author: Mr. Presiding Justice Hayes

text:
    T. Mac Downing, Guardian of Virginia Lee Zimmerli, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 9,248.

      Heard in this court at the October term, 1940.
    Opinion filed November 3, 1941.
    Rehearing denied May 5, 1942.
    Miller, Westervelt, Johnson & Guenther, of Peoria, and Leonard C. Berry, of Macomb, for appellant ; Eugene B. Johnson, of Peoria, of counsel.
    Roswell B. O’Harra, of Macomb, for appellee.
   Mr. Presiding Justice Hayes

delivered the opinion of the court.

T. Mac Downing, guardian of Virginia Lee Zimmerli, a minor, brought suit on behalf of his ward in the circuit court of McDonough county, against the Metropolitan Life Insurance Company, to recover the sum of two thousand ($2,000) dollars upon a policy of life insurance issued by defendant on the life of his ward’s father, in which his ward was designated beneficiary. The face amount of the policy was one thousand dollars ($1,000) for which amount the defendant admits liability. Defendant tendered this amount prior to trial, and the tender was accepted. The plaintiff claims an additional one thousand dollars, by virtue of an “Accidental Death Benefit” rider to. the policy, which, in substance, provided for payment to the beneficiary of an additional one thousand dollars■, if the insured’s death was caused “as the result directly and independently of all other causes, of bodily injuries, sustained through external, violent and accidental means, . . . ” if the insured’s death “shall not have been the result of self-destruction, while sane or insane,

Defendant answered by denying plaintiff’s allegations of accidental death claiming that the insured’s death was suicide. The case was tried before the court without a jury, who rendered judgment against the defendant for the additional accidental death benefit of one thousand ($1,000) dollars with interest and costs. Defendants have appealed to this court.

Maurice Zimmerli, the insured, a young man thirty-one years old, was found dead in a ditch along a country road near Macomb, Illinois, on September 11,1937. Examination of his body disclosed a bullet wound about the size of a half dollar in the left breast. His shotgun was found resting upright on the inside of a barbed wire fence, running parallel to the ditch and above it on the level ground bordering a timber. The butt of the gun rested on the ground at about a forty-five degree angle to the fence. The barrel leaned against the barbed wire. There was a small bush close to the gun, and one of its branches extended toward the trigger. Plaintiff contends that insured’s gun was accidentally discharged, while he was climbing over the fence. Defendant claims that insured intentionally discharged the gun himself and thus committed suicide.

To prevail in this case, plaintiff had the burden of proving that the death of the insured was sustained by external, violent, and accidental means and was not the result of suicide. Rogers v. Prudential Ins. Co., 270 Ill. App. 515. The proof in this case establishes beyond question that the cause of insured’s death was violent and external, and defendants do not dispute this. The only issue is whether plaintiff has sustained his burden of establishing that the cause of death was accidental, and not the result of suicide. It should be noted at the outset that in sustaining this burden, plaintiff is fortified by the presumptions against suicide, and that death under circumstances similar to those just described, is ordinarily accidental. Anderson v. Inter-State Men’s Accident Ass’n of Des Moines, Iowa, 354 Ill. 538. In the absence of proof to the contrary, these presumptions are sufficient to sustain a recovery for accidental death. Wilkinson v. Aetna Life Ins. Co., 240 Ill. 205. In this case, however, defendants introduced evidence that insured had been divorced by his wife; that he had been keeping company with a young woman who finally discouraged his attentions, and that he had told her on several occasions that if she terminated their courtship, he would commit suicide. Plaintiffs, on the other hand, introduced evidence that insured was a quiet but cheerful young man; that he had not been despondent nor had he threatened to commit suicide in the presence of his family; that he hunted frequently and finally that he had informed his mother the morning of his death that he was going hunting.

Under these circumstances, we believe that an issue was raised to be decided by the trier of facts, in this case the judge without a jury. Inasmuch as his decision is clearly not against the weight of evidence, it must be sustained. City of Quincy v. Kemper, 304 Ill. 303.

Defendant contends that this case must be reversed because the trial court admitted evidence of certain tests tending to show that insured could not have fired the gun himself. It must be emphasized that evidence of tests or experiments should be viewed with caution by the trial judge and admitted only where it is certain that they were conducted under circumstances very similar to those connected with the act to be illustrated thereby. It appears from the record here that a deputy sheriff and certain other officers visited the spot where the insured’s body was found the day after his death and again about a month later. On one of these occasions a representative of the defendant accompanied them. Some of these officers had been present, shortly after the body was found, and observed the physical location of the body and the gun leaning against the fence. On their return for their experiment they placed the gun in the exact spot that it was found, the barrel leaning against the fence, the butt in a depression,— apparently caused by its recoil, — which depression the defendant admits existed. Some of these men then attempted to lean over the fence and reach the trigger of the gun and all of them testified that it was impossible to do so. Testimony was introduced showing that the men who made the tests were all larger than the insured and had longer arms than he had. From this, plaintiff contends that inasmuch as these men were unable to fire the gun, the insured, a smaller man with shorter reach, was likewise unable to do so.

We have carefully examined the numerous cases cited by both plaintiffs and defendants on this question. Each one announces the rule stated above and applies it to varying fact situations. In a particular case, however, a trial judge in the first instance, and an Appellate Court on review, must determine whether in the case before it, the conditions under which the tests were made are so similar in all essential particulars to those originally existing that the results thereof will have probative force. Thus in Hauser v. People, 210 Ill. 253, the circuit court of Grundy county admitted testimony of tests made by various people as to the view which could be had of persons at and in a particular doorway, in order to support the identification of a defendant by another witness who had seen him in that doorway. The Supreme Court in approving the ruling of the trial court said: “Such evidence is competent if the conditions at the time testified to by the witnesses were the same as when the burglars entered the engine room, or so nearly the same as that the testimony would be fairly applicable to the issue.” We believe that the conditions under which the tests were made, in this case, were sufficiently similar to those existing at the time insured was shot, and that therefore this evidence was properly admitted.

Defendant also contends that the trial court committed reversible error by admitting the depositions of two witnesses who also testified at the trial. Defendant, prior to the trial, took the depositions of the insured’s employer and his mother. During the trial, both of these people were called and testified for plaintiff. Defendant read from the deposition of insured’s mother, while cross-examining her, in order to impeach her testimony, but did not introduce her deposition or that of insured’s employer in evidence. The plaintiff then offered both depositions in rebuttal over defendant’s objection. Defendant cites text authorities to the effect that it is improper to admit the deposition of a person who is present in the courtroom and available as a witness. Plaintiff, on the other hand, cites numerous Illinois cases holding that a deposition taken at the instance of one party to a law suit, but not introduced in evidence by that party, may he introduced by his opponent. In none of these cases, however, did the deponent testify at the trial. Plaintiff also cites Frink v. Potter, 17 Ill. 406, and Bradley v. Geiselman, 17 Ill. 571. In the former case, a deposition was taken by plaintiff and offered in evidence at the trial. Defendants produced the deponent in open court and objected to the admission of his deposition. The court held that the deposition was properly admitted, and that defendants could have called the witness as their own witness at the trial and examined him had they so desired. A similar result was reached in the Bradley case. None of these authorities however, cover the exact situation in the case at bar, but we do not deem it necessary to pass upon this issue. We have carefully compared the testimony of both witnesses on the stand with that given in their depositions and find no material discrepancies. We, therefore, do not believe that defendant was injured by the introduction of these depositions or that the trial court committed reversible error, if error it was, by so admitting them.

The judgment of the circuit court of McDonough county is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Defendant in Error, v. Beecher Hughey, Plaintiff in Error.
    Gen. No. 9,307.

      Heard in this court at the October term, 1941.
    Opinion filed February 24, 1942.
    Rehearing denied May 5, 1942.
    Lee Boland, James S. Baldwin and Perlry T. Lupton, all of Decatur, for plaintiff in error.
    Ivan J. Hutchens, State’s Attorney, for defendant in error; Joseph L. Rosenberg and. Roy B. Foster, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Hayes

delivered the opinion of the court.

Beecher Hughey, the plaintiff in error (hereinafter called defendant) was found guilty by the verdict of a jury, on an indictment charging him with wilful, intentional and corrupt acts, constituting a palpable omission of his official duty as a commissioner of the city of Decatur, Illinois, and a judgment was entered on the verdict, assessing a fine of one thousand ($1,000) dollars against the defendant and removing him from the office of commissioner.

Section 28, ch. 24, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 21.028] provides, in case a municipal officer shall at any time be guilty of a palpable omission of duty, or shall wilfully and corruptly be guilty of oppression, malconduct or misfeasance in the discharge of the duties of his office he shall be liable to indictment in any court of competent jurisdiction, and, on conviction, shall be fined in a sum not exceeding one thousand ($1,000) dollars; and the court in which such conviction shall be had shall enter an order removing such officer from office.

