text:
    Louise Riley et al., Appellants, v. Mary Arnold, Appellee.
    Gen. No. 37,757.
    Opinion filed December 31, 1934.
    McCarthy & Toomey, of Chicago, for appellants; Frank A. McCarthy and James C. O’Brien, Jr., of Chicago, of counsel.
    Campbell, Clithero & Fischer, of Chicago, for appellee ; J. Milton Guy,-Jr., of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court

. Complainants filed their bill and afterward their first, second and third amended bills, to each of which a demurrer was sustained, and having elected to stand by their third amended bill, the suit was dismissed and this appeal followed. The question for decision is, Does the third amended bill state a legal cause of action?

Complainants, Louise Riley, Eleanor Riley and John Riley, minor children of John J. Riley, deceased, alleged that they bring this suit by their next friend, their mother, Bessie Riley Wallace; that complainant, Katherine F. Walsh, is the administratrix of the estate of John J. Riley, deceased; that John J. Riley and Bessie Riley were husband and wife, and the parents of the minor complainants; that Riley and his wife lived together until June, 1924, when he left his wife and children and went to reside with his sister, the defendant, Mary Arnold, and for two years thereafter he did not contribute anything to the support of his wife and children; that in 1926 the municipal' court of Chicago ordered him to pay to Bessie Riley $40 a month for the support of herself and children.

It is further alleged that about the time of the entry of this order, Riley, the deceased, had $2,700 in a savings account, in a Chicago bank; that about four months thereafter Riley arranged with the bank to redeposit the $2,700 under the name of John Arnold; that more than three years thereafter, viz., December 29, 1929, Riley died and at that time there was on deposit in the savings bank $5,576.87; that the money oh deposit was at all times the individual property of John J. Riley, who was also known as John Arnold; that he made all of the deposits that Avent to make up the total in the bank at the time he died, and that the defendant, Mary Arnold, never deposited any money in the account.

It is further alleged that after the death of Riley the defendant, Mary Arnold, his sister, Avithdrew the $5,576.87 from the bank and appropriated it to her OAvn use; that the deceased kept the account in the bank “in that fashion for the sole and only purpose of preventing the said Bessie Riley, the wife of said John J. Riley, from attaching or securing the funds on hand ’ ’; that the deceased did not give the money to his sister, Mary Arnold; that complainants “will prove upon the hearing . . . that the deceased merely contemplated depriving his wife of said funds but not his children.”

It is further alleged that upon the death of Riley, Mary Arnold became the trustee for the benefit of the money so withdrawn from the bank by her, and on information and belief it is alleged that Mary Arnold invested the money and used part of it to make extensive repairs on her home. The prayer is for an accounting and for a lien on the home.

While the only matter before us is the sufficiency of the third amended bill, yet some light is thrown on the subject by a brief reference to the allegations of the original bill. That bill was on the theory that Riley, intending to defraud his wife and children by preventing them from obtaining any of the money in question, withdrew the $2,700 which he had in the savings bank, as above mentioned, and redeposited it in a joint account in the bank with his sister, the defendant, Mary Arnold, and that they signed a joint withdrawal card.

One of the special grounds of the demurrer to the original bill was that it contained insufficient allegations as to the contents of the withdrawal card signed by the parties. This demurrer was sustained. It seems to us obvious that counsel for the complainants in the third amended bill was endeavoring to circumvent the law as announced in Illinois Trust & Savings Bank v. VanVlack, 310 Ill. 185, which held that where two persons agree with a bank that a deposit, which is payable to them jointly or severally and which either one may withdraw after the death of the other, belongs to the survivor. In the VanVlack case it was held that the written contract entered into between two persons and the bank would be enforced, so that upon the death of one of them the survivor would receive all the money on deposit. See also Engelbrecht v. Engelbrecht, 323 Ill. 208. For an interesting discussion of the question see 48 A. L. R. 189 et seq. In the instant case it is alleged that the money on deposit belonged solely to John J. Riley and that the defendant had no interest in it; that he had deposited all of the money and that he had not made a gift of the money to his sister, the defendant. The fact that after his death she withdrew the deposit from the bank might not necessarily be decisive that the money belonged to her. We think the burden ivas upon her to show, if she could, that the money legally belonged to her. Complainants having alleged facts which prima facie entitled them to equitable relief, the court erred in-sustaining the demurrer and dismissing the bill for Avant of equity.

The decree of the circuit court of Cook county is reversed and the cause remanded Avitli directions to o Aperrille the demurrer and for other proceedings in accordance with the víbavs stated in this opinion.

Reversed and remanded ivith directions.

Me Surely and Hatchett, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    Margaret MacKnight, Appellee, v. Federal Life Insurance Company, Appellant.
    Gen. No. 37,768.

      Opinion filed December 31, 1934.
    Jerome F. Kutak, of Chicago, for appellant.
    Musgrave, Oppenheim, Price & Ewins, of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

July 9, 1928, the defendant, Federal Life Insurance Company, issued its policy of insurance to William MacKnight in which plaintiff, Margaret MacKnight, his wife, was the beneficiary. November 27, 1932, William MacKnight died as the result of freezing and plaintiff brought this suit to recover the amount she claimed to be due her under the policy. There was a verdict and judgment in plaintiff’s favor for $2,800, and defendant appeals.

From the evidence, which is undisputed, it appears that November 27, 1932, the insured, William Mac-Knight, his two sons, and another man, went duck hunting in the marshes near the City of .Hurlock, Maryland. The four drove in an automobile from their home in Hurlock to the edge of the marsh, which took about an hour. They arrived at the marsh about 1:30 o’clock in the afternoon; walked from the automobile about a half mile to a rowboat, where Mac-Knight and his sons left the other man, got into the boat and rowed about a mile upstream; here they anchored the boat (which was the usual type of rowboat built for three men but large enough to carry four), got out and hunted around until about an hour before sunset, when they started back to the boat. On the way back the two sons got lost and hunted around for the boat until nearly dark when they saw a small fire across the marsh; they went to the fire and there met their father; all three then got in the rowboat and started down the stream to the place where they had left their automobile; “all of a sudden we saw the boat was filling with water and sinking”; they all jumped out into the water, pulled the boat to shore and left it. The stream at this place was about 15 feet wide and four or five feet deep ; the weather had suddenly turned very cold and was growing colder; they walked around through the marsh endeavoring to find the automobile, but became lost; they then became so cold and tired that they lay down. A rescue party found them between one and two o ’clock in the morning hut was unable to rescue them and went back for help; when they later came back the father and one of the boys were dead.

A preliminary question is raised by the defendant as to the sufficiency of plaintiff’s statement of claim, the objection apparently being that it was improper to attach a copy of the insurance policy to plaintiff’s statement of claim as an exhibit, this not being permitted under the common law system of pleading. There is no merit in this contention. This case was in the municipal court of Chicago where this method of pleading is permitted, Plew v. Board, 274 Ill. 232; and it is now permitted in this State under the new Civil Practice Act, section 36.

The defendant contends that no recovery can be had under the policy because (1) the death of William MaeKnight did not result solely through accidental means, (2) because he was not riding “in a vehicle at the time of the accident,” (3) because the vehicle was not wrecked or disabled, (4) because there was no “causal relationship between the wrecking or being thrown therefrom, and the death of the insured, ’ ’ and (5) because notice of death was not given immediately; and that all of these must be made to appear before there is any liability under the policy.

(1) Did the death of William MaeKnight result solely through accidental means'? The policy insured William MaeKnight “against Death or Disability resulting directly and independently of all other causes, from bodily injuries sustained through External, Violent and Accidental Means.” The undisputed evidence is that the insured came to his death by freezing, under the facts as disclosed by the evidence hereinbefore referred to. We think the death of William MaeKnight was caused by accidental means independently of other causes, within the meaning of the policy. Federal Life Ins. Co. v. White (Tex. Civ. App.), 23 S. W. (2d) 832. In that case a policy identical with the one before us was involved. There the insured started on a 30-mile journey in his automobile; during the trip the automobile became disabled and the assured abandoned the car and started out on foot; he was overcome by exposure to cold, with death resulting from freezing, and it was held that the death resulted accidéntally and independently of all other causes, within the meaning of the policy.

(2) Was the rowboat in question a vehicle within the meaning of the policy? Counsel for defendant contends that “The insured must be riding in a vehicle at the time of the accident,” and that the policy includes automobiles or other motor-driven or horse-drawn vehicles and not boats — that it is intended to insure against accidents occurring by means of conveyances used on land only, and does not apply to boats. The material provision of the policy provides that the insurance company will pay $2,800 in case the death of the insured results from “the wrecking or disablement of any vehicle or car operated by any private carrier or private person in which the Insured is riding or by being accidentally thrown therefrom.” And later, under the “General Provisions,” the policy provides the insurance does not cover “Death or loss while in, on or operating or handling any submarine. ’ ’ We think the word “vehicle” applies to any conveyance whether on land or on water or in the air, and that a rowboat is a vehicle within the meaning of the policy. And if it should be considered that the word “vehicle” as used is ambiguous or uncertain in meaning, the policy having been prepared by the insurance company, under a well established rule of law, will be construed most strongly against the insurance company.

(3) Was the vehicle wrecked or disabled? Counsel for the defendant contends the boat was not wrecked or disabled because the surviving son of the deceased testified that the boat was not leaking; that they could find no reason for the boat sinking; that the witness also testified the boat “went down so quick that we could not find any reason for its sinking. . .' . We were running along until all of a sudden we saw the boat was filling with water and sinking.” The evidence shows that the father and sons then jumped out of the boat to save themselves, and we think it obvious that the boat was disabled within the meaning of the policy.

