author: Mr. Justice Hebel

text:
    Harry Fleming, a Minor, by Clarence Fleming, His Father and Next Friend, Appellee, v. City of Chicago, Appellant.
    Gen. No. 34,156.

      Heard in the third division of this court for the first district at the February term, 1930.
    Opinion filed March 11, 1931.

      Samuel A. Ettelson, Corporation Counsel, and William D. Saltiel, City Attorney, for appellant; Samuel L. Golan, Kathryn M. Barasa, Assistant City Attorneys, and Boy S. Gaskill, Assistant Corporation Counsel, of counsel.
    Murphy 0. Tate, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an action of trespass on the case, brought by Harry Fleming, a minor, by Clarence Fleming, his father and next friend, plaintiff, against the City of Chicago, defendant, to recover damages for personal injuries.

The declaration contains one count to which the defendant pleaded the general issue, and the case was tried before the court and a jury, and resulted in a verdict for the plaintiff in the sum of $5,000; and the court, after overruling motions of the defendant for a new trial and in arrest of judgment, entered a judgment on said verdict, from which the defendant prosecutes this appeal.

The declaration alleges, in substance, that on February 9, 1928, the defendant had possession, control and management of a certain public alley in the rear of the premises known as No. 657 West 63rd Street in Chicago; that prior to said date, a certain truck chassis was placed and left standing in said alley by parties unknown to plaintiff; that said truck chassis was possessed of hard rubber tired wheels, was movable and was calculated to attract the attention and curiosity of children of tender years; that said truck chassis was so located in said alley as to attract children from the premises adjacent to said alley, all of which the defendant knew or should have known; that defendant had sufficient and ample time and reasonable opportunity, in the exercise of due care and caution, to become acquainted with and have knowledge of the existence of the attractive nuisance; that it was the duty oí the defendant to remove and abate said nuisance, and to cause said truck chassis to be removed from said public alley, but that the defendant failed and neglected to have said truck chassis removed, and in consequence of the negligence of the defendant, the plaintiff, a minor of tender years, to wit, seven years of age, together with other boys of tender years, moved said truck chassis upon and into said alley and into and upon 64th Street, a public highway, and that said truck chassis was caused to and did move and descend down an incline along and upon said 64th Street, west of its intersection with said alley, while the plaintiff minor was riding thereon in the exercise of care and caution for one of his years, age and experience, and that the plaintiff was caused to and did fall from said truck chassis under the wheels of the same, and, as a consequence, was injured.

Then follows an enumeration of the injuries alleged to have been suffered and the statutory notice alleged to have been served on the defendant on July 24, 1928. The ad damnum is laid in the sum of $25,000.

Upon the trial of this case it was agreed by counsel that the truck chassis in question was 10 or 12 feet long; that it was a truck body with four wheels, without a steering wheel, steered by a wire attached to the front wheels.

The record shows that the said truck chassis prior to the date of the accident in question was in an alleyway, which runs east and west between 63rd Place and 64th Street, between Lowe Avenue on the east and Union Avenue on the west. The witnesses differ as to the length of time this truck chassis was in the alleyway or on the public highway prior to February 9,1928.

It further appears that on the afternoon of February 9, 1928, Harry Fleming, just turned seven years of age, in company with certain other boys, was playing with the truck in question at the time of the accident, and that the injured boy testified that the boys were riding on the car, and, thinking that they were having a joyful time, he got on the truck and started riding; that there was a man around there and he pushed them up the hill on 64th Street, and then the truck chassis was run down under the bridge and the witness fell off and got hurt; that the witness did not know who this man was; that his name was Jack, an insane fellow; that when he fell off the truck his leg got caught in the spokes as it turned around, and was fractured above the knee.

There is evidence of witnesses who testified that they told the plaintiff to keep off the truck chassis. It further appears from the record that Dr. A. E. McCrady, a witness for the plaintiff, attended the injured boy on February 9, 1928, shortly after the accident, and testified that one end of the bone protruded through the muscles of the thigh and caused a large tear in the muscles of the skin; that the wound seemed to be ground as though it had been crushed; that he made a diagnosis of a fracture of the right femur, the large bone in the thigh abont its middle third; that it was what is called a compound comminuted fracture; that the patient remained in the hospital about two months; that after that, the doctor took care of him at home; that he called at different times over a period of a year, and later removed the boy to the hospital, opened up the wound and removed a piece of the bone and cut off some of the fragments that were in the wound, and that the last examination revealed a shortening of the leg about two inches, and that there is angulation in the thigh bone; that there is a scar in the thigh caused by the drainage and by the different operations; that the child walks with a limp and is permanently crippled.

The defendant urges that the declaration in this case fails to state a cause of action, and that it fails to allege the age, capacity, intelligence and experience of the plaintiff minor, and that proofs without allegations are of no more effect than allegations without proofs; that the declaration in this case does allege that the plaintiff minor was “in the exercise of care and caution for one of his years, age and experience, and that, while so riding, plaintiff minor was caused to and’did fall from said truck chassis, in consequence of which he sustained injuries. ’ ’

The rule by which pleadings before judgment are construed against the pleader after judgment, is reversed and the pleading upon which the judgment is based is liberally construed for the purpose of sustaining the judgment. If the declaration states a cause of action, however defectively or imperfectly, and the issue joined requires proof of the facts defectively stated, it is sufficient, and although the declaration is demurrable it will be sufficient to sustain the judgment after a verdict. Smith v. Rutledge, 332 Ill. 150; Roumbos v. City of Chicago, 332 Ill. 70. The only plea filed at any time by the defendant is the general issue, and it is now too late to urge that which might have been cured by proper amendments. Parties cannot speculate upon the result of a trial and raise the question of the sufficiency of the allegations for the first time after the judgment. The defendant is precluded from making the objection at this time. Devine v. Chicago City Ry. Co., 167 Ill. App. 361. We are unable to agree with the contention of the defendant that the declaration does not state a cause of action, and we believe it is sufficient to sustain the judgment after the verdict.

The defendant contends that the court erred in giving an instruction to the jury advising them what the plaintiff charged in certain averments of his declaration. This instruction standing alone does not guide the jury so that they can determine the issues between the parties, but upon consideration of all the instructions in the record, it appears that the jury was correctly instructed upon the law, and this court will not reverse the judgment for the reason that all of the law applicable is not contained in one instruction, if from all of the instructions the jury was correctly instructed by the trial court. We find in the record that the jury was informed, “If the plaintiff has established his case as charged in the declaration by a preponderance or greater weight of the evidence he is entitled to recover,” and so the jury was informed what the declaration charged and what the plaintiff must show from the evidence in order to establish his case.

The pleadings in the case are not to be taken by the jury upon their retirement, and the only way, and a proper one, is for the court to direct the attention of the jury to the issues by a written instruction to that effect, and the proof necessary, and the weight of the evidence, before the plaintiff can recover.

The court refused defendant’s instruction:

“You are instructed that neither by these instructions nor by any statements or remarks made by the court throughout the proceedings, did the court mean to.intimate any opinion as to what the facts are, or what are not the facts in this case, and you would be wholly unjustified to conclude that the court has any opinion of any of the facts in this case, or what your verdict should be, but it is solely and exclusively for the jury to find from the evidence what the facts are, and what are not the facts in this case, and the jury should return a verdict based upon the evidence as introduced in this case, after applying the law as given you by these instructions”; and the defendant suggests that this instruction is covered in part only by plaintiff’s given instruction, but there is no instruction in the record wherein the jury were told that they were the sole and exclusive judges of the facts, and that failure to so instruct was error. When the trial court instructs the jury that the plaintiff is required to prove his case by a preponderance or greater weight of the evidence, as it did, it impresses upon the jury that' facts are to be considered by them in determining the preponderance and the weight of the evidence. How is it possible for the jury to weigh the evidence unless they pass upon the facts 1 This being • the only criticism made by the defendant, this court is not able to find from the record that failure to give this instruction was erroneous.

The point is made by the defendant that the judgment is against the manifest weight of the evidence, but it is admitted that the undisputed evidence in the record shows that the truck chassis in question was prior to February 9, 1928 in the alley and upon the public highway; that one of the boys riding on the truck chassis at the time of the accident saw this truck in the alley the day before, but that he heard of it about two weeks before, and that the boy who was steering the truck first saw it three or four days prior to the accident. Further, the parents of the injured boy and a neighbor all testified that the truck was in the alley or highway three or four months before the accident; that one witness, Clarence Fleming, testified that he notified the police by telephone of the presence of the truck chassis upon the public highway about a month before the accident.

The defendant in this case is not an insurer against accident, but is only required to exercise ordinary care to keep its streets and alleys in a reasonably safe condition for the use of persons using them, who are themselves in the exercise of ordinary care for their own safety. The evidence indicates that for a period of time the abandoned chassis was upon the highway. Not only that, but the evidence tends to show that the agents of the defendant were notified, and that on February first of the same year,' two Chicago policemen examined it. The city had not only constructive but actual notice of this abandoned truck chassis. The question therefore is, Was this instrumentality such an attractive nuisance on the public highway as to attract children, and dangerous to the safety of the child riding on it 1 It must be admitted that children of tender . years playing upon a public street, as they lawfully may play, would be more likely to be attracted by an abandoned truck chassis upon a public highway than if it had been located upon private property. Flis v. City of Chicago, 247 Ill. App. 128. It is the duty of the municipality to abate such a nuisance after it has notice, and failure to do so would make it liable for such negligence where a" child was allured and attracted, and who from childish instinct was drawn into danger and injured through no fault of its own, and where the child was exercising that degree of care and caution required by law.

