chicago known as Grant Park. The inner Outer Drive is the first thoroughfare east of Michigan avenue. Johnson was employed as a doorman by the Auditorium hotel, located at Congress street and Michigan avenue.

Defendant states: “No contest will be made as to the amount of plaintiff’s damages nor the negligence of John Johnson, the colored doorman of the Auditorium Hotel, to whom the defendant Borrison delivered his car. ’ ’

Defendant concedes that in passing upon his motion the trial court had no right to pass upon the credibility of the witnesses or the weight of the testimony, and that his ruling can only be justified upon the theory that the evidence most favorable to plaintiff, with all its reasonable inferences, fails to make out a prima facie case upon a necessary element of her case, viz., that Johnson was the servant or agent of defendant at the time and place in question. Plaintiff contends that there is evidence in the record that fairly and reasonably tends to show that Johnson, at the time and place .of the accident, was driving with the authorization and upon the business of defendant Borrison, and, therefore, the court erred in granting defendant’s motion. Defendant contends that Johnson was not his agent or servant at the time and place of the accident; “that the evidence was undisputed in all material matters so that the court properly decided the question submitted as one of law in holding that all of the evidence taken together, drawing reasonable inferences most favorable to the plaintiff, failed to prove that John Johnson was the agent or servant of the defendant at the time and place of the accident. ’ ’

In passing upon defendant’s motion the trial court was governed by the established rule that the evidence most favorable to plaintiff, with all its reasonable inferences, must be taken as true.

Defendant, called as a witness by plaintiff (under section 60 of the new Practice Act), testified that on the evening in question he went to the Auditorium Hotel to see some friends who were stopping there; that he was going to take them to the train and when he arrived at the hotel he told the doorman, Johnson, that he would want the car back in about an hour and not to bury it, as he wanted it back there to take some people to the train; that he gave the doorman instructions as to just where to park the car; “I don’t remember the time of the train leaving, or just exactly whether I told him that it would be an hour or an hour and a half, but it was some short period of time like an hour, something like that”; that he did not tell plaintiff and her sister that he told the doorman to take the car and park it some place, “but don’t bury it.” Plaintiff testified that sometime after the accident she and her sister, Gertrude Berg, had a conversation with defendant in which he stated “that he and some friends at the Auditorium Hotel drove up to the Auditorium Hotel and that anyone would think that a man wearing a uniform would be capable of handling a car and he turned the car over to the colored man and he said, ‘ Take the car and park it some place but don’t bury it. I want it back in time to take these folks to the train’ ”; that he also stated that the train was to leave around 10:30. Gertrude Berg testified that defendant told them “that he had some guests at the Auditorium Hotel and when he drove up to the hotel the doorman was there and he told the doorman to take his car and park it some place but not to bury it, that he wanted to take friends to a train at 10:30, and he said one would think a doorman garbed in a uniform would be capable of handling a car.” Defendant, called as a witness in his own behalf, testified that he had been at the Auditorium Hotel several times before that night; that on that night he arrived at the hotel “somewhere between eight and nine o’clock”; that the doorman came to his car with tickets in his hand that “they give you when they take your car”; that he had received tickets from the doorman “before at times for parking” his car; that before that night, after he turned his car over to the doorman, it had been kept at the Wabash & Harrison garage, “a ramp garage,” located on the west side of Wabash avenue and south of Harrison street; that sometimes when he arrived at the hotel the doorman came up with a ticket “and you would.put it in your pocket,” and sometimes they do not happen to have them with them and you give them your room number “and they give it to a boy and send it to the box of the room where you are going; ... I pulled up to the curb and told the doorman to park my car. . . . ‘ Take it over to the garage and tell those people not to bury it.’ . . .1 had been down there before and I had to wait half an hour for my car. They go over these ramp garages and get them behind three or four cars and then they have to move those cars and if they get jammed up you have to stand aronnd for a half an hour sometimes while they get it out. ... I told him not to bury it. It is a common term in garages and the garage business. It means don’t get it back where you can’t get it out. I told them not to get it back of another bunch of cars where they can’t get it out. ... I told him at the time I wanted this car in about an hour. I was going to be gone a couple of hours, but you say two hours to them, they take those cars over there and if they say ‘He is going to be back in two hours’, they put it in back of a bunch of cars, and if you say one hour they leave it out in front. . . . The garage always takes the car and puts it up and brings it back but you make your — you leave the car with the doorman and he calls the garage. He has a telephone right there and the garage has hikers and they send over these hikers and take the car over to the garage and the hiker brings the car back to you. Q. When you told Mm you would want it in that way what did he say to you? A. He said, ‘Well, if you are oMy going to be gone an hour or so I will pull it around to the side of the hotel and leave it there.’ I said, ‘Don’t you get a ticket on that because I would rather pay the garage than have a fine and have to go down there for it.’ . . .1 told him I would call for the car when I wanted it. . . . That train left at 11:30. . . . And we probably called for the car about five or ten minutes after eleven so as to have maybe ten or fifteen minutes to get over to the train.” The witness again denied maHng the statements testified to by plaintiff and her sister. Upon cross-examination the following occurred: “Mr. Rorrison, you say this colored man had some tickets or something in his hand? A. He did. Q. Did he give you one? A. He did not. He was going to give me the ticket. Q. He did not give you any ticket? A. He was going to pull around to the side and I gave him the room number. . . . Q. Now, there was more conversation with this colored man about parking the car and then he said to you, ‘If you are not going to be very long I will pull up around the corner,’ is that right? A. That is right. . . . Q. Did you tell him not to park around the corner? A. No, I told him he could park around the corner on the side of the hotel. ... Q. So you did not tell Mm any particular garage? A. No, I didn’t tell him the exact garage. . . . Q. You did not give any specific direction to him where to park it, did you? ... A. He was to park the car around the corner or put it in the garage. . . . He can park there on the side but he can’t park more than an hour. . . . Q. And it was more than an hour after that you called for your car ? A. Yes, sir”; that on prior occasions he probably tipped the doorman;' that he told him that he would want the car in about an hour “but I didn’t instruct him to bring it back in an hour. ’ ’