(4) From what we have said, and what was said in Federal Life Ins. Co. v. White, supra (Tex. Civ. App.), 23 S. W. (2d) 832, we think there was a causal relation between the sinking of the boat and the death of the insured. The facts in the White case were the same in principle as the facts in the case before us.

(5) Was the notice given the defendant of the death of William MacKnight a sufficient compliance with the terms of the policy? The policy provides that “Written notice of injury on which claim may be based must be given to the Company within twenty days after the date of the accident causing such injury. In event of accidental death immediate notice thereof must be given to the Company. . . . Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible.” The defendant contends that this provision of the policy was not complied with because the insured died November 27, 1932, while the defendant was not notified of this fact until December 7, 1932, or 10 days after the insured’s death and burial. The evidence shows that the policy was kept by the insured in a safe at the place where he was employed. Plaintiff, his wife, knew of the existence of the policy. The evidence further shows that the safe in which the policy was kept could be opened only by the deceased’s employers, who were at another town. The safe was difficult to open and an expert had to be called from Philadelphia to open it, but he was unable to do so. It was then found necessary to break the lock. In these circumstances, we think the notice was given as soon as it was reasonably possible to do so.

The judgment of the municipal court of Chicago' is affirmed.

Judgment affirmed.

McSttrely and Hatchett, JJ., concur.


author: Mr. Presiding Justice Gridley

text:
    Theresa Caruso, Defendant in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 37,320.

      Opinion filed December 31, 1934.
    William H. Sexton, Corporation Counsel, and A. M. Smietanka, City Attorney, for plaintiff in error; Quin O’Brien, Joseph F. Grossman and Casper Nathan, Assistant Corporation Counsel, of counsel.
    Wetten, Pegler & Dale, of Chicago, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

By this writ of error defendant, City of Chicago, seeks to reverse a judgment of $6,000, rendered against it after verdict on February 10, 1933, in an action for damages for personal injuries suffered by plaintiff and occasioned by her stumbling against and falling upon a certain water pipe or water shut-off box, maintained by defendant in a parkway between the curb and sidewalk on the south side of Washington boulevard and west of Laramie street in Chicago. The accident happened on January 11, 1930, about 8:30 o’clock, p. m., after dark and when snow was on the ground and plaintiff and others were about to board an eastbound bus of a certain Motor Coach Co. The action was commenced on January 10, 1931, and the trial was had and verdict returned during December, 1932.

Plaintiff’s original declaration consisted of two counts, to which defendant filed a plea of the general issue and a further plea stating that at the time of the accident defendant “did not own, possess, control or have custody of the instrumentality that caused the injury, nor the place of the accident.” In the first count it is averred in substance that on and prior to January 11, 1930, defendant, a municipal corporation, “owned, controlled, managed and operated” Washington boulevard, a public highway, at or near Laramie street, in the City of Chicago, and also controlled and operated the sidewalks thereon; that there was on the southwest corner of the two streets “a city water pipe then and there projecting above the ground adjacent to the sidewalk of Washington boulevard and near Laramie street”; that defendant “knowingly and negligently suffered and permitted the water pipe to project above the ground without any protection, sign or warning”; that on January 11, 1930, while plaintiff, in the exercise of ordinary care and caution for her own safety, “was proceeding from said sidewalk to the street for the purpose of boarding a public conveyance, she then and there stumbled against the water pipe, . . . was thrown down and seriously injured her knee and other parts of her body”; and that as a result she suffered great pain, became sick and permanently disordered, was hindered in transacting her business and affairs, and was obliged to and did expend large sums of money in her endeavor to be healed of her wounds, sickness and disorder. It is further averred that on July 8, 1930, plaintiff caused to be served upon defendant, its corporation counsel, its city attorney and its city clerk “a notice in words and figures as follows:” (The notice is set forth in full, bearing the signature of plaintiff, by her attorney, and the signatures, by stamp or handwriting of said three officials of defendant, and as having been received by each of them on July 8, 1930.) In the body of the notice is the following:

“On January 11,1930, at or about 8:30 o’clock, p. m., at the southwest corner of Washington Boulevard and Laramie street in the city of Chicago, . . . Theresa Caruso, 28 years of age, of 840 North Laramie street, Chicago, Illinois, proceeding toward an east-bound motor bus, which had stopped to enable her and others waiting there to board it, stumbled against a city water pipe, then and there projecting above the ground adjacent to the sidewalk, and was thrown down, seriously injuring her knee, the said injuries having been attended to by Dr. Salvatore F. Mirabella, 501 North Halsted street, Chicago, Illinois.
“This notice is given in compliance with an Act of the Legislature of Illinois, concerning suits at law for personal injuries, approved May 13,1905, and in force July 1, 1905. (Sec. 7, Chapter 70, Cahill’s Illinois Revised Statutes, 1929.) ”

The second count contained similar allegations. The particular charge is that defendant “negligently and carelessly failed and omitted to erect a guard, rail, sign or any other warning of said projecting water pipe in said street, or at said place, although defendant knew, or by the exercise of ordinary care and caution on its part could have known, of the condition aforesaid, and which condition defendant knowingly suffered and permitted to exist for a long period of time, to-wit, for one year before said date.”

On October 25, 1932, prior to the trial, plaintiff obtained leave to file and filed an additional count, to which on the same day defendant filed two pleas, substantially the same as those filed to the original counts. In the additional count it is averred that defendant, a municipal corporation, “owned, controlled, managed and operated the water works of said city (supplying water to the inhabitants thereof) and the pumping stations, water mains, pipes, shut off or ‘buffalo’ boxes, shut off valves and other apparatus used in the operation and control of said water works and water supply”; that on January 11, 1930, defendant “owned, controlled, managed and operated a certain water control box, or shut-off box, or ‘buffalo’ box, or pipe projecting out of the ground on the parkway between the curbing and the sidewalk, at or near the southwest corner of Washington boulevard and Laramie street”; that defendant “then and there so negligently constructed and maintained said water pipe, shut-off box, ‘buffalo’ box or shut-off valve, that it then and there projected above the ground level to such an extent as to be dangerous to persons walking over or across said street”; that plaintiff, while exercising ordinary care for her own safety, “stepped from the sidewalk across said parkway to a point at or near the curbing of said street, intending to enter ... a motor bus, and, while so crossing the parkway or ground between said sidewalk and curbing, her foot struck against or caught in the top of said water pipe, ‘buffalo’ box, control box or valve box, which was then and there entirely or partially covered with snow, and plaintiff was thrown with great violence to and upon the ground ’ ’; and that in consequence thereof she was seriously and permanently injured, etc. The service of notice upon the officials of defendant, as set forth in the first count, is also averred, and the notice, as served and receipted for, is set out in full.

On the trial plaintiff testified in her own behalf at considerable length, both on direct and cross-examination, stating in great detail how the accident happened, the circumstances leading up to it and her injuries resulting therefrom. No other witness to the accident was called by either party, and her testimony relating thereto stands uncontradicted on the record. She also called seven other witnesses. Two of them were physicians, — Dr. Salvatore Mirabella (her attending physician, who treated her for a long period of time after the accident at a hospital and at her home), and Dr. Peter Cutrera (a physician and surgeon and X-ray expert). Three other witnesses for her were John Pavelka (janitor of an apartment building at said southwest corner); Richard L. Kelly (an employee of. defendant and the keeper of its records of the location of water mains and other pipes in the streets and of the “shut-off” boxes near the curbs of streets); and Ferdinand Petraitis (who testified as to certain measurements made at said corner about one month before the trial, and as to the location of three “shut-off” boxes). Salvatore Caruso (father of plaintiff) and Jessie Caruso (sister-in-law of plaintiff) were the other witnesses called in her behalf. Plaintiff also offered in evidence various writings, consisting of medical and hospital bills and the notice to defendant of July 8, 1930; also a plat of said corner and certain X-ray pictures. Defendant called only two witnesses, John J. Moudry (a map draftsman in its employ) and Dr. Martin Schupmann, a physician and surgeon, who testified as a medical expert. Defendant also offered in evidence certified copies of certain ordinances of the City of Chicago and of the West Chicago Park Commissioners, and a photograph and a plat of the place of the accident. At the close of plaintiff’s evidence, and again at the close of all the evidence, defendant moved for a directed verdict in its favor, hut the motions severally were denied.