In the case of Holmberg v. City of Chicago, 244 Ill. App. 505 (writ of certiorari denied by the Supreme Court), the court says:

‘ ‘ Many physical conditions on a highway might exist which would be attractive and dangerous to children, and a ground for liability in case of injury, which would be looked upon as entirely innocuous if on private property. If, for example, the City, or anyone, created in a public highway a pond or well of water, deep enough to drown a child who could not swim, there would be no reasonable question or claim that it was not dangerous and a menace to life. The fact, therefore, that this sand pile in which the boy was suffocated was in a public highway becomes important in determining whether or not the evidence justified submitting the case to the jury, and distinguishes the instant case from all the cases cited where the locus in quo was on private property.”

The defendant relies largely upon the decision of the Supreme Court in the case of Burns v. City of Chicago, 338 Ill. 89. After examining the opinion, we are impressed by the fact that the attractiveness or allurement of the agency is important in determining the liability. The facts in each case must be considered to determine that responsibility, and this is clearly stated in these words:

“The emphasis placed in these two decisions upon the element of ‘attractiveness’ or ‘allurement’ follows a consistent indication, running through all the cases in which this general question has been before this court, that the ‘attractiveness’ or ‘allurement’ of the dangerous agency, or of other agencies in intimate juxtaposition to such dangerous agency, is of paramount importance in determining liability.”

It is clear from the facts in the Burns v. City of Chicago case, supra, that the plaintiff’s minor was not lured by the agency that caused the injury, but came to his death by accepting a dare.

“. . .If the pole in the present case could be said, as an abstract proposition, to have held out the necessary degree of allurement to boys of tender years, it might not be a conclusive answer to plaintiff’s contentions to say that plaintiff’s intestate did not come to his death by yielding to that allurement but rather because he accepted a dare to do something regarded as at least being out of the ordinary and which the boys presumably recognized as involving an element of risk.”

The defendant makes the further point that if the negligent act does nothing more than furnish a condition by which an injury is made possible and such condition, by the, subsequent act of .a third person, causes an injury, the two acts are not concurrent and the existence of the condition is not the proximate cause of the injury. Citing cases.

The accident to the boy in the instant case, and consequent injury, would not have happened but for the failure of the defendant to abate this nuisance, which was the result of carelessness on the part of the city. The city must be held liable, provided of course plaintiff minor was in the exercise of ordinary care for his own safety, such as is required by law. In the case of the City of Joliet v. Shufeldt, 144 Ill. 403, the Supreme. Court passed upon the question of the efficient and proximate cause, which opinion is approved and has been followed by the courts of this State, and from which we quote as follows:

“It is only required to use reasonable diligence and care, in making its streets safe for the public use, in view of those accidents, which may, in the exercise of common prudence, be anticipated and guarded against. The general doctrine is, that it is no defense, in actions for injuries resulting from negligence, that the negligence of third persons, or an inevitable accident, or that an inanimate thing contributed to cause the injury to the plaintiff, if the negligence of the defendant was an efficient cause, without which the injury would not have occurred. W. St. L. P. Ry. Co. v. Shacklet, Admx., 105 Ill. 364; Transit Company v. Shacklet, 119 id. 232; Consolidated Ice Mach. Co. v. Keifer, 134 id. 481; Pullman Palace Car Co. v. Laack, 143 id. 242; Peoria v. Simpson, 110 id. 301; see 16 Am. & Eng. Enc. of L. 440-3 and notes; 2 Thomp. Neg. 1085.”

We believe from the facts in this record that the trial court was justified in submitting the facts to the jury for determination, and no better reason can be given than that stated in the opinion of the Appellate Court in the case of Flis v. City of Chicago, 247 Ill. App. 128, page 133:

“Unless the facts in the present case are such that all reasonable minds would draw therefrom no other inference than that the tar kettle and the manner in which it was used did not constitute an attractive nuisance, the question became one of fact for the jury to determine. (City of Pekin v. McMahon, 154 Ill. 141, 147-152; True & True Co. v. Woda, 201 Ill. 315, 318; Stollery v. Cicero & P. St. Ry. Co., 243 Ill. 290, 292; Stedwell v. City of Chicago, supra; Anderson v. Karstens, 218 Ill. App. 285, 292; Holmberg v. City of Chicago, supra.) The jury found that the kettle, under the circumstances of this case, was an attractive nuisance, and we are satisfied that we would not be justified in overriding that verdict. In our judgment, common experience and common sense justify the finding of the jury. In Holmberg v. City of Chicago, supra (certiorari denied by the Supreme Court), the plaintiff’s intestate, an 11-year-old boy, was smothered in a sand pile into which he had dug and which the city had allowed the defendant contractor to pile some eight feet high in a public street. The court held that the question as to whether the sand pile constituted an attractive nuisance was a question of fact for the jury to determine and that the court was not justified in setting aside the finding of the jury that it was an attractive nuisance. In our opinion, the facts before us make out a stronger case of an attractive nuisance. ’ ’

Under the facts and the law in this case, the conclusion reached by this court is, that there is no such error as would justify a reversal. Accordingly, the judgment is affirmed.

Affirmed.

Wilson, P. J., and Friend, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Jhstige Jett

license: Public Domain

text:
    Metropolitan Life Insurance Company, Defendant in Error, v. Henry S. Kobbeman et al., Plaintiffs in Error.
    Gen. No. 8,224.
    Heard in this court at the
    May term, 1930.
    Opinion filed March 5, 1931.
    Sheldon & Brown, for plaintiffs in error.
    John A. Riordon and Hardy, Hardy & Hardy, for defendant in error.
   Mr. Presiding Jhstige Jett

delivered the opinion of the court.

This is a proceeding to review a decree for foreclosure entered in favor of Metropolitan Life Insurance Company, a corporation, defendant in error, against Henry S. Kobbeman, Emma Kobbeman and Gertrude Graham, plaintiffs in error. A writ of error was sued out by Henry S. Kobbeman and Emma Kobbeman, mortgagors, and by Gertrude Graham, a junior mortgagee. The mortgage foreclosed by the defendant in error was executed on July 10,1924, by the said Henry S. Kobbeman and Emma Kobbeman on certain land in Whiteside county to the Savings Bank of Kewanee, an Illinois banking corporation for the purpose of securing a payment on October 1, 1929, to the said Savings Bank of Kewanee of one promissory note of mortgagors for $15,000 and of even date with said mortgage. The said note bore interest at 5% per cent per annum payable annually as per coupon interest notes attached for each year’s interest. This mortgage was assigned by the said bank to the defendant in error on August 8, 1924. The assignment was recorded in the recorder’s office of WTiiteside county on October 4, 1924. On August 12, 1924, Henry S. Kobbeman and Emma Kobbeman, husband and wife, two of the plaintiffs in error, made their note for $28,000 to Gertrude Graham, a plaintiff in error, and secured the same by a chattel mortgage and also a real estate mortgage which included the land described in the mortgage given to secure the $15,000 note foreclosed by the defendant in error and other lands. On November 1, 1927, Henry S. 'Kobbeman, a plaintiff in error, leased to the said Gertrude Graham the land included in the mortgage foreclosed by the defendant in error and other lands. On a hearing the court found in favor of the defendant in error and found that the mortgagors had failed to pay the taxes and to keep the insurance in force and other items, and entered a decree for $19,312.31. The court also found that the amount claimed to be due to the said Gertrude Graham on her said note for $28,000 secured by mortgage and any rights she claimed under the lease were subject to the lien of the defendant in error,

A number of reasons are assigned and argued for a reversal of the decree. The principal question raised is whether or not the mortgage given to the Savings Bank of Kewanee, and assigned to the Metropolitan Life Insurance Company, defendant in error, contains a sufficient description of the. note that was given to secure it. The note is as follows:

“Real Estate Mortgage Note

Kewanee, Illinois

“Number Dollars

1039 • $15,000.00

July 10, 1924

“On the first day of October, 1929, for value received, we promise to pay to the order of Savings Bank op Kewanee, Fifteen Thousand and no/100 Dollars in lawful money of the United States of America with exchange on the City of New York, with interest thereon at the rate of 514 per cent pér annum payable annually, according to the terms of coupon interest notes of even date therewith and hereto attached.

“This note is secured on Real Estate in Whiteside county, Illinois, and shall, bear interest at the rate of seven per cent per annum after maturity until paid.

“Partial payments may be made in accordance with privilege indorsed on the back of this note.

Henry S. Kobbeman

Emma Kobbeman. ”

.(Indorsed on back:)

“Payments may be made on this note in sums of $100 or any multiple thereof, on any interest paying-date prior to its maturity.

Pay "to the order of Metropolitan Life Insurance Company Without recourse on us.

Savings Bank of Kewanee,

By Sam D. Burge,

Cashier. ’ ’

Attached to said note were certain coupon notes.

It will be seen that the said note is complete in all respects and is in compliance with the Negotiable Instruments Act, Cahill’s St. ch. 98, ff 21 et seq. It bears a certain date and states upon its face the amount of the indebtedness, the names of the parties, when it is due and the rate of interest it bears.