The defendant was convicted under count 1 of the indictment which count charged that the defendant, being a commissioner of the city of Decatur, a municipal corporation by virtue of his office did receive a certain check, which said check was then in the words and figures following, to wit: “Roy W. Christy General Contractor The Millikin National Bank of Decatur 70-69 Decatur, Ill., 11/14 1940 No. 1923 Pay to the Order of Frank Tenney Pontiac Co. $72.00 Seventy two & 00/000 — Dollars Mrs. Roy W. Christy.” This indictment further charged that the check was the property of the city of Decatur; that it became and was defendant’s official duty to deposit the same in the city treasury; that he failed to perform this official duty in that he failed to deposit the check in the city treasury, and it charges him with being guilty of palpable omission of duty.

Defendant contends that this count does not charge an offense. This contention is based upon the fact that it appears from the indictment that the check was made payable to the order of the Frank Tenney Pontiac Company as payee, and that the city of Decatur could not cash that check without the endorsement of the payee. In analyzing the count, it appears that the setting out of the check in haec verbos was surplusage. The material allegations are that the defendant was a commissioner of the city of Decatur, and received a certain check of the value of seventy-two ($72) dollars by virtue of his office,- — this check being the property of the city of Decatur; that it was his duty to deposit the same in the city treasury; that he failed to perform his official duty, so he is guilty of palpable omission of duty. This was sufficient charge, without setting out the entire check.

In the case of People v. Donaldson, 341 Ill. 369, it is said: “The criminal law is fast outgrowing those technicalities which grew np when the punishment for crime was inhuman and when it was necessary for the courts to resort to technicalities to prevent injustice from being done. Those times have passed, for criminal law is no longer harsh or inhuman, and it is fortunate for the safety of life and property that technicalities to a great extent have lost their hold. ’ ’

In the case of People v. Dean, 321 Ill. 128, an employee of the Alton and Southern Railroad was sent to the bank to deposit a check drawn by the Missouri Pacific Railroad Company on its treasurer, and payable to the Alton and Southern Railroad. This check was indorsed: “Pay to the order of Union Trust Company of East St. Louis, Ill.” On the way to the bank the defendant stopped and called the paying teller of the bank by telephone, reported to him that he was paymaster of the Alton and Southern Railroad and that he was sending his chauffeur with the check in question, and that he desired the bank to give the chauffeur the money in currency. The court said in sustaining the conviction on the charge of embezzlement, “It came to the possession of plaintiff in error by virtue of his employment. He was directed to deposit the check, with others, to his employer’s credit and was given custody of it solely for that purpose. . . . Whether the check, owing to its restricted endorsement, was of any value to plaintiff in error is immaterial, for it was an instrument of writing of value to his employer and he fraudulently converted it to his own use. ”

In the case of People v. Brunkala, 359 Ill. 206, the defendant claimed that the indictment was bad for the reason that it charged him with receiving checks all of which were similarly described with varying amounts, followed by an averment that the checks were the property of another person. The indictment charged the defendant with receiving stolen property. The dates, endorsements and banks on which the checks were drawn were not specified in the indictment. On account of the meager description, defendant claimed the indictment failed to charge any crime and would not be a bar to another prosecution for the same offense nor permit him to plead the statute of limitations. In answer to this the court said in its opinion: “No such particularity of description as is' asserted by Brunkala has been required for indictments in this State. An indictment need only be specific to the extent of notifying the defendant of the charge he has to meet, thereby enabling him to prepare his defense. The charge must be set out in a manner to also enable the court or jury to easily understand it. (People v. Slattery, 312 Ill. 202; People v. Westerdahl, 316 id. 86.) An indictment for receiving stolen property is sufficient if the stolen articles are referred to by their general names. (People v. Krittenbrink, 269 Ill. 244; People v. Knight, 323 id. 567.) "Where the article stolen is a check or note, it is only necessary for the indictment to state that the article stolen was a check or note, giving the value thereof and the name of the owner. (Young v. People, 193 Ill. 236.) In the present case the defendant has not been handicapped in the preparation of his defense, for the description of the stolen and received articles was sufficient not only to acquaint him with the nature of the charge, but to enable him, if he could do so, to defend against each particular check.”

It is said in the case of People v. Jasiecki, 301 Ill. 23, “It is sufficient that the indictment charges that the property belongs to persons who have a special ownership or interest in the property or who have possession of it.”

This record is conclusive that the seventy-two ($72) dollars was due the city of Decatur for the use of its machinery which was under the control of the defendant by reason of his office, and that the defendant directed the check to be made payable to the Tenney Pontiac Company rather than to the city of Decatur, and that he had one of his subordinates get the check and deliver it to him. The check was then credited to the defendant by the Tenney Pontiac Company.

While the defendant was on the stand, he made this answer: “I directed Mr. Hill to have the check made to the Tenney Pontiac Garage in payment of a debt of the City of Decatur Street Department in order to save my appropriation.” This answer was stricken by the court. Defendant complains of the court’s ruling in this regard. If the answer had been permitted to stay in the record it would have amounted to a plea of guilt' by the defendant, for the law provides for appropriations to be made by the city council for all anticipated expenditures. For the defendant to by-pass this provision of the law so that he could make a collection and disburse the city funds, without going through the channels provided by the law for all city finance, would constitute a palpable omission of duty as he was charged with in the first count of the indictment.

Defendant complains on the ruling of the trial court in permitting Sprague, a deputy sheriff, to volunteer the statement on cross-examination that there were ten indictments against the defendant. This was error, and should not have been permitted. The defendant can only fie tried on the particular charge set out in the indictment. Other crimes usually are not germane, but under this case it was harmless error, for the jury did not fix the punishment and the facts are such that a jury could not possibly arrive at any different verdict than that which they reached.

Complaint is made that the court permitted the witnesses to testify that the check was credited by the Tenney Pontiac Company to the defendant rather than requiring the production of the books and admitting them in evidence. It appears that Mr. Tenney changed and altered the books after he had testified before the' grand jury, claiming that the original entries were erroneous. This being true, the proper foundation for the admission of the books could not be made, and the best evidence under these circumstances were the parties that had first-hand information. There was no error made by the trial court in this regard.

Defendant claimed that he was under no duty to deposit the check in the city treasury, because it was a thing unknown to and undefined in the law. YvTe cannot adopt this view as the statutes expressly provide for a city treasurer and the word treasury is repeatedly used in the statutes as the place for receipts and disbursements of the money of a city and a definition of the term has been construed by the courts of this State.

The questions raised on the sufficiency of the indictment would have more force if the offenses charged in the indictment were larceny, embezzlement or receiving stolen property, but the charge here is wilful and corrupt acts constituting a palpable omission of his official duty, and in our judgment this is amply set forth in count 1 of the indictment so as to apprise the defendant of what he had to meet and to enable him to prepare his defense. The proofs offered, not only by the State but by the defendant, sustained count 1 beyond all reasonable doubt.

By reason thereof, we find the judgment of the circuit court of Macon comity should be and is hereby affirmed.

Judgment affirmed.


text:
    Della McMahon, Administratrix of Estate of Rolla McMahon, Deceased, Appellant, v. Ora B. Duncan, Administratrix of Estate of Wilbur C. Duncan, Deceased, and Illinois Central Railroad Company, Appellees.
    Gen. No. 9,314.
    Heard in this court at the October term, 1941.
    Opinion filed February 24, 1942.
    Rehearing denied May 5, 1942.
    Coy N. Overaker and Catron & Hoffmann, all of Springfield, for appellant; Lacey Catron, of Springfield, of counsel.
    Gillespie, Burke & Gillespie, of Springfield, for certain appellee.
    Graham & Graham, of Springfield, for certain other appellee; E. C. Craig, V. W. Foster and C. A. Helsell, all of Chicago, of counsel.
   Mr. Presiding Justice Hayes

delivered the opinion of the court.

Rolla McMahon and Wilbur C. Duncan were killed in a collision at Divernon, Illinois, on January 1, 1939, when the car owned and driven by Duncan struck a train operated by the Illinois Central Railroad. There were two witnesses to the collision who testified that the Duncan car turned from a side street on to the street intersecting the railroad right of way a block from the crossing; that the car proceeded at a speed of about 30 miles per hour, and failed to slacken its pace at any time before it reached the crossing. The train in question was coming from the north and proceeding in a southerly direction at a speed of about 55 or 60 miles per hour.

The record shows that north of the highway there were located a tool house and two lumber sheds, joined by a picket fence, which may have tended to obstruct the view of motorists traveling on the highway toward the crossing. It also appears from the record that the flashing signal at the crossing was in operation at the time of the collision and that the engineer on the train sounded his whistle as he approached the crossing. The Duncan car and the train collided at the crossing, — the car striking the train about six feet back of the front of the locomotive.

