author: Mr. Justice Denis E. Sullivan Hall, J.,

text:
    Robert Strappelli, Minor, by Ernest Strappelli, His Father and Next Friend, Appellee, v. City of Chicago et al. Appeal of City of Chicago, Appellant.
    Gen. No. 39,873.

      Hall, J., dissenting.
    Opinion filed May 11, 1938.
    Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Resa and Lionel J. Berc, Assistant Corporation Counsel, of counsel.
    Barasa, Rinella & Barasa, of Chicago, for appellee; Joseph Barbera and Bernard Barasa, Jr., of Chicago, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Defendant, city of Chicago, brings this appeal from a judgment entered in the circuit court upon the verdict of a jury in favor of plaintiff for $5,000, for personal injuries alleged to have been sustained on January 8,1936, as a result of the alleged negligence of the defendant.

It is alleged that the accident occurred about 3:30 o’clock in the afternoon on the date aforesaid on Western avenue just north of Cornelia avenue in the city of Chicago where a safety island or concrete platform is located for the convenience of persons waiting for or boarding or leaving the street cars which operate on Western avenue.

It is further alleged that on the day of the accident plaintiff who at that time was a student at the Lane Technical High School, went to the safety island which is located directly in front of the main entrance of said school to wait for and board a southbound Western avenue street car, together with other students; that one street car and possibly two passed by without taking any passengers and that when the next car came the students moved toward its rear entrance; that because of defendant’s negligence in failing to keep the safety island free from ice and snow, and in allowing the same to remain in a dangerous condition, the plaintiff in attempting to board the street car slipped under it and the car moved a few feet after plaintiff was under it; that plaintiff sustained injuries which necessitated the amputation of the middle toes of his left foot.

No point is raised as to the pleadings.

• Plaintiff’s theory of the case is that the accident in question was caused by the negligence of the defendant in failing to keep the safety island free from ice and snow and allowing the same to remain in a dangerous, icy and slippery condition and allowing dangerous hillocks and ridges of ice and snow to form and remain on said safety island, which amounted to an obstruction to travel.

Defendant’s theory of the case is that the condition of the island was the result of common and usual conditions caused by winter weather in Chicago, there having been considerable snowfall and the snow having been trampled by pedestrians and thereafter frozen; that the condition of the safety island and the obligation to remedy it is not shown to have existed for more than 48 hours prior to plaintiff’s accident and that therefore the city was not chargeable either with notice of the existence of the condition or with a liability for not having remedied it; that plaintiff, a young man over the age of 14 years was therefore under an obligation to exercise the same degree of care and prudence for his own safety as might be expected of an adult person under the same circumstances; that plaintiff was guilty of such negligence as would bar recovery.

There does not seem to be any dispute as to the facts. No error is assigned as to instructions given or refused.

Defendant agrees there is no issue on this appeal so far as the accident, the injuries, or the amount of recovery are concerned. There is some conflict in the evidence, however, as to whether the safety island was covered with ice and snow and how rough it was. The evidence appears to show that the rough condition of the island had existed for a period of 48 hours prior to the accident.

On January 6th, two days before the accident, there was a considerable fall of snow in Chicago. On January 5th at 7 p. m., according to the weather report, snow ivas on the ground in Chicago to a depth of 0.8 of an inch and on January 6th at the same time the depth was 4.0 inches and that on January 8th, the date of the accident, the depth had increased to 4.1 inches.

As to the condition of the island, the plaintiff testified that it was covered Avith ice and snow and that it was very lumpy, full of ridges; that on the eastern edge of the safety island there Avas a slope of solid ice from the top of the island right doAvn to the west rail of "the southbound Western avenue street car tracks, it extended all the way along* the eastern edge of the safety island; that the whole island was covered with ice and snow which ranged anywhere from one to four inches; that the lumps were four inches high in some places and they sloped down to one inch in between; that he slipped on these large bumps of ice that covered the entire safety island. From 25 to 40 passengers were on the safety island awaiting* to board said street car.

Six other witnesses produced by plaintiff testified in substance in corroboration of plaintiff’s statements. At the end of plaintiff’s evidence one of the defendants at the trial, Chicago Surface Lines, made a motion to instruct the jury to return a verdict of not guilty as to it which was granted leaving city of Chicago the sole defendant, and we believe the preponderance of the evidence shows as plaintiff maintains. We further believe the evidence sustains plaintiff’s contention as to the condition of the safety island.

It is contended by the City and many cases are cited in support of the proposition that a municipality is not liable for damages sustained by the slippery, or icy condition of the streets caused by a fall of snow. Some of the cases held that the slippery condition being the result of natural causes, the City should not be held liable and that it would be financially impossible for the City to have sufficient funds on hand to pay the expense of having such snow removed and, for that reason, the municipalities Were not liable. In this case, however, a somewhat different situation is presented. The so-called safety island was installed by the City near the middle of the street. It was 80 feet long*, 4 inches high and 4 feet wide. It was intended to be used and was used as the only means of access to the street car which plaintiff intended to board. When the street car stopped the entrance thereto was opposite this island and it was the only means of ingress and egress to and from said street car and other cars. The passengers boarding the street car were compelled to stand upon the safety island. Said safety island was opposite- a large public manual training school. In addition to the usual traffic, this island was used by several thousand students of said high school as a means of boarding or getting off the street cars. The parties using it were not only invited to use this sole means of access to the street cars, but were compelled to use it in order to enter said cars.

The duty of the City to use reasonable care in maintaining public streets and sidewalks in a safe condition should be and is commensurate with the danger involved, and the care of which the law speaks should be sufficient to protect and prevent injury to the citizen when the latter is in the exercise of due care for his own safety. Ordinary care must necessarily be such care as relates to the facts and circumstances which exist at the time of its required use. The purpose of compelling by rule of law the observance of such ordinary care by the City in the control and use of its various public places, such as streets, sidewalks, alleys, etc., is for the protection of its citizens from danger and this duty on the part of the City is a continuing one. When the evidence shows nonobservance of this duty in relation to a citizen who is in the exercise of ordinary care for his or her own safety, then the liability becomes fixed as to said municipality. Of course, just what facts and circumstances are required to fix the liability of the City and just what facts and circumstances would free them from liability as to the citizen injured or damaged, and whether the acts of such citizen may have been a contributing* cause of the accident, are usually left for the jury to determine.

In Mareck v. City of Chicago, 89 Ill. App. 358, the court said: “It is true, as argued, that mere slipperiness of a sidewalk, occasioned by ice or snow, not being accumulated so as to constitute an obstruction, is not such a defect as will make the city liable for damages occasioned thereby. . . .

“But it is also true that an obstruction in a sidewalk caused by an accumulation of snow or ice in uneven ridges or hillocks, so as to render passage dangerous, if negligently permitted to remain, may render a city liable for injury thereby caused.”

In the case of Eppley v. City of Chicago, 221 Ill. App. 111, the court said:

“We think the controlling principle is well stated in Mareck v. City of Chicago, 89 Ill. App. 358, as follows:
“ ‘It is true, as argued, that mere slipperiness of a sidewalk, occasioned by ice or snow, not being accumulated so as to constitute an obstruction, is not such a defect as will make the city liable for damages occasioned thereby. City of Chicago v. McGiven, 78 Ill. 347; City of Quincy v. Barker, 81 Ill. 300; 2 Dillon on Municipal Corp. (4th Ed.), sec. 1006.
“ ‘But it is also true that an obstruction in a sidewalk caused by an accumulation of snow or ice in uneven ridges or hillocks, so as to render passage dangerous if negligently permitted to remain, may render a city liable for injury thereby caused. City of Chicago v. McGiven, 78 Ill. 347; City of Quincy v. Barker, 81 Ill. 300; Village of Gibson v. Johnson, 4 Ill. App. 288; City of Macomb v. Smithers, 6 Ill. 300; Village of Macomb v. Smithers, 6 Ill. App. 470; City of Aurora v. Parks, 21 Ill. App. 459; Luther v. City of Worcester, 97 Mass. 268; Morse v. City of Boston, 109 Mass. 446; Cook v. City of Milwaukee, 24 Wis. 270; Paulson v. Town of Pelican, 79 Wis. 445; Thompson v. Village of Saratoga Springs, 47 N. Y. Supp. 1033; McLaughlin v. Corry, 77 Pa. St. 109; Wyman v. City of Philadelphia, 175 Pa. St. 117.
“ ‘The general rule is concisely stated by the Pennsylvania court:
“ ‘ “A municipality cannot prevent the general slipperiness of its streets, caused by snow and ice during the winter, but it can prevent such accumulation thereof in the shape of ridges and hills, as render their passage dangerous.”
“ ‘In some of the decisions cited the test seems to be as to whether the condition is the result of natural causes, depositing the snow and causing the ice, or the result of artificial causes in changing the natural deposit into ridges and hillocks, or the result of structural defects in the walls: upon which the deposit of snow or ice is lodged. In other cases, it would seem that the criterion adopted is as to whether the uneven accumulation of snow or ice amounts to an obstruction to travel, without any very definite rule by which to determine what is or is not an obstruction — a question of fact necessarily within the province of a jury. But all authorities agree that while mere slipperiness, caused by snow and ice, will not of itself impose liability, yet uneven ridges or hillocks of snow or ice, when they amount to an obstruction to travel, and are negligently permitted to remain, may impose liability.’ ”

There have been many other decisions handed down by the courts as to the liability of municipalities relative to icy and slippery conditions on public streets. In the case of Graham v. City of Chicago, 346 Ill. 638, the court in passing upon whether or not the city was liable under certain circumstances, after citing numerous cases on page 641, said: “However, there is one rule which is almost universal. That is, a city is not liable for injuries resulting from the general slipperiness of its streets and sidewalks due to the presence of ice and snow which have accumulated as a result of natural causes.

