text:
    C. W. Miller, Appellant, v. Yellow Cab Company et al., Appellees.
    Gen. No. 41,352.

      Opinion filed January 22, 1941.
    Rehearing denied February 5, 1941.
    Lederer, Livingston, Kahn & Adsit, of Chicago, for appellant; Sigmund Livingston, of counsel.
    Samuel A. & Leonard B. Ettelson, of Chicago, for appellees; Edward C. Higgins and Robert E. Samuels, both of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On August 11, 1938, C. W. Miller and the Western Casualty & Surety Company, a corporation, filed a two-count complaint in the circuit court of Cook county. The first count, in behalf of C. W. Miller, avers that defendant, Yellow Cab Company, is a common carrier of passengers in the city of Chicago; that on January 11, 1937, he became a passenger for hire in a cab operated by said defendant, which cab was being operated by defendant through its servant, George Barr, also a defendant; that another defendant, Charles Joyce, was the owner of a motor vehicle which was being-operated by its servant Leonard C. Joyce, another defendant, in an easterly direction on Harrison street approaching its intersection with Homan avenue; that the cab in which Miller was a passenger was being-operated by George Barr in a southerly direction on Homan avenue approaching its intersection with Harrison street; that by reason of various acts of negligence of the defendants, Miller was injured externally and internally; that at all relevant times Miller was in the exercise of due care for his own safety; and the first count concluded, “Wherefore, plaintiff, C. W. Miller, hereby recognizing the prior right or claim of the other plaintiff herein to $2,100.00 by virtue of an award in that amount by the Industrial Accident Board of Texas under the Texas Workmens’ Compensation Law, asks judgment against the defendants, Yellow Cab Company, a corporation, George Barr, Leonard C. Joyce and Charles Joyce for $25,000.00.” Count 2, in behalf of the Western Casualty & Surety Company, a corporation, adopted the allegations of count 1, and in addition averred that the injuries sustained by Miller were accidental injuries arising- out of and suffered in the course of his employment as an employee of Sears, Roebuck & Company, a corporation, in the State of Texas, and that said injuries were such as to warrant compensation to Miller under the Workmen’s Compensation law of Texas; that such injuries were not proximately caused by the negligence of the employer or Miller or any of its employees, or by plaintiff, the Western Casualty & Surety Company, but were caused under circumstances creating a legal liability for damages on the part of the defendants; that on February 9, 1937, Miller filed before the Industrial Accident Board of the State of Texas a claim for compensation for the injuries against Sears Roebuck & Company; that on or about February 9, 1938, the board entered an order approving a settlement agreement under and by virtue of which the Western Casualty & Surety Company paid to Miller the sum of $2,100 for and on behalf of his employer; that by virtue of the order of the Industrial Accident Board of the State of Texas, the Western Casualty & Surety Company thereupon “became and was and still is” sub-rogated to certain rights of Miller; that it “now joins in this suit as said subrogee and hereby asserts its prior claim against the defendants herein named to the $2,100.00 payable for injuries received by said plaintiff, C. W. Miller.” This count concluded by asking that judgment be entered in favor of the Western Casualty & Surety Company and against the defendants in the sum of $2,100. In the original complaint Lederer, Livingston, Kahn, Adler & Adsit and A. B. Litow appeared as attorneys for the plaintiffs. The answer of the Yellow Cab Company denied the allegations that Miller was in the exercise- of due care and denied that defendants were guilty of any of the acts of negligence charged. The answer also denied that the corporate plaintiff was entitled to recover any sum. The answer further asserted that the action could not be maintained because the defendant Yellow Cab Company was operating under the provisions of the Illinois Workmen’s Compensation Act, and that at the time of the injury Miller was an employee of Sears, Roebuck & Company and that the injury occurred in the course of his employment; that Sears, Roebuck & Company was likewise under the provisions of the Illinois Compensation. Act; that the injury occurred in Illinois, and that by reason of the provisions of sections 6 and 29 of the Illinois Workmen’s Compensation Act, Miller could not maintain his action. The plaintiffs moved to strike the answer of the Yellow Cab Company. On October 27, 1938, “on motion of plaintiffs” the court struck count 2 of the complaint, also all the answers, granted leave to plaintiffs to amend count 1 of the complaint within 10 days, and directed all defendants to answer the complaint as amended within 10 days thereafter. The amended complaint was filed in behalf of C. W. Miller against all of the defendants. This amended complaint was similar to the first count of the original complaint. It did not, however, mention the payment of $2,100 by virtue of an award by the Industrial Accident Board of Texas. On November 17, 1938, on motion of “Lederer, Livingston, Kahn, Adler & Adsit, Attorneys for plaintiff C. W. Miller,” the Western Casualty & Surety Company was dismissed as a party plaintiff, and A. B. Litow was permitted to withdraw as co-counsel for plaintiffs. On November 30, 1938, the Yellow Cab Company filed an answer to the amended complaint. The answer reasserts the defense theretofore made. On motion of plaintiff, certain portions of this answer were stricken, whereupon an amended answer to the amended complaint was filed. A motion by plaintiff to strike the amended answer of the corporate defendant was denied. Plaintiff thereupon filed a reply that he is and has been for the past five years a resident of the State of Texas; that he is an employee of Sears, Roebuck & Company, a corporation, organized under the laws of the State of New York and having places of business in various Statés of the Union, including New York, Pennsylvania, Illinois, California and Texas; that said corporation is engaged in the mail order and chain merchandise business throughout the various States; that he was employed for the specific purpose of managing the store of his employer at San Antonio, Texas, and that this was his sole employment; that his contract of employment was made in the city of San Antonio, Texas; the place of his residence, and the place where his services were to be rendered; that the defendant was incorporated under the laws of the State of Maine and conducts the business of a common carrier in the city of Chicago; that on January 11, 1937, plaintiff traveled from his home in San Antonio, Texas, to the city of Chicago and there became a passenger for hire in a taxicab, and while such passenger he was injured as complained of in the amended complaint; that while he was in the city of Chicago he had no services to render to his employer and did not eng'age in any services except that he intended to consult the president or other executive of his employer concerning matters relative to the business under his management in San Antonio; that his trip to Chicago was not a usual concomitant of the business in which he was engaged, and that the said conference was purely casual in nature and would last only a part of the day, and that he did not visit Chicago more than once or twice a year. Plaintiff states that the employees of Sears, Boebuck & Company engaged in its business in the State of Texas are under the provisions of the Workmen’s Compensation Act of that State, and denies that employees of Sears, Boebuck & Company whose places of employment are in the State of Texas and who are residents of the State of Texas, are under the provisions of the Illinois Workmen’s Compensation Act. The reply asserts that the law of the State of Texas by its express terms relates to injuries to employees received in the course of employment in that State and other places; that said provisions of the law are contractual and that said law forms part of the contract of plaintiff’s employment. The reply admits he made application for and received compensation for injuries growing out of the occurrence complained of from his employer in the State of Texas; that under and by virtue of the laws of Texas under which he received such compensation from his employer, the right to maintain a suit against a tort-feasor or any third person causing personal injury to him is not barred except as to his employer, and that under the law of that State, in force at the time of the injury complained of and ever since, the right to maintain an action at law against any person, save and except his employer, causing injury to him, is reserved unto such injured employee; that the compensation received by such injured employee under the Workmen’s Compensation law of the State of Texas does not bar the right of action against any third person causing the injury; that the law of Texas provides that in any recovery had against such third person by such injured employee, the amount of compensation paid to him by his employer shall first, out of any recovery had against such third person, be returned to such employer. The reply denies that the public policy of the State of Illinois prohibits the maintenance of the action, and asserts that the policy of this State recognizes the right of plaintiff to maintain the action, and also recites that the amount of compensation received by him from his employer was $2,701.58; that this employer has not been reimbursed by the Yellow Cab Company, nor has the defendant offered or tendered such reimbursement to his employer. On motion of defendant Yellow Cab Company, the reply was stricken and judgment rendered on the pleadings for the defendant Yellow Cab Company and against the plaintiff C. W. Miller. The record does not show what action, if any, was taken as to the individual defendants George Barr, Leonard C. Joyce and Charles Joyce. Presumably, the case is pending as to them. This appeal is prosecuted by plaintiff for the purpose of reviewing the action of the court in entering a judgment on the pleadings in favor of the Yellow Cab Company and against the plaintiff.