Plaintiff’s witness, Kelly, as to the records of defendant and the plat of said corner, etc., testified in part:

“We have no record of parkways. The City merely recognizes the street from lot line to lot line. There is a ‘buffalo box’ at that corner. This plat shows it correctly. There are four ‘buffalo’ boxes on the south side of Washington Boulevard in front of the first four lots. The first three boxes near Laramie were put in by the City. The next, or fourth box, was a private contract job. This is the one that is farthest west from Laramie. It is 76 feet from the west side of Laramie. The third box is 53 feet away from Laramie, and the second box is 46 feet away. The one nearest the corner is 12 feet away. . . . This first box, which is 12 feet away from Laramie, as well as the second and third boxes, were all put in on April 1, 1908. The fourth box, 76 feet away and constructed under private contract, was put in on June 8, 1904. As far as I know, all of these boxes have remained there ever since their construction. Ordinarily, the City takes care of the matter of maintenance. . . . Very often the City will, on request of a consumer, bring a ‘buffalo’ box up to grade, if it is buried. In case of a leak . . . not apparent on the surface, the City goes .around and digs up the box. The ‘shut off’ box is merely where you put the key down to shut the water off. That is all the City has to do with it. ... A ‘buffalo,’ or ‘shut off’ box is a hollow one that goes down to the pipe that runs from the water main into the house or property. You put a rod down into the key of the valve to shut the water off, so that it doesn’t get into the building. The actual valve is about 4% feet below the surface. ’ ’

From the testimony of some of plaintiff’s witnesses, and from the photograph introduced by defendant, it appears that there ivas an apartment building on said corner, fronting north on Washington boulevard and having two entrances, the first being about 25 feet west of Laramie street. Immediately north of the building was the south sidewalk of the boulevard, running east and west. North of the sidewalk and between it and the curb was a grass parkway, having a tree or trees in it, and also the four “buffalo” boxes. Between the sidewalk and the curb, and about 25 feet west of Laramie street, was a narrow strip of concrete walk, running north and south. West of this was another similar narrow strip of walk, running from the sidewalk to the curb. Immediately west of the most westerly of the narrow strips of walk ivas a pole, on the top of which was a large sign with the words: “No parking from here to corner. West Chicago Park Com’rs.” Adjoining the curb, parallel Avith it, and running west for a considerable distance from Laramie street, was another narrow strip or platform of concrete Avalk. Apparently it was put there for the convenience of persons boarding or alighting from busses and other vehicles.

As to the accident and subsequent happenings plaintiff testified on direct examination in part as follows:

“I reside at No. 840 North Laramie street. I lived there with my parents in January, 1930. I then worked for a business concern as an assistant bookkeeper. On Saturday, January 11,1930, after completing my work for the day I went home. I had an appointment to go to a dance and the theatre with friends in the evening. I left home about 7:45 p. m. No one was with me. I took a bus and went south on Laramie, alighted at Washington Boulevard, and crossed over to the southwest corner for the purpose of taking another bus going east. No bus was coming and, as it was cold, I went into the doorway of the apartment building on the southwest corner. Quite a number of people were waiting for the east-bound bus. In about 10 minutes I saw a bus coming and I hurried out of the doorway and towards the bus. Because of other vehicles in the way the bus stopped several feet back of the bus sign. My toe caught in this ‘buffalo’ box, which was partly covered with snow. I didn’t see it. I didn’t know it was there. I was thrown sort of forward and I fell. My knee hit the box. Two young men picked me up and helped me into the bus. I had much pain in my left knee. Afterwards I got off the bus at Canal street and met a friend at the Northwestern depot. We took a train there and got off at Wilson avenue, met other friends, and decided to go to the theatre. I left in the middle of the picture, as my knee was in great pain. I took a taxi home. ... I rested over Sunday. The knee didn’t pain me as much. Monday I went to work again and worked that one week. Then our family physician, Dr. Mirabella, was called. He told me to stay in bed, gave me some medicine and some salve to nib on the knee, which did not improve, and after-wards the doctor took me to a hospital and put a cast on the leg. . . . My knee wasn’t cut, but it started to swell about two weeks after the accident. . . . The first cast was kept on about a month. It extended from the knee to the ankle. It did not relieve the pain, and was taken off and X-rays of the knee and leg were taken. Then a second cast, made of plaster of paris, was put on from my waist down. I was unable to move my body at any point covered by the cast. The same doctor, Dr. Mirabella, attended me at the hospital. I remained there 5% months. I had much pain in the knee. . . . After the 5% months had elapsed my condition was so improved that I was taken home in an ambulance, but with the same cast still on. The pain had lessened. I stayed in bed 11 months altogether, in the hospital and at home, when the cast was removed. I was then able to sit up in bed, and while my knee felt much better, there was a swelling in the leg. . . . When the cast was removed my knee was stiff and I couldn’t walk. Afterwards I started walking on crutches for about 3 months at home, but I wasn’t able to walk up or down stairs or to go outdoors. . . . Later I was able to walk outdoors, but not alone, because of stiffness of the knee. Later the knee improved and the swelling went down but not entirely. The left knee is now about an inch larger than the other knee. If I sit on a chair or otherwise my leg goes up. I can’t bend my knee at all. If I stand on the leg for a considerable time it swells and then the swelling subsides. Before the accident I was very active on my feet and was very fond of dancing, which I did a great deal. Before the accident I never had any disability of my left leg. (The leg and knee were shown to the jury.) ... At the time of the accident I earned $22.50 a week. I have done no work since for a salary ... I did not examine the pipe or box in the parkway, against which I stumbled, until about one week ago.”

At the conclusion of the above testimony the court adjourned until the following morning. When the trial was resumed plaintiff’s attorney was given leave to ask plaintiff a few more questions and in response to them she further testified on direct examination in part as follows:

"I had never before gone to the entrance of the apartment building to wait for a bus. I had never before crossed the parkway to take a bus. . . . About 10 or 12 other people were waiting for the bus on that night. . . . They were standing on the strip and moved west like I did. When my toe caught this box it scraped some of the snow off of it and I noticed how I tripped. . . . The box stood, several inches above ground. It was about a foot from the platform that people used to get on busses, and about 6 to 7 feet from the cement walk leading from the apartment building to the curb.”

During the lengthy cross-examination of plaintiff she further testified in part as follows:

“I left the vestibule of the apartment building when the bus was still about a block away. ... I went to a sort of platform where the others were waiting. The bus came to a complete stop before I started for it. I was sort of surrounded by other people. I hurried like they all did because the bus had stopped further back than where it should have stopped. All the people were hurrying, all walking faster than usual. The bus had stopped about 8 feet or so from the curb and we had to step off the curb and walk in the street to get it. ... I looked where I was going but was hurrying faster than usual. My foot caught on the ‘shut-off ’ box and then I fell. I didn’t know what I had fallen on until I had gotten up and looked at it. . . . I noticed that the pipe I fell on was 3 or 4 inches above the surface. . . . The snow was abotit 4 inches on the ground. This projection ivas partially concealed. ... It was so dark I couldn’t see anything. I didn’t look to see what was there. All I did was to try to get onto the bus and I was hurrying. . . . The bus remained standing until I got on it. I sort of limped. Two gentlemen assisted me onto the bus. ’ ’

On a subsequent day of the trial, and after plaintiff had rested her case in chief, she was recalled to the stand, and over the objection of defendant, was allowed to give further testimony in part as follows:

“At my attorney’s request, I went to the scene of the accident this morning and took some measurements. I noto find that there are two cement strips of walk from the sidewalk to the curb. The first strip of walk is about 25 feet west of Laramie street, and the next one is about 20 feet still further west. After I left the apartment building that evening, in walking towards the curb, I took the most westerly of the two strips of walk. This morning I located the ‘buffalo’ box over which I tripped, and I took measurements of its distance from the building line of Laramie street. That distance is 53 feet.”

The main contention of counsel for defendant is in substance that the trial court erred in not granting defendant’s motion, made at the close of all the evidence, for a directed verdict in its favor, because it was not under any legal liability to respond in damages for plaintiff’s injuries occasioned by her stumbling against and falling upon the water pipe or water box in the parkway in Washington boulevard on the evening in question. It is first argued that it appears from the ordinances introduced in evidence, passed by defendant and the West Chicago Park Commissioners, that defendant did not at the time of the accident or for years prior thereto have the control, management or supervision of the particular portion of the street, or the particular parkway in question, but that the same was under the control, management and supervision of said West Chicago Park Commissioners. After reading the ordinances, and considering the testimony of plaintiff’s witness, Kelly, above set forth, we are of the opinion that there is no merit in the argument. In one of the ordinances of defendant it is specifically provided that “this ordinance shall not be a waiver by the City of Chicago of any right or power it now has or hereafter may have in relation to laying water pipes ... in said streets, and the regulating, repairing and operating of the same, but all such rights and powers are hereby reserved to said City of Chicago.”