This action was brought in the circuit court of Sangamon county by the administratrix of the McMahon estate, against the administratrix of Duncan’s estate and the Illinois Central Railroad Company, under the Injuries Act, to recover damages for McMahon’s death. There was a trial before a jury and at the close of plaintiff’s case both defendants filed motions for directed verdicts. The motion on behalf of the administratrix of Duncan’s estate was allowed by the court and the jury instructed to find that the defendant was not guilty. The trial court denied the motion of the railroad company and evidence was then introduced on its behalf. At the close of all the evidence the railroad company again moved for a directed verdict in its behalf, which motion was also denied by the court. The case was submitted to the jury on instructions, but that body was unable to reach a verdict. Thereafter the railroad filed a motion to set aside the trial court’s ruling on its motion for a directed verdict and for judgment notwithstanding the failure of the jury to reach a verdict. Plaintiff filed a motion to set aside the directed verdict and the judgment of not guilty was entered in favor of the defendant Duncan. After a hearing, the court denied plaintiff’s motion but allowed the railroad’s motion for judgment, notwithstanding the failure of the jury to reach a verdict and entered a judgment of not guilty in its favor.

In our view of the case, there is evidence tending to establish wdlful and wanton misconduct on the part of the driver of the car. There is also a question as to whether or not the passenger in the car was guilty of wilful and wanton misconduct, sufficient to bar recovery by his administratrix. The evidence as to the negligence of the railroad is not so clear, but the record discloses that its right of way was obstructed by adjoining buildings and a tool house maintained by the railroad on its right of way, and that the speed of its train was excessive. It is therefore clear from these facts, and all reasonable inferences therefrom, that issues were raised before the trial court as to the negligence of the plaintiff and both defendants, and as to whether the negligence of any or all of them amounted to wilful and wanton misconduct. Such disputed questions of fact are properly decided only by a jury. It is not within the province of either a trial court or a court of review to weigh evidence in this class of cases. Lauer v. Elgin, J. & E. Ry. Co., 305 Ill. App. 200, 27 N. E. (2d) 315 and cases cited therein.

We do not believe that the trial court was justified at any point during the trial or after verdict to direct a verdict for any of the parties.

The judgment of the circuit court of Sangamon county is therefore reversed and the cause remanded to that court for a new trial.

Reversed and remanded.


text:
    Bituminous Casualty Corporation, Appellant, v. City of Virginia, Appellee.
    Gen. No. 9,319.
    Heard in this court at the October term, 1941.
    Opinion filed February 24, 1942.
    Rehearing denied May 5, 1942.
    Epler C. Mills, of Virginia, and W. C. Ropiequet, of East St. Louis, for appellant.

      C. G. Colburn, of Virginia, for appellee.
   Mr. Presiding Justice Hayes

delivered the opinion of the court.

On March 5, 1935, the city council of the City of Virginia authorized the purchase of a workmen’s compensation insurance policy on city workmen from the Bituminous Casualty Corporation. On March 7, 1935, that company issued a standard policy in favor of the village which provided among other things for an advance premium to be adjusted at the end of the policy year in order to determine the policy’s earned premium which, it was agreed, should be based upon the actual remuneration received by all city employees during the policy period. This policy was in force from March 7, 1935 to May 15, 1936 when it was canceled by the city. During that time the earned premium figured on the basis of remuneration received by regular city employees amounted to $163.88. If the remuneration received by relief workers who performed labor in the city during the effective period of the policy is considered, the earned premium during that period amounted to eight hundred forty-one dollars and fifty-seven cents ($841.57). The casualty company claiming this entire amount presented a bill to the city for seven hundred thirty-five dollars and fifty-five cents ($735.55), the unpaid balance of this earned premium after deducting the advance premium of one hundred six dollars and two cents ($106.02) paid by the city when the policy was issued. The city refused to acknowledge this additional indebtedness and as a result the casualty company brought a suit in the circuit court of Cass county requesting a jury which resulted in a verdict for the defendant city. A motion for a new trial was granted the casualty company and after a second trial, another verdict for defendant was returned. The casualty company then filed a motion for judgment notwithstanding the verdiet which was allowed by the court in the sum of fifty-seven dollars and eighty-six cents ($57.86) and costs. The Bituminous Casualty Corporation has, appealed to this court to reverse the judgment of the circuit court and prays judgment here for seven hundred thirty-five dollars and fifty-five cents ($735.55) and costs. The City of Virginia has prosecuted a cross-appeal from the judgment of $57.86 entered against it.

The judgment of the trial court assessed against the City of Virginia the difference between an earned premium computed on the basis of the actual remuneration of regular employees during the policy period and the advance premium paid by the city. We believe that its action in this regard was correct. The evidence clearly establishes a liability on the part of the city to pay any balance found due after the earned premium had been computed on the basis provided in the policy and the city has never contended that an employment relation did not exist between it and those regular employees whose remuneration was used in computing the earned premium. The city on its cross-appeal contends that because the trial judge refused to direct a verdict in favor of the casualty company at the close of all evidence he was precluded from entering the judgment he did on the motion of the casualty company for judgment notwithstanding the verdict. An examination of the record discloses that the motion of the casualty company at the conclusion of all the evidence asked that the jury be instructed to return a verdict for plaintiff in the sum of $735.55, which amount equaled the unpaid balance of the earned premium computed on the basis of the remuneration received by both regular and relief employees. The trial judge was clearly justified in refusing to so instruct the jury inasmuch as the record disclosed evidence that supported defendant’s theory of the case. On the post-trial motion of the casualty company, which was general in nature, the trial judge was not precluded from entering a judgment for that amount of plaintiff’s claim to which the undisputed facts showed defendant city had no defense.

The statement from Capelle v. Chicago & N. W. Ry. Co., 280 Ill. App. 471, to the effect that a trial judge who has denied a motion for an instructed verdict for defendant should not thereafter render a judgment for defendant notwithstanding the verdict but should order a new trial where the facts are disputed is not applicable here.

The major issue on this appeal concerns the liability of the City of Virginia for that part of the earned premium on its policy with the casualty company computed on the basis of the remuneration received by workmen on relief projects in the city. The casualty company introduced in evidence three applications for work relief projects filed with the Illinois Emergency Belief Commission which were signed by the mayor of the City of Virginia, on behalf of the applicant. Each of these applications was approved by the proper officers of the relief commission and it appears that pursuant to the provisions of the applications, workmen were supplied and three relief projects tmdertaken.

At the outset, it should be noted that two contractual relationships are involved in this case: that of insurer and insured between the Bituminous Casualty Corporation and the City of Virginia and the employer and employee relation between the city and the relief workers under the provisions of the purported contracts between the city and relief commission. No question is raised as to the validity of the contract of insurance but the city contends that the contracts .with the relief corn-mission were unauthorized and invalid. It appears from the record that applications for work relief were executed on behalf of the city by the mayor but it nowhere appears in the record that he had any authority to do so from the city council and the casualty company admits that it is unable to make such proof. It contends, however, that because the contracts between the relief commission and the city were fully performed they must be considered binding and the workmen furnished pursuant to their terms considered regular employees of the city. In support of this it cites numerous cases holding that where a proprietary function of municipal government is involved, a city may be bound by a contract fully performed by the other contracting party even though the contract was executed by a municipal officer without authority or in some other irregular manner, where the action of the city in accepting the benefits of the contract constitutes a ratification of the original contract, creates an implied contract or raises an estoppel. We have examined these cases carefully and find that all but three of them involve the right of a municipality to raise as a defense against a party with whom it has contracted, an alleged irregularity in the execution of that contract. They are clearly not applicable here. The City of Virginia does not deny the validity of its contract with the casualty company. The precise question here is whether it can assert the invalidity of its purported contract with the relief commission as a defense to a suit on its insurance contract. We believe that it can do so. The benefits received by the city under its contracts with the relief commission flowed from that body and not from the casualty company. Thus the equitable reasons for interposing the doctrines of implied contract, ratification or estojppel do not appear in this case.

The casualty company has also cited the cases of Avery v. City of Chicago, 345 Ill. 640, 178 N. E. 351; Westbrook v. Middlecoff, 99 Ill. App. 327; and Bituminous Casualty Corp. v. City of Harrisburg, 303 Ill. App. 75. In the Avery case, a taxpayer sought to enjoin the continued performance of a contract between the City of Chicago and a dead animal disposal company, alleging that the contract was void and in addition sought to compel the repayment to the city of moneys advanced pursuant to the executed portion of the contract. The Supreme Court enjoined performance of the executory part of the contract but refused to compel the' return of payments already made and in so doing noted the benefits received by the city from the executed portion of the contract. In the Westbrook case this court refused to enjoin at the suit of a taxpayer, payments due under an otherwise fully executed building contract to which a city was a party. In both of these cases, the benefits accepted by the city were enjoyed by the taxpayer who sought to void the contract under which they were obtained. We said in the latter case: ‘‘If a city which has received the benefits of a contract, not ultra vires, is estopped from interposing a defense based upon the manner in which the contract was made, individual taxpayers can not, by injunction, restrain the city from paying for or restoring the benefits.” Bituminous Casualty Corp. v. City of Harrisburg, supra, involved a fact situation somewhat similar to the case at bar. The court there, however, merely decided that from the evidence before it, there was a question of fact as to whether the city had entered into a contract with the relief commission, which question should have been submitted to the jury. It therefore held that the trial judge erred in directing a verdict for the defendant city, — thus these cases are distinguishable from the case at bar.