The record shows that plaintiff’s contract of employment, his domicile and the place of his employment is in the State of Texas; that the injury occurred while he was in Illinois, and that at the time of the occurrence he was in and about the business of his employer and within the scope of his employment. Defendant maintains that the law of the State where a personal injury occurred is applied by the courts in determining the rights and liability of the parties on account of such injuries, and that the record shows that Sears, Roebuck & Company, the employer, the plaintiff as employee, and the defendant were all under the Illinois Workmen’s Compensation Act at and prior to the time of plaintiff’s injury, and that plaintiff was injured in the course of his employment. Defendant also urges that by the adoption of the Workmen’s Compensation Act, the State of Illinois established a fixed public policy in relation to compensation to be paid to employees receiving injuries in the course of their employment. We are of the opinion that the record establishes that plaintiff was injured while in the course of his employment. Plaintiff argues that he was not under the Illinois Workmen’s Compensation Act at the time of the injury, and that the public policy of this State does not disfavor the maintenance of the action. Section 19 of the Workmen’s Compensation law of Texas, title 130, provides that:

“If an employee who has been hired in this state sustains injury in the course of his employment, he shall be entitled to compensation according to the law of this state, even though such injury was sustained outside of the state and such employee, though injured out of the state of Texas, shall be entitled to the same rights and remedies as if injured within the state of Texas.” Section 6-a of article 8307, title 130, of the statutes of the State of Texas preserves the right to recover damages where the injury is caused under circumstances creating a legal liability in some person other than the employer. The act provides that where compensation is granted to the injured person, the insurer is subrogated to the employee’s right of action against third parties, but that any recovery in excess of the compensation paid or payable must be paid over to the injured employee. The Illinois Act is entitled, “an act to promote the general welfare of the people of this State by providing compensation for accidental injuries or death suffered in the course of employment within this State, and without this State where the contract of employment is made within this State; providing for the enforcement and administering thereof, and a penalty for its violation, and repealing an act entitled, ‘An act to promote the general welfare of the people of this State by providing compensation for accidental injuries or death suffered in the course of employment.’ ” (Ch. 48, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 143.17 et seq.].) The second paragraph of section 5 of our act (par. 142, ch. 48, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 143.20]) defines the term “employee” as “every person in the service of another under any contract of hire, express or implied, oral or written, including persons whose employment is outside of the State of Illinois where the contract of hire is made within the State of Illinois. . . .” Section 6 (par. 143) of our act provides that no law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employee who is covered by the provisions of this act, or to any one entitled to recover damages for such injury or death. Section 29 (par. 166) of our act provides that where an injury for which compensation is payable by the employer was not proximately caused by the negligence of his employer or employees and was caused under circumstances creating a legal liability for damages in some person other than the employer to pay damages, such other person having also elected to be bound by the act, then the right of the employee to recover against such other person is transferred to his employer, and such employer may bring legal proceedings against such other person to recover the damages sustained, in an amount not exceeding the aggregate amount of compensation payable under this act, by reason of the injury to such employee. This section further provides that where the injury for which compensation is payable was not proximately caused by the negligence of the employer or employees and was caused under circumstances creating a legal liability on the part of some person other than the employer to pay damages, such other person having elected not to be bound by the act, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation ; and that in such case if judgment is obtained and paid or settlement is made with such third person, either with or without suit, then from the amount received by such employee there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee. Thus, both Illinois and Texas recognize that the Compensation Act covers an employee who sustains an injury in the course oí his employment outside of the State where the contract of employment, express or implied, is made within the State. The defendant declares that Sears, Roebuck & Company, the plaintiff and itself (Yellow Cab Co.) are bound by the Illinois Workmen’s Compensation Act, and that the provisions of section 29 thereof are an effectual bar to the action. It is argued that if the case be governed by section 29, plaintiff cannot recover, having received compensation under the Workmen’s Compensation Act of Texas. While section 29 of the Illinois act does not allow the employee to recover damages where the third party is also under the Compensation Act, the Texas act heretofore mentioned allows the employee to recover against the third party tort-feasor for an amount in excess of the compensation received, whether or not the third party and its employees are under the act. Hence, if the Texas act be applicable to the factual situation before us, plaintiff’s action may be maintained. Our courts hold that section 6 of our act, doing away with the common-law right to recover damages for injury or death sustained by an employee, applies to the right of an employee against his employer and has no reference to the liability of third persons. Goldsmith v. Payne, 300 Ill. 119. As we have seen, it is the public policy of Illinois that our compensation act applies to a situation where a person is injured beyond the borders of our State where the contract of hire is made within the State. The proposition confronting us is whether a person hired in a sister State and who is injured in our State while in the line of his duty, is governed by the act of the State where the hiring took place. This brings us to the inquiry as to whether there is anything in the public policy of Illinois, which disapproves the prosecution of the instant action. In Cole v. Industrial Commission, 353 Ill. 415, it appears that Fred Thews sustained an accidental injury arising out of and in the course of his employment by the co-partnership of Nelson J. Cole & Sons. The injury occurred in Kankakee' county, Illinois, where the employers were engaged in the construction of drainage works. As a result of the injuries the employee died. The arbitrator awarded compensation for the benefit of the widow and her two minor children, which was affirmed by the Industrial Commission and by the circuit court. There was no dispute about the facts. The employers resided in Indiana. The deceased and his family were residents of that State and the contract of employment was made there. In 1930, he was engaged by his employers for work being done by them in Indiana. In 1931, the employers had no work in Indiana, but contracted to do work in Kankakee county, Illinois, and hired the deceased to work on that job. Our Supreme Court discussed the case of Bradford Electric Light Co. v. Clapper, 286 U. S. 145, and concluded (page 419) that “no substantial distinction is to be made between the law and the facts in the Clapper case supra, and in the instant case. The contract of employment herein having been entered into in the State of Indiana between parties who were subject to the terms of the Indiana Compensation act, the provisions of the act for an exclusive remedy under it must prevail. No other remedy is available. Johnston v. Industrial Com. 352 Ill. 74.” The court accordingly reversed the judgment confirming the award. The Clapper case was an action for damages brought in a New Hampshire court for the death of Leon J. Clapper. The case was removed to the federal court on the ground of diversity of citizenship, the defendant being a citizen and resident of Vermont and the plaintiff being a citizen and resident of New Hampshire. The company had its principal place of business in Vermont and lines extending into New Hampshire. Leon J. Clapper, a resident of Vermont, was employed by it there as a lineman for emergency service in either State. In the course of his duties he was sent to restore some burned-out fuses at a substation in New Hampshire, and while doing so was killed. The company, invoking the full faith and credit clause of the Federal Constitution, set up as a special defense that the action was barred by the provisions of the Vermont Compensation Act; that the contract of employment had been entered into in Vermont, where both parties to it then, and at all times thereafter resided, and that the Vermont act had been accepted by both employer and employee as a term of the contract. The district court ruled that the action was properly brought under the laws of the State of New Hampshire and that the Vermont Workmen’s Compensation Act had no extraterritorial effect. The trial resulted in a verdict for the plaintiff on which judgment was entered. The judgment was affirmed by the circuit court of appeals. The Vermont act provides that a workman hired within the State shall be entitled to compensation even though the injury was received outside of the state. The New Hampshire Workmen’s Compensation Act contains a provision that the employee may, subsequent to the injury, still elect either to claim compensation, or to sue for damages at common law. Our Federal Supreme Court stated (page 158) that: “The relation between Leon Clapper and the Company was created by the law of Vermont; and as long as that relation persisted its incidents were properly subject to regulation there. For both Clapper and the Company were at all times residents of Vermont; the Company’s principal place of business was located there; the contract of employment was made there; and the employee’s duties required him to go into New Hampshire only for temporary and specific purposes, in response to orders given him at the Vermont office. The mere recognition by the courts of one State that parties by their conduct have subjected themselves to certain obligations arising under the law of another State is not to be deemed an extra-territorial application of the law of the State creating the obligation. . . . It is true that the full faith and credit clause does not require .the enforcement of every right conferred by a statute of another State. There is room for some play of conflicting policies. Thus, a plaintiff suing in New Hampshire on a statutory cause of action arising in Vermont might be denied relief because the forum fails to provide a court with jurisdiction of the controversy; see Chambers v. Baltimore & Ohio R. Co., 207 U. S. 142, 148, 149, compare Douglas v. New York, N. H. & H. R. Co., 279 U. S. 377, or because it fails to provide procedure appropriate to its determination, see Tennessee Coal. Iron & R. Co. v. George, 233 U. S. 354, compare Slater v. Mexican National R. Co., 194 U. S. 120, 128, 129; or because the enforcement of the right conferred would be obnoxious to the public policy of the forum, compare Bothwell v. Buckbee, Mears & Co., 275 U. S. 274, 277-279; Union Trust Co. v. Grosman, 245 U. S. 412; Bond v. Hume, 243 U. S. 15, 25; Converse v. Hamilton, 224 U. S. 243, 260, 261; or because the liability imposed is deemed a penal one, see Galveston, H. & S. A. Ry. Co. v. Wallace, 223 U. S. 481, 490, compare Stewart v. Baltimore & Ohio R. Co., 168 U. S. 445, 448. . . . Moreover, there is no adequate basis for the lower court’s conclusion that to deny recovery would be obnoxious to the public policy of New Hampshire. No decision of the state court has been cited indicating that recognition of the Vermont statute would be regarded in New Hampshire as prejudicial to the interests of its citizens. In support of the contention that the provision of the Vermont Act is contrary to the New Hampshire policy, it is urged that New Hampshire’s compensation law is unique among workmen’s compensation acts in that it permits the injured employee to elect, subsequent to injury, whether to bring a suit based upon negligence or to avail himself of the remedy provided by the Act; and that the legislature of New Hampshire has steadily refused to withdraw this privilege. But the mere fact that the Vermont legislation does not conform to that of New Hampshire does not establish that it would be obnoxious to the latter’s public policy to give effect to the Vermont statute in cases involving only the rights of residents of that State incident to the relation of employer and employee created there.” The court concluded that the rights as between the company and Clapper, or his representative, were to be determined according to the Vermont act, and reversed the judgment. Defendant leans heavily on the case of Pacific Employers Ins. Co. v. Industrial Accident Commission, 10 Cal. (2d) 567, which was also reviewed by the Federal Supreme Court, 306 U. S. 493. From that case it appears that Kenneth Tator, the injured employee who was regularly employed in Massachusetts, was injured while temporarily in California on business for his employer. It was claimed that he was subject to the Workmen’s Compensation Act of Massachusetts. The California Industrial Accident Commission applied the California act. It was contended that in refusing to recognize the Massachusetts act, the full faith and credit clause of the Federal Constitution was violated. The Supreme Court of California felt that under the constitution and statutory provisions of California, the employee was governed by the Compensation Act of that State. The California Supreme Court said, page 578:

“The public policy of California upon this question has been clearly and positively stated in the Constitution, the workmen’s compensation law which was enacted pursuant to it, and the decisions of this court. It would be obnoxious to that policy to deny persons who have been injured in this state the right to apply for compensation when to do so might require physicians and hospitals to go to another state to collect charges for medical care and treatment given to such persons. Under these circumstnces the governmental policy of California weighs more heavily in the scale of decision than the law of Massachusetts and the conflict in laws must be resolved in favor of the state where the injury occurred.” In reviewing the California case, our Federal Supreme Court (306 U. S. 493) pointed out that in the Clapper case the court was careful to say that there was nothing in the New Hampshire statutes, the decisions of her courts, or in the circumstances of the case, to suggest that reliance on the provisions of the Vermont statute as a defense to the New Hampshire suit, was obnoxious to the policy of New Hampshire, and that the Clapper case decided no more than that a State statute applicable to employer and employee within the State, which by its terms provides compensation for the employee if he is injured in the course of his employment while temporarily in another State, will be given full faith and credit in the latter when not obnoxious to its policy. The court then found that the Supreme Court of California decided that the enforcement of the Massachusetts Compensation Act would be obnoxious to the public policy of California. The decisions in the Clapper case and the Pacific Employers Insurance case are consistent. The principle of the Cole case has been followed by our Supreme Court in Biddy v. Blue Bird Air Service, 374 Ill. 506. See also Johnston v. Industrial Commission, 352 Ill. 74; Kennedy-Van Saun Mamifacturing & Engineering Corp. v. Industrial Commission, 355 Ill. 519, 523; Beall Bros. Supply Co. v. Industrial Commission, 341 Ill. 193; Wintersteen v. National Cooperage & Woodenware Co., 361 Ill. 95. In the Wintersteen case our Supreme Court held that the maintenance of a personal injury case against a third party brought by an employee who was bound by the Pennsylvania Compensation Act, which permitted action against third persons because of injury, was not against the public policy of this State. The court said (page 101):

“The action here is in tort for injuries to the person of the plaintiff. Such action is not prohibited by any statute of this State, nor is the maintenance of the action against public morals, natural justice or the general interest of the citizens of this State. In that situation the doctrine of comity applies and the cause of action may be pursued in such courts of our State as have jurisdiction of the subject matter and the person of the defendant.” It is manifest, therefore, that the public policy of Illinois is not opposed to the maintenance of the action in the instant case. The place where the injury occurred is not a decisive factor as to whether the Illinois Workmen’s Compensation Act applies, or the Compensation Act of the State where the contract of employment was made and where the injured person was domiciled and where his employment was to be performed. The contract of plaintiff and Sears, Roebuck & Company was entered into in the State of Texas and the parties contemplated that the law of the State of Texas should govern their rights. We are of the opinion that section 29 of the Illinois Workmen’s Compensation Act is not a bar to the prosecution of plaintiff’s action, inasmuch as the Texas act gives plaintiff a right of action against a third party tort-feasor who is under the Compensation Act. It must be presumed that when the contract of hire was entered into in San Antonio, Texas that the parties contemplated that the plaintiff, should he be injured, would have a right to the compensation provided, and in addition thereto would have the right to sue a joint tort-feasor. There is nothing in the public policy of this State which prevents plaintiff from maintaining his action.

Defendant urges that even though plaintiff’s theory is correct, nevertheless, he does not have the right to maintain the action. Defendant quotes section 6 (a), article 8307, part 2, of Vernon’s Annotated Texas Statutes to support his argument that plaintiff cannot maintain an action to recover damages against defendant and also file a claim and secure compensation under the Texas Workmen’s Compensation Act, since this section says he may proceed either way but cannot do both; also because plaintiff elected to file his claim for compensation under the Texas compensation law, and, therefore, under section 6 (a) the cause of action against defendant was vested in the insurance carrier, or insurer, and was subrogated to the right of plaintiff to maintain such action. This action was brought by plaintiff and the insurance carrier, the Western Casualty & Surety Company. The same attorneys represented both plaintiffs. In its original answer defendant denied that the Western Casualty & Surety Company had any right as subrogee of Miller to claim or maintain any action against the defendant. On October 27, 1938, on plaintiff’s motion, count 2 of the complaint was stricken. This motion was made by all of the plaintiffs. Subsequently, the insurance carrier was dismissed from the case, and co-counsel Litow, who apparently represented the carrier, was given leave to withdraw. Hence, the action of striking the count filed in behalf of the insurance carrier and of dismissing the insurance carrier from the case, was done with the consent of the carrier, and no objection was made thereto by the defendant. In fact, in the answer to the original complaint the defendant denied that the carrier had any right as a subrogee. We have read the cases of Harbour v. Graham Mfg. Co. (Tex. Civ. App.), 47 S. W. (2d) 700; Hanson v. Ponder (Tex. Com. App.), 300 S. W. 35; Wm. Cameron & Co. v. Gamble (Tex. Civ. App.), 216 S. W. 459; Haynes v. Bernhard (Tex. Civ. App.), 268 S. W. 509, Lancaster v. Hunter (Tex. Civ. App.), 217 S. W. 765, and other cases and are convinced that under the facts and circumstances presented, the plaintiff has the right to maintain his action in this State. The only interest that the defendant has in this question is the possibility that the insurance carrier may sue it if provision is not made in the judgment recovered protecting’ the insurance carrier for the reimbursement of compensation paid. This danger to defendant does not exist because the carrier joined in instituting the suit and later on consented to being dismissed as a party plaintiff.

Finally, plaintiff argues that his relationship to defendant was that of passenger for hire and that the complaint was founded on a contractual relationship, and that because he was a passenger for hire he has a right to sue defendant irrespective of any compensation act. We do not agree with the reasoning of plaintiff. He was awarded compensation because he was under the Texas Workmen’s Compensation Act. We have held that at the time he was injured he was in the course of his employment and that he was then governed by the Texas Compensation Act, which permits him to sue a third party tort-feasor.

Because of the views expressed, the judgment of the circuit court of Cook county is reversed and the cause remanded with directions that the defendant’s motion to strike the reply of plaintiff to the amended answer of defendant be denied, and for further proceedings consistent with this opinion.

Reversed and remanded with directions.

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


source: Caselaw Access Project

author: Mr. Justice Burke

license: Public Domain

text:
    Paul Gorczyca, Appellant, v. Frank Stanoch, Appellee.
    Gen. No. 41,432.
    Opinion filed January 22, 1941.
    Healy & Reid, of Chicago, for appellant.
    Benjamin H. Vanderveld, of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

On June 29, 1927, plaintiff Paul Gorczyca filed a declaration in the circuit court of Cook county and therein charged that on May 4, 1927, defendant Frank Stanoeh assaulted him with great force and violence and with a certain instrument as well as with his hands, by means of which plaintiff was greatly hurt, bruised and wounded. - Defendant filed a plea of the general issue. The case came on for trial on November 10, 1933. The cause was submitted to and heard by the court without a jury in an ex parte proceeding. The court found the defendant guilty, assessed plaintiff’s damages at the sum of $1,500 and entered judgment on the verdict. On August 14, 1939, an alias execution was issued. It was filed in the clerk’s office on August 21, 1939, with a “nulla bona” return. On August 25, 1939, a garnishment demand directed to the defendant and Swift & Company, his employer, showing due service and an affidavit for garnishment, were filed. In response to the garnishment summons the garnishee, Swift & Company answered that on August 26, 1939, the day the writ was served, it was not indebted to the defendant in any amount except the sum of $26.20 over and above the sums representing wages due defendant, which were then exempt by law. Defendant then filed a voluntary petition in bankruptcy, in the federal district court for the northern district of Illinois, eastern division, listing the judgment as a liability and asked that plaintiff be enjoined from continuing with the garnishment proceedings. Plaintiff filed his sworn answer in the federal court in which he set out that the judgment was entered for wilful and malicious injuries to his person and, therefore, was not a debt dischargeable in bankruptcy. On January 5, 1940, defendant filed an intervening complaint in the circuit court in which he averred that he filed a petition in bankruptcy in the federal district court at Chicago, that he was duly adjudicated a bankrupt, that he scheduled the judgment as an indebtedness, that the adjudication was a complete discharge to the judgment, and asked that his petition stand as an answer to the garnishment proceedings Plaintiff answered the intervening complaint, stating that Judge Philip Sullivan, to whom the bankruptcy proceeding was assigned, requested briefs on the question raised before him by the petition for a restraining order and the answer of plaintiff herein; that the briefs were submitted, and that on November 16, 1939, Judge Sullivan ruled that the judgment was not a debt dischargeable in bankruptcy, and denied the bankrupt’s motion for a restraining order. Plaintiff concluded his answer by declaring that the order entered in the federal district court on November 16, 1939, constituted a determination of the issues involved in the circuit court, and asked that the intervening complaint be dismissed. Defendant did not reply to the answer. He therefore admits the truth of the affirmative averments of the answer. While the matter was pending in the circuit court, other and further demands were served on the defendant and his employer, which demands, with proof of service and affidavits for garnishment, were filed. Because of the pendency of the issue presented by the first garnishment proceéding, the court ordered that the time for the garnishee to file answers to the interrogatories accompanying the various garnishment summonses, be extended until 10 days after the ruling on the intervening complaint filed by the defendant. On March 5, 1940, the court, without hearing testimony, entered an order discharging the garnishee, Swift & Company. There was no dispute as to the facts. This appeal is prosecuted to review the action of the court in discharging the garnishee.