In the description of the note, however, contained in the mortgage, the date of the maturity thereof and the rate of interest is omitted and it is insisted by plaintiffs in error that by reason of these omissions the mortgage of Gertrude Graham is a prior lien and that a lease of the premises executed by the owners of the land to her is precedent to any claim of the defendant in error. While it is true that the mortgage in describing the note did not set forth the rate of interest it bore or the maturity date, these omissions do not affect the validity of the mortgage as against the mortgagors or plaintiff in error Gertrude Graham. The mortgage recites that, “Said Henry S. Kobbeman and Emma Kobbeman, mortgagors, are justly indebted upon one promissory note bearing even date herewith, payable to the order of the Savings Bank of Kewanee for the sum of $15,000, at its banking house in Kewanee, Illinois.”

A promissory note or bond secured by mortgage may be described according to its tenor and effect, and errors, inaccuracies, or lack of particularity in the description will not invalidate the mortgage if the intention of the parties is apparent, or the note or bond is capable of identification from other parts of the instrument or by the aid of extrinsic evidence. This rule applies where there is a misrecital as to the amount of the note secured, or a failure to state the amount at all, but the note is otherwise fully and properly described, where the description of the note indicates that it bears interest, but fails to specify its rate or the time of payment, or where there is a mistake in reciting the date of the note, or its maturity, or in specifying the time and manner of its payment; but such error is merely clerical, and the note is nevertheless clearly identified. Nor will the mortgage be avoided by a mistake in setting forth the name of the parties to the 'note which is intended to be secured. And the omission to set forth, in the description of the note, a nugatory or unimportant clause therein, not essential to its identification, will not be regarded as material. When a note and the mortgage given to secure it mutually refer to each other, they must be construed together. 41 Corpus Juris, p. 409, par. 256.

In Polo State Bank v. Typer, 249 Ill. App. 604, we held'that, “a chattel mortgage otherwise sufficient and regular is not invalidated by reason of the fact that it does not state the date of maturity of the note secured thereby, nor the names of the payee or maker, nor what is the amount of the indebtedness of the mortgagor to the mortgagee, where by the terms of the mortgage third parties are adequately placed upon notice as to all such matters. ’ ’

Furthermore, on a bill to foreclose a trust deed, it was held that the question whether the notes produced in evidence were those described in the trust deed was one of fact upon which a finding in the affirmative was warranted, though there was a variance between the recital of the trust deed as to the place of payment of the notes and the actual fact as shown by the notes, and though an accelerating clause in the principal note was not repeated in the recitals of the deed. Chicago City Bank & Trust Co. v. Bremer, 189 Ill. App. 258-261.

In view of the state of the record we are of the opinion that the $15,000 note heretofore described was the note that was executed by the mortgagors; it is a part of the record in this cause and the court by rendering its decree so found, and we think properly so.

It is insisted by the plaintiffs in error that the right of the defendant in error to do business in Illinois is limited to life, accident and health insurance; that it was not licensed to engage in buying of promissory notes or other writing obligatory of any kind or description. The bill alleges that the defendant in error is a corporation organized under the laws of the State of New York. Under the laws of the State of New York the defendant in error was authorized to loan money upon security of improved unincumbered real estate in any State worth 50 per cent more than the amount loaned thereon provided that the security for such loan is a first lien on such real property.

The plaintiffs in error answered the bill of defendant in error and admitted that the defendant in error was organized under the laws of the State of New York, but denied that it was authorized by its charter to invest and loan money and denied that on the 10th day of July, 1924, Henry S. Kobbeman and Emma Kobbeman, two of the plaintiffs in error, delivered their note for $15,000 to the Savings Bank of Kewanee; also denied that the said bank sold the mortgage to the defendant in error. And further answering they alleged that the defendant in error was not authorized under the laws of the State of New York to purchase said mortgage and that the State of New York has by statute provided that property given as security for indebtedness must be worth at least 50 per cent more than the amount loaned thereon; and further alleged that the said property mortgaged to secure the said $15,000 note was not worth 50 per cent more than the amount loaned thereon; and that the defendant in error was not authorized by its license in Illinois to engage in the business of purchasing mortgages.

Any corporation formed under the laws of any other State or country and authorized by its charter to invest or loan money, may invest or loan money in this State. And any such corporation that may have invested or lent money as aforesaid, may have the same rights and powers for the recovery thereof as private persons or citizens of this State. Cahill’s St. ch. 32, THT 298 and 299.

The defendant in error made a prima facie case sufficient to entitle it to a decree of foreclosure by introducing in evidence the mortgage note and other preliminary proofs. It devolved then upon the plaintiffs in error to establish the defense they relied upon by their answer. Foreman Trust & Savings Bank v. Cohn, 342 Ill. 280-287.

Since the plaintiffs in error alleged in their answer that the defendant in error was not authorized under the laws of the State of New York to purchase the said note and mortgage; that the State of New York has provided by statute that property given as security for indebtedness must be worth at least 50 per cent more than the amount loaned thereon; that the property in question was not worth 50 per cent more than the amount loaned thereon; and that the defendant in error was not authorized by its license to do business in Illinois to purchase mortgages, it was incumbent upon them to prove the allegations of their answer by clear and convincing evidence. Foreman Trust & Savings Bank v. Cohn, supra; Boudinot v. Winter, 190 Ill. 394.

Plaintiffs in error have not brought themselves within the rule and established the matters and things set forth in their answer. We conclude, therefore, that the decree of the circuit court of Whiteside county should be affirmed, which is accordingly done.

Decree affirmed.


author: Mr. Presiding Justice Jett

text:
    Laurs B. Laursen, Plaintiff in Error, v. A. H. Memering & Company et al., Defendants in Error.
    Gen. No. 8,249.

      Heard in this court at the October term, 1930.
    Opinion filed March 17, 1931.
    Hall & Dusher, for plaintiff in error.
    North, Linscott, Gibboney & North, for defendants in error.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This suit was instituted on December 31, 1926, by Laurs B. Laursen, plaintiff in error, hereinafter referred to as complainant, in the circuit court of Winnebago county, against A. H. Memering & Company, a corporation, and Arthur H. Memering, Carmen Memering, Ezra M. Greenslit and Jane Greenslit, the four individuals who were incorporators of the said company, being the sole stockholders and directors, and are hereinafter called defendants. Arthur H. Memering was president of the corporation and Ezra M. Greenslit the secretary.

The original bill filed charged fraud, violation of the Illinois Securities Act, Cahill’s S.t. ch. 32, Tf 254 et seq., and that the corporation was insolvent. To the original bill a demurrer was filed which was sustained. An amended bill was filed on October 10, 1929. The amended bill charged that the four individual defendants on October 9, 1925, filed a statement in the office of the secretary of state upon which statement the secretary on October 13, 1925, executed and delivered the charter which was duly recorded in the recorder’s office of Winnebago county, Illinois; that in said statement it was represented that the defendant A. H. Memering had subscribed for and paid into the corporation in cash $2,200; that the defendant Carmen Memering had subscribed for and paid in cash $100; that the defendant Ezra M. Greenslit had subscribed for and paid into the corporation $2,200; that the defendant Jane Greenslit had subscribed for and paid in cash $100; that said statement was sworn to by each of said defendants and that said statement was untrue in that defendants did not pay into the said corporation in cash the amount mentioned; that the corporation was in fact insolvent on May 1, 1926, when the defendants sold to the complainant $4,000 worth of stock of said corporation and was known by said defendants to be then insolvent. It is also charged in said amended bill that the defendants sold for and on behalf of the corporation to the complainant its stock of the par value of $4,000, and that he paid in cash to the corporation $4,000 for said stock; that said stock came within Class “D” under the Illinois Securities Act, Cahill’s St. ch. 32,1Í 256; that the corporation had not complied with the Blue Sky Law of Illinois and that the individual defendants were not persons who were qualified under said act to sell stock for the corporation; that the defendants attempted and offered for said corporation to sell said stock to the complainant and that they finally succeeded and sold him stock as aforesaid.

It was alleged in the said amended bill that the complainant relied upon the representations of the defendants and that he would not have purchased except for representations made by them. The bill prayed "that upon a hearing the complainant recover of the defend-' ants $4,000 with interest from the date of payment with solicitor’s fees and that the court take charge of the corporation, appoint a receiver, wind up its affairs and restore to the complainant from the corporation so far as the assets of the corporation were sufficient to do so the money paid by him. Furthermore the prayer of the said bill was for general relief. ■

The defendants answered the amended bill and denied so much of said amended bill as stated that the four individual defendants had not paid into said corporation the amounts stated in the charter and alleged that each of them had paid in that amount except Arthur H. Memering and that he had paid part in cash and part in property but that the property was equivalent to the balance of the money. They denied said corporation was insolvent and denied that the stock came within Class “D” of the Illinois Securities Act but represented that the stock was individually owned by the defendants and was sold by them as individuals ; that the sale was not made in the course of successive and repeated transactions; was not sold through any broker; that no commission was paid and that the sale was a bona fide, single and isolated transaction.

The answer, while admitting the sworn statement filed with the secretary of state, stated that, so far as complainant’s rights were concerned, it was immaterial to the issues in the case even if the statements herein were false, and that even though the corporation might have been insolvent at the time of the sale, it was immaterial to complainant’s rights in this cause.