Counsel also argue in substance that even if defendant did have the control and supervision of the particular water pipe or shut-off box in the parkway on the evening in question, it owed no duty to a pedestrian traveling over the sidewalk, parkway and street, to exercise care to see that the pipe or box was not such an obstruction as was liable to injure such pedestrian, crossing the parkway in the exercise of ordinary care, and that the evidence did not sufficiently disclose that defendant was guilty of any actionable negligence. In view of the undisputed evidence in this ease and the decisions and holdings of courts of • review in this State, as well as the general current of authority in other jurisdictions in this country, we find no merit-in the argument. A leading and applicable case in this State is Brennan v. City of Streator, 256 Ill. 468. In that case the plaintiff recovered a judgment for damages for personal injuries against the city, which the Appellate Court affirmed, and which on certiorari the Supreme Court affirmed. From the opinion it appears that the plaintiff’s injuries, received on an evening in July, 1906, were occasioned by her stumbling over an obstruction in the street, charged to have been negligently permitted to remain there by the city; that while plaintiff was walking north on the east side of the street on which she lived and upon a brick sidewalk, she attempted to pass four women, who were walking abreast ahead of. her and occupying the whole sidewalk; that in order to pass them she had to step off the sidewalk at its outer edge, and as she did so her foot struck a valve-box attached to a water service pipe, which projected four or five inches above .the ground within one to three inches of the edge of the sidewalk; that she was thrown to the ground and received the injuries complained of; that between the sidewalk and the curb was a space, about 10 feet wide, which was smooth and on a level with the sidewalk; that the time was after dark and there was no artificial light; that the valve-box was an iron pipe, 3% inches in diameter, coming up from the water service-pipe laid in the ground, extending above the surface and terminating in a cap five inches in diameter; that its object was to control the admission of water to^ the adjoining premises; and that it had been where it was probably since the water pipe was laid four years before July, 1906. In affirming the judgment our Supreme Court in its opinion said (pp. 471, 472, italics ours):

“The court refused to give an instruction to the jury to find for the defendant, and it is insisted here that the evidence shows no failure of duty on the part of the city; that having furnished a safe sidewalk it is not liable to one who voluntarily leaves it. A municipal corporation is not under the obligation to keep its streets absolutely safe for persons passing over any part of them. Its duty is only to exercise ordinary care to keep its streets and sidewalks reasonably safe for persons using them who are themselves exercising ordinary care. Not all parts of all streets are needed for public passage, and it is customary and lawful for cities to improve certain parts of the streets for the use of vehicles, certain parts for foot passengers, and to permit other parts of some streets not required for these uses to be occupied by trees, hitching posts, hydrants, flower beds, stepping stones, poles for telephone or telegraph wires, or wires for the transmission of electricity for light or power. Such obstructions do not constitute a violation of the duty of the city toward the public if the street still remains reasonably safe for those using it in vehicles or on foot and exercising ordinary care. But the question arises in each case whether the obstruction is of such a character that the passenger using the street or the sidewalk in the ordinary way and using ordinary care for his own safety is exposed to an unnecessary and unreasonable risk. This'is usually a question of fact, but it may become a question of law where the obstruction is of such a character that reasonable minds cannot differ about it. The present is not such a case. It cannot be said, as a matter of law, to show a want of ordinary care for a person desiring to pass a party of walkers taking up the whole walk to step on the sod a few inches to one side of the brick or stone or concrete sidewalk. It is not an unusual thing, and what is not unusual is to be anticipated. It is negligence for one whose duty is to use reasonable care to make conditions safe, to provide conditions which are unsafe under circumstances which ought to be anticipated. At least it was a question of fact which was proper for submission to the jury whether the valve-box, constructed and located as it was with reference to the sidewalk, ivas so dangerous a menace to persons using the sidewalk with ordinary care as showed a Avant of ordinary care for their safety on the part of the city in permitting it to remain there.”

See, also, the cases of Pennington v. Rowley Bros. Co., 241 Ill. App. 58, 67, and Butler v. City of McMinnville, 126 Ore. 56, 63, 64. In the Butler case it is said: “A city has no right to maintain anything in the nature of a pitfall, trap, snare or like obstruction, whereby the traveler, yielding to the impulse of the average person to cut across a corner in a hurry, may be injured, nor will it be permitted to allow others to do so. Summarizing, we cannot say it is negligence per se for the plaintiff to have crossed this strip at a point other than where the usual or designated passageways were provided. Whether the plaintiff exercised due care was, under the clear and accurate instructions of the trial court, a question of fact for the jury to determine.” The Butter case is also reported in 59 A. L. R., p. 381, and following it is a lengthy annotation, commencing at page 387, headed “Liability for injury on park strip between sidewalk and curb.” And it is stated in the annotation: “Upon the principle that park strips between the sidewalks and curbing of a street are as much a part of the street as any other ground within its limits, liability on the part of the municipality, other conditions constituting negligence found to exist, has been sustained or recognized in the following cases:” (Here follow the citations of numerous adjudicated cases.) And at page 389, under the heading “Duty to Pedestrians,” it is stated: “While the municipality is not required to keep all the space along the sidewalk in the same condition for'use as the sidewalk proper, it is under the duty to take cognizance of the fact that pedestrians sometimes walk over a park space, and must exercise due care to have such area in a reasonably safe condition.” Numerous citations of cases in support of this statement follow on succeeding pages. Among the many cases decided in jurisdictions outside of Illinois, which hold in substance, under somewhat similar facts to those in the present case, that the questions of the negligence of the municipality and the contributory negligence of the injured party are for the jury to determine, are: Corcoran v. City of New Haven, 108 Conn. 63, 67, 68; Fockler v. Kansas City, 94 Mo. App. 464, 468, 469; Coffey v. City of Carthage, 186 Mo. 573, 582, 583, 200 Mo. 616, 627; Lund v. City of Seattle, 99 Wash. 300, 303; McDonald v. City of St. Paul, 82 Minn. 308, 316; Corbin v. City of Huntington, 81 W. Va. 154, 156, 158.

Counsel for defendant also contend that the jury’s verdict on the questions of defendant’s negligence and plaintiff’s contributory negligence.is against the manifest weight of the evidence. We have carefully considered plaintiff’s testimony in its entirety, as well as the other evidence bearing on these questions, and we are unable to agree with the contention.

Counsel further contend that plaintiff “failed to prove the filing of the statutory notice of the accident and injuries and the doctor’s name and address” with the officials of the city. We find no substantial merit in the contention. The original notice of July 8, 1930, as set forth in the declaration, was offered in evidence by plaintiff and was ordered by the court to be marked as an exhibit, and it appears as such in the present record. When it was offered defendant’s attorney objected to its admission, but admitted that “the notice was served.” And he stated that the objection only concerned its ‘ ‘ contents ’ ’; and, upon his request, the court reserved a ruling upon its admission until those objections should be made. Defendant’s attorney never thereafter made any objections to it, and apparently, through inadvertence, the court did not thereafter formally order its admission in evidence. In view of these circumstances and said attorney’s admission, and the fact that the notice, as drafted and served upon the officials of the city, apparently complied with all the essential requirements of the statute (par. 7, ch. 70, Cahill’s Stat. 1929, p. 1473), we do not think that defendant is in any position to claim reversible error because the court did not formally allow the admission in evidence of the notice. (See McComb v. City of Chicago, 263 Ill. 510, 512, 513; Graham v. City of Chicago, 346 Ill. 638, 644, 645.)

Counsel further contend that the court committed reversible error in the admission of certain testimony of plaintiff’s expert witness, Dr. Cutrera, upon the ground that he was not sufficiently qualified to express certain opinions that he did express. After reviewing his entire testimony and other admitted evidence we find no merit in the contention. (See Kimbrough v. Chicago City Ry. Co., 272 Ill. 71, 78; City of Chicago v. Didier, 227 Ill. 571, 575.) Furthermore, some of the opinions expressed by the witness were the same in principle and substance as those expressed by defendant’s expert witness, Dr. Schupmann.

Complaints are made of the giving of certain instructions offered by plaintiff and in the refusal to give certain other instructions offered by defendant.

We have examined these instructions in connection with all the given instructions and do not think that the court committed any reversible error in any of the rulings complained of. We think that the jury were fully and fairly instructed.

And we are unable to say, in view of the evidence -as to the extent and permanency of plaintiff’s injuries, that the jury’s verdict of $6,000 is excessive.

For the reasons indicated the judgment of the superior court of February 10, 1933, against the defendant, City of Chicago, is affirmed.

Affirmed.

Scanlan and Sullivan, JJ., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. Theodore Economakas, Plaintiff in Error.
    Gen. No. 37,444.
    Opinion filed December 31, 1934.
    George W. Blackwell, of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, J. Albert Woll, Henry E. Seyparth and Amos P. Scruggs, Assistant State’s Attorneys, of connsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

By this writ of error defendant seeks to reverse a judgment of the municipal court, entered September 14, 1933, wherein the court, after verdict, adjudged him “guilty of the criminal offense of pandering on said verdict of guilty, and sentenced him to the House of Correction in Chicago for the term of one (1) year and also to pay a fine of $1,000,” etc. Only the common law record is before us.

The main contention of counsel for defendant in substance is that the judgment cannot stand because the record does not affirmatively show that any plea of defendant to the amended information (upon which the cause was tried) was entered of record. The record discloses the following:

On September 14,1933, leave was given to Margaret Le Grette to file her verified information, which was filed on that day; It is alleged therein that defendant on September 5, 1933, at Chicago, “unlawfully and wilfully, did knowingly without lawful consideration, take, accept and receive a certain sum of money, to-wit, two dollars, . . . from Margaret Le Grette, a female person, which said two dollars was a part of her earnings from the practice by her of prostitution. ’ ’ On September 14th, also, the court (Judge Hasten) entered an order in which it is recited that it appears that defendant was arrested without warrant, capias or other writ; that he is here present in open court and the court takes jurisdiction of his person, etc.; that the People by the State’s attorney come, and defendant in his own person and by counsel also come; that defendant “being duly arraigned, . . . says that he is not guilty in manner and form as charged in said information. ” It is then ordered that the cause be “transferred to Criminal Court Branch No. 39, for jury trial.” It is then stated that “thereupon the state’s attorney moves the court for leave to file an amended information, and the court grants said leave.” On the same day the amended information, verified by said Margaret Le Grette, was filed, in which she alleged that defendant, on September 5, 1933, at Chicago (1) “did then and there, by promises, threats and violence, cause, induce, persuade and encourage said Margaret Le Grette, a female person, to become an inmate of a house of prostitution”; and (2) “did by threats, promises and violence, cause, induce, persuade and encourage said Margaret Le Grette to remain as an inmate of a house of prostitution”; and (3) “did then and. there, knowingly and without lawful consideration, take, accept and receive a certain sum of money, to-wit: two dollars, . . . from said Margaret Le Cette, — the said sum being part of her earnings from her prostitution; in violation of section 170, chapter 38, Smith-Hurd’s Revised Statutes of Illinois for 1929; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Illinois.” It will be noticed that the third charge in the amended information is substantially the same as the one charge contained in the original information, but that in the amended information there are two other charges which are not contained in the original information.

