text:
    Frank Bezemek, Appellee, v. Louis Panico and Elmer W. Kaniuk, Appellants.
    Gen. No. 40,668.

      Opinion filed October 25, 1939.
    Harold A. Fein, of Chicago, for appellants; Edward S. Altersohn, of Chicago, of counsel.
    Royal W. Irwin, of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

Defendants Louis Pánico and Elmer W. Kaniuk bring this appeal from a judgment which was entered November 7, 1938, in the circuit court on the verdict of a jury for the sum of $10,000 in favor of plaintiff for personal injuries alleged to have been received by said plaintiff in an automobile accident.

The complaint alleges that the plaintiff was employed by the defendant Pánico as a musician in his orchestra and that there was an agreement by defendant Pánico to furnish transportation for plaintiff.

The complaint further alleges:

1. Negligence; and

2. Wilful and wanton conduct in the operation of defendant Pánico’s automobile by defendant Kaniuk, as his agent.

Defendants’ answer admits the employment of plaintiff upon an hourly basis to work during the evenings only; denies an agreement to furnish transportation to plaintiff; admits ownership and operation of the automobile for the transportation of instruments and baggage ; and denies that plaintiff, at the invitation, direction or request of the defendants, rode as a passenger in the automobile; denies all charges of negligence or wilful and wanton conduct and denies that plaintiff was in the exercise of due care and caution for his own safety.

Plaintiff’s theory of the case is that he was riding in an automobile truck in Arkansas and that the driver of the truck drove the car so negligently that it left the road and plaintiff was injured as a result thereof; that the conduct of the driver of the truck, who was an employee of the other defendant herein, was negligent and also wilful and wanton.

Defendants’ theory of the case is that plaintiff failed to prove that he exercised due care and that the proof by defendants of contributory negligence on the part of plaintiff constituted a good defense in the absence of proof of wilful and wanton conduct.

The evidence shows that the plaintiff Bezemek and the defendant Kaniuk were employed as musicians by the defendant Pánico in the latter’s orchestra; that on August 28, 1935, Kaniuk was driving Pánico’s automobile truck which was about the size of a passenger car, carrying instruments and baggage of the members of the orchestra, from Pine Bluff, Arkansas, to Joplin, Missouri; that plaintiff'was alongside Kaniuk in the driver’s seat at the time of the accident; that Kaniuk drove the truck without extra compensation and at his own request.

The evidence further shows that in addition to the truck which was used to carry baggage and instruments, Pánico had two passenger automobiles for the members of the band, in which plaintiff could have been a passenger although there was no agreement on the part of defendant Pánico to furnish transportation to plaintiff.

The evidence further shows that plaintiff was not directed or requested to ride in the automobile truck and did so of his own volition because of his friendship with defendant Kaniuk; that plaintiff received $7 for each night’s work of four hours and was not employed by the week and did no work during the day.

The evidence further shows that the accident occurred about 3:00 p. m.; that the weather was clear and hot with the temperature about 90 degrees; that defendant Kaniuk had driven the automobile for about two hours after lunch; that plaintiff was reclining in the seat, sleeping for almost 40 minutes before the accident occurred, in fact, that he slept through the entire occurrence of the accident, and only awakened after the automobile had turned over, at which time his entire body was out of the truck and his legs were pinned under the automobile; that there was no eyewitness to the accident other than the defendant Kaniuk; plaintiff was asleep.

Kaniuk, one of the defendants, was called as an adverse witness by plaintiff and he testified that frequently when plaintiff rode with him, as on this occasion, he would, while riding, extend his legs out of the door window and sleep in that position; that on a number of occasions he remonstrated with plaintiff and warned him of the danger, but that his warnings were not heeded; that prior to the accident plaintiff assumed a diagonal position to the door of the car, slouched down with his feet hanging out of the window.

On direct examination plaintiff testified, “I was reclining back in the seat asleep.” When asked where his feet and legs were, he answered: “I am sure they were in the automobile. ’ ’ When asked if they were out of the window, he answered: “After I woke up with the truck on me, they were.” "When his counsel stated, “I mean before you went to sleep?” he replied, “Not that I know of.”

On cross-examination plaintiff said that he was not awake while the truck was turning over so that he could not be conscious of or know what happened, or what his position was; that when he first awoke his legs were under the car and his body outside the car; that the cab door was over his legs, and that the glass panel of the door was down.

Testimony as to how the accident actually happened was given by Kaniuk who was driving the automobile truck, and he stated that he was approaching an upgrade about 150 feet long, at a speed of about 35 or 40 miles as he reached the bottom of this hill; that the road was straight; that by the time he reached the top of this hill his speed was reduced to 28 to 30 miles due to the upgrade; that he had vision over the crest of the hill and about 10 feet before he reached the crest, at which time he saw a car approaching him from the other direction; that the top of the hill was level for about 8 feet before another decline; that the road on the decline was straight for about 50 to 60 feet, at the bottom of which a curve commenced to the left; that from the top he could see the entire curve at the bottom of the hill.

Kaniuk further stated that he first saw the approaching automobile at about the middle of this curve, about 50 to 75 feet away, with his own car in the right traffic lane and the center line of the road visible to him; that his right wheels were inside the edge of the road, the edge being visible; that the shoulder was not distinguishable from the roadway; that the approaching car was in the center of the road, straddled about one-half over the center line; that when he was about 10 or 15 feet away from this car, of necessity he swerved to the right while on the downgrade and only after he had traveled about 20 feet from the top of the hill; that his speed was about 25 miles; that he was not pushed off the pavement bnt swerved to avoid a head-on collision and that at the time the approaching automobile was only a car length away. He further stated, “There was nothing for me to do but either take one way or the other to avoid a head-on collision. ’ ’

Kaniuk further stated that the other automobile did not slow up and did not stop; that as his front wheel went off the pavement onto the shoulder, he had the feeling that he was on a soft shoulder; that his rear right wheel also went on the shoulder; that his left wheels did not leave the pavement; that he traveled about six or seven feet in that manner, on the shoulder and his machine slowed up because he used his foot brake; that because of an embankment on the other side of the shoulder, he immediately directed his car back on the pavement and he had no difficulty in getting his right front wheel on the pavement, but he sensed the difficulty in getting the right rear wheel on the road and he felt that he was skidding along the edge of the road. When asked what effort he made, if any, to get that rear wheel on the road, he answered: “It happened too fast and there was not time for effort at all.” He further stated that he accelerated the car, and that it skidded about seven or eight feet before it turned over; that he felt a little bump in the soft shoulder had caught the rear wheel and the truck toppled over.

The evidence further shows that Kaniuk, the driver of the truck was not injured except for a few slight scratches. The plaintiff, Frank Bezemek, however, received a serious permanent injury consisting of broken bones of his leg and ankle which had been apparently crushed when the automobile truck turned over.

As before stated there was a joint count of negligence and also wilful and wanton negligence, and usually a jury of laymen do not understand the distinction. In the case of Nosko v. O’Donnell, 260 Ill. App. 544, the first division of this court in its opinion defined the different classes of conduct which might be regarded as wilful and wanton, as follows: “(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). . . .

‘£ 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 counts 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. ’ ’

In the instant case instruction No. 9, which is criticized, reads as follows:

“The jury are instructed that in determining the question of wilful and wanton conduct of the defendants as charged in the complaint, if any, on the part of the defendants, you are to take into consideration the law of the State of Arkansas, pertaining to the driving of motor vehicles. You are instructed that the law of the State of Arkansas is to the effect that no person may drive a motor vehicle upon any public highway in the State of Arkansas at a speed greater than is reasonable and proper having regard to the traffic and the use of the way.” In this connection, even if the law of Arkansas were violated, we do not think this proves defendant was guilty of wilful and wanton negligence. Such an instruction as the one just quoted could result in nothing but confusion. We have carefully gone over this record and fail to find any evidence which supports the charge of wilful and wanton conduct. While driving through a strange country and in order to avoid a collision with an automobile approaching from the opposite direction, the defendant who was driving the truck, pulled to one side and in doing so the automobile skidded onto a sandy shoulder of the road and in endeavoring to get the automobile back onto the paved portion of the road, the rear wheels skidded and the automobile truck toppled over. This may or may not have been negligence on defendant’s part, but we cannot find any evidence of wilful and wanton conduct on the part of the driver of the automobile truck, and the court should have instructed the jury to this effect upon the motion which was made. The court should not have selected one portion of the evidence, such as the statute of Arkansas and directed the jury to consider it as tending to prove any particular issue involved. All of the evidence which was admitted should have been considered by the jury in connection with the entire case.

The distinction between wilful and wanton negligence and mere negligence is not always understood by the laymen who compose the average jury and care should be exercised to explain the difference, so that the jury may properly consider the facts presented in arriving at their decision. That was not done in this case.

Other questions are presented for our consideration, but as this case must be tried again we shall not discuss them at this time.