The case was heard upon the part of the complainant by the court. When the complainant rested his case the defendants moved the court to find for the defendants and to dismiss the bill for want of equity. The motion was sustained and allowed by the court and a decree ordered dismissing the bill for want of equity. The case comes here on writ of error for review.

The record discloses that Laursen, the complainant, was a blacksmith and tool maker, and skilled in ternpering steel; that A. H. Memering was also a skilled mechanic and had been foreman over the complainant in the plant of the Emmers on-Br antingham Company at Rockford. Ezra Greenslit was a bookkeeper. Memering and Greenslit with their respective wives organized the A. H. Memering and Company, a corporation. The husbands each subscribed and paid for $2,200 worth of stock in the corporation and their wives each subscribed and paid for $100 of stock. The total amount of stock subscribed and paid for was $4,600 which was the entire amount of stock then authorized to be issued, although the company could issue additional stock with the consent of the secretary of state. Complainant made a visit to the place where the corporation was doing business. He found there certain machinery for the manufacture of tools, dies, gigs, fixtures, automobile parts — a general manufacturing business — and all four of the incorporators were employed in and about the business. Subsequently at the invitation of A. H. Memering, complainant called at his home and he was asked why he did not go to work for the corporation. The complainant expressed his willingness and a desire to become interested in the business and the matter was discussed at Memering’s home in the presence of his wife and on another occasion in the presence of Greenslit. A little later on Memering called for the complainant and took him to Beloit, Wisconsin, where the complainant owned a residence property. Memering had evidently made arrangements for a loan at one of the banks in Beloit. He took the complainant to the bank and negotiated a loan of $4,000 for the purpose of buying stock in the corporation. The loan was procured, a draft was made payable to A. H. Memering and Company, a corporation. It was received by that company and deposited to its credit in a bank in Rockford. The evidence shows that on the day of such deposit various items of indebtedness of the company to the incorporators, who were the stockholders, were paid, together with other items of indebtedness aggregating more than' $1,800. The greater part of the $4,000 was expended for the indebtedness óf the corporation. The record shows that no stock was delivered to the complainant at the time he obtained the loan and caused the money to be paid to the company. Complainant among other things testified that they told him he was buying company stock and that as soon as they could hear from Springfield, meaning that as soon as they could get consent from the secretary of state to issue additional stock, it would be issued to him. He went to work in the factory and in a little more than a month and after he had several times inquired about his stock, Greenslit came to where complainant was working in the factory and tendered him two stock certificates, each for 20 shares. One of them had been issued to Ezra Greenslit and the other to A. H. Memering and both were indor'sed by the holders for transfer. Greenslit' at the time he tendered to the complainant the two stock certificates also had a paper which the complainant was requested to sign. This paper was a declaration of release from any liability under the Blue Sky Law. Complainant declined to accept the stock certificates' and to sign the release. Greenslit told him if he would not sign the paper he could not have the stock. He laid the certificates and the release upon a table and left. When Greenslit had gone from where he had tendered the stock to the complainant, Memering appeared and told the complainant that he need not sign the release and could have the stock but the complainant replied that he wanted to take the papers and make inquiries about them. The record discloses that he went to a lawyer who advised him there was something wrong with the proposal and suggested that he see another lawyer in Rockford. Complainant did as advised and refused the stock certificates.

The evidence clearly discloses that the complainant had no thought of buying out Memering and Green-slit. The entire transaction shows that ‘the incorporators, being the individual defendants, knew the company was badly in need of money and in order to meet it they proposed to sell complainant $4,000 of treasury stock. Whether they made application to the secretary of state to issue additional stock does not appear from the record. It is very evident that there was no intention to sell the individual stock of Memering and Greenslit, otherwise the money would have been received by the stockholders and put to their credit in the bank and not to the credit of the corporation as was done. The record shows that the sale of the stock was not for the owner’s account; it was for the account of the corporation. The evidence shows conclusively that the corporation and not the owners received the proceeds of the sale of the stock. Notwithstanding the fact that the corporation received the proceeds of the sale it is contended by the defendants that the stock contracted to be sold came within Class “B” and that it was an isolated sale by the owners. The statute provides (Cahill’s St. eh. 32, 11258) that the sale must have been for the owner’s account to bring it within Class “B.”

Section 3 of the Securities Act (Cahill’s St. ch. 32, li 256) classifies securities into four general divisions and are as follows:

“ (1) Securities, the inherent qualities of which assure their sale and disposition without the perpetration of fraud, which shall be known as securities in Class ‘A’;

“(2) Securities, the inherent qualities of which, or in the nature of one or both parties to the sale thereof, assure their sale and disposition without the perpetration of fraud, which shall be known as securities in Class ‘B’;

“(3) Securities based on established income, which shall be known as securities in Class ‘C’;

“(4) Securities based on prospective income, which shall be known as securities in Class ‘D’.”

Cahill’s St. ch. 32, If 261, provides: “All securities other than those falling within class ‘A’, ‘B’, and ‘C’; respectively, shall be known as securities in Class ‘D’.” The only way therefore, to determine that a stock is in Class “D” is to eliminate Classes “A”, “B”, and “C”.

The defendants evidently had been advised that they were violating the alleged Blue Sky Law in the sale of the stock in question. It will be remembered that the record discloses when Greenslit presented the certificates of stock to the complainant he also presented to him an instrument for him to sign which was to the effect that the stock sold to him was the separate and individual stock of Memering and Green-slit and was not treasury stock; that the complainant would waive all rights which he then had or might in the future have under the statutes of the State of Illinois, and particularly the Securities-Act thereof, in so far as the same does or should give the undersigned (the complainant) any civil rights of action against Memering and Greenslit. These defendants fully recognized the fact that they had violated the Securities Act and undertook to have the complainant waive any right of action that he might have against them.

Furthermore, by section 34 of chapter 32, Cahill’s St. ch. 32, If 287, which is a part of the Illinois Securities Act, it is provided: “It shall be unlawful for any officer, director, ... or for any issuer, knowing such issuer to be insolvent, to sell any securities issued by such issuer.” It is quite evident from the evidence that at the time of the sale of the stock in question to the complainant the corporation was insolvent.

On the day the deposit of $4,000 was made to the credit of the corporation, checks were drawn to three of the individual defendants, one to Jane Greenslit for $602.60, which was in payment of a note which the corporation owed her and part of the interest on the note. Another check was drawn on that day to Jane Greenslit for interest in the sum of $13.50; a check to Peoples Bank & Trust Company, to pay a note, $143.22; to A. H. Memering, a defendant, $324.60 to pay a note; a check to Greenslit for a note and interest $248; a check to Esley, who had a chattel mortgage on a part of the machinery, $530, a total of $1,862.02.

The corporation owned no real estate. It owned some machinery, tools and some equipment but of the three machines of any consequence owned by the corporation one was purchased under a conditional sales contrhct and the other two had chattel mortgages on them which were afterwards foreclosed and the machines taken under the foreclosure; the conditional sales contract was paid with the money paid by the complainant that was deposited to the credit of the corporation. The corporation had in the bank at the time of the sale only $42.46.

There is nothing in the record to show that the statute providing for the sale of Class “D” stocks had been complied with. Every sale and contract of sale made in violation of any of the provisions of the Illinois Securities Act shall be void at the election of the purchaser, and the seller of the securities so sold, officers and directors of the seller and each and every solicitor, agent or broker of or for such seller who shall have knowingly performed any act, or in any way furthered such sale, shall be jointly and severally liable in the action at law or in equity upon the tender to the seller or in court of the securities sold to the purchaser for the amount paid, the consideration given, or the value thereof, together with his reasonable attorney’s fees in any action brought for such recovery. Cahill’s St. ch. 32, if 290.

The record discloses that on the hearing and in open court the complainant tendered the two certificates of stock in question. In determining whether or not the transaction was a sale or agreement to sell and of what stock, all the documents bearing upon it, together with the whole transaction, must be construed together. It is not necessary that the contract or agreement be in writing. It may be in writing on one side and acted upon by the other side. It is sufficient if, taking the whole transaction into consideration, it can be seen that it was a sale or an offer to sell which was so far consummated that the purchaser paid his money. Dobal v. Guardian Finance Corp., 251 Ill. App. 220-224.

We have already seen that at the close qf the testimony on the part of the complainant the defendants made a motion for a directed verdict, which motion was sustained, and the bill was dismissed for want of equity.

“The courts do not recognize a practice of making a motion in a case on final hearing before a chancellor to dismiss the bill on the evidence submitted at any stage of the case. ... A party has a right to submit his cause to the chancellor upon the evidence adduced, if he sees fit, and the motion at the close of complainant’s case, if made, was neither more nor less than a submission of the cause to the chancellor.” Koebel v. Boyle, 256 Ill. 610-614; Abel v. Flesher, 296 Ill. 604-605; Thorworth v. Scheets, 269 Ill. 573-576.

Where a motion is made by the defendant at the close of complainant’s case to find a decree for the defendants, it amounts to a submission of the cause, and upon appeal, if the reviewing court decides that ■the evidence then in the record was sufficient to justify a recovery by the complainant, the court will reverse the decree and remand the cause with directions to enter a decree for the complainant. Cases will not he tried piecemeal. Koebel v. Doyle, 256 Ill. 610, 614-616; Thorworth v. Scheets, 269 Ill. 573, 576-584.