The transcript further discloses that on the same day another judge of the court (Judge McGarry) entered the judgment order in question, wherein it appears in substance that defendant moved to “quash the information,” but that after argument the motion was overruled; that defendant was advised of his right to a trial by jury; that a trial by jury was commenced and twelve jurors (naming them) were “impaneled” (it is not stated that the jury were sworn); that the People were represented by the State’s attorney; that defendant was present in person and represented by counsel; that after hearing all the testimony of the witnesses, the arguments of counsel and the instructions of the court, the jury retired and thereafter returned their verdict, finding defendant “guilty in manner and form as charged in the information herein”; that defendant’s motions for a new trial and in arrest of judgment severally were overruled; that the State’s attorney moved for final judgment on the verdict; and that thereupon the court entered judgment against defendant, as first above mentioned. It does not appear from the judgment order, or elsewhere in the record, that after the motion to quash the amended information was made and denied, or at any other time, defendant filed or orally made in open court any plea to the amended information or was requested to do so.

It clearly appears from the record that the basis of defendant’s conviction is the amended information. As said in People v. Zlotnicki, 246 Ill. 185, 186, when that information was filed the original information “was abandoned.” In People v. Kennedy, 303 Ill. 423, it was decided in substance that under section 3 of Division XIII of our Criminal Code, Cahill’s St. ch. 38, ¶ 755, a plea is essential to constitute an issue to be tried in a criminal case, whether the offense charged be a misdemeanor or a felony, as the matter of a plea is not a mere formality; and that the want of a plea by a defendant is properly raised by the general motion in arrest of judgment. In the opinion in the Kennedy case it is said (p. 425, italics ours): “This court has consistently and uniformly held that the statute must be complied with and that a plea is essential to constitute an issue to be tried. In Johnson v. People, 22 Ill. 314, which was a prosecution for a misdemeanor, the above provision of the Criminal Code was quoted and it was held that a plea was essential to the formation of an issue to sustain a verdict; that without it there was nothing to be tried by the jury, and that the judgment in that case should have been arrested for want of a plea. In Yundt v. People, 65 Ill. 372, where the charge ivas a felony, the record failed to show that the defendant was arraigned or any plea filed, and it was decided that there was no issue to try and the defendant could not be properly sentenced.” See, also, People v. Evenow, 355 Ill. 451, where it is said (pp. 453, 454, italics ours): “But the provision for ■ the entry of a plea is mandatory, and since the decision in the case of Johnson v. People, 22 Ill. 314, this court lias consistently observed the rule that where the record does not affirmatively show the entry of a plea of not guilty there is no issue and there is nothing to he tried hy a jury. The absence of such affirmative showing is fatal to the record. (Citing cases.) Counsel for the State have cited authorities to the contrary from certain other jurisdictions, but we adhere to our own rule, not only because of the doctrine of stare decisis but because in our judgment it better comports with the proper administration of justice.”

Considering the record before us and the above holdings and decisions of our Supreme Court, we are of the opinion that the present judgment of conviction of defendant must be reversed and the cause remanded for further proper proceedings and another trial.

Defendant’s counsel also contends that the judgment should be reversed because the record does not affirmatively show that the jury were sworn to try the issues after they were impaneled. In view of our holding, as above, it is unnecessary for us to consider the contention.

For the reasons indicated the judgment of the municipal court of Chicago of September 14, 1933, is reversed and the cause is remanded.

Reversed and remanded.

Scant an and Sullivan, JJ., concur.


text:
    Village of LaGrange, Petitioner, v. William G. Clark and Mary E. Clark, Respondents.
    Gen. No. 37,539.

      Opinion filed December 31, 1934.
    Rehearing of appellant and appellees denied and opinion modified January 12, 1935.
    Stevens, Carrier & Griffith, of Chicago, for petitioner; George M. Stevens and Melvin L. Griffith, of counsel.
    Owen Ball, of Chicago, for respondents.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Cook county granting a new trial. On September 23, 1932, plaintiff commenced an action in debt against defendants to recover penalties for claimed violations of its zoning ordinance. There was a trial before a jury and on March 2, 1934, a verdict was returned in plaintiff’s favor, assessing its damages at the sum of $2,770. Defendants were given leave to file and filed a written motion for a new trial, specifying 26 grounds therefor, and on March 31, 1934, after argument, the court entered the order granting the new trial, which order plaintiff here seeks to reverse.

Within 30 days thereafter plaintiff, after due notice and in compliance with section 77 of the Civil Practice Act of 1933, Cahill’s St. eh. 110, 205, Bule 30 of the Supreme Court and Bule 20 of this Appellate Court, filed a transcript of the record of the proceedings at the trial and a written motion praying that the time to file its abstract and its petition for leave to appeal be extended for 15 days from April 30, 1934. The motion was allowed. On May 15, 1934, plaintiff filed its abstract and said petition, to which defendant thereafter filed an answer and plaintiff a reply. On June 12, 1934, plaintiff’s petition for leave to appeal was allowed. Subsequently defendants, by leave of this court, filed an additional abstract and an additional brief, to which plaintiff filed a reply brief. On July 7th, defendants’ motion to transfer the cause to the Supreme Court was denied. On October 2nd, the cause was taken and set for oral argument and defendants’ motion for leave to assign cross errors was reserved to the hearing. On October 16, 1934, the cause was argued orally by respective counsel. Defendants’ said motion for leave to assign cross errors, which was reserved to the hearing, will now be allowed.

Plaintiff’s declaration in debt, filed November 4, 1932, consisted of 277 counts and charged 277 separate violations of the zoning ordinance of the village, beginning on December 21, 1931, and continuing for each day thereafter up to and including September 22, 1932. In the first count it is averred in substance that prior to December 21, 1931, the village had adopted and published a zoning ordinance (parts of the ordinance set forth), which is still in force; that on December 21, 1931, and before and after said date and until the commencement of this suit, defendants were the owners of certain real estate (describing it), situated in the village of LaGrange, Cook county, Illinois, the fee simple title to which they had obtained by conveyance from Catherine McCallister and Arthur S. McCallister; that the real estate, improved by a dwelling house, was within the “A” residence district of the village; that under the ordinance the house could not be used for any other purpose than as a “single family dwelling,’’ which is defined to be “a detached building having accommodations for and customarily occupied by one family only, and including a private garage with living quarters therein”; that a “family” is defined to be “any number of individuals living and cooking together on the premises as a single housekeeping unit”; that at the time of the adoption of the ordinance and prior thereto the dwelling and premises were being used and had been used by and for a single family, as defined in the ordinance, and that for a long period of time thereafter such conforming use was continued; that no permit of the building’ commissioner has.ever been issued allowing a change of use in the building or any part thereof; that on December 21, 1931, the defendants used the building and premises for “two family dwellings, that is to say for the housing of hoo separate and distinct families, as defined in said ordinance, contrary to the terms and provisions thereof”; that it was provided in the ordinance that “any person, firm or corporation who violates, disobeys, ... or refuses to comply with, or who resists the enforcement of, any of the provisions of the ordinance shall, upon conviction, be fined not less than $10, nor more than $100 for each offense; each day that a violation is permitted shall constitute a separate offense.” Wherefore, and by virtue of the statutes and ordinances in such case made and provided, “an action hath accrued to plaintiff to have and demand of and from defendants the sum of $100, penalty, as provided in said ordinance.”

The remaining 276 counts contain substantially the same averments, except that in each count the day of the claimed violation of the ordinance is a different one, — viz., respectively, from December 22, 1931, u.p to and including September 22, 1932. And the declaration concludes: “Yet defendants, though requested, have not paid to plaintiff the several sums of money in the several counts specified, together amounting to the sum of $27,700, or any part thereof, but refuses so to do”; to plaintiff’s damage, etc.

After defendants’ general and special demurrers had been overruled, they, by leave of court, filed two pleas, — (1) that they “did not owe to plaintiff the said sums of money above demanded of them, or any part thereof,” and (2) that “plaintiff has not, at any time since the enactment and adoption of the ordinance . , . in any ivise been dmmified,” etc. Thereafter

they filed a written motion to dismiss the suit because “It is a case quasi-criminal in nature,” arising within Cook county, and that under the constitution of Illinois the circuit court of Cook county has no jurisdiction of the subject matter.” On January 20, 1934, after argument, the motion was denied. On that hearing before Judge Daniel P. Trude, defendants submitted two propositions to be held as law, but the judge refused both of them, viz.: (1) That the suit is a case quasi-criminal in nature arising within Cook county, “as appears from the pleadings filed”; and (2) that the circuit court of Cook county, under the constitution of Illinois, “has no jurisdiction of a case quasi-criminal in nature arising within Cook county, but that jurisdiction of such case is vested exclusively by said constitution in the criminal court of Cook county. ’ ’

On February 28, 1934, the cause came on for trial before court and jury. Judge Herbert S. Anderson of the city court of Charleston, Illinois, but then sitting as one of the judges of the circuit court of Cook county, was the trial judge. Defendants, by their attorney, objected to the calling of a jury and again made a motion to dismiss the suit upon the same grounds as previously urged before Judge Trude, above mentioned. Judge Anderson overruled the objection and denied the renewed motion, stating: “I will follow Judge Trade’s decision.”