For the reasons herein given the judgment of the circuit court is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

Hebel and Burke, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Denis E. Sullivan

license: Public Domain

text:
    Frank A. Benner, Jr., Appellee, v. Retirement Board of Firemen’s Annuity and Benefit Fund of Chicago, Appellant.
    Gen. No. 40,678.
    Opinion filed October 25, 1939.
    Barnet Hodes, Corporation Counsel, and George F. Mulligan, Assistant Corporation Counsel, for appellant,
    Heth, Lister & Flynn, of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

Plaintiff Frank A. Benner, Jr., filed a petition for a writ of certiorari against the Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago, demanding that they recognize his standing and place him on the list of persons eligible for a pension as a fireman of the city of Chicago. The court sustained the petition for certiorari, quashed the return of the defendant and the writ of certiorari was ordered to be issued.

The theory of the plaintiff is that Frank A. Benner, Jr., has worked in the fire service of the city since June 10, 1913, and therefore is entitled to full credit for the period of time he occupied the position of assistant telegraph repairer or telegraph repairer, prior to the time these positions were classified in the fire service of the city of Chicago by the civil service commission of that city, and that the mere reclassification of the positions occupied by the plaintiff, by the civil service commission on February 5, 1923, is not determinative of the plaintiff’s rights or as to the period of time he actually served the city of Chicago in the fire service of that city. Plaintiff also relies upon the fact that there was no change in the nature of the duties performed by him, after his position was classified in the fire service by the civil service commission on February 5, 1923. Both before and after February 5, 1923, telegraph repairers and assistant telegraph repairers were required to report to the chief of fire alarm wires.

The theory of the defendant, Retirement Board of the Firemen’s Annuity and Benefit Fund, is that Frank A. Benner, Jr., is not entitled to prior service credits for any period of time prior to said February 5, 1923.

The controlling question in this case appears to be as to whether or not the plaintiff was a fireman as contemplated by the statute and thereby entitled to be so considered when figuring out his retirement age as provided in the act. The facts seem to be undisputed.

It appears that plaintiff Frank A. Benner, Jr., is a telegraph repairer of the city of Chicago, and has occupied the positions of assistant telegraph repairer, telegraph repairer and junior fire alarm operator since June 10, 1913, with the exception of a leave of absence of about one year; that he was certified as assistant telegraph repairer on June 10, 1913; that he was granted a leave of absence on May 20, 1918, and was reinstated to his former position on March 13, 1919; that since that time, with the exception of a layoff of 10 days in 1917, he has been either an assistant telegraph repairer, a junior fire alarm operator or a telegraph repairer.

It further appears that when Frank A. Benner, Jr., was certified by the civil service commission of the city of Chicago in the year 1913 as an assistant telegraph repairer, the positions of assistant telegraph repairer and telegraph repairer were classified by the civil service commission of Chicago as being in “Class K” and he was assigned to the department of gas and electricity of the city of Chicago; that “Class K” was the symbol or designation given by the civil.service commission to skilled labor in the city service.

It further appears that on February 5,1923, the civil service commission of the city of Chicago changed the classification of the positions of assistant telegraph repairer and telegraph repairer to the fire department and from that of “skilled labor” assigned theretofore to the department of gas and electricity.

It further appears that the Firemen’s Pension Fund Act of 1917, declared that the term “fireman” as used in that act should include any person holding a position classified by the civil service commission as in the fire department and anyone when so classified thereupon became entitled thereafter to the benefits of the Firemen’s Pension Fund Act.

It further appears that deductions were made from plaintiff’s salary for pension purposes during his entire period of service and were paid into a different pension fund known as the Municipal Employees’ Pension Fund and into the Municipal Employees ’ Annuity and Benefit Fund.

It further appears that by reason of the definition of “fireman” in the said Act of 1917, Benner had a right to apply for a transfer to the firemen’s pension fund any time subsequent to February 5, 1923.

As to whether the plaintiff Benner is a fireman or not, the amendment to defendant’s return which for the purposes of this hearing we must consider as true, further sets out the duties of telegraph repairer and assistant telegraph repairer prior to February 5, 1923, as follows:

“Assistant telegraph repairer is to assist the telegraph repairer in the performance of all emergency repair work in the Bureau of Fire Alarm and Police Telegraph, and in the absence of the telegraph repairer, performs the duties of the latter as follows:

“Keeps all the city signal and telephone circuits in a definitely assigned district in proper repair and good working condition:

“Keep all Fire and Police boxes and all telegraph apparatus in Fire Alarm offices and Fire Engine Houses, Police Stations and other municipal quarters in his district in good working order:

“Does all cleaning and repairing of defects on Fire Alarm and Police Telegraph equipment that can be done without bringing instrument to Fire Alarm and Police shops:

“Make frequent inspections of his line and instruments in his district. Takes proper care of all other city property in his possession:

“Make daily reports to Chief of Fire Alarm Wires of work performed:

. “Make diagrams and estimate when necessary for needed betterments of Fire Alarm and Police Telegraph equipment and all other necessary changes and repairs in his district that cannot be done by himself: “Performs any emergency work assigned to him by his immediate superior with greatest possible expedition. On duty within call of the Fire Alarm Office at all hours of the day and night throughout the year except when on a Regular Off or on a special leáve of absence granted by the Chief of Fire Alarm Wires or his assistant. ’ ’

The Firemen’s Pension Fund Act, filed June 14, 1917, ch. 24, par. 943, sec. 13, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 100.364], contains the following definition :

“943. ‘Firemen’ Defined.] §13. In cities which have adopted an Act entitled, ‘An Act to regulate the civil service of cities,’ approved and in force March 20, 1895, all persons who have been or shall hereafter be appointed to any position which is classified by the civil service commission of such city in the fire service of such city, and in cities which have not adopted said Civil Service Act, all persons appointed to any position in the fire department, shall be included within the meaning of the word or term ‘fireman’ or ‘firemen’ as used in this Act. All other persons who at the time this Act shall become effective shall have contributed to any firemen’s pension fund then existing, shall also be included within the meaning of the term ‘fireman’ or ‘firemen’ as used in this Act, and shall be entitled to the benefits of this Act.”

It is apparent from a reading of this section of the statute and considering the evidence that Benner was not a “fireman” within the intent of the statute or in contemplation of law. He was paying certain moneys into the Municipal Employees’ Pension Fund and, apparently, had no thought of becoming a fireman until the Act of 1917 went into effect. It is true that he did some work for the fire department, but he also did work for the police department and was classified as ‘ ‘ skilled labor” by the civil service commission. We can find no evidence that he was ever carried on the pay roll of the fire department, but on the contrary he was shown as a member of the department of gas and electricity.

It is further contended by defendant that the facts in this case do not justify the application of the cases cited in support of plaintiff’s theory. In this we think they are right. We do not think plaintiff was a fireman in 1913, in contemplation of the statute, and for that reason the circuit court erred in quashing the return of defendant and the writ of certiorari should not have issued.

The judgment order of the circuit court is hereby reversed.

Judgment order reversed.

Hebel and Burke, JJ., concur.


text:
    Raveret-Weber Printing Company, Inc., Appellant, v. Milton H. Wright, Appellee.
    Gen. No. 40,725.

      Opinion filed October 25, 1939.
    Lloyd W. Lehman, of Chicago, for appellant.
    Stearns & Jones, of Chicago, for appellee; Lloyd M. McBride, of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

Plaintiff Raveret-Weber Printing Co., Inc., filed its complaint in the circuit court by which it sought to charge defendant with payment for goods furnished Journeys, Inc., and Glenn W. Wright, at the request and upon the credit of the defendant Milton H. Wright. On motion of the defendant the complaint was dismissed.

Plaintiff’s complaint alleges the following:

“1. That on February 15, 1938, Journeys, Inc., a corporation, and Glenn W. Wright were engaged in the business of a travel agency in Chicago, Illinois; that on or about that day they requested the plaintiff to furnish them certain printed materials for use in their business; the amount of credit requested of the plaintiff was $1,062.85.

“2. As a consideration for the preparation and furnishing of the said printed materials, this plaintiff required of the said Journeys, Inc., and Glenn W. Wright the additional assurance by some responsible person that the fair, reasonable and agreed cost of the said materials should be paid when they were furnished by the plaintiff.

“3. Defendant herein, at the request of Journeys, Inc., and Glenn W. Wright and the plaintiff herein undertook and agreed and promised to answer to the plaintiff out of his own estate for the debt, default or miscarriage of Journeys, Inc., and Glenn W. Wright, if plaintiff herein would furnish materials then requested by Journeys, Inc., and Glenn W. Wright, as aforesaid.

“4. And the defendant Milton H. Wright, gave a memorandum or note of his said promise and agreement in writing, signed by himself, or some other person by him lawfully authorized, which memorandum is in words and figures as follows:

“ ‘The Stenotype Company

Michigan Ave., at 41st St.