" . . .

“The Appellate Courts of this State do not agree as to when a municipality is liable, and the Supreme Court cases cited by counsel are not in point. In City of Quincy v. Barker, 81 Ill. 300, plaintiff received injuries through slipping upon a ridge of ice in the center of a sidewalk. He recovered a judgment in the trial court, but the judgment was reversed, not on the ground that a city is never liable for damages occasioned by slippery ice upon sidewalks, but because it appeared the ice was in the center of the walk and there was ample space left on either side for plaintiff to have passed in the exercise of reasonable care. The court said: ‘It will be remembered that this accident did not occur in the night time, when the plaintiff could not see the condition of the walk, but in broad daylight. ’

“The following language appears in City of Chicago v. McGiven, 78 Ill. 347: ‘The mere slipperiness of a sidewalk occasioned by ice or snow, not being accumulated so as to constitute an obstruction, is not such a defect as will make the city liable for damages occasioned thereby. ’ The supporting* cases cited are from other jurisdictions and simply announce the general rule above stated. It may be said that the language thus employed was not at all necessary to a decision of the case, inasmuch as the declaration was not predicated upon any averment relative to ice.” Continuing the court said:

“The decisions in the various jurisdictions upon this question of liability are so varied and numerous that it would be impracticable for us to attempt to analyze them or to harmonize them, but we have réached the conclusion that the reason which underlies the rule exempting* cities from liability because of damages from slippery ice is that of necessity. It is grounded on the fact that it is unreasonable to compel a city to expend the money and perform the labor necessary to keep its walks reasonably free from ice and snow during winter months. Especially is it true in this latitude. But the rule must be predicated on the formation of ice from natural causes, for it would be neither unreasonable, impracticable nor expensive, as a general proposition, to compel the removal of ice from sidewalks which was produced by artificial causes. It is the generality of a situation resulting from natural causes that gives rise to the rule. Without that generality there would be no reason for the rule. There is no more cause for excusing a city from liability where damages have accrued from ice which has formed on a walk in an unnatural way, than there is to excuse it from damages when a walk has been permitted to become defective from any other cause.”

The rule of law which ordinarily would be applicable to streets and sidewalks would not apply in this case for the reason as above stated it lacks “the generality of a situation resulting from natural causes.” Ordinarily a citizen would have the opportunity of picking* out certain streets or certain sidewalks or certain parts thereof upon which to ride or walk, and such citizen would be required to use ordinary care in making such selection and in the use of such streets and sidewalks, but that is not the situation here.

The instant case pertains to the condition of a concrete platform or safety island which had been constructed by the city and was raised several inches from the street level to insure the safety of the persons standing thereon and was the sole means of boarding or alighting from street cars. This platform was used by the students attending the high school heretofore mentioned when using* the Western avenue street car. To permit said so-called safety platform to remain covered with ice and snow, in an irregular formation of lumps and ridges, for such length of time, ranging from 48 hours to 14 days was negligence. The evidence further shows that this condition was caused by the snow having been permitted to remain there and in the process of thawing and freezing, the lumps, hillocks and ridges were formed and remained on said safety island.

Referring again to the case of Graham v. City of Chicago, 346 Ill. 638, in speaking of the nonliability of the city and under what conditions it may be excused, the court said: “ . . .it would be neither unreasonable, impracticable nor expensive, as a general proposition, to compel the removal of ice from the sidewalks which was produced by artificial causes. It is the generality of a situation resulting from natural causes that gives rise to the rule. Without that generality there would be no reason for the rule. There is no more cause for excusing a city from liability where damages have accrued from ice which has formed on a walk in an unnatural way, than there is to excuse it from damages when a walk has been permitted to become defective from any other cause.”

There is no “generality of the situation” in this case. No bankruptcy of the city need be feared because of a special and isolated case of limited area such as this one. No proof was offered as to the number of “islands” in the city but they are comparatively few.

It is further contended by defendant, city of Chicago, that plaintiff was guilty of contributory negligence. Just what acts are relied upon as being the contributing cause is not apparent. Plaintiff used the safety island provided by the City and he had neither choice, option nor opportunity to do other than he did if he desired to use the street cars running on said street, and plaintiff had to use the island in the condition in which he found it, said condition having been caused by the negligence of the City in permitting the ice, hillocks and bumps to remain on said island.

We do not think the evidence shows any contributory negligence on plaintiff’s part and we believe there was no prejudicial error committed in the trial and the jury was fully justified in finding the defendant guilty.

For the reasons herein given the judgment of the circuit court is hereby affirmed.

Judgment affirmed.

Hebel, P. J., concurs.

Hall, J.,

dissenting: I cannot agree with the majority opinion and conclusion in this case. It is a matter of public knowledge of which this and other local courts must take judicial notice, that Western avenue, the street upon which the accident happened, is a recently widened street, that the widening was done for the purpose of facilitating the movement of automobile traffic, and that the so-called safety islands erected at intersections along’ the street, adjacent to street car tracks, were placed there for the purpose of protecting persons who propose to become passengers on street cars, or to alight therefrom, from the danger of automobile traffic, and for no other purpose. It is also a matter of public knowledge that there are a great many similar streets in the city of Chicago with similar raised platforms at intersections along’ the entire length of such streets, and that in every case these platforms are but a few inches above the level of the streets. The writer of the majority opinion seems to stress the fact that the platform in question is adjacent to a school where a great many students attend, and that an additional duty was therefore, imposed upon the City. This and other local courts must also take judicial notice of the fact that there are thousands of places in the city of Chicago where school children and employees of industrial plants and mercantile institutions, in great numbers, board and alight from street cars at street intersections. If the duty imposed by the majority opinion is to be observed by the city of Chicago, then it follows that under situations and conditions similar to those shown to have existed here, it will become the duty of the city of Chicago at each of these intersections to keep the point at which passengers board or alight from street cars, free from snow and ice, whether the place of alig-hting from or boarding street cars is raised or not. In my opinion, this is imposing a duty upon the city of Chicago, by judicial fiat, which, under its present or future financial condition, it cannot perform.


source: Caselaw Access Project

author: Mr. Justice Denis E. Sullivan

license: Public Domain

text:
    Clark Street Building Corporation, Appellant, v. Bohumir Kryl, Appellee. E. A. Pierce and Company and L. J. Powers, Appellees.
    Gen. No. 39,889.
    Opinion filed May 11, 1938.
    Rehearing denied May 26, 1938.
    Maxfield Weisbrod, of Chicago, for appellant.
    Levinson, Becker, Peebles & Swiren, of Chicago, for appellee E. A. Pierce & Co.; Don M. Peebles and Eugene P. Florsheim, of Chicago, of counsel.
    L. J. Powers, pro se.

   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from an order entered October 1, 1937, dismissing á garnishment proceeding brought by plaintiff, Clark Street Building Corporation against E. A. Pierce & Company, a copartnership, garnishee defendant, on the motion of L. J. Powers, trustee and intervener in the suit.

It appears from the abstract that on March 28, 1930, a judgment was entered in favor of plaintiff and against Bohumir Kryl, defendant appellee, in the sum of $1,395 and costs; that on April 3, 1930, an execution was issued thereon upon which nothing was realized and again on March 21, 1936, an execution was issued for said sum and on the same day the bailiff of the municipal court returned the execution, reciting that the defendants were not found and no property was found, and returned said writ no.property found and no part satisfied.

It further appears that thereafter on March 21,1936, the affidavit of garnishment summons was issued, directed to E. A. Pierce & Company, as garnishee defendant, returnable March 30, 1936.

The verified answer of the garnishee filed April 9, 1936, states that prior to the service of garnishment summons, a judgment was entered in the superior court of Cook county, Illinois, in favor of Bohumir Kryl and against E. A. Pierce & Company, in the sum of $37,431.90.

Said answer further recites that the said garnishee, E. A. Pierce & Company, on March 26, 1936, filed their notice of appeal from said judgment and served a copy thereof on the attorneys for Bohumir Kryl; that on April 6, 1936, the garnishee filed an amended notice of appeal and served a copy thereof on the attorneys for Bohumir Kryl; that on April 18, 1936, the garnishee filed in the superior court of Cook county their appeal bond in the sum of $45,000 which was approved and that an order was entered that said notice of appeal, amended notice of appeal and appeal bond, was to act as a supersedeas of said judgment.