That there is evidence that defendant turned his car over to Johnson, and instructed him to “take the car and park it some place but don’t bury it,” is clear. From defendant’s testimony the jury would be justified in finding that he instructed Johnson to park the car provided he could avoid getting a ticket from the police for parking over an hour in one place, and that defendant did not follow his usual custom, that night, of having a “hiker” from the garage come to the hotel and take the car to the garage. A second question to determine is, Was the jury justified in finding from the evidence most favorable to plaintiff, with all its reasonable inferences, that defendant instructed Johnson to bring the car back to the hotel? Defendant, when called as a witness in his own behalf, testified, “I told Mm at the time I wanted this oar in about an hour,” told him not to bury the car, as he wanted it back to take some folks to the train, gave him instructions where to park the car; “When you told him you would want it in that way what did he say to you? A. He said, ‘Well, if you are only going to be gone an hour or so I will pull it around to the side of the hotel and leave it there ’ ”; that before that evening, when he arrived at the hotel with his car, he had received tickets from the doorman, but that on that night, although Johnson had some tickets in his hand he did not give defendant one; that “he was going to pull around to the side and I gave him the room number. ... I told him he could park around the corner on the side of the hotel,” but that he (defendant) “didn’t want him to get a ticket. . . . Q. I am asking you, were you concerned with where he parked the car? Did that make any difference to you, where he parked the car? A. Sure, it made a difference. I didn’t expect him to park the car out in Grant Park. . . . He was to park the car around the corner or put it in the garage. . . . He can park there on the side but he can’t park more than an hour. . . . Q. And you knew he could not park there for more than an hour? A. Yes, sir. Q. And it was more than an hour after that that you called for your car? A. Yes, sir.” Defendant further testified that he told the doorman that he would call for the car when he wanted it; that the train left at 11:30, “and we probably called for the car about five or ten minutes after eleven so as to have maybe ten or fifteen minutes to get over to the train.” Plaintiff and her sister testified that defendant stated that he had a right to believe that Johnson was capable of handling a car and that he told Johnson, “Take the car and park it some place but don’t bury it. I want it back in time to take these folks to the train,” which was to leave around 10:30. The principal point urged by defendant in support of his contention that he did not intend that the doorman should bring the car back to the hotel is based upon his testimony given by him when called as a witness in his own behalf, that he told Johnson that he would call for the car when he wanted it, and his further testimony that he called for the car about five or ten minutes after eleven. When testifying as a witness for plaintiff defendant stated that he could not remember the time the train left, nor whether he told Johnson that he wanted the car back in an hour or an hour and a half. He did not then testify that he told Johnson that he would call for the car when he wanted it. Nor did he state to plaintiff and her sister that he so told Johnson. The jury might well have found, under all the facts and circumstances in evidence, that defendant’s testimony that he told the doorman he would call for the car when he wanted it was an afterthought. In any event, the argument that there are no facts or circumstances to rebut or question this alleged statement of defendant to Johnson is without merit. Because he had to take some friends to the train at a certain time, defendant was fearful that his car might become “buried” in a garage, or elsewhere, and therefore he did not follow his usual custom when he left the car with the doorman. The fact that Johnson understood that he was to bring the car back and that he acted upon that understanding, throws light upon the directions given him by defendant. Plaintiff and her sister testified that defendant told them that the train left around 10:30 p. m., and he testified that he would need ten or fifteen minutes to get to the train from the hotel. He concedes that he made no call for the car until fifty or fifty-five minutes after the accident occurred. But for the accident, Johnson would have had the car in front of the hotel in due time for defendant to take his friends to a train that left around 10:30. Defendant argues that he expected a hiker from the garage to bring the car back to the hotel. But if Johnson, in complying with defendant’s orders not to allow the car to be buried, was compelled to park the car or to place it in a garage a few blocks south of the hotel, it would not be the duty of the “hiker” from the Wabash & Harrison garage to find the car and bring it back to the hotel. Who but Johnson would know where the car was parked or garaged? We have reached the conclusion that the jury were justified in finding from the evidence most favorable to plaintiff, with all its reasonable inferences, that defendant instructed Johnson to bring the car back to the hotel and to then call up defendant’s room.