Chicago

February 15, 1938.

“ ‘ Raveret-Weber Printing Co.,

727 S. Dearborn Street,

Chicago, Illinois.

“ ‘Dear Mr. Weber:

“ ‘As per our telephone conversation today, I shall be willing to lend sums of money to my brother of Journeys, Inc., in case his payments to you become delinquent as per your present arrang-ements.

Very truly yours,

M. H. Wright

P’

“5. Plaintiff further says that on to-wit: February 23, 1938, relying on the promises of the defendant, plaintiff furnished to Journeys, Inc., by Glenn W. Wright, pamphlets, printed materials, services, goods, ware and merchandise of the agreed value of Thirty Eight Dollars Fifty Cents ($38.50); that on or about March 17th, 1938, relying on the promises of the defendant, plaintiff furnished to Journeys, Inc., and Grlenn W. Wright, pamphlets, printed materials, services, goods, wares and merchandise of the agreed value of One Thousand Eighteen Dollars Sixty Cents ($1,018.60). That on to-wit: March 24th, 1938, relying on the promises of the defendant, plaintiff furnished to Journeys, Inc., and Glenn W. Wright, pamphlets, printed materials, services, goods, wares and merchandise of the agreed value of Five Dollars and Seventy Five Cents ($5.75), a total of One Thousand Sixty Two Dollars Eighty Five Cents ($1,062.85).

“6. Plaintiff further says that no part of the said sum has been paid by Journeys, Inc., Glenn W. Wright or Milton H. Wright; that demand has repeatedly been made; that on the 26th day of April, 1938, judgment was entered in favor of the plaintiff and against the said Journeys, Inc., and Glenn W. Wright in the Circuit Court of Cook County No. 38 C 6487; execution on said judgment has been placed in the hands of the Sheriff for service; no part of the said judgment has been paid.

“7. That before the statement of the account of $1,062.85 between Baveret-Weber Printing Company and Journeys, Inc., and Glenn W. Wright, and on to-wit: February 14, 1938, as further evidence of the agreement of the parties, Journeys, Inc., and Glenn W. Wright made, executed and delivered to the plaintiff their promissory notes in the total sum of Nine Hundred ($900.00) Dollars; that the said judgment for One Thousand Thirty Three Dollars Fifty Five Cents ($1,033.55) is based on those notes. In addition to the said judgment of $1,033.55, there is due the plaintiffs the sum of One Hundred Sixty Two Dollars Eighty Five Cents ($162.85), the agreed balance in the statement of account between the parties, so that the total indebtedness to the plaintiff from the defendant, and from Journeys, Inc., and Glenn W. Wright is One Thousand. One Hundred Ninety Six Dollars Forty Cents ($1,196.40) and costs, the total damage to the plaintiff here in the sum of $1,196.40, together with interest at 5% per annum from April 26,1938.

“Wherefore, plaintiff prays judgment.

Raveret-Weber Printing Company, Inc.,

By Joseph E. Weber,

Its Treasurer.”

That complaint was verified on June 8,1938. Thereafter, on June 15, 1938, a summons issued out of the circuit court against Milton H. Wright, defendant. Summons was duly served and on July 18, 1938, appearance of defendant by his attorneys was filed. On the same date a motion to dismiss was filed, the substance of which was as follows:

“1. That it appears on the face of said complaint that the said defendant is not indebted to the said plaintiff, and, therefore, said complaint fails to state a cause of action.

“2. That it appears on the face of said complaint that the said defendant did not agree or promise to answer to the plaintiff for the debt, default or miscarriage of Journeys, Inc., and Glenn W. Wright, or either of them, on any obligation or agreement of said Journeys, Inc., and Glenn W. Wright, or either of them, to or with said plaintiff, and that, therefore, said complaint does not state a cause of action.

“3. That it appears on the face of said complaint that if the said defendant did agree or promise to answer to the plaintiff for the debt, default or miscarriage of Journeys, Inc. and Glenn W. Wright, or either of them, on any obligation or agreement of said Journeys, Inc., and Glenn W. Wright or either of them, to or with said plaintiff, the said agreement or promise is not enforcible under the terms and provisions of Section 1 of Chapter 59, relative to Frauds and Perjuries, of the laws of the State of Illinois, and that, therefore, said complaint does not state a cause of action.

- “4. That it appears on the face of said complaint that if the said defendant agreed or promised to answer to the plaintiff for the debt, defraud or miscarriage of Journeys, Inc. and Grlenn W. Wright, or either of them, on any obligation or agreement of said Journeys, Inc., and Grlenn W. Wright, or either of them, to or with said plaintiff, and if said agreement or promise of the said plaintiff is enforcible, the said defendant is not liable for any amount in excess of One hundred sixty-two Dollars and Eighty-five Cents ($162.85), in that of the total sum of One thousand sixty-two Dollars and Eighty-five Cents ($1,062.85) purportedly due the plaintiff from Journeys, Inc. and Grlenn W. Wright, the sum of Nine Hundred Dollars ($900.00) has been fully paid and satisfied.”

The court sustained the motion and dismissed the bill at plaintiff’s costs.

We have set out at some length the pleadings which were filed.

Chapter 110, par. 166, sec. 42, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.042], reads as follows:

“166. §42. (Insufficient pleadings.) (1) If any pleading is insufficient in substance or form the court may order a fuller or more particular statement; and if the pleadings do not sufficiently define the issues the court may order other pleadings prepared.

“ (2) No pleading shall be deemed bad in substance which shall contain such information as shall reasonably inform the opposite party of the nature of the claim or defense which he is called upon to meet.”

We think the pleadings in this case are made in compliance with the provisions of the statute, and that the defendant was reasonably informed as to the charges made against him and the defense he would be required to make. It is evident that defendant relies upon the provisions of the statute as contained in chapter 59, sec. 1, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 55.01], which reads as follows:

“That no action shall be brought, whereby to charge any executor or administrator upon any special promise to answer any debt or damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person . . . unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.”

In making the motion to dismiss, defendant thereby admitted the truth of the allegation that the memorandum in writing was made by him, and whether the promise which was made was collateral or original was a matter of fact to be determined at the trial.

As was said in Lusk v. Throop, 189 Ill. 127, at p. 132: “Undoubtedly, under the Statute of Frauds, the promise to pay the debt of another, after the same is incurred, is void, unless made upon a consideration and reduced to writing. (Durant v. Rogers, 71 Ill. 121; Denton v. Jackson, 106 id. 433; Laidlou v. Hatch, 75 id. 11; Eddy v. Roberts, 17 id. 505; Everett v. Morrison, Breese, 79). But where goods, money or services are furnished to a third person, at the request and upon the credit of the promisor, the undertaking is clearly original, and in such case the Statute of Frauds does not apply.”

In Resseter v. Waterman, 151 Ill. 169, at p. 175, it was said:

“It may be said to be the settled rule, that where the agreement is original and independent, it is not within the statute; if collateral, it is. ’ ’

Again referring to the Lush case, supra, the court said: “The Statute of Frauds says, that a promise to pay the debt of another must be in writing. Hence, when the promise is made, there must be an existing debt. If, for example, appellees had already delivered the supplies to Carlson & Olson, and, after such delivery, appellants had promised to pay for the same, then the promise would be to pay an existing debt due from a third person, and, hence, would come within the meaning of the statute. But, where the defendant promises the plaintiff to pay for goods, which the plaintiff may thereafter deliver to a third person, and which, at the time of the promise, have not been delivered, no debt exists from such third person to the plaintiff, and, hence, the promise of the defendant to pay is an original undertaking, and not merely a promise to pay the debt of another.”

According to the complaint, plaintiff did not deliver the goods and merchandise until the defendant had agreed to be responsible therefor. A copy of a letter is set out as being the memorandum which plaintiff claimed was given to it by defendant before plaintiff would deliver the goods. Whether the undertaking was original or collateral was a question of fact for the jury to determine under proper instructions by the court. Ruggles v. Gatton, 50 Ill. 412; Geary v. O’Neil, 73 Ill. 593.

In his motion to dismiss defendant contends that if he is liable, it is for a lesser sum than that claimed by plaintiff. This is also a question of fact and it should have been determined after the issue was made and not on a motion to dismiss. Inasmuch as it is a question as to whether or not' the undertaking is original or collateral, and also whether the amount claimed is proper, these questions should have been submitted to the jury for its consideration and determination. We believe the court was in error in sustaining defendant’s motion to dismiss.

For the reasons herein given the judgment of the circuit court is reversed and the cause is remanded with directions to overrule the motion to dismiss.

Judgment reversed and cause remanded with directions.

Hebel and Burke, JJ., concur.


author: Mr. Justice Burke

text:
    Frank H. Mesce, Appellee, v. City of Chicago, Appellant.
    Gen. No. 40,158.