Thereupon a jury trial was had at which much oral and written evidence was introduced. Plaintiff called five witnesses, among them Roberts Mann and the defendant, William Gr. Clark. Plaintiff also introduced in evidence certain instruments and writings. Defendants called four witnesses, among them the defendant, Mary E. Clark. During the cross-examination of Mr. Clark, as plaintiff’s witness, and upon objections made, the court would not allow him to answer certain questions, and defendants’ subsequent offers as to what was sought to be shown by the witness were denied. After Mr. Clark had finished his testimony plaintiff’s attorney, out of the presence of the jury, requested that the court call Mrs. Catherine McCallister as the court’s witness because, as the attorney stated, “there is apparently a set up here between the McCallisters, the Clarks and the Manns.” At first the court decided against the request, but afterward (his attention having been called to certain happenings in the court room) stated in the jury’s presence that he would “reverse the decision” and call Mrs. McCallister as the court’s witness. Thereupon, as such witness, she testified at considerable length in answer to questions put by the opposing attorneys as on cross-examination. At the close of plaintiff’s evidence and again at the close of all the evidence defendants moved for a directed verdict in their favor on each count of the declaration, but the court reserved its rulings on the motions. Thereupon the court gave to the jury 20 instructions, to the giving of some of which, viz., those referred to as “sections” 10,11,12, IS, 14 and 16, defendants’ attorney objected, and, before the jury retired from the bar, he was given leave to subsequently draft and file specific objections in writing to the giving of each of said instructions or “sections” (which objections thereafter were filed and are contained in the present record). Defendants’ attorney also requested the giving of four other instructions to the jury, viz., those numbered 18a, 18b, 18c, and 21, but the court refused to give them.

On March 2, 1934, the jury returned a verdict in plaintiff’s favor, assessing its damages at the sum of $2,770, as first above mentioned. Apparently this sum is made up of the aggregate minimum penalties of $10 each, as provided in the ordinance, for each day’s violation thereof for the 277 days from December 21, 1931, to and including September 22, 1932, as charged in the several counts of the declaration. On March 2nd, also, after the verdict had been returned, defendants’ motions for a directed verdict in their favor, the rulings on which had been reserved by the court, were denied.

Defendants’ grounds for a new trial, as stated by them, are in substance: (a) Error by the court in refusing to dismiss the suit for want of jurisdiction in the court of the subject matter; (b) error in rulings on the admission or exclusion of evidence; (c) error in unduly restricting defendants’ cross-examination of plaintiff’s witnesses and of the court’s witness, Mrs. McCallister; (d) prejudicial arguments of plaintiff’s attorney to the jury; (e) error in giving the portions of the instructions objected to, and in refusing to give the instructions offered by defendants; (f) excessiveness of the verdict; (g) the verdict is against the manifest weight of the evidence; and (h) the evidence did not sufficiently show that defendants “permitted” the claimed violation of plaintiff’s zoning ordinance to continue from day to day, so as to warrant the jury in assessing damages against defendants for each and all of the 277 days, mentioned in plaintiff’s declaration.

The present record, as distinguished from statements or assumptions of opposing counsel, does not disclose the particular ground or grounds upon which the court’s order granting the new trial was based, or that the trial judge gave any reasons xfor its entry or rendered any opinion. The order as contained in the common law record reads: ‘ ‘ This cause coming on to be heard upon defendants’ motion heretofore entered herein for a new trial, after arguments of counsel and due deliberation by the court said motion is sustained and a new trial awarded.” In the Bill of Exceptions, or “Report of Proceedings at the Trial,” is the statement: “Thereupon, on March 31, 1934, all parties being represented by counsel in open court, the written motions of defendants heretofore filed herein for a new trial, and for judgment notwithstanding the verdict, came on for hearing and, after arguments of counsel, the court allowed said motion for a new trial.” Then follows the statement that plaintiff, by its counsel, objected to the order, and then follows the further statement: “Which were all the proceedings had on the trial of said cause.”

Among the facts appearing from the evidence are the following in substance :

Defendants, William Gr. and Mary E. Clark, on June 24, 1931, acquired title to the premises herein involved by warranty deed from Catherine McCallister and Arthur S. McCallister, her husband. The Mc-Callisters acquired title in 1926. At that time the zoning ordinance of plaintiff was in force and effect, and for more than 20 years prior thereto the premises had been improved with a two-story frame dwelling, containing five rooms on the first floor and six rooms on the second floor, and the use of the dwelling conformed to the provisions of the ordinance — being a single family dwelling. In January, 1927, the McCallisters employed said William Q-. Clark, a resident in the villáge for many years and being a carpenter contractor, to make alterations in the building, and Clark made application to the village for 'a .-permit, thereafter approved by it, “to erect a Remodeling Porch.” Thereafter Clark erected the porch which was on the side of the building, and enclosed part of it for a sun parlor. He made other alterations or repairs, including the erection of “an outside stairway from the ground to the second floor,” on the north side of the building and having a “landing porch.” The alterations made it possible for the building to be used as a dwelling for more than a single family. After the alterations were completed Mr. McCallister made a lease of the second floor of the building to one Griffith for a period of two years from May 1, 1927, and in April, 1928, the village either caused or threatened McCallister’s arrest for claimed violation of the ordinance in causing the building to be used for the housing of two families instead of one, and during May, 1928, McCallister filed a bill in the circuit court for an injunction, etc., against the village. That cause was referred to a master and such proceedings therein were had that in December, 1930, he exhibited a report, making findings in favor of the village and as to the validity of its ordinance and recommending that McCallister’s bill be dismissed for want of equity. Subsequent to the filing of the report, but before decree entered, the McCallisters conveyed the premises to the Clarks. On November 19, 1931, the circuit court, following the report of the master and overruling exceptions thereto, entered a decree dismissing said bill for want of equity. Although an appeal was allowed from the decree it was not perfected.

About the time the decree was entered (November, 1931) Mrs. McCallister, although title to the premises had previously been conveyed to' the Clarks, entered into a written lease with Roberts Mann, demising to him the second floor of the building for a period ending September 30, 1933, and Marin and his family took possession of the portion of the building demised and continued to occupy that portion! as a family dwelling. After the conveyance to the Clarks of the' title to the premises, neither of them received any keys from the McCallisters or took possession of the premises. William Gf. Clark testified he never had been in the building. At the time the lease was made to Mann neither of the Clarks had any conversations or negotiations with Mann. Thereafter Mann paid rent to Mrs. McCallister, and for a time the McCallisters occupied the first floor of the building as their dwelling. On December 30, 1931, plaintiff, by its building commissioner, sent separate written notices to the Clarks, the McCallisters and the Manns, to the effect that the building was not being used in compliance with the ordinance, but was being put to a use in violation of its terms, and that unless the illegal use” was discontinued within five days an appropriate action would be instituted to enforce such compliance. Thereafter the Clarks and the McCallisters had conferences with an attorney, and, according to their testimony, the McCallisters, with their children, in January, 1932, went to live in a small apartment over a certain store in the village. After about two months they continued to sleep in said apartment, or in quarters elsewhere, but they cooked their noon-day meals on the first floor of the dwelling house in question and attended to the keeping up of the furnace fire. They paid no rent for this occupancy to the Clarks, nor were any payments for rent demanded of them by the Clarks, but Mrs. McCallister collected rents from the Manns, which she did not turn over to the Clarks. William Gr. Clark testified in substance that during the period from December 21, 1931, to September 23, 1932 (when the present action was commenced) Mrs. Mc-Callister, under his verbal agreement with her, was collecting the rents from the Manns and taking care of the property and the furnace, for the privilege of “storing her furniture” on the first floor of the building, and that subsequently he had Mrs. McCallister “indicted-for rents she had received from Mr. Mann.”

The evidence further disclosed in substance that the Manns, after the expiration of their lease to the second floor of the building on September 30, 1933, left the premises; that the McCallisters then moved back into the building and occupied the same as their dwelling; that the Clarks had commenced a suit or suits against them for the possession of the premises; and that at the time of the trial (March, 1934) the Clarks claimed still to be the owners of the, premises.