The evidence shows that $500 was a reasonable solicitor’s fee for the services performed by the solicitors for the complainant in the circuit court. There is nothing before us to base the finding for solicitor’s fees for services in this court. We are of the opinion the complainant is entitled to the relief prayed for.

We conclude, therefore,'that the decree of the circuit court of Winnebago county should be reversed and the cause remanded with directions to enter a decree for the complainant and against the defendants for the sum of $4,000 and costs of suit and for an additional sum of $500 solicitor’s fees for the solicitors of complainant.

Reversed and remanded with directions.


author: Mr. Justice Jones

text:
    Edward J. Jacob, Appellee, v. City of Peoria, Appellant.
    Gen. No. 8,321.

      Heard in this court at
    the February term, 1931.
    Opinion filed March 18, 1931.
    B. H. Badley, for appellant. .
    Ira J. Covey and Edwin L. Covey, for appellee.
   Mr. Justice Jones

delivered the opinion of the court. .

The plaintiff, Edward J. Jacob, was engaged by the election commissioners of the City of Peoria to print the specimen ballots, official ballots, and cards of instructions to voters for the general primary election of April 8, 1930, to be used in that city. The primary was for the nomination of candidates for the United States senate, State officers, county officers, and other officers as provided by law. Plaintiff fully complied with his contract and his charges amounted to $4,087. He rendered a bill for that sum to the election commissioners, who approved and transmitted it to the city council of the City of Peoria. The city council rejected it on the ground “that the said bill is for the printing of ballots and cards of instruction to voters for an election for the choice of national, state, and county officers, and as such, is not a proper charge against the City of Peoria.” This suit in assumpsit was thereupon brought against the city. The original declaration contained only the common counts, but later a special count was filed and the common counts dismissed. A demurrer to the special count was overruled. The city elected to abide by its demurrer and a judgment was rendered in favor of the plaintiff and against the city for the full amount of the claim and costs of suit.

The City of Peoria, by a popular vote in 1914, adopted the benefits of “An Act regulating the holding of elections and declaring the result thereof in cities, villages, and incorporated towns in this State.” This Act is known as the “City Election Act” and was passed and approved in 1885. Section 1 of Art. VII of said Act, Cahill’s St. ch. 46, if 358, after providing that counties shall pay the salaries of the commissioners and chief clerks, contains the following language: — “All expenses incurred by such board of election commissioners shall be paid by such city.”

It is the contention of the plaintiff that the expenses of printing ballots and instruction cards for a general primary election are chargeable against the city by reason of the above quoted provision of section 1 of Art. VII of the City Elections Act, Cahill’s St. ch. 46, if 358; but the city contends those expenses are chargeable against the county of Peoria, under the provisions of sections 1 and 2 of “An Act to provide for the printing and distribution of ballots at public expense and for the nomination of candidates for public offices, to regulate the manner of holding elections and to enforce the secrecy of the ballot.”, as approved June 22, 1891, Cahill’s St. ch. 46, HIT 202 and 203. This Act is known as the “Ballot Law.” Section 1 thereof requires that in all elections (with a few specified exceptions), the voting shall be by ballots printed and distributed at public expense as thereinafter provided, and no other ballot shall be used. This pertinent observation may be here made: — prior to the enactment of that section, there was no law providing for the printing and distribution of ballots at public expense. Theretofore any candidate, set of candidates, groups, or political parties could have ballots printed and distributed upon the streets and at the polls at their own expense. Voters were publicly and openly importuned. It was not a public function to print and distribute ballots. Up to 1891, the only statutory provision concerning the preparation of ballots was to be found in sections 52 and 53 of the Election Act of 1872, Cahill’s St. ch. 46, HH 53 and 54. Those sections are as follows:

‘ ‘ Sec. 52. The manner of voting shall be by ballot. The ballot shall be printed or written, or partly printed and partly written, upon plain paper, with the name of each candidate voted for, and the title of the officers. When the ballot is printed, the same shall be printed upon plain paper, in plain type, in straight lines, with a blank space below each name, of a width not less than equal to the width of the line in which the name is printed. ’ ’

“Sec. 53. The names of all candidates for which the elector intends to vote shall be written or printed upon the same ballot and the office to which he desires each to be elected shall be designated upon the ballot.”

The Constitution .of 1870 contains the simple provi- ■ sion that all votes shall be by ballot." (Const. 1870, Art. VII. sec. 2.) This provision was taken from the Constitution of 1848. (Const. 1848, Art. VI, sec. 2.) The Constitution of 1818 (Art. II. sec. 28) required all votes to be given viva voce until altered by the General Assembly. By an act of that body, effective June 1, 1829, it was provided, by section 10 thereof, that “The manner of voting shall be by the elector’s approaching the bar, in the election room, at any time when the poll is open, and addressing the judges of the election in his proper person, and with an audible voice, to be heard by the judges and clerks of the election, to mention by name the persons he intends to vote for to fill the different offices, which are to be filled at the said election and the clerk shall enter his name and vote accordingly, and he shall then withdraw: Provided, that a voter may vote by presenting an open ticket to the judges containing the names of the persons for whom he votes and the offices; and the said judges shall read the same to the voter and the clerks with the assent of the voter, set the same down in their books as in other cases.” These provisions were substantially re-enacted in section 15 of the Elections Law of 1845.

This historical review convincingly discloses the fact to be that the General Assembly of the State of Illinois at no time prior to the enactment of the Ballot Law of 1891 ever contemplated the printing of ballots at public expense, and consequently no law enacted before that time ever provided for the payment of the expense of printing ballots. Open ballots and oral declarations of the voters had been a fixed policy, but this policy was abandoned by the enactment of the law of 1891, requiring closed and secret ballots to be printed and distributed at public expense.

It needs no argument to fortify the assertion that if the only law which ever required the printing of ballots at public expense, further provided what governmental body should pay it, that law is controlling upon the question of expense to the exclusion of all other laws. Section 2 of the Ballot Law, Cahill’s St. ch. 46, ff 203, does that precise thing. By unambiguous language, it provides that the printing and delivery of the ballots and cards of instruction, shall (1) for municipal elections in cities, villages, and incorporated towns be paid for by such cities, villages, and incorporated towns, and (2) in town elections by the town, and (3) in all other elections, the printing of ballots and cards of instruction for the voters of a county shall be paid for by the county. The term “general election” is defined to be any election held for the choice of a national, state, judicial, or county officer. The term “city election” is defined to be any municipal election held in a city, village, or incorporated town.

There is little room for confusion Over the provisions of this section. The expense of printing ballots for city elections shall be paid by the municipality. The expense for town elections shall be paid by the town, and the expense for every “general election,” as above defined, shall be paid by the county.

The election for which the ballots were printed was held under the Primary Elections Law and not the Ballot Act. However, section 25 of the Primary Elections Law, Cahill’s St. ch. 46,1J 460(25), provides that the expenses of conducting such primary . . . shall be paid in the same manner and by the same authorities or officers respectively as in the case of elections. Therefore the liability for the expense of printing ballots for a primary is the same as it is for an election.

Section 15 of the Ballot Law, Cahill’s St. ch. 46, H 218, designates the officers who shall have charge of the printing and distribution of the ballots. County clerks are charged with the printing and distribution of ballots for all general elections in their respective counties. City, town, and village clerks are charged with the printing and distribution of ballots for all city elections, and town clerks are charged with the printing and distribution of ballots in all town elections. In order that there might not be any overlapping of duties or responsibilities in counties containing one or more cities which have adopted the City Elections Act of 1885, a proviso was incorporated in said section 15 of the Ballot Law to the effect that in cities, towns, and villages having a board of election commissioners, such board shall have charge of the printing and distribution of the ballots to the judges of the elections within the territory under their jurisdiction. This section is silent about the expenses of printing ballots, and nowhere in the Act can anything be found which either expressly or by implication places the liability for such expenses upon any body politic, except the county. The Ballot Law is complete within itself. Its general provisions were borrowed from an Australian Ballot Law, Its principal objective was to enforce the secrecy of the ballot as contra-distinguished from the old viva voce or the open ballot system of voting. In order to obtain that end, complete and comprehensive provisions were made for the printing and distribution of ballots at public expense. It made no reference whatever to the City Elections Act of 1885. It was not amendatory of that Act nor did it engraft any of the provisions of that Act into its scheme for enforcing the secrecy of the ballot by printing and distributing ballots at public expense.

- The argument that cities which have adopted the City Election Act must pay for the printing of ballots used at a general election centers around the language of said section 1 of Art. VII of said Act, Cahill’s St. ch. 46, 1Í 358. As heretofore noted, that section provides that the county shall pay the salaries of the commissioners and chief clerks and then provides that “all expenses incurred by such board of election commissioners shall be paid by such city. ’ ’ Manifestly the expense of printing ballots was not within the. purview of that Act, for such an expense was unheard of and not contemplated in 1885, when it was passed. The words “all expenses incurred” could have had no other meaning than all legal expenses incurred. The cost of printing ballots was not a legal expense at that time and did not become so until 6 years later when such an expense was commanded and definite provisions for its payment were prescribed by the Ballot Law of 1891.