      Opinion filed October 25, 1939.
    Barnet Hodes, Corporation Counsel, Joseph F. Grossman, Assistant Corporation Counsel, and Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellant; Joseph Fleming, William Wilson and Emil F. Meier, all of Chicago, of counsel.
    Litsinger, Healy, Reid &i Bye, of Chicago, for appellee ; Daniel M. Healy, Elbridge W. Rice and Chester E. Cleveland, all of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On February 19, 1926, plaintiff filed his declaration in assumpsit against the City of Chicago. The declaration consisted of the common counts and was commenced under the Practice Act of 1907. The court required plaintiff to file a bill of particulars. The latter disclosed that plaintiff’s claim was for fees for alleged services rendered to the city as a building appraiser in the valuating of some 3,400 buildings located on Ashland avenue, Western avenue, Ogden avenue, South Water street, Peterson avenue and Randolph street. He claimed damages in the sum of $854,676.56. His claims for services on Peterson avenue, Randolph street and Ogden avenue were abandoned at the opening of the trial. The services were performed under what is known as the “City Beautiful Plan,” which contemplated, among other things, the extension of Ogden avenue and the widening of Western avenue, Ashland avenue and South Water street. The city sought to acquire by condemnation the whole or portions of various parcels of land and of buildings for the purpose of these widenings and extensions. The alleged employment of plaintiff as a building appraiser on Ogden avenue was authorized by an order of the city council of December 30, 1918, which provided compensation “at the rate of 1%% of the value of buildings for detailed, itemized estimates of cost of buildings without plans, and at the rate of 2% of the value of buildings when plans, diagrams and details are furnished.” He claimed employment as a building expert on Ashland avenue, Western avenue and South Water street by virtue of an order of the city council of February 5,1920, which provided as follows:

“That the Board of Local Improvements be and it is hereby authorized, in accordance with its request of January 8, 1920, to employ the following for such periods of time during 1920 as may be necessary:

“Special Council, 6 at $50.00 per day for each day employed ;

“Real Estate Experts, 4 on the basis of 1% of the value of the property and $50.00 per day for testifying in court on behalf of the city ;

“Rent Experts, 2 at $50.00 per day for each day employed;

“Building Experts, 3 on the basis of 1% of the value of property and $50.00 per day for testifying in court on behalf of the city; at the rate of of the value of building for detailed, itemized estimate of cost of building’ without plans; and at the rate of 2% of the value of building when plans, diagrams and details are furnished ;

“Law Clerks and Stenographers, 2 at $125.00 per month;

“Investigators, 2 at $125.00 per month;

“For mechanical engineering services, $25,000.00;

“For court reporting*, $25,000.00;

and to charge the cost of same to such appropriations as may be hereafter made; and the City Comptroller and City Treasurer are hereby authorized and directed to pass payroll for same when properly approved by the President of the Board of Local Improvements;

“Provided, however, that before retaining the services of any special counsel, real estate expert, building expert, rent expert or engineer under this order, the Board of Local Improvements shall secure the approval of the Committee on Finance on the sum and the rate of compensation to be paid, and be it further

“Ordered, That the employment by the Board of Local Improvements of Eugene H. Dupee, Joseph J. Sullivan, William H. Dillon and Rodger Faherty, as special counsel at $50.00 per day; Edward C. Waller, Jr., Ernest H. Lyons and Arthur S. Merigold, Real Estate Experts at $50.00 per day; and Frank H. Mesce and Austin J. Lynch, Building* Experts at the rates above-set forth, be and the same is hereby7- approved.” Plaintiff’s claim for services as set out in his declaration and bill of particulars, was based on alleged services rendered under the 2 per cent clause of the respective orders, which clause required the furnishing of ‘ ‘plans, diagrams and details. ’’ The bill of particulars recited that plaintiff’s claim was for services performed for defendant, at its request, and that all plans, diagrams, details and estimates were delivered to defendant. Defendant filed a plea of the general issue, supported by an affidavit of meritorious defense. Later, defendant filed an amended affidavit. After verdict, the court declined to grant leave to defendant to file an amendment to the amended affidavit of meritorious defense. By the terms of the several affidavits, among other things, the city denied (1) that the board of local improvements employed Mesce under the order of December 30,1918, or under the order of February 5, 1920; (2) that he furnished the services alleged to have been furnished; (3) that the city owed him nothing, and alleged (4) the absence of appropriations by the city council out of which the plaintiff might be paid. A trial was had before a jury commencing on September 22, 1937. At the close of plaintiff’s evidence and again at the close of all the evidence, defendant moved for a directed verdict in its favor. Both motions were denied. On October 30,1937, a verdict was returned in favor of plaintiff in the sum of $144,730.77. Following the verdict, defendant moved for a judgment non obstante veredicto, for a new trial and to arrest the judgment, all of which were overruled. ’ Thereupon judgment was entered on the verdict, to reverse which this appeal is prosecuted.

In carrying out the “City Beautiful Plan,” defendant decided to extend Ogden avenue in a diagonal direction from Randolph street and Bryan Place to North Clark and Center streets, and to ividen both Ashland and Western avenues to a width of 100 feet from the north city limits to the south city limits on each street. Also, to widen West and East South Water streets from West Lake street to North Wabash avenue, and River street from North Wabash avenue to North Michigan avenue. The latter thoroughfare is now known as Wacker Drive. To carry out the projects, it became necessary to acquire, by eminent domain proceedings, the land and the whole or portions of buildings required therefor. Some 3,400 parcels of land with improvements thereon were involved in the four widening and extension projects. In order to defray the costs and expenses to he borne by defendant, a series of bond ordinances were passed by the city council on July 21, 1919, and approved by a vote of the people on November 4, 1919. Among them were the following: Ogden avenue $5,400,000, South Water street $3,800,000, Western avenue $2,400,000 and Ash-land avenue $5,800,000, or a total of $17,400,000. Among the expenses to be borne by defendant were those of making valuations for the assessment roll, and negotiations for settlement with property owners, and for use in preparation for and in the trial of subsequent condemnation proceedings. As to other items of expense to be borne by defendant, the bond ordinances provided variously as follows :

(1) Subways (6) Lighting

(2) Pavements (7) Engineering Cost

(3) Sidewalks (8) Court Proceedings

(4) Bridges (9) Public Benefit

(5) Viaducts

Thus, the item of valuations was but one of ten items. Subways, viaducts and bridges came under the jurisdiction of the department of public works. Widening, paving and condemnation came within the jurisdiction of the board of local improvements. The condemnation ordinances were passed during the years 1919, 1921 and 1922, and provided for the condemnation of property on the four streets, and directed the Corporation Council to file petitions for that purpose. One ordinance covered the whole of Ogden avenue and one the whole of South Water street. The Western avenue improvement was divided into five sections, and the Ashland avenue improvement was divided into nine sections. A separate condemnation ordinance was passed for each section. A separate condemnation proceeding was commenced and prosecuted under each ordinance, and of course, a separate assessment roll was filed in each case. In most instances only parts of parcels of land and of buildings were taken for widening and extension purposes. That is particularly true of Ashland and Western avenues. Of the total of over 3,200 buildings, on the latter thoroughfares plaintiff considered only 41 as totally destroyed. The Ogden avenue extension, being a diagonal cut, the whole of a building was frequently taken, and in many instances so much was taken as to amount to a total destruction. On South Water street the whole of the building was taken in each case. Out of the taking of the whole or part of buildings and parcels of land, arose the valuation problems. The proceedings were initiated under the Local Improvements Act by filing a petition in each case. That act provides that upon the filing of a petition the court shall enter an order designating two competent persons as commissioners, to act with the superintendent of special assessments, who shall investigate and report to the court the just compensation to be made to the respective owners of the property which shall be taken or damaged for the said improvement, and also what real estate shall be benefited by such improvement, and the amount of such benefits to each parcel. The superintendent of special assessments is ex officio secretary of the board of local improvements. In large proceedings such as these, the commissioners have to depend on builders and real estate men to get the value of the land and buildings. The real estate and building experts figure the properties and submit their figures to the commissioners. The commissioners then prepare the roll based on figures thus given them, and file it. It is the commissioners who arrive at the just compensation to be paid for property taken or damaged. The experts simply furnish figures as to the divers elements which the commissioners use in arriving at their conclusions. Under the order quoted, the board of local improvements was authorized to employ four real estate experts, two rent experts and three building experts. Under the Local Improvements Act, the time of filing the commissioners’ report is deemed the application for judgment of condemnation of the property sought to be taken for the improvement, and the value of the property is to be fixed as of the time of the return and filing of such report. As the market value of the property as it stands at the time the petition is filed is not the criterion, any and all changes made after the petition and before the roll is filed, become material. The only figures put in the assessment roll are the compensation for the part taken, the damages to the remainder and the benefits. The value of the building is not shown anywhere in the roll. There is no figure in the roll showing the value of the building exclusive of the land. The cost and the value of the building are, however, elements to be considered by the commissioners in arriving at the market values of the properties. There is no doubt that this was the greatest local improvement ever attempted by the city.