The answer further recites that no part of the amount of said judgment consists of wages or salary for services of an employee who is the head of a family and residing with same; that other than above described, garnishee did not at the date of service of said garnishment summons have in their possession, charge and control any money, choses in action, credits or effects of said Bohumir Kryl; that on June 16, 1937, notice was filed by plaintiff that a motion would be made by plaintiff for a rule upon the garnishee to file an additional amended answer either admitting or denying that they had funds in their possession belonging to Bohumir Kryl, and in default thereof that a judgment be rendered against said garnishee for the sum of $1,395 and $14 as costs, together with interest on said sum of $1,395, making a total sum of $1,912.48.

It further appears that on June 18, 1937, the garnishee E. A. Pierce & Company filed a supplemental answer reciting that the Appellate Court of Illinois for the First District affirmed the judgment described in the answer of the garnishee; that the petition for leave to appeal to the Supreme Court of Illinois was denied on June 14, 1937, and as a result of said denial to appeal, it was adjudged that these defendants were on the date the garnishment summons was served herein, indebted to Bohumir Kryl, the defendant herein, in the sum of $37,431.90, plus interest and plus costs of suit.

The supplemental answer further recites that on June 14, 1937, there was served upon the garnishee defendant by one L. J. Powers, a notice setting forth that on March 16, 1936, an assignment was executed and delivered by Bohumir Kryl to L. J. Powers, as trustee, by which assignment Bohumir Kryl assigned to said L. J. Powers, as trustee, his entire right, title and interest in and to the cause of action, verdict and judgment entered in the superior court of Cook county, Illinois, on March 11, 1936, and prays that if said assignment is valid and binding, then said garnishee should be dismissed.

On June 25, 1937, the intervening petition of L. J. Powers, as trustee, was filed, wherein it represented that on March 16,1936, prior to the service of garnishment summons, the said Bohumir Kryl, defendant appellee, assigned, transferred and set over to said petitioner, as trustee, and they were not at the time of the service of the garnishment summons and are not now, the property of said Bohumir Kryl, nor did said defendant Bohumir Kryl, have at the time of the service of the garnishment summons herein, nor has he now, any interest in and to said cause of action, verdict and judgment entered therein on March 20, 1936, in favor of Bohumir Kryl and against E. A. Pierce & Company.

The assignment provided that Bohumir Kryl, defendant, employed attorneys to prosecute the said cause of action against the said E. A. Pierce & Company and agreed to pay said firm for their services in that behalf 35 per cent of any sum that might be recovered from said E. A. Pierce & Company, and to Jesse A. Rothschild et al., doing business as Rothschild & Company the sum of $8,089.07, plus costs, more or less, represented by a judgment recovered in the superior court of Cook county in favor of said Rothschild & Company against Bohumir Kryl; also to Frank Kryl $9,500 more or less plus interest evidenced by promissory notes evidencing* loans, and to Dr. B. Placek in the aggregate sum of $35,000, plus interest evidenced by promissory notes held by said Dr. Placek evidencing loans.

Said assignment further granted power to L. J. Powers to distribute the amounts among the parties and also that Powers was to receive reasonable compensation for his services, to be paid to him out of the funds of the trust before any other disbursements were made.

The verified answer of Clark Street Building* Corporation filed July 1, 1937, to the intervening* petition, denies that Bohumir Kryl executed the certain instrument on March 16, 1936, but that if such instrument was executed, it was done on a date subsequent to the date of the service of garnishment summons, and that any rights the trustee L. J. Powers may have had were subsequent to the rights of the Clark Street Building-Corporation.

Said answer further denies the right of the trustee to possession of the property and the proceeds thereof; denies the assignment of the cause of action, verdict and judgment in said proceedings in the superior court of Cook county, Illinois, was a bona fide assignment; denies that on March 16, 1936, or at any other time, the said Bohumir Kryl was indebted to one Frank Kryl in the sum of $8,500, or in any substantial sum as alleged in said assignment; denies that at that time or subsequent thereto there was any bona fide indebtedness to Dr. B. Placek in the sum of $35,000 or in any substantial sum as alleged in the property assignment.

Said answer further denies Jesse A. Rothschild et al., doing business as Rothschild & Company, Frank Kryl, or Dr. B. Placek ever assented to or agreed to or accepted the alleged purported assignment in manner and form as set forth in the intervening- petition.

Said answer avers that said purported assignment is fraudulent and void; that said assignment was made for the uses and benefits of Bohumir Kryl and that said assignment was a private and secret agreement made by and between said Bohumir Kryl and said intervening petitioner for the benefit of said Bohumir Kryl for the purposes of defeating the just claims of creditors of said Bohumir Kryl and was made without the notice, knowledge or assent of the alleged and supposed beneficiaries in said alleged and purported assignment set forth.

Said answer further avers that the said intervener was apprised on April 9, 1936, that garnishment proceedings were pending and that he made no attempt to assert any right, title or interest until more than one year after the day and date of service of garnishment summons and said Clark Street Building Corporation prays that an order be entered directing the garnishee defendant E. A. Pierce & Company to pay to this plaintiff the sum due it, including interest and costs, upon said judgment recovered against Bohumir Kryl.

Thereafter a motion supported by an affidavit was filed July 20, 1937, wherein Bohumir Kryl, by his attorneys, moved that the garnishment proceedings be dismissed and that the garnishee Edward A. Pierce et al., trading as E. A. Pierce & Company be discharged upon the grounds as stated in the affidavit of J. H. Oppenheim, as agent of Bohumir Kryl.

The affidavit set forth that J. H. Oppenheim was the duly authorized agent on behalf of Bohumir Kryl; that the Clark Street Building Corporation, plaintiff, had not filed its annual report since February 24, 1931, and has neglected and refused to pay the amount of franchise taxes and penalties assessed against it to date and that under the statute they are not entitled to maintain this suit.

The outcome of this rather long and involved controversy was that the trustee Powers, after being permitted to intervene in the suit, made a motion to dismiss the garnishment proceedings on grounds that arose and were decided prior to the trustee Powers being permitted to come into the suit. The petition which he filed in this matter was answered by the plaintiff and on October 1, 1937, the court on motion of Powers, the trustee, dismissed the entire proceedings without a hearing. In this the court was in error. One has but to read this record to be convinced that the transactions should have been diligently inquired into because they are, to say the least, unusual.

Here is a case where the plaintiff obtained a judgment for a bona fide debt. It garnisheed creditors of the judgment debtor who owed the judgment debtor some $37,000 and so admitted in their return to the court.

Chapter 62, pars. 11 and 12 and secs. 11 and 12, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 109.294, 109.295], provides as follows:

“11. • Adverse claimants.] § 11. If it appears that any goods, chattels, choses in action, credits or effects in the hands of a garnishee are claimed by any other person, by force of an assignment from the defendant, or otherwise, the court or justice of the peace shall permit such claimant to appear and maintain his right. If he does not voluntarily appear, notice for that purpose shall be issued and served on him in such a manner as the court of justice shall direct.
“12. Adverse claims — Trial.] §12. If such claimant appears, he may be admitted as a party to the suit, so far as respects his title to the property in question, and may upon ten days’ notice of the claim of such claimant to such property, stating the amount and character thereof, being served upon the garnishee, allege and prove any facts showing the right of such claimant to the possession of such property and such allegations shall be tried and determined in the manner hereinbefore provided. ...”

No question is raised but that this debt is owing to the plaintiff and that it is entitled to the same. We think the court should have heard the charges which were alleged as to the subsequent activities of the various parties which would prevent the plaintiff from recovering its claim and the court should not have dismissed this suit without having conducted a trial.

For the reasons herein given the order of the municipal court dismissing said garnishment suit is hereby reversed and the cause is remanded for a trial.