The Bituminous Casualty Corporation was presumed, under the law of this State, to know the procedure which the City of Virginia was required to follow in order to validly enter into a contract with the relief commission. Haas v. Lincoln Park Com’rs, 339 Ill. 491, 171 N. E. 526. It was therefore presumed to know that a city can act only through its council at a regular or called session, Selby v. Village of Win- field, 255 Ill. App. 67, and that where a contract is executed by an officer of a city, and his authority to do so, is later questioned, such authority must be shown. City of Chicago v. Peck, 196 Ill. 260; Illinois Nat. Bank v. Town of Bois D’ Arc, 243 Ill. App. 587. Under these circumstances the casualty company must be held to have had notice that no regular employment relation existed between the City of Virginia and those workmen furnished by the Illinois Emergency Belief Commission. As a result, in computing the earned premium on its policy with the City of Virginia, it was not entitled to include the remuneration received by relief workers during the policy period, which remuneration as a matter of fact was paid by the Illinois Emergency Belief Commission and not by the City of Virginia.

The judgment of the circuit court of Cass county is therefore affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Burke

text:
    Sylvia B. Wattman, Administratrix of Estate of Henry Berg, Deceased, Appellant, v. St. Luke’s Hospital Association and Harry Culver, Appellees.
    Gen. No. 41,875.

      Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed April 8, 1942.
    Montgomery, Hart, Pritchard & Herriott, of Chicago, for appellant; L. Edward Hart, Jr. and Eugene Swigart, both of Chicago, of counsel.
    Stanley L. Shetler, of Chicago, for certain appellee; Errett O. Graham, of Chicago, of counsel.
    Rawlins & Wright, of Chicago, for certain other appellee; Don C. Wray, of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On June 2, 1938, Sylvia B. Wattman, executrix of the estate of Henry Berg, deceased, filed a two count complaint in the circuit court of Cook county against St. Luke’s Hospital, a corporation, and Harry Culver. The first count alleged that on or about August 13, 1937, Henry Berg employed Culver, a physician and surgeon, to treat him (Berg) for certain sicknesses and maladies from which he was suffering; that Culver accepted such employment and began treating him (Berg); that on or about August 22, 1937, Berg went to the hospital maintained and conducted by St. Luke’s Hospital, a corporation, and for a reward then and there agreed upon between Berg and an agent of the hospital, Berg was admitted to the hospital; that for such reward so agreed upon, the hospital entered upon the maintenance, service and care of Berg, and thereafter, through its agent, continued such maintenance, service and care; that Berg was at all times in the exercise of due care for his own safety; that while Berg was a patient of and under the care and treatment of defendant Culver, and while he was a patient in the hospital under the supervision, care and maintenance of the agents of both defendants, the defendants, or either of them, by themselves or their agents, did one or more of the following negligent acts:

“(a) The defendant, Harry Culver, not regarding his duty as a physician and surgeon, during the time of his treatment of plaintiff’s intestate, so unsldllfully and negligently conducted himself that in performing an operation for the removal of the prostate gland of plaintiff’s intestate he failed to cause plaintiff’s intestate to be properly anaesthetized, and as a direct and proximate result thereof plaintiff’s intestate, during the course of such operation, felt great pain and anguish and as a further proximate result thereof injuries to his back, head and neck, and bones in his back and neck were broken, and he received a great and severe shock to his nervous system.
“(b) That the defendant, Harry Culver, not regarding his duty as such physician and surgeon during the time that plaintiff’s intestate was his patient, so unsldllfully and negligently conducted himself in that behalf that by and through his want of skill and care plaintiff’s intestate received injuries to his back, neck and head, and divers bones in his back and neck were broken, and plaintiff’s intestate suffered a great and severe shock to his nervous system, but said defendant, Harry Culver, carelessly and negligently failed to discover the injuries so sustained by plaintiff’s intestate and properly treat them.
“(c) That the defendant, Harry Culver, not regarding his duty as such physician and surgeon during the time that plaintiff’s intestate was his patient, so unsldllfully and negligently conducted himself in that behalf that by and through his want of skill and care plaintiff’s intestate was allowed to leave the hospital while suffering from injuries to his back, neck and head, and while divers bones in his back and neck were broken, and while plaintiff’s intestate was suffering from a great and severe shock to his nervous system, all of which matters the said defendant, Harry Culver, knew or should, upon the exercise of due care and caution, have discovered.
“(d) The defendant, St. Luke’s Hospital, a corporation, not regarding its duty in so maintaining its said hospital and caring for plaintiff’s intestate, during the time of its treatment of plaintiff’s intestate, so unskillfully and negligently conducted itself that during an operation for the removal of the prostate gland of plaintiff’s intestate, performed in an operating-room by that defendant for that purpose maintained, under the supervision of its agents, and for the use and occupancy of which plaintiff’s intestate was charged by said defendant, it failed to cause plaintiff’s intestate to be properly anaesthetized, and as a direct and proximate result thereof plaintiff’s intestate, during the course of such operation, felt great pain and anguish, and as a further proximate result thereof received injuries to his back, head and neck, and bones in his back and neck were broken and he received a great and severe shock to his nervous system.
“(e) That the defendant, St. Luke’s Hospital, a corporation, not regarding its duty in so maintaining its said hospital and caring for plaintiff’s intestate, so unskillfully and negligently conducted itself in that behalf that by and through its want of skill and care plaintiff’s intestate received injuries to his back, neck and head, and divers bones in his back and neck were broken, and plaintiff’s intestate suffered a great and severe shock to his nervous system, but said defendant, St. Luke’s Hospital, a corporation, through its agents, carelessly and negligently failed to discover the injuries so sustained by plaintiff’s intestate and properly treat them.
“(f) That the defendant, St. Luke’s Hospital, a corporation, not regarding its duty in maintaining its hospital and caring for plaintiff’s intestate while plaintiff’s intestate was a patient therein, so carelessly and negligently conducted itself in that behalf that by and through its negligence and want of care plaintiff’s intestate was allowed to leave said hospital while divers bones in his back and neck were broken, and while plaintiff’s intestate was suffering from a great and severe shock to his nervous system, all of which the defendant, St. Luke’s Hospital, a corporation, knew or should, by the exercise of ordinary care, have discovered.” This count also alleged that as a direct and proximate result of the injuries so received, Berg died on October 17, 1937, in the State of Illinois; that he left surviving a widow and other next of kin who were deprived of support by reason of his death; that the widow and next of kin were not guilty of any negligence contributing to the injury or death of Berg, and that plaintiff was duly appointed as administratrix of the estate of the deceased by the probate court of Cook county. The second count is ii\ the language of the first count, to and including the portion quoted. The second count then continues that “as a direct and proximate result of the injuries so received, plaintiff’s intestate was compelled to expend and become liable for large sums of money for medicine, doctors’ bills, nursing and hospital bills; that at the time he received such injuries plaintiff’s intestate was receiving as a result of the pursuit of his affairs, large sums of money, and as a direct and proximate result of the matters herein above stated was incapacitated from the pursuit of his affairs and lost large gains which he otherwise would have had and received; that on October 17, 1937, plaintiff’s intestate died from causes other than the injuries so received by him, and up to the time of his death he sustained damages, by reason of the matters herein stated, in the sum of $10,000.” The corporation answered, admitting that it was maintaining a hospital in Chicago; that it was a corporation not for pecuniary profit; that its object was the establishment and maintenance of a hospital for charitable purposes; that it had no capital stock, paid no dividends, and that at the time of the commission of the supposed grievances it was engaged in the maintenance of a hospital for charitable purposes and not for pecuniary profit. The answer admitted that Berg was a patient in the hospital, but that all medical and surgical services rendered were under the charge and control of the physician retained by Berg. It denied any negligence by it or its servants. Culver filed a motion to strike the complaint on the ground that it did not show who were the next of kin of the deceased other than the widow, and that the complaint was duplicitous. On December 6, 1940 this motion was denied. On December 23,1940, Culver answered. He admitted that he was a physician and surgeon, and denied all the other allegations of the complaint. Plaintiff did not file a reply to the answer. The cause came on for trial on March 27, 1941. The attorney for Culver then moved to require the plaintiff to elect as to which count she desired to proceed under. This motion resulted in a colloquy between the court and the attorneys representing the respective parties. As a result of this discussion, the trial judge announced that he would strike the second count. The attorney for plaintiff stated that he would stand on both counts. The attorney representing the hospital then asked the attorney representing plaintiff as to his position concerning the case against his client. Counsel for plaintiff admitted that he could not maintain an action in tort against the hospital and that the first count, based on the Injuries Act (ch. 70, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 38.01 et seq.]) was required under the law to be in tort. Counsel for plaintiff, in effect, agreed to the dismissal of the first count as to the hospital corporation. He contended, however, that he could maintain the second count against the hospital on the basis. of the violation of a contractual relationship. Plaintiff insisted before the trial judge that she had a right to present evidence and try the case on both counts as to Dr. Culver. The record shows the following statements made by the court and the attorneys:
“Mr. Hart (Attorney for plaintiff): I want to stand on the complaint, if the Court please, and go up on the thing.
“The Court: You preserve your .record, and whatever the result is carries the question right up with it.
“Mr. Hart: Yes.
“The Court: Is that the original (indicating) ?
“Mr. Hart: Yes. Well, what I mean by that, I don’t want to proceed under just the first count under the circumstances.
“Mr. Wright: That is all that is left then. When the Court strikes the count it is out.
“Mr. Hart: Well, I mean you can dismiss the case as to the other count, because I don’t want to go ahead.
“The Court: Well, I can’t dismiss as to Culver on the first count.
“Mr. Hart: I appreciate that, but I won’t offer any evidence.
“The Court: You refuse to proceed?
“Mr. Hart: Yes, I mean I feel that I have two actions here, and it is going to injure me to go ahead solely upon one, so I want to, under those circumstances, preserve the thing and go up on them, my right to present both of them at one time.
“The Court: All right. Now I suppose you have given that considerable thought.
“Mr. Hart: Yes, there is no doubt about it. I think that the complaint is perfectly good. . . .
“The Court: All right. Let the record show that the Court is ready to proceed, with the jury sworn to answer questions, and the Court having stricken the second count on motion of the defendants, and counsel now refuses to proceed with the trial of the case on the first count and declines to offer any evidence, and the Court being ready and willing to hear the case and to receive evidence, is obliged to dismiss the suit for want of prosecution.
“Mr. Hart: May the record also show my reason for so refusing—
“The Court: Yes.
“Mr. Hart: — to go ahead.
“The Court: Yes.
‘ ‘ Mr. Hart: That being that I feel that I have a right of action under both the first and second counts, and that it would be injurious to me to proceed solely under the first count with the second count stricken out, and that consequently I have refused to go ahead under the first count.
“The Court: All right. That preserves it.” Thereupon the court struck the second count of the complaint, dismissed the cause for want of prosecution and entered judgment against plaintiff for costs. Plaintiff appeals and asks that the judgment be reversed and that the cause be remanded for trial.