But it is said that because the City Elections Act has been repeatedly amended since the passage of the Ballot Law and the provision that “all expenses incurred by such board of election commissioners shall be paid by such city” has been carried forward each time as a part of the Act as amended, therefore, it was the intention of the legislature to add the burden of printing ballots to such cities.

There is never any need for construction when a statute is plain and unambiguous. (People v. Atchison, Topeka & Santa Fe Ry. Co., 201 Ill. 365.) In determining the meaning of the statute, the court will have regard to existing circumstances or contemporaneous conditions, and will also look to the objects sought to be obtained by the act and the necessity for its adoption. (People v. Harrison, 191 Ill. 257.) And the circumstances surrounding the enactment must be kept in mind. (Alton & Southern R. Co. v. Vandalia R. Co., 268 Ill. 68; People v. Fox, 269 Ill. 300; Dole v. Hardinger, 204 Ill. App. 640; Hoyne v. Danisch, 264 Ill. 467.)

The contention that subsequent amendments to the City Elections Act which did not change the phraseology of section 1 of Art. VII have given the section a different meaning than it originally had, does violence to well established principles of statutory construction. Bearing in mind that the legislature, in enacting that section, did not contemplate the printing of ballots at public expense, no number of subsequent amendments to it would be sufficient to change the meaning of the language originally employed and carried forward into such amendments. The meaning which the language originally had must be accepted in the same sense in subsequent enactments, unless the contrary clearly appears from the context of the amendment. A statute does not operate retrospectively, unless the intention of the General Assembly to give it such effect is clearly and unequivocally shown by its provisions. (People v. New York, C. & St. L. Ry. Co., 316 Ill. 452.) In Svenson v. Hanson, 289 Ill. 242, it was contended that section 5 of the Conveyance Act of 1827, was repealed by the amendatory Act of 1917. The court held that “It is a familiar rule, that when the legislature enacts an amendatory statute, providing that a certain act shall be amended so as to read as repeated in the amendatory act, and no change is made in the wording of the old act, such portions of the old law as are repeated, either literally or substantially, in the new act are to be regarded as a continuation of the old law and not the enactment of a new law on that subject.”

The Supreme Court in Spiehs v. Insult, 278 Ill. 184, commented on the meaning of section 81 of the Practice Act, with special reference to the provisions concerning extensions of time for filing a bill of exceptions, and said, “This part of section 81 was retained in the amended section without change. It is elementary that when the legislature, by an amendatory act, retains in a new statute the same words and phraseology that had been contained in a former statute, it must be presumed that it used such words and phraseology in the sense that had already been placed upon them by judicial construction. (Citing cases.) Indeed, this result is especially provided by section 2 of chapter 131 of our statutes, which reads: ‘The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such prior provisions, and not as a new enactment.’ ”

When the General Assembly amends a statute and no change is made in parts of it, the repeated portions, either literally or substantially, are regarded as a continuation of the existing law and not as an enactment of a new law upon the subject. (People v. New York, C. & St. L. Ry. Co., supra; and cases cited.) If the language employed in section 1 of Art. VII of the City Elections Act was not intended in 1885 to impose a liability for printing ballots upon a municipality, then that language, when re-employed in a subsequent statute, can have no meaning different than that which it had in the prior statute.

Applying the above rules of construction, but one deduction can be made, and that is that neither the City Elections Act of 1885 nor any of the subsequent amendments thereto have ever provided that cities shall pay the cost of printing ballots for a general election.

While amendments have been made to certain sections of the Act of 1885, expressly casting the burden ■ of election expenses upon various governmental bodies, no such amendment has ever been made to section 1 of Art. VII. For instance, in 1911, the legislature amended section 5 of Art. VII by requiring a township to pay all expenses connected with the registration and election of township officers only, and again in 1917, that section was further amended by requiring park boards and school boards to pay all expenses of an election held for the purpose of electing a member of a board, or for the purpose of voting upon a proposition or propositions submitted by any such board and for no other purpose. But the only provision which can be found anywhere for the payment of expenses of printing ballots for a general election is contained in section 2 of the Ballot Act of 1891, Cahill’s St. ch. 46, TT 203.

Several Supreme Court cases have been cited by appellee to support his contention that- the defendant city is liable, but they are not in point upon the question in this case and are readily distinguishable' both as to the facts and the law.

Wetherell v. Devine, 116 Ill. 631, was decided in 1886. The constitutionality of the City Election Law of 1885 was challenged by a bill in chancery to enjoin the paying of warrants drawn by the county judge for expenses incurred by the board of election commissioners. No evidence was heard, but a demurrer to the bill having been sustained, the bill was dismissed and an appeal taken. The Supreme Court held the Act valid and affirmed the decree which dismissed the bill for want of equity. The case did not and could not involve expense created under the Act of 1891.

Bolles v. Prince, 250 Ill. 36, related to the expenses of conducting the registration and election in that part of the town of Danville which is located within the City of Danville. The item of expense included compensation of judges and clerks of election, rent, and printing. Whether or not the item of printing included the expense of ballots is not disclosed by the opinion. If such item was not for printing ballots, but was for printing notices, poll books, or registration books, then every item mentioned comes definitely within the purview of legal expenses contemplated by the Act of 1885. We assume the item was not for printing ballots, because the opinion nowhere makes reference to the Ballot Law. The decision rests solely upon a consideration of the constitutionality of the City Elections Act.

Johnson v. County of Winnebago, 256 Ill. 276, involved only miscellaneous election expenses comprehended by the Act of 1885 and did not involve any cost of printing ballots. The views expressed by us are entirely compatible with the decision in that case, in which the Supreme Court said that “The expenses here involved undoubtedly come under the heading of ‘miscellaneous expenses’ and having been incurred by the board of election commissioners, under the holding in the Bolles case, must be paid by the City of Rockford.” It may be taken as a natural corollary that if charges do not come under the heading of “miscellaneous expenses” but come under the heading of “printing ballots” as provided for by the Act of 1891, ■ then the expense must be paid according to the provisions of that Act, and not according to the provisions of the Act of 1885.

Renneker Co. v. South Park Com’rs, 332 Ill. 393, is the only ballot printing case cited. The question in that case was whether the City of Chicago or the park board should pay the expense of printing ballots to be used solely within the park district in voting upon a proposed bond issue of the district. The election in the park district was held on the same day as the general election of November 4,1924. Because of this coincidence, the park board claimed the expense of printing all ballots, including those on the bond issue proposition, was upon the city and that the election commissioners having ordered the printing, the city was liable for the expenses thereof. The Supreme Court held that “The fact that the election upon the question of issuing bonds by the park commissioners was called and held the same day as the general election does not change the character of the election as to the bond issue. Upon that question the election was a special election. (Citing cases.) The park bond issue election was a special election for the purpose of voting on one question only, notwithstanding it was held at the same time the general election was held, and paragraph 362 of the statute (City Election Act, Sec. 2, Art. VII) provides that the park hoard ‘ shall pay the expenses of such election. ’ ”

A study of the above cases will show that the question in this case was not involved in any of them. There is no doubt that the legislature has authority to make an apportionment of the expense of elections among the various governmental subdivisions of the State and require each to bear its portion. In exercising that right, it has determined what subdivision shall pay the compensation of judges and clerks and other election officials; what subdivision shall defray the miscellaneous election expenses; what subdivision shall pay the cost of printing ballots in general elections ; and what subdivision shall defray the expenses in certain special elections. The provision of law for defraying the cost of printing ballots in general elections is definitely placed upon the respective counties and nowhere else. The cost of printing ballots for primaries to nominate national, state, and county candidates is the same. Hence we conclude that the demurrer in this case should have been sustained and the judgment herein is accordingly reversed and the cause remanded with directions to the circuit court to sustain the demurrer, and to enter such further orders as will be in conformity with the views we have expressed.

Reversed and remanded with directions.


text:
    Harry W. Steinberg, Appellee, v. Northern Illinois Telephone Company, Appellant.
    Gen. No. 8,259.

      Heard in this court at the October term, 1930.
    Opinion filed March 25, 1931.
    C. B. Chapman and H. H. Bayne, for appellant.
    Hibbs & Pool, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

Harry W. Steinberg recovered a judgment against the Northern Hlinois Telephone Company for $2,600 in an action on the case for personal injuries. He was injured by falling down a stairway leading from the street to the telephone exchange of the defendant located in the second story of a building in the Village of Sheridan. Long distance calls by the public in general were accepted and made by defendant at its telephone exchange. The only means of ingress and egress to the exchange was by an inclosed stairway of two flights at the west end of the building. The first flight had 13 steps leading north from the street to a landing. The second flight had four steps leading east from the landing to the second floor of the building. The stairway was steep and the steps were eight or nine inches wide. At the top of the second flight of stairs was a door with glass in its upper portion. This door opened into a hall about 30 feet long. At the east end of the hall, a door opened into the telephone exchange. There were four rooms on each side of the hall. One of them was used as a storeroom and the others were empty at the time of the accident. Along the stairway was a balustrade or handrail. In the upper hallway and east of the glass door there was an electric light, but it did not shine on that portion of the stairs below the landing.

On the night of November 25, 1924, plaintiff, who was a traveling optometrist, residing in the City of Chicago, went to the exchange to put in a call to his home. After completing his errand he left the telephone office, and in attempting to walk down the stairs, fell, and received the injuries mentioned in the declaration. ' There was no light in the stairway at the time of the accident and the first flight of stairs from the ground to the landing was dark.