Defendant contends that the undisputed evidence shows that “the driver of the car which injured plaintiff was not the agent or servant of the defendant,” and argues that there is no evidence that Johnson’s general employer, Auditorium Hotel Association, surrendered control of its employee to defendant, and that “without proof of such surrender by his. general employer and the assumption of control by the defendant, Johnson remained the general servant of the hotel, only, and did not become the servant of the defendant”; that there is no evidence to show that the hotel temporarily loaned or hired to defendant its servant for a special service, and that therefore Johnson no more became the servant of defendant “than a bell boy who might carry a traveler’s luggage into the hotel would become the traveler’s servant.” Defendant cites Densby v. Bartlett, 318 Ill. 616, which involved the question as to whether or not, under the facts of that case, a servant of a general master was temporarily loaned or hired to another for some special purpose so that for the time being he became the servant of the person to whom it was claimed he was loaned or hired. Plaintiff’s case is not based upon the theory of fact that the hotel temporarily loaned or hired Johnson to defendant. The night manager of the Palmer House, who at the time of the accident was with the Auditorium hotel, called as a witness by defendant, testified that the hotel had a rule that no doorman was to take a car to the garage; that he was supposed to call the garage for an attendant to drive the car and an attendant to bring it back; that the doormen were instructed not to leave the premises “until their time came to leave”; that Johnson, by parking the car on the night in question, “was plainly violating the orders of the Auditorium Hotel ’ ’; that doormen were permitted to park a car “near the hotel but not around Seventh Street”; that they were not supposed to park them at all, as it was against the rule of the hotel. Defendant now argues that this evidence should have no weight because defendant had no notice of the rule of the hotel or the instructions given by it to doormen. As he introduced the evidence he is not in a position to argue that it should now be disregarded.