Plaintiff states her theory to be that “under subsection 2 of section 43, Civil Practice Act of 1933, where there is doubt as to which of two or more statements

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of fact are true, separate counts may be stated in the alternative covering the doubtful facts; that, further, if a doubt still remains concerning which a finding of fact by the jury should be made, the case should be submitted to the jury upon the alternative causes of action stated in the separate counts. If, however, when all proof is in, the doubt is removed at that time the plaintiff should be forced to elect the appropriate cause of action and dismiss the alternative.” Defendant Culver states his theory to he that “plaintiff did not have the cause of action attempted to be asserted in Count 2 of the complaint, which was likewise the theory of the trial court. The case being called for trial, the trial court struck Count 2 of the complaint and on motion of the co-defendant, St. Luke’s Hospital, dismissed it as to Count 1 because it was a charitable institution and therefore not liable for torts of its servants or agents; that the plaintiff thereupon refused to proceed to trial on Count 1 against the defendant, Harry Culver, and the court then dismissed the case for want of prosecution.” The theory of the hospital is that “there should have been an election between the two counts before the trial began, but that in any event, since it is admitted by the plaintiff that the hospital is and was a charitable institution and not liable to suit in tort, the dismissal of both counts as to the hospital was proper.” ■

Plaintiff asserts that an action for injuries to the person survives the death of the injured party where death results from causes other than the injury, and that when a party is in doubt as to which of two alternate statements of a cause of action are true, he may plead them in the alternative. Dr. Culver replies that no cause of action accrues to an administrator for injuries to a decedent not resulting in death unless an action was begun by the decedent in his lifetime; that the order striking Count 2 was interlocutory and not qppealable; that Counts 1 and 2 of plaintiff’s complaint are not alternative statements of the same cause of action and were improperly joined; that no prejudice resulted to the plaintiff by the order of the court requiring her to proceed to trial on one count only, and that the order dismissing the case for want of prosecution was invited by the plaintiff and she is, therefore, in no position to complain. The brief filed on behalf of the hospital adopts the points urged by Dr. Culver, and also asserts that the action of the court was cor-root since a charitable institution is not liable for torts. The first count alleges that as the direct and proximate result of the injuries received, plaintiff’s intestate died in this State on October 17, 1937, that he left a widow and other next of kin who were deprived of their means of support by reason of his death. All of the parties are in agreement that the first count alleged a case against Dr. Culver under the provisions of the Injuries Act (ch. 70, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 38.01 et seq.]). If Berg died as a direct and proximate result of the injuries sued for, the only right of action available to the administratrix is under the Injuries Act. Count 2, however, is not bottomed on the Injuries Act. This count alleges that as a direct and proximate result of the injuries received, plaintiff’s intestate was compelled to expend and become liable for large sums of money for medicine, doctors’ bills, nursing and hospital bills; that at the time he received the injuries, plaintiff’s intestate was receiving as a result of the pursuit of his affairs, large sums of money, and as a direct and proximate result of the matters stated was incapacitated from the pursuit of his affairs and lost large gains which he otherwise would have had and received; that on October 17, 1937, plaintiff’s intestate died from causes other than the injuries so received by him, and up to the time of his death he sustained damages in the sum of $10,000. Plaintiff relies on sec. 494, ch. 3, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 110.591] (sec. 339 of the Administration of Estates Act) which reads: “In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander and libel). . . She insists that under the language of this statute the cause of action which Berg had against the defendants during his lifetime, survived. Defendants maintain that no cause of action accrues to an administrator for injuries to a decedent not resulting in death unless an action was begun by the decedent in his lifetime. They call attention to the fact that section 494 provides for the survival of actions to recover damages for an injury to a person, but does not provide for the survival of rights of action. The position of the defendants is that the legislature intended that actions should survive and that there is no provision for the survival of a cause of action. They quote definitions of the word ‘ ‘ action ’ ’ and contend that it means a legal proceeding in a court of justice by a plaintiff against a defendant. Plaintiff argues that section 494 provides for the survival of causes of action and suits actually commenced in a court of law. We have read all of the cases cited. In the case of Genslinger v. New Illinois Athletic Club of Chicago, 229 Ill. App. 428, a question arose under section 123 of the Administration Act (now sec. 494, ch. 3, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 110.591]) whether or not an action for conversion of personal property survived the death of a person entitled to bring action. Counsel for appellee maintained that the action did not survive under section 123 of the Administration Act because Gunslinger had not commenced the action before his death and that section 123 provided only for the survival of actions commenced by the person in his lifetime. Counsel for the appellee argued that there was a vast difference between “actions” and “causes of action” and that the term “action” applied to a proceeding in a court, while a “cause of action” is the right to institute a judicial proceeding. This court said at page 451:

“We deem it unnecessary to cite further cases on this point. The above authorities are sufficient to show that the courts of this State, like the courts of others, have used the terms ‘action,’ ‘causes of action’ and ‘right of action’ synonymously. We are of the opinion that the word ‘action’ as used in section 123 means ‘causes of action’ or ‘right of action’ and is not limited in meaning to an action actually commenced in court. ’ ’ We are of the opinion that the Genslinger case states the law and that the word “action” as used in section 494 is synonymous with “cause of action’-’ or “right of action,” and is not limited to an action commenced in court. Hence, plaintiff had the right to prosecute both the first and second counts of her complaint.

Defendants argue that Counts 1 and 2 are not alternative statements of one cause of action and were improperly joined. They cite opinions delivered prior to the enactment of the Civil Practice Act. Section 43 of the Civil Practice Act (sec. 167, ch. 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.043]) provides that parties may plead “as many causes of action . . . as they may have” and that “When a party is in doubt as to which of two or more statements of fact is true, he may state them in the alternative, or, when they appear in different counts or defenses (whether legal or equitable) he may state the counts or defenses which contain them in the alternative, and a bad alternative shall not affect a good one.” Section 44 (see. 168 [Jones Ill. Stats. Ann. 104.044]) provides that “Subject to rules any plaintiff or plaintiffs may join any causes of action, whether legal or equitable or both, against any defendant or defendants. . . . But the court may, in its discretion, order separate trials of any such causes of action ... if they cannot be conveniently disposed of with the other issues in the case. Any cause of action . . . may be transferred at any time, by order of the court, from the law docket to -the equity docket, or vice versa, as convenience and the nature of such action . . . may require, and when so transferred shall proceed as though commenced on the proper side of the court; and that any issue may at any time, by order of the court, be transferred for trial to the proper side of thq court.” We are satisfied that under the liberal provisions of the Civil Practice Act, plaintiff had the right to join the two causes of action.