In January, 1920, plaintiff started work on Western avenue. After that, work was started on South Water street and Ashland avenue. He maintains that the work on Western avenue, Ashland avenue and South Water street was completed by the end of 1920. This claim is disputed by defendant, arguing that the bulk of the work as to which plaintiff claims fees herein, was done after 1920. After 1920 the percentage rate of compensation was no longer operative. In proceeding to do the work, plaintiff was furnished with survey plats made by the engineers of the board, and he pursued his appraisal section by section. First, plaintiff and his chief clerk and assistant, Henry J. Apfelbach, gin architect, went opt op the streets qnd rode up and down in an automobile. They would ride a block and get out and walk along the street and look at the plat and look at the buildings and size up the nature of the work. Then they hired draftsmen who went out to make drawings of the buildings that were affected. The plats furnished by the board showed the cutoff line and the buildings that would be affected by the improvement. Apfelbach supervised the draftsmen and instructed them what was required in the way of making drawings. After the draftsmen made the drawings, they brought them to plaintiff’s office, where Apfelbach checked and filed them. The drawings for the most part were made on sheets 8% x 13, furnished by plaintiff to the draftsmen. After the draftsmen drew the plans, Apfelbach checked them against the surveyor’s plats. If anything was lacking, the draftsmen would take back the drawing, make the necessary changes and return it. After the drawings were returned, plaintiff and Apfelbach went to the buildings, checked the drawings and made what other notes plaintiff thought would be necessary to make the estimated cost of the buildings. Then the cutting off line was drawn on each plan, from information taken from the surveyor’s plats. After the cutting off line was made, plaintiff and Apfelbach went on the street and examined the buildings. They would take the drawing of a building, enter the building and examine it from the inside and the outside and plaintiff would decide the depreciation. In the examination of the buildings, they checked the nature of the foundations, the exterior walls and whether the front was face brick or stone; if it was a frame building, whether it had post, brick or concrete foundations. They checked the depth of the basement, the distance the excavation went below the exterior walls. In frame buildings they checked whether the roof was shingle, clapboard, tar or gravel, and on the inside they checked the nature of the trim, the wood, flooring, plastering, heating and lighting, the plumbing, whether old-fashioned or modern, how the rooms were painted, whether papered, calcimined or painted, and whether the woodwork was varnished or painted. Then the estimators were assigned to estimate each building. The drawing with notations and field notes was given to the estimators to start figuring the cost of the building. When the estimators finished they put the results on plaintiff’s desk, and he went over them. The work was also checked by Apfelbach against the drawings. The work presented by the estimators was in various forms. One man would figure it in a book, another would have loose sheets and pin the sheets to the drawing. Plaintiff went over all these, placed the sundries and miscellaneous and extended the totals with the depreciation. The estimators figured what materials were in the building and estimated the amount. They got the costs from price lists in the possession of plaintiff. When the estimates were completed, the figures were copied in a book. The book was made up by Apfelbach and called, “Itemized Appraisals.” The book was made up as the work progressed. The entries were then copied in typewritten form. Plaintiff contends that the book called “Itemized Appraisals” and the sheets taken therefrom and reduced to typewritten form, contained iteiiiized figures as to each building on Western avenue, Ashland avenue and South Water street. In addition, plaintiff claims that detailed reports were made up as to each building on the three streets. Attached to each report was a blueprint of the drawing of the building. About March 1, 1920, some of the work had been completed and plaintiff took over to Michael J. Faherty, president of the board of local improvements, a detailed report and an itemized report of a number of buildings on which his work had been completed. At the same time he presented his bill for work done on the buildings. The bill recited that it covered “preparation of drawings, details, etc. as per detailed list attached. $1,348,125.00 at 2%, $26,962.50:” Plaintiff told Faherty he had brought a bill of the buildings that had been completed and gave him what plaintiff described, an “itemized appraisal and detailed appraisal.” Mr. Faherty looked at them and told plaintiff to take back the bill and rewrite it and leave off all of the amounts of the cost of the buildings on the bills. Faherty stated he did not want any values on the bills because they went through various departments in the city hall and anybody could get in and find out what the value was that plaintiff was placing on the building. Faherty added that he had had enough trouble on Ogden avenue and did not want to go through the same trouble on the other improvements. Plaintiff then took the bill back and left the reports with Faherty. He rewrote the bill with the total of all values only at the bottom. Then he presented the bill as revised, to Faherty, and a day or two later brought in a summary of the buildings included in the bill, gave it to Faherty, who returned the reports to plaintiff and told him to keep them in his office, that what he wanted was the summary that gave him the value of the buildings. Thereafter, plaintiff did not deliver the reports to Faherty from time to time, as the appraisals were completed, but kept them in his office until later, when they were delivered to Faherty at his request. Instead of the reports, plaintiff made up and delivered the summaries from time to time as he got the estimates of the values of the buildings completed. Beginning with March 2, 1920, plaintiff presented bills from time to time for completed work. The basis of plaintiff’s charge was at the rate of 2 per cent on the reproduction cost of the buildings, as estimated by plaintiff. About the middle of January, 1921, plaintiff presented Faherty with a bill for around $45,000. He then went to the comptroller’s office to collect and there saw the bill with Faherty’s O. K. on it. The cashier told plaintiff that he had orders from the deputy comptroller not to pay out any more money to the experts. Plaintiff interviewed the deputy comptroller and then the comptroller, George Harding. The latter informed him that he, Harding, had been notified by the Chicago Tribune that if he paid out any more money to the experts, he would be held personally liable. Harding told plaintiff that he, therefore, could not pay any more bills. Plaintiff called on Paherty, who stated that he had been notified not to O. K. any more bills on the improvements because of the “order from the Tribune.” In April, 1921, the Chicago Tribune filed suit against plaintiff for an injunction to restrain plaintiff from collecting moneys and city officials paying him. Ho injunction was issued, but there was a prayer therefor. The injunction suit was dismissed after the Supreme Court decisions in Tribune Co. v. Thompson, 342 Ill. 503, and Tribune Co. v. Thompson, 345 Ill. 439. During the year 1918, plaintiff was paid for services on Ogden avenue, out of the bond funds for that street, the sum of $35,908.02. In the year 1920 he was paid the sum of $47,815.98 on the same street for services which he claimed he completed in 1919. During the year 1920 and in January, 1921, he was paid $266,047.12 on Western avenue, $95,673.04 on South Water street and $50,881.62 on Ashland avenue, making the total payments on all four streets in 1919,1920 and January, 1921, $496,325.78. In addition, Austin J. Lynch, the other building expert, was paid in the same time the sum of $84,120.21 on Ogden avenue, $349,795 on Western avenue, $95,566.04 on South Water street and $50,347.14 on Ashland avenue. All of the fees paid plaintiff and Lynch were figured on 2 per cent of the reproduction cost of the buildings appraised.

The first point we are called upon to determine is whether plaintiff’s services were compensable on the basis of the reproduction cost, or on the basis of the net value. Defendant urges that plaintiff’s services were at best compensable on the basis of the net value. Plaintiff insists that he should be compensated on the basis of the reproduction cost. The total cost of labor and material of all trades, including architect’s fees, represented the total reproduction cost. The reproduction cost was the cost of a new building as of the date of the appraisal. To obtain the value of a building, it was necessary to figure the percentage of depreciation of the building, due to age, wear and tear and obsolescence. The reproduction cost, depreciated by the ascertained percentages, resulted in a figure which was the net value of the building. Defendant contends that the computing of the reproduction cost was but a means to an end, that end being the ascertainment of the net value. The rate of depreciation figured by both plaintiff and Lynch averaged about 30 per cent. Plaintiff’s charges for services, paid and unpaid, were figured on the reproduction cost and not on th6 value found by him. His charges were made on the basis of the reproduction cost on the whole and not on the reproduction cost on the part taken. The total reproduction cost on the four streets covered by bills paid to plaintiff in 1919, 1920 and January, 1921, was $24,605,040, whereas the net value was $14,968,090.35. Fees at 2 per cent of the reproduction cost amount to $492,100.82, while at 2 per cent of the net value they amount to $299,361.84. The same degree of difference obtains between the reproduction cost and the net value of buildings covered by the unpaid bills. In the instant case, plaintiff sought to recover at the rate of 2 per cent of the reproduction cost of the buildings on the following streets for services which he alleged he performed in the year 1920: Western avenue, $170,307.02; South Water street, $13,361.90; Ashland avenue, $606,345.18. Thus, the amount of the fees already paid plaintiff, together with the fees which he sought in the instant action, totals $1,286,336.78. The aggregate amount paid to plaintiff and Lynch, plus what plaintiff claims as unpaid, is $1,866,165.17. As stated, the jury’s verdict was for the sum of $144,730.77. This is exactly 1 per cent of the reproduction cost of the buildings covered by plaintiff’s paid and unpaid bills, less the amount already paid plaintiff in 1919, 1920 and Jan-nary, 1921. In effect, the jury found that as to the paid bills, all based on 2 per cent of the reproduction cost, he was entitled to 1 per cent of the reproduction cost instead of 2 per cent. The jury likewise awarded him 1 per cent of the reproduction cost on the unpaid bills. The reproduction cost of buildings covered by paid bills totaled $24,605,040. The reproduction cost of building covered by unpaid bills totaled $39,500,705. The grand total of the reproduction cost covered by paid and unpaid bills was $64,105,745. 1 per cent thereof is $641,057.45. The amount already paid by defendant was $496,326.68 and the amount of the jury’s verdict was the difference between the paid and unpaid bills, based onal per cent of the reproduction cost. It is apparent, therefore, that if the jury had figured at 1 per cent of the net value instead of 1 per cent of the reproduction cost, a verdict in favor of the defendant should have resulted. The jury, in returning a verdict on the basis of 1 per cent of the reproduction cost, necessarily decided that plaintiff was not entitled to recover on the basis of the 1% per cent clause, or the 2 per cent clause in the council order. Plaintiff has yielded to this finding and is satisfied to recover on the basis of the 1 per cent clause under which the jury found in his favor. It is apparent that if plaintiff is entitled to but 1 per cent of the net value, then a judgment non obstante veredicto must be entered. We shall, therefore, consider the orders under which plaintiff seeks to recover.