In plaintiff’s printed petition for leave to appeal from the order granting the new trial, its counsel make five contentions. The main contention in substance is (1) that the court did not err in following Judge Trade’s prior ruling, made upon defendants’ preliminary motion to dismiss the suit, that the circuit court of Cook county had jurisdiction of the subject matter. The four other contentions relate to certain procedural errors, claimed in defendants’ written motion for a new trial to have occurred on the trial and to have warranted the action of the court. These contentions are in substance: (2) That none of the court’s rulings, in admitting or excluding evidence or made upon objections of either counsel as to any matter or 'thing occurring on the trial, was so prejudicial to defendants as to warrant the court’s action; (3) that no such error was committed in the giving or refusing to give any instruction or instructions as warranted the court’s action; (4) that it was proper under all the ■ circumstances shown for the court to call Mrs. Mc-Oallister as the court’s witness; and (5) that the evidence so clearly established defendants’ daily and continued violations of the zoning ordinance in question, as charged in each count of the declaration, that ‘ ‘ reasonable minds could come to no other conclusion than that reached by the jury,” and this Appellate Court will here enter the judgment which the trial court should have entered upon the verdict. In defendants’ answering brief, their counsel limited himself wholly to a reply to plaintiff’s counsels’ first contention, concerning the question whether or not the circuit court ■ had jurisdiction to try the present cause as disclosed from the pleadings, and stated in substance that if he was right in his contention (that the court did not have such jurisdiction), it would be a waste of time for him in a brief to discuss, or this court to read, his contentions relating to the claimed procedural errors occurring at the trial; and counsel further stated that if the petition for leave to appeal was allowed, he would in an additional brief to be filed (which was filed after the allowance of this appeal) discuss said procedural errors. And as to defendants’ theory concerning the instant question as to the circuit court’s jurisdiction, counsel further stated:

“It is defendants’contention . . . that, under the decision of People v. Feinberg (opinion filed in May, 1932) 348 Ill. 549, overruling Berkovitz v. Lester, 121 Ill. 99 (decided in 1887), the circuit court of Cook county, under the Constitution of Illinois, has no jurisdiction of a case quasi-criminal in nature- arising in Cook county. Defendants further contend that an action to recover a fine or penalty under an ordinance, although civil in form, is quasi-criminal in nature, whether it is commenced by the issuance of a warrant for the arrest of the defendants or by the issuance of a summons, and that the nature of a cause of action is determinable from the relief sought and the declaration containing the charges made, instead of from the method of acquiring jurisdiction of the defendants’ persons. Defendants concedéd in the trial court, and concede here, that an action of debt for the enforcement of an ordinance is not a criminal prosecution. It is civil in its form, and whenever the question has been raised, whether the action is civil or criminal, it has been decided to be a civil action. However, whenever the question has been raised, whether an action of debt for the enforcement of an ordinance is quasi-criminal in nature although civil in form, the decision in every instance, except one (People v. Milwaukee Dairy Co., 244 Ill. App. 341, 345, which was based upon a misapprehension of the holding of the Supreme Court in People v. Gartenstein, 248 Ill. 546) has been that the action is quasi-criminal.”

In the cited Gartenstein case it appears from the opinion (p. 549) that an action of debt was begun in the municipal court of Chicago by the People, for the use of the State Board of Health, against Gartenstein, to recover the statutory penalty of $100 for practicing medicine without a license; that after the defendant had been served with summons and had appeared and waived a trial by jury, the court heard evidence and found that the defendant was indebted to the plaintiff in the sum of $100, as such penalty, and rendered judgment for the amount, etc.: that the statute upon which the action was based provided that “a person practicing medicine without a license shall forfeit and pay to the People of the State of Illinois, for the use of the State Board of Health, the sum of $100 for the first offense and $200 for each subsequent offense, to be recovered in an action of debt before any court of competent jurisdiction”; that after said judgment was rendered against Gartenstein he prayed an appeal to the criminal court of Cook county, which the municipal court refused to grant; and that he afterward sued out a writ of error from the Supreme Court to review the judgment, which subsequently was affirmed. One of the contentions of counsel, as a ground for a reversal of the judgment, was that there had not been a compliance with the provisions’ of section 33 of article 6 of the Illinois constitution, wherein it is provided that “all prosecutions shall be carried on: In the name and by the authority of the People of the State of Illinois, and conclude: Against the peace and dignity of the same.” And counsel argued that the suit “was a prosecution, and that the judgment must be reversed for a failure to obey the constitutional mandate.” In deciding this contention adversely to Gartenstein, the court reviewed a number of its prior decisions, and said in part (pp. 550-552, italics ours):

“Counsel for plaintiff in error is correct in his position that if the suit was a prosecution the court could not dispense with words which are essential in all prosecutions and advantage of their omission can be taken on motion in arrest or on error. (Hay v. People, 59 Ill. 94.) The action of debt, however, was not a prosecution. The meaning of the word ‘prosecutions’ was judicially determined by this court in Donnelly v. People, 11 Ill. 552, where the court said: ‘In its broadest sense the word “prosecutions” would embrace all proceedings in the courts of justice, or even elsewhere, for the protection or enforcement of a right or the punishment of a wrong, whether of a public or private character. The word, as here used, however, has not that comprehensive meaning, but signifies prosecutions of a public or criminal character. When used in this sense it means the mode of the formal accusation of offenders, and this may be by presentment, information or indictment. ’ . . . The suit in this case was neither criminal in form nor substance. It was not a crime at common law to practice medicine without a license, and the statute does not make it a crime. Where an offense is created by statute and a penalty is fixed for its commission, which is to be recovered by an action of debt and not by prosecution, the action is civil and the rules of criminal pleading and procedure do not apply to it. To practice medicine without a license is no more a crime, either in its nature or by the statute, than to peddle without a license, and in Webster v. People, 14 Ill. 365, where the action was to recover a penalty for peddling without a license, it was held that the suit was not criminal, either in form or substance; that the act was not an offense at the common law nor indictable under the statute; that it was not necessary to prove guilt beyond a reasonable doubt, and that either party might appeal. The case of Town of Lewiston v. Proctor, 27 Ill. 414, was an action to recover a penalty for obstructing a village street, and it was held that the rule in criminal prosecutions requiring the jury to be satisfied of the defendant’s guilt beyond a reasonable doubt did not apply, and the same doctrine has been repeated in other cases. In Town of Partridge v. Snyder, 78 Ill. 519, the proceeding was to recover a penalty for obstructing a road, and it was held to be a civil action and not criminal nor of a criminal nature, and that either party might appeal. In a suit before a justice of the peace to recover a fine imposed by statute upon school officers for malfeasance in office it was held that the information need not be in writing nor in the name of the People. (Newton v. People, 72 Ill. 507.) The decision could only rest upon the ground that the suit was not a prosecution, since the fact that the statute does not provide for written pleadings in a-justice’s court would not authorize a justice of the peace to dispense with a constitutional requirement. The fact that the amount recovered was called a fine did not determine the nature of the action, but the real essence of the thing was that the amount recovered ivas a penalty. The same rule applies here, and the fact that the defendant may be committed to jail as a method of collecting the debt does not fix the character of the suit as a prosecution.”

The holdings in the Gartenstein case are cited with approval in the subsequent cases of People v. Drainage Com’rs, 282 Ill. 514, 517; State v. Froelich, 316 Ill. 77, 83; and People v. Milwaukee Dairy Co., 244 Ill. App. 341, 343, 344. Defendants’ counsel, as to his contention of want of jurisdiction of the circuit court to try and determine the present action, place considerable reliance on the Feinberg case (348 Ill. 549). He argues in substance that that case in effect overrules the holdings in the Gartenstein case, as well as those in the numerous prior cases of the Supreme Court cited therein, but, as we read the opinion in the Feinberg case, we do not think that there is any basis for the argument. That was a mandamus case, wherein the Supreme Court held in substance that, under the provisions of section 26 of article 6 of the constitution of Illinois, the judges of the circuit and superior courts of Cook county who are assigned to act as judges of the criminal court of Cook county have exclusive jurisdiction in all cases of criminal and quasi-criminal nature; that where a judge of the circuit court of Cook county not so assigned attempts to call a special grand jury and assume jurisdiction of its proceedings his orders in connection therewith are void and may be wholly disregarded; but that man damns will not lie to compel said judge to expunge his orders, as he has no more jurisdiction to expunge the orders than he has to make them. And we are of the opinion that under the allegations in plaintiff’s declaration in the present case, the circuit court of Cook county clearly has jurisdiction of the subject matter of the cause. It is a civil action of debt brought to recover penalties prescribed for claimed violations by defendants of plaintiff’s zoning ordinance. And we are further of the opinion that the trial court did not err in refusing to dismiss the suit upon defendants’ motions.

As to plaintiff’s contention that the trial court erred in entering the order of March 31, 1934, granting a new trial, we have reached the conclusion, after reviewing the briefs and the lengthy printed arguments of opposing counsel and carefully considering all the evidence (some of which was conflicting), and the amount of verdict, that the trial judge did not abuse the discretion vested in him in entering said order. No useful purpose will be served in here discussing the arguments of opposing counsel bearing upon that ultimate question. In 4 Corpus Juris, pp. 830-832, sec. 2813, it is said: “It is generally held that motions for a new trial are addressed to the discretion of the trial court and are not reviewable unless the record shows a clear abuse of such discretion, especially where such motions were based on questions of fact arising on the trial, or on matters which occurred in the presence of the court during the trial, . . . Appellate courts have encouraged trial courts in exercising this discretion to prevent a miscarriage of right and are reluctant to interfere unless the discretion has been exercised capriciously, arbitrarily or improvidently. Even greater latitude is allowed the trial court in granting than in refusing new trials, and the appellate court will interfere more reluctantly where the new trial is granted than where it is denied, since in such cases the rights of the parties are not finally settled as they are. where the new trial is refused. ’ ’ The writer further states (pp. 833, 834; sec. 2816): “The action of the trial court in granting or denying a motion for new trial based on the alleged insufficiency of the evidence to sustain the verdict is within the discretion of the court and is not subject to review except where there has been an abuse of discretion, and this fact clearly appears. This principle is especially applicable in case of an appreciable or substantial conflict in the evidence. . . . Where a new trial is granted on the ground of insufficiency of evidence, a stronger case is required to secure a reversal than where it has been denied; and the action of the trial court in granting a new trial will not be disturbed unless the evidence palpably supports the verdict, . . .” We are unable to say that the present record discloses that the trial court was guilty of a “clear abuse” of discretion in entering the order, granting • the new trial, or that the evidence “palpably supports” the verdict.