Section 17 of the Federal Bankruptcy Act provides that a discharge in bankruptcy “shall release a bankrupt from all of his provable debts, whether allowable in full or in part except such as . . . are liabilities for obtaining money or property by false pretenses or false representations, or for wilful and malicious injuries to the person or property of another. ...” It is well established that a judgment for an assault and battery necessarily involves a wilful and malicious injury and that malice is the gist of such action. The declaration alleged solely an assault and battery on the person of plaintiff. Defendant maintains that the judgment is dischargeable in bankruptcy, and quotes from In re Mirkus, 289 Fed. 732, that “the bankruptcy court alone has the power to grant a discharge, but the effect of a discharge is matter for the consideration of any court to which it may be presented as a defense or otherwise.” Defendant also asserts that “whether or not bankruptcy discharges the debt in question, is decided primarily by the answer to the question as to whether or not the debt is a provable debt in bankruptcy.” Plaintiff replies by admitting that the debt was one provable in bankruptcy, but insists that it does not follow that provable debts are dischargeable in bankruptcy. Defendant also supports his argument by citing Ingalls v. Raklios, 373 Ill. 404, and Peiffer v. French, 306 Ill. App. 326. These cases have no bearing on the proposition under discussion. They did not involve a consideration of section 17 of the Federal Bankruptcy Act. They involved a construction of the amendment to section 5 of the Judgments, Decrees and Executions Act of Illinois, which amendment was adopted in 1935. The judgment in the instant case was entered on November 10, 1933. Furthermore, the plaintiff is not in the instant proceeding attempting to enforce a capias ad satisfaciendum. We are convinced that judgment in the instant case, being for a wilful and malicious injury to the person of the plaintiff, is not dischargeable in bankruptcy.

Plaintiff also argues that the decision of the federal court that the judgment is not dischargeable in bankruptcy, is res judicata on the question of discharge-ability and was binding on the trial court. The- defendant filed his petition in bankruptcy and asked the federal court to restrain the plaintiff from enforcing his judgment. Plaintiff answered and joined issue. The question presented to Judge Philip Sullivan was precisely the same as is now presented to us. After considering the briefs filed by the respective parties, Judge Sullivan ruled that the judgment was not dis-chargeable and accordingly denied defendant’s motion for a restraining order. The federal court had jurisdiction of the subject matter and of the parties, and the ruling of that court was res judicata on the same proposition between the same parties when presented to the trial court. Stoll v. Gottlieb, 305 U. S. 165; Strobl v. Zidelt, 304 Ill. App. 385.

Because of the views expressed, the order entered by the circuit court of Cook county on March 5, 1940, discharging Swift -& Company as garnishee, is reversed and the cause is remanded with directions to enter judgment in favor of the plaintiff on the answer filed by Swift & Company, and for further proceedings not inconsistent herewith.

Reversed a/nd remanded with directions.

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


text:
    Midland Underwriters, Inc., Appellant, v. Travelers Casualty Insurance Company, Appellee.
    Gen. No. 41,475.

      Opinion filed January 22, 1941.
    Leon N. Miller and Sidney J. Sparberg, both of Chicago, for appellant.
    Meyer A. Ginsburg, of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

On February 17, 1940, plaintiff filed a complaint in chancery in the superior court of Cook county against the Travelers Casualty Insurance Company and prayed for an accounting and for other relief. A motion to dismiss the complaint was sustained and plaintiff was given leave to file an amended complaint. On April 5, 1940,' plaintiff filed its amended and supplemental complaint praying for discovery, an accounting, an injunction and for other relief. Defendant filed its motion to dismiss the amended and supplemental complaint. Plaintiff was then permitted to amend its amended and supplemental complaint on the face thereof. The chancellor sustained defendant’s motion and dismissed the amended and supplemental complaint as amended, for want of equity at plaintiff’s costs. This appeal followed.

It will be noted that plaintiff was granted leave to file an amended complaint and that it filed an amended and supplemental complaint, which was later amended on its face. In the trial court the defendant did not make any point of the fact that plaintiff included supplemental matter in its amended complaint. In fact, the defendant approved the order whereby plaintiff was permitted to amend its amended and supplemental complaint on the face thereof.

The plaintiff’s case is based on three written and sealed contracts dated August 13, 1935, August 10, 1936 and June 16, 1939. Under the first contract defendant- appointed plaintiff its exclusive sales agent in this State for a period of 2 years for the selling and distributing of two types of policies. Defendant agreed to pay plaintiff, in addition to the $5 down payment which was to be retained by plaintiff’s sales representative, a sum of 25 cents per month out of each $1 per month received by defendant oh its “$1.00 per month policy” and $2.50 from each of the first two payments made by the insurer on the “$34.50 policy.” On the latter policy the agent of plaintiff was to receive the $12 down payment. Defendant was to make payment to plaintiff on the 5th of each month for all payments received during the preceding month. Defendant agreed to supply plaintiff each month with an itemized statement of the various accounts for which remittance was being made. Defendant agreed that during the term of the contract plaintiff should have the right, through its duly designated accountant, representative or attorney to examine all books, records and documents referring to the business of defendant in the policies covered by the contract, upon reasonable notice by plaintiff to defendant and at reasonable times, for the purpose of ascertaining the correctness of the accounts between the parties. Defendant also agreed not to sell or to supply to any other corporation in this State or appoint any other agent to sell in this State the policies covered by the contract, excepting that the defendant “may sell the said policies to any person or persons soliciting the same from them either through the mails or by personal solicitation at the home office of Travelers, and agrees that all policies mentioned sold by Travelers in the State of Illinois, after the day of within agreement (excepting the exception herein contained) shall be credited to the account of Midland.” The parties also agreed that all reinstatement fees collected by defendant on policies sold by plaintiff should be the sole property of defendant and that plaintiff should be entitled to receive payment on the monthly payments thereafter made; that any refunds and sums expended by defendant for licensing of agents should be deducted by defendant from the amounts due to plaintiff and that all refunds made by defendant to policyholders, sold by plaintiff or its agents, should be charged to the account of plaintiff and deducted therefrom, provided such refunds could be made only for reasonable cause and upon notice to plaintiff. The second contract of August 10, 1936, extended plaintiff’s exclusive agency to August 10,1941. This agreement made plaintiff defendant’s agent for the sale of three types of policies instead of two. In this second agreement defendant agreed to pay plaintiff 25 cents of each $1 per month received by defendant on the $1 per month policy. This was the same provision as in the first contract. As to the policy known as the $34.50 policy, the second agreement obligated defendant to pay plaintiff, after the payment of the $12 down payment which was to be retained by the sales representative of plaintiff, 25 per cent from each payment thereafter made to defendant on such policy. On the policy referred to as the $32 policy, plaintiff’s sales representative was to retain the down payment of $10, and defendant was to -pay plaintiff in addition thereto 25 per cent of each payment thereafter made to defendant on such policy. Defendant was to make the payments on the 9th day of each month, instead of the 5th as in the first contract. The second contract provided that with each payment defendant should supply plaintiff “with a report for which remittance is being made.” Defendant was given an option at the end of any one year period to cancel the exclusive sales agency of plaintiff upon 60 days’ notice to plaintiff, providing that during the preceding year plaintiff failed to secure 3,000 applications or more for defendant. On such cancellation of the exclusive sales agency, defendant was given the right to designate such agents as it might choose. The cancellation was not to affect payments thereafter made from business previously placed by plaintiff. This second contract provided that “with the signing of this contract, the original contract between the parties hereto will be null and void and of no consequence and such original contract shall be replaced in its entirety by this instrument.” Other provisions of the contract of 1936 are in the same language as the original contract. The contract of June 16, 1939 altered the preceding contracts in the following respects: Defendant agreed to pay to plaintiff the sum of $1,608.93 and to deliver to plaintiff in addition thereto a judgment note in' the sum of $800 payable 30 days after date without interest; defendant agreed that it would submit to plaintiff a statement of account as of May 31, 1939, and that in the event its books and records revealed that it was indebted to plaintiff as of May 31, 1939, in a sum in excess of $2,408.93, it would immediately pay to plaintiff the sum so found to be in excess of $2,408.93; that plaintiff agreed that in the event an audit revealed defendant was indebted to plaintiff in an amount less than $2,408.93, plaintiff would immediately pay to defendant the amount so found to be due. In the third agreement plaintiff relinquished its right to be the exclusive agent in Illinois as provided by the other two contracts ; plaintiff was released of the obligation of submitting a definite number of applications annually and maintaining an agency force; from and after June 1, 1939 plaintiff was required to submit to defendant only such applications as it deemed advisable and that if such applications were accepted by defendant plaintiff was to receive the entire policy fee and the current month’s premium, and 25 per cent of the subsequent premium as collected and resceived by defendant; and the parties agreed that the payment of commissions due plaintiff for the preceding month was to be made on the 12th day of each month, or the day following when the 12th fell on a Sunday or a legal holiday; and plaintiff agreed that it would take 20 per cent off of its commissions providing defendant made such payment by the 12th day of each month. This third agreement defined a paragraph of the original agreement with reference to refunds as meaning refunds of premiums made to policyholders within the first policy year, and that such paragraph was not to apply to a settlement of a policy subsequent to the first policy year.