At the outset we wish to point out that no city official had the right to modify any of the terms of the two orders. It will be noted that the order of December -30, 1918, does not contain a 1 per cent clause. That order is limited to Ogden avenue and authorizes the employment of “3 real estate experts on the basis of 1% of the value of the property and $50.00 per day for testifying in court, and 2 building experts at the rate of 1%% of the value of the buildings for detailed, itemized estimates of cost of buildings without plans, and at the rate of 2% of the value of the buildings when plans, diagrams aiid details are furnished.” The order of February 5, 1920, authorizes the employment of “real estate experts, 4 on the basis of 1% of the value of the property, and $50.00 per day for testifying in court. ’ ’ It also provided for the employment of three building experts “on the basis of 1% of the value of property and $50.00 per day for testifying in court on behalf of the city; at the rate of l1/4% of the value of building for detailed, itemized estimate of cost of building without plans, and at the rate of 2% of the value of building when plans, diagrams and details are furnished. ’ ’ The word “value’ ’ is used three times in the order of December 30, 1918, once as to real estate experts and twice as to the building experts. In the order of February 5, 1920, the word “value” is used four times, once as to real estate experts and three times as to the building experts. Bach bond ordinance uses the term “valuation” in listing several items, the costs of which were to be borne by the city. Defendant argues that no ambiguity exists in the word “value,” and that the order must be held to mean what it says. If we adopt the contention of plaintiff, we must construe the word “value” to mean “cost.” The word “value”, has been used seven times in the two orders. The word “cost” is also used, which is a strong indication that the city council intended to differentiate between the two words. As defendant points out, if in the case of the real estate experts the word “value” is to be construed as “reproduction cost,” there is no such thing as the reproduction cost of bare land. Plaintiff, in effect, contends that because he and Lynch billed the city at 2 per cent of the reproduction cost, which bills were approved by the president of the board of local improvements and by the comptroller’s office, and paid in due course, that these acts amount to a construction of the two orders by two departments of the city as authorizing payment to plaintiff on the basis of 2 per cent of the reproduction cost. There was no ambiguity in the orders and an ambiguity could not be created by the acts of the parties. The conduct of the officers of two departments of the city could not establish an ambiguity where none existed. It cannot be seriously contended that the president of the board of local improvements, the comptroller and the plaintiff had power to construe an order of the city council where no ambiguity existed. We are satisfied that the orders, at least in so far as the rate of compensation is concerned, are unambiguous. We are also of the opinion that the proof fails to show that the city officials construed the orders as plaintiff contends. The orders are lacking in definiteness as to the specific service to be rendered. However, the existence of an ambiguity in one word, sentence or clause cannot be ascribed to another word, sentence or clause which has a clear and plain meaning. We are, therefore, of the opinion that defendant was entitled tó a judgment non obstante veredicto.

Defendant urges that plaintiff did not perform as required by the orders under the 2 per cent or the 1% per cent clauses. In view of the verdict of the jury that plaintiff is not entitled to be compensated under the 2 per cent or the 1% per cent clauses, and that plaintiff has yielded to the finding, it is unnecessary for us to discuss at length the points raised thereunder. It is sufficient to say that we have carefully considered the respective contentions, and that the verdict of the jury that plaintiff had not performed as to the 2 per cent or the 1% per cent clauses, is amply justified.

A further point urged by defendant is that plaintiff, as a matter of law, having failed to prove a substantial performance under the 2 per cent or the 1% per cent clauses, a judgment non obstante veredicto must follow. The plaintiff seeks to recover under the common counts. The bill of particulars is laid on the special contract under the 2 per cent clause and alleges performance. We agree that there can be no recovery unless it appears that there has been a substantial performalice by plaintiff. The evidence clearly establishes that nearly all of the work that plaintiff attempted to perform, was so attempted under the 2 per cent clause. The evidence introduced at the trial was quite voluminous. Without pausing to state the same in detail, it will suffice for us to say that we have given it careful consideration and find that it establishes without contradiction that plaintiff did not prove substantial performance under either the 2 per cent or the 1% per cent clauses. The defendant was not called upon to supply merely a valuation on the improvements. Without the other details required under the 114 per cent and 2 per cent clauses, the valuations, under the 1 per cent clause were worthless to defendant. That is an additional reason why defendant is entitled to a judgment non obstante veredicto. Another point made by defendant is that plaintiff, as a matter of law, failed to perform under the 1 per cent clause. The suit is based on a special contract under the 2 per cent clause. Plaintiff did not substantially perform and is entitled to recover, if at all, only on the quantum meruit. However, there is no evidence tending to prove the reasonable value of services. Defendant also insists that there was no performance under the 1 per cent clause in any event because plaintiff did not give the date of the valuations of the respective properties. It is conceded that building costs vary widely from time to time. As heretofore pointed out, the date of the filing of the roll in this class of cases is the date as of which the value and damages must be determined. Two rolls were filed in 1921, six rolls were filed in 1922, and one roll in 1923. All of the six rolls filed in 1922 were filed more than two years after plaintiff commenced his work in January, 1920, and two of them more than two and one-half years after the commencement of his work. The roll on the section from 31st to 47th street on Ashland avenue was filed more than three years after he commenced his work. If the unit of cost had been furnished along with the date of the appraisal, the city might have been able, after the lapse of two or three years, to revise plaintiff’s figures on the basis of percentage of increase or decrease in material and labor cost. The absence of dates rendered his valuations worthless.

In passing on the points presented, we have adhered to the rule laid down by our Supreme Court as to the proper procedure to be observed in directing a motion for a judgment non obstante veredicto.

In the case of Libby, McNeill & Libby v. Cook, 222 Ill. 206, at p. 212, the court stated the rule as follows:

“In either case, if there is no evidence, or but a scintilla of evidence, tending to prove the material averments of the declaration, the jury should be directed to return a verdict for the defendant. If, however, there is in the record any evidence from which, if it stood alone, the jury could, ‘without acting* unreasonably in the eye of the law,’ find that all the material averments of the declaration had been proven, then the cause should be submitted to the jury.”

A motion to direct a verdict for the defendant preserves for review only a question of law whether from the evidence in favor of plaintiff, standing* alone and when considered to be true, together with the inferences which may legitimately be drawn therefrom, the jury might reasonably have found for the plaintiff. We cannot weigh the evidence. On a motion to direct a verdict, only that evidence can be considered which is in favor of the party against whom the motion is directed. That evidence must be considered in the light most favorable to that party, together with all legitimate inferences which may be drawn from it in his favor.

Because of the views herein expressed, the judgment of the superior court of Cook county is reversed and a judgment non obstante veredicto is entered here for defendant and against plaintiff.

Judgment reversed.