The declaration avers that plaintiff was in the exercise of due care for his own safety; that it was the duty of defendant to use reasonable care to keep the stairway and hall in a reasonably safe condition and sufficiently lighted, so that patrons of the exchange could see their way sufficiently to avoid the danger of falling, and that the defendant neglected to do so, whereby the plaintiff was injured.

Defendant filed a plea of not guilty and also a special plea averring that it did not, at the time of the accident, have a lease for or have control over said stairway or landing, and that there was therefore no duty incumbent upon it to keep the same in a reasonably safe condition or sufficiently lighted. A demurrer to the plea was overruled.

The testimony shows that defendant installed and maintained an electric light in the upper hallway, and that one of its employees repeatedly swept the hall and stairway. While the evidence fairly tends to show that defendant was in the control of the hall and stairway where the accident occurred, it was not necessary, under the law, for plaintiff to show that defendant was the owner, lessee, or even in control of the hall and stairway. Defendant was maintaining a public telephone exchange. The only means of access to it was through the stairway and hall and the public was impliedly invited by the defendant to use them. Whether or not the defendant had leased or had control of the hall and stairway is immaterial. An invitation to enter premises carries with it the duty toward the person invited to provide reasonably safe means of ingress and egress. (45 C. J. 834 Negligence.) An owner or occupant of land who, by invitation, express or implied, induces or leads others to go upon premises for any lawful purpose is liable for injuries occasioned by his negligent failure to keep the land or its approaches in a reasonably safe condition. (Calvert v. Springfield Electric Light & Power Co., 231 Ill. 290; Bennett v. Louisville & Nashville R. Co., 102 U. S. 577 [26 U. S. L. Ed. 235]; 20 R. C. L. Negligence 56-57.) Even a trespasser on land has been held to be liable to his injured invitees. (Collins v. Hazel Lumber Co., 54 Wash. 524, 103 Pac. 798.)

Although there was a light in the upper hallway, there was no light in the stairway previous to the accident. In ascending the stairs, plaintiff took hold of the balustrade or handrail. As he attempted to descend, he reached the landing safely, but the lower part of the stairway being in darkness, he could not see the balustrade and fell, breaking his nose, lacerating his face, knees, and elbows, severely spraining his wrists, and suffering an injury to his abdomen below the ribs on the right side. The evidence does not support the contention that plaintiff was not in the exercise of due care.

The trial court permitted it to be shown that a light was installed at the landing after the accident. This evidence was admitted upon the theory that it tended to show the defendant was in the control of the stairyvay. Afteryyards? thig testimony was excluded and the jury was instructed not to consider it. Under our view of the law applicable to this case, the questions of ownership and control are of little consequence. Regardless of those questions, it was defendant’s duty to use reasonable care to make the entry reasonably safe for its invitees. Whatever error, if any, there was in the court’s ruling was harmless.

It is suggested that this rule would render a tenant in a large office building liable for injuries sustained in an elevator accident, although he had no control over the elevator or its operation. No sound reason can be advanced why a person should be excused from liability for injuries when he knowingly permits or invites his patrons to use an unsafe means of ingress and egress to and from his office. If he knows the means are unsafe or has good reason for knowing it, he should not invite his patrons to use them. If he is negligent in that regard and injury results, he has no cause to complain if he is asked to respond in damages. It makes no difference that he is only a tenant. The landlord may also be liable. (Mueller v. Phelps, 252 Ill. 630.) Nevertheless, if a person who is not aware of the unsafe condition is invited into the danger by a tenant who has knowledge of the fact, the tenant may be required to answer for the consequences of his invitation.

Therefore defendant’s instruction No. 12 was properly refused. It stated that when a landlord owns a two-story building with rooms on the second floor, which are rented to various tenants, and which floor has a stairway leading to it for the common use of the tenants for ingress and egress, the duty is upon the landlord and not upon the tenants, or any of them, to keep the stairway in reasonable repair and condition for use, unless there is an agreement between the landlord and his tenants that they shall keep the stairway in such repair. The instruction states a correct rule of law as between the landlord and his tenants, but not as to third parties. As to such parties, the landlord or the tenant or both may be held responsible for damages, all depending upon the circumstances of the case.

Plaintiff’s instruction No. 1 told the jury that in determining the issues in the case, they should be governed by the instructions and by the evidence, facts, and circumstances proven in the case, “in the light of their common observation and experience as men of ordinary affairs of life.” It is quite proper for the jury to determine the facts in such light, but they are not authorized to determine the law in any such manner. They must accept the law as laid down to them by the court in its instructions.

The second instruction given on behalf of the plaintiff also incorrectly stated the law. It dealt with the management and control of the stairway and directed the jury to find a verdict for the plaintiff, if they found that the stairway was under the management and con- . trol of the defendant, and that the plaintiff while descending said stairway used reasonable care for his own safety and fell down said stairway because it was not sufficiently lighted and was injured thereby. This instruction required far more of the plaintiff than he was bound to prove. He did not need to prove that the defendant had the management or control of the stairway and the direction for a verdict depended on the proof of that fact. The defendant could not have been injured by the instruction. Whatever error was committed in giving it or in giving plaintiff’s instruction No. 1 was harmless and the judgment cannot be reversed because of such error.

An objection was made to portions of the closing argument of counsel for plaintiff. That part of the argument was provoked by an apparent effort of defendant’s attorney to arouse a racial prejudice against plaintiff. While the rule is that misconduct on the part of one attorney will not excuse misconduct on the part of his adversary (People v. Saylor, 319 Ill. 205), still, in our opinion, the remarks of counsel had no substantial bearing on the case.

The court sustained an objection to a part of the argument of the attorney for the defendant. A witness had testified to going up and down the stairway over a period of 14 years. In the argument counsel for defendant stated in substance that the stairway could not have been a dangerous one to those in the exercise of ordinary care and cited the case of this witness, and said she was unhurt and able to be in court. An objection was sustained to this line of argument, on the ground that the evidence did not show that she had ever gone up or down the stairway in the nighttime. It is obvious that the court correctly ruled upon the objection.

The damages awarded are not excessive and the verdict vin all respects appears to be fully supported by the evidence. The judgment is therefore affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Matchett

text:
    Mildred Nosko, a Minor, by Samuel Nosko, her Father and Next Friend, Defendant in Error, v. C. J. O’Donnell, Plaintiff in Error.
    Gen. No. 34,723.

      Heard in the first division of this court for the first district at the October term, 1930.
    Opinion filed March 23, 1931.
    Rehearing denied April 6, 1931.

      John A. Bloomingston and Jambs A. Tracy, for plaintiff in error.
    Gallagher, Rosenberg & Richter, for defendant in error.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This is a writ of error by defendant to reverse a judgment for $7,000 in favor of the plaintiff, entered on the verdict of a jury in an action on the case for personal injuries, motions for a new trial, to set aside an answer to an interrogatory and in arrest having been overruled.

The declaration was in six counts, in the first of which plaintiff charged in substance that on September 3,1926, defendant owned, controlled and was driving a certain motor truck on Elston Avenue (a public highway in the City of Chicago, running northwest and southeast) and near its intersection with another public highway, Central Avenue, which ran north and south; that plaintiff was a child of 10 years of age and was riding as a guest in a Ford automobile driven and operated by another person in a northwesterly direction along said Elston Avenue and which turned and was driven in a southerly direction over Central Avenue; that plaintiff was in the exercise of due care, and that defendant so carelessly drove and managed the motor truck that the same ran into the Ford car with great force and violence, injuring plaintiff. Other counts alleged negligence of defendant in driving at a dangerous rate of speed, in driving his truck carelessly on the left of the center of Elston Avenue, in failing to diminish the speed as he approached the crossing and in driving at a speed in excess of 15 miles an hour, contrary to the statute.

The sixth count charged that defendant “wilfully and wantonly drove and operated his said motor truck at a high and dangerous rate of speed, to wit, 25 miles an hour, to the left of the center of said Elston Avenue and up to and across the intersection” without diminishing the speed, sounding a horn or giving any warning.

At the close of the evidence and after giving instructions, the court at the request of plaintiff and over the objection of defendant submitted to the jury this interrogatory: “Was the defendant Charles J. 0’Donnell guilty of wanton and wilful negligence?” The jury returned an affirmative answer to said interrogatory.

Defendant insists that there is no evidence to justify the special finding; that the so-called wilful count will not support a judgment; that the interrogatory was improper in form and not supported by the declaration, and that the court erred in giving and refusing instructions. The last is, in our opinion, the controlling question in the case.