Judgment reversed and cause remanded,

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


author: Mr. Presiding Justice O’Connor

text:
    Ethel H. Van Housen Haw, v. Frances M. Haw et al. Homer S. Warren and Charlotte Van Housen Warren, Individually and as Administrators of Estate of Beach T. Van Housen, Deceased, Appellees.
    Gen. No. 39,724.
    Opinion filed May 16, 1938.
    Petition for rehearing of Frances M. Haw and Walter R. McFarland as successor trustee was stricken for impertinence June 3, 1938 and the petition for rehearing of Robert J. Hilliard, guardian ad litem for James Haw and Eddie Haw, Jr., was denied June 3, 1938.
    Robert J. Hilliard, of Chicago, for appellant James Haw and Eddie Haw, Jr.
    L. T. Arthur, of Chicago, for appellant Frances H. Haw.
    Concannon, Dillon, Bostelman & Snook, of Chicago, for appellants Ethel H. Van Honsen Haw and Walter R. McFarland.
    Thomas Marshall, of Chicago, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Ethel PI. Van Housen Haw, on August 8, 1932, filed her bill in chancery against her husband, A. E. Haw, her daughter, Frances M. Haw, James Haw and Eddie Haw, Jr. (her sons), Homer S. Warren and Charlotte Van Housen Warren, individually and as administrators of the estate of Beach T. Van Housen, deceased, the Chicago Title & Trust Co., as successor in trust named in a trust indenture dated February 26, 1912, between Ethel Van Housen Haw and Beach T. Van Housen; the bill prayed that a successor trustee be appointed in lieu of Beach T. Van Housen, deceased, and the Chicago Title & Trust Co. named as successor trustee, and that Homer S. Warren and Charlotte Van Housen Warren, as administrators of the estate of Beach T. Van Housen, deceased, be required to render an account of the trust estate. All parties answered except the Chicago Title & Trust Co., which declined to act, and it was defaulted. No objection was made to the prayer for relief and a decree was entered appointing Walter E. McFarland as successor trustee and ordering the defendants Warren to file an account. Afterward the account was filed, to which all the parties filed objections, and after a hearing* a decree was entered that the Warrens, as administrators of the estate of Beach T. Van Housen, deceased, pay to McFarland, as successor, trustee, $3,901.36, in due course of administration of the estate as a claim of the 5th class. Twenty-five days after, January 29, 1937, the court, on complainants’ motion, amended the decree, substituting various figures in lieu of those in the decree. One of the substitutions was that the Warrens, as administrators, were held liable for $4,491.72, to be paid in due course of the administration of the estate as a claim of the 5th class.

April 28, 1937, defendants Frances M. Haw, James Haw and Eddie Haw, Jr., filed their notice of appeal. On the same day the complainant, Ethel Van Housen Haw, filed her notice, designated a cross appeal, and on the same day McFarland, as successor trustee, filed his notice, designated as a cross appeal.

The record discloses that on February 26, 1912, complainant, Ethel Van Housen Haw of Seattle, Washington, entered into an agreement with Beach T. Van Housen of Chicago. Whether these parties were related is not disclosed. The agreement recited that Mrs. Haw had received in excess of $20,000' cash, personal property and certain real estate located in Chicago, from the estate of John H. Van Housen, deceased (describing the real estate); that Beach T. Van Housen had received $20,000 in cash and personal property from the estate of Frances M. Van Housen, deceased; that the property mentioned as belonging to Mrs. Haw was the only property she possessed; that the personal property was evidenced by a note for $15,000 executed by Fuller and wife, secured by a trust deed on property in Cook county; that at that time plaintiff had one child, viz., the defendant Frances; that Mrs. Haw was desirous of placing all her property in trust for the benefit of her child and any other child or children that might be born to her; thereupon, by agreement, her property was conveyed to Beach T. Van Housen in trust, to collect the rents, issues, profits, etc., and after expenses were deducted for the repair of buildings, etc., he was to pay the residue to Mrs. Haw on the first of each month during her natural life. The trustee was given authority to keep the buildings in repair, etc., borrow money for replacing the buildings, and execute a mortgage on the property; that the trustee might vary, alter, or change the investment at any time or sell and convey any or all of the property as in his judgment he might deem best; re-invest the proceeds, etc. Upon the death of Mrs. Haw the trust was to be determined and the property turned over to Mrs. Haw’s children and divided equally. The Title & Trust Co. was appointed successor trustee, but in case it refused to act a successor might be appointed by a proper court of Cook county. At the time of the execution of the trust indenture Mrs. Haw lived with her husband and child in Seattle, Washington, and some time thereafter two other children were born to Mr. and Mrs. Haw. The eldest daughter, Frances, was married prior to the trial. The other two children were minors at the time of the beginning* of the suit, and a guardian ad litem was appointed for them.

Upon the execution of the agreement Beach T. Van Housen entered upon the discharge of his duties, collected the $15,000 note, managed the property, which was on Roosevelt road, Chicago, until he died intestate about August 1, 1931; that defendants Homer S. Warren and his wife Charlotte Warren were appointed administrators of his estate by the probate court of Cook county.

September 13, 1919, the trustee, Beach T. Van Housen purchased a house and lot in Seattle, Washington, for $5,750, as a home for complainant in which she and her family lived from that time until the time of the trial. After the decree was entered in the instant case, appointing the successor trustee, the Warrens conveyed the house in Seattle and the building on Roosevelt road to the successor trustee. Beach T. Van Housen, throughout the period that he acted as trustee, made remittances to Mrs. Haw aggregating several thousands of dollars more than he had received from the trust estate. The account submitted by the Warrens showed that the trustee, Van Housen, during the period he acted as such, from 1912 to 1931, charged himself with 5% per cent on any property he held belonging to Mrs. Haw from November, 1913, to December, 1924, and for the balance of the time at the rate of 6 per cent per annum, and it seems to be conceded that after allowing such interest he remitted to Mrs. Haw and expended more than $8,800 in excess of what he had received from the trust estate — this too, without making1 any charge whatever for his services.

Counsel for Mrs. Haw and the other appealing parties say in their brief that the court finds by the decree “that the Trustee paid more money to the complainant than the net income of the trust; that such excess payments were made without authority and contrary to law and the Trustee was not entitled to a credit in his accounting for such excess payments and was not entitled to recover them from the complainant, but that the Trustee was entitled to a credit in the amount of $5,325.55 for the rental value of the Seattle property”; that the question of the rental value of the Seattle property was in no wise raised by the pleading or by counsel on the hearing, but was raised by the court. On this appeal the only question raised by the appealing parties, who will hereafter be referred to as the Haws, is the allowance of this item. On the other side, counsel for the Warrens say that since the undisputed evidence shows that the trustee, Van Housen, overpaid Ethel Haw “to the amount of $7,313.07 and more to keep Ethel Haw and her family in food and clothing, ’ ’ which payments were made on account of letters and telegrams from Mrs. Haw to the trustee imploring and demanding money, the estate of the deceased trustee ought not now be called upon by Mrs. Haw or her children to again pay the money, “upon the theory the trustee had no legal right to pay to her this money to keep her and her family alive and that it was not ‘income’ paid to her.”

The record, discloses that from February, 1916, until the trustee died in 1931, Mrs. Haw was continually demanding money from him. Numerous telegrams are in the record, practically every one of which was sent “collect,” demanding money to support her family, including her husband who was sometimes ill and out of work. From some of the telegrams we quote: February 29, 1916, — “Wire twenty-five today must have same. Ethel.” July 3, 1917, — “Ed [her husband] used more money must have twenty-five to save lawsuit wire it without fail.” December 12, 1918,— “Wire thirty today must have it am sick with flu.” January 27,1927, — “Wire me twenty-five Friday check not received yet Ed been out of work since January . . . must get coal to-day without fail ...” March 24, 1927, — “Wire twenty-five today birthday tomorrow check not received yet don’t deduct until next month.” April 14, 1927, — “Ed not working since January without funds wire thirty today don’t deduct April check.” May 3, 1927,— “Please wire money requested yesterday absolutely necessary by noon today.” June 14, 1927, — “Wire thirty-five today baby much better expenses terrific.” June 23, 1927,-— “Wire forty today baby developed pneumonia Ed not paid until first writing fully today.” July 22, 1927,— “Wire thirty-five today writing long letter feeling better baby well.” August 23, 1927, — “Wire forty today check not received this month ordered from home to save nervous breakdown.” November 29, 1927,— “Wire thirty-five today don’t deduct December check Helen improving.” May 10, 1928, — “Wire balance May income today baby had setback improving again. ’ ’ May 24, 1928, — “Baby much worse need immediate funds wire forty today.” June 26, 1928, — “Must have hundred dollars before four today save garnishee and Ed’s position wire immediately.” August 28, 1928,— “Wire twenty-five today must have to prepare children for school.” October 15,1928, — “Wire fifteen today Frances birthday tomorrow wrote fifteen page letter yesterday.” November 13, 1928, — “Wire twenty-five today have been very ill mother writing.” March 7, 1929, — “Wire fifteen today do not deduct March check more than twenty-five. ’ ’ August 30,1929, —“Check not received must have money to start children to school send twenty-five today without fail.” October 10, 1929, — “Frances to be married wire twenty-five today without fail will write particulars.” This last wire was replied to the same day by the trustee’s assistant as follows: “No money as I wrote you Beach [meaning Trustee] will return Monday will remit then.” On the same day, “Still insist twenty-five be wired today absolutely necessary wire don’t fail.” October 15,1929, — “Wire twenty-five today absolutely necessary Frances married Saturday writing particulars.” December 19, 1929, — “Insist upon twenty-five being wired today check not received must have it.” Many other telegrams are in the record to which we have not referred. May 21, 1930, Beach’s employee in Chicago wrote Mrs. Haw in Seattle, advising her he had received her telegram and had wired $25, — “I have written you on several occasions explaining to you the rental conditions and also the sad condition of Mr. Van Housen but in some way this does not seem to have any effect on you whatever and you are forcing me to send money to you out of my own funds. Under the existing conditions I think your action is anything but gracious, and in the future I trust you will not send in any more telegrams for money as I will send you money just as soon as I can collect it and find Mr. Van Housen in a condition to sign checks.” But this letter seemed to have no effect on Mrs. Haw; she continued her telegrams demanding money and on June 16, 1930, the trustee’s representative again wrote Mrs. Haw that he was surprised to receive her wire requesting money, saying, “as I have said to you before about Mr. Van Housen and also the rental conditions being so bad. The fact of the matter is I have not collected any rents I am sending you.” And he asked her to stop sending telegrams; but Mrs. Haw continued to wire for money. August 29, 1930, — “Wire twenty-five today must buy children’s school clothes don’t fail.” September 15, 1930, —“Wire twenty-five before noon today absolutely necessary Ed not working.” December 12, 1930, — “Wire twenty-five today must start Christmas shopping am without money.” January 16, 1931, — “Wire twenty today balance due dress for installation tonight don’t fail.” June 16, 1931, — “Am without light and phone must wire money today without fail.”