The order of March 31, 1934, appealed from, granting a new trial to defendants, should be affirmed and it is so ordered.

Affirmed.

Scanlan and Sullivan, JJ., concur.


text:
    W. H. Fogel, Appellee, v. 1324 North Clark Street Building Corporation et al., Defendants. 1324 North Clark Street Building Corporation, Appellant.
    Gen. No. 37,571.
    Opinion filed December 31, 1934.

      John J. McMahon, of Chicago, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On August 25, 1933, plaintiff commenced in the municipal court a 4th class action in tort against the three defendants to recover for the damages done to his parked automobile as the result of another automobile running into it on the night of July 31, 1933, on the south side of Ohio street, west of Michigan avenue, Chicago. On August 26, 1933, the summons, issued to bring in all three defendants, was served on the defendant corporation, and on September 15th it filed its affidavit of merits. During December, 1933, Babson entered his appearance and filed an affidavit of merits. Several alias summonses for Dietz were returned not served, but he entered his appearance on' March 3, 1934. Shortly prior to the trial, which was had without .a jury on March 16, 1934, plaintiff dismissed the suit as to Babson, who was the owner of the car which ran into plaintiff’s car but who was not in it at the time. On the trial plaintiff sought a recovery against both Dietz, the driver of the car, and the defendant corporation, which conducted a garage at 1324 North- Clark street, and of which Dietz was an employee. The corporation defended upon the theory that at the time and place of the accident Dietz was not operating the car within the scope of his employment, or upon the business of the corporation, but for a purpose of his own. The court found both the corporation and Dietz guilty, assessed plaintiff’s damages at $90, and entered a joint judgment against them in that sum. The corporation alone appealed. Plaintiff has not appeared in this court or filed a brief.

On the trial plaintiff was his only witness. He gave his version of the accident and stated what he heard Dietz say to a police officer immediately thereafter. And he expressed his opinion of the value before the accident of his car, which, as he testified, he sold after the accident for $20. He did not introduce any evidence showing, or tending to show, that at the time and place of the accident Dietz was operating the car within the scope of his employment or upon the business of defendant corporation.

For defendants, Babson, Dietz and Joe Fritz gave testimony. Babson testified in substance that he did not witness the accident; that he owned the car which collided with plaintiff’s; that he lived at 1242 Lake Shore drive; that he stored the car in the garage of defendant corporation, located at 1324 North Clark street (northwesterly from the building in which he resided); and that as part of the garage service rendered by defendant corporation, “my car is picked up and delivered to me between the garage and my home.” Dietz testified in substance as follows:

On July 31, 1933, I was employed at the garage of defendant corporation. On my way to work that evening I was accompanied by my girl, named Kosek, whom I left at the beach at the foot of Ohio street, at Lake Michigan. I made an arrangement to pick her up there later in the evening upon receiving a call from her, which came about 11:30 p. m. I left the garage and walked to Babson’s house at 1242 Lake Shore drive to pick up his car which I knew was standing there. I obtained the keys to the car from the doorman at that address, got into the car and drove south on Lake Shore Drive to Oak street, then east to the outer drive along the lake, then south to Ohio street at the beach. I there stopped and picked up my girl. Then, accompanied by her, I went west on Ohio street to go back to the garage with the car. While going west on Ohio street, near its intersection with Michigan avenue, I struck plaintiff’s car, which was parked along the south side of Ohio street. The time of the accident was about 11:55 p. m. I did not have the consent of my employers, or of Mr. Babson, to use his car for the purpose of picking up my girl.

Fritz, the manager of the garage of defendant corporation, testified in substance that Dietz was one of its employees; that he did not instruct or give his consent to Dietz to use Babson’s car for the purpose of “driving his sweetheart around”; that Dietz had no general authority to pick up cars; that it required only a few minutes to pick up Babson’s car and drive it to the garage; that the distance from Babson’s house to the garage is approximately 4/10ths of a mile nortlmesterly in the opposite direction from that in which Dietz traveled after he picked up the car; that the point on Ohio street where Dietz picked up his girl is several miles southeasterly from the garage; and that the “recognized blue book value of plaintiff’s car immediately prior to the accident was $128.”

In view of the evidence we are of the opinion that the trial court was fully warranted in entering a finding and judgment against the defendant, Dietz, in the amount of $90; but we are also of the opinion that the court was not warranted in entering any judgment against defendant corporation. Considering the undisputed evidence, the law of this State and the general current of authority in other jurisdictions, we do not think that defendant corporation is liable to plaintiff for the damage done to his automobile, which was occasioned by the negligence of Dietz, a servant of defendant corporation, in driving Babson’s automobile at the time and place and for the purpose shown. In 2 Berry on Automobiles, 6th Ed., sec. 1386, p. 1149, under the heading “Deviation from route or instructions,” the general rule is stated as follows: “If the servant steps aside from his master’s business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended, and an act of the servant during such interval is not to be attributed to the master.” And we think that the holdings and decisions of our Supreme Court in the following cases are applicable here: Johanson v. Johnston Printing Co., 263 Ill. 236, 240; Clark v. Wisconsin Cent. Ry. Co., 261 Ill. 407, 410; Lohr v. Barkmann Cartage Co., 335 Ill. 335, 340; Nelson v. Stutz Chicago Factory Branch, 341 Ill. 387, 393. In the Nelson case it is said (italics ours):

‘ ‘ The general rule is, that one who is injured by another’s negligence must pursue his remedy against the person whose negligence caused the injury. Where, however, the relation of master and servant exists between the person guilty of the negligence and another sought to be held for the resulting damages, the negligence of the servant may be imputed to the master, and he may be held liable for the resulting damages if the servant guilty of the negligence was at the time acting in the master’s business and loithm the scope of his employment. Outside the scope of his-employment the servant is as much a stranger to his master as any third person.”

In the Nelson case it is also said (pp. 396, 397):

“There is no contradiction of the plaintiff’s evidence and none of the defendant’s. The legal conclusion follows as it did in Lohr v. Barkmann Cartage Co., 335 Ill. 335, in which the defendant was sued for a personal injury caused by the negligent operation of an automobile truck which it owned. It was operated by an employee of the defendant. The defense was that the employee at the time of the accident was not acting within the scope of his employment and was therefore not the defendant’s agent. The evidence tended to show that the driver having been ordered to take the truck to the defendant’s garage, instead of obeying the order went off on a frolic of his 'own and at the time of the accident was more than four miles from the garage and traveling in another direction. The ownership of the automobile was shown by the plaintiff and the relation of master and servant between its driver and the owner. The evidence introduced by the defendant as to the directions given to the driver, and his disregard of them, showed that he was without the scope of his employment, and it was held that there was no evidence that he was within the scope of his employment. The defendant moved for an instructed verdict in its favor. The motion was denied and the judgment against the defendant was reversed for error in refusing the instruction. It was admitted by the defendant that the driver was its agent on the day of the accident. In regard to the presumption arising from this admission the court said: ‘Such presumption is not evidence. Presumptions are never indulged where established facts exist. They supply the place of facts. When evidence is produced which is contrary to the presumption, the presumption vanishes entirely. (Osborne v. Osborne, 325 Ill. 229; 1 Jones’ Com. on Evidence, 75.) Whether Scliwinnon was in plaintiff in error’s employ at the time of the accident depends upon the facts surrounding that occurrence. ’ ”

Our conclusion is that the judgment of the municipal court, appealed from, must be reversed as to the defendant corporation, but this conclusion does not necessitate that the judgment against Dietz also be reversed, on the theory or rule that a joint judgment against two is a unit, and being reversed as to one must be reversed as to the other. (See McDonald v. Wilkie, 13 Ill. 22, 26; Livak v. Chicago & E. R. Co., 299 Ill. 218, 226, 227.) As we read certain portions of section 92 of our new Civil Practice Act (Cahill’s Stat. 1933, ch. 110, ¶ 220, p. 2162), which became in force on January 1, 1934, such procedure is not now necessary. It is provided in said section in part as follows :

“In all appeals the reviewing court may, in its discretion, and on such terms as it deems just,—
“(f) Give any judgment and make any order which ought to have been given or made, and make such other and further orders and grant such relief, including a remandment, a partial reversal, ... as the case may require.”

Furthermore, it is our opinion that this section of the act is applicable to the present cause, which was commenced on August 25, 1933, before said act became in force, but in which the judgment in question was entered on March 16, 1934. In the ‘ Rules of Practice and Procedure,” adopted by our Supreme Court on December 22, 1933 (355 Ill. 13) Rule 1 thereof concerns the “Applicability of the Civil Practice Act,” and it is therein provided in part as follows :

“All provisions of the Civil Practice Act with respect to review in civil proceedings by the Supreme or Appellate Courts shall apply to orders, determinations, decisions, judgments, or decrees entered by trial courts on or after January 1, 1934. All suits in which a summons has been issued prior to January 1, 1934, but in which no pleadings have been filed by either party prior thereto, shall be governed by the Civil Practice Act.”

For the reasons indicated the judgment of $90, rendered by the municipal court on March 16, 1934, against the 1324 North Clark Street Building Corporation and Melvin Dietz, is reversed as to said corporation, but is affirmed as to said Dietz.

Judgment reversed as to one defendant, but affirmed as to the other defendant.

Sganlan and Sullivan, JJ., concur.