Plaintiff insists that the allegations in the amended and supplemental complaint as amended, which defendant’s motion admits to be true, are sufficient to give a court of equity jurisdiction to grant an accounting, and point out that where the accounts are so complicated that it would be difficult to present the various items to a jury in such a manner as to enable the jurors satisfactorily to determine the amount due, it is definitely settled that the case is one proper for a court of equity. Defendant replies that the allegations are not sufficient to give a court of equity jurisdiction to grant an accounting. Defendant asserts that plaintiff has a full and adequate remedy at law, and that the accounts are not so involved and complicated that it would be difficult to present the various items to a jury in such a manner as to enable the jurors to satisfactorily determine the amount due, and maintains that plaintiff does not present any case for equitable relief. It will be observed that the parties are in agreement that where the accounts are so involved and complicated that it would be difficult to present the various items to a jury in such a manner as to enable the jurors to satisfactorily determine the amount due, that equity has jurisdiction. We have carefully read the amended and supplemental complaint, as amended, to determine whether the accounts involved are so complicated that the interposition of a court of equity is necessary. Between August 13, 1935 and February 12, 1940, plaintiff submitted to defendant a total of 36,855 applications and defendant issued that many policies pursuant thereto. 8,511 policies were issued prior to August 10, 1936, when the second contract went into effect. During the period between August 10, 1936 and February 12, 1940, at which time defendant refused to accept any further applications, defendant issued at least 28,344 policies pursuant to applications submitted by plaintiff. Defendant submitted a report each month, except for September and November, 1937. On January 15, 1940, defendant paid plaintiff the sum of $1,351.38. This was the last payment made by defendant. It was not accompanied by a statement. Presumably, this last payment was for commissions allocable to plaintiff for December, 1939. Plaintiff alleges that the total accruals to plaintiff up to January 1, 1940, in accordance with the figures of defendant, amount to $73,371.18. Plaintiff states that the total amount collected by defendant, as estimated from the figures submitted by defendant, was $300,000. Plaintiff attached a copy of a monthly report as an example of the type of reports submitted by defendant. The report does not show what the total premium collections were, the division of the premiums collected from the different classes for the month under consideration, how many policies of different classifications were outstanding and in effect from time to time, or which policies terminated or lapsed, or were renewed or reinstated; that no attempt was made to break down the lump sum figures in the form of a detailed statement; that in the statements plaintiff is debited for such items as “Refunds,” “N. S. F. checks,” “Premium paid to agent,” “Commission deducted from advance payments returned to policy holders,” “Refunds applied on policies,” “Checks cashed,” and that no details are furnished as to the nature of these transactions; that no information is supplied as to the identity or location of persons to whom refunds were made, and that no date is supplied to indicate whether the policyholders to whom refunds were made became such through the efforts of plaintiff, or were the product of solicitation by mail or in person at the home office of the defendant; and plaintiff calls attention to the provision of the contract that such items shall not be charged to the account of plaintiff except upon reasonable cause and upon notice to plaintiff; that contrary to these provisions the defendant made refunds to policyholders after the contestable period under the policies had expired, and that defendant wrongfully debited plaintiff with the refunds so made; that in 1935 such wrongful charge backs amounted to $383.35; in 1936, $718.50; in 1937, $987.32; in 1938, $1,058.64 and in 1939, $1,335.58. Plaintiff further charges that during the four and one-half years prior to the filing of the complaint there were approximately 40.000 distinct transactions between the parties, and that these figures do not include the transactions between the defendant and third persons, and that if the defendant received only 12 payments from each of the policyholders the books of defendant must show over 300.000 entries; that the payment of $1,351.38 on January 15, 1940, by defendant purportedly represents the net accruals.to plaintiff for the month of December, 1939, as calculated by the defendant; that plaintiff estimates defendant has collected during the month of December, 1939, as premiums on policies issued at the instance of plaintiff, or on which it is entitled to credit, a sum. in excess of $6,500, and that plaintiff estimates that at the time of the filing of the amended and supplemental complaint there were in full force and effect from 6,000 to 10,000 policies issued by the defendant on applications submitted to it by plaintiff; that to determine which of the policies lapsed or matured, or were canceled or reinstated, necessitates not only the tracing of the history of each policy issued by the defendant in which plaintiff has or had an interest, and the identity of the respective insured, but an investigation, as well, of the thousands of entries as to premiums paid thereon from time to time, the records of lapsation, renewal or reinstatement, the date relative to maturity, payment or refunds and claims and the like. Plaintiff also asks for an accounting as to policies of insurance sold by defendant from August 13, 1935, until May 31, 1939, to persons other than those soliciting the same personally at its office or through the mails. Defendant calls our attention to the fact that under the contracts plaintiff had the right to examine the books and records and to have an audit made, and that plaintiff does not allege that it availed itself of such right. In reply plaintiff calls our attention to the allegation that in February, 1940, it demanded that defendant comply with the contracts and that defendant submit to plaintiff full and detailed monthly accountings of all transactions in which the plaintiff had an interest, together with a statement showing the amouht of commissions due and payable to plaintiff, and that defendant failed, neglected and refused to render a full, accurate and complete account; furthermore, that the amended complaint, by way of supplement, avers that on March 6, 1940, pursuant to a subpoena, L. A. Napier, president of the defendant corporation, appeared before a notary public; that plaintiff, by its attorneys, commenced to take his deposition; that he was interrogated with respect to the transactions had by and between the parties; that •he was asked what books or records the defendant then had pertaining to the transactions between the parties and whether the defendant had any journals, ledger or ledger pages or ledger records with respect to such transactions, and that the witness refused to give answer; that he was asked to identify the purported monthly reports, which he refused to do; that he was asked if he had any records of payment made by the defendant to plaintiff since August 10, 1936, and whether he had any record of premiums received by the defendant since August 10,1936, on policies placed through the medium of applications submitted by plaintiff; that witness refused to answer such interrogatories, and plaintiff avers that by virtue of the premises it would be unavailing to attempt to obtain a true, accurate, full and complete accounting of the transactions had by and between the parties by a mere examination and audit of the records, unless such accounting was had under the supervision of this court, and that a mere examination of the books of account and records in possession or under control of defendant would not be productive of a full, true and complete discovery without explanation from the persons keeping such books of account and record as to the meaning of certain entries or the location of records pertaining to other entries, and that plaintiff is fearful that unless the officers and employees of defendant are placed under oath and required to testify, plaintiff will not secure the benefit of all the books, records and paper writings containing entries relative to the issues involved and will thus be deprived of the discovery sought.

Assuming that the allegations of the amended and supplemental complaint are true, which we are required to do, we are convinced that plaintiff made out a case for equitable intervention. In our opinion the accounts are so involved and complicated that it would be difficult to present the various items to a jury in such a manner so as to enable the jurors to satisfactorily determine the amount due. In this situation equity takes jurisdiction. While the amended and supplemental complaint does not show that the plaintiff availed itself of the opportunity given it by the contract of inspecting the books and records and having an audit made, it does charge that the president of the defendant declined to answer questions which sought to elicit this information. Plaintiff argues that because of this nonco-operative attitude it would be useless to endeavor to procure an accounting without the aid of the court. Defendant’s theory of the case is that “the amended and supplemental complaint, as amended, discloses a purely legal claim for commissions for the recovery of which plaintiff has a full, complete and adequate remedy at law; that in order to qualify the case for equity jurisdiction, the complaint must by well pleaded allegations show either fraud, trust relationship between the parties, need for discovery obtainable only in equity, that the account is so intricate, complicated and involved that it would be impossible for a court of law and a jury to pass upon the issues by reason of the complexity of the situation or some other equitable ground; that it does not disclose any of these grounds; that, under these rules, it is largely in the discretion of the Chancellor to grant or reject equitable jurisdiction in a given case and that here the two Chancellors who, after exhaustive argument, refused such jurisdiction by dismissing the original and amended complaints, cannot be said’ to have abused such discretion in so doing; that in such cases it becomes necessary to indulge in every intendment in favor of the party seeking to have his cause of action heard at law, rather than to divest him of that right, and that, in this instance, the action of both chancellors was not prejudicial to the plaintiff.” We have held that the complaint is cognizable in a court of equity bp cause on its. face it shows that the account is so complicated and involved that it would be difficult to present the various items to a jury in such a manner so as to enable the jurors to satisfactorily determine the amount due. It is, therefore, unnecessary to discuss the other grounds for equitable jurisdiction advanced by plaintiff. We do not understand, however, why, in view of the admission by the defendant, that the amended and supplemental complaint discloses a legal claim for commissions for the recovery of which plaintiff has an adequate remedy at law, the plaintiff did not suggest to the court that the cause be re-docketed as a law case. The defendant did not demand a jury trial. The principal discussion before us revolves around the question as to whether the accounts were so involved and complicated that it would be difficult to present the various items to a jury in such a manner so as to enable the jurors to satisfactorily determine the amount due. The Civil Practice Act provides that there shall be no distinction respecting the manner of pleadings between actions at law and suits in equity, and that all pleadings shall contain a plain and concise statement of the pleader’s cause of action; that legal and equitable issues may be tried together where no jury is employed, and that any cause of action may be transferred at any time from the law docket to the equity docket or vice versa. At the time defendant filed its appearance, it knew that plaintiff was endeavoring to invoke equity jurisdiction, and also probably knew that it would challenge the right of plaintiff to maintain an action in equity, and knew that if the court sustained defendant, the court would have the right to transfer the cause to the law docket. If the chancellor agreed with the position of defendant, then at the suggestion of plaintiff the case could proceed as a law case and the executive committee would designate a judge to hear it. Under the liberal provisions of the Civil Practice Act and the rules of the Supreme Court concerning discovery, whether at law or in chancery, plaintiff would have a right to his day in court. The, practical effect of the order dismissing the amended and supplemental complaint is to force the plaintiff to file an action at law, setting up practically the same allegations as it did in the instant action. The plaintiff then, because it marked its complaint as a “complaint in chancery” instead of a “complaint in law, ’ ’ is turped away without being heard. It was to avoid situations such as this that modern practice and procedure has been liberalized.

For the reasons stated the decree of the superior court of Cook county is reversed and the cause remanded with directions to proceed in a manner not inconsistent with this opinion.

Reversed and remanded with directions.

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

       See Callaghan's Illinois Digest, same topic and section number.


text:
    John F. Kenny and Alice E. Held, Appellees, v. T. L. Arzt Foundry Co., Appellant.
    Gen. No. 41,511.