Counsel for the Haws say in their brief that the court erred in charging them with the rental value of the Seattle property from the time it was purchased by the trustee and occupied by them, but we think it would serve no useful purpose to discuss this question. Counsel for the Warrens say that “they are entitled to credit for the entire overpayment. The court did allow $5,325.55 but called it rental value. The credit should have been allowed for the entire overpayment of $7,313.07.

“In addition the lower court required appellees to deliver and pay under order of December 18, 1933, the sum of $1,501.79, making a total overpayment of $8,814.86.” Counsel say that the overpayment was for the support and maintenance of Mrs. Haw and her entire family, and the telegrams, some of which we have quoted, demonstrate this to be the fact; there is no contention to the contrary. And counsel for the Warrens continuing say: “Itis contrary to equity and good conscience for her to demand and receive money from the trustee,” and now contend that because the money was not from income the trustee should receive no credit; that “She obtained the money for the support of herself and her family and she is estopped by her own conduct and cannot demand a repayment of the money.” We think this contention must be sustained. The claim of Mrs. Haw now made shocks the conscience of the court, and, as said in Woodbridge v. Boches, 170 N. T. 599-600, where a similar question was involved, “Doubtless, the general rule in equity would require a trustee to account to his cestui que trust in a proper case, would require of him, in laying down his trust, ... to render an account of his management. . . . The application of the rule, however, is complicated with such extraordinary facts, in the present case, as to make its enforcement questionable. The proceeding is in a court of equity and whether it will exercise its equitable jurisdiction, and grant the relief prayed for, will depend upon the facts, as well as upon the application of legal principles. . . .

“As to the plaintiff, there are several considerations which render her situation, as a complainant in the action, one which neither appeals to the conscience of a court of equity, nor inclines it to strain any rule of law in her favor.” (p. 602): “the court will look through the form of the proceeding, at the substance of the matter. It will consider whether the facts disclosed are such as to justify her, in any aspect, in appealing to the exercise of its equitable powers. . . . She is, herself, liable to the trust for the trust properties which she has received and used. . . . Directly, or indirectly, she received the whole of it, . . . ” (p. 603): “The plaintiff’s demand is repugnant to equity.” See also Ear sell v. Townsend, 123 N. Y. S. 787; Copeland v. Bruning, 44 Ind. App. 405, which quotes from Woodbridge v. Boches, 170 N. Y. 596; Equitable Trust Co. v. Miller, 185 N. Y. S. 661; Cole v. Eawley, 95 Conn. 587.

But counsel for the Haws say that minor defendants could not be bound by the action of their mother in spending more than the income of her property; that the duty to support minor children is on the father and not on the mother. In the instant case, however, the uncontradicted evidence shows that the father was ill and out of work a great part of the time and that the money sent by the trustee to Mrs. Haw was used to buy coal and clothing for the children so they could go to school — necessaries. In these circumstances a court of conscience, as stated by the court of appeals in New York in the Woodbridge case, will examine the extraordinary facts to determine whether it will enforce the rule requiring a trustee to account where it would make the “enforcement” of the rule “questionable.” But counsel for the Haws also say that since the Warrens did not file notice of a cross-bill they are in no position to question any part of the decree. But we think that procedure is not applicable here because the question of the correctness of the entire account is before us on the appeal prosecuted by Mrs. Haw, the children and the successor in trust. The entire account must be considered.

For the reasons stated the decree of the superior court of Cook county is reversed and the cause is remanded with directions to enter a decree finding that the Warrens, as administrators of the estate of Beach T. Van Housen, deceased, are in no way liable. Sec. 92, ch. 110, Ill. Rev. Stat. 1937 [§ 216; Jones Ill. Stats. Ann. 104.092],

Reversed and remanded with directions.

McSurely and Matchett, JJ., concur.


author: Mr. Justice McSurely

text:
    William Landess, Administratrix of Estate of Earl William Landess, Deceased, Appellee, v. Roy Mahler, Appellant.
    Gen. No. 39,670.

      Opinion filed May 16, 1938.
    Beverly & Klaskin and John M. Beverly, both of Chicago, for appellant.
    Raymond F. Hayes and Richard G. Finn, both of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court

Earl William Landess, hereafter called plaintiff, came to his death as the result of an automobile accident; his administrator brought suit and upon trial had a verdict and judgment for $4,400. Defendant appeals.

Plaintiff, 19 years old, with a companion about the same age, Ralph Stewart, at about midnight July 20, 1935, was going south in an automobile on Cicero avenue in Chicago, plaintiff driving; on the intersection with Addison street plaintiff’s car collided with an automobile driven west on Addison by defendant; plaintiff was thrown from his ear and received injuries from which he died.

We are of the opinion that the finding of the jury that plaintiff was free from negligence contributing to the accident is manifestly against the weight of the evidence, and the judgment must be reversed and the cause remanded.

We base our opinion upon the conduct of plaintiff as he approached Addison street. There were stop and go light signals at the intersection. Plaintiff drove into Cicero from a side street about four or more blocks north of Addison. Stewart testified that when approximately three-quarters of a block north of Addison he noticed that the green light was on for Cicero traffic to proceed; that they were traveling 25 to 30 miles an hour; that when they were five or ten feet from Addison the signal flashed amber and then red; that plaintiff kept going — he did not reduce the speed or apply the brakes, but went into the intersection and the right front of defendant’s car struck the left rear of plaintiff’s car.

Two other witnesses called by plaintiff, pedestrians on Cicero, testified that plaintiff’s car was traveling at about 30 miles an hour and was about 10 feet from Addison when the lights changed from green to amber and red.

A number of witnesses for defendant testified that as plaintiff approached Addison his car was going from 45 to 60 miles an hour; that it did not reduce its speed; that the light for southbound traffic changed from green to amber and red when plaintiff’s car was about 100 feet north of Addison. All the witnesses agreed that as plaintiff’s car approached the intersection the green light changed while plaintiff was some distance north and that he proceeded into the intersection without reducing his speed.

There was evidence that as defendant’s car on Addison approached Cicero the light changed from red to green when it was about 100 feet east of Cicero and that it proceeded into the intersection with the green light; when defendant’s car was approximately 40 feet into the intersection it struck plaintiff’s car when it was 20 to 25 feet into the intersection.

In Rose v. Campitello, 114 Conn. 637, 641, where the statute concerning traffic signals is almost identical with ours, a general observation is made as to the duty of a driver approaching an intersecting street where there are stop and go lights, which meets with our approval. The opinion says: “So in approaching an intersection a driver must use reasonable care to guard against the possibility that a green traffic light may turn yellow and then red, thus putting an end to his right to proceed and giving that right to vehicles approaching upon the intersecting street. He has no right, as a matter of law, when he sees a green light ahead, to approach the intersection and, without reducing his speed, proceed through it in an attempt to ‘beat’ the light; but it is his duty to drive at such a speed and to have his car under such control as a reasonably prudent person would, in view of the possibility that the traffic light may change. If he is approaching at a moderate rate of speed, careful operation of his car might not require any abatement of speed. If at a higher rate failure to slacken his speed as he approached the intersection might be the clearest kind of negligence.” Loraine Transfer Co. v. Foster, — La. App. —, 144 So. 281, involved a collision between automobiles at a street intersection; plaintiff brought suit against the owner of the other vehicle and suffered defeat in the trial court; upon appeal the court found that the plaintiff, driving his car, saw the yellow light before he entered the intersection and that the entry of his car into the intersection “must have been on the yellow light, which it had no right to do.” The judgment against plaintiff was affirmed, the court saying, “There is a kind of feeling among motorists that one has a right to cross an intersection on a yellow or caution light that immediately follows a green light. It would seem that no one should enter an intersection on such a light,” but if there is such a right it should be exercised cautiously. In Harris v. Moran, 121 Pa. Super. Ct. 16, 182 A. 660, it is held that the “go” signal at a street intersection is qualified permission to proceed lawfully and carefully, and confers no authority on the motorist receiving the signal to proceed across the intersection regardless of other persons or vehicles already within the intersection. A number of other cases might be cited to the same effect.