Defendants maintain that the order striking Count 2 was interlocutory and cannot be appealed. Plaintiff agrees with this contention. She states, however, that she is not appealing from the order striking Count 2, but is appealing from the judgment which was entered following the action of the court in striking this count. The record shows that the appeal is from the judgment. Hence, the point is without merit. Defendants insist that no prejudice resulted to the plaintiff by the order of the court requiring her to proceed to trial on one count only. They also maintain that the order dismissing the case for want of prosecution was invited by the plaintiff and she is, therefore, in no position to complain. This argument is based largely on the provision of section 44 of the Civil Practice Act that the court “may in its discretion, order separate trials of any such causes of action ... if they cannot be conveniently disposed of with the other issues in the case.” The attorney representing Dr. Culver asked the court to require plaintiff to elect as to which count she wished to proceed under. However, the court did not attempt to exercise a discretion relative to granting a separate trial. Instead, the court struck the second count. It is interesting to note that the motion in the nature of a demurrer which was filed by Dr. Culver before he filed his answer, did not raise any question about the survival of the cause of action stated in the second count. In the colloquy following Dr. Culver’s oral motion to require the plaintiff to elect, the attorney for Dr. Culver stated that he was again making the point on which he was overruled before the motion judge. The record does not show that he made any point before the motion judge as to the survival of the right of action stated in the second count. We cannot agree with the contention of defendants that the order dismissing the cause for want of prosecution was invited by the plaintiff. The colloquy which we have recited clearly shows that all of the parties, including the trial judge, understood that plaintiff was standing on the first and second counts as to Dr. Culver and on the second count as to the hospital corporation, and that plaintiff was going to prosecute an appeal in order to sustain her right to proceed under the second count as to the hospital corporation and under both counts as to Dr. Culver. We are of the opinion that the trial court should have permitted plaintiff to introduce her testimony under both counts. If such testimony did not tend to prove the allegations of one of the counts, that count could be stricken. The court also could have ruled on the motion of Dr. Culver to require the plaintiff to elect on which count she would proceed, which in effect, was a request for a separate trial as to each count.

In the argument in the trial court plaintiff conceded that the allegations of the first count did not state a cause of action against the hospital corporation. The record shows that the hospital is a nonprofit charitable corporation. The parties agree that such a corporation cannot be sued for the torts of its servants. Plaintiff insists, however, that she does have a right of action against the hospital corporation based on the second count. She points out the allegation that on August 22, 1937, Berg and the hospital, through its agent, agreed, for a reward to be paid to the hospital for its services, to bestow certain care, and that the hospital failed to perform the service which it contracted to perform. Plaintiff leans heavily on the case of Armstrong v. Wesley Hospital, 170 Ill. App. 81. A reading of that case discloses that the Wesley Hospital undertook for a consideration of $20 to give Minna Armstrong certain accommodations and services. She claimed that the services which defendant promised to give were not given, and brought suit in assumpsit seeking damages for breach of contract. The court directed a verdict for the defendant and entered judgment accordingly. In reversing the judgment and remanding the case, the Appellate Court drew a distinction between the case of Parks v. Northwestern University, 218 Ill. 381, and the case before it, and said at page 83:

“However, in the university case and other like cases the suit was an action on the case for personal injuries, while the case at bar is trespass on the case upon promises. The declaration is in assumpsit, not in tort. It sets up a contract between the parties, wherein for a consideration of $20 paid to the defendant the latter undertook and promised to do certain things, and it further alleges that the defendant failed to perform its promises. Justice would certainly suggest that if these allegations are true, plaintiff is entitled to recover in assumpsit at least the money paid by her to defendant, and possibly whatever damages for the breach of the contract may be capable of exact proof, although we express no opinion as to the measure of damages, that question not being before us in this case. ... In our opinion the trial court in the case before us erred in treating this case as an action in tort instead of an action in assumpsit, and we hold that the jury should have been permitted to pass upon the facts as alleged in the declaration.”' The Armstrong case relied upon the case of Ward v. St. Vincent’s Hospital, 39 App. Div. 624, 57 N. Y. S. 784. In the instant case plaintiff suggests that only the measure of damages, not an issue at the present time, is affected by the consideration of the form of action. As we have seen, the second count adopts most of the allegations of the first count. The part of the first count so adopted by the second count charges that the hospital corporation, by its servants and agents, so unskilfully and negligently conducted itself that the plaintiff was injured, as therein detailed. The second count charges that as a direct and proximate result of the injuries so received, Berg was compelled to expend and become liable for large sums of money for medicine, doctors’ bills, nursing and hospital bills, and that as a direct and proximate result of such injuries he was incapacitated from the pursuit of his affairs and lost large gains which he otherwise would have received. The allegations in the second count, except for the allegation that Berg died from causes other than the injuries so received, are substantially the same as those in the first count. The effect of plaintiff’s argument is that by changing the form of the action against the hospital corporation from tort to contract, such action may be maintained. In the Parks case where plaintiff sought damages for injuries resulting in the loss of an eye through the negligence of one of the professors employed by defendant while plaintiff was in his charge as a student in a laboratory of defendant, a demurrer was sustained to the declaration and judgment entered against plaintiff. The Appellate Court affirmed the judgment. (121 Ill. App. 512.) The Supreme Court, in affirming the trial court and the Appellate Court, said (218 Ill. 381, 384):

“The appellee university is a private corporation but is organized for purely charitable purposes. It declares no dividends and has no power to do so. It depends upon the income from its property and the endowments and gifts of benevolent persons for funds to carry out the sole object for which it was created, —the dissemination of learning. Its - charter secures to all persons of good moral character who have made sufficient preliminary advancement the benefits of the university, and all of its funds and property, from whatever source derived, are held in trust by it, to be applied in furtherance of the purpose of its organization and increasing its benefits to the public. The funds and property thus acquired are held in trust, and cannot be diverted to the purpose of paying damages for injuries caused by the negligent or wrongful acts of its servants and employees to persons who are enjoying the benefit of the charity. An institution of this character, doing charitable work of great benefit to the public without profit, and depending upon gifts, donations, legacies and bequests made by - charitable persons for the successful accomplishment of its beneficial purposes, is not to be hampered in the acquisition of property and funds from those wishing to contribute and assist in the charitable work, by any doubt that might arise in the minds of such intending donors as to whether the funds supplied by them will be applied to the purposes for which they intended to devote them, or diverted to the entirely different purpose of satisfying judgments recovered against the donee because of the negligent acts of those employed to carry the beneficent purpose into action. That the appellee, though a private and not a public corporation, being a purely charitable institution, is not answerable for the negligent acts of its employees, is held but with little diversity of opinion. ’ ’ The reasoning behind the rule is that since the trustees can'not divert the funds by their direct act from the purpose for which they were donated, such funds cannot be indirectly diverted by the tortuous or negligent acts of the managers of the funds, or their agents or employees. The Parks case holds that the rule applies to private as well as public charitable corporations. It will be observed that .in the Parks case the Supreme Court announced that a charitable institution is not answerable for the negligent acts of its employees. In the case at bar, plaintiff bases her action against the hospital corporation upon the negligence of the servants of such hospital. Section 31 of the Civil Practice Act states that neither the names theretofore used to distinguish the different ordinary actions at law, nor any formal requisites theretofore appertaining to the manner of pleading such actions shall thereafter be deemed necessary or appropriate, and that the pleadings shall contain a plain and concise statement of the pleader’s cause of action. If we adopted plaintiff’s theory as to the action against the hospital corporation, all that would be necessary in order to overcome the rule laid down in the Parks case, would be to change the form of action from tort to contract. The Armstrong case on which plaintiff relies, carefully points out that if the plaintiff’s allegations were true, she was entitled to recover in assumpsit “at least the money paid by her to defendant and possibly whatever damages for the breach of the contract may be capable of exact proof.” We have examined the abstract and briefs in the Armstrong case, and find that there plaintiff relied on two counts, each based on a contract. In her brief Mrs. Armstrong said: “The plaintiff seeks to recover from the Wesley Hospital for the breach of two simple contracts. These contracts are set out in a declaration containing two counts. The evidence shows that the breach of these contracts was accompanied by some negligence; that the action is based on the rights of the plaintiff under these contracts and not upon the negligence accompanying the breach of the contracts.” An examination of the authorities satisfies us that a charitable institution such as St. Luke’s Hospital, is necessarily competent to contract in order to carry out the purpose for which it was incorporated and may be sued for breach of such contracts. We are convinced, that the doctrine of respondeat superior does not extend to such institutions. The rule followed in the Armstrong and the Ward cases would inevitably abrogate the doctrine announced in the Parks case— that a charitable trust is excepted from the rule of respondeat superior. In the Parks case (121 Ill. App. 512) the Appellate Court said (517):

“It is further urged that the plaintiff was a student for hire, and that the defendant is authorized to charge and receive tuition by its charter. Therefore, when the plaintiff was admitted as a student and paid his tuition, a contract existed between the plaintiff and defendant in which the defendant assumed precisely the obligations and incurred precisely the same liability an individual would have incurred under a like contract. We are of the opinion that the fact that the plaintiff was required to and did pay tuition for-the instruction and benefits offered by the defendant, does not deprive the defendant of its eleemosynary character. The amounts thus received from plaintiff and other students are not for private gain, but contribute to the funds of the institution and enable it more effectually to accomplish the purposes for which it was founded and organized. The fact that the defendant received from the plaintiff and other students tuition, does not make it the less a public charity, nor does it expose the trust fund to the liability of being-depleted or frittered away by the negligence of its officers, professors or employees. In case of injury the wrong-doer, not the trust fund, must respond.”