It is undoubtedly the law that one may so use the servant of another as to make him his servant in the performance of some particular act, and it has been frequently stated that no arbitrary rule can be laid down by which it can be plainly seen in every case whether a servant, in the performance of a particular act, is the servant of the general or the special master, and that the facts of each case must be looked into in order to reach a proper conclusion. After careful consideration of the pertinent facts and circumstances we have reached the conclusion that the jury were justified in finding from the evidence most favorable to plaintiff, with all its reasonable inferences, that Johnson, at the time and place in question, was the servant or agent of defendant. It is true that a bell boy in carrying a traveler’s luggage into a hotel would not become the traveler’s servant; but if the traveler, without the knowledge or consent of the hotel, told the bell boy to take the traveler’s automobile and park it somewhere where it would not be buried, as he wanted to take some friends to the train, and to bring it back to the hotel in time to catch the train, and the bell boy, expecting a reward from the traveler, in complying with the request, on the way back to the hotel negligently collided with another automobile, could it be reasonably argued that the bell boy at the time of the accident was not the servant and agent of the traveler 1

Defendant contends that if Johnson be considered the servant of defendant, still, he was not acting within the scope of his employment at the time and place of the accident. The accident happened within five blocks of the hotel, while Johnson was driving the car in the general direction of it. It is conceded that for Johnson to drive the car in front of the hotel it would be necessary for him to approach it from the north, as it is located on the west side of Michigan avenue. It is in one of the busy parts of Chicago. It is a reasonable inference from the evidence that Johnson was unable to place the car in the “ramp garage” on Wabash near Harrison without having it buried and that because of the number of cars parked near the hotel he was compelled to take the car a few blocks south before he could park it or place it in another garage where it would not be buried. Defendant argues that J ohnson, instead of going east to the inner Outer Drive to reach the hotel, should “have gone to Wabash Avenue, one block west, and made two right turns so as to drive south on Michigan Avenue.” It might well be said that Johnson selected a better highway to reach the hotel, than Wabash avenue, which has street car tracks and is a very busy thoroughfare, but even if he did not select the best approach to the hotel that fact would not be a material circumstance in determining the instant contention. The argument that Johnson, at the time and place of the accident, was not acting within the scope of his employment, is based upon a rather strained contention that Johnson had deviated or departed “from the scope of any possible employment of Johnson by the defendant.” We find no merit in this contention. Nelson v. Stutz Chicago Factory Branch, 341 Ill. 387, cited in support of the contention, presents an entirely different state of facts. In Kovell v. North Roseland Motor Sales, 275 Ill. App. 566 (certiorari denied by the Supreme Court, ib. p. xiii), we had occasion to cite, at some length, the law bearing upon the question as to what constitutes' deviation from the master’s business, and it is unnecessary for us to here repeat what we there stated. Under the facts of the instant case the trial court would certainly not have been justified in holding as a matter of law that J ohnson, at the time of the accident, had só deviated from his master’s business as to amount to a departure from the service and for purposes personal to Johnson.

We find no merit in the contention that the action of the trial court in entering judgment for defendant may be justified on the ground that the Auditorium Hotel Association, through its doorman, Johnson, became bailee of defendant’s car, and that defendant is not liable for the negligence of the hotel occurring during the bailment. The authorities cited in support of the contention have no application to the facts of the instant case.

Finding, as we do, that the trial court erred in entering. judgment for defendant notwithstanding the verdict of the jury, the judgment of the circuit court of Cook county is reversed, and in accordance with section 68 (3) c of the Practice Act judgment will be entered here in favor of plaintiff, Mary Elizabeth Fleming* McCarthy, and against defendant, James Borrison, for $5,000, the amount found by the jury in its verdict.

Judgment of the circuit court reversed and judgment entered here in favor of plaintiff, Mary Elisabeth Fleming McCarthy, and against defendant, James Borrison, for $5,000.

Sullivan and Friend, JJ., concur.