When plaintiff’s car was on Cicero, some distance north of Addison, the green light was in his favor and no traffic was ahead of him; he knew or should have known about how long the light had been on and that it would probably turn from green to yellow and red before he reached Addison; that defendant’s car was nearing the intersection, and plaintiff in the exercise of due care should have controlled his car accordingly. The greater weight of the evidence tends to show that although the green light changed when plaintiff was about 100 feet north of the intersection, he proceeded at a high rate of speed, which one witness places at 60 miles an hour, and entered the intersection without reducing speed or applying brakes. Apparently he was attempting to “beat the .light” and, heedless of defendant’s car, ran across its pathway. If there was no contradictory evidence as to these points we would hold as a matter of law that plaintiff was guilty of contributory negligence, but in view of the evidence on behalf of plaintiff, that he was going at a slower rate of speed and was nearer to Addison when the light changed, we cannot so hold. We do hold that the manifest weight of the evidence proves that he was guilty of negligence.

It is notable that a large number of cases are in the courts arising out of automobile collisions at street intersections, especially where there are stop and go signals. Many motorists seem reluctant to allow another vehicle to proceed ahead across the intersection; they speed up in an attempt to cross first, with the inevitable resulting collision and frequent tragic consequences.

At plaintiff’s request the court instructed the jury-in the language of the statute regulating signal lights. Motor Vehicles Act, Ill. Rev. Stat. 1937, ch. 95%, U129, sec. 32 [Jones Ill. Stats. Ann. 85.161]. This provides, among other things, that vehicular traffic facing the yellow light shall stop before entering the nearest crosswalk at the intersection, “but if such stop cannot be made in safety, a vehicle may be driven cautiously through the intersection. ’ ’ This manifestly applies to a situation where there is traffic immediately following the first vehicle approaching the intersection or when it is so near that an abrupt stop could not be made in safety. It is not meant to encourage motorists to increase speed as they come closer to the intersection, but the driver must proceed cautiously. With reference to negligence, whether or not a driver violates this statute may not be of controlling importance, for under all circumstances he should drive with due care, having in mind the speed of his car and the speed and position of other traffic, the stop and go lights, the extent of the use of intersecting streets and all the surrounding circumstances and conditions. This statute has no application to the circumstances here presented. There was no traffic following plaintiff’s car. The greater weight of the evidence tends to show that he could have stopped in safety when the yellow light went on, and he did not proceed cautiously into the intersection.

Defendant complains of a question to the jurors on their voir dire as to their interest, if any, in the State Farm Mutual Automobile Insurance Company. A similar question has been held not to constitute reversible error in Smithers v. Henriquez, 287 Ill. App. 95, and by the Supreme Court in opinion filed April 15, 1938.

Other points are made by defendant in his brief which are not of sufficient importance to require comment. For the reason that the finding of the jury that plaintiff was not guilty of contributory negligence as he approached Addison street is manifestly contrary to the weight of the evidence, the judgment is reversed and the cause is remanded.

jReversed and remanded.

O’Connor, P. J., and Matchett, J., concur.


text:
    Leona Nelson, Appellant, v. Guy A. Richardson et al., Appellees.
    Gen. No. 40,008.

      Opinion filed May 16, 1938.
    Henry Mitgang, of Chicago, for appellant.
    Wetten, Pegler & Dale, of Chicago, for appellee M. E. Overlease.
   Mr. Justice McSurely

delivered the opinion of the court

This appeal by plaintiff presents the question whether the statute of limitations is tolled by the non-residence of a defendant who was not made a party defendant until after the statutory period of limitations had expired, although service of summons could have been made upon his representative at any time within this period.

It is alleged plaintiff was injured December 27, 1934, while a passeng’er on a street car operated in Chicago, Coolc county, Illinois, by the street car companies named; those defendants were duly served with summons.

August 5, 1937, or approximately two years and seven months after the cause of action accrued, by leave plaintiff filed an amended complaint in which she alleged she was injured in a collision between a street car in which she was riding and a truck owned and operated by M. E. Overlease (hereafter called defendant) a resident of the State of Indiana. Following the procedure prescribed in sec. 20a, Motor Vehicles Act, Ill. Rev. Stat. 1937, ch. 95½, ¶ 23 [Jones Ill. Stats. Ann. 85.023], defendant Overlease was served by filing a copy of the summons August 10, 1937, with the Secretary of State of Illinois.

Defendant moved the trial court that the cause be dismissed as to her for the reason that it was barred by the statute of limitations, which provides that actions for damages for an injury to the person shall be commenced within two years next after the cause of action accrued. Ch. 83, par. 15, sec. 14 [Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 107.274.] The court, being of the opinion that as the pleadings showed that Over-lease was made a defendant and a party to the action more than two years after the right of action accrued, plaintiff’s action was barred by the statute and ordered the cause dismissed as to her, and plaintiff appeals.

Plaintiff relies on section 18 of the Limitations Act [Ill. Rev. Stat. 1937, ch. 83, § 19; Jones Ill. Stats. Ann. 107.278], which provides that, “If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the times herein limited, after his coming into or return to the state ...” Plaintiff argues that as defendant was out of the State continuously from the time the cause of action accrued until the filing of the amended complaint, defendant is “out of the State” within the meaning of section 18, and that the statute is tolled during the period of nonresidence. Story v. Thompson, 36 Ill. App. 370, and Janeway v. Burton, 201 Ill. 78, are cited in support. These cases are not in point. They simply applied the provision of the statute touching the absence of a defendant from the State. The defendants in those cases had no agent or representative in this State upon whom service could be had, which is the decisive point in the instant ease,

Statutory provisions touching the right of a nonresident to the benefit of statutes of limitations, as affected by the fact that he was subject to service of process during nonresidence, have been the subject of conflicting opinions in other jurisdictions.

One of the leading cases cited in support of plaintiff’s position that the statute is tolled during the absence of the defendant from the State is Bode v. Flynn, 213 Wis. 509. The theory of that decision apparently is that the legislature in enacting the Motor Act did not in express terms make any exception to the tolling statute, and also that it is the duty of a debtor to seek his creditor to pay his debt at the .latter’s domicile, and as the nonresident tort-feasor violated that duty by staying out of the injured person’s domicile, he would not be allowed to take advantage of the statute under which service can be had upon a nonresident. Other cases to the same effect are Anthes v. Anthes, 21 Idaho 305, 121 Pac. 553; Roth v. Holman, 105 Kan. 175; Keith-O’Brien Co. v. Snyder, 51 Utah 227, 169 Pac. 954.

In 94 A. L. R. 486, it is stated that the courts so holding are in the minority, and a list of cases holding to the contrary is given. Conspicuous among these is Coombs v. Darling, 116 Conn. 643. In Connecticut service on a nonresident may be had upon the motor vehicle commissioner of the State; the court held that the obvious purpose of this statute is to afford a means by which the equivalent of personal service might be made upon a nonresident although he was not actually within the State, and that, as there are no limitations of time within which the substituted service must be had, the regular statutory limitations to all tort actions applies and fixes the limit of time for such service of process. This opinion is squarely in point and well reasoned. Other cases which are in principle in accord with the Connecticut case are Niblack v. Goodman, 67 Ind. 174, 198; Penley v. Waterhouse, 1 Iowa 498; Dent v. Jones & Pintard, 50 Miss. 265; Garth v. Robards, 20 Mo. 523; Blodgett v. Utley, 4 Neb. 25; Green v. Snyder, 114 Tenn. 100; Rutland Marble Co. v. Bliss, 57 Vt. 23, 30; Crowder v. Morphy, 61 Wash. 626. To this list might be added Malakoff v. Frye, 284 N. Y. S. 22. The decision of that ease rests upon the general theory that where personal service of summons, or its equivalent, could be had, absence from the State does not suspend the running of the statute of limitations. In Walker v. L. E. Meyers Const. Co., 175 Okla. 548, 53 P. (2d) 547, it was held that if process can be served on a foreign corporation and personal judgment obtained, it is not “out of the State” within statute tolling limitations, and where process on a nonresident can be served on the secretary of State the statute of limitations is not tolled during the absence of the defendant.

In Illinois the only decision touching on the subject is Thornton v. Nome & Sinook Co., 260 Ill. App. 76, where it was said that ability to obtain service of process is the test of the running of the statute of limitations. The opinion quoted from Hamilton v. North Pac. S. S. Co., 84 Ore. 71, which involved a case where a nonresident corporation maintained an agent in Oregon on whom service could be had. It was there said that under such circumstances it was not out of the State so as to toll the statute, and that the reason which induced the legislature to enact the statute tolling the period of limitations (very similar to our section 18) is not applicable to any party on whom service of summons may be effected within the State at any time. In commenting upon that and other cases it was held that since process must be accepted by a nonresident corporation, “they also share the privilege with domestic corporations, of pleading the statute of limitations.” The opinion quoted from Warren v. Clemenger, 120 Ill. App. 435: “But because time outlasts witnesses and wears away evidence of payment, it was early found necessary, for the protection of those who were once debtors, and to quiet titles, to enact a statute of repose fixing a time after the right of action accrued beyond which it could not be enforced. Accordingly, in every jurisdiction in which the common law prevails there is now to be found, in varying words, a Statute of Limitations prescribing a boundary to the right to bring an action at law. In this State the time thus limited is amply sufficient to permit a diligent creditor to enforce his claim. The statute affects the remedy merely and not the merits of the controversy. It is a statute of repose and should be construed liberally so that the object for which it was enacted may be attained. ’ ’

As suggested in defendant’s brief, to permit a plaintiff to defer service indefinitely when the opportunity for service is continuously open would cause a great hardship, especially where a defendant may never know until years have passed that he is charged with negligence. As was said in the instant case by the trial court, if plaintiff could wait more than two years and seven months after the cause of action accrued before making this defendant a party, then, if plaintiff’s contention is well founded, she could have waited twenty-two years and seven months, or any other lengthy period, before suing this defendant, which would be intolerable and in conflict with the purpose of the statute of limitations.