We are of the opinion that the complaint in.the instant case does not state a cause of action against the St. Luke’s Hospital Association under either count.

For the reasons stated, the judgment of the circuit court of Cook county is affirmed as to the defendant St. Luke’s Hospital Association, and reversed as to the defendant Harry Culver, and remanded with directions to vacate the order dismissing the cause for want of prosecution as to Harry Culver, and to vacate the order striking the second count of the .complaint as to Harry Culver, and for further proceedings not inconsistent with this opinion.

Judgment affirmed as to St. Luke’s Hospital Association and reversed and remanded loitli directions as to Harry Culver.

Hebel and Kilby, JJ., concur.


text:
    Kathryn Mader, Appellant, v. Mandel Brothers Department Store, Appellee.
    Gen. No. 41,897.
    Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed April 8, 1942.
    Abraham Browne, of Chicago, for appellant.
    B. S. Quigley, of Chicago, for appellee; Ezra L. D’Isa, of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

In a statement of claim filed in the municipal court of Chicago, Kathryn Mader alleged that on December 8,1938, she was shopping in Mandel Brothers Department Store and that she fell and was injured, due to the presence of a foreign substance on an escalator on which she stepped for the purpose of riding from one floor to another. Defendant denied that there was any slippery substance on the escalator, or that it was negligent, and that if such substance was on the escalator it did not allow the same to remain there; that defendant did not know that any such substance was on the escalator, and in the exercise of reasonable diligence could not have gained knowledge of the presence of any such substance. A trial before the court and six jurors resulted in a verdict finding defendant guilty and assessing damages at $450. The court allowed defendant’s motion for a judgment non obstante veredicto against plaintiff for costs, to reverse which, plaintiff has appealed.

Plaintiff was the only witness. At the time of the trial, she was 39 years of age and was employed as a bookkeeping machine operator by the city of Chicago. On December 8, 1938, she came to the store, accompanied by her sister and her niece, who was then 5 years of age. The plaintiff and her niece separated from plaintiff’s sister. Plaintiff was to meet her sister on the main floor of the store at 5:30 p.m. At 5:15 p.m. plaintiff was shopping on the third floor. She desired to be carried on an escalator from the third floor to the second floor and walked to the escalator. She testified that as she put her right foot forward she slipped and went down four or five steps and finally gripped herself, managed to get to her feet and walked back up two or three steps to the floor from which she started; that she then started to walk and felt something sticking to the floor; that she put her hand down to her foot and took a substance off which was candied popcorn; that she did not notice the popcorn as she was walking on the third floor; that she did not observe her shoe at that time; that the first time she observed the popcorn was when she came back up after she fell; that she called the floor manager and informed him; that her stockings were torn; that her left knee was bleeding; and that the nurse in the store bandaged her knee. She testified further that in walking toward the escalator she did not observe-any sticky substance on her shoe; that accompanied by her niece and sister she went home in a taxicab; that she visited a physician who had an office in the neighborhood where she resided; that he washed and dressed her knee; that she remained in bed for four days; that she made three visits to the office of the physician, and that she feels a slight pain in her knee during damp weather. On cross-examination, witness testified that in approaching the escalator her niece was following behind her; that she looked at the steps as they moved along before she stepped onto them; that she did not see anything on the steps; that she descended with the escalator; that then she was “very naturally taken right off my feet”; that she fell in a sitting position; that she then walked back up the steps; that after she got off the escalator she noticed the substance on her foot; that it was on the sole of her left foot; that she did not notice anything on her feet while she was coming up the steps; that at the time she boarded the escalator she stepped forward with her right foot and “naturally as you bring your other foot forward, I slipped, and down I went”; that she slipped with her left foot; that at the time she slipped her left foot was on the escalator; that after she got off the escalator on the third floor she found the candied popcorn, which was “just a kernel” and that it was “brown and squashed.” Asked whether she knew if the popcorn got on her shoe before she stepped on the escalator or after, she answered, “Well, I feel quite certain it must be correct, after I stepped on the escalator. I know definitely it wasn’t on my shoe before or I would have fallen before. ’ ’ Asked whether the popcorn was on the escalator step or on the platform leading to the escalator, she answered, “On the escalator, not on the platform.” She stated she did not know how the popcorn became attached to the escalator. Plaintiff was the only person on the escalator. The parties stipulated that if the physician took the stand, he would testify that he was paid $6 for his services and that such was a reasonable and customary charge. In urging that the court erred in sustaining defendant’s motion for a judgment non obstante veredicto, plaintiff states that whether the substance was on the escalator steps for such a period of time that defendant, in the exercise of ordinary care would and should have removed it, was a question for the jury. Plaintiff states that in considering defendant’s motion, the court had no right to weigh the evidence. Plaintiff asserts that an escalator is a common carrier and that the operator of an escalator owes passengers using the same, the highest degree of care. Both escalators and elevators are installed to enable people to proceed from floor to floor of a building without climbing stairs. The owners and operators of elevators are required to exercise the highest decree of care and diligence for the safety of the passengers. They are common carriers. In Eeffernan v. Mandel Bros., Inc., 297 Ill. App. 272, we held that the owner and operator of an escalator is required to exercise the same degree of care for the safety of the passengers as the owner and operator of an elevator. Plaintiff does not contend that she was injured because of any mechanical defect in the escalator or because of any negligence in operating its mechanism. There is doubt as to whether the kernel of popcorn was on the escalator. She did not see it or feel it until she returned to the third floor. There is no showing that the popcorn was on the steps or that the defendant knew or should have known of its presence. We are of the opinion that the court was right in deciding as a proposition of law that plaintiff ,did not make out a case.

Therefore, the judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Hebel and Kiley, JJ., concur.


text:
    Florence Aaron et al., Appellees, v. Mary Dausch et al., Defendants. Appeal of Marie Nordquist, Appellant.
    Gen. No. 41,942.
    Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed April 8, 1942.
    John B. King, of Chicago, for appellant.
    Kargman & Kargman, Nathan Schwartz and Maurice L. Davis, all of Chicago, for certain appellees.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On October 8, 1930, Mary Dausch executed a trust deed conveying the premises at 651 Melrose street, Chicago, to the Chicago Title & Trust Company to secure the payment of a principal note for $8,500, due one year after date, and two interest coupons for $255 each. In a complaint filed in the superior court of Cook county on May 7, 1940, Florence Aaron, representing herself to be the holder and owner of the principal note and trust deed, sought to foreclose the lien of such trust deed. On March 4, 1941, the complaint was amended by adding Marie Kargman as an additional plaintiff, and by inserting an allegation that the original plaintiff, Florence Aaron, instituted the proceeding as the nominal owner and holder of the principal note and the interest note due October 8, 1931, and that Marie Kargman was the actual beneficial owner of the notes. On March 5,1941, Mary Dausch filed her second amended answer. This answer stated that the trust deed and notes were executed by her to Marie Nordquist for a past indebtedness; denied that Florence Aaron or Marie Kargman was the owner of the trust deed and notes; denied that any money was due to plaintiffs; denied that the trust deed was a valid lien on the premises; alleged that the filing of the complaint was part of a conspiracy to acquire the property; stated that the trust deed and notes were placed in escrow by her with the Sheridan Trust and Savings Bank to secure- the payment of an indebtedness to the bank, which indebtedness was past due at the time the trust deed and notes were placed with the bank; that the mortgage in suit was the property of Marie Nordquist, defendant’s daughter; and that Marie Nordquist is the sole and exclusive owner of the note evidencing the balance of the indebtedness. On February 24,1941, Marie Nordquist filed her intervening petition, stating that on October 8, 1930, her mother, Mrs. Mary Dausch, being indebted to her in the sum of $8,500, executed the trust deed and notes; that the trust deed and notes were left at the Sheridan Trust & Savings Bank as her property for safe keeping, with instructions to the bank to record the trust deed; that she made the bank her agent for the sole purpose of recording the trust deed and holding that instrument and the note for her use; that she did not know that the trust deed and note were pledged as collateral to any note held by the bank; that she did not authorize anyone to pledge the trust deed and note as collateral; that she did not know that the trust deed and note had been pledged as collateral until January 1, 1941; that the bank at all times knew that the note and trust deed were the property of petitioner; that after being advised that the note was in the hands of the receiver for the bank, and in order to protect her interest and minimize her damages, and after taking the advice of an attorney she purchased her mother’s collateral note from the bank; that because of the purchase of this collateral note, she (Marie Nordquist) became the sole owner of the trust deed and note sought to be foreclosed, and that she offered to repay plaintiffs the money paid by them for the purchase of the trust deed and note. She prayed that the court find her to be the owner of the trust deed and notes. Plaintiffs denied the material allegations of the intervening petition. The case was heard by the chancellor, who entered a decree finding that Marie Kargman was the actual beneficial owner of the principal note for $8,500 and the trust deed securing it; and that the interests of all other parties were subject to the rights of Marie Kargman. The decree directed that payment be made within three days in default of which the master in chancery was to sell the real estate. Marie Nordquist, intervener, appeals.