      Opinion filed January 22, 1941.
    P. F. Murray, of Chicago, for appellant; John T. Murray, of Chicago, of counsel.
    Weissenbach, Hartman, Craig & Okin, of Chicago, for appellees; Harry Okin and Cecil Magid, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On May 10, 1940, plaintiffs filed their complaint in the superior court of Coolc county and alleged that they were engaged in the foundry business in the city of Chicago, and that in order to provide themselves with a place for the continued operation of their business, on November 1,1939, they acquired title to the foundry plant and premises commonly known as 2300-24 Bloomingdale avenue, Chicago, Illinois, together with cupola and elevator located on the premises, and all cranes, overhead track, wiring, plumbing, heating apparatus, shelving, air lines, linoleum, lighting, lighting fixtures, attached motors and runway, dust arrestor and attached motor, core oven, moulding benches, cupola blower and motor, core cars and built-in Krone floor scale; that they were seized in fee simple title to the real estate and to the machinery and equipment described, which they claimed to be part and parcel of the real estate; that defendant was then in possession of the premises under a lease which would expire on June 30, 1940; that plaintiffs contemplated taking possession of the premises for the operation of their business after the expiration of defendant’s lease; that defendant was likewise engaged in the operation of a foundry in competition with the plaintiffs; that defendant informed them that it would vacate the premises' on or prior to the date of the expiration of its lease; that defendant threatened, under claim of ownership of a portion of the equipment contained in the plant, to dismantle the plant and to remove therefrom certain of the machinery and equipment, the property of plaintiffs, namely, the wiring, plumbing, air lines, linoleum, cranes and attached motors and runway, overhead track, core oven, cupola, core cars, moulding benches, elevator, floor scale, cupola blower and motor, lighting fixtures and other equipment permanently affixed to and being a part of the premises; that defendant threatened other waste and to leave standing on the premises only four bare walls; that the acts of defendant would, if carried out, do irreparable injury to the premises and to the plaintiffs by preventing them, after the vacating of the premises by defendant, to begin operation of their foundry business on the premises; and plaintiffs prayed that the defendant, its officers, agents and employees be enjoined from dismantling any part of the foundry plant and from removing therefrom any of said equipment, and that plaintiffs be decreed to be the true and lawful owners of the real estate and foundry plant contained therein, including the machinery and equipment described. In answering, defendant stated that it had occupied the premises for a period of 5 years and “was the owner and is still the owner” of the foundry plant and equipment described in the complaint, and that it is “still the owner of the personal property described” in the complaint; that the equipment mentioned is personal property and that defendant “was the owner and is now the owner” of such personal property; that plaintiffs had knowledge of the right, title and ownership of the defendant in and to such personal property prior to their purchase of the real estate in question; and defendant denied that it intended to leave standing on the premises four bare walls, or that it intended to commit any unlawful act in the removal “of its property from the premises”; and denied that plaintiff was entitled to the relief prayed. The court granted a temporary injunction. The cause was referred to a master in chancery. During the court of the hearings the parties stipulated that the elevator, lighting, wiring and lighting fixtures, plumbing and heating apparatus, linoleum, 2 large built-in core ovens approximately 14 x 9 and certain air lines were the property of plaintiffs, and that the following items were claimed by both plaintiffs and defendant:

(1) Power wiring, fuse boxes, starting switches and controllers.
(2) Wooden shelving in pattern storage room.
(3) Dust arrestor.
(4) 5 ft. core oven.
(5) All cranes and overhead track covering the following :
(a) 1-18 ft. span traveling crane with 2,000 lb. electric hoist and attached motor.
(b) 1-41' 4%" span traveling crane, 10,000 lb. capacity, and 3 attached motors.
(c) 1-41' 4^4" span traveling crane, 10,000 lb. capacity, and 3 attached motors.
(d) 150 ft. double traveling crane track for cranes specified in (b) and (c) above, together with runways and supports.
(e) Double track approximately 35 ft. long supporting (a) above, together with runways and supports.
(6) 1 cupola.
(7) 1 cupola blower and 1 motor.
(8) 2 core cars.

The master found that all the property conceded to be that of plaintiffs, together with the property in dispute as described in the stipulation, with the exception of the wooden shelving in the pattern storage room, was part of the real estate, title to which was in plaintiffs, and recommended that a permanent injunction issue, enjoining defendant from dismantling or removing any part thereof from the premises. Objections to the master’s report were overruled. These objections were allowed to stand as exceptions. The exceptions were likewise overruled and the chancellor decreed that the temporary injunction be made permanent and that judgment be entered against defendant for costs. Defendant prosecutes this appeal for the purpose of reviewing the decree.

In the year 1923 V. F. Bendixen was the owner of the real estate commonly known as 2300-24 Bloomingdale avenue, Chicago, and in that year he erected thereon a building designed and adapted for use and operation as a foundry. He then installed therein all of the equipment and machinery in dispute and operated the property as a foundry plant. On May 14, 1927 Ben-dixen executed and delivered a trust deed to the Noel State Bank, as trustee, to secure the payment of a loan of $40,000. The trust deed conveyed the premises “together with all cranes, overhead tracks, wiring and any other machinery or equipment attached to said premises ; and also together with all buildings, improveT ments and appurtenances thereunto attached or belonging, including all window screens, curtain fixtures, window shades, door screens, furnaces, ranges, gas and electric light fixtures, steam and other apparatus, and any and all fixtures which may be placed in any building now erected or thereafter standing on said premises . . .” Thereafter Bendixen organized the Ben-dixen Foundry Corporation and conveyed the real estate to it subject to the trust deed. Bendixen and the corporation defaulted in the payments required to be made under the terms of the trust deed and in 1932 a bill to foreclose was filed in the superior court of Cook county. A decree was entered on December 13, 1932, finding the trust deed to be a first and paramount lien. The decree directed that if the amount found to be due was not paid within three days that the real estate, which was therein described” . . . with all cranes, overhead tracks, wiring and any other machinery or equipment attached to said premises; and also together with all buildings, improvements and appurtenances thereunto attached or belonging . . . and any and all fixtures in any building standing on said premises, . . . should be sold and the proceeds applied on the mortgage indebtedness. On December 12, 1935, the master sold the real estate ‘ ‘ together with all cranes, overhead tracks, wiring and any other machinery or equipment attached to said premises, and also together with all buildings, improvements, and appurtenances thereunto attached or belonging, including all window screens, furnaces, ranges, gas and electric light fixtures, steam fixtures and other apparatus and any and all fixtures in any building standing on said premises” to Katherine C. Easterly, the successful bidder. She was a nominee of the bondholders’ protective committee, representing the bondholders secured by the trust deed. On August 10, 1933, while the foreclosure proceeding was pending and before the decree was entered, a petition in bankruptcy was filed in the federal district court against the Bendixen Foundry Corporation and a receiver was appointed. On October 5, 1939, the bankruptcy receiver sold all his right, title and interest in the “tangible personal property belonging to said estate” to William. L. Falck. The receiver’s bill of sale listed, among others, the following items of property:

1 lot of shelving and benches
1 5 ft. core oven
1 10 ft. core truck
1 18 ft. span traveling crane with 2,000 lb. electric hoist
1 cupola blower and motor
1 Whiting tumbling barrel with blower and motor
1 Whiting 45 ft. span traveling crane, 3000 lb. cap
1 Whiting 45 ft. span traveling crane, 20 tons cap
150 ft. double traveling crane track

On June 27, 1935, the trustee in bankruptcy sold his right, title and interest in and to the real estate in question to Majorie Beale. She was also the nominee of the bondholders’ protective committee. The bondholders’ protective committee organized a corporation known as the Bendixen Building, Inc., which corporation acquired the interest of Marjorie Beale and Katherine Easterly, thus merging complete title in itself. On September 14, 1933, the receiver who had been appointed in the State court filed his petition in the bankruptcy proceeding, asserting that the property sought to be sold was “tangible personal property” and was subject to the lien of the trust deed, and prayed that the bankruptcy receiver be ordered to turn it over to him. This petition was withdrawn on October 9, 1933 and no order was entered thereon by the bankruptcy court. On June 17, 1935, Falck, the purchaser at the bankruptcy sale, sold to T. L. Arzt, warranting his title to all personal property then located in the foundry premises, and specifically describing, among a long list of items, the articles enumerated in the receiver’s bill of sale. On June 27, 1935, the State court receiver leased the premises to T. L. Arzt for a term of three years commencing July 1, 1935, and ending June 30,1938. On September 1, 1936, the defendant corporation was organized by Arzt, and Took over the operation of the business. Arzt assigned the lease to defendant corporation. On June 17, 1935, Falck, by bill of sale, sold and delivered to Arzt some of the items in dispute, but not the dust arrestor and cupola. Arzt transferred his title to the so-called personal property to defendants. It is to be noted that the dust arrestor and cupola, two of the most important items in dispute, were not mentioned in the receiver’s bill of sale or in the bill of sale from Falck to Arzt. On February 17, 1938, Bendixen Building, Inc., leased the premises to defendant for a term of one year commencing July 1,1938, and ending June 30,1939, and on May 2, 1939, Bendixen Building, Inc., leased the premises to defendant for a term of one year commencing July 1, 1939, and ending June 30,1940. On November 1, 1939, Bendixen Building, Inc., conveyed the real estate to the plaintiffs subject to the then existing lease to defendant corporation. The language of this deed, after describing the property, reads: “together with a cupola and elevator located in said premises and without warranting the following: all of the right, title and interest of the grantor in and to all cranes, overhead tracks, wiring and any other machinery .or equipment attached to said premises.” Subsequent to the conveyance by Bendixen Building, Inc., to plaintiffs, defendant attorned to plaintiffs and occupied the premises as plaintiffs’ lessee under the terms of the lease dated May 2, 1939.