The statute providing for substituted service (sec. 20a, Motor Vehicles Act, previously cited) is comprehensive and lengthy. It applies to users of motor vehicles by nonresidents on the highways of Illinois. The rights of both plaintiff and defendant are protected.

By this act the legislature obviously intended to create an exception to section 18 of the Limitations Act, which provides for the tolling of the statute while a defendant is out of the State. This is in harmony with the opinions in the greater number of cases decided in other States and also is consonant with the better reasoning.

Plaintiff’s theory is in conflict with the primary purpose of the act, which is to give speedy adjudication of the respective rights of the parties and to give the plaintiff compensation for damages if so entitled. As was said in Pawloski v. Hess, 250 Mass. 22, 24, “the aim of the statute is to facilitate the enforcement of civil remedies by those injured in their person or property by the negligent or wanton operation of motor vehicles upon the highways of this Commonwealth.”

We hold that the order of the superior court in dismissing the cause as to defendant M. E. Overlease is proper and it is affirmed.

Affirmed.

O’Connor, P. J., and Matchett, J., concur.


author: Mr. Justice Wolfe

text:
    William Costello, Minor, Edward Costello, His Father and Next Friend, Appellee, v. City of Aurora, Appellant.
    Gen. No. 9,277.

      Opinion filed April 28, 1938.
    Rehearing denied June 2, 1938.
    Charles H. Edwards, Corporation Counsel, and Charles A. Darling, Assistant Corporation Counsel, for appellant.

      Painter & Hayes, of Streator, and William J. Tyers, of Aurora, for appellee.
   Mr. Justice Wolfe

delivered the. opinion of the court.

This is an action to recover damages from the city of Aurora, a municipal corporation, for an injury received as the result of a cannon hall falling upon the third finger on the left hand of the plaintiff, from a pyramid constructed of concrete into which this cannon ball, together with other similar balls were imbedded and maintained by the defendant in the city of Aurora, as a public park and playground of said city. It is alleged that said pyramid containing the cannon balls was defective; that the city of Aurora knew, or by the exercise of ordinary care and caution, could have known that said pyramid, with said cannon balls, was dang*erous and defective, and that the city of Aurora was negligent in its maintenance thereof.

This suit is brought by William Costello, a minor, by Edward Costello, his father and next friend. The complaint consists on one count which charges that the city of Aurora maintained said pyramid in a negligent manner; that while William Costello, and others, was playing near the said pyramid, and was in the exercise of due care and caution for his own safety, one of the cannon balls fell upon his finger and crushed it so that a part of the finger had to be amputated, and that William Costello is permanently injured thereby. The complaint also alleges that the parents of said minor have assigned to him any rights of recovery or interest they may have in said suit. The complaint further alleges that the plaintiff caused to be filed, and did file in the office of the city clerk and corporation counsel of the city of Aurora, a certain notice as is required by law. A copy of said notice is set out in the complaint.

The defendant filed its answer to said petition, which admitted ownership of the park and the maintenance of the pyramid in question, but denies that the said city was guilty of any negligence in permitting cannon balls to become loose or had any knowledge that they were in a dangerous or unsafe condition. The answer denies that William Costello was in the exercise of due care and caution for his own safety while at or near the said pile of cannon balls.

The case was tried before the court without a jury. Evidence was heard on behalf of the plaintiff which shows that the plaintiff, with other children, was playing in the park a game commonly called “follow the leader”; that William Costello was the leader in that play; that the city of Aurora had previously erected a pyramid of concrete in which cannon balls had been placed; that William Costello, as he passed by this pyramid ran his hand along its base, and a cannon ball fell on his hand and crushed his finger; that he was taken to a hospital and a part of his finger was amputated.

At the close of the plaintiff’s case the defendant made a motion that the suit be dismissed because there was no notice given to the city of Aurora of the intention of the plaintiff to file a suit, but that notice was given by the father of the plaintiff, and as such did not comply with the statute; that the plaintiff’s case had not been established by a preponderance of the evidence, and that there was no showing that the plaintiff was in the exercise of due care and caution for his own safety, or, that the city of Aurora was negligent in maintaining the pyramid of cannon balls.

The court overruled the defendant’s motion and found the issues in favor of the plaintiff and assessed his damages at $1,000. It is from this judgment that this appeal is prosecuted.

From an examination of the evidence it discloses that the city of Aurora maintained this pyramid of concrete and cannon balls in one of its public parks and had done so a number of years prior to the accident to the plaintiff in this case. There is testimony which is uncontradicted that the cannon balls had been loose in the concrete for several years and could be lifted out; that it was a common thing for children to play on or near this pyramid, and the employees of the park knew this fact. The evidence further shows that at the time of this accident William Costello was about 10 years old; that he did not go upon the pyramid, but ran by it and touched it with his hand and the cannon ball fell and crushed his finger. It seems to us there is no question but the evidence in this case shows that this pyramid.was maintained by the city of Aurora in a dangerous condition, and this child, William Costello, did nothing that an ordinary child of his age would not have done when he was playing by this pyramid of cannon balls. He was playing in a public park of the defendant, where he and other children were accustomed to play, and where he had a right to play. It is our conclusion as far as this record shows that the plaintiff was in the exercise of due care and caution for his own safety; and that the defendant was guilty of negligence which was the proximate •cause of this child’s injury.

It is next insisted that the court erred in admitting in evidence oral testimony of the assignment from Edward Costello and Etta Costello, parents of William Costello, all of the rights and interest they might have in the case to their child William Costello. Whether the court erred in admitting this evidence it seems to us to be immaterial, as there is no evidence whatsoever in the record of what their right or interest was. There is no claim for any damages except for the injury to William Costello’s finger and expense of treatment. There is no assignment of error that the judgment of the court is excessive. So we cannot see wherein the defendant had been injured by the admittance of this testimony.

It is also insisted that the trial court erred in admitting in evidence the oral opinion testimony of the value of the medical services rendered by the doctor to the plaintiff. It is our conclusion that under the pleadings in this case it was error for the court to admit this testimony, the doctor having testified that he had made a definite charge therefor.

It is next insisted that the suit cannot be maintained because no proof of notice as required by the statute was given to the appellant, the city of Aurora.

In the case of McDonald v. City of Spring Valley, 285 Ill. 52, our Supreme Court, in discussing whether a child of tender years was required to comply with the terms of the statute before bringing a suit for personal injuries against a city, used this language: “The Act is meant to apply only to those who are mentally and physically capable of comprehending and complying with its terms. We are aware, as appellee has pointed out, that in a number of other jurisdictions, a strict construction has been given to similar statutes, and that it has been held in those jurisdictions that it is a matter for the legislature to determine whether there should be any exceptions to such legislation. But in the State of New York, where there is a similar statute, the New York Court of Appeals held that where an infant five years of age was injured by the alleged negligence of a village, its right of action was not barred because it did not filé the notice required within the time prescribed by the statute, under the rule that the law does not seek to compel one to do that which he cannot possibly perform, and the failure of a father or mother to file the notice is not chargeable to the infant. In the State of Washington a similar statute has been construed not to include cases where the person' injured was rendered physically and mentally incapable of complying with the statute in the time required, by reason of the extent of his injuries. Common experience tells us that the cases in which the exception to this statute would be applied are very few, and in a great majority of cases there is not such disability as would make compliance with the statute impossible. It would be unreasonable to so construe this statute as to make it appear that the legislature intended in these few cases to require that to be done which is impossible of performance. It cannot be controverted that a minor is incapable of appointing an agent or an attorney, and it cannot be successfully contended that the statute can be complied with by the filing of the required notice by the father, mother or some friend of the child as next friend. "While the parent of a minor is its natural guardian, he cannot be said to be the agent or attorney for the child. A child with a meritorious cause of action but incapable of initiating any proceeding for its enforcement will not be left to the whim or mercy of some self-constituted next friend to enforce its rights. The declaration discloses that the appellant was mentally and physically incapable of giving* the notice required by the statute, and she did not, therefore, come within the provisions of this statute as properly construed. ’ ’

We think this language applies to the plaintiff in this case, as a child 10 years old, should not be held to the strict rule in giving notice as required of an adult.