In instructing the jury the court proceeded upon the theory that there was evidence tending to support the sixth count of the declaration, which charged that defendant was guilty of wilful and wanton conduct. At the request of plaintiff the court instructed:

11 The jury áre instructed that as to the charge in the sixth count of the declaration, of wanton and wilful negligence, that an intentional disregard of a known duty necessary to the safety of the person and property of others and an entire absence of care for the life, person and property of others, such as exhibits a conscious indifference to the consequences, makes a case of constructive or legal wilfulness such as charges the person whose duty it was to exercise care with the consequences of a wilful injury, but the jury are further instructed that the court does not mean to express an opinion as to whether the defendant was guilty of negligent conduct as charged in the declaration or whether such negligent conduct, if any, amounts to wantonness and wilfulness but those questions as to negligent conduct and as to whether the negligent conduct would amount wantonness and wilfulness are questions entirely for the jury to determine from all the circumstances, facts and evidence in proof in this case. ’ ’

By another instruction, given at the request of defendant, the court told the jury:

“ . . . ordinary care and prudence is the exercise of the care which every person of common prudence bestows upon his or her affairs or concerns, and the prudence and the vigilance which reason and law require a person to exercise for his or her own safety, must be proportionate to the danger and exercise with reference to the situation and position which such person is about to take or in which such person finds themselves or herself, and in this case, if the plaintiff by the exercise of such degree of care on his part at and just before the time of the happening of the accident in question, would have avoided or escaped the injury, then the plaintiff cannot recover in this.case, and your verdict should be not guilty.”

By another instruction, given at the request of plaintiff, the jury was told in substance that although defendant was guilty plaintiff could not recover unless she was in the exercise of care for her own safety.

It therefore appears that the court at the request of plaintiff instructed the jury upon the theory that there was evidence tending to sustain the sixth count of the declaration, which charged wilfulness and wantonness; that thereafter the court at the request of both parties gave instructions which entirely disregarded that theory, and that these instructions having been given, the court, over the objection of defendant, submitted to the jury a special interrogatory upon the theory that there was some evidence in the record tending to sustain the count charging wilfulness and wantonness. There was no instruction which explained to the jury the fundamental differences, from the viewpoint of the law, of a case based upon a count which charged wilfulness and wantonness and one based upon mere negligence. It is error to submit such an interrogatory or to give such an instruction where there is no evidence from which the jury can reasonably find that defendant is guilty under a wilful and wanton count. Chicago City Ry. Co. v. Jordan, 215 Ill. 390; Aurora, E. & C. Ry. Co. v. Gary, 221 Ill. 29.

Are there facts here from which a jury could reasonably have found defendant guilty as charged in the sixth count? The facts which appear are that the accident occurred on September 3, 1926, at or near the intersection of Elston Avenue and Central Avenue. Defendant at that time was driving an empty two and a half ton truck southeast on Elston Avenue. Plaintiff, a child of 10 years, was riding in the rear seat of a Ford automobile driven by her father. Her father and mother rode in the front seat. The Ford automobile was being driven northwest on Elston Avenue, and the evidence for plaintiff tends to show that the father just as he drove on the crossing stopped for a moment at a cement strip of ground on Central Avenue, held out his hand, sounded his horn and then turned south in Central Avenue at a speed of two or three miles an hour; that he made the turn and was going south in Central Avenue and when just at the south edge of the cement paving the Ford automobile was struck on the right side by defendant’s truck; that the wheels were broken and the automobile pushed sidewise a distance of about 35 feet; that about the time the automobile was turned, the truck was something like 150 or 200 feet away and was proceeding at a speed of 20 to 30 miles an hour.

The evidence for plaintiff tends to show further that defendant did not slacken his speed after approaching the intersection, while the evidence for defendant is to the effect that there was a truck ahead of the Ford automobile going northwest on Elston Avenue, and that as this truck was about to pass defendant’s truck, the automobile in which plaintiff was riding suddenly turned to the left from behind this other truck and in front of defendant’s truck and that,the collision occurred under these circumstances.

The question of whether defendant was negligent was under such facts clearly a question for the jury. It is not urged by defendant that the verdict of the jury is in this respect against the weight of the evidence.

However, the question of whether there was any evidence from which the jury could reasonably find that the conduct of defendant was wilful and wanton presents an entirely different question. The distinction between conduct which is wilful and wanton and negligence which is not wilful and wanton, is not easy to define. It is well settled, however, that causes of action based upon the one differ fundamentally in their nature and legal consequences from causes of action based upon the other. Robbins v. Illinois Power & Light Corp., 255 Ill. App. 106. Thus contributory negligence, which is a complete defense to an action for mere negligence, is no defense at all where the cause of action is based upon conduct which may properly be defined as wilful and wanton. Further, exemplary or punitive damages may be allowed in an action based on wilful and wanton conduct but may not be allowed in an action brought for mere negligence. Primarily, the words “wilful and wanton” convey the thought of intentional injury, and this is undoubtedly the reason that contributory negligence is not allowed as a defense to an action charging facts which constitute wilfulness and wantonness. This does not mean that there must be proof that defendant was actuated by ill will (Illinois Cent. R. Co. v. Eicher, 202 Ill. 556), but a consideration of the cases discloses that the conduct which in law will be held wilful and wanton must be either such conduct as intentionally inflicts an injury or conduct which ethically, under the facts and circumstances appearing, is the equivalent thereof. 20 R. C. L., section 15; 45 Corpus Juris, sections 37-49.

From the recent cases in our Supreme Court (most of which are cited by plaintiff) we gather there are at least four different classes of conduct which may properly be regarded as wilful and wanton, namely (1) where defendant has inflicted an intentional injury ; (2) where defendant has failed to exercise ordinary care when a known and extraordinary danger is imminent (Walldren Express & Van Co. v. Krug, 291 Ill. 472); (3) where a defendant through recklessness, regardless of the danger to another, has carelessly failed to discover an extraordinary and impending danger which could have been discovered by the exercise of ordinary care (Brown v. Illinois Terminal Co., 319 Ill. 326); (4) carelessness so gross in its nature as to indicate a mind reckless and regardless of consequences (Bremer v. Lake Erie & Western R. Co., 318 Ill. 11). These cases further hold that ordinarily the question of whether a defendant is guilty under a wilful and" wanton count is a question for the jury, provided there is any evidence in the record from which a jury can reasonably find that defendant is guilty of such conduct.

The parties to this cause have made statements of fact, as hereinbefore recited, but neither party has stated any facts from which a jury could reasonably find this defendant to be guilty of wilful and wanton conduct. There is, of course, no evidence of an injury intentionally inflicted. It is asserted (although without reference to any place in the abstract from which it can be verified) that defendant was driving his truck on the wrong side of the street; but that fact, if it is a fact, is not shown to have been in any way the cause of the accident. Proof was offered tending to show that defendant was driving his truck at a speed of 25 miles or more per hour, but no evidence was introduced tending to show that such speed for an empty truck, under circumstances which the evidence here discloses, was unusual. There is no statement of any other fact from which the quality of wilfulness and wantonness in the conduct of defendant can be inferred. The question of wilfulness and wantonness, as we have already pointed out, was taken out of the case by instructions given at the request of both parties which entirely disregarded it. In Chicago City Ry. Co. v. Jordan, above cited, the trial court submitted several interrogatories, one of which was as to whether the defendant’s servants were guilty of wantonness or recklessness in driving and managing the car in question, and also gave at the request of the plaintiff two instructions authorizing a recovery on the theory of wilful or wanton injury. The Supreme Court held that there being no evidence upon which to base either the instructions or the interrogatories, it was erroneous to give them.

We think, too, the form of the interrogatory as to wilful and wanton conduct was objectionable in that it did not submit to the jury for its determination an ultimate fact arising under the pleadings (Chicago and Northwestern Ry. Co. v. Dunleavy, 129 Ill. 132), or probative facts from which the ultimate facts would necessarily result. The instruction and the interrogatory both tended to confuse the jury in regard to the issues of fact which they were required to decide. We have already stated that the legal distinction between actions for mere negligence and actions for wilful and wanton conduct is clear and fundamental. A declaration may properly include count's for both causes of action, but in such case the instructions to the jury should clearly and plainly point out the distinction between these causes of action, and unless this is done confusion is certain to result. We hold that as there was no evidence submitted to the jury from which they could reasonably find the conduct of defendant to be wilful and wanton, it was error for the court to instruct the jury upon that theory, and that the interrogatory should not have been submitted to the juiy.

There were other instructions requested by defendant but refused by the court which should have been given. The court was requested by defendant to instruct the jury:

‘ ‘. . . that the plaintiff is required by law to prove her case by a preponderance of the evidence before she can recover. If the plaintiff in this suit has not so proved her case or if the evidence is evenly balanced so that the jury are in doubt and unable to say on which side is the preponderance of the evidence, or if the preponderance of the evidence is in favor of the defendant, then in either of these cases the verdict should be not guilty.”

It was held error to refuse this instruction where the subject matter of it was not covered by any other in Chicago Union Traction Co. v. Mee, 218 Ill. 9, 14. We find no other instruction given here which covers fully the subject matter of this one. See also Horne v. Walton, 117 Ill. 130, 136, and Johnson v. Gustafson, 233 Ill. App. 216.

Defendant also’ contends that the court erred in refusing to give as requested by defendant an instruction that the marring of personal appearance and humiliation resulting from the contemplation of bodily disfigurement are not elements entering into computation of pecuniary damages for personal injuries sustained by reason of alleged negligence, and it is asserted that the question of law raised by the refusal of the court to give the instruction “has never been put squarely to the Supreme Court.” Defendant says the question was not before the court at all in Chicago City Ry. Co. v. Smith, 226 Ill. 178. We do not so construe that case. Moreover, the question was passed on in Fitzgerald v. Davis, 237 Ill. App. 488, and we adhere to that decision.

For the errors pointed out the judgment of the trial court is reversed and the cause is remanded for another trial.

Reversed and remanded.

MoStjrbly and O’Cohhor, JJ., concur.