Defendant grounds its claim to ownership of the disputed property on the bill of sale from Falck, the purchaser of the bankruptcy receiver’s right, title and interest, if any, in a portion of the disputed property. The first point urged by defendant is that “mere annexation to the realty of a gasoline plant, mills, building or other trade fixtures do not cause the same to become part of the realty.” Its second point is that “such articles when erected, owned or purchased as personalty, are, removable, because they are trade fixtures.” In Joyner v. Mitchell, 267 Ill. App. 427, 429, the court said:

“If machinery is intended for permanent use in carrying on the business for which the building was erected or is used, and as a permanent accession to the realty, it becomes a part of the realty on being installed thereon, and if such was the intention, it is immaterial that the machines may be removed and used elsewhere, and that they may be removed without injury to the building. This rule has special application to heavy machinery intended for the building and not intended to be moved from place to place though resting in position by its own weight, and to machinery which is a constituent part of a factory or shop and indispensable thereto, though not actually fastened. ’ ’ In the instant case the articles which defendant claims, were securely attached to the building and were purchased or made for the particular use to which they were appropriated in the building, and were especially adapted to that use. The master, in the presence of all the parties, viewed the disputed property. Paragraphs 16 to 23 inclusive of his report gives a detailed description of the items in dispute and the manner of their annexation and use. We find that the items in dispute were annexed to the real estate in such a manner as to become a part thereof and that it was intended that they should be a patt of the real estate.

Defendant maintains that the plaintiffs and their grantors, by their conduct, have never claimed the right to possession or the right to rent for the articles in dispute, and that they are estopped to claim ownership. It points out that plaintiffs (1) bid for the personal property, as personal property, in the bankruptcy court in the year 1933; (2) filed a claim in the bankruptcy court and received a payment as dividend from the proceeds of the sale of the personal property; (3) were informed of the claim of the defendant that it had bought and paid for the same on August 11, 1939, over 2 months before they (plaintiffs) purchased the real estate; (4) plaintiffs’ attorney sought to purchase 4 essential fixtures and equipment on August 8, 1939, over 2 months before they purchased the real estate; (5) plaintiffs received the deed of November 1, 1939, wherein their immediate grantors refused to warrant the title to the personal property in dispute; and (6) plaintiffs never claimed the right to possession of the personal property in dispute. It is a fact that in 1933 Kenny, one of the plaintiffs, bid for some of the personal property in the bankruptcy proceeding. The bid was made through his attorney, but was withdrawn. Plaintiff Alice Held also filed a claim in the sum of $300, on which she received a dividend of $75.38 on June 27, 1935, and plaintiff Kenny filed a claim in the sum of $420, on which he received a dividend of $105.53 on the same date. These dividends were based on wage claims. The dividends were paid out of receipts from the sale of personal property not here in dispute. Plaintiffs had no interest in any of the property either at the time the bid was made and withdrawn or when the dividends on the wage claims were received. No act of theirs at that time could in any manner affect the title to the real estate as against the mortgagee. Kenny could have acquired no greater interest than the receiver in bankruptcy had to sell, even if he had been the successful bidder. The fact that on August 11, 1939, more than 2 months before plaintiffs purchased the real estate, plaintiffs were informed that defendant had bought some of the articles in dispute, could not give defendant a title that it did not have. Such a notice could only be important where plaintiffs claimed some right by virtue of being an innocent purchaser. Plaintiffs do not base their case on a contention that they are innocent purchasers. The same observations apply to the statement that plaintiffs’ attorney sought to purchase “four essential fixtures and equipment on August 8, 1939, over two months before they purchased the real estate.” This action did not give defendant title to any of the articles in dispute. Their action in attempting to purchase some of the equipment does not estop them from asserting their claim. The situation of the defendant was not changed because of any action of the plaintiffs. Defendant relies on the sale by the bankruptcy receiver to Falck and the subsequent sale by the latter to the defendant. Nor does the fact that in the deed of November 30, 1939, plaintiffs’ grantors declined to warrant the title to the personal property in dispute, weaken or strengthen the claim of either the plaintiffs or the defendant. If the articles in dispute were attached to the real estate in such a way as to be a part thereof, as we have held, then the fact that the grantors refused to warrant the title to such articles would not give title to the defendant. The sixth item mentioned under this point is that plaintiffs’ grantors “never claimed the right to possession of the personal property in dispute.” We are satisfied that the grantors, grantees and lessees recognized that the articles in dispute were a part and parcel of the real estate.

We have held that the items of property in dispute became a part of the real estate at the time of installation by Bendixen, the original owner. When he executed the trust deed, he conveyed not only the real estate but all the machinery and equipment as well. The mortgagor could not, by any act of his, change the character of the property from real estate to personalty, to the prejudice of the mortgagee. The mortgagor did not do so or undertake to do so. When the Ben-dixen corporation became bankrupt the receiver in bankruptcy took the property of the bankrupt subject to all the equities and rights imposed upon it in the hands of the bankrupt. As stated in West Side Trust & Savings Bank v. Lopoten, 358 Ill. 631, 639, “after condition broken, the mortgagee is, as between himself and the mortgagor, the owner of the fee. ’ ’ At the time of the bankruptcy the foreclosure proceeding was pending. The receiver undertook to convey and could only convey such right, title or interest as he had. Some items which were, in fact, personal property, were sold, and none of these is claimed by plaintiffs. The machinery and equipment claimed by plaintiffs continued to be a part of the realty from the time of their inception. The receiver in bankruptcy had no power to-sell the same, and he had no title to any of the real estate of which the machinery and equipment involved herein, constituted a part. Manifestly, Falck acquired only that title which the receiver had.

Defendant maintains that the items in controversy were treated by the parties to the negotiations for a lease, as personal property. In all of the leases the description of the real estate is followed by the words “and all buildings, improvements and appurtenances thereunto attached or belonging. ’ ’ The leases all provided that the lessors should have a lien on certain items of property therein described, none of which were included in the decree as being the property of plaintiffs. Plaintiffs argue that no lien is reserved to the lessors covering any of the specific items in dispute for the obvious reason that the defendant was not recognized as the owner of such property, and that consequently the reservation of a lien was unnecessary. We find that there is merit to this contention.

Defendant argues that plaintiffs have an adequate remedy at law, and that hence the complaint should be dismissed for want of equity. The rule is that equity will take jurisdiction to enjoin waste, actual or threatened, without regard to the existence of an adequate remedy at law and without regard to the solvency or insolvency of the defendant. (Williams v. Chicago Exhibition Co., 188 Ill. 19; Davis v. Carsley Mfg. Co., 112 Ill. App: 112.)

Because of the views expressed, the decree of the superior court of Cook county is affirmed.

Decree affirmed.

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


author: Mr. Justice Denis E. Sullivan Mr. Justice Burke

text:
    Laverne Harrison, Minor, by J. Stavoos, Her Mother and Next Friend, Appellee, v. City of Chicago, Appellant.
    Gen. No. 41,256.
    Burke, J., dissenting.

      Opinion filed January 22, 1941.
    Rehearing denied February 5, 1941.
    Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Besa, Adam E. Patterson and Sydney B. Drebin, Assistant Corporation Counsel, of counsel.
    Nathan Allen, of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

An action was instituted at law by Laverne Harrison, a minor, by her mother and next friend, J. Stavoos, plaintiff, against the City of Chicago, a municipal corporation, defendant, to recover damages for personal injuries alleged to have been sustained by her while climbing and playing on a newspaper stand on the southeast corner of 83rd street and South Chicago avenue in the City of Chicago on July 14,1933 at about 12 o’clock noon.

The cause was tried before a judge and jury, resulting in a verdict for plaintiff in the sum of $5,000, upon which the court entered judgment after overruling the defendant’s motions for a new trial and in arrest of judgment.

In plaintiff’s pleadings it is alleged, among other things, that the newspaper stand did not conform in measurements to the requirements of Municipal Ordinance 990 of the Bevised Chicago Code 1931, and plaintiff further alleges in paragraph 3 of her second-amended complaint that the newspaper stand was an attractive nuisance, a dangerous instrumentality, alluring and appealing, to childish instincts.

Plaintiff’s theory of the case is that the City of Chicago permitted the maintenance of a certain newspaper stand on the sidewalk and parkway on the southeast corner of 83rd street and South Chicago avenue, the dimensions of which exceeded those prescribed by section 990 of the Revised Chicago Code of 1931; that said newsstand was a dangerous instrumentality, an attractive nuisance alluring and appealing to childish instincts and curiosity; that the city failed to provide guards, fences or barricades sufficient to exclude children from playing around said newsstand; that the plaintiff exercised ordinary care for a child of her age, intelligence and experience; that plaintiff was 8 years of age at the time of the accident, and while she was playing around said stand, as a result of the negligence of the city she was injured.

Defendant’s theory of the case is that the mere existence of the newspaper stand of the alleged dimensions and its maintenance by one Tony Pécora who owned and operated it under a permit issued by the city, does not make the city guilty of negligence in the absence of proof that the alleged difference in the dimensions of the stand was the proximate cause of the injury; that the newspaper stand as constructed and maintained was not an attractive nuisance in contemplation of the law; that the city was not negligent and that negligence on the part of the city was not proved, and that the city had no notice of the alleged difference in the dimensions of the newspaper stand.

The evidence shows that the plaintiff was a child 8 years of age at the time of the accident and that she was accompanied by another girl, Bernice Trella, who was also a minor; that plaintiff and her companion had crossed the street to purchase some candy and they came back and went to the newsstand; that said newsstand was situated half on the sidewalk and half on the parkway; that they first sat in the newsstand and then started to swing on the top of it and after plaintiff was on it, the newsstand tipped over and fell half on the sidewalk and half on plaintiff.