In the case of Doerr v. City of Freeport, 239 Ill. App. 560, a case brought by a boy 12 years old against the city of Freeport for personal injuries, it was held by the court that it was not necessary to offer proof on the trial of the case a compliance with the statutory provision with reference to giving notice to the city of the intention of the plaintiff to bring suit.

The appellant seriously insists that in the operation and maintenance of the park in question, the city was acting in its governmental functions of a municipal government and that the appellant is not liable for the injury to the appellee. Whether the appellant was acting in its governmental or private capacity in maintaining this pyramid of concrete and cannon balls in the park is difficult to determine, as there is no set rule governing such matters, but as has been frequently stated, both by our Appellate Court and Supreme Court, each case must be governed by the facts of that particular case. The rule governing such cases is stated clearly in the case of Roumbos v. City of Chicago, 332 Ill. 70, and in part is as follows: "Cities become incorporated by the voluntary act of their inhabitants, for the benefit of the territory incorporated and the people residing within the corporation. By their incorporation they receive certain powers and privileges and assume certain duties and obligations. So far as they are exercising these privileges and duties in the interest of the general public (the people of the state at large) they represent the sovereignty of the state and are not liable for the negligence of their officers and agents in the performance of such duties, but so far as their acts concern merely the interest of the particular locality and its inhabitants they are responsible, the same as private corporations. The legislature has the power, within constitutional limitations, to determine to what extent the city shall be liable for injuries negligently committed by its officers and agents in the exercise of its powers. ' The rule of law is a general one that the superior or employer must himself respond civilly for the negligence or want of skill of his agent or servant in the course or line of his employment by which another, who is free from contributory fault, is injured. ’ (2 Dillon on Municipal Corporations, sec. 968.) The application of this rule to municipal corporations in cases of torts by their employees and servants tends more to the securing of justice than the release of the corporations from the results which follow for private corporations or individuals.” It is our conclusion that the city of Aurora in maintaining the pyramid in question was acting in its private corporate capacity and liable for its negligence in not keeping and maintaining the pyramid in a reasonably safe condition.

The appellant has not assigned as error that the judgment is excessive. The usual rule is that in such cases the amount of the judgment will not be disturbed by a court of review. In this case the court took into consideration the fact that the doctor’s bill was $50, and as we have stated in this opinion, this evidence was not competent and the $50 should not be included in the judgment.

It is therefore ordered that the appellee file a remittitur of $50 in this court within 30 days from the filing of this opinion; that if the remittitur is so filed within said time, then the judgment be affirmed for $950. If said remittitur is not filed within said time, then the case is hereby reversed and the case remanded to the trial court for a new trial.

Affirmed if remittitur filed.


text:
    Bruce L. Jones, Appellee, v. Smith Oil and Refining Company, Appellant.
    Gen. No. 9,293.
    Opinion filed April 28, 1938.
    Rehearing denied June 2, 1938.
    Karl C. Williams, of Rockford, for appellant; Charles A. Haskell, of counsel.
    Large & Reno, of Rockford, and Ralph S. Zahm, for appellee; William H. Gates, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

Bruce L. Jones, plaintiff, on November 22,1937, filed a verified petition in the circuit court of Winnebago county in which he seeks a temporary injunction, and after the hearing, a permanent injunction, restraining the defendant, The Smith Oil & Refining Company, a corporation, from carrying into effect a scheme known as the “Lucky License Pay-off Plan,” alleging that the same constitutes a lottery as defined by the constitution of the State of Illinois, and also by the revised statutes.

It is alleged that the plaintiff is the operator of a retail oil service station in the city of Rockford, Illinois ; that the defendant is the largest of the so-called independent oil companies doing business in Rockford, Illinois, and is engaged in the wholesale and retail selling of gasoline, oils, greases and other products, and is in direct competition with the plaintiff; that their places of business are on the same street directly opposite each other; that the plan proposed by the defendant is, that at each of the retail stations and also at the wholesale station, literature shall be distributed relating to the above plan whereby a person visiting the oil station of the defendant will be given a qualifying card which will entitle him to participate in the drawing of $200 at the end of each month; that the said advertising states that it is not necessary to buy any of defendant’s products to get a qualifying card, but they say they will be distributed free to anyone asking for them, provided he is the owner or driver of an automobile; that when such cards are delivered the license number of the automobile will be taken, and the owner of such car license, as shown by the qualifying cards, will be entitled to participate in the drawing.

The defendant filed its answer in which it admitted it was contemplating engaging in the plan as described in the bill of complaint; that it has spent a large sum of money advertising the same, but averred that the same constituted sound, legitimate advertising, and denies that the same constituted a lottery. They also deny that the plaintiff is entitled to the relief stated, and also, that the court is without jurisdiction to grant an injunction in a suit of this kind. The court ordered a temporary injunction restraining the defendant from continuing in their plan as contemplated, and it is from this order that the case is brought to this court.

The appellant has assigned numerous reasons why this judgment should be reversed, but most of them can be disposed of in deciding whether this scheme is a lottery and a violation of the constitution and the statute. It seems to us that the Supreme Court has decided the issues in this case in the case of the Iris Amusement Corp. v. Kelley, 366 Ill. 256. This is known as the “Bank Night” case. The court in a unanimous decision, after reviewing quite a number of cases, held that the same was a lottery. On page 261 of this opinion we find the following language: “Our public policy in opposition to lotteries is ancient and is imbedded in our fundamental law. By section 35 of article 3 of our constitution of 1848, it was provided that the legislature should have no power to authorize lotteries for any purpose. In our constitution of 1870, it is provided by section 27 of article 4, that ‘the General Assembly shall have no power to authorize lotteries or gift enterprises for any purpose, and shall pass laws to prohibit the sale of lottery or gift enterprise tickets in this State.’ It will be observed that the constitution of 1870 adds the words ‘gift enterprises,’ which were not found in the constitution of 1848. Pursuant to this constitutional mandate the legislature, without attempting any exact definition of the term ‘lottery,’ has made the setting up of a lottery a misdemeanor. (State Bar Stat., 1935, chap. 38, par. 401, p. 1208.) Both the constitution and the statute therefore leave the definition of the word ‘lottery’ to its commonly accepted and generally understood meaning.

“In People v. McPhee, 139 Mich. 687, 107 N. W. 174, 69 L. R. A. 505, the meaning of the term ‘lottery’ was before the court. It was pointed out that the term is generic in nature and best left without exact definition, because as the court said, ‘no sooner is it defined by a court than ingenuity evokes some scheme within the mischief discussed, though not quite within the letter of the definition given. ’ In Dunn v. People, 40 Ill. 465, we said that the word ‘lottery’ has no technical meaning in the law distinct from its popular signification, and the People v. Monroe, 349 Ill. 270, we accepted Webster’s definition, ‘A scheme for the distribution of prizes by lot or chance,’ as being sufficient for the purpose of that case.”

The case of Featherstone v. Independent Service Station Ass’n, a Texas case reported in 10 S. W. (2d) 124, is very similar to the one we are now considering. In the Texas case they gave tickets to their customers who came to their different stations, and also gave some to individuals who were not purchasers. The court in discussing the merits of the case use this language: “We readily agree to the correctness of the proposition that, if tickets given by the defendants and other members of the association were gifts, unsupported by a consideration moving from the ticket holder, were in fact, gratuities pure and simple, the lottery statute was not violated, for the evident reason that a person is at liberty to give away his property, by chance, at a drawing, to ticket holders, or in any other manner, without violating the law. But is the case at bar of that nature 1 We do not think so for the following reasons: The change wrought as testified to by defendants was not a change in the scheme itself, but merely in the procedure, or method of executing the same. Instead of giving a ticket to a customer for every dollar’s worth of merchandise purchased, they gave tickets to whomsoever they pleased — customers and noncustomers as well. ’ ’

The court in the Iris Amusement Corp. v. Kelley case, supra, says, “Quite contrary to the plaintiff’s argument, the element of price is present. As the Massachusetts court said, we may look at this thing realistically and sensibly. We know that those within the theatre pay for any chance anyone outside may have to win.” The people who bought the products of the appellant would have to pay for the prize that the winner would get if he did not purchase something from some of the appellant’s stations.

It is our conclusion that the “Lucky License Pay-off Plan” comes clearly within the State constitution statutory provisions of a lottery, and that the same is illegal.

It is argued strenuously by the appellant that the courts have no jurisdiction to grant an injunction to restrain a person from committing a crime, and this is, in effect, what the granting of an injunction is doing in this case. The injunction in this case was not issued on the theory that it was to restrain the appellant from committing a crime, but on the theory that the contemplated plan was a violation of law and that the same would be unfair competition of trade as against the appellee, and if permitted to continue would seriously interfere with the business of the appellee, and for this reason the injunction was issued. Under such conditions it is our opinion that the injunction was properly issued, Featherstone v. Independent Service Station, supra.

It is our conclusion that the court properly found that the “Lucky License Pay-off Plan” was a lottery scheme, and that the court had jurisdiction to issue the injunction as ordered. The judgment of the circuit court of Winnebago county is hereby affirmed.

Judgment affirmed.