Denis E. Sullivan, P. J. and Hebel, J., concur.


text:
    George Byrne for use of Lucille M. King, Appellee, v. Continental Casualty Company, Appellant.
    Gen. No. 40,423.
    Denis E. Sullivan, P. J., dissenting.
    Opinion filed October 25, 1939.
    Rehearing denied November 9, 1939.
    George O. Bliss, of Chicago, for appellant.
    Gilmore, Hendricks & Cullen and Charles C. Spencer, all of Chicago, for appellee; Matthew J. Cullen and Richard M. Spencer, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On March 15, 1929, the defendant issued to Charles D. Allan an automobile public liability policy for the period of one year covering a Buick automobile owned by Allan. The insurance contract contained an extended insurance clause, also known as an “omnibus clause,” which provided, inter alia, that any person operating the same with the permission of the assured or of an adult member of the assured’s household, would receive the protection of the policy. The assured, Charles D. Allan, died on January 25, 1930, leaving as his sole legatee under his will, his widow, Catherine Allan. On that day the Allans lived at 4417 North Ashland avenue, Chicago. On the day of her husband’s death, Mrs. Allan hired George Byrne as a chauffeur at a salary of $35 for a week. The purpose of hiring Byrne was so that he would drive the Buick car for Mrs. Allan on various missions occasioned by the death of her husband. During the lifetime of her husband, the car was kept in the Cornelia Garage, located in the vicinity of Broadway and Cornelia avenue, Chicago. After Byrne was hired he requested Mrs. Allan that he be permitted to keep the car in the Argyle-Clark Garage, located at 5006 North Clark street. He lived in the vicinity of the garage and by keeping the car there, he would save on street car fare. She permitted him to keep the car in that garage. On January 28,1930, Byrne drove the car containing Mrs. Allan and some of her relatives, to the New York Central Station, where they were to take a train for New York. The car was then driven to her home at 4417 North Ashland avenue, where the remaining occupants, including Mrs. Allan, got out. She directed Byrne to put the car in the garage until the next morning, and to bring it back at 11 o’clock next morning, when she wished to be driven to the probate court. He drove away with the car and returned it to the Argyle-Clark Garage. She did not at any time give him permission to drive the automobile for his personal use. Early that evening Byrne came to the garage and took the car out. Around 8 o’clock the following morning, January 29, 1930, Lucille M. King, who was in the process of walking from the southeast corner of Diversey and Clark streets, Chicago, to board a northbound Clark street car which was standing at the intersection, was knocked down and severely injured by the Buick automobile driven by Byrne. Byrne, after striking the girl, proceeded in a northerly direction through the red light, which was set to warn drivers not to cross Diversey boulevard while the same continued red. He was taken into custody by the police that morning while in an intoxicated condition. It is undisputed-that at the time the injuries were inflicted, George Byrne was driving the car for his own personal use and was not engaged in carrying out any mission for Mrs. Allan. Lucille M. King brought an action for damages in the superior court of Cook county against George Byrne and Catherine Allan. On the trial a verdict was directed in favor of Mrs. Allan and the jury returned a verdict against George Byrne, assessing the damages at the sum of $7,500. Judgment was entered on the verdict in favor of Lucille M. King. Following a nulla bona return on the execution and an affidavit in garnishment against the Continental Casualty Company, as garnishee, the latter filed an answer. On issue joined the case was tried without a jury and the court found the issues against the defendant garnishee, and entered a judgment in the sum of $8,496. This appeal is prosecuted to reverse the latter judgment.

The first proposition for us to resolve is whether George Byrne was driving the automobile with the permission of Mrs. Allan within the meaning of the extended insurance clause. It is conceded by the defendant that the “permission” mentioned in the extended insurance clause may be an implied permission. The trial court decided the issues for Lucille M. King on the authority of three cases decided in the Appellate Court of this district, one by each of the three divisions. In the case of Jackson for use of Schaer v. Bankers Indemnity Ins. Co., 277 Ill. App. 140, it appears that Bichard E. Schaer recovered a judgment against Clark M. Jackson for $4,000 because of injuries sustained early on the morning of August 8,1931, and occasioned by the negligent driving of an automobile by Jackson, which was owned at the time by Vincent C. Fischer. After return of the execution unsatisfied, a garnishment proceeding was commenced against the insurance company, based upon an ‘1 omnibus clause, ’ ’ similar to the one in the instant case, and on the trial judgment was entered against the insurance company. Fischer was a commercial artist residing in Waukegan, Illinois. He also had an apartment at 636 Addison street, Chicago. Jackson also was an artist, having a studio at 43 East Ohio street, Chicago. During the early evening of Friday, August 7, 1931, Fischer and Jackson had a few drinks in the company of some of their friends. The party then went to Fischer’s apartment. About midnight some of the guests expressed a desire to go to their respective homes, and with Fischer’s- permission, Jackson drove three of the guests to their homes in the automobile. Fischer had frequently before given Jackson permission to drive his car. Siegel, one of Fischer’s guests, remained in the apartment, to which Jackson returned in the car at about 1:30 Saturday morning. Upon Siegel expressing a desire to be driven to his home in Berwyn, Illinois, Jackson, with Fischer’s permission, agreed to do so. Fischer then stated that he felt “pretty tired,” that he had to be in Lake Bluff that morning (Saturday morning) and that it would be all right with him if Jackson returned with the car in time to make his contemplated trip in the car to Lake Bluff. Fischer gave no instructions to Jackson as to the route he should take in going to or returning from Berwyn. Jackson drove Siegel in the car to Berwyn. On his return trip alone, and apparently because he was intoxicated, he was in a collision at 51st and Cottage Grove avenue, which collision was the basis for the claim for damages. The court discusses the various cases cited, including Dickinson v. Maryland Casualty Co., 101 Conn. 369, and Stovall v. New York Indemnity Co., 157 Tenn. 301, and on the authority of those cases, decided that the trial court’s decision that the car was being operated with Fischer’s permission, was not against the manifest weight of the evidence. Therefore, the judgment was affirmed.

In Karton v. New Amsterdam Casualty Co., 280 Ill. App. 201, involving a similar clause in a policy covering a car owned by Clara J. Shepard, the evidence established that Robert Weiss, a police officer, called on Mrs. Shepard at her home at about 12:30 in the morning ; that he lived four or five blocks from her home; that she told him he could take the car to go to his home and bring it back the next morning. He drove away in the car, did not go to his home but drove around Chicago, got drunk, and at about 5:30 in the morning was driving the car about five miles from Mrs. Shepard’s home at a high rate of speed, shooting his revolver out of the car, ran into a truck belonging to the Railway Express Company, demolished the truck and automobile, and was killed. The express company recovered judgment against the administrator of his estate. The insurance company refused to pay the judgment and the administrator sued the insurance company on the policy. The express company intervened and was made coplaintiff. Afterward the administrator of Weiss’s estate was dismissed out of the case. There was a trial before the court and a finding and judgment in favor of the express company and against the insurance company. The court followed the ruling-in the Stovall case and affirmed the judgment.

In Jefson for use of Alber v. London Guarantee Accident Co., 293 Ill. App. 97, judgment was entered in favor of Marvin Jefson for use of Elaine Alber, administratrix of the estate of Walter Alber, deceased, and against the garnishee, London Guarantee and Accident Company, in the sum of $10,457.66. The cause was tried before the court without a jury. That cause also involved an omnibus clause, similar to the one in the case at bar. Jefson, on August 11,1934, was in the employ of Mrs. Jackson as a chauffeur and houseman. About 6 o’clock in the evening he asked her for permission to take the Chrysler coupe to go and have a haircut in Lake Forest. Mrs. Jackson lived on her estate on Waukegan road in Lake Forest. He said he would take only a half hour. She told him if he would be back in a half hour, he could take the car. He took the car ostensibly to go to the barber shop, but instead he drove to his sister’s home in the village of Half Day and then into Chicago. While driving from Chicago northwest on Milwaukee avenue and while in the village of Wheeling, the car that he was driving collided with a motorcycle and another automobile, causing the death of plaintiff’s intestate. He was then on his way to visit his sister at Half Day. The court, in affirming the judgment, at p. 102, said:

“The first question confronting us is: Was Jefson made another assured by the permission given by Mrs. Jackson for him to use the automobile? We think from the facts stipulated there can be no doubt that immediately upon the permission being given, Jefson was an additional assured in accordance with section 9 of the insurance policy.

£ That brings us to another question: Could a limitation be placed upon that permission by the statement of Mrs. Jackson, that if he could get his haircut in a half hour he could take the automobile, when there is no such limitation as to permission expressed in the language used in the policy?”