The chancellor heard the witnesses and read the exhibits. We have examined the record to determine whether the findings are supported by the evidence. The Sheridan Trust & Savings Bank was a State bank with its place of business at Broadway and Lawrence avenues in Chicago. This bank was forced into liquidation in 1931 and a receiver was appointed by the State Auditor. Among the assets of the bank the receiver found Mrs. Dauseh’s collateral note and the trust deed and notes now in suit, all of which were later sold. We find that there is competent evidence in the record to establish that Marie Dauseh (intervenor’s mother) first became indebted to the bank on April 30, 1928, when she borrowed $2,000; that h'er financial statement to the bank at that time showed her sole liability to be upon a first mortgage for $49,000; that the loan by the bank to her was increased on July 12, 1928, to $6,000; that John Meyer and William Kempf acted as comakers with Mrs. Dauseh, upon the note given to the bank; that by May 15, 1930, the loan to Mrs. Dauseh had been reduced to $5,490; that John Meyer was then the sole comaker; that on August 14, 1930, a further renewal note was executed by Mrs. Dauseh and John Meyer for $5,490 due September 15, 1930; that on August 19, 1930, Mrs. Dauseh furnished the bank with further financial statements; that from these statements it appeared that she was the owner of the property at 651 Melrose street, Chicago (involved in this appeal); that the first mortgage on the property was $61,000; that the second mortgage was $3,000, and that she had no obligations other than her bank loan of $5,490; that on October 8, 1930, when the August 14, 1930, note was about three weeks past due, Mrs. Dauseh came to the bank and executed a collateral note for $5,490, pledging as security for her loan the $8,500 third mortgage involved in the instant case. The evidence shows that the collateral note signed by Mrs. Dauseh on October 8, 1930, was in renewal of the August 14, 1930 note signed by her and John Meyer. It will be observed that the third mortgage note and the collateral note bear the same date, namely, October 8,1930. The bank record shows that on October 8, 1930, Mrs. Dauseh gave collateral for the renewal note signed on October 8, 1930, and that her collateral note was thereafter renewed from month to month, the last renewal being on May 11, 1931. Mrs. Dauseh testified that the only collateral she ever gave to the bank was the $8,500 third mortgage, and that she had no other collateral to give. Intervener’s theory of the case is that her mother, Mrs. Mary Dauseh, gave her (intervener) the $8,500 note and trust deed for monies she (intervenor) had loaned to Mrs. Dauseh to buy the property conveyed by the trust deed in suit; that she left the trust deed and note with the bank for the sole purpose of having the trust deed recorded, for which she paid the bank a fee of $13; that they were subsequently pledged to the bank by her mother without intervenor’s knowledge or consent; that the bank knew they were not the property of her mother, but that they belonged to intervenor, who knew nothing of the pledge being made; that by that transaction the bank obtained no right, title or interest in them; that when the bank’s assets went into the receiver’s hands he obtained no greater rights than the bank had; that the pretended sale of the collateral by the receiver’s office was not conducted according to law and did not convey any title; that when she purchased her mother’s collateral note from the receiver, it carried with it the $8,500 note and trust deed, and that she became the owner of the latter through the purchase of the collateral note. A perusal of the transcript of the testimony and of the exhibits convinces us that the chancellor was right in finding that on October 8, 1930, when Mrs. Dauseh signed and delivered the collateral note for $5,490, she also delivered as collateral on such note the $8,500 trust deed and note involved in the instant case, and that at the time of the delivery of the collateral the bank did not know that intervenor had or claimed to have any interest therein.

Intervenor maintains that the $8,500 note and trust deed are her property; that the bank in accepting the trust deed and note as security for the loan to her mother with knowledge of her rights as the owner of the securities, took them subject to her rights; that the bank could not retain the securities as against her right to the same, and that the receiver stands in the same position as the bank. There is no dissent to these statements of law. The receiver had no greater rights than the bank. If the bank knew, or by the exercise of reasonable diligence should have known that the securities deposited with it as collateral were the property of intervenor and that she was not consenting to their use as collateral, the position of the intervenor would be correct. The evidence satisfied the chancellor and satisfies us that the bank acted honestly in accepting the securities as collateral on the loan to intervenor’s • mother, and that it did not know intervenor claimed any interest in such securities. It is interesting to observe that although the collateral was given on October 8,1930, the first claim asserted by intervenor was on February 24, 1941. The bank was closed in 1931 and it is highly improbable that intervenor would wait ten years before endeavoring to ascertain what had become of the trust deed and note which she claims, to own. The position of plaintiff Marie Kargman that the bank acquired good title to the trust deed and note is supported by the preponderance of the evidence.

Intervenor contends that the proposed sale by the "receiver was a nullity. Frank L. Johnson testified for plaintiff that he was employed by the receiver; thau the collateral consisting of the trust deed and notes involved in the instant case were in the possession of the receiver; that a sale of the collateral was held on March 18, 1940; that he (witness) conducted the sale; that a notice of the sale was sent to Mrs. Mary Dauseh by registered mail; that the sale was held in the lobby of the office building occupied by the receiver; that no one bid on the collateral; that witness, on behalf of the receiver, purchased the collateral for $350 and that the collateral note was credited with this sum. The circuit court of Cook county, in which the bank liquidation proceeding was pending, approved the reduction of the collateral to the possession of the receiver. Nathan Schwartz purchased the collateral from the receiver for $350 and the circuit court confirmed this sale. The collateral note of May 11, 1941, provides that the bank or any holder of the note might, without demand or notice, sell the collateral at a public or private sale, and also that the bank or any holder might purchase the collateral at such sale. The evidence shows that Johnson was acting for the receiver; that the collateral was offered for sale, and that in the absence of bidders the receiver reduced the collateral to his possession at a price of $350. This was in accordance with the express language of the collateral note. In our opinion, the sale was proper. We agree with the suggestion of plaintiff that even if the sale at which the collateral was purchased by the receiver at his own sale were technically incorrect, the sale to Nathan Schwartz may be treated as a valid exercise of the power of the holder of the collateral note to sell the collateral at private sale without notice. Intervenor urges that the receiver had no right to purchase at his own sale. The collateral note provides that the bank or any holder “may purchase any or all of said property at any such sale or sales. ’ ’ The sale was in accordance with the language of the collateral note. Intervenor insists that neither plaintiff has a right to maintain the instant foreclosure suit. The original complaint was filed by Florence Aaron, who asserted that she was the holder and owner of the principal note and trust deed. The complaint was amended by adding Marie Kargman as a plaintiff. Intervenor states that the real plaintiff is Nathan Schwartz, who appears as one of the attorneys for plaintiffs. The latter testified that the notes and trust deed came into his possession on, April 9, 1940, when they were sent to him by the receiver; that he paid $350 for them, which payment was made for his client, Florence Aaron; that Florence Aaron was his secretary; that in reality she was an agent to collect for Marie Kargman, for whom the securities were acquired. If it be true, as intervenor states, that Nathan Schwartz is the real owner of the trust deed and notes, intervenor is not harmed in any way by that fact. After having testified that the owner is Marie Kargman, Nathan Schwartz would be estopped to deny that she is the owner. We have held that the holder of a note may prosecute a foreclosure action. Replogle v. Scott, 299 Ill. App. 270. It is undisputed that Marie Kargman is the holder. Plaintiffs introduced the trust deed and notes, thus precluding the possibility of anyone else suing on them. We are of the opinion that plaintiffs had the right to file and prosecute the instant foreclosure case.

For the reasons stated, the decree of the superior court of Cook county is affirmed.

Decree affirmed.

Hebel and Kilby, JJ., concur.