The evidence further shows, as testified to by plaintiff’s companion, that they went to the newsstand because it looked like a nice place to play.

Plaintiff testified that she and Bernice Trella were - coming from the candy store and sat on the newsstand and it fell on her; that she never played at the newsstand before she was injured but had seen other children playing there before that time.

Hazel Harrison, a witness for plaintiff, testified that she saw tlie newsstand at the southeast corner of 83rd street and South Chicago avenue during the year preceding the accident, as she passed that corner 3 or 4 times, a week and that during the year immediately preceding this accident she saw children playing on or about the stand quite a number of times, on an average of once a week.

Another witness, Roman Gonnewein, testified that the newspaper stand was 19 inches deep at the base, height of rear was 62 inches, height of front was 68 inches, shelf was 3 feet from ground and 29 inches deep, and the roof extended out 8 inches to 8% inches; that he saw the newsstand lying in the parkway a half dozen or ten times during the year preceding the accident.

The city ordinance (Rev. Chi. Code, 1931 — p. 282) provides for dimensions of newsstands, as follows: Depth of base 23 inches, width of base 28 inches, height 32 inches, top width 40 inches, top depth 26 inches, height of backboard 17 inches.

In Wolczek v. Public Service Co., 342 Ill. 482, the Supreme Court adopted the rule applicable in attractive nuisance cases and at page 490, said:

“It is based on the humane consideration that where one maintains on his premises a dangerous agency, so located as to attract children from a place where they have a right to be, and that such owner knows, or should know, of its dangerous character and of its attractiveness to children and the probability of injury to them by it but does not use reasonable care to protect or warn them against it, then he is guilty of negligence. There has been no deviation from this rule since the case of City of Pekin v. McMahon, 154 Ill. 141.”

In the case of O’Donnell v. City of Chicago, 289 Ill. App. 41, being a case where a boy had climbed a pole to view a prize fight in a stadium, touched a live wire and was injured, this court held that pole constituted an attractive nuisance. In the opinion this court pointed out that in the case of Oglesby v. Metropolitan West Side El. Ry. Co., 219 Ill. App. 321, this court had previously held that the mere fact that an instrumentality is not in and of itself particularly attractive to children, would not exclude it from the application of the attractive nuisance doctrine, and that the question in such cases was whether the owner maintained instrumentalities which, because of their location, could reasonably be expected to attract children.

In the O’Donnell case supra, this court cited the case of Consolidated Elec. Light & Power Co. v. Healy, 65 Kan. 798, in which case electric wires defectively insulated ran along on timbers projecting from the side of a bridge where small boys were in the habit of climbing over the railing near the wires. One of the boys came in contact with one of the wires and was killed and his parents recovered a judgment for damages, which was affirmed by the Supreme Court. In its opinion the court pointed out that the electric light company had not maintained the bridge and the railing which constituted an attractive climbing place for boys, but the wires were maintained in such immediate proximity to that which was attractive as to constitute them a part of the whole situation. The court said: “It put its wires within the attractive environment. It identified itself in that way with the attractive place.”

The purpose of a street, as is well known, is to permit travel thereon and it is one of the duties of the City of Chicago to keep streets free of obstructions and danger. The question is not argued as to the right of the city to grant permits for placing obstructions thereon. The evidence shows that this newsstand had been there for a period of a year, sometimes standing upright and sometimes lying sidewise on the ground.

It is contended by defendant, who offered no evidence, that plaintiff’s evidence shows that Laverne Harrison was standing on the ground a foot or more from the stand and Bernice was swinging from the top.

On cross-examination Laverne Harrison stated, “I imagine I was about a foot away from the newsstand, standing on my feet, before the newsstand fell. At that time Bernice was sitting inside the stand. I don’t remember if she was on top of the stand while we were playing there. Bernice jumped off the stand and it was after she jumped off that it fell and came on me. I saw 'her jump and I saw it come with her. I didn’t move at all; I just was looldng at her when it fell ... I didn’t have time to move away.”

Bernice Trella when testifying stated that at first they were sitting in the paper stand and then they started to swing on the top of it and that when she was on it, it tipped over and fell.

We think there is sufficient evidence in this record to show that the plaintiff was attracted to this newsstand and was injured while playing around it and that it should, therefore, be considered as an attractive nuisance; that the city authorized and permitted this newsstand to remain at the place designated and that children in the neighborhood had been playing in that vicinity for a period of a year. As was said in O’Donnell v. City of Chicago, 289 Ill. App. 41:

“Instrumentality may come within the attractive nuisance rule if it is so placed as to be a part of a general environment which is attractive to children.

In Oglesby v. Metropolitan West Side El. Ry. Co., 219 Ill. App. 321, it was held that the mere fact that an instrumentality is not in and of itself particularly attractive to children would not exclude it from the application of the attractive nuisance doctrine, and that the question in such cases was whether the owner maintained instrumentalities which, because of their location, could reasonably be expected to attract children.

Manifestly, in this case it can be easily seen from the exhibits and photographs that the newsstand in question was in the shape or form of a house and the tendency of children to seek out playhouses is well known. This stand was on a foundation of vertical boards and the place where the papers were to be placed when in use was fastened to this foundation and extended out and beyond it which made the newsstand top-heavy. It had a sloping roof which gave it the appearance of a house or shed and such a shelter would readily appeal to the childish mind as a place in which to play and as such was a standing invitation to children in the neighborhood to use it for that purpose, as it could serve as a miniature house. The danger which presented itself because of this stand being top-heavy was not apparent to children, and, in a measure, it served as a kind of trap.

We think the evidence clearly shows that the defendant city was guilty in permitting such a dangerous instrumentality as would allure children because of their innate curiosity to play in and around such newsstand and to permit such newsstand to remain on a public street unless adequately fastened in order to alleviate certain dangers which rendered this newsstand not only an attractive nuisance but a general nuisance.

Complaint is made as to the instructions given. We think entirely too many instructions were given. Some 16 instructions were given at the request of plaintiff and some 15 instructions were given at the request of defendant and in addition, thereto one instruction was given on behalf of the court.

The testimony of the doctors shows that there were lacerations over plaintiff’s eyes and nose; that plaintiff was taken to the hospital where the wound was sutured; that hot packs and dressings were applied and she was given a lockjaw serum; that the stitches sloughed away and the bone became infected and that the wound had to be.left open to drain on account of the infection. As a result of the accident there is a scar on plaintiff’s forehead two inches long and one-half inch wide and at the time of the trial she still suffered from frequent headaches and she is probably disfigured for life.

We are not quite satisfied that the record shows sufficient evidence to sustain the amount of damages as awarded, by the jury. While we are reluctant to disturb the findings of a jury on such questions, as in most instances the jury is in a better position to fix the amount of damages than is the trial or reviewing court, yet, in this case, we are of the opinion that the amount of damages is somewhat excessive and this court accordingly affirms the judgment of the circuit court upon a remittitur of $1,500 being made by plaintiff to this court within 10 days, otherwise the judgment will be reversed and the cause remanded for a new trial.

Judgment affirmed upon a remittitur by plaintiff of $1,500, otherwise the judgment is reversed and the cause is remanded.

Hebel, P. J., concurs.

Mr. Justice Burke

dissenting: The second-amended complaint recites that an ordinance of the City of Chicago authorizes the commissioner of public works to permit stands to be maintained on the public streets for the purpose of exhibiting for sale daily newspapers printed and published in Chicago, which stands ‘1 shall not exceed” certain dimensions. The complaint avers that the newsstand did not conform to the requirements. The complaint, however, does not charge that the injury to the minor was caused by any failure to construct the stand* in accordance with the ordinance. It will be observed that the ordinance inhibits the maintenance of stands exceeding the . prescribed dimensions. There is no inhibition against the construction of stands of dimensions less than those precribed in the ordinance. The apparent purpose of the provision limiting the size of stands is to prevent the erection of large structures which would be an obstruction to the view and freedom of movement of pedestrians and the drivers of vehicles. Plaintiff in her brief admits that “there was no proof of any defect in the construction of the stand.” She states that she “only proved that it violated an ordinance in the manner of its construction regarding dimensions. ’ ’ It is undisputed that Laverne was injured because her playmate Bernice was swinging from the stand, thereby causing it to fall on Laverne. The swinging from the stand by Bernice is what caused the injury. It is not contended that Laverne ran into the stand. Both girls knew that the stand was there. It would be unreasonable to expect that the stand would be so constructed as to prevent a child from pulling it over. The majority opinion states that it is the duty of the city to keep streets free from obstructions and danger. This might be important if Laverne ran against the stand. Plaintiff grounds her right to recovery on the doctrine of attractive nuisance. The sale of newspapers from stands located on sidewalks and parkways is a well-recognized activity in our modern life in every city. It is not contended that these stands are nuisances. In fact, plaintiff pleads the ordinance which authorizes the commissioners of public works to issue permits for their maintenance. Nor can I perceive that the stands are dangerous to children. Certainly, a newspaper stand is not inherently dangerous. The party who operated this stand could not be expected to anticipate that children would attempt to swing from it. Presumably, the stand is considered attractive because a child is able to swing from it. On the same reasoning, anything that a child can swing from would be attractive, and the operator of an automobile who parked his car for 10 minutes while doing some shopping would be liable if a child fell and was injured while swinging from his car. The owner of property is not required to protect children from every possible harm. It is my view that the majority opinion unduly extends the attractive nuisance doctrine. I am of the opinion that the judgment should be reversed and that a judgment should be entered here for the defendant and against the plaintiff.