In Dickinson v. Maryland Casualty Co., 101 Conn. 369, 377, the court said:

“Let us see how the law construes a provision of a contract of insurance which invites two constructions. Richard on Insurance (3d Ed.) § 90, thus states the accepted rule: 1 The contract of insurance being a unilateral contract framed mainly in the interest of insurers, and the insured being compelled to accept the form offered, in order to secure insurance, any ambiguity as to the purpose or meaning of its terms, or what property was intended to be covered, will be construed in favor of the insured.’ ”

The insurance company invites our attention to the case of People v. Luster, 292 Ill. App. 244. The defendant was prosecuted by information in the municipal court of Chicago on a charge of operating a motor vehicle without the consent of the owner, J. G. Lucas, in violation of section 36, ch. 95½, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 85.036], The cause was submitted to the court without a jury and a finding of guilty was entered. The court entered judgment on the finding and an appeal followed. Defendant was employed by Mr. Lucas as his chauffeur. The car was kept in a public garage. After driving Mrs. Lucas to the office of an optician and then taking her to her home, the owner told defendant to take the car to the garage. The defendant took the car out of the garage without the permission of the owner and was arrested while driving the car at 3:30 in the morning. One of the contentions of the defendant was that the provisions of the statute were not applicable to a private chauffeur, because his employment by the owner constituted the grant of a continuing consent to drive the automobile upon the streets. He argues that the termination of the day’s work did not operate as a withdrawal by the owner of his right to operate or drive the vehicle, irrespective of whether that might mean the absence of permission to use the car upon an errand connected with the chauffeur’s own business or pleasure, The court said, p. 251: “The mere fact that a person employs a chauffeur to drive his automobile does not mean that the employer parts with the possession of his property, nor does it mean that he forfeits his right and power to control and regulate the use of his own automobile. He is, notwithstanding such contract, the absolute owner and possessor of the automobile. The possession is his and not that of his servant or chauffeur. The chauffeur, by virtue of his employment, has the custody of the automobile as distinguished from its possession, but he has the care and charge of it merely for the owner, who still has the right to control it. If the owner is present and witnesses the chauffeur driving the automobile, then, of course, the consent of the owner in the absence of objection by him would be implied. If the owner is not present the chauffeur may drive the vehicle for such time, in such manner and to such places only as he may have permission, express or implied, from the owner to drive it. Otherwise the chauffeur would have absolute and complete control of the automobile, although it was the property of another, and could use or drive it as he saw fit, irrespective of the wishes of its owner. If defendant’s theory is correct, the chauffeur could drive the automobile either in the State or out of it, and irrespective of the wishes of the owner, his employer. We do not so understand the law. While for the time being the chauffeur may have the automobile in his custody and control, the property therein is with the owner, and the legal possession remains in the owner. The chauffeur using the automobile and driving it contrary to the directions of the owner may be guilty of trespass or even of conversion. This is the act which the statute declares to be a misdemeanor. In this case the evidence shows without contradiction that the informant was the owner of the automobile, that in his absence the defendant without his consent drove the same on the streets and highways of his State. Not only was the driving done without permission of the owner but contrary to his express directions.”

The insurance company urges that the facts in the case at bar and the facts in the three cases heretofore decided by this court, warrant different conclusions in the application of the provisions of the policy, and points out that in each of the previous cases the person driving the car at the time of the accident had permission to drive the car. Defendant insists that in the instant case the chauffeur did not have permission to drive the car for his own personal use, and asserts that two eases decided by the Supreme Court of Wisconsin aptly illustrate the distinction.

In Drewek v. Milwaukee Automobile Ins. Co., 207 Wis. 445, 240 N. W. 881, it appears that the administratrix of the estate of Constantine Drewek, deceased, recovered a judgment against Max Kopczynski for his negligent operation of k truck in such a manner as to cause the death of Constantine Drewek, who was riding in the truck. The truck belonged to Kopczynski’s employer, Jahnlce Bros., grocers, and was covered by a policy of insurance with an omnibus clause. Kopczynski had obtained permission from his employer to use the truck after working hours by falsely stating that he desired to use the truck to haul a phonograph for himself in exchange for a radio, when in fact Kopczynski used the truck after regular working hours to haul furniture at the request of his friend Drewek for a friend of the latter, and for performing such service the friend gave Kopczynski a dollar. The employer did not know he was using the truck for another purpose. The court followed the holding of the Tennessee court in the Stovall case to the effect that under the policy the chauffeur was operating the truck with the permission of the employer. However, it reversed the cause on another ground.

The case which defendant contends illustrates the proposition involved in the case at bar is that of Brochu v. Taylor, 223 Wis. 90, 269 N. W. 711. This case involved the liability of an insurance company under a clause similar to the one we have been discussing. It appears that Lester LaTourneau was employed by Arthur H. Band as a chauffeur and handyman at his summer home near Brule, Wisconsin. On a Saturday evening the Bands entertained a number of guests at dinner. The guests departed and at that time LaTourneau was still on duty. He banked the fire and assisted in closing up the cabin for the night. He then proceeded to his cabin, where he remained about 10 minutes. He then, in company with Erma Taylor, who was employed as a maid at the same summer home, got into the Buick sedan and drove to Brule, where he stopped in front of a tavern. While he was in the tavern, Erma Taylor moved over into the driver’s seat. LaTourneau and the tavern keeper came out of the tavern and got in the rear seat of the car. Miss Taylor started the car and drove toward Iron Biver. After proceeding about 3% miles, the sedan collided with the rear end of an automobile which was moving in the same direction. The jury found that at the time of the collision Erma Taylor was not driving’ the automobile with the permission of Mr. Band or with the permission of an adult member of the family. That finding of the jury was not questioned in the appeal. The jury found that LaTourneau was using the Band automo-. bile at the time of the collision with the permission of Mr. Band or the permission of an adult member of his family. There was no evidence of any express permission. The sedan was used on the night in question without the knowledge of either Mr. or Mrs. Band. Plaintiffs contended that the evidence established the inference that LaTourneau had implied permission to use the sedan for his own purpose. The court stated that the question to be decided was whether there was any evidence in the record reasonably permitting the inference that LaTourneau was using the sedan at the time of the collision with the implied permission of Mr. Band. There was evidence that LaTourneau was seen frequently in Brule with the automobile, and was seen in taverns several times late at night, and on such occasions he was driving one of the Band automobiles. The court held that such evidence did not prove that LaTourneau was using a car for his own purpose with the permission of Mr. Band. The court further said that in order to support an inference that one has the implied permission to use an automobile belonging to another, for his own pleasure and purposes, there must be evidence tending to show a course of conduct or practice known to the owner and acquiesced in by him, or by someone having authority to give permission.

It is interesting to note that in the Stovall case (157 Tenn. 301), the court, at p. 314, said:

“It is our opinion that the words ‘providing such use or operation is with the permission of the named assured’ were intended to exclude from the protection of the policy a person who should take the automobile and use it without permission or authority in the first instance. If, however, the automobile covered by the policy is delivered to another for use with the permission of the owner or insured, his subsequent use of it is with the permission of the insured, within the meaning of the policy, regardless of whether the automobile is driven to a place or for a purpose not within the contemplation of the insured when he parted with possession. ’ ’

The chauffeur was driving the car without the permission of Mrs. Allan. In accordance with the instructions that she had given to him, he had taken the car to the garage. If he did not receive further instructions from her, he was to have the car in front of her home at 11 o ’clock the following morning. In violation of these instructions, he returned to the garage early in the evening and took the car out for his own personal use. We would be doing violence to the language used in the insurance policy were we to hold that such conduct on the part of the chauffeur constituted permission from Mrs, Allan to use the car, Had he been prosecuted for driving the automobile without the consent of the owner, in all likelihood a conviction would have resulted. In the case of People v. Luster, supra, where a chauffeur was convicted, he was likewise driving the car on some personal business without the consent of the owner. If at that time Luster had, through the negligent operation of the car that he was driving, injured some person, no one would contend that the person injured, on recovering a judgment against Luster, could successfully maintain a garnishment action against an insurance company on a policy such as the one before us. To so hold would be the equivalent of saying that while he was guilty of the offense of driving a car without the consent of the owner, nevertheless the insurance company was liable under the policy because he was driving the car with the permission of the owner. We are satisfied that the case at bar is clearly distinguishable from the three cases decided by the three divisions of this district. Clearly, Byrne was not using the car with the permission of Mrs. Allan.

Another clause of the policy provides that “This policy shall constitute the entire contract between the Company and the Assured. . . . But in the event of the death, insolvency or bankruptcy of the Assured within the policy period, said policy for the unexpired portion of such period shall except in the event of cancellation cover the legal representative of the Assured; provided that notice in writing is given to the Company within thirty days after the date of such death, insolvency or bankruptcy.” A further contention of defendant is that Byrne was not operating the automobile with the permission of an adult member of the assured’s household, for the reason that when the assured named in the policy died, his household ended: The defendant also urges that in view of the fact that letters testamentary had not been granted to Mrs. Allan at the time of the accident, she had no power or authority to grant permission to George Byrne to operate the automobile for his personal use. Defendant finally contends that there was a failure on the part of Byrne to co-operate with the defendant. However, having resolved the cause by deciding that Mrs. Allan had not given permission to her chauffeur to use the car, it is unnecessary to extend this opinion by considering* the latter point.

For the reasons stated, the judgment of the superior court of Cook county is reversed and judgment entered here for the defendant and against the beneficial plaintiff, Lucille M. King*.

Judgment reversed.

Hebel, J., concurs.

Denis E. Sullivan, P. J., dissents.